Review of ASHRM's "Litigation Playbook" -- Good & Bad

While you were sunning at the beach this summer, ASHRM released their "Litigation Playbook" (formal name: "Health Care Claims and Litigation Playbook").  We are going to provide a review today, and encourage you to check it out for yourself.

It was encouraging to see that the book begins with disclosure, and several pages are dedicated to the disclosure process. That's progress...10 to 15 years ago disclosure would not have received such prominent placement in a risk management book, if any mention at all.  Page 21 of the book had several very good passages on disclosure, including many helpful tips and thoughts to enhance the disclosure process. 

From a 35,000 foot perspective, the book is a great teaching tool and reference guide for anyone involved (or wanting to become involved) in healthcare claims and litigation. 

Unfortunately, there are -- from the Sorry Works! perspective -- some problems with the book. Consider the following from page 19 regarding apology: "An apology is simply an expression of emotion, not a legal conclusion. It may or may not support a factual determination of negligence, but the apology cannot alter the facts."  

Huh?? 

Try that logic out on your spouse this evening.  

"Pumpkin, I apologize about the socks." 

"Oh, Sweetie, thanks for apologizing for your screw up....I know you'll do better tomorrow!""

"Oh, wait, Pumpkin, I want to be clear that my apology was actually just an expression of emotion, not a legal conclusion. Moreover, the apology may or may not support a factual determination of my inability to put my dirty socks in the hamper for the fifth time this week."  

Get ready for some quality time on the couch! 

Sounds silly, doesn't it?  To the defense of the authors -- many of whom I know -- there is still confusion, including in the peer-reviewed literature about disclosure, concerning the exact meaning of apology, and the difference between apology and empathy. This confusion needs to stop.  We thought Sorry Works! cleared the air on this issue way back in 2007 with the original Sorry Works! Book, and every publication we have put out since that time. 

To be clear, apology IS admission of fault.  Empathy, on the hand, is emotion and basically sympathy.

Apology = "I am sorry this mistake happened. This is my fault."

Empathy = "I am sorry your loved one died.  We are doing a review to figure out what happened."

Got it?  Good.  The disclosure movement needs to work on "definition and word choice" issues such as the situation described above. 

Few other bones to pick about the book:

1) On page 17, the authors state, "...the decision to disclose information should not be driven by a desire to avert litigation...."  There is a debate within the disclosure community and literature concerning how to "market" disclosure, or CRP as some call it.  Is disclosure a risk management strategy, a patient safety tool, or simply the right thing to do?  Sorry Works! believes all three messages are appropriate, and depending on your audience, one message may be more appropriate than the other two choices. More work needed here. However, focusing solely on one message -- especially "do the right thing" -- may sink disclosure with some audiences, namely doctors.

2) The book discusses the need to "interview" folks after an adverse event, but, as far as I can tell, leaves out the most important person or people: the patient and/or family.  We have written extensively on this topic. Getting the patient or family to tell their story can not only unearth important facts, it's also incredibly empathetic.

3) The book focuses mostly on money/monetary guides for resolving cases, which completely ignores the whole world of creative resolutions that are present when a claims process begins with disclosure. The authors did mention goals and needs of plaintiffs (including emotional needs) in pages 72/73, however, I would like to have seen this teased out more with some examples of resolutions that involve more than money.

4) On page 85, the book recites the AMA wording about terminating a relationship with a "plaintiff patient who is being actively treated."  From a litigation standpoint, I was intrigued there was no mention of the potential value of continuing to treat a plaintiff patient, especially if the plaintiff patient has access to other healthcare providers.  "Mrs. Jones, in your lawsuit you claim that Dr. Smith is incompetent, yet you continued to seek care from him?  Can you explain that to the jury?" 

5) Lastly, my copy of the book began to fall apart shortly after I purchased it.  The pages are falling out of the spine.  For a publication that costs $200+, I expect more.  Perhaps ASHRM will send me another copy!  They have my address....

Sincerely,

- Doug

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