Many states have enacted what are often called “medical apology laws” that prevent doctors’ expressions of sympathy and regret for a bad outcome – and in some states even an outright apology – from being used as evidence against them in a malpractice claim. One intention of these laws is to allow doctors to show some natural empathy for patients and family members when things go wrong without fearing this will be seen as an admission of guilt. If the harm isn’t serious or irreparable, patients are often less inclined to take legal action if they know the doctor understands and recognizes how an error or negligence has affected them.
Some states have “total protection” laws that prohibit patients and surviving family members from using either expressions of sympathy or actual apologies as evidence of malpractice. Others, like Pennsylvania, have “partial” apology laws that allow apologies to be used as evidence but not general expressions of sympathy like “I’m sorry” as long as it’s not followed by something like “I had those two shots of vodka before your surgery” or “that I removed the wrong organ.”
More about Pennsylvania’s law
Pennsylvania law states that “any benevolent gesture made prior to the commencement of a medical professional liability action, administrative action, mediation or arbitration…. regarding the patient’s or resident’s discomfort, pain, suffering, injury or death…. shall be inadmissible as evidence of liability.”
The law notes that this excludes any “communication, including an excited utterance, which also includes a statement or statements of negligence or fault pertaining to an accident or event.”
The reality is that even if a doctor admitted a serious error privately to a patient or family member, that could be impossible to prove if no one else witnessed it. However, any admission or even an expression of sympathy can help lead to other evidence that can be used in a malpractice claim. That’s just one reason why it’s important to listen, take notes and ask follow-up or clarifying questions when a doctor or any medical professional is speaking.
Medical malpractice suits can be challenging. All kinds of things can go wrong for a patient, and it can be difficult to prove that something a doctor did or neglected to do caused that outcome. That’s just one reason why it’s wise to get experienced legal guidance as early as possible to assess any case, if there is a case, and start gathering evidence before it disappears or is altered.