Governor’s apology bill would protect physicians, hospitals

Gov. Deval L. Patrick has filed a controversial bill that would strongly encourage physicians to apologize to patients by keeping their statements out of court.

Under the measure, a health care provider’s “statements, affirmations, gestures, activities or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern” relating to an unanticipated medical outcome would be inadmissible at trial.

Jeffrey N. Catalano of Boston’s Todd & Weld, who represents plaintiffs in medical-malpractice cases, said that state law already bars general statements expressing “sympathy” or “benevolence” from being introduced at a civil trial and that the governor’s legislation goes too far.

“Patrick’s proposal contradicts decades of laws of evidence holding that admissions of a party opponent are fair game for a jury to consider,” Catalano said.

But med-mal defense lawyer Brent A. Tingle of Morrison Mahoney in Boston said that  the proposal is part of a bigger trend.

“The trend locally and nationally in medicine is toward prompt disclosure of adverse events to patients or their family,” Tingle said. “This amendment is consistent with that trend.”

In an e-mail to Lawyers Weekly, the governor’s Health and Human Services secretary, Dr. Judy Ann Bigby, said 35 states have laws offering some kind of legal protection for physicians who express regret or empathy to patients in the aftermath of an adverse event.

Bigby, who declined to be interviewed, said similar measures in other states have cut litigation costs in half and have created a significant decrease in the number of new claims filed.

Charles P. Reidy III, a veteran med-mal defense lawyer, conceded that the language in the governor’s bill is broad but necessary to encourage health care professionals to speak candidly with patients.

“This is a wonderful attempt to allow doctors to express human concerns to patients without worrying about the consequences of their words being taken out of context,” said Reidy, who practices at Martin, Magnuson, McCarthy & Kenney. “Without a statute that protects a wide range of conduct, the reality is that doctors won’t be protected.”

Although he called Patrick’s goals commendable, Kevin J. O’Leary of Coughlin Betke in Boston, who handles civil cases for plaintiffs and defendants, predicted that the bill will fail.

“If the aim of this law is to reduce medical malpractice [lawsuits] by getting rid of bad cases [with questionable liablity], it will fail miserably because the only cases it’s going to affect are the … ones where a doctor has made an admission of negligence,” he said. “Those are certainly not the cases that are creating the problems.”

Patrick filed the bill on Feb. 17 and it is expected to be taken up by the Legislature this spring.

Unfair protection

Catalano contended that the measure would give doctors and hospitals accused of negligence a protection no other litigant in Massachusetts enjoys.

“Could you imagine if an accountant, financial advisor or attorney had the luxury of being able to admit their mistake to a client knowing it couldn’t be used against them in litigation? There would be extreme outrage,” Catalano said.

Barry D. Lang, a medical doctor and Waltham lawyer who represents med-mal plaintiffs, said he agrees with the governor that juries should not be privy to expressions of sympathy or condolence by physicians.

But Lang takes exception with portions of the bill that seek to exclude physicians’ statements admitting fault or explaining to patients and their families what went wrong.

“This would be perfectly acceptable if the words ‘mistake’ and ‘error’ weren’t in [the bill],” Lang said. “But they are. To immunize doctors when they admit fault is to unfairly single out the medical profession, once again, for special treatment.”

If the bill passes, Catalano said it would make it nearly impossible for a plaintiff to win a med-mal case.

“If you have a case where a doctor tells a patient that he mistakenly cut the sciatic nerve during hip surgery, that is often going to be your best smoking-gun evidence of what happened in the operating room,” he said. “With this bill, it would be gone.”

Questions or comments can be directed to the writer at: david.frank@lawyersweekly.com