Practice Areas

It’s O.K. to Apologize

One of the more common complaints we hear from plaintiffs during a medical malpractice case is that their doctor did not visit with them following a procedure or treatment to listen to them or explain to them what was happening. It is generally believed that direct communication, compassion and good bed-side manners by physicians may go a long way towards reducing the incidences of medical malpractice claims even when a diagnoses or outcome of a procedure is less than desirable.

Perhaps one of the concerns some doctors may have following an unanticipated outcome is that such expressions of compassion, sympathy or explanation may be used against them as an admission of sub-standard care in a lawsuit. The Ohio General Assembly addressed this issue when it adopted Ohio Revised Code 2317.43, commonly referred to as the "Apology Statute" in 2004. The Apology Statute prohibits the use of a doctor's expression of apology, sympathy, compassion or general sense of benevolence to a patient or a patient's family relative to an unanticipated outcome as an admission of liability against a doctor. The clear purpose of this Statute is to facilitate open and direct communications between doctors and their patients without fear that such conversations will later be used as evidence to prove that a doctor was negligent.

Although the purpose and language of the Apology Statute appears cut and dry, the application of the Statute is not. While some trial courts have taken a hard line by precluding all statements made by a defendant-doctor in the aftermath of an unanticipated outcome, other courts have interpreted the Statute narrowly to only prohibit express statements of apology or sympathy. Earlier this year in Franklin County, a plaintiff testified that the defendant-doctor, "told me he was sorry, he had made a mistake." In applying the Statute, the trial court ruled that only the, "told me he was sorry" portion of the statement was inadmissible while the, "he had made a mistake" portion did not fit within the Statutory exclusion.

Other courts look to the totality of the circumstances in determining the intent and purpose of the statements made by a doctor to his or her patient or patient's family. In a recent case handled by our firm, the trial court excluded the statement, "I take full responsibility" made by the defendant-doctor. The court conducted a voir dire examination of the patient's friend who was in the room when the defendant-doctor was consoling the plaintiff following surgery. The friend testified that the plaintiff was upset and uncomfortable and that the doctor was sympathetic and attempted to console and comfort her. The trial court ruled that the gestures and statements made by the doctor were covered by the Statute and the statement was excluded. The Eleventh Appellate District is currently reviewing this issue on appeal.

The standard of review of a trial court ruling on the application of the Apology Statute is an abuse of discretion standard meaning that the appealing party must show that the trial court's ruling represents more than an error of law or judgment, but implies an attitude by the court which is unreasonable, arbitrary or unconscionable. Therefore, it is incumbent upon defense counsel to explore the totality of the circumstances surrounding any statements or gestures of sympathy and apology made by a doctor to a patient to demonstrate that such statements fit within the purview of the Apology Statute and should be excluded.

The practice point for doctors is that good bedside manners, which include direct communication and proper compassion for their patients is not only the right approach to practicing medicine, but is encouraged and supported by statutory law in Ohio.