I was looking to rent a power washer, and ended up finding a small shop in a block of mostly empty storefronts in downtown Memphis, Tenn. The owner was one of those characters who is hard to forget.
He had been robbed several times at gunpoint, and his skull was fractured earlier in the year by a young man wielding an iron pipe. But what really worried him was the legal system. “I can’t afford the insurance that the big chain stores carry,” he said. “I’m just waiting for the day when a lawsuit shuts me down.”
He went on to tell stories of customers determined to injure themselves with his equipment, like the guy who leaned an extension ladder upside down against his house and fell 10 feet when he stepped onto the upper section of the ladder. He did that three times before coming back to the shop. “There’s something wrong with this damn ladder!” he shouted.
“Every time somebody rents a piece of equipment, I go through how to use it. But most people don’t pay attention or they do dumb things I would never even think of. Just ain’t no cure for stupid,” the shop owner concluded.
When things go wrong, our tendency is to create rules to prevent them from happening again. Then we hire experts to remind us what the rules are, how to interpret them and how to protect ourselves from those who want to use the rules against us. We have lots of rules about how to use the rules.
One of the rules about rules is this: When somebody is injured, never say “I’m sorry” — it could be used against you in court.
Two Wisconsin legislators have introduced a bill to allow doctors to apologize to patients without fearing that the statement could be used against them in a lawsuit. The Wisconsin Medical Society and the Wisconsin Hospital Association support the bill; the Wisconsin Association for Justice (representing trial lawyers) opposes it.
What I have read of arguments on both sides seems fundamentally misguided. What bothers me about the debate is the assumption that whenever something goes wrong, doctors and patients must necessarily become adversaries. It’s an assumption in direct contradiction to the ethos of health care. It erodes the trust and confidence of the patient and undermines the morale of the health care worker.
Regardless of whether the bill passes, it doesn’t have to be that way.
When Ken Melrose was CEO of Toro, he changed the way the company responded to customers injured by their products. Lawn mowers and snow blowers are inherently dangerous. No matter how safe Toro made its machines, some people still got injured. The challenge was how to respond.
Instead of seeking to change liability laws, the company developed something called “Alternate Dispute Resolution.” Whenever someone was injured using one of its products, regardless of whether the company thought it might be at fault, a team was sent to investigate and — this is the crucial part — express remorse.
Toro went from an average of 100 lawsuits a year, with half of them ending up in court, to settling two-thirds of their cases in the home and using a mediator for the rest. In the first 15 years of the program, only one injury case went to court.
Laws designed to protect consumers can sometimes cause even more harm by turning people who want to do the right thing into the enemy. But as the Toro example shows, we don’t necessarily have to change the laws before we change our behavior.
People do stupid things, and sometimes those stupid things have terrible consequences. Most people understand that and are willing to make allowances, but only if goodwill and sincerity are evident at the outset.
The shop owner in Memphis could take heart from Toro’s example. You don’t have to be a large company to afford good customer service, and that turns out to be the best protection against lawsuits.
We shape our relationships by the conversations we have. And no healthy relationship can survive without the words, “I’m sorry.”