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

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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/ http://irep.iium.edu.my/52338/ http://irep.iium.edu.my/52338/1/FINAL%20NUS%20APOLOGY%20LAW.pdf http://irep.iium.edu.my/52338/17/52338_promoting%20open%20disclosure.pdf

id	iium-52338
recordtype	eprints
spelling	iium-523382018-05-22T00:43:42Z http://irep.iium.edu.my/52338/ Promoting ‘Open Disclosure’ amongst medical professionals through the enactment of apology laws in Malaysia Jahn Kassim, Puteri Nemie Saleh, Muhammad Ridhwan K Law (General) KPG 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. 2016-09-22 Conference or Workshop Item PeerReviewed application/pdf en http://irep.iium.edu.my/52338/1/FINAL%20NUS%20APOLOGY%20LAW.pdf application/pdf en http://irep.iium.edu.my/52338/17/52338_promoting%20open%20disclosure.pdf Jahn Kassim, Puteri Nemie and Saleh, Muhammad Ridhwan (2016) Promoting ‘Open Disclosure’ amongst medical professionals through the enactment of apology laws in Malaysia. In: The Inaugural Asian Law & Society Association (ALSA) Conference 2016, 22nd-23rd Sept. 2016, Bukit Timah, Singapore. (Unpublished) http://law.nus.edu.sg/cals/events/ALSA2016/
repository_type	Digital Repository
institution_category	Local University
institution	International Islamic University Malaysia
building	IIUM Repository
collection	Online Access
language	English English
topic	K Law (General) KPG Malaysia
spellingShingle	K Law (General) KPG Malaysia Jahn Kassim, Puteri Nemie Saleh, Muhammad Ridhwan Promoting ‘Open Disclosure’ amongst medical professionals through the enactment of apology laws in Malaysia
description	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.
format	Conference or Workshop Item
author	Jahn Kassim, Puteri Nemie Saleh, Muhammad Ridhwan
author_facet	Jahn Kassim, Puteri Nemie Saleh, Muhammad Ridhwan
author_sort	Jahn Kassim, Puteri Nemie
title	Promoting ‘Open Disclosure’ amongst medical professionals through the enactment of apology laws in Malaysia
title_short	Promoting ‘Open Disclosure’ amongst medical professionals through the enactment of apology laws in Malaysia
title_full	Promoting ‘Open Disclosure’ amongst medical professionals through the enactment of apology laws in Malaysia
title_fullStr	Promoting ‘Open Disclosure’ amongst medical professionals through the enactment of apology laws in Malaysia
title_full_unstemmed	Promoting ‘Open Disclosure’ amongst medical professionals through the enactment of apology laws in Malaysia
title_sort	promoting ‘open disclosure’ amongst medical professionals through the enactment of apology laws in malaysia
publishDate	2016
url	http://irep.iium.edu.my/52338/ http://irep.iium.edu.my/52338/ http://irep.iium.edu.my/52338/1/FINAL%20NUS%20APOLOGY%20LAW.pdf http://irep.iium.edu.my/52338/17/52338_promoting%20open%20disclosure.pdf
first_indexed	2023-09-18T21:14:09Z
last_indexed	2023-09-18T21:14:09Z
_version_	1777411449673482240

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

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