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

On Behalf of | Jan 23, 2024 | Medical Malpractice |

There was a time when patients and families would be unlikely to hear anything resembling an apology from a doctor for making a mistake, misdiagnosis or engaging in any other type of negligence – no matter how minor or serious the harm was. Ironically, while they might have feared they’d just be providing evidence for a malpractice suit by apologizing, by not expressing any remorse, some doctors likely incentivized people to take legal action they otherwise wouldn’t have – at least if any resulting harm was relatively minor.

In an effort to give doctors the freedom to express basic human feelings of sympathy when something goes wrong, many states have enacted “apology laws” that exempts such expressions from being used against them in a legal action. A number of states still allow outright apologies for errors or negligence to be used, but not general expressions of sympathy.

What does West Virginia law say?

Some states, like West Virginia, give broader cover to doctors. Even direct apologies can’t be used as evidence. Specifically, under West Virginia law, “No statement, affirmation, gesture or conduct of a healthcare provider…expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence…which relate to the discomfort, pain, suffering, injury or death of the patient shall be admissible as evidence…in any civil action….”

Medical providers can still be held liable for malpractice

This law, by no means, prevents patients or surviving loved ones from holding doctors and other health care providers liable for errors or negligence that cause harm or death. While a doctor’s own apologetic words can’t be used as evidence, many other things can. In fact, if a doctor feels freer to talk about what happened, that reality may help potential plaintiffs find evidence in medical records, point them to witnesses and more.

It’s important to listen carefully to what a doctor has to say about what went wrong and take notes. Then, it’s crucial to act quickly before evidence disappears or gets rewritten and witness memories “fade.” Seeking experienced legal guidance is a good first step for patients who have been alerted to the fact that something has gone wrong with regard to their care.