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  • InsideTrack
  • July 16, 2014

    Health Care Provider’s Apology to Injured Patient Now Inadmissible as Evidence

    Tyler K. Wilkinson

    hospital bedJuly 16, 2014 – Saying “I’m sorry” for making an apparent medical mistake is now easier for physicians, under a new Wisconsin law that says apologies from health care providers to patients are not admissible as evidence in a medical malpractice lawsuit.

    The new law allows doctors to apologize for their apparent mistakes without fear that such apologies will come back to haunt them. In practice, letting doctors apologize more freely will probably reduce the number of medical malpractice suits against doctors.

    Consider the following real-life story: Dr. A makes a charting mistake and accidentally writes a prescription for a dangerously high dosage. A second doctor, Dr. B, follows Dr. A’s orders and serves the medicine as prescribed. The patient suffers adverse effects.

    The injured patient and her family schedule a meeting with the two doctors. Dr. A., who prescribed the wrong dosage, apologizes and admits the mistake. Dr. B refuses to apologize. He says he was following Dr. A’s orders and did nothing wrong. Guess which doctor was served with a medical malpractice lawsuit? You guessed it: Dr. B.

    More Protection for Health Care Providers

    An apology can be powerful. For an injured person, an apology can reduce negative emotions and play a role in building or restoring trust and influence the way he or she judges responsibility. For the injuring party, an apology can help dispel feelings of distress, guilt, and anxiety. The psychological benefits of an apology are so apparent that some lawyers encourage health care providers to apologize to injured patients without regard for whether that apology can later be used in court against them.

    Now, Wisconsin health care providers can apologize to injured patients without fear that their apology can or will be used against them in a subsequent lawsuit. In early 2014, Wisconsin joined the majority of states to adopt a law that precludes an injured patient from using a health care provider’s apology against them in court.

    In April 2014, Wisconsin adopted 2013 Wisconsin Act 242, which creates Wis. Stat. section 904.14. The statute ensures that a health care provider’s statements or gestures of compassion, fault, liability, remorse, or responsibility to their patient or patient’s relatives remain inadmissible as evidence of liability or as an admission against interest. 

    This rule of evidence broadly covers apologies made by a wide range of health care providers, including physicians, nurses, hospitals, clinics, ambulatory surgery centers, adult family homes, and even residential care apartment complexes. 

    The law also covers a range of venues as a health care providers’ apology is not admissible into evidence in any civil action, administrative hearing, disciplinary hearing, mediation, or arbitration. 

    Notably, the law only applies to statements or gestures that are made before the commencement of a civil action or other legal proceeding. It does not reach apologies that health care providers made after a lawsuit has been filed. The law first applied to apologies that occurred on or after April 10, 2014.

    Policy Benefits

    Some believe that the new law went too far to protect health care providers’ admissions. There were efforts to change the law before passage to remove statements of “fault,” “liability,” and “responsibility” from the statute’s ambit. 

    One of the concerns was that a health care provider could admit fault at the time of the incident but then freely change his or her story after a lawsuit was commenced. This may happen; and the new law may also cause close cases to end with a defense verdict because the plaintiff could not introduce the provider’s previous mea culpa statement to the jury. On balance, though, the law advances multiple policy benefits.

    Tyler K. WilkinsonTyler K. Wilkinson, U.W. 2011 cum laude, is an attorney with Axley Brynelson LLP, Madison. Wilkinson advises hospitals, physicians, and health care providers on risk management issues, litigation, government investigations, and administrative issues.

    First, the law helps to ensure that health care providers are deemed liable based on deviations from objective standards and medical science and not based on statements to patients or families. Health care providers generally warn of the possibility of bad results in many medical procedures. Accordingly, the law recognizes that a health care provider cannot be liable solely because the patient experienced a poor outcome. 

    Previously, there was always a risk that a poor outcome, coupled with an admission of fault, could result in liability even without a deviation from the standard of care. This new law keeps the focus on medicine and whether the provider met the standard of care.

    Second, the law may have the effect of reducing the number of lawsuits against health care providers. Research consistently shows that patients are less likely to sue their health care provider when that provider explains what happened, expresses sincere regret for the error and a desire to ensure that a similar mistake does not happen again.

    “Mistakes happen, including in health care. The new law allows health care providers to apologize for a mistake, and even accept fault or liability for that mistake, without fear that his or her statement will be used in court as evidence against them.”

    In my own practice, I often encourage my health care provider clients to apologize to injured patients in hopes to heading off a lawsuit. From my perspective, apologies can help prevent a lawsuit as well as help reduce animosity and facilitate settlement.

    Finally, the proposed law encourages honest dialogue between patients and health care providers about mistakes. A patient-provider relationship is built on trust.  A medical mistake and resulting injury can shake or destroy that foundation of trust. 

    Ensuring that providers can have an open and sincere dialogue with patients about what happened, why it happened, and how it will never happen again, without fear of recourse, may help to reestablish the patient-provider trust after a medical error causes injury. As hard as it may be for lawyers to believe, this rule of evidence may have a larger effect on providers and patients than on attorneys.

    Mistakes happen, including in health care. The new law allows health care providers to apologize for a mistake, and even accept fault or liability for that mistake, without fear that his or her statement will be used in court as evidence against them.

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