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Hospitals, patients’ bar battle over bill to keep statements inadmissible

Del. Kathleen M. Dumais, D-Montgomery. (File photo)

Del. Kathleen M. Dumais, the bill’s chief sponsor, said the legislation would encourage candor between doctors and patients in the wake of a medical mistake by removing the fear that what they say would be used against them if a lawsuit ensues.(File photo)

ANNAPOLIS – Hospital attorneys battled the plaintiffs’ bar Wednesday over legislation that would render inadmissible in court statements made to patients during a health care facility’s investigation of potential malpractice if the facility has established a program for keeping patients abreast of possible negligence.

Larry L. Smith of MedStar Health hailed the measure as permitting doctors to acknowledge a mistake and work with the patients to ensure they receive short- and long-term care, if necessary, and fair compensation for their future medical expenses without the rancor of litigation. The patient would remain free to pursue a lawsuit, at which any admission of fault would be inadmissible except if the doctor denied fault when testifying under oath, Smith told the House Judiciary Committee.

“There are times when bad things happen,” he said.

The legislation encourages “a friendly resolution” based on “a recognition of responsibility” by the hospital, added Smith, vice president of risk management at the health care company.

But attorney George S. Tolley III, who represents patients in malpractice cases, said the legislation favors hospitals by essentially immunizing their admissions of wrongdoing.

The legislation “is written from the perspective of the hospital, said Tolley, on behalf of the Maryland Association for Justice. “What can we do after malpractice? What can we do after the horse is out of the barn?”

Rather, the legislation should be focused on the patient and answer the question, “How can we ensure that the victim is protected?” added Tolley, of Dugan, Babij, Tolley & Kohler LLC in Timonium.

The legislation, House Bill 777, would apply to hospitals that adopt “patient safety early intervention programs” designed to keep patients informed of internal investigations of potential malpractice in their cases. The patients would be advised of the findings of the investigation and told of their right to legal representation during discussions regarding “fair and reasonable compensation” for the malpractice.

Any statements made by the patient would be absolutely barred from being used against him or her in a lawsuit.

Del. Kathleen M. Dumais, the bill’s chief sponsor, said the legislation would encourage candor between doctors and patients in the wake of a medical mistake by removing the fear that what they say would be used against them if a lawsuit ensues.

“Physicians often want to speak with their patients, but there’s this standoff,” said Dumais, D-Montgomery and the committee’s vice chair. “For the purpose of this program, which is like mediation or alternative dispute resolution, what is said is going to be kept out of the courtroom.”

The bill has the support attorney K. Nichole Nesbitt, who represents hospitals and said she has counseled doctors to “be very careful what you say” to patients.

“It’s people like me that’s keeping them (doctors and patients) from having those candid conversations,” Nesbitt told the committee on behalf of Maryland Defense Counsel, an association of civil defense attorneys.

But the legislation’s provision rendering admissions generally inadmissible in court encourages and enables doctors to do “the right thing,” she said.

“You want to encourage candid conversations,” added Nesbitt, of Goodell, DeVries, Leech & Dann LLP in Baltimore.

But Ryan S. Perlin, a plaintiffs’ attorney, said the legislation contains “a full-blown conflict of interest” in which hospitals are empowered to dictate essentially the terms of the discussion with the patients, including what the health care facility believes to be a fair settlement price and when to advise the patients to seek legal counsel.

“Let us, the people who admitted we’ve done you wrong, tell you what your rights are,” said Perlin, of Bekman, Marder & Adkins LLC in Baltimore.

Similar legislation has been introduced in the Senate. Sen. Robert G. Cassilly, R-Harford, is the chief sponsor of Senate Bill 783. A Senate committee hearing on the bill is scheduled for Tuesday.


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