"I'm Sorry" as Evidence? Why the Federal Rules of Evidence Should Include a New Specialized Relevance Rule to Protect Physicians

By Gailey, Lauren | Defense Counsel Journal, April 2015 | Go to article overview

"I'm Sorry" as Evidence? Why the Federal Rules of Evidence Should Include a New Specialized Relevance Rule to Protect Physicians


Gailey, Lauren, Defense Counsel Journal


IN March 2013, Marek Lapinski, a healthy twenty-four-year-old software developer and entrepreneur, reported to the Temecula, California office of Dr. Steven Paul, an oral surgeon, to have his wisdom teeth extracted.1 Mr. Lapinski did not survive the routine procedure.2 According to a patient care report, he awoke, coughing, during the operation, was sedated with propofol, and stopped breathing.3 He died three days later at the hospital.4 April Lapinski, the patient's mother, said of Dr. Paul, who was present at the hospital, "[H]e said he was sorry."5 After an autopsy pointed to an anesthesia overdose as the cause of death,6 the Lapinski family filed a medical malpractice suit against Dr. Paul in Los Angeles County on March 19, 2014.7 A September 2015 trial date has been set.8

As the trial approaches, an interesting question could arise as to the legal consequences of Dr. Paul's apology to Mrs. Lapinski. Could it be used as evidence of Dr. Paul's negligence, despite the fact that it could just as likely have been nothing more than an expression of empathy intended to comfort the grieving family? The use of apologies as evidence of liability is a recurring issue in medical malpractice litigation. The Federal Rules of Evidence currently contain no provision barring physicians' apologies9 to patients from being admitted as evidence of fault. Whether state law offers any protection varies from jurisdiction to jurisdiction, and even where some degree of protection is offered, whether those protections apply depends on the content of the apology in question.

This article argues that such protection is necessary, and because the underlying policy of protecting apologies is consistent with the rationales supporting the specialized relevance rules that are already included in the Federal Rules of Evidence, an additional- rule should be added to govern the admissibility of physicians' apologies. Because many states' evidence rules are modeled after the Federal Rules, such an addition would be a persuasive and effective means of demonstrating the federal government's commitment to fostering the doctor-patient relationship-and of encouraging the states to do the same.

I. The Federal Rules of Evidence and the Specialized Relevance Rules

A. The Role of the Federal Rules of Evidence

The Federal Rules of Evidence, which took effect on June 1, 1975,10 were the product of a thirteen-year process initiated by then-Chief Justice Earl Warren to draft and enact uniform rules of evidence for use by the federal courts." Rather than attempting to codify the federal statutory and judge-made law of evidence that existed at the time, the drafters of the Rules instead looked for inspiration to the states' efforts to codify their own evidentiary rules.12 With the enactment of the Federal Rules of Evidence the federal government again took the lead; by 2003, forty-two states had statutory evidence codes or court rules modeled after the Federal Rules.13

States are not obligated to follow the Federal Rules.14 Rather, they may deviate as much or as little as they see fit. California, for example, uses its own evidence code, which pre-dates the Rules.15 Pennsylvania's Rules of Evidence also deviate in some respects from the Federal Rules in pursuit of "the guiding principle" of "preserving] the Pennsylvania law of evidence."16 Perhaps the most noteworthy of these departures is Pennsylvania's rejection of the federal Daub eré7 standard for the admissibility of expert evidence in favor of the pre-Rules Frye8 "general acceptance" standard.19 Still, the most recent revision of the Pennsylvania rule governing the admissibility of expert testimony bears a strong resemblance to the language and organizational strucmre of the corresponding Federal Rule.20 This example illustrates that, while the states can and do depart from the Federal Rules at times, the Federal Rules nonetheless play an influential role in serving as a model for the law of evidence in the great majority of states, even when those states decline to adopt the federal Rules to the letter. …

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