CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ EARLY APOLOGY OR ADMISSION OF RESPONSIBILITY IN MEDICAL … except for the committed wrong. Limiting the extent of compensation as a bonus for the wrongdoer may be seen as unfair and also morally objectionable. However, if such rule led to more victims actually being compensated (because they would otherwise perhaps not even know they have a good claim), it could be a reason for overcoming such objection. We live in an imperfect world and information has its price, whether we like it or not. Secondly, it could be quite difficult to lay down acceptable principles under which compensation would be limited. By how much? In what circumstances? Should it depend on how early the provider admitted responsibility? What about cases in which the provider admitted responsibility, but even without such admission, the claim was well-documented and most likely would have succeeded anyway? Should a court try to evaluate how much the early communication contributed to the claimant’s success? This article does not attempt to answer these serious, complicated questions but rather suggest that we should be open to new solutions for the problem of asymmetrical information in medical malpractice disputes. It would seem that protection of apologies from use in litigation may help in some jurisdictions and in some aspects, but it is hardly a universal panacea. Conclusion We presented a general outline of the context in which the issue of early apology or admission of responsibility arises in cases of actual or suspected medical malpractice. The importance of open and honest communication between a health care provider and a patient is self-evident. In order to maintain mutual trust, the health care provider should handle any errors which occurred properly, make the patient aware of them and be prepared to apologise. From the legal point of view, there is often an express obligation to disclose material information to the patient, and the patient is simultaneously entitled to request it. In practice, the health care provider and their professional staff may be discouraged from such straightforward approach by worries about consequences which it could bring. These may range from unpleasant emotional experience to becoming target of a lawsuit or perhaps even criminal investigation. Lawmakers in different jurisdictions have attempted to somewhat alleviate this burden, support open communication and facilitate a non-judicial resolution of any ensuing dispute by mediation and other means. Another tool which the lawmakers try to employ is to exclude apologies, and sometimes also other accompanying statements, from potential utilisation in court proceedings. Their hope is that this may embolden health care professionals to admit errors proactively, rather than reactively. The article mentions various legislation which limits the use of apologies for the purposes of litigation, together with critical arguments about its effectiveness. Its conclusion is that such legislation does not appear to have an unambiguously clear positive impact; more empirical studies in this respect would be highly desirable. In addition, we should discuss alternative measures which could be introduced to support early truthful communication between a health care provider and a patient, including perhaps also some kind of limit on the extent of potential liability when fault (or liability in general) is admitted early and voluntarily.

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