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Bill would bar doctors from admitting fault (UPDATE)

A legislative proposal would prevent a written or verbal admission of fault by doctors in Wisconsin from being used to determine negligence in medical malpractice cases.

Assembly Bill 147 makes inadmissible in court, statements or conduct of health care providers that express “apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy to a patient or patient’s relative or representative.”

The justification for the new law is that similar evidence, such as if measures could have been taken to prevent a medical mistake to prove negligence, are inadmissible in court.

Milwaukee plaintiff’s attorney J. Michael End said the legislation generally favors trial lawyers, but three words in the bill drafted by Rep. Erik Severson, R-Star Prairie, take the proposed law further than it needs to go in promoting disclosure to patients.

End, of End, Hierseman & Crain LLC, said prohibiting doctors to admit fault, liability or responsibility will prevent lawyers, in some cases, from uncovering the truth about an accident.

“This is taking away the power of plaintiffs’ lawyers to cross examine when a doctor makes an admission and then decides to give a different story,” he said.

Severson introduced the bill in May and Wednesday it passed the Assembly Committee on Health by a 7-3 vote. The bill now heads to the Assembly Committee on Rules.

Severson doesn’t share the concern expressed by End. He said the inclusion of words such as “responsibility” and “liability” in the legislation won’t insulate doctors from fault, even if they don’t admit to it.

“Doctors aren’t going to go up to patients and say, ‘I just screwed up, but you can’t use this in a lawsuit’,” Severson said, “because the patient is going to go find the best lawyer to figure out what the doctor did.”

End said, in his experience, doctors tend to be the most honest with patients immediately after an accident occurs.

The law would promote those conversations, but preclude them from helping determine negligence in a case, he said.

“A doctor comes out and spills his guts to a widow who learns what happened,” said End, “but later on when a lawsuit is filed, that doctor might have a different view because he wants to protect his reputation.”

Medical malpractice lawyer Guy DuBeau disagreed, however, and said there are other ways to prove negligence beyond a physician’s admission of guilt.

Attorneys are still entitled to a detailed account of what went wrong in a procedure, he said, and testimony by other surgeons or doctors can determine if an accident was due to negligence.

“You still have to find someone to say what the surgeon did was a violation of the standard of care,” said DuBeau, of Axley Brynelson LLP, Madison. “There is still that requirement, whether the admission comes into play as evidence or not.”

Still, DuBeau said, it is possible that at some point, a physician may try to alter his or her story in court.

“Someone slimy out there could take advantage,” he said. “But they would have other problems anyway, so to me that’s a concern in the abstract.”

In situations where negligence on the part of a doctor is obvious, DuBeau said, admission of guilt is irrelevant.

“The ones that don’t go to suit,” he said, “where there is clear cut liability, it becomes a matter of claims resolution.”

If passed, DuBeau said, the legislation will help eliminate some of the “he said, she said” battles that can occur in medical malpractice cases.

Absent the words dealing with liability, End said, the basis for legislation would be beneficial, in that admission of remorse by doctors, as currently allowed, often doesn’t convince jurors that the doctor is liable for a medical accident.

“Jurors don’t take that as admission of fault,” he said, “and that tends to hurt a plaintiff attorney’s case.”

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