TThhee FFoorruumm:: AA TTeennnneesssseeee SSttuuddeenntt LLeeggaall JJoouurrnnaall Volume 3 Issue 1 Article 4 2016 II''mm SSoorrrryy II''mm SSccaarreedd ooff LLiittiiggaattiioonn:: EEvvaalluuaattiinngg tthhee EEffffeeccttiivveenneessss ooff AAppoollooggyy LLaawwss Erika R. Davis University of Tennessee - Knoxville Follow this and additional works at: https://trace.tennessee.edu/forum Part of the Law Commons RReeccoommmmeennddeedd CCiittaattiioonn Davis, Erika R. (2016) "I'm Sorry I'm Scared of Litigation: Evaluating the Effectiveness of Apology Laws," The Forum: A Tennessee Student Legal Journal: Vol. 3 : Iss. 1 , Article 4. Available at: https://trace.tennessee.edu/forum/vol3/iss1/4 This Article is brought to you for free and open access by Volunteer, Open Access, Library Journals (VOL Journals), published in partnership with The University of Tennessee (UT) University Libraries. This article has been accepted for inclusion in The Forum: A Tennessee Student Legal Journal by an authorized editor. For more information, please visit https://trace.tennessee.edu/forum. I’M SORRY I’M SCARED OF LITIGATION: EVALUATING THE EFFECTIVENESS OF APOLOGY LAWS ERIKA R. DAVIS* …………………………………………………………………… “[A]n apology is remarkably complex, yet simple and straightforward at the same time.” - Aaron Lazare, “On Apology” ……………………………………………………………………… I. INTRODUCTION ............................................................................... 71 II. APOLOGIES AND THE MEDICAL ENVIRONMENT ............................. 73 A. WHAT IS AN APOLOGY? .......................................................... 73 B. COMPONENTS OF AN EFFECTIVE APOLOGY ............................. 74 C. APOLOGIES WITHIN THE MEDICAL ENVIRONMENT ................. 77 III. RESPONSES TO APOLOGETIC BARRIERS IN THE MEDICAL ENVIRONMENT ................................................................................... 79 A. APOLOGY LAWS ..................................................................... 80 I. HISTORY AND PURPOSE ........................................................... 83 II. PARTIAL APOLOGY LAWS ...................................................... 85 III. FULL APOLOGY LAWS .......................................................... 86 IV. EVALUATION ........................................................................ 88 B. DISCLOSURE: PROGRAMS, LAWS, AND LEGISLATION.............. 90 I. DISCLOSURE PROGRAMS ......................................................... 90 II. MANDATORY DISCLOSURE LAWS .......................................... 94 III. FEDERAL DISCLOSURE LEGISLATION .................................... 95 IV. PROPOSAL .................................................................................... 96 A. SHIFT FROM APOLOGY LAWS TO DISCLOSURE PROGRAMS ..... 96 B. PROTECT FULL APOLOGIES WITH THE FEDERAL RULES OF EVIDENCE ...................................................................................... 98 V. CONCLUSION ................................................................................. 99 I. INTRODUCTION As young children we are taught the golden rule – to treat others how we would like to be treated.1 When that does not happen we are told to apologize.2 It is irrelevant whether our wrongful acts or words were done accidentally or purposefully.3 What matters is that we recognize and acknowledge the aggrieved individual’s feelings, express our sympathy, and sincerely apologize. These life lessons we learned in kindergarten are equally important for us to carry with us as adults. Unlike what we may want to believe, adults are not very different from young children in this respect. We like to think that, as adults, we are better communicators than children. The truth is, adults can conjure up just as many excuses not to apologize – no one is around to tell them to apologize. Adults simply have their conscience, which is influenced by what is put into that conscience, to nudge them in the right direction. Long gone are the days when we were yelled at by our parents for giving a backhanded apology to our sibling – which was sometimes worse than giving no apology at all. However, we still like to pass blame, make excuses, and avoid any sense of vulnerability when a mistake occurs. It can seem easier to hide behind a veil of justifications, excuses, and fears. This veil we hide behind to avoid apologizing is also used by physicians in the medical environment. Although physicians may feel the need to apologize after an adverse medical event, physicians’ gut instincts to apologize are often hampered by the fear that their statements will be used against them in court.4 This fear is further * J.D. Candidate, The University of Tennessee College of Law, Concentration in Advocacy and Dispute Resolution (May 2016); B.A. in German and Political Science, The University of Michigan (2013). 1 See Matthew 7:12. See also Luke 6:31. 2 See Nancy L. Zisk, A Physician’s Apology: An Argument against Statutory Protection, 18 RICH. J.L. & PUB. INT. 69, 370 (2015). 3 Id. 4 See Nicole Saitta & Samuel D. Hodge, Jr., Efficacy of a Physician’s Words of Empathy: An Overview of State Apology Laws, 112 J. AM. OSTEOPATHIC ASS’N, 302, 302 (2012); Robert B. Gibson & Laura A. Del Vecchio, Does Sorry Work? Effects of “Full Disclosure” on Litigation, 47 D.R.I. FOR DEF., 41, 42 (2006). solidified when their attorneys advise them to be careful to not admit fault or liability.5 This assumingly well-thought-out strategy to remain silent actually creates an unexpected paradox:6 refusing to apologize can precipitate litigation to an even greater extent.7 Consequently, this lack of apology can dilute the doctor-patient relationship, hinder patient safety, and increase litigation.8 To combat the apologetic barriers in the medical community, states have enacted apology and disclosure laws. Institutions and some states have implemented disclosure programs, and the federal government has attempted to enact disclosure legislation; all with the hope of encouraging apologies by physicians to patients following an adverse medical event.9 This essay will explore these proactive responses to combat the apologetic barriers in the medical community by analyzing the components of an effective apology, evaluating the effectiveness of current state apology laws and like- minded programs, and proposing ways to better facilitate doctor- patient communication, improve patient safety, and reduce litigation. 5 See Benjamin Ho & Elaine Liu, Does Sorry Work? The Impact of Apology Laws on Malpractice 1, 3-4 (2011), http://irving.vassar.edu/faculty/bh/Ho- Liu-Apologies-and-Malpractice-nov15.pdf; Saitta & Hodge, Jr., supra note 4, at 304. 6 See Saitta & Hodge, Jr., supra note 4, at 303. 7 Anna C. Mastroianni, Michelle M. Mello, Shannon Sommer, Mary Hardy & Thomas H. Gallagher, The Flaws In State ‘Apology’ and ‘Disclosure’ Laws Dilute Their Intended Impact On Malpractice Suits 29 HEALTH AFF. 1611, 1611 (2010). 8 See Sigall K. Bell, Peter B. Smulowitz, Alan C. Woodward, Michelle M. Mello, Anjali Mitter Duva, Richard C. Boothman & Kenneth Sands, Disclosure, Apology, and Offer Programs: Stakeholders’ Views of Barriers to and Strategies for Broad Implementation, 90 THE MILBANK Q. 682, 684 (2012); Richard Boothman & Margo M. Hoyler, The University of Michigan’s Early Disclosure and Offer Program, BULL. AM. C. SURGEONS, (2013), http://bulletin.facs.org/2013/03/michigans-early-disclosure/; Ho & Liu, supra note 4 at 4; Mastroianni, Mello, Sommer, Hardy & Gallagher, supra note 6, at 1611; Barbara Phillips-Bute, Transparency and Disclosure of Medical Errors: It’s the Right Thing to Do, So Why the Reluctance?, 35 CAMPBELL L. REV. 333, 336 (2013); Zisk, supra note 2, at 386. 9 Gibson & Del Vecchio, supra note 4, at 2-10. II. APOLOGIES AND THE MEDICAL ENVIRONMENT The problem with apologies by physicians in the medical environment following adverse medical events is that the apologies are either non-existent or ineffective.10 To evaluate the laws and programs that have been enacted to encourage effective apologies, we must first understand what an effective apology is, and why it matters in the medical community. “[A]n apology is remarkably complex, yet simple and straightforward at the same time.”11 Sincerity is key. Sincerity ignites the flame of truth in the ears of the aggrieved because the emotion behind the apology ties together the offender’s words with the aggrieved individual’s receptiveness to the apology. A. WHAT IS AN APOLOGY? To understand whether a sincere apology is being given, it is vital to understand the difference between an apology and an account. An account consists of explanations or excuses that invoke a sense of denial or mitigation on behalf of the offender.12 Derived from the Greek word “apologia,” the old English term ‘apology’ was defined to be a “justification, explanation, defense or excuse[,]” and no expression of regret was necessary.13 The older understanding of an apology would actually be classified as an account today. “[W]hen we resort to excuse, explanation, or justification, we necessarily attempt to distance ourselves from our actions . . . .”14 Quite often, individuals resort to classifying their statements as apologies when they are actually accounts. Breaking down this shield of excuses and entering into a state of vulnerability is what an apology is about.15 An apology is a statement by an offender to the offended saying the offender 10 See Phillips-Bute, supra note 8, at 336. 11 AARON LAZARE, ON APOLOGY 23 (Oxford University Press) (2004). 12 See NICHOLAS TAVUCHIS, MEA CULPA: A SOCIOLOGY OF APOLOGY AND RECONCILIATION 17-18 (Stanford University Press) 1991; See also ERVING GOFFMAN, RELATIONS IN PUBLIC: MICROSTUDIES OF THE PUBLIC ORDER 109-111 (Basic Books, Inc.) (1971). 13 LAZARE, supra note 11, at 24. 14 TAVUCHIS, supra note 12, at 19. 15 Id. at 18. acknowledges responsibility for an act and also expresses regret for that act to the offended individual.16 Unlike accounts, apologies create a state of vulnerability for the offender because, as an offender, you are not justifying or excusing your actions.17 This state of vulnerability, created by admitting fault, is what makes apologies so effective. B. COMPONENTS OF AN EFFECTIVE APOLOGY An effective apology should generally consist of four basic components: (1) acknowledging and accepting responsibility for the offense; (2) expressing remorse with forbearance, sincerity, and honesty; (3) explaining the understanding of the offense; and (4) willingness to make reparations.18 A more thought-provoking understanding of these components is seen through a self-focus and self-other focus lens.19 While self-focus reflects on how the offender gives an apology, the self-other focus reflects on how the offender should be cognizant of the offended individual’s feelings in order to give an effective apology.20 This deeper lens was developed from an Australian experiment of lay people, each of whom had been in an intimate relationship within which a wrong occurred, who then gave their interpretations of an effective apology.21 It was found that effective apologies consist of at least one, if not all, of the following three components: (1) affirmation; (2) affect; and (3) action.22 Within these components, “self” and “self-other” sub-components were found to comprise an effective apology (See Figure 1).23 Although all three components are unnecessary to create an effective apology, all three may be necessary when the perceived wrongful conduct is serious.24 To better understand these components, the following statement contains all components of an effective apology: 16 See LAZARE, supra note 11, at 23. See also TAVUCHIS, supra note 2, at 19. 17 See TAVUCHIS, supra note 12, at 18. 18 See LAZARE, supra note 11, at 25; LAZARE, supra note 11, at 107. 19 See Debra Slocum, Alfred Allan & Maria M. Allan, An Emerging Theory of Apology, 63 AUSTL. J. PSYCHOL. 83, 87 (2011). 20 Id. 21 Id. at 85. 22 Id. at 86. 23 Id. at 87. 24 Id. at 90. I am so sorry for breaking your vase. I feel terrible. I should have been more careful. I will replace it before we see each other again. Affirmation Affect Action Admission Regret Restitution Self Self-Other Acknowledgement Remorse Reparation Figure 1: Multi-Dimensional Components of an Authentic Apology adapted from Debra Slocum, Alfred Allan & Maria M. Allan, An Emerging Theory of Apology, 63 AUSTL. J. PSYCHOL., 83, 87 (2011). The first, and most essential, component of an effective apology is “affirmation” because the offender admits his/her wrongful behavior (self-focus) and acknowledges why the offended individual was hurt (self-other focus).25 As one of the Australian experiment’s participants stated, “[a] deep, deep sorry takes lots of words. It’s not just ‘I’m sorry.’ It’s lots of words.”26 It is not just about what the offender says, but how the offended individual perceives this and whether it adequately helps heal the emotional wounds. To do this, the offender must accurately understand the offense from the offended individual’s perspective.27 If the offender is not sure what was offensive, a conversation with the aggrieved individual should occur. In instances where the offender does not have an adequate understanding of the aggrieved individual’s perspective, the apology is often vague, which creates limited satisfaction when it is spoken to the aggrieved individual.28 Further, when admitting one’s wrongful behavior, an individual’s explanation should only be used to “demystify the offenses,” not excuse the offenses.29 To do otherwise would turn the apology into an account. Therefore, the self-other focus factor is invaluable in the affirmation characteristic of an apology. The second component of an effective apology is “affect,” which reflects the offender’s emotional response by containing an 25 Id. at 89; LAZARE, supra note 11, at 77. 26 See Slocum, Allan & Allan, supra note 19, at 86. 27 See LAZARE, supra note 11, at 77. 28 Id. at 86. 29 Id. at 120. expression of regret (self-focus) and an expression of remorse (self- other focus).30 Words can be empty; they can be an apology, but aren’t an apology. I thought I needed to hear the words, now I think I needed to see his sorrow and for him to have sorrow, to experience it for the right reasons; for him to truly understand the why of why I was hurt and hurting, and that he joined with me in my hurt, hurting for the same reasons . . . .31 This participant clearly recognized the need for remorse rather than mere regret. Remorse is professed with “a gnawing distress arising from a sense of guilt for past wrongs.”32 Feeling remorseful and expressing remorse is a part of showing that you accept responsibility. “Such humility contributes to restoring the dignity of the offended party.”33 The third component of an effective apology is “action,” which consists of restitution (self-focus) and reparation (self-other focus).34 This component is often necessary when words are not enough.35 Restitution alone – where the offender says he or she will not do the act again or is taking steps to prevent himself or herself from doing the act again – is often not enough.36 Restitution often makes the aggrieved individual feel like the offender is merely trying to quickly end the situation, win him/her over, or relieve guilt in a selfishly-motivated fashion.37 Reparation is needed to supplement restitution because reparation demonstrates that the apology is beyond cheap talk and is, instead, a grievance that the offender takes seriously and wishes to repair the wrong.38 30 Id. at 87. 31 Id. at 86. 32 MERRIAM-WEBSTER’S DICTIONARY (2015), http://www.merriam- webster.com/dictionary/remorse. 33 See LAZARE, supra note 11, at 116. 34 See Slocum, Allan & Allan, supra note 19, at 89. 35 See LAZARE, supra note 11, at 44. 36 Id. at 90. 37 Id. at 90. 38 Id. at 127. When the “affect” component is used absent the “admission” component, a partial apology is born.39 Partial apologies do not admit fault or responsibility. An example of this is: “I am sorry you are hurt” instead of “I am sorry I hurt you.” It has been found that partial apologies can be worse than not apologizing at all.40 Furthermore, partial apologies are not as effective as full apologies where fault or liability is admitted, especially in situations where the perceived wrong is serious.41 Overall, the most effective apology consists of “affirmation,” “affect,” and “action” components while balancing each components’ sub-categorical “self-focus” and “self-other focus” factors.42 Unfortunately, apologies within the medical environment are often partial apologies – full apologies with significant restrictions that cause the apologies to be less effective, or apologies that are entirely absent.43 C. APOLOGIES WITHIN THE MEDICAL ENVIRONMENT Apologies are especially important in the medical environment because they not only help give more understanding to patients and/or patients’ loved ones, but they can allow physicians to learn from their mistakes, create more closure between physicians and patients and/or patients’ loved ones following an unexpected adverse medical event, and also reduce litigation.44 Despite these 39 See Jennifer K. Robbennolt, Apologies and Legal Settlement: An Empirical Examination, 102 MICH. L. REV. 460, 468 (2003). 40 Id. at 497. 41 Id. 42 See Slocum, Allan & Allan, supra note 19, at 90. 43 See Victor R. Cotton, Legal Pitfalls of Medical Apology Laws, INSIDE MEDICAL LIABILITY 26, 27 (2014); Ho & Liu, supra note 5, at 4; Mastroianni, Mello, Sommer, Hardy, & Gallagher, supra note 6, at 1611- 1615. 44 See Bell, Smulowitz, Woodward, Mello, Duva, Boothman, & Sands, supra note 8, at 684; Boothman & Margo M. Hoyler, The University of Michigan’s Early Disclosure and Offer Program, BULLETIN OF THE AMERICAN COLLEGE OF SURGEONS, (2013), http://bulletin.facs.org/2013/03/michigans-early-disclosure/; Mastroianni, Mello, Sommer, Hardy, & Gallagher, supra note 6, at 1611; Phillips-Bute, supra note 8, at 336; Saitta & Hodge, Jr., supra note 4, at 303; C. Vincent, M. Young & A. Phillips, Why Do People Sue Doctors? A Study of Patients benefits, legal concerns may extinguish a physician’s decision to apologize to a patient.45 This silence is often propelled by the physician’s fear of litigation.46 Physicians often do not give effective apologies, or apologies in general, to patients during these emotionally-ridden events because they are fearful that an apology will be taken as an admission of guilt or liability and be used against them in court.47 Ultimately, “[t]he driving force behind doctors’ unwillingness to communicate with patients about medical errors is presumably a concern about the confidentiality and legal discoverability of the information they convey.48 Physicians are even advised by legal counsel to avoid admissions of fault and apologies because of the risks of litigation.49 Although current laws are in place to encourage apologies, this concern of lawsuits precipitating from apologies remains.50 Ironically, choosing to not apologize in an effort to avoid litigation may actually precipitate a lawsuit.51 Patients often sue their doctors out of anger, or as a way to receive information about what happened to them or their loved ones.52 Furthermore, the lack of any type of disclosure that an apology could provide can create disgruntled patients who are more likely to engage in litigation.53 The injured patient’s anger often stems from the fact that he/she believes an apology is an appropriate ethical response.54 Applying Slocum’s multi-dimensional stheory of apology, consisting of both self-focus and self-other focus factors, an experiment was done to evaluate this theory following an adverse and Relatives Taking Legal Action, 343 THE LANCET 1609, 1609-1613 (1994); Zisk, supra note 2, at 386. 45 See Gibson & Del Vecchio, supra note 4, at 4; Saitta & Hodge, Jr., supra note 4, at 302. 46 Id. 47 See Robbennolt, supra note 39, at 466. 48 See Phillips-Bute, supra note 8, at 336. 49 See Robbennolt, supra note 39, at 467. See also Ho & Liu, supra note 5, at 3-4. 50 See Ho & Liu, supra note 5, at 4. 51 Id. 52 See Phillips-Bute, supra note 8, at 336. 53 See Mastroianni, Mello, Sommer, Hardy, & Gallagher, supra note 6, at 1611. 54 See Phillips-Bute, supra note 8, at 344.