'Sorry Works' works

Marc E. Williams / Special to the National Law Journal
April 13, 2009

In 2005, then-U.S. senators Barack Obama and Hillary Clinton introduced legislation inspired by "Sorry Works," a grassroots movement based on the intriguing idea that, if health care providers honestly acknowledge and apologize for mistakes, patients who otherwise feel insulted as well as injured are less likely to file a lawsuit.

The bill was integrated into the National Medical Error Disclosure and Compensation (MEDiC) Act, S. 1784, which was referred to the Committee on Health, Education, Labor, and Pensions, but ultimately not enacted. The federal initiative would have provided grants and resources to encourage full disclosure. It was inspired after Illinois became the first state to pass a similarly innovative law. Since then, 34 states as diverse as California and South Dakota have adopted related statutes.

It is an evolving concept that quite appropriately remains a topic of significant interest and discussion - not just for health care professionals, but for any substantial business organization seeking alternatives to the mounting burdens of litigation. Can a manufacturer mitigate products liability by apologizing? Is there a lesson for Corporate America in the handling of other types of litigation?

It is time for the broader business community to at least begin considering the idea.

Why ignore the kind of evidence reported by Kevin Sack in a May 18, 2008, front-page New York Times story? According to that article, of 37 cases in which the University of Illinois Medical Center acknowledged preventable errors and apologized, only one patient filed suit. Existing claims and lawsuits at the University of Michigan Health System dropped from 262 in August 2001 to 83 in August 2007. Legal costs fell by two-thirds.

Anecdotally, I have seen this work in my own practice. A small chemical spill caused local neighborhoods around an industrial facility in my home state of West Virginia to be sheltered in place for the better part of a day. As part of the company's emergency response plan, company representatives and their lawyers went door-to-door in the affected neighborhoods to see if there was anything that the residents needed from the company. The gratitude of the people was palpable. And not a single one made a claim for damages or inconvenience.

To be sure, corporate counsel ought not to assume that apologies are an automatically transferable panacea for their clients' problems. There are, in fact, legitimate concerns that, from a legal perspective, apologies confirm liability. It's certainly not a strategy that businesses should pursue without thoroughly vetting with counsel on a case-by-case basis. But there is logic in assuming that a close-mouthed response to a personal tragedy, all in the name of avoiding saying something that could be deemed an admission at trial, is likely to cause the victim to assume that the potential defendant is uncaring and unappreciative of the personal consequences of the crisis.

That said, the health care sector experience is encouraging enough that an organization like our own, which represents more than 23,000 corporate and defense attorneys, must and will remain participants in the ongoing dialogue on Sorry Works and its broader relevance. On the one hand, Sorry Works has the immediate effect of removing impediments to communication during litigation. It promises significant modifications in the practice of law if prudent commitment to full disclosure and acknowledgement of responsibility can indeed deter some lawsuits or expedite settlement negotiations.

As a productive business tool, Sorry Works has a final attraction not yet underscored in the discussion of litigation deterrence. Even if Sorry Works does not deter a case from being filed, there is no doubt in our estimation that it provides a well-merited advantage during the course of the lawsuit.

All good corporate trial lawyers know that, to prevail with a jury, they must humanize their clients. Their clients - whatever cause of action brought them to court - must be seen by jurors as organizations of fallible executives and engineers and accountants who are no different in flesh and spirit than themselves. When organizations say they're sorry, that perception is powerfully reinforced. Our own mock trials have consistently proved it year after year. Accepting responsibility is a critical factor in diminishing juror anger at corporate misconduct.

In the last analysis, Sorry Works resonates beyond the specific civil justice system issues it is meant to palliate. The litigation explosion in the United States is, at worst, a dark index of just how disconnected our various populations are, be they doctors and patients or corporations and consumers.

For businesses, Sorry Works should always be a reminder of the potential benefits of building bridges.

Marc E. Williams is president of DRI - The Voice of the Defense Bar.