Never Forewarned About Most Med-Mal Lawsuits?
I had a testy exchange this week via LinkedIn with a claims manager. I find that claims people - along with some defense lawyers - are sometimes the greatest obstacles to the implementation of disclosure. Simply put, they just don't get it. One of the many points raised by this fella was that with the vast majority of lawsuits there is no forewarning; the case simply comes out of the blue and the doc(s) and hospital are blinsided. Disclosure can't stop such cases, declared the claims manager. The claims manager went on to opine that docs who are sued cannot benefit from disclosure, he flatly stated. This is an imporant issue. Yes, a lot of lawsuits seemingly pop out of the blue, including cases where every doc in the chart is named even if they had nothing to do with the adverse event. However, let's back up the bus. Disclosure can help us with the problem of not being "forewarned."
I counter that we are actually forewarned about most pending med-mal lawsuits....BUT we don't have the communication processes in place to recognize the impedding doom! It's as though the battery on our cell phone is never charged!
First, we have an unhappy patient or family, and nobody deals with the situation. The doc(s), nurses, and other staff are not trained in empathy or customer service. They slough it off. Make no mistake, when a patient or famiy is upset or angry that is an act of communication which basically says, "Hey, I am pissed off (for whatever reason), and I'm forewarning you that I might sue you!"
Second, in addition to not emphathizing and not offering adequate customer service to upset consumers, most clinicians fail to call risk, legal, or c-suite. During my disclosure training seminars, I can't tell you how many risk managers I've met who share the following frustration: "It's August 1st, and I get a request for records from an attorney for a case with the Smith Family that happened back in January. I called the my docs and nurses to ask about the Smith Family and nobody can remember what happened, and nobody is in hurry to help me." So, another way we get forewarned about a pending lawsuit is by training our staff to call risk/legal after empathizing with an upset patient or family.
Third, during the review process when we are investigating the adverse event, we often don't stay in touch with the patient or family. Days, weeks, and even months pass and nobody calls to check on the family. The relationship and trust are lost, and we also have no idea what the patient/family is feeling or thinking of doing, such as getting ready to sue us! At Sorry Works! we recommend touching base at least once a week with the patient or family, and, at some point during the review process, interview the patient or family. Get their perspective on what happened.
Fourth, what about the plaintiff's bar? Think they could forewarn us about a pending med-mal lawsuit? Sure they could, if you have a relationship with them! Instead of continually throwing dirt on the PI bar, reach out to them and disclosure gives you something really cool to talk about and build relationships. I'm not kidding! Successful disclosure programs around the country have done this. The best publicized example thus far is University of Michigan Health System where PI attorneys know to call to discuss a case before paperwork is filed with the court. Talk about being forewarned!
Fifth, there are many examples out there where disclosure and apology helped immensely during a lawsuit. So, you get surprised with a lawsuit...it happens. If you indeed have liability, apologize and seek to heal all stakeholders in a fair and expedited fashion. It can be a very powerful experience for all sides.
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