Do doctors need a law to say "I'm sorry?"

PROVIDENCE, RI – Since 2007, Rhode Island doctors have pushed for legislation that gives them permission to do something very simple- say "I'm sorry." Lawmakers are reviewing the proposal once again this year. Rhode Island Public Radio's health care reporter Megan Hall spoke with one women who wanted to hear those words on a Valentine's Day nearly 30 years ago.

Twenty six years ago today, Dawn Wardyga gave birth to twin boys.

"I said to my husband, maybe we'll get lucky and we'll have Valentines babies. Not knowing that night that my water would break," she says.

Wardyga called her doctor and prepared to go to the hospital. But he told her to wait.

"My words were, 'Are you sure you want me to stay at home?' And he said 'Yeah, you should be fine. Once your contraction starts, I want you to time them and when they get to be 8 to 10 minutes apart, I need you to go to the hospital.'"

So Wardyga waited. And that's when the birth of her Valentines babies started to go wrong. Instead of contractions that begin and end, she only felt continuous, excruciating pain. By then it was too late. Wardyga gave birth to her first son, in her living room. A rescue vehicle rushed her to the hospital to deliver the second baby. She knew this son was in a breech position, and the plan was to turn him around or perform a C-section, but there was no time for that.

Wardyga didn't know what happened until about an hour later, when her doctor visited her in the recovery room.

"He came out, he asked me how I was feeling, I said I'm ok, but I want to know what's going on with my baby' and he said, Well, your son suffered a neurological insult,' and in my head I'm thinking, what the hell does that mean?"

What that meant was her second son, Jason, the one who was born in the hospital, had severe brain damage. So severe he couldn't nurse or even lift his own head.

Wardyga says her doctor wouldn't look her in the eye at her next appointment. He asked her to come into his office.

"His words to me were, I'm disappointed with the outcome. My response to him was, nobody's more disappointed than I am," she says.

Dr. Nitin Damle, the president of the Rhode Island Medical Society says physicians don't want to talk this way, but they often have to.

"We can offer empathy but we have to be careful about that because we don't want it to be seen as an admission of guilt that could be used against us," he says.

Damle says the fear of being sued creates an alienating barrier between a doctor and their patient, right at the time they need each other the most. That's why he's supporting a bill that bans phrases like "I'm sorry" from being used against doctors in court. More than thirty states have similar laws.

Patrick Barry is a medical malpractice attorney in Providence. Trial lawyers like him have successfully lobbied against the bill every year. He says the legislation does more than allow apologies; it excludes information that's vital to medical malpractice cases.

"So if a doctor were to say, we're very sorry about your mother's death, and I'm sorry I cut the wrong structure during surgery and I'm sorry there was an inexperienced resident during the surgery and I'm sorry that they're the ones who did it, all of those things would be excluded," he says.

That might have been true of an older version of the legislation, which prevented all statements about a patient's treatment from being used in court, but a newer version only protects them from expressing what it calls "apology, sympathy, compassion, condolence, or benevolence." Barry won't say he supports this language, but he doesn't say he's against it either.

" I guess what I can say at this point is I've actually seen multiple bills presented for this year, so I don't want to say one thing that might impact some discussion on a different bill," he says.

The Rhode Island Medical Society says it's advocating for the newer version of the bill. Doctors hope the revised language is something trial lawyers can agree with.

As for Dawn Wardyga, rigorous physical therapy, a tracheotomy, and lots of love weren't enough to save her son Jason. He died before his 2nd birthday. Wardyga says she had no choice but to sue her doctor.

"Would I have preferred not to even entertain a court case on this? Man you bet," she says.

The trial was brutal, stressful, and in the end unsuccessful. She believes physicians shouldn't need legislation to do what's only human. But if that's what it takes to hear the words "I'm sorry," she'll support it.

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