Promoting ‘Open Disclosure’ amongst medical professionals through the enactment of apology laws in Malaysia

• Main Authors: Jahn Kassim, Puteri Nemie, Saleh, Muhammad Ridhwan
• Format: Conference or Workshop Item
• Language: English; English
• Published: 2016
• Subjects: K Law (General); KPG Malaysia
• Online Access: http://irep.iium.edu.my/52338/1/FINAL%20NUS%20APOLOGY%20LAW.pdf; http://irep.iium.edu.my/52338/17/52338_promoting%20open%20disclosure.pdf; http://irep.iium.edu.my/52338/; http://law.nus.edu.sg/cals/events/ALSA2016/
• Institution: Universiti Islam Antarabangsa Malaysia

In many commonwealth jurisdictions, including Malaysia, the role of compensating medically injured victims is assumed by the tort or fault-based system through the court of law process of medical negligence litigation. Establishing ‘fault’ on the part of the medical professional is the focal point in medical negligence litigation as compensation can only be afforded to the medically injured victims when it has been successfully established that the medical professional is at ‘fault’. The emphasis on ‘fault’, unfortunately, fosters a culture of “name, blame and shame” and creates animosity amongst the affected parties. Inevitably, when things go wrong in a medical treatment, medical professionals tend to be reticent in disclosing errors, fearing that this information can be held against them in the court of law. This encourages a culture of secrecy instead of a culture of openness. However, responding to adverse medical outcomes with openness and honesty may be able to alleviate formal complaints and litigation claims. Thus, promoting ‘open disclosure’ processes which include open discussion after the occurrence of adverse events followed by statements of apology have the ability to defuse the spur of litigation and restore the relationship of trust and confidence between the medical professional and the patient. In this regard, apologies give recognition to the error that has occurred and reflect a sincere sense of remorse by the medical professional for causing the harm. Apologies tend to have favorable psychological effects on the affected parties as well as the ability to reduce negative emotional reactions such as anger and vengeance. Nevertheless, medical professionals fear that apologies made will be interpreted as an admission of guilt and consequently, increases the possibilities of lawsuits and caused negative effects on their medical indemnity coverage. Thus, in order to promote open disclosure standards amongst medical professionals, several countries such as the United States, Canada and Australia have enacted ‘Apology Laws’ which mandates the disclosure of medical errors under specific circumstances, while at the same time offering legal protection to those making the apologies. The main issues embedded in these legislations include (a) apologising does not constitute an admission of fault or civil liability; (b) an apology is inadmissible in any judicial proceeding as evidence of fault or liability; and (c) the insurance coverage for the person or entity offering an apology is unaffected by an apology. This paper seeks to explore (i) the legal ramifications of apologies in the healthcare setting and (ii) the development of ‘Apology Laws’ in the United States, Canada and Australia (iii) the possibilities and barriers in implementing such laws in Malaysia. Promoting open disclosure standards for medical professionals will, ultimately, ensure systemic improvements in patient safety and professional discipline.