Apologies as Tort Reform — Yonathan Arbel

Post by Yonathan Arbel

When we wrong others, there is often an expectation—perhaps a moral duty—that we apologize. By apologizing, the wrongdoer asserts ownership of the wrong and acknowledges the wrongness of the act and the moral standing of the victim. It is also said that apologies can help restore the social order disrupted by the wrong.

In recent decades, many scholars have suggested that there should be a place in the law for apologies. And so the idea of ‘apology laws’ – laws that promote and protect the use of apologies – was born. These laws, now found in 36 states, are meant to encourage wrongdoers to apologize without fear of legal repercussions, and they typically apply in private law settings, such as torts and medical malpractice. A paradigmatic example is a doctor who makes a mistake during surgery but, in the absence of a ‘safe harbor’, would be reluctant to apologize for fear that admitting the mistake would foster litigation and count as an admission of liability.  An apology law that makes apologies inadmissible as evidence of fault at trial, as most do, promises to overcome this barrier.

In a new paper, Tort Reform Through the Backdoor: A Critique of Law & Apologies, (Forthcoming S. Cal. L. Rev., 2017), Yotam Kaplan and I are challenging the predominant scholarly disposition favoring laws that create safe harbors for apologies. We argue that in commercial settings—involving insurance companies, large firms, hospitals, etc.—using the law to encourage apologies may undermine tort liability and undercut deterrence. This effect is not necessarily negative—many people believe that the tort system is out of control—but it does mean apology laws are de-facto tort reform. That many states that normally oppose tort reform adopted apology laws was the result of clever marketing and concentrated lobbying efforts by tort reformers who co-opted the legal discourse on apologies to their own ends. Perhaps most notably, Barack Obama and Hillary Clinton—neither of whom is a card-carrying tort reformer—advocated actively for apology laws in an article in The New England Journal of Medicine.

Pro-apology scholars commonly highlight the cost-saving advantages of apologies. When an apology is tendered, the parties often settle out-of-court, thus saving social resources that would have been spent on litigation. This argument is true, but it is too true. Studies show that apology programs help hospitals avoid a large portion of lawsuits altogether, and reduce payments to victims by as much as 60% of the expected compensation payments. This constitutes an estimated reduction of $32,000-$65,000 per case simply as a result of an apology. Given this large effect, commercial injurers may have less of an incentive to invest in accident-preventing precautions, such as more reliable technology, multi-level systems of safety checks, and additional personnel. This is especially important given the high rate and cost of preventable medical errors. The 1999 Institute of Medicine report, To Err is Human, concluded that every year 44,000-98,000 people lose their lives to medical errors that could have been avoided with greater investment and caution, which is comparable to diabetes (75,500) and Alzheimer’s (84,700).

Of course, apologies have costs (mostly non-pecuniary, such as shame and reputational effects) and benefits (victims may feel better), so this should also be part of any cost-benefit evaluation of the desirability of promoting them. We believe however, that both the benefits and the costs are much lower than one might assume. While individuals may feel reluctance to apologize, commercial firms—where responsibility is often highly diffused—may not be as reticent. New developments, such as seminars and workshops, help organizations incorporate apologies into their workflow at a low-cost. Furthermore, it is not clear what an apology even means when tendered by an incorporeal entity. On the benefits side, there is strong reason to suspect that victims of life-altering accidents actually derive so much utility from apologies that they are willing to forgo hundreds of thousands of dollars in compensation by dropping their lawsuits. Some—such as Gabriel Teninbaum—argue that commercial apologies often involve some form of emotional manipulation of victims, which are pressured not to sue. This explanation, along others we discuss, may explain why victims decide not to sue even when they stand to gain substantially from a lawsuit.

Apologies may have a special role to play in private law, but caution is advised when commercial entities are involved. Future work may provide us with a better understanding of the effects of apologies in various fields of private law and especially with a better understanding of the meaning and importance of commercial apologies.

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