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THIS WEEK'S EDITION:
- Illinois Incubator: Land of Lincoln Framing Liability Reform Choices for Docs, Hospitals, and Insurers
- Sorry Works! Audio Conference with Lee Taft, ethicist and former med-mal plaintiff's attorney
- Question & Answer
- Scheduling speeches on disclosure and apology for the Fall and beyond
- Good article on quality improvement - pass it along!
ILLINOIS INCUBATOR: LAND OF LINCOLN FRAMING LIABILITY REFORM CHOICES FOR PHYSICIANS, HOSPITALS, & INSURERS
"It's going to go on forever...we'll keep battling" or Sorry Works!/disclosure and apology. Those are the choices facing Illinois doctors, hospitals, and insurers, and these are the same choices facing medical and insurance professionals are all around the country. Illinois is simply becoming a nice incubator or expert for the nation. What are we talking about? Well, last week we reported that the University of Illinois Medical Center is running a successful disclosure program in Cook County , one of the worst judicial hellholes in the United States , according to the American Tort Reform Association. Yet, despite this tough legal climate, the UI Medical Center was able to conduct 40 disclosures over the last year - some involving very serious injuries - and only had one (1) claim. Better yet, they didn't need any legislation or judicial ruling to carry out this program. They simply did it. You can choose to take of your patients and their families after adverse events anytime.
This amazing story is compared to the doc/lawyer political war in Illinois . The quote from above - "The fight will go on forever...we'll keep battling" is from Mr. Ed Murnane, Illinois ' leading tort reform proponent. 2004 and 2005 were good years for Ed and his friends...they won a Supreme Court election in Illinois and passed tort reform (including caps) through a Democratically controlled legislature and Governor's mansion. 2007 is not such a good year for Murnane and friends....the Democratically controlled legislature and Democratic Governor passed a law to basically get around caps. Politicians giveth, politicians taketh away. Soon, the Illinois Supreme Court is expected to rule the caps provision unconstitutional...for a third time in Illinois history! And Murnane's solution is to fight on...and on...and on.
Enough already.
The University of Illinois Medical Center has effectively ended this debate. If disclosure can work in Cook County , it can work anywhere in Illinois or the United States for that matter. Indeed, the med- mal crisis is a customer service crisis, not a legal problem. The UI has figured that out, several other Illinois hospitals are also figuring it out, and hopefully soon the insurers and other hospitals will follow suit.
So what's your preference? Do you want to battle "forever" or do you want to solve this problem for once and for all with the good customer service principles of Sorry Works? The choice is yours...
Medical lawsuit reform heats up again in Illinois
Sunday, June 24, 2007
By Ryan Keith
Associated Press
SPRINGFIELD — Two years after a high-profile battle over medical malpractice costs, state lawmakers again are debating the complex and politically charged issue of how lawsuits are handled in Illinois .
The players are the same, but this time trial lawyers are the ones pushing two proposals to let plaintiffs collect more money, rather than critics pushing to limit awards.
One of the measures, signed into law last month, allows plaintiffs in wrongful death cases to seek damages for grief, sorrow and mental suffering. Previously in such cases, Illinois law allowed families to collect only for economic damages and some other specific categories, but not for grief.
The Illinois Trial Lawyers Association said 23 other states already allowed damages for grief and mental suffering.
And Illinois Sen. Kwame Raoul, D-Chicago, who sponsored the original bill, said Illinois ’ restrictions were unfair - families couldn't seek damages for emotional distress, but pet owners could.
"It's outrageous," Raoul said.
But critics of the law say it could amount to an end-run around medical malpractice caps passed in 2005, which limited non-economic damages, such as for pain and suffering, to $500,000 against doctors and $1 million against hospitals. The caps were an effort to stem a growing tide of doctors leaving the state because of high insurance rates.
Plaintiffs now potentially could file separate malpractice and wrongful death suits and collect on both, essentially allowing them to avoid the caps set in the malpractice law.
That could stick doctors and hospitals with higher legal bills, said Ed Murnane of the Illinois Civil Justice League, who said the new law just gives trial lawyers another way to cash in.
"We've taken and pushed that pendulum back to the plaintiff side way past the middle once again in Illinois ," said Sen. Kirk Dillard, R- Hinsdale.
Still, advocates for lawsuit limits can claim a victory of sorts: A second, more sweeping proposal that would affect who could be found at fault in civil negligence cases is on hold.
Democrat legislators were pushing a change to Illinois law in response to several recent court rulings on how fault is allocated when several defendants are accused in a single case.
For instance, if three defendants are found to be responsible for a wrongful death, does each pay one-third of the damages? Or does one bear 90 percent of the responsibility and therefore pays 90 percent of the damages?
The question gets even trickier if some of the original defendants have settled out of court. Can juries assign some responsibility to people who aren’t even in the courtroom?
The bills are HB1798 and SB1296.
Generally, Illinois juries are told to ignore defendants that have settled out of court and assign responsibility only to those still named in the lawsuit. But some court rulings have said all defendants should be considered when fault is determined.
Trial lawyers want a new law to clarify that defendants who have settled must be ignored by the jury. Otherwise, they argue, defendants will use an "empty chair" strategy of trying to persuade jurors to pin most of the fault on defendants who have settled and aren't in court to make their case.
But critics say the proposed change would have potentially devastating consequences, claiming it would encourage trial lawyers to target defendants with the "deepest pockets." Lawyers would settle with poorer defendants, even if they bore more responsibility for the incident, and go to court against the ones with money.
They've put on a full-scale lobbying blitz to block the measure in the House, and that strategy seems to have worked - for now.
Rep. Julie Hamos, the Evanston Democrat sponsoring the measure, says she will not push forward this session because of legislative opposition.
She's awaiting guidance from the Illinois Supreme Court, which is expected to weigh in within the next few months.
A lawsuit reform group that traveled the state with a two-sided billboard truck urging residents to call their lawmakers and protest the proposal is claiming victory.
"People power prevailed and greed lost," said Lance Trover of Illinois Lawsuit Abuse Watch.
Hamos hopes the court provides clear direction on this issue and lawmakers can settle it soon. She says legislators would like to take a break from the heated lawsuit debate.
"I think we should just have some settled law and stick with it," Hamos said.
But advocates promise the stakes involved will keep the intensity high.
"It's going to go on forever," Murnane said. "We'll keep battling."
The bills are HB1798 and SB1296.
SORRY WORKS! AUDIO CONFERENCE WITH LEE TAFT, ETHICIST AND FORMER MED-MAL PLAINTIFF'S ATTORNEY
On September 5th at 1 PM EST Sorry Works! and the Risk Management & Patient Safety Institute will host an advanced disclosure conference with Lee Taft, ethicist and former med-mal plaintiff’s attorney. The title of the audio conference is "Disclosure: Is it worth the risk?" In short, this audio conference will examine and evaluate the risks of disclosure - especially those that are coupled with authentic apology - from the perspective of a person who used to represent those injured by medical error and who now designs and implements disclosure programs for hospitals.
For twenty years Lee Taft worked as a dually board certified trial lawyer. He came to realize that even when the injured party recovered a favorable verdict or settlement, justice was often incomplete. This point was driven home after Taft successfully prosecuted a case on behalf of a young woman with small children. Her husband died as a result of preventable, medical errors. None of the physicians ever accepted responsibility for the errors that led to her husband's death. If they had, she said she could heal. Yet, accepting responsibility carries significant institutional and personal risk. Taft's work bridges the gap between patients' desires and providers' fears.
Taft now has a national consulting practice in which he implements disclosure programs - writing disclosure policies, educating from the board room to the floor nurse, and working with risk managers and defense lawyers in the wake of error by embedding disclosure into litigation strategy. While he is a proponent of apology in some disclosure contexts, you will quickly learn his approach is not pollyannish.
In this program Taft will identify risks disclosure creates and show you how to evaluate and avoid those risks. This program will bring disclosure theory into practice, a "can't miss" event for all those struggling to make disclosure a reality in their institutions.
The conference will be hosted by Dr. Geri Amori of RM&PSI.
The cost for the audio conference is $199. The conference will count for CME/CEU credits. To register today, please contact Melanie Gober of RM&PSI at 517-886-8226 or mgober@rmpsi.com.
Sorry Works! is pleased to partner with RM&PSI to bring such a high- quality program to our readers. We hope you will join us at 1pm EST on September 5th.
QUESTION & ANSWER
Welcome to another edition of "Question & Answer" with Dr. Geri Amori of the Risk Management & Patient Safety Institute and Doug Wojcieszak, Founder and Spokesperson for The Sorry Works! Coalition.
Question: What if a nurse enters a patient's room and gets ready to administer a drug, but discovers she has the wrong drug or wrong dosing level, leaves the room, and then reappears with the proper drug and administers it to the patient - do we have to disclose during this situation? No drug error or harm reached the patient, so are we obligated to disclose? Is it a good idea to disclose?
Doug: We often say the rule of thumb is if an error reaches a patient then disclosure is needed. This situation you've spelled out is a little tricky and a little gray. Yes, the wrong drug or dosing level never physically entered the patient's body (which is good!), however, the patient or if any family members who were present may have noticed a change in the nurse's behavior such as a startled look on her face, quickly leaving the room, double-checking notes, etc, etc. The foundation of the provider-patient relationship is trust, and you don’t want to violate that trust. If trust is violated it could manifest in many forms. A minimum, the patient or family might never return to your facility. They may tell their friends, neighbors, and colleagues that your hospital is "band-aid station" and they were lucky to get out alive! Worse, if an unanticipated outcome happens downstream in the care process, then the violated trust could really come back to haunt you, especially if the unanticipated outcome was not caused by error. You can just hear the patient/family now: "Well, of course, they're saying they didn't make a mistake. Bet their lawyer told them to deny everything. Just like when that stupid nurse almost gave me the wrong drug and wouldn't tell me about it. But I know what happened then, and I know what's happening now. They committed malpractice! I am going to sue this band-aid station!"
Trust is so important along with good customer service. It's the seemingly "little things" far upstream in the care process that can literally sink you if something truly bad happens down stream.
Finally, if you disclose to the family there is a better chance that the medical staff will learn from the near miss. If a nurse almost made this type of mistake, then guaranteed other nurses have almost made the same type of mistake or have - unfortunately - made the mistake. There is probably a process in the system that needs to be improved, and the only way you will realize process improvement is to talk about things!
Geri: I actually don't quite agree with Doug on this and my rationale is also different. People who agree in principle don't always agree completely in operation. As a system we are still in discovery about disclosure so I suggest you listen to both our perspectives and decide which fits best for you.
First, please remember that the reason we disclose is not about lawsuits, it is about truthfulness and maintaining trust. Any reduction in litigation is a by-product of the integrity with which we are handling our failures. That there appears to be a difference in what happens regarding litigation reinforces our desire to take this approach. However, disclosing simply to avoid litigation is a set-up for disappointment and possibly less effective disclosure discussions.
Doug's response assumes that the nurse will respond in some way, perhaps nonverbally, to the near miss. He is recognizing that we are dealing with patients/ families when they are the most vulnerable. They truly need our services (people rarely are in the hospital for a vacation); ours is a world that is generally unfamiliar; furthermore, whether or not we recognize it, there is a feeling of loss of control and lack of empowerment which sometimes displays itself as demanding or what may appear to be intrusive behavior rather than partnering. Under these circumstances, trust is fragile. When trust is fragile, people subconsciously look for signs that confirm or negate where they are on the trust continuum. A medical error that is as close as the one you describe falls right on the fence. He (Doug)is right that if the nurse reacts physically or verbally, even inadvertently, she may be setting them up for distrust.
I strongly suggest that staff be trained in how to react to a medication near miss. Near misses will happen so we should be prepared. Have practice sessions. Teach them to say, "I want to double check this." Or "Let me make sure this is the right bag" or a variety of other comments that allow the nurse to remove herself from the situation and acknowledges there may be a problem without arousing anxiety in the patient or family member. The real culprit here is the unintended anxiety the nurse may be raising by the discrepancy in her behavior and her not saying anything.
What should she say when she returns and the patient/family asks, "Well, was it right?" Responding with "No, which is why I always like to check twice when I question. I've reported it so we can find out why that happened so it won't happen again" or something else equally honest, but non-alarming maintains the honest communication. The family may not like it, but it continues the honest interactions.
A near-miss medication error reflects a work-around or system error that deserves investigation. Disclosure alone does not improve patient safety. However, using the opportunity to evaluate processes does.
Back to your question....if the nurse never got into the room, she probably does not need to disclose, but she should report. If the patient was asleep and there was no family there, there is probably no reason to disclose. The near-miss should still be reported. If, however, there is any possibility that the nurse's verbal or non- verbal reaction to the near-miss is observed, heard, or otherwise noted, then you must use your best judgment about the psychological condition of the patient/family. Although there may be times when it would be harmful, if there has been an observable reaction on the nurse's part, most often, I would disclose.
SCHEDULING SPEECHES ON APOLOGY AND DISCLOSURE FOR THE FALL AND BEYOND
Sorry Works! is beginning to schedule presentations on apology and disclosure for this Fall. All presentations can be approved for CME/CEU credits. So, if you need a speaker on disclosure and apology for Grand Rounds, ethics training, or to discuss Sorry Works! with the senior leadership of your hospital or insurer, please let us know by e-mailing doug@sorryworks.net or calling 618- 559-8168. We look forward to hearing from you.
GOOD ARTICLE ON QUALITY IMPROVEMENT - PASS IT ALONG!
This article below appeared over the 4th of July in the St. Louis Post-Dispatch. The end game of disclosure and apology is process improvement and reduction in errors. Indeed, disclosing with patients and families leads to more robust internal discussions that leads to change. The article below describes the kind of changes we envision.
Disapppointing quality results can spur real change
By Mary Jo Feldstein
St. Louis Post-Dispatch
July 4, 2007
Barnes-Jewish Hospital is often cited as one of the nation's best. But a couple of years ago the government released some surprising findings about how this premier institution cared for heart patients.
The data raised questions about the quality of care at Barnes, inspiring staff to make improvements. But the hospital found reaching its own high standards would require Barnes to rethink how it cared for heart patients and to nudge hospital culture to adapt.
The transformation at Barnes gives a glimpse of what happens inside hospitals when they receive disappointing quality results.
More and more, insurers and government health programs want evidence that the patients are getting good quality care. Many are instituting programs that list recommended protocols and require physicians to document that they have completed the tasks.
There are a couple of reasons for the request. Research shows patients only receive recommended care about half the time. And not only do patients suffer with worse outcomes, but the wrong care often is more expensive.
Doctors, however, have been reluctant. They typically see these efforts, especially those tied to their fees, as attempts to pay them less, not to improve quality. Also offensive is the idea that several years of medical school and decades of experience can be whittled down to a checklist.
Physicians at Barnes were told, "Get over it, we're going to make those checklists really easy and then we're going to get to the more complex stuff," said Dr. Jonathan Gottlieb, chief medical officer at Barnes.
As at most hospitals, physicians at Barnes had differing opinions about the validity of results, their impact on patient outcomes and what change should be implemented.
Over time, however, thinking evolved. Several physicians realized that while these few simple measures might have only a slight impact on a patient's outcome, they often serve as an arrow pointing to larger issues.
"These things tend to metastasize and you find all sorts of other things," said Rick Royer, chief executive of Primaris, the organization overseeing Medicare quality improvement in Missouri . "The data itself is not the answer. The data gets you to start asking questions."
Here's how it began at Barnes: To cut costs and improve quality, Medicare started asking hospitals nationwide to follow a set of basic best practices, proven to boost heart patients' success rates.
Some were simple tasks like making sure heart attack patients took an aspirin. Others involved more coordination. One example is getting patients stent implants or angioplasties within a critical two-hour window.
Barnes quickly fixed most of the deficiencies. Patients got their aspirin, recommended prescriptions and discharge instructions. But getting patients into that procedure room before the 120 minutes passed proved tougher.
In 2004, physicians were meeting the standard only 66 percent of the time. That figure jumped to 100 percent this year. Last month, the hospital was found to be one of only 17 nationwide with survival rates for heart attack patients higher than the national average.
Getting there took much more than a checklist. All people involved were put together in one room. Each learned how his or her role fit into the process. That led to a change in process. Preparing the room for the procedure and calling in staff was taking too long, especially during the middle of the night.
Now, the emergency room physician calls in the cardiologist and staff. While they are driving in, the room is readied.
All heart patients are tracked from when they enter the emergency room. The results are posted so the entire staff can see if one area is having difficulty.
Barnes isn't stopping with heart care. It's using concepts first designed to improve quality and efficiency in the manufacturing industry to produce the same effects in hospitals.
The hospital is looking at how medications are moved to the floors, how patients are admitted from the emergency room and how laboratory results are reported back to physicians and patients. In each case, the goal is to break down the process, making it more efficient while improving patient care.
"That's why I'm excited about this whole journey," said Barnes' Gottlieb. "It just feels good."
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