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Arizona's "I’m Sorry” Law Survives Constitutional Challenge
These laws generally permit expressions of apology and condolences to promote a safe area for sincere human interaction without legal consequences.
In 2005, following the trend in many other states (39 states have similar laws), Arizona enacted A.R.S § 12-2605, an “I’m Sorry” or “Apology” law. The purpose of the law was to encourage healthcare providers to speak with patients freely and with empathy about adverse medical outcomes without fear that their words might be later used against them as an “admission” of fault in a medical malpractice lawsuit. These laws generally permit expressions of sympathy, condolences, and apology to promote a safe area for sincere human interaction without legal consequences.
Until now, the Arizona law had not been challenged. On August 17, 2021, the Arizona Court of Appeals in Coleman v. Amon, No CV-19-0350 (August 17, 2021) upheld the constitutionality of the law, which precludes a healthcare provider’s apology from being admitted into evidence in a medical malpractice action. Specifically, the Court of Appeals found that A.R.S § 12-2605 does not violate the Arizona Constitution’s provisions pertaining to separation of powers, special laws, or privileges and immunities and also found that the trial court did not commit reversible error in addressing certain evidentiary matters relating to the law.
Jodie Coleman was pregnant with twins and her obstetrician, John Brock Amon, M.D., considered her to be a high-risk patient. Jodie, her husband, and Dr. Amon determined that cesarean section was safest for delivery. However, Jodie went into labor before the C-section was scheduled. When Jodie arrived at the hospital, Dr. Amon was already scheduled to perform a C-section on a different patient, so another obstetrician, Dr. William Brown, stepped in to handle Jodie’s delivery. Contrary to Dr. Amon’s recommendation, Dr. Brown told Jodie a vaginal delivery would be the safest method of delivery. The first of Jodie’s twins was born without complication, but the second twin became entrapped in the birth canal and suffered brain injury due to lack of oxygen.
The Colemans sued Drs. Amon and Brown, and the hospital for medical malpractice for the brain injury to the second twin. In her deposition, Jodie testified that Dr. Amon initially told her that he was sorry. She also testified that at her next visit, Dr. Amon told her and her husband “‘how sorry he was, and that he felt he had let [the Colemans] down.’” When Mr. Coleman asked Dr. Amon if Jodie would have lost the second twin had Dr. Brown proceeded with a C-section, according to Jodie, Dr. Amon said, “No.”
Dr. Amon recalled the conversations differently, and denied telling Jodie that he was sorry or that he let the Colemans down. Before trial, Dr. Amon asked the Court to preclude any testimony from the Colemans on the apology conversations under the Arizona “I’m Sorry” law. He did not, however, move to preclude his comment about whether the outcome would have been different if a C-section had been performed. The trial court found that Dr. Amon’s apology to the Colemans fit squarely within the ambit of A.R.S. § 12-26051 and was therefore inadmissible “as evidence of an admission of liability or as evidence of an admission against interest.”
On appeal, the Colemans argued that A.R.S. § 12-2605 is unconstitutional for three reasons: (1) it impermissibly constrains the judiciary’s authority to make procedural rules of evidence; (2) the statute is unconstitutional as a “special law”; and (3) it violates the Arizona Constitution’s privileges and immunities clause.
The Court of Appeals found that the law does not violate the Arizona Constitution’s separation of powers provision because it was not procedural. Rather, it explained that the statute “furthers the legislature’s policy goal of encouraging healthcare providers to speak with patients freely and with compassion about adverse or unforeseen medical outcomes without fear their words might be later used against them in litigation” and represents a valid exercise of legislative authority.
The Court likewise disagreed with the Colemans’ argument that the law is unconstitutional as a “special law” that only benefits healthcare providers.2 Instead, the Court held, among other things, that “I’m Sorry” is not a special law because “it has a rational relationship to a legitimate governmental interest of encouraging healthcare providers to be candid and empathetic with patients.”
Lastly, the Colemans argued that the law violates the privileges and immunities clause of the Constitution because it denies an equal opportunity to “other civil-action defendants by protecting only healthcare workers.” The Court disagreed by stating that the Colemans failed to demonstrate that the statute violates a “fundamental right or creates an invidious classification.”
The last point the Court disposed of was the Colemans’ rule of evidence argument that the trial court should have admitted Dr. Amon’s statements for impeachment purposes. While the Court agreed that the statute “allows apology evidence offered for other purposes,” such as for impeaching a witness,” it also found that the Colemans had failed to preserve this argument for appeal.
This decision serves as reminder that a sincere “I’m Sorry” or expression of condolence, compassion, or apology is a behavior that is sanctioned by law. Such statements to patients may reduce anger, improve communication, promote healing, and, in some circumstances, reduce the risk of a medical malpractice lawsuit. Absent appeal to the Arizona Supreme Court or a legislative repeal, Arizona’s “I’m Sorry” law is here to stay.
1 A.R.S. § 12-2605 states: “Any statement, affirmation, gesture or conduct expressing apology, responsibility, liability, sympathy, commiseration, condolence, compassion or a general sense of benevolence that was made by a health care provider or an employee of a health care provider to the patient, a relative of the patient, the patient’s survivors or a health care decision maker for the patient and that relates to the discomfort, pain, suffering, injury or death of the patient as the result of the unanticipated outcome of medical care is inadmissible as evidence of an admission of liability or as evidence of an admission against interest.”
2 The Arizona Constitution provides that “[n]o . . . special laws shall be enacted that [c]hang[e] the rules of evidence or [g]rant to any corporation, association, or individual, any special or exclusive privileges, immunities, or franchises . . . .” Ariz. Const. art. IV, pt. 2, § 19(3), (13), (20).
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