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IN THIS EDITION:
- Apology/disclosure laws updated on website!
- Sorry Works! for Grand Rounds/CME teaching in hospitals
- It's the program
- Botched apology
- Focus on Texas
- Iowa study
- Got something to say? Send your contribution today!
APOLOGY/DISCLOSURE LAWS UPDATED ON WEBSITE
We have an updated list of states with apology and disclosure laws on the Sorry Works! website (www.sorryworks.net)...this list includes citations, which many of you have requested. Thanks go out to Roberta Carroll, Senior Vice President for Aon Healthcare. Here is the link on our website.
Important dislaimer on apology immunity laws. These laws are great PR tools, but truly have little legal value. They have PR value because they can help convince docs - who have been told for decades to run away after errors - to apologize and do the right thing. However, any defense (or plaintiff's attorney) will tell you if a doctor apologizes and tries to fix a situation for a patient (including upfront compensation) and still gets sued, then the defense should want to introduce this information at trial (as opposed to pretending it never happened). Honesty and candor make for a great defense. Ask any trial lawyer and he/she will tell you that honesty and candor will take the wind out of any case. Please check out the website for the list.
SORRY WORKS! FOR STAFF PRESENTATIONS IN HOSPITALS - GRAND ROUND/CME TEACHING
Sorry Works! is becoming a hot topic on the speaking circuit, and we have already been booked by several hospitals for staff presentations - Grand Rounds/CME teaching. The list includes MacNeal Hospital (Chicago, IL), McLeod Health (Florence, SC), Carson City Hospital (Carson City, MI), Holy Name Hospital (Teaneck, NJ), and Placentia Linda Hospital (Placentia, CA).
If you would like to schedule a Sorry Works! presentation for your staff for Grand Rounds and/or CME training, please contact Sorry Works! today by e-mailing doug@sorryworks.net or calling 618-559- 8168. Thanks!
IT'S THE PROGRAM
During a recent Sorry Works! presentation at a hospital, a risk manager commented afterwards that what needs to be emphasized with disclosure progams and Sorry Works! is that this is a program. This is not one doc or nurse running to the family to assign blame and point fingers, only to have someone else from the hospital call up later and point fingers another direction. Very true.
Sorry Works is both a process and program whereby adverse events are studied and analyzed to see if an error did occur. If a mistake or breach of care happened, then the hospital and/or insurer speaks to the patient, family, and attorney with one voice. Likewise, if the root cause analysis shows no error occured, the hospital and/or insurer still meets with the patient, family, and attorney and speaks with one voice.
Indeed, Sorry Works! is a program with buy-in and push from the senior leadership of the hospital or insurer. Read below for a good example of why Sorry Works! programs are so important.
BOTCHED APOLOGY
A recent two-part story in the Atlanta Journal-Constitution about a doctor who apologized and then encouraged his patient to sue has raised eyebrows around the country.
We at Sorry Works! have our own thoughts on the matter. We applaud the doctor for apologizing and fessing up, but we ask: Why did the patient and family have to sue to get compensation? Why wasn't there a program in place whereby the doctor apologizes, admits fault, explains what happened, and compensation offered? Why did everyone have to be drug off to court, rack up huge legal fees, and suffer through years of discovery, depositions, and other legal adventures? Why? Why? Hurrah the doc apologized, but it's a bothced apology in our opinion.
Read this article to see what you think.
Atlanta Journal-Constitution
Thursday, August 3, 2006
Doctor apologizes, tells patient to sue
Beth Warren - Staff
After doctors successfully removed a tumor from the left side of Dariel Hunt's face, they were supposed to zap any lingering cancer cells with a rapid fire of radiation. The problem: They treated the wrong side of her face. Thirteen different days.
The Atlanta-based radiation oncologist, Dr. Frederick Schwaibold, who ordered the treatment, was speechless and upset after discovering the mistake after 13 days of radiation spread out over three weeks in 2003 at Piedmont Hospital, his attorneys told jurors.
He acknowledges the mistake and sent a letter of apology to his patient and even told her she should consider suing him.
Schwaibold's lead attorney, Jack G. Slover, Jr., acknowledged to jurors they should award Hunt money damages.
But the case stretched out for more than two years, involved a bi- coastal battle of medical experts --- from New York to Seattle and Ontario --- and finally landed in the laps of a Fulton County jury because the two sides couldn't agree on a dollar amount.
The jury began mulling over figures Wednesday afternoon and could decide as early as today just how much to compensate Hunt, 61.
Hunt's attorney, James Poe, told jurors the unnecessary treatment destroyed her right parotid gland, one of the producers of saliva located in front and below the ear.
Schwaibold removed the left parotid gland after cancer attacked it.
So Hunt, who frequently sipped water during the trial, now suffers from dry mouth that causes her discomfort and wakes her from her sleep with "cotton mouth," her attorney said.
Food now tastes bland, and she is more likely to have receding gums and lose her teeth.
The doctor's attorneys did not tell jurors how the mistake happened, and Slover wouldn't discuss it outside the courtroom.
Hunt, whose entire face was covered with a mask during the procedure in the dark, didn't realize the error, her attorney said.
Schwaibold's attorneys told jurors there is no proof the radiation is what hindered Hunt's saliva production, and there is much disagreement over her long-term medical prognosis.
Schwaibold's attorney Slover urged jurors to compensate Hunt for the medical cost and inconvenience of undergoing unnecessary treatments, but he also asked for mercy for the well-intended doctor.
"I know that y'all know nobody is perfect," Slover said during his closing arguments Wednesday.
"That holds true for physicians as with any other person."
He suggested a figure close to $150,000.
Hunt's attorney described Schwaibold as a good doctor who, in this case, acted negligently. He lobbied for $1 million or more.
"You have the power to tell a doctor he can't cause damage and walk away," Poe told jurors in his closing arguments.
"She has to live with it every day."
link
Atlanta Journal-Constitution
Friday, August 4, 2006
Cancer patient's award disappoints
Beth Warren - Staff
A Fulton County jury delivered a cancer patient a disappointing $250,000 verdict today to compensate her for a doctor's admitted mistake in treating the wrong side of her body.
Patient Dariel Hunt's attorney, James Poe, had lobbied for $1 million or more.
After the verdict, Dr. Frederick Schwaibold apologized to the Hunts again outside the courtroom. He told them he wished they had received more money, said Dariel Hunt's husband, George.
Schwaibold, who described the mishap and trial as "personally very devastating," then hustled back to the hospital to treat a woman whose eyesight is in jeopardy and two men with prostate cancer.
"I couldn"t leave and dwell on 'woe is me,' " the doctor said. "I had to drive back to the office and put on a lab coat and see my first patient."
Jurors just weren't convinced about the extent of damage to Hunt, who underwent 13 radiation treatments to the wrong side of her face.
Poe tried to convince jurors that Hunt, 61, will continue to suffer from dry mouth that has awakened her at night since the unnecessary treatment destroyed her right parotid gland, a producer of saliva located in front of and below the ear. He also told jurors her food tastes bland and she is more likely to have digestive problems and receding gums and lose her teeth.
George Hunt, a retired U.S. Air Force systems analyst, said he and his wife, a substitute teacher in Arizona, are disappointed but also glad the grueling process of bring a lawsuit to trial is over. He said defense attorneys seemed to accuse his wife of exaggerating her side effects and blame her for not discovering the mistake sooner.
"It was also implied that the patient was responsible for her own safety checks, and that's ridiculous," he said. "She was lying there in the dark" and her entire face was covered with a mask during the treatments. She finally asked the technician how the radiation was going to reach the left side of her face when she heard a clicking noise near her right ear. That prompted a discussion with her doctor, who halted the remaining slated 24 treatments.
The Hunts said they still respect Schwaibold, the Atlanta-based radiation oncologist who ordered the 2003 treatments at Piedmont Hospital. The doctor never described how the mistake happened. "We had made a mistake," Schwaibold said after the verdict. "Something I had done thousands of times before didn't happen as I intended. I don't want to point fingers . . . I'm certain this won't happen again."
The doctor's lead attorney, Jack G. Slover Jr., urged jurors to compensate the patient, but suggested a figure closer to $150,000.
The lawsuit, filed in 2004, stretched out over two years and involved a battle of medical experts from New York to Ontario, with the patient's attorney making trips to question the experts. After attorney fees and expenses, George Hunt said, he and his wife expect less than half the awarded damages to remain.
FOCUS ON TEXAS
Ah, Texas...the home of President Bush and recently passed MICRA- like caps that have generated headlines around the country. "Lower insurance rates, more doctors coming to Texas" scream the headlines. But Sorry Works! is becoming vogue in the Lone Star State. You may ask why? After all, with caps what else could the docs want?
Well, maybe docs, their hospitals, their insurers, and their attorneys are beginning to learn that caps are not the solution to all the world's problems. Yes, caps can reduce some lawsuits, especially those involving wrongful death cases of children, stay-at- home moms, and the elderly, but plaintiff's attorneys eventually learn to work around the caps. PI attorneys have learned how to assign economic value to all sorts of things that traditionally have not been considered economic, then they put the non-economic cap on top of the damages they are seeking.
And if you kill a bread winner of a family or cripple anyone (even a child or stay-at home mom) requiring long-term medical care, caps will do little to protect a doctor or hospital from a large verdict.
Finally, caps are subject to the whims of politicians and courts. Today, Texas is a conservative state, but after the Bush presidency who knows which way the political winds will blow in the Lone Star State.
With Sorry Works!, no politicians or judges are needed. The program can be started today and never be taken away.
Sorry Works! was brought into Dallas last fall to speak to APMC- insured docs. This spring the Texas Medical Board invited us to speak, and so impressed was the Texas Medical Board that they referred us to the Federation of State Medical Boards for a speaking engagement. Also, Sorry Works! has been contacted by a large medical organization in Texas about implementing a disclosure program as well as by a Texas state legislator possibly interested in promoting disclosure (we are intentionally keeping the names/identities of these folks confidential for the time being). Also, many Texas-based hospitals and insurers have signed up for the Sorry Works! newsletter and joined our coalition. Lots of interest in the Lone Star State.
We hope you we can make more progress in Texas. We want more speaking and teaching engagements. We would like legislation to encourage Sorry Works! And we want hospitals and insurers to adopt the program.
Please let your colleagues and friends in Texas know about Sorry Works! For our friends in Texas, we encourage you to look at Michigan. Like Texas, the Wolverine State has caps and tort reform that were held constititional in the late 90's. However, in early 2000, the University of Michigan Health System (the largest healtcare provider in the state) launched what is now the best publicized and most successful disclosure program in the United States. In short, the UM program has cut lawsuits in half, reduced defense litigation expenses by $2 million annually, and $50 million was recently released from their reserves back into the hospital. To learn more about the UM program, visit this link.
IOWA STUDY
Interesting study below on the benefits of and challenges with disclsoure. Enjoy.
Disclosure of Medical Errors Desirable but Difficult, Researchers Find
August 3, 2006
Disclosing medical errors made by physicians is extremely important yet often extremely difficult. Two University of Iowa studies examine why this is the case and how increased understanding might help patients, doctors and health care systems overall. One study involved a review of more than 300 previously published papers on factors that hinder or help doctors' disclosure of mistakes. Those findings appear in the April 2006 issue of the Joint Commission Journal on Quality and Patient Safety. The second study suggested a new framework for understanding these factors, based on the literature review and new research involving five focus groups. Those findings appeared online May 31 in the Journal of General Internal Medicine.
br> "It's a challenge to understand the diversity of reasons, both positive and negative, that affect a physician's willingness to disclose his or her own errors," said Lauris Kaldjian, M.D., Ph.D., associate professor of internal medicine in the UI Roy J. and Lucille A. Carver College of Medicine and director of the college's Program in Biomedical Ethics and Medical Humanities. "The physician's focus should always be on the patient, but at the moment of a medical error, we also must consider the professional who was involved in that error," Kaldjian said. "Often an error is not directly an individual person's fault, but a system-based problem. Yet disclosing errors can be a very individual issue because sometimes only one person knows about it and, as a result, disclosure becomes an individual responsibility." Kaldjian said disclosing medical errors can contribute to three main goals of quality health care: patients deserve to know when things do not go the way they were expected, hospitals and clinics need to be aware of mistakes in order to improve patient safety, and sharing one's own medical mistake with colleagues can help educate other doctors so that they do not make the same error. "Typically, these three goals are handled separately, and I believe this is a weakness in the way errors are addressed," Kaldjian said. "A better understanding of what helps or hinders error disclosure could result in ways to address these three goals together as part of one unified process." The literature review revealed 91 factors involved in physician error disclosure, and the focus group research added an additional 27 factors. "One comment from the focus groups clearly showed how emotionally traumatic errors are for physicians ? by referring to that 'sinking feeling' when a doctor realizes that an effort to help someone has actually harmed them," Kaldjian said. "Whatever else you say about medical errors, we need to remember that it's really difficult terrain." The research also showed that some physicians are frustrated with reporting systems set up by hospitals to encourage error reporting because there is little or no feedback. "Some doctors said they felt like they're sending a message into a black hole. This can make them less likely to take time out of a busy schedule to report an error. So, feedback is important," Kaldjian said. Some doctors said the "bottom line" in terms of positive motivation to report an error was the desire to be straightforward with patients. Yet, physicians also noted that talking about errors "doesn't earn you points," and that the culture of competition in medicine can discourage doctors from being straightforward about mistakes, even among colleagues. To promote further study of positive and negative factors underlying error disclosure, the research team developed a taxonomy of four positive and four negative domains. "Most of the literature to date has focused on the negative side, but this new taxonomy gives equal attention to the positive side. We can learn from the doctors who are wiling to talk about their errors and what helps them disclose their errors," he said. The overall domains that motivate doctors to report errors include: responsibility to patients, responsibility to self (the physician's integrity), responsibility to the profession and responsibility to the community. The overall domains that inhibit doctors from reporting errors include fears and anxieties (including, but not solely, malpractice), attitudinal barriers (e.g., perfectionism), uncertainties (about how to disclose errors or whether an "error" truly occurred), and feelings of helplessness, for example, that disclosing an error will result in losing control over the situation. "A key theme is that physicians deserve support. Even the best doctors may make mistakes for reasons that are hard to understand -- we all have strange moments when we have lapses. However, we need to pay attention to the difference between honest mistakes and mistakes that happen when professionals are knowingly negligent," Kaldjian said. Kaldjian and colleagues next will examine the many factors to see which appear to be most influential in terms of shaping physicians' beliefs and attitudes about error disclosure. In addition to Kaldjian, investigators involved in the studies included other researchers from the UI Carver College of Medicine, the UI College of Nursing, and the Center for Research in the Implementation of Innovative Strategies in Practice at the Department of Veterans Affairs Iowa City Health Care System. Kaldjian is supported by funding from the Robert Wood Johnson Foundation's Generalist Physician Faculty Scholars Program. University of Iowa Health Care describes the partnership between the UI Roy J. and Lucille A. Carver College of Medicine and UI Hospitals and Clinics and the patient care, medical education and research programs and services they provide. Source: UI Health Care at http://www.uihealthcare.com.
Find this article here.
GOT SOMETHING TO SAY? SEND US YOUR CONTRIBUTION TODAY!
Got something to say - got a story to share or advice to give?? Send it our way by e-mailing doug@sorryworks.net. We can't guarantee we'll use everything, but we'll give it a look and let you know. Thanks!
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