Tuesday, May 18, 2004

How apology affects the propensity to sue: let's carve out a broad "apology privilege" 

The front page of today's Wall Street Journal carries a story($) with the headline "Doctors' new tool to fight lawsuits: Saying 'I'm sorry'". The article reports that hospitals and doctors are learning that if they apologize sincerely for their errors, injured patients and their families will often back away from bringing a lawsuit, notwithstanding the encouragement of the trial bar. It is a great article, with lessons for every person who owns or manages a business or professional practice. If you have any interest in liability in general and tort law in particular, get yourself a copy on dead tree and read the whole thing.

On the one hand, it should not surprise us that genuine contrition defuses litigation. Anybody who has ever served as a general counsel of a corporation knows -- or should know -- that most people bring lawsuits because they are angry. Oh, sure, there is the occasional plaintiff that is greedy, or angry only because of some tremendously defective sense of justice and injustice. But many plaintiffs are plaintiffs because somebody did not act compassionately when compassion was called for. Terminated employees, for example, often bring cases not because they were fired, but because of the manner in which they were fired.

On the other hand, we have created rules of evidence that make it very difficult for people and institutions to apologize:
Insurers and hospital lawyers have long discouraged doctors from apologizing to harmed patients for fear that such apologies might fuel lawsuits. The rule has always been "not to talk about the events to anybody," says Dr. van Pelt. "Even a passing comment can be subpoenaed."

If you apologize, it can and will be used against you to prove liability. If you don't apologize, though, you may increase the likelihood of the lawsuit, you avoid coming to terms with your own culpability, and you fuel the rage of the person you injured. Talk about a Hobson's choice. People or institutions who accidentally injure other people are damned if they do and damned if they don't.

There may be a way out of Dodge, however. Two states, Colorado and Oregon, have created a little space for civility by passing laws that bar plaintiffs from introducing a doctor's apology as evidence in a medical malpractice case. A great start, but why carve out an "apology privilege" just for doctors? It seems to me that we would benefit tremendously if corporations, CEOs, negligent neighbors, the local streets and sanitation department, the police, the school system, managers of playgrounds and athletic programs and the manufacturers of lawn darts all had the ability to apologize without fear that their sincere expression of remorse will expand their liability.

We need a national "apology privilege" available to all alleged tortfeasors, whether individual, governmental, non-profit or corporate. Without it, the trial bar will continue to use our goodwill and civility as a weapon against us, coursening our society and punishing people who want to do the right and honorable thing when they make a mistake.


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By Anonymous Anonymous, at Tue Dec 19, 09:32:00 AM:

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