Colorado’s Physician Apology Law

Several states have passed laws that allow doctors and other health care providers to apologize to a patient or a patient’s family for medical errors. These laws make doctor apologies inadmissible in court to prove liability against the doctor or health care provider.

Advocates of physician apologies contend that many malpractice lawsuits can be avoided if the doctor or health care provider apologizes and lets the patient or loved one know the details of what went wrong. Some health care providers have implemented similar policies with some encouraging results. For example, the University of Michigan Health System in Ann Arbor has a policy of full disclosure and offers apologies without the benefit of a state Physician Apology Statute. Since the program has been in effect, claims against them went down from 262 in 2001 to under 100 in 2005 despite an increase in clinical activity. Administrators claim the program works because, along with an apology and disclosure, they offer the aggrieved patient a reasonable settlement to compensate them for any losses.

Like many other states, Colorado has passed a physician apology statute. Colorado’s law is by far the broadest in the nation. Whereas most states limit the apologies to expressions of sympathy, SECTION 1, Article 25 of Title 13 of Colorado Revised Statutes also protects admissions of liability and guilt. It protects “any and all statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence…” In effect, a negligent doctor can apologize, describe in detail the mistakes he made, and the victim would not be able to use that admission in court.

Texas also has a physician apology statute, but it is much narrower than Colorado’s. Like Colorado's statute, Texas Civil Practice & Remedies Code Sec 18.061(a)(1) bars doctor's statements that “expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of an individual involved in an accident.” However, unlike Colorado's law, it does not bar a doctor's admission of liability or fault.

By way of example, let's imagine that a doctor makes the following statement after something goes wrong during an operation: “I am sorry for your pain. I mistakenly failed to close-up properly and that failure caused your pain and suffering.” In Texas, only the first part of the statement (“I am sorry...”) would not be admissible in court. The second part of the statement (“that failure caused...”) would be admissible to prove the doctor's liability. On the other hand, in Colorado, the entire statement would not be admissible to prove liability in any malpractice suit against the doctor or hospital.

Some critics of the Colorado statute feel that the policy is unfair and that patients should not have to give up their right to sue just so a doctor can say, “I’m sorry.” Proponents, on the other hand, believe that the statute protects more than a mere apology. Many patients and families file suit as a last resort to find out information about what happened. Because doctors have been advised to say nothing to mitigate the risk of a lawsuit, the patient never got a satisfactory explanation of what went wrong. Thus proponents believe that the statute offers a sense of closure for the patients and families without resorting to litigation.

Thank you for reading our blog. Injuries suffered due to medical malpractice can be devastating. If you or a loved one has been seriously injured due to medical malpractice, contact us for immediate assistance. If you have a question or comment, please reply to this blog or send us an e-mail.