Malpractice is devastating. Professionals work tirelessly to earn a degree (or more), develop client relationships and trust, and subsequently a book of business all of which can be at risk in the event of professional negligence. The professional’s reaction may be to approach the client or patient with an apology, explanation or consolation but there are serious risks to doing so. Depending on the professional’s E&O policy, an apology may constitute a waiver of coverage. Moreover, that apology may be an admissible “confession” which can be introduced at trial. Pennsylvania legislators have considered this conundrum and introduced a bill that would preclude reference to a doctors’ apologies to patients during medical malpractice lawsuits. Practitioners believe this could greatly reduce the number of medical malpractice lawsuits in the state.
Pursuant to the proposed statute, 42 Pa.CS §6145, “any benevolent gesture or admission of fault made prior to the commencement of a medical professional liability action” by a defined class of medical practitioners is inadmissible. Historically, Massachusetts was the first state to enact an apology law in 1986; 34 other states along with DC have since joined this growing trend.
Reportedly, attorneys believe that this evidentiary rule may dramatically reduce the number of lawsuits against health care providers. According to an expert in the field, medical malpractice lawsuits have declined in states with similar legislation because sometimes patients file professional negligence suits because they are searching for answers or families want closure. The reported up-side of an apology may include psychological, emotional and financial benefits. According to one study, an apology gave the patient a sense of closure, which led to faster settlements and reduced demands. Moreover, the study concluded that accepting responsibility can be more effective than expressing sympathy.
Make no mistake, the nuances in “apology laws” are important and may spell the difference between an inadmissible conversation and a “confession” presented to the jury. Moreover, all professionals must carefully read and understand their professional malpractice insurance policy including the terms governing post-malpractice communication with the claimant. Professionals will undoubtedly continue to debate the pros and cons to offering an apology as more states and professional lines consider similar legislation.