Simple apology can help avoid legal woes

Janice Mucalov
http://www.canada.com

Saying “sorry” is something we as children are taught to do when we’ve done something wrong. But as adults engaged in a legal dispute, we’ve been wary.

Apologizing after a car accident, for example, could be viewed as an admission that we’re at fault and should be held legally liable. And yet sometimes — in medical malpractice cases, for instance — what a victim often wants is an apology, not money.

B.C.’s Apology Act, passed in 2006, is intended to change that. The Act allows a person or organization to express sympathy, regret or remorse — to say “I’m sorry,” and even to admit they’re wrong and to blame — and that apology cannot be used against them when deciding fault or liability in a legal matter (other than a criminal case).

The Act goes on to state that saying “sorry” also won’t void or cancel out an insurance policy (some policies stipulate that an apology will make the policy void). Until this Act came into effect, we could only safely apologize if we were participating in mediation, rather than in the court process. Since B.C. passed its law, other provinces have also adopted apology legislation.

Saying sorry can have a powerful effect. In a report for the Law Commission of Canada, Susan Alter concludes that “for a victim, an apology is often considered to be the key that will unlock the door to healing.”

Studies show that an apology can help to resolve disputes. According to the American Bar Association Journal, 30 per cent of all plaintiffs would not have sued if an apology had been made.

Apologizing to patients, in particular, reduces the chances of medical malpractice lawsuits being filed against doctors.

In 2002, hospitals in the University of Michigan health system started encouraging doctors to apologize for their mistakes. Malpractice lawsuits subsequently dropped from 262 filed in 2001 to an average of 130 a year. Recently in a Victoria case, a plaintiff who won financial compensation in court from a neighbour, who had wrongfully cut down his trees, said he wouldn’t have sued if the offending neighbour had taken the time to apologize.

Of course, there are concerns too with B.C.’s new apology law. The attorney general has identified that:

– public confidence in the courts could be affected if a person who admits they’re to blame in an apology is later found not liable;

– insincere and strategic apologies could be encouraged;

– apologies might create an emotional vulnerability in some plaintiffs, who may accept settlements that are inappropriately low.

There’s also the question of whether apology legislation should be extended to intentional acts. Should a sexual assailant be protected if they admit their actions outside of legal proceedings? Perhaps not.

Still, an apology can go a long way in many cases to helping a victim feel whole again. Some wrongs can only be righted with an apology. And it enables us to take responsibility for our actions.

It’s therefore hoped that our apology law will be helpful for both victims and defendants in many legal matters — including medical malpractice and other professional negligence complaints, employment disputes, personal injury claims, environmental damage cases, and products liability issues.

Janice Mucalov is a lawyer, award-winning writer and author of Incorporation & Business Guide for British Columbia, published by Self-Counsel Press. Her column provides information only, not legal advice.

© North Shore News 2008

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