Pennsylvania Governor Signs Benevolent Gesture Medical Professional Liability Act

October 25, 2013

A decade after a back-and-forth legislative battle that saw both doctors and lawyers visiting the state capitol by the hundreds – perhaps thousands – to argue for or against tort reforms that led to state law modifications in 2003, the two professions recently changed lobbying tactics by mutually agreeing on a new reform that both sides say will help.

As a result, Senate Bill 379 sailed smoothly through the Pennsylvania House and Senate, and was recently signed by Governor Corbett.

SB 379, also known as the Benevolent Gesture Medical Professional Liability Act, allows health care providers to make benevolent gestures prior to the start of medical malpractice lawsuits, mediations, arbitrations or administrative actions and not have those statements or gestures of contrition used against them as long as such actions are not statements of negligence or fault.

Ten years ago, debate was often heated between the two groups when it came to issues involving professional liability reform, but this time, doctors and lawyers agree that saying I’m sorry makes sense in specific situations.

“As physicians, it is part of our job – part of our moral and ethical responsibility – to respond to patients and families when there are less than favorable outcomes,” said C. Richard Schott, MD, 2012-’13 president of the Pennsylvania Medical Society who practices cardiology in suburban Philadelphia. “Medicine is not an exact science, and outcomes may be unpredictable. Benevolent gestures are always appropriate and physicians should not have to fear giving them.”

According to attorneys, the rule will be helpful to those often involved in potential disputes. In a July 2013 article after the bill passed the Pennsylvania Senate 50-0, the Legal Intelligencer wrote that Samuel D. Hodge Jr., a professor and chair of the legal studies department at Temple University, said the apology rules in 36 other jurisdictions have shown benefits. The Legal Intelligencer article mentioned that sometimes claims are filed simply because patients want answers or families want closure.

The Legal Intelligencer article added that Scott B. Cooper of SchmidtKramer in Harrisburg, the 2012-13 president of the Pennsylvania Association of Justice trial lawyers group, said that trial lawyers have always supported some type of apology rule.

“Quite frankly, a lot of members don’t mind doctors who say they are sorry,” because they often have people call them up thinking they have malpractice cases when the physicians didn’t say they were sorry, Cooper was quoted in the article.

George B. Faller Jr., a partner with Martson Deardorff Williams Otto Gilroy & Faller based in Carlisle, Pa., agrees with Attorney Cooper.

“My practice is pretty much split evenly between Plaintiffs and Defendants and doing some work as a mediator or arbitrator,” said Attorney Faller. “The Rules of Evidence have long held that if a defendant paid for plaintiff’s medical expenses, property damage, etc. this ‘benevolent gesture’ was not admissible in court. This legislation that allows the physician to offer a simple apology and an early stage is a logical and needed extension of this concept. I have often seen cases as a litigant and a Mediator where the party who is suing says ‘I never would have sued if he had just said sorry.’ I am fairly certain that the passing of this bill will allow doctors to offer or express some words of compassion that they otherwise may have held back.”

SB 379 was introduced by Pat Vance (R-Cumberland). It took less than a year from introduction to pass both chambers in part due to doctors and lawyers being in agreement.

“Stakeholders were able to put aside their competing interests to come to a compromise,” Vance said.

House Majority Leader Mike Turzai (R-Allegheny County), who was also instrumental in the effort, said, “We are working toward commonsense legal reforms aimed at bringing fairness, balance and stability to Pennsylvania’s civil justice system, and benevolent gesture is a part of it.”

In addition, Governor Corbett included the legislation as part of his Healthy PA plan.

“We have a new law that had support of both doctors and lawyers,” said Bruce A. MacLeod, 2013-’14 president of the Pennsylvania Medical Society and a practicing emergency physician in Pittsburgh. “That doesn’t happen every day, but it’s good to know there’s agreement that this change makes sense.”

Source: Pennsylvania Medical Society

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