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Are Doctors Liable If They Say, “I’m Sorry”?

This week, the Daily Press reports that the Virginia House of Delegates passed a bill that outlines what doctors and medical professionals can and can't say when talking to their patients and patients' families about their medical conditions. The law, which passed unanimously and is moving on for consideration in the state senate, confronts the problem the faces many doctors and nurses: can they say, "I'm sorry," without admitting fault and opening the door to a medical malpractice suit or wrongful death suit?

As Virginia law stands now, words of sympathy and expressions of empathy have are not admissible as evidence in medical malpractice cases or wrongful death suits - it is not currently seen as an admission of liability, neglect, or guilt. However, although the doctors were lawfully allowed to put forth a "general sense of benevolence," they were not allowed to apologize or simply say that they were sorry that the health care outcome was unanticipated or not ideal.

The bill, which was put forth by Newport News house delegate Phil Hamilton, expands the current laws by adding that doctors and nurses can communicate commiseration, condolences, apologies, and compassion without worrying that their words will be used against them in court down the road. Other states have already put similar laws in the books.

The effect on medical malpractice lawsuits will probably be small - a doctor saying, "I'm sorry" is probably not the strongest piece of evidence in a medical malpractice or surgical error case, and that piece of evidence will probably not make or break a case. As always, the strongest evidence will come from medical records, witnesses, and other testimony.

Lawmakers hope that this law will make doctors free to show their compassion and condolences where before they might have been defensive about what went wrong medically and why. Improved communication and openness should benefit both doctor, patients, and patients' families.

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