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EDITORIAL
Pennsylvania Medical Society, the
Pennsylvania Medical Health Association,
and The Hospital and
Healthsystem Association of Pennsylvania,
support this legislation.
Despite this broad support,
Pennsylvania has not yet enacted
apology/benevolent gestures legislation.
On March 1, 2011, the Pennsylvania
State House of Representatives
did, in fact, pass House Bill
495, known as the Benevolent
Gesture or Apology Bill, which
would have provided that an apology
or otherwise benevolent gesture—
including an admission of fault—
cannot be used as an admission in a
medical liability action. Unfortunately,
this version of the bill, along
with a similar version from the state
Senate (SB 565), is stuck in gridlock
in the Senate Judiciary Committee.
There are subtle differences in
the benevolent gesture laws passed
by the 35 states. For example,
Michigan allows for statements of
fault to be used in court. In contrast,
the Pennsylvania bills state that
explanations of fault that go beyond
apology would be protected speech.
Senator Stewart Greenleaf, who
heads the State Judiciary Committee,
feels that this is going too far.
Ironically, Senator Greenleaf is
known to be in support of benevolent
gestures legislation. As quoted
on the October 21, 2011, edition of
the online e-newsletter MedCity
News, the issue is, according to
Senator Greenleaf, “how far the
doctor or health care provider can go
in describing or admitting fault and
what that should be; and so far we’ve
not been able to have that discussion.
You can say anything you want,
and it’s not admissible, that’s not a
good piece of legislation.”
Senator Greenleaf prefers a more
April 2012 : Bulletin
carefully worded bill that would
serve as a compromise between the
medical community, which supports
statements of fault during the act of
apology as being protected speech,
and the trial lawyers, who would
allow such statements to be admissible
in court. Harrisburg attorney
Scott Cooper, vice-president of the
Legislative Policy Committee for the
Pennsylvania Association for Justice
(formerly known as the Pennsylvania
Trial Lawyers Association), expressed
his belief in the March 21, 2011,
edition of the York Daily Record that
the proposed legislation could
interfere with the pursuit of a
legitimate claim in court. The March
16, 2011, Patient Safety Blog of
Washington DC-based malpractice
attorneys Patrick Malone and
Associates posted in regard to this
legislation: “What if the doctor
admits exactly what went wrong?
And what if the patient has no other
way to prove what happened other
than what the doctor said in the
apology?”
I personally doubt that a suitable
compromise is possible in this
situation. Any such compromise
would first have to overcome the
nearly insurmountable task of
writing legislation that would always
clearly establish the fine line between
an apology and an admission
of fault. The default position of a
malpractice attorney has generally
been that an apology from a doctor
equates with an admission of responsibility
and fault. If admission of
fault is not protected speech as part
of an apology, then every apology
would have to be examined to
determine if it has crossed the line.
I also see a fallacy of logic in the
insistence that a doctor’s admission
of fault is related to the successful
litigation of a malpractice case.
Neither an apology nor expression of
fault by a doctor is evidence that an
applicable standard of care has been
breached. Plaintiffs cannot rely on a
doctor’s expression of remorse or
fault as evidence of negligence, as
that is instead established through
the medical record and expertwitness
testimony.
Finally, if the comments on
Attorney Malone’s blog do in fact
represent legitimate concerns held
by malpractice attorneys, then one
must clarify under what circumstances
a patient would have no
other way to prove fault and negligence
other than what the doctor
said in an apology. I believe the most
likely answer would be circumstances
in which negligence was not
reflected in the medical record, was
being concealed by the doctor or
hospital, or had not been disclosed
to the patient as would be required
by the Medical Care Availability and
Reduction of Error Act. If such
concerns are a basis for the State
Judiciary Committee’s motivation to
find a compromise with the trial
lawyers, it should first behoove the
committee to prove that such
egregious acts are occurring.
But for now, doctor, I would
advise that you chose your words
carefully. It’s a sad, sad situation.
And it’s getting more and more
absurd.
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Dr. Lesaca is a psychiatrist specializing in
children and adolescents, and he serves as
associate editor of the ACMS Bulletin. Dr.
Lesaca can be reached at tlesaca@hotmail.com.
The opinion expressed in this column
is that of the writer and does not
necessarily reflect the opinion of the
Editorial Board, the Bulletin, or the
Allegheny County Medical Society.
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