In medical malpractice litigation, Maine is one of 30 states to enact a so called “I’m Sorry” law, also sometimes referred to as an “apology statute.” Essentially, our Bangor medical malpractice attorneys know these laws serve to shield health care providers who extend expressions of sympathy following an adverse patient outcome. The laws indicate those statements can’t be used later against the doctor or hospital as proof of an admission of liability.
However, as the recent case of Strout v. Cent. Me. Med. Ctr. shows, the law does not offer absolute protection with regard to these admissions. This is an important point to underscore because medical providers will often attempt to reach out to patients or surviving family in the wake of a poor medical outcome in an effort to minimize the damage, and perhaps deter the patient from filing a lawsuit. It’s important for individuals to save this correspondence, as it could later be useful for the case.
In Strout, the Maine Supreme Judicial Court was tasked with determining whether the trial court erred in allowing portions of a letter from the medical center’s president to the patient into evidence weighed by the jury.
According to court records, the plaintiff went to a local emergency room in the spring of 2009 for treatment of severe abdominal pain. A doctor ordered a CAT scan, which showed a significant legion on the patient’s liver. The doctor who evaluated the scan told the patient that more than likely, the lesion was an indication of pancreatic cancer.
The diagnosis was devastating. Even with chemotherapy, the average life expectancy for patients with this disease is one year. Additionally, the doctor indicated the legion was so large that it was almost certainly inoperable. The patient could expect to measure the rest of his life in months.
A tissue sample was taken to confirm the diagnosis.
However, several weeks passed and the test results showed the doctor was wrong. The patient did not have pancreatic cancer, but rather a different type of lymphoma, in which 95 percent of patients survive five years or longer.
The patient filed a complaint with the president of the medical center. The president responded, saying the administrators and doctors were “saddened” by the course of events, and further that the doctor, though he meant no harm, “needed to wait” for the biopsy results to confirm before offering such a definitive diagnosis.
A few months later, the patient filed a complaint for medical malpractice on the grounds of emotional distress, loss of income and loss of life enjoyment.
The medical center moved to exclude any piece of the letter from evidence, asserting that it fell under the state’s “apology statute,” as codified in 24 M.R.S. 2907(2). The attorneys further argued the letter was not admissible because per the state’s formal rules of evidence, it amounted to an offer to compromise and also that its relevance was substantially outweighed by the potential unfair prejudice it would cause.
The trial court allowed that a portion of the letter would be admissible. Specifically, the judge allowed entry of the part of the letter in which the president conceded the doctor should have waited.
In turn, a jury issued a verdict in favor of the plaintiff for $200,000.
The defense appealed on the grounds that the letter should have been inadmissible. However, the Maine Supreme Judicial Court disagreed.
Justices rejected the argument that the entire letter constituted an apology, when a plain language analysis of it was clear that the president had admitted fault by stating the doctor should have acted differently. Just because an admission of fault is placed within an apology letter, the justices ruled, does not make the entire contents off-limits.
If you are the victim of medical malpractice in Bangor, contact Peter Thompson & Associates at 1-800-804-2004 for a confidential consultation to discuss your rights.
Strout v. Cent. Me. Med. Ctr. , June 10, 2014, Maine Supreme Judicial Court
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