Will an apology prevent a lawsuit?

October 2009   Comments

A meaningful apology can assist patients and affected families heal but does not prevent the initiation of accountability processes like employer discipline, professional discipline and civil litigation. Legal proceedings can arise even if there was proper reporting to management, prompt disclosure to the patient and an appropriate apology. 

Currently, front-line nurses may be more involved with reporting adverse events than disclosing directly to patients, apart from what is required as the adverse event unfolds. The hospital, health region or clinic is responsible for disclosure since it is responsible for what happens on its premises, including employees’ actions in the course of their employment. Despite disclosure being the right thing to do, the possibility of legal consequences must be borne in mind from the beginning.

Historically, offering an apology has been fraught with difficulty for several reasons, such as fear of an inference of legal liability when none was intended or warranted, and loss of insurance coverage. Several provinces have enacted legislation preventing an apology from being used in legal proceedings and affecting insurance coverage. This can enable open communication at a difficult time for all parties involved.

The enactment of apology legislation has come on the heels of the patient safety movement. Measures are being taken in Canada and abroad to better understand how unintentional harm occurs and to prevent it from happening to others. These laudable goals include disclosing to the patient what happened. The national disclosure guidelines published by the Canadian Patient Safety Institute recommend investigation and an appropriate expression of regret when an adverse event occurs. An apology that acknowledges responsibility is appropriate when an investigation clearly reveals that a health-care provider or organization is responsible for the adverse event.

A small body of Canadian case law concludes that patients must be told when things have gone wrong in their health care. It may not be obvious what has gone wrong and why. Health service delivery can be quite complicated, involving many different legal and reporting relationships, and many processes. Systems theory is commonly used to understand how adverse events occur, but this does not mean individuals have no responsibility for what they have done or failed to do. Every regulated health professional has a personal stake in practising properly. A professional is responsible for what was within their control. The law distinguishes between an error and a failure to take the care that should have been taken.

Still, some patients and their families find it difficult to accept that an apology, a look at how “the system” failed, and doing better in future is enough. They may turn to litigation to resolve the matter. If they can prove that negligence caused harm, damages will be awarded for compensation.

Current patient safety initiatives cannot replace negligence suits because they do not offer dispute-resolution elements such as deterrence of negligent acts, education (what conduct breaches the law) and compensation. There is an interesting pilot project underway in the Winnipeg Regional Health Authority involving the Healthcare Insurance Reciprocal of Canada and the Canadian Medical Protective Association offering some form of settlement as restitution if the incident merits it. This kind of recognition and compensation has resulted in fewer lawsuits in the U.S. where it is offered.

If an apology cannot prevent a lawsuit, what can? The reality for all health-care providers is that a disgruntled patient can initiate a lawsuit if he or she wishes. The defendants will then put forward evidence as to how they acted reasonably and carefully in the circumstances, upheld the standards of their professions and acted ethically. This is what health professionals strive to do in their daily practice. In doing so, nurses create their own best defence.

Elaine Borg, RN, BScN, LLB

Elaine Borg, RN, BScN, LLB, is a Professional Liability Officer with the Canadian Nurses Protective Society.

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