Medical Professionals Apologies 2010 Legislation

Last updated: February 15, 2011

NCSL Staff Contact: Heather Morton, Denver

Following discovery that something has gone wrong with a patient, many medical professionals may wish to express their condolences or apologies to patients or their families. However, in some states, such expressions may be admissible before courts as evidence of wrongdoing or guilt in medical liability/malpractice cases. Many doctors are advised, if not ordered, to refrain from making such statements to patients and families, should the matter end up in court.

In an effort to reduce medical liability/malpractice lawsuits and litigation expenses, state legislators and policymakers are changing the laws to exclude expressions of sympathy, condolences or apologies from being used against medical professionals in court. Proponents of these so-called "I'm sorry" laws believe that allowing medical professionals to make these statements can reduce medical liability/malpractice litigation.

In 2010, 11 states introduced legislation to prevent medical professional apologies or sympathetic gestures from being used in court. Utah enacted legislation that creates a demonstration project designed to to facilitate open and honest dialogue between a health care provider and a patient or the patient's representative regarding unexpected medical outcomes and adopted a resolution that amends Rule 409 of the Utah Rules of Evidence; to make expressions of apology, sympathy, condolences, and the like inadmissible against the health care provider.

Related NCSL Webpages:

State Laws on Medical Professional Apologies
2009 Legislation  

 

GA | IL | KS | MD | MAMI | NYRI | UT | VA | WI 
STATE
BILL SUMMARY
Alabama
none
Alaska
none
Arizona
none
Arkansas
none
California
none
Colorado
none
Connecticut
none
Delaware
none
District of Columbia
none
Florida
none
Georgia

H.B. 24
Provides that in any claim or civil proceeding brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities, or conduct expressing regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence which is made by a health care provider or an employee or agent of a health care provider to the patient, a relative of the patient, or a representative of the patient and which relates to the unanticipated outcome shall be inadmissible as evidence and shall not constitute an admission of liability or an admission against interest.

Guam
none
Hawaii
none
Idaho
none
Illinois

H.B. 6844
Amends the Illinois Insurance Code, the Code of Civil Procedure, and the Good Samaritan Act to reenact certain provisions of Public Act 94-677, which was declared to be unconstitutional. Includes explanatory and validation provisions. Makes changes relating to the reenactment, including revisory changes. Also makes these substantive changes: Amends the Code of Civil Procedure to lower the rate of interest payable on judgments; to provide for annual indexing of those rates; and to delay the accrual of interest in certain cases where a federal Medicare lien may exist against the judgment. Amends the Wrongful Death Act to undo the changes made by Public Act 95-003: removes a reference to certain types of damages that may be included in a jury award and restores certain historic limitations on the amount of damages that may be awarded. Includes an inseverability provision.

 

S.B. 997
Amends the Sorry Works! Pilot Program Act. Makes a technical change in a section concerning the short title.

 

S.B. 998
Amends the Sorry Works! Pilot Program Act. Makes a technical change in a section concerning the short title.

Indiana
none
Iowa
none
Kansas

S.B. 374
The bill provides that evidence of statements or gestures that express apology, sympathy, commiseration, or condolence concerning the consequences of an event in which the declarant participated would not be admissible to prove liability for claims growing out of the event.

Kentucky
none
Louisiana
none
Maine
none
Maryland

S.B. 358
Repeals an exception to a provision of law that a specified expression of regret or apology made by a health care provider is inadmissible for specified purposes in a specified proceeding or civil action.

Massachusetts

H.B. 4720
Reduces medical errors and improves patient safety; provides for a medical peer review committee of health care providers; relates to an adverse event, unanticipated outcomes, checklist of care to prevent adverse events and reduce healthcare-associated infection rates, and a facility, hospital, institution maintaining an Intensive Care Unit, institution providing surgical services, or clinic providing ambulatory surgery; provides that a statement of regret does not constitute an admission of liability.

 

H.B. 4862
Reduces medical errors and improves patient safety; provides for a medical peer review committee of health care providers; relates to an adverse event, unanticipated outcomes, checklist of care to prevent adverse events and reduce healthcare-associated infection rates, and a facility, hospital, institution maintaining an Intensive Care Unit, institution providing surgical services, or clinic providing ambulatory surgery; provides that a statement of regret does not constitute an admission of liability.

 

S.B. 561
Establish an Adverse Event Disclosure and Compensation Grant Program for hospitals.

 

S.B. 574
Relates to malpractice reform; amends definitions for apologies; amends requirements for notice before filing a claim.

Michigan

H.B. 6073
Prohibits introduction of evidence of an expression of sympathy as an admission of liability in a civil action.

 

H.B. 6263
Prohibits the introduction of evidence of an expression of sympathy as an admission of liability in a civil action.

Minnesota
none
Mississippi
none
Missouri
none
Montana
No Regular 2010 Session
Nebraska
none
Nevada
No Regular 2010 Session
New Hampshire
none
New Jersey
none
New Mexico
none
New York

A.B. 9488
S.B. 6321
Establishes the "Sorry Works! demonstration program.

 

S.B. 7519
Limits evidence of admissions in medical, dental or podiatric malpractice actions.

North Carolina
none
North Dakota
none
Ohio
none
Oklahoma
none
Oregon
none
Pennsylvania
none
Puerto Rico
none
Rhode Island

H.B. 7320
Provides that expressions of sympathy, statements by a health care provider to a patient or to the patient’s family regarding the outcome of such patient’s medical care and treatment, including reports of medical/health care errors or unanticipated outcomes as required by or in accordance with JCAHO’s standards, and any offers by a health care provider to undertake corrective action to assist the patient shall be inadmissible as evidence or an admission of liability in any claim or action against the provider.

 

S.B. 2562
Provides that expressions of sympathy, statements by a health care provider to a patient or to the patient's family regarding the outcome of such patient's medical care and treatment, including reports of medical/health care errors or unanticipated outcomes as required by or in accordance with JCAHO's standards, and any offers by a health care provider to undertake corrective action to assist the patient would be inadmissible as evidence or an admission of liability in any claim, action or proceeding against the provider.

South Carolina
none
South Dakota
none
Tennessee
none
Texas
none
Utah

H.B. 408
Signed by governor 3/29/10, Chapter 344
This bill: authorizes the Department of Health to establish a demonstration project to facilitate: open and honest dialogue between a health care provider and a patient or the patient's representative regarding unexpected medical outcomes; and timely and cost effective resolution of unexpected medical outcomes; and gives the department rulemaking authority to implement the demonstration project.

 

H.J.R. 34
Adopted 3/9/10
This resolution amends Rule 409 of the Utah Rules of Evidence; and makes expressions of apology, sympathy, condolences, and the like inadmissible against the health care provider.

Vermont
none
Virginia

H.B. 87
Establishes a system for determining the liability of physicians and hospitals for medical injury caused by an unintended or unexpected adverse consequence or unanticipated outcome of (i) health care rendered or provided to the patient or (ii) the failure of a health care provider to render or provide health care to the patient. This system is the exclusive remedy for covered injuries; however, civil actions are permitted against a health care provider where there is clear and convincing evidence that the health care provider intentionally or willfully caused or intended to cause an injury. A claimant need not establish that the health care provider's negligence or breach of contract caused the injury. A claimant whose injury is found to be covered by the measure is eligible to be compensated for (i) expenses of medical and hospital, rehabilitative, therapeutic, nursing, attendant, residential, and custodial care; (ii) loss of earnings for the period that the claimant is unable to perform the functions of any job for which he was reasonably qualified at the date of the medical incident, based on his training and experience at a rate equal to the statewide average weekly wage; (iii) permanent loss or disfigurement as provided in the Workers' Compensation Act; (iv) if the injury is fatal, burial expenses and a death benefit not to exceed $100,000; (v) vocational rehabilitation services; and (vi) reasonable expenses, including reasonable attorney fees. Total awards are subject to the limit currently applicable in medical malpractice actions. Determinations of liability and damages will be made by a three-member Medical Injury Compensation Board. Claims will be reviewed by a panel of three qualified and impartial physicians drawn from a specialty appropriate to the facts of a particular case, whose members are selected by the deans of the schools of medicine of the Eastern Virginia Medical School, University of Virginia School of Medicine, and Medical College of Virginia of Virginia Commonwealth University, which panel will prepare a report regarding whether the claimant's medical injury does or does not satisfy the criteria of a covered injury. Health care providers are required to insure the payment of compensation to injured patients through a policy of medical incident insurance. Failure to insure is punishable by civil and criminal penalties. The expenses of the Board will be paid from an administrative fund maintained by a premium tax levied on liability insurance carriers. An Uninsured Providers' Fund is established to pay awards against uninsured health care providers. The measure applies to all claims for covered injuries occurring in this Commonwealth on and after July 1, 2012. Amends provisions regarding statements of apology to comply with this bill’s changes.

Washington
none
West Virginia
none
Wisconsin

A.B. 710
Failed to pass pursuant to Senate Joint Resolution 1 4/28/10
Under current law, certain types of evidence are not allowed to be admitted in a court action for various policy reasons. For example, evidence of measures taken after damage occurred that would have made the damage less likely is not admissible to prove negligence or culpable conduct in connection with the damage. As another example, no written or oral communication relating to a dispute in mediation is admissible or subject to discovery in any judicial proceeding or administrative action. This bill provides that a statement, a gesture, or conduct of a health care provider that expresses apology, condolence, compassion, benevolence, or sympathy to a patient or patient’s relative or representative is not admissible into evidence or subject to discovery in any civil action or administrative hearing regarding the health care provider as evidence of liability or as an admission against interest.

Wyoming
none

 

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