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82 Pa. B.A. Q. 93Pennsylvania Bar Association Quarterly

July, 2011

IS IT UNREALISTIC TO EXPECT A DOCTOR TO APOLOGIZE FOR AN UNFORESEEN MEDICAL COMPLICATION?--A PRIMER ON

APOLOGIES LAWS

Nicole Marie Saitta1

Philadelphia County

Samuel D. Hodge, Jr. 2

Philadelphia County

Member of the Pennsylvania Bar

Copyright © 2011 by Pennsylvania Bar Association Quarterly; Nicole Marie

Saitta, Samuel D. Hodge, Jr.

TABLE OF CONTENTSINTRODUCTION 94BENEFITS OF AN APOLOGY 94AN APOLOGY AS OPPOSED TO A DISCLOSURE 95OTHER REASONS WHY APOLOGIES ARE NOT OFFERED 97THE CHANGING RELATIONSHIP OF DOCTOR/PATIENT 98WHY PHYSICIANS NEED TO APOLOGIZE 98THE BENEFITS OF APOLOGY LAWS 99FEDERAL RULES OF EVIDENCE 101STATE RESPONSES TO PHYSICIAN APOLOGIES 102THE PENNSYLVANIA EXPERIENCE 103COURT RULING ON APOLOGIES 106Apologies Found Not To Be Sufficient Evidence Of Malpractice 106Cases Under The Apology Statutes 108Federal Court Litigation 109Cases In Which An Apology Law Was Not Helpful To The Physician 110CONCLUSION 110

ABSTRACT

A prompt apology by a physician has been shown to reduce the financial consequences of an

adverse medical outcome. However, is an expression of empathy admissible in a malpractice

lawsuit? What about a doctor's statement pertaining to a medical error, such as “It is my fault” or “I

made a mistake”? Thirty-five jurisdictions including the District of Columbia have enacted laws to

encourage health care professionals to apologize for adverse medical outcomes without these

expressions of regret constituting an admission of liability. Apology laws vary by jurisdiction with

some states precluding an admission of a medical mistake while others limit the disclosure to an

expression of sympathy. Many legislative pronouncements restrict the disclosure to the patient and

immediate family members while others include the person's friends and legal representative. One

statute even includes a domestic partner. This article will discuss physician apologies as a way to

reduce malpractice claims while providing an overview of the evidentiary laws on the issue. It will

also discuss the pending legislation in Pennsylvania on the issue including comments by some of

the individuals involved with the introduction of the Bill.

*94 An apology is the superglue of life. It can repair just about anything.--Lynn JohnstonBarbara Davis, a 49-year old woman, died after an orthopedic surgeon severed her common iliac

artery and lacerated a vein during a discectomy prompting a wrongful death lawsuit. Testimony was

presented that, following the operation, the surgeon admitted that “the back surgery went okay but

he nicked an artery, and he takes full responsibility.” The jury, however, was barred from learning

that the doctor also stated that “he was sorry.”3 Were these evidentiary rulings correct? The

appellate court upheld the $3 million dollar verdict based upon Ohio's apology statute.

An increasing number of jurisdictions, insurance carriers and hospitals have recognized the

monetary and professional advantages that stem from prompt medical apologies.4 This article will

explore the implications of offering expressions of compassion and commiseration by physicians and

the steps being taken to encourage this type of conduct in order to ease the malpractice crisis.

INTRODUCTION

How many times were you encouraged as a child to say “I'm sorry”? An apology became a fairly

routine utterance because of its value in diffusing an awkward or difficult situation. When it comes to

the medical arena, however, these simple words are often forgotten even though they have the

ability to mitigate the results of an unanticipated medical outcome. There are a number of reasons

for this phenomenon, but the primary one involves the potential adverse consequences of an offer of

condolence, including the filing of a malpractice lawsuit.

BENEFITS OF AN APOLOGY

Apologies by physicians offer several advantages, one being a decrease in the monetary losses that

would result from litigating a malpractice claim. For instance, one study found that “an apology gave

the wronged party a sense of satisfaction and closure, resulting in faster settlements and lower

demands for damages.”5 But the type of apology given is critical, for the study also concluded that

accepting responsibility proved more effective than simply expressing sympathy.6 This line of

thinking, however, is worrisome to defense attorneys who typically advise clients not to incriminate

themselves by admitting failure. As was noted, defense attorneys simply “distrust the apology

strategy.”7 Ultimately, however, apologies can lead to less costly and faster settlements.

An apology carries emotional and psychological benefits for both the wrongdoer and the victim.

According to Psychology Today, an apology is “an important ritual, a way of showing respect and

empathy for the wronged person.”8 Since an apology *95 has the ability to defuse an individual's

anger, it can undo the negative effects of an action even if it cannot undo the harmful action

itself.9 Emotional healing occurs since an individual no longer perceives the wrongdoer as a personal

threat. Thus, he or she can empathize with the tortfeasor.10 For the person who committed the harm,

apologizing helps rid that individual of guilt or self-reproach while simultaneously reducing arrogance

and promoting self-respect.11 Similarly, an apology has physical benefits as well. “Research shows

that receiving ... an apology actually affects the bodily functions of the person receiving it--blood

pressure decreases, heart rate slows and breathing becomes steadier.”12

AN APOLOGY AS OPPOSED TO A DISCLOSURE

It is not surprising that the medical community has taken steps to encourage apologies and

disclosures of mistakes considering their benefits. While this article primarily focuses on apologies

and legislation regarding declarations of empathy, one must consider the issue of disclosure that is

often absent in the wake of a medical error.

States have addressed the issue of disclosure, but there are only seven states with current

legislation on the topic while more than 35 states address apologies.13 Both types of laws, even if

inadequate, “are supposed to help doctors speak up when medical errors occur--to push doctors to

engage in apologies as part of disclosure.”14 The medical community has also stressed the

importance of honest communication between patients and healthcare providers. For instance, the

American Medical Association's Code of Ethics states:

It is a fundamental ethical requirement that a physician should at all times deal honestly and openly

with patients ... Concern regarding legal liability, which might result following truthful disclosure,

should not affect the physician's honesty with a patient.15

The American College of Physicians promotes a similar position, and the National Patient Safety

Foundation Board of Directors approved a statement of principle with regards to explanations of

errors.16 As of July 2001, the Joint Commission on the Accreditation of Healthcare Organizations

(JCAHO) requires institutions to have a process in place to inform patients and their families of

unanticipated outcomes.17 Following the Full Disclosure Working Group of Harvard Hospitals

reporting on the importance of disclosure, the National Quality Forum endorsed a new safe-practice

guideline which notes:

NQF safe practices are evidence-based practices that, according to expert opinion and consensus

among major quality-of-care organizations such as the Joint Commission, the Institute for Healthcare

Improvement, the Agency for Healthcare Research and Quality, and the Centers for Medicare and

Medicaid Services, represent essential dimensions of high-quality care.18

*96 These new safe practices are set to advance disclosures by making the admission of

unanticipated outcomes a priority by preparing staff for these difficult conversations and by tracking

disclosure outcomes for future performance improvement.19

Considering these ethics statements on disclosure and the move toward stricter standards on this

issue, it is surprising that so many more states have chosen to protect apologies while avoiding

legislation on disclosure requirements. Furthermore, some doctors still avoid speaking with a patient

or the family regarding adverse medical outcomes. But what may be the cause of their silence?

There are a multitude of diverse reasons for this phenomenon. It may be something as simple as the

physician being unaware of the error and the possible resulting harm, especially if the injury is not

immediately evident or thought to be a result of the disease process instead of human

error.20 Second, physicians may not be properly trained to deliver bad news and may choose to

avoid these unpleasant situations.21 A study by the University of Michigan Health System also found

that barriers to disclosure include a “deny and defend” strategy by physicians as well as legal and

cultural barriers.22 Specifically, health care providers believe that frank communication may imply

guilt even when the appropriate standard of care has been followed.23

Doctors are also afraid of the professional and legal ramifications that may stem from a disclosure or

an apology being misconstrued as an admission of liability. For instance, a survey of physicians in

2000 revealed that 47 percent of doctors were either “highly” or “extremely” concerned that they

would be named in a lawsuit in the next five years.24 However, a more recent study reveals that

“physicians generally endorsed the importance of disclosing harmful errors to patients.”25 Whether

the fear of apologizing is on the decline or not, doctors take understandable measures to insulate

themselves from lawsuits, and that includes withholding an apology if they feel it will be used against

them.

California was an earlier adopter of an apology statute, and its Assembly Committee on Judiciary

offered an explanation as to why doctors in that state do not effectively communicate with patients

concerning sympathetic gestures or words. They noted that the California Evidence Code

“manifestly discourages the human tendency to apologize or express regret over an incident caused

by negligence” even though research reveals that “30 percent of plaintiffs claim no suit would have

occurred if a doctor in a medical malpractice context had apologized.”26 These conflicting positions

are explained by the legal considerations of health care providers in offering an apology, specifically,

their fear that an apology may be construed as an admission of liability.27 The “monetary costs,

damage to professional reputation, risk to licensure, and the emotional burdens that come with

lawsuits” coupled with *97 the challenge to authority and integrity makes health care providers

especially cautious of actions that might lead to litigation.28 Doctors fear the unpredictability of the

malpractice system, and thus try to avoid it, even if that means foregoing a disclosure or an

apology.29

OTHER REASONS WHY APOLOGIES ARE NOT OFFERED

The fear of litigation may be the primary reason why physicians refrain from apologizing, but other

factors must also be considered. Doctors possess certain characteristics that aid in their medical

pursuits. Although not an exhaustive list, some of these traits include “confidence, competitiveness,

and determination.”30 These same qualities that are admired in physicians may also impede an

apology, for pride, acknowledgement of failure, and fear of shame may restrain a sympathetic

gesture.31 Also, “the lack of consensus on the definition of error, and what constitutes reportable

error, frustrates many parties” and may explain why physicians avoid full disclosure in certain

situations.32

Physicians naturally worry that, by admitting fallibility, they will undermine the trust patients have in

them, especially in an environment of increasingly shorter visits and fragmented delivery of medical

services.33 Additionally, the conflicting advice of lawyers, insurers, and hospital executives may serve

as a barrier to an apology, for “hospital executives want ‘to do the right thing’ but their lawyers or

insurers are resisting.”34 Since doctors often have different malpractice carriers, this situation often

leads to advice that may conflict with risk managers at hospitals.35

The Honorable William Lamb, a former Pennsylvania Supreme Court Justice, commented on the

problem when he noted “Lawyers say don't talk to anyone. [You have] a patient, who may or may not

have been the subject of inappropriate medical care, and the doctor, is told he can't talk to these

people. More importantly [if the doctor does talk to the patient], he or she may void the malpractice

insurance. Faced with that dilemma, what is a physician going to do? The doctor is not going to talk

[to the patient].”36 Furthermore, if an apology becomes admissible, it could affect a lawyer's ability to

defend the case which, in turn, affects the carrier's willingness to cover the insured.37

*98 THE CHANGING RELATIONSHIP OF DOCTOR/PATIENT

Judy Shopp, Esquire, a former chair of the Pennsylvania Bar Association's ADR Committee and

advocate of apology laws, opines that:

When a person is injured by a healthcare advisor they want three things: 1) an apology for the

circumstances ... we are sorry that you had to experience this situation. How can we make it right for

you?; 2) An acknowledgement of the patient's situation by the health care provider and

understand[ing] of what happened to them; and 3) An assurance that procedures or process[es]

change so the same thing does not happen to others. In reality, when there is an injury, the patient is

isolated from the health care provider with no idea of the circumstances or contact with the person

they entrusted their life to. It is a fearful situation for both the healthcare provider and patient. The

only way to obtain answers is often to file a lawsuit. In previous times, health care providers made

house calls, they went to church with the families they treated, and their kids attended the same

schools. There was a trust between provider and patient [that] existed outside of the doctor/patient

relationship.38

Along with a changing society comes a different relationship between physician and patient, one that

does not freely promote the frank communications that exists between neighbors.

Today, legal ramifications and measures are a means of redress that help victims make sense out of

their injuries. Recent studies indicate that non-pecuniary motivations to medical malpractice suits

include wanting to prevent a recurrence of a similar situation to someone else, wanting a proper

explanation and/or apology, wishing to be returned to the status quo, and wanting sanctions for

duress.39 In addition, a study of self-reported reasons by parents filing medical malpractice claims on

behalf of an injured child shows that families file suit for many reasons, including being advised by

knowledgeable acquaintances (33%), recognizing a cover-up by the health care provider (24%),

needing money (24%), recognizing that their child will have no future (23%), needing information

(20%), and seeking revenge and wanting to protect others from harm (19%).40 While most patients

who file suit want to make sure the mistake does not happen to anyone else, they also want an

explanation and an admission of negligence;41 they ultimately want a feeling that justice has been

served.

WHY PHYSICIANS NEED TO APOLOGIZE

Patients sue health care providers for a variety of reasons, including mishandled

communications.42 This propensity towards litigation is compounded when patients believe

information is being withheld, thus lawsuits often stem from anger.43 In fact, “numerous case studies

suggest that anger is a main motivator for litigation and can overcome the patient's aversion to the

legal arena.” On the other hand, “research reveals that physician apologies reduce patient anger,

increase communication, and reduce the patient's motivation to litigate.”44 Open disclosure not only

helps in defending *99 a suit because it shows respect for the patient, but it also may decrease the

likelihood of a lawsuit since patients, families, and juries look favorably on caring gestures.45

A recent mock trial study published by the Journal of the American Medical Association presented a

medical malpractice case to two sets of potential jurors. The first group was told that the medical

practitioner expressed sympathy and made a full disclosure after the medical error, while the second

set heard of no such sympathy or disclosure. While both juries found liability, the first group awarded

damages that were substantially lower than the second panel, with the “dollar amounts awarded

[being] less than that amount actually paid on the case.”46 According to those in the first group, the

honesty of the healthcare providers made it seem like they had “done the right thing” whereas the

non-disclosure in the second group made it appear the hospital was involved in a “conspiracy

theory.”47 The second set of jurors also awarded larger damages without determining a causal link

between the amount of recovery and the underlying medical condition since they wanted the hospital

to “learn their lesson.”48 With regards to this second group, it seems that they ignored the fact that a

statement of regret, “even one in which the physician accepts responsibility for the outcome, is an

emotional expression of subjective remorse, and it does not address the objective ‘reasonable care’

standard cited in common and statutory law.”49 Regret over an unfortunate outcome is “not relevant

in determining whether a particular standard of care was met” and whether a breach of duty

occurred;50 however, this information can be outweighed by a jury's feelings toward an

unsympathetic doctor. This study exemplifies how, when communication is handled properly and

anger is defused, medical malpractice suits are less likely to be filed. This study also addresses the

conundrum of apologies and disclosures in jury trials; namely, if a jury hears “I'm sorry,” does this

sentiment inspire compassion for the doctor's empathy or belief in his/her guilt?51

THE BENEFITS OF APOLOGY LAWS

Studies have demonstrated that the number of suits decrease following an apology. For instance,

some hospitals in Pennsylvania and Tennessee have found that effective apologies and disclosure

programs reduce malpractice payments.52 A study by the University of Michigan Health Service

reported that “per case payments decreased 47% and the settlement time dropped from 20 months

to 6 months since *100 the introduction of their 2001 Apology and Disclosure Agreement.”53 Papers

from Cornell University and the University of Houston, which examined hospitals in those states with

apology laws, found that expressions of regret increased the incident of closed cases due to faster

settlement times.54 The total number of malpractice claims declined in these jurisdictions, and the

cases with the most severe medical errors settled sooner in states with apology laws. These types of

remedial statutes also “reduce claim payouts of the most severe cases by $58,000 to $73,000 per

case and the claim payouts of the ‘somewhat’ severe cases by $7,000 to $14,000 per case.”55 In the

short run, the study proved that the number of resolved cases increased and the payments involving

minor injuries went down in those states with apology laws.56 This type of legislation also reduced

the amount of time involved in reaching a settlement, and in the long run, “evidence suggests there

could be fewer cases overall.”57

These findings are consistent with a six year study at the Lexington Veterans Affairs Medical Center

in Kentucky which implemented an apology program during which time the hospital “paid an average

$15,622 per claim, compared with a $98,000 average at VA hospitals without ‘I'm sorry’

policies.”58 Under its policy, the Lexington Center “investigates and discloses the result [of a medical

procedure], even if findings show the adverse event was the result of an error. An apology is offered

when appropriate, along with a financial settlement.”59

The Early Resolution Program at the COPIC Insurance Company, a liability insurer directed by

physicians in Colorado, is the best-known private-sector disclosure program that has met with

success since its inception in 2000.60 This company reported that, in 2003, an average malpractice

incident using the 3R's of the “Recognize, Respond, and Resolve” program paid $6,094 compared to

$88,056 for closed claims, $29,097 for cases closed with no indemnity, and $303,326 for cases

closed with payments of indemnity.61

Apology programs are also gaining traction. According to Douglas Wojcieszak, founder of the Sorry

Works! Coalition, 5% to 10% of hospitals nationally have implemented such policies.62 For instance,

medical centers associated with the University of Illinois at Chicago, Stanford University, Johns

Hopkins University, *101 Harvard University, Kaiser Permanente's Medical Centers, the Catholic

Healthcare West System, and the Children's Hospitals and Clinics of Minnesota have adopted “I'm

sorry” programs.63 In addition, opinions of some legal experts promote the use of apology policies,

for as the Honorable Richard B. Klein, a former Pennsylvania appellate judge states, “apologies

seem to work, and I would advocate making them inadmissible if there is a later trial.”64

FEDERAL RULES OF EVIDENCE

While state statutes might help protect a doctor's expression of sympathy, the Federal Rules of

Evidence have a chilling effect on apologies. For instance, Federal Rules of Evidence Rule 408 only

increases a physician's reluctance to apologize. “Rule 408 provides an exception to the hearsay rule,

stating that an expression of sympathy offered by the wrongdoer outside of settlement negotiations

or mediation may not be protected and may be admissible evidence.”65 An exception to this Rule

occurs when an apology is made under formal settlement negotiations after a lawsuit has been filed;

“an apology made during settlement negotiations can be introduced in court for a variety of other

purposes as long as it is not to show liability or to impeach the declarant.”66 Federal Rule of Evidence

801 (d)(2)“allows admissions by party-opponents, meaning that any statement made by the

opposing party in a civil or criminal trial is not considered and excluded as hearsay, even if made out

of court. The estoppels-based rationale behind this rule suggests that a party's own statement is

considered reliable enough to use against that party in court.”67 If the physician is not available to

testify, then under Rule 804 (b)(3), “the apology may be allowed as a statement against interest.”68 A

further exception to the hearsay rule notes that “a statement relating to a startling event or condition

made while the declarant was under the stress of excitement caused by the event or condition is not

excluded.”69

Federal Rule of Evidence 403 has sometimes been cited to exclude apologies “because this Rule

prohibits evidence where its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues or misleading the jury,” but this strategy has not met with much

success.70 While Federal Rule of Evidence 407 “forbids admission of subsequent remedial

measures” and Federal Rule of Evidence 409 “excludes offers to pay medical expenses,” these rules

do not address apologies.71

Interestingly, in 2005, then Senators Hillary Rodham Clinton and Barack Obama co-sponsored the

National Medical Error Disclosure and Compensation Act, a measure which would have

implemented a national-level apology law, but the bill never passed.72 Similarly in the same year,

Senators Michael Enzi and Max Baucus introduced *102 the Fair and Reliable Medical Justice Act,

“which would have allocated federal funds for exploring alternatives to current litigation systems,

including the creation of specialized healthcare courts,” though these measures have not been

adopted.73 Although remedial actions have been proposed to remedy this situation, nothing has been

passed on a national level.

STATE RESPONSES TO PHYSICAN APOLOGIES

While lawyers and doctors may be wary of apologies finding their way into federal court actions, a

growing number of state legislatures have enacted laws to encourage expressions of sympathy

between physician and patient without the words of condolences being misconstrued as an

admission of liability. Massachusetts led the way in 1986 by enacting the first legislative response

designed to protect apologies.74 Currently, 35 states including the District of Columbia have statutes

that do not allow the admission of an expression of sympathy or benevolence by a healthcare

provider, and other jurisdictions, such as Pennsylvania, are considering similar legislation.75 Most of

these laws apply to “any statements, gestures, or expressions of apology, benevolence, sympathy,

or commiseration made by a health care provider to an alleged victim of an unanticipated outcome

or the victim's relative or representative”and, in most states, the “statement, gesture or expression

must be related to the discomfort, pain, suffering, injury or death of the alleged victim.”76 Depending

upon the jurisdiction, apologies made orally or written are covered.77

*103 These laws were enacted to encourage communications between doctor and patient and to

help “regulate medical malpractice interest rates and policies so that they are fair to both the insurers

and insured” by providing an alternative to trials through negotiations.78 The General Assemblies of

both South Carolina and Georgia find that expressions of sympathy “should be particularly

encouraged between health care providers, health care institutions, and patients experiencing an

unanticipated outcome resulting from medical care.”79 Some legislatures place a time limit during

which an apology is inadmissible to encourage swifter communication. For example, Washington

and Vermont state that a doctor must notify a patient within 30 days of a medical error, or within 30

days of when the provider knew or should have known of the consequences of the error. If the

doctor complies with this mandate, any expression of sympathy is inadmissible.80 Illinois provides

stricter time constraints, with an apology being inadmissible only if it is made “within 72 hours of

when the provider knew or should have known of the potential cause of such outcome.”81 But, even

while encouraging expressions of sympathy, some state legislatures distinguish an apology from a

statement of fault which is admissible. For instance, Maine's apology law specially notes that

“Nothing in this section prohibits the admissibility of a statement of fault,”82 and the Louisiana

legislation states “A statement of fault, however, which is part of, or in addition to, any such

communication shall not be made inadmissible pursuant to this Section.”83 Nebraska, Virginia,

Vermont, Louisiana, Maryland, South Dakota, Indiana, Hawaii, California, Florida, Tennessee,

Illinois, Missouri, New Hampshire, Idaho, and the District of Columbia also contain legislation in

which a statement of fault is admissible separate from an inadmissible apology.84 While a majority of

these statutes fall under rules of evidence pertaining to a medical error, a number of jurisdictions

protect sympathetic communication regardless if the outcome resulted from a medical act of

malpractice.85

THE PENNSYLVANIA EXPERIENCE

Among current legislation is a bill pending in Pennsylvania that has been passed by the House but is

awaiting vote in the Senate. House Bill No. 495 states:

In any liability action, any benevolent gesture or admission of fault made prior to the commencement

of a medical professional liability by: (1) health care provider or an officer, employee or agent thereof

to a patient or resident or the patient's or resident's relative or representative regarding the patient's

or resident's discomfort, pain, suffering, injury or death, regardless of the cause, including, but

not *104 limited to, the unanticipated outcome of any treatment, consultation, care or service or

omission of treatment, consultation, care or service provided by the health care provider [ ... ] prior to

the commencement of a medical professional liability action, liability action or mediation shall be

inadmissible as evidence of liability or as evidence of an admission against interest.86

The Pennsylvania Chamber of Business and Industry supports this bill by noting that “in states that

have benevolent gesture legislation in place, medical malpractice claims have gone down.”87 Gene

Barr, Vice President of Government and Public Affairs for the Pennsylvania Chamber of Business

and Industry, has stated: “We support this type of legislation as an important step in broad based

legal reform for Pennsylvania. Based on information we have heard, many victims and families of

victims are seeking an acknowledgment of sympathy and are angry when that statement is not

given. Our hope is that this legislation can lead to quicker settlements in these kinds of cases

leading to lower health care costs for all.”88

Some patient safety advocates, however, such as Mary Ellen Mannix, are opposed, claiming that

physicians should be advocating for “more information that is pertinent to their job.”89 Lee Taft,

another critic of apology laws, believes that “the sympathetic statements that apology laws protect

may become empty, utilitarian or self-serving rituals, leading doctors away from the higher moral

purposes of apologies.”90 For some, like Wisconsin Governor Doyle who vetoed an apology bill in

2006, the language of these types of bills could be “applied to ‘conduct’ that expressed fault, which

he believed could have included the actual act of malpractice.”91 But, given the distinction between

disclosure and apology, this fear may be unwarranted since some state statutes differentiate

between apologies and admissions of negligence or guilt. An apology can be issued regardless of

whether an act of malpractice occurred and can stem from a doctor's empathetic response to the

patient (i.e. “I'm sorry you are in pain.”). Disclosure, on the other hand, implies that a medical

mistake has been made or that a complication arose, and the doctor attempts to relay information

explaining this unexpected outcome. In this case, an apology may or may not accompany the

disclosing of these facts. What this dynamic indicates is that an apology, an often subjective

response, is not necessarily indicative of a medical mistake, an objective occurrence, which some

apology law critics believe.

Oddly enough, while the Pennsylvania legislature is debating its proposed apology law, the state has

already mandated that institutions disclose serious unanticipated outcomes to patients. This

disclosure law, enacted in 2002, is one of the sternest of its kind. It requires hospitals to notify

patients in writing within 7 days after a serious event.92 The Medical Care Availability and Reduction

of Error Act (or MCARE Act) defines a “serious event” to be “An event, occurrence or situation

involving the clinical care of a patient in a medical facility that results in death or compromises

patient safety and results in an unanticipated injury requiring the delivery of additional health care

services to the patient.”93 With regards to disclosure and subsequent *105 mediation, Drexel

University's College of Medicine has a long-running program to help resolve medical disputes.

“Theirs often uses a team approach, pairing lawyers who typically represent patients with those who

defend doctors.” A program at Abington Hospital “creates even more unusual teams. A lawyer with

health care experience will be the lead mediator, and a doctor will be his ‘medical partner.”’94 And,

while some doctor's may worry that mediation will be ineffective, Drexel's experience boasts that “of

40 cases that have gone to mediation, only three were unresolved.”95 Clearly, several healthcare

facilities in Pennsylvania recognize the need for protected and candid disclosure in the medical

arena, so why is Pennsylvania part of the jurisdictions that have not enacted apology laws?

The proposed legislation pending in Pennsylvania is not the state's first attempt to enact such a

mandate on apologies. Justice Lamb previously spearheaded a campaign to control Philadelphia's

rising medical malpractice filings by introducing a Rule of Court on the issue but was unsuccessful in

having the directive adopted. Those who did not support the proposal claimed it would be “an

intrusion into the medical world,”96 but those who backed the Rule are hopeful of its passage in the

Pennsylvania legislature since communication between patient and doctor could only further help

decrease the malpractice filings.

It is also important to keep in mind that “a bad result doesn't necessarily mean a person is a victim of

malpractice. To suggest that every time there's a bad outcome is de facto malpractice is not the

case.”97 “Individuals often just want to speak with their doctors about unexpected results, but under

the advice of counsel, doctors remain silent.”98 Richard Jurewicz, Esquire, an attorney who

exclusively represents injured parties, agrees that “I'm sorry” does not necessarily indicate liability on

the part of a health care provider: “Most of my clients say ‘the person never called me.’ ‘Sorry it

happened’ doesn't mean you're at fault or admitting liability if something unexpected happens.

There's no harm in saying ‘sorry'--just to reach out.”99 Furthermore, Mr. Jurewicz believes that

“Anytime a mistake is made, the individual or entity should own up to the error and apologize. For a

lot of plaintiffs, part of the closure process is for the responsible party to recognize they did

something wrong.”100 Similarly, Lee Rosengard, a mediator and arbitrator, “believe[s] in the power of

apology. An apology goes a long way in solving a dispute and taking rawness out of those involved

in the dispute.”101

It seems that many in the legal profession agree that apology laws benefit both sides by providing

necessary emotional closure for the claimant and hopefully decreasing unwarranted malpractice

claims filed out of anger instead of true wrongdoing. In fact, in Pennsylvania, the use of mediation by

larger healthcare providers has been influential in demonstrating a marked decrease of medical

malpractice lawsuits.102

*106 COURT RULING ON APOLOGIES

In application, apology laws protect expressions of sympathy by healthcare providers while

reinforcing the basic principle that negligence must be proven and cannot be built on a simple

expression of “I'm sorry.” As noted in McCormick on Evidence:

Admissions of a party are received as substantive evidence of the facts admitted. The word ‘sorry’ in

conjunction with other language or circumstances may constitute an admission, denoting apology.

Standing alone, it is not an admission of negligence; it may mean regret, not apology.103

Apologies Found Not to be Sufficient Evidence of Malpractice

Even without a statute that bars an apology, not every expression of sympathy or regret is

tantamount to an admission of malpractice. This principle was demonstrated in Phinney v. Vinson,

where the Supreme Court of Vermont ruled that a doctor's “alleged admissions to another doctor that

he had performed an ‘inadequate resection’ and his apology to the patient ‘for his failure to do so’

were insufficient to raise a jury issue on applicable standard of care, breach of that standard, and

causation as elements of medical malpractice.”104

One of the earliest cases that paved the way for apology laws is the 1982 case

of Senesac v. Associates. The plaintiff filed a medical malpractice action against her gynecologist

and clinic for the negligent performance of an abortion. In upholding a ruling in favor of the

defendants, the court decided that a statement by the gynecologist “that she ‘made a mistake, that

she was sorry, and that it [the perforation of the uterus] had never happened before’ did not establish

departure from the standard of care.”105 Even though no legislative pronouncement on apologies

existed at the time, the court reached the same conclusion as the subsequent remedial legislation on

the issue. The court stated that a doctor's individual belief that she deviated from her own standards

of care and skill does not reflect a departure from the requisite standards of care normally exercised

by physicians in the absence of expert medical evidence.106 Thus, a precedent was created in which

the medical evidence must establish negligence instead of a doctor's mere apologetic admission.

Ten years later, a Georgia court noted that “evidence of activity constituting a voluntary offer of

assistance made on the impulse of benevolence or sympathy should be encouraged and should not

be considered as an admission of liability.”107 The *107 facts of Deesev. Carroll City County Hosp.

reveal that partial payments of medical expenses and lost wages were made by the defendant in this

medical malpractice matter. The plaintiff asserted that these payments constituted an admission of

liability, but the court did not support this assertion.108

Similarly, in Giles v. Brookwood Health Services, Inc., a lawsuit alleged that the doctor removed the

patient's right ovary after diagnosing a cyst on the left ovary. In response to a Motion for Summary

Judgment, the plaintiff claimed that the physician had apologized for this mistake. Despite this

apology, the Alabama Supreme Court upheld the granting of the defendant's Motion and noted that

the doctor's statement of empathy did not constitute expert testimony that he injured the plaintiff by

breaching the applicable standard of care. The apology, at most, amounted to an admission that he

operated on the patient while he was under the impression that the right ovary, rather than the left,

was the ovary that had been previously diagnosed with a cyst. The apology also did not contradict

the doctor's testimony or that of his expert that the physician's actions fell within the standard of

care. Therefore, the patient's account of the apology did not create a genuine issue of material fact

with regard to the claim that the physician committed an error.109

The Colorado case of Bonser v. Shainholtz involved a dental malpractice claim. The basis of the

plaintiff's complaint was that the treatment provided by the dentist caused a temporal mandibular

joint (TMJ) disorder. The facts show that the defendant replaced two damaged fillings and sought to

diagnose the reason for the patient's complaint of a sore jaw. He determined that the correction of an

abnormal bite was needed, a procedure he completed that visit. The plaintiff returned two weeks

later complaining of pain and expressing anger that the defendant had treated her when her jaw

hurt. The dentist replied, “I'm sorry, I'll do what I can for you.” Subsequently, he sent the patient two

checks to cover splint therapy. With each check, the dentist wrote that he meant this as a gesture of

goodwill and not as evidence that he had done something wrong in her treatment. The defendant

appealed an adverse finding of malpractice and alleged that his apology and payment of expenses

were inadmissible. The court agreed and granted a new trial. “Evidence of a defendant's offer to pay

his patient's medical expenses may not be admitted to establish liability. It is the product of a desire

to encourage humanitarianism. This goal would be undercut if an offer to pay medical expenses

were penalized by allowing it as evidence against the payor. In addition, the inference that the

conduct means anything other than humanitarianism is unreliable.”110

In Schaff v. Kaufman, the plaintiff was scheduled to have a colonoscopy which ultimately revealed

cancer of the bowel. Three days before the procedure, the patient slurred his words, and his wife

discussed the issue with the cardiologist who allegedly committed malpractice by not recognizing

that the patient had suffered atrial fibrillation. It was maintained that the doctor did not take the

proper steps to prevent a stroke that occurred after the procedure. The plaintiff's wife testified that

when she complained to the doctor about her husband's slurred speech, the physician said she was

“just looking for trouble.” After the stroke, the wife confronted the doctor with this statement, and the

cardiologist said he was sorry. With regards to admitting this statement to the jury, the appellate

court stated that the decision to “admit or not admit this testimony was within the sole discretion of

the trial court and there is no indication that the trial court abused this discretion in any manner.

Moreover, even if the trial court's decision to sustain defense counsel's objection was in error, it was

clearly a harmless error which would not change the result of this trial.” In the *108 end, the

Pennsylvania court ruled that saying “I apologize” or “I am sorry” without more information is

ambiguous. After all, it was not clear if the doctor was referring to his remark to the wife, about the

sad situation, or for making a mistake. “One can be sorry about or apologize for an event without

meaning to say one was at fault.”111

Cases Under the Apology Statutes

In Rodriquez v. Leffers, the Massachusetts court considered the admissibility of an apology. The

facts reveal that a patient sued her doctor for negligently performing a biopsy. After the procedure,

the defendant stated “I'm sorry I cut the nerve,” and the plaintiff wanted to use this statement as

evidence of negligence. The physician sought a preclusion of this utterance on the basis of

Massachusetts' apology law, that “benevolent statements, writing or gestures are inadmissible as

evidence of liability in all civil actions.”112 The trial judge allowed the apology into evidence, but that

decision was reversed on appeal because the expression of sorry had “no probative value as an

admission of responsibility or liability.”113 Allowing such evidence would be “highly prejudicial” and

would not add anything of “probative value to the medical issues involved in the case.”114

In the Georgia case of Airson v. Shaak, a patient brought a medical negligence action against a

doctor who removed a portion of the patient's colon during surgery and then later had to perform a

colostomy because the remaining colon became necrotic.115 After the second surgery, the physician

stated to the patient's wife, “This was my fault.” While not necessarily an apology, this statement was

indicative of the physician's remorseful wrongdoing. The appellate court found that the trial judge

properly excluded this statement pursuant to Georgia's apology law which states:

Any claim or civil action brought by or on behalf of a patient allegedly experiencing an unanticipated

outcome of medical care, any and all statements, affirmations, gestures, activities, or conduct

expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion,

mistake, error, or a general sense of benevolence which are made by a health care provider to a

patient, a relative of the patient, or a representative of the patient and which relate to the

unanticipated outcome shall be inadmissible as evidence and shall not constitute an admission of

liability or an admission against interest.116

The Georgia apology law covers statements made to “family members and representatives of the

patient,” which was relevant since the doctor's apology was made to the patient's wife. Some state

apology laws, however, do not specifically mention to whom the apology may be given which can

leave open for interpretation the application of the law to a given situation.117 For instance, would an

apology to a domestic partner or to the patient's friend be protected? Maine's Apology Law

specifically covers “a domestic partner relationship with an alleged victim.”118 The apology laws of

Montana and Delaware apply to the victim, the person's family or “a friend of the *109person.”119 The

Apology laws of Connecticut, Vermont and Ohio cover an apology made to any person who has a

family-type relationship with the victim.120

In a recent Ohio decision, a patient died after back surgery, and her husband filed a wrongful death

claim against her orthopedic surgeon.121 The doctor's standard of care was found to be subpar, for

he “negligently performed a lumbar microdisectomy ... and fail[ed] to timely diagnose and treat the

medical condition that arose thereafter.”122 Although the jury learned of the surgeon's conversation

with the decedent's family, stating he nicked an artery and took full responsibility for the error, they

never heard any testimony in which the surgeon said he was sorry for his mistake.123 The Court of

Appeals of Ohio upheld the ruling that the doctor's admission of fault could be used as evidence of

negligence because the Ohio apology law's intent “was to protect pure expressions of apology,

sympathy, commiseration, condolence, compassion or a general sense of benevolence, but not

admission of fault. This interpretation comports with the explanation of Ohio's General Assembly as

well as the policy espoused by the majority of states that have adopted apology statutes with an

explicit distinction between sympathy and fault.”124 Since no apologies were admitted into evidence,

the award was upheld on appeal.125

Federal Court Litigation

A similar apology was delivered to the plaintiff's wife in Wooding v. United States of America. This

matter, however, arose in the United States District Court where apologies are governed by the

Federal Rules of Evidence. In this case, a military veteran claimed his physician committed medical

malpractice when his dura was punctured during spinal surgery causing an excessive amount of

spinal fluid to leak out and breach his abdominal peritoneum. The plaintiff stated that the surgeon

told both his wife and himself “that he was sorry, that he poked a hole in my spine, that he didn't

catch the leak in time and that because of that too much spinal fluid leaked.” The patient also noted

that the way the doctor “looked and acted when he told me that he was sorry was that he was

ashamed about how he performed the operation, that he was negligent in performing the

surgery.”126 The court refused to consider the plaintiff's inference of negligence and stated that “an

apology is not equivalent of an admission ... an apology is not the equivalent of establishing that a

variance in accepted medical practice occurred. Consequently, the plaintiff's claim fails based upon

the lack of expert testimony establishing negligence.”127 Furthermore, the court ruled that, even if the

doctor's apology was equivalent to an admission, the plaintiff's lawsuit would still fail under

Pennsylvania law since he did not provide expert testimony of wrongdoing.128

*110 Cases in Which an Apology Law was Not Helpful to the Physician

Apology laws are not always helpful to the doctor. For instance, in the Utah case of Woods v. Zeluff,

a patient sued his health care providers for unsuccessful foot surgery that disabled him.129 During a

post-operative visit, the doctor stated “I don't think we should have done this surgery,” “I've missed

something,” and “I jumped the gun.”130 Utah's Rules of Evidence are modeled after the Federal Rules

of Evidence and require a balancing test as to whether the unfair prejudicial potential of the evidence

outweighs its probative value. While not necessarily an apology, this frank admission does have the

effect of the doctor admitting responsibility for an action, and this statement is not unfairly prejudicial.

The defendants argued that the doctor's statements were “words of compassion and remorse” so the

evidence should be excluded.131 The Utah Court of Appeals held that “exclusion of the testimony was

prejudicial to the patient.”132“Even assuming that the defendants are correct in their assertion that the

physician's statement by itself is insufficient to support a finding of malpractice, the statements are

nonetheless clearly probative.”133 It must be noted, however, that this case arose before Utah

implemented its apology law in 2010, and one must question whether the result would be the same if

the issue again surfaced in that state.

One final point about apology statutes. Several state laws exclude admissions of fault from

evidence. Sample jurisdictions in this category include Washington, Georgia, Arizona, Colorado,

Connecticut and South Carolina.134

CONCLUSION

Apology laws have been implemented in order to encourage communications between doctors and

patients while also protecting a physician from liability for such an expression of empathy. Whether

all states will adopt some form of an apology law remains to be seen. However, apologies have been

shown to be an effective way to decrease medical malpractice claims since patients often receive

much needed closure which ameliorates their anger.

Footnotes1

Nicole Marie Saitta is an assistant to Professor Samuel D. Hodge Jr., Chair of the Legal Studies

Department at Temple University. She received an M.A. in English Literature from Villanova

University and obtained a certificate from New York University's Publishing Institute in the School of

Continuing and Professional Studies. An experienced academic researcher with a background in

pre-medical studies, she is particularly interested in research pertaining to the intersection of law and

medicine.

2

Samuel D. Hodge, Jr. is a professor and chair of the Legal Studies Department at Temple

University where he teaches both law and anatomy. He lectures nationally on anatomy and trauma

and is considered one of the most popular speakers of continuing legal education courses in the

country. He is the coauthor of Anatomy for Litigators second edition, ALI-ABA (2011) and has written

more than 150 articles on medical/legal topics. Professor Hodge is a graduate of Temple University

Beasley School of Law and the Graduate Division of the Law School. He is also a member of the

Pennsylvania Bar and the American College of Legal Medicine.

3

Davis v. Wooster Orthopaedics & Sports Medicine, Inc., Slip Copy, 2011 WL 2565576 (Ohio App. 9

Dist., 2011).

4

“Medical Errors and the Full Disclosure/Early Offer Movement,” Perfect Apology,

http://www.perfectapology.com/medical-errors.html (Last visited July 4, 2011).

5

Matt Palmquist, “The Benefit of Saying You're Sorry,” Court Review, Vol. 45, No 3, Summer 2010.

6

Id.

7

Id.

8

Beverly Engel, “The Power of Apology,” Psychology Today http://

www.psychologytoday.com/articles/200208/the-power-apology published July 1, 2002. (Last visited

on July 6, 2011.)

9

Id.

10

Id.

11

Id.

12

Id.

13

Those states with current disclosure laws include Nevada, Florida, New Jersey, Pennsylvania,

Oregon, Vermont, and California. Galllagher, Studdert, and Levinson, “Disclosing Harmful Medical

Errors to Patients,” New Eng. J. Med. Vol. 356, Issue 26, June 28, 2007.

14

Marlynn Wei, “Doctors, Apologies, and the Law: An Analysis and Critique of Apology Laws,” Student

Scholarship Papers, Yale Law School/Yale School of Medicine, 2006.

15

Frank Federico, “Disclosure of Medical Error Forum” Risk Management Foundation of the Harvard

Medical Institutions, Volume 23, Number 2, May 2003.

16

Id.

17

Id.

18

Galllagher, Studdert, and Levinson, “Disclosing Harmful Medical Errors to Patients,” New Eng. J.

Med. supra.

19

Id.

20


Medical Institutions,supra.

21

Id.

22

University of Michigan Health Systems, “Full Disclosure of Medical Errors Reduces Malpractice

Claims and Claim Costs for Healthy Systems,” Agency for Healthcare Research and Quality Health

Care Innovations Exchange, 2001, http://www.innovations.ahrq.gov/popup.aspx?

id=2673&type=1&isUpdated=False&isArchived=False&name=print. (Last visited on July 6, 2011.)

23

Id.

24



25


Med. supra. Also seeGallagher, Waterman, Garbutt, et al. “US and Canadian physicians' attitudes

and experiences regarding disclosing errors to patients,” Arch Intern Med 2006; 166: 1605-11.

26

Ann. Cal. Evid. Code §1160. Judge Quentin Kopp, the Bill's sponsor, offered these comments in an

explanation that followed the legislation. The study cited was conducted by the University of Florida,

College of Law.

27

Steven Keeva, “Does Law Mean Never Having to Say You're Sorry?” ABA Journal, Dec. 1999, pg.

65.

28


Scholarship Papers,supra at 37.

29

Id. at pg. 39.

30

Robin Ebert, “Attorneys, Tell Your Client to Say They're Sorry: Apologies in the Health Care

Industry,” 5 Indiana Health Law Review 337, 2008, pg. 4.

31

Id. See also Lucien Leap, To Err is Human: Building a Safer Health System, The National

Academies Press, 2000. In this book, the author discusses the difference between a culture of

learning versus a culture of blame. Individuals learn from defeats, not from victories, and a

discussion of the adverse effects of these so-called failures leads to knowledge for the future.

Pointing fingers does not ultimately help in the wake of a medical error, but improving the system to

reduce these errors and increase patient safety should be the focus of all involved. The “deny,

defend, and deflect” strategy, so termed by Peter Hoffman, Esquire, a prominent medical

malpractice defense attorney, is engrained in our culture but may not be the best method when

dealing with medical malpractice suits.

32


Scholarship Papers,supra pg. 11.

33


Scholarship Papers,supra, pg. 48.

34

Rae Lamb, “Disclosure: A Visiting Journalist's Perspective,” Risk Management Foundation of the

Harvard Medical Institutions volume 23, number 2, May 2003, pg. 13.

35

Id.

36

From a telephone interview with Justice William Lamb conducted by Nicole Saitta on 7/14/11.

37

Kevin O'Reilly, “I'm Sorry': Why is That So Hard for Doctors to Say?” American Medical News,

amednews.com, Feb. 1, 2010, http://www.ama-assn.org/amednews/2010/02/01/prsa0201.htm. (Last

accessed on July 7, 2011).

38

Judy Shopp, Esquire provided her thoughts in an email to the authors on 7/5/2011.

39

“Apology” Electronic Handbook of Legal Medicine, 2008, http://

www.medlit.info/member/medical_error_news/menv12i4/apology.htm. (Last accessed on July 7,

2011.)

40

Hickson et al, “Factors That Prompted Families to File Medical Malpractice Claims Following

Perinatal Injuries,” JAMA, 1992; 267:1359-1363.

41


Scholarship Papers,supra, pg. 40. Also see Vincent et al., “Why do people sue doctors? A study of

patients and relatives taking legal action,”The Lancet 343(8913), 1994, at 1609.

42



43

Id.

44

Elaine Liu and Benjamin Ho, “Does Sorry Work? The Impact of Apology Laws on Medical

Malpractice,” Johnson Research Paper Series, No. 04-2011, October 2010, pg. 9. Also see Hickson

et al., “Factors that prompted families to file medical malpractice claims following prenatal

injuries,” JAMA 267 (10), 11 March, 1992, 1359-1363; Leibman and Hyman, “A mediation skills

model to manage disclosure of errors and adverse events to patients,” Health Aff 23 (4), 2004, 22-

32; Liebman and Hyman, “Medical error disclosure, mediation skills, and malpractice litigation: A

demonstration project in Pennsylvania,” March 2005; May and Stengel, “Who sues their doctors?

How patients handle medical grievances,” Law & Society Review 24(1), 1990, 105-120; Ohbuchi et

al., “Apology as aggression control: Its role in mediating appraisal of and response to harm,” Journal

of Personality and Social Psychology 56(2), 1989, 219; Sloan and Hsieh, “Injury, liability, and the

decision to file a medical malpractice claim,” Law & Society Review 29(3), 1995, 413-435; Vincent et

al., “Why do people sue doctors? A study of patients and relatives taking legal action,” The

Lancet 343(8913), 1994, 1609.

45



46

Pamela Popp, “Disclosing Medical Errors: How Will it Affect Future Litigation?” Risk Management

Foundation of the Harvard Medical Institutions, Volume 23, Number 2, May 2003, pgs. 8-9.

47

Id.

48

Id.

49

Maria Pearlmutter, “Physician Apologies and General Admissions of Fault: Amending the Federal

Rules of Evidence,” 72Ohio State Law Journal 687, 2011.

50

Id.

51

Id.

52


Malpractice,” supra, pg. 3.

53

Id.

54

Id. at page 5.

55

Id.

56

Id. at page 26.

57

Id. at page 26.

58

Kevin O'Reilly, “‘I'm Sorry’: Why is That So Hard for Doctors to Say?” American Medical News,

amednews.com, Feb. 1, 2010, http://www.ama-assn.org/amednews/2010/02/01/prsa0201.htm, (Last

accessed on July 7, 2011.) Marlynn Wei in “Doctors, Apologies, and the Law: An Analysis and

Critique of Apology Laws,” Student Scholarship Papers, supra, criticizes these findings, stating there

are major differences to be considered when comparing VA versus non-governmental

hospitals. “First, the VA system is a government-based system that offers comprehensive, nearly

free universal coverage [ ... ] In contrast, compensation for patients in non-governmental hospitals is

sought through more limited means [ ... ] Second, government health care practitioners are immune

from personal liability as government employees under the Federal Tort Claims Act [ ... ] Thus,

physicians at VA hospitals benefit from much stronger barriers to lawsuits and more options outside

of litigation. At a more basic level, the patient population at VA hospitals [is] predominantly male

[and] most facilities do not usually include obstetrics--one of the most frequently named specialties in

malpractice cases. The VA system and doctors are better situated to deal with the potentially costly

consequences of a full disclosure policy. Such differences make the Lexington center disanalogous

to nongovernmental hospitals and physicians.”

59

Id.

60


Med. supra.

61

Quinn, Richert, www.sorryworks.net/files/3rsaosreq.ppt (Last accessed on July 26, 2011). This

powerpoint presentation also states that, in 2005, the average paid incident through the 3R program

cost $5,224 versus $77,936 for closed claims, $27,980 for cases closed with no indemnity, and

$258,799 for cases closed with indemnity paid.

62

Kevin O'Reilly, “‘I'm Sorry’: Why is That So Hard for Doctors to Say?” American Medical

News, supra.

63

Id.

64

Former Pennsylvania Superior Court Justice Richard B. Klein in an email to authors dated July 5,

2011.

65


Industry,” supra, pg. 3.

66


Rules of Evidence,”supra. Also see Fed. R. Evid. 408(b).

67

Id. Also see Fed. R. Evid. 801 (d)(2).

68

Id. Also see Fed. R. Evid. 804 (b)(3).

69



70


Rules of Evidence,”supra. Also see Fed. R. Evid. 403.

71

Id. Also see Fed. R. Evid. 407 and Fed. R. Evid 409.

72


Malpractice,” supra, pg.2. Also see S.1784: National MEDiC Act, 109th Congress, 2005-2006

http://www.govtrack.us/congress/bill.xpd? bill=s109-1784 (Last accessed on July 7, 2011.) The Bill

contained the following language as to its purpose:

It is the purpose of this part to promote a culture of safety within hospitals, health systems, clinics,

and other sites of health care, through the establishment of a National Medical Error Disclosure and

Compensation (MEDiC) Program. It shall be a goal of the Program to--

(1) improve the quality of health care by encouraging open communication between patients and

health care providers about medical errors and other patient safety events;

(2) reduce rates of preventable medical errors;

(3) ensure patients have access to fair compensation for medical injury due to medical error,

negligence, or malpractice; and

(4) reduce the cost of medical liability insurance for doctors, hospitals, health systems, and other

health care providers.

73


Rules of Evidence,”supra.

74



75

See Washington RCWA 5.64.010, South Carolina Code 1976 §19-1-190, Nebraska NE ST §27-

1201, Utah Rules of Evidence, Rule 409, Connecticut C.G.S.A. §52-184d, Oklahoma 63 Okl.St.Ann.

§1-1708.1H, Virginia VA Code Ann. §8.01-581.20:1, Vermont 12 V.S.A. §1912, Montana MCA 26-1-

814, Oregon O.R.S. §677.082, Maine 24 M.R.S.A. §2907, Louisiana LSA-R.S. 13:3715.5,

Massachusetts M.G.L.A. 233 §23D, North Carolina Rules of Evid., G.S. §8C-1, Rule 413, Delaware

10 Del.C. §4318, Maryland MD Code, Courts and Judicial Proceedings, §10-920, South Dakota

SDCL §19-12-14, Indiana 34-43.5-1-1, Hawaii HRS §626-1, Rule 409.5, California

Ann.Cal.Evid.Code §1160, Arizona A.R.S. §12-2605, North Dakota NDCC, 31-04-12, Ohio R.C.

§2317.43, Georgia Ga. Code Ann. §24-3-37.1, Colorado C.R.S.A. §13-25-135, Texas TX CIV PRAC

& REM §18.061, Florida FL ST §90.4026, Tennessee TN R Rev Rule 409.1, Wyoming WY ST §1-1-

130, West Virginia WV ST §55-7-11a, Illinois IL ST CH 735 §5/8-1901, Missouri MO ST 538.229,

New Hampshire NH ST §507-E:4, Idaho ID ST §9-207, Iowa IA ST §622.31, District of Columbia DC

Code §16-2841.

76

“I'm Sorry Laws: Summary of State Laws,” American Medical Association Advocacy Resource

Center, July 2007 http:// www.physicianspractice.com/all/p2files/images/publication/charts/11_2007_

TheLaw_Chart1.pdf accessed July 6, 2011. North Dakota's and Utah's laws do not state that the

expression must be related to the discomfort, pain, suffering, injury or death of the alleged victim.

(Last accessed on July 12, 2011.)

77

Id. Maryland and Oregon laws apply to apologies made orally, in writing, or by conduct; Hawaii

covers written or oral apologies as well as benevolent gestures; and Vermont law applies to oral

expressions. One hospital in Maryland has recently issued a number of patient disclosures as the

result of a federal investigation. St. Joseph Medical Center, which is located in Towson, Maryland, is

the subject of a federal health-care fraud investigation, and has notified hundreds of its cardiac

patients that they may have received unnecessary and potentially dangerous coronary implants. The

investigation appears to be focused on one of the hospital's most prominent cardiac sugeons who is

suspected of unnecessarily implanting cardiac stents in hundreds of patients. As the CEO of the

hospital noted: “We take our interaction and the care of our patients with the utmost seriousness,

and so we wanted to alert patients and their physicians to what we found,” Little, Robert, “Patients

learn they might have unneeded stents,” The Baltimore Sun, January 5, 2010,

http://articles.baltimoresun.com/2010-01-15/health/bal-md.cardiac15jan15_1_ stents-heart-patients-

cardiac-catheterization, last accessed on August 6, 2011.)

78

RCWA 5.64.010 206 c 8 §1.

79

South Carolina Code 1976 §19-1-190 and Georgia's statute Ga. Code Ann., §24-3-37.1 wordings

are almost identical: “General Assembly further finds that such conduct, statements, or activity

should be particularly encouraged between health care providers and patients experiencing and

unanticipated outcome resulting from their medical care.”

80

Washington RCWA 5.64.010; Vermont 12 V.S.A. §1912.

81

Illinois IL ST CH 735 §5/8-1901.

82

Maine 24 M.R.S.A. §2907.

83

Louisiana LSA-R.S. 13:3715.5.

84

Nebraska NE ST §27-1201, Virginia VA Code Ann. §8.01-581.20:1, Vermont 12 V.S.A. §1912,

Maryland Code, Courts and Judicial Proceedings, §10-920, South Dakota SDCL §19-12-14, Indiana

34-43.5-1-1, Hawaii HRS §626-1, Rule 409.5, California Ann.Cal.Evid.Code §1160, Florida FL ST

§90.4026, Tennessee TN R Rev Rule 409.1, Illinois IL ST CH 735 §5/8-1901, Missouri MO ST

538.229, New Hampshire NH ST §507-E:4, Idaho ID ST §9-207, District of Columbia Code §16-

2841. Most states contain wording similar to this, though Vermont's wording is a little different:

“doesn't limit access to information that is otherwise discoverable.”

85



86

Regular Session 2011-2012 House Bill 495 P.N. 450.

87

“Issue brief: ‘Apology’ legislation,” Pennsylvania Chamber of Business and Industry

www.pachamber. org accessed July 6, 2011.

88

Gene Barr in email communication to the authors dated 7/6/2011.

89

Randy LoBasso, “The Unfortunate PA ‘Apology’ Law,” PhillyNow March 3, 2011,

http://blogs.philadelphiaweekly.com/phillynow/2011/03/03/the-unfortunate-pa-‘apology'-law/ (Last

accessed on July 6, 2011.)

90


Scholarship Papers,supra. See also Lee Taft, “Apology Within a Moral Dialectic: A Reply to

Professor Robbennolt,” 103 Mich. L. Rev. 1011 (2005).

91

Jane Pribek, “Wisconsin Go. Doyle vetoes health care ‘apology’ bill,” May 31, 2006 Wis. L. J.

92


Med., supra. Also see In: 40 Pa Cons Stat Ann Section 1303; 2002.

93

40 P.S. Section 1303, Chapter 5 §302. A serious event precludes an “incident” which the act defines

as “An event, occurrence or situation involving the clinical care of a patient in a medical facility which

could have injured the patient but did not either cause an unanticipated injury or require the delivery

of additional health care services to the patient.”

94

Burling, Stacey, “Doctor-Lawyer Project Tackles Malpractice,” Philadelphia Inquirer, March 4, 2008,

as quoted by Sorry Work! Coalition, June 17, 2008 Newsletter,

http://www.sorryworks.net/newsletter20080617. phtml, last accessed on August 4, 2011.

95

Id.

96

From telephone Interview with Justice Lamb conducted by Nicole Saitta on 7/14/2011, supra.

97

Id.

98

Id.

99

From telephone Interview with Richard Jurewicz, Esquire conducted by Nicole Saitta on 7/15/2011.

100

Id.

101

From telephone Interview with Lee Rosengard, Esquire conducted by Nicole Saitta on 7/27/11.

102

Case filings dropped in Pennsylvania from 2,632 in 2000 to 1,491 in 2010. While the mediation

imposed by larger health institutions has certainly helped this decline, the passing of a Venue Rule,

backed by Justice William Lamb, has helped the decrease as well. “Prior to this Rule, one could

bring a lawsuit in Philadelphia even if injured in Chester County because Paoli [Hospital, which is

located in Chester County] is part of the Jefferson Health System [whose main office is located in

Philadelphia, and higher settlements are often awarded in Philadelphia] ... [Now] you bring a lawsuit

in the county in which the cause of action arose.” (From an interview with Justice Lamb on 7/14/11).

This measure has decreased the malpractice filings that were instituted in an attempt to obtain a

friendlier plaintiff's venue. In addition, a Certificate of Merit is required before filing a lawsuit in which

a physician must certify that there is merit to the claim. According to some, although these cases

may be less in number, those that are filed are now often more costly to prosecute and favor the

plaintiff. (From a phone interview conducted by Nicole Saitta on 8/3/11 with Peter Hoffman, Esquire,

an attorney who, along with Justice Lamb, helped implement a number of changes to the medical

malpractice filings in Philadelphia.)

103

McCormick on Evidence, 629 (2d Ed., 1972).

104

Phinney v. Vinson, 158 Vt. 646, 605 A.2d 849 (Vt., 1992).

105

Senesac v. Associates 141 Vt. 310, 449 A.2d 900 (Vt., 1982). According to Robin Ebert, “Attorneys

Tell Clients to Say They're Sorry: Apologies in the Health Care Industry,” supra, one of the most

frequently cited cases dealing with extrajudicial statements by a doctor following a medical error

is Lashley v. Koerber, 26 Cal.2d 83, 156 P.2d 441 (Cal., 1945). The complaint in that matter alleged

that the defendant negligently diagnosed and treated a fractured terminal phalanx of one of plaintiff's

fingers by failing to take an x-ray. According to the testimony of plaintiff's husband, the doctor

admitted “that he should have had an X-ray taken in the beginning” “and I know, it is not your fault ...

it is all my own.” The court noted that an extrajudicial admission of fault, “may amount to no more

than an admission of bona fide mistake or misfortune, and thus be insufficient to establish

negligence.”

106

Id.

107

Deese v. Carroll City County Hosp., 203 Ga. App. 148, 416 S.E.2d 127 (Ga. App., 1992).

108

Id.

109

5 So.3d 533 (Ala., 2008).

110

983 P.2d 162 (Colo. App., 1999).

111

850 A.2d 655 (Pa. Super., 2004).

112

Rodriquez v. Leffers, 2004 WL 5825606 (Mass. Super.).

113

Id.

114

Id.

115

Airaisian v. Shaak, 289 Ga. App. 540, 657 S.E. 2d 6000 (Ga. App., 2008).

116

Id., also see OCGA § 24-3-37.1.

117

States apology laws that do not specifically mention the admissibility of expressions of sympathy to a

family member, friend, or representative of the patient include: Washington West's RCWA 5.64.010,

Vermont 12 V.S.A. §1912, Maryland MD Code, Courts and Judicial Proceeding, §10-920, South

Dakota SDCL §19-12-14, Indiana 34-43.5-1-1, Hawaii HRS § 626, Rule 409.5, Oregon O.R.S.

§677.082, and North Carolina, Rules of Evid., G.S. §8C-1, Rule 413.

118

Maine 24 M.R.S.A. Section 2907.

119

Montana MCA 26-1-814; Deleware 10 Del. C. Section 4318.

120

Connecticut C.G.S.A. Section 52-184d; Vermont VA Code Ann. Section 8.01-581-20:1; Ohio R.C.

Section 2317.

121

David v. Wooster Orthopaedics & Sports Medicine, supra.

122

Id.

123

Id.

124

Id.

125

This ruling is different from Airasian v. Shaak, supra. in which the Georgia Court of Appeals did not

allow the statement “This was my fault” into evidence. Both state statutes are very similar and both

cases have taken place within the past five years, so while an actual “I'm sorry” may clearly not be

admitted as evidence at trial, the statements in that grey area of admitting fault may still be

admissible.

126

Wooding v. United States of America, 2007 WL 951494 (W.D. Pa.); See also Docket No. 37-3, Ex.

13, paragraph 3.

127

Id.

128

Id.

129

Wood v. Zeluff, 158 P. 3d 552 (Utah App., 2007).

130

Id.

131

Id.

132

Id.

133

Id.

134

South Carolina, Code 1976 Section 19-1-190; Connecticut C.G.S.A. Section 52-184d;

Colorado, C.R.S.A. Section 13-25-135; Arizona A.R.E.S. Section 12-2605; Georgia, Ga. Code Ann.

Section 24-3-37.1; and Washington, RCWA 5.64.010.

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