Traditionally, doctors have been afraid to apologize or even show any sign of empathy when something went wrong that harmed or killed a patient. The fear that their words could be used to bolster a medical malpractice claim was not unwarranted.
Yet, this fear of expressing sympathy or remorse can make a doctor-patient or doctor-family relationship even worse after a bad outcome. In fact, people are more likely to take legal action for non-life-changing errors or negligence if they don’t believe that a doctor understands or cares about what happened than if they react with compassion.
The role of state apology laws
This is one reason many states have enacted “apology laws” to prevent doctors’ expressions of sympathy and in some cases outright apologies from being used as evidence against them. Of course, victims and families can still use other evidence if they bring a malpractice claim.
When she was a U.S. Senator representing New York, Hillary Clinton, along with then-Senator Barack Obama unsuccessfully tried to pass a federal law called the National Medical Error Disclosure and Compensation (MEDiC) Act that would do the same thing at the federal level.
New York is still among the relatively few states with no such law, despite efforts by state legislators over the years to pass one. That means patients and families are unlikely to hear a doctor apologize for something that has gone wrong, from a missed diagnosis to a surgical error.
Getting evidence to support a malpractice claim
If a medical professional does admit to some responsibility or apologize for doing or not doing something that led to harm, that admission can potentially be used in a malpractice claim. Their words likely won’t be enough on their own, however, to result in an outcome in favor of a patient or their loved ones. Other evidence will be necessary.
This generally involves getting ahold of all medical records, including doctors’ notes, getting witness statements and bringing in expert witnesses like other physicians who can speak with authority on where things went wrong. Nonetheless, it’s important for patients and family to listen carefully to everything that doctors say, to ask for explanations and to take notes.
Medical malpractice legal actions can be challenging. Doctors and hospitals often fight back hard. That’s one reason why it’s crucial to seek legal guidance as soon as possible in the event of suspected negligence resulting in harm.