Ohio medical malpractice lawyers are facing a new obstacle to bringing justice to victims of medical error. Ohio’s recently enacted Apology Statute 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” to a patient, patient’s relative or representative is inadmissible as evidence. Making matters worse, the Ohio Supreme Court determined that “apologies” include any admission by a health care provider that he/she was negligent.
What is an apology? Apologies serve a number of functions in civilized society: to acknowledge a wrong-headed behavior and a wrong; to commit to being better in the future and treat others with greater respect and due care; to begin the process of healing and closure after a moment of hurt. Without doubt, apologies are part of the arsenal of human interactions that allow us to get along in our complex communal existence.
In criminal sentencings, a convicted criminal is given the chance to express remorse for a crime and apologize to victims and victims’ families. Traditionally, a remorseless convict, or even a convict thought to be faking remorse, will receive a harsher sentence. Part of a remorseful apology is an admission of wrongdoing. A convict cannot convey remorse without acknowledging that he/she did wrong.
Conversely, and many would say perversely, Ohio’s Apology Statute is designed by powerful special interest groups, like doctors or hospitals, to insulate health care providers from the consequences of injuring a patient. Skeptical medical lawyers point out that by insulating the doctor from accountability, the law is truly designed to allow doctors to dissuade patients from suing by offering hallow words of empathy and remorse.
These laws reveal several elements of a true apology: (1) an acknowledgement of fault; (2) true remorse; (3) empathy for the harm caused; and (4) acceptance of consequences. By shielding health care providers from an admission of fault, the Ohio Apology Statute renders an apology meaningless. It is no apology at all.
If you are confronted with a situation where a doctor or nurse makes an error that harms you or a loved one, don’t stop with an apology and believe that the health care provider will accept accountability down the road. The apology is worthless. Ask for details about FACTS: What was done? Why was that done? Did you chart the mistake? Who was present (i.e., identify eyewitnesses)? Did your actions or inactions cause harm? How so? What other factors were involved? Who else was involved?