DTCI: Legal pitfalls and evidence considerations in health care provider apologies

“What can I do to prove it to you that I’m sorry

I didn’t mean to ever be mean to you

If I didn’t care I wouldn’t feel like I do

I was so wrong, right or wrong I don’t blame you

Why should I take somebody like you and shame you

I know that I made you cry and I’m so sorry. …”

Lyrics from “After I Say I’m Sorry” by Frank Sinatra

By Elliott I. Pinkie

Health care provider apologies in the face of adverse patient outcomes can have profound effects in the defense of subsequent patient litigation. In the past several years, coalitions promoting apologies in health care have cropped up in the face of tort reform advocating the use of apologies in unfortunate, undesired patient outcomes. Indiana has also enacted legislation to promote communications of sympathy, inclusive of an apology, in actions sounding in tort, inclusive of medical malpractice actions. See I.C. 34-43.5-1 et seq., Evidence: Specific Communications.

The question remains, however, as to how effective health care provider apologies are in curtailing patient litigation and/or reducing the size and duration of time of any settlement monies paid in medical malpractice actions. The question was examined with findings published in October of 2010. See, “Does Sorry Work? The Impact of Apology Laws on Medical Malpractice,” Benjamin Ho, Cornell University, Elaine Liu, University of Houston.

For any health care provider utilizing an apology-based protocol following an undesired, unintended patient outcome, pitfalls are readily apparent in defending a lawsuit for negligent care initiated by the patient or patient’s family when an apology is extended. While the intentions of the health care provider may be good at the time any apology is offered, the apology’s admission into evidence at a subsequent jury trial presents pre-trial issues to consider.

We live in a litigious society. Physicians and health care providers in Indiana can opt to become “covered” health care providers under the Indiana Medical Malpractice Act, I.C. 34-18-1 et seq. While a limitation of liability exists under the Act for its participants, covered health care providers continue to be sued by patients for alleged medical malpractice following less than desired patient outcomes. Certainly, in some cases, an apology by the health care provider may thwart a claim for medical negligence by the patient after an adverse event. Other times, the apology offered may come back to the provider at trial and be a detriment to the defense of the claim.

If a communication of sympathy, inclusive of an apology, by the health care provider would be certain to stave-off a claim for alleged medical negligence following an unintended patient outcome, then all health care providers would undoubtedly rely on some sort of apology-based protocol in their risk management practices. Many health care providers have indeed adopted such protocols in Indiana. However, as there are no guarantees in medicine, and the practice of medicine is an inexact science, it is naïve for the health care provider to delve into an apology-based adverse event protocol without being informed of the possible ramifications it can have on subsequent patient litigation.

Most important, any such apologies to be offered by the health care provider should be free from any statements admitting fault or confessing liability or anything that can be construed to be either. Proper education and training can better prepare a health care provider for communicating with patients and patient families who experience undesired patient outcomes. It is natural for a health care provider to feel disappointed when a patient receives an unintended, unanticipated outcome from the medical procedure performed or medical treatment rendered to a patient. A communication from the health care provider expressing sympathy, an apology or a general sense of benevolence oftentimes should be conveyed following an adverse patient outcome. However, any such offering should be made in an appropriate manner to the patient and/or patient’s family and at the appropriate time. Indiana’s current statute on the admission into evidence of a health care provider’s communications of sympathy in medical malpractice actions, while certainly a step in the right direction, seems to provide little solace for the health care provider when viewed in conjunction with the Indiana Rules of Evidence.

I.C. 34-43.5-1-3 defines “communications of sympathy” as a statement, gesture, act, conduct or writing that expresses sympathy, an apology or a general sense of benevolence. An additional part of the statute dealing with communications of sympathy states that a court may not admit into evidence that communication of sympathy that relates to causing or contributing to cause a loss, injury, pain, suffering, death or damage to property, except as provided by Section 5 of the statute. I.C. 34-43.5-1-4. The next section, Section 5, states as follows: “A court may admit a statement of fault into evidence, including a statement of fault that is part of a communication of sympathy, if otherwise admissible under the Indiana Rules of Evidence. I.C. 34-43.5-1-5 (with emphasis added). While the statute defines a communication of sympathy, it does not shed light on what constitutes a statement of fault.

In response to this statute providing a mechanism for the exclusion of evidence of any communications of sympathy, inclusive of apologies, defense counsel for health care providers handling medical negligence claims should consider excluding the communication of sympathy and/or apology from evidence. Apologies, while at the time made by the health care provider to the patient and/or patient’s family may have been proper and appropriate under the circumstances, how such communications are to be perceived by the patient, the patient’s family and any subsequent jury are all wild cards.

Too often, an aggrieved patient and/or a member of the patient’s family, even counsel for the patient, may attempt to equate the apology and any corresponding communication of sympathy as a type of admission of some evidence of wrongdoing and/or a statement of fault. A savvy counsel for the patient may advance argument at trial that if the health care provider truly did nothing wrong and believes that they met the applicable standard of care, then why was an apology offered by the defendant in the particular case. While the answer may very well be because the health care provider is sincerely sorry for the outcome experienced by the patient, and no admission of fault was contained in the apology, there is no guarantee that a juror sitting in judgment of the health care provider will agree with the statement’s intent in the event it is deemed admissible at trial. Failing to exclude a benign apology from evidence at trial may lead to jurors misinterpreting a health care provider’s apology or expression of sympathy following an adverse patient outcome as an indication of fault, especially if the argument is advanced by counsel for the patient in any persuasive closing argument offered.

A health care provider’s premature apology for an adverse patient outcome can also lead to more questions or concerns by the patient over whether a medical error or mistake was made, if the physician erred in using sound medical judgment, and on whom such fault or blame should rest. Apologies offered too soon after an unfortunate patient outcome and prior to investigation can also provide an opportunity for miscommunication, misconstruing of the message and lead the patient to receive mixed signals and messages from health care providers. All of this can occur at a time when the patient and family members may not be thinking logically as a result of accompanying stress resulting from experiencing an undesired result. The presence of multiple family members interacting simultaneously with the health care providers to determine why the patient experienced the unfortunate outcome they did can be a stressful situation to say the least, and for all parties involved, inclusive of the health care providers. Again, while the health care provider’s intent at the time an apology is offered may be sincere and genuine, the opportunities for the message to be misconstrued and misinterpreted by the patient and/or family members are plentiful.

Questions and reactions from patients and/or family members can be as follows when a health care provider offers an apology too soon prior to any investigation as to the cause of the undesired outcome and without the proper education, training and professional guidance:

Why is the doctor/nurse apologizing? Did they do something wrong? Are they feeling guilty? Are they trying to cover something up? What do they know that they are not telling me? When did they know this information? Do they think that an apology will stop me from calling my lawyer? I wonder what my lawyer will think of the apology? If they are really sorry, why aren’t they offering money along with the apology? The doctor apologized, why didn’t the nurses or someone from the hospital? The nurses are nice and apologized, but why didn’t the doctor(s) apologize? Why is everyone acting different now?

As illustrated by some of the possible foregoing patient reactions following an apology by a health care provider, while the provider may believe that they are doing the right thing in offering the apology, they can, in actuality, be making matters worse, especially if the health care provider is unaware of how what is being said to the patient and/or patient’s family may later be used against them and can become a detriment to the defense of a subsequently filed action.

I.C. 34-43.5-1-4 renders inadmissible the communication of sympathy relating to causing or contributing to cause an injury, pain, suffering or death only to the extent that any communication of sympathy is free from a statement of fault and is not otherwise admissible under the Indiana Rules of Evidence. Defense counsel for the health care provider should be aware of the statute’s carved-out exceptions pertaining to communications of sympathy containing any statement of fault and the interplay with the Indiana Rules of Evidence.

Indiana Rule of Evidence 801(d)(2) would render the health care provider’s statement of fault contained in the communication of sympathy as admissible into evidence. The rule provides that statements of party opponents are not hearsay statements. To be admissible as a statement of a party opponent, the statement must be offered against a party and be the party’s own statement, in either an individual or representative capacity. See Indiana Rule of Evidence 801(d)(2). A physician on trial for alleged medical malpractice who admitted fault, even inadvertently, in a communication of sympathy to the patient or patient’s family would find such statements made after the alleged act of malpractice used against him at trial. This holds true regardless of how well intentioned the communication may have been at the time it was made.

Also, under Indiana Rule of Evidence 801(d)(2)(D), a hospital’s defense counsel may be plagued at trial with a statement of fault contained in communications of sympathy offered by nursing personnel. Under this provision of the rule, a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment made during the existence of the relationship can be admissible at future trial and deemed non-hearsay. Defense counsel should also ponder liminizing medical records containing communications of sympathy.

Even if the party opponent does not recall making any statement of fault contained within the communication of sympathy, a dispute as to what was said, when it was said and by whom may be enough for the court to allow into evidence an alleged statement of fault contained in a health care provider’s communications of sympathy. Remember, the admissibility of evidence is left to the discretion of the trial court. The trial court has broad discretion in ruling on the admissibility of evidence and determining its relevance. Stamper v. Hyundai, 699 N.E.2d 678, (Ind. Ct. App. 1998).

Even if the health care provider that made a statement of fault within the communication of sympathy is not a party opponent, the Indiana Rules of Evidence can still allow for its admission into evidence. In medical malpractice cases, this can occur in patient litigation against a physician when the declarant is not a party, such as a nurse or other hospital employee or when the declarant is a physician in an action pending against the nurse and/or hospital.

Indiana Evidence Rule 803 provides that the following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or explaining a material event, condition or transaction, made while the declarant was perceiving the event, condition or transaction, or immediately thereafter.

(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement cause by the event or condition.

Indiana Rule of Evidence 803. Hearsay Exceptions: Availability of Declarant Immaterial.

Also consider the application of Indiana Rule of Evidence 803(4) Statements for Purposes of Medical Diagnosis or Treatment and its implication to health care provider apologies containing statements of fault. See also Coffey v. Coffey, 649 N.E.2d 1074, 1078 (Ind. Ct. App. 1995)(holding that a statement made by someone other than the patient may be admissible under Rule 803(4) if it was made for the purpose of medical diagnosis or treatment of the patient).

In conclusion, health care provider apologies and communications of sympathy can, and do, play a vital part in interpersonal communications following an unforeseen patient outcome. Apologies by health care providers may also curtail patient litigation. However, they can certainly also lead to evidence hurdles to be cleared by the health care provider’s defense counsel prior to jury trial in the defense of a patient’s claim of medical negligence. In the event a health care provider utilizes any apology following an unintended patient outcome, the health care provider should be aware of its potential consequences and carefully craft the apology as to not lead to exposure and a claim for medical malpractice.•

Elliott I. Pinkie is a partner with Schultz & Pogue, LLP in Indianapolis. He is a member of DTCI’s Trial Tactics and Health Litigation Sections. His practice focuses on civil litigation for the defense, including professional medical liability, long-term care liability, premises liability, unique auto liability claims, retail liability claims and professional licensing. The opinions expressed in this column are those of the author.