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"Deny and defend" is as scary as Halloween. Don't be a Ghoul - disclose to your patients and families! Happy Halloween to our loyal readers.....we appreciate you and your help spreading the word about disclosure and apology.
IN THIS EDITION:
Special note: This newsletter could be described as the "clarification" issue. The newsletter starts with an un-edited guest column submitted by Dr. Steve Kraman, former chief of staff for the Lexington VA Hospital, and Rick Boothman, chief risk officer for the University of Michigan Health System. The Kraman/Boothman piece is followed by an excerpt from an e-mail response penned by Doug Wojcieszak, founder and spokesperson for The Sorry Works! Coalition. The e-mail response was written to a healthcare professional who is working on implementing a disclosure program in his/her hospital (the identity of the healthcare professional will remain anonmyous).
Both the Kraman/Boothman column and Wojcieszak e- mail clarify that disclosure programs are much more than "I'm sorry." Kraman and Boothman both express their concern and frustration that too many politicians and healthcare leaders are focusing solely on the apology part of disclosure. Their frustration is shared by Wojcieszak.
Indeed, many healthcare, insurance, and legal professionals are OK with the apology part of disclosure, and they like the benefits of disclosure (lower lawsuits and liability costs), but they need to understand there is much to a succesful disclosure program than "I'm sorry." It's a process and approach which is well- described in the two following passages.
Furthermore, many state legislatures are passing (or have passed) so- called apology immunity laws which prevent physician apologies from being used in court. These laws are fine in that they remove the excuses for physicians not to apologize and make it easier for reform-minded people within institutions to implement disclosure programs....BUT....it is a disclosure program that must be implemented to enjoy the reduction in lawsuits and liability costs. An immunity apology law in and of itself will not do the job. Finally, an apology immunity law is actually not needed to implement a disclosure program. The State of Michigan has no apology immunity law on the books, and healthcare, insurance, and legal professionals will soon learn that honesty is a wonderful protection if sued after a disclosure event. Hard for a jury to get angry at a doc who tried to do the right thing (apologize, offer compensation to a patient/family) after a bad outcome.
We sincerely hope you will forward this e-mail to colleagues and friends. People need to understand these issues.
Kraman and Boothman Column - "Sorry Alone Doesn't Work"
Sorry Doesn’t Work Alone
The legislative proposal known as Sorry Works continues to generate interest and slowly spreads with proposed legislation in several states for pilot projects and a number of hospitals and healthcare systems supporting the practice. Outside the United States, Australia adopted a nationwide full-disclosure scheme (but one that is voluntary and lacks compensation rules or guidelines) and a bill, the NHS Redress Bill, is progressing along the legislative route in the English Parliament; it includes limited compensation for those injured by medical mistakes. Still, with evidence growing that Sorry Works-type practices actually work to diminish malpractice claims and expense, and with the total absence of evidence supporting traditional deny and defend practices, we must ask why the movement seems so gradual.
The answer, we believe, may have something to do with the manner in which Sorry Works is portrayed. Sorry Works is often presented in a touchy-feely and self righteous manner. The combination of the name "Sorry Works" and statements that it is "the right thing to do" appeals to the public and even healthcare workers. However, risk management professionals, defense attorneys and insurers are flinty, hard-edged types who see the world as a dangerous place and equate soft-hearted with soft-headed. We suspect that many people in the business of risk management have not looked much beyond the apology part of Sorry Works. We can't blame them as there is far too much attention being paid to the apology and even to disclosures. These aspects are only small parts of the whole.
The real key component in any successful claims management program, from ours at the Lexington VA, to the successful program at the University of Michigan, to that described by Sorry Works is competent case assessment and principled management with a backbone. Medicine is inherently dangerous. Even the most seemingly benign actions by the most careful of health care professionals, like prescribing an antibiotic for an ear infection, is fraught with potentially devastating consequences. Knowing the difference between reasonable and unreasonable care is key and resolving to act accordingly is the answer.
At the University of Michigan and the VA hospital at Lexington (the only two hospitals to publicly air their financial outcomes), risk management is a hard-nosed system based first, on working hard to know the difference between reasonable and unreasonable care and next, resolving to take advantage of no one and allowing no one to take advantage of you. Hospital managers who donąt have these capabilities or processes in place to know the difference are naturally loath to admit any error because they don't know how many others are lurking, or because it is easier for them to let the litigation system ultimately ferret out the distinction however expensive that method may be. The fear is in the unknown. A constant litany of "doing the right thing" won't persuade the doubters. They have to understand this as the management issue that it is. Apart from the nuances of "Sorry Works" and other such approaches, to gain real ground we need to frame the problem and the solution in real and realistic terms.
Perhaps the two of us have been as guilty as any in not representing this the correct way. Unfortunately, the "Sorry Works" brand seems to focus on the apology component. The name has stuck, but the full breadth of the concept needs further explanation and realization. Those of us who have practiced "Sorry Works" -type programs need to emphasize the whole concept rather than just the "soft" parts. Ultimately, it IS about "doing the right thing" but doing the right thing for everyone concerned, health care professionals and institutions, as well as our patients, and it starts by knowing the difference and having the backbone to act accordingly.
Steve Kraman, M.D.
Professor, University of Kentucky
College of Medicine
Former Chief of Staff
Lexington (KY) Medical Center
email: sskram01@uky.edu
Richard Boothman, J.D.
Chief Risk Officer
University of Michigan Health System
email: boothman@med.umich.edu
Wojcieszak e-mail on disclosure programs
Dear XXXX....
Congratulations on this major and important move. I applaud you, and I hope you will share your story with our coalition as you move forward. Your learning process - if shared publicly - could teach and impact many others in a positive fashion.
To be clear, I hope this is an apology, disclosure, AND early offer of compensation program. Saying "sorry" is not enough....for an apology to be viewed as sincere and reduce anger (and reduce the chances of being sued), the compensation component is needed. Some healthcare and insurance organizations want to do just the apology (with no compensation), and these apologies can be viewed as phony & flippant and actually increase anger among patients and families.
Also, it's so important for patients and families to know what exactly happened to them and how the problem will be fixed so it doesn't happen again. Amazingly, many patients and families develop an altruistic outlook in wanting to make sure the mistake is not repeated.
As far as training, I think you will find Sorry Works!/disclosure is really a simple process that will have to clear many cultural hurdles in your institution. Here it is in a nutshell:
1) Your normal risk management team, medical staff, and insurer are involved as they normal would be with any adverse event.
2) After adverse events/bad outcomes - what might get you sued events - you conduct a root cause analysis to see if the standard of medical care was not, or not. This analysis may involve the assistance of independent, outside experts.
3) If the standard of care was NOT met (i.e, an error, system breakdown, etc), you contact the patient/family and encourage them to retain legal counsel. Note: some healthcare and insurance organizations are reluctant to involve the trial bar, but it actually adds to the credibility of your program and further reduces litigation.
4) You schedule a meeting at which time you disclose, apologize, admit fault, explain what went wrong and how it will be fixed, and offer fair, upfront compensation (as determined by an actuary or some other expert). You negotiate the final amount with the PI attorney and the case is closed in a short time.
5) If, however, there was no error - it was simply a bad outcome - you still contact the patient/family and schedule a meeting with them and their attorney. You open the records, answer all questions, and prove your innocence - avoid any appearance of a cover-up. You don't offer compensation, and if sued you NEVER settle these cases - fight them all the way to the end. This is important to your medical staff so they know they won't be sold out.
That's Sorry Works! in a nutshell. When the University of Michigan started their program, the chief risk officer met with all the major trial lawyers firms in the state and explained the program. He encouraged the PI attorneys to bring in their clients for a meeting before suing to find out if there was a legitimate case. If so, Michigan would apologize and offer compensation. If not, they expect the lawyer and client to go away - and they do.
Sorry Works! website traffic hit a record in March
The Sorry Works! website hit a record for traffic in March with over 82,000 hits - thanks for your help in spreading the word, and let's make April another record month by directing colleagues and friends to www.sorryworks.net. Thanks!
Sorry Works! on the Road
Doug Wojcieszak, Sorry Works! founder and spokesperson, gave presentations before the Michigan Hospital Association and Virginia Medical Society two weeks ago, and will be testifying before the Tennessee House Judiciary Committee next week and Congress' 21st Century Healthcare Committee the following week. Wojciezak will also be making presentations to the Indiana Association for Healthcare Quality, Crittenden's Insurance Conference, Washington State Orthopaedic Society, and the California Medical Board over the next month.
To schedule a Sorry Works! speaker, write to doug@sorryworks.net or call 618-559-8168
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