When you say "I'm sorry" to a patient, does your state consider it an apology or an admission of fault? As the following wrongful death lawsuit shows, it's advisable to find out.

At least 36 states have enacted laws letting physicians say "I'm sorry" to a patient when something goes wrong, without fear that the statement will be held against them in malpractice litigation. In almost all of these states, however, physicians still need to be careful to what they admit. Statements of sympathy, such as "I'm sorry this happened," tend to be protected, but statements such as "I'm sorry we cut an artery" are most likely not.

When he was sued for the wrongful death of a patient, Michael S. Knapic, DO, an orthopedic surgeon in Wooster, Ohio, sought to protect a statement he made to the patient's family by invoking the Ohio "I'm sorry law." Dr. Knapic performed a lumbar microdiscectomy on Barbara Davis in July 2004. Ms. Davis died shortly thereafter. At the time, Dr. Knapic admitted to family members that he had nicked an artery and took full responsibility for it.

After the procedure, Dr. Knapic also indicated to the family he had failed to correct the error immediately, which might have saved Mrs. Davis. Her daughter recalled the surgeon telling her that "as far as the back surgery, everything went fine, but when they rolled her over that her blood pressure started to drop and they did an ultrasound and s[aw] that she was bleeding." Dr. Knapic made a new incision to try to save her, but it was too late. Mrs. Davis' left common iliac artery was completely severed, her iliac vein was lacerated and she bled to death.

His admissions, included as evidence in the wrongful death lawsuit, led to a $3 million judgment against him. He and his practice appealed the decision, claiming his admission should have been protected under the Ohio law. The language in these types of laws varies widely from state to state. Colorado's law goes so far as to protect statements expressing "fault" as well as statements of sympathy. Some states, including Ohio, have somewhat ambiguous language that doesn't clearly distinguish between an apology and an admission of fault. After reviewing the Ohio law in the context of the Davis case, an appeals court decided it wasn't intended to protect admissions of fault and upheld the use of Dr. Knapic's admission in the trial.

In a separate part of its opinion, the appeals court ruled that a gruesome autopsy photo of Mrs. Davis was admissible for jurors to determine Mr. Davis's pain and suffering at her death.

Irene C. Keyse-Walker, the attorney for Dr. Knapic, and Steven P. Okey, the attorney for the Davis family, were unavailable to comment on the case.

The American Medical Association's Code of Medical Ethics states that when physicians make a significant mistake, they are ethically bound to tell the patient all the facts necessary to understand what occurred, and concerns about legal liability should not get in the way. However, a 2003 survey in the Journal of American Medical Association reported that many physicians are reluctant to disclose errors due to fear of litigation.

Leigh Page