In our last post, we began looking at the unfortunate lack of transparency in medical care, and the effort in some quarters of the profession to improve the situation by adopting policies requiring physicians to more readily empathize with patients when errors do occur.
This is a laudable development, to be sure, but it doesn’t necessarily mean it will make it easier for patients to sort out issues of fault. One reason for this is that, while there is an increasing recognition in the medical industry that increased communication and empathy with patients is beneficial for the doctor-patient relationship and can perhaps even reduce costs associated with medical malpractice litigation, there is still hesitation to adopt policies adopting open apologies to patients.
The reason for this is fairly simple: providers fear that admitting wrongdoing will open them up to liability. Providers know that they must avoid admitting fault, but state law is clear that expressions of sympathy are protected.
Under Michigan law, a “statement, writing or action” in which a provider expresses “sympathy, compassion, commiseration, or a general sense of benevolence” toward a patient is not admissible as evidence as an admission of liability in medical malpractice cases. This protection does not, however, apply to statements, writings, or actions expressing “fault, negligence, or culpable conduct.” Sorting out which statements qualify as protected expressions of sympathy and those which qualify as admissions of fault is not always straightforward.
Patients who are harmed by a serious medical error, of course, should always work with an experienced medical malpractice attorney, first to determine whether medical malpractice litigation is a viable option in their case, as well as to build the best possible case for liability.