As a parent of three girls, I often have to get involved when voices get raised and feelings get hurt. When I do get involved, I try to get an explanation of what went wrong, I try to sort out how feelings got hurt, and I try to get an apology from the offending girl – which is more often than not, each of them. It is one of the central roles of parenting. Every time I have to get involved, though, as a parent I am amazed at how difficult it is to get that apology. As a lawyer, though, maybe I shouldn’t be.
Fear of litigation has made a three-word apology – “I am sorry” – the worst possible thing you can say. My insurance company has directed me never to admit fault for an accident at the scene. Even if I was texting while eating a sandwich and watching a movie, don’t admit it was my fault. Let the insurance company have a chance to investigate and find something wrong with somebody else. Sure, the investigation and lawsuit that follows may cost them some money and will take two years and I may be found to be at fault by a judge or jury, but at least I did not admit it was my fault.
But, what would happen if I did apologize at the scene? Would that change anything?
Pennsylvania is currently considering an Apology Law – a law that would make an admission of guilt by a physician inadmissible in any subsequent litigation. If enacted, if your doctor made a mistake, he or she could do what should come natural for a human being, and apologize to you directly – something that they otherwise may not do for fear that it would be used against them in litigation. It seems crazy that we need a law to allow doctors to apologize, but that is where we are. With at least 35 states having these laws in place, studies have emerged showing that, amazingly, these laws actually help. Where the laws have been enacted, a physician’s apology has expedited the settlement process and decreased the value of settlements. See an October 2010 study from Cornell University authored by Benjamin Ho and Elaine Liu for more information.
An apology did not cure the physical harm, nor did it stop claims from being made – words can only do so much. But if we can learn anything from studies like this, it’s that even in litigation there is a human element, and sometimes saying three little words, “I am sorry,” can do a whole lot of good.