Originally published September 2008 / Revised April 2013
Most Canadian jurisdictions have legislation to prevent apologies for adverse events from being used in court proceedings.
When an adverse event 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 adverse event to the patient. The disclosure of adverse events 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 an adverse event they will expose themselves to liability.
To date, 8 Canadian provinces and one territory (British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, and Nunavut) have adopted "apology legislation". The Uniform Law Conference of Canada and the Canadian Patient Safety Institute (CPSI) have both encouraged all provinces and territories to enact 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 from province to province. 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
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.
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 a jurisdiction 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 a jurisdiction in which 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 adverse event.
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. At the post-analysis disclosure stage, after the analysis of the adverse event is complete and it is clear that a healthcare provider or healthcare organization is responsible for, or has contributed to, the harm from an adverse event, it is appropriate to acknowledge that responsibility and to apologize. Physicians are not responsible to apologize 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 most Canadian jurisdictions
- One of the objectives of apology legislation is to reduce the concerns about the legal implications of making an apology.
- Given the 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.