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Will Apologies From Doctors Transform Pennsylvania Medical Lawsuits?

Posted Scott B. Cooper on Dec 02, 2013 in Medical Malpractice

The Power of the Words, “I’m Sorry”

As we’ve noted before, occasionally a doctor’s, surgeon’s, or hospital’s mistake means that a patient’s condition worsens rather than improves. Sometimes the mistake is so destructive that the patient must deal with lifelong complications.

Sometimes the patient dies.

It’s also a fact of the medical profession that not every patient can be saved. Sometimes doctors, surgeons, and hospital staff will do everything right—they will follow the best practices for medical care across the board—and the outcome will still be tragic or fatal.

The normal human reaction in this case would be for the health care provider to reach out and express sympathy to the patient, her family, and her friends. Surveys across the years have found that a sympathetic word at just this moment can be incredibly helpful for everyone.

Unfortunately, the law stands in the way. Medical professionals are sternly warned by their lawyers and malpractice insurers never to say “I’m sorry” or otherwise express regret, because that sort of statement might be introduced in court as an admission of responsibility.

This stern approach is not helpful. After a patient dies, the family hopes for a compassionate word from the doctor or hospital, but gets only a final itemized bill. This seems cold-hearted and arrogant. Often, families believe that this refusal to talk to them about their loss conceals a deliberate cover-up for medical mistakes. Forcing medical care providers to act in a stilted, unnatural, and unsympathetic manner probably provokes many medical malpractice lawsuits in Pennsylvania.

The Benevolent Gesture Medical Professional Liability Act

Governor Tom Corbett recently signed into law Senate Bill 379, the Benevolent Gesture Medical Professional Liability Act, that many hope will reverse this tendency. The law changes the rules for the justice system in the Commonwealth. From this point onward, doctors and other health care providers are free to make sympathetic statements, apologies, or other “gestures of contrition” following a bad medical outcome—and those statements or symbolic acts cannot be used in court as admissions of responsibility.

More than 30 other states already have similar laws on the books. In a rare example of bipartisanship, Senate Bill 379 passed easily through both houses of the State Assembly. Lobbyists for both trial lawyers and doctors—normally on opposite sides of many issues—supported the legislation from the beginning, and this fact helped the legislation win approval.

Of course, the law is too new for us to know with certainty how it will work in practice. But here at Schmidt Kramer, we hope that timely expressions of sympathy and condolence will mean fewer medical malpractice lawsuits will be filed. Families suspicious about the death or injury of a loved one during medical treatment formerly could only turn to the courts to demand a full accounting for the loss they suffered. With the Benevolent Gesture Medical Professional Liability Act, though, we can expect that health care professionals will be able to ease the concerns of many families; the courts will only be needed for true cases of negligence and malpractice.

One Lingering Worry About the New Law

It may take a year or two before we learn how this new law fits in with the precedents and traditions of Pennsylvania’s legal system. It’s possible we will see some surprises.

Our Harrisburg medical malpractice lawyers have one lingering worry about the Liability Act, based on how the courts in some other states have interpreted their similar state laws. Our concern: if a medical professional goes beyond saying, “I’m sorry for your loss” and admits to the family, “Oh, my, we made dozens of errors during surgery and that’s why your grandfather died,” such an admission of negligence may also be suppressed by the new law. Even a blatant admission of responsibility may not be admissible in court. The new law would become a barrier to seeking justice rather than a step toward healing.

We will continue watching how the courts handle the new law to see if this problem develops in Pennsylvania as in other states. Until we see signs of a worrisome trend, we will trust that allowing apologies from doctors in Pennsylvania will be good for both medical care and the legal system.

Our medical malpractice law firm accepts clients from central Pennsylvania and elsewhere in the Commonwealth who have suffered serious complications due to negligence by health care personnel. Contact our Harrisburg office at 717-888-8888 or 888-476-0807 toll-free to schedule a free, confidential case review.