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The Art of the Apology

October 1, 2004
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As director of medical-legal affairs for Kaiser Permanente in northern California, Dr. Bruce Merl sometimes observes by video monitor, with the patient’s permission, as a doctor talks with the person about a medical treatment that has not gone well. The bad news most often is the result of chance--failure to respond to a standard medication or a belated diagnosis of cancer that initially evaded tests--but sometimes it may be the result of a medical mistake. Either way, the resulting conversation is likely to be tense and painful. "The patient is worried about what’s going to happen to him, who’s going to help him get better," Merl says. The doctors are worried, too, and not just about the possibility of a malpractice lawsuit. "Nobody comes to work thinking that they’re going to harm someone. They feel lost and scared."

    But Merl and the Oakland, California-based HMO, which is the nation’s largest, have discovered a solution that seems to help both the injured patient and the doctor to make amends and move on from medical mishaps. And in the process, he hopes, it may also enable Kaiser Permanente to control its litigation costs. Last year, as part of its policy of disclosing information to patients, the HMO began training its 11,000 physicians how to apologize personally to patients for whatever suffering they’ve experienced, and to assure them that amends will be made if necessary. "We’re getting at the core of why people sometimes end up filing suits," Merl says. In addition to their physical pain, "their emotional needs have to be met. They want to know that somebody understands what they’re going through."

    Kaiser Permanente is challenging a long-standing American tradition. Business, to borrow a phrase from Love Story author Erich Segal, means never having to say you’re sorry. Human resources consultants and academics say that companies and individuals--from the rank and file to the boardroom--habitually resist admitting fault or expressing regret to anyone. But experts say that those who learn to swallow their pride and offer an apology gain an important business advantage. The right amount of contrition has been shown to significantly reduce the cost of settling lawsuits, and may even convince unhappy customers, irked business partners and/or resentful ex-employees not to sue at all. Experts say that companies willing to admit mistakes may uncover and fix problems that otherwise might have continued to fester, and avoid the stress and lost productivity that come when workers focus on covering up mistakes and misdeeds rather than achieving business objectives.

    While Kaiser Permanente and other health-care outfits seem to be leading the way, companies in other industries are trying contrition as well. In 2001, after a woman was paralyzed in an accident caused by faulty tires on a Ford Explorer, Ford attorneys offered a bedside apology to the victim. She then settled her lawsuit, reportedly for a third of the $100 million she originally had sought. "Ford might have marked a turning point," says Thomas Hajduk, director of the Center for Business Communication at Carnegie Mellon University in Pittsburgh. "It signaled a change in management attitudes about the effectiveness of public apologies, making it easier for other companies to follow their very public lead." In recent years, businesses such as Safeway, McDonald’s, Citigroup and Goldman Sachs have apologized to customers and investors for mistakes or a disappointing performance.

But experts caution that the art of apologizing involves more than simply getting down on the office carpet on bended knee or gritting one’s teeth and taking a few lumps. Organizations should develop corporate cultures in which taking responsibility for a mistake isn’t a fatal career move. Staffers at all levels need careful training and coaching on how to admit error in a way that satisfies the aggrieved person without increasing the company’s litigation risks. And companies must establish a mechanism for following up words of regret with tangible action to fix whatever has gone wrong.

More than just words
    Merl emphasizes that Kaiser Permanente’s policy for communicating with patients about unsuccessful treatments and medical mistakes involves far more than just apologizing. When the HMO began reevaluating how it dealt with such situations several years ago, it decided to build a multi-faceted program. In addition to several hours of communication training for doctors and other health-care professionals, it involves the creation of a new cadre of staffers known as ombuds/mediators, who go through an intense 80-hour course on communication and mediation skills. The ombuds/mediators’ job is twofold. They act as coaches for doctors, helping them to plan what they actually will say to a patient in a difficult situation. They also act as go-betweens, following up with the patient to be sure that his or her questions are being answered and needs are being met.

    Since the program began in the spring of 2003, Kaiser Permanente has moved rapidly to implement it. The HMO already has put a third of its 11,000 physicians through the communication course, and hopes to train them all within the next two years, says Merl. Already, 26 ombuds/mediators have been trained and deployed at Kaiser Permanente facilities around the country. The program costs in the vicinity of $3 million a year to operate, according to consultants who designed it and provide the training. The HMO has kept its costs low by employing consultants to train about 100 Kaiser Permanente health-care professionals to teach the communication course, and then using them to spread the knowledge to their coworkers. While Kaiser is still in the process of compiling data to measure the impact of the program, it’s likely to provide a healthy return on the modest investment, says Carole Houk, a principal with Resolve Advisors in Arlington, Virginia, who trains the ombuds/mediators. "A medical error that’s litigated typically costs $300,000, plus legal fees and insurance costs," she says, citing insurance-industry data. "One that’s settled in mediation might cost a tenth of that. If you avoid even one lawsuit a year [at a hospital], you’ve more than paid for the cost of an ombuds/mediator."

    But Kaiser Permanente’s commitment to dealing with mistakes is atypical, say consultants and business executives. A 2003 study by the Customer Care Alliance, a group of customer-service consulting companies in Alexandria, Virginia, found that 60 percent of people who were unhappy with service wanted an apology, but only 5 percent ever received one. Kenneth Goodman, codirector of Ethics Programs at the University of Miami, says that when businesses do bring themselves to apologize, too often they lack sincerity. "When you’re on the line with the phone company and the person tells you, ‘I’m sorry for any inconvenience,’ that’s hollow and of no particular consequence. If someone says to you, ‘I’m sorry, and here’s what I’m going to do to pay for the mistake or fix things,’ that’s a real apology."

    Certainly, U.S. firms have a long way to go before they reach the extremes of contrition common in some Asian cultures. As the Associated Press recently reported, when Japanese broadband Internet provider Softbank inadvertently leaked the addresses and phone numbers of 4.5 million subscribers, the company president, Masayoshi Son, publicly promised to upgrade security--and punished himself with a 50 percent salary cut for six months to demonstrate the depth of his remorse.

Contrition-resistant companies
    Why are companies and individuals so reluctant to say they’re sorry? Some point to an American culture that has long sent mixed signals about the virtue of contrition. In a 2000 article for Missouri Lawyers Weekly, for example, St. Louis attorney and mediator Paula Young cited classic movie westerns such as She Wore a Yellow Ribbon, in which a grizzled cavalry veteran, portrayed by John Wayne, admonishes younger officers to "never apologize--it’s a sign of weakness." Other experts say that fear of lawsuits or possible harm to careers also deters people from owning up to mistakes or poor performance. Kenneth Cloke, an attorney and mediator who is director of the Center for Dispute Resolution in Santa Monica, California, argues that intractability simply may be a strand in corporate DNA. "The nature of most business organizations is that they’re set up to diffuse responsibility," he says. "The higher you go up the corporate ladder, the more of an inclination there is to deny responsibility, and push the blame off onto someone else."

    But organizations that have dared to use apologies often have avoided potentially serious problems, or at least reduced their impact. Most notably, corporate contrition can be a major factor in reducing companies’ litigation costs. Daniel O’Connell, Northwest regional coordinator for the Bayer Institute for Health Care Communication, designed the model for Kaiser Permanente’s communication training. He says studies in the United States and Great Britain have consistently shown that 70 percent of patients sue primarily because they’re frustrated by hospitals’ and doctors’ behavior.

    A 1994 study by University of Michigan legal scholars Russell Korobkin and Chris Guthrie found that only 12 percent of plaintiffs rejected a pretrial settlement proposal accompanied by an apology, compared to the 30 percent who turned down an offer sans contrition. After paying $1.5 million in damages from malpractice lawsuits in 1986, the Veterans Administration Medical Center in Lexington, Kentucky, instituted a new policy of promptly disclosing mistakes to patients and apologizing for them. A follow-up study, published in the Annals of Internal Medicine in 1999, showed that the hospital had reduced its average annual settlement costs to just $190,000.

    Margret McBride, co-author with Ken Blanchard of the 2003 book The One Minute Apology, says that learning to apologize can help a company avoid drains on its productivity and morale. "When you have a place where people are afraid to admit that they’ve screwed up, you’re creating a toxic environment. You can end up with an Enron, where people spend so much time shredding and deleting and trying to keep their lies straight that they don’t have time to get their work done. "

Apology as part of the culture
    Atlanta-based attorney and consultant Stephen Paskoff, who trains corporate staffs in ethical behavior, says it’s crucial for top management to lead the way in taking responsibility for mistakes and shortcomings, and offering apologies if necessary. "Apologies can be a powerful tool for conflict resolution, but only if they’re part of a cultural change," he says. "You need your corporate leaders to say, ‘If we make mistakes, we fix them. If someone says there’s a problem, you need to listen to what they have to say. And if you have a problem, you need to bring it up, because we’ll listen.’"

    But it’s not enough just to convince people that it’s OK to admit they’re sorry. For contrition to be effective, companies have to create an institutional framework and protocol for giving apologies. Companies can set the right tone by utilizing contrition as a tool to solve both internal disputes and complaints by customers or business partners, McBride says. In her experience, it’s sometimes difficult to get managers to buy into the concept because they’re worried about appearing weak to subordinates if they admit mistakes. "They’ll insist they don’t have anything they need to apologize for," she says. "I tell them that they should ask their staff about that. They’re usually surprised by what they hear because the truth is that everybody keeps a tally sheet for the boss."

    When an apology is due, it’s critical that it be delivered by the right person, says Bayer Institute researcher O’Connell. The timing and stature of the messenger, he says, have to be proportional to the harm suffered. "If a young nurse makes a minor mistake with medication but the person doesn’t actually get hurt, it may be okay for her just to apologize right then and there," he says. "If someone is at all harmed, though, you want the chief of nursing to come in and apologize. And if the injury is really serious, you want the CEO."

    Consultants generally agree that an effective apology includes certain key ingredients:

    Sincere regret that the person suffered harm. "Every conversation should start with, ‘I’m so sorry that you’re going through this,’ " says Houk. It’s vital to show an understanding of the pain, hardship and, most likely, fear that the person is experiencing. O’Connell advises doctors to imagine themselves as, say, the mother of a toddler who came into a hospital with the flu and ended up with spinal meningitis. "If you can visualize the feelings that a person is experiencing, you’re better able to communicate with him or her," he says.

    Information. People appreciate a clear, honest explanation of why something went wrong, says O’Connell. Evasiveness, in contrast, can be disastrous. "Imagine that you’ve been on a plane that had a near miss, and the pilot gave the passengers some vague mumbo jumbo that you couldn’t figure out. Then later on, you’re walking by the pilots’ lounge, and you overhear the guy telling his buddies that it really happened because he made a mistake. You’re going to think, ‘That SOB lied to me. He thinks I’m a moron.’ The error then becomes a self-esteem issue--you’re angry and hurt, and you’re not going to let him get away with it. We don’t want that to happen."

    Corrective action. If the harm is the result of a mistake or a flaw in the system, promise that everything possible will be done to fix the problem. "People want an assurance that the same thing is not going to happen to someone else," says Houk. "It helps give meaning to what they’re going through."

    Restoration. It’s important to promise to help the victim recover and, if appropriate, to provide compensation for harm that can’t be remedied--though specific details of a settlement should be left to the company’s lawyers or outside insurers, O’Connell says. The conversation should communicate the desire to make a person whole again, and not the impression that money is being thrown at a problem to make it go away. Hospitals, for example, may be able to assuage some of patients’ feelings of being wronged--and possibly avoid litigation--if they offer to provide follow-up care and needed items such as wheelchairs or medical devices.

Avoiding legal pitfalls
    Although the use of apologies has been shown to reduce lawsuits and litigation costs, companies still have to be cautious about the possible legal consequences of saying they’re sorry. Although the federal courts and least a half dozen states restrict recipients of apologies from using them as evidence in lawsuits, loopholes remain. In California, for example, an apology that contains a clear admission of negligence--or substantiates a plaintiff’s accusations--can be used against the person or company that expressed regret. That’s why attorney and ethics trainer Stephen Paskoff says apologies should be carefully crafted. "You’ve got to be sincere, but not admit liability," he says. "So you say that you’re sorry for what happened, not that you’re sorry for having violated the law."

    But it’s possible to give an apology that satisfies an aggrieved party without conceding liability, experts say, because most people really are looking for something besides legal vindication. "People don’t want you to confess or to grovel or to make gratuitous mea culpas," says attorney and mediator Kenneth Cloke. "What they want is empathy. They want you to show that you understand what you’ve done to them, and to show genuine remorse. What they don’t want is for you to try to weasel out of it. "

    While Kaiser Permanente is still in the process of compiling data, Merl believes that it ultimately will validate the program’s effectiveness at reducing the sort of patient complaints that lead to litigation. Although he can’t give details because of medical confidentiality, Merl says, "We’ve had situations in which someone has been injured, but the patient and the doctor have been able to heal the relationship, and the patient is willing to continue being treated by the same doctor."

Workforce Management, October 2004, pp. 57-62 -- Subscribe Now!

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