Disclosure in a Tough Litigation Environment --- Health Affairs Article

Last month Health Affairs published a series of article on disclosure and apology.  We reviewed one of the articles a couple weeks ago, and that review can be found here: http://sorryworksblog.net/?p=652. Today, we will review another article from the January 2014 edition of Health Affairs: "Implementing Hospital-Based Communication-And-Resolution Programs: Lessons Learned in New York City."  I will also provide some brief comments on another article found in the same edition: "Communication-And-Resolution Programs: The Challenges and Lessons Learned from Six Early Adopters." 

First, these hospitals in the tough litigation environment known as New York City attempted disclosure in varying degrees and the roof did NOT fall in.  In fact, there were a lot of positives from the shared experience but with much room to grow and lessons for all of us.

The positive aspects of this article included that the study hospitals felt their culture and willingness to do disclosure improved, they more frequently invited patients/families back to discuss findings and stayed in touch, they inquired what patients and families needed and encouraged folks to file claims, and disclosure was thought to improve patient safety.    These are key points....especially staying in touch and, after apologizing for a mistake, asking a patient or family the following question: "How do we make this situation right by you?"  Risk managers all around the country are asking this question and often they are receiving very modest requests.  The lesson is patients and families can be forgiving and very reasonable when healthcare and insurance organizations are transparent and honest.

As far as lessons from the articles, there are several.  First, the study hospitals believed that there needs to be a dedicated person (or people) to run the disclosure program.  Indeed, disclosure does involve more work on the front end but less work and cost overall versus drawn out litigation.   Second, the study hospitals said buy-in and support from leadership was critical.  Now, the CEO doesn't need to be the chief disclosure cheerleader...that can be somebody else in the organization (general counsel, risk manager, CMO??) acting on behalf of the CEO, but the CEO has to support it.  Third, the study hospitals said they struggled because of lack of training on empathy and disclosure, especially with surgeons.  This is a challenge across the country and where the action is in disclosure...training front-line staff to empathize and stay connected post-event.  Fourth, there was under reporting of events because of the punitive culture....and this is a problem we have discussed indepth at Sorry Works!   People shouldn't be punished for reporting honest mistakes and system errors!  Fifth, study hospitals said the relationship between risk and clinicians was critical...the risk department has to be seen as a resource as opposed to being "the enemy."   This is important because we always teach at Sorry Works! that clinicians should be calling risk after empathizing with patients/families post-event.

Now, one of the big sticking points for the New York City study hospitals was the compensation piece.  All of the typical excuses were trotted out, from "this will open the floodgates" and "the lawyers will be lining up" to "NYC is just too tough a litigation environment."  The study hospitals had little appetite for offering compensation when the family did ask for it or wasn't complaining.  Well, the compensation piece is a struggle for hospitals and insurers all around the country.   Many hospitals and insurers are OK saying "sorry," but if they are liable they struggle with the compensation piece and some will even try to wiggle out by saying, "Well, we told them we are sorry...isn't that enough???"  In some instances, yes, it is enough, but in some it is not...and that's OK!  It's why we have insurance and paying money is not a bad thing.  Often it's how we resolve situations.  I look at our friends at the University of Illinois Medical Center and the other hospitals in the Chicago area piloting disclosure....they are doing the compensation piece very well in an equally tough litigation environment, with no tort reform, and not even an apology law on the Illinois books.  It works because, again, when you are transparent and honest most patients and families can be very reasonable.  For those patients and families who are truly greedy or even mentally disturbed, you tell your defense counsel to argue the case on the damages.

I was pleased that the NYC hospitals did inquire about the needs of a patient or family, and also encouraged families to file claims.  Moreover, the hospitals and their insurers wanted families to be represented by counsel so the settlement wouldn't be rejected by the courts.  These are positive steps.  So, I encourage the NYC hospitals and other hospitals (and insurers!) around the country to continue working on the compensation piece, including when the family is not asking for dollars.   You want to be fair and ethical with people...this is how we turn down the temperature in this thing known as med-mal.  It's also how we avoid non-meritorious lawsuits because we have a good reputation for being honest and fair and, thus, more believable when we say we didn't make a mistake!  Moreover, I encourage the NYC hospitals and other hospitals (and insurers) around the country to discuss their disclosure efforts with their local PI lawyers.  Be collaborative instead of hostile and you might be surprised what happens.

So, a lot to learn from this article.  As far as the other article - "Communication-And-Resolution Programs: The Challenges and Lessons Learned from Six Early Adopters" - I saw a lot of the same themes and issues repeated.   Thanks to Michelle Mello, PhD, and Harvard University you can read these two articles free (until April) and draw your own conclusions: http://www.hsph.harvard.edu/michelle-mello/recent-research-highlights/

Have a great weekend!