Issue 12 / 20 September 2010

FEAR of the medico-legal impact of apologising to a patient following an adverse outcome is somewhat similar to the fear of flying. The perception of the risk is more significant than the reality.

Concerns prevalent among health professionals about the medico-legal aspects of open disclosure are reported in the latest Medical Journal of Australia.

In their thoughtful article, the authors said health professionals perceived that current laws were inadequate in protecting them against the use of open disclosure in legal proceedings.

My experience through frequent involvement in the Australian medico-legal system is that in reality the additional legal risks are minimal.

The open disclosure and apology processes for health professionals are supported by their medical indemnity insurers, with the qualifier, of course, being the wisdom of obtaining support and advice.

Even before apology protection reforms were put in place, converting an apology to a legal admission was a very high hurdle to overcome, even if a doctor was abrupt when offering an apology.

Yet the recognition of real anxiety among the health profession and the desire to support the open disclosure process led to the legal reforms that protect information conveyed in an apology.

In a similar vein, the authors of the Review of the Law of Negligence (2002) did not see a need for “good Samaritan” protections, but laws were enacted to deal with fears of legal exposure, notwithstanding the lack of concrete examples.

Whether the reforms have actually led to a reduction in anxiety among health professionals remains unclear.

The authors of the MJA article have identified that while medico-legal fears or concerns remain prevalent, they will operate as a significant barrier to a more comfortable familiarity with open disclosure processes.

People can overcome a fear of flying by repeated exposure to the experience.

An individual clinician repeating adverse events to grow accustomed to the open disclosure process is obviously not a satisfactory analogy, but hopefully the shared experience of the profession will, over time, serve the same purpose.

Mr Madden is the National Practice Group Leader – Medical Law with law firm Slater and Gordon, and is a part-time lecturer at the Law School at the University of Western Sydney.

Posted 20 September 2010

3 thoughts on “Bill Madden: Fear of apology laws fly in the face of reality

  1. Dr Michael Coglin says:

    I assume “Anonymous” is a clinician working at “the pointy end”.

    I am constantly bemused by our clinical colleagues who bitterly resent the intrusion of anyone into the intellectual domain of doctors eg nurses, lawyers, politicians etc while at the same time keeping up a barrage of ex cathedra pronouncements on subjects about which they know nothing at all.

    So “Anonymous” knows why patients sue doctors? Perhaps a little evidence is called for:

    Vincent C et al. Why do people sue doctors? A study of patients and relatives taking legal action. The Lancet 1994; 343: 1609-1611.

  2. Dr Paul Nisselle says:

    Hiliary Clinton and Barack Obama co-authored a paper which was published in the NEJM (n engl j med 354;21 may 25, 2006) entitled “Making Patient Safety the Centerpiece of Medical Liability Reform”. It cited three examples where an open disclosure programme reduced medical liability costs substantially – the VA Hospital in Lexington Kentucky, the Michigan Health Care System and the Colorado Physicians Insurance Company (COPIC). The NEJM article cites references which provide the detail of each of those three programmes. Michigan and COPIC have (separately) later published their ongoing experience with their programmes, and the newer results confirmed the earlier ones.

    I’n mot a personal injuries lawyer. Indeed, I have been on the side of the angels – held senior positions in various medical defence organisations – for over twenty years, and I fully agree with Bill Madden. Open, empathic communication imemdiately after an adverse outcome accompanied by a sincere apology is both the morally and ethically correct approach and lessens the chance of subsequent complaint or litigation.

    An apology which does not contain an admission of liability (such as “I’m sorry this happened to you”) is not an admission of liability! Is not now and never has been.

  3. Anonymous says:

    Of course a personal injuries lawyer would say this wouldn’t he? With no experience at the pointy end he only deals with what litigants say “It’s not the money”. Anyone who believes that believes in fairies at the bottom of the garden! Litigants don’t donate a settlement to charity and whatever they say, an apology can precipitate litigation. Open disclosure does not have to be accompanied by apologies.

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