After Harm: Medical Error and the Ethics of Forgiveness

5. Apology

c h a p t e r f i v e Apology At the outset of any discussion involving those troublesome words ‘‘I’m sorry,’’ one ought always to make a commonsense distinction: To say ‘‘I’m sorry your father died’’ is not at all the same thing as saying, ‘‘I’m sorry I killed your father.’’ When these two statements are juxtaposed in this way, we immediately recognize that the former is an expression of sympathy concerning an event in which the speaker was not necessarily involved in any way, whereas the latter is an expression of responsibility, an apology for an event in which the speaker was intimately involved. Too often, however, when physicians, academics, journalists, lawyers, or policymakers talk about whether, when, and how the words ‘‘I’m sorry’’ should be spoken in the aftermath of medical harm, this crucial distinction is blurred, and ‘‘I’m sorry your father died’’—sympathy, no more—is forced to stand in for ‘‘I’m sorry I made a mistake that killed your father’’—a true apology. This chapter examines the question of apology after medical harm within the context of the current trend in many states to craft and adopt ‘‘I’m sorry’’ laws, which offer varying degrees of legal protection for expressions of sympathy and even admissions of fault after incidents of harm, including medical mistakes. Although this trend has been the subject of influential articles in legal journals and has been addressed in professional journals with reference to the role of apology 52 After Harm in the mediation process, it is not always well known or well understood among health care professionals, health care ethicists, and other nonlawyers who are interested in patient safety.∞ Two of the most recently enacted ‘‘I’m sorry’’ laws— in Colorado and Oregon, both of which passed their laws in 2003—were specifically designed to protect physicians and, in Colorado, other health care professionals as well, who apologize after making medical mistakes. As a result, scholars and professionals grappling with the role of apology after medical mistakes need to understand this legal and policy trend, particularly with respect to its ethical implications for the just treatment of injured patients and their families. The words ‘‘I’m sorry’’ and the nature of the proper relationship between persons after one person has injured another have a rich history of associations within religious tradition; some of these associations are explored in this book in chapter 7. Jonathan Cohen and Lee Taft, two of the most influential legal commentators on the ‘‘I’m sorry’’ laws, whose analyses are discussed in this chapter, have theological competency that informs their consideration of the psychological and cultural meanings of an apology, in addition to its legal definition.≤ Other commentators, such as the legal theorist Martha Minow, who has written about South Africa’s Truth and Reconciliation Commission and other efforts to rebuild societies after genocide, war crimes, and other profoundly destabilizing events, acknowledge the impact that religious language and practices, including the language of apology and forgiveness, may have in the ostensibly secular realms of law and policy in civil society.≥ The willingness of legal scholars to examine the meaning of apology in religious discourse and in related secular practices when assessing the nature of apology—in particular, about whether there is or ought to be such a thing as a ‘‘safe’’ or consequence-free apology—suggests that it is unwise to equivocate in the matter of apology, to argue that by meeting a legal or technical definition one has satisfied a deeply rooted psychological or cultural expectation. It also suggests that insight into the religious and cultural nuances of this practice may be integral to understanding what is meant by the words ‘‘I’m sorry,’’ how these words are related to actions, past, present, and future, and what these words and actions convey to the person who has been harmed.∂ The ‘‘I’m Sorry’’ Laws In his article ‘‘Legislating Apology: The Pros and Cons,’’ Jonathan Cohen, the University of Florida legal scholar whose work on apology has been particularly influential in legal and policy circles, defines apology as ‘‘an admission of one’s fault combined with an expression of regret for having injured another as well as Apology 53 an expression of sympathy for the other’s injury.’’∑ He underscores the revolutionary nature of the ‘‘I’m sorry’’ law...