Apologising for personal injury: new legislation and medical malpractice

1. Apologising for personal injury: new legislation and medical malpractice Professor Prue Vines Law School University of New South Wales

2. New legislation protecting apologies and expressions of regret • US since 1986 • Australia since 2002 • Canada since 2006 • UK Compensation Act 2006 (England and Wales) Vines UNSW Law School 'Apologising for personal injury'

3. The perceived problem • The apology as admission of liability • Leading to advice not to apologise ( assuming this itself increases litigiousness) • Voiding insurance contracts • Perception of increased litigation caused by the ‘compensation culture’ or ‘blame society’ Vines UNSW Law School 'Apologising for personal injury'

4. Second reading speeches • When I was getting my driver's licence I was told that, if I ever had an accident and it was my fault, I should never apologise as it could be taken to be an admission of guilt and I could be sued. Australians are happy to apologise if they are at fault. They try to work things out. It is totally un-Australian not to apologise if one thinks that one has done something wrong. (Brown, NSW Legislative Assembly 2002) • HL Deb 27 Mar 2006, col 576 (Baroness Ashton of Upholland): “The Bill is an important contribution to a much wider programme of work. The Government are taking forward many other important initiatives, on which I am proud to lead, to tackle perceptions of a compensation culture”; HC Deb 8 Jun 2006, col 419 (Bridget Prentice MP). “Although a compensation culture does not exist in this country, the perception that it does can have a real and damaging effect on people’s behaviour” Vines UNSW Law School 'Apologising for personal injury'

5. Increasing litigation? • Research in Australia and the United Kingdom has not borne this out: see E Wright, “National trends in personal injury litigation: before and after ‘Ipp’” (2006) 14 Torts Law Journal 233; R Lewis, A Morris and K Oliphant, “Tort personal injury claims statistics: is there a compensation culture in the United Kingdom’? (2006) 14 Torts Law Journal 158. • Both articles acknowledge an increase in litigation rates in the thirty years to the 1990s, but little increase per capita after that. However, the cost of claims, particularly the biggest damages awards for catastrophic injury, has increased dramatically partly because of wage rises for nursing and similar professions and because of increased life expectancy of catastrophically injured people • Similar for medicine – increase in litigation but reduction in rate compared with number of medical interventions Vines UNSW Law School 'Apologising for personal injury'

6. What affects propensity to sue • The literature suggests that propensity to sue for personal injury is affected by: • the status of the plaintiff/pursuer; • the costs rules (the more favourable to plaintiffs, the more likely a person is to sue); • the existence of jury trials; and • the cultural view of risk and blame. Vines UNSW Law School 'Apologising for personal injury'

7. 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 Vines UNSW Law School 'Apologising for personal injury'

8. Quick aside • There is considerable doubt about whether apologies even with acknowledgement of fault do amount to admissions of liability especially in negligence (eg Dovuro) • If that is the case then they also won’t void insurance contracts etc Vines UNSW Law School 'Apologising for personal injury'

9. The legislation Vines UNSW Law School 'Apologising for personal injury'

10. UK Compensation Act s 2 • An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty. (applies to England and Wales, not Scotland)  Vines UNSW Law School 'Apologising for personal injury'

11. British Columbia Apology Act 2006 (1) An apology made by or on behalf of a person in connection with any matter – (a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter, (b) does not constitute a confirmation of a cause of action in relation to that matter for the purposes of section 5 of the Limitation Act, (c) does not, despite any wording to the contrary in any contract of insurance and despite any other enactment, void, impair or otherwise affect any insurance coverage that is available, or that would, but for the apology, be available to the person in connection with that matter, and (d) must not be taken into account in any determination of fault or liability in connection with that matter. (2) Despite any other enactment, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any proceeding and must not be referred to or disclosed to a court in any proceeding as evidence of the fault or liability of the person in connection with that matter. Vines UNSW Law School 'Apologising for personal injury'

12. BC Apology Act 2006 • Section 1 defines “apology” as: an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate. Vines UNSW Law School 'Apologising for personal injury'

13. Problems with the expression of regret version • To summarise, if you say to someone 'I am sorry', that is not a clear acknowledgment of fault, but if you say to someone 'I am sorry. It is all my fault', then the apology provision is rendered inoperative. The Australian Medical Association, amongst others, has expressed the view that this sort of highly qualified, highly restrictive drafting is not calculated to encourage the outcome the government seeks to achieve. The AMA believes doctors, amongst others, are going to be very cautious in trying to take advantage of these provisions because of their limited nature. • Mr Clark, NT Legislative Assembly, 2002 • AND psychological evidence that expression of regret is more likely to make people angry and aggressive Vines UNSW Law School 'Apologising for personal injury'

14. Medical adverse events and apology: the Australian Open Disclosure Project • Australian Commission for Safety and Quality in Health Care • Now in the process of being applied across many Australian states • Over – New York Times Vines UNSW Law School 'Apologising for personal injury'

15. Vines UNSW Law School 'Apologising for personal injury'

16. Vines UNSW Law School 'Apologising for personal injury'

17. But note this: (p 11 of Open Disclosure Guidelines NSW Health) • 3. Offering an apology • 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. Vines UNSW Law School 'Apologising for personal injury'

18. Continuing p 11: Examples of apologies The following statement does not admit liability. It provides facts but no conclusions. 􀀹 “Your husband, John, was given an injection of penicillin shortly before his death. There were notes in his medical records that he was allergic to penicillin, but the person who gave the injection did not see the notes. We are sorry about this incident.” • The following statement admits liability by admitting breach and causation. Duty should not be an issue in an apology. “The nurse knew your husband, John, was allergic to penicillin, because it is written all over the notes; but she gave him the injection by mistake that caused him to have an anaphylactic reaction, from which he could not be resuscitated. We are very sorry about this incident”. Vines UNSW Law School 'Apologising for personal injury'

19. NHS Redress Act s 3(2) 2006 redress is “ordinarily to comprise”:  (a) the making of an offer of compensation in satisfaction of any right to bring civil proceedings in respect of the liability concerned, (b) the giving of an explanation, (c) the giving of an apology and (d) the giving of a report on the action which has been, or will be, taken to prevent similar cases arising. The scheme enables “redress to be provided without recourse to civil proceedings” in circumstances where tortious liability might arise in relation to health services. “Apology” is undefined. Vines UNSW Law School 'Apologising for personal injury'

20. The big problem • Not knowing what the law is: eg medical practitioners : in a recent survey by Salem and Forster (in 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 UNSW Law School 'Apologising for personal injury'

21. Open disclosure’s single standard for apologies is a bad standard (as is NHS Redress) • May make things worse Vines UNSW Law School 'Apologising for personal injury'

22. Lawyers and insurers • Not knowing the law properly about apologies and admissions etc before such apology-protecting legislation is passed • Not knowing the legislation exists when it is passed • Not changing practices of advice etc • Therefore undermining the purpose of the law Vines UNSW Law School 'Apologising for personal injury'