Pennsylvania Medical Malpractice Law Update (Feb. 2014) – A Doctor’s Admission of Fault


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Doctors Can Admit Mistakes Without Fear Their Statements are Admissible in Court

A new law, “The Benevolent Gesture Medical Professional Liability Act,” went into effect on December 25, 2013. Under this law, doctors and other medical health professionals can apologize for making mistakes without fear that such statements will be used against them to prove negligence or fault.

Proponents of the bill argued that doctors shy away from explaining medical mistakes and errors due to fear that their statements could be used against them. The bill alleviates that fear. Research suggests that these types of laws can lead to a decrease in the number of medical malpractice lawsuits.

An Explanation of the Benevolent Gesture Medical Professional Liability Act

Under Section 1, a benevolent gesture is defined as:

Any action, conduct, statement or gesture that conveys a sense of apology, condolence, explanation, compassion or commiseration emanating from humane impulses.

Under Section 2, doctors’ statements are admissible as follows:

(1) Except as set forth in paragraph (2), any benevolent gesture described in subsection (a) shall be inadmissible as evidence of liability.

(2) Notwithstanding any other provision of this act relating to benevolent gestures, paragraph (1) shall not apply to a communication, including an excited utterance, which also includes a statement or statements of negligence or fault pertaining to an accident or event.

How Will Pennsylvania Trial Courts Handle the New Law?

When overseeing medical malpractice cases, Pennsylvania trial courts are bound to make mistakes when interpreting this new law. There is a very real risk that courts will make mistakes and allow doctors’ apologies into evidence for purposes other than showing liability or proving fault.

For example, a surgeon in Philadelphia accidentally cuts part of the intestine while performing a routine surgery involving an incision in the abdomen. The patient develops sepsis and dies. The family members are told there was a complication, and that the hospital is investigating what occurred. Weeks later, the surgeon calls the family and tells them he is sorry for what happened during the surgery. He does not elaborate. The family hires a medical malpractice lawyer, who files a lawsuit against the hospital and the surgeon. The surgeon’s statement of apology should be inadmissible on court. However, the doctor’s attorneys may ask the court to allow the jury to hear that the doctor apologized; this tends to garner juror empathy, which can ultimately help the doctor.

The new law was signed into law by Governor Corbett on October 25, 2013, effective in 60 days. It applies to medical malpractice lawsuits filed after December 25, 2013.

Related: Surgery Complications, Hospital Care & Profits…A Connection?

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