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Does a Doctor Apology Count as a Confession?

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Serious doctor was stressed with the clock in the dark room. Does doctor apology count as confession concept.

Does a doctor apology count as a confession? A healthcare provider’s apology for an adverse medical event does not constitute an admission of guilt. Apologies and shows of sympathy are a part of human interaction. In the healthcare profession, however, ambiguities exist regarding whether a doctor apology counts as a confession. Doctors often wish to disclose medical errors to patients and their loved ones, but choose to withhold information for fear that their statements may prompt patients to pursue legal action.

Serious doctor was stressed with the clock in the dark room. Does doctor apology count as confession concept.

These competing interests have prompted many state governments to enact “I’m Sorry” laws aimed to encourage physicians to apologize and engage more transparently with their patients. As long as the physician doesn’t actually confess or admit guilt, apologetic statements to patients are not admissible as evidence should a patient pursue a malpractice claim. Apology laws do not protect error disclosure.

What Happens if a Doctor Makes a Mistake in a Medical Case?

What happens when a doctor makes a medical mistake depends on the type of error that occurred. In some cases, the physician may have no clue that he or she made an error, only to realize later that a preventable injury took place. For instance, in a surgical situation, the surgeon may have left a foreign object in the patient’s body. This could include a surgical needle, scalpel, or sponge. The patient may suffer infection or constant pain, but it may take months or years before the medical error is uncovered.

In other cases, however, the healthcare provider may immediately know that he or she made a mistake. For instance, during surgery, the patient’s bowel or colon could be punctured by the surgeon’s operating tools. This can increase the risk of serious infections, such as peritonitis. If the surgeon identifies the mistake immediately, proper treatment can be provided to remedy the situation and prevent further injury. However, the surgeon may not disclose what happened to the patient.

Depending on the type and extent of injury, the patient may need additional medical care, which could include surgery, pain management, infection treatment, cosmetic treatment, and a prolonged hospital stay. When the physician causes the injury but does not disclose it, the patient is left to take care of his or her medical treatment.

In Illinois, when a physician makes a medical mistake, such as a serious prescription error, the physician is not required by law to disclose it to the patient. Nevertheless, doctors are ethically required to admit to a medical error when it affects the health and safety of their patients, as stipulated by the American Medical Association’s Code of Patient Safety. Even in cases where failure to disclose an error may be dangerous for the patient, doctors choose to remain silent due to the fear of legal action, embarrassment, and reputational damage.

When the patient starts asking questions, the doctor may stop returning calls or provide insufficient information regarding the details of the error that was made and how it has impacted the patient. Even if the doctor feels ethically obligated to provide error disclosure, he or she may still not provide all information with the aim of minimizing liability and avoiding a subsequent malpractice lawsuit.

Does a Doctor Apology Count as a Confession?

In a civil action brought about by a victim of a medical error, any statements, gestures, affirmations, or conduct expressing apology, sympathy, compassion, condolence, or a general sense of benevolence by a doctor to the victim or his or her family does not count as a confession and is inadmissible as evidence. This applies to cases involving an unanticipated outcome of medical care that causes injury, pain, suffering, discomfort, or death of the patient.

In the context of medical malpractice, an apology includes recognition of an error that has occurred, admission of fault, taking responsibility, and communicating a sincere sense of remorse and regret. To have a full effect, an apology may also include compensation for harm and a promise to avoid similar issues in the future.

The message contained in an apologetic statement can have powerful effects on the recipient and the person giving it. In some cases, an apology can lessen the victim’s anger and influence the way in which he or she makes decisions. An apology could make it less likely that the victim will seek further legal action. 

Apologies can also reduce the likelihood that the error will recur. A doctor’s apology can be interpreted as a signal that he or she will take the necessary steps to refrain from similar conduct in the future. It also plays an important role in reducing negative emotional reactions, restoring trust, reducing antagonistic responses, and inducing positive physiological responses.

Many doctors express the desire to say “I’m sorry” when an error has occurred. However, with the disconnect between physicians and patients in their attitudes and expectations from communications after a medical error, many doctors tend to provide little to no information about what led to the error or what might have been done to prevent it. They choose their words carefully and show reluctance when it comes to making any offers for compensation unless a claim or lawsuit has been filed.

Most insurance companies still advise their clients to avoid making apologies when medical errors or mistakes have been made, even in states with I’m Sorry laws. Most doctors consult their insurance companies and employers before apologizing to clients concerning medical errors.

How “I’m Sorry” Laws Work in Medical Liability

In an effort to increase transparency and reduce the number of medical malpractice lawsuits, states began to pass “I’m Sorry” laws that allow for apologetic statements to be excluded at trial. Currently, 38 states and the District of Columbia have enacted I’m Sorry laws, also known as “Apology Laws.” These laws protect healthcare providers that make statements of sympathy or benevolent gesture following a medical error from having those same statements used as proof of liability in a malpractice claim.

There are two general types of apology laws: partial and full apology laws. States with full apology laws explicitly protect statements that are consistent with the definition of an apology, as well as statements of fault. Any statement, conduct, or gesture expressing apology, sympathy, liability, and responsibility is protected from being admitted as evidence if a lawsuit is filed.

Partial apology laws only protect expressions of sympathy, compassion, and regret. There’s no protection given to error disclosure or statements of liability and responsibility. If an apology is given by a physician to a patient or his or her family, any statements which contain an admission of fault can be used as evidence.

In 2005, Illinois initiated a “Sorry Works” program. Participating physicians and hospitals were required to promptly acknowledge and apologize for mistakes in patient care, followed by a plan for the mistake to not be repeated. The doctors were also required to promptly offer fair settlements. This program was repealed, so legal protections for an apology in Illinois are limited.

Effect of Apology Laws in Medical Malpractice Cases

Historically, healthcare professionals were told to deny and defend allegations of medical malpractice even when the healthcare professional knew something went wrong with the treatment or care. This attitude is believed to have created animosity toward doctors and other healthcare professionals and increased the number and cost of medical malpractice lawsuits.

Disgruntled patients and their families are more likely to file a lawsuit and less likely to agree to an early settlement. During a trial, if the jury finds that the doctor who is staunchly denying a medical error actually knew about the error, they are more likely to award higher damages.

Apology laws are designed to dispel some of the anger that follows medical mistakes and the denial of those mistakes. This is expected to reduce malpractice rates and costs. By providing legal protections for apologies, doctors may be more inclined to be more transparent and apologize to patients. Better physician-patient communication may make patients and their loved ones less likely to pursue litigation.

However, it is debatable whether existing apology laws have had their intended impact of reducing medical malpractice rates and costs. This inefficacy can be attributed to most states having partial apology laws, which do not provide protections for error disclosure or acceptance of responsibility.

A recent study found out that apology laws do not work as expected. This study analyzed medical malpractice claims for 90% of healthcare providers in the nation. The study found that two-thirds of patients who filed medical malpractice claims went to court and that I’m sorry laws made no difference, especially when surgeons were involved. For non-surgeons, however, medical errors were 46% more likely to result in a lawsuit. According to the researchers, this was attributed to the fact that surgical errors were more obvious than other forms of malpractice, such as failing to diagnose critical symptoms, such as signs that could represent that a patient was suicidal.

What to Do if Your Doctor Makes a Mistake

When a doctor makes a mistake, it is ethically encouraged to disclose the medical error to the patient if his or her health has been impacted. However, physicians must observe the hospital’s disclosure program guidelines. This may make it difficult for physicians to communicate with patients while still adhering to the rules and regulations of the facility. 

If you or a loved one have been injured by a prescription mistake or any other medical errors, consult an Illinois medical malpractice attorney as soon as possible. The statute of limitations for medical malpractice in Illinois imposes strict time limits on when you must file your claim against the negligent doctor. Generally, the clock starts ticking from the time you first discovered or should have discovered the medical mistake. Exceptions only apply to cases involving incapacitation, fraud, or children.

In medical malpractice cases, the burden of proof is on the plaintiff. A medical malpractice attorney will explain to you what transpires if a doctor makes a medical mistake, and the forms of personal injury damages you’re likely to receive as a result.

To prove that your doctor made a mistake, your medical malpractice attorney will help you establish four legal elements:

Duty of Care

For a physician to be held liable in a medical malpractice case, a doctor-patient relationship must exist. Typically, the relationship is established when you go for an appointment or hire a surgeon to do surgery. The relationship must be mutually agreed upon by both parties. Also, a healthcare provider has a duty to uphold a specified level of care for patients known as the standard of care.

Breach of Duty of Care

An attorney must prove that the doctor did not meet the standard of care he or she owed the patient during treatment. Your attorney will work closely with expert witnesses to show that the doctor’s actions were unreasonable.

Injury Caused by the Breach of Duty of Care

Proving that the physician made a mistake isn’t enough. Your attorney must further prove that the doctor’s mistake caused you actual harm. In other words, an injury or illness directly stems from a medical error.

Resulting Damages

You also have to prove that the injury or illness resulted in financial losses and expenses. This could include medical expenses, lost wages, pain and suffering, and loss of companionship, among other losses.

An attorney can help you file a claim and navigate the legal process of a medical malpractice case, and advise when a doctor apology counts as a confession. He or she can negotiate with the insurance company or bring a lawsuit to make sure you get maximum compensation for an injury caused by medical error.

About the Author

Kurt D. Lloyd is a plaintiff’s trial lawyer who focuses on medical malpractice and other catastrophic injury cases. He lives in Chicago and represents injured clients throughout Illinois. He is also the founder of Lloyd Miller Law, Ltd.

Years of Experience: Approx. 20 years
Minnesota Registration Status: Active
Bar & Court Admissions: Illinois State Bar Association U.S. District Court, Northern District of Illinois

Kurt D. Lloyd is a plaintiff’s trial lawyer who focuses on medical malpractice and other catastrophic injury cases. He lives in Chicago and represents injured clients throughout Illinois. He is also the founder of Lloyd Miller Law, Ltd.

Years of Experience: Over 35 years
Illinois Registration Status: Active
Bar Admissions: Illinois State Bar