The value of saying sorry

By Legal Eagle

Saying sorry is not something that happens very often in legal disputes. When I was a young teenager, my sister was hit by a car in front of me, and had to spend a few months in hospital. Fortunately, she made a full and total recovery. I remember that one of my primary grievances at the time was that the driver didn’t even say sorry, send my sister a bunch of flowers, or even (as far as I’m aware) check up how she was doing after the accident. I was outraged.

My parents explained that a family friend had been involved in a collision between the car she was driving and a motorcycle some years before. Being a naturally good person (and a good Christian to boot), she sent the motorcyclist a bunch of get well flowers and a card in hospital. These pieces of evidence were produced in court as evidence of her “guilt” when the motorcyclist brought a claim for damages against her. Accordingly, my parents suggested, the driver of the car probably was sorry, but he didn’t dare contact us for fear of legal action. “But we don’t want to sue him!” I exclaimed. “All I want is for him to say sorry, and I would feel so much better if he did.”

I wonder how many litigants feel like the teenage me? To begin with, all you want is some kind of recognition that wrong was done. But then (I imagine) the litigation proceeds, no one admits anything (to the contrary, all is denied and there is stonewalling at every pass). The plaintiff’s quest becomes a quest for vengeance (the proverbial “pound of flesh”).

Thus, I was very interested to read that a change in policy by some hospitals is producing a massive reduction in medical malpractice suits in the US. The New York Times article explains:

In 40 years as a highly regarded cancer surgeon, Dr. Tapas K. Das Gupta had never made a mistake like this.

As with any doctor, there had been occasional errors in diagnosis or judgment. But never, he said, had he opened up a patient and removed the wrong sliver of tissue, in this case a segment of the eighth rib instead of the ninth.

Once an X-ray provided proof in black and white, Dr. Das Gupta, the 74-year-old chairman of surgical oncology at the University of Illinois Medical Center at Chicago, did something that normally would make hospital lawyers cringe: he acknowledged his mistake to his patient’s face, and told her he was deeply sorry.

“After all these years, I cannot give you any excuse whatsoever,” Dr. Das Gupta, now 76, said he told the woman and her husband. “It is just one of those things that occurred. I have to some extent harmed you.”

For decades, malpractice lawyers and insurers have counseled doctors and hospitals to “deny and defend.” Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.

In Dr. Das Gupta’s case in 2006, the patient retained a lawyer but decided not to sue, and, after a brief negotiation, accepted $74,000 from the hospital, said her lawyer, David J. Pritchard.

“She told me that the doctor was completely candid, completely honest, and so frank that she and her husband — usually the husband wants to pound the guy — that all the anger was gone,” Mr. Pritchard said. “His apology helped get the case settled for a lower amount of money.”

The patient, a young nurse, declined to be interviewed.

Mr. Pritchard said his client netted about $40,000 after paying medical bills and legal expenses. He said she had the rib removed at another hospital and learned it was not cancerous. “You have no idea what a relief that was,” Dr. Das Gupta said.

Some advocates argue that the new disclosure policies may reduce legal claims but bring a greater measure of equity by offering reasonable compensation to every injured patient.

As the article explains, usually all patients want is an apology, some pecuniary acknowledgement of inconvenience, pain and extra medical costs and an assurance that the mistake won’t happen again.

One of the other upsides of the change in policy was that instead of shoving mistakes under the carpet, hospitals used mistakes as a learning opportunity or as a pointer for how procedures could be improved. And thus, the acknowledgement of the mistake also helps to ensure that similar mistakes won’t happen again in future.

I have explained before that a friend and I had theorised many years ago that the response to wrongdoing falls into two categories, and there are two categories of people reflecting this: justifiers and deniers. Justifiers attempt to explain away their wrongdoing (I’m a justifier). Deniers just flat out deny the wrongdoing, no matter how unconvincing this may be (my sister is a denier). The default position of the lawyer when allegations are brought against one’s client is the denial mode, backed up, if need be, by the justifying mode.

If someone truly has done wrong, and there’s no excuse or explanation, both modes of behaviour are unlikely to assuage the feelings of the wronged person. Either mode gets the wronged person’s back up – the denier tries to pretend it never happened at all, whereas the justifier attempts to “logic” the wrongdoing away to nothing so that it seems that the conduct wasn’t actually wrong in the first place. I think it must be against human nature to give a frank apology assuming full responsibility when one does wrong (yes, I’m a terrible cynic). However, this makes it particularly impressive when an individual is able to look the wronged person in the eye and apologise honestly. (Aside: Well and bravely done, Dr Das Gupta).

Perhaps it’s something that should be encouraged more in litigation. I do think that people (especially lawyers, whose instincts have been trained in the very opposite direction) would need training to get over their natural “justifier” or “denier” tendencies. I suspect such behaviour is probably against normal human intuition: but paradoxically, I think that in many cases it would lead to a much better outcome for all than a litigious battle.

16 Comments

  1. Posted May 20, 2008 at 12:03 am | Permalink

    I’m curious if there are any other categories – other than ‘deniers’ and ‘justifiers’. Maybe you could add ‘avoiders’, although as someone pointed out on the last thread on this topic, it could be that avoiders are just a special subcategory of justifiers. I’m a justifier – always trying to argue my point (very lawyerly, I suppose).

    The issue gets complex when the ‘wrong’ to be apologised for is not considered a ‘wrong’ widely throughout a society. Running a child down in your car – however accidental – is clearly wrong, but stealing to feed your hungry children probably isn’t – and no-one should expect you to apologise.

    Then there’s something like the Chaser APEC stunt, which while also ‘wrong’ is wrong in such a way that it points up a larger problem (poor security, pointless bureaucracy) at high levels of government.

  2. TerjeP (say tay-a)
    Posted May 20, 2008 at 6:32 am | Permalink

    I like to think I admit my mistakes but if I was to choose between denier and justifier I’m certainly more the later. Why lie when you can use logic? Both can be a form of folly however.

    Lawyers know how to litigate and if the only tool in your toolbox is a hammer then every problem looks like a nail. I had a law firm as a customer years ago and about a week after we started looking after their computers the disk array controller in their main server failed, which took the whole business offline. I went to site to fix it and on arrival started doing my thing. Within minutes I had a short aggressive man (who I knew by name but had no previous dealings with) swearing at high volume within about 10cm of my face and saying “Who the fock do I sue for this”. I told him to go away and figure that out because I was busy doing important things. It turns out the server had never been paid for so the supplier was somewhat reluctant to offer warranty spares without first extracting their slice of financial justice. In my moments of prejudice I still regard lawyers as dysfunctional children. Present company excluded of course. 😉

    I find it ironic that in civil matters lawyers say don’t apologise, whilst in criminal matters judges will punish harder if there is no remorse.

    Sorry to waffle. Good article. You seem very intrespective these days Helen. It seems as though you’re doing some personal discovery.

  3. TerjeP (say tay-a)
    Posted May 20, 2008 at 6:36 am | Permalink

    Perhaps I mean introspective.

  4. Posted May 20, 2008 at 6:43 am | Permalink

    This is one of LE’s pieces, Terje. There’s one of mine at the top of the blog 😉

  5. John Greenfield
    Posted May 20, 2008 at 8:14 am | Permalink

    OK, after almost universal derision for Big Brother here, I’m putting my head on the block to invoke Desperate Housewives.

    Now, SL you could not have watched it last night, as you were tucking into quail and sherry in the middle common room exchanging quips in Byzantine Greek and Old Persian. 🙂

    But seriously. Last night on DH, Orson (Bree’s husband) admitted to Mike (Susan’s husband) that it was he who ran Mike over and drove off. Susan went ballistic, but after some meditation, Mike decided – sincerely – to forgive Orson. He tried to persuade Susan to also, but conceded he would understand if she could not. What came through in their tender exchange was the centrality of sincerity by both parties if an apology is to be useful.

    Susan – usually a goody-goody – went across the road to have an intimate girly chat with Bree who was digging weeds in the front garden – as is her wont. After Susan explained her decision to forgive Orson, she asked Bree for patience as the healing process would nevertheless be painful.

    Bree thanked Susan but demurred “you might be able to forgive Orson but I never will” pan to shot of Orson leaving with luggage and driving off out of Farirview.

    The whole scenarion was quite powerful and very successful in its evocation of the psychological threads necessary for a meaningful apology.

    A sterling piece of television that hopefully will be matched by tonight’s episode of “Ladette to Lady!”

  6. Posted May 20, 2008 at 8:52 am | Permalink

    Fortunately, I don’t own a television.

    I’m quite happy to watch the FA Cup Final in the JCR, with a bunch of other people. Having telly in your own home is very isolating.

  7. Posted May 20, 2008 at 9:30 am | Permalink

    There may be another factor if people are truthful when they say they sue not so much for their own benefit, but to minimize the chance that the same misfortune will happen to someone else.

  8. Michael Dunne
    Posted May 20, 2008 at 12:53 pm | Permalink

    “deny or justify” is for Judge Judy and is not a good lawyers default position. Just like to point out that it’s “make no admissions”.

  9. Posted May 20, 2008 at 3:51 pm | Permalink

    “usually all people want is an apology, some pecuniary acknowledgement of inconvenience, pain and extra medical costs and an assurance that the mistake won’t happen again.”

    I was struck by how closely this matches what I hear so often from people from or affected by the Stolen Generations (tho not necessarily in regard to medical costs obviously).

    As I understand it, the whole notion of the apology that came out of the Bringing Them Home report was based on established international principles (from memory called the Van Boven principles?) regarding compensation.

    I make the point NOT to try to turn the thread into one about the Stolen Generations, but rather to wonder/ask whether the notion of an apology is not really that foreign a thing from a legal perspective.

    On a slightly different tack, I think one of the other reasons why apologies are not always so forthcoming in some circumstances is not so much the possible legal consequences as the consequences in the media (aka the ‘court of public opinion’).

    For example, I think one of the reasons why politicians are sometimes so reluctant to specifically apologise (and I’m NOT talking about the Stolen Generations) is because from a media perspective, saying sorry can be equivalent to an admission of guilt (which is part of the reason they sometimes ask the question about it so stridently).

  10. John Greenfield
    Posted May 21, 2008 at 11:34 am | Permalink

    Andrew

    I have to disagree with you. The whole psychopathology surrounding a government apology to the so-called “Stolen Generations” was about a whole lot of other politically motivated agendas. Agendas overwhelmingly of people not “stolen.”

  11. John Greenfield
    Posted May 21, 2008 at 12:10 pm | Permalink

    Legal Eagle

    I think I would have responded to your childhood pain the same way your parents did. A late middle-aged extended family member of mine (let’s calle her my “aunt”) fell in a supermarket. She fractured her ankle, but otherwise her injuries were minor. Next to where she fell there was an unattended mop and bucket, which my aunt’s husband – my uncle – photographed with his mobile phone. Both my aunt and uncle admit the floor was not wet, and indeed the supermarket claimed that the employee had not begun to mop when she fell.

    Anyways, as time passed, the psychological injury from the fall turned out to be quite considerable and my aunt lost a lot of confidence and would rarely go to public places. After a few communications with the supermarket a small amount of “compensation” was paid for the ankle, but they steadfastly rejected any fault or ongoing liability, but “apologised” for any loss she may be feeling,

    My uncle wanted to sue big time as he was convinced they could “clean up financially.” They were not doing very well financially, and my uncle had already made big plans for the $30,000 – at least – he was convinced “they” could “get.”

    My aunt found his opportunistic avarice – and attendant willingness to compromise any principle or ethical position – to be distasteful and even more upsetting that the injury itself. In her ethical space, her fall and subsequent loss of confidence reflected more her own negligence and a pre-existing tendency – as a woman extremely anxious about her pending old age – to be more at fault.

    In her own inimitable locutions, “darl, sometimes in life shit just happens.”

    I found myself wanting to agree with my aunt, but even more I wanted them to have an extra $30,000. I reasoned that commercial enterprises had become so amoral and clinical in their dealings with ordinary people that “screw them, that can work both ways.”

    The form-letter “apology” for my aunt’s minor injuries only seemed to compound the supermarket’s ruthlessness. If it happened again, I would arrange ‘QCs at ten paces’ for my aunt and tell the supermarket to stick its apology where the sun don’t shine.

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