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August 13th, 2007 NEWSLETTER
Doug Wojcieszak, Founder & Spokesperson
Contact phone/e-mail address: 618-559-8168; doug@sorryworks.net
THIS WEEK'S EDITION:
- Question & Answer
- ASHRM Audio Conference - still time to register
- Article in TRIAL Magazine
- Ethicist and former med-mal trial lawyer teaches disclosure - join the discussion live
QUESTION & ANSWER
QUESTION/CHALLENGE: "What about 'bad baby cases?' Surely Sorry Works! cannot work for OB-GYNs."
RESPONSE: Sure it can. No question so-called "bad baby cases" are emotional and financial train wrecks that truly speak to larger societal issues (and problems), but Sorry Works! is an excellent way to begin addressing this situation. Every birth with unexpected outcomes or adverse events should be met head-on with excellent customer service and outstanding communication. Get in there and work quickly and thoroughly with Mom, Dad, and other family members. Talk with them. Empathize. Let them know you care. Then, conduct your investigation â quickly. If there was an error, then offer an authentic apology: "sorry," admission of fault, explanation, and compensation. If there was no error, empathize, communicate, and prove your innocence, but never settle.
Many babies are injured by medical errors or negligence, but many more babies are disabled or mentally retarded but the physicians and nurses met the standard of care. Indeed, not all babies come into the world "perfect." It is these latter cases that Sorry Works! will truly pay dividends. Empathy and communication will stem some litigation, and a Sorry Works! program working and communicating with the local trial bar will stem even more litigation. For those cases that go to court your enhanced reputation as an honest provider/honest hospital who does say sorry when you make a mistake will pay dividends as well.
There is no question that bad baby cases where no error occurred still result in litigation because the parents have no other financial options to pay for the care of a disabled or mentally impaired child. Some parents are faced with financial ruin, so they try to file a lawsuit. To draw an analogy: It's like a drowning person grasping at anything and anyone to try to save themselves. At Sorry Works! we firmly believe physicians, hospitals, and insurers should not pay for cases where the standard of care was met. However, physicians, hospitals, and insurers should work on the larger societal issue of how to help parents and families with disabled children where there was no harm-causing error. Families should not be forced into bankruptcy trying to care for a disabled or mentally impaired child.
ASHRM AUDIO CONFERENCE - STILL TIME TO REGISTER!
Our friends at ASHRM are hosting an audio conference tomorrow, August 14, 2007 entitled, "Understanding and Implementing the 2008 Patient Safety Goals." The conference features Dr. Peter Angood of JCAHO and Randy Mapes, RN, MSA, Director of Accreditation for the University of North Carolina. The conference is intended for risk, claims, and quality managers as well as clinicians, patient safety officers, accreditation and compliance professionals, attorneys and insurance professionals. The conference will identify key changes to the 2008 JCAHO National Patient Safety Goals, explain what must be done to the "replaced" goals, provide a process for implenting the new goals, as well as provide insight into risk management strategies that promote the goals.
For registration information, visit the ASHRM website at www.ashrm.org (Education, Audio Conferences) or call 800-775-7654.
ARTICLE IN TRIAL MAGAZINE
Below is an article on apology laws in the June issue of TRIAL Magazine. Remember, as we say at Sorry Works!, you don't need an apology immunity law to develop a robust and successful disclosure program. Yes, these apology laws can speed along the development of a disclosure program, but they provide no legal value. If disclosure is done right and a lawsuit is still initiated, the disclosure process builds a great defense that you will want to bring to court and share with the judge and jury.
Attorneys weigh impact of I'm sorry! laws
Alba Lucero Villa, Associate Editor
TRIAL MAGAZINE, June 2007
State lawmakers around the country have enacted a series of statutes that protect apologies made by health care providers for adverse medical events from being used in court. Whether the new laws will lead to increased disclosure of medical errors, and how they will affect medical malpractice suits, remain unclear.
At least 27 states have enacted so-called "I'm sorry" laws, according to the American Medical Association. The types of expressions covered under the laws and their level of protection vary from state to state. Colorado's goes the furthest, extending immunity to explicit admissions of fault.
"I'm sorry" legislation is pending in Massachusetts, Nebraska, North Dakota, Rhode Island, South Dakota, Tennessee, Texas, andUtah. Most of the proposed bills mirror Colorado's version of the law.
Plaintiff attorneys have differing views about the intentions behind these laws and their potential repercussions. Some say the statutes wonât aid disclosure at all; others suggest they will increase disclosure and facilitate settlement discussions. Most agree that their impact is yet to be seen.
"I believe in allowing our judges to make the determination on the admissibility of evidence and not lobbyists seeking to take away the discretion of judges," said attorney Bill Bradley of Reno, Nevada, who testified against an "I'm sorry" bill that was quashed by the state legislature in May.
"Although victims and relatives are interested in the apology, they're much more interested in a detailed explanation of how the system broke down and how they themselves or their loved ones were injured by medical negligence," Bradley said. "If everyone was truly interested in addressing the concerns of patients and families, a detailed explanation of the series of events leading up to the tragedy would be readily made available and not hidden behind the protection of peer review."
But attorney David Patton of Paradise Valley, Arizona, sees some benefits to apology laws such as the one his state adopted. "Granting immunity would probably encourage disclosure, which would lead to a greater likelihood of settlement," he said.
Patton is also a board member of the Sorry Works! Coalition, a nonprofit group that includes doctors, lawyers, insurers, and patient advocates who push for disclosure of medical errors. The organization works with hospitals to implement "I'm sorry" programs, which require health care providers to disclose any adverse events to patients and relatives and inform them that the hospital will conduct an independent investigation to determine what went wrong. If the investigation concludes that the provider breached the standard of care, the hospital offers a settlement. Otherwise, it shares the results of the investigation but does not make a settlement offer.
"Doctors have traditionally been told to limit the information they give patients and family members, but now they're being told to do the opposite," said Doug Wojcieszak, the coalition's founder, noting that secrecy is embedded in the culture of medicine and insurance.
"You don't change 50 years overnight," he said.
Wojcieszak, a political and public-relations consultant whose own brother died as the result of a medical error, noted that health care providers don't need legislation to implement disclosure programs and warned that "I'm sorry" laws will not solve the problem of poor disclosure. "This is not a legislative problem, it's a customer service problem," he said.
"I'm sorry" programs may be a good alternative dispute resolution option, said Patton, noting that in some cases, they allow attorneys to resolve disputes with hospitals without involving defense firms.
Whether an apology is admitted or excluded from evidence probably won't make or break a case, attorneys said. Andrew Greenwald, a medical negligence lawyer in Greenbelt, Maryland, noted that in many cases the plaintiff never received an apology from the defendant doctor or hospital, so granting immunity for apologies would not be "as big of an issue as it seems."
"To preclude an admission of fault, however, is absurd," Greenwald said. "This is a search for truth and justice. The more restrictive it becomes, the less it becomes a search for truth and the less justice is served."
ETHICIST AND FORMER MED-MAL TRIAL LAWYER TEACHES DISCLOSURE - JOIN THE DISCUSSION LIVE
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 plaintiffâs 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. For additional information including a brochure on the conference please visit this link: http://www.sorryworks.net/pdf/Web_Brochure_CME.pdf
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.
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