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At Sorry Works! we believe the recently released Canadian Disclosure Guidelines are a good first step put forth by ethically-minded, hard- working healthcare professionals, and with additional work these guidelines can truly be a model for disclosure programs around the world. There is a lot to like about the guidelines but the age-old struggle between healthcare professionals and lawyers on the issue of disclosure and apology is also readily apparent in the document.
First, the good. The document begins with a strong opening statement about the importance of apology and how disclosure is needed to heal those involved in adverse events as well as improve patient safety going forward. Pages 10 through 22 provide a wealth of well-constructed thoughts and guidance on disclosure:
- Page 10 correctly asserts that patients most often litigate because of poor communication post adverse event.
- Pages 12 & 13 discuss the support needed during disclosure for both patients and providers. Excellent.
- Page 17 stresses the need for communication support during disclosure under the auspices of a program.
- Page 18 - excellent discussion of disclosing even when no harm reaches a patient.
- Pages 20-22 - nice guidance on the mechanics of disclosure, including when, where, and how to disclose and what should be documented. Very good.
As for what needs improvement, there are several troubling passages in the document which encourage deflecting responsibility and employing use of the word "regret." Also, the document mentions nothing about compensation for harmed patients and families. Here are the troubling sections:
- Page 8 reads disclosure should not in any way imply blame for or fault of the healthcare provider. However, sometimes disclosure can lead to blame being assigned to a provider or group of providers.
- Page 10 - we see the word "regret" for the first time. When you read or hear the word regret think of an army hitting the wrong target. "We regret we blew up the village and killed all those innocent civilians." Doesn't sound right under those circumstances, and "regret" won't fly with patients and families either. The word regret should be stricken from this document and all documents concerning disclosure and apology. Make no mistake: Regret is a "wiesel word" that will anger patients and families and increase the likelihood of litigation. Just say "no" to regret!
- Page 11 explicitly states the word "error" should be avoided in disclosure discussions. The passage states "error" should be avoided because adverse events are often the result of system failures as opposed to the mistake of a sole provider, and, furthermore, the word error could construe legal admission of fault. True, system failures often lead to harm, and not all adverse events should lead to admissions of fault. However, disclosure is all about being honest, and if a provider made an error that information needs to be communicated with an apology that includes acceptance of responsibility.
- Page 23 - the big conflict. The third paragraph correctly states where providers are responsible for an adverse event, an apology including acceptance of responsibility should be provided. But two paragraphs down the documents states an apology to patients should not be taken as an admission of legal responsibility. Big problem. You can imagine the fight between the doctors and lawyers. The document gave us a little insight into this struggle with a passage on this page 23 (and other pages) about the need to adhere to the laws of different provinces regarding admissions of apology, etc. Canada - like the United States - has been passing apology immunity laws. Regular readers of this newsletter and our new Sorry Works! Book know that these laws have PR value (they make docs feel more comfortable about apology) but they have little legal value. Any med-mal defense attorney who uses these laws in a disclosure program should be relieved of their duties. Furthermore, providers should never stand for a defense lawyer who argues because of these laws responsibility for errors or mistakes cannot be assigned or accepted, which this document seemed to suggest. Let's be clear: Disclosure done right in the auspices of a program will always strengthen a defense. If an investigation shows a physician made an error, apologizes, owns the mistake, and works with his/her insurer to compensate the injured party and still gets sued, then the defense attorney should want to argue the case on the damages only...very hard for a plaintiff's attorney to prosecute such a case. You don't need an apology immunity law to say "sorry" and such laws shouldn't get in the way of a provider owning a mistake.
- Page 23 - words like "negligence," "fault," or "failing to meet the standard of care" should be avoided, as should the word "error"(page 11), coaches the Canadian document. Disclosure is about honesty and calling it straight, and if an "error" happened or if the "standard of care was not met," patients and families need to hear it. Again, wiesel words should be avoided. Candor and clarity ("We made a mistake...this was our fault") are golden post adverse events!
- Finally - and most importantly - there is no mention of compensation for harmed patients and families in the Canadian Disclosure Guidelines. If compensation discussions are not part of a disclosure program, then the disclosure and apology efforts will often ring hollow with patients and families and increase anger and the chances of litigation.
We hope this constructive criticism will help strengthen the Canadian Disclosure Guidelines while providing thoughts and ideas to other healthcare professionals who are currently crafting their own disclosure guidelines.
For the Sorry Works! view on disclosure and apology, please consider purchasing a copy of our recently book on disclosure and apology. The Sorry Works! Book is the "how-to" manual on disclosure and apology and it only costs $21.95 per copy. For ordering information, visit this link:Sorryworks.net/booksoon.phtml
Sincerely,
Doug Wojcieszak
Founder
The Sorry Works! Coalition
www.sorryworks.net
618-559-8168
APRIL 1, 2008
RESPONSE TO SORRY WORKS! REVIEW OF CANADIAN DISCLOUSRE GUIDELINES
Last week, Sorry Works! provided a detailed review of new Canadian Disclosure Guidelines both in this newsletter forum as well as the NPSF listserv (see below for original critique). In short, we've received a lot of responses - surprisingly, all of them have been positive. Many medical, insurance, and legal professionals said we were right on the mark for proclaiming that the Canada guidelines are a good start, but they need much work. Words such as "error" are missing from the document whereas the dreaded verb "regret" is prominent in the piece. Juxtapose the Canadian guidelines versus the actions of Park Nicollet Hospital featured in yesterday's newsletter and yes, the Canadians have a long way to go.
One of the areas that needs work according to an e-mail we received yesterday from a Canadian healthcare professional is the issue of compensation. In our critique we sharply criticized the Canadians for entirely omitting the issue of compensation from the document. Yesterday's e-mail said the Canadians took a pass on this issue because even though healthcare is provided by the government, compensation for injured patients/families is not provided by the government. Apparently, Canadian providers purchase their own medical liability insurance - just like the States - and so far there has not been a concerted effort to approach said carriers about disclosure and compensation. So, med-mal and disclosure in Canada has many similarities with the States.
Here in the States many providers and hospitals are beginning discussions about disclosure - including the compensation piece - with their insurance carriers. We always encourage providers and hospitals to approach their carriers with this question: "Would you be interested in partnering with us to develop a program which will reduce frequency and severity of claims while increasing patient safety?" Any carrier will say "Yes!," and furthermore, most carriers are already trying to figure out how to implement disclosure because the numbers are so promising.
To help implement disclosure programs, many healthcare and insurance professionals are turning to the Sorry Works! Book for guidance. Now, before you say, "Geez, trying to sell me something again," stop. We wrote the Sorry Works! Book to teach hospitals, providers, and insurance professionals how exactly to start a successful disclosure program...it goes through all the ins and outs and ups and downs of disclosure. We teach you how to communicate with insurance companies, your doctors, the C-suite, and, most importantly, your patients and families. There's a lot of information in the book but it's only 103 pages (a quick read) and costs $21.95 per copy (affordable). And we provide generous bulk discounts too for large orders of the book. The book is a great read you can get right now by visiting this link: sorryworks.net/booksoon.phtml
Please forward this link to your colleagues in Canada, the United States, and all around the world! Thank you!
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