Kenton H. Steele, Esq

Unanticipated negative outcomes in medical care are unavoidable. When they occur, clinicians often want to apologize or express sympathy to patients and their families, even if the outcome was not their fault. At the same time, they are cognizant that such statements may be used against them in a medical malpractice suit and thus may choose to err on the side of caution and refrain from uttering anything that bears a resemblance to an apology.

However, apologies and shows of sympathy are important instances of human interaction. Especially in a doctor-patient relationship, the parties need to know that they can trust one another. Health care providers often have legal and ethical duties to disclose certain conditions to patients, even if the condition came about due to an error of theirs. Thus, they should not withhold information for fear that their statements may be used against them.

Fortunately, most US legislatures have recognized these competing interests and, in an attempt to strike a balance, have enacted statutes commonly referred to as apology laws.

These statutes limit the admissibility of apologetic statements made by medical professionals, allowing them to show sympathy or remorse and to directly express regret without fear of legal jeopardy.

Currently, 39 states and the District of Columbia have enacted full or partial apology laws. Full laws protect all admissions of fault, whereas partial laws protect only expressions of regret. Ohio’s apology law is an example of the former. It protects “all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, error, fault, or a general sense of benevolence.” Because this type of statute offers broad protection, it makes open communication possible.

Under partial apology laws, on the other hand, apologies that admit fault are admissible in court, and apologies that don’t are not. For instance, Nebraska’s law protects “any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence” but not those statements expressing “error” or “fault.” Statutes like Nebraska’s protect statements like “I’m sorry the surgery didn’t go as planned.” However, if a surgeon were to say, “I’m sorry the procedure didn’t go as planned because I cut a nerve,” the admission of cutting a nerve would be admissible.

Determining whether a state has a full or a partial law is the first, and easy, step. Determining what constitutes an “apology” or an expression of “condolence” or “benevolence” is far more difficult. It often involves complex statutory interpretation and is frequently litigated.

 defines it as “an admission of error or discourtesy accompanied by an expression of regret.” Thus, an apology both admits error and expresses regret. Even though they contain the word 

, partial apology laws do not fully protect an apology, as the word is defined, because they don’t exempt admissions of error. Similarly, interpreting what counts as an expression of “condolence,” “benevolence,” or any other characterization used in these laws may be difficult and need to be determined case by case.

Although it is important to connect with patients on a human level, physicians must be aware of the danger that expressing remorse or sympathy may pose. Apology laws seek to find a balance between honesty and liability. Because they vary significantly from state to state and can be further modified by court decisions, individuals who have questions about their scope and/or function should consult an attorney in their jurisdiction.

This article originally appeared on Urology Times®.

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Apology laws limit the admissibility of apologetic statements.

What physicians should know about apologizing to patients

It is commonly known that most medical negligence cases are resolved through a mutually agreed settlement rather than through a jury verdict at trial. What may be less well known are the mechanics of how negotiated resolutions are reached. One of most common methods of resolving a medical negligence case is through a mediation. Mediation is a process in which the parties to a lawsuit meet with a mutually selected, or court-appointed, neutral person who assists the parties with negotiating the settlement of the case. This column will explain the role of mediation in medical malpractice litigation and explain why mediation is particularly useful in the context of this type of dispute.

In recent decades, as litigation costs continue to rise at ever-increasing rates, parties have sought less-expensive alternatives to traditional litigation. One of the most popular alternative dispute resolution methods is the use of mediation. The cost and time involved in conducting a mediation is far less than that of a traditional trial. Many states have enacted laws to support the use of the mediation process. In general, these laws recognize mediators as a distinct type of legal service provider and ensure statements made during a mediation are privileged and cannot be used at trial if the mediation is unsuccessful. Moreover, many courts throughout the country at the state and federal level now require parties participate in a good-faith effort to mediate their dispute before the case can proceed to a trial.

Although each mediation is different, and different mediators employ their own methods of bringing the parties to a mutually agreeable resolution, the typical structure of a mediation is that both parties will begin in a joint conference with the mediator. The mediator will then explain the purpose of the mediation to the parties and set the ground rules for how the mediation will proceed. These rules generally involve acting in good faith and attempting to consider the arguments and position of the opposing side. Sometimes the mediator will allow each side to make a brief statement during this general session, outlining what that party sees as the strengths of its case or the weaknesses in the opposing party’s position. After this joint session, the mediation typically breaks into private caucuses where each party speaks to the mediator separately. At this point, the mediator is in the role of conducting “shuttle diplomacy” in which messages are relayed between the different parties. The benefit of this approach is that the mediator can gauge what type of messaging will be most effective to bring the parties together. After multiple rounds of settlement offers, the mediator can typically determine whether a resolution is likely and what amount will be needed to settle the case or what additional messages must be conveyed to bring the case to a resolution.

The other benefit of a mediation in the medical malpractice context is that the parties are given an opportunity to communicate directly in a way not typically allowed during the litigation process. Once a lawsuit is filed, the attorneys representing the patient/plaintiff and the health care provider/defendant will make it clear to their clients that they should not communicate with anyone else about the case. It is generally advisable for parties to allow all their communications to flow through their attorney, as a misstatement could be used during trial to swing the case. However, in the context of a mediation, parties can communicate directly in a way that is not otherwise possible.

In a recent case involving an unusual injury to a patient from an unforeseen circumstance, the family of the patient and the care provider were staunchly dug into their positions on the case. However, the patient’s family ultimately decided to settle the case after learning that the way their loved one had suffered an injury had led the defendant health care entity to retrain its staff and modify internal policies. To this family, the monetary amount of the settlement was less important than closure made possible by learning that steps were taken to prevent a similar accident in the future. This type of nonmonetary consideration is something that is not otherwise obtainable through a lawsuit and is a defining positive of the use of mediation.

When a case proceeds through a trial, it is ultimately a judge and jury who determine the outcome of a case. In a mediation, the parties are given the opportunity to exercise control over how their case is decided. However, much like a trial, mediation presents an opportunity for parties to present their side of the dispute and be heard by a neutral party. Although mediation is not a panacea that can cure every aliment of the current medical malpractice litigation landscape, it is a useful tool for resolving difficult cases that would otherwise be left to a jury to decide.

This article originally appeared on Urology Times®. 

This process is one of the most common methods of resolving medical negligence cases.

Kenton H. Steele, Esq

Articles

What physicians should know about apologizing to patients

The role of mediation in medical malpractice litigation