The Ohio Supreme Court issued a 5-2 ruling that a physician's expression of apology or regret to a patient and/or their families cannot later be introduced as evidence of an admission of guilt in a medical liability case. The court found that medical providers who express their feelings regarding the unexpected outcome of care or treatment to a patient are not acknowledging that they demonstrated a substandard level of care.
The ruling may encourage more medical providers to support patients and families on an emotional level without fear of having these conversations ultimately used against them in court. Tom Davis, a physician in Washington, MO, explained that over his 25-year career he has certainly made some mistakes and he prefers to issue an apology when appropriate. He says that a face-to-face explanation of the circumstances has served him well in preventing cases of medical malpractice from being brought against him.
Research indicates that when physicians commiserate with a patient regarding unintended outcomes they are much less likely to be named in a malpractice suit. The expression of empathy allows the physician to express and connect with the patient on an emotional level. Roughly 36 states have some variety of what may be referred to as medical provider “apology statutes”, which prevent such expressions from being presented to a jury. Based on the laws in approximately 32 states, the general rules regarding evidence admissibility may still allow for these expressions to potentially be used in proceedings. Doctors are still often told to remain cautious in these circumstances.
The Ohio case in this ruling involved a medical malpractice claim against Dr. Rodney Vivian, who provided care for a patient at Mercy Health-Clermont Hospital, who later committed suicide. The ruling affirmed the lower court decision to make the doctor's statements to the family, which included expressions of condolences and regret, inadmissible in the case.
Maryland's Version of the Statute
The law states that a medical provider who is a defendant in a civil action may not have expressions of regret or apology used as an acknowledgment of liability. This includes communication that was conducted verbally or in writing. The law defines a health care (medical) provider as being someone licensed or authorized to deliver health care services in the state such as a physician, dentist, therapist, etc.
A recent Baltimore Sun article that discussed this topic says that in today's litigious environment in medical malpractice, hospitals are inclined to try to resolve more potential claims with patients and their families before that develop into malpractice claims in court. Proponents assert that it would result in better patient outcomes and faster treatment plans focused on solutions.
An attorney speaking on behalf of the Maryland Association for Justice argues that this leaves patients in a position of vulnerability because they may be recovering and less capable of making sound decisions. Larry Smith, Vice President of Risk Management at MedStar Health, reminds doctors that it is always possible that something you say can end up being used against you in court.