In his famous last lecture, terminally ill CMU professor Randy Pausch offered his thoughts on the really important things in life. One of the points he spoke about was knowing how to apologize. Supposedly a good apology has three parts: (i) Saying you were wrong, (ii) Saying you feel badly, and (iii) Asking how you can make it better. He added that one of the worst kinds of apologies was the “I’m sorry you felt hurt by me” kind, which seems a sort of throw away gesture because it lacks acceptance of responsibility for the hurt caused. Yet a new Pennsylvania law encourages just that.
The Benevolent Gesture Medical Professional Liability Act (the “Act”), signed into law on October 25, 2013, makes apologies by physicians to patients and their families inadmissible in medical malpractice cases. However, the Act excepts from its protection admissions of wrongdoing. Specifically, the Act makes any benevolent gesture by a health care provider, made prior to the commencement of a medical professional liability action, inadmissible as evidence of liability, so long as such gesture does not include an admission of negligence or fault. So, the physician can apologize, as long as that apology doesn’t contain an acknowledgement of responsibility – exactly the “I’m sorry you felt hurt by me” expression that Professor Pausch criticized.
Still, this new law appears to have the support of both physicians and attorneys alike. In a Press Release issued the day the Governor signed the bill, The Hospital and Healthsystem Association of Pennsylvania “hailed” the Act’s passage. HAP President and CEO Andy Carter was quoted as saying, “This is a significant win for Pennsylvanians and the hospitals that serve them…The bill does not prevent any patient from filing a medical liability lawsuit when there is an unanticipated medical outcome. Instead, it allows for the kind of open discussion that can lead to resolution without the excessive costs that result when matters are decided in the courtroom.”