When a medical mistake or negligent act result in severe injury or harm to a patient, physicians must decide whether they will apologize directly to the patient or their family. The decision is often more complex than it seems – many doctors are coached not to admit they made a mistake, as this confession may later be used in a lawsuit to prove that malpractice was committed. Medical malpractice lawyers at Pintas & Mullins Law Firm bring to light a few basic laws and tips for how to best handle a medical mistake.
In the past, physicians have avoided apologizing for accidents during the course of treatment due in no small part to the fear that the apology could be used in a malpractice lawsuit. Dozens of states recognized this ethical dilemma and established “apology laws” to ease the legal consequences of apologizing and admitting an error. To date, 36 states and the District of Columbia have provisions allowing medical professionals to apologize without liability.
If a malpractice case arises from the error, these laws allow defendants (the individual doctor or hospital) to exclude apologetic statements from evidence. In 1999, the Institute of Medicine released a report detailing how prevalent medical mistakes really are: at least 44,000 (and as many as 98,000) people die every year in U.S. hospitals from preventable medical errors. The highest error rates occur in operating rooms, intensive care units, and emergency departments.
Despite this increase in transparency and legislative effort for disclosure encouragement, medical mistakes are still shrouded in silence. Physicians remain fearful of admitting their misdeeds not only to their patients, but to their peers as well.
How an Admission of Guilt can Influence your Case
In order for a medical malpractice suit to be argued successfully, plaintiffs must demonstrate four key factors:
1. There was a set and applicable standard of care expected
2. That standard of care was breached or unmet 3. An injury or ailment occurred 4. Evidence that the breach of medical duty caused the injury
As stated, most state’s apology laws prevent an apology made by the
physician after-the-fact from being submitted into evidence. If your case
is brought in a state with more lax, or nonexistent apology laws, an apology
can be used to prove the standard of care was in fact breached and caused
However, it should be noted that physicians who have admitted to the mistake is much more sympathetic to the court. If the case makes it all the way to a jury, the jury members may feel more benevolent toward the physicians than they would toward a doctor who was emotionless and unapologetic. In any case, it is becoming quite clear that the problem with medical mistakes is less rooted in individual doctors and more so in systematic norms. The system itself needs to be safer, with better disclosure and transparency, which will in turn make medical mistakes less likely and damaging.
No matter the approach, there remains immense tension in the medical community over disclosure and medical malpractice laws. If you were injured by a medical error, it is best to consult an attorney who can advise you on your specific case. Our team of malpractice lawyers have the resources to consult clients nationwide, and our legal evaluations are always free of charge.