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

Abstract

IN March 2013, Marek Lapinski, a healthy twenty-four-year-old software developer and entrepreneur, reported to Temecula, California office of Dr. Steven Paul, an oral surgeon, to have his wisdom teeth extracted. (1) Mr. Lapinski did not survive routine procedure. (2) According to a patient care report, he awoke, coughing, during operation, was sedated with propofol, and stopped breathing. (3) He died three days later at hospital. (4) April Lapinski, patient's mother, said of Dr. Paul, who was present at hospital, [H]e said he was sorry. (5) After an autopsy pointed to an anesthesia overdose as cause of death, (6) 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 trial approaches, an interesting question could arise as to legal consequences of Dr. Paul's apology to Mrs. Lapinski. Could it be used as evidence of Dr. Paul's negligence, despite fact that it could just as likely have been nothing more than an expression of empathy intended to comfort 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' apologies (9) 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 content of apology in question. This article argues that such protection is necessary, and because underlying policy of protecting apologies is consistent with rationales supporting specialized relevance rules that are already included in Federal Rules of Evidence, an additional rule should be added to govern admissibility of physicians' apologies. Because many states' evidence rules are modeled after Federal Rules, such an addition would be a persuasive and effective means of demonstrating federal government's commitment to fostering doctor-patient relationship--and of encouraging states to do same. I. The Federal Rules of Evidence and Specialized Relevance Rules A. The Role of Federal Rules of Evidence The Federal Rules of Evidence, which took effect on June 1, 1975, (10) were product of a thirteen-year process initiated by then-Chief Justice Earl Warren to draft and enact uniform rules of evidence for use by federal courts. (11) Rather than attempting to codify federal statutory and judge-made law of evidence that existed at time, drafters of Rules instead looked for inspiration to states' efforts to codify their own evidentiary rules. (12) With enactment of Federal Rules of Evidence federal government again took lead; by 2003, forty-two states had statutory evidence codes or court rules modeled after Federal Rules. (13) States are not obligated to follow 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 Rules. (15) Pennsylvania's Rules of Evidence also deviate in some respects from Federal Rules in pursuit of the guiding principle of preservfing] Pennsylvania law of evidence. (16) Perhaps most noteworthy of these departures is Pennsylvania's rejection of federal Daubert (17) standard for admissibility of expert evidence in favor of pre-Rules Frye (18) general acceptance standard. (19) Still, most recent revision of Pennsylvania rule governing admissibility of expert testimony bears a strong resemblance to language and organizational structure of corresponding Federal Rule. (20) This example illustrates that, while states can and do depart from Federal Rules at times, Federal Rules nonetheless play an influential role in serving as a model for law of evidence in great majority of states, even when those states decline to adopt federal Rules to letter. …