Caroselli, Beachler & Coleman, L.L.C.

Apology laws

Pennsylvania is not one of the 36 states that allow physicians and other health care providers to apologize for medically negligent acts without making themselves vulnerable to legal repercussions. This doesn't mean that Pennsylvania health care providers can't apologize for doctor errors. It means, however, that insurers and lawyers may discourage health care providers from apologizing, particularly if that admission of guilt could hurt the provider or the institution he or she works for in a subsequent medical malpractice action.

Yet, some evidence exists stating that when physicians and other health care providers say, "I'm sorry," malpractice litigation decreases. Since hospitals and other institutions in the University of Michigan Health System implemented an apology program, medical malpractice litigation costs have decreased by 50 percent.

Medical errors are only one component of medical malpractice. The legal proof for medical malpractice rests on three elements. First, a standard of professional care has to exist for a particular treatment or procedure. Second, it must be demonstrated that the practitioner accused of medical malpractice has breached that standard of care. Finally, that breach of standard care must result in injury to a patient.

Adverse health outcomes are not uncommon in health care. Sometimes they are associated with known risks linked with particular treatments and procedures, and sometimes they are caused by health care provider error. Physicians, nurses and other health care providers are frequently gripped by deep shame when they commit an error. Often, they would like the opportunity to apologize to their patients and to discuss measures with patients and their families that will prevent the recurrence of that error again in the future. Without certain legal protections in place, however, they can't.

Of course, an apology alone can't mitigate the effects of a preventable medical error that ends up injuring a patient severely. In such a situation, the patient and his or her family have legal rights and should consult with an attorney experienced in medical malpractice to review legal options.

Source: The New York Times, "Encouraging Doctors to Admit Errors", Stuart Shapiro, June 05, 2013

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