Attracting Scum with Deny & Defend Litigation Strategies

I was talking with a risk manager friend the other day who said to me we need to focus more on the how-to, nuts & bolts stuff when it comes to disclosure and less on the theoretical.   I agree there is great need for practical advice but there still is a need for the theoretical, especially with our friends in the defense bar and claims world.  This column is for them. A few weeks ago there was quite a dust up here in St. Louis when an audio taped deposition involving sex abuse claims against the Catholic Church was made public.  The St. Louis archbishop, Robert J. Carlson, was asked during the deposition if he knew back in the 1980's if sex with a minor was a crime, and Carlson said he wasn't sure.  I'm not making this stuff up.  The plaintiff's lawyer asked the same question a couple different ways, and each time got the same response.  According to the St. Louis Post-Dispatch, Archbishop Carlson could not remember answers to questions a total of 193 times during the deposition.  Link for story is below.

I listened to a local radio show after the story surfaced....they kept replaying the audio clip with the archbishop saying he wasn't sure sex with a minor is a crime.  The callers ran the gamut, with most expressing outrage against the church but there were a few folks who defended the archbishop.  The church's defenders questioned the legitimacy of some of the sexual abuse lawsuits brought against priests.  I agreed with all the callers.   There is no doubt many priests have committed horrible crimes that were covered up by leadership, and not only should the church pay and priests and leaders be sent to jail, but the church's male-dominated culture and awkward tradition of celibacy need to be reformed.  No question about it.  I also don't doubt that some of the sexual abuse claims brought against the church are without merit.  Here's the problem: By playing deny & defend with legitimate claims for so long, all complaints (even those without merit) appear credible.  The public knows the church lies and covers up its sins, so every victim (real or not) will get their day in court.

There are some parallels between the problems of the Catholic Church and the medical malpractice arena.  For years we have had (and continue to have) massive patient safety problems.  Thousands upon thousands of people injured and killed every year, but for the longest time the medical community has not acknowledged or owned the problem.   One risk manager told me that in the 1980's if a plaintiff's lawyer called on behalf of a patient, he (the risk manager) was trained to deny the person had even been a patient at the hospital!  Another risk manager said to me in the 90's he would see the worst, most clear-cut cases of malpractice come through his committee and the doctors would justify the care.  And then a defense lawyer told me the following last year, "Well, even when we make a mistake, we simply can't throw in the towel on the case!"

Historically, defense lawyers and claims managers have had held the attitude that they must project tough litigation strategies to let PI lawyers and the public know they are not pushovers, even in legitimate cases.  "Just can't throw in the towel," as that the one defense lawyer told me.  The problem with this strategy is that while it may save some money on a few cases it has destroyed the reputation of the healthcare industry.  You all look like a bunch of liars, just like the Catholic Church, and this opens the door for more claims.

A weak reputation + lots of money = blood in the water. 

This situation attracts scum looking for a pay day...and the scum will get their day in court because the hospital has always lied about mistakes.   See how this works?  Deny & defend makes your hospital or insurance company an easy target for scumballs.

However, when you disclose, apologize, and quickly and fairly compensate legitimate medical errors (while contesting the meritless claims), your reputation is restored in the community, including the plaintiff's bar.  You are seen as straight shooters who clean up your messes.  Hence, you are more likely to be believed when you say an adverse event wasn't your fault.  Hospitals and insurers who do disclosure report, over time, that plaintiff's lawyer learn that when the hospital is not apologizing that the case is probably without merit and not worth pursuing.  I believe this is a big reason we see an overall reduction in claims and litigation expenses with disclosure programs.

Fall is right around the corner...to schedule a Sorry Works! presentation call 618-559-8168 or e-mail doug@sorryworks.net.  Sorry Works! presentations always count for CME/CEU credits.

Here is a link for the story about the deposition of St. Louis archbishop: http://www.religionnews.com/2014/06/09/st-louis-archbishop-carlson-said-hes-sure-knew-sexual-abuse-crime/