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Making Disclosure A Reality For Healthcare Organizations 

Question from Docs: They Can Still Sue Me?

This is a question we get every so often from physicians as well as nurses when giving a Sorry Works! presentation for Grand Rounds.  When Oregon recently launched its state-wide disclosure program a physician complained to the state that the process is likely a "no win for the provider" and "no lose for patients and families" who can still sue if they don't agree with the doctor. Answer: Yes, patients and families can still sue.  Conversely, though, docs can go to court and argue a case on the damages if they think a patient/family is trying to fleece them.

Too many docs aren't seeing the whole picture with disclosure, and we need to help them.  Both sides - consumers and providers - retain their right to go to court with a disclosure process, but the post-event communication between the parties and pro-active behavior greatly reduces the chances of litigation.  We're never going to get rid of lawsuits, just like we will never completely eliminate medical errors which cause injuries and deaths.  Medicine is a human endeavor and it will never be perfect from a quality or litigation standpoint.  But, we can do much better, and disclosure offers the route.

Yes, disclosure has been shown time after time to reduce lawsuits and litigation expenses.  I'll never forget the risk manager who told me that when she and her staff started running to problems the number of lawsuits against her organization fell dramatically.   But, still, what if you are that doctor who despite great post-event communication still gets sued?  What do you say to this physician?   And what do you say to his or her colleagues who are thinking, "Well, guess that disclosure stuff doesn't work at all.  Look at poor ol' Frank...he said 'sorry' and was so nice to the family, and they still sued him!  I'm just gonna keep my mouth closed after something goes wrong"?

We say a few things to "poor ol' Frank" and his colleagues:

1) Some patients and families will sue no matter what.  There are some really crappy patients and families out there, just like there are some really bad doctors and nurses too.  Just a fact of life.  BUT, is poor ol' Frank better off having said 'sorry" (empathy) and being nice post-event?  Probably yes.  The gotcha factors PI lawyers typically employ to demonize doctors in court have been removed from this case.   At the minimum, disclosure makes for a great defense.  Disclosure makes defensible medicine humanizes the doctor defendant.  Disclosure also makes cases involving malpractice reasonable discussions about fair (not jackpot) compensation.

2) There will be times when a mistake happened, the hospital/insurer knows the case is worth $100K (for example), but the family wants a $1M, and won't budge.  These are the cases where you only offer what is fair, and if the patient/family has unreasonable demands and wants to sue, your defense counsel argues the cases on the damages.  Again, all the gotcha factors that drive up value are removed with disclosure.

3) Just like medicine, doctors and nurses need to continually improve with disclosure.  We need to look at exactly what Dr. Frank said post-event.  We also need to see if Dr. Frank and the hospital/insurer stayed connected with the patient/family in the days, weeks, and even months after the event.  Many providers and hospitals are good at the initial empathy, but then they fail to maintain the relationship with the consumer in the weeks and months after the event, the family feels abandoned, and they sue.  If this case involved malpractice, did the hospital/insurer have a compensation piece in place to help Dr. Frank and his patient move forward, or not? Lots of things to look at.   So, let's study the situation involving Dr. Frank and try to understand exactly why he got sued and learn from it as opposed to jumping to conclusions.

Fall is right around the corner, to schedule a Sorry Works! presentation for your Grand Rounds, call 618-559-8168 or e-mail