If you should ever find yourself gathering at the bedside of a loved one wondering how things could have gone so terribly wrong with a medical procedure, the last thing you should expect is a visit from a medical professional or hospital official offering you an apology. Why? Conventional wisdom is that physicians should not apologize for mistakes -- or even for unfortunate outcomes when no error occurred -- because such apologies may be viewed as admissions of liability, and as such may be used as evidence in a medical malpractice claim.
In short, doctors generally won't apologize for mistakes because they are afraid of the consequences. It's incredibly disappointing and unfortunate, but true.
However, 36 states have now enacted so-called "apology laws." On the surface, these laws allow medical professionals to say they're sorry to patients or relatives without fear that genuine statements of sympathy might be used against them. What's less obvious and less publicized is that these laws may make clear statements of liability -- including unequivocal statements that negligent actions led to unnecessary suffering or death -- inadmissible in court.
Supporters have long argued that these apology laws reduce animosity and hasten the resolution of legal matters.
"The studies have found apologies have a benefit," said Prof. Samuel Hodge of Temple University who has studied this topic extensively. "They tend to reduce the lawsuits and the cases settle ... A lot of times, people just want to hear the apology."
While this may be true, it's also painfully obvious that apologies don't pay medical bills, nor do they compensate families for the harm they suffer as a result of medical negligence. Interestingly, lawmakers are now considering whether this type of law should become a reality here in Pennsylvania.
House Bill 57 calls for any admissions or "benevolent gestures" made by health care providers and/or agent of the providers to patients or their relatives/representatives regarding any "discomfort, pain, suffering, injury or death" to be inadmissible in all medical malpractice lawsuits.
One of the sponsors of the bill has called it a "common-sense piece of legislation" that will provide much-needed protection to all health care providers.
However, the Pennsylvania Association of Justice understandably doesn't view the legislation in quite the same way -- perhaps because common sense dictates that it is patients, not physicians, who most need protection when it comes to preventable medical error.
Currently, the law in Pennsylvania is such that health care providers can already see patients and/or their families to apologize for something bad that has happened without going into detail, meaning any admissions of liability are still fair game. The Pennsylvania Association of Justice argues that this current state of the law is equitable and protects patients while still allowing physicians to express sympathy and regret.
It's truly difficult to imagine a reality in which a health care provider's admissions of negligence could be excluded as evidence. For example, say a physician apologizes to a patient for a surgical error because he wasn't paying attention to where he was operating. Who benefits if the patient can't use this as evidence in a fight for fair compensation? The patient? The patient's family? The physician's future patients, who may face similar risks unless action is taken? Of course not. The only benefit is to shield health care providers from the consequences of their mistakes.
Here's hoping the General Assembly gives this "common-sense piece of legislation" the consideration it deserves.
Source: The Pittsburgh Post-Gazette, "For doctors, hospitals, 'sorry' is a hard word to say," Amaris Elliot-Engel, Feb. 25, 2013
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