The Cross Family Disclosure Story — Teachable Moments

I have a story to share…actually two stories.

About a year ago Sorry Works! partnered with The Sullivan Group (TSG), a leading provider of on-line learning courses for healthcare professionals   It’s been a great partnership…last Fall we developed two on-line courses, a Just-in-Time trainer for front-line staff and a more indepth Disclosure Fundamentals Course for physicians, nurses managers, c-suite, etc.  We just started marketing these courses earlier this year, and have had a great reception.  We look forward to showing off these courses at ASHRM this year.

Well, in the midst of marketing these disclosure courses, Dr. Dan Sullivan, President and CEO of The Sullivan Group (TSG), had his own disclosure story.  Friends of Dr. Sullivan – the Cross Family – had a bad experience at a local hospital and wanted disclosure.  Unfortunately, the disclosure did not go well, but, there are several teachable moments from this story that can benefit hospitals and insurers.  It’s a very compelling story.  Dr. Sullivan dedicated an entire TSG newsletter about the Cross Family story and what other hospitals and insurers can learn.  I urge you to click on this link to read the Cross family story: http://sorryworkssite.bondwaresite.com/photos/File143.pdf

Thanks to Dan and the entire TSG team for sharing this story and their commitment to the disclosure movement.

To learn more about the TSG/Sorry Works! on-line courses, e-mail doug@sorryworks.net or call 618-559-8168.

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HHS Ruling on NPDB Tells Docs to Be Pro-Active Post-Event

Below is a Medscape article discussing a recent ruling by HHS on NPDB reporting for the Oregon and Massachusetts Apology and Disclosure Programs.  The leaders of the Oregon and Massachusetts programs requested that med-mal cases settled through their systems not be treated as written demands and thus not be reportable to the NPDB.   As many of our readers know, physicians and other healthcare professionals are afraid of reports to the NPDB due to reputational damage and this fear can lead to resistance in settling legitimate claims.

HHS said “no” to Oregon and Massachusetts, BUT there is actually great news here for the disclosure movement.  The Medscape article had the following quote: “HRSA would issue guidance explaining that when ‘the provider initiates the settlement and no written demand for payment is made,’ no NPDB report is necessary.”

At Sorry Works!, we have always encouraged pro-active behavior post-event – and now NPDB is telling you the same!  This message is for hospitals, PIAA carriers, and RRGs.   Be empathetic and stay connected with patients and post-event.  Run a fast, credible review that includes a formal interview of the patient and/or family.  And if the review shows there was an error, move quickly to fairly meet the financial and non-financial needs of the patient or family. Countless risk managers have told me that when they stay connected post-event, the likelihood of a written demand is greatly diminished, which means even if there is payment, there is no report to the NPDB.

Taking it a step further….reach out to the plaintiff’s bar.  Literally go meet with PI lawyers and educate them about your disclosure and apology program.  Part of the conversation should sound like this: “Instead of deny & defend, we are now working hard to stay connected with patients and families after something goes wrong.  We are running quick and credible reviews, which includes interviewing the family to get their perspective.  If the review shows an error happened, we will work quickly to meet the financial needs of the family, and if the family is represented we are happy to work with you.  Conversely, there will be times we honestly don’t know about an event or a family leaves unhappy and shows up in your office.  Please give us a call.  If we don’t know about the situation, please educate us and we’ll figure it out.  If we do know about the situation we’ll share what we know and we’ll figure it out.  Let’s work together.”   Reaching out to the PI bar and building relationship will reduce written demands.

Don’t forget to educate patients and families about disclosure.  One of the challenges we are hearing with disclosure is that, for example, the hospital wants to disclose but the family won’t come back, won’t answer the phone, etc.  Or the hospital leadership honestly doesn’t know about a bad situation but instead of calling the hospital the family goes straight to an attorney.  Look, most patients and families think that hospitals and doctors cover up mistakes, and there is a reason for this!  So we need to re-educate our patient and family populations that when something bad happens the door is open.  Consider the following document we’ve produced at Sorry Works: http://sorryworkssite.bondwaresite.com/photos/File133.pdf.   Use it or modify as you wish, but use it!  And develop similar content and messages for your patients and families…they need to know that disclosure is the new way and your door is open post-event.

Remember, also, cases settled on behalf of the hospital don’t have to be reported.  As more physicians become employed, settling on behalf of the hospital will become a tool for more and more risk managers, defense attorneys, AND plaintiffs attorneys.

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

I know all of this is small comfort to our friends in Oregon and Massachusetts who worked so hard to develop their state-wide disclosure programs.  I especially liked Oregon’s approach.  However, hospitals and insurance carriers in these states need to know they can do disclosure as described above and do it successfully even without the apology immunity offered by the state programs.  The same is absolutely true for hospitals and insurance carriers in the other 48 states.  This has always been the beauty of disclosure: You don’t need any laws to be passed!  Sure, apology immunity laws make docs more comfortable in post-event conversations, but you don’t need them.  Disclosure is just good customer service.

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

Going forward, I hope we can have a serious discussion about reforming the NPDB.   It needs to be updated, especially with disclosure taking root.  The NPDB was started with the best of intentions: Track payments made on behalf of physicians so that incompetent docs can’t skip from state to state harming countless people along the way.  Good idea.  Great idea.  The problem is that the NPDB has also become a badge of reputational shame among competent physicians.   Getting reported to the NPDB causes fear with docs and increases resistance in settling of legitimate claims.  There are studies showing the time to settle claims has dramatically increased since the NPDB was established.  Reputation is everything to good docs.  So, while we are helping some families by tracking incompetent docs, we are hurting other families with legtimate claims.  Moreover, by increasing the culture of fear of among docs, we are impeding the disclosure movement and also stifling learning from medical errors, so even more patients and families are harmed. Clearly we can do better.

A couple years ago Sorry Works! suggested reforms to the NPDB in light of the disclosure movement.  And holy cow, did I meet some nasty resistance.  As my wife put it, I called their baby ugly and NPDB supporters didn’t like it.  Well, as a “baby,” the NPDB was cute (track incompetent docs), but as a teenager the NPDB won’t clean his room or get a haircut, plays loud music, wears goofy clothes, and constantly breaks curfew (delaying settlement of legitimate claims, impeding the disclosure movement, stifling learning from medical errors).  Time for the teenage NPDB to grow up.  The language change that is coming – HRSA would issue guidance explaining that when ‘the provider initiates the settlement and no written demand for payment is made,’ no NPDB report is necessary - is helpful, but we need more maturity from teenager NPDB!

Reckless and illegal acts should always be reported, and frequent flyers should be tracked, but what about the otherwise competent doc who makes a mistake, apologizes, and does the right thing?  Should that person wear the same badge of shame? Or can they be put in a separate, confidential file, and so long as they don’t commit the same error again, the record is eventually wiped clean?   Surely we can do this…

Here is the Medscape article:

Apologize-and-Pay Laws Don’t Keep Docs Out of Data Bank

Robert Lowes

August 18, 2014

Physicians who avoid the meat grinder of litigation when their insurers pay malpractice plaintiffs out of court under state “disclosure, apology and offer” (DA&O) laws still must be reported to the federal National Practitioner Data Bank (NPDB), the Department of Health and Human Services (HHS) has ruled.
The recent decision dampens the hope in some quarters of organized medicine that such forms of alternative dispute resolution — potentially faster, more transparent, and less adversarial than a lawsuit — can keep physicians out of what they view as a professional Hall of Shame.
Third parties such as medical liability insurers and self-insured hospital systems are responsible for reporting any malpractice payments made on behalf of a physician to the NPDB. In turn, hospitals and healthcare insurers routinely check the data bank, operated by the Health Resources and Services Administration (HRSA) within HHS, to vet physicians. Too many payment reports can exclude a physician from a hospital medical staff or a health plan network, said Alan Woodward, MD, head of the professional liability committee of the Massachusetts Medical Society (MMS).
“You don’t want to have a record with the NPDB,” Dr. Woodward told Medscape Medical News. His state’s DA&O law of 2012 figured prominently in the HHS decision.
The prospect of getting reported to the Data Bank for making a payment under a DA&O law could discourage physicians from choosing this kinder and gentler approach to medical liability, according to Dr. Woodward and other supporters of these laws.
Former HHS Secretary Kathleen Sebelius issued the ruling on May 22. However, it didn’t come to light until earlier this week, when the consumer watchdog group Public Citizen asked Sylvia Burwell, the successor to Sebelius, in a letter if HHS was working to ensure compliance with NPDB requirements in states with DA&O laws. Public Citizen had spotlighted the issue in September 2013 when it asked HHS to address what it called a reporting loophole in an Oregon DA&O law. If other states follow Oregon’s lead, Public Citizen warned, the ability of the NPDB to help identify bad physicians “will be severely compromised.”
DA&O Laws in Massachusetts, Oregon Had Physician Support
The Oregon law, enacted in March 2013, created a process for physicians and injured patients to engage each other to make things right before any litigation ensues. A physician can explain what caused the injury, apologize, and if appropriate, offer compensation. A mediator can help both parties decide on a figure. The law specifies that a payment arrived at through discussion or mediation does not result “from a written claim or demand for payment.” It also states that a “notice of an adverse event” filed by a patient to start the prelitigation process does not represent a written claim or demand for money.
These caveats reflect the NPDB’s definition of reportable payments. The federal law authorizing the database states that third-party payments on behalf of a clinician must be filed when there is a medical malpractice claim or judgment made against him or her. Claims must be in written form under the law. Malpractice insurers don’t have to tell the Data Bank about money changing hands in response to verbal demands.
There were hopes in Oregon that the new law would indeed give physicians an NPDB loophole. Governor John Kitzhaber, MD, for example, urged HHS in a letter to make payments to injured patients under the new law nonreportable, according to HRSA.
Unlike the Oregon law, the Massachusetts DA&O law does not contain language that plays off federal law to skirt NPDB reporting. Massachusetts does have something akin to Oregon’s “notice of an adverse event,” however. Its law calls for injured patients considering a lawsuit to file a “prelitigation notice” and then wait at least 6 months before they go to court. That cooling-off period creates space for an out-of-court resolution process similar to that in Oregon.
The medical societies in both Oregon and Massachusetts supported passage of the DA&O laws in their states.
HHS Cites Intentional Loophole in Oregon Law to Avoid NPDB
In a memo to Sebelius on May 20, HRSA Administrator Mary Wakefield, PhD, agreed with Public Citizen that the “Oregon law was explicitly designed to avoid medical malpractice reporting to the NPDB.” Dr. Wakefield recommended that HHS classify payments made under both the Oregon and Massachusetts DA&O laws as reportable. She also said that Massachusetts’ prelitigation notice and Oregon’s notice of an adverse event qualify as written claims if they include a demand for money.
Sebelius approved Dr. Wakefield’s recommendations on May 22.
The HHS ruling cut physicians a bit of slack on Data Bank requirements, however. Dr. Wakefield wrote in her memo that if her recommendation was adopted, HRSA would issue guidance explaining that when “the provider initiates the settlement and no written demand for payment is made,” no NPDB report is necessary.
Dr. Wakefield’s memo also bends a little toward a proposal from a group called the Massachusetts Alliance for Communication and Resolution Following Medical Injury, which included the state medical society. The alliance had asked HHS to make DA&O payments nonreportable if an injury stemmed from a system or human error and the physician nevertheless satisfied the standard of care. “We’re all for reporting substandard or negligent care,” Dr. Woodward, of the MMS, told Medscape Medical News.
Dr. Wakefield did not grant the alliance’s request, but suggested that the NPDB could flag physicians determined to have met the standard of care. She said HRSA would consider revising the NPDB report form “to include a check-box where reporters can indicate whether the standard of care was met.”
Public Citizen Pleased with HHS Ruling
Public Citizen applauded the HHS ruling in May on DA&O laws and the NPDB.
“HHS implemented exactly what we were seeking,” said Michael Carome, MD, director of Public Citizen’s Health Research Group, in an interview with Medscape Medical News. Dr. Carome said he learned of the HHS decision only a few weeks ago.
Public Citizen, he said, has no objections to DA&O laws in themselves. “I think they have value. You can still have reporting to the NPDB. The two things aren’t mutually exclusive.”
Public Citizen wants to make sure that HHS is communicating the May ruling on DA&O laws to Massachusetts, Oregon, and other states contemplating this kind of legislation, Dr. Carome said. He acknowledged that state governments are not responsible for enforcing the federal NPDB law. However, he said that states have a responsibility to communicate federal policies to medical liability insurers and other organizations required by law to report malpractice payments.
HRSA spokesman Martin Kramer told Medscape Medical News in an email that HHS recently has provided guidance to Oregon Governor Kitzhaber and the Massachusetts Alliance for Communication and Resolution Following Medical Injury on how to implement their DA&O laws in compliance with NPDB reporting requirements. HHS will help other states with similar laws, Kramer said. However, like Dr. Carome, Kramer noted that the ultimate responsibility for NPDB compliance lies with healthcare entities that make malpractice payments on behalf of their physicians.
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Attaching Intestine to Vagina Not Malpractice?

I was recently given a story published in the Herald-Sun Newspaper (of North Carolina) about a lawsuit against Duke University Medical Center and two doctors involving a female patient who had part of her small intestine removed, but instead of re-attaching the intestine to the rectum the surgeons attached it to the woman’s vagina.

The family sued.

According to the Herald-Sun article, Duke University and the two surgeons fought the lawsuit because they believed it “did not meet the requirements for a medical negligence claim because it did not conform with a legal doctrine that says that, in certain medical malpractice cases, only an expert would be able to determine whether malpractice occurred.”   Apparently the plaintiff’s lawyer relied on a res ipsa loquitor argument rather than present expert testimony to claim attachment of the intestine to the vagina is malpractice.  As many of our readers know, it can be difficult in certain states and against certain defendants to find experts willing to sign off on a lawsuit and testify.

Amazingly, a lower court judge agreed with Duke University and the two surgeons and dismissed the case.   However, the appeals court overruled the lower court and is letting the lawsuit proceed.  Per the Herald-Sun article, “the Court of Appeals said that, in this case, a layperson would be able to determine negligence.  ’It is common knowledge and experience that intestines are meant to connect with the anus, not the vagina, even following a surgical procedure to correct a bowel problem,’ the Court ruled.  The Court of Appeals rejected Duke Hospital’s argument, which included technical and medical terminology.”

What is going on here?  Where is the disclosure, apology, and early offer compensation?  It appears the Duke defense lawyers were not arguing the case on the damages, so it makes me wonder if any fair/reasonable offer was made to the family, or not?   And why are patients/families filing lawsuits over something so clear cut, regardless of whether they can find an expert willing to rat on a prominent medical facility?  Why did it need to go this far?  At the minimum why weren’t Duke and the doctors in the newspaper saying something like the following: “We made a mistake, we are sorry this happened, we have apologized to the patient and family, we have learned from this mistake so it won’t happen again, and we made a fair offer of compensation to the family, but the family believes the situation is worth more money…we are simply here to ask the court what is fair”?   Why didn’t we hear or read about that?

So often hospital CEOs and other medical & insurance leaders promise me they have a disclosure program and they would never put a family through something like what was described above.  I’m sure some of these people are serious and genuine, while some others are giving me happy talk.  Which camp is your hospital or insurer in?  Would you consider running this case by your leadership team – including the lawyers (in house or outside counsel) and seeing how they would handle it?

You know, just because a lawyer can “win” a case doesn’t it make right.  Not right for the family that needs closure, not right for the doctors who are emotionally traumatized and also need closure, and not right for the hospital that will suffer enormous PR damage, loss of customers, etc.

To help your hospital embrace disclosure, schedule a Sorry Works! presentation or training seminar today by calling 618-559-8168 or e-mail doug@sorryworks.net.

And, remember, to save the date of Thursday, November 13th at 1pm ET/10am PT for the Sorry Works! Train-the-Trainer Webinar.

Sun article referenced above: http://www.heraldsun.com/news/x2042199588/Appeals-court-rules-lawsuit-can-move-forward-against-Duke-Hospital.

And here is another article regarding the case: http://www.courthousenews.com/2013/09/09/60964.htm.

 

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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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