When CEOs, MDs apologize, what does it mean for victims?

 Benjamin R. Zimmermann, The Daily Record Newswire

The business world and pundits have been ruminating over the public apology issued by General Motors CEO Mary Barra for the delayed recall of 2.6 million vehicles with known defects linked to nearly a dozen deaths.

Taking a line out of a public relations crisis playbook, Barra said: “I am very sorry for the loss of life that occurred, and we will take every step to make sure this never happens again.”

Barra went on to outline what seem like familiar steps in the PR apology process:  the appointment of an investigative committee to report back at some unknown time, the creation of new safety positions, and the like.

What personal meaning such apologies have to victims of negligence will vary, of course, from victim to victim. But from a logical and legal perspective, is this an apology at all? The words mimic those of an apology, but part of the process of apology is “making right.” That includes accepting the consequences and not just offering empty statements at a press conference podium. Whether GM will actually own up to its errors remains unknown.

The apology by GM, thus far, falls far short of that hypothetical true apology, and only time will tell whether it morphs into one.

GM was bailed out by the government in 2009 and came out of bankruptcy on the backs of taxpayers. In that process, GM shed its liability for product liability claims that arose prior to July 10, 2009.

Will Barra’s apology include a waiver of bankruptcy immunity or other legal defenses? Will the threat of bankruptcy defense be used to lower the settlement value of pre-2009 cases?

Barra has said that GM intends to “do the right thing” by victims. But as a CEO in an industry known to fight product liability claims with scorched-earth tactics aimed at wearing plaintiffs down, and with bankruptcy protection in GM’s defensive arsenal, it is difficult to see that happening.

Indeed, in early May, weeks after her remarks about “doing the right thing” by victims, GM was in front of the Bankruptcy Court asking for protection against claims for consumers’ economic losses as a result of the recalled vehicles.

It’s not only when dozens are injured by Fortune 500 auto manufacturers that apologies and the law intersect. Much ink has been spilled in Massachusetts and elsewhere about the role of apology, most often in the context of medical-malpractice law, but also in the area of products liability.

Most states, including Massachusetts, have made apologies inadmissible in court, and the Massachusetts medical-malpractice statute was changed in 2012 to reiterate that longstanding law.

The Federal Rules of Evidence, unlike Massachusetts, even make a recall inadmissible in court, supposedly to encourage companies like GM not to do exactly what it did when it delayed a recall at the expense of lives.

Whether these laws, which have been in existence for decades, actually encourage apologies or prompt recalls, is debatable at best.

In representing victims of medical malpractice and product defects, experience has shown that true, meaningful apologies are exceedingly rare. Hypothetically, a true apology, or at least a legally meaningful one, would consist of a full explanation for what went wrong, a disclosure of who has been held accountable and how, a description of what has been done to prevent it from happening again, and, yes, an offer of reasonable compensation.

In 2012, Massachusetts attempted to implement that kind of “Disclosure, Apology and Offer” — or DA&O — into the medical-malpractice law. While no data has been published by insurers or hospitals regarding how the law is working, experience has shown that true apologies remain rare.

Laws like Massachusetts’ most recent iteration of its medical-malpractice law have the lofty and important goal of encouraging apology, disclosure, compensation and ultimately closure for victims and tortfeasors.

In the real world of tort law, however, true apology, when it occurs, does not occur because of legislation. It occurs when someone admits he has made an error and hurt someone — and has the courage to admit it and accept the consequences.

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Benjamin R. Zimmermann practices at Sugarman & Sugarman in Boston.