For patients injured by medical negligence, there is often a burning sense of betrayal by the doctor with whom they entrusted their health and well-being. This sense of betrayal is stoked when a physician who has caused harm skulks off into the shadows without acknowledging that mistakes were made or that unnecessary harm was caused. Betrayal and suspicion lead many injured patients to call a medical malpractice attorney, seeking answers about their care.
Insurance and physician groups know that a doctor can deter a victim of medical malpractice from seeking legal advice by intervening with the patient immediately after a medical catastrophe. Studies show that when physicians admit that a medical mistake was made and say “I’m sorry,” patients are less likely to sue. However, admissions of fault are admissible at trial against wrongdoers. So, well-funded insurance and physician groups persuaded the Ohio legislature to adopt a “Medical Apology Statute.”
Ohio’s Medical Apology Statute, R.C. 2317.43, provides that “any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim, and that relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.” This special privilege is only afforded to healthcare providers.
While Ohio’s Medical Apology Statute goes too far, the Ohio Supreme Court took it even farther. In Estate of Johnson v. Smith, Mrs. Johnson suffered an avoidable injury during surgery performed by Dr. Smith. After surgery, Dr. Smith confessed that “I take full responsibility for this.” The Ohio Supreme Court, which has also by well-fed by corporate contributions, held that even this admission could not be used at trial pursuant to Ohio’s Medical Apology Statute. Thus, not only are apologies kept from evidence at trial, but admissions of responsibility are also inadmissible.
For patients injured by a medical error, a sense of betrayal is natural. Now, adding insult to injury, the patient is subject to an insincere apology, meant not for the sake of accountability, but solely to discourage the patient from exploring their legal rights. The patient is thus betrayed a second time, this time by both the physician and the political process which has been commandeered by corporate interests.
You can read more here about this case here: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2013/2013-Ohio-1507.pdf