Being A Physician Means Being Able to Say “I’m Sorry”

Our civil justice system became a little more civil with passage of California’s “I’m Sorry Law”—a statute that provides a way for physicians to express sympathy for an injury to a patient.

Since 2001, California law has allowed that “statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action.” The bill’s author, former Assemblyman Louis Papan, hoped that his law would allow parties greater leeway in expressing regret for the consequences of their role in an accident. Papan even hoped that such expressions could become part of the resolution process. “An act of contrition, if only symbolic, has tremendous value,” Papan said after his bill was signed into law.

Sometimes such an expression is all that is needed by a patient’s family to finally bring a lawsuit to an end.

Dr. GS, a general surgeon, was called in to place a central line in a 75-year-old man suffering from a gangrenous foot. The patient’s primary care physician wanted to administer a long-term course of IV antibiotics for this man with diabetes, hypertension, coronary artery disease, congestive heart failure, and arrythmias.

The day following Dr. GS’s placement of the line, the patient engaged in his usual daily activities. The antibiotics arrived late that evening, so the patient and his wife decided to wait until the morning to begin the therapy.

The next morning, the patient awoke at 7:30 and had breakfast. After the meal, according to his wife, the patient looked “a little green.” The patient’s temperature was 87.6 and he said that the left side of his upper chest was burning – the area where the line had been placed. A bit later, while reclining, the patient said the burning sensation had returned. He took a deep breath and told his wife that he loved her. Shortly thereafter, the patient’s wife noticed bluish coloration rise from his neck to his face. When the paramedics arrived, they were unable to revive the patient, who was pronounced dead just after 10:00 that morning.

The patient’s wife sued Dr. GS for the wrongful death of her husband.

As the case progressed, it became clear that the plaintiff’s attorney could not get an expert to directly support his theory that an improper placement of the subclavian catheter caused an atrial fibrillation and myocardial infarction. The best he could get his expert to state in a signed declaration was that he “could not rule out” that Dr. GS’s placement of the catheter contributed to the patient’s death.

As the case moved toward trial, the patient’s widow finally agreed to dismiss the action if Dr. GS would send her a letter of sympathy over the death of her husband.

We’ll keep the contents of Dr. GS’s letter private, but if such letters can show people that human expressions can achieve more than litigation, then California’s “I’m Sorry Law” is landmark legislation.

Gordon Ownby is general counsel at CAP-MPT.Comments on Case of the Month should be directed to gownby@cap-mpt.com