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Surgeons’ Apologies Decrease Lawsuits: How Can that be News?

by Dan Simon
May 2016

Institute for the Study of Conflict Transformation by Dan Simon

Dan Simon

I saw an article on CNN.com a few days ago, linked here. The content of the article was not surprising. What I found hard to swallow was that the story was considered newsworthy.

The article explains that when surgeons and other medical providers apologize after they’ve made a mistake, people are less likely to sue. I found it hard to accept that apparently many medical providers either don’t know that yet or disregard it in favor of their lawyers’ advice. I gather that it’s still commonplace for surgeons and hospitals to cut off communication at the threat of a lawsuit. In addition to the obvious psychic damage that policy does to everyone involved, including the doctors, the mainstream adherence to that approach costs money.

Lawyers have traditionally advised potential defendants not to say anything, especially not anything that could be interpreted as an admission. That extremely common sort of advice arises from the belief that the evidence available for a possible future trial is the most significant factor in how much a defendant will have to pay. Since an admission by a surgeon could later be used against the surgeon at trial, lawyers think it makes sense to prevent the admission from happening.

For that to make sense, the lawyers must be assuming that potential plaintiffs are motivated simply to get as much money as possible. Lawyers must consider it unlikely that meaningful interaction with the surgeon will change plaintiffs’ feelings about suing. I think that’s the logic, although I don’t quite understand it. To a transformative mediator, it’s obvious that the motivation to sue tends to decrease greatly in response to an authentic detailed apology that includes transparency about what went wrong, as well as some additional attention to the plaintiff.

Bush and Folger discuss how, in conflict theory, traditional models assume people are purely self-interested. Whether you see conflict as a power struggle, a question of legal rights, or an exercise in problem-solving, you assume the parties want as much as they can get of whatever they start out wanting. If you’re operating under those theories, you neglect how important the interaction is. Bush and Folger have identified the traditional theories as coming from an individualistic worldview, while transformative theory comes from a relational one.

When someone treats me like a human being, I tend to treat them that way. If they treat me like a litigation threat, I become more tempted to treat them like a legal adversary. That the legal system continues to disregard the relational nature of conflict is mind-boggling. Is it that lawyers benefit financially by escalating the conflict? Or do they genuinely believe it benefits their client? I don’t know. But for whatever reason, that sort of advice is still common. It’s so common, that CNN thought that apologizing surgeons are newsworthy.

Biography


Dan Simon writes the blog for the Institute for the Study of Conflict Transformation. He is a national leader in the field of transformative mediation.  He practices and teaches it in Saint Paul, Minnesota.  He's trained mediators throughout the country for the U.S. Postal Service, the Institute for the Study of Conflict Transformation, and as an Adjunct Professor at the Hofstra University School of Law. He serves on the Minnesota Supreme Court's ADR Ethics Board, is the Immediate Past Chair of the Minnesota State Bar Association's ADR Section; and he serves on the Board of Directors of the Institute for the Study of Conflict Transformation. He has been the director of Twin Cities Mediation since he founded it in 1998. He helps with divorces, parenting differences, real estate issues, employment cases, business disputes, and neighbor to neighbor conflicts.



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