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In the finest tradition of the legal profession.

Knowing when to say you’re sorry – The Benevolent Gesture Medical Professional Liability Act

On Behalf of | Jul 13, 2015 | Firm News, Health Care, Healthcare Counsel, Risk Management

In Pennsylvania, the Benevolent Gesture Medical Professional Liability Act provides a level of protection to health care providers seeking to reach out to patients and family members after a less than optimal medical course.  In essence, this law excludes from evidence any apology, explanation or similar statement made by a health care provider, prior to the initiation of a lawsuit.  Specifically, the law defines a protected “benevolent gesture” as “any action, conduct, statement or gesture that conveys a sense of apology, condolence, explanation, compassion or commiseration emanating from humane impulses.”

In a memo to the Senate, Senator Patricia Vance described the reasoning behind the law as follows:

A benevolent gesture is any action that conveys a sense of apology, explanation, or compassion emanating from humane impulses.  In an effort to reduce the number of lawsuits, more than half the states have already enacted laws excluding such actions as proof of liability.  Studies have shown that a large percentage of patients and families may not have filed medical malpractice suits if given an explanation and an apology regarding the event.

In short, the statute seeks to provide protection for nurses or doctors to offer compassionate statements without fear of the statement later being used as fuel for a malpractice lawsuit.

While the law does offer a protection to providers who choose to speak to patients and their families after a less than optimal medical course, it must be realized that this protection is limited.  One exception specifically outlined by the Act includes “statements of negligence or fault”.  Further, despite now being in effect for going on two years, it remains unclear the breadth at which the court will interpret this evidentiary protection.

As such, it is important to educate hospital staff, including physicians and nurses, of the nature and limitations of this Act.  While medical providers should be permitted to offer words of condolence, any communications to patients and families should still be limited, so not to give rise to suit or an inadvertent admission of liability. Further, any “benevolent gestures” should be made as close as possible to the relevant care, or otherwise be avoided as time passes, as the Act does not apply after a patient had begun any legal action.

For a confidential analysis of your health care issues, or questions about TRC’s Healthcare Counsel practice area, please contact David R. Johnson, Esquire at (412) 316-8662 or [email protected] or Daniel J. Margonari, Esquire at (412) 316-8685 or [email protected].

Important NoticeThis information is intended for general guidance only, and should not be used as a substitute for specific legal advice.  For specific legal advice applicable to your situation, you should consult an attorney of your choice.  Although believed to be accurate when written, no guarantee of completeness or accuracy to your particular circumstances should be implied.  Laws, regulations, and court decisions in this area change frequently, and you should consult the attorney of your choice for up-to-date information.