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Sorry Works! Blog

Making Disclosure A Reality For Healthcare Organizations 

Slow, Reactive, and Apparently Incomplete Apology Leads to Med-Mal Lawsuit

There are several themes and topics we continually hammer in Sorry Works! --

  • Be proactive, not reactive (meaning, if possible, alert the family to the mistake before they find out on their own)

  • Stay connected throughout the disclosure process...never let the family feel abandoned, or feel you have gone silent on them. Post-event, we recommend communicating at least once a week with a family by phone, e-mail, or preferably, both. Always stay in touch!

  • Welcome -- absolutely welcome!! -- all phone calls and e-mails from the patient or family. Lawyers always welcome calls, shouldn't you?

  • A true, complete apology for a medical error involves more than words on's a face-to-face meeting, it can mean policy changes, possibly involving the family in the policy change process (at least, letting them see it), and possibly money.

  • Remember, the best way to initially address the monetary issue is with an open-ended question: "How can we make this situation right by you?" And then shut up and let them talk.

These five key items were apparently missing following the December 2014 death of an eight day-old infant named Kieran in a Canadian hospital due to a missed e. coli infection. Consider the following, including some quotes from a Toronto Star article:

  • A month after the infant died (January 2105), the mother visits her OB/GYN for a routine appointment and asks the doctor how the hospital didn't catch the infection in time to save her baby...the OB/GYN says the hospital knew about the infection for five days, showed mom the blood test, and then said the hospital just didn't act on the test results.

  • The mother obtains the medical records from the hospital, and the data in the chart was just like her OB/GYN said: The hospital knew but didn't act. The lab and staff miscommunicated.

  • The family confronts the hospital (apparently sometime in February or early March 2015), and the hospital admits they had come to the same conclusion and they were getting ready to call the family. The hospital apparently promises a complete review and answers to all questions, but, "Then they went dead silent," Rebecca (the mom) told the Toronto Star. "Every single day, all day I waited, wondering what the answers would be. And then I call and they treat me like an annoyance. It was cruel."

  • According to the Toronto Star article, "In a letter to the couple dated May 22, 2015, Altaf Stationwala, the hospital's president and CEO, wrote of 'how sorry we are for this error and for the loss of your son Kieran.' An investigation had found 'the system for critical results reporting for discharged patients from the Emergency Department was found to be faulty and resulted in the result not being escalated,' the letter reads. The nurse who received the result 'is aware of the incident,' the letter reads. 'She has no recollection of receiving this specific call nor was she aware that day, that it was a result of (a) newborn. She is devastated by the news and has volunteered to be part of the process improvement ... to develop a better system.' The letter also confirms the hospital's emergency department has introduced a log book for 'abnormal laboratory phone calls' and taken steps to review the 'current process of laboratory calls and identify opportunities for improvement.'"

  • IMPORTANT QUESTION: Instead of sending a letter, why didn't the hospital meet with the family? Apologize in person? Perhaps have the "devastated" nurse be a part of the meeting and personally apologize to the family? Discuss the changes that will be made, talk about how the family can be involved in those changes, and, also, discuss the monetary needs of the family?

  • The family calls the apology letter "disingenuous" and is suing for $900K.

  • Consider this quote from the family's attorney that was shared with the Toronto Star: "The question for the public is when and if Mackenzie Health would have approached the Bonnells with this laboratory result and offered a proactive apology rather than a reactive apology," said the couple's lawyer, Mark Johnston. "Their hand was forced to make this apology by virtue of the lab results pointed out to them by the Bonnells. They had no other alternative."

  • To the family, it seems like the hospital is "sorry" they got caught, trust has been destroyed, and the family believes the hospital is just talk and no action.

  • We don't see any talk of the hospital discussing what the family needs, including possible monetary compensation.

So, how could this situation been prevented? It's a great case study for administrators, risk, claims, legal, and front-line staff.

First step: Develop and sustain a strong disclosure program long before an event like this happens. Part of developing a great disclosure program is training for front-line staff, and part of that training includes telling your people that if a potential error happened on their watch (or under their care), they should just assume someone is going to tell the family. The only question is who will tell the story...YOU or someone who possibly doesn't have your best interest at heart?  Don’t sit on potential errors….call for help, and begin the disclosure process.

Another part of developing a great disclosure program is communicating with the patient/family population as well as lawyers in your area that if they are upset about anything, the door is always open. You won't catch every mistake before it goes out the door, so you should welcome inquiries from patients, families, and lawyers. This is so important!

In this case, the family should have been embraced when they confronted the hospital, and communication should have never stopped. They should have been assigned a point person (or two), and all phone calls and e-mails from the family welcomed. Moreover, the point person would have stayed in contact weekly (possibly more) with the family. Never wait for the family to call!

Then, to conclude the case, you would work to address the emotional and financial needs....for the emotional needs involve the family as much as possible in the fix, name the policy change after the child, invite mom and dad to share the story with the staff, etc. For the monetary end, start with that open-ended question --- "How do we make this right by you? -- and go forward from there.

If you run this game plan, what reason is there to file a lawsuit?

This type of situation is covered indepth in the Sorry Works! Tool Kit. If you don't want your hospital or nursing home to live this nightmare, purchase a copy of the Sorry Works! Tool Kit today.