In response to the malpractice crisis and the proven benefits of a physician's apology, a majority of states have enacted laws to encourage expressions of sympathy without the statement of condolence being misconstrued as an admission of liability.
1,2 For the full list of state statutes and URLs to each state's apology law, see the
Table. Massachusetts was the first state to enact an apology law, in 1986
4; 34 other states along with the District of Columbia have enacted laws that prohibit a physician's apology as admissible evidence in a legal proceeding. Most apology laws apply to statements and gestures of benevolence made to either a patient or that patient's family in the wake of an unanticipated outcome.
24 Although some states do not have apology laws in place, others, including Pennsylvania, currently have legislation pending.
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The laws of each state have their own nuances, so physicians must be mindful of the particular jurisdiction in which they practice. For example, North Dakota's and Utah's laws do not state that the expression must be related to the discomfort, pain, suffering, injury, or death of the patient. In addition, in some jurisdictions, apologies made orally or written are covered.
24 Also, some state apology laws do not specifically mention to whom the apology may be given, which can leave the application of the law open for interpretation in a given situation.
1,2 For example, states with apology laws that do not specifically mention the admissibility of expressions of sympathy to a family member, friend, or representative of the patient include Washington, Vermont, Maryland, South Dakota, Indiana, Hawaii, Oregon, and North Carolina. Maine's apology law specifically covers “a domestic partner relationship with an alleged victim.”
1,2 The apology laws of Montana and Delaware apply to the patient, the patient's family, or a friend of the patient, while the apology laws of Connecticut, Vermont, and Ohio cover an apology made to any person who has a family-type relationship with the patient.
Some legislatures place a time limit during which an apology is inadmissible. These time limits are intended to encourage swifter communication by the physician. For example, Washington and Vermont place a 30-day restriction on an admission, while Illinois allows a 72-hour window for the statement to be inadmissible. The general assemblies of both South Carolina and Georgia have voiced the opinion that expressions of sympathy should be encouraged to promote communication between a physician and the patient who experienced an unexpected outcome. Georgia's statute states, “General Assembly further finds that such conduct, statements, or activity should be particularly encouraged between health care providers and patients experiencing an unanticipated outcome resulting from their medical care.” South Carolina's statute contains nearly identical wording.
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A very important distinction has arisen in some states between a statement of sympathy and an admission of fault.
1,2 For instance, Maine and Louisiana make this particular distinction in their apology laws by stating that nothing in the statute prohibits the admissibility of a statement of fault. The laws of Nebraska, Virginia, Vermont, Louisiana, Maryland, South Dakota, Indiana, Hawaii, California, Florida, Tennessee, Illinois, Missouri, New Hampshire, Idaho, and the District of Columbia include similar language in their statutes. Vermont's wording is a little different, stating “liability protections … shall not be construed to limit access to information that is otherwise discoverable.” Although most apology laws are categorized under rules of evidence pertaining to a medical error, many states protect apologies regardless of whether the outcome results from medical malpractice.
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