"I'm sorry" as evidence? Why the Federal Rules of Evidence should include a new specialized relevance rule to protect physicians.

• Author: Gailey, Lauren

IN March 2013, Marek Lapinski, a healthy twenty-four-year-old software developer and entrepreneur, reported to the Temecula, California office of Dr. Steven Paul, an oral surgeon, to have his wisdom teeth extracted. (1) Mr. Lapinski did not survive the routine procedure. (2) According to a patient care report, he awoke, coughing, during the operation, was sedated with propofol, and stopped breathing. (3) He died three days later at the hospital. (4) April Lapinski, the patient's mother, said of Dr. Paul, who was present at the hospital, "[H]e said he was sorry." (5) After an autopsy pointed to an anesthesia overdose as the cause of death, (6) the Lapinski family filed a medical malpractice suit against Dr. Paul in Los Angeles County on March 19, 2014. (7) A September 2015 trial date has been set. (8)

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.

1. The Federal Rules of Evidence and the Specialized Relevance Rules

   1. 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.

   2. 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)

2. 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)...