Medical Professionals Apologies 2012 Legislation

Last updated: Nov. 21, 2012

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 2012, eight states and Puerto Rico had pending legislation to prevent medical professional apologies or sympathetic gestures from being used in court to date. Massachusetts enacted legislation that provides that in any claim, complaint or civil action 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 benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern which are made by a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding and shall not constitute an admission of liability or an admission against interest.

Related NCSL Webpages:

State Laws on Medical Professional Apologies	2011 Legislation
2010 Legislation	2009 Legislation

IL | MA | MS | NH | NY | PA | PR | RI | WI V-W

STATES	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	none
Guam	not available
Hawaii	none
Idaho	none
Illinois	H.B. 1474 Re-enacts the Sorry Works! Pilot Program Act. Extends the termination date of the reenacted program. Includes a related amendment to the State Finance Act. The program provides for participating hospitals and physicians to promptly acknowledge and apologize for mistakes in patient care and promptly offer fair settlements. Creates a committee to develop, oversee, and implement the program and authorizes grants for certain increased costs.
	H.B. 5219 Amends 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. Also makes these substantive changes: Amends the Code of Civil Procedure to lower the rate of interest payable on judgments; and to delay the accrual of interest in certain cases where a federal Medicare lien may exist against the judgment. Includes an inseverability provision.
	S.B. 3439 Amends 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. Also makes these substantive changes: Amends the Code of Civil Procedure to lower the rate of interest payable on judgments; and to delay the accrual of interest in certain cases where a federal Medicare lien may exist against the judgment. Includes an inseverability provision.
Indiana	none
Iowa	none
Kansas	none
Kentucky	none
Louisiana
Maine	none
Maryland	none
Massachusetts	H.B. 418 Provides that in any claim, complaint or civil action 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 benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern which are made by a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding and shall not constitute an admission of liability or an admission against interest.
	H.B. 421 Provides that in any claim, complaint or civil action 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 benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern which are made by a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding and shall not constitute an admission of liability or an admission against interest.
	H.B. 494 Relates to the admissibility of evidence in judicial or administrative proceeding pertaining to adverse health care management.
	H.B. 1519 Relates to medical peer review and patient safety. Provides that in any claim, complaint or civil action brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, writings, gestures, activities, or conduct expressing apology, regret, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence which are made by a health care provider, an employee or agent of a health care provider, or by a health care facility to the patient, family of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding and shall not constitute an admission of liability or a statement against interest.
	H.B. 1849 Substituted by S.B. 2260 5/9/12 Improves the quality of health care and controlling costs by reforming health systems and payments.
	H.B. 4070 Provides that in any claim, complaint or civil action 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 benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern which are made by a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding, unless the maker of the statement or a defense expert witness, when questioned under oath during the litigation about facts and opinions regarding any mistakes or errors that occurred, makes a contradictory or inconsistent statement as to material facts or opinions, in which case the statements and opinions made about the mistake or error are admissible for all purposes. In situations where a patient suffers an unanticipated outcome with significant medical complication(s) resulting from the provider’s mistake, the health care provider, facility, or an employee or agent of a health care provider or facility shall fully inform the patient, and when appropriate the patient's family, about said unanticipated outcome.
	H.B. 4127 Substituted by H.B. 4155 6/5/12 Provides that in any claim, complaint or civil action 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 benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern which are made by a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding, unless the maker of the statement or a defense expert witness, when questioned under oath during the litigation about facts and opinions regarding any mistakes or errors that occurred, makes a contradictory or inconsistent statement as to material facts or opinions, in which case the statements and opinions made about the mistake or error are admissible for all purposes. In situations where a patient suffers an unanticipated outcome with significant medical complication resulting from the provider’s mistake, the health care provider, facility, or an employee or agent of a health care provider or facility shall fully inform the patient, and when appropriate the patient's family, about said unanticipated outcome.
	H.B. 4155 Provides that in any claim, complaint or civil action 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 benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern which are made by a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding, unless the maker of the statement or a defense expert witness, when questioned under oath during the litigation about facts and opinions regarding any mistakes or errors that occurred, makes a contradictory or inconsistent statement as to material facts or opinions, in which case the statements and opinions made about the mistake or error are admissible for all purposes. In situations where a patient suffers an unanticipated outcome with significant medical complication resulting from the provider’s mistake, the health care provider, facility, or an employee or agent of a health care provider or facility shall fully inform the patient, and when appropriate the patient's family, about said unanticipated outcome.
	S.B. 766 Provides for time limits and notice requirements for claims against health care providers; defines terms; provides that certain communications are inadmissible as evidence.
	S.B. 808 Provides that in any claim, complaint or civil action 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 benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern which are made by a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding and shall not constitute an admission of liability or an admission against interest.
	S.B. 834 Provides that in any claim, complaint or civil action 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 benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern which are made by a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding and shall not constitute an admission of liability or an admission against interest.
	S.B. 2260 Substituted by S.B. 2270 5/17/12 Relates to improving the quality of health care and controlling costs by reforming health systems and payments; creates a Health Information Technology Council; expands medical peer review; relates to patient protection; relates to health insurer reporting requirements; provides for apologies by medical professionals.
	S.B. 2262 Provides that in any claim, complaint or civil action 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 benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error or a general sense of concern which are made by a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding, unless the maker of the statement, or a defense expert witness, when questioned under oath during the litigation about facts and opinions regarding any mistakes or errors that occurred, makes a contradictory or inconsistent statement as to material facts or opinions, in which case the statements and opinions made about the mistake or error shall be admissible for all purposes. In situations where a patient suffers an unanticipated outcome with significant medical complication resulting from the provider’s mistake, the health care provider, facility or an employee or agent of a health care provider or facility shall fully inform the patient, and when appropriate the patient's family, about said unanticipated outcome.
	S.B. 2270 Substituted by S.B. 2400 7/30/12 Relates to improving the quality of health care and controlling costs by reforming health systems and payments; creates a Health Information Technology Council; expands medical peer review; relates to patient protection; relates to health insurer reporting requirements; provides for apologies by medical professionals.
	S.B. 2400 Signed by governor 8/6/12, Chapter 224 Provides for health care quality, cost reduction and determination of need; includes an inventory of resources including facilities for coronary, cancer, neonatal, renal dialysis, surgical, intensive care, skilled nursing, assisted living, long-term care, home health, substance abuse, pharmacy services; family planning, obstetrics, optometric, chiropractic, dental and midwifery; provides employer tax credits for wellness programs; provides for apologies by medical professionals; provides damages for malpractice lawsuits and mental health insurance parity.
Michigan	none
Minnesota	none
Mississippi	S.F. 2182 Died in committee 3/6/12 Provides that certain statements by health care providers or employees regarding the unanticipated outcome of medical care are inadmissible in any civil action by a relative or representative of the patient; provides definitions.
Mississippi	S.B. 2389 Died in committee 3/6/12 Provides that certain statements by health care providers or employees regarding the unanticipated outcome of medical care are inadmissible in any civil action by a relative or representative of the patient; provides definitions.
Missouri	none
Montana	No Regular 2012 Session
Nebraska	none
Nevada	No Regular 2012 Session
New Hampshire	S.B. 17 To Senate for concurrence 5/17/12 This bill makes certain statements by medical care providers to an alleged victim and the alleged victim’s relatives and representatives inadmissible as evidence in any medical injury action.
New Jersey	none
New Mexico	none
New York	A.B. 8621 S.B. 7070 Excludes a statement of apology or regret, made by a health care provider, as an admission of liability in a malpractice lawsuit.
North Carolina	none
North Dakota	No Regular 2012 Session
Ohio	none
Oklahoma	none
Oregon	none
Pennsylvania	none
Puerto Rico	H.B. 3976 To conference committee 6/29/12 Amends the Rules of Evidence of 2009; establishes that the statements or gestures expressing apology, sympathy or solidarity to make a provider of health care give services to an alleged victim of an unanticipated medical outcome or a relative or representative thereof, shall be inadmissible as evidence of liability of unexpected medical outcome.
Rhode Island	H.B. 7172 Withdrawn at sponsor’s request 3/1/12 This act 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 be 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.
	H.B. 7290 This act provides that 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 such as an apology or expression of sympathy, 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. 2671 This act provides that 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 such as an apology or expression of sympathy, 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.
South Carolina	none
South Dakota	none
Tennessee	none
Texas	No Regular 2012 Session
Utah	none
Vermont	none
Virginia	none
Washington	none
West Virginia	none
Wisconsin	A.B. 147 Failed to pass pursuant to Senate Joint Resolution 1 3/23/12 This bill provides that a statement or conduct of a health care provider that expresses apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, 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.
Wisconsin	S.B. 103 Failed to pass pursuant to Senate Joint Resolution 1 3/23/12 This bill provides that a statement or conduct of a health care provider that expresses apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, 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