In Ontario, medical malpractice cases often involve complex legal and emotional considerations. One of the critical aspects that both healthcare providers and patients should be aware of is the province’s “Apology Legislation.” This legislation plays a significant role in how apologies are interpreted in the context of medical malpractice claims, making it a crucial topic for anyone involved in or potentially facing such a situation.

What is Apology Legislation?

Apology legislation, enacted in various jurisdictions across Canada, including Ontario, serves to protect individuals who make apologies from having those apologies used against them in court as an admission of liability or fault. The concept behind this legislation is to encourage transparency and communication between healthcare providers and patients without the fear of legal repercussions.

In Ontario, the Apology Act, 2009, specifically states that an apology does not constitute an admission of fault or liability and is not admissible as evidence of fault or liability in legal proceedings. This legislative framework is designed to allow healthcare professionals to express sympathy or regret without the risk of these statements being misconstrued as an admission of guilt in court.

The Impact of Apology Legislation on Medical Malpractice Cases

Medical malpractice cases often arise from situations where patients believe that their healthcare provider’s actions (or inactions) resulted in harm. In such cases, the question of whether or not to apologize can be a delicate one. Without apology legislation, healthcare providers might hesitate to apologize for fear that their words could be used as evidence against them in a lawsuit.

However, with the protection afforded by Ontario’s Apology Act, healthcare providers can offer apologies that express sympathy or regret without worrying that these statements will automatically be seen as an admission of liability. This can be a critical factor in maintaining a positive patient-provider relationship, even in the face of adverse events.

Ethical Considerations and Legal Obligations

While the Apology Act provides legal protection, healthcare providers must still navigate the ethical implications of their actions. According to the Canadian Medical Protective Association (CMPA), disclosing the facts of an incident and potentially offering an apology is not only a legal obligation but also an integral part of patient care. However, healthcare providers should be cautious about how they frame their apologies. Words that imply legal responsibility, such as “negligence” or “liability,” should be avoided unless there has been a clear determination of fault after careful analysis.

The Role of Apology in Resolving Disputes

Apology legislation is also intended to foster early resolution of disputes. A sincere apology can sometimes prevent a situation from escalating into a full-blown legal battle. By acknowledging a patient’s feelings and expressing regret, healthcare providers may be able to defuse tensions and avoid litigation. This aligns with the broader goals of patient safety and quality care, emphasizing open communication and transparency.

Case Law

The Apology Act clarified that an apology is not the same thing as an admission of liability as per the definition in s.1 of the statute. A statement of regret remains an apology even if it contains or implies an admission of liability. Some apologies may not imply any admission of fault, but even where they admit or imply fault, the words remain protected apologies. However, the statute does not apply to the admission of liability and apology in this case due to the exception in s. 2(4) of the statute which exempts from the statute apologies made under oath in legal proceedings: Pollard Windows Inc. v 1736106 Ontario Inc., 2019 ONSC 4859 (CanLII)

The Apology Act came into effect in Ontario on April 23, 2009, defining an apology as an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability. Evidence of an apology is not admissible in an administrative proceeding as evidence of fault or liability of any person unless the person apologizes while testifying at the administrative proceeding. The intent of this Act was to promote the openness of health professionals in dealing with patients or family members. The Committee appropriately considered the information provided by Dr. Fung Kee Fung and Ms. Sylvie Bedard and took into account the fact that there were no previous incidents involving the Respondent: D.P. v. P.B., 2011 CanLII 11785 (ON HPARB)

The Apology Act, defines an ‘apology’ as an ‘expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration’. An apology does not, in law, constitute an express or implied admission of fault or liability by the person in connection with that matter. It also does not void, impair or otherwise affect any insurance or indemnity coverage for any person in connection with that matter and shall not be taken into account in any determination of fault or liability in connection with that matter: Rebello v. Ontario, 2023 ONSC 601 (CanLII)

In Lane v. Kock, 2015 ONSC 184 (CanLII), the plaintiffs sought damages for burns from an explosion, and the defendant had apologized after the incident. The issue was whether the Apology Act, applies retroactively to an apology made before the Act came into force. Superior Court of Justice decided that the Apology Act does not apply to the apology in this case, and the evidence of the apology is admissible. The Court made no ruling on whether the apology was actually made, or what its legal effect may have been.

In Coles v Takata Corporation, 2016 ONSC 4885 (CanLII), the defendant sought to strike paragraphs from the Statements of Claim, arguing contravention of the Apology Act. The Plaintiffs resisted, asserting that foreign law applied. The central issues were the applicability of the Apology Act and whether certain paragraphs should be struck from the Statements of Claim. Superior Court of Justice referred to three cases, where the courts differentiated an apology from a statement of fact or an admission and undertook a contextual analysis of the defendants’ expressions. In the absence of the Apology Act, apologies would be used as relevant evidence in proving liability, but the presence of the Act precludes this. The courts excluded from evidence the part of the expressions that constituted an apology but admitted into evidence the parts that were non-apologetic admissions.

Practical Advice for Patients

Ontario’s Apology Act provides a safeguard for healthcare providers, allowing them to express sympathy or regret without the fear of legal repercussions. For patients, understanding this legislation is crucial, as it can significantly impact the dynamics of a medical malpractice case. By fostering open communication, apology legislation aims to improve the overall patient-provider relationship and, ultimately, the quality of care.

If you or a loved one has been injured in a potential medical malpractice case it is essential, you know your rights as soon as possible. Contact Bergeron Clifford today for a medical malpractice consultation and learn your legal rights.