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Making Disclosure A Reality For Healthcare Organizations 

Question from Road: Empathy Misunderstood?

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Website: http://www.sorryworks.net

September 28, 2011 Doug Wojcieszak, Founder & Spokesperson Contact phone/e-mail address: 618-559-8168; doug@sorryworks.net

Last week I wrote about empathy versus apology, and the concern that unsophisticated patients and families might misunderstand empathy as apology. The entire newsletter is below.

In the newsletter below, one of the ways we talked about avoiding this problem is with good documentation -- as well as having a witness to the empathy. Well, a friendly plaintiff's attorney wrote in to say "yes" to everything, agreeing that the advice was solid. However, he provided some valuable thoughts I want to share with you.

Our friendly PI attorney said that documentation in the hospital/practice must be good in general -- good documentation must be part of the "custom and practice" of the hospital/practice. If not, your documented empathy might be considered hearsay and thrown out. Moreover, our friendly PI attorney said -- and many friendly defense lawyers have said the same to me - documented empathy must be free of emotions. No editorializing. Just the facts, please! Flowery, overly expressive documents might look like weasely C.Y.A and, again, will be thrown out.

This documentation stuff is a critical part of your disclosure program, and the disclosure team needs to work on developing this stuff in concert with legal counsel.

Final thought: This newsletter made me remember comments from less-than friendly defense lawyers, who use any chance of misunderstanding by patients and families as the excuse to "pull back the reins" and not let doctors and nurses say anything post-event. My response: Fire these lawyers! They are not doing you any favors. Fire them from your hospital, fire them from your insurance company. Saying nothing post-event greatly increases your chances of getting sued, while using empathy in a well-thought out process greatly reduces your chances of getting sued. And don't let any lawyer hold up that one case where there has been a misunderstanding or miscommunication as the reason to say nothing. That is lazy lawyering. Misunderstandings are not a reason to step back into deny and defend, but, instead, a call to improve your disclosure processes, do more communication training with your front-line docs & nurses, and perfect your disclosure program.

For help on perfecting your disclosure program including communication training, contact Sorry Works! at 618-559-8168 or doug@sorryworks.net.

Sincerely,

- Doug

Doug Wojcieszak, Founder Sorry Works! PO Box 531 Glen Carbon, IL 62034 618-559-8168

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September 20, 2011 Doug Wojcieszak, Founder & Spokesperson Contact phone/e-mail address: 618-559-8168; doug@sorryworks.net

QUESTION FROM ROAD: EMPATHY MISUNDERSTOOD AS APOLOGY? Teaching the difference between empathy and apology and telling folks empathy is appropriate 100% of the time is how we start every Sorry Works! presentation. Empathy is how we empower front-line docs and nurses post-event.

"I'm sorry this happened...I feel bad for you" is empathy while "I'm sorry this mistake happened...it's all my fault" is apology. Both phrases use the word "sorry" but one is all about feelings, emotions, and staying connected (empathy), while the other is about admitting fault and making amends (apology). We also say empathy needs to be offered quickly post-event, while apology only after an investigation has proven a mistake. But, during the last couple roadtrips in Cincinnati and Kentucky, I've had folks ask the following question: "What if empathy is misunderstood to be apology? What if by saying 'sorry,' patients and families - who might not be sophisticated - interpret my comments as I screwed up?"

Great question. Important question.

Let's take it from the top.

First, we always stress empathy must be in context. Saying things like I'm sorry this happened and promising an investigation and/or learning what happened, and promising to report findings back to the patient/family. You know, it's impossible to apologize for something when you don't even know what happened!

Second, we always bring a witness when empathizing post- event. Bring your partner, a trusted nurse, the risk manager, the chaplain...somebody! Somebody to testify no, she didn't apologize....she was empathizing.

Third, document the empathetic conversation....write it down according to the procedures and policies of your practice, hospital, or insurance company, and you may even send a follow up letter to the patient/family. Write down what was said - empathized with patient/family - along with questions/comments from patient/family and next steps. If you don't write it down, it didn't happen....and your interpretation of what was said/not said may not count.

Fourth, follow up and stay connected with the patient/family after the empathy. If you promise to report back at 3pm tomorrow afternoon, do it! Going forward, don't wait for the patient/family to call or ask questions...instead, stay connected by touching base at least once per week until the case is resolved (you may need to touch base more often, but no less than once per week). Never assume because you don't hear from us everything is OK, don't worry about bothering us, and, no, you don't need to have something new to report to connect with us. Remember, this is about re-building a relationship! So call at least once per week!

Fifth, resolve the case....if the investigation shows there was an error, who truly cares if the patient/family thinks you apologized at the empathy stage?! Because you will be apologizing now! If, however, there was no error, the empathy will continue, and, if there is any disagreement, you will fall back on the context of your words at the empathy stage, your witness, and your documentation.

Lastly, there is one thing that is never misinterpreted: Running away, hiding, and breaking the relationship with the patient/family post-event. Patients and families always interpret such behavior as a cover-up of a medical error....and lawyers look at it the same way too! It's impossible for you to explain away such behavior....even if you didn't make a mistake - it was a known complication - you still look guilty and will probably be settling the case. It's absolutely awful.

Clearly, there is no going back to the days of deny and defend....empathy with disclosure is the way forward, and hopefully these thoughts have helped your empathy efforts.

For more information on Sorry Works!, including Sorry Works! presentations please contact 618-559-8168 or doug@sorryworks.net.

Sincerely,

- Doug

Doug Wojcieszak, Founder Sorry Works! PO Box 531 Glen Carbon, IL 62034 618-559-8168 (direct dial)

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