Apologising for medical negligence
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APOLOGISING FOR MEDICAL NEGLIGENCE. The role of apology in Open Disclosure. Australian Commission on Safety and Quality in Healthcare, Open Disclosure Standard Review Report (2012). Major findings:

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APOLOGISING FOR MEDICAL NEGLIGENCE

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Apologising for medical negligence

APOLOGISING FOR MEDICAL NEGLIGENCE

The role of apology in Open Disclosure

Professor Prue Vines, UNSW Law


Apologising for medical negligence

Australian Commission on Safety and Quality in Healthcare, Open Disclosure Standard Review Report (2012)

Major findings:

1.Open disclosure is often conducted as a process of information provision from the service to the patient but patients prefer it as an open dialogue.

2.Health professionals support disclosure but there remain barriers to its practice including:

  • Perceived medico-legal consequences of disclosure;

  • Concerns about preparedness for involvement in open disclosure; and

  • Difficulty with communicating openly in the context of risk management;

    3.Overseas evidence and Australian experience suggest disclosure is more effective as an ethical practice that prioritises organisational and individual learning from error than solely as an organisational risk management strategy.

    4.Open disclosure has been found to create larger benefits for the health system and patients by fostering cultures of openness and trust.

Professor Prue Vines, UNSW Law


Open disclosure

Open Disclosure

  • The standard defines open disclosure as the “open discussion of incidents that result in harm to a patient while receiving health care.” Its elements include “an expression of regret, a factual explanation of what happened, the potential consequences and the steps taken to manage the event and prevent recurrence”

Professor Prue Vines, UNSW Law


Adverse events

‘adverse events’

“(an) incident in which harm resulted to a person receiving health care” ie iatrogenic

Approx 10% of clinical interventions lead to patient harm

2009 Labour Force Survey: 900,000 Australians 15+ experienced harm from medication, medical care, treatment or investigation

Professor Prue Vines, UNSW Law


Aims of open disclosure

Aims of open disclosure

After adverse events:

  • Redress harm and repair damaged relationships; and

  • Contribute towards health system improvement.

  • Australia 2003, UK 2005, Canada 2008, NZ, US

Professor Prue Vines, UNSW Law


Civil liability acts 2002 ff

Civil Liability Acts 2002 ff

  • Introduced protected apologies –

    • Aims

      • Reduce ‘chill factor’ of legal advice not to apologise

        • Because of fear that apology =admission = liability

        • Because of fear that apology= admission= void insurance policy

      • Reduce litigation

Professor Prue Vines, UNSW Law


The link with insurance

The link with insurance

  • Medical indemnity insurance – mostly have a voidability clause: eg2003 United Medical Protection’s AMIL policy stated: 

  • ‘4.1 You must not make any admission, offer or promise in relation to any claim covered by this policy without our prior written consent’

Professor Prue Vines, UNSW Law


Why apologise

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

Prue Vines Professorial Lecture UNSW Law School 2011


An essential element for apologies to be accepted

An essential element for apologies to be accepted:

  • Apology including expression of regret and acknowledgement of fault ( ‘full apology’)

  • Apology with only expression of regret (‘partial apology’)

Professor Prue Vines, UNSW Law


The legislation

The legislation:

Prue Vines Professorial Lecture UNSW Law School 2011


Apologies and propensity to sue

Apologies and propensity to sue

Why people say they sue:

for vindication

to make sure the thing doesn’t happen again

to make someone see that they were responsible

  • Lexington Veteran’s hospital experience

    • Full disclosure after adverse events

    • Reduced litigation costs (earlier settlement etc)

      The Mater Hospital Brisbane

      -since 2003

      - reduced financial costs in general with OD

Prue Vines Professorial Lecture UNSW Law School 2011


Difficulties in australia

Difficulties in Australia

Open disclosure process is national while apology legislation is state-based eg NSW Health dept Open disclosure Guidelines p 11:

“Offering an apology or expressing regret is a key component of the open disclosureprocess.

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. “

Prue Vines Professorial Lecture UNSW Law School 2011


The big problem

The big problem

  • Not knowing what the law is:

    eg medical practitioners :

    in a recent survey (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

Vines Apologising for personal injury


Recommendations

Recommendations

  • Make all apology legislation in Australia include protection of full apologies

  • Make all apologies for Open Disclosure full apologies

Professor Prue Vines, UNSW Law


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