Steven I. Kern, JD at Medical Economics says think twice before telling a patient “I’m sorry”:
Physicians who admit errors may face the opprobrium of their peers, the anger and disappointment of their patients (and their patients’ families), legal entanglement, and economic loss. Unlike in church, confession doesn’t necessarily lead to absolution in the world of medicine.
While saying I’m sorry may well be morally correct and soothing to the psyche, our society, unfortunately, provides little reward for contrition. Indeed, the high road often comes with many sharp turns and few guardrails.
For example, many malpractice insurance policies include a clause that allows the carrier to deny coverage if you do anything that adversely affects its ability to provide a defense. As a result, saying I’m sorry can lead to the loss of malpractice insurance coverage. Moreover, from a legal perspective, saying I’m sorry is an admission. An admission is an exception to the hearsay rule, so anyone who hears it can be called to testify against you, should legal action ensue.
I’ve been more than a little dubious about the medical apology movement that has developed in recent years. We live in a culture of blame and in perhaps the most litigious society the human race has ever produced. That very human need for admitting that one has made a mistake and seeking the forgiveness of the person one has wronged is not especially compatible with America’s legal system.
As I’ve mentioned time and again, Loser Pays would eliminate most of the problem here as it has in the rest of the civilized world. But that would mean recognizing “the principle that the losing side in litigation should contribute toward ‘making whole’ its prevailing opponent.” It would mean that the plaintiff who initiates a frivolous lawsuit would be at risk of having to pay his opponent’s legal bills and thereby effectively acknowledge that he, the plaintiff, was in the wrong. It would also mean that America would need far fewer attorneys.
Unfortunately, America decided long ago that the possibility of jackpot justice was worth the price of living in a legal minefield.