APOLOGISING FOR MEDICAL
NEGLIGENCE
The role of apology in Open
Disclosure
Professor Prue Vines, UNSW Law
Australian Commission on Safety and Quality in
Healthcare, Open Disclosure Standard Review
Report (2012)
Major findings:
1.Open disclosure is often conducted as a process of information provision from the
service to the patient but patients prefer it as an open dialogue.
2.Health professionals support disclosure but there remain barriers to its
practice including:
• Perceived medico-legal consequences of disclosure;
• Concerns about preparedness for involvement in open
disclosure; and
• Difficulty with communicating openly in the context of risk
management;
3.Overseas evidence and Australian experience suggest disclosure is more effective as
an ethical practice that prioritises organisational and individual learning from error
than solely as an organisational risk management strategy.
4.Open disclosure has been found to create larger benefits for the health system and
patients by fostering cultures of openness and trust.
Professor Prue Vines, UNSW Law
Open Disclosure
• The standard defines open disclosure as the
“open discussion of incidents that result in
harm to a patient while receiving health care.”
Its elements include “an expression of regret,
a factual explanation of what happened, the
potential consequences and the steps taken to
manage the event and prevent recurrence”
Professor Prue Vines, UNSW Law
‘adverse events’
“(an) incident in which harm resulted to a
person receiving health care” ie iatrogenic
Approx 10% of clinical interventions lead to
patient harm
2009 Labour Force Survey: 900,000 Australians
15+ experienced harm from medication,
medical care, treatment or investigation
Professor Prue Vines, UNSW Law
Aims of open disclosure
After adverse events:
• Redress harm and repair damaged
relationships; and
• Contribute towards health system
improvement.
• Australia 2003, UK 2005, Canada 2008, NZ, US
Professor Prue Vines, UNSW Law
Civil Liability Acts 2002 ff
• Introduced protected apologies –
– Aims
• Reduce ‘chill factor’ of legal advice not to apologise
– Because of fear that apology =admission = liability
– Because of fear that apology= admission= void insurance
policy
• Reduce litigation
Professor Prue Vines, UNSW Law
The link with insurance
• Medical indemnity insurance – mostly have a
voidability clause: eg2003 United Medical
Protection’s AMIL policy stated:
•
‘4.1 You must not make any admission,
offer or promise in relation to any claim
covered by this policy without our prior
written consent’
Professor Prue Vines, UNSW Law
Why apologise?
• Perception that it is the natural and moral
thing to do
functions:
-reduce aggression (evolutionary
psychology)
-create or reinstate moral
community
-part of culture of risk and blame
Prue Vines Professorial Lecture UNSW Law
School 2011
An essential element for apologies to
be accepted:
• Apology including expression of regret and
acknowledgement of fault ( ‘full apology’)
• Apology with only expression of regret
(‘partial apology’)
Professor Prue Vines, UNSW Law
The legislation:
Definition includes
acknowledgement
of fault
Mass 1986
Apology not an
admission
Apology not
admissible
√
√
Colorado (health)
√
√
√
NSW
√
√
√
Qld
√since 2010
√
√
SA
√
Tas
√
Vic
√
WA
√
√
√
√
√
√
√
√
√
√
ACT
√
NT
UK
?
Br Columbia
√
Apology does not
void insurance
Apology does not
make time run
√
√
√
Prue Vines Professorial Lecture UNSW Law
School 2011
Apologies and propensity to sue
Why people say they sue:
for vindication
to make sure the thing doesn’t happen again
to make someone see that they were responsible
– Lexington Veteran’s hospital experience
• Full disclosure after adverse events
• Reduced litigation costs (earlier settlement etc)
The Mater Hospital Brisbane
-since 2003
- reduced financial costs in general with OD
Prue Vines Professorial Lecture UNSW Law
School 2011
Difficulties in Australia
Open disclosure process is national while apology legislation is
state-based eg NSW Health dept Open disclosure Guidelines
p 11:
“Offering an apology or expressing regret is a key component of the open disclosure process.
The apology should include an expression of sorrow for the harm done to the patient, but it
must not be an admission of liability. Staff must be careful not to make any verbal or
written statement that admits liability. An admission of liability means admitting that the
hospital or a staff member breached their duty of care to the patient, which led to the
patient suffering harm or injury.
An apology:
􀂃 does not blame the health facility for harm caused to the patient
􀂃 does not blame a clinician for harm caused to the patient
􀂃 does not blame the Health Service for harm caused to the patient
􀂃 does not indicate that the incident could have been avoided.
“
Prue Vines Professorial Lecture UNSW Law
School 2011
The big problem
• Not knowing what the law is:
eg medical practitioners :
in a recent survey (2008)of NSW General Practitioners
71% had not heard of the Civil Liability Act
59% thought litigation had increased in last 5
years ( it had dramatically reduced)
82% said their fear of lawsuits substantially
lessened their enjoyment of medicine
Vines Apologising for personal injury
13
Recommendations
• Make all apology legislation in Australia
include protection of full apologies
• Make all apologies for Open Disclosure full
apologies
Professor Prue Vines, UNSW Law