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Making Disclosure A Reality For Healthcare Organizations 

Oregon Hospital Admits Fault, But Won't Cover All Bills -- Fight Between "Legal" and "Right"

tyson hortonAs a baby, Tyson Horton needed surgery to remove a cancerous mass, however, the surgeon at Oregon Health Sciences University (OHSU) was negligent during the operation and Tyson nearly died. The hospital disclosed and admitted the error. Unfortunately, due to the error, Tyson needed several more surgeries including a liver transplant from his own mother at Stanford Hospital. Total tab for Tyson and Mom: $6 million (for now), and there will be big bills in the future as Tyson will need care and monitoring for the rest of his life. Tyson's family had good insurance coverage, but once the insurer learned the hospital admitted malpractice, the insurer refused to cover any of the costs (current or future). Hospital attorneys admitted the mistake to a jury and suggested the family deserved $8M to cover current and future expenses plus pain and suffering. The jury awarded $12M, and even though the hospital has a $30M policy, the hospital attorneys appealed the judgment all the way to the Oregon Supreme Court, which in a split and messy ruling said that since OHSU is a state facility the family is entitled to a maximum of $3M under Oregon law. The $3M has already gone to pay medical bills, but there is currently $3M in unpaid bills to Stanford, unknown bills for future care, and lots of pain & suffering (past, present, and future). Tyson -- now 7 -- and his parents are facing bankruptcy.

"In an emailed statement to The Oregonian/OregonLive editorial board, OHSU expressed 'regret' for the surgical error, but contended that the court's decision is 'a strong affirmation' of the Tort Claims Act and for keeping OHSU a part of it."  This quote is from this news article.

In my opinion, this case illustrates one of the great challenges in the disclosure movement: The fight between what is "legal" and what is "right." The case also illustrates another great struggle for the disclosure movement: Who is truly in charge of the claims process? Attorneys and claims people (who too often think all cases are simply a fight over money, and the only money they think about is within the claims process itself), or the CEO, c-suite, risk managers, and medical leaders?

One of the issues we hammer away continually in The Sorry Works! Tool Kit, is that in developing your disclosure program you need to set (or re-set) the culture for your organization. Are you about being "legal" or "morally right?" I contend the legalistic mind-set is what has spawned countless lawsuits against doctors, nurses, hospitals, and nursing homes. Also, who in charge of your culture...the lawyers or YOU? And if you have lawyers and claims people who object to disclosure, are you willing to fire them?

Part of re-setting the culture is engaging your legal team with cases such as this. This case is about fairly compensating people without making them jump through legal hoops. Remember, the hospital attorneys told the jury there were willing to part with $8M, but then appealed a $12M verdict and celebrated a $3M ruling from the Oregon Supreme Court. Why not give the family the extra $5M to show your offer of $8M was genuine? Let's see your ethics, OHSU. That said, some lawyers and claims people will still say the hospital saved $5M by fighting all the way to the Oregon Supreme Court. Two questions for these lawyers and claims people: 1) How would you want your family treated in a similar case? and 2) Did you really save $5M, or perhaps you lost money in the long run? Legal and claims have to be taught how to think about the ENTIRE money issue with these cases. Think how much the bad publicity from this case cost the hospital system? Big dollars. How many patients and families will seek treatment elsewhere because of this case? Big dollars. Think how much the handling of this case will hurt retention and recruitment of quality medical staff? Big dollars. And think how many patients and families will mistrust the hospital with future adverse events and automatically litigate. Big dollars. So, did they win or lose money appealing to the Supreme Court....and, regardless, should they feel like "winners?"

How would you and your hospital or nursing home feel? And what are you doing NOW to avoid a train wreck like this in the future? Here is one article regarding Tyler's case, and here is another article.

To purchase the Sorry Works! Tool Kit, click on this link. To schedule a Sorry Works! presentation for your leadership and medical staff, call 618-559-8168 or e-mail doug@sorryworks.net.

 

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