There’s no question that medical malpractice lawsuits cost doctors and hospitals and their insurers millions of dollars every year in payouts and increased premiums. When things go horribly wrong due to a medical provider’s negligence or actions, juries are often more than happy to award victims and surviving loved ones as much as they’re able to in order to provide some justice and compensation for their suffering.
In an effort to try to minimize these malpractice suits, the majority of states, including Oregon, have passed some type of “apology law” that makes certain expressions of sympathy and remorse – and in some cases, direct apologies – by a doctor or other medical provider inadmissible as evidence of malpractice.
There’s also some evidence that if doctors feel more free to tell patients and families that they feel bad or even apologize that they’ll be less likely to sue. That may be the case when the harm done is minor and reparable.
What does the law specify?
Oregon’s law states in part, “For the purposes of any civil action against a person licensed by the Oregon Medical Board…or other entity that employs the person or grants the person privileges, any expression of regret or apology made by or on behalf of the person, the institution, the facility or other entity, including an expression of regret or apology that is made in writing, orally or by conduct, does not constitute an admission of liability.”
That certainly doesn’t leave those who have suffered harm due to medical malpractice or their loved ones without recourse. There are plenty of ways to build a solid malpractice claim without an apology (which it’s still unlikely you’re going to get – particularly for a very bad outcome).
What evidence can be used?
Medical records, the testimony of others involved in a person’s care, expert witnesses who can testify about how things should have been done and more can be used. Further, even if a doctor’s or other medical professional’s apology itself isn’t admissible, if they do apologize, that apology will likely include some information that will lead to other evidence.
It’s always important to listen carefully to anything that doctors and others on the team tell you about a bad outcome, take notes and ask them to clarify or explain further. Even if there’s nothing they can say that will make things better, it can help you hold them accountable in court with the right legal guidance.