What a Defense Lawyers Needs to Know About the Disclosure and Apology Movement in the Medical Malpractice Arena
My family has lived through medical malpractice twice, including the death of my brother Jim at age 39 in 1998 from a misdiagnosed heart attack.
Jim entered a Cincinnati, OH hospital at 2am complaining of severe chest, shoulder, neck and stomach pains --- all the classic signs of a heart attack. However, because of Jim’s physical stature (he looked like a football player) and his age (39 years) the doctors assumed he had a stomach condition. They gave him an ulcer cocktail and sent him home at 5am without drawing his blood. A few hours later my brother was still in excruciating pain and starting to pass out, so my parents brought him back to the same hospital. By mid-morning the staff finally drew Jim’s blood, the enzyme was in the blood showing damage to the cardiac muscles, and they admitted Jim to the ICU, which is where the holes of the Swiss cheese started to line up. The computer monitor over Jim’s ICU bed read “Ray Wojcieszak.” Who’s Ray? That’s my Dad. This was very significant because my Dad had had a stress test conducted in the same hospital a few prior to my brother’s passing. My Dad at that time was in his mid-sixties and passed the test with flying colors. No blockage. In fact, the cardiologist wrote in the chart that dad had the heart of a 30-year old man. Yet, a few months down the road there was my Dad looking at a computer monitor with his name on it but his oldest son Jim was in the bed. Dad alerted the physicians to the mistaken identity, but they wanted to argue with Dad about who was who! Dad had to produce driver’s licenses to prove identities, and they eventually changed the name on the computer monitor to read “Jim,” but not before they were using my Dad’s charts to diagnose Jim with a bacterial infection of the heart. For two days they plugged Jim full of antibiotics, but, Jim actually had four blocked arteries. By the time the doctors discovered their mistakes it was too late, and Jim died during emergency open heart surgery. A cover-up quickly followed and we had to file a lawsuit, leading to a settlement two years later but – at the time – no apology, admission of fault, or explanation of what went so terribly wrong. We never heard from the doctors or nurses involved in Jim’s care.
I used Jim’s story to launch Sorry Works! (www.sorryworks.net), which has become the nation’s leading training organization dedicated to teaching healthcare, insurance, and legal professionals how to disclose and (when necessary) apologize and fairly compensate after something goes wrong in a medical setting. Apologies and fair compensation not only reduce the need for lawsuits, but they also help doctors learn from their mistakes and make medicine safer. Once controversial, disclosure is now readily accepted in medical and insurance circles. Though many doctors and nurses still need disclosure training, countless people (patients, families, caregivers) have already benefited from disclosure. Sorry does work!
When I wrote the first edition of the Sorry Works! Book back in 2007 with two medical malpractice defense lawyers as co-authors, I remember my Father asking me, “Defense lawyers?! Why would defense lawyers support disclosure? Are you sure selected the right co-authors??!”
I calmed my Father and assured him I had made a wise choice in co-authors, because these medical malpractice defense attorneys truly understood (and still understand today!) what disclosure is all about. Moreover, many more defense lawyers are learning the value of disclosure…how it can help all parties in an adverse event receive the healing and closure they need in an ethical and fair-minded fashion. Disclosure should not be anathema to defense counsel. Quite the contrary, disclosure is based on solid defense principles, and while it represents a new way of doing business, it is also a better way of doing business for all parties.
In tackling this article, I decided to craft a document that will allow me to share my thoughts on what every defense lawyer should understand about disclosure – call it Disclosure 101 – and do so in a way that is conversational and engaging. This will probably be a little different style and format than what you are used to seeing in an article written for attorneys. It’s written from the patient and family perspective and voice, which is actually the most important perspective in the med-mal crisis. Learn to deal with us effectively post-event and the need for litigation is reduced dramatically.
STOP PULLING BACK THE REINS POST-EVENT
Two years ago I conducted a seminar for the Indiana Defense Counsel Association, and I was joined on a panel by two Indiana defense lawyers. The lawyer to my right was skeptical about disclosure, and provided me and the audience with a visual representation of her common practice of “pulling back the reins” after something goes wrong in a hospital or practice. While continuing to demonstrate a very strong and aggressive rein-pulling motion, the lawyer described to the audience why she wasn’t comfortable with doctors and nurses talking post-event, how she couldn’t control the conversations, and how she was worried about the creation of harmful evidence that she wouldn’t be able to defend in court. Before responding I couldn’t help but think, “Pull those reins back any harder and you’re likely to snap off the doctor’s head!”
Seriously, though, defense lawyers have to stop pulling back the reins post-event. Yes, you may prevent the creation of some harmful evidence post-event, but the process itself stokes anger with patients and families (which is a leading driver of litigation) and creates other harmful evidence that can be used by personal injury lawyers to inflame the judge and jury. What I am talking about? Every time the doctor turns his back…every time the nurses goes stone cold…every time the risk manager or hospital CEO fails to return a phone call…and so on and so on is powerful evidence for a lawsuit. Even if the care was good, your client looks guilty, so says 12 lay-people sitting in the jury box.
Pulling back the reins is no longer an option post-event.
As your clients embrace disclosure, let them empathize and stay connected post-event (covered below). Moreover, resist the temptation to put the breaks on the disclosure program when a doctor or nurses does make a misstep in their communications post-event (because it will happen). Instead, use these slips up to emphasize the need for more training of doctors and nurses in post-event discussions with patients and families. Furthermore, always keep your eye on the bigger picture…while the occasional verbal slip post-event might make your job more difficult with a few cases, how many cases are being avoided altogether because doctors and nurses are empathizing and staying connected post-event? The evidence from across the country strongly suggests the latter is happening far more often with disclosure than the former.
Empathy Vs. Apology
Doctors and nurses have historically been told never to say “sorry,” and they often credit this advice to defense counsel. “The defense lawyers specifically instructed us never to say ‘sorry,’ because that’s admitting fault and we’ll get the hospital sued,” is what many caregivers have told me in my travels.
It’s a new day, and that new day starts by understanding the difference between empathy and apology and making sure caregivers are up to speed.
Empathy = “I’m sorry this happened…I feel bad for you. We will conduct a review to determine what happened.”
Apology = “I’m sorry this mistake occurred….it’s all my fault. We will be offering you compensation.”
Both phrases use the word “sorry,” but one is about emotions and staying connected (empathy), while the other is about admitting fault and making amends (apology). We tell physicians and nurses to empathize post-event, and only empathize, even if they think a mistake happened. We
apologize only after a comprehensive review has proven a mistake.
Empathy is appropriate 100% of the time post-event…it’s always OK to say sorry.
When we train our doctors and nurses about using empathy (more below), and even script them we help them remain human post-event. We help them stay engaged with patients and families and preserve relationships, even after major adverse involving crippling injuries or even death.
Talk to enough defense lawyers and plaintiffs lawyers (as I have), and most will state one of the chief reasons people file medical malpractice lawsuits is because no one said “sorry.” Many litigants often say it all would have been different if the doctor, who they really liked, hadn’t run away and refused to communicate. Empathy is the key to post-event communications.
TRAINING DOCTORS, NURSES, AND OTHER STAFF ON EMPATHY
Doctors and nurses need to be trained how to empathize. They need to see and hear what empathy looks like, and your client organizations have to invest the time and energy to ensure that current staff and new hires down the road understand and embrace empathy. If empathy stops just one lawsuit, your client’s investment is more than paid for.
What follows is the sample empathy script we use to train doctors and nurses:
“Mrs. Smith, the operation is over and I know you were looking forward to taking your Mom home in a few days…..you have the big birthday party with the grandkids this coming weekend. But, the surgery did not turn out as we expected, and your Mom is in the Intensive Care Unit, or ICU. I am so sorry this happened. I can only imagine how upsetting this must be for you. Please know we are beginning a review to learn how this happened, and we want to meet with you tomorrow afternoon at 3pm to discuss our progress. Please understand your mom is receiving the best care possible, and we are going to keep you updated on her progress. In the meantime, is there anything I can do for you or your family? Food or transportation? Help making phone calls? Do you need a minister or counselor? Here is my business card….the number on the card is my cell phone, and you are welcome to call me anytime. Again, I’m sorry this happened, but we will get through this together.”
Who is providing this empathy? I’d like to have the doctor – or doctors – who were involved in the care to be speaking with the family. That’s a perfect situation --- but not every situation is perfect. Maybe the doctor is a bigger basket case than the family, or a lousy communicator, or a great communicator but the family is so angry that putting the doctor in the room would be a mistake. So, maybe we send in the physician’s partner, or maybe a nurse who has a great relationship with the family, or maybe the head of risk or someone else from c-suite. Every case is unique, and every patient, resident, or family is different --- you have to know your people (including the patient/family) and act accordingly. Also, be sure to send two people from your side so there is a witness.
Next, let’s analyze that quote…..what was said, and not said?
What was said:
- “Sorry:” Remember, absence of “sorry” is a leading drive of med-mal lawsuits. No problem here!
- Personalized: We talked about the birthday party with the grandkids. By personalizing a statement, your client shows a family or a patient they are not a number, which further helps in recovering the relationship.
- No mush statements: Disclosure organizations get into trouble when they offer mush statement such as “we’ll get back to you” or “talk to you next week.” Patients and families are traumatized post-event, and the last thing they need is more uncertainty. Your client needs to provide date/time specific statements post-event, and follow through. Even if your clients have nothing “new” to report, they can at least touch base and keep rebuilding the relationship.
- Customer service elements: Little things like food, transportation, phone calls, offering a business card with cell phone number, etc show your clients care, which is what empathy is all about!
What was NOT said:
- No apology, no pre-mature admissions of fault: Even if your client thinks a mistake occurred, admission of fault is generally not wise in the immediate aftermath of an event, because hunches are often not correct. And it’s nearly impossible to take back an admission of fault - it looks like a massive cover up and a lawsuit will surely follow.
- No jousting or speculation: Your client needs to stay in the empathy zone…don’t offer up conjecture or things you don’t know to be 100% true - even when pushed by family members! - because that causes trouble for everyone, including the patient and family. Simply say you are sorry this happened and take care of immediate needs.
Remember Setting and Body Language! How your client says it is just as important as what they say. They should look for a quiet, confidential setting free of distractions, including your client’s smartphone or pager. Tell your client to sit down, learn forward, look the patient or family in the eyes, and talk slowly without using technical jargon. Pregnant pauses are OK, and don’t dominate the conversation. Show your sincerity!
Sometimes, empathy can be best conveyed with deeds, not words. Examples include holding someone’s hand while they are crying, giving a hug, customer services elements described previously, or just listening…and listening…and listening some more.
What if the family continues to push after the initial empathy, even demanding an admission of fault/apology? This is a tough one, especially for nurses caring for patients or residents who remain in your care after the event. Nurses are literally forced to interact with angry family members on a daily basis – and the pressure can be unrelenting:
“We need to know what happened….you know, the last nurse said the doctor screwed up….is that true?! Maybe it was you that screwed up!”
Instruct your clients to listen to the anger but don’t get sucked in by becoming defensive or argumentative, but do continue to empathize:
“I know you are very angry, Mrs. Smith. Again, I can’t tell you how sorry I am this happened…and we all look forward to hearing what the review has to say. In the meantime, is there anything I can do for you or your family right now?”
Stress with your clients there is to be no speculation, jousting, or saying something because they think it’s what the family wants to hear. Despite their anger and hostility, patients and families ultimately want the truth…and a doctor or nurse is NOT in a position to give them the truth until the review is complete. Doctors and nurses are, however, able to provide empathy!
Document the Empathy! Every hospital or practice is different when it comes to documentation procedures, but, in general, empathy needs to be documented – or the empathy didn’t happen!
I was giving a talk in Memphis, TN and a nurse legal consultant shared with me and her fellow audience members that doctors and nurses often claim to disclose, communicate with the patient/family, etc post-event, but often she can’t find evidence of disclosure in the chart or any of the records. So, she said, in her eyes disclosure didn’t happen!
At Sorry Works, we like to say that at the minimum disclosure builds a lot of great evidence for a strong defense….but disclosure must be documented to create that evidence! Again, if it’s not written down, disclosure didn’t happen!
Call after Empathy! Doctors and nurses need to know the importance of calling risk, legal, and/or administration post-empathy. They need help to keep the ball moving forward with patients and families, and need help doing so.
EMPATHY AFTER LITTLE, EVERY DAY EVENTS
Tell your clients that empathy is not just for the “big events,” but also the little, every day events as well. Examples include the doctor is running late, the food is cold, the TV has been broken for two days, and a thousand other frustrations felt by patients and families on a daily basis.
In training our caregivers how to empathize, it’s important to give them opportunities to practice these skills so, as one senior risk manager told me, empathy becomes a “reflex.” What better way to practice empathy than saying “sorry” for all the little things that go wrong each and every day in a hospital or doctor’s office? And this is more than just practice…it’s important to the relationships your clients have with their patients and families, and are these relationships strong enough to be saved post-event with empathy and possibly apology? If patients and families never hear “sorry” and their frustrations and resentment with your doctors build over time, well, when the big event hits the patient/family may only be interested in talking with a personal injury lawyer. Practice saying sorry every day!
RUN A CREDIBLE REVIEW
You and your clients need to know that the long-term credibility of any disclosure program rests with its credibility. It has to be a credible and believable process. And nowhere is this more important than the review process, especially if your client is going to report back to the patient or family that an adverse event was not caused by medical error. In such instances, the cases should have been reviewed by outside experts…the caliber of experts any personal injury lawyer would use to evaluate the case.
Don’t let your clients grade their own papers!
And we know that the patient or family may never believe your client when they say the event was not caused by error, but if personal injury is in tow and she is seeing a believable review process then the case is going nowhere.
In addition to outside experts, the credibility of the review can be further enhanced by interviewing the patient or family. Get their perspective and thoughts on what happened, or didn’t happen. Sometimes patients and families have lots of useful information to share – you and your client just need to ask! At the minimum, interviewing a patient or family is an incredibly empathetic act which can defuse many complaints.
COMPENSATION FOR ERRORS
At the time I was writing this article, I was bouncing back and forth between this piece and on-line debate with some claims analysts. The claims guys (they were all males) couldn’t believe that an apology could mean anything to a patient or family, and certainly couldn’t do anything after a major injury or death due to medical errors.
“Thanks for the apology…now what is your address so my lawyer can serve you with a lawsuit?” flippantly wrote one claims guy.
As you work through disclosure with your clients, simply try to think of disclosure as an accelerated claims process. You empathize, you do a credible review, and if the review shows a mistake happened, your client needs to apologize. However, a real apology not only means saying “sorry,” but also meeting the financial and emotional needs of the patient and family. Now, with disclosure, cases can usually be settled for less dollars and in a quicker time frame (meaning lower transactions costs), but your client has to make a fair offer. Again, coming back to the credibility issue for disclosure programs, the offers have to be fair and reasonable or word will get around that your client is taking advantage of vulnerable people with phony apologies and puny offers. Incredibly, some hospitals even think saying sorry absolves them of all financial responsibilities, and then say they were “burned” by the apology when they got sued!
If a mistake is proven with damages, you have to help your client honestly assess the needs of the patient or family. Everything should be considered. Moreover, good disclosure programs often encourage patients and families to be represented by counsel (more below) so the process is thorough, fair, and there is no buyer’s remorse. However, remind your clients that when disclosure mitigates and removes the anger, you have a golden opportunity to discuss the
emotional needs of the patient and family, and sometimes the emotional needs trump financial concerns. Examples of emotional needs?
- Showing the family how the process has been fixed so the mistake is not repeated, which is a big want or desire for many consumers.
- Involving the patient or family in your patient safety efforts
- An apology letter
- Looking for different ways to memorialize the patient.
Addressing emotional needs can not only be beneficial to patients and families, but also doctors and nurses that yearn for closure following medical errors. Caregivers often suffer deep emotional harm after being involved in a medical error – they are often referred to as the “second victim” of medical error. Crafting solutions that address emotional needs (as well as financial needs) can provide healing and closure for your client’s staff as well as the patient and family.
HITTING THE RE-SET BUTTON WITH THE PLAINTIFF’S BAR
Sharks in suits.
And the list goes on and on. No more name calling!
Time to hit the re-set button with the plaintiff’s bar. Time to lower the temperature and reduce the animosity.
Disclosure offers the way.
The practice in most disclosure programs is to communicate this new approach with the plaintiff’s bar. Literally do outreach with plaintiff’s attorneys. Take them to lunch, grab a drink, go to a ball game, or whatever. Tell them cases involving legitimate medical errors will be handled quickly and fairly, and patients and families are always allowed to be represented by counsel. Moreover, welcome their inquiries and always offer an open door. If they ever have a question about case, encourage them to call or e-mail. However, also communicate that adverse events with no errors will not receive compensation and defended all the way to jury verdict if necessary.
In Massachusetts, for example, a state-wide effort for disclosure after medical errors has seen the medical society, hospital association, and bar association join forces. No kidding! It can happen elsewhere too.
Disclosure offers a unique chance to align defense and plaintiff’s attorneys to best serve the interests of patients, families, and doctors and nurses. Take advantage of this opportunity. Instruct your clients that outreach to the plaintiff’s bar is an essential part of the development of their disclosure program – and make sure it happens!
EDUCATING PATIENTS & FAMILIES
All stakeholders need to be educated about disclosure and apology, including patients and families. Over the last few years there has been an enormous amount of media coverage dedicated to hospitals and doctors saying “sorry” after medical errors – and this has started the education process. But more needs to be done.
Over the last few years I have had more and more interactions with patients and families who suffered adverse events, and I am amazed how many of these people (including well-educated people) have no idea what to do after something goes wrong, let alone what disclosure and apology can mean for them. Many patients and families often say they want to hear “sorry” after something goes wrong, but few know how to navigate the system to receive acknowledgment let alone any compensation due to them. In fact, sometimes patients and families run away just like doctors and nurses do post-event.
There are some educational efforts getting under way.
Massachusetts, for example, has launched the “Massachusetts Alliance for Communication and Resolution following Medical Injury,” or MACRMI. The website is www.macrmi.info. MACRMI provides information and resources to patients and families who have suffered adverse medical events, and what disclosure and apology can mean for them. There is a lot of information for patients and family on how the process works and what they can expect.
At Sorry Works! we also recently launched a campaign to educate patients and families about life after a potential medical error, including an e-book, downloadable flyer, and several YouTube videos.
More educational work needs to be done. Patients and families need to be educated just as much as any other stakeholders in the medical malpractice issue.
YOUR PRACTICE, YOUR FIRM
At the beginning of this article I shared the story of how my Father was shocked that I was writing a book about disclosure and apology with two medical defense attorneys. Dad couldn’t believe that defense lawyers would be in favor of an idea that should curtail their income. Dad isn’t the only skeptic I’ve encountered in my travels. Many of the naysayers have been an actual defense lawyers…but some of the biggest supporters of disclosure are defense lawyers!
Look, disclosure is the new reality. It’s coming, and in some places it’s already here. At Sorry Works! we tell hospitals and insurers every day to reward those defense lawyers who are supportive of disclosure, and fire those who are not. It’s that simple. Yes, there are defense lawyers who are not comfortable with disclosure because a) they feel they like are losing control of their clients and the situation (pull back those reins!), and b) they feel like they will lose revenue. I tell hospitals and insurers to try to educate these lawyers and bring them around, or cut them loose.
Supportive defense lawyers tell us helping their clients embrace disclosure dramatically expands and improves relationships with their healthcare clients. It puts client relationships in a whole new light…no longer are we telling doctors to “shut up” post-event, but, instead we’re encouraging doctors to do the right thing after something goes wrong and showing them how to do it (empathy followed by apology if a review has proven a mistake). We’re encouraging more collaboration and communication immediately after something goes wrong, instead of the lawyer getting a call when a request for records comes in (or worse we’re getting sued). Disclosure is all about being pro-active, and enlightened defense attorneys have figured out the disclosure process offers many new and different ways to have billable encounters with their clients that don’t involve litigation.
Looks, there will always be money to be made litigating…disclosure simply offers a new way to generate revenue that your clients will feel better about.