(913) 663-2000

NKHW Law Firm

February 20, 2021

Learning to apologize is one of the first skills of etiquette children are taught. As children, we are taught that apologizing is important because it displays remorse over our behaviors and acknowledgement that our actions hurt someone else. As adults, we recognize that failing to apologize can often cause more pain than the underlying act.

Yet we find it difficult to say, “I’m sorry,” unless we truly believe we are at fault. This can be true even when we know the perceived offense is very real to the other person. The concept of an “apology law” recognizes this dilemma, and attempts to make allowances for health care providers to apologize while protecting them from any sympathetic statements being used against them in a subsequent lawsuit.

In general, apology statutes restrict the admissibility of statements of benevolence, sympathy, commiseration, condolence, or compassion made by a health care provider to a patient or patient’s representative after an unanticipated outcome of medical care or treatment. However, not all “apology laws” are created equal and few provide adequate protection for the truly penitent physician.

The idea behind enacting these laws is that, with an apology and explanation of what caused the unanticipated outcome, a patient would be less likely to seek answers through a medical malpractice claim—reducing anger, insurance premiums, and the cost of health care. These apologies also improve communication between parties, resulting in increased feelings of patient safety and satisfaction. This set of laws embodies the American Medical Association’s belief that “a physician should at all times deal honestly and openly with patients.”

A common societal misconception is that a plaintiff seeks legal action after an unanticipated medical outcome to squeeze every penny he can from the health care system. While compensation is one underlying motive, one study, “Why Do People Sue Doctors? A Study of Patients and Relatives Taking Legal Action,” found that patients feel the need to hire an attorney when they have not received adequate answers to questions about their outcomes, when they sense the absence of accountability for what happened to them, and when they worry the same mistake could be made in another patients’ care. That same study found that 37 percent of respondents said an explanation and an apology would have prevented the lawsuit. Apology laws allow a medical provider to make a statement of sympathy to an injured patient without the fear that the statement will be used later against him in court.

The apology laws that have been enacted range from broad and far-reaching to narrow and limited. The differences in these statutes have immense evidentiary and legal consequences, and it is important to understand what type of law, if any, is applicable in your state. States have taken two general approaches: a total protection of an apology and protection of only partial apologies.

Partial Protection of Apology Laws

The apology statutes that many states have elected to adopt do not offer the apologizer full protection from admissibility; they preserve the admissibility of apologies that admit fault. The states that have adopted this category of apology statutes are: Alaska, Delaware, Hawaii, Indiana, Idaho, Maine, Massachusetts, Michigan, Missouri, Maryland, Nebraska, New Hampshire, Pennsylvania, South Dakota, Utah, and Virginia.

As an example, the statute in Maryland, MD Code § 10-920, reads, in part:

(b)(1) Except as provided in paragraph (2) of this subsection, in a proceeding subject to Title 3, Subtitle 2A of this article or a civil action against a health care provider, an expression of regret or apology made in writing, orally, or by conduct, is inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

(2) An admission of liability or fault that is part of or in addition to a communication made under paragraph (1) of this subsection is admissible as evidence of an admission of liability or as evidence of an admission against interest in an action described under paragraph (1) of this subsection. (emphasis added)

These statutes protect statements such as, “I am sorry you were injured during surgery.” However, “I am sorry you were injured during surgery because I nicked an artery” is only partly inadmissible. The “I nicked an artery” portion of the statement would remain admissible under this category of laws. If, within the statement of condolence or the apology, the health care provider admits fault, in these jurisdictions, that statement is admissible.

This partial protection, while stemming from an understandable legislative intent, restricts the communication between the physician and the injured party. It is reasonable that many states want to avoid such a broad protection that a full admission of liability would be excluded from evidence. However, much of the aim of these laws is to promote open communication between a health care provider and the injured party. If a health care provider is expressing sympathy while tiptoeing around the fault restrictions of the statute, he is more likely to produce an apology that appears insincere or suspicious—potentially raising more questions from the injured party.

Total Protection of Apology Laws

In contrast to states offering only a partial protection, a number of jurisdictions offer total protection of an apology made by a health care provider. These states are Arizona; Colorado; Connecticut; Washington, D.C.; Georgia; Iowa; Louisiana; Montana; North Carolina; North Dakota; Ohio; Oklahoma; Oregon; South Carolina; Vermont; West Virginia; Wisconsin; and Wyoming. As an example, the Colorado apology law, C.R.S.A. § 13-25-135, reads:

In any civil action brought by an alleged victim of an unanticipated outcome of medical care, or in any arbitration proceeding related to such civil action, any and all statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or general sense of benevolence which are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim and which relate to the discomfort, pain, suffering, injury, or death of the alleged victim as a result of the unanticipated outcome of medical care shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

This category of apology statutes facilitates a much broader protection for the apologizer, in turn promoting more open communication and transparency between the parties. With the entire apology inadmissible as evidence, the health care provider is able to provide more explanation of why the unanticipated outcome occurred, and fully express sympathy without the underlying concern of admissibility.

General Apology Statutes

A third category of statutes that has been adopted includes generic apology laws that apply beyond the scope of the health care field. Instead of specifying that the benevolent or sympathetic statement or gesture must be made by a health care provider, they allow the statute to be expanded to any “accident.” For example, California’s statute, Cal.Evid.Code 1160, reads:

a) The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall not be admissible pursuant to this section.

While this code only applies in civil actions, not criminal, it is broader than only health care, and applies broadly to “accidents.” There is little case law on the application of this statute, but we assume it would apply equally to medical malpractice claims, car accidents, and other negligence claims. States that have adopted this approach to an apology statute are: California, Florida, Massachusetts, Texas, Tennessee, Washington.

Interestingly, one state, Massachusetts, falls into both categories—with a specific health care apology law and also a separate “accident” law. (See M.G.L.A. 233 § 79L, and M.G.L.A. 233 § 23D).

States With No Apology Statute

Thirty-eight states have adopted an apology law, leaving 12 states that allow the admission of benevolent and sympathetic statements into evidence. These states are Alabama, Arkansas, Illinois, Kansas, Kentucky, Minnesota, Mississippi, New Jersey, Nevada, New Mexico, New York, and Rhode Island. These states have taken a variety of approaches to the treatment of benevolent statements—from overturning previously enacted apology laws to having no notable intent to enact an apology law at all. An apology by a health care provider in one of these 12 states will be admissible as evidence.

The concepts of “what is right” and “what protects from liability and litigation” rarely collide. However, the concept of an apology law is one of the few exceptions. As attorneys, we often seek to reduce the risk of litigation by limiting what our clients say or do. Yet, studies show that plaintiffs sue doctors to understand what happened, protect the safety of future patients, and an overall desire to hold caregivers accountable. Monetary compensation is often secondary to these underlying motives.

The range of apology laws that have been enacted by the states attempt to allow transparency between a health care provider and his patient—ultimately attempting to reduce medical malpractice claims. However, not all lawsuits are preventable.

It is important for health care lawyers to know how their jurisdiction will handle a client’s “apology” when it is not enough to dissuade a patient from filing suit. We also must advise our clients that few, if any, jurisdictions will exclude overt admissions of fault. The line where the inadmissible apology ends and the statement of fault begins is not often black and white. If your state is one of the 38 states with a version of an apology statute, “I’m sorry” will be inadmissible as evidence. Expanding beyond this simple apology is where the line blurs and a health care provider might regret saying sorry.

SIDEBAR

History of Apologies

The first apology law was enacted in Massachusetts in 1986. Since then, 38 states plus the District of Columbia have enacted some version of an “apology law.”

•             Alaska (Alaska Stat. §09.55.544)

•             Arizona (Ariz. Rev. Stat. Ann. § 12-2605)

•             California (Cal Evid Code § 1160)

•             Colorado (Colo. Rev. Stat. § 13-25-135)

•             Connecticut (Conn. Gen. Stat. § 52-184d)

•             Delaware (Del. Code. Ann. Tit. 10, §4318)

•             Florida (Fla. Stat. § 90.4026)

•             Georgia (Ga. Code § 24-4-416)

•             Hawaii (Hawaii Rev. Stat. § 626-1, Rule 409.5)

•             Idaho (Idaho Code §9-2-9-207)

•             Indiana (Ind. Code §34-43.5-1-1 et seq.)

•             Iowa (Iowa Code §622.31)

•             Louisiana (La. Rev. Stat. Ann. § 13:3715.5)

•             Maine (Me. Rev. Stat. Ann. tit. 24, § 2907)

•             Maryland (Md. Courts & Judicial Proceedings Code Ann. § 10-920)

•             Massachusetts (Mass. Gen. Laws. Ann. Ch. 233, §79L)

•             Michigan (Mich. Comp. Laws § 600.2155)

•             Missouri (Mo. Rev. Stat. §538.299)

•             Montana (Mont. Code. Ann. §26-1-814)

•             Nebraska (Neb. Rev. Stat. §27-1201)

•             New Hampshire (N.H. Rev. Stat. Ann. § 507-E:4)

•             North Carolina (N.C. Gen. Stat. § 8C-1, Rule 413)

•             North Dakota (N.D. Cent. Code § 31-04-12)

•             Ohio (Ohio Rev. Code Ann. § 2317.43)

•             Oklahoma (Okla. Stat. tit. 63, §1-1708.1H)

•             Oregon (Or. Rev. Stat. §677.082)

•             Pennsylvania (Pa. Stat. tit. 35, § 10228.1 et seq.)

•             South Carolina (S.C. Code Ann. § 19-1-190)

•             South Dakota (S.D. Codified Laws Ann. § 19-12-14)

•             Tennessee (Tenn Evid. §409.1)

•             Texas (TX Civ Prac & Rem § 18.061)

•             Utah (Utah Code Ann. §78B-3-422)

•             Vermont (Vt. Stat. Ann. tit. 12, §1912)

•             Virginia (Va. Code § 8.01-52.1)

•             Washington (RCW § 5.64.010)

•             West Virginia (W. Va. Code § 55-7-11A)

•             Wisconsin (Wis. Stat. § 904.14)

•             Wyoming (Wyo. Stat. § 1-1-130)

This article was also featured in the CLM magazine and can be found here: https://www.theclm.org/Magazine/articles/apology-laws-medical-malpractice/2172