"No Comment" Feeds Lawsuit Culture

In reflecting on my blog post from earlier this week -- see below -- which criticized hospital and nursing home executives who say "no comment" or hide behind "patient privacy" when addressing the media following adverse medical events (or when being sued), I have a hopefully profound thought to share with you: "No comment" feeds our lawsuit culture.  I now believe "no comment" literally reinforces what most people believe that they only way to get justice from a hospital or nursing home after a potential medical is to sue the bastards.   In fact, many medical professionals hold the same belief!  When your patient population watches a news story (or reads something in the paper or online) about a supposed medical error, and they hear or see this heart wrenching, tear jerking tale told by the patient/family and their attorney, and the healthcare organization basically doesn't respond and fails to maintain a leadership poster, the public will believe what they have believed all along: Doctors circle the wagons, and healthcare and insurance executives are unethical. Is it any wonder people's first reaction is to call a lawyer? They don't know any different...

A couple years ago there was this insurance agent who was trying to sell me some life insurance, and like any good agent he asked what I do for a living....so I told him. And he started laughing. Between the giggles, the agent said, "Doctors never tell the truth or say 'sorry' after they screw up, and no lawyer or hospital executive would allow them to be honest anyway." This was an experienced agent who works in the insurance business and he thought (and probably still thinks) a lawsuit is the only avenue for injured patients/families.

I also hear from ethical risk managers who sometimes cannot get families to return their phone calls, or they get hit with a lawsuit for which they would have gladly talked with the family...but the family never called. Instead a request for records came from a lawyer.

We need to send a forceful message that the door is always open after something goes wrong, leadership is available and accountable, and that no problem is too big to solve.   We want families to take a step back to the hospital or nursing home after something goes wrong, but, for this to happen, we first have to raise awareness, educate, and change attitudes. At the state level, Massachusetts and Oregon have been trying to send this message to their patient populations, and individual healthcare systems like Michigan, University of Illinois, and others have sent this message through media and other means. We need more of this!

I always tell healthcare organizations that your disclosure program should not be confined to the four walls of your hospital or nursing home. Any successful disclosure program educates all stakeholders, and often it starts with the first time we meet a patient, resident, or family: "If there is ever a time you are unhappy, upset, or have questions, the door is always open...here is my contact information. I want to know when there are problems....please contact me. I am here to serve you, especially when there are problems."

One free tool we've created at Sorry Works! is the "Patient/Family Education" document which should be given to all new patients and their families. You can download it for free and copy it, plagiarize it, or change it around to fit your needs -- just use it!

Another "tool" we've created is the Sorry Works! Tool Kit, which literally has everything you need to start and sustain a successful disclosure program. You can order the Tool Kit by clicking on this link.

Doc Apologizes, but Hospital Silent...Is There a Better Way??

You may have seen the headlines last week that a surgeon in a Tennessee hospital operated on the wrong baby. The doctor admitted his mistake and apologized, but, the hospital clammed up, hiding behind patient privacy. Here is the story from CNN.

We've all watched 60 Minutes or other investigative news shows, where Mike Wallace (or the Mike Wallace wannabe) barges in with the camera rolling, only to have their prey slam the door, put their hand over the camera lens, or simply mumble "no comment" while covering their face and running away. The "prey" looks guilty, evil, untrustworthy, and stupid. Open and shut case. With the Tennessee case as depicted on CNN, the hospital said "no comment" and let the family and the attorney own the entire story....and the lawyer and the family simply teed off. It was ugly.

Why do hospitals, nursing homes, and medical practices continually fall into this trap, especially now with disclosure?

Considering the Tennessee story....instead of "hiding" behind "patient privacy," why not put the CEO or CMO on camera? Seriously. Why not run to the problem? Prior to agreeing to the interview, set some ground rules with the reporter about what will be on and off the record. Of course, the lawyers will be uncomfortable, but remind the legal beagles that you are uncomfortable having the reputation of your hospital or nursing home shredded in front of your patient population. "Hey, Mr. Lawyer, how much money will we lose because people think we are covering up horrific errors at this hospital? Besides, we are a disclosure hospital and we tell the truth with not only patients and families, but also the public."

For this case, the statement we would want to get on camera would be something like the following: "We are very sorry this happened, and we are doing a review to understand how it happened. While we cannot get into specifics because of patient privacy, please understand we are doing a thorough review. We are working with the family and their attorney during this review process, and will be addressing their needs and concerns. We ask for the public to pray for the baby, the parents, and our staff. We will keep the news media and public informed about this story as we move forward. We strive every day to provide the best possible care, but, anytime patients or families have any concerns or problems we want to hear about it. The door is always open, and as CEO the buck stops with me. Thank you."

Make sure you emphasize to the reporter and his/her viewers that you are working/communicating with the family and their attorney. NOT communicating with the family and the attorney feeds into the "cover up" that juices both lawyers and news reporters. Saying you are already working with the lawyer and the door is open eliminates the cover up angle to the story, and lessens the negativity.

Another angle to consider: In the CNN story, the mother of the baby admitted the doctor apologized, but that was it....and her lawyer jumped in saying that the baby -- which was born "perfect" -- now may have speech problems, need additional surgeries, etc. One big disconnect I see in disclosure is that we tell the public/the media we are "sorry," but we don't describe how if a true mistake occurred the apology will include meeting the financial and emotional needs of the patient/family. Leaving out this important information makes the "sorry" appear hollow, cheap, and meaningless. "How is that 'sorry' going to make this situation right for the family....how they gonna pay their bills?" is the common rebuttal.

I would want some version of the following in any news story where financial compensation may be in play: "I want the public to understand that when we confirm that an error caused harm, we not only say 'sorry" but we also meet the financial needs of the patient and family. Apology is about making things right. This is something we definitely will keep in mind as we work with the family on this case..."

Two years ago I wrote a similar column about how to publicly respond to a lawsuit that has been filed, because, again, too often hospitals and nursing homes will say "no comment" or "we don't comment on pending litigation," and it looks really stupid. Here is that column from two years ago.

Finally, the Sorry Works! Tool Kit provides a lot of guidance and information on how to deal with the pubic, the media, and other stakeholders. The Tool Kit literally shows you how to develop a disclosure program so you communicate effectively with all stakeholders following every event. To order the Sorry Works! Tool Kit, click on this link.