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Can a Doctor’s Apology be Used as Evidence

May 18, 2015 | Medical Malpractice

You are in a New York hospital recuperating and you feel the doctor who treated you has caused you significant harm. If this doctor now comes and apologizes to you, then does that wash his hands of any legal obligations that could involve compensation for you, for the injuries and losses you have suffered?

What is a "No Apology" State?

Firstly, New York is not a "no apology" state. There are certain states in the country that allows a doctor a clean pass that if he apologizes to the patient, then the patient cannot use that apology as proof of the doctor admitting responsibility of causing the injury. However, New York does not participate in this doctrine.

Apology does not Absolve the Doctor of His Wrongdoing

Hence, can a doctor use his apology to wash his hands off any legal obligations whatsoever? The answer is no, he cannot do that. The defense attorney, on the other hand, is going to take that apology and turn it around, to try, and generate sympathy for the doctor from the jury. How does he do that? The lawyer will use that apology to try and show to the jury that this doctor accepted the fact that he did something careless, and that he violated the basic standards of medical care.

The doctor felt so bad about it that he came and apologized to the patient. The defense lawyer will try to show to the jury that this doctor is sympathetic, that this doctor has a heart and is very caring. The doctor apologized to the patient not for the fact that he caused the patient harm, but merely because of the fact that this patient suffered a complication, and now has to recuperate in the hospital. The doctor was apologetic because the patient now has to undergo all these additional procedures.

Turning the Apology Around

Hence, the doctor is not apologizing for doing something wrong, or because he has violated the basic standards of medical care. The doctor walked into the patient’s room and said, "I am so sorry this happened. Let me see how we can get you better". The defense lawyer has thus totally turned the apology around and he will try to generate sympathy for his client with it. He will twist the apology around to get the jury to believe that the doctor is sympathetic and empathetic, and an altruistic and ethical person, who took the pains to go and apologize to his patient.

Based on this understanding, in New York if a doctor has apologized to the patient, the plaintiff’s lawyer can present it as proof of the doctor’s carelessness. However, the defense lawyer will have a strategy to turn this around since he knows that his client has made a mistake by apologizing. The defense lawyer will present the apology not as a fact of owning up a mistake but rather the doctor being sympathetic to the condition of the patient. In New York, an apology by the doctor can be presented as proof of his wrongdoing; however, the defense can turn this apology around to generate sympathy from the jury.