APOLOGISING FOR MEDICAL NEGLIGENCE

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APOLOGISING FOR MEDICAL NEGLIGENCE

• The role of apology in Open Disclosure

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Australian Commission on Safety and Quality in
Healthcare, Open Disclosure Standard Review
Report (2012)

• Major findings
• 1.Open disclosure is often conducted as a process
  of information provision from the service to the
  patient but patients prefer it as an open
  dialogue.
• 2.Health professionals support disclosure but
  there remain barriers to its practice including
• Perceived medico-legal consequences of
  disclosure
• Concerns about preparedness for involvement in
  open disclosure and
• Difficulty with communicating openly in the
  context of risk management
• 3.Overseas evidence and Australian experience
  suggest disclosure is more effective as an
  ethical practice that prioritises organisational
  and individual learning from error than solely as
  an organisational risk management strategy.
• 4.Open disclosure has been found to create larger
  benefits for the health system and patients by
  fostering cultures of openness and trust.

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Open Disclosure

• The standard defines open disclosure as the open
  discussion of incidents that result in harm to a
  patient while receiving health care. Its
  elements include an expression of regret, a
  factual explanation of what happened, the
  potential consequences and the steps taken to
  manage the event and prevent recurrence

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adverse events

• (an) incident in which harm resulted to a person
  receiving health care ie iatrogenic
• Approx 10 of clinical interventions lead to
  patient harm
• 2009 Labour Force Survey 900,000 Australians 15
  experienced harm from medication, medical care,
  treatment or investigation

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Aims of open disclosure

• After adverse events
• Redress harm and repair damaged relationships
  and
• Contribute towards health system improvement.
• Australia 2003, UK 2005, Canada 2008, NZ, US
•  

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Civil Liability Acts 2002 ff

• Introduced protected apologies
• Aims
• Reduce chill factor of legal advice not to
  apologise
• Because of fear that apology admission
  liability
• Because of fear that apology admission void
  insurance policy
• Reduce litigation

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The link with insurance

• Medical indemnity insurance mostly have a
  voidability clause eg2003 United Medical
  Protections AMIL policy stated 
• 4.1 You must not make any admission, offer or
  promise in relation to any claim covered by this
  policy without our prior written consent

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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

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An essential element for apologies to be accepted

• Apology including expression of regret and
  acknowledgement of fault ( full apology)
• Apology with only expression of regret (partial
  apology)

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The legislation
Definition includes acknowledgement of fault Apology not an admission Apology not admissible Apology does not void insurance Apology does not make time run
Mass 1986 v v
Colorado (health) v v v
NSW v v v
Qld vsince 2010 v v
SA v
Tas v v
Vic v
WA v v
ACT v v v
NT v v
UK ? v v
Br Columbia v v v v v
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Apologies and propensity to sue

• Why people say they sue
• for vindication
• to make sure the thing doesnt happen again
• to make someone see that they were responsible
• Lexington Veterans hospital experience
• Full disclosure after adverse events
• Reduced litigation costs (earlier settlement etc)
• The Mater Hospital Brisbane
• -since 2003
• - reduced financial costs in general with OD

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Difficulties in Australia

• Open disclosure process is national while apology
  legislation is state-based eg NSW Health dept
  Open disclosure Guidelines p 11
• 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.
•  
•  

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The big problem

• Not knowing what the law is
• eg medical practitioners
• in a recent survey (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

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Recommendations

• Make all apology legislation in Australia include
  protection of full apologies
• Make all apologies for Open Disclosure full
  apologies