Sorry But Not Guilty: When Doctors Apologize For Their Mistakes

If your doctor apologizes after a surgery goes wrong or something else bad happens, are you inclined to think that might be a valuable admission of guilt in a medical malpractice case? Think again.

Under one of the nation's many so-called "apology laws," the odds are good that your doctor's apology can't be used in court. However, that doesn't mean it isn't useful. This is what you need to know in the aftermath of a medical mistake.

Apology Laws Let Doctors Say "Sorry" Without Consequences 

At least 36 states now have"apology laws" on the books. While they differ a little by the state, they generally make it impossible for a patient -- or the patient's family, if the patient has died -- to use any statement of sympathy against the doctor later in court. Some go a lot further. A doctor can flatly admit that he or she made a mistake and it still can't be used in court.

Ohio's statue, for example, prohibits even the use of actual admissions of fault against the physician later. This was recently clarified in court -- making it one of the bigger obstacles in a malpractice lawsuit's way in that state even after a doctor openly admits liability.

An Apology Statute Still Doesn't Prevent You From Suing

An apology statute doesn't have to stop a medical malpractice suit from starting -- and it shouldn't. In fact, patients would be wise to assume that the doctor is apologizing because he or she is hoping to prevent a lawsuit from occurring in the first place.

A savvy medical malpractice lawyer is going to recognize that a doctor's apology may be designed to try to deflect rightful feelings of anger by the patient or the patient's family. The odds are very good that if the doctor is apologizing, the fact that the doctor made a mistake is going to be reflected somewhere in the medical records -- even if it isn't readily apparent.

That's where the discovery process kicks in. An attorney can use legal means to open the patient's medical records related to the injury for examination. Once that happens, if the mistake becomes clear, it is still quite possible to show a jury what happened or convince an insurance company to pay.

If your doctor apologies, it may be a true expression of empathy and remorse -- and you may be grateful in the aftermath of an accident for that human connection. But don't allow it to sway you into believing that you shouldn't -- or can't -- mount a malpractice suit anyhow.