For doctors, hospitals, 'sorry' is a hard word to say

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When a physician or hospital screws up, sometimes all a patient wants is an apology.

But they often don't get one, because the apology could be construed as an admission of negligence -- and could become fodder for a future malpractice lawsuit.

The state Legislature has once again taken up bills that would make inadmissible in medical malpractice lawsuits any admissions of liability that doctors and other health care providers make to patients while apologizing or extending "benevolent" gestures of compassion.

Similar bills have been introduced in both the House and the Senate.

There are 36 states that have approved "apology laws" in one form or another, said Samuel D. Hodge Jr., a professor and chair of the legal studies department at Temple University, who has written about such laws.

"The studies have found apologies have a benefit," Mr. Hodge said. "They tend to reduce the lawsuits and the cases settle ... A lot of times, people just want to hear the apology."

State Rep. Ronald S. Marsico, R-Dauphin, chairman of the House Judiciary Committee, said House Bill 57 is a "common-sense piece of legislation. It provides protection for health care providers." He expects to have a hearing on the legislation sometime this spring.

Mark E. Phenicie, legislative counsel for the Pennsylvania Association of Justice trial lawyers group, contested the policy behind both the House and Senate bills.

Both pieces of legislation would make inadmissible in medical malpractice cases any benevolent gesture or admission made by a health care provider or provider's agent to patients or their relatives and representatives regarding any "discomfort, pain, suffering, injury or death resulting from the provider's treatment or care."

Mr. Phenicie said the current practice in Pennsylvania allows doctors to see patients and tell them they are very sorry something bad has happened to them. But admissions of negligence, such as a doctor coming in and apologizing for missing a call to the hospital while he or she was out golfing, should be allowed at trial, Mr. Phenicie said.

The Senate bill was moved out of the Banking and Insurance Committee on Feb. 5.

State Rep. Keith Gillespie, R-York, in his memorandum seeking co-sponsors for House Bill 57, wrote that, "Fear of litigation may hamper a doctor's full disclosure of errors and unanticipated outcomes."

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Amaris Elliott-Engel: aelliott-engel@alm.com or 1-215-557-2354. To read more articles like this, visit www.thelegalintelligencer.com.


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