Nebraska lawmakers advance medical apology bill

BY MARTHA STODDARD
WORLD-HERALD BUREAU
http://www.omaha.com

Doctors should be able to apologize when things go wrong without fear that they will be handing ammunition to malpractice lawyers, the Legislature decided Tuesday.

State senators voted 29-5 to give first-round approval to Legislative Bill 373, a measure that would make a health care provider’s expression of apology, sympathy or compassion inadmissible as evidence of liability in a lawsuit.

State Sen. DiAnna Schimek of Lincoln, who introduced the bill, said it seeks to free doctors and other health care providers to talk with patients and patients’ families when things go wrong during medical care.

“The goal behind this bill is to simply open up the dialogue between doctor and patient,” she said.

She said patients expect their doctors to acknowledge when things go wrong and to apologize – or at least to express sympathy and caring.

Failure to apologize and be direct can affect the doctor-patient relationship for a long time, she said.

But Sen. Steve Lathrop of Omaha argued that LB 373 may not increase the number of apologies.

Doctors already can – and should – apologize when they make mistakes, he said. More than just legal fears keep many physicians from doing so, he said.

Doctors shouldn’t get a special exemption from the ordinary rules of evidence because of their legal concerns, Lathrop added.

No such exemption protects lawyers who make mistakes that harm clients or drivers who injure or kill others, he said.

Lathrop said LB 373 would allow doctors to apologize for their errors, then turn around and deny liability in court for those same errors.

Sen. Ernie Chambers of Omaha said doctors don’t need any protection when patients have bad outcomes through no one’s fault.

The only situation where LB 373 would be needed is when a doctor’s mistake causes harm, he said.

“This is a bill to protect doctors. It’s not to protect the patients,” Chambers said.

Sen. Brad Ashford of Omaha, chairman of the Legislature’s Judiciary Committee, said the bill would encourage resolution of medical claims.

Evidence from other states with similar laws suggests that cases get settled more quickly, lawmakers said.

“Most physicians apologize because they’re human beings and because they get in a human situation,” Ashford said.

Under an amendment added to the bill, statements of fault would remain admissible as evidence in malpractice cases.

That means doctors could express sympathy and be protected – but they would not be protected if they admitted that they made a mistake.

At least 27 states have passed so-called “I’m sorry” laws, according to the American Medical Association.

Besides Nebraska, eight other states have such bills pending.
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