Practitioners in virtually every profession often wonder whether there is anything that they can do to reduce the odds of their clients or patients complaining about them or suing them.  A recent piece in the Wall Street Journal demonstrates that one of the most effective ways of avoiding complaints and lawsuits is simply to say “I’m sorry”.

Insurers and defence lawyers frequently advise practitioners not to apologize for adverse outcomes because it may be construed as admitting liability.   The usual advice is not to speak with anyone about the incident, including the client or patient.  However, it is not difficult to imagine that refusing to discuss an adverse outcome with a patient or client generally tends to create only anger and hostility. 

Interestingly, however, since 2001 a number of well-known institutions, such as the Dana-Farber Cancer Institute in Boston, Johns Hopkins in Baltimore and many other institutions have developed a policy to ensure that physicians acknowledge errors and apologize to their patients.  Further, two states, Colorado and Oregon, have passed laws that specifically state that an apology cannot be used against a physician should the physician be sued.  While there is no similar legislation in Canada, a number of provinces have laws that make inadmissible in civil proceedings the deliberations of quality assurance committees of hospitals that investigate adverse outcomes.

To emphasize the point even further, some medical schools are now requiring medical students to take courses in communicating errors and apologizing, and some American insurance companies are urging clients to acknowledge errors and to apologize for them.  According to Colorado surgeon Dr. Michael Woods, there is nothing more effective in reducing liability than “an authentically offered apology”.

The story in the Wall Street Journal conveyed the story of a 50-year-old former engineer in San Diego who noticed a bulbous protrusion squirting hot fluid from his backside two weeks after surgery for colorectal cancer.  He was told that the surgeon left a sponge inside of him that caused the problem.  However, the hospital surgeon told him “no matter how this happened, I was the surgeon in charge; I was the captain of the ship and I was responsible and I apologize for this”.  A hospital administrator also apologized.  Impressed, the patient, without hiring counsel, settled directly with the hospital “for an undisclosed amount which he says was far less than he might have been awarded in Court”.  According to the patient, “They honoured me as a human being”.

In the United States, where some physicians pay more than $200,000.00 annually for malpractice insurance, any means of reducing the odds of a lawsuit are obviously of considerable interest.

A recent article in the Annals of Internal Medicine found that survey respondents were 1.5 times as likely to seek legal advice when a medical error was not disclosed and no apology was given.  The managing attorney for claims and litigation at Johns Hopkins believes that the hospital’s new policy of openness helped to reduce expense payments related to legal claims by thirty (30%) percent in 2003.

It is not surprising that honesty and, were appropriate, an apology, reduces the risks of complaints or litigation.  First, most practioners owe “fiduciary duties” to their clients or patients.  These duties reflect the fact that practitioners are dealing with some of the most important aspects of the client’s, or patient’s, life.  In simple terms, patients and clients believe, justifiably, that they deserve to be told the truth when an outcome is unexpected.

Perhaps more important, however, people do not often complain against people for whom they have respect and admiration.  Most reasonable people acknowledge that mistakes can occur.  When people are dealt with fairly and reasonably, it simply makes sense that they are less likely to complain or commence litigation.  There is also a difference between expressing concern and even regret about an unexpected outcome, and admitting liability.  While a sincere apology may not guarantee that a patient or client will not complain or sue, it does seem to reduce the odds of that happening.

[Professional Practice and Liability on the Net is a monthly Internet newsletter addressing issue of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 393 University Avenue, Suite 2000, Toronto M5G 1E6. Or, call 599-2200, ext. 232, or email: bleblanc@sml-law.com.  Visit our website at http://www.sml-law.com. Comments and suggestions are also welcome. ]

Professional Practice and Liability on the Net is a monthly internet newsletter addressing issues of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON  M5H 2Y4. Or, call 599-2200, ext. 232, or email bleblanc@sml-law.com. Comments and suggestions are also welcome.