Apology, Forgiveness and Reconciliation

Beginning in childhood and continuing through adulthood, most people are taught that apologies are important.  Whether it is apologizing to a sibling for taking their toy, apologizing to a parent for breaking curfew, or apologizing to a spouse for upsetting them, apologies are an important part of our lives.  Why then, are apologies so often overlooked in modern legal proceedings, especially in the medical malpractice field?

Many people have suggested that an apology should not be given by a doctor because it is an admission of guilt, because an apology can and will be used against a doctor in subsequent litigation, or even because an apology may void an insurance policy.  Although there has been a strong focus on the potential risks of an apology in the medical malpractice field, there has not been nearly as much attention paid to the potential benefits of an apology.  However, there are benefits of an apology in a malpractice scenario.  Recently, legal scholars have encouraged the use of apologies to promote settlement discussions and emotional well being.  It appears that the benefits may even outweigh the risks of an apology for both the injured patient and the doctor.  This paper will discuss the benefits of encouraging apologies in the medical malpractice field and how apologies of this nature can be implemented; focusing on the effects this would have on litigation.  This paper will not focus on apologies in general relationships or in any context other than medical malpractice cases.  Part I of this paper reviews the current literature on apologies and their role in the medical malpractice industry, while Part II of this paper is an analysis of that literature. 

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Melissa Barcena is a Law Clerk at Northrup Schlueter APLC, where she focuses predominantly on litigation and arbitration in the field of construction insurance defense. She will receive her Juris Doctorate from Pepperdine University School of Law and a Masters in Dispute Resolution from the Straus Institute in May of 2013. Melissa has been published on the Pepperdine Journal of Business, Entrepreneurship, and the Law. Graduated Magna Cum Laude from The Ohio State University with a degree in English, her hobbies include hiking, running marathons throughout Southern California, and trying new restaurants.