POSTED BY MARTIN R. DIX ON JANUARY 22, 2014
Under Florida law a person may make an apology to someone injured in an "accident" or to their family without the apology being admissible in court. Thirty-eight other states have similar laws which are generally referred to as "apology laws." Studies suggest that apologizing may reduce the risk of a healthcare provider being sued, and there is some evidence to suggest that the amounts paid out to injured patients are less in states with apology laws.
Apology laws were created to allow persons to express sympathy to injured persons without having this expression considered as an "admission" in court. An admission is an exception to the evidentiary "hearsay" rule which excludes these out-of-court statements. For instance, if after an accident a driver says, "Darn, I forgot to use my turn signal," this is likely an admission that could come into evidence as an exception to the hearsay rule. Thus, prior to the enactment of apology laws, if someone apologized to an injured person, he or she ran the risk that it would be considered an admission and used in court against the person in a negligence suit.
Florida's statute on apologies is part of Florida's Evidence Code (Section 90.4026, Florida Statutes) and provides:
The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence in a civil action. (emphasis added)
Benevolent gestures are defined as: "actions that convey a sense of compassion or commiseration emanating from human impulses."
Florida's law provides that "A statement of fault, however, which is part of, or in addition to, any of the above shall be admissible pursuant to this section" (emphasis added). Thus, persons offering an apology need to be careful of what they say and how they say it, so that they do not inadvertently provide evidence for the other side.
The law provides that the apology may be made to a person involved in an "accident" or to the family of that person. "Accident" means an occurrence resulting in injury or death to one or more persons which is not the result of willful action by a party. While the term "accident" is arguably broad enough to include medical negligence, it is not clear that the legislature intended the law to provide this same protection in medical malpractice actions that is provided when there is an apology for a car accident. Therefore, a medical provider should not rely on this statute for protection until a court determines its scope.
However, an apology, if expressed properly, would probably not be used against a healthcare provider regardless of the applicability of the apology law. For instance, a doctor could probably say to the widow of a patient: "I am sorry for your loss," or if a patient is complaining of severe pain, the doctor could probably say, "I am sorry for your pain" without this apology coming back to haunt him.
Regardless of whether the apology statute applies to healthcare providers, the healthcare provider should be very careful about admitting fault or blame during the apology. Therefore, the provider should not say "I am sorry for the loss that I caused" or "I am sorry for your severe and continuing pain…may I now retrieve my forceps, two clamps and three sponges that I may have left in your abdomen during surgery?" Providers may also wish to consult with their healthcare lawyers and risk management department about the scope of their apologies.
Having the provider work from a scripted apology can also avoid the provider inadvertently saying something that can be perceived as an admission of fault. Also, arranging to have a witness to the apology, such as a hospital administrator or someone from the provider's facility, may help to avoid a later misunderstanding as to the scope of the apology.
Perhaps the lobbyists for the medical providers and facilities will seek clarification from the Florida Legislature on the issue of protecting the apologies by medical professionals and facilities.
- Florida's apology law may or may not apply to healthcare providers in malpractice actions.
- Apologies should not include a statement of fault.
- Consider having a script for the apology and a witness.