Parties in peer review hearings can present a wide range of relevant evidence, regardless of its admissibility in a court of law. But California has passed a new “apology law” that modifies that standard, erecting a potential hurdle for medical staffs to admit relevant evidence against practitioners in peer review hearings.
Under California law, statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident are inadmissible in civil trials. (Evid. Code, § 1160.) This law permits “humane, natural sentiments to be uttered by human beings without fear of use against them in litigation.” (Assem. Com. On Judiciary, Comment on Assem. Bill No, 2804 (1999-2000 Reg. Sess.))
This past year, the Legislature expanded this protection for statements healthcare workers make to patients and their representatives in the immediate wake of patient harm. California’s new apology law tracks research showing that physicians who apologize to patients may mitigate many of the communication problems known to prompt malpractice lawsuits. Under the new law, previously protected statements of benevolence and statements “suggesting, reflecting, or accepting fault relating to the pain, suffering, or death of a person, or to an adverse patient safety event or unexpected health care outcome” are not admissible in civil trials. (Health & Saf. Code, § 104340, subd. (a).)
As relevant for medical staffs, the new law applies to more than just civil trials. Qualifying statements are “confidential, privileged, protected, not subject to subpoena, discovery, or disclosure, and shall not be used or admitted into evidence in any civil, administrative, regulatory, licensing, or disciplinary board, agency, or body action or proceeding, and shall not be used or admitted in relation to any sanction, penalty, or other liability, as evidence of an admission of liability or for any other purpose.” (Ibid.)
This new law modifies the liberal admissibility standard in medical staff peer review hearings. Hearing officers have wide latitude on evidentiary issues, and may generally admit any relevant evidence—even hearsay—if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, irrespective of the more formal rules of evidence used in court. (Oliver v. Board of Trustees (1986) 181 Cal.App.3d 824, 834.) But California law now prohibits the use of certain statements about patient harm in any “administrative” or “body action or proceeding”—which includes medical staff hearings.
Imagine a medical staff learns that a surgeon has accepted responsibility for causing a patient death by apologizing to a family member and acknowledging they made an avoidable mistake during an operation. Before the new law, the medical staff could introduce the surgeon’s statement at a peer review hearing as evidence that the member had behaved in a manner reasonably likely to be detrimental to patient safety or to the delivery of patient care. But now, the medical staff cannot rely on those statements, and must develop independent evidence in support of its peer review action.
Hearing officers and medical staff committees should be aware of this new limitation, lest protected statements form the basis of disciplinary action, which would subject a final peer review decision to increased scrutiny upon judicial review. Thorough and well-documented medical staff investigations, conducted in consultation with outside counsel, will help avoid evidentiary complications created by California’s new apology law.
Mike Gawley represents healthcare clients with a focus on litigation and dispute resolution. He has represented medical staffs, medical groups, independent practice associations, ambulatory surgery centers, and other ...
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