Many legal experts say physicians who apologize for errors in the OR stay out of the courtroom. Tell that to Michael Knapic, MD, the orthopedic surgeon from Ohio who was slapped with a $3.3 million lawsuit after admitting that an accidental slip of his knife during back surgery caused the patient to bleed out.

Barbara Davis, then 49, passed away following a lumbar microdiscectomy performed on July 23, 2004. Her husband, Leroy Davis, sued Dr. Knapic for negligence in performing the procedure, accusing him of severing Mrs. Davis' left common iliac artery and lacerating her iliac vein, and "failing to timely diagnose and treat" the resulting medical condition, according to court records.

During the trial, Mr. Davis and his daughter, Pamela Bickel, testified that Dr. Knapic admitted he nicked an artery and took full responsibility for doing so. Court records show that Ms. Bickel, during her pre-trial deposition, claimed Dr. Knapic said he was "sorry," but that testimony was not submitted as evidence during the trial.

The sides involved in this case agreed that Ohio state law prohibits a healthcare professional's statement of sympathy as evidence in malpractice cases. They differed, however, on whether or not admissions of liability or fault could be admitted.

Dr. Knapic argued that the definition of "apology" implies an expression of fault and admission of error. He believed state law intends to protect the physician-patient relationship following adverse medical events. Mr. Davis, however, believed the law does not exclude a direct admission of fault as evidence.

The trial court agreed. Dr. Knapic and his practice group challenged the verdict, but the Ohio Court of Appeals upheld the lower court's ruling, stating in its decision that intent of the law is "to protect pure expressions of apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence, but not admissions of fault."

According to the appeals court, the law keeps the physician-patient relationship intact. It ruled, "A physician may speak with a patient or a patient's family members and express his heartfelt sympathy for their pain following a negative outcome without risk of that expression of sympathy being used against him in court."

Daniel Cook