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

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“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


 

pinkie-elliott-mug.jpg 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.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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