On March 11, 2009, Ontario became the fourth Canadian province to introduce a law that protects those who apologize from havng those apologies used against them in court. Thirty-six states have also passed some form of apology shield law.
The Canadian law, like those in the U.S., hold that apology is good public policy. The laws are specifically aimed at doctors and other medical professionals, as well as corporations. These laws represent a big change in the traditional rules of evidence in civil court. In essence, statements of apology will no longer be admissible for the purposes of assigning liability.
These laws rescue both doctors and companies from a painful bind. Let's take doctors first.
The first thing that all doctors learn is "to do no harm." Unfortunately, that's an impossible standard. Doctors are all-too human and they will make mistakes. When their mistake hurts a patient, their first instinct is a human one: to let the patient know how sorry they are. But as the system has evolved, just when doctors should increase their communiction with patients, hospital policies and malpractice insurance guidelines dictate that the doctor stop all communication. This step typically enrages patients. Many patients just want answers and some sympathy. When the doctor withdraws, patients feel that their only recourse is to sue.
Hospitals and insurers fear that a doctor's apology will be used against them in court. Hospitals and insurance companies are so afraid of lawsuits that they have painted themselves into a corner that virtually guarantees more of what they fear.
The evidence is clear: doctors who apologize are sued less, not more, often. There are many reasons for this, and I'll discuss the reasons in an upcoming blog. The evidence is so compelling that governments want to encourage apology as a way of reducing demands on courts.
Ontario has followed British Columbia, Saskatchewan and Manitoba by passing Bill 108 Apology Act 2009, to protect those apologizing (namely doctors, nurses and other health care practioners) to the people who have been harmed (or their families) without fear of having their insurance policies declared "null & void" by the insurance company. Normally anyone that says sorry, apologizes or demonstrates an expression of sympathy or regret, is held responsible and liable. Now any form of apology expressed cannot be used against the person in a Court proceeding later on.
Unfortunately, Bill 108 the Apology Act, 2009 has complicated restrictions and exceptions built into the legislation.
Apology shield laws won't make a difference until they are simpler and more comprehensive.
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