Harrisburg Watch

Legislation that would create an evidentiary rule that doctors' apologies to patients could not be used in medical malpractice lawsuits may lead to fewer such claims in Pennsylvania, several attorneys have told Pennsylvania Law Weekly.

The state Senate last month passed the Benevolent Gesture Medical Professional Liability Act, which would allow health care providers to make benevolent gestures prior to the start of medical malpractice lawsuits, mediations, arbitrations or administrative actions and not have those statements or gestures of contrition used against them.

But the legislation was revised to not cover any statements of negligence or fault.

Samuel D. Hodge Jr., a professor and chair of the legal studies department at Temple University who teaches a course to law students on anatomy, said the apology rules in 36 other jurisdictions have shown benefits.

According to an article Hodge and assistant Nicole Marie Saitta wrote on the state of apology laws, 16 other states have made apologies inadmissible but statements of fault admissible.

Medical malpractice lawsuits have been cut down in other states because sometimes they are filed simply because patients want answers or families want closure, Hodge said.

Having closure because of a sense of contrition from health care providers can make it easier to resolve cases, Hodge said, because then it's "not a matter of indignity. It's a matter of what the case is worth."

Scott B. Cooper of SchmidtKramer in Harrisburg, the 2012-13 president of the Pennsylvania Association of Justice trial lawyers group, said the trial lawyers have always supported some type of apology rule.

The original version of Senate Bill 379, which was primarily sponsored by state Senator Patricia Vance, R-Cumberland, would have, for example, made inadmissible an apology by a doctor who had been on an all-night bender and who revealed that his or her state might have contributed to a medical error, Cooper said.

"The doctors and the hospitals and the nursing homes always believe if they are able to say they're sorry that there would be less lawsuits," Cooper said. "Quite frankly, a lot of members don't mind doctors who say they are sorry," because they often have people call them up thinking they have malpractice cases when the physicians didn't say they were sorry.

The question is whether the state House of Representatives will pass the Senate's version of the bill when returning from recess in the fall, Cooper said. The House previously passed a version of apology-rule legislation that would disallow the admissibility of not only benevolent gestures by health care providers but also any admissions of fault.

Dr. C. Richard Schott, president of the Pennsylvania Medical Society, said that while the Senate watered down the apology-rule legislation, the society remains supportive of enacting the apology-rule legislative proposal.

There should be "some latitude to be able to express, to be able to explain to people what happened … without fear that doing that would be used in an incriminating way," Schott said.

Admissions of fault could be helpful in explaining things to patients or their families, Schott said.

"My personal feeling and the sentiment of the medical society is it's part of our job, part of our moral and ethical responsibility, to respond to patients and families when there is less than favorable outcomes," Schott said, because medicine is not an exact science and explanation is always needed.

Because of "the current legal climate, especially in Pennsylvania, where we have a very aggressive trial lawyer situation," physicians often shy away from those conversations, Schott said.

Medical malpractice defense attorney Gary M. Samms, chair of Obermayer Rebmann Maxwell & Hippel's professional liability practice group, said he supports the apology rule to improve "doctor-patient relations and give patients and their families some closure and the doctors the protection from liability."

If physicians are perceived to be uncaring or unemotional about an untoward outcome, then families are more likely to file lawsuits, Samms said.

"I would tell a doctor, once this passes, any benevolent gesture that conveys a sense of … compassion from their general humane impulses would be appreciated and would greatly decrease the level of anxiety and anger that a family may have or a patient may have," Samms said. He said that might help alleviate the possibility of lawsuits.

But Samms said he would advise clients to always have witnesses to those conversations.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter 
@AmarisTLI. •