Question from Road: Power Dynamic & Measuring Fairness?

During a recent Sorry Works! presentation I received a very interesting question from an audience member:

“What about the power dynamic between the hospital and a patient and/or family? The hospital has more knowledge, experience, and resources handling adverse events…how do we keep the power dynamic from getting out of hand during the disclosure process? Also, what about fairness? How do we know we are being fair when we try to resolve an error? How do we know our early offer compensation is reasonable as opposed to taking advantage of vulnerable people who don’t know what to ask for or don’t know what they are entitled to? How do we measure fairness?”

Great questions. Important questions.

When a legitimate medical errors occurs, whereby it was proven by a credible and expedited review, many risk managers are disclosing the error, apologizing, and then turning the conversation back to the patient or family: “Mrs. Smith, again we are sorry for the harm we caused your husband and family…it was our mistake….how do we make this situation right by you? What do you need us to do?” This is a good approach…you can find out what is important to patients and families. It’s not always money, and if it is money it’s not always “jackpot justice.” Every case is different. Some families will focus on the emotional fixes such as remembering their loved one in a constructive manner, getting involved in patient safety at the hospital, etc. You never know until you ask. However, you have to be careful, because as suggested by the person who raised the question above, patients and families often don’t know their needs or what they can legitimately ask for. Patients and families often don’t think about their needs five or ten years down the road. Or, I once had an educated consumer express shock to me that hospitals have insurance to cover medical errors! She literally had no idea. Indeed, there is a large knowledge and experience gap between hospitals/insurers and consumers when it comes to addressing medical errors.

Have to be careful not to take advantage of people! It can be tempting to get out of a $200K case for trinkets because you said “sorry” and family is no longer angry at you, but you have to assume that the patient or family will go back to their family members, friends, neighbors, co-workers, etc and share how the hospital handled the situation and more than one person will say some version of the following: “That’s all they gave you?! You got ripped off!! Should have talked with my attorney!” You don’t want to develop the reputation of ripping off vulnerable people or your disclosure program will eventually fail because patients and families will know not to talk with you post-event. Remember to keep your eye on the big picture…disclosure is not about getting out of one or two cases on the cheap.

So, how do you be fair? Tell patients and families they have right to legal counsel upfront. Better yet, educate local PI attorneys about your disclosure program and how you want to be pro-active and collaborative post-event with patients and families. I know this will feel awkward, like you are inviting the enemy in, etc, but this bold move will build the credibility and success of your disclosure program. Some hospitals even recommend to patients/families the names of local PI lawyers who will be receptive (not the patient or family will always listen to the advice). If the family does not want to be represented, that is fine, that is their right….so you have to work harder. Again, remember, this family sitting across the table from you will re-tell the story multiple times of how you treated them during the worst moments of their lives. So, again, it is OK to turn the conversation back to the patient or family, but if they don’t know what to ask for or seriously undervalue their case, you may need to push back: “Mrs. Jones, we are happy to provide what you asked for, but we owe you more…your case, your situation, is worth more. We suggest XX.” OR “You seem to be struggling what to ask for….may we suggest the following…”

If the family pushes back and says,The money is not important….we are more interested in making the hospital safer, etc, go with it. At least you’ve tried and no one can say you took advantage of vulnerable people.

But, what if the family goes in the other direction…they think a $100K case is worth $1 million, for example? Keep talking…try to learn why they think the case is worth $1M. Maybe there are some things about their situation you don’t know about that truly does raise the value, or maybe they are just angry. If the family is represented by counsel, the attorney may step in and help the client understand the true value of their case. If they are not represented and the case is only worth $100K, be polite but firm, “I am sorry, Mrs. Jones, this is what is fair for your situation…we encourage you to review this offer with an attorney of your choosing, and please get back to us.” This is why we share the details our disclosure program will local PI attorneys because they may help guide families.

Hey, remember, Thursday, November 13th, 1pm ET/10am PT is the “train the trainer” webinar being given by Sorry Works! Great chance for c-suite, risk, claims, legal, and medical leaders in your organization to learn about disclosure and apology. Click on thisLINK to learn more.

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Sorry Works! to have booth at PA Risk Managers Meeting this Friday

Sorry Work! will have a booth at the Pennsylvania Risk Managers annual meeting tomorrow and Friday in Harrisburg, PA….Sorry Works! is also sponsoring the meeting.  Very excited about this meeting, as Pennsylvania just recently passed an apology law.  I think a lot of people in the Keystone state are anxious to get disclosure started, and Sorry Works! will be there to help!

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Mom Shares Daughter’s Death & Need for Disclosure

Late last year I did a disclosure presentation for an insurer, and immediately before my speech they shared a video with the audience entitled “Jess’ Story.” The video was the tragic story of a young woman – Jessica Barnett, or Jess – who died because her doctors did not listen, and then litigation – not disclosure – followed. The video was narrated from the perspective of the now-deceased Jess and it was incredibly powerful.  It’s one of those videos that just makes you stop and watch.  Over 40,000 people have viewed this video on YouTube, and it has become a teaching tool for medical and nursing students.

Well, this summer I met Jess’ Mom, Tanya, via Facebook, and I invited her to share her story with the Sorry Works! audience.  Below is the text given to us by Tanya last week. Included in the text is the link to the same video I saw before my speech for the insurer.

Chasing Safe — Honoring a daughter taken by medical harm by Tanya Rempel Barnett

I am here, and she is there. And there are times when sharing her story, the weight of it all, pulls me down, even under. Only sometimes, but it does. Her goneness has left a void that grows with each passing year. Sometimes its silence is deafening, and sometimes it speaks to me softly. Sometimes it roars, guttural in sound. And this void, and my pain, are entwined in the push-pull of its continual movement.

 

Although the part of her dying, what lead to it and how it was handled, is a fixed point in time that separated our lives into before and into after. And my journey, like anyone’s, is ever evolving. Pieces are added as they are lived, experiences processed and learned from (when courage can be found), and thoughts of all those yet-to-be moments imagined, some not. A reach/pull-back existence is one that I’ve been left with; I reach out to others, live and love, press for changes, then retreat to heal and recharge. It’s cyclical in nature, this reaching and pulling back. And it needs to be for me to honour her in this way.

 

I’m a visual person, and that’s why chose to create a video of Jess’ ill-fated journey through healthcare. Although I’ve done extensive writings around her death and the needed changes to save lives, I love the deeper connection made through these images between my daughter and the viewer. The video brings everything together in one place; the how, what and why, all wrapped up in the power an emotional connection. So, click on the link below to view her story, but before you do, there are a couple of things you need to know about my daughter.

 

  • Her name is Jess, and it always will be
  • There would have been 18 candles on her cake later that week
  • She hated salmon, but loved jujubes, and really loved cheesecake!
  • Her parents will always have 3 children
  • Just cause you can’t see her, doesn’t mean she isn’t still here
  • Although they don’t show it, at times her brother and sister still struggle
  • She loved children, and she was the best kind of friend
  • She could be loud, really loud!
  • People always say she was kind and loving (sometimes annoying too…)
  • She is honoured each time her story is viewed, each time a doc thinks twice
  • Jess is like an echo; still here long after the source is gone

https://www.youtube.com/watch?v=t6mr3gxXx64

 

You’re back. Catch your breath, and then we’ll go on.

 

So, it’s sad, and needless, isn’t it? And sometimes, even now, I wonder how I got to this place, how my life came to be resting on the edge of this challenge. Looking at my patient safety contributions over the past seven years since her death, it just makes my head hurt… and my heart weeps for her and all that’s been lost. At times, my spirit is tired, so tired of dealing with it all. But part of me is also proud of what I’ve done, and I’m hoping Jess sees it that way too.

 

So, here’s what I’ve done so far:

 

I launched email-writing campaigns (some even replied), had meetings (and more meetings) with patient safety folks, government officials, physicians, hospital CEOs, other families who had been harmed, anyone who showed an interest. I raised awareness as I talked with people in waiting rooms, and online, in planes and at bus stops. I even continued a conversation with a woman in the restroom, slipping my ‘I am Jessica’ card under the stall. Anyone, I spoke with anyone who’d listen, anyone who didn’t walk away. I joined Facebook groups, asked questions, and researched late into the night. I created a set of recommendations relating to her care, which have been accepted by many I’m told, but not by her docs. I cried a lot too through these times, for my girl, and for the frustration of it all; why was I having to do this work in the midst of my grief? I stood, fist at my sides, but soon realized, who better to do this than the mamma bears of this world. And my resolve would be strengthened.

 

I spoke at conferences, gave media interviews (eventually becoming a go-to person in our province for comments about safer care), encouraging those who’d also been harmed to share stories and strategies, helping them feel supported, and heard (which often doesn’t happen in healthcare). I worked independently and with patient safety groups; Patients For Patient Safety Canada and the Canadian Patient Safety Institute (CPSI ), and The Empowered Patient Coalition. Many articles and letters, and the beginning chapters of a book, were written and re-written. Word followed word until the screen became blurred (at times, I’ll admit it, balance was fucked ). Art installations were imagined and dreamed into life. I built bridges between patient and provider (no torching by design). In the early years of my grief, I lead a bereavement group called , helping not only myself, but others to heal. I became a WHO patient safety champion. And wrote poetry, lots of poetry. And all the while, was supported by family, and special friends. And it takes a special kind of friend who’s able to read the autopsy report of a child… it does, it really does.

 

I developed the website, and created a video of her story. And was one of many used by CPSI in helping to champion the patient’s voice. I created word and video that gave a voyeuristic look into the life of a family dealing with the fallout of medical harm, and how this system continues to harm us. I watched with amazement, as Jess’ video was viewed more than 40,000 times on YouTube! And even more so, when it became a teaching tool used in one country after another. It’s been used at patient safety conferences on two continents, and in lectures to encourage med students to understand the real cost of medical harm. I’ve encouraged healthcare to embrace their own humanness of making mistakes (it’s not if but when, and it’s what you do with those mistakes that’s important). And all the while my husband-slash-backer (emotional and financial), well, he had my back! Advocacy on this level, if we’re honest, takes an incredible amount of time and energy, and headspace. And money; let’s face it, someone had to work! He read every word that I wrote, listened to me anguish at the latest door closed, and cried with me over every photo used in her work. I offered forgiveness, first to myself, and then later to them. And like my husband says; it was much easier to forgive them for her death, than it was to forgive them for what happened after. As a counsellor I helped others to begin healing, and became a mediator in hopes of sparking a more healing process, an alternative to adversarial litigation for cases of malpractice. And one day we will, we really will. Deep breath…

 

I shake my head, and marvel at it all; where did the energy come from to advocate for those who could not? Where did the optimism, the perseverance, the glass-half-full mindset that continued to buoy me as door after door was slammed in my face, coupled with years of requests to meet with her doctors were denied, time and time and time again? And where did the strength come from that saw me climb out of the muck and the ooze of that dark hole of my grief? And where did I garner the strength to continue to live and love well, to remember I still had living children after all? And remember, I did this all while my grief sat heavy and sour with the weight of a stone rammed deep in my soul Where?

 

Where did it all come from?

 

Perhaps it was the unfairness of it all, the indifference we faced, and our real concern that more children would die if changes weren’t made. Maybe it was even the ‘don’t you dare walk away from us!’ indignity that kept me going back, and that smoldering desire to be heard was kindled into this raging bonfire called advocacy. And it’s reasonable to suspect that my naivety in thinking it would be easier than it was, pushed me forward, sent me on. For I’m guessing that if we really knew what we faced, most of us advocates would’ve stayed home on the day of the big race.

 

All of these reasons have merit, they do. But the one that made top of my list (I’m sure you can guess) as to why I became the ‘tortoise’ (not the hare) in this race, was to honour my girl, who’s loud I’ve now borrowed. And thanks to her, I’m no longer afraid, and I’m no longer quiet.

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

Thank you for sharing, Tanya.

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Surgeon Admits Error; Insurer’s Attorneys Balk

 

Caroline Carcerano went to Tufts Medical Center last November (2013) for what she hoped would be a brief procedure to relieve back pain. She died instead. The surgical team inserted a dye into her spine that is not supposed to be injected in the spine, and Caroline died the following day.

Caroline’s surgeon was candid and apologetic, telling Caroline’s sons that “a mistake was made….we gave her the wrong dye,” according to the Boston Globe. But, then, eight months later — eight months! — Caroline’s sons received a letter from the attorneys representing Tufts’ insurer saying the surgeons and pharmacists were not negligent. The Boston Globe reported the following: “Her sons, Michael and Stephen Carcerano, found the letters baffling. ‘A mistake was admitted, and now they’re saying it’s not their fault,” Stephen Carcerano said. The brothers filed a lawsuit three weeks ago in Suffolk Superior Court against the hospital and 12 pharmacists, nurses, and surgeons. The insurer made a settlement offer soon after the Globe inquired about the case, said William Thompson of Lubin & Meyer in Boston, which is representing the family.”

The Boston Globe article is linked below, and it’s pretty clear that medical errors did indeed occur. The Globe article discusses numerous safety measures enacted by the hospital in the wake of this tragedy. But, it took eight months after the initial disclosure — eight months! — to contact the sons again, and the contact came in the form a letter from some attorneys saying, “Nah, we didn’t kill your Mom,” only to quickly settle the case after a newspaper starts poking around?

Clearly, we need to do better.

This is the MAJOR break down area for many hospitals and insurers. The bedside and initial disclosure efforts are good and sincere, then everything gets gummed up. Things drag out, nobody stays in touch with the patient or family, the investigation or review takes forever and does not involve the family, and sometimes even clear cut cases of error are handled by defense attorneys or claims managers who were taught to never throw in the towel. Weeks and months pass, families become angry all over again, and they start plotting revenge in the form of lawsuits, complaints to regulatory authorities, and tips to reporters and bloggers.

Look, the time to talk about how events will be handled is long before any event happens. Talk with your insurer(s), defense counsel, and risk and claims managers. Get them all in the same room and discuss several different scenarios. The best disclosure training seminars have all of these people in the room. Get everyone on the same page, and, if someone refuses to join the party fire them. There are still many “old school” defense attorneys and claims managers who were literally taught to never throw in the towel, and they will kill your disclosure program. So, put them out of your misery and develop your disclosure program with the right people.

Caroline Carcerano’s case could have been resolved in a few weeks, but to do so requires a functioning disclosure program. To help develop your disclosure program, remember the Train the Trainer webinar being held at 1pm EST/10am PST on Thursday, November 13th. For more information, see this link.

And here is the link for the Boston Globe article.

 

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New NPDB Language Helps Disclosure & “Train the Trainer” Webinar

Shortly before Labor Day, we shared with our Sorry Works! readers an important announcement concerning new language from the National Practitioner Data Bank (NPDB) that will help and encourage disclosure.  Since many of you were still on summer schedule, we thought it best to repeat this information since it is so very important.  Here is the new language from NPDB: “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.”

And here is an entire blog post we wrote about the new NPDB language: http://sorryworksblog.net/?p=794.   Be sure to read this blog post to understand everything about this issue.

Also, Sorry Works! is holding a “train the trainer” webinar on Thursday, November 13th at 1pm EST/10am PST.  This two-hour webinar will cover everything disclosure, and include lots of open time for Q&A and discussion.  Absolutely great training for risk, legal, c-suite, and physician and nursing leaders.  Also, with times being tight financially for healthcare organizations, this webinar offers an economical way to train your leaders on disclosure.  Put as many people around the phone as you wish.  Taped copies also available.  To register, visit this link: http://www.sorryworks.net/webinar-disclosure-training-train-the-trainer-cms-256.

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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.

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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.

Posted in General | 2 Comments