CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ EARLY APOLOGY OR ADMISSION OF RESPONSIBILITY IN MEDICAL … health care, in other ones it covers most, or all, civil matters; the application to criminal matters is rather rare. 19 The effects of the legislation might also be quite different. The law can perhaps only stipulate that an expression of regret which does not include acknowledgement of fault is not to be construed as admission of responsibility. Such rule is rather timid and leaves a lot of issues unaddressed. On the other hand, a much more ambitious version of the rule may set out that an apology is not to be construed as admission of responsibility, that it is not to be used in evidence or taken into account in determination of fault or liability, that it does not affect the running of time for the purpose of limitations periods and that it does not deprive the apologising party of the benefits of any insurance cover. 20 Another important aspect may consist in whether inadmissibility of an apology means that only that very part of the communication which expressed it should be excluded, but the remainder (e.g. providing information about what happened) can be used, or whether any piece of communication which contained an apology beside factual statements (e.g. the whole conversation between a physician and a patient, or the whole letter from the hospital to the patient addressing a possible malpractice event) should be ruled completely unusable for litigation purposes. 21 The newest Hong Kong legislation is based on the latter approach. 22 The history of development of “apology laws” in the past decades shows that legislation grew in the scope of what it disallows from use in litigation. In the United States, Massachusetts was the first state to enact an apology law in 1986. 23 Its legal rule was (and still is) actually quite modest, providing merely that: “Statements, writings or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to such person or to the family of such person shall be inadmissible as evidence of an admission of liability in a civil action.” As already mentioned, this narrow approach leaves a lot of the substantive and procedural aspects unaddressed. Since then, a majority of U.S. states have enacted laws to encourage expressions of sympathy. Most of them apply to statements and gestures of benevolence 24 , often not just verbal but also factual 25 , but while some of them cover accidents in general, other are more 19 Cf. Annex 3 to the Consultation Paper: Enactment of Apology Legislation in Hong Kong, pp. 108-124 [online]. Available at: https://www.doj.gov.hk/eng/public/apology.html [2019-05-31]. 20 Cf. ibid. for examples of various versions of the legal norm. 21 Cf. examples given in CARROLL, Robyn, TO, Christopher, UNGER, Marc. Apology Legislation and its Implications for International Dispute Resolution. Dispute Resolution International. (2015, Vol. 9, No. 2), pp. 131- 133 [online]. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2677033 [2019-05-31]. 22 Pursuant to section 4(3)(b) of the Hong Kong Apology Ordinance 2017, an apology also includes any part of the expression that is a statement of fact in connection with the matter. Available at: https://www.elegislation. gov.hk/hk/cap631 [2019-05-31]. 23 Massachusetts General Laws, Part III (Courts, Judicial Officers and Proceedings in Civil Cases), Title II (Actions and Proceedings Therein), chapter 233, section 23D [online]. Available at: https://malegislature.gov/Laws/ GeneralLaws/PartIII/TitleII/Chapter233/Section23D [2019-05-31]. 24 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]. 25 E.g. Illinois state law stipulates that “the providing of, or payment for, medical, surgical, hospital, or rehabilitation services, facilities, or equipment by or on behalf of any person, or the offer to provide, or pay for, any one or more of the foregoing, shall not be construed as an admission of any liability by such person or persons” . Cf. Illinois Compiled Statutes, 735 ILCS 5/ (Code of Civil Procedure), section 8-1901 [online]. Available at: http://www.ilga.gov/

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