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    How to express sympathy without receiving a malpractice lawsuit


    Ohio is one of the states that has a physician apology statute, and the Ohio Supreme Court recently interpreted the statute in the case of Stewart v. Vivian. For purposes of considering the impact of the Stewart decision, the key difference between these statutes are those that also prohibit the admissibility of any statement by the physician which, in addition to expressing empathy for the patient’s negative outcome, acknowledges that the physician’s treatment of the patient fell below the generally accepted standard of medical care. Those physician apology statutes, which also prohibit the admissibility of such physician acknowledgments, effectively negate the general rule of evidence that admissions by a party to a lawsuit can be presented to a jury.


    MORE: Easy strategies to pick the right malpractice protection


    The core of the decision by the Ohio Supreme Court in Stewart is that Ohio’s physician apology statute prohibits testimony at trial of not only a physician’s expressions of empathy with the patient for an unanticipated, adverse outcome, but also, any acknowledgment that the physician’s care fell below generally accepted standards. In Ohio, and other states with similarly broad statutes, physicians need have little concern that their expressions of sympathy, or otherwise commiserating with a patient and/or family members over an adverse outcome, could be construed as including an acknowledgement of malpractice admissible to a jury.

    However, in many of those states that have enacted physician apology statutes, the law expressly permits admissibility to a jury of a physician’s acknowledgement of fault for the adverse outcome. Further, approximately 14 states do not have any such statutes. In both these groups of states, approximately 32 in all, the general rule of evidence on admissions applies. Consequently, in all these states, a physician does need to be very cautious about what he/she says to a patient or a family member, about an unanticipated adverse outcome, lest it be construed as an admission of malpractice admissible to a jury.


    ADDITIONAL READING: How doctors can avoid malpractice suits


    Research has shown that a physician who commiserates with his/her patient over such an outcome is far less likely to be sued for malpractice than a physician who does not do so. Such empathy also permits the physician to express his/her humanity to the patient, to be true to the profession’s calling to be healing, both physically and emotionally, when the outcome is not what the patient had hoped-for and to assist the patient and the family to accept this outcome. So, there are many positives for a physician to make such statements in these situations.

    Next: This is what you can do

    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 & ...


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