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Sorry Works! Blog

Making Disclosure A Reality For Healthcare Organizations 

Question from Road: Power Dynamic & Measuring Fairness?

During a recent Sorry Works! presentation I received a very interesting question from an audience member: "What about the power dynamic between the hospital and a patient and/or family? The hospital has more knowledge, experience, and resources handling adverse events...how do we keep the power dynamic from getting out of hand during the disclosure process? Also, what about fairness? How do we know we are being fair when we try to resolve an error? How do we know our early offer compensation is reasonable as opposed to taking advantage of vulnerable people who don't know what to ask for or don't know what they are entitled to? How do we measure fairness?"

Great questions. Important questions.

When a legitimate medical errors occurs, whereby it was proven by a credible and expedited review, many risk managers are disclosing the error, apologizing, and then turning the conversation back to the patient or family: "Mrs. Smith, again we are sorry for the harm we caused your husband and family...it was our mistake....how do we make this situation right by you? What do you need us to do?" This is a good approach...you can find out what is important to patients and families. It's not always money, and if it is money it's not always "jackpot justice." Every case is different. Some families will focus on the emotional fixes such as remembering their loved one in a constructive manner, getting involved in patient safety at the hospital, etc. You never know until you ask. However, you have to be careful, because as suggested by the person who raised the question above, patients and families often don't know their needs or what they can legitimately ask for. Patients and families often don't think about their needs five or ten years down the road. Or, I once had an educated consumer express shock to me that hospitals have insurance to cover medical errors! She literally had no idea. Indeed, there is a large knowledge and experience gap between hospitals/insurers and consumers when it comes to addressing medical errors.

Have to be careful not to take advantage of people! It can be tempting to get out of a $200K case for trinkets because you said "sorry" and family is no longer angry at you, but you have to assume that the patient or family will go back to their family members, friends, neighbors, co-workers, etc and share how the hospital handled the situation and more than one person will say some version of the following: "That's all they gave you?! You got ripped off!! Should have talked with my attorney!" You don't want to develop the reputation of ripping off vulnerable people or your disclosure program will eventually fail because patients and families will know not to talk with you post-event. Remember to keep your eye on the big picture...disclosure is not about getting out of one or two cases on the cheap.

So, how do you be fair? Tell patients and families they have right to legal counsel upfront. Better yet, educate local PI attorneys about your disclosure program and how you want to be pro-active and collaborative post-event with patients and families. I know this will feel awkward, like you are inviting the enemy in, etc, but this bold move will build the credibility and success of your disclosure program. Some hospitals even recommend to patients/families the names of local PI lawyers who will be receptive (not the patient or family will always listen to the advice). If the family does not want to be represented, that is fine, that is their right....so you have to work harder. Again, remember, this family sitting across the table from you will re-tell the story multiple times of how you treated them during the worst moments of their lives. So, again, it is OK to turn the conversation back to the patient or family, but if they don't know what to ask for or seriously undervalue their case, you may need to push back: "Mrs. Jones, we are happy to provide what you asked for, but we owe you more...your case, your situation, is worth more. We suggest XX." OR "You seem to be struggling what to ask for....may we suggest the following..."

If the family pushes back and says, "The money is not important....we are more interested in making the hospital safer, etc, " go with it. At least you've tried and no one can say you took advantage of vulnerable people.

But, what if the family goes in the other direction...they think a $100K case is worth $1 million, for example? Keep talking...try to learn why they think the case is worth $1M. Maybe there are some things about their situation you don't know about that truly does raise the value, or maybe they are just angry. If the family is represented by counsel, the attorney may step in and help the client understand the true value of their case. If they are not represented and the case is only worth $100K, be polite but firm, "I am sorry, Mrs. Jones, this is what is fair for your situation...we encourage you to review this offer with an attorney of your choosing, and please get back to us." This is why we share the details our disclosure program will local PI attorneys because they may help guide families.

Hey, remember, Thursday, November 13th, 1pm ET/10am PT is the "train the trainer" webinar being given by Sorry Works! Great chance for c-suite, risk, claims, legal, and medical leaders in your organization to learn about disclosure and apology. Click on thisLINK to learn more.

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