• Sorry Seems to be the Hardest Word
  • May 16, 2011 | Author: Michael P. Gould
  • Law Firm: McCumber, Daniels, Buntz, Hartig & Puig, P.A. - Eagleville Office
  • “Anything you say can and will be used against you in a court of law.”  We are all familiar with this phrase as part of Miranda warnings when someone is arrested.  However, this phrase likewise has had a chilling effect on preventing doctors, nurses and other health care providers from expressing regret to a patient or their family in times of need.  Indeed, shrewd trial lawyers seek to introduce these statements in court to somehow show an acknowledgement of liability or wrongdoing on the part of the health care provider.  When doctors and nurses should be providing comfort, they are forced to choose their words carefully when talking with families for fear their words will later being used against them in civil lawsuits.
     
    As a result, many states are now considering laws which are commonly referred to as “apology legislation.”    Essentially, this type of legislation permits medical professionals to express empathy for, and take ownership of an unforeseen outcome without the risk of retaliatory litigation based solely on the statements made at the time of the apology.
     
    Many states have already adopted apology legislation and in Pennsylvania, House Bill 495 is currently pending.  This Bill would make any benevolent gesture or admission of fault made prior to the commencement of a medical professional liability action inadmissible as evidence of liability or as evidence of an admission against interest:
     
     § 6145.  Benevolent gesture or admission by health care provider or assisted living residence or personal care home.
     
    (a)    Admissibility.--In any liability action, any benevolent gesture or admission of fault made prior to the commencement of a medical professional liability action by:
     
    (1)   a health care provider or an officer, employee or agent thereof to a patient or resident or the patient's or resident's relative or representative regarding the patient's or resident's discomfort, pain, suffering, injury or death, regardless of the cause, including, but not limited to, the unanticipated outcome of any treatment, consultation, care or service or omission of treatment, consultation, care or service provided by the health care provider, assisted living residence or personal care home, its employees, agents or contractors, prior to the commencement of a medical professional liability action, liability action or mediation shall be inadmissible as evidence of liability or as evidence of an admission against interest; or
     
    (2)   an assisted living residence or personal care home or an officer, employee or agent thereof, to a patient or resident or the patient's or resident's relative or representative regarding the patient's or resident's discomfort, pain, suffering, injury or death, regardless of the cause, including, but not limited to, the unanticipated outcome of any treatment, consultation, care or service or omission of treatment, consultation, care or service provided by the health care provider, assisted living residence or personal care home, its employees, agents or contractors, prior to the commencement of a medical professional liability action, liability action or mediation shall be inadmissible as evidence of liability or as evidence of an admission against interest.
     
    Stuart Shapiro, President and CEO of the Pennsylvania Health Care Association (PHCA) and the Center for Assisted Living Management (CALM) supports this type of legislation as well as the need for other tort reform.  On March 29, 2011, Mr. Shapiro spoke before Pennsylvania’s House Judiciary Committee urging the adoption of tort reform including apology legislation [1].  Dr. Shapiro noted that this change from the traditional “deny and defend” strategy can result in fewer claims and better customer service ratings.

    Moreover, according to Dr. Shapiro, although the proposed apology legislation has yet to be passed in Pennsylvania, the legislation has already had a ripple effect in that Central Pennsylvania Physicians Risk Retention Group, representing 1,200 health care professionals has seen premium drops to 35% below market rates due to the adoption of this type of policy.  Dr. Shapiro also highlighted for the Committee that thirty-five (35) states have already passed apology legislation enabling a disclosure program as a viable option for doctors, hospitals and nursing homes to reduce liability claims.

     Studies conducted by the University of Michigan[2] have shown that when health care providers are allowed to apologize and have full disclosure of an incident, there is an increase in patient satisfaction while also reducing the number of medical malpractice claims which, in turn, assists in containing health care costs.  The rationale behind this approach is fairly simple.  When health care providers are allowed to say “I’m sorry,” without fear that those words will be used against them to assert they were negligent, the providers are able to potentially calm the anger which is often the motivating factor for litigation where patients may view the health care provider as not caring and unremorseful
     
    While it may seem absurd to enact litigation to allow a doctor or health care professional to utter three simple words, “I am sorry,” the net effect can prove positive in improving overall patient satisfaction while reducing litigation and attempting to contain already skyrocketing health care costs.
     
    For more information, please contact Michael Gould at [email protected]
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    [1] Dr. Shapiro’s full testimony can be found at www.phca.org.
     
    [2] http://www.med.umich.edu/news/newsroom/mm.htm