When procedures don’t go according to plan, physicians and other medical professionals face a dilemma. To empathize and sympathize can assist the patient and show that their doctor cares. However, saying “sorry” or admitting that something went wrong is often prohibited or discouraged by their insurance companies who fear that those gestures might be viewed as tantamount to an admission of legal responsibility.
It is believed that a more sympathetic environment can actually reduce claims against doctors and promote patient recovery. Studies of major hospitals, medical school programs and doctor networks have shown that an honest discussion of medical errors results in fewer claims made and lower payments when claims are made. Not only are patients less inclined to sue a doctor with whom they have a rapport, the additional information that a patient receives about their treatment from a doctor who cares may help to frame more limited and appropriate claims if litigation ensues.
What is “Benevolent Gesture” legislation?
To avoid the situation where doctors modify their behavior out of fear of litigation, some states have passed “Benevolent Gesture” laws. These laws shield doctors from liability if they choose to discuss what went wrong in an operation or treatment plan, or if they acknowledge that the patient may be suffering more as a result of something that did or did not happen.
Benevolent Gesture legislation was first introduced in the mid 1980’s and has gathered pace in recent years with a strong lobby for making such a law effective nationwide. Hawaii is one of the states with Benevolent Gesture or “I’m Sorry” Legislation, and is entertaining an amendment that would make actual apologies inadmissible as evidence in medical negligence cases. Supporters of this law view it as advancing medical ethics. Others, however, feel that it serves to cover up the truth and that doctors should admit their mistakes, focus on preventing future errors of the same kind and taking responsibility for injuries to their patients caused by malpractice.
It is important to fully understand the impact of a doctor’s statements if you, a friend or family member has suffered an injury that you believe may be due to medical malpractice.