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Making Disclosure A Reality For Healthcare Organizations 

Baby Destinee's Powerful Disclosure Story...

Website: http://www.sorryworks.net November 9, 2011 Doug Wojcieszak, Founder & Spokesperson Contact phone/e-mail address: 618-559-8168; doug@sorryworks.net

BABY DESTINEE'S POWERFUL DISCLOSURE STORY See below for story this week from Philadelphia Inquirer titled "When medical apologies are fodder for suits." The story revolves around the death of a premature infant due to medical errors, disclosure of said errors, and the lawsuit that was filed a year later --- and I think the article of the author and the several of those quoted in the article missed many key points. This is an important story with many, many teachable moments!

First, the author and some of those quoted in the article got it generally right that healthcare professionals are warming towards disclosure and, because of it, we're seeing fewer lawsuits and quicker and fairer resolutions to cases with closure for all sides (docs and nurses included). But....but....but.....then the article got it wrong! Apologies fodder for lawsuits?? Huh?! How about apologies take the sting out of med-mal lawsuits? This case was settled quickly. What was the alternative? Kill the kid, refuse to talk, litigate for years, and then get stung for a coverup? Come on! We need to think people!

The other key piece missing in the article was a general feeling that the docs/hospital didn't go far enough in disclosure. They disclosed and apologized....but that was it. No talk of compensation...financial or otherwise. This is a BIG BUGABOO for the medical community when it comes to disclosure. "Sure, we'll say sorry, but we have to compensate the patient or family? Really??" Yes, really. The recently released second version of the IHI white paper was improved on the compensation piece, but still lacking. We've got a lot work to do in this area!

Folks, look, you don't need to whip out the checkbook every time a mistake occurs, but, you need to be able to engage in a pro- active discussion about the needs of the patient and family and be empowered to meet those needs, including financial concerns. When you apologize, you change the discussion from anger and "I'm going to own you" to "What's fair for me?" As a leader, you and your organization need to take this cue and start asking what the patient/family needs. In some cases the conversation may be about money, because a) they need it and/or b) money is how many people keep count in our society. However, the conversation may involve much more than money. A case like Baby Destinee is ripe for creative solutions such as memorializing the child, involving the family in safety efforts, spreading the word about lessons learned, etc.....but, again, it takes leadership from hospital/insurance companies leaders! Disclosure gives you the chance to lead....to ask patient/family what they need, and also suggest things too! But, you have to have a plan and a disclosure program to make this happen. If you don't have a good program, you can say sorry all day long, but you still might lose the relationship with patient/family, miss the chance for creative solutions to cases that provide real healing, and get sued - -- and even though the cases settles quickly because there is no coverup, getting sued is never fun.

This article brings to mind an e-newsletter I wrote about this topic this summer (see below). A doc was involved in a case where a women died because of medical errors, disclosure happened, and, then, the hospital just waited to get sued. Why wait? Reach out to the family and work with them. Why should I have to hire a lawyer to sue? Again, see below.

Finally, the top doc in article - Dr. Kelly - expressed his opinion that all disclosures should be confidential for legal as well as personal reasons of the patient/family. Again, avid readers of this forum know we think apology laws have little legal value...if you made a mistake, apologized, and still get sued, you actually want the evidence you create...takes the sting out of the case. On the patient/family level, Dr. Kelly is right in most instances....many people will want privacy, but a case like Baby Destinee, where a creative resolution could be crafted, could in turn be shared with the world and help whole bunch of people. The case that comes to mind is the story of Sebastian Ferrero http://www.sebastianfe rrero.org/index.php .

Folks --- this is an important story. Please share this e- newsletter with colleagues and friends. Lots of teachable stuff in here. Moral of the story is have a disclosure program that allows you to go all the way with your patients and families and reap the benefits for everyone...and even if you get sued you are far better off than deny & defend.

To learn more about developing a disclosure program, remember to register for the Sorry Works! webinar this coming Tuesday, November 15th at 1pm EST/10am Pacific. You can also purchase a taped recording of the event. Here is the registration link: http://www.sorryworks.net/pdf/November-2011-Flyer.pdf

Sincerely,

- Doug

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

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When medical apologies are fodder for suits November 06, 2011 By Michael Vitez, Inquirer Staff Writer http://articles.philly.com/2011-11-06/news/30366671_1_catheter-vein- heart-wall Destinee Lotoya Blake arrived in this world by cesarean section after doctors determined the umbilical cord was wrapped around her neck. At 29 weeks, she was small, weighing just 1 pound, 9 ounces.

Six days later, on March 1, 2010, Destinee died in the neonatal intensive-care unit at Abington Memorial Hospital. Her path was perilous, but her death was preventable.

Within a week, John J. Kelly, Abington's top doctor, invited Destinee's parents into a conference room. He told them everything that happened, what had gone wrong. Others involved in Destinee's care joined him. All expressed their sorrow.

Within a year, the couple filed suit, citing the meeting.

Should the essence of that meeting - the doctors' explanations and apologies - be confidential? Or should lawyers be able to query doctors about it on the witness stand?

This is a relatively new, controversial, and unresolved question in Pennsylvania - and at the heart of two bills stalled in the legislature.

These meetings represent one of the most significant trends in medicine today. Regulators are increasingly encouraging hospitals and doctors nationwide to hold such talks with families, trying to change the age-old culture of secrecy in medicine. But should those admissions be fair game at trial?

Destinee's case According to court records and people familiar with the case, this is what went wrong in Destinee's care:

The newborn needed to be fed intravenously. Her doctor threaded a catheter no thicker than a human hair through her veins, intending it to stop where her biggest vein reached the heart. The nutritional fluid was so concentrated that it needed the largest possible vein and maximum amount of blood to dissolve safely into the bloodstream.

Her heart was the size of an adult thumb, and the catheter went a few millimeters too far, entering the heart. In the vein, the blood flow keeps the catheter away from the vessel wall. But inside the heart, blood doesn't move as rapidly, and her catheter rested against a heart wall.

The fluid actually seeped through the wall, into the sac surrounding her heart. That sac began to fill with fluid - a teaspoonful, but enough to stop the heart.

A chest X-ray is always taken to confirm proper placement. But in Destinee's case, the X-ray wasn't read in time.

When processing the X-ray, the technician clicked on the wrong baby's name, realized it, but when she clicked again on the correct name, a drop-down screen that normally auto-populates with data had to be filled in manually, which the technician wasn't accustomed to doing.

She confused the birth date with the film date, since they were close together. As a result the X-ray wasn't seen in a timely manner or in context.

Lawsuit is filed As the meeting ended, doctors shook the hand of Destinee's father, Ricardo Blake, but he was still angry.

"I felt like rather than going to a meeting to have the explanation," he said recently, "I'd rather have the child alive."

Nearly a year later, in February 2011, he and his wife, Erica Allen- Blake, both of Philadelphia, filed suit. The meeting with Kelly formed a fundamental part of the suit:

"At the meeting the defendants expressed regret over Destinee's death and described the course of treatment provided to Destinee, and admitted the death was caused by the hospital."

The suit went on about the meeting for eight paragraphs.

The hospital's lawyers objected. They maintained in court papers that this meeting was confidential by law, and that nothing about this conversation could be used in court.

Many doctors feel that an apology - accepting responsibility for errors, telling what went wrong - is a dramatic advance and the right thing to do since doctors have long been loath to admit mistakes.

But they say the trend will continue only if doctors know they can speak openly, without fear of being bludgeoned in a lawsuit.

"Isn't that a little like testifying against yourself?" asked Jim Redmond, head of legislative affairs for the Hospital Association of Pennsylvania.

Trial lawyers disagree. They say doctors and hospitals either have the courage of their convictions - telling the truth, accepting the consequences - or they don't.

"Sit around and sing 'Kumbaya' as long as nobody faces any consequences? And we're supposed to be OK with that? Come on," said Jonathan M. Cohen, the lawyer for Destinee's parents.

Cohen characterized the medical community's position as this: "We will tell you the truth, but only if it doesn't hurt us."

Trial lawyers also argue that evidence of fault and error sometimes isn't in a medical record, that the talk between doctor and patient may be the only evidence of it.

There is much evidence that expressions of regret by doctors and hospitals lead to fewer malpractice suits and lower payouts, said Williamsport attorney Cliff Reiders, a past president of the Pennsylvania Trial Lawyers Association.

Studies show, he and others say, that what families really want is an apology and fair compensation when an error occurs. More families in such situations are willing to go to mediation in lieu of trial.

This has been the case in Pennsylvania, he said.

In 2002 when Pennsylvania passed the Medical Care Availability and Reduction of Error Act (MCARE), the state averaged 2,800 malpractice cases annually. For many reasons, that's now down to 1,500 a year, Reiders said.

He predicted that even the Destinee Blake case would settle - and it did, last month.

The terms remain confidential. The issue of whether the hospital's apology could be used in court wasn't resolved.

But the issue is alive in Harrisburg. Bills that originated in the state House and Senate are stalled in the Senate Judiciary Committee, headed by Stewart J. Greenleaf (R., Montgomery-Bucks).

The nearly identical bills (House 495 and Senate 565) would allow a doctor to apologize to a patient, and prohibit this apology from being used in court by the family. Greenleaf has no problem with that.

But the bills also say that explanations of fault - beyond apology - would be protected speech as well. Greenleaf says this is going too far.

Greenleaf feels some allowance for expressing fault must be included. He wants a carefully worded bill, a compromise between the medical camp and trial lawyers. But neither side will budge, he said.

"You can say anything you want and it's not admissible, that's not a good piece of legislation," he said. "May serve one person's needs but not everyone's needs. Doesn't serve that family's needs. Right now there's no guidelines. There should be."

Kelly's point of view Kelly, Abington's top doctor, would not talk about the Blake case. Neither would hospital lawyers. But in interviews in 2009 and early 2010, well before Destinee Lotoya Blake lived and died, Kelly talked about his top priority at Abington: preventing harm.

"I'm always worried," Kelly said. "Worrying is an important virtue when you have 500 patients in the hospital, most of whom have significant illnesses. Every patient is at some degree of risk of harm. My goal is to have no harm come to a patient.

"Fundamentally we're a human enterprise," Kelly added. "We're a building with 5,000 people going through a million processes to take care of 500 patients a day, and error is inherent" in the system.

"None of us likes to believe these things happen in our hospital," Kelly said. "And any hospital that says 'it doesn't happen here' is not being honest."

In the same conversation, Kelly said he also believed errors and harm caused by a hospital should be disclosed to families immediately.

"There can never be trust without transparency," he said.

Last week, after the case was settled, Kelly added that he felt the conversations must be confidential, a "very human process we want to encourage, not extinguish."

He knows such disclosures could lead to lawsuits.

"But I am confident that the long-term and deep trust that will be established in the community for the hospital and its professionals will be ultimately a much greater strength."

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July 27, 2011 Doug Wojcieszak, Founder & Spokesperson Contact phone/e-mail address: 618-559-8168; doug@sorryworks.net

QUESTION FROM THE ROAD: BURNED BY APOLOGY? Just got a question from a doc during a recent road trip I couldn't wait to share with you. The doc wanted to know if she had been burned by apology?

The doc, who works in a hospital, had a patient who was the victim of a confirmed medical error, and the patient died. The doc did not commit the error, but, she had the relationship with family and "did the right thing" by working hard to keep open the lines of communication, culminating in a family meeting where our doc and the responsible parties apologized to the family. But the mother of the patient had a tape recorder in her purse! Everything was taped, now there's a lawsuit and everyone, including our doc, is named. Our doc wonders if she should feel burned and wonders what to tell fellow docs and nurses about apology?

The doc did say it was definitely a clear cut error and everyone expected a lawsuit anyway, but she feels violated for being taped, and wonders if she'll ever do another family meeting after an event OR - at the minimum - ask if anyone in the room is taping the conversation!

This story and the questions surrounding the story remind me of a news article a few years back where a doc apologized to a patient for a clear cut error and - get this - told the reporter that he hopes the patient sues! Huh?

Why do patients and families need to sue after an apology? Why should a lawsuit be expected after a clear cut error -- especially an error where an apology was given? This is a problem with the apology/disclosure movement...too many docs as well as risk managers, lawyers, etc think the only way a patient or family can receive compensation is through a lawsuit! My question back to our female doc was where was your risk and legal team? Why wasn't risk and legal there in the family meeting where the apology was offered to begin discussions of fairly and quickly settling the case? The doc replied the case should have been settled a long time ago. Exactly! But this is one of the major disconnects in disclosure today --- even if c-suite and docs agree with disclosure, too many risk/claims managers and their defense lawyers still like to dance with patients and families. It's wrong, and c-suite and medical staff need to put a stop to it, or get new risk/claims managers and also new defense lawyers!

The compensation piece should be part of the apology. Patients and families shouldn't have to go through a legal dance to be made financially whole.

Ultimately, what we need is hospitals, practices, and insurance companies to continue leading after an adverse event. We lead by quickly showing empathy and offering customer service in the immediate aftermath of event. We continue leading by quickly launching a credible investigation and staying in contact with patients and families during the investigation...we recommend touching base at least once a week by phone or e-mail (preferably both). And we lead by communicating the results of the investigation, which may include "We apologize for this mistake..." and then quickly discussing what constitutes fair and appropriate compensation, both monetary and non-monetary.

As to the issue of taping the meeting, who cares if the whole family is wired up - and the priest is wearing a wire too?!? When you apologize you should feel comfortable with anyone hearing your words: Patient, family member, priest/rabbi, lawyer, judge, jurors, members of the media, etc. To ask if anyone is taping the conversation suggests you are not being completely accurate or candid in your comments. When you apologize, there should be no secrets, and the truth is what sets everyone - including the docs - free.

In conclusion, you need to develop a disclosure program -- and Sorry Works! can help with presentations and training seminars. For more information, call 618-559-8168 or e-mail 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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