Recently, Governor Corbett signed into law the Benevolent Gesture Act, also known as the “Apology Law.” Under the Act, any action, conduct, statement or gesture made before the commencement of a professional liability action, administrative action, mediation, or arbitration, which conveys a sense of apology, condolence, explanation, compassion or commiseration, is inadmissible should the act prompting that gesture later become the subject of litigation. What this means for healthcare providers seems very simple at first glance, however this law should not be taken at face value.
The law provides that when an adverse or unanticipated outcome occurs, a healthcare professional may apologize to the patient and/or the patient’s family. That apology may include an expression of sympathy, condolence, care or concern. If the unanticipated or adverse outcome later becomes the subject of a medical malpractice suit against the provider, the provider is shielded from that apology being used as evidence against them at trial.
Under the Pennsylvania law, protected statements of apology may be made to a patient, a relative or a representative. A patient’s relative can include their spouse, parent, stepparent, grandparent, child, stepchild, grandchild, brother, sister, half brothers and sisters, spouse’s parents or any person who has a family type relationship with the patient. A representative can include a legal guardian, attorney, agent designated to make medical decisions under a Power of Attorney over healthcare matters, or a healthcare representative.
What Statements are not Protected
What the law does NOT cover are statements admitting negligence or fault pertaining to an adverse or unanticipated outcome. Physicians should be careful when making statements regarding what led to a particular outcome so that what they say cannot be interpreted as an expression of fault. Additionally, “excited utterances” are not covered under the Benevolent Gesture Act. An “excited utterance” is a statement that is not premeditated but rather blurted out contemporaneously with the event.
Practical Considerations for Psychiatrists
Psychiatrists must be careful of what they say to patients after a tragedy has occurred, but is important that patients and families feel that they are being dealt with honestly and authentically. Patients and families who feel that their medical provider is being open and honest with them are less likely to file lawsuits. Most plaintiffs who file medical malpractice lawsuits state that they felt there was information being withheld by their medical provider. For that reason, open and honest communication is encouraged amongst psychiatrists and their patients. However, it is important that psychiatrists carefully consider in advance what they are going to say to a patient or family before they have these discussions.
If you have an adverse or unanticipated outcome, patient death or suicide, don't navigate this situation alone. It is in your best interest to reach out to your counsel or malpractice carrier and seek assistance in how to handle the situation so that your statements are protected.
Sara L. De Long