Saying 'I'm sorry' at the bedside: when and why should apologies following medical mishaps be protected from legal liability?

Abstract

Patients harmed by medical mishaps are often driven to litigation because of a lack of apologies and candour rather than a desire for monetary compensation. Despite attempts at clinical negligence reform, patients continue to receive unsatisfactory responses. Physicians have cited fears of legal liability as a key reason for withholding apologies. Apology legislation has been proposed as a possible solution to encourage apologies by rendering them inadmissible as evidence of liability, thereby reducing the legal risks of apologies. Critics, however, contend that apology legislation may encourage strategic formulaic responses instead of compassionate patient-centred support. This article delivers a comprehensive rejoinder to these concerns, and argues that bold legislative change similar to that of Hong Kong's enactment of full apology protection aligns with English and Welsh clinical negligence reform goals. Through a robust comparative legal analysis of various jurisdictions in which apology laws have been enacted, this article explores the legal, ethical, and practical factors that contribute to the proper functioning of such laws. It then recommends concrete ways to improve the effectiveness of such laws in the context of clinical negligence reform, thereby removing barriers to apologetic discourse and breathing ethical and professional life into the doctor's apology.