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The Apology Shield - Pandering to Lies and Deception over Truth and Consequences

By Steve Lombardi

Get your beer goggles on because you're going to need them to see straight after reading this one.

My friend and colleague David Mittleman recently posted "I'm Sorry" Policy Works for University of Michigan Health System, discussing a most disingenuous legislative invention being employed in Michigan. But, Michigan isn't alone; they join the ranks of some 33 or more states that have made doing what's right not something a jury would be able to hear. That's right, a professional makes a mistake, they apologize and no one knows it in court. It's the apology shield; an evidentiary apology gag-order tool used to deceive a jury by protecting them from the truth. It works like this: A school yard bully is taken to the principal's office for picking on the little kid where he's made to apologize; the bully then heads right back out to the play yard announcing to everyone within ear shot that the little guy got detention for slandering the bully. Because of the principal's apology shield the little guy can't say a word about what went on in the principal's office. If the little guy says anything he is further picked on not only by the bully but by every kid on the school yard.

Patients already victimized by a medical mistake (a surgical staff that hasn't read the chart and operates on the wrong side for example.), then gets to listen to how the patient was at fault and can't mention a peep about how the surgeon and staff apologized after making a series of critical mistakes. The jury never hears the truth of what was said. Yes, you understand what I'm saying; it's legislative and judicially sanctioned reality deception. It's the new reality show except now it's in the Courtroom sanctioned by the legislature. Like reality TV you get paid to lie, cheat and be deceitful. The most deceitful person wins the entire show, I mean trial. I'm ashamed of the legislatures in all 33 states. You're all pandering to lies and deception over truth and consequences. You're mothers would be ashamed of all of you who voted for this garbage.

Maybe this is the new math that I missed in school. Are three shielded apologies worth more than one genuine apology?

A professional with any decency says they are sorry no matter how it affects them legally. I wrote a post on May 8, 2009 titled, Tort Reform Protocol: Oops! Sorry! The Apology, a new Gold Standard of Practice. I meant it and I still mean it. Just recently a potential client told me the doctor apologized, almost snickering, not once or twice, but three times. Maybe this is the new math that I missed in school. Are three shielded apologies worth more than one genuine apology? While a shielded apology is all the rage the way it's being used is cynical and classic deception by a villain of the worst kind. It's like your wife cheating on you and then apologizing and saying you should never cheat because it would be immoral. There's something incredibly shallow and cynical about the entire apology shield. It's really a sign that society no longer understands the concept of shame. Aren't apologies supposed to be genuine? Don't we teach our children to apologize irrespective of the consequences to follow?

Does anyone think a professional who apologizes behind an apology shield really means it? Give me a break. Even those that do mean it, we can no longer believe. My guess is those professionals with any conscience will no longer apologize because it doesn't feel right to do so. If you make a mistake, do as your parents taught you and offer a meaningful and truthful apology, irrespective of what the lawyers say.

Take a look at the comedian, Tom Shillue's monologue about wrong-side surgery apologies. Think about what he's saying, "I'm sorry I operated on your wrong side and took out the healthy kidney. I'm really sorry, but you can't use this against me; ever! You can't tell a soul I admitted I made a huge mistake. And never can you mention a word to my next surgical patient – even if they are on your jury." When in fact it should be, "Sorry, I was in a hurry, hung over, didn't take the time to read your chart, neither did any of the other operating room staff and we've screwed up your life. Will you accept an apology and a half-million dollars?" Get real Michigan.

The monologue is well-defined sick humor and demonstrates how silly an apology-shield looks to the rest of the world. After the staff doesn't do their job reading the chart they simply apologize so you won't sue them. You can thank to the Michigan legislature for dumbing-down professional responsibility and making the innocent patient pay for professional mistakes. Why not give the same shield to lawyers, accountants, stock brokers, architects, engineers, civil engineers and the rest. I can hear them in Minnesota, 'Sorry that bridge collapsed. Hey let's do coffee next week after the funerals.' And on Wall Street Madoff would have been in seventh heaven, 'Sorry I stole your $50 Billion. Ah shucks can I interest you in some bonds?' The pharmaceutical companies and Big Tobacco would like to be included. 'Sorry we killed your husband, can we still be friends? Here let me give you a free pack of cigarettes; and take a couple more packs for the kids. Yeah, yeah don't worry, it will be fine. I won't get in trouble.'

See also, Nick Avgerinos, Slice of Humble Pie: Doctors may get Cash Bonus for an Apology

Avgerinos probably had it right back on May 27, 2008 when he posted about humble pie and cash bonuses. I hate to sound cynical but please don't wonder why kids seem confused about the world in which we're creating. With doctors being offered money to do what is right when they do something wrong, we can hardly complain about the behavior of young adults. Talk about a confusing world in which we live. This is preposterous to say the least.

What young adults hear: Do as I say not as I do.

See also Jeff Rasansky from Dallas, Texas with The Power of Apology, cataloguing 33 states with apology protection legislation.

And they accuse me of being cynical.

http://www.youtube.com/watch?v=SxDx2DlL0UY

Originally posted at InjuryBoard by Steve Lombardi

Full post as published by Des Moines Personal Injury Lawyer on July 24, 2009 (boomark / email).