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Apologizing to Patient after Adverse Event

by Attorney Frank E. Reardon

April 1994

REARDON LAW OFFICE

                       When a serious adverse event occurs, expressing sympathy and compassion to the patient and family can be the most important response to diffuse a potentially volatile situation.  "If the doctor had only said she was sorry," is a common sentiment among plaintiffs in malpractice cases.

            The courts have recognized the legitimacy of a sincere apology by a physician, within some limits.  In Phinney versus Vinson, an attending surgeon's apology to his patient for performing an inadequate procedure was at issue.  The Vermont Supreme Court considered whether the apology, in itself, was sufficient to establish malpractice liability.  In this case, the surgeon, Dr. Vinson, performed a transurethral resection of the prostrate upon Mr. Phinney.  The patient suffered recurring pain following the operation, a second doctor performed another surgical procedure.  Mr. Phinney claimed that following this second procedure, Dr. Vinson apologized to him for performing a, quote, "inadequate resection," end quote.  Mr. Phinney argued that this statement, alone, was sufficient evidence of liability. 

            The court, however, held that even if Dr. Vinson made the statement, it was insufficient to establish  liability.  The court reasoned that, without any other evidence of negligence, Dr. Vinson's statement failed to establish an applicable standard of care.  According to the ruling, the statement also failed to show any breach of that standard, or causation.

            California and Massachusetts cases have followed the same reasoning as the Vermont case.  In Contreras v. St. Luke's Hospital in California, a patient brought action for malpractice against the hospital and physician when the patient developed a postoperative infection.  He alleged that the physician told him his infection was caused by, quote,  "either of three things:  either a glove or a tool that wasn't well sterilized or a defective mask and one of the persons that was operating breathed into it," end quote.  The court found that, without more evidence, this statement is insufficient to show negligence.  The court explained that this type of statement amounts to nothing more than admitting an error in judgment.  The court also explained that only statements that are "admissions of negligence or lack of skill ordinarily required for the performance of the work undertaken" are sufficient to establish liability without further evidence. 

            Examples of statements that are considered admissions of negligence or lack of skill can be found in Massachusetts case law.  In one case, Murphy versus Conway, a plaintiff's wife was under the care of the defendant during her pregnancy.  She suffered a cardiac arrest and died 40 hours after delivering her child.  The autopsy report stated the cause of death as a streptococcus infection on the peritoneum.  The plaintiff testified that his wife suffered from a sore throat and fever and was generally in a weak and tired condition when she visited the defendant physician before hospital admission for the delivery.  The plaintiff also testified that these conditions continued during her admission.  The defendant physician denied any knowledge of these symptoms.  The defendant also testified that there was no indication from examining the decedent that would have required administering a test for the presence of streptococcus infection.  The plaintiff, however, also alleged that the defendant had made an admission as to "improper, unskillful, [and] negligent treatment."   In another case, Woronka v. Sewall, the plaintiff after giving birth to her child, suffered second degree burns on her lower back and buttocks.  When she pointed this out to the defendant obstetrician, he stated that this happened, quote, "because of negligence," end quote, during the delivery.  These statements are distinguishable from the Vermont and California cases.  In Massachusetts, by statute, apologies are inadmissable as evidence of liability. But these statements are more than mere apologies.  They are conclusory admissions that infer all the elements negligence and causation.  Because of this content, they are admissible as evidence of liability. 

            Health care providers can, and should, express compassion when a patient experiences an adverse outcome or a less than perfect result.  Open communication between provider and patient is a powerful risk management tool.  Providers, however, must be careful not to also make statements that assess blame or liability. These statements, by contrast, are to be discouraged.  Drawing conclusions about the standard of care, or causation, is much different than simply saying "I'm sorry this happened."