Meadville Tribune

July 5, 2013

Bill would shield docs 'sorry' for treatment mishaps

By John Finnerty
CNHI Harrisburg Bureau

HARRISBURG — In 2004, Danielle Bellerose gave birth prematurely to twin girls at a hospital in Massachusetts. Eight days later, one of the babies died.

Bellerose tried to question hospital staff about why the complications that killed her daughter were not recognized more quickly. But no one at the hospital would share any information with her. Eventually, Bellerose filed a malpractice lawsuit, and seven years after her daughter’s death, she was awarded $11 million.

It is the kind of case that gives doctors and hospital administrators nightmares. The Bellerose lawsuit also demonstrates how poor communication between hospital staff and families of patients can drive people to file malpractice lawsuits, said Dan Davis, director of bioethics for Geisinger Health System, based in Danville. And it’s the exact kind of case that lawmakers hope to avert by new legislation intended to shield doctors who apologize after something goes wrong with a patient’s medical treatment. The push for the legislation has been led by Republican Sens. Pat Vance of Dauphin County and Gene Yaw of Lycoming County.

Specifically, the bill makes any benevolent gesture made prior to the commencement of a medical liability action by a health care provider, assisted living residence or personal care home inadmissible as evidence of liability or an admission against interest.

Vance’s bill passed the Senate and now goes to the House of Representatives.

Thirty-six states, the District of Columbia and Guam have provisions allowing medical professionals to make apologies or sympathetic gestures.

The bill was backed by dozens of business and medical advocacy groups. Proponents say that doctors frightened of the specter of malpractice lawsuits may not speak openly with patients and their loved ones. But the failure to communicate often fuels the feeling that the hospital or doctor erred and doesn’t care about the human costs.

Vance said that 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.

“I think this piece of legislation is a great compromise,” Yaw said. “It allows doctors to make expressions of sympathy without fear that those expressions will be used as a weapon against them, yet the legislation still preserves the rights of individuals to pursue claims for substandard health care.”

The trend toward protecting medical apologies probably began almost 15 years ago when a landmark study determined there are an estimated 98,000 medical errors in U.S. hospitals each year, Davis said.

Based on that finding, health systems began to explore what they could do to improve their operations to limit medical mistakes.

Legislation protecting doctors who acknowledge to loved ones that something went wrong is a natural byproduct, Davis said.

“I understand this as another chapter in the evolution of physician attitudes toward truth-telling,” he said.

Many hospitals have adopted policies spelling out exactly how patients or their loved ones ought to be told when something goes wrong, Davis said.

“If the aim is to be benevolent, honesty is the far better means to that end than deception,” Davis said. “(At Geisinger), we have an explicit policy that you should disclose, within 24 hours, a medical error that poses an actual or possibility of harm.”

An apology is supposed to be part of that disclosure process.

Finnerty reports from Harrisburg for Community Newspaper Holdings Inc.’s Pennsylvania newspapers, including The Meadville Tribune. Follow him on Twitter @cnhipa.