Doing Disclosure & Apology Just to Avoid a Lawsuit?
As you do disclosure, you may get hit with this question or allegation: "Well, you're just saying sorry and being nice to me and my family to avoid a lawsuit!" Answer: Yes, you are right. Be honest, 'cause that's what disclosure is all about. Sit down, look the person or family in the eyes and say, "Yes, you are right...I am doing this to avoid a lawsuit. Because not only is a lawsuit bad for me, it's gonna be a tough process on you and your family. Of course, you are free to call a lawyer or the state or the media...it's a free country....do whatever you want, but why don't we see if we can work through this situation together and address your concerns and needs? I might be able to get what you want right now without a protracted legal battle that may drag on for years. It won't hurt you to listen to me and then make up your mind."
That's honest. It's also candid, which many people find refreshing.
I learned this line of thinking from Leilani Schweitzer, a mom who lost who her son to medical errors at Lucile Packard Children's Hospital at Stanford University. Leilani received disclosure and apology with her son's case, and she now works with Stanford's risk department on cases. Leilani wrote a very moving essay for Sorry Works! which we published in May 2012 -- the link for that essay is below. Leilani basically wrote, Yes we are trying to avoid lawsuits but it doesn't mean we are trying to dodge responsibility, financial or otherwise. This is still a HUGE disconnect with consumers as well as clinicians and especially claims managers...so many people believe if there is a true medical error that causes harm or death then there must be a lawsuit. Only way people can get paid, is the thought! No it's not! Disclosure is about building new systems whereby clinicians, hospitals, and insurers work collaboratively to meet the legitimate financial and emotional needs of patients harmed by medical errors in a fair and quick process. Don't need to litigate if disclosure is done right.
This leads me to a personal gripe of mine: Disclosure advocates who say disclosure is not about avoiding litigation. It's only about "doing the right thing," they say.
There is absolutely a business case for doing disclosure, and we shouldn't be ashamed of stating that business case with internal audiences (healthcare, insurance, and legal professionals) and external audiences (the public, the media, etc). Avoiding litigation by solving problems in a pro-active, fair manner is not only good for clinicians it's especially good for consumers.
I'm very concerned when some disclosure advocates (some who are friends of mine) try to sell docs on disclosure by telling them "It's the right thing to do." Man that scares me, because docs and nurses "do the right thing" just by being clinicians and what thanks do they get? More work, lower reimbursements, less time with their families, lawsuits when things don't go right, burnout, etc, etc....and along comes Suzy Sunshine to say, "Docs, we want you to disclose and apologize because it's the right thing to do!" Save it, lady.
Yes, we are "doing the right thing" but there is a business case for this behavior. Disclosure does reduce lawsuits and litigation costs. It's working across the country. We also know doing "the wrong thing" - deny and defend - actually invites litigation, drives up litigation and settlement costs, impedes safety improvements, produces bad PR for hospitals and clinicians, and creates enormous emotional suffering for consumers and clinicians.
At Sorry Works! we have taught thousands of doctors, nurses, risk managers, claims managers, defense lawyers, and c-suite personnel how to do disclosure. We have taught many how to say sorry and stay connected with consumers post-event. We can help you too. Call 618-559-8168 or e-mail firstname.lastname@example.org.
Here is the link for Leilani's essay which was published last year: http://sorryworksblog.net/?p=464.