CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ EARLY APOLOGY OR ADMISSION OF RESPONSIBILITY IN MEDICAL … accept, criticism and how to manage emotionally difficult communication with patients and their relatives. 13 2. Attempts at a Solution The law may employ various approaches in order to influence health care professionals towards a more open and honest relationship with patients. Apart from relying on professional ethics and honour, it gives patients right to information and it obliges health care providers to supply such information, as mentioned above. But that is not all. There are additional methods which seek to entice, nudge or push the professionals to apologise, and perhaps admit liability, in deserving cases. Some of these are mentioned in the following text. We start by the idea of setting rules that promote exchange of information before a lawsuit would be initiated. Afterwards, we discuss the notion that early apology and admission that a problem occurred might be promoted by making them irrelevant in any subsequent litigation (thus limiting the risk associated with honesty). Recent development in the United States and some other, mostly common law jurisdictions is particularly interesting here, with significant legislative action in the form of so-called “apology laws”, followed however sometimes by academic criticism. Finally, we will consider alternatives which could have a similar aim but could make up for some of the apology laws’ shortcomings. 2.1 Exchange of Information before Litigation The law may try to make professionals more open and straightforward in communication about a possible error by setting a formalised, structured pre-litigation procedure which facilitates exchange of information about what happened. This may serve two purposes. The direct one is that in case that malpractice actually occurred, the harmed patient, or their family, will have a more solid basis for a subsequent lawsuit. In this sense, “exchange of information” is a misnomer, because the flow of it is predominately from the care provider’s personnel to the patient as a recipient. The indirect purpose may be that the care provider, knowing that they will be obliged to divulge relevant information anyway, may be more proactive with it. An advantage of a protocol, which would contain a timed sequence of steps for the involved parties and their legal and other advisers 14 , could lie in the fact that for the care provider, the situation is not limited to a single occasion, but keeps occurring repeatedly with different patients. Therefore, if similar procedure, sequence of steps and extent of provided information are replicated for a number of times, they may become more automated and less contentious. In other words, they become a norm of behaviour. For a health care professional, an instance of actual or suspected malpractice may be a highly unpleasant and emotionally felt experience. However, when there is a standard, established procedure which generally structures the timeline and content of the expected communication, it takes a part of those emotions out of the picture. Such communication may become somewhat less “personalised”, in the positive sense that it is less encumbered by personal emotions of the professional in question. 13 SAITTA, Nicole, HODGE, Samuel. Efficacy of a Physician’s Words of Empathy: An Overview of State Apology Laws. The Journal of the American Osteopathic Association. (2012, Vol. 112, May), p. 304 [online]. Available at: https://jaoa.org/article.aspx?articleid=2094499 [2019-05-31]. 14 Cf. KENNEDY, Ian, GRUBB, Andrew. Medical Law. (Butterworths, London 2000), pp. 557-558.

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