Should you advise your clients to apologize when they make a mistake?

A lawyer friend, Sharif, spent Thanksgiving Day of 2004 in the hospital. He went there for emergency surgery to remove his appendix. A few hours after the surgery, Sharif found himself in a pool of blood. Nurses tried to be super-professional in the midst of the emergency but Sharif said he could tell they were in a panic and he thought he was going to die. The quick diagnosis was internal bleeding (although Sharif said it looked very external to him!) He was taken back into surgery and the two little holes from the laparoscopic surgery became a five inch incision.

A few days later, Dr. A., the first surgeon, sat down to talk with Sharif. Dr. A. told Sharif that he was sorry for what had happened, that he thought maybe he had failed to close a blood vessel properly, that his colleague Dr. B, who performed the second surgery, may have acted hastily in such an invasive procedure, that the second surgery might not have been necessary at all and even if it had been, the laparoscopic punctures might have been the better access to repair the bleeding. In addition to his explanation and apology, he told Sharif that the hospital was going to forgive the bill for the extra surgery and extra recovery days.

Sharif told me that as the doctor talked, at first, he was seeing dollar signs and he was drafting the malpractice claim in his head. He was incredulous that the doctor was admitting his mistakes and long forgotten rules of evidence began to emerge from memory. As the conversation continued, he found himself listening from a place of compassion, impressed by the doctor’s candor, and recalling that he’d made mistakes in his life. By the end of the conversation, anger and thoughts of suing had disappeared.

Sharif’s story isn’t unique. Doctors around the country are discovering that leveling with their patients and apologizing are effective tools for lowering their malpractice claims. A recent Associated Press story¹ reported that since 2002, hospitals in the University of Michigan Health System have been encouraging doctors to apologize for mistakes. Their annual attorney fees have since dropped to one-third, from $3 million to $1 million, and malpractice lawsuits and notices of intent to sue have fallen by half, from 262 filed in 2001 to about 130 per year.

Jonathan Cohen, a law professor at the University of Florida Levin School of Law, was an early researcher in the apology trend. In a 2000 presentation, I heard him speak about the Veterans Affairs hospital in Lexington, KY. Cohen said that the VA hospital adopted the policy of apologizing in 1987 after some big malpractice cases. They went from being one of the highest net legal cost hospitals to among the lowest net legal cost hospitals in the VA system.

Heath care providers who apologize to patients for things that go wrong in their care or the care of relatives are not just doing the right thing, it makes sense business-wise. Kathryn Johnson, RN, Director of Risk Management at the University of North Carolina Healthcare System, in Essentials of Physician Practice Management³ writes that studies show litigation by patients was reduced when providers were forthcoming about mistakes they'd made and took responsibility for them. This was especially true of smaller mistakes. Patients who are communicated with honestly and in an ongoing manner feel their providers are acting in good faith, are more forgiving of their human errors, and are less likely to want to punish them with lawsuits. Hospitals across the country are adopting similar policies.

Apology isn’t just for medical malpractice. In 2002 the National Law Journal⁴ reported that The Toro Co., the lawnmower company, had adopted a revolutionary policy. When an accident was reported to the company, a non-lawyer “product integrity specialist” contacted the injured party, expressed the company’s condolences and initiated an investigation to discover the cause of the accident. An engineer went with the product integrity specialist to look at the equipment that caused the injury and, where appropriate, the company took steps to improve the equipment to prevent future injuries. In two thirds of the cases, the product integrity specialist was able to resolve the matter without legal intervention. If not, the company offered to mediate and almost all cases were resolved in mediation. According to the article, Toro reported that for 1992 to 2000 with more than 900 products liability claims referred to the program, legal costs per claim (attorney fees and litigation expenses) were reduced by 78%, from an average of $47,252 to $10,420. The average resolution amount for the period was reduced by 70%, from $68,368 for settlements and verdicts to $20,248.

In 2000, California passed a law barring the introduction of apologetic expressions of sympathy ("I'm sorry that you are hurt") but not fault-admitting apologies ("I'm sorry that I injured you") after accidents as proof of fault. Other states are now debating proposed apology legislation, including bills that would exclude fault-admitting apologies from evidence.⁵

Beyond the financial savings, there are other benefits. In the AP article, one man said that an apology might not have stopped him from suing over the misdiagnosis of a brain aneurysm that he contends left his wife severely disabled. But it might have saved his relationship with the doctor, who was once a close friend, he said. According to Aaron Lazare, author of On Apology⁶, apologizing can be motivated by strong internal feelings such as empathy for another or the distress of guilt and shame. In such cases, the person issuing the apology seeks to restore and maintain his own self esteem. Other motivating factors are external: wanting to impact another person’s perception. In such cases, a person apologizes due to fear of abandonment, stigmatization, damage to reputation, retaliation, or punishment. People who don’t apologize often say they don’t do so because they fear the reactions of the people to whom they apologize, such as losing the relationship, humiliation, punishment, etc. or they are embarrassed and ashamed of the image they would have of themselves as weak, incompetent, or in the wrong. Lazare points out the healing benefit of the apology to both parties, the harmed and the one causing the harm. The apology fulfills several possible psychological needs for the offended party, among them: restoration of self-respect and dignity, a sense of connection and shared values with the other person, a sense of safety in the relationship, assurance that the offense was not his fault and sometimes the sense that the offender is suffering from the harm. While it appears that the apology is for the person who was injured, the results for the person issuing the apology may be more dramatic. The apology often restores the person’s self-esteem and dignity, allows him the opportunity to make reparations and reconnects him with the other person. And, as our mothers always said and as Dr. Steve Kraman, former chief of staff of the VA Hospital in Kentucky pointed out: apologizing is “the right thing to do”.

1. Tanner, Lindsey, “'Sorry' Seen As Magic Word to Avoid Suits”, (November 8, 2004) Associated Press

2. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=238330 for his paper “Apology and Organizations: Exploring an Example from Medical Practice” and http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=238331 for many others.

3. Blair Keagy, MD, and Marci Thomas, CPA, MHA Editors, Essentials of Physician Practice Management, Risk Management Chapter by Kathryn Jackson, (2004) Jossey-Bass

4. Aronson, Peter, “How not to be sued Lawn mower maker Toro moves quickly to mollify victims of accidents”, from National Law Journal/Business, June 24, 2002.

5. Cohen, Jonathan R., "Legislating Apology: The Pros and Cons" (August 2001). http://ssrn.com/abstract=283213 vi Lazare, Aaron, On Apology, Oxford University Press (2004)

This article was originally written in 2004 and various versions of it has been published in other periodicals, including the North Carolina Bar Journal.