The difference between “I’m sorry” and “I was wrong.”
In June 2013, the Pennsylvania Senate passed the Senate Bill No. 379, the Benevolent Gesture Medical Professional Liability Act, also known as the Apology Act. The bill, which passed the Pennsylvania House of Representatives, returns to the House in the fall 2013 to pass the Senate’s version, with one critical change: the Senate’s version removed the protection of statements of negligence or fault.
The purpose of the Benevolent Gesture Medical Professional Liability Act is to create an evidentiary rule that shields statements made by health care providers to patients and their families from use in medical malpractice lawsuits. While the House initially proposed language which included statements of fault, the Senate removed admissions of fault from the language of the Act.
Under the Apology Act, a benevolent gesture made by a health care provider to a patient and/or their family will not be admissible at trial, provided that the statement was made prior to the initiation of suit. C. Richard Schott, M.D. of the Pennsylvania Medical Society, stated that the Senate “watered down” the proposed “apology rule” legislation, and that latitude should be given to health care providers to express sorrow for a bad outcome, without having that apology used against the health care provider down the road in the context of a medical malpractice lawsuit. According to the Pennsylvania Medical Society, health care providers currently “shy away” from having communications with patients and their families because of the aggressive legal climate against health care providers in Pennsylvania.
Health care providers were hopeful that the Apology Act would foster more candid communications with patients and families in order to provide closure and to avoid law suits by diffusing enflamed emotions over a bad outcome. While the House of Representatives presented health care providers with that opportunity, the Apology Act, as passed by the Senate, still leaves health care providers in dangerous waters.
If the Senate’s version of the Benevolent Gesture Medical Professional Liability Act is enacted, Pennsylvania health care providers will remain caught between their desire to show compassion and empathy and their need to protect against a potential lawsuit. A health care provider trying to console a grieving family may wind up hurting herself during a medical malpractice litigation if that provider admits medical error.
Defense counsel must educate health care providers about the types of benevolent gestures that would be inadmissible at trial in the event of litigation. Attempts to explain what happened during the course of treatment will remain admissible, even if the statements are made in the context of an apology. Words can be misinterpreted, therefore, it would be beneficial for health care providers to have communications be brief and witnessed by a third party. In order to enjoy the protections of the Apology Act at trial, it is essential for health care providers to know the difference between “I’m sorry” and “I was wrong.”
Case Law Alerts, 4th Quarter 2013