Peacock Tales • Winter 2014

 

Lawyers and Doctors agree: It's OK to Say "I'm Sorry"

By Roger Ecker

After passage by the Pennsylvania House of Representatives and Senate, on October 23, 2013, Governor Tom Corbett signed into law the “Benevolent Gesture Medical Professional Liability Act.”

This new statute allows doctors and other health care providers to make benevolent gestures before the filing of medical malpractice lawsuits, mediations, arbitrations or other administrative actions, and not have those statements or gestures of contrition used against them, as long as such actions are not statements of negligence or fault.

Despite the vigorous debate between doctors and lawyers during the past ten years on issues of professional liability, both groups now agree that saying “I’m sorry” makes sense in certain situations. C. Richard Schott, M.D., President of the Pennsylvania Medical Society and a cardiologist, has offered this perspective:

“As physicians, it is part of our job -- part of our moral and ethical responsibility -- to respond to patients and families when there are less than favorable outcomes . . . . medicine is not an exact science, and outcomes may be unpredictable. Benevolent gestures are always appropriate and physicians should not have to fear giving them.”

According to a number of attorneys, this new rule will be helpful to those involved in potential disputes. Samuel D. Hodge, Jr., a law professor and chair of the Legal Studies Department at Temple University, has concluded that the apology rules in 36 other states have been beneficial.

Harrisburg attorney Scott B. Cooper, President of the Pennsylvania Association for Justice, a trial lawyers group, indicated that trial lawyers have always supported some type of apology rule.

This new Pennsylvania Law protects any action, conduct or statement by a physician or health care provider that conveys a sense of apology, condolence, explanation, compassion or commiseration “emanating from human impulses.” The statute, however, does not protect some factual statements or admissions of negligence for medical errors.

In the past, physicians, not only in Pennsylvania, but in other states around the country, were concerned that if they offered a compassionate statement in the setting of a bad surgical or hospitalization outcome, the physician could be held liable for their expression of sympathy or empathy. However, Dr. Marlynn Wei, a psychiatrist and attorney in New York City, has opined that “the goals of [apology] laws are to be on the side with the patient, as opposed to pitting the doctor and patient against each other.” She also stated that “these laws allow us to be compassionate.”

Whether this new Pennsylvania apology law actually reduces litigation in the future remains to be seen. Whether a given patient ultimately chooses to sue will depend upon a number of factors, including the severity of the injury and whether there is evidence of negligence involved.

In Pennsylvania, both physicians’ and plaintiffs’ attorneys supported this new law. The lawyers defending doctors like the new law because it allows physicians to say they are sorry without that statement being admissible in court. Similarly, plaintiffs’ lawyers like the fact that if there are factual statements made or admissions of negligence, those are still admissible.

On balance, the support of both the defense and plaintiff bar should auger well for the implementation of this new law in Pennsylvania.


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