Bill lets docs apol­o­gize with­out fear of retri­bu­tion

The Colonial - - OPINION - Linda Finarelli

It’s not al­ways easy to say “I’m sorry,” but it re­cently got a bit eas­ier for mem­bers of the Penn­syl­va­nia med­i­cal com­mu­nity.

Un­der the Benev­o­lent Ges­ture Med­i­cal Pro­fes­sional Li­a­bil­ity Act, unan­i­mously ap­proved by the state House and Se­nate and signed into law Oct. 23 by Gov. Cor­bett, a benev­o­lent ges­ture made by a health care provider, as­sisted liv­ing res­i­dence or per­sonal care home be­fore a law­suit LV fiOHG wRuOG EH LnDGPLVVLble as ev­i­dence of li­a­bil­ity.

The bill, S.B. 379, definHV EHnHYROHnW JHVWuUH as “any ac­tion, con­duct, state­ment or ges­ture that con­veys a sense of apol­ogy, con­do­lence, ex­pla­na­tion, com­pas­sion or com­mis­er­a­tion em­a­nat­ing from hu­mane im­pulses.”

Hos­pi­tal C Health­sys­tem As­so­ci­a­tion of Penn­syl­va­nia Pres­i­dent and CEO Andy Carter lauded the ELOO DV “D VLJnL­fiFDnW wLn for Penn­syl­va­ni­ans and the hos­pi­tals that serve them.”

“The bill does not preYHnW Dny SDWLHnW IURP fiOLnJ a med­i­cal li­a­bil­ity law­suit when there is an unan­tic­i­pated med­i­cal out­come,” he said in a press re­lease.

“In­stead, it al­lows for the kind of open dis­cus­sion that can lead to res­o­lu­tion with­out the ex­ces- sive costs that re­sult when mat­ters are de­cided in the court­room.”

There has “al­ways been a con­cern of oth­ers in­ter­pret­ing a hu­man wish to ex­press sor­row that some­one was hurt as be­ing an ad­mis­sion of guilt,” Abing­ton Me­mo­rial Chief of Staff Dr. John J. Kelly said in an in­ter­view. “We’re not say­ing we’re sorry we caused this, which was the trans­la­tion al­low­able for ju­rors.

“It’s a good thing,” he said of the bill; there is a “hu­man need to ful­fill in ex­plain­ing we’re sorry some­one was hurt in our care. … It gives pro­tec­tion so those hu­man ex­pres­sions won’t be mis­used.”

Kelly said some doc­tors were prob­a­bly afraid to apol­o­gize be­fore, not­ing, “We used to be care­ful.” Thirty years ago “hos­pi­tal at­tor­neys ad­vised not to apol­o­gize” or ex­plain to a pa­tient what hap­pened.

But “trust is only pos­si­ble with trans­parency,” which AMH has as­pired to over the past 15 years, Kelly said. “Trans­parency is al­ways ac­com­pa­nied by be­ing sorry a pa­tient was harmed.”

Penn­syl­va­nia Med­i­cal So­ci­ety spokesman Chuck Mo­ran said the hope is that the bill will re­duce the num­ber of law­suits filed. “This bill will help im­prove pa­tient­doc­tor com­mu­ni­ca­tions, while also help­ing trial lawyers who of­ten have peo­ple call them think­ing they have mal­prac­tice cases when the physi­cians didn’t say they were sorry,” so­ci­ety Pres­i­dent Dr. C. Richard Schott, a car­di­ol­o­gist in sub­ur­ban Philadel­phia, said in a state­ment.

“It should help lawyers and doc­tors and pa­tients get the in­for­ma­tion they de­sire,” Mo­ran said. A pa­tient “may not get the re­sults wanted; there is al­ways a mar­gin for er­ror.”

The num­ber of law­suits EHLnJ fiOHG DnG H[FHVVLYH awards led to a med­i­cal mal­prac­tice insurance cri­sis in 2002, when physi­cians, par­tic­u­larly high-risk prac­ti­tion­ers, were hav­ing trou­ble get­ting insurance.

Some changes in the le­gal and insurance as­pects of med­i­cal mal­prac­tice have led to bet­ter ac­cess to insurance, though “the rates are still very ex­pen­sive,” Kelly said, and while the num­ber of law­suits are down in the fiYH-FRunWy 3KLODGHOSKLD re­gion, some awards have been higher.

“I be­lieve a tremen­dous amount of en­ergy and re­sources have been in­vested in pa­tient safety and we’re chang­ing the way we look at care in the hos­pi­tal, which has re­duced pre­ventable harm,” he said. “I think that has played as large a role as any­thing else.”

Abing­ton Me­mo­rial has par­tic­i­pated in a me­di­a­tion pro­gram for more than a decade and op­er­ates in line with a na­tional move­ment to “dis­close, apol­o­gize and [make an] of­fer when ap­pro­pri­ate,” he said. “We al­ways let peo­ple know what hap­pened and what we in­tend to do and apol­o­gize that it hap­pened. Now with the sup­port of the law the fear of apol­o­giz­ing is less­ened.”

Kelly said he would like to see ad­min­is­tra­tive health courts es­tab­lished to help re­solve “dis­putes and er­rors in a bet­ter way.”

“I sus­pect we still have a ways to go,” he added.

Fol­low Linda Finarelli on TwLt­ter @lk­finDrellL.

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