‘Usually no claim to compromise’: open disclosure letter to the editor and our response

Apr 21, 2017

Dear Editor,

On Page 7 of Issue number 7 of Connect, Dr Richard Wilson, Senior Medical Advisor, SA, Avant writes about open disclosure. The advice seems to be at odds with Section 17.1 of my Avant policy, which is titled, ‘No Admission, a policy condition which precludes ‘any admission ... in relation to any claim’. I would be grateful for further clarification on this subject.

Dr John Lamb, QLD

Dear Dr Lamb,

Clause 17.1 of Avant’s Practitioner Indemnity Insurance Policy (version 4.1) policy talks in terms of not making an admission in relation to any ‘… claim or request for indemnity covered by this policy without our prior written consent’. This part of the policy comes into play when there is a civil claim for damages by the patient and/or the member has requested an indemnity under their policy. A civil claim will usually arise well after open disclosure, which usually takes place soon after the adverse event. So in my experience there is usually no ‘Claim’ to compromise by an admission.

In essence it is the compromising of an articulated claim for compensation or damages that clause 17.1 is aimed at.

At Avant, we have long supported open disclosure and contributed to working groups that developed the Open Disclosure Standard and Framework, and the NSW Clinical Excellence Commission’s Open Disclosure Handbook.

Saying sorry is not only good patient care but it’s the right thing to do. Open disclosure is not about apportioning blame to yourself or others. Rather, it’s about informing a patient about what has gone wrong, ameliorating any harm to the patient and learning from the experience.

All jurisdictions in Australia have ‘apology laws’ – statutory provisions that protect statements of apology or regret made after incidents from being used in various legal contexts. The legislation aims to foster an environment where doctors can feel comfortable expressing regret to patients.

If there is an incident involving an adverse outcome, visit our Medico-legal Advisory Service page in the first instance or call 1800 128 268 for advice.

Paul Tsaousidis
Head of Practice, Legal (NSW), Avant

For more information on open disclosure and Avant’s position, see Open disclosure: how to say sorry safely.

The content is intended only to provide a general overview and does it constitute legal advice. You should seek legal or other professional advice before acting or relying on any of the content.

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