Question from Docs: They Can Still Sue Me?

This is a question we get every so often from physicians as well as nurses when giving a Sorry Works! presentation for Grand Rounds.  When Oregon recently launched its state-wide disclosure program a physician complained to the state that the process is likely a “no win for the provider” and “no lose for patients and families” who can still sue if they don’t agree with the doctor.

Answer: Yes, patients and families can still sue.  Conversely, though, docs can go to court and argue a case on the damages if they think a patient/family is trying to fleece them.

Too many docs aren’t seeing the whole picture with disclosure, and we need to help them.  Both sides – consumers and providers – retain their right to go to court with a disclosure process, but the post-event communication between the parties and pro-active behavior greatly reduces the chances of litigation.  We’re never going to get rid of lawsuits, just like we will never completely eliminate medical errors which cause injuries and deaths.  Medicine is a human endeavor and it will never be perfect from a quality or litigation standpoint.  But, we can do much better, and disclosure offers the route.

Yes, disclosure has been shown time after time to reduce lawsuits and litigation expenses.  I’ll never forget the risk manager who told me that when she and her staff started running to problems the number of lawsuits against her organization fell dramatically.   But, still, what if you are that doctor who despite great post-event communication still gets sued?  What do you say to this physician?   And what do you say to his or her colleagues who are thinking, “Well, guess that disclosure stuff doesn’t work at all.  Look at poor ol’ Frank…he said ‘sorry’ and was so nice to the family, and they still sued him!  I’m just gonna keep my mouth closed after something goes wrong”?

We say a few things to “poor ol’ Frank” and his colleagues:

1) Some patients and families will sue no matter what.  There are some really crappy patients and families out there, just like there are some really bad doctors and nurses too.  Just a fact of life.  BUT, is poor ol’ Frank better off having said ‘sorry” (empathy) and being nice post-event?  Probably yes.  The gotcha factors PI lawyers typically employ to demonize doctors in court have been removed from this case.   At the minimum, disclosure makes for a great defense.  Disclosure makes defensible medicine defensible…it humanizes the doctor defendant.  Disclosure also makes cases involving malpractice reasonable discussions about fair (not jackpot) compensation.

2) There will be times when a mistake happened, the hospital/insurer knows the case is worth $100K (for example), but the family wants a $1M, and won’t budge.  These are the cases where you only offer what is fair, and if the patient/family has unreasonable demands and wants to sue, your defense counsel argues the cases on the damages.  Again, all the gotcha factors that drive up value are removed with disclosure.

3) Just like medicine, doctors and nurses need to continually improve with disclosure.  We need to look at exactly what Dr. Frank said post-event.  We also need to see if Dr. Frank and the hospital/insurer stayed connected with the patient/family in the days, weeks, and even months after the event.  Many providers and hospitals are good at the initial empathy, but then they fail to maintain the relationship with the consumer in the weeks and months after the event, the family feels abandoned, and they sue.  If this case involved malpractice, did the hospital/insurer have a compensation piece in place to help Dr. Frank and his patient move forward, or not? Lots of things to look at.   So, let’s study the situation involving Dr. Frank and try to understand exactly why he got sued and learn from it as opposed to jumping to conclusions.

Fall is right around the corner, to schedule a Sorry Works! presentation for your Grand Rounds, call 618-559-8168 or e-mail doug@sorryworks.net.

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Disclosure Training Webinar – November 13th – Save the Date

At Sorry Works, we continue to receive a lot of inquiries from hospitals and insurers that need disclosure training for their front-line docs and nurses, but, too often the conversation stops when we hear the following: “Our education budget has been cut this year” or “The CFO said ‘no’” or “I just can’t get the attention of the c-suite.”

We understand.

The healthcare industry is going through massive changes & challenges…reimbursements are down while providers adjust to getting paid for quality instead of quantity, and c-suite personnel are busy purchasing physician practices while contemplating mergers with other hospitals.   Challenging times.

But the need for disclosure training doesn’t go away during challenging times.  We still need to teach physicians and nurses what to say and do following an adverse event.  And while face-to-face training is always preferable, we can accomplish much via webinar and make it affordable so you don’t have to bother the CFO.

Sorry Works! will be offering a disclosure training webinar led by Doug Wojcieszak on Thursday, November 13th at 1pm EST/10am PST.   The webinar will go for up to two hours….about 1 hour of presentation time and up to 1 hour of discussion and questions.  You will see and hear the slide deck we use to teach front-line staff in the field, and be educated so you can do the same with your physicians, nurses, and other clinicians.  This will basically be train-the-trainer, so it’s perfect for risk, claims, physician leaders, nursing managers, and attorneys.

The cost will be $249 per line, and include five (5) copies of the Little Book of Empathy.  You can also receive a taped copy of the presentation for the same cost, or order a live line with a taped copy for $349.

A formal marketing flyer will be made available after Labor Day, but we just want you to save the date.  If you want to register, simply respond to this e-mail and we’ll get you signed up.   If you have questions, feel free to call 618-559-8168.

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Disclosure Scenario for Front-Line Docs & Nurses

When I begin Sorry Works! presentations the first Power Point slide has the following scenario for the audience:

Mrs. Woods is a 53-year old woman who goes to the hospital for a CT-guided biopsy of the liver.  The test shouldn’t be a big deal believes Mrs. Woods, so she tells her husband to go to the mall across the street and do some shopping.  The technician assures Mr. Woods she will call when the test is complete.  Mr. Woods is standing in the mall when his cell phone rings and he answers to hear a nurse frantically screaming, “Come quickly!” When Mr. Woods gets to the hospital he learns his wife is dead….


After reading through that slide I turn to my audience and say, “OK, I’m Mr. Woods…..I’m the guy who just lost his wife….what are YOU going to say to ME?”

Stone cold silence.  Lots of uncomfortable looks around the room.   Then I start getting animated.

“Somebody talk to me…somebody?  Somebody!  What the hell is going on here?!  Why is my wife DEAD?!!”

I tell my audience that every second that passes with no communication or empathy damages the relationship with the family and heightens the chances of litigation and other acts of revenge.

Finally, usually, somebody will utter, “Well, I’d tell you ‘I’m sorry.’” 

To which I reply, “Oh, you’re sorry….how exactly are you going to say sorry to me?  In what context will you say sorry?”

Stone cold silence.

“Are you sorry in an empathetic way, or sorry that your gross incompetence killed my wife?  Are you sorry that I am going to sue you for millions of dollars, or simply sorry my wife died and you are going to review the situation?   Well….what is it?!?” 

At this point, people are getting real quiet and very uncomfortable.

I’ve had audiences where some doctors start muttering about informed consent or speculating how the technician running the test must have screwed up, but, then usually a nurse will bark the following from the back of the room: “Honey, Mrs. Woods could have had a heart attack totally unrelated to the test…we don’t know what happened, except she is DEAD!” 

Absolutely….very often we don’t know what happened in the immediate aftermath of an adverse event.  Hunches can often be wrong.  The power of this scenario is that it literally invites the audience to assume there was an error, but, as the nurse said it could have been a heart attack (or something else).  I tell my audiences that the known truths in this scenario are 1) Mrs. Woods is dead, and 2) her husband and the staff are traumatized…that’s it!  We need to forget about science and technology, simply be present for Mr. Woods and help him through the worst moments of his life, be empathetic, which includes sorry in proper context, and continue working to stay connected to Mr. Woods and his family.  That’s all you can do.  Yes, you can say at some point a review will be conducted, but you can NOT start speculating about the care or have a discussion about informed consent.   Simply be empathetic and be present.

I then offer my audiences a different scenario: As your speaker I am a 43-year old man, in good health, avid runner and very active, BUT, bad things can happen to 43-year old men.  If I were to collapse on the floor in the next minute what would you guys do for me?  Well, very quickly I have doctors and nurses speaking over each other to tell me how they would rush to my side and begin to address my medical needs.  At that point, I stop the audience and ask what are the differences between these scenarios?  There are two major differences.  First, doctors and nurses have been trained how to handle 43-year old men who collapse in a heap BUT have not been trained how to communicate with a family after an adverse medical event.  Second, doctors and nurses are very comfortable doing medicine, but have no idea what to do when the medicine fails them.

This approach really captures the attention of my audiences.  I say, “Look, now you see why we are here today…you need training on what to do and say when the Mrs. Woods scenario happens.  You need to know what to do when the medicine and technology fails and you have to deal with an angry and grieving family.   Silence is unacceptable.  Running away is unacceptable.  Saying things in the wrong context is unacceptable.  You need to know what to say and how to say it…you need to know how to stay connected with your patients and families after an adverse event, and today we are going to teach you how to do it!”

After one of my presentations, a female doctor in her mid-50′s raised her hand during Q&A.  I called on her and she announced to a room full of colleagues that the “Mrs. Wood scenario” actually happened to her recently with the death of her husband.  The doctor went on to describe how her husband’s physicians froze, went silent, and simply left the room, BUT the nurses stayed with her, held her hands, helped make phone calls to family members, and made sure she got home safe.   My audience was silent again, except this time one of their colleagues was teaching them.

To schedule a Sorry Works! presentation for your staff, call 618-559-8168 or e-mail doug@sorryworks.net.

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Great post from nurse attorney regarding disclosure, claims managers, and defense attorneys

via ASHRM LinkedIn Group……

Patti Magyar, RN, MSN, JD, Leader in Patient Safety, Risk Management, Professional Coaching, and more at Gallileo Search, LLC

Doug, I could not agree more; not all hospitals and even more so, claims representatives and defense attorneys are philosophically understanding and in agreement with the philosophy of transparency, genuine disclosure and apology. Claims representatives and defense attorneys can feel caught in limbo when there is perceived or actual tension between what a hospital expects, what an insurance company expects and the fear of legl malpractice. When living with different standards, goals and philosophies, this generates a crazy making situation that violates everyone involved, especially the patient. Hospitals need to be explicitly clear internally, as to where they truly stand on Disclosure, and then ensure they educate, perhaps verbally and in writing, their litigation philosophy on a case by case basis. Hospitals need to ensure they align themselves with a carrier and defense attorney(s) who match their philosophy or are genuinely educable. I have personally experienced how disclosure powerfully works for the wrong reason: money; even plaintiff’s attorneys are willing to cut their demands, when made aware (by patients!) of the honor and integrity of a hospital or system that practices transparency, disclosure and apology, with appropriate financial response. It’s time for everyone to stand up for transparent, disclosure and a apology because it is the right thing to do, so the practical steps are easy!

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Learning from GM, and GM Learning from Healthcare

I have been watching with interest the unfolding story of how GM will handle victims and families impacted by their ignition switch problem.  Would GM hide behind bankruptcy laws and litigate, or try to do the right thing?  It appears they are trying to do the right thing, and there was a very, very interesting article in today’s Wall Street Journal about this story entitled, “Feinberg on GM: Get Payments to Victims Fast.”  Feinberg is attorney Kenneth Feinberg who handled the 9/11 and Boston Marathon victims’ funds, and he is now in charge of GM’s fund.  Link for Wall Street Journal article is below.

Couple interesting take-aways from the article:  As the headline indicates, Feinberg believes victims need to be paid fast.  Here is a quote from Feinberg: “The longer you hold up delivery of compensation, the more skeptical people become…..all the words in the world are utterly meaningless if the money doesn’t flow.”  Further along in the article it appears that Feinberg believes these situations are all about money and victims and families canNOT receive closure and healing from the process.  Feinberg doesn’t even want words like “closure” mentioned to families.

I believe healthcare can learn from Feinberg/GM, and vice versa.

For healthcare, I believe hospitals and med-mal insurers are starting to do a better job with the initial disclosure, empathy, staying connected with families, etc after something goes wrong.  There’s still a lot of work to do with front-line staff in this area, but progress has been made.  Where I still see a lot of problems is if the review shows a mistake and the hospital/insurer has liability, the boys from claims and outside counsel can gum up the whole process.  “We’re not paying a nickel unless they are suing us” or “We said sorry…isn’t that enough?” are some of the pronouncements you hear from these folks.  Look, Feinberg is absolutely right…words are meaningless unless you back them up, which for some people will mean compensation (in various forms).  This part of the process must be smooth and pro-active, which means as we develop disclosure programs we need buy-in from claims, outside counsel, leadership, and outside insurers.  Because if the claims process is not smooth and efficient, the hospital, doctors, and nurses look even worse…their post-event empathy looks fraudulent and everyone will feel burned by the process.

For GM/Feinberg, money is important…it’s very important for some people.  And money is how many people keep count in our society.   But fixes can involve more than money, and sometimes money is not important at all in these cases!  We know in healthcare that we are starting to involve patients and families after medical errors…asking them to share their stories with staff…being involved on safety committees…even learning they can become trusted advisors and consultants to hospital leadership.  These opportunities provide tremendous healing and closure for families (it did for me and my family), but they also improve medicine.  I imagine several families impacted by the GM ignition switch problem would love to share their stories with GM engineers and staff, and some of these consumers would be good additions to GM safety committees.  GM would be a better company for it.  Moreover, absent these offers, early-offer programs can look like you are simply paying off people, whereas when you give the chance for some folks to be involved in making the company better – be it a car manufacturer or a hospital – your efforts appear genuine and sincere.

Here is the link for the Wall Street Journal story:  http://blogs.wsj.com/law/2014/07/01/kenneth-feinberg-on-gm-payouts-fast-is-possible-fair-isnt/

For our American readers, have a happy and safe 4th of July!

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Attracting Scum with Deny & Defend Litigation Strategies

I was talking with a risk manager friend the other day who said to me we need to focus more on the how-to, nuts & bolts stuff when it comes to disclosure and less on the theoretical.   I agree there is great need for practical advice but there still is a need for the theoretical, especially with our friends in the defense bar and claims world.  This column is for them.

A few weeks ago there was quite a dust up here in St. Louis when an audio taped deposition involving sex abuse claims against the Catholic Church was made public.  The St. Louis archbishop, Robert J. Carlson, was asked during the deposition if he knew back in the 1980′s if sex with a minor was a crime, and Carlson said he wasn’t sure.  I’m not making this stuff up.  The plaintiff’s lawyer asked the same question a couple different ways, and each time got the same response.  According to the St. Louis Post-Dispatch, Archbishop Carlson could not remember answers to questions a total of 193 times during the deposition.  Link for story is below.

I listened to a local radio show after the story surfaced….they kept replaying the audio clip with the archbishop saying he wasn’t sure sex with a minor is a crime.  The callers ran the gamut, with most expressing outrage against the church but there were a few folks who defended the archbishop.  The church’s defenders questioned the legitimacy of some of the sexual abuse lawsuits brought against priests.  I agreed with all the callers.   There is no doubt many priests have committed horrible crimes that were covered up by leadership, and not only should the church pay and priests and leaders be sent to jail, but the church’s male-dominated culture and awkward tradition of celibacy need to be reformed.  No question about it.  I also don’t doubt that some of the sexual abuse claims brought against the church are without merit.  Here’s the problem: By playing deny & defend with legitimate claims for so long, all complaints (even those without merit) appear credible.  The public knows the church lies and covers up its sins, so every victim (real or not) will get their day in court.

There are some parallels between the problems of the Catholic Church and the medical malpractice arena.  For years we have had (and continue to have) massive patient safety problems.  Thousands upon thousands of people injured and killed every year, but for the longest time the medical community has not acknowledged or owned the problem.   One risk manager told me that in the 1980′s if a plaintiff’s lawyer called on behalf of a patient, he (the risk manager) was trained to deny the person had even been a patient at the hospital!  Another risk manager said to me in the 90′s he would see the worst, most clear-cut cases of malpractice come through his committee and the doctors would justify the care.  And then a defense lawyer told me the following last year, “Well, even when we make a mistake, we simply can’t throw in the towel on the case!”

Historically, defense lawyers and claims managers have had held the attitude that they must project tough litigation strategies to let PI lawyers and the public know they are not pushovers, even in legitimate cases.  “Just can’t throw in the towel,” as that the one defense lawyer told me.  The problem with this strategy is that while it may save some money on a few cases it has destroyed the reputation of the healthcare industry.  You all look like a bunch of liars, just like the Catholic Church, and this opens the door for more claims.

A weak reputation + lots of money = blood in the water. 

This situation attracts scum looking for a pay day…and the scum will get their day in court because the hospital has always lied about mistakes.   See how this works?  Deny & defend makes your hospital or insurance company an easy target for scumballs.

However, when you disclose, apologize, and quickly and fairly compensate legitimate medical errors (while contesting the meritless claims), your reputation is restored in the community, including the plaintiff’s bar.  You are seen as straight shooters who clean up your messes.  Hence, you are more likely to be believed when you say an adverse event wasn’t your fault.  Hospitals and insurers who do disclosure report, over time, that plaintiff’s lawyer learn that when the hospital is not apologizing that the case is probably without merit and not worth pursuing.  I believe this is a big reason we see an overall reduction in claims and litigation expenses with disclosure programs.

Fall is right around the corner…to schedule a Sorry Works! presentation call 618-559-8168 or e-mail doug@sorryworks.net.  Sorry Works! presentations always count for CME/CEU credits.

Here is a link for the story about the deposition of St. Louis archbishop: http://www.religionnews.com/2014/06/09/st-louis-archbishop-carlson-said-hes-sure-knew-sexual-abuse-crime/

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Mom Forgives Daughter’s Killer; Pair to Work Together

A 13-year old girl is shot dead by a stupid classmate showing off his stepfather’s gun on a bus.  The young man, Jordyn Howe, was fooling around with the gun, tried to fire it but it wouldn’t shoot, so he pointed it at his friend “Jina” Guzman-DeJesus and pulled the trigger —and the gun went off and killed Jina.  Absolutely stupid mistake.   Almost unforgiveable. The girl’s mother was grief stricken and enraged, and wanted the judge to throw the book at Jordyn.

But, then Ady Guzman-DeJesus (Jina’s Mom), Jordyn, and the judge in the case sat down to talk….Jordyn apologized for his mistake, and Ady forgave him.  Then, Ady proposed a plea deal: Jordyn will serve one year in juvenile detention, and during that year Jordyn and her will tour the state of Florida talking about the dangers of guns.  What a powerful story.

I know it’s not med-mal, but the similarities are striking.  Stupid, maddening mistakes lead to injuries and deaths, and families want revenge.  But then the two sides have a chance to talk, an apology is given, the anger leaves the room, and creative and meaningful solutions are proposed that can bring good out of bad.  With the disclosure movement, we’ve seen similar stories like this in healthcare, but we need more.  Clinicians need to be encouraged (and trained) how to have these difficult discussions, and the first post-event steps for patients and families need to be back to their doctor.  Want to lower med-mal claims in medicine?  Forget about legislative fixes, and instead focus on keeping consumers and clinicians connected post-event.  This stuff works.

Ady said forgiveness brought her peace and working with Jordyn will keep her daughter’s name alive.   Amen.

Here is the link for the Ady and Jordyn’s story: http://gma.yahoo.com/mother-embraces-daughters-killer-court-121328069–abc-news-topstories.html?vp=1.

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Involving Families After the Apology

There was an interesting article published recently in Health Leaders Media about involving families in hospital safety efforts after they received an apology for a medical error.  The initial focus of the article was Dr. Adams Dudley, MD, from University of California-San Francisco Hospital who wants to make such family members part of the hospital’s team after they receive an apology.  Here’s a Dr. Dudley quote from the article which summarizes his thinking:

What if, when someone is harmed in our hospitals, we say not only, ‘we’re sorry you were harmed’, but ‘here’s a badge. Now you’re part of our team. Now, if you choose, you can be a patient advocate, come to our staff meetings, talk about what happened, [and] attend patient safety conferences. We’ll e-mail you the meeting schedule’  We want you to help tell us how we can prevent this from happening to someone else, he says.

But, then, unfortunately, the article goes on to – surprisingly – quote disclosure advocate Rick Boothman of the University of Michigan Health System that Dudley’s plan is unworkable because clinicians won’t be honest if angry patients and families are in the room.

I think Dudley and Bootman were talking about two entirely different topics, and shame on the author of this article for not parsing out the differences for her readers.  Great topic but the author totally blew it.  Dr. Dudley is talking about involving a family after their own case has been closed and settled, whereas I think Boothman is saying that families who have just experienced harm are not in a position – emotionally or otherwise – to contribute to the patient safety efforts of a hospital. I totally agree with Boothman’s concerns, but I also don’t think the author of this article correctly described for Boothman what Dr. Dudley is proposing.   What Dudley wants to do is already happening (or has happened) successfully in other hospitals, including with Sorry Works! Founder Doug Wojcieszak.   Patients and families who have experienced malpractice but received disclosure and apology can be in a great position to become part of the hospital’s safety team.  These folks can provide an incredibly important perspective for clinicians.  This was my own experience with Catholic Health Partners of Cincinnati.

As disclosure continues to take root, I strongly encourage hospital administrators to really work to get to know the patients and families going through the disclosure process.  You will find many people who can help your organizations get better.  Now, not every patient or family member is right for such work, but many are.   A powerful example of this is Leilani Schweitzer who works with Children’s Hospital of Stanford University after losing her son to medical errors at the hospital.

Here is the link for the Health Leaders Media Article: http://www.healthleadersmedia.com/print/QUA-304809/After-a-Medical-Error-Patients-Could-Become-Hospital-Insiders.

Here is the link describing my experience working with Catholic Health Partners of Cincinnati: http://sorryworksblog.net/?p=152

And here is the link with Leilani Schweitzer sharing her story: http://sorryworksblog.net/?p=464.

 

Hey, Fall is right around the corner and you are surely thinking about Grand Rounds speakers for your staff.  The Sorry Works! presentation is a great talk for your doctors and nurses.  Call 618-559-8168 or e-mail doug@sorryworks.net for more information.

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Apology 24 Years After The Death? Thoughts on the Grieving Process…

Patient safety advocate Ilene Corina penned a moving article about apology that recently appeared on Facebook.  Corina, whose toddler son bled to death 24 years ago after a tonsillectomy, shared the story of how a nurse friend tried to connect Corina and the doctor who was in charge of her son’s care when he died.  The nurse was able to speak with the doctor, who said he simply did what the hospital told him to do post-event and he wasn’t interested in meeting with Corina now, but the doctor did say “sorry.”  Corina wonders in her article if she finally received an apology while applauding the actions of her nurse friend and other people like her.  The link for the Corina’s story is below.  Very thought provoking article on multiple levels….

At Sorry Works!, we’ve shared similar stories of other families/moms who still yearn for an apology many years after a death, and also stories of those who did receive an apology and accountability.  Links for these stories are also below.

I want you to share these stories with doctors, nurses, medical and nursing students, and attorneys, risk managers, and claims personnel.   The common thread in all these stories is how the grieving process is impacted by apology and accountability, or lack thereof.  Some (not all) folks who don’t receive apology and accountability post-event can literally be frozen in their grief, which impacts their physical and mental health.  These people can literally go crazy.  Just visit Facebook or other areas of social media to see some of these folks and how their lives have devolved into a toxic stew of anger, hatred, and paranoia.  It’s very sad.  Unfortunately, outsiders look with pity or sympathy on these folks and ask, “Why can’t John simply move on with his life?”  Well, that’s like telling a person suffering from bi-polar disorder or Schizophrenia to “act normal.”  Not going to happen.  Any tragedy (medical malpractice, car accident, murder, etc) with unanswered questions and lack accountability can prevent closure and lead to life-long grief.

When doctors and nurses are not trained how to communicate post-event, and when they are not given the institutional support to facilitate such conversations, the damage to patients and families doesn’t stop with the failed medicine.  It plays out in the grief process too, and the damage can last a life time.  And let’s not forget that the doctors and nurses themselves also grieve after a patient’s death and their emotional health is at stake too.  Reading Corina’s article it is obvious the doctor had not forgot her son.  How different would the doctor feel today had he been trained how to communicate post-event and been given the necessary support?

I personally get frustrated when I hear hospital and insurance company administrators say that teaching disclosure is not yet a priority, we have a limited budget, maybe next year, etc, etc.  To me, learning how to communicate post-event should be as fundamental to doctors and nurses as knowing how to take blood pressure.  Seriously.  Moreover, whatever you spend training your staff on disclosure will be reimbursed many times over in lower claims and reduced litigation expenses.  You’re gonna save money.

How can you lose?   And what are you waiting for?

Here are the links for Corina’s story and other similar stories:

Corina’s story: http://patientsafetyadvocate.blogspot.com/2014/05/what-does-im-sorry-really-mean.html

Other stories here http://sorryworksblog.net/?p=468 and http://sorryworksblog.net/?p=693 and here http://sorryworksblog.net/?p=464.

Also, here is my own journey with apology many years after the death of my brother: http://sorryworksblog.net/?p=152.

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Dealing with Docs’ Fears of Disclosure & Lawsuits

Despite all the work showing that disclosure reduces lawsuits, the #1 fear about disclosure in survey after survey of clinicians is…..litigation!  Doctors and nurses are still afraid that talking post-event will get them sued.

There are many reasons for this situation, including the historical cultural norms of medicine, insurance companies, and defense lawyers.  However, part of the blame can be laid at the feet of disclosure advocates and trainers who simply dodge the issue.  They refuse to say disclosure has anything thing to do with reducing lawsuits or sound risk management strategies.  Instead, they continually throw out cliches like “Disclosure is doing the right thing,” to which doctors’ brains probably conjure up their own cliches in response: “No good deed goes unpunished” and “The path to Hell is paved with good intentions.”   Don’t fall into this trap! 

So, what is a better way to deal with the fear of litigation which continues to stifle disclosure?  Confront head it on!

First, acknowledge the legitimate fears that clinicians have about lawsuits and other forms of revenge from unhappy patients and families.  Say this fear is very real, justified, and is OK.  Do not be judgmental.  Second, say that the best way to avoid being sued is to talk with patients/families post-event and stay connected.  Running away has actually been shown to increase the chances of being sued.  Show them the data and provide stories.  As I written in the past, don’t be afraid to make the business case for disclosure to your docs and nurses!  Third, show clinicians how to actually talk with patients and families post-event…provide script, sample conversations, discuss cases, and, if possible, role play scenarios.  Fourth, let your clinicians know someone is always available (including evenings and weekends) to help with difficult conversations.

Here is how I tee up this issue in my Sorry Works! presentations for hospitals and insurers: ”As doctors and nurses you are probably afraid of litigation…and you should be afraid of lawsuits.  Litigation can screw up your professional and personal lives, and lawsuits aren’t fun for patients and families either.  Your fear of lawsuits is entirely justified.  So what is the best way to avoid lawsuits?  Answer: Disclosure.  The data is in showing disclosure dramatically reduces lawsuits and litigation costs while bringing emotional closure for all parties, including clinicians. So, let’s talk about how exactly you disclose and communicate post-event….”

We are asking physicians and nurses to be honest with patients and families post-event.  So, shouldn’t we be honest with them about disclosure and how it can benefit them?   Seems fair to me….

Are you planning Fall speakers for your medical staff?  Put Sorry Works! on the calendar!  Give us a call at 618-559-8168 or e-mail doug@sorryworks.net.

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