Can saying “I’m sorry” prevent a malpractice claim? Pennsylvania wants to find out.
State legislators in Harrisburg have introduced a bill that would preclude reference to an apology from a doctor to a patient in a medical malpractice lawsuit, according to Professional Liability Matters.
Proponents of the measure think it will reduce the volume of medmal litigation.
If the bill is enacted, Pennsylvania would join a growing number of states that have passed “I’m sorry” laws that exempt medical apologies from the evidentiary rules. North Carolina has no such law. Massachusetts was the first to pass one.
The Massachusetts law says: “In any claim, complaint or civil action brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern which are made by a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding and shall not constitute an admission of liability or an admission against interest.”
That’s a incredibly long-winded way of saying it’s okay to tell a patient you’re sorry you amputated the wrong limb – your apology won’t come back to haunt you later in court.
Pennsylvania seems to have chosen a simpler – or at least more streamlined – statutory approach. Under 42 Pa.CS §6145, “any benevolent gesture or admission of fault made prior to the commencement of a medical professional liability action” is inadmissible.
The rationale of course is that patients who are injured as a result of medical negligence – and the families of those who are killed – may be less inclined to sue if the person who made the mistake owns up to it.
“The reported up-side of an apology may include psychological, emotional and financial benefits, writes Professional Liability Matters. “According to one study, an apology gave the patient a sense of closure, which led to faster settlements and reduced demands. Moreover, the study concluded that accepting responsibility can be more effective than expressing sympathy.”
These “I’m sorry” laws are all limited to medmal litigation. There has been no similar legislative rush to encourage lawyers to apologize for botching a case. That may be because legislators think lawyers are sorry enough already.
But it’s probably because legal malpractice is not as visible – and legal malpractice cases are not as plentiful – as their medical counterparts.
Meanwhile, most legal professional liability companies tell their insureds not to offer confessions or apologies if they mess up a case. And for good reason. An apology – no matter how sincere or heartfelt – may be construed as an acknowledgement of fault or used in court as an admission of liability.
It might also jeopardize your coverage.
So if something goes wrong in a case, turn the matter over to your liability carrier and let the claims department do the talking from that point forward.
The moral: law means never having to say you’re sorry.
Jay Reeves a/k/a The Risk Man is an attorney licensed in North Carolina and South Carolina. Formerly he was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. He has spent much of the past two decades apologizing. Contact firstname.lastname@example.org, phone 919-619-2441.
For more information:
- Professional Liability Matters http://professionalliabilitymatters.com/2013/07/10/the-cost-of-an-apology-pennsylvania-considers-apology-law/
- National Conference of State Legislators http://www.ncsl.org/issues-research/banking/medical-professionals-apologies-2012-legislation.aspx