CYIL vol. 10 (2019)

TOMÁŠ HOLČAPEK CYIL 10 ȍ2019Ȏ focused on unanticipated outcomes in health care. 26 In addition, some of the states’ laws prescribe additional limits, such as that only statements (expressions of regret, apologies etc.) made in a certain time period are protected. 27 Later legislation, either in the U.S. 28 or in the United Kingdom 29 , Canada 30 , Australia etc., is usually more generous 31 , and so it is not surprising that the very recent Hong Kong legislation aims, as mentioned above, at a much broader extent of application than the earliest examples. A notable fact is that apology laws are to be found mostly in common law countries: about three quarters of the individual states in the United States, all Australian states and mainland territories, majority of Canadian provinces, England and Wales, Scotland, Ireland and Hong Kong. 32 An obviously interesting question is why this should be the case. Presumably, civil law countries do not have health care systems so special that they would have no problems with medical malpractice. Legal traditions in civil law countries and in the common law sphere are not so different in the need to protect apologies 33 , at least if any such need exists at all. Some arguments have been put forward to explain this, such as that on a substantive level, there is less emphasis on private claiming in civil law jurisdictions than in many common law ones, legislation/ilcs/ilcs4.asp?DocName=073500050HArt%2E+VIII&ActID=2017&ChapterID=56&SeqStart=55 100000&SeqEnd=66700000 [2019-05-31]. 26 VANDENBUSSCHE, Wannes. Introducing Apology Legislation in Civil Law Systems. A New Way to Encourage Out-of-Court Dispute Resolution. (2018), p. 16 [online]. Available at: https://papers.ssrn.com/sol3/papers. cfm?abstract_id=3237528 [2019-05-31]. 27 E.g. Vermont state law sets the period at 30 days of when the provider or facility knew or should have known of the consequences of the error. Cf. Vermont Statutes Online, Title 12 (Court Procedure), chapter 081, § 1912 [online]. Available at: https://legislature.vermont.gov/statutes/section/12/081/01912 [2019-05-31]. Similarly, Washington state law provides for non-admissibility of, inter alia , any “statement, affirmation, gesture, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence” conveyed within 30 days; however, any “evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury” remains inadmissible without any such time limit. Cf. Revised Code of Washington, Title 5 (Evidence), chapter 5.64, section 5.64.010 [online]. Available at: https://apps.leg.wa.gov/ rcw/default.aspx?cite=5.64.010 [2019-05-31]. 28 E.g. a 2003 Colorado law, which is limited to health care but covers expressions of fault beside mere sympathy or compassion. In other words, even apologies which admit malpractice are protected. Cf. Colorado Revised Statutes, Title 13 (Courts and Court Procedure), Article 25 (Evidence), section 13-25-135 [online]. Available at: https://codes.findlaw.com/co/title-13-courts-and-court-procedure/co-rev-st-sect-13-25-135.html [2019-05-31]. 29 CARROLL, Robyn,TO, Christopher, UNGER, Marc. Apology Legislation and its Implications for International Dispute Resolution. Dispute Resolution International. (2015, Vol. 9, No. 2), pp. 116-117 [online]. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2677033 [2019-05-31]. 30 Cf. MACDONALD, Noni, ATTARAN, Amir. Medical Errors, Apologies and Apology Laws. Canadian Medical Association Journal. (2009, Vol. 180, Issue 1), p. 11 [online]. Available at: http://www.cmaj.ca/content/180/1/11 [2019-05-31]. 31 VANDENBUSSCHE, Wannes. Introducing Apology Legislation in Civil Law Systems. A New Way to Encourage Out-of-Court Dispute Resolution. (2018), p. 17 [online]. Available at: https://papers.ssrn.com/sol3/papers. cfm?abstract_id=3237528 [2019-05-31]. 32 Legislation in Ireland, Scotland and Hong Kong is particularly recent: the relevant amendment of Irish Civil Liability and Courts Act (statute originally enacted in 2004) is from 2015, Apologies (Scotland) Act is from 2016 and Hong Kong Apology Ordinance from 2017. 33 VANDENBUSSCHE, Wannes. Introducing Apology Legislation in Civil Law Systems. A New Way to Encourage Out-of-Court Dispute Resolution. (2018), pp. 4, 30-36 [online]. Available at: https://papers.ssrn.com/sol3/papers. cfm?abstract_id=3237528 [2019-05-31].

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