Sorry doesn’t have to be a pricey word for doctors

ANDREW M. SEDER aseder@timesleader.com

October 23, 2013

Dr. Alan Boonin has told patients and family members he’s sorry and has never had those words used against him in a court of law. He’s been one of the lucky ones.

But going forward, every doctor throughout Pennsylvania will have the freedom to apologize to patients or families without the fear of being sued.

Gov. Tom Corbett signed the Benevolent Gesture Medical Professional Liability Act into law Wednesday. The bill, which was passed unanimously on Tuesday by the state House and in June by the Senate, allows doctors and health-care providers to express empathy or offer “benevolent gestures” after an unexpected medical outcome.

Under the law, a benevolent gesture is any action that conveys a sense of apology, explanation, or compassion related to the discomfort, pain, suffering, injury or death of a patient.

Boonin, a family practitioner with InterMountain Medical Group in Shavertown who also directs the palliative care program at Wilkes-Barre General Hospital, said that for many doctors saying sorry should be part of the doctor-patient interaction when something wasn’t successful. But all too often doctors either hold back on saying it for fear of having it used as some “sign of admission of guilt” or they “cringe their teeth” and say it and have a potential lawsuit hanging over their heads.

Dr. Fred Bloom, chief of care continuum for Geisinger Health System and medical director for quality and performance with Geisinger Health Plan, praised the law calling it “a significant victory for patients, physicians and health systems alike. Geisinger has long been an advocate of patients taking an active role in their healthcare, and we believe this bill will help further create an environment of open dialogue between patients, their families and providers.”

Health organizations also heaped praise on the legislation, noting that it will help improve doctor-patient communications.

“This is a significant win for Pennsylvanians and the hospitals that serve them,” said Hospital Association of Pennsylvania President and CEO Andy Carter, noting the law does not prevent the filing of a medical liability lawsuit.

As long as the statements are not acknowledgements of negligence or fault, they may not be used against a provider in civil litigation. The bill covers not only physicians but also health-care workers in nursing homes, hospitals and personal care homes.

Dr. Stuart H. Shapiro, president and CEO of the Pennsylvania Health Care Association, said his organization has advocated for apology legislation for five years.

“For years, providers have wanted to talk with patients after an unanticipated outcome to express empathy or explain what happened and why, but have been afraid to do so because of fear of litigation. This legislation will change that dynamic across the health care spectrum,” he said

House Majority Leader Mike Turzai, R-Bradford Woods, said 29 other states have enacted similar legislation. He, too, lauded the commonsense legislation, saying: “Our doctors and other health-care providers can once again be sympathetic with patients without fear of being sued.”

But, attorney Joe Quinn, of the Kingston-based Hourigan, Kluger and Quinn law firm, said he sees the bill as “a solution to a problem that didn’t exist.” He said doctors should have been doing the right thing all along.

“We’ve all been taught since we were kids that when you do something wrong, you apologize,” Quinn said. He said that if a doctor is truly sorry and he says it, why shouldn’t that apology be admissible in any potential court case?

Boonin said that while saying sorry often is what a patient or their loved ones want to hear and is enough to alleviate a lawsuit, the potential of being sued was enough of a deterrent for some doctors and kept them of showing that level of empathy.

The bill, sponsored by Sen. Patricia Vance, R-Mechanicsburg, was cosponsored by Sen. Lisa Baker, R-Lehman Township, both of whom were at the bill-signing ceremony.

“The apology has proven to be a very effective way to resolve the conflict,” said Baker. “Lawsuits have fallen in many states where the law has been passed. I’m hopeful Pennsylvania will see a similar result.”

But that’s something Quinn said isn’t likely and he said the drop in malpractice cases states where laws have been passed is not likely related.

“I see absolutely no correlation at all … and no significant benefits,” Quinn said.