Governor Corbett Signs Benevolent Gesture Medical Professional Liability Act into Law
On Wednesday, October 23, 2013, Pennsylvania Governor Tom Corbett signed the Benevolent Gesture Medical Professional Liability Act into law.
Generally, the Act provides that certain “benevolent gestures” shall not be admitted as evidence of liability against a “health care provider” at the time of trial so long as those gestures were made by the health care provider to the patient prior to the commencement of any legal proceeding. Section 2 of the Act broadly defines a “benevolent gesture” as “any action, conduct, statement or gesture that conveys a sense of apology, condolence, explanation, compassion or commiseration emanating from humane impulses.” Section 3 of the Act provides further clarification as to what constitutes a “benevolent gesture,” by noting that the Act applies to any benevolent gesture made by a health care provider to a patient regarding the patient’s “discomfort, pain, suffering, injury or death, regardless of the cause, resulting from any treatment, consultation, care or services provided by the health care provider….”
Importantly, the Act’s relatively broad definition of a “health care provider” includes not only individual persons, but also personal care homes, assisted living facilities, corporations, universities and “other educational institution[s] licensed or approved by the Commonwealth to provide health care or professional medical services as a physician, certified nurse, midwife, podiatrist, hospital, nursing home or birth center.” The Act also applies to gestures made by any officers, employees, or agents of any such entity acting in the course and scope of their employment. Furthermore, the Act not only protects gestures conveyed to a patient or nursing home resident, but it also protects gestures made to the patient/resident’s “relative” and/or “representative.” Under Section 2 of the Act, the term “relative” is broadly defined as “any person who has a family-type relationship with a patient,” while the term “representative” is defined to include attorneys, legal guardians, agents designated to make medical decisions under a power of attorney, and others.
The Act, also known as Senate Bill 379, sailed rather smoothly through the Pennsylvania House and Senate this past year. Despite the heated legislative battle among proponents and opponents of tort-reform roughly ten years ago (resulting in the birth of the comprehensive Medicare Care Availability and Reduction of Error Act), trial lawyers and health care providers have now come together and taken a bipartisan approach. Passage of the Benevolent Gesture Act arguably shows that both sides of the table agree on at least one thing: that medical professionals should be able to candidly apologize and empathize with their patients without fear of having their kind words used against them years later in a court of law. In addition, proponents of this legislation believe that it may further reduce medical malpractice filings in the Commonwealth by encouraging health care professionals to assuage the emotional upset and frustration of aggrieved patients and their families by providing both compassion and closure.
In any event, it remains to be seen whether the new Benevolent Gesture Act will accomplish these bipartisan goals. After all, the Act contains one important exception, which may ultimately have a chilling effect on a health care provider’s legally protected humane impulse to apologize to their patient. For instance, the Act explicitly states that its protections “shall not apply to a communication, including an excited utterance, which also includes a statement of negligence or fault pertaining to an accident or event.” This exception, as phrased, arguably establishes that even communications falling squarely into the category of “benevolent gestures,” may still be used as evidence of negligence against a health care professional if that professional admits that she was at fault during the course of the communication.
Moving forward, all individuals and institutions providing medical professional services in the Commonwealth should keep this important exception in mind, especially during emotional interactions with patients and their families following adverse medical and/or surgical outcomes. After all, in the medical profession, where death, suffering and unfortunate results do occur, there is often a considerable amount of grey area as to what constitutes an apology, and what constitutes an admission of fault.
Stay tuned for further developments in this interesting area of the law. If you have any questions or comments about this E-Flash, please contact:
Amalia V. Romanowicz is a Principal in Post & Schell's Professional Liability Defense Department and focuses her practice on the defense of medical negligence and pharmacy negligence cases. She is an experienced trial lawyer who has litigated diverse cases in the medical negligence field.
To contact Ms. Romanowicz:
Office: (215) 587-1193
Andrew F. Albero is an Associate in Post & Schell's Professional Liability Defense Department. He works closely with Principals to successfully defend a wide-range of complex professional liability matters. Mr. Albero focuses on defending hospitals, health systems, nursing homes, physicians, nurses, mental health care providers and other allied health professionals.
To contact Mr. Albero:
Office: (215) 587-1144