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THIS WEEK'S EDITION:
- Response to Quote of the week: "No case will be settled until all billable hours have been achieved by defense counsel."
- Joint Commission Resources Disclosure Conference: quite a crowd/walk-ups (read Chicago-area people) can still register
- Sponsors needed for Sorry Works! website and newsletter
- Apology in Rhode Island
RESPONSE TO QUOTE OF THE WEEK: "NO CASE WILL BE SETTLED UNTIL ALL BILLABLE HOURS HAVE BEEN ACHIEVED BY DEFENSE COUNSEL."
In last week's newsletter we shared the quote above and editorialized about its meaning for the disclosure movement. We received a response from a defense lawyer - who wishes to remain anonymous - that defense lawyers should not be singled out, they are hired by insurance companies who usually set the tone for litigation, and they (defense lawyers) have to be cost-effective if they wish to be hired again by said insurance company.
This is a fair criticism. This is not a one-sided problem, and insurance companies have a major role in disclosure too. We have learned that too often claims managers in insurance companies take a very dim view of patients, families, and plaintiff's attorneys. They often start sentences like this: "My XX years of experience has shown me that attorneys and their clients are just out for the bucks." Unfortunately, claims people are often getting involved several months after adverse events and long after the doctor-patient relationship has severed and anger abounds. Of course people want "the bucks" at this point...they're really, really angry and want to punish the doctor and his/her insurer for the perceived wrong.
Insurance companies need to change, and several are beginning to make necessary moves. A good move for insurers would be to have their claims people spend more time walking the line with risk managers, who embrace disclosure. If the claims people could see what the risk managers see (patients and families seeking answers and fixes) they would change their tune.
However, defense lawyers need to change too. We've heard from far too many insurers as well as hospital administrators and physicians who say defense lawyers are really good at stretching out cases, even cases of obvious, gross errors that would be best served by quick resolution. We've also heard complaints that defense lawyers too quickly throw the wet towel on disclosure, transparency, and apology. Some defense lawyers have unfounded fears about disclosure and need to better educate themselves on the topic, while other defense lawyers are simply protecting their pot of gold.
We said it last week and we'll say it again: The defense lawyers who are the first to embrace disclosure will score lots of new business and leave their antiquated colleagues in the dust.
JOINT COMMISSION RESOURCES DISCLOSURE CONFERENCE: QUITE A CROWD/WALK-UPS (READ CHICAGO-AREA PEOPLE) CAN STILL REGISTER
Joint Commission Resources is holding their conference on disclosure this Wednesday and Thursday in Chicago by O'Hare airport....the conference has been advertised through this newsletter over the last two months and we are happy to report that over 120 attendees have signed up thus far! This is a fantastic turn out and a great example how important disclosure has become in health care.
Registration via JCR's website is now closed, however, walk-up registrations are welcome and encouraged. For folks in Chicago and the surrounding area this is a great chance to learn about disclosure from leaders such as Rick Boothman of the University of Michigan , Dr. Michael Woods, Dr. Lucian Leape, Dr. Steve Kraman, and many others. Several Chicago- area hospitals are in fact developing disclosure programs and this conference would be well worth their time....a great chance to rub elbows and ask questions of the nation's disclosure leaders.
This is going to be a fantastic two-day program. Be sure to stop by the Sorry Works! booth at the conference too...we'd love to meet you.
For information on the times and location of the conference, click on this link.
SPONSORS NEEDED FOR SORRY WORKS! WEBSITE AND E- NEWSLETTERS
Last week we sent a special message to our e-newsletter list that we are looking for sponsors for the newly re-designed Sorry Works! webpage and e-newsletters, which will be appearing this summer. Several of you responded and we appreciate it, but we need more potential sponsors. If you are a medical, insurance, risk, or legal services company looking to connect with your customers, Sorry Works! is the place. Our readers are medical, insurance, and legal professionals interested in quality, safety, and risk issues. To learn more about our sponsorship program, e-mail doug@sorryworks.net. Thank you.
APOLOGY IN RHODE ISLAND
Great article featuring Linda Kenney and Dr. Rick Van Pelt. Sorry Works! get a nice mention towards the end of the article.
When things go wrong at a hospital
Sunday, June 3, 2007
By Elizabeth Gudrais
Journal State House Bureau
PROVIDENCE — When Linda Kenney went to Brigham & Women’s Hospital for an ankle replacement eight years ago, she expected to be home in two days. She knew she would be on crutches and have to take four weeks out of work, but Kenney was used to having surgery. She was born with two club feet, and this was the 20th procedure she’d undergone in her 37 years.
"I expected it to be like every other surgery I'd had in the past," says Kenney.
The mother of three woke up two days later, "tubes everywhere," with her husband crying at her side. He explained to her that she'd had a reaction to the anesthesia, and doctors were forced to perform open- heart surgery.
Kenney, upset that her ankle surgery had gone so awry, remembers feeling the hospital was treating it lightly. "Nobody talked about it," she says. "There was this big pink elephant in the room. Not one person asked my husband if there was anything he needed."
Unbeknownst to Kenney, Dr. Rick van Pelt, the anesthesiologist from her surgery, was desperate to talk to her.
Van Pelt yearned to see Kenney, to have a chance to explain, to ask her how she was doing. He wanted to express concern, regret, sympathy - basic human emotions - but his colleagues discouraged him from doing so.
Starting in medical school and continuing in hospitals, a culture of silence is created and perpetuated, van Pelt says.
Even in a case like this, in which no medical error was involved, doctors, hospitals and their insurers worry that any empathy expressed will be construed as an admission of wrongdoing and used against them in a lawsuit.
Adding to the pressure to keep quiet is the idea that doctors are supposed to be perfect. When something goes wrong, "the culture says, 'Oh, you must have screwed up,' " Kenney says, "rather than, 'Those things happen. How are you doing?'"
So when van Pelt went back to work the next day, he says, "it was just business as usual...The next day, I was in the operating room doing cases as though nothing had happened. Nobody was talking about it."
AFTER 10 DAYS, Kenney was discharged from the hospital with instructions about how to care for her chest incision. At that point, she'd had a single conversation with a doctor - not van Pelt - about what had happened to her. The doctor told her she'd had an allergic reaction to the anesthesia.
That didn't ring true to Kenney, because she'd had anesthesia before. She worked as a secretary in a hospital operating room, so she called a colleague who was an anesthesiologist. She remembers vividly what he said before he explained what had happened: "Linda, the fact that I’m talking with you today is a miracle."
Even though he hadn’t been involved with her surgery, as soon as she said "anesthesia" and "open heart surgery," it was obvious to him what had happened. This was no allergic reaction.
The anesthesia had gotten into Kenney's bloodstream and traveled to her heart, stopping it from beating. This happens very rarely, but when it does, it is gravely serious.
Kenney realized for the first time how close she'd come to dying. She was stunned. When she'd had even minor surgery in the past, hospital staff had called her at home to check on her. In the days following her discharge from Brigham & Women's, nobody called.
"I would have liked for somebody to acknowledge that the event I had just been through was a significant event, that it was not a normal event, and just acknowledge that this was going to have an impact on my family and I," she says.
She had been at home in Mansfield , Mass. , for 10 days when she received a letter from van Pelt, including his work, home and beeper numbers. His letter asked Kenney to call when she was ready. "He wanted me to know that he was struggling too," Kenney says. "He said he was sorry for what had happened, and he believed in open and honest communication."
Kenney didn't take van Pelt’s words at face value. "My reaction was that he was doing damage control." She says the original incorrect explanation she received at the hospital "kind of set that tone. I wasn’t feeling very trustful."
Kenney filed the letter away without responding. She needed to focus on regaining her strength so she could take care of her son and two daughters, who were then 13, 12 and 3. "I couldn't laugh without holding a pillow to my chest," she says. "I couldn't drive for six weeks. I was out of breath going up the stairs."
THE INCIDENT had shaken van Pelt deeply. "I had been exposed to adverse events before," he says. "It's part of the job. But nothing where my action was directly responsible for an outcome."
Preparing Kenney for surgery, van Pelt had watched in horror as she went from conscious and coherent to disoriented, then went into a grand mal seizure. He had never seen this type of reaction, but he had learned about it in medical school, and the signs were unmistakable. Van Pelt and his colleagues tried unsuccessfully to resuscitate Kenney, then wheeled her to a cardiac operating room, where they opened her chest and connected her to a cardiovascular bypass machine that circulated her blood during the time it took the anesthesia to wear off.
Van Pelt says he will never know exactly what went wrong. He knows the anesthesia got into her blood, but he doesn't know how.
In anesthetizing a nerve in Kenney's leg to numb it from the knee down, he may have inadvertently inserted the needle tip into a vein. Or the drug may have traveled through a blood vessel wall to get into her bloodstream. This happens in a very small percentage of cases, even when doctors follow all procedures properly. Whatever happened, van Pelt says unequivocally that no medical error was involved. Before injecting drugs, anesthesiologists perform tests to confirm that their needles are touching the intended nerve. They inject a tiny dose, then draw back on the needle to make sure no blood comes in — an indication that the needle has entered a blood vessel. "All of the procedure was followed, and there was no feedback to suggest that it was going in the wrong place," van Pelt says.
As the doctors worked to save Kenney's life, van Pelt "was doing what had to be done," he says. "There wasn't a whole lot of time to think about what I was feeling. It wasn't until after I knew that she was safe that I started to feel responsible, and that I needed to communicate."
Van Pelt wrote the letter to Kenney shortly after she was discharged from the hospital. "I just decided for myself that I was going to be true to myself and not true to a system that I didn't think was working," he says. "To stop caring when something goes wrong was just not the model I was comfortable following. I just felt I had to be responsible. It was going against my integrity to stay away."
AS KENNEY CAME to grips with her own emotions, she found herself wondering what was happening to the anesthesiologist who had sent her the letter. By the time Kenney called, six months after the operation, van Pelt had left Brigham & Women's for a job in Seattle .
Van Pelt returned the message as soon as he got it. "He told me what really happened," Kenney recalls. "I had already figured it out myself, but it was good to hear it from him."
Kenney asked van Pelt how it had affected him. "He said nobody had asked him that question until then," she says. "Isn't that sad?"
Both say the conversation gave them closure. "I had been feeling really emotionally stuck," Kenney says. "This gave me the ability to move on."
"For me," van Pelt says, "the most powerful part of that conversation was her offering me forgiveness. It was a completely liberating experience. All of a sudden, I didn't have any more baggage.”
The healing power of that conversation, and the barriers Kenney and van Pelt had to surmount to have it, convinced them to take action.
Kenney had considered suing the hospital. But, she says, "I did not want to put my family through five to seven years of that kind of emotional pain, and I didn't want Dr. van Pelt to have his career ruined."
Instead, Kenney started asking what might make the system more supportive to patients. "When you survive something and know that you were really close to losing your life, and now you're aware of this big hole in the system, it's no longer the way it used to be," Kenney says. "You feel like you have to do something about it."
KENNEY FOUNDED a Boston-based nonprofit group, Medically Induced Trauma Support Services, in 2002, to bring attention to the issue. Van Pelt, who is now back at Brigham & Women's, is on the board of directors. They travel together around the country, urging doctors, hospitals, insurers and policymakers to change their policies and practices to allow doctors to talk to patients and patients' relatives after something bad happens. They also support so- called "I'm sorry" bills like the one introduced in Rhode Island this year, although they were not directly involved with the bill here.
The local bill - sponsored by Rep. Joseph M. McNamara, D-Warwick, in the House and Sen. Rhoda E. Perry, D-Providence, in the Senate - would make such conversations inadmissible as evidence in medical- malpractice trials. The bill would protect "statements, writings or benevolent gestures" doctors make "expressing sympathy or a general sense of benevolence relating to the pain, suffering or death" of a patient.
The bill's backers say it could help cut the number of malpractice lawsuits. "Oftentimes, patients are left with no answers because as soon as something happens that wasn't supposed to, everybody retreats to their corners and clams up," says Steven DeToy, lobbyist for the Rhode Island Medical Association, which represents physicians. "Patients have to find lawyers to take their case just to get the answers that they would have gotten if there was a discussion."
Those involved say it's difficult to determine how important such evidence is during trials. "That's really hard to tease out," says R. Kelly Sheridan, the Rhode Island lobbyist for NorCal Mutual, the state's largest medical-malpractice insurer, which supports the McNamara-Perry bill. "The jury hears evidence for two weeks, three weeks, five weeks, and comes out with a verdict, finding for the plaintiff or the defendant. The jury-deliberation forms don't call for an explanation of what was motivating the outcome."
In any case, supporters of the so-called "I'm sorry" bill say it would not compromise patients' ability to bring and win malpractice lawsuits. "How could it, if you've got all the physical evidence and the medical record?" DeToy says. "Never have we supported a bill that would make it harder for people to be compensated for a medical injury."
Committees in the House and Senate held hearings on the bill, and lawmakers could vote it out of committee at any time. But plans to take a vote have not been posted, and McNamara - who chairs the House Committee on Health, Education and Welfare, which is handling the bill - says it is unlikely to happen in the remaining weeks of this year’s legislative session. "I think there's a whole industry that makes money off of these mistakes, and unfortunately, many of those individuals are opposed to it," he says.
DeToy is less circumspect about the bill's fate. "It's not going to go anywhere," he says. "The trial attorneys have a very solid lock on that kind of legislation in the General Assembly...they are an incredibly powerful lobby."
Jeffrey Padwa, president of the Rhode Island Trial Lawyers' Association, says trial lawyers don't oppose the concept, but believe the proposed bill is "over-broad and unfair."
In addition to protecting expressions of sympathy, the bill would also protect all statements or writings a doctor makes to a patient or a patient's family "regarding the outcome of such patient's medical care and treatment."
"I have no problem if the doctor says 'I'm sorry,' that those words of apology are not admitted," Padwa says. "I have no problem with that. This bill wants to grab in anything else that's said and prevent it from being admissible."
Padwa bristles at the suggestion that the trial lawyers oppose the bill because it would jeopardize their income. "We want to make sure that people who are injured, due to no fault of their own, get justice in an efficient way," he says. "I don't see how hiding relevant evidence from juries will help that happen."
In both the House and Senate, the top leaders are lawyers. Perry, who chairs the Senate committee that considered the bill, says she thinks this fact is "certainly a big factor" holding the bill back.
After seeing the Rhode Island bill, the leader of another advocacy group says some states, such as Colorado , Georgia and South Carolina , actually have laws that go further. (In all, 29 states have "I'm sorry" laws.)
But even if the bill does stall in Rhode Island , doctors can still start apologizing, says Doug Wojcieszak, who founded the Illinois- based Sorry Works! Coalition. "In a legal sense, you really don't need it," Wojcieszak says.
He says juries are sympathetic to doctors who have been forthcoming with patients, and even admitted fault. "You've got a great defense, because you're going to court looking like an honest person," he says.
After the University of Michigan hospital system implemented a full- disclosure policy in 2002, the number of lawsuits filed against the hospitals each year dropped by half, and the system's insurer was able to cut the amount of money it sets aside for potential malpractice judgments by two-thirds. That's in the absence of "I'm sorry" legislation.
Kenney and van Pelt say the legislation is not a panacea, but a good start. To some extent, Kenney says, the medical community uses fear of losing lawsuits as an excuse to avoid difficult conversations. "It's still going to be a problem until we change the culture," she says. "There is a lack of training about how to have these conversations."
That's changing. Van Pelt and others authored a paper called "When Things Go Wrong: Responding to Adverse Events."
It's written for Harvard University 's teaching hospitals, but sets forth a framework any hospital could use. The Harvard-affiliated Brigham & Women's has begun implementing some of the recommendations, including a peer support program that establishes a network of colleagues to whom doctors can talk.
Van Pelt says MITSS, the patient advocacy group, is not yet working with any hospitals in Rhode Island , but he's hopeful that will happen.
BECAUSE OF THE complications with her surgery, Kenney's ankle replacement was never completed. She will return to Brigham & Women's to get the surgery Tuesday.
Asked whether she's nervous, Kenney says with a laugh, "I've gained 10 pounds in the past couple of weeks. I think I'm nervous more than I let on."
Van Pelt, who is back at Brigham & Women's, will not be serving as the anesthesiologist. "We don't want to test fate," Kenney says.
egudrais@projo.com
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