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Sorry Works! Blog

Making Disclosure A Reality For Healthcare Organizations 

Question from Road: Lose Leverage with Apology?

Two weeks ago I gave a presentation to a room full of attorneys in Cincinnati, and a defense lawyer asked the following question: "Don't you lose leverage when you apologize?   Your ability to negotiate goes right out the window, correct?  After all, the plaintiffs have you admitting fault, so they can push for more and more dollars." 

Answer: Not true.  You have to remember that if the plaintiff gets greedy, then you can argue a case on the damages before the judge and jury.

Look, just because you are apologizing does NOT mean you're an ATM machine.  You are not a bottomless pit of money.  You do your best to learn the financial and emotional needs of the patient & family and share this information/data with your own experts to develop a fair value for the case.  If, however, the counteroffer is ridiculous, try to negotiate or mediate, but, if none of that works, argue the case on damages in court.  Disclosure does not require settlement prior to trial --- but the same holds true for patients and families!  They don't have to agree to low-ball offers, or accept stories about how the doc is "sorry" but she really didn't screw up, when three qualified experts say she did screw up.  This is the beauty of disclosure....when both sides preserve their ability to go to court this hopefully keeps everybody honest and working towards a reasonable meeting of the minds.

Interestingly, following my presentation, an attorney who used to be a PI lawyer and later a judge said admitting fault and apologizing but then having to argue a case on the damages actually removes all the courtroom drama PI lawyers use to anger juries and increase the value of their cases.   I've heard similar comments from many other attorneys and judges.   Cases involving admission of fault & apology are almost always settled long before trial for a fair sum with significant savings on defense litigation expenses.  Case closed!

Hey, next Wednesday and Thursday (Dec. 5th and 6th) Sorry Works! and ELM Exchange are holding free webinars to preview our new on-line disclosure learning program for front-line physicians and nurses.  This CME-accredited program is the economic and scalable to train all your staff in the basics of disclosure and empathy post-event without prematurely admitting fault.  To register, simply e-mail doug@sorryworks.net.

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