The evidence on whether an apology from a doctor for a mistake or misdiagnosis minimizes the chances of a patient or family taking legal action is mixed. That decision is often based on several factors, like how serious the resulting harm was and how egregious the error was.
Nonetheless, most states, including Tennessee, have enacted “apology laws” that provide at least some immunity to doctors from having their words used against them if they express sympathy or even apologize for a bad outcome.
Some states prevent both expressions of sympathy as well as direct apologies from being used as evidence of malpractice in civil actions (although they can be used if criminal charges are brought). Other states still allow direct apologies for an error to be used as evidence, but not more generic expressions of regret or sympathy.
What does the Tennessee statute say?
Tennessee is one of the states that takes a middle-ground approach. According to the “Expressions of Sympathy or Benevolence” statute, “That portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person…and made to such person or to the family of such person shall be inadmissible as evidence of an admission of liability in a civil action.”
It adds, “A statement of fault that is part of, or in addition to, any of the above shall not be inadmissible….” That means if a doctor or other medical professional directly admits they did something wrong or failed to do something, and the mistake caused harm, that admission of fault in the apology can still be used as evidence. If a doctor simply says something like, “I’m sorry your condition has worsened and that you’re in so much pain,” that would likely be considered an expression of sympathy.
Malpractice cases are often built on other evidence
This doesn’t mean there’s no chance for a malpractice suit. Most doctors don’t admit fault under any circumstances, so most of these cases are built on evidence like medical records and testimony from others involved in a patient’s treatment as well as testimony from independent expert witnesses.
Nonetheless, it’s crucial to listen and take notes whenever you are speaking with your or a loved one’s doctor. Even without an apology, what they say can lead to other evidence. Getting sound legal guidance is a good first step.