Jailed Texas Neurosurgeon and Gag Orders

neuroUnless you have been literally living under a rock, you’ve surely heard the story of Dr. Christopher Duntsch, the jailed Texas neurosurgeon who was recently sentenced to life in prison for deliberately maiming and killing several patients. Lots and lots of media coverage, but you may have not seen the following in the torrent of news stories:

“But patient advocates and the surgeons that mobilized to rid him of his license say that Duntsch was the perfect storm. Nobody stopped him soon enough. The hospitals didn’t do their due diligence until it was too late, and those who could’ve spoken up didn’t. Every patient mentioned in this story who has sued, except for Passmore, has settled. They all signed nondisclosure agreements that prohibit them from discussing their cases or their monetary awards. As one lawyer told me off the record, they faced an almost impossible dilemma: settle and give their families a financial cushion for the future medical costs but sacrifice their right to tell their stories.”

That quote was taken from an article entitled “Dr. Death” which appeared in D Magazine, (D is short for Dallas). Here is a link for the full article….it might be the most in-depth story about Dr. Duntsch.

So, according to the article, Dr. Duntsch’s vicitms had to sign nondisclosure agreements, or gag orders, in order to get money. Take your loot and keep your mouth shut. Wow….

At Sorry Works!, we’ve been trying to get a better understanding of gag orders over the last year. We’ve issued several calls for folks to share their stories and insights, and have learned much. Our goal is to publish a paper later this year on this important subject. However, I can share a few insights which appear to be germane to the tragedy of Dr. Duntsch. I have heard from several patients and families who, like Dr. Duntsch’s victims, were literally forced to sign gag orders in order to receive reasonable compensation. I have heard from more than one plaintiff’s attorney who stated these gag orders are legally binding contracts that, if you sign one, should be honored. On the flip side, several risk managers and defense attorneys have told me they would never dream of enforcing a gag order, because doing so would drag up all the bad care that led to the lawsuit in the first place, lead to lots of bad media coverage, the judge would laugh them out of court, etc.

So, what do you think would have happened had one of Dr. Dutsch’s vicitms spoken up, even after signing a gag order? What are your experiences with gag orders?  What’s bad? What’s good?  What can be changed, and how?

I want your opinion…I can be reached at 618-559-8168, or e-mail at doug@sorryworks.net or dougwojcieszak@yahoo.com. All information will be kept confidential unless you state otherwise.

I look forward to hearing from you.

 

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The Folly of the Vanderbilt Apology Law Study

VandyThis past Saturday, Sorry Works! published a piece highlighting what most media outlets and “snarky doctors” missed about the recently published Vanderbilt Apology Law Study. Namely, that the study clearly stated to reduce lawsuits and litigation expenses, healthcare organizations need to implement disclosure programs. This jives with the historical advice offered by Sorry Works: You need to develop a disclosure PROGRAM.

Today, we focus on the folly of the Vanderbilt Apology Study. In summary (call this an abstract), the conclusions drawn about apology laws by the Vanderbilt researchers are erroneous and damaging to the disclosure movement. The whole point of apology laws is to encourage docs to apologize. However, the Vandy researchers candidly admitted they never ascertained whether apologies increased or decreased with apology laws! Yet, the Vander researchers made the leap that apology laws are responsible for an increase in litigation in the data they studied. The Vandy researchers made this claim without accounting for other contributing factors (media stories about medical errors, activities of the trial bar, etc). I believe these statements gave comfort and aid to disclosure skeptics. Indeed, disclosure skeptics gleefully proclaimed, “Look…it’s what we’ve told you all along…saying sorry will get a doctor sued.” The correct punch line for the Vanderbilt apology law study should have been “We did not see a decrease in med-mal lawsuits in states with apology laws. We saw, instead, that lawsuits remained flat or possibly increased, but any increase in litigation could have been attributable to a variety of factors (since we did not measure if apologies increased due to apology laws). However, if state legislators truly want to decrease medical malpractice lawsuits, they should work for the creation of disclosure programs where physicians are trained and leadership is involved to provide early offer settlements in cases of true error. However, hospitals, nursing homes, and insurers do not have to wait for legislative help…they can implement disclosure programs on their own anytime they wish.”

For the record, I shared two drafts of this e-newsletter/blog with the Vandy researchers via three e-mails, and I encouraged their feedback, said my mind was open to being changed, and offered to share their comments with you, our readers. They did not reply to me.

 

Walk with me

The Vanderbilt researchers had a noble and interesting mission: Determine if medical malpractice lawsuits decreased in states with apology laws. It’s a valuable public policy question, and the study should have been simple enough to conduct: Look at closed claims data in states with apology laws over a certain period of time, and see if the claims increased, decreased, or remained the same. Easy peasy, right? Well, the Vandy team took it a little too far, and in their folly, they made some unfortunate statements that I believe did damage to the disclosure movement. These unfortunate statements — apology laws increased litigation — have been re-played by disclosure skeptics in the media and social media, and patients, families, and clinicians will pay the price.

First, I think we can all agree that the whole point of apology laws is to get doctors to apologize and talk with patients/families after adverse medical events in the hope of decreasing medical malpractice lawsuits. Any objections? Good….

Second, however, the Vanderbilt researchers made the following statement on page 10 of their report: “In this study, we do not observe whether apology laws increase apologies by physicians.” So, the Vandy folks didn’t measure the one thing that apology laws are supposed to do — get docs to apologize in order to reduce malpractice claims. Going further on page 10, the Vandy team said they “assumed” that physician apologies increased simply because medical societies and media in states with apology laws issued reports and news stories about the apology laws — if it were only that easy! Any risk manager would have gladly disabused the Vandy researchers of their “assumptions.”

Third, even though the Vandy team admitted they did not even attempt to measure if apology laws actually increased apologies — which is the entire purpose of apology laws — they made the following definitive statements: “For physicians who do not regularly perform surgery, apology laws increase the probability of facing a lawsuit and increase the average payment made to resolve a claim” (abstract, page 1). They made similar statements on pages 3, 20, and 21…even saying on page 21: “For non-surgeons, apology laws increase the probability of a lawsuit by 1.2 percentage points. This represents an approximately 46% increase in the probability of facing a lawsuit relative to the national average.” How can they make these definitive claims when they have not measured if apology laws actually increase apologies?

Fourth, on page 12, the Vandy team laid out their methodology, and nothing in those methods indicated to me that they attempted to control or account for the myriad of other variables that impact the rate of medical malpractice litigation. Variables such as media coverage about medical, the activities of the trial bar, the actual amount of errors and/or quality of medicine being delivered in a given state, etc. Indeed, ever since to Err is Human was published in 1999, there has been an ever increasing drumbeat of media stories about medical errors, and this has only intensified with the onslaught of social media. Surely this media messaging — “doctors make mistakes” — had some impact on this data set. In fact, irony of ironies, the passage of apology laws usually includes a flurry of news reports about doctors/hospitals making mistakes!

In short, there is no way the Vandy team can definitively state that apology laws increase (or even decrease) medical malpractice lawsuits or payouts for claims. At best, the Vandy researchers could have made weak correlations between the presence of apology laws and closed claim data, and nothing more.

Again, the Vandy team could have easily looked at states with apology laws and measured if lawsuits and payouts decreased, increased, or remained flat — and they should have stopped right there! The punch line for the Vanderbilt report should have been “We did not see a decrease in med-mal lawsuits in states with apology laws. We saw, instead, that lawsuits remained flat or possibly increased, but any increase in litigation could have been attributable to a variety of factors (since we did not measure if apologies increased due to apology laws). However, if state legislators truly want to decrease medical malpractice lawsuits, they should work for the creation of disclosure programs where physicians are trained and leadership is involved to provide early offer settlements in cases of true error. However, hospitals, nursing homes, and insurers do not have to wait for legislative help…they can implement disclosure programs on their own.” ” That conclusion would have been a valuable service, and fed nicely into the message promoted by countless disclosure advocates: You need a disclosure program.

If the Vanderbilt researchers truly wanted to make more definite statements about apology laws, they needed to a) measure increases (or decreases) in apologies with the passage of the apology laws — not make ill-informed assumptions as well as b) account for other factors that could increase or decrease medical malpractice litigation. It would have been hard, if not impossible, work, but that’s the only way they could have definitively stated that apology laws were truly impacting medical malpractice litigation.

Instead, the Vandy team editorialized that apology laws increase lawsuits, and this folly played into the age-old rebuttal of skeptics that apologies will get doctors sued. Thanks, guys!

The shame of this study is that some of the ground breaking work on disclosure was done at Vanderbilt in the 1990’s by Hickson and friends. Dr. Hickson showed us that us doctors with the highest customer service complaints and poorest bedside manner get sued most often. That work laid the foundation for every disclosure program in the United States. Moreover, Vanderbilt Medical Center, under Hickson’s leadership, has operated a successful disclosure program. Finally, Hickson and his team do wonderful disclosure training programs for hospitals and insurers…I attended one of Hickson’s disclosure training programs and it was awesome — and there was not one mention of apology laws during Dr. Hickson’s training program!

The Vanderbilt researchers should retract their erroneous conclusions and adopt our suggested punch line. If not, hopefully this study is rejected by every serious journal.

Going forward, a similar study would be valuable in states like Massachusetts and Oregon which have passed apology laws that require the development of disclosure programs that meet certain requirements in order to receive immunity. That would be interesting.

Sorry Works! offers a serious and independent voice in the disclosure movement that doesn’t pull punches…to keep this vibrant voice alive, please consider a tax-deductible donation today. Thank you.

 

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What “Snarky Doctors” Missed About Vanderbilt Apology Law Study

VandyRecently, a team of Vanderbilt University researchers produced a study on apology laws that said, in short, apology laws either have no impact on medical liability risk and may even increase the risk of malpractice litigation for some physicians. As you can imagine, the study received ample media attention, and social media lit up with “snarky doctors” proclaiming, “See I told you so…apologizing is just going to get me sued…stupid idea!”

Here is what most media outlets and all of the snarky doctors missed about the Vanderbilt study….and I am quoting directly from the study:

“The evidence presented here strongly suggests that apology laws are not substitutes for specific physician disclosure programs and that the experiences of these types of programs are not generalizable to the physician population at large. In other words, simply being allowed to apologize is not enough to reduce malpractice risk. Physicians likely benefit from being trained when to apologize and what to say when apologizing as part of a specific physician disclosure program. Additionally, these programs often include an early settlement offer, which physicians apologizing outside of these programs may not provide. This early settlement offer may be the key to discouraging lawsuits, especially if apologies themselves contain a signal that malpractice has occurred. Similarly, the results here suggest that AHRQ’s CANDOR process, which promotes physician-patient communication and disclosure of adverse events, may be a better means to achieve the goals of apology laws, as these laws do not promote apologies but do not provide physicians with any instruction on how to communicate with patients.”

This is basically what we’ve said all along at Sorry Works!…to be successful at disclosure, you need a disclosure PROGRAM within a hospital, insurer, or nursing home. Apology laws can make docs feel more comfortable about talking post-event, but, as the Vanderbilt paper said, you need a program where clinicians are trained and leadership is equipped and able to offer early settlement offers for cases of true error. Moreover, some of the best disclosure programs in the United States (University of Illinois Medical Center, University of Michigan, MedStar) have operated successfully without apology laws.  Finally, some of the new/2nd generation apology laws (see Mass, Oregon, and hopefully Maryland) require the development of disclosure programs within healthcare organizations in order to receive apology immunity. 

Sorry Works! is an important voice in the disclosure and patient safety movement…to help us keep doing this important work, please consider a tax-deductible donation today.

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The Story of MedStar’s Disclosure and Apology Program

medstarOver the years, we have shared disclosure success stories which either focused on individual cases or entire organizations that are embracing disclosure and apology. Perhaps, this might be our most powerful success story to date as we turn the focus to MedStar Health, which is a large hospital system based in Baltimore with 10 hospitals across the Maryland/Washington DC region.

MedStar is unique for many reasons…it is NOT an academic medical center or government facility. MedStar does have independent physicians with their own insurance policies through PIAA carriers. And MedStar is operating in a large urban environment with plenty of trial lawyers. Yet, despite these “obstacles,” MedStar is doing very, very well with disclosure and apology. Indeed, if MedStar can successfully operate disclosure in a town like Baltimore, what is your excuse for not being able to do disclosure?

dave mayer

Dr. Dave Mayer, Vice President, MedStar Health

My primary contacts at MedStar have been Dr. David Mayer and Larry Smith, JD. Larry is a super guy and the head of risk management for MedStar — he pioneered MedStar’s approach to disclosure. Dave is also a terrific person, and many readers of this space will remember Dave’s work on disclosure and apology at the University of Illinois Medical Center with Dr. Tim McDonald. Dave is now Vice President of Quality and Safety at MedStar.

The MedStar disclosure and apology program is called, “CANDOR,” which is short for Communication and Open Resolution.  MedStar’s program was the blue print for the national CANDOR Tool Kit funded by AHRQ, and Dave, Larry, and other MedStar team members helped develop that tool kit.

To help develop this column, the MedStar team shared articles and stories with me, and I spoke at length with Dave Mayer. However, I can best describe MedStar’s approach to disclosure and apology with two words: Jack Gentry.

Jack is a patient who recently suffered a crippling, life-changing medical error in a MedStar facility, and the leadership and clinical teams never ducked their responsibility — financial, emotional, etc — to Jack and his family.

I decided Jack’s story best exemplifies MedStar’s approach to disclosure because the big cases are what truly test and define your disclosure program.   Too often we hear/read self-congratulatory tales such as, “95-year old woman with Stage 12 cancer, one foot in the grave, the other on a banana peel, and who regularly talks to dead relatives, is given a double-dose of aspirin…our highly ethical leadership team apologized immediately and the grandson thought we were terrific (cue the trumpets blaring in the background).”

Don’t mean to be too harsh…all disclosure is good. However, show me your “highly ethical leadership team” in action when your staff’s paperwork snafu led to a missed cancer diagnosis for a 42-year old professional person with three little kids at home. And the cancer is now terminal….let’s see your ethics now. Do you have a program in place to address the financial and emotional needs of the patient and family, or will they have to beat out of you during a lengthy litigation process?

I don’t have to ask these questions of MedStar. They live these principles ever day under the direction of Dave, Larry, and a team of people committed to doing the right thing, and Jack Gentry is a perfect example.

Jack was a newly retired Baltimore police officer, and he and his wife, Teresa, a nurse, were looking forward to a terrific retirement. However, Jack was experiencing shooting pains in his right arm and losing strength in his hand, so he sought surgery. The plan was to replace one disk, and fuse another with MedStar surgeon Dr. Justin Tortaloni. However, the replacement disc was inserted too far during the surgery and impacted Jack’s spine, leaving him paralyzed from the neck down. The honesty started before the surgery was over, as Dr. Tortolani immediately disclosed to Teresa. Going forward, the MedStar leadership team literally ran to the Gentry family, and helped them through the entire process, including financial resolution. The attorneys for the hospital and Gentry family worked together in a collegial fashion to fairly address the financial needs of the family. Jack and Teresa are now vocal advocates for MedStar’s disclosure and apology program, including working with Dr. Tortolani, Dave, Larry, and others. The Gentry’s involvement includes a December 2016 panel discussion for MedStar which was videotaped and will be shared in our next e-newsletter — yes, that’s a teaser.

However, to wet your appetite here is a summary of Jack Gentry story from MedStar, and I want to draw your attention to the last two paragraphs which are a quote from Larry Smith:

“‘The litigation environment was always there,’ Larry L. Smith, MedStar’s vice president for Risk Management, said. ‘But we agreed that we would deal with that later. It took two years to settle, because we wanted to make sure we were accounting for Jack’s full future needs. There was no need to rush.’ When both parties decided it was time to work out the financial terms, they did so in a one-day mediation session, which was rare for its brevity.

‘One thing we can feel good about at MedStar is, whenever we have the opportunity, our first response is to pull resources together to help the team and to help the patient and family,’ Smith said. ‘Our message to our staff is, ‘Do the right thing.””

If you would like further information on MedStar’s disclosure and apology program, please contact Dr. David Mayer at:

David Mayer, MD
Vice President, Quality and Safety
MedStar Health
5565 Sterrett Place
3rd Floor
Columbia, MD 21044
410-772-6547 (P)
David.B.Mayer@medstar.net

To help Sorry Works! continue sharing these disclosure success stories, please make a tax-deductible contribution by clicking on this link.

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Neurosurgeon Laments Dishonest Medical Culture; Urges Real Apologies

schlNeurosurgeon and attorney Dr. Lawrence Schlachter recently penned a column entitled “Medical Culture Encourages Doctors to Avoid Admitting Mistakes.” This column is not only a valuable read for clinicians and folks in risk, claims, legal, and c-suite, but also patients and families.  We will use this column and other resources in our upcoming campaign to educate patients and families which will be launched in early March.

Dr. Schlachter warns patients and families to not always take what their doctor says at face value, especially when there are problems. According to Dr. Schlachter, terms like “accident,” “adverse event,” and “unfortunate outcome” might be softer ways of saying, “I screwed up but the system (or my training) won’t allow me to use truth telling words like ‘mistake’ or ‘error.'”

In the last paragraph of his column, Dr. Schlachter shares the following thoughts: “When a serious preventable medical error occurs, the physician who made it always has the option to do the right thing and fully disclose what happened. He or she can make an honest apology, which must include accepting responsibility for the error. He or she can also explain what options are available for compensation. Anything less is a pseudo-apology at best and a cover-up at worst.”

I love that last paragraph…own your mistakes. However, there are limitations to that passage.  As we have written in past blog posts, many doctors and nurses are starting to speak truth telling words post-event — “I screwed up, it’s my mistake” — but physicians are often not in a position to offer money, or even talk about compensation with patients and families. In fact, most clinicians know little to nothing about the monetary aspects of potential medical errors, and we all know instances when clinical people can overstep their bounds: “Mrs. Smith, don’t worry about a thing…all of your daughter’s bills will be waived, and the hospital will pay for her entire rehabilitation.” The scientific term for such behavior is called “promising the moon.”

As we wrote in this blog post (and will again soon when we share the MedStar story), leadership/administration needs to be involved, be ready to back up staff, and be able to discuss the monetary issues and other fixes people (clinicians included) might need. In other words, to truly encourage real apologies and consistently hit the finish line with medical errors, you need a disclosure program.

Remember, Sorry Works! is now a non-profit organization dedicated to educating the public about disclosure and apology. We need your help to continue this valuable work — click here to make a tax-deductible donation today.  

 

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Cancer in Soccer Players? What About Football Players?

soccer 1

Will dressed in goalie gear before a big game!

Loyal readers of this space know we typically focus on medical errors, communication, and risk management issues. Today, we are going off script to touch on a different issue that should be important to all of us: kids and sports. Most all of us have children, grandchildren, or nephews and nieces — and we are all former kids ourselves! Moreover, I wanted to share this piece with this audience because many of you are medical professionals, or researchers, opinion leaders, etc. You are very intelligent and well-connected people who could spread this column and the questions it contains.

Recently, there has been a spate of news stories suggesting that soccer players — goalies in particular – are coming down with cancer and the apparent culprit is the artificial fields filled with rubberized pellets that resemble soil. The stories/theories state that goalies are most susceptible to cancer because they frequently dive for the ball and come into contact most often with the artificial turf and its rubberized pellets. A quick Google search yielded many articles and blog posts on this subject, with one article even suggesting that the rubberized pellets contain carcinogens.

My son, Will, age 11, has played soccer since he was five years old, and the last three years exclusively as a goalie. Will plays on a select soccer team — they have a fall season, indoor winter season, and spring season. Soccer is a part of our lives for about eight months out of the year. The outdoor games are almost always on grass fields, while the indoor games are played on the artificial fields with the rubberized pellets. I help coach Will, and always warm him up before games…and when we come home from an indoor game, both Will and I have to shake the black rubber pellets out of our shoes.

soccer 2

Will showing off his most valuable player medal after a tournament game

Now, Will plays in a competitive league. Eleven year old soccer players look like…real soccer players. They pass the ball a lot, run plays, and shoot a lot. In an average game, Will typically defends 20 to 40 shots, and will dive or slide into the ground 15 to 20 times per game.

So, is soccer placing my wonderful and handsome son at risk of cancer? I dunno…but I have questions.  My hope in writing and sharing this e-newsletter/blog is that others will consider these thoughtful questions and share them with colleagues and friends, especially colleagues who study public health and/or conduct cancer research.  Hopefully these questions will add to the growing discussion over this issue.

Here are my questions:

  • Has anyone studied the cancer rates of high school and college football players and compared to the cancer rates of soccer players? Many high school and college football programs use the same artificial turf with rubberized pellets. Moreover, think about offensive and defense lineman…a starting lineman can expect to participate in 30 to 50 plays per game, and on EVERY play their hands literally sink into those rubberized pellets when they are in their stance before the ball is snapped. And on almost every play offensive and defensive lineman tumble to the ground and roll around. Often, you see lineman with various cuts and bloody scrapes on their arms. Moreover, I bet the lineman have to empty lots of pellets from their shoes after games and practices! Indeed, I have to believe that offensive and defensive lineman come into contact with the artificial turf more than the average soccer goalie. Also, what about running backs? A high quality running back can expect to touch the ball 20 to 30 times per game, and on almost every play they will be tackled and driven into the turf, and, like lineman, the arms of running often have numerous scrapes.
  • If we are not seeing comparable rates of cancer in offensive and defensive lineman and running backs, is there something else about the game of soccer that might be causing cancer? Could there be an issue with the soccer balls? Goalies are the only player on the field that is supposed to touch the ball with their hands. However, most goalies wear special gloves…so, could there be an issue with the gloves worn by goalies? Is there a problem with the shin guards the players are required to wear? Is there something else?

As a parent and coach, I am concerned and I have questions. Again, I hope that readers of this space will share and spread this message. We all have kids or know kids who play sports, and many of you have important connections in the cancer research community — please spread this e-newsletter/blog post far and wide.  Thank you!

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Apology Laws, Financial Compensation for Errors, and Training Staff

sorryLast week I wrote about the challenges with compensating patients/families for legitimate medical errors that cause harm or death. In short, I opined that there are plenty of people willing to say “sorry” for such misfortunes, but not enough leaders willing to meet the financial and emotional needs of injured patients and grieving families. “Sorry” without something behind it is just a hollow word. Here is the link for that column.

Well, this week I am sharing with you an article that will add to this discussion, and hopefully increase your thinking about this topic. A study recently published by Vanderbilt researchers entitled “Sorry Is Never Enough: The Effect of State Apology Laws on Medical Malpractice Liability Risk” claims that states with so-called apology laws have actually seen higher rates of malpractice lawsuits in some instances. However, the study’s authors are quick to point out that the state laws do NOT initiate the development of actual disclosure programs — like University of Michigan — that both compensate patients/families for legitimate medical errors and also train staff how to handle these delicate situations.  The authors also acknowledge that Michigan and other hospitals that include compensation for errors and train staff have seen reduced litigation. 

Indeed…saying “sorry” is not enough, and you need know what you are doing! We’ve said that for years at Sorry Works! Yes, absence of “sorry” is one of the leading drivers of litigation. How often have we heard from lawyers (both PI and defense) as well as consumers the following: “If someone had just said ‘sorry’ we would not have filed this lawsuit?” We’ve all heard it a million times. However, to truly bring these cases to resolution, the ability to fairly compensate needs to be part of the picture, and training staff and other colleagues is an absolute must too. You need a disclosure program!

This is why we’ve seen some of the more recent “apology laws” like Massachusetts and Oregon and hopefully soon in Maryland where the legislative language has certain requirements such as the development of programs, involvement of legal counsel on both sides, etc.

To help you develop your disclosure program, we offer the Sorry Works! Tool Kit. Everything you need from start to finish is included in the Kit for just $49.99. To order your kit, click on this link.

Also, remember, Sorry Works! is now a non-profit organization…we need your donations to keep providing these e-newsletters for free. Click here to make a tax deductible donation today.

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The “Compensation Challenge” in Disclosure & Apology Cases…

moneyRecently, I have had conversations with several healthcare and legal professionals who had the same message for me: More hospitals and physicians are apologizing for medical errors, but…that’s it…too often they don’t provide compensation for medical errors, or don’t know how to broach the subject of compensation with patients/families.

A legal professional said he is seeing more and more cases where the doc will apologize and describe the error(s) in great detail to the patient/family and discuss fixes so the mistake is not repeated, but, then, tell the family “goodbye.”  Naturally, many families feel short-changed and pursue litigation.  A healthcare professional said some clinicians are not sure how to exactly to start the compensation discussion, while other clinicians worry any talk of money or other remuneration will spur patients/families to get greedy and file a lawsuit.

Look, it’s great that physicians/hospitals are willing to apologize and admit fault to patients/families. Ten years ago this would have been unheard of.  So, we have made progress — great progress. But, let’s be realistic: If you tell a family “we made a mistake, we are sorry,” the family is probably asking themselves, “What is the hospital or doctor going to do for me?”  To think otherwise is naïve and foolish. If you are going to open the door you should be willing to walk all the way through, not just halfway.

My friends indicated to me that docs are almost always handing these disclosure events, and too often clinicians often have no idea about the compensation piece and/or don’t have authority to discuss money. 

The compensation piece has always been a struggle in the disclosure movement. Plenty of people willing to say “sorry,” but, money or other forms or compensation is a different story. I don’t know how many times I heard, “Well, we told the family we were sorry…what more do they want?!?” Geez…

People want to be treated the same way you would want to be treated.  If there is potential economic value with a case, it needs to be discussed during disclosure meetings and you need to put people in the room who have a) the knowledge and b) authority to discuss money. This means at some point administrative types, risk managers, etc need to be included and ready to talk.  In fact, a risk consultant told me one client hospital always includes risk managers in all disclosure meetings.

And here is a great way to begin the compensation discussion with a patient or family: “Mrs. Smith, we told you we are sorry for the medical errors that hurt your husband, we acknowledged your anger and frustration, and we showed you how our processes will be fixed so it doesn’t happen again to another patient….now, what do we need to do make this situation right by you?”  Put it back on the patient/family, then, shut up and let Mrs. Smith talk.

You’d be surprised at the responses you will receive. Often, patients and families have no idea what to ask for, or what they can reasonably request. In fact, many patients/families have no idea that hospitals/doctors carry liability insurance. It’s true!  Sometimes patients/families will share wants that have nothing do with money….perhaps it will be something to remember their loved one, or being involved in the hospital…or nothing.  Perhaps your honesty and candor will be all they need.  Conversely, some families will need some form of compensation, whether it is money, waived bills, future medical care, or other life needs. Who knows? The point is people can be very reasonable and humble when their anger is diminished. Moreover, by asking the open-ended question — “How do we make this right by you?” — you can learn about really important things to the patient or family that you would have not guessed on your own.

I believe that when going into a meeting where compensation may be discussed you need to have an idea of the economic value of a given case. If a family doesn’t know what to ask for, or has very modest requests, you need to be ready to make suggestions: “Mrs. Smith, we would love to have you give a talk to our medical staff, and, of course, we will waive your husband’s current and future bills, but this case is worth more…your husband is missing time from work, you are burning vacation days, and there is pain and suffering for both of you..to be fair, your case is worth X.”

Now, “X” can be discounted because there is no litigation or protracted waiting for the family, but it still has to pass the smell test. You have to figure that Mrs. Smith will tell her family, friends, and others in YOUR community how you handled HER case.  You don’t want people thinking you ripped off poor old Mrs. Smith.

Conversely, if Mrs. Smith slams her hand on the table and demands $2M for a case that is worth $50K, you continue talking with Mrs. Smith, perhaps she still has some anger that needs to be addressed, or maybe there is something about her life that truly does raise the value of the case, but, in the end, if the case is only worth $50K you say the following: “Mrs. Smith, we have made a fair offer…feel free to discuss this offer with anyone you choose, and you can contact us anytime to accept the offer.” Then document the conversation. Some hospitals have found that the involvement of competent plaintiff’s counsel can provide a reality check for patients/families. In fact, some hospitals won’t meet unless the patient/family is represented — but this does NOT mean the hospital has waited for the attorney to call or a lawsuit to be filed.   

In conclusion, we’ve made progress with disclosure, but to give truly authentic apologies we have to be willing to fix the damage we caused. This means compensation (monetary and otherwise) must be considered and discussed with any case.

The Sorry Works! Tool Kit Book covers this topic in great detail, and is a must-read for any leader in a healthcare, insurance, or legal organizations. To order, simply click on this link.

Also, Sorry Works! is now a non-profit organization…we need your tax deductible donations to support our work.  Click here to make a donation.

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Medical School Dean on Teaching Disclosure & Apology

docThis Tuesday, January 17th, I will have the privilege of being the Keynote Speaker at the Inter-Professional Education & Practice Collaborative at The Ohio State University.   I will be speaking to over 1,000 students and faculty in every health profession school at OSU.  This is the third year I have had the privilege of providing this talk, and, to be frank, I wish I had more of these engagements.  In three to four years these incredibly bright students will scatter around the country (and the world), and take the message of disclosure and apology with them.   Powerful stuff.

We need to do so much more work teaching disclosure and apology to healthcare students — not just medical students but also nursing, dental, vet med, etc.   We should also consider law students and as well as business students who envision a career in the insurance industry.  Get them while they are young.

Two weeks ago I shared the story of a medical student — Mr. Jason Han — who apologized for a medical error by reflecting on a medical error he experienced as a teenager that left him deaf in one ear.  Powerful story.  Well, this week I want to share with you an article written by the Advisory Dean at Jason’s medical school.  It’s an important article from a professional medical educator about the issues we need to consider when teaching students how to confront medical errors, how to communicate with patients and families, and also how to deal with their own emotions. 

Bottom line is it’s not good enough to teach “science” to healthcare students — we must also make them emotionally smart.  

Here is the article from the Medical School Dean, and directly below is the original article about Mr. Han’s apology.

Medical Student Apologizes by Reflecting on Medical Error He Suffered, originally published Jan 4, 2017

Fourth year medical student Jason Han has a unique perspective on medical error and lack of disclosure. As a teenager, Jason and his mom visited his pediatrician for an ear ache. The pediatrician attempted to irrigate Jason’s ear with a large syringe that was too large, and burst Jason’s ear drum, leaving him deaf in that ear. The errant physician assured Jason and his mom that everything was normal, and then refused to return phone calls or any answer inquiries about the incident. Jason said the fact that his physician lied to him and betrayed his family was actually worse than the physical pain.

Fast forward and Jason Han is now a fourth-year medical student at Perelman School of Medicine at the University of Pennsylvania. Recently, a patient suffering from heart failure needed an arterial catheter inserted, and Jason volunteered for the task. Unfortunately, Jason struggled and caused his patient unnecessary pain, and a resident had to complete the procedure. Jason told the Philadelphia Inquirer that he felt ashamed and quickly left the room without saying anything to the patient — but then it dawned on Jason that he was acting no differently than his pediatrician ten years ago. Jason quickly went back to the patient and apologized, and the patient graciously accepted the apology. The article concludes by saying that the Perelman School of Medicine will be teaching disclosure to their medical students, and Jason believes such training would have helped him. Here’s the article.

This story gives me hope as we start the New Year. In my work with medical schools and residency programs, I am hearing more and more young people saying a) they can’t imagine doing any other than disclosure and apology for errors and b) they are shocked that deny and defend was accepted practice for decades. However, we need to train our students…showing them how to disclose and apologize for medical errors needs to be mandatory in the curriculum for all health professionals. Moreover, I have often said that the greatest advocates for disclosure are physicians and nurses who have experienced medical error in their own care (or the care of a family member). Jason Han is one of these important advocates. Finally, we need to provide training to the folks who didn’t learn disclosure in school.

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Really Good Article on How to Avoid Med-Mal Lawsuits..

talkBelow is what I think to be an exceptional article written from a consumer perspective on how to avoid med-mal lawsuits. Now, this article is geared towards long-term care, however, our friends in acute should be able to translate for their environment.

Best,

– Doug

Doug Wojcieszak, Founder, Sorry Works!

Want to prevent lawsuits? Talk to us!

Guest Column

Kitty Foth-Regner

January 02, 2017

Source: McKnight’s

http://www.mcknights.com/guest-columns/want-to-prevent-lawsuits-talk-to-us/article/628282/

I’ve heard a lot of talk lately about suing nursing homes – not only from family members distraught over an elderly loved one’s injury or death in an SNF, but also from the growing chorus of lawyers trolling the local airwaves for potential plaintiffs. “If your loved one shows signs of nursing-home neglect or abuse,” they cry, “you need to consult an attorney right away!”

Certainly, such lawsuits are occasionally warranted. But I wonder how many are instigated by families who’ve been convinced that they have a moral obligation to sue, if only “to make sure it doesn’t ever happen again.”

I have almost 25 years’ experience with a perfectly lovely Wisconsin nursing home, first as the daughter of a longtime resident and, after her death in 2000, as a regular volunteer there. And I’m convinced that a fair share of lawsuits could be avoided if individual facilities, and the industry at large, would do a better job of communicating with key audiences — especially residents’ families.

May I make a few suggestions?

Position yourselves as our partners

From what I’ve witnessed, we all share the same objective: ensuring the elderly of a comfortable, safe, loving and stimulating environment for the rest of their lives.

But don’t count on us family members to remember that a month or two after checking our loved ones into your facility. Prove it to us repeatedly.

For example, does your activities staff go to great lengths to keep residents’ creative juices flowing? Do the folks in dietary bend over backwards to tempt even fussy eaters? Has your PT team had unusual success in getting the wheelchair-bound back on their feet?

In short, continually identify the extraordinary in your facility, and make sure we hear about it.

Tell us what you can do

It never hurts to spell out the advantages you offer residents.

You might begin by reviewing what you tell government inspectors about your capabilities. Could you translate some of it into plain and compelling English to communicate what it means to our loved ones?

For example, how about the number of clinical staff hours each resident receives per day? Do you boast sparkling statistics on minimizing falls or choking events? Do you excel at fast diagnosis and treatment of UTIs? What steps are you taking to further improve the quality of your services?

This is the kind of detail that reminds us how very much you care about everyone in your facility.

Tell us what you can’t do

Believe it or not, some of us assume that you’ll keep our loved ones under 24-hour-a-day observation. Then, when something bad happens beyond our staff’s field of view, we start muttering about neglect, if not outright abuse.

What’s more, we’re likely to blame you for things that are totally out of your control – even when the government has tied your hands. In Wisconsin, for instance, bed rails cannot be provided until a resident has actually fallen out of bed and hurt himself. The reason: it smacks of restraint.

Such restrictions mean that occasional falls are almost inevitable in SNFs. Please discuss such realities of nursing-home life with us, up front and over time. Don’t let our expectations get out of whack. Instead, enlist our help in making sure our loved ones understand their role in staying safe and sound.

Let’s talk money

Many people feel like they’re being ripped off by nursing homes – dangerous thinking when the possibility of a lawsuit crosses our minds.

Why not expose us to the financial nitty gritty before that happens? Show us what private, round-the-clock care would cost in our area. Tell us how much you invest in training your staff and keeping the place spotless. Detail how much you plow back into infrastructure each year. Describe the cost of keeping up with ever-evolving regulations.

Even better: If possible and when appropriate, fill us in on how much of a private-pay resident’s “rent” goes to subsidize those who can’t pay their own way. Most of us are compassionate. And when we realize that our loved ones will continue to receive care even if they run out of money? You’ll see our antagonism melt into gratitude and sympathy.

Tell us how to be heard.

If our loved ones are with you for any length of time, issues will undoubtedly arise. So tell us what to do if we have concerns or complaints. Whose job is it to advocate and intervene for us, and how can we take full advantage of this resource?

Package your messages persuasively

Not everyone will be interested in all this detail. But the more you make available, the happier your residents’ families are likely to be – especially if you carefully craft your messaging and delivery vehicles.

Whichever vehicles you ultimately settle on – brochures or emails, newsletters or videos, social media 0r media relations – effective communications start with meticulous planning and execution. To help ensure the quality and timeliness of your program, do not hesitate to bring in ad agency or freelance professionals up front.

If you can’t afford to do this unilaterally, consider joining hands with other facilities. Or petition your local association to create materials that you and your colleagues can share.

Do it for all our sakes

The immediate goal of such a communications effort may be to stave off litigation. But don’t lose sight of the big picture: If the epidemic of nursing-home lawsuits continues unchecked, will there be any remotely affordable, high-quality nursing homes left 20 or 30 years from now?

I for one hope that the industry will only grow stronger in the years to come. And I’m certain that, launched today, effective communications could help make that a reality for us all.

Kitty Foth-Regner is a retired marketing communications copywriter and the author of Heaven Without Her (Thomas Nelson, 2008). She is currently doing a final edit on The Song of Sadie Sparrow, a novel about three women whose lives become intertwined in a fictional nursing home. Contact her at www.EverlastingPlace.com.

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