California Medical Malpractice “Apology” Statute

When patients receive medical treatment there is generally a very high expectation that the results will be positive. However, that is not always the case. And in those cases where the outcome is either unexpected or is complicated, there will come a moment when the physician and the patient will have to communicate about how to resolve the situation. At that point the physician will be faced with a dilemma: should he or she apologize or express some regret.

Traditionally, physicians were discouraged from doing so because their actions might be interpreted as an admission of negligence or wrongdoing. The fairly recent emergence of so-called “apology” statutes in many states is making it easier for physicians and health care providers to have a more honest and open discussion with patients about such matters.

These discussions benefit both parties and often go a long way to resolving concerns about the treatment outcome without expensive medical malpractice litigation. “Although a physician may wish to tell a patient when he has made a mistake, lawyers often order doctors to say nothing,’’ wrote University of Florida law professor Jonathan R.Cohen in the Southern California Law Review. “The physician’s silence may then trigger the patient’s anger. This alienation may then prompt the patient to sue.”

Many states now have “apology” or “I’m sorry” statutes. Legislatures are doing a pretty good job of enacting legislation that facilitates more honest and forthright communication without the fear of resulting lawsuits. The statutes vary slightly from state to state, but all are written with the above-stated goal as their central purpose.

The California statute, which is set forth in full in the article linked above, draws a clear distinction between “the portion of statements …expressing sympathy or a general sense of benevolence” and “a statement of fault.” So if a physician admits fault, that statement may be used against him or her if the patient elects to file a claim for malpractice. Other states do not penalize the physician for saying the complication or outcome is their fault. There is ongoing debate whether the California statute is not broad enough to encourage physicians to openly communicate with patients.

In my own experience, people who call my office to discuss whether they have a medical malpractice claim very often express disappointment because the physician didn’t offer some sort of apology. It’s not yet clear whether California’s statute will encourage physicians and health care providers to do so.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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