New law protects apologies from being used in court
SAULT STE MARIE, ON—"I'm sorry" no longer means "I'm guilty" in Ontario, after the province joined British Columbia, Saskatchewan and Manitoba in passing legislation excluding apologies from being used against people in court.
The Apology Act was sponsored by David Orazietti, Ontario M.P.P for Sault Ste. Marie.
While the act applies broadly to all sectors of society, Orazietti says he was especially motivated by how the legislation will create "better transparency" in the health care sector, enabling doctors and nurses to talk openly with patients when something goes wrong.
The legislation was supported by the Ontario Medical Association, College of Physicians and Surgeons of Ontario, Registered Nurses' Association of Ontario and Canadian Patient Safety Institute.
Orazietti says that fear of litigation led many hospitals to create policies barring physicians from discussing potential errors, and that for some insurance providers that even the admission that something negative occurred could render their medical insurance "basically null and void."
"So an individual can't have a frank conversation with their patient," Orazietti says, "to express the feelings that they want to and give the information they want to around what's happened.
"Once something happens that is negative, and the individual is trying to find information about what's gone wrong and how to follow up with treatment, [if] the physician is not permitted to continue a conversation, [then] those lines of communication become much more broken down.
"Legislative barriers should not come in the way of this kind of frank and open dialogue [or] showing understanding and compassion."
Supporters say similar legislation in some American states has led to a significant decline in the number of medical malpractice cases being launched. Orazietti points to a report in the American Bar Association Journal citing that 30 per cent of all plaintiffs would not have sued had an apology been given.
"People look to an apology to make things right," says Neil Funk-Unrau, assistant professor of conflict resolution studies at Winnipeg's Menno Simons College.
"Saying, 'Yes, this was wrong, this shouldn't have happened to you, and this is how we're going to make sure it never happens again,' can go a long way. It validates the person who has been victimized.
"When problems occur, most people's primary interest is not, 'Can I sue this hospital for money?' but 'Can I trust these doctors to help me?' Open dialogue establishes a sense of trust."
He adds, however, that he can see the point of critics who are concerned that legally protected apologies can be seen as "toothless."
"A legally protected apology can be seen as letting the person apologizing 'off the hook'," Funk-Unrau says.
"For some people, however, they are also looking for a sense of responsibility for what has happened—and in those [instances] a legally protected apology has been criticized because it removes that onus of personal responsibility. How do I know that the apology is sincere if you aren't going to have any consequences coming out of it? If they don't have to show they are willing to make themselves vulnerable? Or take responsibility for what they have done?"
He tells the story of a defendant who sent an apology that had been so carefully and obviously crafted to fall within the letter of the legislation that it prompted the injured party to abandon attempts at mediation.
"The statement had no feeling behind it. No actual sense of remorse. So they decided to no longer negotiate a settlement. In those instances the 'apology' becomes just another legal document—with no feeling behind it."
In 2006, the Evidence Act of Saskatchewan was amended to state that "evidence of an apology" was not admissible in court as "evidence of the fault or liability."
Kevin Dautremont of Moose Jaw, who has been a family doctor for 25 years, says he regular spoke openly patients before that change, but appreciates the added "security" the amended legislation now gives.
"As a Christian I've always felt I was going to be honest with my patients," Dautremont says. "In the long run, it definitely improves the rapport between the health care professional and patient.
"Mistakes do happen…for a variety of reasons. Most of the time, the patient just wants someone to say they're sorry, talk to them and explain why it happened. To say, 'I looked at x-ray and it looked fine. I made a mistake,' or, 'I forgot to send this letter. I'm sorry.'
"It helps clear the air. Even when you've done nothing wrong you can still say 'I'm sorry this happened.' Sometimes all the patient needs is to hear someone say they are sorry."
Dautremont has also experience the on patient side of things. Dautremont underwent a series of surgeries that failed to fix a detached retina problem. One surgeon left a small amount of material behind Dautremont's retina, leaving his eye sore and irritated.
When another doctor caught the mistake six months later, Dautremont contacted the surgeon involved to ask what had happened during surgery.
"We never heard back," he says, "and I know it was because their lawyers told him not to. But personally, I would have liked to have heard something from the physician, saying, 'This is what happened and I'm sorry it happened.' It would have been nice to have had that. I had no intention of suing him."
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