Doctors have traditionally been afraid to apologize or even express any sympathy to patients and their families when something goes wrong. They’ve often been cautioned by hospital legal counsel that while this might make them feel better, their words can be used against them in a potential malpractice suit.
That has changed in recent years. Many state lawmakers, realizing that expressions of sympathy can help everyone feel better and perhaps even prevent litigation when no serious or lasting harm has been done, have enacted “apology laws.” These laws are written differently in each state.
Some state laws prohibit the use of any expressions of sympathy or even outright apologies from being used as evidence in a civil action. (None of the laws apply to criminal actions.) 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 Florida law say?
Florida’s law is in that latter category. It states in part: “The 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…shall be inadmissible as evidence in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall be admissible….”
For example, if a doctor says, “I wish we’d been able to pinpoint what was causing your pain sooner,” that alone probably couldn’t be used against them. If they said, “I was on vacation in Italy when your lab reports came in, and I never got around to reading them,” that’s likely another matter.
Other evidence is still admissible
A doctor’s words can always lead patients to evidence that most certainly can be used to bring a medical malpractice claim, even if the words themselves may not be admissible as evidence. That’s why it’s crucial for patients and family members to listen carefully to everything that the doctor and other members of their medical team say.
It’s also wise to seek legal guidance as soon as possible if you were harmed by medical error or negligence. This can help you determine whether you have a case and, if so, help you hold all appropriate parties accountable.