On October 22, 2013, Pennsylvania Governor Thomas Corbett signed into law the Benevolent Gesture Medical Professional Liability Act. This law allows health care providers to make benevolent gestures to patients, a patient’s relatives, or a patient’s representative regarding the patient’s discomfort, pain, suffering, injury, or death, regardless of the cause, resulting from any treatment, consultation, care or service or omission of treatment, consultation, care or service provided by the health care provider 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 as long as such actions are not statements of negligence or fault. Pennsylvania now joins thirty-four (34) other states that have enacted laws making apologies for medical errors inadmissible in court.
The purpose of this Act is to encourage health care providers to offer apologies to patients or their families in the context of an adverse result without the fear of such statements being admissible in a potential medical malpractice claim. The underlying rationale is that there will ultimately be fewer medical malpractice claims filed if doctors are free to apologize to patients and their families following adverse events.
Under the Act, a “benevolent gesture” is defined as “Any action, conduct, statement or gesture that conveys a sense of apology, condolence, explanation, compassion, or commiseration emanating from humane impulses.” A “relative” is defined as “A patient’s spouse, parents, stepparent, grandparent, child, stepchild, grandchild, brother, sister, half-brother, half-sister, or spouse’s parent or any person who has a family-type relationship with a patient.” A “representative” is defined as “Any legal guardian, attorney, agent designated to make medical decisions under a power of attorney over health care matters, health care representative who is authorized to make health care decisions for a principal under applicable law, surrogate designated in an advance directive for health care, or person recognized in law or custom as a patient’s agent.”
The Act provides that these benevolent gestures shall not be admissible at trial as evidence of liability. However, the Act does not preclude communications that are classified as “excited utterances.” An excited utterance is defined by Pennsylvania Rule of Evidence 803(2) as “A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” The Act also does not preclude the admission of statements of negligence or fault pertaining to an accident or an event.
As excited utterances and statements of fault are not precluded under this Act, health care providers must be careful when making statements to patients or patients’ families regarding what led to a particular outcome so that these statements cannot be interpreted as an admission of fault.
Whether this change in the law will result in a significant decrease in medical malpractice claims remains to be determined, but the public policy rationale for the Act is sound in that it encourages apologies and expressions of condolences in the case of adverse events.
What It Means to You
In light of this change in the law, attorneys and adjusters are encouraged to provide guidance to health care providers as to what types of statements are protected under the Benevolent Gesture Medical Professional Liability Act in order to ensure that these statements are not construed as excited utterances or admissions of negligence or fault.
Cipriani & Werner, PC recommends that if a health care provider experiences an adverse or unanticipated outcome, such as a patient death, and wishes to offer an apology or sympathies to the family, it is in the best interest of the provider to reach out to his/her counsel or malpractice carrier, if practical circumstances allow, to seek assistance in how to handle the situation so that any statements made are protected under the Benevolent Gesture Medical Professional Liability Act.