CYIL vol. 10 (2019)

TOMÁŠ HOLČAPEK CYIL 10 ȍ2019Ȏ Establishment of such protocol may be carried out through various means, including ethical codes and regulatory bodies’ recommendations. It does not need to have the form of law 15 , although its application may be supported by courts nonetheless. 16 The aim would be to ease, and speed up, the flow of relevant information and increase the prospects for resolving potential disputes even before they transform into a legal action. 17 The obvious problem is that health care providers might still not have enough motivation to earnestly comply with the protocol. One reason could be that even if it is in some situations likely that an occurrence of malpractice will be revealed, it is not certain and it might be possible to keep it under the lid. But there is another rationale, less nefarious and more acceptable. It is not always clear whether malpractice really happened and whether it was the decisive cause of any adverse development of the patient’s health. The health care provider may often claim reasonable doubt about the facts, and argue that in such circumstances it should not be obliged to alert the patient or their family about suspicion which may well turn out to be unfounded. 2.2 Excluding Apology from Evidence in Litigation Seeking to provide other incentives for early and honest communication about malpractice, whether actual or merely suspected, the law may make an apology or admission of responsibility for adverse effect on the patient’s health unusable in any subsequent litigation. In other words, the health professional would be free to say that they are sorry for anything bad which happened to the patient, whether due to an error on the part of the professional or to a natural cause, without fear that such statement would then be used to establish legal liability for harm suffered by the patient. Arguably, such rule does not make the patients’ situation worse from the ex ante perspective, because otherwise they would perhaps not be getting any apology or admission of an error at all. It could however strengthen the incentives for the health care provider to communicate openly and honestly. 18 Laws concerning apologies and expressions of regret need not limit themselves to medical context. Although health care probably provides a particularly fertile ground for situations in which expression of sympathy and empathy is highly desirable and yet fraught with risks of legal consequences, the same principles may be applied generally. Various jurisdictions approach this aspect differently. Some of them have legislation focused on 15 A legislative attempt in this respect is contained in the 2015 amendment of the Irish Civil Liability and Courts Act, in particular its new part 2A (Clinical Negligence Actions), which intends to allow the government to set up the terms of a pre-action protocol, aimed at promoting disclosure of information by a health service provider, alternative resolution of disputes etc.; non-compliance with the protocol may result in suspension of judicial proceedings (until steps required by the protocol are taken), specific allocation of costs of the proceedings, and adjustment of interest rate on an award of damages downwards or upwards (depending on whether it is supposed to punish the claimant or the defendant for non-compliance). 16 Even if not expressly stipulated by the law, courts could take compliance with the protocol into account in their consideration of the case; if not with respect to the merits, then at least with respect to allocation of costs of the proceedings. 17 KENNEDY, Ian, GRUBB, Andrew. Medical Law. (Butterworths, London 2000), pp. 557-558. 18 “In general terms, apology legislation aims to encourage apologies by removing legal disincentives to apologising.” CARROLL, Robyn,TO, Christopher, UNGER, Marc. Apology Legislation and its Implications for International Dispute Resolution. Dispute Resolution International. (2015, Vol. 9, No. 2), p. 125 [online]. Available at: https:// papers.ssrn.com/sol3/papers.cfm?abstract_id=2677033 [2019-05-31].

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