Voluntary Mutual Agreements

The physician and the patient may voluntarily enter into a mutual agreement to keep an apology confidential, thereby excluding its discovery and admissibility as evidence in a subsequent court action. Such confidentiality agreements are often limited by statutory provisions and, if the agreement serves to preclude a court from hearing evidence, it is often disregarded as contrary to public policy.

Common Law

At common law, an apology that admits fault is ordinarily admissible to prove liability. All statements made in the course of settlement negotiations, including an apology, can be admitted into evidence. Therefore, an apology can be admissible as evidence at trial, and an apology that is entered into evidence is considered to be an admission. There are two exceptions to the common law rule: first, apologies framed as a hypothetical are not admissible; second, apologies that are preceded by exclusionary words such as “Without prejudice to any of his legal rights, the defendant admits…” are also inadmissible.

Depending on the wording, an apology may be viewed by the court as an innocent expression of sympathy versus an overt, highly probative admission of wrongdoing. The choice of words becomes critical in distinguishing a mere apology from a clear admission of liability, as depicted in the following cases.

In Greenwood v. Harris,¹ the defendant doctor operated mistakenly on an “intra-abdominal tumor,” which was an enlarged, gravid uterus. Postoperatively, the defendant physician reportedly said “… this is a terrible thing I have done. I wasn’t satisfied with the lab report. She did have signs of being pregnant. I should have had tests run again. I should have made some other tests … I’m sorry.” The Oklahoma Supreme Court held that it was not possible to interpret the defendant’s statements other than an admission that the defendant failed to use and apply the customary and usual degree of skill exercised by physicians in the community. But in Sutton v. Calhoun,² the Oklahoma Supreme Court held that the defendant doctor’s statement that he had made a “mistake” in cutting the patient’s common bile duct at surgery could not be considered an equivalent of an admission of negligence.

In Phinney v. Vinson, the Supreme Court of Vermont concluded that an apology is not the automatic equivalent of legal liability for wrongdoing.³ In Phinney, the plaintiff argued unsuccessfully that the apology alone was sufficient evidence of liability. In Senesac v. Associates in Obstetrics & Gynecology,⁴ the Vermont Supreme Court held that an alleged statement by the defendant doctor to the effect that she had “made a mistake and she was sorry, and that it had never happened before” was not sufficient to establish breach of the standard of care.