Pennsylvania physicians, hospital executives and other providers
may now apologize and offer other benevolent gestures to patients,
their families and representatives without such statements becoming
evidence against them in medical malpractice suits. On October 23,
2013, Governor Corbett signed Senate Bill 379 into law which
renders "benevolent gestures" inadmissible as evidence of
liability in a malpractice suit.
This evidentiary rule has been championed as a type of medical tort
reform intended to encourage frank discussions with patients and
residents as well as their relatives and representatives.
Commentators are divided, however, as to whether the measure will
actually reduce the number of medical malpractice suits filed in
the state.
Who can offer a benevolent gesture under the
statute? The statute extends to benevolent gestures made
by physicians, hospitals, nursing homes, assisted living
residences, primary health care centers, personal care homes, birth
centers, certified nurse midwives and their officers, employees and
agents.
To whom can a benevolent gesture be offered under the
statute? The law covers benevolent gestures to a patient,
a patient's relative, or a patient's representative
designated to make medical decisions under a power of attorney over
health care matters. It is unclear at this time whether benevolent
gestures to a patient's same-sex partner are covered. The
statute defines a "relative" as a spouse, parent,
stepparent, grandparent, child, stepchild, grandchild, brother,
sister, half-brother, half-sister, spouse's parent or any
person who has a "family-type" relationship with the
patient.
What constitutes a benevolent gesture under the
statute? A benevolent gesture includes any action,
conduct, statement or gesture that conveys a sense of apology,
condolence, explanation, compassion or commiseration emanating from
humane impulses. In addition, the benevolent gesture must pertain
to the patient's discomfort, pain, suffering, injury or death
and result from any treatment, consultation, care or service
provided by the provider or omission thereof. The statute does
not apply to communications, including excited utterances,
that also include a statement of negligence or fault pertaining to
an accident or an event.
When are benevolent gestures covered under the
statute? The law only shields benevolent gestures that are
made prior to the commencement of a medical professional
liability action, liability action, administrative action,
mediation or arbitration from admissibility in a medical
malpractice suit. Therefore, it is incumbent on providers to make
benevolent gestures as close in time to the triggering event as
possible to ensure that the statement is covered under the
statute.
Conclusion. By affording malpractice liability
protection, the new law encourages providers to apologize and make
other benevolent gestures in response to patient injuries and other
adverse events. Such expressions, if perceived to be meaningful and
sincere rather than empty or self-serving, may well reduce the
likelihood of some malpractice lawsuits. This law will create some
challenges, however, as providers should exercise care to ensure
that their communications fall within the scope of the statutory
protections. Given the potential fine line between an apology and
an admission of fault, the articulation of these statements will
need to be carefully crafted to ensure that they do not backfire so
as to increase potential liability.
This article is presented for informational purposes only and is not intended to constitute legal advice.
