Practice Economics

Pennsylvania joins states with ‘I’m sorry’ laws


Pennsylvania physicians can now apologize to patients after a poor medical outcome without fear that it will be used against them in court.

The Benevolent Gesture Medical Professional Liability Act unanimously passed the Pennsylvania House of Representatives Oct. 22 and was signed by Gov. Tom Corbett, a Republican, the following day. The legislation is in line with other "I’m sorry" laws across the country, said Dr. C. Richard Schott, former president of the Pennsylvania Medical Society (PAMED).

"Physicians, not only in Pennsylvania but around the country, have been concerned that if they offer a benevolent gesture in the setting of a bad outcome, that they can be held liable for their expression of sympathy or empathy to the patient," Dr. Schott said. "It becomes a barrier to otherwise appropriate communication. Other states have this type of legislation in various forms, and we are delighted that it passed" in Pennsylvania.

Courtesy Jeff Wirick, Pennsylvania Medical Society

Pennsylvania Sen. Patricia Vance (far left) and Rep. Keith Gillespie watch as Gov. Tom Corbett signs the Benevolent Gesture Medical Professional Liability Act into law.

More than 30 states have some form of apology statute aimed at physicians and other health care providers. The language and extent of legal protection however, depends on the jurisdiction, said Dr. Marlynn Wei, a psychiatrist and attorney in New York City.

Pennsylvania law’s protects any action, conduct, or statement that conveys a sense of apology, condolence, explanation, compassion, or commiseration "emanating from humane impulses." The statute does not protect factual statements or admissions of guilt for a medical outcome or error.

Other states such as Colorado and Idaho shield physicians against admissions of fault being used against them in court.

"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," said Dr. Wei, who authored an article on the use and effectiveness of state apology laws (J. Health Law 2007;40:107-59). "These laws allow us to be compassionate."

Whether apology laws actually reduce litigation is unclear, Dr. Wei said. Most patients who experience a poor medical outcome want an apology, but whether they ultimately sue depends on the severity of the injury and whether they believe negligence was involved.

"Most apology laws say these [sympathetic] statements cannot be used against you in court, but they don’t prevent a lawsuit from happening," she said.

In Pennsylvania, both physicians and plaintiffs’ attorneys supported the new law . Proponents said agreement between the two sides led to the legislation’s swift passage.

"Stakeholders were able to put aside their competing interests to come to a compromise," Pennsylvania Sen. Pat Vance (R-Cumberland) said in a statement.

The law’s simple intent made the statute easy for doctors and plaintiffs’ attorneys to agree upon, said George B. Faller Jr., a personal injury attorney in Carlisle, Pa.

"The lawyers defending doctors are O.K. with it because [physicians] can say they’re sorry without it being admissible," he said. "The plaintiffs’ lawyers on the other hand, like the fact that if there are factual statements made or admissions of guilt, those are admissible."

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