During treatment, pretend that one of the following things happened: your patient developed a significant periodontal compromise or a significant root resorption. You pick it. Remember, it’s make believe, but, it also happens. The patient, let’s call her Honey, may lose a few teeth; we’ll have to see. It happened on your watch, but you didn’t pick it up as early as you should have, and yes, you should have picked it up earlier. Bottom line? Not good, but hey, that’s why you have malpractice insurance. The only question now remaining is how big the award against you will be.
When you discovered the problem, you apologized to the patient. You said whatever words of sympathy you thought were appropriate. You said you would make it as right as you could. You said you would work with whomever the patient now had to go to be restored to the best possible state. So far, so good. You and the patient had a good relationship, and she hasn’t spit in your face yet. But, in time, the relationship gets strained, and things go downhill. Are the words of apology admissible in the subsequent trial against you for having rendered negligent treatment? Suppose, though, that you also said that you made a mistake. You didn’t take appropriate x-rays when you should have to discover whatever it was in a timely manner. Suppose, in whatever language you used, you admitted fault. Are those words admissible at trial? That’s what Honey v. Bayhealth, et al , C.A. No: K13C-05-018 RBY (Kent Super. Ct., Del. Jan 23, 2015) is, in part, all about.
In Honey, the plaintiff underwent gallbladder surgery; during the procedure, her bladder was lacerated. After having multiple corrective surgeries and suffering through “immense pain and suffering,” she filed the lawsuit. During the pretrial depositions of the plaintiff and her son, they testified that the defendant made apologetic remarks and admissions of fault to both of them. They, of course, want the remarks admitted, the defendant wants them precluded. A motion in limine was brought to decide the issue. Delaware, like 37 other states, has a statute that deals with the admissibility of apologies. 10 Del. Code Sec. 4318(b) states
[A]ny statement…made by a health care provider… that expresses apology, sympathy, compassion, condolence, or benevolence in reference to the allegedly negligent medical outcome for which the provider is being sued, is inadmissible. The exception to this rule is the “admission of liability or fault” by the health care provider.
The deposition testimonies in question showed that after the surgery the surgeon came to the patient’s bedside to offer his condolences. The parties disagreed whether the words spoken were an apology or an admission of fault or liability. If they were apologetic, they would not be admissible, but if they were admissions against interest, they would be; hence, the jury would hear them. Since Delaware had never decided this issue before, the court looked at how other jurisdictions dealt with this conundrum.
The actual words that were claimed to have been spoken by the surgeon to the patient were “I am so sorry, would you please forgive me,” and to her son, “I am so sorry for what I have done and, believe me, I will be here by her side to take her back to where she was before.” The court stated in the opinion that most of those remarks sounded like apology rather than an admission of fault. However, the phrase “I am so sorry for what I have done” could be taken either way because it was a statement of “broader contrition.”
However, the plaintiff further claimed in her deposition that the surgeon told her that the “cut” he made was a “miscalculation”; her son alleged that the surgeon told him that he “made a mistake.” The court stated that these statements, if true, are not words of generalized contrition and are more akin to admissions of fault, even though they were made within “a larger expression of apologetic angst.”
The court concluded its deliberation by stating the following holding.
[T]he portion of statements or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain…of a person…shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault, which is part of, or in addition to, any of the above shall not be inadmissible.
Thus, the court ruled that the apologetic language could not be introduced at trial, but any admissions of fault could be heard and evaluated by the jury.
Commentary
You make a mistake. Let’s say it’s a small-to-middling one. Something like cutting a lip with a lightening strip during reproximation or dripping a dollop of acid etch onto the patient’s face during bonding or allowing a bracket to somehow fly off the ends of your tweezer and find its way down the patient’s throat or, what the heck, make up your own error. It doesn’t matter. The point is that the patient was slightly injured. It will heal without a trace. Everything will be just fine in a short time, but you were negligent and caused an injury to the patient.
So, here’s the question/problem. Do you apologize for what just happened? If you don’t, you’ll be perceived as a really cold fish. The patient will have no problem viewing you as someone who just doesn’t care about him or her; that, in and of itself, can be the catalyst for filing a lawsuit against you. On the other hand, if you apologize, will that seem like an admission of fault or liability and will that create the mental environment for believing that the mishap was far worse than it actually was and will that be the harbinger of legal machinations yet to come?
If you want to engage in clinical practice, every now and then an adverse event will happen. You are human; accidents happen. Fortunately, most of these mishaps are minor and recoverable, and have limited or no clinical significance. Still expressions of sympathy and benevolence are called for if for no other reason than to support the doctor-patient relationship that, you hope, because you have worked hard to develop a strong one up to this point, will deflect any legal claims against you. Learning how to do this can go a long way.
But, sometimes you can go too far. You can say too much. You can use the wrong words. You may say what you don’t mean. We don’t practice, nor are we trained in, the fine art of linguistics. For some of us, differential, deferential, and apologetic language is tough. There are resources out there to help you learn how to apologize. Just typing the words “how to apologize for making a medical mistake” into Google yielded 2,010,000 results. My favorite one came out spontaneously when I was fitting a band, and the band pusher slipped, resulting in a small cut to the patient’s buccal attached gingiva. First words: “are you okay?” Next words: “good thing it’s not brain surgery.” Then came the real apology. Both worked well.
Look, at the end of every ministration we render sits a patient. Not a tooth, not a malocclusion, but a real live patient. One who has feelings. One who pays us money. One who expects us to be as professional and competent as we can be. Part of that professionalism involves learning to own up to errors we make, to apologize for doing so, and to attempt to atone and make appropriate reparations to make the patient as whole as we can. The bottom line is that we must learn to perform this skill properly. If this is beyond your skill set, well, at least fake it as best you can. Can’t do that? Keep paying those premiums.
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