Surgeon loses $3.3 million verdict after saying to family that he's sorry

Real problem may be that he said more than that

A $3.3 million verdict against a doctor who apologized to his patient's family for her death is leading some healthcare professionals to wonder if the push for apologies and transparency has a dark side. Are risk managers encouraging physicians to say something that actually will work against them in court?

Michael Knapic, DO, and his attorney certainly think so. They say he is being punished for expressing regret about his patient's death and that the Ohio apology statute intended to protect such statements has no value. Others say Knapic lost the case not because he said he was sorry, but because of what else he said.

The plaintiff, Leroy Davis of Glenmont, OH, sued Knapic, of Wooster Orthopaedics and Sports Medicine in Wooster, OH, after his 49-year-old wife, Barbara Davis, passed away following a lumbar microdiscectomy performed on July 23, 2004. The plaintiff accused him of severing Davis's left common iliac artery, lacerating her iliac vein, and "failing to timely diagnose and treat" the resulting medical condition, according to court records.

According to the trial transcript, Davis testified that, after the surgery, "Dr. Knapic ... said the back surgery went OK but he nicked an artery, and he takes full responsibility and it was my fault." Later, the jury heard Davis's adult daughter, Pamela Bickel, testify that, after the surgery, Knapic "said as far as the back surgery, everything went fine, but ... when they rolled her over that her blood pressure started to drop and they did an ultrasound and s[aw] that she was bleeding, that at some point an artery was nicked. . . . And he said, 'It's my fault. I take full responsibility.'"

During her pre-trial deposition, Bickel reported that Knapic said he was "sorry." However, that testimony was not submitted as evidence during the trial.

Broad interpretation needed, doctor says

Both sides involved in the case agreed that Ohio state law prohibits a healthcare professional's statement of sympathy as evidence in malpractice cases. They differed sharply, however, on whether or not admissions of liability or fault could be admitted.

Knapic's attorney, Christopher Humphrey, JD, of Canton, OH, argued that the definition of "apology" implies an expression of fault and admission of error. The state law intends to protect the physician-patient relationship following adverse medical events, he told the court, and so the legislature must have wanted Knapic to be able to say he took responsibility without that being used against him in court.

The plaintiff, however, argued that the law does not exclude a direct admission of fault as evidence. The trial court agreed. Knapic and his practice group challenged the verdict, but the Ohio Court of Appeals upheld the lower court's ruling. The court of appeals stated in its decision that the intent of the law is "to protect pure expressions of apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence, but not admissions of fault."

The court went on to explain that a "physician may speak with a patient or a patient's family members and express his heartfelt sympathy for their pain following a negative outcome without risk of that expression of sympathy being used against him in court."

The case will be appealed to the Ohio Supreme Court, says Christopher Humphrey, JD, an attorney with the law firm of Buckingham, Doolittle & Burroughs in Canton, OH. The appeals court interpretation of the Ohio apology law effectively renders the statute meaningless, he argues. "I think a risk manager has to advise people now that until this is clarified you can't really say anything because we don't know what is fair game," Humphrey says. "The court is essentially saying that you can say you're sorry, but anything after that is an admission against interests."

Knapic denies that is admitted liability to the patient's family, Humphrey says. The case should have hinged on whether the surgeon was liable for nicking the artery or whether that was a known risk of the procedure and the doctor did not violate the standard of care, he says. Instead, Humphrey says the trial was focused on what the surgeon said to the family afterward.

Under the rulings of the trial court and appeals court, Humphrey says, a doctor can say only "I'm sorry" and not much else. That is not realistic, he says. "If you say anything other than 'I'm sorry that that happened,' you're essentially saying 'I violated the standard of care in a way that directly and proximately resulted in harm, and you're entitled to damages,'" he says. "In that case, the statute is meaningless. If you say you're sorry, and the family and asks 'for what?' and you say you can't comment any further, you've just made it worse."

Sources

• Christopher Humphrey, JD, Buckingham, Doolittle & Burroughs, Canton, OH. Telephone: 330-491-5232. E-mail: chumphrey@bdblaw.com.

• Grena Porto, RN, MS, ARM, CPHRM, Principal, QRS Healthcare Consulting, Hockessin, DE. Telephone: (302) 235-2363. E-mail: gporto@qrshealthcare.com.

• Doug Wojcieszak, Founder, Sorry Works! Coalition, Glen Carbon, IL. Telephone: (618) 559-8168. E-mail : doug@sorryworks.net.