What Malpractice Suits Teach Us About Trust


New research on how doctors’ apologies can prevent malpractice suits provides an excellent example of the mechanics, and pay-offs, of trust-based professional relationships relevant to any profession.

In a report on this "disarming" approach to malpractice suit prevention, the New York Times basically says that taking responsibility for one’s actions—apologizing when appropriate—beats the heck out of lawyering up. When I say "beats the heck out of," I mean in terms of hard cold cash.

At the University of Michigan Health System, one of the first to experiment with full disclosure, existing claims and lawsuits dropped to 83 in August 2007 from 262 in August 2001, said Richard C. Boothman, the medical center’s chief risk officer.

“Improving patient safety and patient communication is more likely to cure the malpractice crisis than defensiveness and denial,” Mr. Boothman said.

Why? Here’s the plaintiff’s lawyer in a case where the doctor had removed a tumor from the wrong rib:

“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.”

This should not be news to readers of Trust Matters. To recount another example, in Surgeons Tone of Voice: a Clue to Malpractice History (Surgery Magazine, July 2002, vol. 132, number 1), Ambady /et al /explored the correlation between communication behavior of physicians and patients’ decisions to sue for malpractice:

Surgeons’ tone of voice in routine visits is associated with malpractice claims history. This is the first study to show clear associations between communication and malpractice in surgeons.

But lest you think this is an unalloyed victory for the forces of trust, relationships and the collaborative way, the poisonous seeds of destruction are just below the surface. The seeds sprout from the motive of apologizing doctors, which leads to the paradox of trust.

If doctors apologize from the heart, quickly, with no aim other than to acknowledge responsibility and redress the situation (and deal with their own conscience), then the results are lower settlements, lower malpractice, better relationships, etc.

But suppose you are apologizing just to get the monetary results.

• The hospital lawyers issue guidelines for apologies.
• Administrators issue suggested language for apologies, vetted by the lawyers.
• Administrators and hospital lawyers lobby for exemption of apologies from any future lawsuits. The logic, I’ll bet, being something like, "Hey, the guy apologized. Why should he then be legally held to be liable? It’s not fair!".
• Doctors get performance ratings based on their rate of apology, good for inclusion in bonus pools.

In other words, the motives of an apology are immediately undercut for the sake of a self-oriented outcome.

  • The apology becomes impure: input is destroyed for the sake of an output.
  • Lowered malpractice costs are no longer a byproduct—they become a goal. All sincerity is lost.
  • And malpractice rates will go up—but with a higher-still level of cynicism.

Before you accuse me of cynicism, look at the legislative response to this research:

To give doctors comfort, 34 states have enacted laws making apologies for medical errors inadmissible in court, said Doug Wojcieszak, founder of The Sorry Works! Coalition, a group that advocates for disclosure. Four states have gone further and protected admissions of culpability. Seven require that patients be notified of serious unanticipated outcomes.

Before they became presidential rivals, Senators Hillary Rodham Clinton and Barack Obama, both Democrats, co-sponsored federal legislation in 2005 that would have made apologies inadmissible.

As always, the paradox of trust is that desirable outcomes only work as byproducts. If you try to engineer the economic byproduct of trust and turn it into a goal, you destroy it.

You actually have to care about the patient / client / customer/ employee.

What a lesson for all of us.