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‘I’m sorry’ bill gets Assembly approval (UPDATE)

The state Assembly on Tuesday approved on a voice vote a bill that would let doctors and other medical providers apologize or express fault for botched medical procedures without having to worry their words would be used against them in court.

Similar “I’m sorry” bills have gone before the Legislature several times in the past few years, only to meet with opposition from critics who contend that legal immunity should not be extended to those who admit fault, liability or responsibility for a medical mishap. The author of the current version, Erik Severson, a Republican from Star Prairie and a doctor, said the proposal is meant to ensure medical providers can have “honest conversations” with patients when things go awry.

“If something happened in a surgery or something happened in the ER, or a patient just dies of natural causes, people want to have a true, honest conversation,” Severson said, “instead of having a guarded conversation where their words right now might be used to say, ‘You are guilty of malfeasance or malpractice in this case.’”

Assembly Democrats proposed an amendment that would only prevent doctors and other medical providers from being held liable for statements of apology, sympathy and compassion, rather than of fault or contrition. State Rep. Chris Taylor, D-Madison, said medical professionals should not be protected when they admit to mistakes.

“This does not get into shielding bad actors,” she said. “It doesn’t get into rolling back protections for whistleblowers.”

Republican lawmakers tabled the amendment before voting on Assembly Bill 120, which contains the “I’m sorry” protections.

Assembly Speaker Robin Vos, R-Burlington, said the legislation will help prevent patients from feeling as though they are being lied to when a treatment does not produce the promised results. The proposed change, he said, would help curtail the practice of “defensive medicine,” in which doctors’ primary goal is to protect themselves from lawsuits rather than to do what’s best for patients.

When AB 120 went before the Assembly Committee on Health on June 20, lawmakers amended it to allow apologies, expressions of fault and similar statements to be subject to discovery, which they had not been in the original version.

At the same time, the amended bill prevents those statements from being admitted into court as evidence of liability. The revision also makes the prohibition on the admission of the statements apply to more venues than was originally proposed.

The amendment lists disciplinary proceedings, mediations and arbitrations, rather than just civil actions and administrative hearings in the original version. Finally, the amendment stipulates that the legislation would apply only to statements made before the start of civil actions, administrative hearings or similar proceedings.

If AB 120 is passed by the Assembly on Tuesday, it still must win approval from the state Senate and Gov. Scott Walker to become law. The bill is one of several pieces of “tort-reform” legislation lawmakers have put forward this legislative session.

Lawmakers have so far passed a bill affecting the duty of informed consent. That duty makes doctors and other medical providers responsible for explaining the possible effects of treatments they propose and for identifying alternative treatments. The change passed this session alters the standard used to determine if the duty was fulfilled, making the cases hinge on whether a doctor provided information other doctors would expect to be provided rather than what patients would expect to hear.

Lawmakers also passed a bill placing a $30 million cap on the amount of money law firms can get when they work for state government under a contingency-fee contract. Those sorts of contracts allow lawyers to recoup a percentage of whatever they win for clients in legal actions.

Critics of the proposals to change the state’s tort laws, mainly Democrats, have noted their resemblance to “model legislation” that conservative groups such as the American Legislative Exchange Council and the U.S. Chamber of Commerce have urged state legislatures to adopt.


About Dan Shaw, dshaw@wislawjournal.com

Dan Shaw is the managing editor at the Wisconsin Law Journal. He can be reached at dshaw@wislawjournal.com or at 414-225-1807.

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