Nova Scotia has recently passed the Apology Act. This legislation broadly defines an apology and states that it can’t be used as evidence in legal proceedings to establish fault or liability.
This is especially important in the context of medical negligence as it permits health care workers to apologize for medical errors and mistakes.
The temptation for doctors and nurses not to report a medical error should not be underestimated. A study in the Journal of the American Medical Association found that only 50% of doctors who admitted making serious clinical errors disclosed their errors to medical colleagues, and only 25% disclosed them to the patients or their families. In another published survey of laypersons in the New England Journal of Medicine found that only a third of respondents who had experienced medical error said that the physicians involved in the error had informed them about it.
The reluctance to disclose their mistakes and medical errors likely stems from a fear being discovered. Negligent doctors and nurses are likely aware of their mistakes and know they should confess but fear the consequences. These reactions are reinforced during medical training, which implies that mistakes are unacceptable.
Interestingly, studies show that if a doctor or hospital apologizes, the less likely the patient will be to advance a claim for medical malpractice. For example, one hospital implemented a process by which patients were not only notified that an error had been committed, but in addition the patient or next of kin was told all the details of the error, including the identities of persons involved in the incident. The hospital offered an apology and expressed the regret of the personnel involved.
This practice proved quite successful. Before the initiation of the policy, the hospital was among the nation’s hospitals that paid the most in claims for medical malpractice. After the policy, it became among those that pay the least.
The lawyers at Wagners hope that similar policies get adopted in Nova Scotia, New Brunswick and Prince Edward Island. Too often is medical negligence brushed under the rug for fear of a lawsuit. In fact, studies show that this fear is unfounded. Were doctors and hospital staff to admit their errors and provide patients the details of the incidents, the research suggests that the patients will be less likely to commence a legal proceeding. Retribution will be seen to have been obtained in the form of an apology.
This practice is also encouraged in that it will enable patients to seek prompt, appropriate treatment. When doctors “hide” from their errors and patients are left in the dark about medical error and negligence, the patients’ health suffers. They are unable to plan proper follow up treatment.
The passing of the Apology Act is a big step in the right direction. It remains to be seen whether doctors, nurses and hospitals will see the value in issuing the apologies which form the basis of the new legislation. Or whether the old tactics of covering up medical negligence for fear of reprisal will prevail.