Gag Order/Confidentiality Project from Sorry Works! — need your opinion

gagIn a recent Sorry Works! e-blast about the toddler dying during a dental procedure, there was a quote from a dental professor claiming that most malpractice settlements have gag orders or confidentiality clauses. Here is the quote: “When there are malpractice suits, settlements often include a gag order that prohibits plaintiffs from talking about it, according to Dr. Joel Weaver, a dentist anesthesiologist and emeritus professor of the Ohio State University Medical Center.

This touched a nerve with some readers, and, to be frank, I have heard numerous complaints about this topic over the last eleven years from both clinicians and consumers. Both sides basically saying the same thing, namely how can medicine improve and learn from events if we don’t talk about lawsuits and closed claims? Many clinicians tell me they see or hear about adverse events, but then the lawyers sweep in, everybody clams up, and they (the clinicians) never find out what happened with a particular case. I have had countless nursing managers and front-line physicians state that cases literally disappear into a black hole.   Conversely, patients and families feel threatened they will lose their home, savings, etc if they talk publicly about their cases.

How can we expect medicine to improve with such behavior?

Look, some estimates peg medical errors as the third leading cause of death (behind cancer and heart disease) in the United States. When it comes to cancer and heart disease we can’t — rightly — stop talking about these villains. There are countless news stories and books about life and death with cancer or heart disease from the perspective of patients, families, and clinicians. There are Facebook pages, fundraisers, rallies, t-shirts, etc, etc. But medical errors? Eh, shove it under the rug!

I want Sorry Works! to work on this issue. Now, I do NOT envision lobbying for passage of laws, or asking for regulations to be changed. In fact, I don’t want anything to do with out dysfunctional political system — just look at the Presidential race! Sorry Works! has been successful over the years because we have completely side-stepped politics and, instead, focused on education and awareness which has shown healthcare professionals they can fix the malpractice crisis on their own with disclosure. I intend to do the same with gag order/confidentiality issue…show people why it is in their own best interest to change their behavior.

Here is where you come in: What are the arguments for maintaining the status quo? Why do lawyers and executives from hospitals and insurers insist on gag orders or confidentiality clauses? And really important question: How often are gag orders or confidentiality clauses inserted in settlements? Some lawyers have told me that gag orders or confidentiality clauses are simply another “check box” on the way to settlements that no one really thinks about…is this true? If you are a med-mal lawyer, what has been your experience with confidentiality clauses? Is this issue more urban legend than fact? Is this the monster under my six-year old’s bed, or are gag orders a real problem that need to be addressed? Please share your thoughts and experiences with me by e-mailing doug@sorryworks.net or calling 618-559-8168. Your answers will be completely confidential.

Sorry Works! will publish a paper on this topic during the third week of July.

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UPDATE — Sexual Assault Victim, Oregon State Univ. Provide Powerful Example for Hospitals/Nursing Homes

RILEYEarlier this year, a friend in Oregon sent me a story about a young woman who was raped by four Oregon State Football players in 1998. Long story short, the school initially shoved the case under the rug, but, under a new President the school apologized and hired the woman — Brenda Tracy — to consult on sexual assault prevention. Powerful story of disclosure and reconciliation.

But it gets more powerful.

My Oregon friend sent me an update on the story this week.  At the time of the rape (1998), Oregon State was coached by Mike Riley, who is now the head football coach at the University of Nebraska. Riley invited Tracy to Nebraska to meet with him and his entire football team. They hugged and cried, and Brenda got a chance to ask every question of Riley she had wanted to for over 18 years. Later, Brenda talked to the entire football team, and told the players that for a time she hated Riley more than her rapists.

There was this powerful quote from one of the news stories that will sound familiar to Sorry Works! readers: “We talked about how it’s OK to say sorry. It’s OK to be accountable. It’s OK to stand up and say, ‘I didn’t do something right,’ or ‘I did something wrong,’ and move on from there. Sometimes when you wrong another person, all they really want is an apology.”

Gee, does that sound familiar?

My Oregon friend said this story could just as easily be about medical malpractice: Something bad happens in a hospital or nursing home, leadership and staff shut down, patient or family suffers for a long time, but, eventually, integrity creeps in and everyone has a chance to reconcile and bring a lot of good out of bad.

What can you and your hospital or nursing home learn from this story? How can you make Brenda’s story YOUR story?

Below is our original post, and here and here are news stories from Brenda’s recent visit with Coach Riley and the Nebraska football team.

 

Sincerely,

– Doug

Doug Wojcieszak, Founder, Sorry Works!

 

 

****** Original Sorry Works! post from this Spring

A friend recently sent me an article about a young woman who had been gang-raped by Oregon State University football players in the late 90’s, the school and local prosecutors shoved the case (and the woman) under the rug…and then sixteen years later the school made the situation right.

The victim, Brenda Tracy, had been unable to let go and was in therapy in 2014 when she contacted Oregon State University to talk about her case — and got nowhere. So, she went to the media. Ed Ray, Oregon State’s President, ordered an investigation, and three weeks later personally met with Ms. Tracy to deliver a tearful apology. But President Ray went even further…he hired Ms. Tracy to consult on sexual assault at the Oregon State Campus. Today, Ms. Tracy regularly speaks to and works with Oregon State sports teams and other student organizations to improve awareness and sexual assault prevention. It’s a powerful story and example.

A lot of parallels with this story and medical malpractice. Just like hospitals and nursing homes, many universities and colleges don’t handle allegations of wrong doing in a proper manner. University administrators, worried about the image of their school and keeping rich donors happy, often bungle investigations and fail to stay connected with victims and their families or offer appropriate support. Follow through and tangible change are often completely missing. A lawsuit may follow and possibly a settlement, but the settlement usually only involves money (no apology or admission of fault) and typically freezes out a potential change agent: The victim. Take your money and get lost is the message.

Sound familiar?

So, you want to change your hospital, eh? Or really make your nursing home top notch? Well, your best resource is the patients and families you’ve harmed. Now, I know — I know very well — that not every patient or family is equipped for this work. Moreover, some folks may be a perfect fit but have no desire to participate. But, if you have an open heart and are willing to look you will find many people who are both equipped and willing to help your hospital or nursing home. Nothing sends a message to doctors and nurses like the following: “My name is XXX, I lost my mother at this hospital…today, I am going to share with you my mother’s journey through this hospital due to medical errors, and then we are going to talk about making sure this type of tragedy never happens again.”

Moreover, don’t be afraid to really involve patients and families. By “really involve” I mean more than sticking them on the back end of a patient safety committee overloaded with docs, nurses, and other in-house staff. Use these people….put them to work, and don’t be afraid to listen to their ideas.

The Sorry Works! Tool Kit had many ideas and examples of how to include patients and families in your quality improvement processes. Click on this link to order the Tool Kit today.

 

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Nominate Yourself (or a friend) for a Free/Sponsored Sorry Works! Tool Kit for June

Tool Kit coverRecently a patient safety advocate purchased/sponsored one FREE Sorry Works! Tool Kit per month for the next year, and asked us to donate the Kit to anyone we wish.

In March, April, and May we awarded the Tool Kit to healthcare organizations working to implement disclosure. Who should receive the sponsored Tool Kit for June? Which hospital, nursing home, insurance company, or law firm should win the Kit in June?

We are looking for suggestions. We are looking for the names of individuals, hospitals, nursing homes, insurers, risk or claims managers, or lawyers. And you can nominate yourself! In fact, our winners from March, April, and May were self-nominated. Ultimately, we want recipients who will use the Kits. Nominations are due this Monday, June 27th.

Send us a short e-mail message stating why your organization, or one you know of, should be the monthly recipient. Send the name of a hospital or nursing home including the name of an executive (risk manager, claims manager, CEO, General Counsel, etc). We will NOT publicize who receives the Kit. We can share your name (as the nominator) with the recipient, or not — your choice. E-mail suggestions to doug@sorryworks.net.

Or perhaps you would like to sponsor a Kit yourself? Now, this is the first time we’ve had a person sponsor a Kit (or any content) for 12 months, but we’ve had plenty of people make one-time purchases and tell us to ship content to a certain person or organization. If you are interested in sponsoring a Sorry Works! Tool Kit, e-mail doug@sorryworks.net or call 618-559-8168. The Tool Kit retails for $49.99 per unit, but the “sponsor price” is just $39.99 per unit. To sponsor a kit, e-mail or call.

The Sorry Works! Tool Kit is the complete resource for organizations and individuals wanting to implement disclosure. Everything you need to begin your disclosure program is found in the Sorry Works! Tool Kit. Included are the Sorry Works! Tool Kit Book, which is the blue print for any hospital, nursing home, or large practice wanting to start a disclosure program. From developing your policy, to educating your staff, and sustaining your disclosure program, the Tool Kit Book has it all. Also included in the Tool Kit is the Disclosure Documentary, a powerful movie developed by Lawrence and Steve Kraman that not only shows your leadership and staff the importance of disclosure, but will inspire them. The Sorry Works! PowerPoint presentation and Little Book of Empathy (great for front-line staff) are also included in the Tool Kit along with Pocket Notes.

Lots of great stuff in the Sorry Works! Tool Kit. So, again, we need to find homes for 12 Kits over the next 12 months….where should they go? Please e-mail suggestions to doug@sorryworks.net by Monday, June 27th. Moreover, if you want to sponsor some Kits, please e-mail doug@sorryworks.net or call 618-559-8168. The regular price for a Kit is $49.99, but the “sponsor price” is $39.99 per Kit. Finally, if you simply wish to purchase a Kit for yourself, click on this link.

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Is There a Statue of Limitations in Heaven?

heavenQuestion for our theologians and wannabe theologians: Is there a statute of limitation in heaven? You know, if you do something really bad and stupid at, say, age 21, but live to the ripe old age of 95, does the good Lord sigh and say, “Gee, would love to hold that one against you but the clock ran out 50 years ago!”

I don’t think so.

Now, I believe many Jews and Christians profess an age of accountability, whereby you are not held liable for any misdeeds until you reach a certain age such as 12 or 13 years old. However, given what we know about the teenage and young adult mind, perhaps the age of accountability should be pushed back to our mid-thirties!

I truly believe each of us will have to account for our life to God, and I am reminded of this when I attend church on Sunday mornings. However, I am troubled by faith-based organizations that preach about your eternal soul on the Sabbath, but send high-priced lawyers to court on Monday morning to argue their sins from the past are time-barred and beyond prosecution. How do you square that?

Recently, Pennsylvania officials blew the lid off a decades-long cover up of sexual abuse by the Catholic Church. In response, Keystone state lawmakers introduced legislation to extend the statute of limitations for victims of sexual abuse. The Catholic Church was not happy, and mounted a full court lobbying effort to the kill the legislation, which included publicly naming and shaming Catholic lawmakers who voted for the legislation! Here and here are some samples of the news coverage.

I am writing this column for two reasons. First, we have many faith-based healthcare organizations that read this e-newsletter. These organizations need to question if their risk management principles are consistent with their faith? Moreover, are their lawyers acting in manner that is respectful of their faith? Second, whether or not you work for faith-based healthcare organization, we are all moral creatures, and sometimes there is a profound difference between what is legally right and morally wrong. You can pay high-priced attorneys a truck load of money to “win” a case, but in so doing destroy your culture and the morale of your staff, and make your hospital or nursing home a much more dangerous place for patients and residents.

Now, I am not a lawyer, but I work with lawyers and risk and claims professionals closely in my professional duties. The courts have statute of limitations in place because over time memories fade, evidence is lost or destroyed, and witnesses move away or die. Moreover, to accurately access risk and price their products, insurance companies need to be able to close the books on cases at a certain point of time. I respect the concept of statute of limitations.

However, let’s say you are the chief risk officer for a healthcare organization, and a case comes across your desk that is, for example, four years old, the statutes expired two years ago (statutes in most states are two years with some exceptions), but the evidence is absolutely clear that compensable errors happened. Moreover, when you pull the doc into your office he/she readily admits to the mistakes. So, what are you going to do? Put the case in the file drawer and hope it never sees the light of day? Notify your lawyer? Or call the family?

Or, spin the scenario another way….let’s say your hospital killed a 32-year old man who was not married and had no dependents, but you operate in one of those states that does not allow parents or siblings in such cases to pursue a lawsuit. What would you do? Call the lawyers, or work with the family?

Now, many claims professionals would argue there is absolutely no duty to pay on such cases. However, regular readers of this space know that claims professionals (and many lawyers too) often fail to look at the big picture, including all the angles on money and the bottom line. Yes, with disclosure you will pay on cases you otherwise might be able to “win,” but in so doing you are making an investment in the culture and safety of your organization. By paying on such cases, you are not only running a morally superior disclosure program (which God would approve of!), but you are also more likely to learn from cases, make improvements, and be in a better position to prevent errors in the future which will lead to tremendous savings. Moreover, by being known for doing the right thing you will dramatically improve the morale of your staff, leading to improvements in retention and recruitment — which have enormous implications for the bottom line.

Morality versus legalisms is an important issue to keep in mind as you develop your disclosure program. We cover these issues and much more in the Sorry Works! Tool Kit….to order your copy click here.

Finally, Happy Father’s Day to my dad and all the dads out there, and thank you to my children Will (age 10) and Claire (age 6) for making my life so rich.

 

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Review of AHRQ’s new “CANDOR” Disclosure Tool Kit

AHRQRecently, AHRQ — the Agency for Healthcare Research and Quality — released a comprehensive Disclosure Tool Kit for hospitals entitled “CANDOR,” which is short for Communication and Optimal Resolution. In this column I will review the CANDOR Disclosure Tool Kit. There were many high-level professionals and well-known organizations involved in the development of the CANDOR Kit. These individuals and organizations are welcome to publish a response in this space to my comments below. I will gladly accept one more or letters from individuals or organizations involved in the development of the CANDOR Tool Kit. I will only edit for typos, missing words, misspells, etc. I can be reached at doug@sorryworks.net or 618-559-8168. I sincerely hope the CANDOR leaders will not only respond to my comments below, but also further educate Sorry Works! readers about their content and plans going forward.

Sorry Works! Review of the CANDOR Disclosure Tool Kit.

1) Overall impression? The CANDOR Tool Kit is a valuable contribution to the disclosure movement. It is obvious that the CANDOR team spent a lot of time and effort developing this tool kit. Bravo! There is a lot of videos and valuable information. However, is the CANDOR Tool Kit the “be all end all” for organizations seeking to implement disclosure? No. You should seek out disclosure training content from other organizations. I wouldn’t even call the kit or the entire CANDOR project “excellent,” at least not yet. See my comments below.

2) Where is the publicity? The CANDOR team spent several years and presumably lots of government grant money developing this free tool kit, yet the launch of their kit has generated scant media coverage. According to my search of Google News, I’ve seen only four articles over the last three weeks, including a press release the CANDOR folks paid for PR Newswire to distribute. PR Newswire is like Twitter for reporters, and just like Twitter for us non-reporters, most reporters don’t pay much attention to PR Newswire. The CANDOR Tool Kit and this entire CANDOR project has ZERO value if nobody knows about it.

Now, the CANDOR folks may say they are sending e-mails and letters to their colleagues, but a true PR push for a project of this magnitude should hit all the buttons, including popular and trade media outlets as well as social media — especially social media. A true media plan would include personalized e-mails to reporters & bloggers followed up with phone calls to pitch the story and a list of people ready to go on the record. You got to sell it! It should have been a full-court press, and Sorry Works! should have been included in that effort. Yes, we sell our own content at Sorry Works!, but we have a history of promoting products and content developed by others. If it’s good for disclosure, we will publicize it. Sorry Works! has an e-distribution list of over 2,000 healthcare, insurance, and legal professionals who are interested in disclosure and signed up for our e-newsletter voluntarily — it’s a very valuable list for disclosure advocates. The Sorry Works! website receives nearly 500 unique visits per day, and we have a healthy and growing presence in social media. So, if CANDOR or anyone else wants to share something about disclosure, you are welcome here. To help the CANDOR folks, here is the link to their Tool Kit. Moreover, CANDOR team members are welcome to write a column to educate Sorry Works! readers in this space…just send me an e-mail to doug@sorryworks.net or call 618-559-8168.

3) What about long-term care and assisted living? A nursing home administrator could be forgiven if he/she thought CANDOR had nothing to do with their industry. Maybe I missed it, but I did not see or read one mention of long-term care or assisted living in the CANDOR program. The kit seems specifically geared towards hospitals. Yet, we know that nursing homes have an ever increasing role in our healthcare delivery system, regularly share patients with hospitals, and have huge liability exposure. Speaking for Sorry Works!, we are spending more and more time with long-term care and assisted living professionals….they need and want disclosure training. In developing the Sorry Works! Tool Kit, we made sure the content covered both acute and long-term care, including cases and scenarios specific to long-term care. So, I hope going forward the CANDOR folks will address this major gap in their tool kit. Yes, there are some differences between long-term care and acute organizations, both in terminology (residents versus patients) and also the relationship with the families, BUT, when something goes wrong in a nursing home, hospital, or doctor’s office, consumers want one thing: CANDOR!

4) Lot of good information in CANDOR, but maybe information overload and where is the story? Hats off to the CANDOR folks for putting a lot of information in their kit. CANDOR has plenty of bullet points, Power Point presentations, and plenty of videos, but the way it is presented may be a bit overwhelming for some healthcare, insurance, and legal professionals. The beauty of disclosure is that it is a relativity simple idea….be honest and contrite when something goes wrong. However, you have to balance this simplicity against the complexities of healthcare, the law, and insurance companies. It’s a fine line to walk, yet to me, I feel the construction/layout of the CANDOR Tool Kit may overwhelm people, and I could see busy executives saying, “Wow, that’s a lot, and we don’t have time for this right now.” To the eye, CANDOR looks like….a lot of bullet points and links. To me, disclosure (or any culture change operation) needs to start small, get a few people really excited, and let the fire grow out from there. From my viewpoint, CANDOR seems like dumping a whole bunch of wood on top of the kindling. Moreover, I don’t see the story or storyline with CANDOR….again, from an artistic standpoint it comes across as too much text…kinda cold. It just doesn’t feel or look right (my opinion). How content and ideas are presented is critically important (see the Apple Corporation as Exhibit A), and this is an area where CANDOR needs improvement going forward.

5) It’s a heck of a public policy statement. Despite my criticisms, the development of the CANDOR Tool Kit is a heck of a public policy statement. It’s not only a major contribution to the disclosure movement, it’s also big breath of fresh air to the testosterone-charged debate over medical malpractice reform. The next time some lawyer, doctor, or insurance executive cries, “We need tort reform!” show them the CANDOR Tool Kit’s promotional video. This film clip includes folks from the American Hospital Association, Physicians Insurers Association of America (PIAA), the Doctors’ Company, and many other organizations who have historically supported tort reform. Now, I think we’re all starting to see that the true “reform” to the medical malpractice crisis is disclosure and honesty.

 

So, what should you and your organization do? Review the CANDOR Tool Kit….learn from it…lots of good stuff there. Also, review other disclosure training content. Dr. Steve Kraman, the father of the disclosure movement, asked me to share this paper he wrote that will help many organizations develop their disclosure programs. The Institute for Healthcare Communication (formerly the Bayer Institute for Healthcare Communication) and Dr. Gerald Hickson at Vanderbilt have lots of great content and training tools. And, of course, there is Sorry Works!…check out our Sorry Works! Tool Kit. Seek out multiple perspectives and create your own disclosure program.

Also consider working with one or more consultants to help bring disclosure alive for your organization. Again, Sorry Works! (and other organizations too) can help with disclosure presentations and training…just give us a call at 618-559-8168 or e-mail doug@sorryworks.net.

Have a great weekend!

 

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A Disclosure Case from Dr. Steve Kraman

kramanToday we are sharing a disclosure case from Dr. Steve Kraman, whom many consider to be the father of the disclosure movement. I think this story, originally written by Steve for the Health Watch USA blog, is one of those great “teaching cases” you can share with leadership and front-line staff to help with the development of your disclosure program.

Over the last year I have had the pleasure of working closely with Steve and his brother Larry in promoting their Disclosure Documentary, which can be purchased from Sorry Works! either individually or as part of the Sorry Works! Tool Kit.

The text for Steve’s article is immediately below. Have a great weekend!

 

– Doug

Doug Wojcieszak, Sorry Works!

**************************************

 

A Case of Disclosure, May 20, 2016 for Health Watch USA Blog

From 1987 to early 2003, while I was chief of staff at the Lexington, KY VA Medical Center, we instituted a policy of full disclosure and fair negotiated compensation to anyone who had been injured by a medical error. No discretion was allowed and no case was too big or too small. It started without advance planning or training. We just did what was right and kept the patient at the center and didn’t stop until the patient was made whole (to the extent possible). Although I retired from the VA in 2003 (practicing now at the University of Kentucky) please don’t conclude that the VA policy ended then. It’s just that I can only vouch for what happened during the years mentioned above. We have previously described this program < http://annals.org/article.aspx?articleid=713181 >. In this short blog, I’d like to give a previously unpublished example illustrating how we operated. This was not a typical case and some readers might ask why we didn’t just let it alone. I will leave some clinical facts vague to avoid identification of the involved parties.

A man was admitted overnight for an oral surgery procedure. The surgery went well and the patient was discharged to the care of a relative the following day. He and his relative were instructed verbally and in writing how to care for the surgical site and what to do, and avoid doing, in the days following the operation. Within hours of discharge, the patient visited a bar and became drunk. The surgical site began bleeding profusely and he was returned emergently to the hospital having lost significant blood. Despite the efforts of the clinical staff, the patient died of complications a few days later.

On the surface, we first saw this as a case of extreme carelessness on the part of the patient who, by knowingly ignoring his post-operative instructions, caused his own death. However, we found evidence in his medical record that his alcoholism was known as was a past history of non-compliance. So, we assembled all the clinical staff involved in his case and asked whether they thought his care was appropriate or could have been handled better. I was somewhat anxious before this meeting, anticipating that the clinicians who had tried their best to treat this patient only to have it fall apart because of his irresponsible actions would perceive that they were being somehow blamed for the whole thing. Nevertheless, by the end of the meeting, the clinicians had acknowledged that they had known that the patient was poorly compliant and had an alcohol problem but they had nevertheless treated him as though he were an ordinary patient. They agreed that there had been other options and, on hindsight, could have declined to perform the procedure at all (it was elective) or could have done it and kept him hospitalized through the immediate postoperative period. Without letting the patient off the hook, they took some of the responsibility for the awful result that left a widow without a source of income.

Subsequent to this meeting, we contacted the widow, disclosed our findings and arranged to meet and negotiate a compensation amount based on the estimated monetary loss without losing sight of the patient’s shared responsibility. We believed that it was fair and a court would likely have seen it in a similar way.

It would have been so easy to let this thing lie. After all, it wasn’t really a medical error. The operation was indicated; there was no wrong site surgery, retained sponge or incorrect medication. The surgeons were qualified, skilled, and the trainees were well-supervised. But there was an error in judgement in that the staff hadn’t considered the patient’s known unreliability regarding his own care. Looking back at this, they recognized the lapse.

Medicine is hard and a doctor can feel like a juggler having to keep anything thrown at him in the air; balls, knives, water balloons; no errors allowed. But errors do happen inevitably and when they do, we mustn’t give ourselves a pass but instead admit the error, take care of the patient, cooperate in trying to make the patient or surviving relative whole, correct the systems or practices that contributed to the error and then move on without beating ourselves up. Hospital administrators and risk managers should take the lead to assure that communication is honest and complete and that everyone, including the clinicians, are cared for.

Steve Kraman, M.D.

 

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Oregon Hospital Admits Fault, But Won’t Cover All Bills — Fight Between “Legal” and “Right”

tyson hortonAs a baby, Tyson Horton needed surgery to remove a cancerous mass, however, the surgeon at Oregon Health Sciences University (OHSU) was negligent during the operation and Tyson nearly died. The hospital disclosed and admitted the error. Unfortunately, due to the error, Tyson needed several more surgeries including a liver transplant from his own mother at Stanford Hospital. Total tab for Tyson and Mom: $6 million (for now), and there will be big bills in the future as Tyson will need care and monitoring for the rest of his life. Tyson’s family had good insurance coverage, but once the insurer learned the hospital admitted malpractice, the insurer refused to cover any of the costs (current or future).

Hospital attorneys admitted the mistake to a jury and suggested the family deserved $8M to cover current and future expenses plus pain and suffering. The jury awarded $12M, and even though the hospital has a $30M policy, the hospital attorneys appealed the judgment all the way to the Oregon Supreme Court, which in a split and messy ruling said that since OHSU is a state facility the family is entitled to a maximum of $3M under Oregon law. The $3M has already gone to pay medical bills, but there is currently $3M in unpaid bills to Stanford, unknown bills for future care, and lots of pain & suffering (past, present, and future). Tyson — now 7 — and his parents are facing bankruptcy.

“In an emailed statement to The Oregonian/OregonLive editorial board, OHSU expressed ‘regret’ for the surgical error, but contended that the court’s decision is ‘a strong affirmation’ of the Tort Claims Act and for keeping OHSU a part of it.”  This quote is from this news article.

In my opinion, this case illustrates one of the great challenges in the disclosure movement: The fight between what is “legal” and what is “right.” The case also illustrates another great struggle for the disclosure movement: Who is truly in charge of the claims process? Attorneys and claims people (who too often think all cases are simply a fight over money, and the only money they think about is within the claims process itself), or the CEO, c-suite, risk managers, and medical leaders?

One of the issues we hammer away continually in The Sorry Works! Tool Kit, is that in developing your disclosure program you need to set (or re-set) the culture for your organization. Are you about being “legal” or “morally right?” I contend the legalistic mind-set is what has spawned countless lawsuits against doctors, nurses, hospitals, and nursing homes. Also, who in charge of your culture…the lawyers or YOU? And if you have lawyers and claims people who object to disclosure, are you willing to fire them?

Part of re-setting the culture is engaging your legal team with cases such as this. This case is about fairly compensating people without making them jump through legal hoops. Remember, the hospital attorneys told the jury there were willing to part with $8M, but then appealed a $12M verdict and celebrated a $3M ruling from the Oregon Supreme Court. Why not give the family the extra $5M to show your offer of $8M was genuine? Let’s see your ethics, OHSU. That said, some lawyers and claims people will still say the hospital saved $5M by fighting all the way to the Oregon Supreme Court. Two questions for these lawyers and claims people: 1) How would you want your family treated in a similar case? and 2) Did you really save $5M, or perhaps you lost money in the long run? Legal and claims have to be taught how to think about the ENTIRE money issue with these cases. Think how much the bad publicity from this case cost the hospital system? Big dollars. How many patients and families will seek treatment elsewhere because of this case? Big dollars. Think how much the handling of this case will hurt retention and recruitment of quality medical staff? Big dollars. And think how many patients and families will mistrust the hospital with future adverse events and automatically litigate. Big dollars. So, did they win or lose money appealing to the Supreme Court….and, regardless, should they feel like “winners?”

How would you and your hospital or nursing home feel? And what are you doing NOW to avoid a train wreck like this in the future? Here is one article regarding Tyler’s case, and here is another article.

To purchase the Sorry Works! Tool Kit, click on this link. To schedule a Sorry Works! presentation for your leadership and medical staff, call 618-559-8168 or e-mail doug@sorryworks.net.

 

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Nominations due this Friday. FREE/Sponsored Sorry Works! Tool Kit for May — Who Should Win?

Tool Kit coverRecently a patient safety advocate purchased/sponsored one FREE Sorry Works! Tool Kit per month for the next year, and asked us to donate the Kit to anyone we wish.

In March and April we awarded the Tool Kit to hospital systems working to implement disclosure. Who should receive the sponsored Tool Kit for May? Which hospital, nursing home, insurance company, or law firm should win the Kit in May?

We are looking for suggestions. We are looking for the names of individuals, hospitals, nursing homes, insurers, or lawyers. And you can self-nominate! In fact, some of our best nominations from March and April — including the winners — were self-nominations. Ultimately, we want recipients who will use the Kits. Nominations are due Friday, May 27th.

Send us a short e-mail message stating why your organization, or one you know of, should be the monthly recipient. Send the name of a hospital or nursing home including the name of an executive (risk manager, claims manager, CEO, General Counsel, etc). We will NOT publicize who receives the Kit. We can share your name (as the nominator) with the recipient, or not — your choice. E-mail suggestions to doug@sorryworks.net.

Or perhaps you would like to sponsor a Kit yourself? Now, this is the first time we’ve had a person sponsor a Kit (or any content) for 12 months, but we’ve had plenty of people make one-time purchases and tell us to ship content to a certain person or organization. If you are interested in sponsoring a Sorry Works! Tool Kit, e-mail doug@sorryworks.net or call 618-559-8168. The Tool Kit retails for $49.99 per unit, but the “sponsor price” is just $39.99 per unit. To sponsor a kit, e-mail or call.

The Sorry Works! Tool Kit is the complete resource for organizations and individuals wanting to implement disclosure. Everything you need to begin your disclosure program is found in the Sorry Works! Tool Kit. Included are the Sorry Works! Tool Kit Book, which is the blue print for any hospital, nursing home, or large practice wanting to start a disclosure program. From developing your policy, to educating your staff, and sustaining your disclosure program, the Tool Kit Book has it all. Also included in the Tool Kit is the Disclosure Documentary, a powerful movie developed by Lawrence and Steve Kraman that not only shows your leadership and staff the importance of disclosure, but will inspire them. The Sorry Works! PowerPoint presentation and Little Book of Empathy (great for front-line staff) are also included in the Tool Kit along with Pocket Notes.

Lots of great stuff in the Sorry Works! Tool Kit. So, again, we need to find homes for 12 Kits over the next 12 months….where should they go? Please e-mail suggestions to doug@sorryworks.net by Friday, May 27th. Moreover, if you want to sponsor some Kits, please e-mail doug@sorryworks.net or call 618-559-8168. The regular price for a Kit is $49.99, but the “sponsor price” is $39.99 per Kit. Finally, if you simply wish to purchase a Kit for yourself, click on this link.

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Hospital CEO Apologizes, Discusses Changes in Response to Lawsuit

providenceSo often when the media reports about a lawsuit filed against a hospital or nursing home, the PI attorney will share his or her story in great detail, and, in response, the healthcare organization will say “No comment,” or they will issue a terse statement such as “We don’t comment on pending litigation,” or — my favorite — hide behind HIPAA. This “strategy” makes hospitals and nursing homes look like buffoons. It creates the impression of a cover up, destroys trust with the public, which leads to more litigation down the road. In our society today, the majority of consumers simply do not trust hospitals, nursing homes, or physicians to tell the truth when something goes wrong, and this “no comment” strategy feeds that perception. In a 2014 blog post, I argued that hospitals and nursing homes should respond to litigation stories in the following manner:

We want the public to know that our hospital addresses all complaints – including lawsuits – in a very serious fashion, and we are sorry this situation happened with the Smith Family. We look forward to working with the Smith Family and their attorney to discuss their concerns in a fair and expedited manner for both sides. In the meantime, we ask the public to withhold judgment about this lawsuit, including posting negative comments on social media. No family enters lightly into a lawsuit, and our doctors and nurses try to do their best every day. Instead, we ask that you keep the Smith Family and our doctors and nurses in your thoughts and prayers during this difficult time. Thank you.”

Well, perhaps this message is starting to resonate with healthcare executives. The Oregonian newspaper recently reported about a lawsuit being filed against Providence St. Vincent Medical Center over the mix up of dead babies, and a grieving family receiving the wrong ashes. The family is suing for $3 million due to emotional distress.  Providence St. Vincent’s CEO Janice Burger apologized in a statement to the newspaper and promised “immediate changes.” Here Burger’s statement to The Oregonian: “All of us at Providence are deeply sorry for what happened, and we regret the emotional and spiritual pain and distress we have caused this family. We strive to care for each person we serve with compassion and excellence. It saddens us if an error is made, and compels us to learn and work even harder to ensure it doesn’t happen again. People trust us when they come to us for care. Incidents such as this break that sacred trust. We have made immediate change to our processes. We want to restore that trust.”

The baby boy — Elijah Maldonado — died in January 2015 five days after birth due to internal hemorrhaging from his premature birth. A funeral home arranged pickup and transfer for cremation but somehow the body was mixed up with a baby girl who had died three months earlier. The funeral home told the parents not to view the body due to decomposition, the wrong body was cremated, and the ashes given to the family, which held a memorial service and created a shrine for the ashes.

The mistake was discovered when the family of the baby girl (who died three month prior to baby Elijah) finally requested transport and cremation for her body. According to the hospital spokesperson, Gary Walker, in responding to the lawsuit (again, a very unusual move), said the hospital discovered the mistake on June 23, 2015, contacted the funeral home to learn more, but the funeral home contacted Elijah’s parents before the hospital could. Walker stressed the hospital was not trying to cover up the mistake, and that they did contact Elijah’s parents on June 26, 2015 and met with them shortly thereafter on June 29, 2015. Walker went on to further explain that the babies had similar last names, and then discussed with The Oregonian the changes being made by the the hospital to ensure a similar mistake is not repeated in the future.

Here is a link for the Oregonian story. Hopefully this story will resonate with other healthcare executives as well as lawyers and insurers.

You know, it’s interesting….the healthcare and insurance industries have spent truckloads of money on the tort reform movement which, in part, has publicly shamed people into not exercising their constitutional rights.  So many honest people who suffer real injuries due to real medical errors are embarrassed to demand answers, file complaints, and receive closure because their neighbors will judge them. So, the tort reformer’s twisted and unethical PR campaign has worked. But, when a family actually does go through with a lawsuit the defense lawyers swoop in and the hospital or nursing home shuts up, and looks guilty. That doesn’t make any sense! How about flipping this situation on its head? Tell the tort reformers and their sick PR campaign to take a hike and instead follow the example of Providence St. Vincent’s Hospital?

In the Sorry Works! Tool Kit, we discuss at great length that your disclosure program should not be contained with the four walls of your hospital or nursing home. Your disclosure program should engage and communicate with your external stakeholders too, including the consumer population, PI lawyers, state regulators, and the media. Today’s column is all about taking the disclosure program outside the hospital. To purchase the Tool Kit today, click on this link.

 

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FREE/Sponsored Sorry Works! Tool Kit for May — Who Should Win? Nominations Due Friday, May 27th

Tool Kit coverRecently a patient safety advocate purchased/sponsored one FREE Sorry Works! Tool Kit per month for the next year, and asked us to donate the Kit to anyone we wish.

In March and April we awarded the Tool Kit to hospital systems working to implement disclosure. Who should receive the sponsored Tool Kit for May? Which hospital, nursing home, insurance company, or law firm should win the Kit in May?

We are looking for suggestions. We are looking for the names of individuals, hospitals, nursing homes, insurers, or lawyers. And you can self-nominate! In fact, some of our best nominations from March and April — including the winners — were self-nominations. Ultimately, we want recipients who will use the Kits. Nominations are due Friday, May 27th.

Send us a short e-mail message stating why your organization, or one you know of, should be the monthly recipient. Send the name of a hospital or nursing home including the name of an executive (risk manager, claims manager, CEO, General Counsel, etc). We will NOT publicize who receives the Kit. We can share your name (as the nominator) with the recipient, or not — your choice. E-mail suggestions to doug@sorryworks.net.

Or perhaps you would like to sponsor a Kit yourself? Now, this is the first time we’ve had a person sponsor a Kit (or any content) for 12 months, but we’ve had plenty of people make one-time purchases and tell us to ship content to a certain person or organization. If you are interested in sponsoring a Sorry Works! Tool Kit, e-mail doug@sorryworks.net or call 618-559-8168. The Tool Kit retails for $49.99 per unit, but the “sponsor price” is just $39.99 per unit. To sponsor a kit, e-mail or call.

The Sorry Works! Tool Kit is the complete resource for organizations and individuals wanting to implement disclosure. Everything you need to begin your disclosure program is found in the Sorry Works! Tool Kit. Included are the Sorry Works! Tool Kit Book, which is the blue print for any hospital, nursing home, or large practice wanting to start a disclosure program. From developing your policy, to educating your staff, and sustaining your disclosure program, the Tool Kit Book has it all. Also included in the Tool Kit is the Disclosure Documentary, a powerful movie developed by Lawrence and Steve Kraman that not only shows your leadership and staff the importance of disclosure, but will inspire them. The Sorry Works! PowerPoint presentation and Little Book of Empathy (great for front-line staff) are also included in the Tool Kit along with Pocket Notes.

Lots of great stuff in the Sorry Works! Tool Kit. So, again, we need to find homes for 12 Kits over the next 12 months….where should they go? Please e-mail suggestions to doug@sorryworks.net by Friday, May 27th. Moreover, if you want to sponsor some Kits, please e-mail doug@sorryworks.net or call 618-559-8168. The regular price for a Kit is $49.99, but the “sponsor price” is $39.99 per Kit. Finally, if you simply wish to purchase a Kit for yourself, click on this link.

 

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