Last time, we mentioned that Michigan is among a group of state that have passed measures to protect physicians from having their apologies used against them in medical malpractice litigation. In this post, we wanted to say a bit more about this law and how it can affect an injured patient’s ability to build a strong case for negligence.
The core protection of the law is that certain types of physician communications to a patient are not admissible in order to prove liability. Specifically, the following types of communication are, under the law, not considered admissions of liability: statements, writings, or actions made to a patient or his or her family which express sympathy, compassion, commiseration, or benevolence regarding the patient’s pain, suffer, or death.
In practice, this protection covers a great deal of the communications physicians make on a regular basis in their work. Protecting physicians from having these types of communications used against them is supposed to help ensure physicians can bring a human touch to their work without fear of reprisal.
The law does not protect other types of communications that are sometimes made by physicians though. Specifically, statements of fault, negligence, or culpable conduct which are part of or in addition to protected communications may be admissible for proving liability.
For this reason carefully distinguishing between expressions of sympathy and compassion and statements of fault or negligence is critical in building a strong medical malpractice case. Physicians are not ordinarily careless with patient communications, since there is a great deal of awareness of the need to protect from liability, so the difference may be subtle.