Malpractice Case: Physicians Should Be Able to Say 'I'm Sorry'

Gordon T. Ownby

Disclosures

June 20, 2018

Medscape Editor's Key Points:

  • California's "I'm Sorry Law" says that expressing sympathy to a patient or family for the pain, suffering, or death of a patient is inadmissible as evidence of an admission of liability in a civil action.

  • The intention of the bill was to allow parties greater leeway in expressing regret for their role in an accident, and for expressions of sympathy to become part of the resolution process.

  • An act of contrition has tremendous value; sometimes a simple human expression can mean more than a legal victory.

The Case

Our civil justice system became a little more civil when California passed its "I'm Sorry Law," a statute that provides a way for physicians to express sympathy for an injury to a patient.

Since 2001, California law says that "statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action."

The bill's author, the late Assemblyman Louis Papan, hoped that his law would allow parties greater leeway in expressing regret for the consequences of their role in an accident. Papan even hoped that such expressions could become part of the resolution process. "An act of contrition, if only symbolic, has tremendous value," Papan said after his bill was signed into law.

Dr GS, a general surgeon, was called in to place a central line in a 75-year-old man suffering from a gangrenous foot. The patient's primary care physician wanted to administer a long-term course of IV antibiotics for this man with diabetes, hypertension, coronary artery disease, congestive heart failure, and arrhythmia.

The day following Dr GS's placement of the line, the patient engaged in his usual daily activities. The antibiotics arrived late that evening, so the patient and his wife decided to wait until the morning to begin the therapy.

The next morning, the patient awoke at 7:30 AM and had breakfast. After the meal, according to his wife, the patient looked "a little green." The patient's temperature was 87.6° and he said that the left side of his upper chest—the area where the line had been placed—was burning. A bit later, while reclining, the patient said the burning sensation had returned. He took a deep breath and told his wife that he loved her. Shortly thereafter, the patient's wife noticed bluish coloration rise from his neck to his face. When the paramedics arrived, they were unable to revive the patient, who was pronounced dead just after 10:00 that morning.

The patient's wife sued Dr GS for the wrongful death of her husband.

As the case progressed, it became clear that the plaintiff's attorney could not get an expert to directly support his theory that an improper placement of the subclavian catheter caused an atrial fibrillation and myocardial infarction. The best he could get his expert to state in a signed declaration was that he "could not rule out" that Dr GS's placement of the catheter contributed to the patient's death.

As the case moved toward trial, the patient's widow finally agreed to dismiss the action if Dr GS would send her a letter of sympathy over the death of her husband.

The contents of Dr GS's letter will remain private, but the widow's dismissal of her lawsuit showed that sometimes a simple human expression can mean more than a legal victory.

This case comes from Medicine on Trial, originally published by Cooperative of American Physicians, Inc., to provide risk management lessons from litigated case histories.

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