CYIL vol. 10 (2019)

TOMÁŠ HOLČAPEK CYIL 10 ȍ2019Ȏ with certainty or near certainty that malpractice took place, his or her task now becomes just to find the necessary proof. It is obvious that many people are willing to spend much more effort on attempts to find proof of an event when they know that it happened. According to a recent detailed U.S. study, in situations of asymmetric information in which the health care provider has greater knowledge of the risks, an apology provides information that the patient does not have and so may give an incentive to commence a lawsuit. 39 Apparently, it may be that apology laws are not particularly effective in preventing, or at least limiting, medical malpractice litigation. 2.3 Providing other Incentives to Open Communication It remains debatable whether merely excluding apologies from being usable in a dispute provides sufficient incentive to open, honest communication between the patient and the health care provider. Most countries continue to operate a system of civil liability based on fault, or at least breach of a legal obligation, on the part of the provider. Rules supporting early admission that an error has occurred could be more effective in a system run on a no-fault compensation basis. In such arrangement, adverse events resulting in personal injury would not expose the health care provider to a legally precarious situation as their consequences would be handled through insurance or an insurance-like mechanism. In a “classical” civil liability system which requires proof of breach of the health care provider’s obligations, immunising an apology from use in judicial proceedings may not be enough. What other benefit could therefore be offered to a health care provider to support early admission of an error, knowing that such error may constitute wrongful conduct and therefore establish liability? From an economic viewpoint, the health care provider’s risk is that a lawsuit may be commenced by the patient or their relatives, that the provider may lose in court and that it will be obliged to pay compensation. As discussed above, admission of responsibility may cause the risk of a lawsuit to increase, although empirical evidence in this regard is far from unambiguous. If the lawmaker wants to make the overall balance equal or better for the health care provider (in order to provide motivation for admission of responsibility), legislation would arguably have to create a limit on amount of compensation as a reward for early action by the provider. In other words, when the care provider admitted liability early and of their free will, there would be some cap on the potential amount of damages, thus offering an incentive for timely honest communication. Several counterarguments may be raised against this idea. Firstly, it runs against the principle of complete reparation of the harmed party. Although it is often difficult to assess personal injury and determine a perfectly proportionate amount of compensation for it, the basic underlying legal norm is that, ideally, compensation should be equal to harm. The wrongdoer is supposed to put the victim in the position where the victim would have been Review. (2019, Vol. 71, Issue 2), pp. 341-409 [online]. Available at: https://www.stanfordlawreview.org/print/ article/sorry-is-never-enough/ [2019-05-31]. 39 Ibid. An intriguing finding from the study is that the probability of litigation increases for health care professionals who do not regularly perform surgery (arguably because it is a context of significantly asymmetrical information, which the apology materially affects) while it remains substantially the same in case of surgeons (arguably because that is a context in which patients should be aware of potential risks and so the apology does not change the allocation of information too much). We may wonder whether a similar analysis carried out in a civil law country would come to comparable conclusions.

344