CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ EARLY APOLOGY OR ADMISSION OF RESPONSIBILITY IN MEDICAL … or that on a procedural level, civil law systems are less familiar with legal rules prohibiting the use of specific items of evidence (which are the core provisions of apology legislation). 34 The persuasiveness of these arguments is somewhat questionable. There may be some countries which have gone towards a no-fault liability system or towards covering personal injury (at least to some extent) by social security system, but there remain numerous civil law jurisdictions, including also the Czech Republic, which operate the traditional, fault-based liability system of personal injury compensation. 35 It would seem logical that in the latter category there should be a stronger push for some kind of apology protection, but this does not seem to be the case. Similarly, the idea that civil law countries typically do not have many detailed rules concerning exclusion of evidence does not mean that their courts would admit any evidence (e.g. illegally obtained) without any limits. Their courts are certainly capable of attaching quite different weight to various items of evidence. They could therefore apply a policy disregarding apologies as a basis of liability, should they be so inclined. While recent development described above might seem to suggest that apology laws are perceived as an almost universally suitable solution, this would be a wrong impression. Several counterarguments which question the idea both in principle and with respect to its effectiveness may be raised. One of the criticisms is based on a moral objection. By immunising apologies from being admissible in litigation, the lawmaker may turn them into “cheap and low-risk litigation tools to appease victims” . 36 This objection worries that the moral quality of an apology may be undermined by its being employed as a strategic weapon in a dispute; apology with no liability attached may not be a sign of genuine contrition. According to this line of reasoning, only when an apology constitutes or comprises an admission of liability, the apologising wrongdoer may be seen to accept all consequences flowing from the breach of law. 37 From the practical perspective, we have already mentioned that apology laws differ in their scope and effects. A statute which only stipulates that an apology is not to be taken as admission of fault provides some incentive for health care professionals to apologise when the situation calls for it, but it does not give them any incentive to actually admit fault because such statement – contrary to the apology per se – might not be excluded from subsequent use in litigation. However, even if the law excludes not just apologies, but also any admissions of responsibility, or of facts from which malpractice could be deduced, this may still lead to an increase in malpractice claims. Once a patient has been made aware that an error has occurred, the patient’s motivation to pursue a claim may increase even though the apology or any other similar statements or actions cannot be introduced as evidence. 38 When the patient knows 34 Ibid., pp. 37-40. 35 In this context, “fault-based” is to be understood rather broadly and not tied to one single national legal tradition. To illustrate this point: in case of contractual liability, Czech law does not require the element of “fault” as such; however, it is still necessary to show breach of a contractual obligation of the care provider (e.g. by non-compliance with the expected level of care), so the result is much the same as in respect of non-contractual liability, which does require “fault”. 36 VANDENBUSSCHE, Wannes. Introducing Apology Legislation in Civil Law Systems. A New Way to Encourage Out-of-Court Dispute Resolution. (2018), p. 43 [online]. Available at: https://papers.ssrn.com/sol3/papers. cfm?abstract_id=3237528 [2019-05-31]. 37 Ibid. 38 For a very thorough analysis cf. MCMICHAEL, Benjamin, VAN HORN, Lawrence, VISCUSI, Kip. ‘Sorry’ Is Never Enough. How State Apology Laws Fail to Reduce Medical Malpractice Liability Risk. Stanford Law

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