Studies show that patients are less likely to sue physicians who apologize and admit that they made a mistake.(1) Reducing the likelihood of being sued, while always important, is likely to become even more so, now that the size of jury awards in malpractice suits is increasing.(2)

But there's a problem. An admission of wrongdoing can be used by the plaintiff as evidence to establish liability in a malpractice suit. (For those of you who aren't lawyers, this stems from Rule 801(d)(2) of the Federal Rules of Evidence, which says that an admission by a defendant in a malpractice suit is not "hearsay," even though made outside the courtroom. State rules of evidence contain similar provisions.) So if you admit you made a mistake, the patient or family member may be less likely to sue, but if they do sue, you've given them a pretty nifty way of proving that you were negligent.

Laws to Protect Apologies

This summer, California passed a law making certain statements like apologies inadmissible as evidence of negligence.(3) Texas passed a similar law in 1999.(4) Massachusetts led the way back in 1986.(5) The Supreme Court of Vermont in 1982 produced the same result without legislation.(6)

The Vermont case is interesting. It involved an allegedly negligently-performed abortion, resulting in a perforated uterus and an emergency hysterectomy. The plaintiff introduced no expert testimony to show that the performance of the abortion had been negligent; instead, she introduced a statement allegedly made to her by the physician after the operation that the physician "made a mistake, that she was sorry, and that it had never happened before." Employing a bit of leger de main, the court ruled that this statement was not sufficient to establish negligence because the doctor might have been "verbalizing the belief that her performance was not in accordance with her own personal standards of care and skill," rather than that it fell below the standard of care in the profession.

These laws and judicial rulings are helpful in promoting open communication between physicians and patients, but doctors have to be very careful. The California law reads as follows:

"[T]he portion of statements, writings, or benevolent gestures expressing sympathy of 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 to 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 inadmissible pursuant to this section."

Should You Admit a Mistake?

The upshot is that, if you say you're sorry, that cannot be admitted, but if you say you made a mistake, or that it was your fault, or perhaps even that you were responsible for or had some role in the accident, this could be introduced to prove that you were negligent. This creates serious problems. Physicians may be reluctant to make an apology for fear that they inadvertently may blurt out that they made a mistake, and yet an apology without an admission of responsibility may fail to mollify patients or their families, especially if they later find out that a mistake in fact was made.

The Texas law is similar to the California law, stating that "a communication, which also includes a statement or statements concerning negligence or culpable conduct pertaining to an accident or event, is admissible to prove the liability of the communicator."

Only the Massachusetts law does not contain an exception like this, but since it only protects "statements, writings, or benevolent gestures expressing sympathy of a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident," a court could interpret this language as not including a statement of fault, so that if incorporated as part of an apology, it again would be admissible.

Apologies Don't Block Lawsuits

Furthermore, physicians must not mistakenly assume that because they apologize, they cannot be sued. These laws and court decisions only mean that their apologies cannot be used as evidence against them.

Why do these statutes, particularly those in California and Texas, make things so difficult? Why don't legislatures and courts recognize the substantial benefits that apologizing for a mistake and accepting responsibility yield, both for patients and families and for the physicians themselves, and encourage the practice more straightforwardly? Not by permitting an apology to eliminate the patient's right to sue. But at least by not allowing the apology to be used against the physician in court.

It's interesting to note that, under the rules of evidence, admissions of fault aren't always admissible. Admissions in the course of settlement discussions, for example, aren't.(7) Nor are admissions of fault that take the form of remedial measures to correct the hazardous situation that caused the accident in the first place.(8)

The rationales are that we want people to settle disputes rather than to put the legal system through the time and expense of a trial, and that we want to encourage them to make situations safer after an accident so that the same accident won't happen again. Since an apology after the fact, without asking the patient or family to agree not to sue as a quid pro quo, isn't a settlement negotiation, it wouldn't be protected under the first approach, and since an apology doesn't really prevent similar mistakes from occurring in the future, it doesn't seem to fit the second rationale either.

(If a physician did offer to apologize and admit wrongdoing if the patient or family agreed not to sue, the offer to admit wrongdoing would not be admissible if the patient or family later went forward with the suit, but note that coupling an apology and admission of fault with an attempt to obtain a waiver of liability from a patient or family simply might antagonize them and increase the chances that they would sue.)

What If You Don't Send a Bill?

Another evidentiary rule worth noting is that an offer to pay someone's medical expenses isn't admissible as an acknowledgement of fault.(9) So a physician who declines to bill a patient for erroneous treatment, or who pays out of her own pocket for the remedial care necessitated by the error, does not have to worry that her actions will be used in court against her.

But here the rules of evidence make the same distinction as the laws passed by the California and Texas legislatures: additional statements made in the course of paying or offering to pay medical expenses, including admissions of fault, are admissible to show negligence. In a comment to the rules, the advisory committee explains that the payment or offer to pay medical expenses is not admissible as evidence of fault because it "is usually made from humane impulses and not from an admission of liability, and that to hold otherwise would tend to discourage assistance to the injured person."

Admissions of fault made along with the offer to pay are admissible, on the other hand, because they are "incidental in nature." (The comment goes on to distinguish admissions of fault made during settlement negotiations, which are not admissible, on the ground that, unlike offers to pay medical expenses, "communication is essential if compromises are to be effected, and consequently broad protection of statements is needed.")

I'm not sure I'm convinced by these distinctions. It seems to me that if we value apologies and taking responsibility for one's own mistakes, we should change the rules so that these constructive and healing efforts do not come back to haunt the physician in a subsequent lawsuit. The only reason to make these statements admissible is that they simplify the plaintiff's task of proving negligence. But this seems too small a benefit when measured against the value of promoting better communication and greater trust between patients and their caregivers.