"I'm sorry" as evidence? Why the Federal Rules of Evidence should include a new specialized relevance rule to protect physicians.
As the trial approaches, an interesting question could arise as to the legal consequences of Dr. Paul's apology to Mrs. Lapinski. Could it be used as evidence of Dr. Paul's negligence, despite the fact that it could just as likely have been nothing more than an expression of empathy intended to comfort the grieving family? The use of apologies as evidence of liability is a recurring issue in medical malpractice litigation. The Federal Rules of Evidence currently contain no provision barring physicians' apologies (9) to patients from being admitted as evidence of fault. Whether state law offers any protection varies from jurisdiction to jurisdiction, and even where some degree of protection is offered, whether those protections apply depends on the content of the apology in question.
This article argues that such protection is necessary, and because the underlying policy of protecting apologies is consistent with the rationales supporting the specialized relevance rules that are already included in the Federal Rules of Evidence, an additional rule should be added to govern the admissibility of physicians' apologies. Because many states' evidence rules are modeled after the Federal Rules, such an addition would be a persuasive and effective means of demonstrating the federal government's commitment to fostering the doctor-patient relationship--and of encouraging the states to do the same.
I. The Federal Rules of Evidence and the Specialized Relevance Rules
A. The Role of the Federal Rules of Evidence
The Federal Rules of Evidence, which took effect on June 1, 1975, (10) were the product of a thirteen-year process initiated by then-Chief Justice Earl Warren to draft and enact uniform rules of evidence for use by the federal courts. (11) Rather than attempting to codify the federal statutory and judge-made law of evidence that existed at the time, the drafters of the Rules instead looked for inspiration to the states' efforts to codify their own evidentiary rules. (12) With the enactment of the Federal Rules of Evidence the federal government again took the lead; by 2003, forty-two states had statutory evidence codes or court rules modeled after the Federal Rules. (13)
States are not obligated to follow the Federal Rules. (14) Rather, they may deviate as much or as little as they see fit. California, for example, uses its own evidence code, which pre-dates the Rules. (15) Pennsylvania's Rules of Evidence also deviate in some respects from the Federal Rules in pursuit of "the guiding principle" of "preservfing] the Pennsylvania law of evidence." (16) Perhaps the most noteworthy of these departures is Pennsylvania's rejection of the federal Daubert (17) standard for the admissibility of expert evidence in favor of the pre-Rules Frye (18) "general acceptance" standard. (19) Still, the most recent revision of the Pennsylvania rule governing the admissibility of expert testimony bears a strong resemblance to the language and organizational structure of the corresponding Federal Rule. (20) This example illustrates that, while the states can and do depart from the Federal Rules at times, the Federal Rules nonetheless play an influential role in serving as a model for the law of evidence in the great majority of states, even when those states decline to adopt the federal Rules to the letter.
B. The Specialized Relevance Rules
The Federal Rules of Evidence contain five "specialized relevance rules" designed to account for the drafters' determination that the evidence they govern fails a Rule 403 (21) weighing test; that is, as a matter of law, the danger of unfair prejudice substantially outweighs the evidence's probative value. (22) Rule 407 (23) bars the use of subsequent remedial measures to prove negligence or culpable conduct; (24) Rule 408 (25) bars the use of compromise, attempts to do so, and statements or conduct during negotiations to prove liability or the lack thereof; and Rule 40926 bars the use of the payment of medical costs or an offer to do so as proof of liability. Rule 410 (27) generally bars evidence of a withdrawn guilty plea, a nolo contendere plea, and statements in the course of plea proceedings or in plea discussions with prosecutors from being used against a defendant. (28) The last of the five, Rule 411, (29) bars the use of a party's liability insurance--or the absence of it--to prove negligence or other wrongful conduct. (30)
In addition to Rule 403 concerns, the other common thread among the specialized relevance rules is that they are all founded upon rationales rooted in public policy. (31) Rule 407, which deals with subsequent remedial measures, is intended to encourage these measures by ensuring that taking them will not adversely affect the litigant. (32) Rule 408 reduces the likelihood of adverse evidence disincentivizing compromises and settlement negotiations, and Rule 409 likewise bars evidence of the payment of medical expenses from being used to establish liability because allowing it would likely discourage such assistance. (33) Rule 410 is designed to promote plea bargaining, and Rule 411, by excluding evidence of insurance or the lack thereof to prove liability, is designed to encourage insurance and to prevent the opponent of an insured party from receiving a windfall. (34) At their most general level, the specialized relevance rules thus discourage bad behavior, incentivize good behavior, and foster and protect the positive side of human nature. (35)
II. The Need for a New Specialized Relevance Rule to Govern Physician Apologies
Physician apologies (36) to patients who have experienced a negative outcome demand treatment similar to that offered by the specialized relevance rules for substantially similar reasons. A dilemma arises because, where the law offers no protection, such an apology has the potential to be used as an admission by the apologizee to help prove liability against the apologizer. (37) One need not be a sociologist armed with endless data to foresee the potential pitfalls of this approach. Not surprisingly, "the tendency to admit apologies into evidence seems to deter the practice of apologizing." (38)
This "chilling effect" on physician apologies damages the doctor-patient relationship by creating mistrust or precluding communication altogether, and the anger and resentment that often follow increase the likelihood of bitter and protracted litigation. The chilling effect also prevents physicians and patients from reaping the benefits of physician apologies. Empirical studies have consistently demonstrated a reduction in litigation in terms of both the number of claims filed and the speed and amount of settlements when physicians, other medical professionals, and hospital administrators apologize for adverse patient outcomes. (39) Hospitals that have instituted full-disclosure apology policies have also enjoyed the less tangible, but valuable, benefits of positive publicity, customer satisfaction, and goodwill. (40)
The tension between the lure of these benefits and the risks that apologies entail has led to the current state of affairs: a stasis point colloquially known as the "non-apology apology"--"a statement that has the form of an apology but does not express the expected contrition." (41) One commentator incisively illustrated the problem with this type of apology by asking a rhetorical question: "Can we sincerely express remorse, contrition and self-criticism if we believe we did nothing wrong?" (42) Non-apology apologies purport to convey the appearance of empathy, but actually ring hollow in the ears of many patients who have experienced adverse outcomes. (43) Empirical evidence reflects this reality. Not only do studies suggest that apologies that are devoid of self-criticism are less likely to spur a settlement, even worse, these apologies tend to be less positively received by victims (44) than no apology at all. (45)
Nevertheless, given the present state of the law, honest acceptance of responsibility via an apology to the affected patient seems to represent a bridge too far for many physicians and hospital administrators. The "deny and defend" approach has long dominated the legal landscape, and medical providers are warned that "any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers." (46) To make matters worse, the potential repercussions of an apology are not limited to the courtroom; many physicians fear that their malpractice insurance will either be difficult to retain or will become unsustainably expensive in the future. (47) For these reasons, "deny and defend" continues to prevail, (48) even though the American Medical Association encourages full disclosure irrespective of the consequences. (49) Even though most physicians want to apologize, many fear the legal consequences of doing so. (50)
A. State "Apology Laws"
This reluctance is well founded. Until recent years, apologies were typically admitted as evidence of liability against the person who issued them. (51) Perhaps not surprisingly, the net effect was to discourage apologies entirely. (52) This began to change when former Massachusetts State Senator William Saltonstall's tragic firsthand experience with this "chilling effect" on apologies inspired important changes. (53) Saltonstall's daughter had been killed when she was hit by a car while riding her bicycle, but the other driver did not apologize or express regret. (54) It was not until years later that Saltonstall learned that the driver had wanted to apologize but was afraid that his apology would be used against him in court. (55) Inspired by this incident, Salt-on-stall convinced his successor in the Massachusetts State Senate, Robert Buell, to sponsor legislation designed provide a "safe harbor" to shelter potential apologizes from the risk of liability that could prevent them from doing so. (56) In 1986, Massachusetts became the first state to enact an apology law, (57) which provides:
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 such person or to the family of such person shall be inadmissible as evidence of an admission of liability in a civil action. (58)
Other jurisdictions have followed Massachusetts' lead. (59) Between 1999 and 2008, (60) many states enacted legislation to preclude, or at least diminish, the likelihood that the threat of liability will disincentivize apologies. (61) These efforts have taken the form of "apology laws," or "protective measures designed to encourage injurers to apologize by expressly ensuring that at least some types of apologies cannot be used against them in litigation." (62) A significant majority of U.S. jurisdictions--at least thirty-seven as of December 2013--now have apology laws. (63) These states include Arizona, (64) Connecticut, (65) Florida, (66) Georgia, (67) Iowa, (68) and Vermont; (69) Pennsylvania's new physician apology law was enacted in October 2013 and took effect later that year. (70)
Nevertheless, state apology laws are often insufficient to protect physicians. In most of the states that have enacted them, the protection afforded applies only to specific types of apologies; whether a given expression of apology is protected depends on the nature of its specific content. (71) Most apology statutes limit their protection to "partial apologies" that "exclude what are thought to be essential features of apologies, such as expressions of regret or remorse." (72) These partial apology statutes only protect "neutral sentiments" or, more euphemistically, "expressions of good will" such as words communicating sympathy ("I'm sorry you're suffering") or benevolence ("I want to help you recover"). (73)
Partial apology statutes are problematic because they exclude self-critical expressions, including those that indicate remorse or guilt, from the sphere of protection. (74) Florida's partial apology law provides, in pertinent 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 involved in an accident and 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. (75)
Similarly, the partial apology law contained in the Iowa Code provides, in relevant part, that in professional negligence actions:
that portion of a statement, affirmation, gesture, or conduct expressing sorrow, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that was made by the person to the plaintiff, relative of the plaintiff, or decision maker for the plaintiff that relates to the discomfort, pain, suffering, injury, or death of the plaintiff as a result of an alleged breach of the applicable standard of care is inadmissible as evidence. (76)
Only in the relatively few states with full apology laws do these limitations not apply. (76)
From a philosophical standpoint, partial apology laws are flawed for two major reasons. First, their limited scope of protection is likely to lead to self-censorship--the very "chilling effect" that apology laws are intended to discourage. Because of the difficulty of determining what content is protected and what is not, physicians are likely to be so cautious about what they can and cannot say that nothing is said at all. Even where a physician attempts to stay on the right side of the law and issue an apology that is devoid of any acknowledgement of fault or remorse, an overly careful approach can make the expression seem disingenuous. Either way, partial apologies can erect a "wall" between the doctor and recipient of the apology, preventing an emotional connection--and preventing both parties from reaping the full benefit of the apology.
Second, from the apologizee's perspective, such a limited apology is likely to fail to satisfy the injured person. Professor Jeffrey Helmreich explains that "the "partial" nature of most apology laws comes at a considerable price: they protect only expressions and utterances that are entirely uncritical of having caused or allowed harm." (78) Partial apologies include no mention of accountability, and, in refusing to place blame, misrepresent the source of the problem when human error did, in fact, cause injury. Placing blame out in the ether--and failing to identify the source of the problem--is as unsatisfying to the injured person's sense of justice as it is to his or her sense of curiosity as to where things went wrong in the first place.
When Pennsylvania's General Assembly unanimously passed the "Benevolent Gesture Medical Professional Liability Act" in 2013, it chose this lesser form of protection. (79) The law only applies to "benevolent gesturers]," a term that encompasses "[a]ny action, conduct, statement or gesture that conveys a sense of apology, condolence, explanation, compassion or commiseration emanating from humane impulses." (80) Ironically, this "benevolent gesture" law illustrates why the limited sphere of protection that partial apology laws offer is problematic. Even though House Majority Leader Mike Turzai touted the law as allowing health care providers "to once again be sympathetic with patients without fear of being sued," (81) the fact remains that they must tread carefully in order to ensure that their interactions with patients fall within the definition of a "benevolent gesture." It is difficult to separate a physician's actions from his or her sincere acknowledgement of responsibility without robbing an apology of its substance. Because this sort of apology is unlikely to provide solace to the victim, partial apology laws like Pennsylvania's are unlikely to fully effectuate the legislature's primary goal: reducing the number of medical malpractice claims.
B. The Need to Amend the Federal Rules to Protect Physician Apologies
Due to the variance among state laws as to what apologies are protected, the fact that most jurisdictions' laws are of limited value because they cover only partial apologies, and the complete absence of any protection at all in a significant number of states, the need to amend the Federal Rules of Evidence to include a specialized relevance rule to govern physician apologies remains. The problems that plague the use of physician apologies as evidence of liability align precisely with the very problems the specialized relevance rules were designed to combat: (1) the risk of unfair prejudice substantially outweighs apologies' probative value, and (2) underlying public policy concerns reinforce the need to make apologies inadmissible as a matter of law.
Like the other evidence that the specialized relevance rules govern, including remedial measures under Rule 407, the payment of medical expenses under Rule 409, and liability insurance under Rule 411, it is reasonable to conclude that physician apologies fail a Rule 403 weighing test. (82) The danger of unfair prejudice is significant because the inference on the jury's part that the apologizer has done so because he or she is liable for the harm alleged is not unreasonable. This could happen where the language of the apology itself is interpreted either too literally or too liberally.
The prejudicial tendencies that often go hand in hand with apologies substantially outweigh the apologies' probative value. An apology does not necessarily mean that the apologizer is at fault, in the legal sense or otherwise. Helmreich points out that, in many circumstances, "a guilty or self-critical stance is appropriately directed even at one's inadvertent, nonnegligent inflictions of harm." (83) He further argues that, not only can an apology be an appropriate response, "apologizing is an appropriate moral remedy even for blameless harms. There are, in other words, sound moral reasons to apologize to those one harms blamelessly." (84) From an empirical standpoint, the question of whether an expression of apology correlates positively with fault is still unsettled. (85) Even though drawing the conclusion that an apology is indicative of liability might seem reasonable, it is actually "mistaken, because expressing self-criticism and even guilt does not imply actual guilt or culpability." For these reasons, the risks of prejudice that inherently accompany physician apologies substantially outweigh their probative value, thus failing a Rule 403 weighing as a matter of law. This is consistent with the other types of evidence governed by the specialized relevance rules.
Physician apologies raise policy issues similar to those that drove the adoption of Rules 407, 409, and 411, which encourage remedial measures, the payment of medical expenses, and the carrying of liability insurance, respectively. Adopting a new Federal Rule would encourage physicians to apologize to patients who experience negative outcomes, with the hope of fostering a more morally upright society while, more pragmatically, reducing medical malpractice litigation and its associated costs. In this way, the logic underlying the proposed Rule closely resembles that of Rule 409, under which "[s]teps at moral repair, notably offering to pay or compensate the victims of one's injurious conduct, or actually compensating them, are protected from use as evidence...." The Advisory Committee has explained the rationale behind Rule 409, stating that "such payment or offer [to pay the victim's medical expenses] is usually made from humane impulses and not from an admission of liability, and that to hold otherwise would tend to discourage assistance to the injured person. (86)
From a public policy standpoint, apologies, at their core, are similarly intended to repair--morally and spiritually, if not financially. (87) Consistent with the other purpose of the specialized relevance rules, apologies are similar to the payment of medical expenses under Rule 409 in that their probative value is limited. As Helmreich explains, "there is no imaginable construal by which an apology is more probative of culpability than these more substantial steps at moral repair: offering to pay for the damages seems, at least, no less reflective of one's guilt in causing them than the utterance of 'I'm sorry.'" (88)
Because of the striking similarity of the evidentiary impact of physician apologies to that of the payment of medical expenses under Rule 409, (89) as well as the Rule's logical and policy underpinnings, a new Federal Rule of Evidence should be created to limit the admissibility of physician apologies. Such a new Rule should operate in the same manner as Rule 409: it would simply bar the use of physician apologies to prove liability. (90) Also like Rule 409, there is no compelling reason to permit apologies to be used for other purposes, such as proving ownership and control or showing witness bias. (91)
Nor would such a Rule act as a complete bar to all portions of physician apologies. Unlike expressions of sympathy or regret, statements about one's own "competence or compliance with acceptable standards ... do, in fact, bear on liability." (92) For this reason, admissions that help to establish the factual elements of a tort or a crime would remain admissible. The difficulty lies in making the distinction between statements that are merely self-evaluations and those that bear on determinations of fact; for example, "I should have behaved differently." However, it is best to err on the side of not admitting these statements under a new Rule because, while their probative value remains questionable at best, their potential to prejudice defendants is beyond dispute. (93)
At first glance, it might seem that such a new Rule's direct applicability would likely be limited, as medical malpractice is a tort-law matter typically handled in state courts. (94) Because the Federal Rules have been incorporated into the overwhelming majority of state evidence codes, however, the new federal rule would likely be adopted by the states as well. Adoption of such a Rule also has the indirect--but vitally important--effect of communicating from Congress and the federal judiciary to physicians that apologies are encouraged. This will help to ensure that doctors have the confidence in the new evidentiary regime that will be necessary to reap its full benefits.
It is clear that the chilling effect on physician apologies is alive and well under the existing system. Harvard patient-safety expert Dr. Lucian Leape reports that, even where hospitals encourage accountability via disclosure policies, "[m]ost doctors don't really believe that if they're open and honest with patients they won't be sued." (95) Promulgating a new rule, passing it through both houses of Congress, and making it effective in the federal courts would represent a powerful step toward remedying physicians' discomfort. As one commentator argued, "legislation that expressly protects apologetic remarks does more than restrict evidence at trial, if it does that at all. It loudly reassures would-be injurers, or at least their legal advisors, not to mention the general public, that apologizing need not expose them legally." (96)
III. Conclusion: Promoting Meaningful Apologies Benefits Doctors and Patients
Dr. Atul Gawande has said, "Are doctors who make mistakes villains? No, because then we all are." (97) When mistakes inevitably happen, the solution proposed in this article--a new Federal Rule of Evidence that would bar the use of physician apologies to prove liability--would present an effective solution to the chilling effect on physician apologies. It would also be relatively easy to implement because of its similarity to the existing specialized relevance rules. Not only is the Rule 403 weighing test hopelessly out of balance where physician apologies are concerned, (98) similar policy goals are served by the existing specialized relevance rules. Rules like Rule 409 would provide fitting models for the form and function of such a new Rule.
A new specialized relevance rule would promote meaningful apologies and allow physicians and patients to maximize the benefits that these apologies offer. In addition to the more tangible benefits of avoiding litigation entirely or reducing its cost, apologies from physicians to patients when the outcome is less than ideal also foster honesty, integrity, and trust in the doctor-patient relationship. Just as importantly, adding a new provision to the Federal Rules would represent a powerful commitment on the part of the federal government that the states, many of which voluntarily model their own codes of evidence after the Rules, are likely to adopt as well.
Considering whether to enact a new Rule restricting the admissibility of physician apologies raises the question whether we want to be a society in which we are ever- vigilant in pursuit of ammunition for use in future litigation, or so suspicious that others are gathering potential evidence that our interactions become chilled. On the other hand, if we allow apologies without fear of legal consequences, we will foster a culture of empathy, politeness, cooperation, peace, and dignity. The latter view was perhaps best personified by Charles Utley, a patient in San Diego who chose to settle directly with the hospital instead of bringing suit over a surgical sponge left in his body after he received unequivocal apologies from the lead surgeon and a hospital administrator. When asked why he declined to sue, Utley eloquently and poignantly expressed the true value of those apologies: "[t]hey honored me as a human being." (99)
* The opinions discussed in this article are those of the author and do not express the opinions of Jones Day or any of its clients.
(1) Gillian Mohney, Man Dies after Wisdom Teeth Removed, ABCNews.com (Apr. 3, 2013), http:// abcnews.go.com/Health/man-dies-wisdom-teethremoved/story?id= 18869553.
(5) Id. The media reported that, according to Mrs. Lapinski, Dr. Paul came to the hospital for the purpose of apologizing to the family. Id.
(6) Jason Sloss, Autopsy: Anesthesia May Have Contributed to Dental Patient's Death, FOX5SanDlEGO.COM (Aug. 26, 2013, 9:29 PM), http:// fox5sandiego.com/2013/08/26/autopsy-releasedafter-dental-patients-death/.
(7) Lapinski v. Paul, No. BC539818 (Cal. Super. Ct. pending as of Feb. 18, 2015) (Bloomberg Law).
(9) Professor Jeffrey Helmreich defines the scope of the term "apologies" broadly for these purposes: "statements uttered by injurers or wrongdoers to their victims with the intention that they be understood as apologies, or at least as expressions of remorse or regret over something the speaker did." Jeffrey S. Helmreich, Does "Sorry" Incriminate? Evidence, Harm and the Protection of Apology, 21 Cornell J.L. & Pub. Pol'y 567, 570 (2012).
(10) Edward R. Becker and Aviva Orenstein, The Federal Rules of Evidence after Sixteen Years--the Effect of "Plain Meaning" Jurisprudence, the Need for an Advisory Committee on the Rules of Evidence, and Suggestions for Selective Revision of the Rules, 60 Geo. Wash. L. Rev. 857, 858 (1992).
(11) 145 Cong. Rec. HI2253 (daily ed. Dec. 18, 1974) (statement of Rep. Hungate). Chief Justice Warren first formed a special committee charged with exploring whether the development of uniform federal evidentiary rules was feasible. Id. When the committee answered in the affirmative, the Chief Justice appointed an Advisory Committee to draft the Rules of Evidence. Id. Because of their complexity, Congress delayed the Rules' effective date until they could be "expressly approved by Act of Congress." Id.; see also Act of Mar. 30, 1973, Pub. L. No. 93-12, 87 Stat. 9. Of the seventy-seven rules the Supreme Court originally promulgated, over half were not substantively changed by the first House bill, and many received only slight substantive alterations. 145 Cong. Rec. H12253. The relatively few that required more legislative attention received extensive discussion in the House Subcommittee on Criminal Justice and the Senate Judiciary Committee before being passed by the respective houses, and a joint conference of Representatives and Senators was appointed to resolve the differences between the bills in preparation for the Rules' final passage. Id.
(12) Kenneth W. Graham, Jr., Statutory Development of Evidence Law: 1789-1938, 21 Charles Alan Wright and Kenneth W. Graham, Jr., Fed. Prac. & Proc. Evid. [section] 5001 (2d ed. 2006).
(13) Edward J. Imwinkelried, Using the Evidence Course As a Vehicle for Teaching Legisprudential Skills, 21 Quinnipiac L. Rev. 907, 909 (2003).
(14) See id.; see, e.g., Commonwealth v. Blasioli, 713 A.2d 1117, 1119 n.1 (Pa. 1998) (explicitly stating that "Pennsylvania courts are not bound by the Federal Rules of Evidence").
(15) See Imwinkelried, supra note 13, at 909-910.
(16) 2013 Pa. Ct. Order 0005, preface to cmt. 1 (Jan. 17, 2014) (amending the Pennsylvania Rules of Evidence to incorporate stylistic changes to the Federal Rules of Evidence).
(17) Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993) (introducing reliability and helpfulness as primary bases for admitting expert testimony).
(18) Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (stating the standard for admissibility as follows: "the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs").
(19) Blasioli, 713 A.2d at 1119 n.l (Pa. 1998) (because the Federal Rules of Evidence are nonbinding, "this Court has continued to employ the Frye standard for determining the admissibility of novel scientific evidence"). The official comment to Pennsylvania Rule of Evidence 702--the counterpart to Federal Rule of Evidence 702, which governs the admissibility of expert testimony--makes clear both the difference between the state and federal standards and the fact that this difference is intentional:
[Pennsylvania Rules of Evidence ("Pa.R.E.")] 702(a) and (b) differ from [Federal Rule of Evidence ("F.R.E.")] 702 in that Pa.R.E. 702(a) and (b) impose the requirement that the expert's scientific, technical, or other specialized knowledge is admissible only if it is beyond that possessed by the average layperson. This is consistent with prior Pennsylvania law. Pa.R.E. 702(c) differs from F.R.E. 702 in that it reflects Pennsylvania's adoption of the standard in [Frye\. The rule applies the "general acceptance" test for the admissibility of scientific, technical, or other specialized knowledge testimony. This is consistent with prior Pennsylvania law. The rule rejects the federal test derived from [Daubert].
Pa. R. Evid. 702 cmt. (internal citations omitted).
(20) Pennsylvania Rule of Evidence 702 reads:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;
(b) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and
(c) the expert's methodology is generally accepted in the relevant field.
Pa. R. Evid. 702. A side-by-side comparison with the corresponding Federal Rule illustrates the extent of the formal and substantive similarity between the two: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702.
(21) Rule 403 provides, in pertinent part, "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice." Fed. R. Evid. 403.
(22) George Fisher, Evidence 90 (2d ed. 2008).
(23) Fed. R. Evid. 407.
(24) Rule 407 also prevents the use of subsequent remedial measures as evidence of a product defect or the need for a warning. Fisher, supra note 22, at 91.
(25) Fed. R. Evid. 408.
(26) Fed. R. Evid. 409.
(27) Fed. R. Evid. 410.
(28) Fisher, supra note 22, at 91. This evidence is, however, admissible in two narrow areas: to flesh out incomplete accounts of plea discussions and in perjury prosecutions of the statement was made under oath, in the presence of counsel, and on the record. Id. at 90-91.
(29) Fed. R. Evid. 411.
(30) Fisher, supra note 22, at 91.
(31) See id. at 90.
(32) Id. at 92.
(35) See id. For example, the desire to compromise might be motivated by a desire to restore peace, and an offer to pay medical expenses could evidence the offeror's "humane impulses" toward the injured person. Id.
(36) A thorough discussion of the motivations that underlie apologies is beyond the scope of this article. However, for a fascinating and comprehensive treatment of the subject through the lens of moral theory, see generally Helmreich, supra note 9.
(37) Because these apologies are typically made outside of the courtroom setting, one might wonder whether this discussion is rendered moot by Federal Rule of Evidence 802, which provides that hearsay statements, or out-of-court statements used to prove the truth of the matter asserted, are generally not admissible. Fed. R. Evid. 801(c), 802. This is not the case, however, as apologies fit comfortably within the category of party-admissions, which are "not hearsay." See Fed. R. Evid. 801(d)(2)(A) (defining partyadmissions as statements offered against the opposing party that were made by the party in an individual or representative capacity). "Admission" in this sense is not synonymous with "confession." but, rather, refers to any statement that is "inconsistent with the party's position at trial, relevant to the substantive issues in the case, and offered against the party." Charles Tilford McCormick, McCormick on Evidence [section] 254 (Kenneth S. Broun ed., 6th ed., 2006).
(38) Helmreich, supra note 9, at 573.
(39) See Richard C. Boothman et al., A Better Approach to Medical Malpractice Claims? The University of Michigan Experience, 2 J. Health & Life Sci. L. 125, 143 (2009) (reporting the results of a study in which the University of Michigan Health Service experienced a forty-seven percent drop in per-case payments and a reduction in settlement time from twenty to six months after instituting a mandatory apology policy); Lucinda Jesson and Peter B. Knapp, My Lawyer Told Me to Say I'm Sorry: Lawyers, Doctors, and Medical Apologies, 35 Wm. Mitchell L. Rev. 1410, 1435-1436 (2009) (explaining that Children's Hospitals and Clinics of Minnesota saw lawsuits halved--despite the "high liability exposure setting" of children's healthcare--after it adopted a disclosure policy); Why Do People Sue Doctors? A Study of Patients and Relatives Taking Legal Action, 343 Lancet 1609, 1612 (1994) (according to one British study, thirty-seven percent of plaintiffs reported that they would not have sued if they had received an adequate explanation and apology); but see Helmreich, supra note 9, at 574-575 (pointing out the studies' limitations).
(40) See Kevin B. O'Reilly, 'Tm Sorry": Why is That So Hard for Doctors to Say?, Am. Med. News (Feb. 1, 2010), http://www.amednews.com/article/ 20100201 /profession/302019937/4/.
(41) Non-apology Apology, Wikipedia, http://en. wikipedia.org/wiki/Non-apology_apology (last visited February 18, 2015).
(42) Helmreich, supra note 9, at 570.
(43) Helmreich's reductio ad absurdum helps to shed some light on why "non-apology apologies" tend to be ineffective: '"I'm sorry for what I did but I'm above reproach,' or Tm sorry, but I'm completely pleased with myself over what I did.'" Id. at 602.
(44) The term "victims," which is used here and throughout for the sake of convenience, refers generally to those who have suffered harm, whether through the fault of another or by accident.
(45) See Jennifer K. Robbenholt, Apologies and Legal Settlement: An Empirical Examination, 102 Mich. L. Rev. 460, 484-486 (2003).
(46) Kevin Sack, Doctors Say Tm Sorry' before 'See You in Court,' N.Y. Times, (May 18, 2008), http://www.nyrimes.com/2008/05/ 18/us/l 8apology. html?pagewanted=print&_r=0.
(47) See O'Reilly, supra note 40.
(48) Boothman, supra note 39, at 127.
(49) O'Reilly, supra note 40 (discussing AMA advisory opinion, which states that, in the event of an error, "the physician is ethically required to inform the patient of all the facts necessary to ensure understanding of what has occurred").
(50) Thomas H. Gallagher et al., Patients' and Physicians' Attitudes Regarding the Disclosure of Medical Errors, 289 JAMA 1001, 1005 (2003).
(51) Helmreich, supra note 9, at 468. This approach was not limited to the context of the medical profession; it applied to apologies generally.
(52) Id. at 468-469.
(53) Lee Taft, The Commodification of Apology, 109 Yale L.J. 1135, 1151 (2000).
(56) Id. at 1152 & n.82.
(57) Benjamin Ho and Elaine Liu, Does Sorry Work? The Impact of Apology Laws on Medical Malpractice'.I (Oct. 2010) (unpublished paper on file with author), available at http://irving.vassar.edu/faculty/ bh/H o-Liu-Apologies-and-Malpractice-nov15.pdf.
(58) Mass. Gen. Laws ch. 233, [section] 23D (2010) (defining "benevolent gestures" as "actions which convey a sense of compassion or commiseration emanating from humane impulses").
(59) Jesson and Knapp, supranote 39, at 1430-1432.
(60) See Ho and Liu, supra note 57, at 5, 36 Table 1.
(61) See Helmreich supra note 9, at 569.
(63) See Nicole Saitta and Samuel D. Hodge, Jr., Efficacy of a Physician's Words of Empathy: An Overview of State Apology Laws, 112 J. Am. Osteopathic Ass'n 302 (2012), available at http://www.jaoa.osteopathic.org/content/112/5/ 302.full.pdf.
(64) Ariz. Rev. Stat. Ann. [section] 12-2605 (2005).
(65) Conn. Gen. Stat. [section] 52-184d (2010).
(66) Fla. Stat. i 90.4026 (2010).
(67) Ga. Code Ann. [section] 24-3-37.1 (2010).
(68) Iowa Code [section] 622.31 (2010).
(69) Vt. Stat. Ann. tit. 12, [section] 1912 (2010).
(70) See 2013 Pa. Laws 79.
(71) See Helmreich, supra note 9, at 569 ("Most of these measures, nevertheless, stop short of protecting full apologies"); see also Jesson and Knapp, supra note 39, at 1425-1426.
(72) Helmreich, supra note 9, at 576-577.
(73) Id. at 569.
(75) Fla. Stat. [section] 90.4026(2) (emphasis added).
(76) Iowa Code [section] 622.31 (emphasis added).
(77) See Helmreich, supra note 9, at 576. South Carolina's apology law represents an example of a full apology law: "conduct, statements, or activity constituting voluntary offers of assistance or expressions of benevolence, regret, mistake, error, sympathy, or apology between or among parties or potential parties to a civil action should be encouraged and should not be considered an admission of liability." S.C. Code Ann. [section] 19-1190(B) (emphasis added).
(78) Helmreich, supra note 9, at 579.
(79) 2013 Pa. Laws 79; but see Helen Gregg, New Pennsylvania Law Will Let Physicians Apologize to Patients without Fear of Lawsuit, Becker's Hosp. Rev. (Oct. 23, 2013), http://www.beckershospitalreview.com/legal-regulatory-issues/ new-pennsylvania-lawwill-let-physicians-apologize-to-patients-without-fear-of-lawsuit.html (quoting the President and CEO of the Hospital & Healthsystem Association of Pennsylvania as calling the law "a significant win" for providers).
(81) Gregg, supra note 79.
(82) See Fisher, supra note 22, at 90.
(83) Helmreich, supra note 9, at 570.
(84) Id. For example, such a scenario might involve the apologizer's regret at not being able to prevent an injury from occurring, when in fact it would have occurred irrespective of his or her efforts. See id.
(85) Id. at 597.
(86) Fed. R. Evid. 409 advisory committee's note.
(87) See Helmreich, supra note 9, at 598. Helmreich takes this argument even further than I am willing to, arguing that apologies are actually superior to the payment of medical expenses because they "have value in moral repair over and above compensation." Id. at 600.
(88) Id. at 598.
(89) The same is true of the other specialized relevance rules, even if the resemblance is not as close. Rules 407, 408, 410, and 411 all involve other potentially prejudicial actions that should nonetheless be encouraged for the good of society, such as taking subsequent remedial measures or carrying liability insurance.
(90) Fisher, supra note 22, at 91.
(92) See Helmreich, supra note 9, at 603.
(93) See id.
(94) These actions could enter the federal courts if the requirements for diversity of citizenship jurisdiction are met, see 28 U.S.C. [section] 1332 (2012), if the claims raise a federal question, see id. [section] 1331, or under supplemental jurisdiction if they are part of the same "case or controversy" as a federal claim. See id. [section] 1367.
(95) Sack, supra note 46.
(96) Helmreich, supra note 9, at 576.
(97) Atul Gawande, Better: A Surgeon's Notes on Performance 106 (2007).
(98) This observation raises the question: why not simply move to exclude this evidence as unfairly prejudicial relative to its probative value under Rule 403? This question makes clear why the proposed Rule would not considerably alter or add to the current law of evidence. See Helmreich, supra note 9, at 576. It also illustrates why the addition of the new rule would not be contentious--it is consistent with existing law. If the Rule is not added, however, a valuable opportunity to definitively encourage apologies will be lost.
(99) Rachel Zimmerman, Doctors' New Tool to Fight Lawsuits: Saying "I'm Sorry," Wall St. J. Online (May 18, 2004), http://www.wsj.com/articles/ SB108482777884713711.
Lauren Gailey is an associate in Jones Day's Pittsburgh office* In 2014 she graduated summa cum laude from the Duquesne University School of Law, where she served as Executive Articles Editor of the Duquesne Law Review, won numerous awards as a member of the Appellate Moot Court Board, and interned in the U.S. Attorney's Office and the chambers of the Honorable Joy Flowers Conti. Prior to law school, she worked as a television news-talk show producer. This article, which won First Place in the International Association of Defense Counsel's 2014 Legal Writing Contest, is dedicated to Mrs. Gailey's sister, Jennifer Miller, M.D., a physician who is as compassionate as she is capable.
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|Publication:||Defense Counsel Journal|
|Date:||Apr 1, 2015|
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