This post was written by Karl A. Thallner, Jr. and Zachary A. Portin
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.