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THIS WEEK'S EDITION:
- Quote of the week: "No case will be settled until all billable hours have been achieved by defense counsel."
- First Sorry Works! webinar tomorrow (Wednesday)
- Question & Answer
- Sorry Works! presentation to Canadian Ombudsman
QUOTE OF THE WEEK: "NO CASE WILL BE SETTLED UNTIL ALL BILLABLE HOURS HAVE BEEN ACHIEVED BY DEFENSE COUNSEL."
A few weeks ago a risk manager gave us the gem of a quote above. Not only do we want to share it with you, but we also want to explore it and editorialize about what this statement means for the disclosure movement.
First, we want to be clear that not all defense attorneys have earned this quote...there are many defense lawyers and defense firms that operate ethically and work to resolve cases quickly and fairly to benefit patients, families, and their clients without concern about their volume of billable hours. We don't intend to offend our friends & supporters in the defense bar nor do we want don't critics to say we're painting the defense bar with a broad brush. In fact, it has long been our contention that those defense attorneys who embrace disclosure first will be uniquely positioned in the marketplace as Sorry Works! becomes the norm, earning them much new business and leaving their less progressive colleagues in the dust.
Our intention is to prick the conscience and challenge people's thinking, because the risk manager didn't just make up this quote. Obviously, this quote represents an issue and concern for many folks in the medical and insurance fields. We've tested the quote with many friends in the medical and insurance fields, and it resonates. Most laughed, some rolled their eyes, and almost everyone claimed its an issue.
Here's the issue for Sorry Works: When a defense lawyer advises you not to apologize, cautions against disclosure, and throws a wet towel on transparency because it will "hurt your case," ask how it will hurt the case. Will it hurt the case for the client...or the defense lawyer?
So long as disclosure and apology are done right in the auspices of a program where people have been trained and there is buy in from the insurer(s) upfront, it will not hurt the client...so, that leaves the defense lawyers! Unfortunately, there are some defense lawyers who make lots and lots of money when doctors, nurses, and hospitals become bitter enemies with their patients and families. The more anger, the more billable hours. The longer the case drags out, the more billable hours. Apology and disclosure is recommended to short- circuit anger, and these lawyers see their ability to pay the office rent being jeopardized. Hence, they jump in to "protect" their clients from the perils of disclosure and apology. To be blunt, they're just protecting their gold mine.
Hear that grinding and nashing? It's a group of defense lawyers stomping their feet saying no we don't understand, we're oversimpflying matters, and they would never, ever stretch out a case in the name of billable hours. Yeah, right. Now, wait, listen...they're screaming that greed is the driver of most med-mal cases, and that apology and disclosure could expose a hospital or physician to additional exposure as well as loss of insurance coverage. When they throw this one at you remind them that disclosure is done in the auspices of a program, whereby buy-in from the insurer happens upfront and where credible investigations occur after adverse events. If a mistake is discovered than an apology is offered with upfront compensation. If a lawsuit is still initiated, the hospital/physician actually has a much stronger defense in court.
The take-home point is hospitals, doctors, and insurers need to have good conversations about disclosure and apology with their defense attorneys. They need to ask questions and learn how their lawyers feel about Sorry Works! If they start hearing some of the typical push backs against disclosure from their defense counsel, they need to ask more questions, and perhaps look to find new defense counsel.
FIRST SORRY WORKS! WEBINAR TOMORROW (WEDNESDAY)
The first Sorry Works! webinar is tomorrow and there is still time to register. Tomorrow's topic is an overview of the disclosure movement and the basics of disclosure and apology programs. For more information, visit this link.
There will be four additional webinars on different topics in the disclosure movement in June and July. Visit the link above for dates, topics, and registration information. Thank you!
QUESTION & ANSWER
"I am working with a patient who has suffered some horrible injuries at the hands of a colleague. The patient and her family are quite happy with my services - we'll been able to fix a lot of problems and restore many of her normal functions. However, she and her family are still very angry at the physician - my colleague - that inflicted the initial harm. This physician has broken off all contact and will not discuss issues with the patient, her family, or me. The patient has an attorney and is pursuing litigation, and they want me to be an expert witness and possibly testify. What should I do?"
Geri: How very human this situation is! Your colleague's behavior, although not in his best interest, is completely understandable. People often withdraw when they do not know how to handle a situation. Sometimes people rationalize that they will make the situation worse if they try to say or do anything. The temporary comfort of not facing the situation masks the chronic underlying stress about the long term outcome of the situation.
You didn't mention if the patient got the lawyer immediately after the injury, or when your colleague didn't respond to them. If they got the lawyer right away, your colleague may have been advised by his lawyer not to talk with them. This is how we used to do it before we recognized the damage created by the wall of silence. In an ideal world, the patient and their lawyer would be able to have at least one open, honest conversation with the physician and his lawyer before the discovery and litigation process turns everyone involved into adversaries. (Notice I did say "in an ideal world." I recognize that is not where we are yet.)
That being said, you asked if you should serve as an expert witness. My response is "no," but perhaps not for the reasons you think. You will undoubtedly be called upon to witness to the medical condition of the patient when they came to you. You will be asked about the care you provided. That is not a problem because you treated the patient and can contribute factual evidence to the care required.
It would be less advantageous to your patient for you to serve as an expert witness because of your emotional involvement in the case. An expert witness should be someone who has no relationship to the case who can evaluate the care given on the basis of the standard of care for the specialty and the region. That does not describe your situation. The question itself about whether to do it implies that you are not objective. This is someone you know personally. You indicate feelings about that in your question. Your colleague has withdrawn himself, you appear to have feelings about that as well. You are not an objective outside party who can judge the care completely on its merits. If you were to serve as an expert in this case, my guess is that you would experience some type of internal conflict about it. If, indeed, the care is as substandard as you imply, then any qualified expert will be able to testify to that.
I applaud your desire to see justice done and to support it. You will be able to support it with testimony about your care. Despite my perspectives, you may decide it is better for you to serve as an expert witness. I encourage you to be clear about your intentions and your ability to convey objectivity. If you are not able to, there is the risk the jury may not see you as a credible expert witness. This could ultimately backfire in the outcome for your patient. This is a tough decision for you. Good luck whichever way you choose!
Doug: This question illustrates how current deny and defend risk management strategies produce difficult ethical dilemas for medical providers. They literally become the monkeys in the middle, stuck between the patients and families they are pledged to serve while being pressured to protect their colleagues, even if the colleagues have caused legitimate harm. Furthermore, cases like the one illustrated in this question handled with deny and defend often lead to numerous doctors who are innocent being named in a lawsuit.
This question should be Exhibit A why your hospital needs a disclosure and apology program. As best as you can, use this situation to encourage your colleagues and administrators to begin studying and ultimately adopt Sorry Works. Guaranteed other colleagues in your institution have experienced similar situations and struggled in the same manner you are, and your efforts will resonate with them.
As for the immediate situation, Geri is right: You can't be the expert witness. Your credibility will be questioned and that's not what your patient and her counsel needs. However, you may be deposed and asked to participate in other legal proceedings. My advice is to be honest and candid and say only what you actually know.
SORRY WORKS! PRESENTATION TO CANADIAN OMBUDSMAN
Yesterday, Sorry Works! spokesperson Doug Wojcieszak was a keynote speaker to the Canadian Ombudsman conference and also participated in a panel discussion. First, thank you to Suzanne Nelson and her colleagues for a wonderful conference and a great audience. Second, the conference opened all whole new world to Sorry Works! We've often said that Sorry Works! is applicable to all walks of life (not just medicine), and the ombudsman conference reconfirmed those thoughts and feelings.
Canada (and many other countries, Brazil for example) have a system of indepedent ombudsman within the different ministries of government, healthcare, and industry. These people receive complaints from taxpayers, patients, and customers, investigate them, and recommend a resolution. Often, when an error or mistake caused legitimate injuries, ombudsman recommend an apology along with compensation and other measures. And, of course, there is often baseless resistance to the apology recommendation for many of the same reasons we experience in the medical malpractice debate. Never the less, ombudsman have seen the power of apology and persist in their efforts to promote apology. Hopefully, yesterday's presentation gave them ideas on how to institute apology and disclosure programs.
The real story, however, is that ombudsman deal with many different disputes, but almost all of those disputes have one common denominator: anger. If you mitigate anger and keep people communicating and working together to solve problems, you can avoid litigation while preserving relationships. Nothing does this better than the Sorry Works! model.
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