Apologies by doctors or nurses that express fault or admission of liability cannot be used against health care providers in civil lawsuits, the Ohio Supreme Court ruled this week in a lawsuit against a Southwest Ohio doctor over a woman’s suicide death.
The court ruling in the case, related to a medical malpractice suit against a Clermont County doctor, resolved a split among Ohio appeals courts over the state’s “apology statute” and whether the term “apology” excluded a provider’s apology that included an admission of fault.
The court unanimously agreed that Ohio’s law shields apologies that include admissions of fault. However, two justices concluded that doctor’s statements were not an apology and the trial court should have allowed his comments to be presented in the case.
36 states have enacted what are known as “physician apology statutes,” and the essence of all is that a court cannot permit any testimony or other evidence to be presented to the jury showing that the physician expressed any feelings of empathic or condolences for a patient after an unanticipated, adverse outcome.
However in 32 states the general rule of evidence on admissions applies so physicians need to be cautious about what he or she says to a patient or a family member about an unanticipated adverse outcome, or it could be construed as an admission of malpractice admissible to a jury.