In the law enforcement profession, the words “I’m sorry” are rarely said. Risk managers, city attorneys, and police managers would have you believe that saying sorry is tantamount to admitting a mistake.
Without doubt, our profession is fraught with potential litigation and the area that draws the most litigation is the use of force — particularly the use of lethal force. The framers of the Constitution — with the subsequent aid of the United State Supreme Court — established guidelines for when law enforcement officers can judiciously, lawfully, and objectively use force up to and including lethal force.
But saying “sorry” is not equivalent to admitting culpability for an action — whether that is a use of force, an investigation, or any officer interaction that “creates concern” in the community.
The word “sorry” is basically defined as:
1.) Apologetic: feeling or expressing regret for an action that has upset or inconvenienced somebody, or is likely to do so
2.) Sympathetic: feeling or expressing sympathy or empathy, especially because of something that has happened
3.) Pitiful: pitifully bad or neglected
According to at least one Internet search (Bing.com), there are six synonyms: apologetic, regretful, remorseful, repentant, sad, and unhappy. At least in that one online search, I was unable to locate anything that specifically implies “fault” or (more importantly) culpability.
Apologies and Medical Errors
Ours is not the only profession in which practitioners face lawsuits when a person is harmed or dies. We all know, for example, that if someone dies in a correctional setting there are potential suits.
But I think we should pay attention to the parallels we can draw from the medical profession. Because there is a persistent risk that a person may be harmed or die as a result of some action or inaction, physicians and hospitals carry specific malpractice insurance. They also carefully prepare and plan for potential litigation as a result of human error, and complications from treatments.
There has been some recent research conducted that was specifically focusing on doctors and hospitals apologizing for their actions, or inactions. One conclusion being reached is the possibility that the action of issuing a sincere apology has created a decrease in litigation, pay-outs, and insurance premiums.
What are the implications for law enforcement?
Well, both doctors and law enforcement officers work in emotionally-charged, life-and-death situations. Each profession is also reliant upon human judgment.
During reviews conducted by supervisors, peers, risk managers, legal advisors, and the courts, this judgment or action is called into question on a regular basis. .
Obviously, not every action from a physician causes harm or is a result of human error, or foreseeable error. Just as obviously, this is true within law enforcement as well.
As noted in Graham v.Connor, use-of-force situations are tense, uncertain, and rapidly evolving. Officer make decisions just like doctors based on the totality of the circumstances — in situations that may cause, death or harm. Just because there was “harm” does not mean that the officers or doctors acted inappropriately or violated the law.
Research on Doctors’ Apologies
As noted by Jennifer K. Robbennolt JD, PHD, “One way which physicians can respond to medical error is to apologize. Apologies — statements that acknowledge an error and its consequence take responsibility, and communicate regret for having caused harm.”
Consequences as a result of putting a human under the proverbial knife, the consequences impact both the patient, and the treating doctor. How is this different than an officer, and suspect in extreme and violent use of force, or application of the use of deadly force?
As noted by Dr. Alexis Artwohl, officers are victims of a violent crime when a suspect “attacks” them. The officer needs to protect themselves, the public, and potentially the attacker. This interaction between the police and suspect could (and does) have potential have long-term implications toward quality of life, and the officer must deal with both physical and physiological impacts of the application of force.
For the officers they might be physically injured with the inability to continue in their profession most of us know the story of Trooper Bobby Smith, and Sergeant Marcus Young.
Robbennolt noted that individuals who filed suits against physicians “are motivated to find out what happened and to prevent future injury …40% reported that if they had received an explanation and apology, they may not have felt the need to file suit.”
Individuals who did file suit felt that the only appropriate place to get a resolution of what happened was in the court room.
Robbennolt said also that in the world of doctors, “the most commonly cited barrier to disclosure and apology by physicians and risk managers is the fear of litigation or legal liability.”
However the disclosure of an error or apology has no direct correlation to the actual lawsuits that are filed. Research has found that those most-seriously injured as a result of a medical problem did not file lawsuits.
Research that focuses on doctors who apologize tend to demonstrate that patients are more likely to settle as opposed to go to trial — most importantly, the apology does not appear to play a role in the suits.
The courts have a tough time placing blame on doctors who apologize for their errors, thus demonstrating the actual “damages” or “punishment” should not be that harsh, because the organization and doctor are transparent about how they feel.
In law enforcement, the Graham v. Connor and Tennessee v. Garner Supreme Court decisions afford latitude for the use of force and lethal force. The application of force is viewed in the objectively reasonable standard, at the time the force was applied.
In a future column we’ll discuss some direct correlations to law enforcement. In the meantime, what do you think those correlations might be? Sound off in the comments area below.
References
Robbennolt, (2010) Apologies and Settlement 45 Court Rev. 76
Robbennolt, (2009) Apologies and Medical Error, 467 Clinical Orthopedics + Related Res. 376
