As a Philadelphia birth injury lawyer, I was saddened to read about how one family's malpractice case could be affected by the Pennsylvania "apology law" working its way through the state legislature. The Philadelphia Inquirer reported Nov. 6 on the lawsuit by Ricardo Blake and Erica Allen-Blake, who lost their baby daughter Destinee LoToya Blake at just six days old. Destinee's death was caused by a medical error, and the article says officials at Abington Memorial Hospital explained the error and apologized at a meeting. The couple later sued, using the information they got at the meeting for much of the lawsuit. Though their case ultimately settled, the lawsuit raises a question that current Pennsylvania legislation tries to answer: Should families injured by medical malpractice be able to use this kind of meeting in court?
Destinee was born prematurely at 29 weeks, and weighed just one pound, nine ounces. The hospital needed to feed her intravenously, but because she was so small, they needed to use the biggest vein in her body to safely dissolve the nutritional fluid she received. That meant they needed to run a catheter into her biggest vein, stopping just before it reached the heart. Unfortunately, there was an administrative error with the chest X-ray required to make that delicate judgment, and it wasn't read in time. The catheter went a few millimeters too far, entered Destinee's heart and allowed fluid to seep into the sac surrounding her heart, stopping it. In their lawsuit, Blake and Allen-Blake said the hospital admitted fault in the death and described their meeting in detail. The hospital objected in court, arguing that the meeting was confidential, but the case settled before a trial could take place.
That objection is at the heart of the two bills in the Pennsylvania legislature on apologies in medical malpractice cases. The bills would make apologies inadmissible in medical malpractice cases. More controversially, they would also protect explanations of what happens. The bills are stalled because the state senator in charge of their current committee doesn't care for that second provision. Neither do Pennsylvania medical malpractice attorney groups, who argue that the bill shields doctors from the consequences of their actions. Doctors' groups say the apology law encourages doctors to apologize without fear of lawsuits, a fear that has created a culture of silence in the medical community. That's unfortunate, since one attorney told the newspaper that studies show apologies lead to fewer lawsuits and less cost for the medical professionals.
As a Philadelphia medical malpractice lawyer, I agree with the state senator who would prefer to keep explanations of fault admissible in court. No other category of defendant is permitted this kind of advantage in litigation -- to hide the main evidence of wrongdoing. Indeed, without the ability to bring up the kind of meeting Destinee's parents had, there's no guarantee of any other evidence, since explanations for medical events don't always make it into records. It may be difficult for people who don't work in this field to believe that medical professionals don't necessarily apologize when their mistakes hurt or kill a patient, the definition of medical malpractice. But unfortunately, doctors are so afraid of lawsuits that they may actually encourage them by seeming to turn a cold shoulder to malpractice victims. As a Philadelphia medical negligence lawyer, I think we can do better.
If you or someone in your family suffered an illness or injury because of a medical professional's mistake, you should call Rosenbaum & Associates to discuss how we can help. For a free, confidential case evaluation, send us an email or call 1-800-7-LEGAL-7.
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