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Editor: Colin Miller
Univ. of South Carolina School of Law

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Wednesday, October 23, 2013

Sorry No Longer Seems to be the Hardest Word: Pennsylvania Passes Benevolent Gesture Law

According to an article from earlier today, in Pennsylvania,

A decade after a back-and-forth legislative battle that saw both doctors and lawyers visiting the state capitol by the hundreds – perhaps thousands – to argue for or against tort reforms that led to state law modifications in 2003, the two professions recently changed lobbying tactics by mutually agreeing on a new reform that both sides say will help.

As a result, Senate Bill 379 sailed smoothly through the Pennsylvania House and Senate, and was recently signed by Governor Corbett.

SB 379, also known as the Benevolent Gesture Medical Professional Liability Act, allows health care providers to make benevolent gestures prior to the start of medical malpractice lawsuits, mediations, arbitrations or administrative actions and not have those statements or gestures of contrition used against them as long as such actions are not statements of negligence or fault.

So, what exactly does the Act cover?

Here's the text of the Act. A "benevolent gesture" is defined as

Any action, conduct, statement or gesture that conveys a sense of apology, condolence, explanation, compassion or commiseration emanating from humane  impulses.

Meanwhile, interestingly, the Act states that

Medical professional liability insurance carriers shall encourage benevolent gestures by insured health care providers.

In turn, the Act provides that a

Benevolent gesture or admission by health care made prior to the commencement of a medical professional  liability action by:        

(1)  a health care provider or an officer, employee or agent thereof, to a patient or resident or the patient's or  resident's relative or representative regarding the patient's or resident's discomfort, pain, suffering, injury or death, regardless of the cause, resulting from any treatment, consultation, care or service or omission of treatment, consultation, care or service provided by the health care provider, assisted living residence, its employees, agents or contractors, prior to the commencement of a medical professional liability action, liability action, administrative action, mediation or arbitration; or 

(2)  an assisted living residence or an officer, employee provider, assisted living residence or ostensible agent thereof to a patient or resident or the patient's or  resident's relative or representative regarding the patient's or resident's discomfort, pain, suffering, injury or death, regardless of the cause, resulting from any treatment, consultation, care or service or omission of treatment, consultation, care or service provided by the health care  provider, assisted living residence or its employees, agents or contractors, prior to the commencement of a medical professional liability action, liability action, administrative action, mediation or arbitration

shall be inadmissible as evidence of liability or as evidence of  an admission against interest.

By passing this law, Pennsylvania now joins at least 34 other states that have enacted laws making apologies for medical errors inadmissible in court.

-CM

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