Bill Would Exclude Apology-Based Admission of Guilt from Medical Malpractice Trials


ANNAPOLIS (Feb. 7, 2010) - Two Maryland senators re-introduced a bill Tuesday that would exclude any health professional's apology from medical malpractice trials.

Current law says that no statement of regret or apology by a doctor or other health staff can be used in a civil action. However, if there is an admission of guilt in conjunction with an apology it can be used in court.

The legislation Sens. C. Anthony Muse, D- Prince George's, and James Brochin, D- Baltimore County, sponsored would take out the existing exception.

"If we can encourage (open communication) through legislation and ... let a doctor not be afraid to say, 'I made a mistake. I wish I wouldn't have done this and I did and I'm sorry,'" said Brochin, "then 90 percent of the people may still sue, but maybe that other 10 percent ... will work it out another way than by going to court."

Health professionals are afraid of being taken advantage of, said Joseph Schwartz III, who represented the Maryland State Medical Society in the hearing.

Under current law, if the health professional is actually at fault and admits guilt, a patient can use that admission against them in court.

Medical negligence trial lawyer George Tolley III, said he believes doctors should be honest with patients.

"(Professionals ask) the question 'well then what happens if the family says well what went wrong, what's the doctor supposed to say,'" said Tolley, representing the American Association for Justice. "And I may sound naive when I suggest that the doctor should tell the truth."

Panelists presenting to the Senate Judicial Proceedings committee said statements such as, "I'm really sorry I cut off the wrong leg" would be inadmissible in court if stated to a patient or family member after the bill was passed.

Through medical records and physical evidence, like the missing leg, the doctor could still be held responsible in court without the initial statements, Schwartz said.

"Full and unfettered communication between a doctor and his or her patient results in more satisfaction and less lawsuits and legal fees," the Maryland State Medical Society's written testimony stated.

A medical malpractice attorney agreed that open communication between doctors and patients is important, but said that current law does enough to protect the professional.

"I think there's a good policy in encouraging doctors to apologize for a bad outcome and to encourage them to express regret," said Andrew Slutkin, partner at Silverman Thompson Slutkin & White. "But when you shield from evidence other statements like, 'this is why you're paralyzed' you really are playing a dangerous game."

The bill was introduced by six delegates in 2008 and Muse sponsored the same bill in 2009.

Capital News Service contributed to this report.

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