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IN THIS EDITION:
- Insanity in Wisconsin
- Q&A Section
- Bunker Mentality
- Sorry Works! board members in Newsweek!/Dr. Leape essay in Newsweek
- Date clarification on Sorry Works! audioconference
- Northwestern University Patient Safety Program
Insanity in Wisconsin
Last week Sorry Works! received a great reception from the Wisconsin Risk Managers (thank you to Colleen O'Connor Patzer and her team). Unfortunately, while in Wisconsin, we learned that recently the Governor of the Badger State vetoed an apology immunity law. Apparently the Governor, at the prompting of some trial lawyers, vetoed the bill because it gave too much protection to doctors.
That's awfully silly and pointless...almost as silly and pointless as the apology immunity laws themselves. Let us explain.
The official position of the coalition is to support apology immunity bills. HOWEVER, we like to say these apology immunity laws are great PR gimmicks for healthcare professionals, but they are truly legal nothings. Again, let us explain.
Healthcare professionals have been told since the beginning of time not to apologize lest it being used against them in court. You're dead in court if you apologize, right? This is a cultural problem in healthcare that many docs, nurses, and administrators believe (errantly) that they need some sort of protection to say "sorry." So, we say give them the immunity law. Indeed, these apology laws are good PR gimmicks.
However, if a healthcare professional, hospital, and/or insurer follows the Sorry Works! program of apologizing and admitting fault for an error, explaining how it will be fixed, and offering fair, upfront compensation to a patient/family and they still get sued, they shouldn't want to pretend like the apology and disclosure didn't happen. The docs and administrators should want to slap on their gym shoes and run to court to tell the judge and jury they tried to do the right thing and the plaintiffs are greedy and over reaching. It's a super defense. Hard for a judge and jury to get angry at an honest defendant. On the flip side, plaintiff's attorneys shouldn't want to bring apologies from defendants in the courtroom. Ask any good PI attorney and he/she will tell you that an honest defendant takes the wind out of a case very quickly. Conversely, PI attorneys like defendants who are lying and covering up.
Which brings us back to Wisconsin....why did the trial lawyers insist on the veto? Indeed, the bill was a legal nothing. Furthermore, if a healthcare professional, hospital or insurer is actually foolish enough to follow the letter of the apology law (i.e, apologize and then cover-up in court), bully for the trial lawyers. Talk about a great case for trial lawyers. You know the doc is guilty, and now he/she is covering up. That's a recipe for a winning case with a big verdict from an angry jury. Remember, med- mal cases are not car accidents where a spontaneous utterance can make or break a case....med-mal cases are loaded with records and have many professional people involved, some of whom have a conscience and will tell the truth when their colleagues cover-up.
Let the docs have the apology immunity law. These laws will encourage docs to do the right thing by getting them past their cultural hangups about apology and disclosure (look at all the progress being made in South Carolina). If, however, a doc, hospital, or insurer is stupid enough to follow the law, then happy (and deserved) feeding day for the trial lawyers!! However, one day soon all people will realize no laws are needed to apologize, but until that day these apology immunity laws help with the transition period from deny and defend to honesty and transparency.
Q&A Section - ask Geri and Doug
Welcome to this week's Q&A with Dr. Geri Amori, RM&PSI Senior Director (www.rmpsi.com) and former ASHRM president and Doug Wojcieszak, Founder and Spokesperson of The Sorry Works! Coalition (www.sorryworks.net).
Question: I'm a risk manager and we want to do settlements under a Sorry Works! type program in our hospital. When do we get our insurance company involved?
Answer:
Doug: Talk to your insurance company before compensable medical errors happen. Have these conversations on the front end as opposed to trying to get the insurance company interested in settling while a patient or family is waiting and potentially getting angrier as every day passes with no resolution. Remember, what we preach with Sorry Works! is a program. So, like any program, get all the players involved up front. Risk management, medical staff, administration, and your insurance carrier (even if you are self-insured) need to understand the program, buy into it, and be ready to play their roles when a compensable error occurs.
Having these upfront conversations are especially important if, for example, you are a risk manager in a community hospital with independent doctors with their own insurance. You need to talk with these doctors and their insurer(s) to explain that your hospital/medical organization wants to begin a disclosure program and you want them to participate.
Finally, as you make your check list of people to speak with on the front end about your disclosure program, you may want to follow the example put forth by the University of Michigan Health System and speak to plaintiff's attorneys as well. Let them know that true errors will be compensated quickly and fairly, while non-legitimate claims will never be settled. Furthermore, while legitimate claims will be settled, you will only pay what is fair and all unreasonable demands will be refused and litigated if necessary. This forthright approach with plaintiff's lawyers will save everyone a lot of time and money and cut down on non-meritorious litigation.
In conclusion, disclosure should never be a surprise to anyone – especially your insurance carrier(s)!
Geri: Doug has answered this question very well. An approach that supports acknowledging true errors, and providing fair levels of compensation when appropriate cannot be undertaken without the support and coordination of all stakeholders. The Sorry Works! approach is a philosophical shift from the "deny and fight" many professionals learned was the "right" legal approach. Unless all parties, including the hospital risk and legal advisors, leadership, physicians, other providers and staff, and the insurance company accept the position of doing the right thing through admitting verified errors and offering compensation when legitmate and appropriate, the efforts will be split and will be difficult to implement. More importantly, patients and families will perceive the divisiveness among the parties. The trust that the organization is striving to maintain could be more damaged. Finally, from a pure insurance perspective, the organization or provider could jeopardize their coverage by making an offer of money without including the insurer in the decision. We believe that insurers will move to a proactive approach to early resolution as the evidence grows supprtong the long term financial benifit and the reduction in adversarial contacts.
Got a question? Write to gamori@rmpsi.com or doug@sorryworks.net - your identify will remain confidential. Thanks!
Bunker Mentality
Two weeks ago a surgeon in Salt Lake City told Sorry Works! spokesperson Doug Wojcieszak that future lawyers have holes drilled in their heads when they enter law school and the process drains all the ethics and character out of them. Pretty harsh words, but indicative of what many doctors feel and actually believe about lawyers.
Funny thing is if you talk to good plaintiff's attorneys (the type you want representing you or your family in a med-mal case), many of them have the same feelings about physicians. "Sloppy, careless doctors....all they care about is their golf scores and big houses." Wojcieszak even had one prominent plaintiff's attorney inform him that physicians are "incapable of apologizing...apology and honesty are not in their DNA." Equally strong words.
Both view points are indicative of the "bunker mentality" that exists in the med-mal fight. Both sides literally hate and despise each other that too often they have de-humanized the opposition. No wonder we have such a huge med-mal problem. And this dehumanization factor is one of the stumbling blocks Sorry Works! faces...part of the culture we need to change.
There are groups of docs and lawyers that believe anything that can be good or agreeable to the opposition cannot be good for them. No compromise. This has to stop. These viewpoints need to be challenged and obliterated. We need to crawl out of the bunkers, treat each other as human beings, and good things will happen. This is how Sorry Works! works - by restoring trust and respect among doctors, lawyers, healthcare professionals and patients and familes.
It's sounds over simplified or naive, but it's right on target. We don't need more laws, we need more decency. It really works - try it!
Sorry Works! Board Members in Newsweek/Dr. Leape's article
Sorry Works! board members Dale Micalizzi and Dr. Rick Van Pelt were featured in Newsweek's story on fixing hospitals. Congrats to Dale and Rick! To see the article, visit this link.
Dr. Lucian Leape of the Harvard School of Public Health wrote a great essay for Newsweek on the importance of apology and disclosure. Read below.
Disclose, Apologize, Explain
By Lucian Leape, M.D.
Newsweek
Oct. 16, 2006 issue - Progress is being made in reducing medical mistakes, but we're never going to abolish them entirely. When they do happen, we know what patients and their families want: acknowledgment that something has gone wrong; an explanation of the mistake that was made, and assurances that steps will be taken to prevent it from happening again. They also want someone (typically the physician in charge) to apologize.
Too often, none of this happens. A recent survey of several thousand physicians showed that in response to four different scenarios depicting serious, clear-cut errors, less than half (42 percent) would inform the patient that an error had occurred. Even fewer (37 percent) would provide information about preventing future errors. Unfortunately, the study reflects what happens every day in hospitals and doctors' offices in the United States.
Why is it so hard for doctors to admit their mistakes and apologize? One reason is we're human. We all find it difficult to "'fess up," but it's even harder when your error has caused someone significant physical harm. In addition, many physicians still cling to the misguided notion that they need to appear infallible to gain patients' trust and confidence. Admitting an error exposes a chink in that M.D. armor. And if their errors cause serious harm, doctors can feel profound shame and guilt.
But help is on the way. Spurred by outspoken patient advocates, more and more doctors are joining the discussion. In March 2006, the 14 hospitals affiliated with Harvard Medical School released a consensus statement about medical errors that called for full, open, honest communication with patients following an adverse event. Four essential steps were identified.
- Tell the patient and family what happened. Doctors should initially just describe the facts and not speculate about how or why the mistake occurred. First impressions and assumptions may be wrong.
- Take responsibility. Most errors are caused by many factors, some beyond a single person's control. And the most effective way to prevent errors is to fix systems and procedures rather than blame individuals. But this shouldn't be an excuse to pass the buck. Someone, usually the attending physician, needs to accept responsibility.
- Apologize at once. Compassion defuses anger and begins to restore trust. If investigation shows that the injury was caused by an error, then a "true" apology should be made. Two elements are essential: accepting responsibility and showing remorse. An apology also helps physicians deal with their feelings of shame and sets the stage for forgiveness by the patient.
- Explain what will be done differently in the future. Knowing that some good will come of the mistake helps patients and families cope with the pain or loss caused by mistake. (Read the full statement at macoalition.org.)
Of course, the elephant in the room is the threat of a malpractice suit. For decades, lawyers have counseled doctors and nurses to basically keep their mouths shut and make no admissions or statements of responsibility. However, experience shows that this is bad advice. Disclosure, apology and early financial compensation dramatically reduced the number of malpractice suits at the Department of Veterans Affairs hospitals in the 1990s, and, more recently, in programs run by the physician insurers in Colorado (COPIC) and at the University of Michigan.
Full disclosure with apology is an idea whose time has come. Doctors have always known it was the right thing to do. Now, it appears, it's also the smart thing to do.
Leape is adjunct professor of health policy at the Harvard School of Public Health. For more information, go to health.harvard.edu.
URL
Date clarification on Sorry Works! audio conference
There has been a little confusion on the date of the Sorry Works! audio conference. Here is the correct date: Tuesday, November 14. For more information, visit this link. To register, contact Melanie Gober at 517-886- 8226 (phone), (517) 327-4604 (fax), or e-mail: mgober@rmpsi.com. Thank you!
New Northwestern University Patient Safety Program
We received some exciting news from Northwestern University this week and we're happy to share with you, our readers - read below:
There is a new and growing need for clinical and administrative healthcare professionals to develop expertise and leadership in the fields of healthcare quality and patient safety. These relatively new disciplines have emerged as central to the development of good healthcare, and require acquisition of substantive knowledge and skills. The goal of these two new programs at Northwestern University is to provide formal education in these fields. These programs will enable clinicians and senior health professionals to become effective healthcare quality and patient safety thinkers, practitioners, and researchers and will provide the basis for leadership in these fields.
Both programs will be taught by Northwestern faculty and will incorporate the strengths of the Institute for Healthcare Studies' faculty in the Feinberg School of Medicine, along with distinguished quality and safety researchers and educators from across the country.
These programs begin in July 2007. Applications are currently being accepted through January 31, 2007.
For more information on both programs and application requirements and procedures please visit our website at www.medschool.northwestern.edu/ihs or contact us at 312-695-1478 or by email at mastersihs@northwestern.edu.
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