APOLOGIES TO PATIENTS - DOCTORS FACE LEGAL EXPOSURE

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Although the weight of academic opinion appears to favor having doctors apologize to patients for bad outcomes, when the question is put to lawyers the opposite is true.  At least some lawyers recognize that an apology may actually trigger thoughts of suing.

This article from  Medical Economics has more on the issue.

And here is a more recent article on the subject of apologies in Medical Economics.

LEGISLATED PROTECTIONS:

Some sense of the risks involved with apologizing to patients can be drawn from the fact that apologies have been used by plaintiffs suing doctors enough that some jurisdictions have adopted express laws intended to protect doctors who apologized.

A number of States in the United States have adopted laws limiting the use of apologies to help prove negligence in medical malpractice cases.

But consider this:  The use of a physician apology in a lawsuit is only part of the problem.  There is also a danger that apologizing to a patient may inspire him to believe that his doctor has committed malpractice and that a malpractice suit might be a good idea.

Bear in mind that expressing genuine sympathy for a patient is not the same as apologizing.  Sympathy is good but an apology can backfire.

 Canadian doctors have run similar risks with apologies and Canadian provinces have adopted laws to try to mitigate the problem.    Consider, for example,  this, The Apology Act of Manitoba:

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1           The following definitions apply in this Act.

"apology" means an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate. (« excuses »)

"court" includes a tribunal, an arbitrator and any other person who is acting in a judicial or quasi-judicial capacity. (« tribunal »)

Effect of apology on liability

2(1)        An apology made by or on behalf of a person in connection with a matter

(a) does not constitute an express or implied admission of fault or liability by the person in connection with the matter;

(b) does not, despite any wording to the contrary in a contract of insurance and despite any other enactment, void, impair or otherwise affect insurance coverage that

(i) is available, or

(ii) would, but for the apology, be available,to the person in connection with the matter; and

(c) must not be taken into account in determining fault or liability in connection with the matter.

Evidence of apology not admissible in court

2(2)        Despite any other enactment, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in a court as evidence of the fault or liability of the person in connection with the matter.

C.C.S.M. reference

2.1         This Act may be referred to as chapter A98 of the Continuing Consolidation of the Statutes of Manitoba.

S.M. 2008, c. 42, s. 3.

NOTE:  Although the Act expressly prohibits the use of an apology as evidence of liability, that does not necessarily address the original problem when a physician makes a poorly framed apology to a patient.  The danger is that it may inspire a strong suspicion of serious error and increase the probability that a patient will contemplate suing.  In court, it is questionable whether an apology could ever prove negligence even before the Act was passed.  The problem that the apology may persuade a jury that negligence occurred still exists.  Remember: juries are not always persuaded by actual proof, and in the end it is not what is proved to be true so much as what juries are persuaded is true that counts when the jury comes in with its verdict.