Dateline: February, 2007, Issue 5

Are plaintiffs awarded more money when defendants show remorse?

When mistakes are made in social situations, the appropriate response is to apologize. When professionals make mistakes while providing services, an apology has the potential to expose professionals to litigation and findings of liability.

When a mistake is made, can a professional offer a statement of remorse, rather than an apology, without incurring liability and damages? A statement of remorse is an expression of sadness about an event that lacks any admission of responsibility or fault (e.g., "I am sorry for the unfortunate death of Xavier", "I am sorry you had a myocardial infarction").

Bornstein and colleagues (2002) examined the effects of defendant remorse on monetary damages awarded to plaintiffs in two types of medical malpractice cases, one where the plaintiff was either an injured patient's spouse in a wrongful death suit or the patient was suing on his own behalf. In both cases, jurors were told the physician misread a patient's electrocardiogram and misdiagnosed him with acid reflux rather than a myocardial infarction.

The researchers compared four situations in which physician-defendants could find themselves when medical mistakes occur and an expression of remorse could be made:

Not unsurprisingly, jurors perceive defendants who express remorse - at the time of the incident and/or at trial - more favorably than defendants who do not show remorse.

However, jurors award the greatest compensation when the physician expresses remorse at the time of the incident. Jurors award less compensation when the physician-defendant expresses remorse at trial or makes no mention of remorse.

The physician-defendant's display of remorse affects jury decision-making, and the timing of that remorse is crucial. When the defendant expresses remorse only at trial, the plaintiff receives less, and approximately the same amount of, money as when the defendant makes no mention of remorse at all.

Source Bornstein, B. H., Rung, L. M., & Miller, M. K. (2002). The effects of defendant remorse on mock juror decisions in a malpractice case. Behavioral Sciences and the Law, 20, pp. 393-409.