PUBLICATIONS
Sacramento California Mediation

In a perfect world, there is open communication between patient and physician. When the patient has suffered a complication that is or might be the result of a medical error, most physicians want to tell the patient but many fear reprisal. For this reason, several state legislatures have been considering legislation that would allow apologies by health care providers by preventing their apologies from being admitted into evidence for any purpose. In 2003, the State of Colorado enacted a statute that protects medical apologies. The State of Oregon also has a similar law.

In 2007, the American Bar Association’s House of Delegates unanimously passed a resolution encouraging medical provider apology legislation. The resolution states as follows:

RESOLVED, that the American Bar Association supports enactment of state and territorial legislation that provides that all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence which relate only to the pain, suffering or death of a person which are made by a medical provider or the staff of a medical provider to that person, that person’s family, representative or friend, as a result of the unanticipated outcome of medical care, shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest for any purpose in a civil action for medical negligence.

In California, evidence that a person has in compromise or from humanitarian motives, offered or promised to furnish money, or any other thing, to another who has sustained injury is not admissible to prove liability. The statute falls short of allowing complete communication and full disclosure between patient and physician. In fact, admissions of error are admissible in evidence.

California law does protect the confidentiality of statements made in mediation. Evidence Code Section 1119 provides that all communications, negotiations and settlement discussions by and between participants in the course of a mediation shall remain confidential. No evidence of anything said in mediation is admissible or subject to discovery in any arbitration, administrative adjudication or civil action or other non criminal proceeding.

Mediation provides a way for the health care provider to say “I am sorry” without fear of being harmed in the future by the apology. Parties are encouraged, in mediation, to communicate openly with one another, to heal wounds and to regain trust.

We look forward to the day when the apologies can be made at the time of the event, when the patient most needs an open and honest communication with his or her physician.

(916) 340-1300
ptweedy@tweedyadr.com