by Joseph J. Feltes    
Buckingham, Doolittle & Burroughs, LLP   
Canton Office

March 1, 2005

Previously Published on January 2005

Not long ago, the Stark County Common Pleas Court Judges addressed a group of physicians, who attended a program to learn more about today's gripping malpractice crisis from the judicial perspective. Judge V. Lee Sinclair told the story of a discussion he had in chambers with an embittered plaintiff, the wife of a deceased patient, who sued her husband's physician for medical malpractice. The Judge wanted to speak with this woman, who adamantly rebuffed all reasonable monetary attempts to settle the case.

The plaintiff admitted to the Judge that her bitterness -- stemming from the physician's not communicating with the family -- rather than money, motivated her to file the lawsuit and reject settlement efforts. "My husband had been his patient for 20 years, and he (the doctor) never even said 'I'm sorry' that my husband died. He didn't even bother to talk with us. He didn't seem to care."

Judge Sinclair confirmed what many physicians have known or intuited -- breakdowns in communications with patients and their family members can lead to hard feelings and lawsuits. He admonished physicians to make the time to talk with patients or their families when mistakes are made or when any unanticipated clinical outcome occurs, even in the absence of mistakes.

Up to this point, that good piece of advice has been difficult for physicians to put into practice, particularly after having been reminded repeatedly by counsel of their "Miranda" rights: "Anything that you say can and will be used against you in a court of law." Ironically, this "defend and deny" approach may actually have led to lawsuits that might have been adverted if patients (or family members) had not perceived the doctor as being insensitive, uncaring, or as trying to hide something.

Physicians heretofore have found themselves between a rock and a hard place. Sub. H.B. 215, recently passed by the Ohio general Assembly, may help to alleviate that dilemma. The Act prohibits the use of a physician's apology or expression of sympathy as evidence of liability in a medical malpractice action.

Simply put: A physician, who talks with the patient or family following an unanticipated clinical outcome from medical care, should no longer need to worry about having his words come back to haunt him during cross examination by the plaintiff's attorney at trial.

The statue declares "all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence" to be inadmissible, i.e. such discussions are off limits at trial in a malpractice case.

Beyond creating a layer of evidentiary protection for physicians to speak candidly with patients or their families, the statute -- which is patterned after Colorado's "I'm Sorry" law -- may have the additional prophylactic benefit of deterring the filing of some potential malpractice claims in the first place. One medical professional, quoted in a recent Wall Street Journal article, opined that "nothing is more effective in reducing liability than an authentically offered apology."

Even if suit were brought, a physician's apology or sincere expression of condolence may facilitate lower settlements. According to one Ohio legislator, State Sen. Jay Hottinger, who supported H.B. 215, "A growing number of hospitals, doctors and insurers believe that apologies could end up quelling victim anger and perhaps reducing some of the huge sums paid out to settle disputes over medical care. By protecting such statements from being used as evidence of an admission of liability in subsequent litigation, the bill we passed better safeguards physicians when they apologize."

Prominent hospitals throughout the country, such as Johns Hopkins and Dana-Farber Cancer Institute, have adopted policies that encourage physicians to talk to patients, admit their mistakes when they occur, and apologize. Additionally, insurers like COPIC now are conducting programs that focus on teaching physicians how to discuss medical errors with families, as a matter of risk management.

Translating what appears in Ohio's Sub. H.B. 215 into practical application, may largely be a matter of applying common sense. It is helpful to keep these guidelines in mind:

• Physicians should take the initiative in contacting the patient or family, sooner rather than later. The longer a physician waits, the more uncaring and evasive he or she may be perceived as being. Time allows feelings to fester and anger to mount and harden.

• Physicians need to calm their emotions, have a good understanding of what happened, and not speculate or jump to conclusions before meeting with the patient or family.

• Physicians should be factual, candid, sincere and forthcoming in explaining what happened and answering questions.

• It is not necessary for physicians to "fall on their sword" by accepting responsibility or blame when they did not make a mistake.

• Apologizing or expressing condolences should not turn into "finger pointing" at others.

• Sometimes the only thing necessary and appropriate to say is something like: "I'm sorry about your loss. Your husband was a good man." Expressions of sympathy do not equate to admissions of wrong-doing.

• If you have any questions, doubts or concerns about meeting with a patient/family, or what you should or should not say, first contact your legal counsel or insurance carrier for guidance.

Saying "I'm sorry" or expressing condolences is not a panacea. Nor is it the miracle drug that will cure the malpractice epidemic. But, hopefully it will prove to be an effective prescription for physicians to control damage and avoid potential claims.

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