In a previous post, I discussed the potential use of an apology to head off medical malpractice litigation.  In this post, I will discuss situations where a complete admission of fault may help bring about a more favorable outcome in such litigation.  Before I do so, however, I want to direct you to a superb article on the subject of physician apologies that was published last week by the Boston Globe.  The article, “Medical Malpractice: Why is it so Hard for Doctors to Apologize,” was written by a physician and highlights the impact that a full disclosure of the facts and an apology can have on potential litigation.  In particular, the article describes the success that the University of Michigan Health System had in reducing malpractice litigation by moving from a “deny and defend” model of dealing with bad outcomes to a “disclosure and early offer” model.  The article notes that the number of pending lawsuits against the University of Michigan fell by more than half with the new system, and the average time to claim resolution dropped from 21 months to 10.  We will talk more about the Michigan system in future posts.  In the meantime, the Boston Globe article is a must read.

Admitting Fault at Trial

Most medical malpractice attorneys view the idea of admitting fault in front of a jury as the equivalent of setting your own house on fire.  It just isn’t done.  However, there is a growing body of evidence that supports the proposition that a defendant’s full apology can improve trial outcomes.  A well timed and sincere apology can improve jurors’ perceptions of the defendant and reduce their tendency to want to punish the defendant.  Moreover, such an apology can bolster the defendant’s credibility and cast them in a more sympathetic light.

The most likely scenario where an apology would be useful is in a case where the evidence of liability is strong and the damages are severe.  There is less risk in apologizing in this situation because an apology would not materially increase the odds that the jury will perceive the defendant as responsible for the harm since the evidence of liability is already quite strong.  There is already a strong likelihood that the jury perceives the defendant as responsible.  The goal in this setting is to portray the defendant in as favorable a light as possible and reduce the impulse to punish the defendant.

The content of the apology is also critical.  Any effective apology contains four elements:

• An unambiguous statement of remorse.  This is the “we’re sorry” part of the apology.
• A statement accepting responsibility for what happened.  In many cases, a half-hearted apology is worse than no apology at all.  Jurors understand the difference between “we’re sorry” and “we’re sorry, but…” and tend to judge the latter very harshly.  Take responsibility without deflection or evasion.
• A statement indicating a willingness to repair the damage.
• A statement setting forth steps that have been taken to prevent similar occurrences in the future.  This is part of taking responsibility and will cause the jury to perceive the defendant as proactive and competent.

The default position in any medical malpractice trial will always be a complete defense with no admission of wrongdoing.  There are situations, however, where a full apology can be an effective strategy to defuse juror anger and increase the odds for a more favorable outcome.  In order to be effective, however, the apology must be complete and nonevasive because a half-hearted apology can easily backfire.  Practitioners and attorneys should remain open to apology as a potential approach to trial.