Medical Malpractice, Litigation & Apologies:
Why Saying Sorry Matters More Than Ever
Medical malpractice litigation has traditionally been a minefield for physicians, with most legal advisors urging silence when mistakes occur, especially when they result in serious injury or death.
The Old Approach: Silence and Denial
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.
Many attorneys and healthcare professionals have long held the idea that offering a medical malpractice apology is an admission of guilt, increasing legal risk.
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. He calls it a myth,
There is to my knowledge not a shred of evidence to support it.2
Medical Errors: The Real Cause of Litigation
Medical errors remain a leading cause of preventable death in the U.S., with estimates ranging from 44,000 to nearly 100,000 deaths annually (based on the 1999 Institute of Medicine report and subsequent research).
Yet, medical malpractice litigation is less about the error itself and more about how healthcare providers respond. 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.
The three main points behind medical malpractice litigation can be summed up as:
⏵ A lack of transparency.
⏵ Failure to offer a sincere medical malpractice apology
⏵ Absence of fair compensation or a timely malpractice settlement
According to David Patten, a medical malpractice attorney,
We never sue the nice, contrite doctors. Their patients never call our offices. But doctors who are poor communicators, arrogant, and abandon their patients get sued all the time.3
Why Patients Sue: The search for Answers and Trust
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.4
Unfortunately, the only recourse patients and family members have is to turn to medical malpractice litigation because they feel ignored, lied to, or left in the dark.
Modern Medical Malpractice Risk Management: The Cost of Avoiding Apologies
Risk management strategies encouraging denial and silence increase litigation risk and cost. Dr. Jerome Buckley, retired CEO of COPIC Insurance, warns:
...we 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
Effective medical malpractice risk management now emphasizes transparency, early disclosure, and a genuine medical apology.This approach helps reduce patient anger, lowers the likelihood of costly lawsuits, and often leads to more amicable medical malpractice settlements.
The 'Sorry Works' Movement: Changing the Narrative
Since 2006, the Sorry Works! Coalition has pushed for a transformative approach: full disclosure, sincere apologies, and early compensation offers to reduce lawsuits and rebuild trust.
The traditional approach is simply failing, Doug Wojcieszak argues. People just get angry. Wojcieszak,founder of Sorry Works! Coalition and brother of a medical error victim 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.
Benefits of the Sorry Works Approach
⏵ Reduces patient anger and medical malpractice litigation by promoting honesty
⏵ Lowers defense and settlement costs for providers and insurers
⏵ Supports patient rights and constitutional protections
⏵ Improves healthcare provider-patient relationships 7
Changes Since 2006 | Recent Trends and Research
1. Legal Reforms Supporting Apology Laws
Apology laws have expanded across more U.S. states, allowing healthcare providers to give a medical malpractice apology without those statements being used against them in court. Recent studies show these laws reduce malpractice claims and improve settlement timelines.
2. Impact of COVID-19 on Medical Communication
The pandemic intensified the need for transparent communication about medical risks and errors. Telemedicine and digital communication channels require new strategies for sincere apologies and disclosures.
3. Technology and Data Analytics
Healthcare providers increasingly use data analytics to proactively identify medical errors and prevent harm. This supports earlier disclosures and apologies before medical malpractice litigation occurs.
4. Patient-Centered Care and Empathy Training
Medical schools now emphasize communication skills that focus on empathy, honesty, and conflict resolution. Providers trained in these skills see lower litigation rates and better patient satisfaction.
Medical Malpractice: How to Apologize Effectively After A Medical Error
The principles outlined here have evolved into a medical apology strategy that advocates for full disclosure to help provide a solution to medical malpractice litigation that is increasingly being viewed as adversarial, expensive, unpredictable, and inefficient.
⏵ Be honest and transparent: Clearly and compassionately explain what happened.
⏵ Express sincere remorse: Say “I’m sorry” without qualification or excuses.
⏵ Offer remediation: Discuss next steps and measures to prevent recurrence.
⏵ Provide fair compensation: When appropriate, consider early offers to facilitate a swift medical malpractice settlement.
⏵ Maintain ongoing communication: Keep patients and families informed throughout the process.
Learn more about full disclosure and early offer movement or visit our homepage to explore other areas of the site.
1 - www.sorryworks.net/files/CoalitionPowerpointpresenation.ppt #261,8, Goals of the Coalition
2 - Lucien Leape, Dr. (2006) The Physician Executive March/April issue.
3 - David Patton is a Medical malpractice attorney and Sorry Works! board member. www.sorryworks.net/files/CoalitionPowerpointpresentation.ppt#261,8, Goals of the Coalition
4 - Rita Marie Barsella (2007) "Sincere Apologies Are Priceless." Nurse.com Monday July 2, 2007
5 - Jerome Buckley COPIC Insurance
6 - www.sorryworks.net/media53.phtml
7 - Doug Wojcieszak --www.sorryworks.net
Recent Studies on Apology Laws and Litigation (2020-2024)
