September 3, 2025

The Role of Apologies in Medical Malpractice Cases

When an adverse medical outcome occurs, emotions often run high for both patients and healthcare providers. For patients and families, hearing an apology may bring comfort or reassurance. For providers, the natural instinct to say “I’m sorry” can come with questions about whether such words might later be used against them.

From a legal perspective, an apology can influence how patients perceive what has happened and how they choose to respond. In some cases, an apology may ease tensions and prevent disputes from escalating. In others, depending on how it is expressed, an apology could be misunderstood as an admission of negligence. In Alberta (and most Canadian provinces), the law provides important guidance on the effect of apologies, helping to balance compassion with fairness in legal proceedings.

Types of Apologies: Sympathy vs. Admission of Fault

Not all apologies are the same:

• Expressions of Sympathy: Statements like “I’m sorry for your loss” or “I regret that this happened” are generally considered compassionate gestures.
• Admissions of Fault: Words such as “I made a mistake” or “I should have done something differently” may sound similar to a simple apology but can be interpreted as an acknowledgment of fault or negligence.

In most Canadian provinces (except for Quebec), legislation recognizes both types of apologies and protects them from being treated as admissions of liability in legal proceedings.

Apology Legislation in Alberta

Alberta has enacted protections for apologies through section 26.1 of the Alberta Evidence Act. This provision applies broadly, ensuring that apologies (whether or not they suggest fault) cannot be used in most civil proceedings to establish liability.

What Counts as an Apology?

Section 26.1(1) defines an “apology” broadly as:

An expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault.

Key Legal Protections Under Section 26.1

Under section 26.1, an apology:

• Does not constitute an admission of fault or liability;
• Does not restart limitation periods under the Limitations Act;
• Does not void or impair insurance coverage; and
• Is inadmissible in court as evidence of liability.

However, section 26.1 makes one key exception: these protections do not apply in criminal contexts (i.e. the prosecution of a criminal offence).

Alberta Court Decisions

Alberta courts have only rarely considered section 26.1. In one case (Robinson v. Cragg, 2010 ABQB 743), the Court held that while factual admissions could still be used in evidence, the apology itself must be excluded because it might unfairly influence the judge or jury. In another case (SP v. AP, 2020 ABCA 235), the Court of Appeal confirmed that the legislation protects out-of-court apologies but clarified this protection does not apply to apologies made in open court during criminal proceedings, especially where a guilty plea already amounts to an admission of wrongdoing.

While these decisions are not directly applicable in the medical malpractice context, they demonstrate how courts approach apologies under Alberta law: factual content may be considered, but the expression of sympathy or regret combined with admitting fault is treated as unfairly prejudicial and excluded from evidence. The protection does not extend to apologies made in criminal proceedings, particularly those connected to guilty pleas.

Conclusion

Under section 26.1 of the Alberta Evidence Act, an apology made outside of court does not amount to an admission of liability, does not affect limitation periods or insurance coverage, and cannot be used as evidence of fault in civil proceedings. The provision is aimed at supporting open, compassionate communication while ensuring fairness in litigation.

Author

Anita Nowinka

Associate
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