Wyoming s Medical Apology Statute: I m sorry, but for what?

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1 1 Wyoming s Medical Apology Statute: I m sorry, but for what? Nicholas G. J. Healey

2 Wyoming s Medical Apology Law (W.S (a)) May come as a surprise. Not everyone knows that Wyoming has such a law. Less probably know exactly what it allows or does not allow. In the context of making early, effective disclosures of adverse medical events, it s important to know: What it permits providers to say; What it protects from being used against you later; and What can happen even if you use it correctly. 2

3 What does it protect? Any and all statements, affirmations, gestures or conduct expressing: Apology, Sympathy, Commiseration, Condolence, Compassion or A general sense of benevolence 3

4 Made by whom? Health care provider or Employee of a health care provider. Health care provider Person who is licensed, certified or otherwise authorized or permitted by the laws of this state to administer health care in the ordinary course of business or practice of a profession. Person : Natural or legal? 4

5 Made to whom? The alleged victim, or A relative or representative of the alleged victim. Relative : spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half brother, half sister or parent of a spouse, and includes those relationships established by adoption. 5

6 About what? About (or that relate to ) Discomfort, Pain, Suffering, Injury or Death Of the alleged victim as the result of the unanticipated outcome of medical care. 6

7 Unanticipated Outcome The result of a medical treatment or procedure that differs from an expected result. 7

8 Subsequent use of apology Apology made under the statute is inadmissible as: Evidence of an admission of liability or Evidence of an admission against interest. 8

9 Two common conclusions: Anything I say in an apology can t be used against me in court. If a settlement is part of the apology, it won t be reported to the NPDB. 9

10 Not necessarily true. Wyoming s Medical Apology law doesn t protect expressions of fault or responsibility for medical errors. Most states have adopted some version of the medical apology law. Very few, however, protect expressions of fault or taking responsibility for the error. 10

11 Contrast with Colorado s I m sorry law statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence. Colorado s law has been singled out as exceptional by insurers for covering fault. 11

12 Rationale for not covering fault Unfair to allow providers to admit fault in one setting (patient s hospital room), but then deny responsibility in another (court). California s statute is more explicit in not covering fault: A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible 12

13 Wyoming s statute is less clear No Wyoming Supreme Court decisions interpreting scope of medical apology law. But courts interpreting very similar statute s have found that expressions of fault, even if made in apology context, are not covered. 13

14 Davis v. Wooster Orthopedics Ohio Court of Appeals, 2010 Back surgeon nicked artery, patient bled out. Surgeon told patient s family he took full responsibility, it was his fault, he was sorry. Family sued and won $3 million. 14

15 Davis v. Wooster Orthopedics Surgeon appealed, claimed: He expressed fault as part of an apology, and All evidence of his apology should have been excluded from trial. Ohio s I m sorry law was virtually the same as Wyoming s. 15

16 Davis v. Wooster Orthopedics Court disagreed. Divided medical apology laws (nationwide) into three categories: Allow fault expressions to be used against providers; Do not allow fault expressions to be used; and Unclear Wyoming and Ohio were unclear. 16

17 Davis v. Wooster Orthopedics Court found that: Legislature intended to cover statement of sympathy including any statement expressing apology Statement expressing apology allowed statement of condolence or sympathy without including any expression of fault or liability. 17

18 Davis v. Wooster Orthopedics Court found Legislature could have protected fault if they d wanted to, and: A rule protecting a physician s expression of sympathy, but not his admission of fault from use at trial accomplishes the goal suggested by [the surgeon] of helping to diminish the obvious detriment to the physician-patient relationship following a negative outcome of medical treatment. 18

19 Davis v. Wooster Orthopedics Wyoming court would likely interpret the statute similarly. Allow expressions of fault to be used against provider, even if apology is not. Catch-22 Jury may hear that provider took responsibility, but didn t apologize. 19

20 Important to consider HOW to make disclosure Critical to make early disclosure as part of a communication strategy carefully thought out beforehand. Important to have all parties that will be impacted on the same page before disclosure is made. Risk management implications of what will be said must be considered. 20

21 A settlement is a settlement from NPDB perspective Health Care Quality Improvement Act Requires medical malpractice insurers to report to the National Practitioner Data Bank payments made for the benefit of practitioners in settlement of or in satisfaction in whole or in part of a claim or judgment against such practitioner. No exception for settlements of claims as part of an apology. 21

22 NPDB: Early settlement is still a settlement? Compensation, settlement is not necessarily tied to disclosure or apology. Settlement is not, for that matter, required to pay compensation. Studies show that early disclosure, apology and compensation paid for medical errors are effective in avoiding malpractice claims whether settlement is part of the process or not. 22

23 NPDB: Early settlement is still a settlement? Early error disclosure, apology and compensation systems may actually prevent the need to make NPDB report. Out-of-pocket payment (Only insurers are required to make the NPDB report) If no written demand is made, because the disclosure, apology and compensation preempts it, there is no obligation to report Only settlement of written demands are reportable 23

24 Impact on NPDB NPDB serves a valuable purpose (even if providers don t like it) HCQIA intended to provide a clearinghouse for this information for credentialing purposes. If reports aren t made (for whatever reason), how reliable is NPDB? 24

25 Early, full disclosure has multiple benefits Multiple risk management, ethical, provider-patient relationship benefits to early disclosure. Wyoming law allows and supports apologies made in early disclosure. Do it as part of a carefully considered program, rather than on the fly, to minimize unintended consequences. 25

26 Contact Nick Healey Dray, Dyekman, Reed & Healey, P.C