Legal protection is not enough

By Stuart McLennan, Leigh E. Rich, and Robert D. Truog

There has been an important shift toward openness regarding adverse events and their communication to patients. Recent research suggests that saying sorry is a key element of successful disclosure practice. However, fear of legal action has been identified as a major barrier to issuing an apology in the case of error. With the enactment of the Northwest Territories’ Apology Act on Nov. 1, 2013, 8 of 10 provinces and 2 of 3 territories now have legislation that prevents apologies from being taken into account in any determination of fault or liability, and from voiding, impairing or otherwise affecting liability insurance coverage. It remains to be seen whether these laws will achieve their goals of encouraging apologies and open communication and reducing litigation. We are skeptical that apology legislation will lead to substantial improvements in patients’ experiences following an adverse event. Disclosing, and apologizing for, an adverse event is one of the most complex and difficult conversations to have in health care. Therefore, without good training and support in this process, apology legislation is unlikely to have much of an impact on the behaviour of health care staff. [continued …]

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McLennan, Stuart, Leigh E. Rich, and Robert D. Truog. 2014/2015. Apologies in medicine: Legal protection is not enough. Canadian Medical Association Journal 187(5): E156–E159.