Say that something goes wrong while you’re being treated in a hospital, your doctor fails to diagnose a condition until it’s gotten extremely serious or you’re prescribed the wrong medication (or wrong dosage). What kind of apology you get – if any – may depend on where you are.
Most states have enacted some type of “apology law” that gives doctors protection from having their words used against them in a malpractice suit or other legal claim. This has largely been done to help improve communication and relationships between doctors and patients, which can suffer if a doctor is afraid to acknowledge an error or even show sympathy for a patient’s pain or less-than-optimal outcome.
Some states have what known as “total protection” apology laws. That means even if a doctor admits to making a mistake and apologizes, that can’t be used as evidence against them. Of course, it can be used to obtain other evidence that is admissible. Therefore, doctors in these states (which include neighboring Arizona and Oregon) don’t eliminate their liability for error or negligence by apologizing for it.
What does California law say?
Many states, including California, have “partial protection” apology laws. In these states, general expressions of sympathy can’t be used against a doctor, but specific apologies for errors or negligence can be.
Each state’s law is written differently. California law states in part that “gestures expressing sympathy, regret, a general sense of benevolence, or suggesting, reflecting, or accepting fault relating to the pain, suffering, or death of a person, or to an adverse patient safety event or unexpected health care outcome… made to that person or the family or representative of that person…shall not be used or admitted into evidence in any civil, administrative, regulatory, licensing, or disciplinary board, agency, or body action or proceeding….”
Why listening and taking notes is crucial
The important thing to remember when something doesn’t go as it should is to ask questions and make sure you understand what doctors and others are telling you. Don’t be afraid to ask them to slow down, define terms and let you (or a loved one) take notes.
Whether or not a doctor expresses regret or apologizes, having as much information as possible is valuable. It can give you a fuller picture of what happened, which in turn will help you – with legal guidance – determine whether you have a valid medical malpractice claim.
