Can a doctor’s apology be used as evidence of malpractice?

You may have heard that some states have “apology laws” that give doctors and other medical providers some legal protection if they express remorse or even directly apologize for a mistake. 

These have been enacted largely to reduce malpractice claims, since apologies can help patients and families feel better — at least when doctors make a relatively minor, reparable error. That’s because they limit the ability to use apologies as evidence in a medical malpractice claim.

This isn’t a new idea. Nearly 20 years ago, when they were both U.S. senators, Hillary Clinton and Barack Obama teamed up to advocate for a federal apology law called the National Medical Error Disclosure and Compensation (MEDiC) Act. 

New Jersey has no apology law – at least yet

That didn’t pass, so the U.S. currently has a patchwork of apology laws. Some states, including New Jersey (as well as New York), don’t have one. Although efforts have been made in the state legislature, they haven’t succeeded. 

That means that if a doctor expresses remorse or says they’re sorry for a bad outcome, it can be used against them. Of course, a general expression of sympathy on its own isn’t going to be enough to prove malpractice. The absence of an apology law, however, means that doctors will typically be careful to watch their words.

What can be used as evidence?

Evidence of malpractice typically involves medical records, witness statements, possibly testimony from an expert witness on how a condition should have been treated and more. That doesn’t mean that patients and their family shouldn’t listen carefully, ask questions and take notes when any medical provider is explaining what went wrong. They may admit to a mistake (or tell you about someone else’s.)

If you believe that you or a loved one has been the victim of malpractice, it’s wise to get legal guidance sooner rather than later. The longer you wait, the more likely it is that records could disappear or be changed and that people’s memories will fade. A good first step is to determine whether you have a case.

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