It Shouldn’t Hurt to Say You’re Sorry

A recent article in the New York Times caught my eye: Doctors Say ‘I’m Sorry’ Before ‘See You in Court’. It really got me thinking about what would happen to the practice of employment litigation if employers would adopt the same practice. I suspect that it would dramatically cut the instances where employees would sue their employers if more employers could say “we’re sorry,” when an employee was mistreated. Will this trend take hold with employers the way it’s starting to with doctors?

Humans make mistakes, and doctors are no exception. While mistakes can be harmless, they can also be a matter of life or death. The cost of malpractice insurance to cover mistakes has skyrocketed to the point that some doctors have chosen to leave the field altogether. Although there have been efforts to rein in malpractice suits in the name of “tort reform,” such efforts essentially amount to blaming the victim, rather than addressing how it is appropriate to compensate those who have lost loved ones or incurred significant pain and distress for their injuries.

Although the rules of evidence in many states prohibit using an apology as an admission of guilt in a legal proceeding, apologies still happen relatively rarely. Once potential defendants in a lawsuit consult with a lawyer, chances are good that they will be told not to say anything about the circumstances of the incident, and especially not to apologize. As the Times article points out,

For decades, malpractice lawyers and insurers have counseled doctors and hospitals to “deny and defend.” Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.

But according to this article, things may be changing. Some medical practices are experimenting with efforts to disclose medical errors more promptly, and to offer earnest apologies and fair compensation. And while their lawyers may have feared the worst, the sky has not fallen — not even close.

Despite some projections that disclosure would prompt a flood of lawsuits, hospitals are reporting decreases in their caseloads and savings in legal costs. Malpractice premiums have declined in some instances, though market forces may be partly responsible.

One hospital among the first to experiment with a full disclosure policy reports a decline in existing claims and lawsuits from 262 in August 2001 to 83 in August 2007.

Why such dramatic results? The lawyers involved with such cases understand that “what often transforms a reasonable patient into an indignant plaintiff is less an error than its concealment, and the victim’s concern that it will happen again.” This will sound familiar to many employment lawyers who represent employees as well.

Admittedly, employment law is different than medical malpractice. Rarely are the mistakes so cut-and-dried as ones where a doctor removes the wrong body part or sews up a patient after surgery with an object remaining inside. Medical malpractice doesn’t involve the question of intent, which is an important element of many types of employment cases. However, any employment lawyer will tell you that there are a high percentage of cases that would settle without any litigation if the boss would just offer an apology and an assurance that what happened to the employee will not happen again to others.

A pro-apology policy doesn’t mean an employer can’t defend its position aggressively when it feels it has done nothing wrong. In Michigan, where the state hospital system has adopted a full disclosure policy,

[T]rial lawyers have come to understand that [the hospital] will offer prompt and fair compensation for real negligence but will give no quarter in defending doctors when the hospital believes that the care was appropriate. “The filing of a lawsuit at the University of Michigan is now the last option, whereas with other hospitals it tends to be the first and only option,” said Norman D. Tucker, a trial lawyer in Southfield, Mich. “We might give cases a second look before filing because if it’s not going to settle quickly, tighten up your cinch. It’s probably going to be a long ride.”

A full disclosure and apology policy may be a way to separate the wheat from the chaff, and the very best kind of tort reform: one that actually works to fairly compensate injured plaintiffs and reduce the litigation costs for everyone involved. Now, if some employers and their lawyers would just adopt it as their official policy, we could see just how much those two simple words, “I’m sorry,” mean to someone who has suffered a wrong.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.