by Written on behalf of Wise Health Law August 23, 2018 4 min read

“It’s sad, so sad Why can’t we talk it over? Oh, it seems to me That sorry seems to be the hardest word” ~“Sorry Seems to Be the Hardest Word”: Elton John

Bad Medical Outcomes:

Health care professionals are upset by bad outcomes. They accepted their callings because they wanted to help people and make their lives better. They all live by the spirit of the Hippocratic Oath which in part reads:
“I will remember that I do not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person's family and economic stability. My responsibility includes these related problems, if I am to care adequately for the sick.”
When bad outcomes occur the patient and their family are shocked, disappointed and usually very angry. How could this have happened? Why did it happen?

The Difficult Conversation That Follows:

When bad outcomes occur difficult conversations usually follow. The patient and the family need to be informed, their questions answered, and advice given about the impact on the future. Most health care colleges have policies advising their members on how to do so. The objective of such policies is not to attribute blame or fault, but to allow the patient to make informed decisions about their health care. That is not the usual objective of the family. They want to know why it happened and who is to blame. They want an acknowledgment of fault not a promise that “we will do all we can and only time will tell”.

Bad Outcomes Do Not Necessarily Indicate Fault:

However, a bad medical outcome does not necessarily mean that it was the result of negligence. Harm is not always preventable. Despite very best efforts patients may incur harm in the delivery of health care. This dichotomy of interest leads to tension. The health care professional may want to say more but feels constrained by policy, self-interest, and the fear of saying anything that will lead to a lawsuit. They may fear disciplinary proceedings from their college or the loss of privileges. The family wants medical information, but equally they want empathy, compassion and sympathy. Why did we not hear “I’m sorry” or “I apologize”?

Apology Definition:

An apology is “a regretful acknowledgment of an offense or failure” by definition in the Oxford dictionary. The Cambridge definition is “an act of saying that you are sorry for something wrong you have done”.By definition then, an apology is more than an expression of concern. It is an admission of fault. The inability to apologize therefore gets in the way of a more open, friendly and meaningful dialogue between health care worker and patient.

The Apology Acts:

This was remedied in part by the passing of Apology Acts in British Columbia, Ontario, Nova Scotia, Newfoundland & Labrador, Manitoba, and the Northwest Territories. The Apology Act in Ontario reads in part:
“An apology by or on behalf of someone is inadmissible in a civil proceeding, administrative proceeding or arbitration as evidence of the person’s fault or liability in connection with the event,”
This means that at the time of discussing the bad outcome in provinces with Apology Acts, an apology may be given by the health care professional. Doing so does not admit fault or neglect. It demonstrates concern for the patient and their family. It can help achieve a better sense of closure.

Analysis:

This leaves open the question of whether an apology should be given after a bad outcome. Is it just a bedside manner issue or does an apology work to prevent, dismiss or settle malpractice cases? Unfortunately, there is very little empirical evidence in Canada. The evidence then is largely anecdotal which is unreliable for anything other than a working diagnosis. The assumption is that it would help. It is, however, difficult to go much further without hard Canadian data. It is also complicated by policies that may govern at the relevant medical facility, office, or program. The Canadian Medical Protective Association (CMPA) and its provincial counsel and the insurers of other health care professionals likely have their own position on the answer. It would certainly matter in those jurisdictions where there is no Apology Act. The best guidance we have is from the United States. Dr. Patrick McKenna from the University Of Wisconsin School Of Medicine, using 2014 data from the National Practitioner Data base, reported the following:
  • that mean litigation length was 3.4 years in states with apology laws compared with 5.6 years in states without such laws;
  • in the 38 states with apology laws, the mean litigation length was 4.4 years before apology laws were enacted and 4.1 years after the laws were enacted;
  • decreased litigation length benefits both the plaintiff (the patient) and the defendant (the practitioner;
  • “A shorter trial means lower court and lawyer fees for both parties, results in quicker payment to the patient, when applicable, and is less damaging to the practitioner's practice.”
A paper entitled “Does Sorry Work? – The Impact of Apology Laws on Medical Malpractice” written by Benjamin Ho and Elaine Liu in 2010 had the following abstract: Apologies made by physicians for adverse medical events have been identified as a mitigating factor in whether patients decide to litigate. However, doctors are socialized to avoid apologies because apologies admit guilt and invite lawsuits. An apology law, which specifies that a physician’s apology is inadmissible in court, is written to encourage patient-physician communication. Building on a simple model, we examine whether apology laws at the State level have an impact on malpractice lawsuits and settlements. Using a difference-in-differences estimation, we find that State-level apology laws could expedite the settlement process. Using individual level data, we also find that apology laws have the greatest reduction in average payment size and settlement time in cases involving more severe patient outcomes. It appears the working assumption may be correct. We await the release of Canadian data or studies eagerly. Until then health care professionals should be guided by their policies, procedures, and advisors. At Wise Health Law, we are passionate about helping health professionals and healthcare organizations understand and protect their legal rights. We monitor trends and developments in the health sector so that we can provide consistently forward-thinking legal advice and risk management guidance to all of our clients. Our lawyers have significant trial and appellate experience and will skillfully represent clients whenever litigation is required. Contact us online, or at 416-915-4234 for a consultation.


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