It’s a question that’s being raised in Maryland thanks to a Maryland legislator’s bill that would disallow a doctor’s testimony in a medical malpractice case. The legislator who’s sponsoring the bill happens to be the only practicing physician in the Maryland Legislature.
Dan Morhaim cites “communicaton problems” as the reason for such legislation barring a doctor’s apology for a medical error or an unfortunate medical outcome. Under current Maryland law, such an admission or apology is admissible in a court of law. Some states, such as Pennsylvania and New Jersey disallow such apologies in medical malpractice cases.
While a doctor’s apology may be interpreted in a variety of ways, it’s open to interpretation. Why not let a jury decide whether it’s a relevant admission of culpability or a simple expression of compassion following an unfortunate medical result?
This issue is part of a larger trend to take away from the jury an integral part of their function-decision making. The jury system is an indispensable part of our justice system. However, recent trends such as capping medical malpractice damages and this issue hamstrings a jury from their true role. They are supposed to make a determination of culpability in civil trials. That’s their role in the justice system. Once legislators start tinkering with that, it weakens the system that has worked for more than two centuries.
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