I was speaking with a claims manager friend a week ago who said the disclosure movement is picking up a lot of momentum and starting to “snowball.” Well, you know that statement is true when the lawyers formally jump on the bandwagon! This past week the American Health Lawyers Association released their document entitled “Considerations in the Disclosure of Serious Adverse Clinical Advents.” For the record, however, many defense attorneys figured out long ago the efficacy of disclosure, and readily practice it with their clients. Nonetheless, it is nice to see a formal document from this group.
The document is basically a checklist of issues and questions to consider as you develop your disclosure program. I take some issue with their point about offering empathy and (when necessary) apology according to your state laws. You can always empathize (regardless of laws), and if a credible review shows you made a mistake there is no harm in admitting fault and making a fair, reasonable attempt at meeting both the economic and non-economic needs of the patient/family. Worse thing that happens is you have to argue a case on the damages.
Moreover, the document is a little lengthy – just a bit too “lawyerly.” Remember, disclosure isn’t really about the law — it’s about keeping relationships alive post-event. That’s why at Sorry Works! we’ve tried to keep it simple: Empathize, Review, and Resolve. When done right, however, this simple process has powerful legal ramifications. So, I hope that when people read this document they don’t become overwhelmed or buried under the details. Keep relationships alive by keeping it simple. Still, a lot of good issues in this document to keep in mind as you move forward….just keep it in proper context.
Final thought: This could be a good document to begin (or continue) a discussion about disclosure with your defense counsel. We believe it is absolutely important to get your defense lawyers/defense firms on board with your disclosure program. The lawyers need to be supportive, or they need to go.
Doug Wojcieszak, Founder, Sorry Works!