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For a Medical Provider in Pennsylvania, “Sorry” is no Longer the Hardest Word

By: Scott M. Russ, Esq.

If your carrier insures medical and/or nursing home providers in Pennsylvania, please take note that Benevolent Gesture Medical Professional Liability Act, recently signed into law by Governor Tom Corbett and to take effect at the end of 2013, will allow a medical provider in that state to apologize for a bad or negative outcome resulting in pain, discomfort, suffering, injury or death, without fear of such an apology being used as an admission and/or evidence of liability within the context of a medical or nursing home malpractice lawsuit.  This Act will apply to any “benevolent gesture,” such as any action, conduct, statement or gesture, that conveys a sense of apology, condolence, explanation, compassion or commiseration made by or on the part of any physician, certified nurse midwife, podiatrist, hospital, nursing home or birth center by any officer, employee or agent acting in the course of his, her or their employment that is made to a patient or resident or either’s relative (including spouses, parents, siblings or in-law relations).  However, an exception to this Act exists as to any communication, including excited utterances, which includes a statement of negligence or fault as to an accident or event.

While the new law will not eliminate liability on the part of medical professionals or otherwise prevent medical malpractice lawsuits, it will likely reduce the number of such lawsuits filed, as research has indicated that at least some patients and families would not have filed had they been given a timely explanation along with an apology for an unexpected outcome.  Going forward, insurance carriers which underwrite medical and/or nursing home malpractice policies in the Commonwealth, should be cognizant that, while this law will undoubtedly make their policyholders more at ease in expressing sympathy for a negative outcome to a patient and/or patient’s relatives, in hopes of avoiding litigation, the carriers should remain concerned that an ill-expressed statement of negligence or fault is otherwise still admissible as evidence of liability within the context of such a malpractice lawsuit.  Thus, while “sorry” is no longer the hardest word, other words such as “negligence” and “fault” still are.  A brief discussion about this law between carriers and their health care and/or nursing home policyholders will ensure that any apology made as allowed by this law will be carefully crafted, expressed and otherwise can’t be used against the policyholder during malpractice litigation. 

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