• linkedin
  • Increase Font
  • Sharebar

    How to express sympathy without receiving a malpractice lawsuit

    One of the better human traits is the desire to express sympathy for an individual who is suffering and in pain. This desire is never more present than with a physician wanting to commiserate with a patient who, despite all the physician's best efforts, has had an unexpected adverse outcome. The conundrum for physicians is how they can express their humanity in this situation without incurring the risk of the patient subsequently attempting to use the physician's statement as evidence of malpractice in a lawsuit.


    FURTHER READING: Judge says apologies can't be used in malpractice lawsuits


    Some states have addressed this situation by passing specific statutes that prohibit the admission into evidence at trial of a physician's expression of sorrow over the patient's plight. Many of these statutes provide only partial protection for such expressions, and there is a large number of states that have no statutory protections at all. This article addresses what physicians need to know to protect themselves against this risk depending on the law, or the lack thereof, in their state.

    In all United States courts, there are rules of evidence that regulate what testimony, or other evidence, can and cannot be presented in a jury trial, including a medical malpractice case. These rules uniformly permit testimony to a jury of an "admission" made by a party to the lawsuit during the course of events upon which the lawsuit is based. 


    RELATED RESOURCE: Physician reaction mixed to medical malpractice bill


    For our purposes, an “admission” can be defined as any oral statement by the defendant that is contrary to, or otherwise at odds with, the defendant’s defenses of no wrongdoing, and that actually supports the plaintiff‘s claims of such wrongdoing. Specifically, with a physician in a medical malpractice case, an admission would be any statement that his/her treatment of the patient fell below the accepted standards of medical care.

    Obviously, such a statement by a physician can have a nearly determinative impact on a jury's decision that there was malpractice, even when, in fact, no malpractice had occurred. This can easily result in a situation where, for example, the physician did not believe that he or she had engaged in malpractice, did not intend to make any statement that they had, the statement the physician did make was misinterpreted,  all the objective facts were of no malpractice and yet the physician is found guilty primarily because the statement was presented to the jury.

    To avoid erroneous findings of malpractice in these types of situations, 36 states have enacted “physician apology statutes”. While there are a fair number of differences between these statutes, the essence of them all is that, as a matter of state law, a court cannot permit any testimony, or other evidence, to be presented to the jury that the physician expressed any feelings of empathic or condolences for a patient who, despite the physician’s best efforts, had an unanticipated, adverse outcome.

    Next: What about physician apology statutes?

    Dennis J. Alessi
    Dennis J. Alessi is a member of Mandelbaum Salsburg in Roseland, New Jersey and co-chair of both its Healthcare Law and Labor & ...


    You must be signed in to leave a comment. Registering is fast and free!

    All comments must follow the ModernMedicine Network community rules and terms of use, and will be moderated. ModernMedicine reserves the right to use the comments we receive, in whole or in part,in any medium. See also the Terms of Use, Privacy Policy and Community FAQ.

    • [email protected]
      I was diagnosed with ALS (amyotrophic lateral sclerosis) 15 months ago. At that time riluzole was prescribed. I found I could not tolerate it. did very little to help me. The medical team did even less. My decline was rapid and devastating. The psychological support from the medical centre was non-existent and if it were not for the sensitive care and attention of my primary physician, I would have died. There has been little if any progress in finding a cure or reliable treatment. My ALS got significantly worse and unbearable because of my difficulty catching breath. Last year, i started on a natural ALS Herbal therapy from Green House Herbal Clinic, i read a lot of positive reviews from patients who used the treatment and i immediately started on it. I had great relief with this herbal treatment. I am doing very much better now, no case of shortness of breath or difficulty swallowing,, my ALS condition is totally reversed. Visit Green House Herbal Clinic website ww w.greenhouseherbalclinic .com. This treatment is a miracle!!
    • [email protected]
      I have ADHD, OCD, depression, primary biliary cirrhosis (autoimmune disease) and ALS. I didn't have health care I just thought it was a stroke, but it started with my voice. When it started to get worse I went to a neurologist. and was diagonised with amyotrophic lateral sclerosis. i was able to walk with assistance nothing was really working to help my condition.I went off the riluzole (with the doctor’s knowledge) and started on amyotrophic lateral sclerosis herbal formula i ordered from Health Herbal Clinic, Just 7 weeks into the Herbal formula treatment I had great improvements with my slurred speech, this is a breakthrough for all amyotrophic lateral sclerosis sufferers, visit Health Herbal Clinic official website www. healthherbalclinic. net or email [email protected] healthherbalclinic. net.
    • [email protected]
      Chloe Ryan My dad was diagnosed with ALS. He does not have ALS anymore.ALS herbal remedies i purchased online from Dr Lauren (Good Health Herbs Home) cured my day ALS .pleases anyone out there with ALS,natural herbal remedy is the real things to use, No more toxic medication that clearly state 'lead to death'. Let real and natural herbal remedy be your medicine. Stay away from vaccines and frankenfood.contact Dr Lauren for your ALS cure (drlauren @ goodhealthherbshome .com), website www .goodhealthherbshome .com

    Latest Tweets Follow