You may have heard that a number of states have enacted medical “apology laws.” These are laws that limit the use of doctor’s expressions of sympathy, regret or even outright apologies for negligence or error if a patient or surviving family members bring a malpractice action against them.
Some states have “total protection” apology laws that allow doctors to apologize for a mistake without being concerned that the apology can be used as evidence against them. Of course, there’s often plenty of other evidence that can be found and used to prove them guilty of negligence or malpractice – especially if you don’t delay in taking legal action.
Other states, including Pennsylvania, have “partial” apology laws. These laws protect doctors who make general expressions of regret from having their words used against them. Apologies for a specific error or omission, however, can be.
What does Pennsylvania law say?
Pennsylvania’s law states in part that “any benevolent gesture made prior to the commencement of a medical professional liability action, administrative action, mediation or arbitration…. regarding the patient’s or resident’s discomfort, pain, suffering, injury or death…. shall be inadmissible as evidence of liability.”
This applies to things said to patients or their relatives or representatives. In addition to covering things said by doctors and other health care providers, the law also covers those who work in nursing homes and assisted living facilities.
The Pennsylvania law, however, does not apply to “a communication, including an excited utterance, which also includes a statement or statements of negligence or fault pertaining to an accident or event.”
Listening and taking notes is crucial
This can all be too much to remember if you or a loved one is very ill or injured and things have gotten worse instead of better. What is important to remember is to listen very carefully and take notes or ask if you can record anything that a doctor or other member of the medical team tells you. If they’re going too fast or using terms you’re not familiar with, ask them to slow down and repeat or explain what they’ve said.
This doesn’t have to be a “gotcha” strategy. However, if something has gone wrong, the more you know, the more likely it is that you and your legal team will be able to find the evidence necessary to hold the appropriate parties accountable.