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The Power of I'm Sorry

In the 1970s movie Love Story, Ali McGraw looks up at her big-screen husband, Ryan O’Neal, and utters the movie’s most famous line – "Love means never having to say you’re sorry." That line works pretty well in a Hollywood blockbuster, but in the real world, not so much.

The truth is that "I’m sorry" is one of the most powerful phrases in the English language. Think about it. Have you ever faced a friend or loved one who is just red-faced and livid with you over some perceived slight, and watched the anger melt away when you sincerely say "I’m really sorry?" That’s the power of those two words.

In the business world, we also know the power of empathy. A study several years ago examined lawsuits filed by employees against their employers. A shocking number of those plaintiffs identified one primary reason they filed suits – feeling like their employers didn’t care, didn’t listen, or wouldn’t express empathy or sympathy with the employee, regardless of whether the issue involved an employer’s wrong doing or just a tough time in an employee’s life not caused by his or her employer.

The same thing is true for long term care. We all know that long term care providers have a legal obligation under state and federal law to keep residents and their families fully informed about all aspects of their care. More importantly, it’s just the right thing to do. But many times providers want to express sympathy to a resident or family for a resident’s health status, failure to thrive or an unintended event in the facility. We hear this over and over again from our clients and readers.

So, then, why don’t we do it more often? It’s the fear of being sued and having that "I’m sorry" used against you later in court as an admission of fault on the part of the facility or staff, even if that’s not what you said. Remember, there’s a big difference in expressing sympathy for a resident’s or family’s situation and admitting the facility caused it by negligent care. "I’m sorry for the situation" is not the same as saying "I’m sorry we messed this up," and that’s a very important distinction.

North Carolina long term care providers have a tool that allows you to say "I’m sorry for your situation" to a resident or family without fear of having that expression of empathy used against you later in court. Thanks largely to the efforts of the North Carolina Health Care Facilities Association, the N.C. General Assembly in 2004 enacted Rule of Evidence 413. This rule dictates what can and can’t be introduced in civil court proceedings.

Rule 413

Statements by a health care provider apologizing for an adverse outcome in medical treatment, offers to undertake corrective or remedial  treatment or actions, and gratuitous acts to assist affected persons shall not be admissible to prove negligence or culpable conduct by the health care provider in an action brought under Article 1B of Chapter 90 of the General Statutes.

The Rule applies to apologies related to adverse or unanticipated outcomes if the event giving rise to the outcome occurred on or after August 2, 2004. It’s designed to encourage, not discourage, expressions of sympathy and offers to help – a public policy goal that many states have embraced. Numerous other states have laws like Rule 413, and there is a history with these protections in the courts. So, providers in North Carolina can take comfort in that as they take advantage of this very important tool.

Okay, lawyers are writing this article, so we have to do that lawyerly thing and issue a small word of caution and some practice tips. If statements of sympathy and offers to help are properly handled, Rule 413 provides protection for providers who are simply trying to do the right thing. Obviously, if handled the wrong way – i.e., phrased as "we messed this up and we’re sorry" – then Rule 413 may not prevent that sort of statement from being used in a later court proceeding.  

Our second caution: Don’t let our first caution dissuade you from taking advantage of the freedom to say "I’m sorry and how can we help?" Instead, think about implementing some or all of the practice tips below, which are designed to help you work within the protections of Rule 413. Each facility has to decide how to handle these situations and how best to approach them. By giving these practice tips, we do not  want to make you say, "Geez, we just shouldn’t go there." You need to follow your conscience, but just use a little common sense along the way.

Think about the following tips in deciding how your facility will approach the "I’m sorry" issue. Some facilities have adopted policies and procedures to govern the situation, including one or more of the following points:

  • Think about designating one or two people in your facility to handle the "I’m sorry" discussion. These people should be genuine, represent either facility management and/or the direct care staff with which the resident and family deal most often, or a combination of the two.

  • Think about having two facility representatives present during these discussions, which serves two purposes – it demonstrates that this is a sincere expression of sympathy coming from the entire facility staff and, obviously, it provides a witness to ensure that what’s said isn’t later communicated differently.

  • Don’t be defensive in these conversations. Instead, be genuine and comforting. Don’t assign blame to the resident, family or other staff members, and don’t share details of internal quality or peer review discussions or findings related to the matter. The point of these conversations is to say "I’m sorry this happened to you and that you’re going through this."

  • As with everything else we do in health care these days, it’s a good idea to document these types of discussions in the resident’s medical record. In doing that, stick to the facts. Document the time and date of the discussion, persons present, what was discussed and plans for follow-up (if made).

Again, don’t let these practical words of wisdom stop you from following your heart and conscience with residents and families. A sincere "I’m sorry" coupled with a little common sense is great for everybody involved – the resident, the family and your staff. Whether or not those efforts keep disgruntled residents or families from suing you later really isn’t the point. Rule 413 is designed to allow providers to do what they feel is right without having to worry about it later.

© 2020 Poyner Spruill LLP. All rights reserved.National Law Review, Volume , Number 227

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About this Author

Kenneth L. Burgess, Health Care Litigation Attorney, Poyner Spruill Law firm
Partner

Ken is a health care attorney with more than 28 years of experience advising clients on a wide range of regulatory, reimbursement, litigation, compliance and operations issues.  His practice has focused heavily, but not exclusively, on issues affecting long term care providers.  He has advised them on a wide variety of legal planning issues arising in the skilled nursing facility setting, assisted living setting, hospice, home health and other spheres of long term care. He also frequently represents ancillary service providers (pharmacy, DME, therapy and similar...

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