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September 20th, 2007 NEWSLETTER
Doug Wojcieszak, Founder & Spokesperson
Contact phone/e-mail address: 618-559-8168; doug@sorryworks.net
THIS WEEK'S EDITION:
- Sorry Works! Book Coming Soon
- NPR Story on Apology & Disclosure
- Sorry Works! Travels Continue
- Article from Kentucky Med-Mal Attorney & Family Physician Article on Apology
SORRY WORKS! BOOK COMING SOON!
In case you missed our annoucement last week, in approximately 5 weeks the book on disclosure and apology will be released. The working title of the book is "Sorry Works! Disclosure, Apology, and Relationships Prevent Medical Malpractice Claims."
The book is being written by Doug Wojcieszak, Sorry Works! Founder, Jim Saxton, Esquire and Chairman of Stevens & Lee Health Care Litigation and Risk Management Department, and Maggie Finkelstein, Esquire, of Stevens & Lee.
Stevens & Lee is one of the nation's premier law and risk management firms. As lawyers who have defended thousands of doctors, hospitals, and insurance companies, Jim and Maggie bring an important and unique perspective to disclosure and apology. With absolute credibility, they can address the fears and concerns about disclosure and apology and teach healthcare, insurance, and legal professionals how to disclose in the right way and at the right time.
As a person who lost his oldest brother to medical errors and successfully sued the hospital, Doug teaches healthcare, insurance, and legal professionals how and why disclosure and apology are so important to patients and families.
Disclosure is a hot topic today. This book will be the "how-to" manual for hospitals, medical practices, and insurers wanting to implement disclosure programs. Furthermore, we are working hard to limit the size of the book to 100 pages, so even the busiest healthcare professional can read it on an airplane or over a long weekend.
The retail price of the book is $21.95; however, bulk discounts are available. To pre-order your copy of the Sorry Works! book today or inquire about bulk sales please contact Amy Matthias at ajm@stevenslee.com or call Doug Wojcieszak at 618-559-8168. Also, we have a link for the book on the Sorry Works! website: http://www.sorryworks.net/booksoon.phtml .
Stay tuned for more details. Thank you!
NPR STORY ON APOLOGY AND DISCLOSURE
Over the weekend, National Public Radio (NPR) ran a great story on apology and disclosure. The piece focused on the fantastic work at the University of Michigan and was basically told through a patient who suffered a misdiagnosis of breast cancer and what the disclosure program meant to her, her husband, and her attorney. It's a great piece - to listen visit the following link:
http://www.npr.org/templates/story/story.php?storyId=15073418 .
SORRY WORKS! TRAVELS CONTINUE
Sorry Works! spokesperson Doug Wojcieszak will continue his travel schedule this week with two (possibly three) speeches in the Keystone State, one of them being at the Highmark CEO Conference. Then next week its off to the Iowa Society for Healthcare Consumer Advocacy and Sun Rise Hospital in Las Vegas.
If you are interested in a Sorry Works! presentation for your hospital, medical practice, insurer, or organization, please contact doug@sorryworks.net or call 618-559-8168. Thank you!
ARTICLE FROM KENTUCKY MED-MAL ATTORNEY AND FAMILY PHYSICIAN ARTICLE ON APOLOGY
Directly below is an interesting article on apology and disclosure written by a Kentucky medical malpractice attorney. Also follow this link: http://www.aafp.org/fpm/20070700/44thea.html - for a very good article on apology in a recent edition of the American Academy of Family Physician's magazine.
One article written by a med-mal attorney, the other article written by a prominent family physician, both articles agreeing on the importance of apology and disclosure for patients & families. And both authors agreeing that candor can reduce litigation.
However, both articles need a slight correction...they mention the importance and need for apology immunity laws to do disclosure. This is a point we at Sorry Works! continually keep harping on...apology laws have good PR value - they make docs feel more comfortable about apologizing - but they have little legal value. In fact, you don't need an apology law to start a disclosure program. If you do disclosure right and still get sued, the evidence you create during that disclosure event will strengthen - not weaken - your defense. You shouldn't want to pretend that disclosure did not happen. Remember, trial lawyers look for cover ups, not honest, candid defendants.
Enjoy the article below and share with your colleagues, especially physicians. Thanks!
Middle ground on tort reform
By DAVID C. TRIMBLE
9/19/07
Some of you who read this may have already been in this scenario: A loved one is injured or dies while in medical treatment, under circumstances where the injury or death was unexpected. You begin to wonder if the medical treatment was in error or to blame for the injury or death, and consider going to an attorney to look into a possible medical negligence claim.
You will inevitably think about how the physician involved acted around the time the problem occurred. If he/she came to the family and apologized for what happened, will you take that simply as an expression of sympathy, or as an admission of fault? If he/she does not apologize in any form or fashion, will you think of the physician as "heartless and uncaring?"
Believe it or not, this dichotomy is a concern to most physicians, too. When something untoward happens, exactly what do they say to the family that conveys their care and concern without being seen as an admission of liability or fault? When I do risk management seminars for hospitals or medical groups, it is one of the most difficult questions to answer - "How do I as a physician deal with or respond to a grieving, upset, or angry patient or patient's family?"
Over my career handling medical negligence litigation, these situations often do result in litigation being instituted, or avoided. A physician who has conveyed an attitude of caring and concern is statistically less likely to be sued than one the patient or family sees as disinterested. Yet many physicians who seem disinterested really are not, but simply do not or cannot express themselves in an appropriate fashion.
One of the primary reasons for this difficulty is that physicians fear an apology or expression of sympathy being interpreted as an admission of fault, and fear that by saying too much to the patient or family they are inviting litigation. This fear is not unreasonable. Under current law in Kentucky, anything the physician says is susceptible to a "he said/she said" debate once a matter goes to court.
A project which is gaining momentum, called the "Sorry Works! Coalition, www.sorryworks.net, is working to ease the ability of physicians to apologize and share a grief or anger experience more personally with their patients. In other words, the project seeks to remove the handcuffs and allow the physician to care in all respects for their patient without fear of recrimination.
The solution is relatively simple, and 29 states have already put these laws in place. All they do is make expressions of apology inadmissible in court by statute or by amendment of the state's evidentiary rules. Five of these states have also passed mandatory disclosure laws, i.e., requiring disclosure to the patient if anything untoward or adverse happens in their care, regardless of whether it causes injury.
The Sorry Works! Project recommends a simple, four-step approach: (i) tell the patient what happened, using plain language; (ii) accept responsibility on behalf of the institution or yourself, as appropriate; (iii) apologize; and (iv) describe the next steps, including what will be done for the patient, and what will be done to prevent similar events in the future. The proponents of the project believe that this approach, coupled with the inadmissibility provisions, will in the long run reduce the number of malpractice claims and reduce the total amount paid on claims which are made.
The American Bar Association House of Delegates has adopted a resolution encouraging state lawmakers to amend their rules of evidence to incorporate similar provisions. The ABA's resolution is limited to expressions of apology and does not address admissions of fault or error; the latter would still be admissible under the ABA proposal. This distinction would probably need to undergo some analysis through court decisions to fully take shape, but it is a step in the right direction.
Bottom line, "tort reform" is a regular and recurrent issue in the Kentucky legislature, and no doubt will be again. So far the proposals have taken the form of damage caps, which would restrict an injured person's right to recover damages, and which have not proven to be effective. I have previously made proposals for a cost- effective method to tighten down on frivolous lawsuits. I would add my voice to those urging consideration of such proposals as are being put forth by the Sorry Works! Coalition as well. We need to find ways to the underlying problems and seek to solve them, rather than arguing about ineffectual Band-Aid cures such as damage caps.
David C. Trimble, a Georgetown resident, is an attorney. His column, The Bottom Line, appears every Wednesday in the News- Graphic. Readers can find more of Trimble's writing at his blog, stillonpatrol.typepad.com, or e-mail him at stillonpatrol@hotmail.com.
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