Americans are hearing more expressions of sympathy and even outright apologies in some cases from their doctors when something goes wrong. That’s no doubt in part because many states have enacted laws that prohibit the use of these statements against them in any civil action like a malpractice suit.
Each state’s “apology law” is somewhat unique. Washington law states, in part, that “in any civil action against a health care provider for personal injuries which is based upon alleged professional negligence…a statement, affirmation, gesture, or conduct…is not admissible as evidence if….[i]t relates to the discomfort, pain, suffering, injury, or death of the injured person.”
These statements include expressions of “apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence” as well as any discussions of “remedial actions that may be taken to address the act or omission that is the basis for the allegation of negligence.” The law applies to statements made within 30 days of the error or omission or of its discovery. It further states that “furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible.”
It may seem like a doctor’s apology for making an error and even an offer to fix it at no charge would seem like fairly compelling evidence that they made a mistake. If it’s a relatively minor mistake that can be fixed at no charge, a patient may be happy to let it go – particularly if they really suffered no harm. If it’s a more serious error, like not reattaching a torn tendon properly, or a particularly egregious error, like removing an organ that didn’t need to be removed, a patient would certainly be justified in filing a malpractice claim.
Apologies can lead to admissible evidence
The good news is that there is still likely plenty of evidence that is admissible. This may include notes, patient records and witness statements by others on the team. Expert witnesses can also be called to discuss, for example, how a procedure should go. The more a doctor feels comfortable about admitting to an error, the more likely they are to provide information that will lead you to other evidence.
If you believe you have a malpractice case, it’s important to seek legal guidance as soon as possible. You want to be able to get to evidence before it is altered or “disappears.” This can help you better seek justice and compensation.