Defensive Medicine and Removing the Med-Mal Fear Factor

There is a lot of talk today about the cost of defensive medicine....doctors feeling they have to order multiple tests to avoid litigation should something go wrong.  This wave of defensive medicine is born out of the historical fear factor surrounding med-mal.  Let's be frank, docs and nurses have had their pants scared off by tort reformers.  Clinicians have been told that every patient is a "potential litigant" and all consumers want "jackpot justice." No they don't.

Consumers want empathy and communication post-event, and to be treated fairly if there are medical errors. Look below at last week's e-newsletter....risk managers telling story after story of families receiving honesty and transparency post-event and then NOT asking for a $1M and a beach house BUT, instead, requesting direct expenses be met and sometimes only emotional fixes.  In fact, risk managers sometimes need to go back to a patient or family and say, "Look, we really owe you X" out of fairness and credibility.

Sure, there are some "bad patients and families" who want jackpot justice, just like there are some really lousy doctors and nurses out there, but these folks are the extreme.  Politicians love to hype up the extremes, and we need to stop this in med-mal because it serves no one.

Take this e-newsletter including last week's e-newsletter below and share with your doctors and nurses and also with medical and nursing students.  Let's open some eyes and change some hearts.  We can solve this problem on our own.

Have a great weekend.

- Doug

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

Avoiding "Buyer's Remorse" & Disclosure - Sept 27, 2013

Thanks to disclosure, more and more risk managers in acute and long-term care settings are learning that they can change post-discussions from anger to understanding.  In so doing, they can literally sit down with a patient or a family and ask, "What do you need?  How can we help you?  How can we make this situation better?"

This honest and direct approach is often a surprise for patients and families.  Consumers don't expect for healthcare organizations to apologize and admit fault, much less ask how it can be made better.  So, we're hearing that the answers to the "What do you need?" questions are sometimes surprising and underwhelming.  No, consumers are not usually asking for a million dollars and a beach house in Florida.  Instead, they're asking for deductibles to be paid for.  Lost time from work or compensation for used vacation days.  Travel expenses for themselves or family members.  Other nominal things.  Sometimes emotional fixes are more the focus, from finding ways to memorialize the patient to involving the family in the facility's safety committee.  Sometimes the apology alone is emotional fix enough.

Some risk managers tell me when they receive these types of answers they will say to themselves in their heads, "That's it?!?  That's really all you want???  Wow!!!"

Yes, wow.  This is where some of the saving comes in with disclosure.  Apologize post-event and the anger and the desire to punish you financially goes out the door.  Things get resolved quicker and cheaper.  Big wow.  Look, the American people are very forgiving and understanding when they see honesty and transparency after something goes wrong.   Most folks just want what is fair and to move on with life.  The American people, however, like to talk too:

"That's all they gave you for all that hurt and suffering?  Are you kidding me?!?  You should have spoke with my lawyer...."

Beware of buyer's remorse, because it can destroy the long-term credibility of your disclosure program.  You have to figure that after an offer is accepted by a patient or family that these people will talk amongst their family and friends, and they may get an earful.  They may start to doubt themselves, and start to feel bad about your institution all over again.   Your disclosure program could, over time, gain a reputation for ripping off people.  Not good!

Now, please understand I'm not saying we are trying to please the crazy uncle who watches way too many legal dramas on TV and believes every medical error is worth a million bucks.  You are not an ATM machine, and any unreasonable demands will be resisted ($1M demand for a $50K case will be told no, you can sue us, and defense counsel will argue the case on the damages).  No, I'm talking about a $50,000 case that you know is worth $50,000 but all the family could think to ask for is to have their bills waived and some reimbursement for direct expenses.   Many times families will not know what to ask for or what they can ask for.   You may need to suggest things...even make an offer that is higher than their initial demand.  "Mrs. Smith....we owe this to you and your family...this is what is right."  Some organizations encourage consumers to review offers with competent plaintiff's counsel.   Last year we even told you about a Baltimore hospital system that is referring patients/families to local PI lawyers who understand disclosure.   You want your disclosure efforts to be viewed as fair and credible.

The issue of compensation for medical error is still a work in progress for the disclosure movement.  How much do you pay?  How do you decide how much to pay?  You shouldn't overpay, as appeared to be the situation with this case from Chicago.   But, you also don't want to pay peanuts and then experience "buyer's remorse" down the road.

One guidepost is we know the national norms for cases, then you may deduct some because their is no drawn-out litigation process.  There might not be an attorney collecting 40% + expenses on the back-end.  The case is being resolving now, and family can move on with their lives now, and that should translate to a lower settlement number.

Also, remember that disclosure is all about fairness, and treating people like you would want to be treated.  The resolution of a case has to be fair and credible to both sides.  Now, some people don't want money or don't have many needs, but we don't want to be taking advantage of people either...bad for them, and bad for your disclosure program.

There is no secret or magic formula to disclosure.  No one size fits all.  Every case is different. The only thing that can be uniform about disclosure and the same from case to case is your ethics.   Your ethics never change. Your willingness to be fair at all the times and with all people remains the same.  The entire point of this e-newsletter is to be another guide post for your ethics.   Good luck!