Wisconsin Law Should Not Protect Admissions of Guilt

“I’m Sorry” is Clearly Not the Same as “My Error Caused Your Husband’s Death”

By Mike End, President
Wisconsin Association for Justice

September 2011

If your family member dies during a medical procedure, and the doctor later makes a statement admitting a mistake, should you be blocked from using that information in court?

Most people would say “No.”  But Wisconsin lawmakers are moving forward with a bill that may completely ban such statements by medical professionals from being admissible evidence in a medical malpractice trial.

The Wisconsin Association for Justice (WAJ) believes the general intent of Assembly Bill 147 is admirable, but that the bill goes far beyond what is necessary to accomplish its goals.  In its current form, the bill could deprive some state residents of the justice they deserve.

Supporters of the bill say that doctors and nurses should not have to worry about malpractice lawsuits when they intend to express sympathy to a family whose loved one has been injured or died during a medical procedure.  On that point, everyone agrees.

In fact, most trial lawyers would agree that statements of sympathy, or condolence, or apology, should not be admitted as evidence in court.  It garners sympathy for the doctor from the jurors.  Encouraging health care providers to openly communicate with their patients, and express apologies and condolences, is something WAJ welcomes because such communication helps doctor-patient relationships.

But this proposed new law would also stop a statement admitting liability or fault from being used to prove malpractice, and most people we know would say that is just plain wrong.  

Consider a case in which the surgeon comes out of the operating room and tells the patient’s wife that her husband died on the operating table when the surgeon accidentally cut the husband’s aorta because the doctor was tired and lost concentration during the procedure.  

In most states that have “I’m Sorry” legislation, the doctor’s admission of fault could be used in court.  However, under AB 147 the doctor’s statement would be inadmissible.  The doctor, being the only one who knew what happened, might be able to later say that what happened was not his fault.  The sad fact is without the doctor’s admission, the wife could lose the case.

In many states with this sort of legislation, the admission of liability, fault or responsibility is NOT included in the statute.  That, indeed, is how it should be in Wisconsin too.

WAJ believes that oral statements, writings and gestures of regret, sympathy or benevolence because of an unanticipated outcome should be inadmissible.  However admissions of fault, liability or responsibility should be admissible.  Medical malpractice cases are very difficult for patients to win.  Deserving patients do not need another obstacle to achieving justice.  

Wisconsin laws should enhance our justice system, not weaken it.

The words “fault,” “liability” and “responsibility” must be removed from AB 147.  Please contact your state senator and representative and ask them to amend the “I’m Sorry” legislation to create a law that will be just and fair for all.

For more, see WAJ’s website at www.wisjustice.org, or call 608-257-5741.

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J. Michael End is president of the Wisconsin Association for Justice, and a partner at End, Hierseman and Crain, in Milwaukee.

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