US Pharm. 2008;33(10):68-72.

The simple apology, "I'm sorry," while well intended at the time a health practitioner realizes something went wrong and caused the patient a problem, may be taken as evidence of guilt in a malpractice case. Should it be so? Would it be better to hold evidence of sorrow after an adverse event as an indication of admitted liability, or should the courts refuse to admit words of apology as evidence of culpability? This question is at the heart of a debate of legislative proposals around the country.

Case Summary
The following case, although dating back to 1981, is appropriate to illustrate the principles under consideration. In a board of pharmacy complaint against Humphrey, a pharmacist, and Knob, a pharmacy apprentice, it was alleged that the apprentice improperly filled a prescription for the anticonvulsant drug mysoline for a 7-year-old patient with a dose of 250 mg instead of 50 mg.1

The patient's mother had presented the prescription to the pharmacy. The following day, Humphrey discovered the error. Knob refilled the prescription correctly and took the medication to the patient's home. During the transfer of the drug, Knob offered his apologies for the error and offered a refund to the father. The apprentice, who owned the pharmacy where the incident occurred and had been licensed since 1949, was alleged to have filled the prescription without the supervision of a pharmacist. The pharmacist, who had been licensed since 1974, was alleged to have allowed the dispensing of a prescription without his supervision.

During the board of pharmacy hearing on the allegations, the defendant Knob testified that in the 30 years he had been licensed, he had never once filled a prescription without the presence of a registered pharmacist. However, it was found that Knob committed the error while working independently of Humphrey, who was either not in the store when the incident occurred or was, at the very least, not in the immediate area of the pharmacy. Knob's license as a pharmacy apprentice was revoked, and Humphrey's pharmacist license was temporarily suspended.

The defendants appealed the decision of the board of pharmacy to the local trial court.2 The judge reversed the findings of the board and held that the evidence was sufficient to show that the pharmacist was present when the prescription in question was filled. The patient's mother had testified only that she had not seen the pharmacist and never claimed that he was not present when the incident occurred. The judge recognized that there were 10 people waiting for prescriptions at the time, and the physical layout of the pharmacy may have made it impossible for the patient's mother to actually see the pharmacist. There was evidence from Knob, Humphrey, and a store clerk that the pharmacist was present when the prescription was filled.

On appeal, the court held that the trial judge erred when he ruled that there was no evidence to rebut the claims of the parents that the pharmacist was not present when the prescription was filled. The father had testified at the original hearing that during a phone conversation with the pharmacist, Humphrey had admitted that he was either not in the store or was in the back room, so he never saw the prescription. The father also testified that the pharmacist apologized during the conversation, acknowledging there had been a mistake. Humphrey denied that he had said he was not present when the prescription was dispensed. He did not, however, deny his apology that a mistake had been made.

The court of appeals ruled that the board of pharmacy had considered the disputed facts and had concluded that Knob, Humphrey, and the store clerk were incorrect when they claimed that Humphrey was present when the prescription was filled. The court noted that this testimony was diametrically opposed to the father's claim that Humphrey said he was not present. The pharmacist's apology is noteworthy as an admission against his self-interest, which was properly considered by the board of pharmacy. Normally, an out-of-court statement like the one alleged here would be barred from evidence under the hearsay rule.3 The court of appeals noted that the board of pharmacy had weighed the credibility of the witnesses and concluded the parents were correct in their interpretations of the facts. The court of appeals also noted that it is not the function of courts to overturn issues of credibility determined by the administrative tribunal, as long as the credibility is consistent with the weight of evidence.

Analysis
The court noted that both the apprentice and the pharmacist had, at various times, issued apologies to the parents that a mistake had occurred. These alleged admissions must have been a major factor in determining that the parents were correct in their understanding of what had happed when the wrong dose of the drug was dispensed. The unresolved question is whether the outcome would have been different had no apologies been issued. If Knob and Humphrey had not expressed sorrow and the parents did not contradict the testimony, would the court have ruled differently about the credibility of the witnesses? Perhaps the more pressing question is exactly what weight should be given by a court to the alleged expressions of sorrow by a defendant in a disciplinary or malpractice proceeding?

Readers might recall another case summarized previously in this column.4 There, a pharmacist intern on rotation at a hospital was told to issue a written apology to a nurse who allegedly saw the intern take a picture of a patient.5 The intern issued the apology as requested, and the university subsequently used the apology as evidence of guilt when it dismissed the student from the pharmacy program. The student claimed that he was told the incident would be resolved when he issued the apology. In his lawsuit for wrongful termination, he claimed that the defendants could be held liable under a theory of promissory estoppel because the student justifiably relied on the defendants' indication that the incident would be over after the apology was made. The court held that a defendant cannot demand an apology and later rely on that apology as evidence of wrongdoing.

Saying "I'm sorry" ought to be a cherished fact of life that is encouraged when a practitioner recognizes something adverse happened during the rendering of care to a patient. Patients have the right to know what went wrong, and practitioners should have a duty to disclose errors without fear of repercussions. If the policy is that you could be liable for expressing sorrow, why would you ever apologize and then follow through to get the help the patient needs to manage, or at least mitigate, the harm caused by an error? If that were the policy, we would all try to stonewall patients when they ask what went wrong. This sets up a legal and moral quagmire. A practitioner may want to apologize but fears doing so could get him or her sued. Simply admitting sorrow for an adverse event should not translate into an inference of guilt.

Saying "I'm sorry" could mean different things depending on the context in which the apology is offered. It could mean, "I am sorry you experienced a problem," or it could mean, "I am sorry I caused your problem." These inferences have very different legal ramifications. The first means, "I am sorry for your distress, but in no way do I admit that my practice or procedure caused your pain." The second means, "I admit my negligence was the proximate cause for your damages." In a court of law, an admission against self-interest can be presumed to be an indication of culpability.6 If the first presumption is taken as fact, no liability would occur without evidence that the practitioner caused the problem, while the second interpretation eliminates the need for proof of causation because the practitioner admitted he or she caused the problem.

The dichotomies of inferences have caused many legislative bodies to rethink what kinds of evidence should be allowed in court. If "I'm sorry" is interpreted to mean "I'm guilty," the tenor and outcome of a trial is likely to be very different than if the jury never hears the apology testimony and cannot make inferences as to the meaning of the statement.

As of 2008, 34 states have passed laws banning the introduction of some forms of apologies.7,8 In 1986, Massachusetts was the first state to create a safe haven for those who offer apologies in the context of health care.9 Texas was the second state to enact similar legislation in 1999. The laws vary in intent and purpose. In Arizona, Connecticut, Idaho, Maine, and 11 other states, health care practitioners can safely apologize to or commiserate with patients or their families about an undesirable or unexpected outcome without fear of repercussion. A law in Vermont exempts only oral statements of regret or apology, not written ones. Illinois gives doctors a 72-hour window to safely apologize after they learn about the cause of a medical mishap. California's statute, typical of many other state approaches to the issue, only applies to partial apologies, such as "I'm sorry about your pain."10,11 Under the statute, this statement is not admissible. However, an admission of fault, such as "I'm sorry I caused your pain," would be admissible.

In 2006, Senators Barack Obama and Hillary Clinton (before they faced off for the Democratic Presidential nomination) sponsored the National Medical Error Disclosure and Compensation (MEDIC) bill that would require early disclosure of a mistake and require an offer to pay for damages.12 The concept is known as full disclosure/early offer or Sorry Works.13 Although the measure did not pass into law, there are several entities that believe the approach works better, at least compared to the current state of evidentiary inquiries by a court.

The U.S. Department of Veterans Affairs' (VA) Veterans Health Administration, as well as a number of hospital systems and insurers across the nation, is among the entities that have adopted variations of the policy.14 Two states--Illinois and Vermont--have recently passed legislation providing for pilot programs to test the efficacy of full disclosure/early offer policies. The organizations participating in the program include the University of Michigan Health System in Ann Arbor and Baltimore's Johns Hopkins Medicine. Insurers include COPIC Insurance Company of Denver, Colorado, and West Virginia Mutual Insurance Co. of Charleston, West Virginia. In a pilot program started at the VA center in Lexington, Illinois, litigation costs were at an all-time low compared to the other 36 comparable VA hospitals not using the early disclosure policy.

The University of Michigan adopted the policy in 2002.15 A spokesperson for the university, Chief Risk Officer Richard Boothman, said, "This is not about making apologies, it's about being honest. Transparency, honesty, and open discussion all make sense to intercept patient claims that become litigation, because once they become litigation, they take on a life of their own." It is also about efficient and economical management of litigation costs. In 2001, the University of Michigan had 262 total claims for compensation as a result of questionable care. By 2006, the number of claims had decreased to less than 100. The claims processing time during that same period fell from 20.3 months to 9.5 months. The amount the university spent on defense of claims fell by 50%. Mr. Boothman testified in front of the U.S. Senate Committee on Health, Education, Labor, and Pensions in June 2006 to the effect that every year since the program went into effect, malpractice claims have decreased even though the quantity of clinical services provided over the same period increased dramatically.

Allina Hospitals and Clinics, a nonprofit network based in Minneapolis, started an early disclosure policy in 2001.16 Allina's program involves a philosophy similar to the University of Michigan: straight talk about mistakes and compensation offers, a vigorous defense of cases in which it believes no mistake has been made, and using lessons learned to improve patient care. Taking a slightly different approach, Johns Hopkins' policy is to make an early disclosure to patients, but admissions of guilt and expressions of sorrow are not part of the disclosure policy.

Conclusion
Pharmacists should understand the ramifications of making an apology to patients or caregivers in advance of an incident warranting an apology. Human nature and morals suggest that offering an apology in appropriate circumstances is the best policy. However, pharmacists are well advised to check the law in the relevant jurisdiction to determine how an apology would be treated in a lawsuit alleging malpractice.

REFERENCES
1. Knob v. Department of Registration and Education, 96 Ill App 3d 1067, 421 NE 2d 1091, 1981 Ill App Lexis 2728 (1981).
2. See note 1, supra.
3. Hearsay is defined by Federal Rules of Evidence §801 as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
4. Vivian JC. Rights of pharmacy interns. US Pharm. 2008;33(4):67-70.
5. Strango v. Hammond, Slip Op No H-07-2902 (February 21, 2008), USDC SD Texas, 2008 U.S. Dist. Lexis 12189.
6. Van Dusen V, Spies A. Professional apology: dilemma or opportunity? Am J Pharm Ed. 2006;67:article 114. www.ajpe.org/view.asp?art=aj6704114&pdf=yes. Accessed July 27, 2008.
7. Van Dusen V. Legal and practical aspects of the professional's apology. Pharmacy Times. February 1, 2008. https://secure.pharmacytimes.com/lessons/200802-01.asp. Accessed July 30, 2008.
8. Henry R. More states weigh apology options for doctors leery of lawsuits. April 12, 2007. www.law.com/jsp/law/LawArticleFriendly.jsp?id=900005554603. Accessed July 26, 2008.
9. See note 6, supra.
10. California Evidence Code, Division 9, Chapter 3, §1160(a). http://law.justia.com/california/codes/evid/1150-1160.html. Accessed July 27, 2008.
11. See notes 5 and 6, supra.
12. Geier P. Emerging med-mal strategy: "I'm sorry." July 24, 2006. www.law.com/jsp/law/LawArticleFriendly.jsp?id=900005550355. Accessed July 26, 2008.
13. Sorry Works! Coalition. www.sorryworks.net. Accessed July 25, 2008.
14. Taft L. Apology and medical mistake: opportunity or foil? Ann Health Law. 2005;14:55-94.
15. See note 14, supra.
16. See note 14, supra.

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