When the doctor says sorry

It’s been a dozen years since health care apology laws came to Canada – but do they work?

My introduction to the complex and emotional world of adverse events in health care occurred in 2001 when I chaired a committee to review an inquest report into the tragic deaths of 12 infants in a paediatric surgery program in Manitoba. Justice Murray Sinclair, who conducted the inquest, had concluded that at least five of the deaths were preventable.

Back then there was no apology law in Manitoba. Neither the Sinclair report (2000) nor the Thomas report (2001) recommended the adoption of such a law. However, in recognition of the trauma suffered by the families, the Government of Manitoba covered their legal bills for the inquest, made a gratuitous monetary payment for their loss and formally apologized, all without accepting liability and without prejudice to their right to sue.

Subsequently I learned that apology laws had already been spreading around the world. The main reason for creating such legislation was to offer some legal protection against malpractice suits for health-care professionals who wish to apologize for preventable harm that came to patients in their care.

Apology laws have been most popular in the market-based and litigious U.S. health system with 34 states passing laws between 1998 and 2014. But Canada has them too. British Columbia led the way in Canada in 2006 with the country’s first apology law. Today nine provinces and two territories have similar laws. Why did apology laws become so popular? Landmark reports documenting the shocking number of preventable health-care-related deaths; high profile tragic health-care-related events and increasing malpractice suits and settlement amounts (since leveled off) all contributed toward the interest in apology laws across the continent, as did the rise of institutions promoting patient safety and less deferential patients armed with better information.

Lawsuits for negligence or error have always been notoriously complex, time-consuming and expensive, with the chance of success very low. Only around two per cent of law suits for negligence or error are successful in Canada, according to a 2014 paper.

Apology laws were meant to reduce reliance on litigation when things go wrong, in favour of more constructive processes of mediation and negotiation that are less costly and more expeditious. In situations of anger and bitterness, the trust and confidence that is meant to exist between patients and providers can be damaged and less adversarial approaches can help to restore such relationships.

There is also the related therapeutic argument that open and honest dialogue can help with the physical and mental health of patients and families devastated by adverse events.

Patients need to be heard. They react positively when they receive honest, empathetic and sincere apologies. In the worst case of the death of a loved one, apologies support movement through the grief process.

It is now well recognized that when errors occur there is often a second victim in the person of the health-care provider. Professionally committed to putting the patient first, providers can often have deep feelings of failure, guilt and shame. Taking refuge in silence had been the preferred coping mechanism of the past. Disclosure and discussion can lead to learning and the restoration of professional confidence and pride.

Apology laws are also meant to provide symbolic assurance to citizens that the health system is responsive to their needs and concerns and not completely controlled by the self-regulating professionals who deliver the services. Inaction in the aftermath of tragedies and the low success rate in malpractice suits reinforced the public perception that no one was held accountable when serious mistakes or abuses occurred. So are apology laws working as they should? The truth is, we don’t really have robust evidence on how they affect doctors – and we know little about the patient experience with such laws.

Here’s what we do know. Apology is a complex, nuanced communication process that goes beyond mere words to include offering explanations, expressions of remorse and sometimes making reparations. Many health professionals are unfamiliar with the requirements for meaningful apologies.

Moving the various health professional cultures away from the traditional stance of denial and secrecy towards disclosure and apology is a slow ongoing process. Ensuring that health professionals receive good training and support in relation to the apology process will be more important than legislation in terms of delivering meaningful apologies.

Apology laws are here to stay. We should make sure they are working, and how they can best be improved — for the good of doctors, patients and their families.