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Saying "I'm Sorry" to Minimize Medical Malpractice (and other) Litigation Risks

I have long told people that potential clients often do not come to us because they are hurt, but because of the way they are treated after they are hurt.  Many times, patients don’t seek to sue doctors or clients don’t seek to sue attorneys just because the doctor or attorney made a mistake; they seek to sue when the doctor or attorney attempted to minimize, deny, or even attempt to cover-up the mistake.  And that phenomenon exists across cases.  Mad car wreck victims, scorned business partners, or upset employees are all more likely to file a complaint or sue if the person that harms them fails to take responsibility for their conduct.

Moreover, once that suit is filed, it’s my belief (without any real data to back this up), that juries are likely to award more in damages to those plaintiffs where the defendant fails to take responsibility and acts reprehensibly after the fact.

Yesterday, Dr. Sandeep Jauhar had a New York Times commentary that discussed these themes when he wrote about the use of apologies to minimize medical malpractice litigation.  He discussed a case where he had misdiagnosed a heart-attack, and wrote the following:

Afterward, in the control room, heat rose to my face as colleagues wandered in to inquire about what was going on. “How could we have missed this?” I asked aloud. I was well aware of the disturbing prevalence of heart disease in South Asians, whose risk is up to four times that of other ethnic groups. I knew that heart attacks in this population often occurred in men under 40, who often do not exhibit classic coronary risk factors. I knew all this, but somehow my mind had suffered a block.

Most doctors are afraid to take responsibility for medical errors. We are acutely aware of the potential hazards — legal and professional — of taking ownership of a mistake. But studies have shown that physicians’ apologies do not necessarily increase malpractice lawsuits. In fact, they may protect against litigation. Seventeen states have enacted legislation encouraging such apologies, some even making physicians’ expressions of remorse inadmissible in court.

I couldn’t bring myself to talk to my patient in the cath lab, while everyone was watching, so I decided to wait until he got to the recovery room, where it was more private.

I found him there lying on a stretcher. The pain in his chest was gone, he happily informed me. However, the groin, where the catheter had been inserted, now hurt. “They substituted one pain for another,” he said, laughing.

I grasped the rails of the gurney. “I thought you had pericarditis,” I said carefully. “I was obviously wrong. I’m sorry.”

He seemed embarrassed. “No, no, please, the past is finished,” he replied. “I am more interested in the future.”

He asked about his prognosis. I told him that I thought it was good, though he would have to be on medications for the rest of his life. He nodded, looking disappointed.

A few days later, just before he was to be discharged, I stopped by his room. I asked him with whom he was going to follow up. He told me that he had been given the name of another cardiologist but that he had decided to go with me. “You have been terrific,” he said. “Thank you.”

I nodded silently, feeling empty. “You are much too generous,” I said.

Dr. Jauhar’s realization is nothing new.  For years, people have been advocating for doctors to say “I’m sorry” to reduce the threat of medical malpractice litigation.  In fact, the idea has even spawned networks of activists, including the “Sorry Works!” Coalition and the Perfect Apology network.

But even with all this publicity and mounting evidence of the benefits of apologizing, apologies still aren’t prevalent.  And I guess I’m glad.  Otherwise, I might be out of business.

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