It’s likely that Pennsylvania won’t be the 36th state to pass so-called “benevolent gesture” legislation, which keeps medical personnel’s apologies and compassionate statements from being used against them in malpractice suits.
State medical interest groups came out heavily in favor of the bill when it was introduced in February. It passed out of the House of Representatives in March. But that version, along with a similar version from the Senate, are locked down in the Senate’s Judiciary Committee. The committee chairman, Sen. Stewart Greenleaf, said he won’t move ahead without a compromise on whether some details of apologies can be disclosed.
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“I have been trying to have this without people saying ‘my way or no way,’ ” Greenleaf said. “I support apology legislation and think it’s helpful to everyone: the victim, [the provider] and the institution involved. But at the same time, it’s counterproductive and unfair to prevent details of the apology” from being disclosed.
The issue, Greenleaf said, is “how far the doctor or health care provider can go in describing or admitting fault and what that should be, and so far we’ve not been able to have that discussion.”
Champions of the benevolent gesture legislation – also called the “I’m sorry” law – say it boosts the doctor-patient relationship by enhancing trust. They also point out that it has reduced medical malpractice suits and court expenses. The thinking is that anger, not greed, motivates medical malpractice cases. By giving patients a full explanation for why a medical procedure failed to produce the desired outcome this anger would theoretically be defused.
The American Medical Association and the American Bar Association support it.
Personal injury lawyers? Not so much. Commenting on the legislation in Massachusetts on its blog, Breakstone White Gluck said:
“We encourage doctors and hospitals to recognize their moral obligations to be open and honest with their patients. If there is negligence, that is what insurance is for.”
In general, the laws prevent plaintiffs from introducing into court evidence statements or gestures that conveys a sense of apology, condolence, explanation or compassion regarding the patient’s or resident’s discomfort, pain, suffering, injury or death, regardless of the cause. But the wording of the bill varies from state to state. The 35th state to approve the law, Michigan, allows statements of fault or negligence to be used in court.
Pennsylvania’s is worded so that the apology, along with other benevolent gestures, is inadmissible.
“In my view, the bill has no value if you do not include apologies in the legislation,” said Scot Chadwick, vice president for governmental affairs with the Pennsylvania Medical Society.
“It’s very straightforward,” Chadwick said. “When there’s an unanticipated outcome or error, patients have questions and doctors want to give answers. The trouble is that there is an invisible trial lawyer in the corner taking notes and that has a chilling effect on discussion of outcomes.”
