Medical Malpractice and The Perfect Apology
The overwhelming consensus among medical malpractice lawyers, when it comes to conflict resolution and mediation strategies, is to recommend silence when their physician clients are sued for a medical error—especially one leading to serious injury or death.
The approach is based on a common but mistaken assumption held throughout the U.S. legal profession that people have become so greedy and litigious that admitting responsibility for any error simply sets the stage for a prolonged lawsuit and a massive settlement.
The President of South Carolina's Trial Lawyers Association sums up this conventional wisdom about medical apologies—"I would never introduce a doctor's apology in court. It is my job to make a doctor look bad in front of a jury, and telling the jury the doctor apologized and tried to do the right thing kills my case."1
But that conventional wisdom, according to Dr. Lucian Leape (Harvard University), "has no basis in fact. There is to my knowledge not a shred of evidence to support it. It is a myth."2
Medical errors are estimated to kill thousands of people each year—some studies put the number between 44,000 and 98,000 (based on a 1999 report from the Institute of Medicine). But doctors are not typically sued for medical malpractice because they make a mistake, they are sued because they shirk responsibility for the error, fail to apologize and/or refuse to offer fair compensation to the patients and family to ease their pain and anguish.
According to David Patten, a medical malpractice attorney, "We never sue the nice, contrite doctors. Their patients never call our offices. But the doctors who are poor communicators, arrogant, and abandon their patients get sued all the time. Their patients call our offices looking for answers."3
In his testimony before the U.S. Senate (2006), Richard C. Boothman, Chief Risk Officer for the University of Michigan, explained that "People go to lawyers not because they want a million-dollar payout. People go to lawyers because they want answers and they don't trust their caregivers to give them answers. People go to lawyers because they don't get any information at all."4 Unfortunately, the only recourse very angry patients and family members have is to hire a medical malpractice attorney to get those answers.
Dr. Jerome Buckley, a retired CEO of COPIC Insurance, shares many of the same concerns and, like so many other experts, has concluded that the medical profession has made "a grave error when we listened to defense attorneys who told us to abandon our patients after adverse events. This is the chief reason we have a medical malpractice crisis."5 This risk management strategy doctors have been encouraged to adopt to avoid law suits—deny any wrongdoing and defend every aspect of the medical procedures used—inevitably increases the likelihood of a long, divisive and very expensive lawsuit.
The traditional approach is simply failing, Doug Wojcieszak argues, because people just get angry.
Doug, who founded SorryWorks.net back in 2006, understands from first-hand experience that "it's not greed that drives most people to file medical malpractice lawsuits. It's anger. People get angry when they think there's a cover-up."6
Doug sued the doctors and hospital responsible for the accidental death of his brother, Jim. The hospital never acknowledged the medical error, failed to provide an explanation for what happened, and refused to offer any form of apology. Wojcieszak's started the Sorry Works Coalition with a simple but crucially important objective in mind, reduce malpractice lawsuits by telling patients the whole truth.
Sorry Works! encourages doctors and their insurers to be honest when mistakes happen, offer apologies, and provide compensation up-front to patients and their attorneys. While the number of settlements increases and more victims receive justice, this approach removes the anger that often leads to lawsuits and it reduces settlement and defense costs. Overall, this approach saves money for insurers and hospitals but the constitutional rights of patients are not limited or restricted."7
These basic principles have evolved into a movement advocating full disclosure/early offer and helps provide a solution to medical malpractice litigation that is increasingly being viewed as adversarial, expensive, unpredictable, and inefficient.