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Learn when it’s safe for doctors to say they’re sorry

An Ohio Supreme Court ruling highlights differences among states on protections for doctors to express sympathy to patients without the threat of being sued.

By Alicia Gallegos covered legal, antitrust, fraud and liability issues during 2010-13. Connect with the columnist: @legal_med  —  Posted May 20, 2013.

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Legal experts said physicians should pay close attention to any apology laws in their state before expressing sympathy to patients after undesired medical outcomes.

A recent case decided by the Ohio Supreme Court highlighted the legal risks physicians can encounter when making such expressions to patients. In Estate of Johnson et al. v. Smith et al., a patient claimed that her surgeon’s comments after a bile duct surgical injury were an admission of guilt and should be admissible in her medical liability lawsuit. But the state high court ruled that the doctor’s sentiments were precluded from becoming evidence by the state’s apology statute, even though the incident happened before the law took effect.

The ruling reinforces the fact that apologetic statements by doctors should be protected from legal scrutiny, said Nancy Gillette, general counsel for the Ohio State Medical Assn., which issued a brief in support of the defendant-doctor.

“Apology laws are trying to encourage doctors to appropriately express sympathy,” she said. “More patients are wanting to hear their doctor be sympathetic [if a poor outcome] has happened as opposed to being afraid to say something. There’s a difference from saying you feel bad that something happened as opposed to being liable for it.”

The Ohio case involves a lawsuit filed by Jeanette Johnson and her husband against Randall Smith, MD, a surgeon in Kent, Ohio. During a 2001 gall bladder surgery performed by Dr. Smith, Johnson’s bile duct was injured, according to court documents. Dr. Smith repaired the duct, but Johnson returned to the physician a month later because of complications related to the injury. Her treatment required a transfer to another hospital, during which Johnson became emotional and upset. In an effort to comfort her, Dr. Smith took her hand and said: “I take full responsibility for this. Everything will be OK,” according to court records. The Johnsons sued Dr. Smith in 2002 but voluntarily withdrew the suit in 2006. A new complaint was filed in 2007, in which the Johnsons alleged that Dr. Smith rendered negligent treatment to Jeanette Johnson.

Before his trial, Dr. Smith asked that the court prevent his statement of apology from being used as evidence. The statement constituted an expression of sympathy that under Ohio law was protected, he said.

The Johnsons argued that the statement was not an apology but an admission of the doctor’s negligence. They said the law did not apply, because the statute was enacted three years after the statement was made.

A trial court ruled in favor of Dr. Smith, precluding the statement’s admission, and a jury trial cleared Dr. Smith of negligence. The Johnsons appealed, and appeals judges reversed the decision, saying the statement should have been permitted because it was made before the law took effect. In an April 23 opinion, the state Supreme Court overturned the appeals ruling, stating that the statute applies to any civil lawsuit filed after the effective date of the statute, regardless of when the statement was made.

“The trial court had determined that Dr. Smith was faced with a distressed patient who was upset and made a statement that was designed to comfort his patient,” the court said. “This is precisely the type of evidence that [the law] was designed to exclude as evidence of liability in a medical malpractice case.”

Attorneys for the Johnsons and Dr. Smith could not be reached for comment by this article’s deadline.

Apology laws in half of states

About 25 states have apology laws that protect sympathetic expressions by doctors from being used against them in court. However, the language of the statutes and the scope of their protection differs.

That’s why it’s essential that physicians know what is acceptable in their states, said Cavender C. Kimble, a health law attorney and partner at Balch & Bingham LLP in Alabama.

“When things go bad, and you’re in a position of having to make an apology, there’s a lot of ways” doctors can say something without admitting fault, Kimble said. But “you need to know what the law is and make sure your conduct conforms to it.”

If physicians apologize, they should remember to express themselves without taking ownership of the mishap, he said. For example, a doctor can say, “I’m sorry we had a bad result,” as opposed to “This is my fault.”

“A lot of times, patients will hear one thing and remember it differently,” Kimble adds. “It’s human nature to try to adjust memories based on what’s in your best interest. It never hurts to have a nurse with you in the room, to hear exactly what was said.”

In states without apology laws, courts generally follow federal rules of evidence, which allow the “excited utterances” of defendants to be admissible, said James Szalados, MD, a New York medical liability defense attorney. For example, statements made in the heat of the moment or immediately after a poor outcome generally can be admitted.

Along with knowing their states’ laws, physicians should be aware of how their insurance policies address apologies, Dr. Szalados said. Often, policies have “duty to cooperate” clauses that say physicians must discuss with the insurers any actions related to potential claims. Physicians should review their coverage to ensure they are in the clear before expressing sympathy to patients, he said.

“If the insurance company feels the physician has not consulted with the insurance company before having a disclosure meeting, that can void the ‘duty to cooperate’ clause,” he said. “The physician can run afoul of that, and it can actually void the policy.”

American Medical Association ethical opinion states that when a doctor errs, “the physician is ethically required to inform the patient of all the facts necessary to ensure understanding of what has occurred” and that liability concerns should not impede disclosure.

The importance of rapport

Building strong relationships with patients is the first step to preventing lawsuits after poor outcomes, Kimble said. If patients like their physicians, they are more likely to accept the doctors’ apologies after adverse events and offer forgiveness, he said.

“The big thing is [to] buy yourself some insurance by developing that relationship ahead of time,” he said. “Have that patient actually like you. If something goes wrong, [patients] are inclined to give you the benefit of the doubt. The apology really needs to be preceded by a relationship.”

Doctors should consult with their risk managers before initiating disclosure meetings with patients, Dr. Szalados said. When meeting with patients, he suggests creating a relaxed environment in which to talk with patients and family members without administrators.

“There should be plenty of opportunities to ask questions,” Dr. Szalados said. “Physicians should be careful not to speculate [during the meetings]. It’s very important to convey the facts and to tell the patients” that further investigations will be conducted.

Sometimes the line between expressing sympathy and admitting guilt is not that bright, said OSMA’s Gillette. However, physicians should strive to convey sympathy and comfort to patients as they deem appropriate. “Try to understand where the line is drawn,” she said. “You have to be aware, so you don’t inadvertently cross the line.”

Alicia Gallegos covered legal, antitrust, fraud and liability issues during 2010-13. Connect with the columnist: @legal_med  — 

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