Introduction and premises: The apology and medical malpractice.

Source: (2006) ExpressO.

Consider the apology: what an amazingly simple yet complex
linguistic convention, particularly in the context of the practice of
medicine. Through the words “I’m sorry,” a message is conveyed
that can strengthen bonds of trust, can heal psychic wounds
(and perhaps help heal physical wounds as well), or jeopardize a
practitioner’s license. The apology poses real risks to its owner –
the risk that its offer (and its implicit request for reconciliation) will
be rejected and then used against its owner, perhaps in the
context of a lawsuit based on a claim of medical malpractice.
Those risks are well-known, to the doctor tempted to express
regret, to the lawyer giving advice to the doctor, to the putative
victim (and the victim’s legal counsel), and to the judges and
juries appointed to determine whether there’s been a breach of
duty warranting the imposition of damages.
Given its complexity and its capacity to both do good and
wreck havoc, it is probably not surprising that the apology has
been given substantial attention in a host of academic and professional
venues. In the context of the practice of medicine, it
has been thoroughly studied, by risk managers, by judicial interest
groups, by legislators, and by the trial bar, to name but a few
stakeholders having an interest in its use and abuse. Notably,
within the past twenty years there has been a highly focused,
well-informed debate about the efficacy of apologies in the context
of the practice of medicine. Doctors, after all, are human
and with their humanity comes the innate ability to make mistakes.
Those mistakes result in the full spectrum of adverse
consequences, and as a society we’re used to having access to
systems that will help restore us if we’ve been injured as the
result of someone else’s mistake. (Excerpt)