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Professor Prue Vines Law School University of New South Wales

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1 Professor Prue Vines Law School University of New South Wales
Apologising for personal injury: new legislation and medical malpractice Professor Prue Vines Law School University of New South Wales

2 New legislation protecting apologies and expressions of regret
US since 1986 Australia since 2002 Canada since 2006 UK Compensation Act (England and Wales) Vines UNSW Law School 'Apologising for personal injury'

3 The perceived problem The apology as admission of liability
Leading to advice not to apologise ( assuming this itself increases litigiousness) Voiding insurance contracts Perception of increased litigation caused by the ‘compensation culture’ or ‘blame society’ Vines UNSW Law School 'Apologising for personal injury'

4 Second reading speeches
When I was getting my driver's licence I was told that, if I ever had an accident and it was my fault, I should never apologise as it could be taken to be an admission of guilt and I could be sued. Australians are happy to apologise if they are at fault. They try to work things out. It is totally un-Australian not to apologise if one thinks that one has done something wrong. (Brown, NSW Legislative Assembly 2002) HL Deb 27 Mar 2006, col 576 (Baroness Ashton of Upholland): “The Bill is an important contribution to a much wider programme of work. The Government are taking forward many other important initiatives, on which I am proud to lead, to tackle perceptions of a compensation culture”; HC Deb 8 Jun 2006, col 419 (Bridget Prentice MP). “Although a compensation culture does not exist in this country, the perception that it does can have a real and damaging effect on people’s behaviour” Vines UNSW Law School 'Apologising for personal injury'

5 Increasing litigation?
Research in Australia and the United Kingdom has not borne this out: see E Wright, “National trends in personal injury litigation: before and after ‘Ipp’” (2006) 14 Torts Law Journal 233; R Lewis, A Morris and K Oliphant, “Tort personal injury claims statistics: is there a compensation culture in the United Kingdom’? (2006) 14 Torts Law Journal 158. Both articles acknowledge an increase in litigation rates in the thirty years to the 1990s, but little increase per capita after that. However, the cost of claims, particularly the biggest damages awards for catastrophic injury, has increased dramatically partly because of wage rises for nursing and similar professions and because of increased life expectancy of catastrophically injured people Similar for medicine – increase in litigation but reduction in rate compared with number of medical interventions Vines UNSW Law School 'Apologising for personal injury'

6 What affects propensity to sue
The literature suggests that propensity to sue for personal injury is affected by: the status of the plaintiff/pursuer; the costs rules (the more favourable to plaintiffs, the more likely a person is to sue); the existence of jury trials; and the cultural view of risk and blame. M Galanter, “Reading the landscape of disputes: what we know and don’t know (and think we know) about our allegedly contentious and litigious society” (1983) 31 UCLA L Rev 4; H Kritzer, “Propensity to sue in England and the United States of America: blaming and claiming in tort cases” (1991) 18 Journal of Law and Society 400; H Kritzer, W Bogart and N Vidmar, The Aftermath of Injury: Compensation Seeking in Canada and the United States ( 1990); T Brennan et al, “Negligent care and malpractice claiming behaviour in Utah and Colorado” (2000) 38 Medical Care 250; J Fitzgerald, “Grievances, disputes and outcomes: a comparison of Australia and the United States” (1983) 1 Law in Context 15; D R Hensler et al, Compensation for Accidental Injuries in the United States (1991); H R Burstin et al, “Do the poor sue more? A case control study of malpractice claims and socioeconomic status” (1993) 270 Journal of the American Medical Association 1697; D Harris et al, Compensation and Support for Illness and Injury (1984); F Sabry, The Propensity to Sue: Why do People seek Legal Action? (2004). Vines UNSW Law School 'Apologising for personal injury'

7 Why apologise? Perception that it is the natural and moral thing to do
functions: -reduce aggression (evolutionary psychology) -create or reinstate moral community -part of culture of risk and blame Apologies have many roles: the psychological, sociological, philosophical and anthropological literature shows that apologies can have a healing and re-balancing function for both victim and relationship, and often for the offender as well. They may also have a moral, meaning-creating and educative function of reinforcing the sense of the norms of right, wrong and responsibility in the community and between victim and offender, and possibly an underlying function of reducing aggression which has biological/evolutionary roots. Most of these functions require an apology to acknowledge fault rather than merely to express regret if they are to be effective – that is, in order to elicit the next stage in a reconciliation process. The communicative and balancing dynamic between the parties needs the acknowledgement of fault, because a mere expression of regret does not require anything from the other party – it does not recognise the same level of imbalance between the parties as an acknowledgement of fault, and therefore does not begin the healing or re-balancing process. Apologies, since they are mediated by language, are extremely complex, highly nuanced processes. There appear to be significant risks in giving apologies which are perceived as insincere. We know that such an apology may actually unleash further aggression, and that the credibility of an apology depends on many factors, one of which appears to be its cost to the apologiser. On the other hand a forced apology may shame the apologiser in such a way that the community’s norms are reinforced, the offender is effectively sanctioned, and the community educated. The social role of apology in this context is discussed in detail in P Vines, “The power of apology: mercy, forgiveness or corrective justice in the civil liability arena?” (2007) 1 Journal of Public Space 1-51 (available at See also Tavuchis, Mea Culpa (n 8); Lazare, On Apology (n 8); E Goffman, Relations in Public: Microstudies of the Public Order (1971); K Ohbuchi, M Kameda and N Agarie, “Apology as aggression control: its role in mediating the appraisal of and response to harm” (1998) 56 Journal of Personality and Social Psychology 219; H Strang, Repair or Revenge: Victims and Restorative Justice (2002); E Walster and G W Walster, “Equity and social justice” (1975) 31 Journal of Social Issues 21; A Allan, “Apology in civil law: a psycho-legal perspective” (2007) 14 Psychiatry, Psychology and Law 5. N Smith, “The categorical apology” (2005) 36 Journal of Social Philosophy 473; K Gill, “The moral functions of an apology” (2000) XXXI Philosophical Forum 11. Ohbuchi et al (n 11); S P Garvey, “Can shaming punishments educate?” (1998) 65 University of Chicago Law Review 733. K Lorenz, On Aggression (1967); F de Waal, Peacemaking among Primates (1989); E O’Hara and D Yarn, “On apology and consilience” (2002) 77 Washington Law Review 1121. S Scher and J Darley, “How effective are the things people say to apologize? Effects of the realization of the apology speech act” (1997) 26 Jounal of Psycholinguistic Research 127 Vines UNSW Law School 'Apologising for personal injury'

8 Quick aside There is considerable doubt about whether apologies even with acknowledgement of fault do amount to admissions of liability especially in negligence (eg Dovuro) If that is the case then they also won’t void insurance contracts etc My previous articles have covered this – eg Edinburgh Law Review ; Sydney Law review etc Vines UNSW Law School 'Apologising for personal injury'

9 The legislation Apology is not admission Not admissible
Protects insurance Includes acknowledgement of fault UK ? NSW Queensland British Columbia Vines UNSW Law School 'Apologising for personal injury'

10 UK Compensation Act s 2 An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty. (applies to England and Wales, not Scotland)  Vines UNSW Law School 'Apologising for personal injury'

11 British Columbia Apology Act 2006
(1) An apology made by or on behalf of a person in connection with any matter – (a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter, (b) does not constitute a confirmation of a cause of action in relation to that matter for the purposes of section 5 of the Limitation Act, (c) does not, despite any wording to the contrary in any contract of insurance and despite any other enactment, void, impair or otherwise affect any insurance coverage that is available, or that would, but for the apology, be available to the person in connection with that matter, and (d) must not be taken into account in any determination of fault or liability in connection with that matter. (2) Despite any other enactment, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any proceeding and must not be referred to or disclosed to a court in any proceeding as evidence of the fault or liability of the person in connection with that matter. Vines UNSW Law School 'Apologising for personal injury'

12 BC Apology Act 2006 Section 1 defines “apology” as:
an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate. Vines UNSW Law School 'Apologising for personal injury'

13 Problems with the expression of regret version
To summarise, if you say to someone 'I am sorry', that is not a clear acknowledgment of fault, but if you say to someone 'I am sorry. It is all my fault', then the apology provision is rendered inoperative. The Australian Medical Association, amongst others, has expressed the view that this sort of highly qualified, highly restrictive drafting is not calculated to encourage the outcome the government seeks to achieve. The AMA believes doctors, amongst others, are going to be very cautious in trying to take advantage of these provisions because of their limited nature. Mr Clark, NT Legislative Assembly, 2002 AND psychological evidence that expression of regret is more likely to make people angry and aggressive Vines UNSW Law School 'Apologising for personal injury'

14 Medical adverse events and apology: the Australian Open Disclosure Project
Australian Commission for Safety and Quality in Health Care Now in the process of being applied across many Australian states Over – New York Times Vines UNSW Law School 'Apologising for personal injury'

15 New york times article on doctors apologising
Vines UNSW Law School 'Apologising for personal injury'

16 NSW Health and Safety council, May 2007 Open Disclosure Guidelines,
Vines UNSW Law School 'Apologising for personal injury'

17 But note this: (p 11 of Open Disclosure Guidelines NSW Health)
3. Offering an apology Offering an apology or expressing regret is a key component of the open disclosure process. The apology should include an expression of sorrow for the harm done to the patient, but it must not be an admission of liability. Staff must be careful not to make any verbal or written statement that admits liability. An admission of liability means admitting that the hospital or a staff member breached their duty of care to the patient, which led to the patient suffering harm or injury. An apology: 􀂃 does not blame the health facility for harm caused to the patient 􀂃 does not blame a clinician for harm caused to the patient 􀂃 does not blame the Health Service for harm caused to the patient 􀂃 does not indicate that the incident could have been avoided. NSW Health, Quality and Safety Branch, Open disclosure Guidelines p 11 Vines UNSW Law School 'Apologising for personal injury'

18 Continuing p 11: Examples of apologies
The following statement does not admit liability. It provides facts but no conclusions. 􀀹 “Your husband, John, was given an injection of penicillin shortly before his death. There were notes in his medical records that he was allergic to penicillin, but the person who gave the injection did not see the notes. We are sorry about this incident.” The following statement admits liability by admitting breach and causation. Duty should not be an issue in an apology. “The nurse knew your husband, John, was allergic to penicillin, because it is written all over the notes; but she gave him the injection by mistake that caused him to have an anaphylactic reaction, from which he could not be resuscitated. We are very sorry about this incident”. Why is this a problem? Because in some Australian states there is no need to be concerned about the admission of liability because of the definition of apology in the legislation ( eg NSW and ACT - as in British Columbia) and because at common law there is still doubt about the idea that in negligence an admission of any kind can amount to an admission of liability such that it determines breach. Eg Dovuro For medicos to try to distinguish between these two examples of apologies really will trip them up. Vines UNSW Law School 'Apologising for personal injury'

19 NHS Redress Act s 3(2) 2006 redress is “ordinarily to comprise”:
(a) the making of an offer of compensation in satisfaction of any right to bring civil proceedings in respect of the liability concerned, (b) the giving of an explanation, (c) the giving of an apology and (d) the giving of a report on the action which has been, or will be, taken to prevent similar cases arising. The scheme enables “redress to be provided without recourse to civil proceedings” in circumstances where tortious liability might arise in relation to health services. “Apology” is undefined. However, it is interesting to note that the National Patient Safety Agency’s Safer Practice Notice 10 (2005) advises: Acknowledge what happened and apologise on behalf of the team and the organisation. Expression of regret is not an admission of liability. AHMAC Report (n 25) para 4.28. National Patient Safety Agency, Safer Practice Notice 10: being open when patients are harmed (2005; available at NHS Redress Act 2006 s 1. Safer Practice Notice 10 (n 33) 7 (my emphasis). NHS redress Act limited to under pounds30,000 Vines UNSW Law School 'Apologising for personal injury'

20 The big problem 71% had not heard of the Civil Liability Act
Not knowing what the law is: eg medical practitioners : in a recent survey by Salem and Forster (in 2008)of NSW General Practitioners : 71% had not heard of the Civil Liability Act 59% thought litigation had increased in last 5 years ( it had dramatically reduced) 82% said their fear of lawsuits substantially lessened their enjoyment of medicine See Salem and Forster ‘Defensive Medicine in general practice: recent trends and the impact of the Civil Liability Act 2002 (NSW) (2009) 17 JLM 235 at 247 ff. They note that The Medical Indemnity Industry Association of Australia analysed claim trends in medical negligence from and found that the ere have been lower njmbers of claims in and algh there was a slight increase in However, there have been some large payouts eg for Dobler v halvorsen, Tabet v Mansour, PD v Harvey and a cerebral palsy case Simpson v Diamond 2003 where the plaintiff was awrded 11.2 m. These got a lot of media coverage ,. Thereby probably increasing practitioner fear of litigation. Vines UNSW Law School 'Apologising for personal injury'

21 Open disclosure’s single standard for apologies is a bad standard (as is NHS Redress)
May make things worse More about Rick Iediema’s work Vines UNSW Law School 'Apologising for personal injury'

22 Lawyers and insurers Not knowing the law properly about apologies and admissions etc before such apology-protecting legislation is passed Not knowing the legislation exists when it is passed Not changing practices of advice etc Therefore undermining the purpose of the law Vines UNSW Law School 'Apologising for personal injury'

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