Attorney John Durso, Esq., LeadingAge Legal Committee member since 1980

Is it smart to apologize to a resident or the resident’s family, or will the apology increase the chances for a lawsuit against the organization?

Examples of potential incidents include when a resident is the victim of a bad transfer, causing the resident to break a bone; medication errors that cause a negative or even fatal reaction; or when a resident is unattended for too long, causing them to fall and have an injury when attempting to get to the restroom on his or her own.

For a resident to win damages for negligence, the resident must establish that the care provided did not satisfy the duty of care. Also, the resident must establish this breach of duty caused the injury or damage.

Thus, any apology must be structured in a way that is not an admission of a breach of the duty of care that caused the injury to the resident.

If not carefully structured with the advice of the legal counsel who defends the facility and the insurance company that covers and pays the resident for any court awards of damages, the apology could become evidence used against the facility if the resident or resident’s family files a lawsuit.

There is a difference of opinions on whether an apology is a move that will increase the chance of a lawsuit, or will satisfy the resident and family, preventing a lawsuit. You must receive advice from your insurance company and your lawyer who specializes in defending these types of situations.

If they believe that an apology is a good practice, they will help you structure it and advise you how to present it. This is so it is less likely to be used against you as evidence or an admission in a subsequent lawsuit.

If the insurance company instructs you not to make an apology, refusing to follow its position could lead you to lose the insurance coverage.

Please send your legal questions to John Durso at [email protected].