TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, March 19, 2008

"Sorry Works!" - Apology to Prevent Med Mal Claims

I just read "Sorry Works!" by Doug Wojcieszak, James W. Saxton, and Maggie M. Finkelstein.   I found the book's premise to be very interesting.  The book argues that medical malpratice suits could be avoided through "disclosure and apology" programs.   Sorry Works! posits that "anger - not greed - is what drives most customers to file medical malpractice lawsuits."    Accordingly, the authors recommend that health care providers develop a disclosure and apology program.   

Notably, the authors distinguish between saying "I'm sorry" - which is an "expression of sympathy" and an "apology", which is "an acceptance of responsibility or admission of fault."    The authors provide concrete examples of this difference.   "I'm sorry", for example, could include "I'm sorry about this complication..." or "I'm sorry for your loss."   Apology, on the other hand, includes an admission of fault:  "I'm sorry that I misread your x-ray."   The book recommends that medical providers always offer an "I'm sorry" as a means of showing empathy, diffusing anger, and preventing misunderstanding.   Apologies, on the other hand, should only be offered after investigation has indicated that a true medical error occurred.    Very interesting concepts.   

The book is available through Sorry Works! and major on-line retailers.   More information about the Sorry Works! program can be found on their website, too.


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These misleading lawyers have no credibility. This apology movement is a plaintiff stalking horse for easier discovery, at no cost, on a silver platter. The plaintiff is always a sleazeball money grubber. The plaintiff attorney is a lottery playing weak case filer. It is self-defeating madness to voluntarily assist in their discovery. These plaintiff and their lawyer can never get dissuaded from their greed for easy money.

If these lawyers were sincere, they would advocate the exclusion of all apology information and error investigation results. Let them stop misleading, support exclusion, then apologies make sense. They will never advocate that because they are misleading, rent seeking lawyers.

Posted by: Supremacy Claus | Mar 19, 2008 6:27:33 PM

Did you even read the authors' bios?

Finkelstein is a med mal defense lawyer.

So is Saxton.

The lead author worked for a major Illinois tort reform group and for the legislative republican caucus.

Not a plaintiffs' lawyer among them.

Posted by: Bill Childs | Mar 20, 2008 8:59:18 AM

Prof. Childs: I sure did. I do not distinguish between the defense and the plaintiff medmal bars. The defense bar depends for its livelihood on the viability of the plaintiff bar. If a doc fires a defense attorney, he can be replaced in minutes. If a plaintiff outfit is deterred, and driven out of that area, years of future work are erased for the defense attorney. They are often friends. After a case, they get together for drinks, and laugh at the stupidity of the public.

If asked to intimidate the other side, to make it unbearable to be them, the defense attorney always refuses. This refusal is despite the clear rules mandating reporting the unprofessional conduct of other lawyers. This is despite a fiduciary duty to advise the client of the recourse available in the filing of a misuse of a civil procedure, as evidenced by biased statements, and other utterances indicating improper motives. They will never demand discovery of the other lawyer's files for biased or improper utterances.

These are misleading Trojan Horse tactics by self-dealing defense lawyers.

I suggest all defendants hire their own attorney at their own expense. This bulldog is not to bite the plaintiff lawyer. It is to bite solely the insurance defense lawyer. The latter just laughs at the pleas of the defendant to file preliminary motions. He can only make money after going to trial, needlessly risking the future of the defendant. No. The personal attorney must relentlessly harass and threaten the defense attorney to do the job he has already sworn to do.

I suggest the Walmart policy of immediately firing any defense attorney whose preliminary motion fails. This precludes the conflict of interest of writing a weak motion, and getting rewarded with more legal fees, perhaps even ending up in the legal crap shoot of a trial.

I would go beyond the Walmart defense policy. I would seek to make all judges come to fear doctor defendants, by personal legal attacks and adverse publicity on the judge. These members of the lawyer hierarchy bear full responsibility for the preponderance of weak cases allowed to proceed. They are fully responsible for the medmal crisis, and for the entirety of defensive medicine costs, up to 10% of the health care budget. If a judge has the ordinary rate of 75% of jury verdicts favoring the doctor, the administrative judge should remove this lawyer paid off jurist. The campaign contributions of defense and plaintiff lawyers have the same goal, insure a high rate of trials to generate income for both side, one from every trial, the other from a trial lottery. These little caesars on the bench are fully responsible for the utter failure of every goal of torts. They should be removed immediately after a year's worth of trial outcomes.

The proponent of openness has to explain the contradiction in defense advice. Never speak to the press, but always speak to the future plaintiff. I always see crybaby, pseudo-victims on TV boohooing their weak plaintiff case. Why can't a defendant boohoo on TV if he can in person to the plaintiff? I do not understand that contradiction in lawyer advice.

Posted by: Supremacy Claus | Mar 20, 2008 6:29:22 PM

Prof. Childs: Today, as a patient, I have a positive reaction to an apology. If uncertain about filing a lawsuit, I may be swayed to not file against someone sincere, remorseful and likable.

If the advice to apologize becomes widespread, the patient now is uncertain. Is the apology sincere? Is it forced by a risk manager, and a ruse to avoid a lawsuit? The effect of the spread of this advice may be paradoxical, to cancel the human relationship consideration.

I am paranoid, but not enough to believe the defense bar intends that effect and is that Machiavelian.

The truest test of sincerity on the part of the lawyer profession would be a statute to exclude all pre-litigation investigation findings that are published. The publication helps providers around the world avoid the same harm. This motivates providers to rush to find every factor that clustered to cause the harm, and to remedy it.

Now, one in 50 harms results in a lawsuit. The second guessing is by an attorney who does not know medicine. Under a continuous improvement regime, every harm shuts down the provider, as a Toyota assembly line shuts down until the part fits. Every one of the twelve factors causing the harm has to be fixed before reopening. No one escapes nit picking scrutiny, everywhere at work, all the time. The second guessing is by insider experts who know every corner being cut.

Doctors loudly boo me when I suggest they will miss their medmal crisis if the hell of Deming replaces the heaven of torts.

Posted by: Supremacy Claus | Mar 21, 2008 6:03:15 AM

Not my book, not even my post, not an issue I'm thinking about. Your original post referred to plaintiffs and plaintiffs' lawyers by my count five times, suggesting to any reader that the book is in fact written for plaintiffs by plaintiffs. Your later post suggesting that you don't distinguish between them isn't consistent in my view with your earlier post, but that was and is the only point I'm interested in.

Posted by: Bill Childs | Mar 21, 2008 8:10:40 AM

Prof. Childs: Stop parsing. Reach for substance. Toxic parsing is unseemly lawyer gotcha. It is a form of bad faith, and evasion. It has no validity outside the narrow confines of a Scholasticism influenced profession. You are not a monk. You are not a horrible French functionary oppressing England in 1250 AD. They taught the lawyer toxic parsing, hyper-proceduralism, and inscrutable, impenetrable language.

Toxic parsing of Bill Clinton's impeachment deposition is a factor in 9/11, a factor covered up by the self-dealing lawyers on the 9/11 Commission. Trial lawyer toxic parsing cost the nation $7 trillion in 2001.

The defense bar promotion of apologies for bad outcome serves the goals of the plaintiff bar. I disclose that I read the backgrounds of the authors after posting. Their backgrounds change nothing about the truth of collusion between the two sides. You got me.

However, nothing changes the contradiction between the advice to not discuss the case with anyone and then to openly apologize to a potential legal adversary. I would like to see that contradiction addressed by these disloyal defense lawyers.

Posted by: Supremacy Claus | Mar 21, 2008 5:01:25 PM

Prof. Childs: I would like to see the raw data, instead of this interview.

What is the effect of apology on the rate of valid claims? In general, three fourths of claims are weak, and fail at every stage of litigation.

This expert reports an increase in claims at the Kentucky VA system, but a decrease in payouts. The VA also paid people. I would like to see data on the effect of apology without pay.

That result enhances the income and reputation of the defense bar. The plaintiff side makes money (it increases claims). It helps the VA save money.

Who is getting screwed? The defendant doctor. He gets reported to the National Practitioner Database, has insurance get more expensive or get dropped.

Forget the facts. Let's say, most cases are weak. Let's say, apologies decrease their number and do not increase the income of the defense bar. They just work for both sides. Then, most claim are weak and retributive, not for compensation or deterrence. A mere apology makes them go away.

These effects imply, the defense bar has a professional duty to elicit the motive for all claims in depositions of both plaintiff and of plaintiff attorney. If an improper motive is found, the defense attorney has a fiduciary duty to propose a counter-suit. They have a professional responsibility duty to file ethics charges against the plaintiff lawyer, and against the judge allowing the case to proceed. They have a duty to demand the jury find for the defendant, no matter the facts, nor the fulfilling of all legal elements. This is a per se requirement given the illegality of the claim.

Posted by: Supremacy Claus | Mar 22, 2008 6:37:49 AM

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