A Patients Understanding of the Medical Apology from Behind the Shield

Yesterday we discussed three recent incidents where an apology was necessary to correct an error of judgment. Those incidents involved Kanye West, Serena Williams and Congressman Joe Wilson. Let’s now look at the apology following a medical mistake that injures or kills the patient. I’m going to start off by making a rhetorical statement.

Who in the medical community cares about its good character?

In the practice of medicine, doctors lament that if after making a mistake they apologize the patient can later use those words of apology against the doctor in a lawsuit. Yeah they probably can just like any person can, like when the other driver apologizes at the scene of an accident. Or the same as when the lawyers make mistakes, look their clients in the eye, apologize and then pay for the mistake. If you care at all about your reputation you should apologize. That’s what a good conscience dictates.

PRE-APOLOGY SHIELD LEGAL ADVICE FROM THE DEFENSE

Before there was an apology shield there was honesty. After medical mistakes were made, the defense lawyers would advise the doctors never to apologize; that way there is nothing to use against them later on should a lawsuit be filed. Some doctors obeyed the lawyers and played defensive medicine and those doctors didn't apologize. Others with a troubled conscience still apologized, and low and behold something incredible was discovered. When doctor’s genuinely apologized many patients forgave the mistake and didn’t file a lawsuit.

Patient's and lawyers, yes even lawyers believe doctors are human and capable of making an honest mistake. This blog post isn't really about the good doctors; it's about the dishonest ones, the ones who wanted this apology shield.

After it was discovered that a genuine apology paid off Big Insurance and Big Legal decided to get greedy and began to shout, "Show me the money!". Big Insurance and Big Legal Defense stepped in, wined and dined state legislators who then across the country passed laws saying if the doctors apologize the patients can’t admit the words into evidence in a later trial. That way all doctors, even the insincere ones, the ones who don’t think they did anything wrong could join the ones that are sincere with a fake-out apology. Thus, with the passage of a law, the apology shield, apology exclusion and fake-out apology were born. And they think this is good. It couldn't be farther from the truth. What they were hoping to do was to create real value in this opportunity with 100% fake apologies resulting in fewer lawsuits. They will in the end get exactly the opposite. But the damage that is being done goes well beyond one small law suit about patient care.

The thing about God is that God didn’t just give the doctors and defense lawyers a brain; patients too have brains and believe it or not they use them. And that’s where the apology shield fails. People aren’t stupid. God created the conscience for a reason and it extracts a genuine cost; with God nothing is for free. God introduced that thing called humility into the whole concept of apologizing. Do you really think just saying the words is enough to generate forgiveness? It isn’t and we’ll all soon be reminded why that is.

ARE POLITICIANS REALLY THIS VALUELESS AND STUPID?

With the enactment of the apology shield state legislatures have thrown honesty and sincerity out the window right along with good character. Have they forgotten how good character is built? Apparently so, because “I’m Sorry Legislation” has been enacted or is pending in Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois (pending), Louisiana, Hawaii, Maine, Maryland, Massachusetts, Missouri, Michigan, Montana, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas (Texas! I would have never guessed!), Vermont, Virginia, Washington, West Virginia and Wyoming.

Apology shields don’t just invite insincerity, they create it. Patients can no longer trust any doctor to be honest and sincere. They will now assume all apologies are of the insincere type. That’s what is behind, in front of and all over the fake apology law. The idea that apologies don’t have to be sincere is making even the sincerely apologetic doctors suspect. The patients know what is gonig on; the lawyers tell the doctor to apologize and we all know it. The doctor isn’t apologizing because he/she cares, it’s because it’s in his/her financial interest. The patient whose healthy kidney was removed doesn’t want nor does that patient need insincerity. The parent whose child was killed because of administration of the wrong dosed drug gets no relief from a feigned “I’m so sorry”. Behind the shallow words we hear you laughing all the way to the bank and an early retirement. Your biggest mistake was throwing the baby out with the bathwater.

The apology shield like many tort law reforms is more of the new math: our professional mistake that screws up your life minus responsibility equals your problem.

WILL THE FAKE APOLOGY PAY OFF

Absolutely not, in fact the fake apology, the apology shield and all the insincerity it creates will have the opposite effect. Patients will no longer believe any apology, not even the sincere ones. They will hear those shallow words for what they really are, will be offended, become insulted and everyone of them will seek out a lawyer to sue. And who can blame them? Is this the example we hope to set for our children and our children's children? 

As my mother is fond of asking, “What are you stupid?”

Follow the Apology Series here or at the Des Moines InjuryBoard:

 Why Should I Apologize?

Steve Lombardi | September 22, 2009 9:42 AM