When a harmful patient safety incident occurs, and after the patient's immediate clinical needs are met, healthcare providers must fulfill their ethical and legal obligations to disclose the facts of the incident to the patient. This disclosure to patients is an integral part of patient care.
In the context of the disclosure discussion, the physician may need to decide whether it is prudent and appropriate to apologize. Many physicians are concerned that by offering a patient an apology for a harmful patient safety incident they will expose themselves to liability.
All Canadian jurisdictions, with the exception Yukon, have now adopted "apology legislation."
One of the objectives of apology legislation is to reduce the concerns about the legal implications of making an apology. The protection afforded by the apology legislation is substantially similar among the different jurisdictions. It typically provides that an apology:
- does not constitute an admission of fault or liability
- must not be taken into consideration in determining fault or liability
- is not admissible as evidence of fault or liability.
In most jurisdictions, the protection extends both to legal proceedings before courts and proceedings before tribunals or quasi-judicial bodies, such as regulatory authority (College) disciplinary committees or coroners' inquests. In Québec, the protection is limited to civil actions.
An apology is generally defined in the statutes as encompassing an expression of sympathy and regret and 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.
What does this mean?
Physicians practising in jurisdictions in which apology legislation has been enacted have statutory protection that any apology they make to a patient cannot be used against them in subsequent court proceedings as evidence to establish fault or liability. The CMPA believes similar protection would extend to the use of apologies before a College or any other tribunal.
Physicians practising in Yukon, where apology legislation is not in place, should be aware that the fact that an apology was made and any admission of fault that might have been made during an apology could be admissible in legal or College proceedings related to the harmful patient safety incident.
The CMPA believes expressions of regret ("I'm sorry this has happened") will be appreciated by all patients. An apology may sometimes include an acknowledgement of responsibility if such responsibility has been determined after careful analysis of the harmful patient safety incident and where it is clear that a healthcare provider or healthcare organization is responsible for, or has contributed to, the harm. Physicians are not responsible for apologizing on behalf of another healthcare provider or an organization. Where a hospital or institution is responsible in part or fully for what has happened, the leadership/administration should decide on the appropriate action to take on behalf of the organization.
Whether or not a physician practises in a jurisdiction with apology legislation, it is important to avoid the use of words that express or imply legal responsibility, such as negligence, liable, fault, or failed to meet the standard of care. Legal responsibility is not always clear, and it is the courts and Colleges that are mandated to make such complex determinations.
Given the complexities associated with apologies, members are encouraged to contact the CMPA for advice prior to making an apology to a patient that includes an acknowledgement of responsibility.
The bottom line
- Apology legislation has been enacted in all Canadian jurisdictions except Yukon.
- One of the objectives of apology legislation is to reduce the concerns about the legal implications of making an apology.
- Given the relative novelty and general application of apology legislation, it remains unclear how the legislation will be interpreted by the courts in medical malpractice proceedings or by regulatory authorities (Colleges).
- Members are encouraged to contact the CMPA for advice prior to making an apology with acceptance of responsibility to a patient.