Sorry Seems to be the Hardest Word: The Role of Apology in Healthcare Liability Claims
By Elizabeth M. Fraley
Baylor Law School, Associate Professor of Law. The Fraley Firm, an office of Beard, Kultgen, Brophy, Bostwick & Dickson

For those involved in healthcare and healthcare liability claims, the issue of apology arises in a variety of settings, with various legal ramifications. The provider (involved with a bad outcome or an unhappy patient or family member) may express sympathy, conveying very human sadness that the untoward event happened. He may apologize, knowingly or unknowingly accepting fault for a mistake. The provider might offer to forgive outstanding medical bills, thinking it is an act of customer service. However, the family member, hearing these words, may take them in a very different way than intended and impute guilt or blame. This article looks at the nature of the words communicated, the timing of that expression and the evidentiary and strategic ramifications of apologetic acts and statements.

The Nature of Apologies

Much has been written about apologies and their effect on disputes generally and litigation specifically. An important part of closure for many who perceive themselves as victims of medical negligence is that the provider acknowledge, if not the wrong, then at least the consequences to the patient or family. As Lee Taft writes, “healing for [legal] clients may have a more pronounced moral dimension, a process that can be facilitated relationally by apology…[which] leads to …restoration of moral balance….”1 Apology experts suggest that an apology is valuable because it offers the offender a way to express remorse and the injured an opportunity to forgive – allowing both to heal.2 Physicians, however, are wary of making any statement that could be perceived as accepting blame given the risk of litigation and the role an admission against interest might have. Yet a well-timed apology can be an effective tool for resolution of disputes and support the moral and ethical roots of the physician/patient relationship and the policing of error in the healthcare system.3

What is an apology?

“For an apology to be sincere, it must include both the transgressor’s acknowledgement of wrongdoing and an expression of remorse. Without an admission of fault or other recognition of responsibility for error, an apology is incomplete – it’s more like a politician’s acknowledgement that “mistakes were made.’”4 There may be frequent occasions when an apology of the kind mentioned above is warranted. As the Institute of Medicine’s “To Err is Human: Building a Safer Health System” report noted, human error causes substantial harm to patients on a frighteningly frequent basis.5

This acceptance of responsibility for a wrong done, then, has a place in medicine. But not every provider who expresses sympathy intends to apologize. Certainly, every bad outcome in medicine is not caused by negligence on the part of the provider.

There appears, then, to be a significant difference between an apology which accepts responsibility for an error and mere expressions of sympathy (human acknowledgement that another has felt pain or distress). Claimants may want/need the provider to accept responsibility while the provider genuinely does not feel responsible for an outcome which was a known and accepted risk of treatment. Even if a retrospective assessment of the conduct suggests that different or better decisions could have been made, most providers are hesitant to acknowledge this to a patient because it would be used against him in a subsequent lawsuit. Frankly, patients often take any statement by the provider, verbal or nonverbal, and assume it was meant to acknowledge responsibility, making providers even more concerned about their own statements. Providers may want to make statements of sympathy in support of their patients and the physician/patient relationship but might not mean to apologize, per se.

The ability to sympathize or apologize, then, without legal ramifications, is fraught with peril. How can statements of sympathy or apologies be made without an undue impact on the provider?

Apology Law

Some 37 states and the District of Columbia have enacted laws, including changes to the applicable rules of evidence, which render apologies inadmissible as evidence. All of them provide protection for simple expressions of sympathy, although several specify to whom the statement must be made.6 Fourteen states protect expressions of sympathy only in situations where there has been an “unanticipated outcome” during medical care. Five others inject the requirement that the statement be made under circumstances where the adverse outcome results from an “accident.” Iowa is specific in excluding statements made where the adverse outcome results from a breach in the “applicable standard of care.” In Texas, expressions of compassion or sympathy “emanating from humane impulses…or a general sense of benevolence” are excluded from evidence but Tex. R. Evid. 803(2) allows, as an exception to hearsay, an excited utterance which can be used to prove the liability of the communicator.

Critics of apology protection laws argue that these laws subvert the true policy and the moral effects of an apology. Since the wrongdoer never has to admit his mistake publicly, the patient is not vindicated, and the physician is not held accountable. Proponents maintain that the point of apologies is to improve safety and accountability in the health care system, not to extract a pound of flesh. There is scant evidence that the injured party would be satisfied merely with a public apology; they seem still to want financial compensation as well. As such, providing a controlled environment in which physicians can acknowledge mistakes, such as that which peer review committees provide, serves the public policy goals better than public apology.

When and How do Apologies Work Best?

Statements of sympathy or apology made during the course of treatment may be effective to diminish shock or anger, but they also may have the effect of convincing the patient or family that a medical mistake has been made. Providers considering these statements may want to consider the nature of the relationship with the patient, the setting in which the statement is being made and whether to document the circumstances surrounding the statement in a brief but factual manner in the patient’s medical chart.

Many states encourage or require nonbinding mediation as a settlement tool during litigation. Routinely, statements made during mediation cannot be used as evidence in the case. During mediation, then, a provider may apologize as part of the settlement process, without concern that the apology will later have a public impact on their professional lives. Not only can the apology have a powerful healing effect, but it may also reduce the amount of the settlement payment. If an apology is made at mediation, the provider should consider discussing the tone and timing of the apology with counsel. Does a statement early in mediation – perhaps during the opening session – set a conciliatory tone for the day? Should the attorney make the apology rather than the provider? Is the apology a negotiated part of the settlement, along with the amount of payment and the confidential nature of the settlement? Having the attorney issue the apology may be advisable if the provider does not appear sincere or repentant. Apology as a negotiated term may give the patient the impression they have “won” something from the provider.

Apologies should not be used when the provider does not actually believe he is at fault. Just as there is a moral component to a patient accepting an apology, so is there a moral component to the provider issuing the apology: it must be truthful and heartfelt. Apologies are particularly effective when the provider and patient had a long therapeutic relationship, since healing in that setting may be more meaningful. A provider who saw the patient once and then is sued by the family may not have a sufficient relationship for the apology to seem sincere. When there is doubt about the impact of an apology, the mediator can explore the topic of apology with the claimant and share that insight with the provider.

In contrast to a graciously-given and accepted private apology, public apologies extracted as part of a settlement can have a painful and long-lasting effect on the provider. The public nature of the apology opens the provider up to media coverage, which may not portray events in a balanced manner, and the provider has little meaningful ability to direct the tone of the publicity. Publicity can also generate other lawsuits by patients who see the apology and choose to use it as evidence in their case. Finally, admissions such as this can trigger licensing investigations by state medical boards, even in the absence of a complaint being filed by the patient or family. While the apology may end the lawsuit, it may also generate another investigation, requiring counsel and with the potential to restrict or even lose a medical license. Before any provider engages in a public apology, he should insure that he fully understands the risks and benefits of such an apology as well as the applicable law in his jurisdiction.

Apologies and expressions of sympathy have a role to play in medical/legal matters, but are best wielded with either advice of counsel or a full understanding of the law which will apply to the provider.

E-Fraley

About the Author

Elizabeth M. Fraley is an Associate Professor at Baylor Law School, teaching Practice Court and serving as co-director of the Executive LL.M. in Litigation Management. She serves as faculty at the Academy of the Advocate in St. Andrews, Scotland. Liz is an actively practicing attorney with 30 years of trial and mediation experience representing health care providers and businesses. She has been named a Texas Super Lawyer every year since 2004 and has been included in D Magazine’s “Best Lawyers in Dallas” annually since 2011. She is a member of the American Board of Trial Advocates (ABOTA), is president of the Waco Chapter and a national board member. She has served as faculty in the ABOTA Masters in Trial series. Liz serves as faculty for the Judicial Education Conference, teaching evidence to sitting judges. She is a member of the Abner McCall Inn of Court, the McLennan County Bar Association and is chair of the State Bar Advanced Medical Torts Course. She is a co-author of Texas Commercial Causes of Action and is author of the updated Fraley, Powell and Kinkeade’s Practical Guide to Texas Evidence. Liz is a frequent author and speaker on trial skills, procedure and evidence. An avid runner and traveler, she is the mother of three children.

1 Lee Taft, Apology Subverted: The Commodification of Apology, 109 Yale L.J. (2000).

2 Id. at 1138

3 www.VoicesinBioethics.net/features/2014/03/26/apology-laws-and-the-doctor-patient-relationship

4 Id.

5 Id.

6 Id.

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