Is it ever safe to say “I’m sorry”?

Healthcare providers walk a fine line. They probably chose this challenging career because they are devoted to caring for others. But in today’s litigious climate, using certain words to demonstrate empathy might land them in hot water.

For example, “I’m sorry.” If healthcare providers apologize to patients or their family members — even to express regret or sympathy when a complication arises from medical treatment — it could be introduced at trial.

In some instances, plaintiffs attempt to use this heartfelt expression as evidence of liability or fault by the physician. But is an apology by a healthcare provider an admission of fault?

Under Maryland law, it depends on how it is worded.

By statute, expressions of apology or regret by healthcare providers are inadmissible at trial. Admissions of fault or liability, however, are admissible.[1]

There are no Maryland cases interpreting this statute. In an unreported Delaware opinion, the Court distinguished between an apology and an admission of fault.[2]

The Delaware Court found the physician’s specific references to a “miscalculation,” “mistake,” or cutting in the “wrong place” were admissible. The Court determined these statements were not intended simply to console or offer sympathy to the plaintiff, but were, rather, direct admissions of fault or liability. By contrast, the Delaware Court interpreted the statement, “I am so sorry,” to be inadmissible, as it constituted an “ordinary statement of apology.”

Bottom Line: Although Maryland Courts have not distinguished between an expression of regret and an admission of fault, we counsel our clients that it’s okay to recognize a complication and to be compassionate. A simple “I’m sorry you suffered this complication” (or similar expression of sympathy) is appropriate and, in our view, not an admission of fault or liability. We make it our practice to file pre-trial motions in limine to ensure similar empathetic language is not used improperly as an admission of fault.

If you have any questions about an apology statute or words that may be used without implicating liability or admission of fault, please contact us. We’re here to help.

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[1] Md. Code Ann., Cts. & Jud. Proc. § 10-920.
 
[2] Honey v. Bayhealth Med. Ctr., Inc., CV K13C-05-018 RBY, 2015 WL 310660, at *5 (Del. Super. Ct. Jan. 23, 2015).

Saamia Dasti

Saamia Dasti

Saamia Dasti is a trial attorney at Waranch & Brown with extensive litigation experience. Her practice is focused on the defense of physicians, hospitals, research institutions and product manufacturers. Ms. Dasti has tried cases to verdict in Maryland State and Federal courts and the District of Columbia. She also has experience in Maryland's appellate courts and the U.S. Court of Appeals for the Fourth Circuit.
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