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'I'm Sorry' Could Mean 'It's My Fault' By Joseph J. Feltes, JD IN 2005, THE OHIO General Assembly passed leg- islation that allows a physician to express sympathy to a patient, or patient's fam- ily, following an unanticipated clinical outcome without that statement's being used against the physician as an admis- sion of fault or liability in a court of law. Ohio is one of 36 states that has enacted "I'm Sorry" statutes based, in part, on fi ndings from studies conducted at the University of Michigan Health System, as well as experience at medical centers such as Johns Hopkins, Harvard and Stanford, pointing to the fact that liability claims and costs generally go down after medical error disclosure policies are implemented. Two Types of 'I'm Sorry' Laws There are two types of "I'm Sorry" laws. The fi rst type covers statements of "sympathy," which includes Ohio Revised Code 2317.43, and provides that: " … any and all statements, affi rmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that are made by a health care provider … " to the patient or family … " as the result of an unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or as evidence of an admission against interest." The other type of "I'm Sorry" law, which is in effect in Colorado and seven other states, goes beyond sym- pathy by excluding statements in which the doctor admits fault. Simply stated: In Ohio, a doctor can say to a patient or patient's family, "I'm sorry for what happened," or "I'm sorry for your complication or loss," without that statement's being admitted into evidence in a malpractice case as an admission of liability. In Colorado, on the other hand, a physician can express both sympathy and fault (e.g. "I'm sorry. I made a mistake.") without that being used against him or her in court. Blurring the Boundary On June 29, 2011, the Court of Appeals in Summit County seem- ingly blurred the distinction between sympathy and fault, but clearly made it incumbent for physicians to choose their words carefully. A wrongful death case was brought against an orthopaedic surgeon, who allegedly severed the patient's common iliac artery and lacerated her iliac vein during a lumbar mircodiscectomy. The patient's family testified that the doctor, following the procedure, apologized to the family for what hap- pened and took "full responsibility" for his actions. The trial court allowed that testimony to be admitted into evidence and used against the doctor. Counsel for the doctor, on appeal, argued that the doctor's statement should not have been admitted as an admission of fault. The Court of Appeals wrestled with whether the doctor's "apology" was an expression of sympathy, which would be protected by the Ohio statute, or a statement against interest and admis- sion of liability, which would not be protected and could be admitted into evidence for a jury to consider. After reviewing the legislative his- tory of Ohio's statute and comparing its language to the express language of those statutes following the Colorado approach, the appeals Court deter- mined that the doctor's apology under the circumstances constituted an admission of fault, which properly was admitted into evidence in the malpractice case. The jury awarded a three million dollar verdict. Physician: Protect Thyself There are three lessons to be learned from the Court of Appeals' decision. First, it is important for the doctor to have a well-drafted informed consent, which lists the risk of material compli- cations that could occur. Second, it's OK for the doctor to say: "I'm sorry for your loss," or "I feel bad that the complication covered in the informed consent happened." That statement remains protected under Ohio's "I'm Sorry" law. Conversely, if the doctor says, "I take responsibility for what happened," he or she risks that the statement will be admitted into evidence and used against him or her. Third, a doctor who expresses sym- pathy to a patient or patient's family should immediately dictate what pre- cisely he or she said and include that dictation (subject to review by legal counsel, if possible) in the patient's office record, since patients or patient families — particularly when caught in the throes of emotion — may have selective hearing, or later experience selective memory, as to what the physician actually may have said. Joe Feltes is an attorney with Buckingham, Doolittle & Burroughs in Canton and a member of its Health & Medicine Practice Group. Mr. Feltes is also the Managing Partner of Buckingham Canton. n MDNEWS.COM SEPTEMBER-OCTOBER 2011 MD NEWS Cleveland-Akron-Canton | 47 Must Choose Their Words Carefully: Physicians