So starts Brenda Lee’s hit song from 1960. I know, some of you reading this weren’t even born then, but the words are just as true, just as powerful, and just as meaningful—even in the context of orthodontics. The case of Davis v Wooster Orthopedics and Sports Medicine, Inc., 193 Ohio App.3d 581, 2011, provides us with the following facts. The plaintiff went in for a lumbar microdiscectomy; the surgeon accidentally severed the common iliac artery, lacerated the iliac vein, and failed to diagnose what happened; and the patient died. The trial court found for the plaintiff, the jury awarded $3 million, and the defendant appealed in part because, after the surgery, he told the patient’s family that he nicked an artery and took full responsibility, and that this statement should not have been allowed to be admitted into evidence, since it was a form of an apology.
So, if a doctor says to a patient or the family that he is sorry for whatever, can that be used against him in subsequent litigation? The answer is, like many legal answers, it depends. In Ohio, under R.C. 2317.43(A):
In any civil action brought by an alleged victim of an unanticipated outcome of medical care . . . 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.
Statements of apology are admissible if they are used to show an admission against interest or an admission of liability. They are often inadmissible if one is using the words to express condolence or sympathy. The court had to wrestle with this distinction. There are 36 states that have apology statutes on the books, and only 17 of them expressly distinguish between expressions of sympathy and admissions of fault. The other states are fairly evenly split between those allowing both and those that prohibit either from being admitted. That’s why I said earlier that it depends. The law in Hawaii said it best by noting that the state favors “expressions of sympathy as embodying desirable social interactions and contributing to civil settlements.” So, I ask you again, do the words “I’m sorry” or “I apologize” connote fault or sympathy?
The defense argued that, although an “apology” could reasonably include at least an implication of guilt or fault, upon hearing that someone’s relative has died, one might according to common etiquette say “I’m sorry,” and no one would take that as a confession of having caused that person’s death. In matters such as this, a court will often look at how other states have handled the issue and the legislative history of the statute in question, including the differing versions of the bill, to determine the legislature’s intent regarding the ultimate language used. As it turns out, the intent was “to forbid the use at trial of a medical professional’s expression of sympathy includ[ing] any and all statements . . . expressing apology.” Apology was then defined as “statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence.” In other words, the intent was to protect pure expressions of sympathy from being misinterpreted and used against health professionals at trial, while allowing admissions of fault to be introduced.
The trial transcript noted that the deceased’s husband testified that the doctor said something along the lines of “the back surgery went okay, but I nicked an artery. I take full responsibility; it was my fault.” The deceased’s adult daughter testified that the doctor told her something akin to “the back surgery itself went fine, but, when they rolled her over and noted that her blood pressure had dropped, they did an ultrasound and saw that she was bleeding because an artery had been nicked. It’s my fault; I take full responsibility.” Both parties agreed that, at the doctor’s deposition, he said essentially what was just noted but also expressed condolences and sympathy by uttering the words “I’m sorry.” These words of condolence and sympathy were not permitted to come into evidence by the trial court. The appellate court upheld the trial court’s decision.
I don’t know any orthodontist who at one time or another hasn’t inadvertently injured a patient, such as a slip with an instrument resulting in a minor laceration of the gingiva or other adjacent soft tissue. Often, it is so minor that a simple apology, “I’m sorry,” is called for and is accepted, and that ends it. However, sometimes it’s more complicated than that.
When you discover, upon removing a patient’s brackets, significant decalcifications, it would not be uncommon for the doctor to say something to the child’s parent along the lines of “I’m sorry to have to tell you this, but as you recall we spoke many times of Junior’s poor brushing and the potential consequences.” This type of apology can easily be construed as one of “sympathy, commiseration, condolence, compassion, or general sense of benevolence.” At least, that’s what we would think. The patient might think that you are admitting fault because you “supervised the neglect.” Hmm.
On the other hand, what do you say when the patient has been in treatment for 2 to 3 years, and, upon appliance removal and final records, you discover significant root resorption. I know many doctors who have said something such as “I’m very sorry, Mrs Patient or Parent, but, as you recall, I informed you before we started treatment that root shrinkage was a possible side effect associated with undergoing orthodontic treatment, and now we have to look into . . ..” There’s nothing wrong with starting out that statement with an apology, right? Hmm.
On the other hand, we all have 3 hands, don’t we? After completing treatment on an adult who has experienced some degree of periodontal breakdown, it wouldn’t be uncommon to hear a doctor start out by saying to the patient, “I’m sorry to have to tell you this, but . . ..” Apology or not? Hmm.
When does the apologetic statement rise to the level of an admission against interest or an admission of fault? It seems to me that it’s often a close call and often contextually based. Looking at it from the patient’s perspective, I guess I could reluctantly and more easily accept the bad news, and be less apt to blame the doctor, if I heard some benevolent commiseration from the doctor relating to the negative consequences, was reminded that I had continually been informed of the possibility of such an occurrence and of the many times we had spoken of such possibilities, and was made to feel that the doctor was sympathetic to my situation. Although no one, particularly a patient, wants to blame himself, it is more difficult to place fault on the doctor if certain sympathies are expressed, especially when coupled with objective documentation of where the fault truly lies.
However, now imagine that the scenarios as described (decalcifications, periodontal breakdown, root resorption) are thrust upon a patient with the same “I’m sorry” at the beginning but without the documentation that the patient had been constantly reminded of the potential for such negative consequences. The unbeknownst surprise coupled with the “I’m sorry” could very well lead a patient to believe that the words were more akin to an admission of fault. The risk-management lesson: records, records, records. If it happened, write it down.
Andre Agassi said that “image is everything.” Maybe so, but, as far as apologies are concerned, “context is everything.” Oh, yes, documentation goes a long way, too.