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Making Disclosure A Reality For Healthcare Organizations 

Catholic Health Initiatives, Fetuses, Disclosure, & Defense Counsel

By now, you are probably well aware of the controversy caused by defense counsel for a Catholic Health Initiatives (CHI) hospital who argued that fetuses are not legally a person until born in a successful attempt to dismiss a med-mal case. In case you missed the story, here is the original CNN piece that sparked the controversy. Though some view the arguments as legitimate under Colorado law (including two of three appellate judges), Catholics, other Christians, and pro-lifers are crying foul and saying CHI is not being true to the teachings of the Catholic Church. The Colorado Catholic Bishops are apparently reviewing the case.

The underlying case involves a young mother, 28 weeks pregnant, who died of an apparent pulmonary embolism in the emergency room. Her two unborn twin sons died with her. The widower filed suit. Now, who knows about the validity of the case? The media hasn't shared a lot of details about the lawsuit. Pulmonary embolisms do happen, people die, and it can be nobody's fault. Who knows as far as this case? Perhaps a failure to rescue, or not? Perhaps the dad is so angry no amount of empathy would stop the suit, or not? Who knows? What we do know is that the CHI defense lawyers employed a defense tactic not consistent with the teachings of the Catholic Church. On the ethical scale, this is kinda like defense lawyers coaching "deny and defend" with doctors and anything to win, ethics be damned. And we already know how Catholic Health Initiatives feels about defense lawyers counseling deny and defend. In a 2008 paper entitled "Disclosing Medical Errors: Best Practices from the 'Leading Edge,'" written by Eve Shapiro, the following passage from the paper was attributed to Mitch Melfi, Esq, Senior Vice President and Chief Risk Officer, and President and Chief Executive of First Initiatives Insurance Ltd:

"To get the word out to everyone in their health system about their intention to implement their compassionate disclosure policy, Melfi says, they have addressed the issue at various system meetings and conferences, including their annual Risk Management conference. 'We knew we needed to get buy-in from the litigators we retain to represent our facilities,' he says. At their annual defense counsel meeting, Melfi addressed the topic of disclosure with the attorneys, telling them, 'This isn’t going to feel right to you because it’s not the way lawyers are trained.' He went on to tell them, 'Don’t advise the facilities you represent to not disclose information out of fear of having it used against them in litigation. We fully recognize that it could be used against them, but we think that the benefit of disclosure and information sharing outweighs the risk.' Melfi continues, 'We told our lawyers, ‘This is what we’re doing, this is why we’re doing it, and if you can’t get comfortable with it, then we’ll need to retain someone else to represent these facilities in litigation.’ I’ve actually had litigators call me after the fact and say, ‘You know what? You really get it. It really does work. Outcomes are better.'"

According to the CHI website, Melfi is still in the same post at CHI.

Pretty strong words....get right with our ethical culture, defense lawyers, or there's the door. At Sorry Works!, we've always preached the same: Defense lawyers have an important role in the disclosure process (as can PI lawyers), but defense lawyers must be supportive of disclosure or fire them and find new defense lawyers.

Amazingly, the same article continues with a story about a stillborn baby delivered in a CHI hospital. The baby's death was caused by nursing errors --- and CHI apologized for the nursing errors, provided compensation to the parents, established an annual training for nurses named after the deceased child, and involved the parents in the process. Case settled.

QUESTIONS: So, CHI will fire defense lawyers for not following the disclosure principles of the hospital (which is good!), but what about defense lawyers who don't follow the Catholic Church's teachings concerning when life begins? As the old saying goes....just because something is "legal," doesn't make it right. When it comes to ethics at your institution - including disclosure - who is calling the shots? What are the standards, and are all people - including the lawyers - held accountable in a consistent and uniform fashion? Think about these questions! You need the right answers to these questions in order to develop a successful disclosure program and meet other ethical challenges.

Remember to schedule a Sorry Works! presentation today for your staff or organization. Sorry Works! presentations are great for Grand Rounds, medical staff lectures, etc. To inquire about a presentation, simply e-mail or call 618-559-8168. Also, remember to get a copy of our new book, "Did the Doctor Make a Mistake?" available both as e-book through Amazon and hard copy.