PHOENIX (Legal Newsline) - A doctor’s disputed apology to parents whose child was severely disabled during birth can’t be used as evidence against him in a malpractice lawsuit, an Arizona appeals court ruled, rejecting a constitutional challenge to a state law protecting expressions of sympathy.
Sean and Jodie Coleman sued their doctors after Jodie delivered twins, one of whom suffered oxygen deprivation and brain damage after getting stuck in the birth canal. The Colemans accused their obstetrician, John Brock Amon, of contributing to the injuries in part because he handed off the delivery to a colleague who didn’t follow his advice of performing a caesarian section.
The Colemans testified that Dr. Amon visited after the delivery and told Jodie he was sorry. Sean testified he asked the doctor whether the baby still would have been injured with a C-section. Jodie testified “Dr. Amon put his head down and said `No.’”
Dr. Amon denied telling the Colemans he was sorry and said he told them “it’s kind of hard to discuss” what would have happened if the twins had been delivered by C-section.
Before trial, Dr. Amon asked the court to exclude any testimony that he had apologized, citing Arizona Statute 12-2605, which protects healthcare providers from having any “statement, affirmation, gesture or conduct expressing apology, responsibility, liability, sympathy, commiseration, condolence, compassion or a general sense of benevolence” used against them. The 2005 law is similar to statutes in at least 38 other states.
The plaintiffs argued the law violates the Arizona Constitution, but even if it didn’t, it should be construed strictly and the doctor’s admission should be allowed to undercut the truth of his testimony.
“His statements that he was sorry, and that he let the Colemans down, are admissible to impeach his testimony,” the plaintiffs argued.
They also argued the law Impermissibly interferes with the judiciary’s authority to make procedural rules of evidence, which is laid out in Articles III and IV of the Arizona Constitution.
The trial judge rejected their constitutional arguments, but left open the possibility the plaintiffs might be able to use their account of the doctor’s apology to cast doubt upon the honesty of his testimony, if the trial proceeded in a direction that opened the door to such a challenge. It didn’t, and the jury ruled for the defense.
The Colemans appealed, but the Arizona Court of Appeals, in an Aug. 17 decision, upheld the dismissal.
The appeals court firmly rejected the plaintiffs’ constitutional arguments, saying that while the Arizona Constitution gives the judiciary branch sole authority to make procedural rules of evidence, the legislature is permitted to pass laws that make substantive changes in those rules. The difference is whether the law advances a larger policy goal, the appeals court said.
Privilege rules exclude a lot of highly relevant evidence, for example, but they further the goal of physician-patient and attorney-client confidentiality. In this case, the no-apologies law furthers the legislature’s policy goal of encouraging healthcare providers “to speak with patients freely and with compassion” about the fear of having their words used against them in a lawsuit.
The plaintiffs also argued the law violated a provision of the state constitution prohibiting “special laws” that benefit a single entity or class. But the Arizona Supreme Court has interpreted that provision to allow laws that have a rational purpose, encompass all similarly situated members of a class and are elastic enough to allow others to enter or exit the class.
The apology law covers all “health care providers” and is broad enough to pass muster, the appeals court said. It rejected the plaintiffs’ arguments based on the constitution’s privileges and immunities clause for a similar reason.
The appeals court didn’t rule directly on the possibility an apology could be used to impeach a doctor’s testimony, since the plaintiffs didn’t attempt to do so during the trial. The Colemans “had to bring the matter to the court’s attention if they believed Dr. Amon had opened the door to such evidence,” the appeals court said.