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Can an apology be used as evidence in medical malpractice claim?

Despite years of training and success in treating patients, any physician here in Oregon or elsewhere can potentially make a mistake that ends up causing serious or deadly harm to a patient. When an error is discovered, a doctor might express regret or apologize to the patient and/or the family. In some cases, this is enough to keep the injured party or the family from filing a medical malpractice claim, but in other cases, it is the impetus for filing such a claim.

Some plaintiffs might believe that the apology or expression of regret is an admission of liability that can be used as evidence in the legal proceedings. However, Oregon law says otherwise. Oregon statute ORS 677.082 expressly prohibits such an action by the health care professional believed to have made the error, the facility at which the error occurred or another entity or individual from being used as an admission of liability in civil actions.

Even if the apology or regret was in writing, it cannot be used as evidence. The law goes on to say that the topic may not be broached in a deposition, mediation or arbitration. However, that does not mean that an apology or expression of regret cannot be useful in a medical malpractice claim.

Receiving an apology could be considered the starting point for a medical malpractice claim. It alerts the patient and/or family members that a mistake was made by a medical professional that led to the serious injuries or death that followed. Oregon residents who receive an apology for a mistake would more than likely benefit from taking the information to an attorney who can gather the appropriate evidence needed in order to establish in court that the care received by the patient was not up to current medical standards. The claim could still be successful without introducing the fact that regret was expressed or an apology was given.

Source: oregonlaws.org, "ORS 677.082 Expression of regret or apology", Accessed on Sept. 28, 2016

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