 is an attorney in the Columbus, Ohio, office of Reminger Co, LPA. He specializes in malpractice defense and insurance litigation.

Kenton H. Steele, Esq

Unanticipated negative outcomes in medical care are unavoidable. When they occur, clinicians often want to apologize or express sympathy to patients and their families, even if the outcome was not their fault. At the same time, they are cognizant that such statements may be used against them in a medical malpractice suit and thus may choose to err on the side of caution and refrain from uttering anything that bears a resemblance to an apology.

However, apologies and shows of sympathy are important instances of human interaction. Especially in a doctor-patient relationship, the parties need to know that they can trust one another. Health care providers often have legal and ethical duties to disclose certain conditions to patients, even if the condition came about due to an error of theirs. Thus, they should not withhold information for fear that their statements may be used against them.

Fortunately, most US legislatures have recognized these competing interests and, in an attempt to strike a balance, have enacted statutes commonly referred to as apology laws.

These statutes limit the admissibility of apologetic statements made by medical professionals, allowing them to show sympathy or remorse and to directly express regret without fear of legal jeopardy.

Currently, 39 states and the District of Columbia have enacted full or partial apology laws. Full laws protect all admissions of fault, whereas partial laws protect only expressions of regret. Ohio’s apology law is an example of the former. It protects “all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, error, fault, or a general sense of benevolence.” Because this type of statute offers broad protection, it makes open communication possible.

Under partial apology laws, on the other hand, apologies that admit fault are admissible in court, and apologies that don’t are not. For instance, Nebraska’s law protects “any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence” but not those statements expressing “error” or “fault.” Statutes like Nebraska’s protect statements like “I’m sorry the surgery didn’t go as planned.” However, if a surgeon were to say, “I’m sorry the procedure didn’t go as planned because I cut a nerve,” the admission of cutting a nerve would be admissible.

Determining whether a state has a full or a partial law is the first, and easy, step. Determining what constitutes an “apology” or an expression of “condolence” or “benevolence” is far more difficult. It often involves complex statutory interpretation and is frequently litigated.

 defines it as “an admission of error or discourtesy accompanied by an expression of regret.” Thus, an apology both admits error and expresses regret. Even though they contain the word 

, partial apology laws do not fully protect an apology, as the word is defined, because they don’t exempt admissions of error. Similarly, interpreting what counts as an expression of “condolence,” “benevolence,” or any other characterization used in these laws may be difficult and need to be determined case by case.

Although it is important to connect with patients on a human level, physicians must be aware of the danger that expressing remorse or sympathy may pose. Apology laws seek to find a balance between honesty and liability. Because they vary significantly from state to state and can be further modified by court decisions, individuals who have questions about their scope and/or function should consult an attorney in their jurisdiction.

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Apology laws limit the admissibility of apologetic statements.

What physicians should know about apologizing to patients

At some point in nearly every practitioner’s career, they will be the recipient of some type of subpoena. Although being on the receiving end of a legal document stating that “you are hereby commanded” to respond in one form or another can be intimidating, knowing how to handle a subpoena response can alleviate some anxiety associated with being compelled to become involved in a legal proceeding. This column will explain the different types of subpoenas and best practices for responding to a subpoena.

Subpoenas have been a component of the common law system as far back as the 14th century. In the simplest terms, a subpoena is a writ issued by a court or government agency to compel a witness to provide information. There are 2 types of subpoenas:

1. Subpoena ad testificandum, a writ ordering a person to provide oral testimony in response to questions at a deposition or trial

2. Subpoena duces tecum, a writ ordering that a person or organization produce physical evidence, usually documents, to the requesting authority or party

What separates a subpoena from a simple request for information is that a subpoena carries the authority of the court or agency from which it is issued, so a failure to respond could lead to serious repercussions. However, in the context of requests for medical records or other information obtained while providing care and treatment, a failure to consider privacy and other concerns could also lead to problems. As such, giving careful thought to when and how to respond to a subpoena is critical.

What to know about responding to a subpoena

In the context of medical professionals, the most common type of subpoena is a request for the medical and billing records for a patient whom you have treated. Although these types of requests are common, reflexively producing the requested records can be a costly mistake. It is important to remember that there is generally an obligation to protect the confidentiality of information derived from the doctor-patient relationship. Moreover, the unauthorized release of a patient’s records can result in civil penalties or a possible disciplinary action from the relevant licensing board. As such, it is crucial that a proper release be obtained before the release of any patient records.

A common situation in which complications can arise is when the request for records is made on behalf of the parent of a patient who is a minor. Issues often occur in divorce and custody proceedings in which the parents of the minor seek to use medical records to gain some type of leverage in their dispute with the other parent. However, it is often the case that only one of the parents has authority to authorize the release of the minor’s information. As such, it is strongly advised that you consult with an attorney with any questions concerning responding to even a seemingly simple subpoena for records.

The other type of subpoena to be aware of is the above-referenced subpoena ad testificandum—a subpoena for giving oral testimony in response to live questioning from an attorney. Here again, contacting an attorney to represent you with responding to the subpoena is strongly advised. Moreover, many liability insurance policies provide coverage for assistance with subpoena responses. If you are uncertain whether you have this type of coverage, contacting your insurer now, before a subpoena is received, may help things run more smoothly when a subpoena is received. Although being subpoenaed based on having been a treating physician for a party to a lawsuit may seem like a relatively low-risk endeavor, consulting with an attorney and allowing that attorney to interface with the other counsel involved in the case can help reduce the risk of becoming further embroiled in any pending legal action. Finally, having counsel review the subpoena can be critical in determining whether the subpoena is even valid and whether any direct response is necessary.

Depending on the type of subpoena you’ve received and the type of information you are asked to provide, you may be entitled to compensation for the time and expense associated with responding. The standards for the type of compensation available vary significantly in different jurisdictions and based on the type of information sought through the subpoena. Here again, this is an issue likely best addressed by your attorney.

As with most legal issues, there is no one-size-fits-all advice for responding to subpoenas. Although some subpoenas are more straightforward than others, carefully considering what response, if any, is required is critical for avoiding serious headaches that can stem from the improper handling of a subpoena response. Even when subpoenas seem routine, it is generally wise to have your own counsel or in-house legal team involved in overseeing the process of responding.

Be sure to obtain a release before providing patient records.

You’ve received a subpoena: What should you do?

It is commonly known that most medical negligence cases are resolved through a mutually agreed settlement rather than through a jury verdict at trial. What may be less well known are the mechanics of how negotiated resolutions are reached. One of most common methods of resolving a medical negligence case is through a mediation. Mediation is a process in which the parties to a lawsuit meet with a mutually selected, or court-appointed, neutral person who assists the parties with negotiating the settlement of the case. This column will explain the role of mediation in medical malpractice litigation and explain why mediation is particularly useful in the context of this type of dispute.

In recent decades, as litigation costs continue to rise at ever-increasing rates, parties have sought less-expensive alternatives to traditional litigation. One of the most popular alternative dispute resolution methods is the use of mediation. The cost and time involved in conducting a mediation is far less than that of a traditional trial. Many states have enacted laws to support the use of the mediation process. In general, these laws recognize mediators as a distinct type of legal service provider and ensure statements made during a mediation are privileged and cannot be used at trial if the mediation is unsuccessful. Moreover, many courts throughout the country at the state and federal level now require parties participate in a good-faith effort to mediate their dispute before the case can proceed to a trial.

Although each mediation is different, and different mediators employ their own methods of bringing the parties to a mutually agreeable resolution, the typical structure of a mediation is that both parties will begin in a joint conference with the mediator. The mediator will then explain the purpose of the mediation to the parties and set the ground rules for how the mediation will proceed. These rules generally involve acting in good faith and attempting to consider the arguments and position of the opposing side. Sometimes the mediator will allow each side to make a brief statement during this general session, outlining what that party sees as the strengths of its case or the weaknesses in the opposing party’s position. After this joint session, the mediation typically breaks into private caucuses where each party speaks to the mediator separately. At this point, the mediator is in the role of conducting “shuttle diplomacy” in which messages are relayed between the different parties. The benefit of this approach is that the mediator can gauge what type of messaging will be most effective to bring the parties together. After multiple rounds of settlement offers, the mediator can typically determine whether a resolution is likely and what amount will be needed to settle the case or what additional messages must be conveyed to bring the case to a resolution.

The other benefit of a mediation in the medical malpractice context is that the parties are given an opportunity to communicate directly in a way not typically allowed during the litigation process. Once a lawsuit is filed, the attorneys representing the patient/plaintiff and the health care provider/defendant will make it clear to their clients that they should not communicate with anyone else about the case. It is generally advisable for parties to allow all their communications to flow through their attorney, as a misstatement could be used during trial to swing the case. However, in the context of a mediation, parties can communicate directly in a way that is not otherwise possible.

In a recent case involving an unusual injury to a patient from an unforeseen circumstance, the family of the patient and the care provider were staunchly dug into their positions on the case. However, the patient’s family ultimately decided to settle the case after learning that the way their loved one had suffered an injury had led the defendant health care entity to retrain its staff and modify internal policies. To this family, the monetary amount of the settlement was less important than closure made possible by learning that steps were taken to prevent a similar accident in the future. This type of nonmonetary consideration is something that is not otherwise obtainable through a lawsuit and is a defining positive of the use of mediation.

When a case proceeds through a trial, it is ultimately a judge and jury who determine the outcome of a case. In a mediation, the parties are given the opportunity to exercise control over how their case is decided. However, much like a trial, mediation presents an opportunity for parties to present their side of the dispute and be heard by a neutral party. Although mediation is not a panacea that can cure every aliment of the current medical malpractice litigation landscape, it is a useful tool for resolving difficult cases that would otherwise be left to a jury to decide.

This process is one of the most common methods of resolving medical negligence cases.

The role of mediation in medical malpractice litigation

The importance of timely and comprehensive documentation is a frequent topic of conversation in health care. It is easy to understand how an incomplete record of a patient’s conditions and medications can cause complications for a subsequent care provider. However, health care professionals may be less familiar with the legal consequences that can result from even a brief delay in completing a thorough record of a patient encounter.

Medical documentation creates a record of all information about a patient that a future care provider may need to make decisions about treatment. Accurate documentation is an essential step to ensuring the standard of care is met. A failure to document can cause adverse outcomes, which can in turn lead to malpractice claims. However, even when a failure to timely and thoroughly document a patient encounter does not directly affect subsequent care, it can still lead to a time-consuming and costly lawsuit.

A recent case involving a patient who went to an emergency department (ED) with a complaint of back pain is a prime example. The patient arrived at his local ED and explained that earlier in the day he had strained his back when he slammed on his brakes to avoid a low-speed car crash. After evaluation, the patient was given pain medication, which relieved the pain quickly. The patient’s vitals and a brief description of the encounter were charted shortly after the patient was sent home with instructions to follow up with his primary care doctor.

The ED doctor, in keeping with his typical practice, planned to use his handwritten notes to add a more detailed description of the encounter to the chart the following day. Unfortunately, a short while later the patient returned to the same hospital via ambulance after his wife found him unresponsive. Efforts to revive the patient were unsuccessful. It was subsequently determined that the patient’s back pain and death were caused by a dissecting thoracic aneurysm rather than muscle spasms from the car crash.

When the ED doctor who had originally seen the patient returned to the hospital for his shift the following day, he learned what had happened. The doctor then added the late entry narrative of the encounter to the chart, but a much different version of the encounter appeared. The doctor noted that he had been concerned about a possible thoracic aneurysm and had essentially begged the patient to undergo testing, which would have likely revealed the patient’s true condition. According to the doctor’s late entry, the patient’s concern about paying an insurance deductible and anxiety about being in the hospital made the patient insistent that he be released as soon as possible without any diagnostic testing.

When a lawsuit was filed by the patient’s wife, based on the alleged negligent failure to diagnose the aneurysm, the timing of the doctor’s late entry was uncovered. The late entry, combined with the wife’s testimony that her husband never had anxiety about hospitals and would not have been concerned about an insurance deductible, converted a standard failure to diagnose claim into a far more complicated claim. The new allegation was that the ED doctor had fabricated the additional details of the encounter to avoid liability for the patient’s death. The allegation of improper bolstering of the medical record created a very real possibility that the patient’s wife would be awarded millions of dollars in punitive damages. This led to the patient’s wife credibly seeking well over $10 million from the doctor and the hospital. After years of litigation, the case ended with a multimillion-dollar settlement.

Although the doctor documented the encounter, the untimeliness of the entry—and its possibly fabricated information—created more liability than if the record had not been updated. When he learned of the patient’s outcome, the ED doctor likely would have been better served by consulting with his hospital’s risk management team before making any change to the patient’s medical record. If this had been done, the outcome of the case likely would have been significantly different.

In today’s fast-paced environment, a practitioner’s time and attention are precious resources that should be put to best use. Although chart completion may seem like a chore that can be put off until later, this decision can backfire. Delaying the completion of a chart can result in spending weeks in a courtroom if a lawsuit arises. Even when the demands of providing patient care require that documentation be delayed, providers should be mindful when completing after-the-fact charting. When in doubt, consulting with risk managers can reduce the possibility of an allegation of improper modification of a patient’s records.

"Although chart completion may seem like a chore that can be put off until later, this decision can backfire," cautions Kenton H. Steele, Esq.

Kenton H. Steele, Esq

Articles

What physicians should know about apologizing to patients

You’ve received a subpoena: What should you do?

The role of mediation in medical malpractice litigation

Malpractice Consult: Delays in charting can lead to lawsuits, financial consequences