Why a doctor’s apology isn’t an open-and-shut malpractice case

On Behalf of | Jan 28, 2024 | Medical Malpractice |

For those who have chosen a profession that’s supposed to be about compassion and healing, doctors often hesitate to apologize when something goes wrong – or sometimes even to express any kind of sympathy. That’s how deeply ingrained the fear of malpractice claims and other sanctions is in so many medical professionals.

Most states have enacted laws in recent years that give doctors and other health care providers the freedom to apologize – or at least express some kind of remorse – when something goes wrong without that being used against them in a malpractice claim. 

State laws vary in just what kinds of expressions by a doctor can (and can’t) be used against them. West Virginia is among those states that give doctors full discretion to apologize for a bad outcome without that apology itself being admissible as evidence of malpractice.

What does West Virginia law say?

According to West Virginia’s law, “No statement, affirmation, gesture or conduct of a healthcare provider who provided healthcare services to a patient, expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence, to the patient, a relative of the patient or a representative of the patient and which relate to the discomfort, pain, suffering, injury or death of the patient shall be admissible as evidence of an admission of liability…in any civil action….”

Nothing in the law, however, prevents patients and family from seeking to hold a doctor or other medical provider liable for harm. They just have to get their evidence elsewhere. Medical records, witness statements and testimony from “expert witnesses” regarding how treatment, diagnosis and procedures should go can all be used to present a solid case.  

A doctor’s apology can actually lead patients to that evidence. That’s why it’s crucial to listen carefully. It’s likely they’ll still be careful about what they say. 

Some cases of malpractice are easier to prove than others. It’s a complicated area of the law. A good first step if you believe you or a loved one has suffered harm from a medical provider’s actions or negligence is to seek experienced legal guidance.