People who believe they have been injured by another’s negligence or reckless conduct often want an apology from the responsible party. Too often, however, as a lawyer, I have to advise clients that the civil justice system does not compel apologies or acknowledgement of wrongdoing, and that if they are looking for an apology, they won’t get one by way of a lawsuit. Rather, justice is only available in monetary or equitable compensation. Given the adversary nature of the civil justice system, apologies and admissions are hardly ever voluntarily offered, or judicially compeled, to the injured. Indeed, even at trial, the “Perry Mason moments,” when the witness spills it all on the stand, never actually happen.
The phrase “we all make mistakes” is entrenched in our culture and taught to all of us from a young age. Indeed, we all do make mistakes. Why then, in the context of injured persons seeking redress for mistakes, are we so reluctant to admit what we all know – that all of us make mistakes? There are several reasons those accused of injuring someone refuse to apologize, even where the evidence may be overwhelming or when the accused believes he or she made a mistake or is responsible, if at least in part. Primary among them is that an apology can be interpreted as an admission of negligence or wrongdoing, and perhaps an invitation for litigation or a powerful piece of evidence later on if the matter goes to court. Accordingly, corporations and insurance carriers generally advise against apologizing or taking responsibility.
Recently, however, there has been a movement among some hospitals and doctors to implement a policy of promptly disclosing medical errors and offering sincere apologies and fair compensation. Of course, doctors have an ethical obligation to disclose medical errors, but, what a refreshing approach in a culture of “deny and defend.” This approach is radical in the eyes of many, however, if you were to ask a young child what he or she is taught to do when he or she makes a mistake, that child would most likely tell you what he or she learned from his or her parents – tell the truth, take responsiblity and try to make it right (think of the young Beaver Cleaver retrieving the baseball from his neighbor’s living room).
As evidence that this approach, implemented by some highly respected medical institutions such as Johns Hopkins, Stanford and the University of Illinois Medical Center, is consistent with our generally held values, promptly admitting medical errors, apologizing to the patient and offering fair compensation seems to be resulting in less lawsuits filed against these institutions and their doctors. For example, since implementing the policy at the University of Michigan Health System, existing claims and lawsuits dropped to 83 in August, 2007, down from 262 in August, 2001 according to the Medical Center’s Chief Risk Officer. See http://search.cleveland.com/sp?aff=100&keywords=doctors+apologize+for+errors.
Not only have the number of claims and suits gone down at hospitals implementing this approach of prompt and full disclosure, but because settlements are being negotiated early, the cost for everyone involved is significantly reduced by avoiding litigation.
Unfortunately, as is the case with every profession and every field, errors and mistakes occur. In the medical field, errors and mistakes often result in injuries. This is why doctors and hospitals have insurance and are required to have insurance – because mistakes do happen. Recent studies have demonstrated that one of every 100 hospital patients suffers negligent treatment and that as many as 98,000 people die every year due to medical errors and negligent treatment. Studies also show, however, that as few as 30 percent of medical errors are disclosed to patients. Finally, only a very small fraction of those injured by negligent medical care – some studies suggest as low as 2% – actually pursue legal claims. See http://search.cleveland.com/sp?aff=100&keywords=doctors+apologize+for+errors.
Institutions implementing this approach of promptly disclosing medical errors, issuing apologies and offering compensation should be applauded. However, when analyzed from another perspective, it is disappointing that this approach is considered revolutionary. After all, all this approach boils down to is taking responsibility and doing the right thing. We should not just applaud those who do take responsibility for their mistakes, we should demand it from everyone, including our doctors.
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