Should Consumers Be Represented by Counsel During Disclosure Process?

Recently I was talking with a friend who is a personal injury lawyer, and he voiced concerns to me that not enough patients and families are represented by counsel during the disclosure process. My lawyer friend is worried that consumers are not receiving "full value" for their cases. I agreed that more families do need to be represented during the disclosure process, but I also countered that "full value" during disclosure can be different given that a) emotional needs can be met and b) cases are typically resolved much, much quicker versus traditional litigation. Finally, I said that if disclosure programs earn a reputation for ripping off people, their credibility will diminish over time and consumers will eventually know not to talk to the hospital post-event. At Sorry Works!, we absolutely believe that lawyers should be included on both sides of the disclosure process, albeit in different roles than we are used to. Instead of running the show, telling people to shut up, etc, the lawyers are involved to provide guidance and counseling along with a reality check (especially for consumers), but caregivers and patients/families remain in control of the process. The doctor-patient relationship stays alive.

Shortly after the conversation with my friend the PI lawyer, we saw the release of a paper written by Dr. Steve Kraman (of Lexington VA fame) and Gabriel Teninbaum of Suffolk University Law School. Many of you know Steve as the father of the disclosure movement -- absolutely great guy. Gabe is also a great guy. A former PI lawyer, Gabe is now a law school professor with a research interest in disclosure and post-event communications between caregivers and consumers.

In short, Steve and Gabe's paper focuses on their belief that not enough patients and families are represented by counsel during disclosure, and what this can mean for the long-term credibility of the disclosure movement. Steve and his VA colleagues were always adamant about making sure patients/families knew they could be represented, and welcomed PI lawyers in the process. Can you say the same about your disclosure program?

Disclosure programs will succeed or fail based on their perceived credibility....your disclosure efforts have to pass the smell test of patients, families, and PI lawyers. If patients and families are told "no" they can't bring a lawyer, that won't feel right. If they are NOT advised to seek counsel and agree to a settlement, they will likely experience buyer's remorse down the road and share these feelings with family, friends, and others.

If, however, you use your disclosure program to be pro-active with the PI bar, this will reduce the filing of "shotgun litigation" and non-meritorious claims. Lawyers will learn they don't have to "name every doc in the chart" because your transparency is real....lawyers will learn that when you say didn't make a mistake (an adverse event was just that...an adverse event), they will be more likely to believe you, because on a different case with a different client two weeks ago you admitted fault and apologized. You're credible. Moreover, experienced PI lawyers can help consumers understand what is fair value for their case, but, if a PI lawyer makes an unreasonable demand, you tell them NO. Disclosure is ultimately about being fair to both sides.

Steve and Gabe's paper provides some very simple and straight forward thinking on how to involve the PI bar and enhance the credibility of your disclosure program.

For more good reading, remember that all Sorry Works! Books are now e-books available through Amazon. Sorry Works! 2.0, the Sorry Works! UP Book, The Little Book of Empathy, and "Did the Doctor Make a Mistake?" can be downloaded onto your e-reader. Of course, hard copies of these books will always be available through Sorry Works! by clicking this link.