Lamb McErlane: A Doctor’s “I’m sorry” not Admissible in Court, Admissible or Acknowledgements of Negligence Is

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By Scot R. Withers

Scot R. Withers

The Benevolent Gesture Medical Professional Liability Act, also known as the apology rule, went into effect in Pennsylvania over three years ago, on December 24, 2013. It applies to communications made in any medical negligence action commenced after that date.

The law encourages health care providers to express empathy by offering condolences to a patient or bereaved family after an unexpected medical outcome, while at the same time providing confidence that such expressions may not be used against a medical provider in a medical malpractice action.

Specifically, the law allows doctors and health care providers to offer a “benevolent gesture” after an unexpected medical outcome. A “benevolent gesture” is defined in the law as “any action, conduct, statement or gesture that conveys a sense of apology, condolence, explanation, compassion or commiseration emanating from humane impulses.”

The law thus supports the standards of professional conduct by which healthcare providers are bound, since most medical ethics codes generally require a medical provider to disclose all facts which are necessary for a patient’s full understanding of their condition and treatment.

The legislation does not, however, relieve any medical providers’ liability or take away a patient’s or family’s right to sue. Medical providers must keep in mind that while statements such as “I’m sorry” will not be admissible in a court proceeding, acknowledgements of negligence or fault by medical providers would not be so insulated.

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Scot is a partner in Lamb McErlane’s Litigation Department and the Post-Trial and Appellate Advocacy Group.  He concentrates his practice in the state and federal appellate courts of Pennsylvania.  swithers@lambmcerlane.com or 610-430-8000.

 

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