Friday, March 4, 2005

Bill to make docs' apologies inadmissible at trial

The legislature is considering a bill (HB 1291) that would enable doctors to apologize or express sympathy to an injured patient (or the patient's family member) without having the statement admissible in a lawsuit.

Here's the key language:

(2) In a civil action against a health care provider for personal injuries which is based upon alleged professional negligence, or in any arbitration or mediation proceeding related to such civil action:

(a) Any and all statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence; or

(b) Any and all statements or affirmations regarding remedial actions that may be taken to address the act or omission that is the basis for the allegation of negligence; which were in the past or are made by a health care provider to the injured person, a relative of the injured person, or a representative of the injured person and which relate to the discomfort, pain, suffering, injury, or death of the injured person as the result of the alleged professional negligence are not admissible as evidence.

This is an amendment to RCW 5.64.010.

The bill also would establish a patient safety account in the state treasury, funded by health care licensing fees ($2 per professional for individuals; $2 per bed for institutions) and 1% of certain attorney fees in health care litigation.

The bill, bill reports, and other materials are at Bill Information - Washington State Legislature

A number of states have passed such laws. See, e.g., Steven Keeva, Law and Sympathy: Apology Reforms Cost Little But Contribute Much to Clients' Healing, ABA J., Aug. 2004, at 74, available on LexisNexis and Westlaw.

Here is an article on the subject from the doctor's perspective (the AMA's newspaper): The power of an apology: Patients appreciate open communication (AMNews, July 28, 2003).

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