Wednesday, October 7, 2009

The Growing Threat to Trial Lawyers: Apology

An interesting article in the Wall Street Journal recently highlights one of the most interesting phenomena occurring in the legal world. It’s the phenomenal power of apology to avoid litigation, manage legal crises, and be the most powerful crisis management tool.

The article’s title sums it up, “Hospitals Own Up to Errors, Some Find That Confronting Mistakes Reduces Litigation and Future Mishaps.”

Hospitals, especially, and other health care facilities are learning that owning up to their medical mistakes or the perception of poor performance promptly can significantly reduce litigation and, at the same time, prevent future similar mishaps, or perceptions.

The “I’m Sorry” movement in America is long, strong, and growing. Just visit, a Web site devoted to prompt, aggressive, and candid disclosure of medical mistakes and errors. In the Journal article, Dr. Timothy McDonald, a pediatric anesthesiologist and chief safety officer at the University of Illinois Medical Center said: “Since the hospital undertook much more aggressive patient/staff communication, and in 2006, established a policy of fully disclosing medical errors, apologizing when they occurred, and swiftly offering a financial settlement, law suits against the Center are down 40 percent compared to the period between 1999 and 2004.” “Yet,” he said, “the number of procedures increased 23 percent.”

Dr. McDonald said, “While we can’t say for certain that the disclosure program was responsible for the decreases, we can certainly say that it has not caused an increase in law suits or payouts.” I’ve witnessed similar experiences in my health care practice all across America.

The lesson is that the faster we sincerely apologize for mistakes of any kind, while there may need to be claims filed and settlements made, the threat of aggressive, costly, time consuming litigation is significantly reduced or goes away very rapidly.

Many in the legal profession remain against aggressive apologizing, claiming that it will increase lawsuits and payouts. But years of evidence is accumulating that prompt acknowledgement coupled with clear apologies and sensible offers of settlement can eliminate the litigation phase of legal interaction between victim and perpetrator, in favor of an attitude of settlement.

Yes, apologies are legal admissions and they come with a price, but they also have an extraordinary benefit — significantly limiting or eliminating litigation.

My advice to attorneys? Begin learning how to aggressively, constructively, and promptly settle matters rather than rattle the saber, slap victims around, or take an aggressive “blame the victim” posture. Increasingly, my litigation practice focuses on prompt settlements (even within 24 hours) and helping clients manage the victim dimension over the long term.

In America today, fewer than 1 in 100 civil or criminal cases filed ever get to trial. Even when litigation is threatened, the reality is that the vast majority of cases are going to be settled, mediated, negotiated, dismissed, or dropped.

In my experience in these matters for nearly 30 years, the smallest check the perpetrator is ever going to write is the check that is written today. Thirty-three states have passed laws preventing juries from considering voluntary apologies at car accident scenes in awarding damages. Twenty-one states have passed laws providing medical workers with similar protection should their case get to trial.

Will the pushback from attorneys continue? Yes it will. As one general counsel told me recently, “We’re not the empathy department of this company.” Watch for my blog on lawyer empathy coming very soon.

The future for litigation is clear and the trend is down. It all begins with those two little words: “I’m sorry . . . and we’ll make it right.” Attention attorneys: Start practicing these two little words today.

If you’re interested in starting your empathy lessons early, send me an E-mail at requesting: Empathy Lesson #1, Managing the Victim Dimension.

Thursday, October 1, 2009

For Crying Out Loud

When it comes to errors, goofiness, and the insensitivity of top managers, there must be a part of the business school campus that is intentionally avoided—the school of sensible answers and actions.

Case and point: A health care client recently discovered the presence of a mold in one of its buildings, a species that commonly occurs during construction. In another part of the same building, there have been suspicious deaths, although all of the patients involved were already extremely ill. The patients that expired were cared for by two different physicians, both of whom have indicated that the mold may be to blame.

The crucial issue for management seemed to be, rather than dealing with the mold issue directly, was to spend some time (several hours) discussing and debating what their disclosure obligations were. Here are the questions under discussion:

  1. How much of this do we have to disclose and to whom?
  2. When do we have to disclose it?
  3. What should be disclosed first and what can wait?
  4. If new facts arise, when do we disclose this newly found information?
  5. Are we responsible for balanced disclosure?
  6. What are the limits of disclosure we will tolerate before we close this door?
  7. Once we start this process, how long do we have to talk about it and keep providing additional information?
  8. Won’t too much disclosure discourage and frighten patients and their relatives unnecessarily?
  9. Who should make the disclosures? Should this individual be an attorney?
  10. What do we not have to tell anyone?
  11. Is it possible that some of the information comes under HIPAA regulations and therefore must be kept confidential?
  12. How much of this disclosure is a business decision and how much is a moral decision?
  13. Should businesses, even health care organizations, be making moral decisions?

The disclosure dilemma occurs frequently in business life. And the habit of over analyzing seemingly simple situations by management is also too common.

What’s your opinion? What should the rules of disclosure be and under what circumstances?

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