Apology Laws and the Courtroom

1. Apology Laws and the Courtroom Inequality Under Law?

2. The American Civil Adversarial System • Opposing parties charged with seeking out favorable evidence and neutralizing unfavorable evidence. • Opposing parties advocate for most favorable interpretation of law. • Judges are neutral. • Judges often passive “Referees” with juries in role of “Decider.”

3. Common Misconceptions of the Adversarial System • The Judge knows about my case. • The Judge has an understanding of the substance of my case (whether it be engineering, architecture, cardiology, family medicine, accounting, power generation, etc.). • The Judge will get to the bottom of my case.

4. Evidentiary Rules/Law • Purpose is to secure fairness and efficiency so that truth may be ascertained and proceedings justly determined (Pennsylvania Rules of Evidence 102). • Applicable to all cases.

5. Relevance • “All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible.” Pennsylvania Rule of Evidence 402.

6. Truth • One key to understanding the rules is that there is no inquiry into whether or not the evidence is “true” or “accurate.” • Irreconcilable evidence is frequently admitted at trial. • “Hey, that’s not true!” is not an argument that will result in the exclusion of evidence. • Cross-examination and Refutation are the methods for testing the truthfulness of evidence. • Trial is the place for determining truthfulness.

7. Standard Jury Instruction on Conflicting Testimony • You may find inconsistencies in the evidence. Even actual contradictions in the testimony of witnesses do not necessarily mean that any witness has been wilfully false. Poor memory is not uncommon. Sometimes a witness forgets; sometimes he or she remembers incorrectly. It is also true that two persons witnessing an incident may see or hear it differently… • If you decide that there is a genuine and irreconcilable conflict of testimony, it is your function and duty to determine which, if any, of the contradictory statements you will believe.

8. Admission by a Party Opponent • Evidence that an opponent made a statement relevant to the case is evidence that is generally admissible in an adversarial system. Rule 803(25). • Little risk of unfair prejudice because the party opponent can take the stand and explain, contradict or deny the statement.

9. Admissions Rule : When They Matter • Premise: Generally, an admission is valuable only when there is a dispute over the fact established in the admission at trial. • So, if Smith sues Jones because Jones broke Smith’s vase, and Jones admits at trial that he broke the vase then the fact that Jones previously admitted that he broke the vase is of little or no value to Smith. • However, if Jones admitted to breaking the vase at the time but now claims it was someone else, then telling the jury that Jones admitted to breaking the vase could be important.

10. Examples • Criminal Confessions • Car Accident: Jones and Smith collide in an intersection controlled by a traffic light. There are no witnesses to the accident but several come outside afterwards at which time Jones says, “I’m so sorry. It was all my fault.” • Breach of Contract: “I’m sorry, we just don’t have the money.”

11. Origins of Apology Legislation • In 1986, Massachusetts became the first American jurisdiction to enact legislation restricting the use of apologies as evidence. • 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. • No specific direction about fault admissions • But limited caselaw from other jurisdictions with similar statutes hold that fault admissions still admissible. • Note that the statute applies to all accidental injury cases

12. Texas – 1999 & California - 2000 • “A communication, including an excited utterance . . . which also includes a statement or statements concerning negligence or culpable conduct pertaining to an accident or event, is admissible to prove liability…” • “I’m sorry you’re hurt” = Not admissible. • “I’m sorry I hurt you. It was my fault.” = Admissible.

13. Oregon & Colorado: 2003 • Oregon and Colorado enact “Apology” legislation that differs with the trend in two important respects: • First, the Colorado statute broadened the evidence to be excluded so that not only “benevolent gestures” but also “admissions of fault.” • Second, both the Oregon and Colorado statutes narrowed the statute so that it applies only to health care providers.

14. Today • The vast majority of American jurisdictions have some apology legislation (35 or 33 jurisdictions). • Among those with apology legislation, there are many variables but: • Vast majority apply only to medical malpractice (26 of 33). • Small minority specifically exclude admissions of fault (6 of 33).

15. Pennsylvania’s Proposed Apology Law • “…any benevolent gesture or admission of fault…by a health care provider…shall be inadmissible as evidence of liability or as evidence of an admission against interest.” • Law also applies to “an assisted living residence or personal care home or an officer, employee or agent thereof.:

16. Two Key Elements to Proposed Apology Law • The law will modify the longstanding evidentiary rule on admissions by making such evidence inadmissible (at least for specified purposes). • Will put Pennsylvania among a minority of jurisdictions that exclude statements of fault • Like most other jurisdictions, the law changes the rule for only one special group of citizens, i.e., health care providers and related entities.

17. Unprecedented? • Are there other examples of rules that exclude otherwise relevant evidence? • Are there other examples of rules that exclude evidence based upon the status of persons involved?

18. Relevant Evidence is Routinely Kept from Juries • Rule 403 – Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

19. Other Relevant Evidence We Keep Secret for Policy Reasons • Offers to Compromise • Mediation Statements • Paying or Promising to Pay Medical Expenses

20. Status Matters • Privileges Applicable to All People • Physician-Patient Privilege • Attorney-Client • Sexual Assault Counselor • Spousal Privilege • Domestic Violence Counselor • Clergy-Penitent • Accountant-Client • Pschotherapist-Patient Privilege • Informants

21. Privileges/Exlusions Applicable to Special Classes of People • Children • Student Communications Privilege • Juvenile Criminal Proceedings • Dead People • Dead Man’s Rule

22. Health Care Providers • Peer Review Protection Act – The proceedings and records of a review committee shall be held in confidence and shall not be subject to introduction into evidence in any civil action against a health care provider… • MCARE – Both creating the obligation to create and then limiting discovery and use of “serious event” and “incident” disclosure materials.

23. Importance of Equal Treatment Under Law • The Declaration of Independence

24. The Importance of Equality Under Law • The United States Supreme Court

25. Importance of Equal Treatment Under Law • "In its majestic equality the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread." • Anatole France, 1894

26. Is it desirable for the law to give special privileges to people based upon occupation? • If not, are there compelling reasons to treat health care providers (and nursing homes and their employees) differently?

27. Rationale for Excluding Evidence • It is good to apologize and admit fault when one harms another because it makes for a better relationship and it lowers costs by minimizing litigation. • More people would apologize and admit fault if they knew there were fewer consequences associated with owning up to their fault. • Therefore, we should limit consequences with a rule that restricts the use of admissions in a courtroom.

28. Medical Liability Costs • 2010 • $9.7B in Med Mal Payments & Fees/Costs • $47B in “Defensive Medicine” Costs • Total of $57B = 2.4% of Health Care Costs • “National Costs of The Medical Liability System,” Michelle M. Mello, Amitabh Chandra, Atul A. Gawande, David M. Studdert, Health Affairs, September, 2010.

29. Other Liability Costs • Consumer Auto Insurance in 2010 - $161B • Commercial Auto Insurance in 2003 - $27B • Work Comp Insurance in 2010 - $58B • Note: These cost estimates are for indemnity and administrative costs only. The cost of trying to provide a more “liability proof” workplace or automobile are not included.

30. Cost Per Death • 100,000 – 200,000 die every year from preventable medical errors. • 1999, Institute of Medicine “To Err is Human.” • Oct. 2003, JAMA, Health Grades Study • 32,788 killed in car accidents in 2010 (NHTSA). • 4,690 work related fatalities in 2010 • $56 B/100,000 = $560,000/per med fatality • $56 B/200,000 = $280,000/per med fatality • $58B/4,690 = $12,366,737 per work place fatality.

31. Proportion of Filings • Medical malpractice cases constitute 2% of all new civil filings • Medical malpractice cases are only 8% of all tort cases filed.

32. Trends • Medical malpractice indemnity payouts down 25% since 2003. • Medical malpractice filings in PA down 44% from 2000 – 2002 average. • B2B Litigation Up • Patent litigation up 33% since 2000 • M & A litigation up • 2007: 56% of mergers $500M+ begat litigation. • 2011: 96% of mergers $500M+ begat litigation.

33. The Proof Was in the Pudding But the Pudding Was Inadmissible

34. Nursing Home Medication Diversion • Alzheimer’s patient with cancer to receive narcotic pain control and anti-anxiety meds. • Nursing home employee with addiction problem diverts patients meds for personal use but enters 12 step program and confesses to family member, seeking forgiveness. • There is no other evidence of diversion by the nursing home employee.

35. How Do I Blame Thee? Let Me Count the Ways. • Patient is 10 year diabetic who is seen many times for severe foot pain and infection which ultimately develops into osteomylitis and the foot is amputated. • Doctor apologizes to patient, “I’m sorry. I should have ordered a bone scan earlier. We could have saved your foot.” • Patient tells doc, “I’m sorry, too, doc. I should have followed my diabetic diet like you told me and I didn’t. I also didn’t wear those protective coverings you gave me or take my medicine like you said.”

36. Massachusetts RevisitedEffective November 4, 2012 • “…all statements… expressing benevolence, regret, apology, sympathy… mistake, error or a general sense of concern which are made by a health care provider…shall be inadmissible… unless the maker of the statement, or a defense expert witness, when questioned under oath… makes a contradictory or inconsistent statement…, in which case the statements and opinions made about the mistake or error shall be admissible for all purposes…”

37. Conclusion • Apology law could keep relevant evidence secret even if evidence is truthful and important. • Apology law favors HCPs over other Pennsylvanians. • There is no clearly articulable reason for favoring HCPs over other people. • The rule is likely to erode faith in system by denying people their story and by demonstrating that HCPs are given privileges other citizens are not. • Evidence may nevertheless be useable for purposes other than liability or admission.