Confidential Med-Mal Settlements?

A study was recently released by Dr. Bill Sage, MD/JD on confidentiality agreements in medical malpractice settlements. Sage’s study provides numbers/statistics to a widely known practice in med-mal agreements. However, the summary of the study also says with disclosure becoming more prevalent, hospitals and insurers should re-consider their settlement practices.

I have had several attorneys (both defense and plaintiffs) say that confidentiality agreements are simply another “check box” on the way to settlements. It’s simply a habit or common behavior that many people don’t really think about — but needs to be thought about now!

As you design your disclosure program, think about confidentiality clauses in your settlement documents. The whole point of disclosure is to talk about stuff…not just with patients and families, but also among clinicians. It’s how we heal and learn. In the new Sorry Works! Tool Kit Book, we say that you should approach all settlements with the mind-set that all cases will remain open for people to talk about (unless there is a really good reason to close a case). The Tool Kit Book (which can be purchased separately or part of the kit) provides a lot of practical advise on how to design, develop, and sustain your disclosure program. For ordering information, click on this link.

Here is the link to Dr. Sage’s study, and here are recent blog postsfrom Sorry Works! on confidentiality agreements, including an article where a hospital required a family to sign a confidentiality agreement before the hospital’s leadership would talk with the family!

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Sorry Works! Tool Kit Now Available!

Today we are launching the Sorry Works! Tool Kit. The tool kit has everything that a hospital, long-term care organization, large practice group, or insurer needs to develop and sustain a successful disclosure program.

Included is the new Sorry Works! Tool Kit Book, which literally provides a blue print for starting a disclosure program. This new book has step-by-step instructions on how to build your disclosure team, develop your policy, and launch your disclosure program and keep it alive. The book has lots of practical advice, lessons from around the country, cases and stories, and practice cases for you and your team to role play. Also included in the Tool Kit are the Patient/Family Education Document, Sorry Works! PPT slides for front-line staff, and copies of the Little Book of Empathy and Pocket Notes. It’s a very comprehensive tool kit developed for c-suite, risk, claims, legal, and medical and nursing leadership. At $37.99 per copy, the Tool Kit is very affordable…you can pay with credit card or be invoiced by clicking on this link.

You can also purchase individual copies of the Tool Kit Book, Little Book of Empathy, and Pocket Notes by clicking on this link.

Finally, bulk pricing is available for large orders…simply contact 618-559-8168 or doug@sorryworks.net for more information.

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Medical Errors Hidden from American Soldiers — task for Obama??

At age 44, I am not old enough to remember the Vietnam War. However, I do remember that during the 80′s the American public awoke to the fact that the troops were treated in a shabby fashion during the war. As a grade school student, I remember when the Vietnam Memorial was unveiled in Washington DC, and that it was not only a monument honoring the sacrifice of our solders, but it was also – in a way – an apology to the troops and their families.  When the Wall was dedicated, I remember hearing stories of how soldiers coming home from Vietnam were protested, ridiculed, and, sadly, in some cases spit on. Too many veterans said things like, “We weren’t very popular when we came home” or “We were embarrassed to wear our uniforms in public” or “The protesters called us ‘baby killers’ and spit on us.”

We don’t have this problem anymore. Even during the controversial Iraq War, American troops and their families rightly enjoyed strong public support. Our troops receive the very best our country can give — except when it comes to medical errors in military hospitals. We’re still spitting on our troops.

The New York Times recently published a lengthy article – see link below – about how active duty service members who experience adverse events in military hospitals cannot receive explanations, answers, or even an apology. Soldiers and their families are driven crazy, says the Times article. Our warriors get the silent treatment. The article contrasts the military’s approach with the small but growing number of public/civilian hospitals embracing disclosure and apology. One of the excuses given by the military for not talking is that doing so might encourage lawsuits by civilians who receive care in military hospitals…where have we heard that argument before?

Note: Active duty military personnel are not allowed to file medical malpractice lawsuits….the Times articles states that military leadership fear a breakdown in military discipline if lawsuits were allowed. So, covering up medical mistakes and not meeting the financial and emotional needs of injured soldiers and their families is good for discipline and morale? Gimme a break.

As a US Senator and President, Barack Obama has been a leader in the disclosure movement. Moreover, Obama dramatically changed the military by allowing gays to openly serve. Perhaps during his last months in the White House, Obama can again change the military by advocating for disclosure, apology, and fair compensation to troops injured by medical errors. Don’t our troops deserve the very best?

Here is the link for the New York Times article.

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Question from the Road: Lose a Patient?

Yesterday I did a webinar for a large hospital system, and the following question was posed during Q&A:

“I’m in charge of our system’s ambulance service, and, well, every so often we lose a patient. What do we say to the family when we lose their loved one?”

Wow, what a question, but not that out of the ordinary when you think about it. Fact is things get lost, misplaced, filed incorrectly, etc all the time in health care, except in this instance it’s an actual person that is “misplaced.” Here was my response:

“Tell the truth, but only say what you know when you know it. Don’t be in a hurry to blame the driver, or the person who arranged the transfer, etc, because you don’t know for sure. Instead, simply, ‘We are sorry we lost your husband. We were supposed to take him from Point A to Point B, but somehow he ended up at Point D. I know this is a scary situation, but your husband is secure and OK, and we are getting him to Point B in a quick and safe manner. We are very sorry this happened, and we are going to conduct a review to understand how and why it happened, take corrective measures so it doesn’t happen again, and report back to you. Can we talk again at 2pm tomorrow afternoon so I can update you on our review?’”

We see similar situations in long-term care when items such as clothing, jewelry, etc get lost. Was it stolen? Maybe. If so, who stole it….an employee, another resident, or family member? Or did the resident with memory problems misplace the item or mistakenly throw it in the trash? Possibly. Or did the caring grandson, knowing that grandma is having memory problems, take the treasured watch home for safe keeping and simply not tell anyone, yet? Could be. In this circumstance when confronted with an angry resident or family demanding to know where grandma’s watch has gone, don’t get defensive and simply say, “I am sorry the watch is lost. Let me help you find the watch. Let’s try to see what happened to the watch.”

Then, there is the scenario we role play in disclosure training seminars: A 40-year old woman had a Pap smear in August, then she goes back to her physician in February for another issue, but during that February visit the physician asks if the woman has seen the specialist about her Pap smear. The patient looks dumbfounded: “What specialist? I never heard anything about the Pap smear. Is there something wrong? Nobody told me.” In such a situation, a physician might a) downplay or even cover up the episode, or B) blame her staff for misfiling the report and not calling the patient, or c) say the following: “OK, we had an irregular reading with your Pap smear that raised some concerns and we need you to see a specialist. Somehow, unfortunately, there has been a disconnect between our office and you…I need to understand what happened. I am sorry this happened. The most pressing issue, however, is that we get you to the specialist ASAP…we’re six months behind at this point. I know the specialist and will call in a favor to get you seen soon, possibly today. Also, I will try to understand what happened with your August Pap smear, and report back to you. Can we talk at 2pm tomorrow afternoon? Do you have any other questions? How else can I help you right now? My staff and I are going to stay with you every step of the way.” In this scenario the lab report may have been filed away incorrectly and no one called the patient, OR the office called three times and left messages, but the teenage son deleted all of them, and the husband threw away the letter that came in the mail. You don’t know…so only say what you know when you know it.

For information on Sorry Works! webinars and disclosure training seminars, call 618-559-8168 or e-mail doug@sorryworks.net.

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2nd Victims of Medical Errors and the Disclosure Movement

Recently I had dinner with a CMO for a major medical system, and the CMO said it really upsets him when a defense lawyer tells a doc “not to worry about an adverse event or a lawsuit….it will go away…that’s what insurance and lawyers are for.”  The CMO said there is absolutely no consideration for the feelings of the doc (or nurse)…no thought about the emotional trauma visited upon the clinician or his/her family.   Adverse events are reduced to monetary fights between lawyers.

For 10+years at Sorry Works we have worked to “re-humanize” discussions concerning adverse events….we have continually said that when clinicians/hospitals apologize to patients and families for medical errors, the anger is often removed, and the post-event discussions evolve from an angry fight over money to a more robust and fair discussion of how the financial and emotional needs of the patient/family can be met in an expedited manner, saving everyone time, money, and stress.

Now it is time we worry about meeting the emotional needs of the clinicians involved in adverse events.  During a recent trip to California two friendly physicians said until we learn to take better care of clinicians post-event, disclosure will never fully take root.   As one doc said to me, it starts with NOT yelling at clinicians post-event and NOT suspending or firing them, and then, as another doc said, giving the doc or nurse and their families the emotional support they need OR it may be impossible for them to say “sorry” to the patient or family.

Personally, I’ve heard one too many stories of clinicians quitting or retiring early, suffering family problems including divorce, and even committing suicide all because they are not given adequate emotional support post-event.   Telling a doc or nurse “the lawyers will take care of it” does NOTHING to address the PTSD they are suffering.

There is a very robust disclosure movement in the United States, and a smaller but growing 2nd victim support movement.  Unfortunately, there is not enough overlap between the two — but the two concepts need to be married together.  We need to support everyone post-event.   Not only do we to talk better to patients and families post-event and treat them in a more humane fashion, the same goes for docs and nurses.  I dedicate an entire chapter in my new “Sorry Works! Tool Kit Book” to this topic (more on the new book next week). 

Also, the Center for Patient Safety, based in Missouri, is hosting a 2nd Victim Training Workshop on September 24, 2015 in St. Louis, MO.  Sue Scott and Laura Hirschinger of the University of Missouri’s well-known 2nd Victim Support program will lead this training seminar.   If you want to learn about 2nd victim support, you need to attend this training seminar.  To learn more about this valuable seminar and register, visit this link.  

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Resources for Attorneys Trying to Understand Disclosure

Defense and plaintiffs lawyers are key pieces in any disclosure process, yet, due to lack of knowledge and cultural issues, they can often be barriers — especially defense lawyers.  A few weeks ago I penned a column on fighting passive resistancein disclosure, and it is often the defense lawyers (along with their allies in claims) who provide the most passive resistance to any disclosure program or individual case.  Defense lawyers can throw lots of sand in the gears.  Through the years at Sorry Works! we have stated the some defense lawyers need to be fired.

While some lawyers will never support disclosure (and need to be shown the door), there are many defense lawyers who can become supportive if properly educated.  There are some terrific educational resources for attorneys available through MACRMI, which is the state-wide disclosure initiative on disclosure in Massachusetts.   These resources walk defense lawyers through the process, and even calm skeptical plaintiffs lawyers who think clients might be shortchanged with disclosure.  Check out this link and this link.   Please share this information with the attorneys who will be part of your disclosure program.

Have a great weekend!

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Hotline Numbers on Back of Bathroom Stall Doors

During recent disclosure training seminars, I repeatedly heard from experienced, seasoned doctors that not only do they not have any idea what to say to families post-event, they also have no idea who to call for help when something goes wrong. Of course, the risk manager sitting two rows over is pulling his/her hair out because they have told the medical staff 20 times to call their office when something goes wrong, but the message wasn’t received or remembered. So, docs and nurses don’t communicate with anyone post-event and the situation quickly becomes a legal train wreck.

At Sorry Works!, we continually coach hospitals and insurers that they really need to promote disclosure among their clinicians. It’s not enough to say “We do disclosure” but you have to teach disclosure to your front-line staff and then keep disclosure top of the mind among your doctors and nurses (as well as new hires down the road). One way this is done is to publicize and promote your hotline number to let docs and nurses know there is a place/person to call when things go wrong. A surgeon in a recent disclosure training seminar shared this idea about promoting hotline numbers which was priceless:

“Put the hotline number on the back of the bathroom stall doors. When I sit on the can that is the only five or six minutes of my day where things are totally quiet and I’m not being bombarded by people or information. And all I am looking at is the back of a grey door…so put the hotline number on there. I’ll see it every day and remember it.”

The surgeon also suggested that small cards or pamphlets with information about disclosure (including the hotline number) be left in discreet places where physicians and nurses can quickly and confidentially grab them and stuff in their pockets. This is why Sorry Works! created “Pocket Notes” and the “Little Book of Empathy”…both are small, quick reads that can be customized to include your hotline numbers. Order your copies today!

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Identifying and Fighting Passive Resistance to Disclosure

When I was first giving Sorry Works! presentations 10 years ago, it was not uncommon to have an attorney, doctor, or claims manager stand up and debate me. They would say disclosure was a horrible idea, and then utter some not-so-nice things about me. I don’t have this problem anymore. In fact, I firmly believe if a lawyer or doctor treated me this way today they probably would be fired. We’ve made progress!

However, these detractors have not totally gone away. Yes, some have been converted, but a handful have gone underground. How do you identify them? Well, these folks blow their cover with the following comments:

“We shouldn’t do disclosure on this case…maybe the next case.”

“The doctors aren’t ready for this…..they’re uncomfortable….let’s wait.”

“Pay for the mistake now? We can’t just throw in the towel on this case! Let’s do a few depositions, some discovery, and drag things out…maybe the family or their lawyer will grow tired and quit.”

“You know…we’re so busy around the hospital…we don’t have time for disclosure right now…maybe next year.”

“We’ll say ‘I’m sorry,’ but we’re not paying a nickel.”

“But, I don’t have control over what the nurses will say…I’m uncomfortable with that.”

“Don’t say anything to the family unless a lawyer calls…maybe they’ll just go away.”

“We can’t risk somebody saying the wrong thing!”

You know, a good counter to these comments is to ask, “Well, how would you want your family treated? What if the patient was your wife, child, or sibling?” I once did this to attorney who was trying to throw sand in the gears and he literally slammed down the phone on me.

When you do disclosure you have to do it all the time, and on every case. You can’t cherry pick cases, or play games with consumers or clinicians. Confront the passive resistance, work to bring these detractors into the fold, and, in a few instances, you may have to let some people go. Your disclosure culture is not open to debate or negotiation.

To speed the development of your disclosure program and overcome the hurdles, consider a Sorry Works! presentation for your staff and leadership. For more information, call Doug Wojcieszak at 618-559-8168 or e-mail doug@sorryworks.net.

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Comment from Family About Sending Mail After Adverse Events

Last week we posted about the Jahi McMath lawsuit and, in so doing, drove home the point about NOT sending marketing magazines, bills, fundraising appeals, surveys, etc to families who have suffered adverse medical events — see below for original post. It’s kinda strange when you think about…for the longest time, doctors and nurses have not talked to patients/families post-event, but the hospital happily sends junk mail and bills that only increase the anger felt by families! With disclosure we need to turn this situation on its head. In response to the original post below, a reader left the following response on the Sorry Works! website…it’s a gem:

“YES, YES, YES. When our son Zachary died due to medical negligence, the hospital continued to send us literature “Congratulations on your newborn” “What your 4 month old will be experiencing” etc. We begged them to stop. The fact that one part of the hospital did not communicate with another part to protect grieving parents was agony for us. I would be finally surviving a day of horrendous grief, proud of a smile, that I was able to eat 2 bites of sandwich, unload the dish wahser, that I wasn’t on the ground begging God for my son to be home in my arms and WHAM the mail would come. What that does to a grieving parent is like getting the news again “He’s not going to make it”, “He’s not coming home”, “When do you want to take him off of life support”. And your day, your week is hijacked. Back into the throws of despair you return. You can’t breathe, you wail, you stare catatonic at the piece of mail from the person place or thing that killed your child. And the reality is that it is true “Sorry works!” What a beautiful phrase. I applaud whoever came up with it. After a recent surgery, I almost died at the hospital. I had to have a second surgery, because of a mistake the doctor made. When I awoke from the surgery, my Dr was sitting by my bedside CRYING. He said sorry. It was his fault. He was unaware that an instrument he used cut a whole in my colon, causing waste to enter my body cavity. It almost killed me, a fact that was so hard for my husband and Mother to witness 5 yrs after his son, her grandson had died because of medical negligence. But the Dr. said sorry and a peaceful wave of forgiveness washed over us all, immediately. ‘Sorry works!’”

When I speak before hospitals, I often have risk managers saying, “If I can just get my docs and nurses to say ‘sorry’ after an adverse event and call risk or legal we’ll be miles ahead…these are simple things.”   Add not sending mail or bills to the family post-event to the list of “simple things” hospitals can do after something goes wrong.

Final Note: Of course you can (and should) mail a sympathy note or sympathy card, even if you don’t know the family that well.   Just don’t send them marketing magazines proclaiming your latest miracle, invites to the fundraising gala, “satisfaction” surveys, or bills threatening to put them into collections.

- Doug

Doug Wojcieszak, Founder, Sorry Works, 618-559-8168

 

Weekend Wrap: Jahi McMath Lawsuit and Sorry Works! Connection (originally posted March 6th)

Many of you will remember the story of Jahi McMath, the young girl who suffered a major adverse event following a tonsillectomy at Children’s Hospital Oakland, was declared brain dead, then her family fought successfully to have her kept on life support and transported to another facility for additional care. Well, some of you may have heard, Jahi’s family filed a lawsuit this week against Children’s Hospital Oakland….a link for a news story about the lawsuit is provided below.

There is an interesting connection between this hospital & case and Sorry Works! — when reading the article linked below you will see at the end of the article a quote from Mr. Wade Westhoff. The Westhoff Family also lost their own daughter after a major adverse event at Children’s Hospital Oakland in January 2013 before the McMath tragedy. The hospital was not empathetic, and did not communicate or stay connected with the Westhoff family post-event. Instead, the hospital mailed multiple marketing and fundraising letters along with a quality survey to the Westhoff’s house! These mailings were a constant reminder of their loss and angered the family. Wade and his wife Jennifer did their own investigation and found several mistakes in their daughter’s care. Wade and Jennifer met with the hospital and offered to reconcile and help fix the post-event communication processes at the hospital. The Westhoff Family also asked that the mailings be stopped. Initially, the hospital was receptive, but, then, the wheels fell off the cart…and the hospital mailings to the Westhoff family continued. Wade warned the hospital they had serious safety problems and the hospital was ill-equipped to communicate with angry, grieving families….then Jahi’s case happened.

Wade and Jen have filed a lawsuit over their own daughter’s case. Sorry Works! did two blog postings on the Westhoff family story, including a letter written by the Wade and Jen about their experiences with Chidlren’s Hospital Oakland. You can find those two articles here and here.

There are many lessons from the Westhoff story, but one of the big and easy take aways is….quit sending mail to folks after an adverse medical event! It incredibly insensitive and can be viewed as abusive, and will increase the anger felt by families. Leadership needs to quickly shut down marketing and fundraising letters; bills need to be put on hold; and surveys stopped. All communications – written, verbal, e-mail, etc — with a family after an adverse event need to be routed through the disclosure team. When I teach disclosure I always drive home this point — because it’s so simple, so necessary, yet so many healthcare organizations miss this point. STOP SENDING MAIL TO TRAUMATIZED FAMILIES!

Here is the link to the article about the Jahi McMath lawsuit which includes the quote from Wade Westhoff.

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Iowa Doctors and Trial Lawyers Working Together on Disclosure & Apology

Hawkeye State physicians and personal injury lawyers are working together to promote disclosure and apology. These long-time adversaries are joined hand-in-hand on legislation in the Iowa capitol that is similar to recently established state-wide programs in Oregon and Massachusetts, including the fact that disclosure-related conversations cannot be shared with regulatory authorities. Significant accomplishment. News article is linked below.

I want to stop right here.

When you think about this story I don’t want you to have visions of your own state capitol, but, instead, think about the lawyers in your own life. The lawyers who represent your organization, and the lawyers who typically sue your facility. If disclosure can bring together the Hatfields and McCoys under the dome of the Iowa capital, why can’t you do the same with the lawyers in your life? Disclosure literally gives you a chance to re-shape the relationship with defense and plaintiff’s counsel, and how these folks work together for the benefit of your clinicians, patients, and families. You don’t have to wait for your state to follow the lead of Iowa, Oregon, and Massachusetts (great if they do), you can do it on your own. Many other hospitals and insurers around the country have already done so, or are doing it right now.

Talk with your defense counsel, bring them on board….a few might need to be re-educated, and one or two may even have to go. Also talk with your local plaintiffs attorneys….talk about how you want to work with them through disclosure and apology. Consider the following quote from Iowa regarding this joint effort by doctors and lawyers:

“Dr. Michael McCoy, a Burlington obstetrician who worked on the proposal, said most doctors want to be honest with their patients. But too often, he said, the doctors are given legal advice not to disclose errors to patients for fear of a lawsuit. ‘Everybody kind of freaks out, and nobody says anything,”‘he said at a House subcommittee meeting. ‘… That system just doesn’t work.’

Brian Galligan, a Des Moines attorney who is president-elect of the lawyers’ group, agreed with McCoy that many patients would be satisfied with the truth, an apology and a plan to prevent errors in the future. Patients are more likely to file lawsuits if they don’t get those things, he said. Their initial goal isn’t to win a big judgment. ‘We often have clients come in and say, ‘I want to know what happened, and I want to make sure this doesn’t happen to anyone else,”’ Galligan said in an interview.”

You don’t need a state-wide push to have these discussions with your lawyers and doctors too. You simply need to establish your own disclosure program. Sorry Works! is here to help. You know, for many organizations the journey to disclosure starts with the Little Book of Empathy and the newly released Pocket Notes. The Little Book of Empathy is great for c-suite, risk, claims, legal, and managers, while Pocket Notes is built for front-line staff. Order your copies here.

Here is the news article about the push by Iowa doctors and trial lawyers.

 

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