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Physicians Mindful of the "Power of the Apology"

In the wake of the Ohio Supreme Court's decision in Stewart v. Vivian, physicians around the country are paying more attention to the "apology laws" in their state. In a recent article written by a physician for the Huffington Post, he advises that "it would be prudent for a physician expressing sympathy, condolence, or an apology, to pick his words carefully." This is because there are 30 states that partially protect apologies from being admitted as evidence, but there are now 8 states, including Ohio, that offer full protection to apologies.

As you may recall from our recent blog post, Stewart v. Vivian held that the Ohio's apology law, which serves to prohibit statements of apology/sympathy from being admitted as evidence, also includes acknowledgements that the patient's care may have fallen below the standard of care. Because of this powerful decision, physicians are now being coached on how to express admissions of fault to a patient, while also protecting themselves from a potential malpractice lawsuit. For example, Dr. Weiman suggests that physician's "make a note in the chart reflecting his thoughts at the time of the conversation." He argues this is because the patient or patient's family's recollection of what they heard may be different from what the physician intended to express.

In reality, Dr. Weiman is advocating for a system where the doctors do not even need to say the words "I'm sorry," but instead just intend their statements to serve as an apology. And even if the doctor inadvertently tells the patient the truth - i.e. that he committed malpractice - that doctor could enter a note in the chart after the fact (including after he may have met with risk management or hospital administrators) stating that he meant it as an apology or to show compassion in a blatant attempt to avoid that statement being admissible in court.

Fortunately, even though a physician's statement of liability is now virtually inadmissible, there are other ways to prove a malpractice case and ensure physician's are held accountable for their negligence. If you or a loved one has been injured due to medical malpractice, please contact our office today to see if we can be of assistance.

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