When something goes wrong in re: a person’s medical care – whether it’s a minor or a serious error – patients and their loved ones generally expect some kind of expression of sympathy or remorse (depending on the situation) from their doctor. Doctors have often hesitated to provide that out of fear that their words will be used against them in a malpractice claim.
Ironically, sometimes it’s this perceived lack of empathy that causes people to file a claim that they might not have for a minor issue that was ultimately resolved because they didn’t feel their doctor cared about or regretted what happened. This is in part why many states, including Florida, have enacted “apology laws” that limit the use of a doctor’s words against them for litigation purposes.
Some states have “total protection” apology laws. In these states, even if a doctor apologizes for their negligence or error, that apology alone can’t be used as evidence against them. Of course, those statements can be used to gather evidence that can be used. Therefore, doctors in these states are still careful about what they say – especially if they’ve done something wrong.
What does Florida law say?
“Partial protection” laws are more common. Florida law can be described that way. These laws protect doctors’ general expressions of sympathy for a bad outcome or complication from being used in a malpractice claim against them. However, actual apologies that include admissions of error or wrongdoing.
Florida law says, 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… made to that person or to the family of that 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 pursuant to this section.”
This is one important reason why it’s crucial for patients and family members to listen carefully when speaking with a doctor. No one should be afraid to ask them to slow down, repeat or speak in more understandable terms. It’s always important for patients and their loved ones to know what’s happening and thoroughly understand their options. First and foremost, because preserving one’s health is arguably among the most important pressures people face. And secondarily, doing so can prove invaluable if a medical malpractice claim is warranted.