Pennsylvania bill assures no-fault apologies

Doctors fear expressions of sorrow


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HARRISBURG -- Pennsylvania will soon join dozens of states in protecting expressions of sympathy by doctors from use as evidence in medical liability lawsuits.

Legislation protecting apologies -- although not admissions of negligence -- by health care providers before the start of a lawsuit unanimously cleared the Pennsylvania House on Tuesday after passing the Senate without contest in June. Gov. Tom Corbett's office said he will sign the measure into law this morning.

The Pennsylvania Medical Society and the Pennsylvania Association for Justice, which represents trial attorneys, both supported the version of the change that was worked out by the bill's prime sponsor, Sen. Pat Vance, R-Cumberland, a former nurse, and Sen. Gene Yaw, R-Lycoming, a former trial lawyer.

The safeguard applies to any "benevolent gesture" made before the start of a lawsuit by a health care provider or assisted living facility. It specifically excludes statements of fault or negligence.

"If somebody said, 'I apologize for the bad outcome, the knife slipped because I was drunk the night before,' something like that is still going to be admissible," Mr. Yaw said.

Ms. Vance, who has sponsored similar legislation for years, cited findings that similar protections have reduced the number of medical liability lawsuits and cut expenses for hospitals in other states. More than half the states have provisions in statute or court rules about apologies by doctors, according to a count by the National Conference of State Legislatures.

"It wasn't that physicians didn't want to apologize. They thought if they did they'd be really sued," Ms. Vance said. "I think that sometimes an apology can dissipate some of that anger."

Dr. C. Richard Schott, president of the Pennsylvania Medical Society and a cardiologist in the Philadelphia region, said doctors should speak to patients or families when something goes wrong, but that they have long been advised otherwise.

"It's very difficult for them to speak to the family when anything they say might be distorted in a way to imply there was negligence or malpractice," he said.

Dr. Schott said he once testified as a character witness for a surgical group in a case involving the death of a patient. He discovered the daughter of the patient was a person with whom he worked.

After the case was resolved -- with a jury finding there had been no malpractice -- the woman asked if he would explain what had happened to her mother, Dr. Schott said. They sat down and spoke for about 10 minutes.

"Her response to me was if anybody had done that to me before, there would never have been a lawsuit," he said. "I think she was sincere. She was a good person, a person I knew and respected."

Scott Cooper, past president of the Pennsylvania Association for Justice, said the group never opposed doctors expressing sorrow but wanted to ensure any facts would remain admissible in court. He said the final product would help legal clients as well as doctors.

"A lot of times you get calls from people who think they might have a lawsuit on behalf of themselves or a family member more because there was no apology," he said. "Not only does it serve the purpose of the physician but it serves the purpose of the victims."

Mr. Corbett included the change as part of the "Healthy Pennsylvania" initiative he announced in September.

Karen Langley: klangley@post-gazette.com or 1-717-787-2141.


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