March 1, 2019

It’s Okay to Say Sorry…

Barb MacFarlane

Author: Barbara A. MacFarlane, Partner

Fear of reprisal tends to stop someone from admitting a mistake or saying sorry. This may be particularly true in medical malpractice cases in which a doctor may fear being sued or denied insurance coverage if they apologize for a medical error; yet they may feel a compelling need to express sympathy or say sorry to individuals with grievous injuries. Nevertheless, an apology may be profoundly important to the patient and his or her family. Moreover, correcting a medical error should be paramount. For almost a decade the law in Ontario has permitted apologies without it being used against the person saying sorry. However, there still seems to be a lack of transparency from health care providers.

The Apology Act became law on April 23, 2009, making apologies, including an expression of sympathy or regret, inadmissible as evidence. Similar Apology Acts have been enacted in British Columbia, Saskatchewan, and Manitoba. Foreign jurisdictions, including parts of the United States and Australia, have also enacted similar legislation.

The Ontario legislation makes an apology inadmissible in civil proceedings, administrative proceedings or arbitrations as evidence of fault or liability (unless admissions are made in litigation). The law does not apply to criminal proceedings or matters under the Provincial Offences Act. This legislation also prevents insurance companies from denying insurance coverage where an apology is made.

It is not words alone. The Apology Act defines “apology” as an expression of sympathy or regret, a statement that a person is sorry or any words or actions, whether or not those words or actions imply an admission of fault. The language is very broad and it includes mere actions, not just saying sorry.

Although this legislation impacts all litigation, it is particularly important legislation in the Health Care sector to ensure proper medical care is provided. At the time the legislation was enacted, the then Honourable David Caplan, Minister of Health and Long-Term Care, stated: “From the perspective of the Ministry of Health and Long-Term Care, it’s important that Ontario patients have all the relevant information about their health care, even in circumstances where harm has occurred”. Moreover, he states: “Saying ‘sorry’ for a medical mishap or an adverse event is simply the right thing to do”.

Although there has been a growing trend to recognize the need to disclose errors, health care professionals remain reluctant to admit mistakes for fear it will be used against them in a medical malpractice lawsuit. In some cases that fear has caused further harm to patients. Causing further harm can result in increased damages or even punitive sanctions in medical negligence cases.

In the Ontario case of Vasdani v. Sehmi, a defendant doctor operated on the wrong part of the patient’s spine. Although the doctor learned of his error a year later, he did not tell the patient. Six years later the patient found out and sued the surgeon. The Court held that doctors have an ongoing “duty of disclosure” about mistakes or errors. The Plaintiff was entitled to compensation for the delay.

In a similar case, Gerula v. Flores, a defendant doctor also discovered that he had operated on the wrong vertebra on the plaintiff’s spine. Instead of advising the patient, the doctor changed the medical chart to cover up his mistake. The matter went up to the Ontario Court of Appeal where it was held that the doctor had to pay punitive compensation to the patient. The Court stated that “the deliberate non-disclosure of the very salient fact that the respondent has operated on the wrong level of the appellant’s back amounted to a misrepresentation by omission”. The doctor’s conduct amounted to battery and a breach of fiduciary duty. The Court also held that the doctor’s insistence that he did not operate on the wrong vertebra was an attempt to frustrate the proceedings by deception, so it awarded the highest scale of court costs against the doctor.

In Shobridge v. Thomas, the defendant surgeon discovered, 3 months after surgery that a 6-foot long gauze roll was left inside his patient, causing significant complications and infection. The doctor attempted to conceal the error and he ordered the nurses not to record the incident in the hospital chart or to file an incident report. The Court found that the doctor’s concealment of his error merited aggravated and punitive damages for “bad faith and unprofessional behaviour deserving of punishment.”

The licensing body for doctors, the College of Physicians and Surgeons of Ontario, have policies relating to obligations on doctors to disclose “adverse events” to patients. An adverse event includes any unexpected or normally avoidable outcome that negatively affects the patient’s health and/or quality of life, which occurs in the course of health care treatment and is not due directly to the patient’s illness. However, this policy falls short of an actual apology for medical errors.

There is a need for increased transparency. Coming clean on medical mistakes will hopefully promote healing for patients both physically and emotionally.