The Impact of Apology in Massachusetts

By Amy Johnson Conner

Some lawyers are among the skeptics who say apologies wouldn’t make any real difference in litigation in Massachusetts – though many think it could harm defendants, despite state law prohibiting expressions of remorse from being used as evidence of liability. It ’s hard to defend a physician who did not do anything wrong when they’ve sat down with a patient and said, “I made a mistake,” said Douglas N. Perlo of Boston medical malpractice defense firm Ficksman & Conley.

But others are more optimistic. A. Bernard Guekguezian points out that caregivers can express sorrow or sympathy for a bad outcome without accepting fault for that outcome. It “would go a long way toward allowing family members to accept that an unexpected medical outcome occurred without negligence or fault,” said Guekguezian, a partner at Adler, Cohen, Harvey, Wakeman & Guekguezian. He cautions, though, that the effect of an apology could be somewhat limited because in many cases, often those involving death or catastrophic injury, survivors have no choice, economically, but to file suit. In those cases it’s survival, not hard feelings toward the physician, that drives the litigation.

Were it to work, said M. Kate Welti, also of Ficksman & Conley, the apology would be most effective if offered before lawyers get involved. “When it gets to the trial, it’s too late,” she said. “I’ve been in depositions where it’s so palpable, the anger that these families feel. I just have to go on the belief that … if you can get there before the feelings harden and explain it to them so they can understand that mistakes happen and there’s concern for them … then I personally believe it wouldn’t get to the point where I or one of my colleagues are involved.” Welti thinks both physicians and risk managers are afraid of apologies and disclosure policies. Slowly, though, they’re getting comfortable with the idea that they actually can work, she said. “I think most of them are getting the idea that it’s okay to say you’re sorry, but it takes a while to permeate the consciousness. I think they fall back into their old habits of stonewalling,” Welti said.

Forcing that culture to change isn’t easy. One thing that helps is legislation. According to the Sorry Works! Coalition , 35 states have laws that exclude apologies or expressions of sympathy from being used as evidence of liability. Massachusetts is one of them. “To the question of whether you can do it in Massachusetts,” Kraman said, “there’s only one answer. Are you treating people?” 

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