Protecting “Sorry” – The Apology Act
In the past, doctors and other health professionals have been known to avoid apologizing when mistakes or bad outcomes happen, for fear that saying “sorry” could be interpreted as an admission of guilt or fault and later used against them in litigation. Thanks to some relatively new legislation, those days are over.
In 2009, the Ontario government passed into law the Apology Act, 2009, which made apologies inadmissible in most civil court proceedings, whether made by a doctor or anyone else. The legislation also specifically states that an apology does not at law constitute an admission of fault or liability.
Will this recent legislation change the scope of litigation in Ontario? A 2010 U.S. study of medical malpractice cases showed that states with apology legislation similar to Ontario’s have the greatest reduction in average payment size and settlement time in court cases with severe patient outcomes.
Interestingly, the Apology Act, 2009 does not apply to provincial offences proceedings or Criminal Code proceedings. This means that an apologetic driver charged with speeding, for example, could still have his apology used against him in traffic court. So, there may be times when “sorry” can still be interpreted as “I’m guilty,” particularly if your apology is directed at a peace officer!
About the Authors
Adam Little earned his undergraduate degree from the University of Toronto in 1996. He graduated from Queen’s University Faculty of Law in 2000 and was called to the bar in 2002. Adam was practicising on Bay Street for a leading Toronto litigation firm that represented doctors in medical malpractice claims when he realized that helping people through personal injury litigation was what he wanted to do. “I wanted to work for the best,” he said. A partner at Oatley Vigmond had written the best-known book available about addressing jury trials, which Adam had read and admired. He wrote to the partner, went through an intense interview process and became a partner at the firm in 2005.