I focused on the US for this answer. An apology does not automatically lead to the party being found guilty:
- The apology may not be admissible in court (but the laws are complicated, as usual).
- When it is admissible, the judge or jury will be deciding if anyone is guilty or not. In many cases, an apology is not seen as strong enough evidence on its own.
- A sincere apology can convince people not to press charges in the first place.
The paper Does 'Sorry' Incriminate? Evidence, Harm and the Protection of Apology explains about the laws:
[A] growing number of states have sought to encourage
apologies by explicitly denying their admissibility as evidence; the current wave of apology legislation, which has already swept through thirty-seven states and inspired similar versions in Canada and Australia, was reportedly set off in part by a single person’s adverse experience.
Yes, Australia and (of course!) Canada have apology laws too. But let's get back to the paper:
Indeed, the dozens of state “apology laws” passed in the last two
decades were drafted in part to encourage apologies by expressly denying,
in a highly publicized way, the admissibility of these apologies to
prove liability. Their motivation, in other words, is in part psychological: legislators meant the new measures to cause injurers to feel freer to apologize to their victims. For that reason the statutes should not be read as necessarily adding substantively to existing evidence law. Some clearly do, protecting even factually incriminating apologies in certain contexts, as we will see. Many, however, deny admissibility only to statements that were arguably inadmissible already. Even without the legislative protection, for example, a defendant could exclude certain apologetic statements, such as “I’m sorry you’re in pain,” by showing that the remark admits no point confirming or undermining a party’s position at trial, which would disqualify it as an “admission” under the exceptions to the hearsay rule. Alternatively, he might show that the prejudicial impact of admitting a statement, such as “I’m sick about what I did to you. It was horrible!,” substantially outweighs its probative value and therefore warrants exclusion under Rule 403 of the Federal Rules of Evidence and analogous state rules. Many of the legislative measures arguably add nothing to these grounds for exclusion.
The paper Legal Consequences of Apologizing is an older paper (1996), but it still gives some valuable insight. It "illustrates that judges and juries understand that expression of sympathy, regret, remorse and apology are not necessarily admissions of responsibility or liability". Two particularly relevant cases that it brings up, where just an apology was not enough to win the case, are as follows:
Apology for Serious Mistake During Surgery Did Not Establish any Element of a Malpractice Claim.
In its 1982 decision in Senesac v. Associates in Obstetrics and Gynecology, the Supreme Court of Vermont held that a doctor's admission of a mistake did not automatically prove the doctor departed from the appropriate standards of medical care. In June of 1973, defendant Mary Jane Gray, M.D., performed a therapeutic abortion upon plaintiff Mary Senesac. During the procedure, Gray perforated Senesac's uterus and had to perform an emergency hysterectomy. Gray allegedly apologized to Senesac shortly after the operation, saying that she had "made a mistake, that she was sorry, and that [this] had never happened before."
At trial, Senesac introduced no expert medical testimony to show that Gray departed from the standard of care ordinarily exercised by the average reasonably skillful gynecologist. She attempted to satisfy this element of the tort with the admission of mistake and the apology. The trial court ordered a directed verdict in favor of the defendant. Senesac appealed the granting of the motion for a directed verdict.
On appeal, Senesac argued that the directed verdict was improper because the jury could reasonably have concluded from Gray's statement that she had admitted negligence. The Supreme Court of Vermont, in reviewing the directed verdict, assumed, without deciding, that the apology had actually occurred. The court acknowledged that it is possible for a plaintiff to win without expert medical testimony when the defendant's own testimony establishes the standard of care and subsequent departure. However, they affirmed the directed verdict because
Gray's statement did not establish a departure from the standards of care and skill ordinarily exercised by physicians in similar cases." The court saw this statement as simply being the physician's belief and expression of the belief that her performance was not in accordance with her own personal standards of care and skill." This statement, without additional expert medical evidence, was not enough to establish the second element of the tort.
This case appears to say that plaintiffs, supposedly armed with an apology, must prove their cases just as if the apology did not exist. A mere apology does not prove any of the elements of the case because evidence about particular medical facts or events is still missing from the plaintiff's case. Since a mere apology pertains to a doctor's self-image and feelings, it is not evidence of any particular medical fact or event. This leaves the plaintiff legally in the same position as one who did not receive an apology.
Apology for the Inadequate Outcome of a Medical Procedure was Not an Admission of Liability
In Phinney v. Vinson, defendant Robert Vinson, M.D., performed a
transurethral resection of the prostrate upon plaintiff Robert Phinney. After the operation, recurring pain caused the plaintiff to go to another doctor. The second doctor allegedly told Dr. Vinson that he had performed an "inadequate resection," and the first doctor allegedly apologized to the plaintiff "for his failure to [perform an adequate resection]. Plaintiff sued and the trial court granted
defendant's motion for summary judgment.
On appeal, Phinney argued that the apology, without more, was sufficient
evidence of liability to allow the case to go to trial. Plaintiff relied on a few cases in which statements by the defendant were used to establish liability. The Supreme Court of Vermont affirmed, however, and distinguished an apology from a clear admission of liability. The cases plaintiff relied upon were clear admissions of liability, such as the defendant admitting an injury was caused by "negligence" and defendant stating that injuries would have been avoided "if he had checked on [plaintiff] as he should."
The lesson Phinney teaches is how difficult it is for a plaintiff to win based on an apology alone. It appears safe for a practitioner to apologize for an inadequate outcome or result, as long as there is no admission that the inadequate outcome was caused by the practioner's negligence. It appears that there is an understanding that the result of an operation is not guaranteed, not every operation will be successful, and an apology for the inadequacy of an operation does not mean the doctor is liable for negligence. This is a practical precedent in that it
allows a doctor to express sympathy or empathy, without fear of reprisal, when the result of a procedure is not as good as was hoped for. Such expressions usually help heal the feelings and relationships of all persons involved.
It seems that an admission of negligence by doctors to their patients can get doctors into trouble. Where there is no actual negligence (something patients can hardly determine), doctors should be careful in choosing their words. When apologizing, expressing sympathy or delivering bad news, words should be chosen to convey sympathy and empathy in a way that cannot be misconstrued as an admission of negligence or fault.
