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Apologies in the World of Litigation
By Matt Bartolomei and Robin Black

When you were young and had a disagreement, what was the best way to resolve it? Similarly, what was the one thing you needed to hear in order to make things better? The answer to both questions is an apology. But, while apologies could remedy many things as a child, there is growing debate about whether an apology has any place in the adult world of litigation.

When two parties resort to litigation, making apology a part of the overall legal strategy might seem absurd. However, consider the similarities between a lawsuit and any other disagreement outside of the legal system.

In both situations, one party feels wronged by the other. Irrespective of the circumstances, people instinctively want confirmation from others that they have been wronged. In the case of a lawsuit or potential litigation, an apology can alleviate some of the hurt.

In general society, an apology serves four purposes:

  • Acknowledgment that what was done was wrong or inappropriate.
  • Responsibility by the wrongdoer for those actions.
  • Remedy of the wrong that was caused even if it is only to resolve hurt feelings.
  • Closure that extinguishes the series of events and feelings.

Timing (and sincerity) is everything
It is naïve to suggest that the concept of apologizing that we learned as children can always apply to legal situations, and we do not suggest that a single "I'm sorry" will help healthcare providers eliminate medical negligence lawsuits. Instead, we are suggesting that, on occasion, a sincere and strategically timed apology during the litigation process can be a useful litigation management tool for some clients.

Most individuals who file lawsuits believe they have been wronged, and an apology can satisfy at least one of the four previously mentioned purposes (acknowledgment, responsibility, remedy and closure) in resolving a dispute.

Nevertheless, in our legal system, the use of an apology in litigation can be tricky. Acknowledging a wrongdoing and taking responsibility for it can lead to concerns about admitting liability. A judge could construe a poorly worded apology as an admission of liability or it could be used against the apologizing party in court.

This should be the first concern when considering the role of an apology in establishing a better rapport with a plaintiff. It is easy to imagine a scenario where a plaintiff testifies at trial that a risk manager, nurse or physician apologized for something that went wrong. Taken out of context, it could be construed as an admission of wrongdoing.

The evidence code provides several criteria for determining when an apology would be inadmissible:

  • There must be a genuine compromise or offer to compromise
  • The claim must be disputed either as to validity or amount
  • The statement must have been made after the controversy or dispute arose

This portion of the evidence code has been interpreted by Florida courts to mean that any actions taken or statements made during the negotiation process are inadmissible when offered to prove liability.

The most obvious scenario where this would apply is in mediation. A wrongdoer should not have to worry that an apology or admission of wrongdoing made in the formal mediation process could be used against them in court.

When can an apology prove liability?
For an apology to be admissible under the evidence code, it must be made outside the context of a genuine offer to compromise. Also, anyone contemplating an apology outside the context of formal mediation or an offer to compromise should know that the evidence code does not protect them from their admission of wrongdoing.

Risk managers who consider a carefully worded apology part of their plan to work with upset patients and family members after a hospital incident has occurred must keep in mind the dangers involved in making such an apology outside the context of an offer to compromise. They also should be careful not to take an apology so far that a court could interpret it as an admission of liability.

Just as in medicine, compassion by way of an apology can help to alleviate unnecessary tensions in an already uncomfortable situation. The key is to find a balance between creating a more agreeable relationship with an adversarial party and making an apology that could later be used against the client in court.

Why take the chance?
With the legal line separating the risks and benefits of an apology far from clear, the question arises, "Why risk it?" The answer is that an apology can actually have a monetary value.

If an apology is being sought as part of a settlement, it could help reduce the monetary damages simply because the apology meets one of the plaintiff's goals for litigation; and one that does not have a dollar value. At other times, an apology can induce a plaintiff to settle earlier in the litigation process, thereby reducing additional legal fees and costs.

While an apology cannot completely erase the wrong the plaintiff believes was committed, it can reduce some of the emotion involved in the case if the plaintiff believes it is sincere. An apology also can serve to remedy a damaged relationship, increases the willingness of each party to listen to the other and make the parties more reasonable in evaluating settlement offers.

The practical role of apologies in litigation has yet to be fully explored. While an apology could aid the prompt and cost-effective resolution of a potential claim, given its potential pitfalls, a risk manager should carefully word any apology and be aware of its legal implications. Nonetheless, the simplicity and value of the words "I'm sorry" may provide clients with a valid option founded on common sense and childhood lessons learned.

Matt Bartolomei is a partner at Winter Park, Fla.- based Hill, Adams, Hall & Schieffelin, P.A. and represents hospitals and health care providers in medical malpractice litigation and insurance defense. He also represents healthcare providers before the Agency for Health Care Administration. He can be reached at (407) 628-4848 or mbartolomei@hahslaw.com. Robin Black is an associate with the firm.

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