Even with the best medical care, a patient's outcome may not be what was originally desired or anticipated. Unexpected changes in a patient's clinical condition most often reflect the worsening of the disease. However, some clinical outcomes relate to the delivery of care, and these are known as adverse events. Most adverse events result from the inherent risks of investigations and treatments. Sometimes harm can result from system failures or from issues related to the performance of individual healthcare providers.
When an adverse event occurs, the patient's clinical, emotional, and information needs must be met. Healthcare providers must disclose the facts of the event to the patient. Physicians may question whether during the disclosure discussion it is prudent and appropriate to apologize. Many are concerned that offering an apology after an adverse event will expose them to liability.
Most Canadian provinces and territories have now adopted apology legislation. One objective of this legislation is to reduce concerns with the legal implications of making an apology. Apology legislation 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, and is not admissible as evidence of fault or liability.
Depending on where a physician practises, there may be slightly different statutory protection for apologies made to patients. The CMPA believes apology legislation promotes the early resolution of disputes by reducing concerns about the legal implications of an apology. The legislation generally distinguishes between apologies and admissions of fault; specifically, expressions of regret or apologies should not be construed as admissions of fault or liability in the legal context.
In its submission to a number of provincial committees, the CMPA confirmed its general support for apology legislation, which in the event of an adverse outcome allows for an apology that is free from fault or liability. The CMPA is also encouraged that apology legislation promotes interaction between parties at a non-legal level.
The CMPA supports apology legislation across the country and maintains this legislation may enhance physician-patient communication and promote the early resolution of disputes by reducing physicians' concerns with the legal implications of an apology.
The CMPA believes expressions of compassion and concern ("I'm sorry this happened to you") will be appreciated by all patients. It is, however, important to avoid the use of words that express or imply legal responsibility such as negligence, liable, fault, or failing to meet the standard of care. Legal responsibility is complex, and it is the courts and Colleges that are responsible for making such determinations.
Members are encouraged to contact the CMPA for advice before making an apology that includes an acknowledgement of responsibility.
For more information about apology legislation, the CMPA has published the following articles: