If you are hurt by a professional’s negligence, you may be wondering what evidentiary rules apply to the professional’s apologies or expressions of sympathy. Can they be used to prove that the professional was negligent? In the recent Maine appellate case Strout v. Central Maine Medical Center, the Maine Supreme Court considered the effect of an apology in a medical malpractice case. The medical center appealed a verdict in favor of the plaintiff. The case arose when the plaintiff sought treatment in the ER for pain in his abdomen. A lesion was found on his liver. A surgeon evaluated his CAT scan and decided he was most likely suffering from cancer.
Days later, the plaintiff went to the office for a follow-up. The doctor telephoned the pathologist in charge of testing the tissue. The pathologist said he would send it for more testing, but that he believed the cancer to be of hepatic or pancreatic origin. He also told the doctor he needed more tissue to finish the assessment.
The doctor told the plaintiff that he was waiting for final results but believed he had liver or pancreatic cancer. He also told the plaintiff that if this was so, the cancer would be inoperable due to the location of the lesion and that even with chemotherapy, patients with these types of cancer usually had less than one year to live.
Weeks later, it turned out that the plaintiff didn’t have either of those types of cancer, but that he suffered from B-cell non-Hodgkins lymphoma. This illness had a five-year survival rate for 85-90% of sufferers. The plaintiff complained about the doctor to the president of the medical center. The president was responsible for all aspects of operations at the hospital, including handling patient complaints. The staff followed the hospital’s procedure for investigating claims and sent the plaintiff a letter.
The letter was lengthy and apologetic. Importantly, it admitted that the doctor should have waited for the results of the biopsy to confirm what the cancer was before telling the plaintiff he would likely die in a year. It also noted that Patient Financial Services would write off the balance of outstanding medical bills for care provided by the doctor.
The parties agreed to waive the pre-litigation panel hearing, and the plaintiff filed a complaint naming the hospital as the defendant. The hosptial asked the court to exclude its director’s letter to the plaintiff because it was an expression of sympathy or benevolence, which is inadmissible under 24 M.R.S. § 2907(2). It also argued that the letter was inadmissible because it was an offer to compromise under M.R. Evid. 403.
At trial, a redacted version of the letter containing only one sentence was admitted into evidence. The redacted version only read that the doctor realized that he should have waited for the biopsy results. The jury returned a verdict of $200,000 for the plaintiff. The hospital appealed.
The Maine Supreme Court explained that under Title 24 M.R.S. § 2907(2), in any lawsuit for professional negligence, a statement that merely expresses apology or sympathy is inadmissible as evidence of an admission of liability or as evidence of an admission against interest. However, a statement acknowledging fault is admissible.
The Maine Supreme Court found there was no error in admitting the part of the letter that contained an admission of fault. The hospital argued that because the letter included a reference to the hospital writing off part of the outstanding balance, it was an offer to compromise. In Maine, evidence of offering to accept a valuable consideration in compromise is not admissible to prove liability.
The Court explained that the letter was sent long before the notice of claim was filed. Therefore, the trial court had properly found the statements were not part of a settlement negotiation. The judgment was affirmed.
If you are hurt due to medical negligence, you should consult a Maine personal injury attorney about filing a claim. It is better to consult a personal injury attorney before you file a claim so that you do not make any admissions during the claims process that could undermine your lawsuit, should it be necessary to bring one. At Briggs & Wholey, our knowledgeable attorneys are available to answer any questions you may have. To schedule a free consultation with an experienced advocate, please contact Briggs & Wholey, LLC at (888) 596-1099 or through our website today.
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