The Benevolent Gesture: Act: When an Apology is Not an Admission of Liability
Physicians deal with extremely stressful and emotional matters. They are expected to form relationships with patients and empathize with the human suffering that initiated the relationships. However, malpractice litigation, or fear of it, can have a chilling effect on the communication required to build a therapeutic, trusting relationship. As healthcare providers, it is appropriate to acknowledge and express empathy for the difficult situations experienced by patients and their families. But, somewhere along the line, a simple gesture of empathy, such as an apology for the difficult circumstances was allowed to be taken out of context and offered as evidence of wrongdoing for malpractice claims.
The Pennsylvania Benevolent Gesture Act was signed into law on October 25, 2013. The bill (Senate bill 379) took less than one year to pass unanimously in both the Senate (50-0) and House of Representatives (202-0). This Act supports the healthcare providers’ ability to express empathy in the context it was intended. The law is designed to free up practitioners to speak frankly with patients and their families when outcomes do not to meet expectations.
The Benevolent Gesture Act states:
“…any benevolent gesture made prior to the commencement of a medical liability action by a healthcare provider, assisted living residence or personal care home is inadmissible as evidence of liability or an admission against interest….”
Benevolent Gesture Defined
The Act defines a benevolent gesture as, “any action, conduct, statement or gesture that conveys a sense of apology, condolence, explanation, compassion or commiseration emanating from human impulses.”
The Act only applies to communications made prior to any form of litigation
It does not protect physicians who admit fault.
The Act 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.
Who is covered?
The Act covers benevolent gestures made by the following:
- Primary healthcare centers
- Personal care homes licensed by the Department of Public Welfare
- A person, corporation, university or educational institution licensed or approved by the Commonwealth to provide healthcare or professional medical services, such as a:
Certified Nurse Midwife
An officer, employee or agent of any of the above acting in the course and scope of employment.
The Act allows healthcare 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 used against them as long as such actions are not statements of negligence or fault.
This law recognizes and protects a healthcare provider’s use of apologies and other gestures of compassion. The gestures are acknowledged for just what they are: empathetic, humane gestures and not admissions of liability to be used against the practitioner in a malpractice case.
Critics argue that the Act’s definition of benevolent gesture is too broad, i.e., no specific examples are given. Therefore, its ambiguity may result in disagreements as to how a message was intended by the practitioner versus perceived by the receiver. Also, that he Act is unlikely to impact malpractice cases because plaintiffs' attorneys do not often introduce evidence of an apology as an admission of liability.
Proponents of the Act suggest that it strikes a reasonable compromise: it allows healthcare professionals to be benevolent, but does not deprive patients of their right to initiate suits. It breaks down a fear barrier physicians feel when contemplating whether to apologize or express compassion following a bad medical outcome. Further, it is asserted that the Act will foster better doctor-Patient relationships and thereby reduce the likelihood of lawsuits, which may be driven by anger after an unanticipated result.
Questions and Answers
The Benevolent Gesture: Act: When an Apology is Not an Admission of Liability, Questions and Answers