6-30-06 - LIABILITY UPDATE - Special "Alternatives" Edition - The Sorry Works! Coalition

by Donna Baver Rovito, Editor, "Liability Update"
Author, "Pennsylvania's Disappearing Doctors"

This LIABILITY UPDATE "newsletter" is a free service which I provide, as a volunteer, to help supply medical liability reform and crisis information to physicians, patients, and liability reform advocates.  I am not employed by any physician advocacy or liability reform organization, political party or candidate.

Opinions and clarifications are my own, and do not reflect the official position of any physician or patient advocacy organization or tort reform group unless stated as such.  Opinions are placed in double parentheses ((xxxxxx)), italicized and appear in blue. 

This Update is emailed to approximately 8,000 health professionals, physician and patient advocates, and others interested in ensuring access to quality medical care through medical liability reform.  It is also posted on the Liability Update Weblog at:  http://journals.aol.com/rovspa/LiabilityUpdate/

 

PLEASE FORWARD THIS IMPORTANT INFORMATION TO EVERY HEALTH CARE PROFESSIONAL YOU KNOW, AND SEND ME MORE EMAIL ADDRESSES SO WE CAN GET THIS INFORMATION TO MORE OF THE PEOPLE WHO NEED IT.

If you would like to be added to or removed from the Liability Update Information Network, or if you have information about yourself or a colleague relocating, retiring early, giving up medicine, private practice or curtailing services due to the medical liability crisis please email ROVSPA@aol.com. 

 

 

 

1....Commentary

 

This Special Edition of Liability Update is the first in a series about alternatives to our nation's dysfunctional medical "justice" system.  Others will follow, including an upcoming edition about specialized health courts...

 

Sorry Works! focuses on the "human" aspects of the medical liability crisis and the ongoing quest to improve patient safety and reduce medical errors.  Some have suggested that it is too "touchy-feely" to have hard financial or societal impact, but, frankly, "touchy-feely" appeals to me on MANY levels....after all, how many relationships are more intimate than the relationship between a patient and a doctor or nurse?  And at what time in a person's life is he or she more vulnerable and "needy" than when he or she is ill or injured?  So "touchy-feely" is just FINE with me....

 

I have spoken with and exchanged email with the founder of this coalition, Doug Wojcieszak, for well over a year now, and have found him to be sincere and committed.  The effectiveness of his efforts are evident in the amount of attention the organization has received and the passage of several pieces of legislation based on his program. 

 

Doug has parlayed personal tragedy into a national movement intended to improve the quality of health care for everyone - patients and providers alike.  I am impressed with his dedication and his skills, and, while I have included stories about Sorry Works! in previous Liability Updates, I am pleased to dedicate this Update entirely to information and articles about Sorry Works!

 

I must admit to a SINGLE reservation about Sorry Works!  I do not believe it to be a "silver bullet" which will solve the nation's medical liability crisis and ensure access to quality medical care.  (No, Doug hasn't claimed it to BE a "silver bullet," but others have....) 

 

I think adoption of many of the components of the Sorry Works! program will HELP, probably a LOT, but I think that other alternatives, including legislation to reduce non-economic damages and exploration of alternatives like health courts, are ALSO necessary to eliminate the root causes of the medical liability crisis and to ensure that we don't experience ANOTHER medical liability crisis in 10 or 15 or 20 years....

 

The longer I am involved with advocating for medical liability reform, the more I realize that there is not a SINGLE SOLUTION, and that we must all remain open to alternatives and ideas from outside sources, even sources with whom we might initially disagree. 

 

While many of those who oppose medical liability reforms of ANY KIND for purely financial reasons claim that the medical community is rigid in its advocacy of certain solutions, I have found that America's physicians and other healthcare providers are VERY open to alternatives that improve patient care and reduce medical liability premiums.  We've all seen and heard claims that physicians are "only interested in caps" or in "taking away peoples' right to sue," but WE KNOW that there are physician and tort reform organizations all over the country which are actively supporting OTHER programs and measures.  Hence, the acceptance and success of Sorry Works! and other organizations which advocate for alternatives....

 

If you're interested in learning more about Sorry Works!, please visit their website or contact Doug directly - he makes himself available and is quite open to frank communication.  His passion will touch you - in fact, you'll probably find a lot in common with this dedicated, visionary individual......his personal introduction to this Special Edition of Liability Update follows in Item 2....

 

DBR

 

 

 

2....from the founder of Sorry Works!

Doug Wojcieszak

 

Welcome to the Sorry Works! edition of Liability Update.

 

Sorry Works! is a “hot topic” within the medical, legal, and insurance communities for so many different reasons. 

 

First, Sorry Works! is on the only comprehensive solution to the med-mal crisis that is agreeable to doctors, patients, insurance companies and even trial lawyers.  Sorry Works! is the middle ground solutions because it reduces lawsuits and liability costs for healthcare providers while providing swift justice for victims of medical errors with no constitutional limits and it reduces medical errors – which benefits everyone.

 

Second, the reported reductions in lawsuits and liability costs for many different hospitals and insurance companies including University of Michigan Health System, Kaiser Hospitals, and COPIC Insurance (to name a few) have been dramatic.  

 

But there are many more compelling reasons why Sorry Works! is becoming so attractive to doctors and other healthcare professionals.  Chiefly, doctors can start Sorry Works! on their own today without begging politicians for votes or waiting years for issues of constitutionality to be settled by the courts.  Doctors and healthcare professionals take control of their liability issues today by reconnecting with patients and families through Sorry Works!  

 

Sorry Works! is more than just “I’m sorry”….it’s a process and a program, but it’s also very simple.  

 

After a bad outcome or adverse event, medical and risk management professionals perform a root cause analysis as quickly as possible to determine if the standard of care was breached or not.  

 

If the standard of care was not met (i.e, an error or system breakdown), the medical and risk management team schedules a meeting with the patient/family and their attorney, apologizes, admits fault, explains what happened and how fixes are being implemented, and provides an offer of fair, upfront compensation as determined by an actuary or other competent professional.  This approach removes anger and suspicion from patients and families and, in most cases, the urge to file a lawsuit.  Such cases are settled in a matter of weeks, saving enormous sums on defense litigation costs.  Finally, if a lawsuit is still initiated the disclosure and compensation event is a great defense for the doctor/hospital in court….hard for the jury to get angry at an honest doctor.

 

On the flip side, if there was no error, the medical and risk management team still meets with the patient/family and their attorney.  They open medical records, answer questions, and basically prove their innocence.  Apologies are given, but no settlement offers are made.  Furthermore, the hospital or insurance company will never settle such cases, even if means defending the doctors and medical staff all the way through jury trial.  This simple act of communication and conviction defuses many non-meritorious lawsuits.  

 

Lastly, perhaps the greatest benefit of Sorry Works! is the healing it provides for patients, families, and medical professionals.  Too often the media focuses on the hurt and damage done to patients and families from medical errors (which is very real); however, nobody discusses the hurt and pain felt by medical professionals after medical errors.  Doctors are in the healing and caring business, and many are crushed after errors. 

 

There are so many stories of doctors suffering depression, ruined marriages and careers, and even suicide because of not being able to come to term with mistakes they made.  The only way medical professionals can truly heal after a medical error is to say they are sorry to patient or family and receive forgiveness in return.   ((There's also a major emotional and professional toll on physicians who are wrongly accused....perhaps even more so than that of those who know deep in their hearts that they HAVE made a mistake....))

 

We appreciate the willingness of Donna Rovito to help us publicize Sorry Works, and we encourage you, her loyal readers, to visit our website – www.sorryworks.net. – for more information on Sorry Works! and the disclosure movement. 

 

Furthermore, we welcome your feedback at doug@sorryworks.net or by calling 618-559-8168.    Thank you!    

 

Website: http://www.sorryworks.net
Contact phone/e-mail address: 618-559-8168; doug@sorryworks.net

 

 

3....from the Sorry Works! Website 

THE SORRY WORKS! COALITION INTRODUCTION

Doctors, insurers, lawyers, hospital administrators, patients, and researchers joining together to provide a "middle ground" solution to the medical malpractice crisis 

Prepared by Doug Wojcieszak
The Sorry Works! Coalition
Glen Carbon, IL
doug@sorryworks.net
618-559-8168

Executive Summary

The story is the same everywhere. Medical malpractice premiums are skyrocketing for doctors, most notably for specialists such as OB/GYNs and neurosurgeons. The steep rise in premiums forces some doctors to discontinue certain services or re-locate their practices. Doctors, hospitals, and their insurers point the finger of blame at wealthy personal injury lawyers and demand caps on lawsuit awards and attorneys fees. Trial lawyers and victims point the finger back by blaming the problem on greedy, unregulated insurance companies and sloppy doctors. Politicians (mostly Republicans) made a campaign issue out of the crisis during the 2004 election with mixed results (President Bush won, but two statewide initiatives for malpractice caps in Oregon and Wyoming were defeated). The public just wants the problem fixed.

Sorry Works! is the middle ground solution that meets the needs of all stakeholders in the crisis. Sorry Works! encourages doctors and their insurers to be honest when mistakes happen, offer apologies, and provide compensation up-front to patients and their attorneys. While the number of settlements increases and more victims receive justice, this approach removes the anger that often leads to lawsuits and it reduces settlement and defense costs. Overall, this approach saves money for insurers and hospitals but the constitutional rights of patients are not limited or restricted. Furthermore, Sorry Works! preserves the doctor-patient relationship and it reduces medical errors, especially repeat medical errors.

The Sorry Works! Coalition will promote the Sorry Works! full-disclosure approach to medical errors. The group's leadership will be a cross-section of the various stakeholders in this debate: doctors, lawyers, patients, hospital administrators, consumer advocates, and insurance executives. The group will have three goals: 1) educate the public and stakeholders about Sorry Works; 2) serve as an organizing force and central clearinghouse for information on Sorry Works! and full-disclosure methods for researchers, stakeholders, and the public; 3) lobby for the development of Sorry Works! pilot programs in hospitals around the United States.

 

Summary of Sorry Works! Benefits

For Doctors, Hospitals, and Insurers

• Fewer lawsuits

• Lower settlement and defense litigation costs

• Overall savings

• Better control over liability exposure

• Maintain relationships with patients and families

For Patients, Plaintiffs, and Plaintiffs' Attorneys

• More victims receive justice quicker

• Constitutional rights are NOT limited

• Medical errors reduced

It's a fact that 70% to 80% of lawsuits against doctors are dismissed or withdrawn with no monetary award for the plaintiff. Though these cases never go to court they still exact a financial and emotional toll on doctors, hospital administrators, and their insurers. These dismissed lawsuits are often described as "frivolous" or without merit. The favorite tort reform solution of caps on damages can limit awards in malpractice cases, but caps do nothing to cure or remedy the motives for the filing of lawsuits that are ultimately dismissed.

It's also a fact that medical errors occur and patients are injured and die every day in hospitals. A study by the Institute of Medicine estimates that preventable medical errors kill 98,000 Americans annually. ((based on data from two hospitals 22 years ago....)) While no one believes that doctors intentionally harm or abuse patients, errors that cause harm need to be addressed and the victims need to be compensated fairly. However, filing a lawsuit is usually not the first choice for most patients and families, but for many people it becomes the only available course of action due to the way the system currently handles medical errors.

So what drives a medical malpractice lawsuit? Greed is the most frequent answer in the media and pop culture. But talk to a victim or family and they will tell that anger is the true motivating factor. Anger over getting the door slammed in their face, anger over lack of answers and accountability, and anger over feeling abandoned. People don't expect doctors to be perfect, but they want them to be honest and forthcoming, especially when mistakes happen. Answers and closure are almost always more important than any monetary settlement. To be fair, financial compensation is a critical part of the picture which must be addressed, but money usually isn't the driving force in medical malpractice lawsuits.

Unfortunately, there is a great climate of mistrust between doctors, patients, insurers, and lawyers. Many doctors view every patient as a potential litigant, and insurance companies and their defense attorneys tell doctors to clam up after a suspected error occurs. When a death or unanticipated outcome happens, patients are left with no apology, answers, or explanation, which produces anger and leaves patients with no option but to contact a lawyer. Plaintiffs' lawyers often have no idea which doctors caused the suspected harm to their client, so they name every doctor on the chart when filing a lawsuit. Only after discovery power is granted and depositions taken are the lawyers able to figure which doctors (if any) truly should be targeted. At this point many "innocent" doctors are dismissed from lawsuits, and this accounts for the majority of the 70% to 80% of medical malpractice lawsuits that are dismissed with no monetary award. However, withdrawn cases still inflict damage on doctors, hospitals, and their insurers. ((to the tune of about $25,000 each in defense costs....not to mention loss of patient care time, emotional distress, etc....)) Furthermore, dismissed lawsuits reflect poorly on the legal profession. Indeed, one of the tort reformers' favorite arguments is "look at all the frivolous lawsuits against doctors that are ultimately dismissed!"  ((And rightfully so....))

The push for tort reform at the federal and states level is a bloody, protracted political battle that frustrates all stakeholders in the debate. Clearly, there must be better way. Communication and trust must be restored and improved. It not only makes moral sense, it is also financially wise.

The Sorry Works! Coalition, a new group representing all the major stakeholders in the medical malpractice crisis, offers a unique communication model that has a positive track record. Sorry Works! has the potential to not only lower settlement costs (like caps) but it also reduces the filing of lawsuits against "innocent" doctors and defense litigation costs; however, Sorry Works! does not limit the constitutional rights of patients. More patients and families are likely to receive justice and the information they need for closure more quickly with Sorry Works. Finally, Sorry Works! reduces the chances for medical errors, especially repeat medical errors.

The Sorry Works! Coalition is launching a national grassroots effort to introduce Sorry Works! to doctors, insurance executives, lawyers, consumer and patient advocates, and elected officials as well as the popular media and the public. The coalition also seeks to become an organizing force and central clearinghouse for information on and discussion about Sorry Works! and related full-disclosure approaches for researchers, academics, stakeholders, and the public. Finally, the coalition is advocating the institution of Sorry Works! pilot programs in hospitals around the United States.

What exactly is Sorry Works? How does Sorry Works! work?

Apologizing and making a good faith effort to fix what we broke is something we were all taught in Kindergarten. However, somewhere between childhood and the adult world most of us forget this lesson, especially when money and careers are on the line. As adults, we are instructed by our superiors and defense attorneys to deny mistakes and defend ourselves to the bitter end. "You have the right to remain silent" has become more than a shield for criminals. But committing a medical error does not make a doctor a criminal, nor should a doctor be treated like a criminal by a defense attorney. ((Anyone who's ever been to court knows that's EXACTLY how physicians are treated....))  Errors only mean doctors are human, and the important question becomes what is the best way to handle the mistake. Litigation and having a jury referee a dispute second hand should not be the preferred method for any stakeholder in this crisis. The coalition believes Sorry Works! is the better way.

The Sorry Works! protocol/full-disclosure approach was first developed in the late 80's by Dr. Steve Kraman, Chief of Staff of Veterans Administration Hospital in Lexington, Kentucky, and VA attorney Ginny Hamm. The full-disclosure approach was developed after the Lexington VA hospital lost two large lawsuits. Aside from the financial considerations, Dr. Kraman and his staff did not like how lawsuits turned doctors and patients into enemies. It was not the way they wanted to run a hospital. So, Dr. Kraman and Ms. Hamm developed a system where all deaths and unanticipated outcomes were reviewed internally. If a mistake or error was found, the patient and/or family would be quickly contacted, encouraged to retain an attorney, and a meeting was scheduled. An apology and answers would be provided and a settlement would be offered. The hospital attorney and plaintiffs' attorney could negotiate a fair settlement and the case would be closed in a matter of months.

If, however, a bad outcome occurred but no error was committed (i.e, the standard of care was met), Kraman's hospital still used this communication model to talk with the family and their attorney, provide medical records, answer questions, and dispel fears and doubts. This open and honest approach eliminated many of the lawsuit filings that result from bad outcomes where the doctor met the standard of care but abandons the family and creates the perception of a cover up. Indeed, Kraman's hospital stressed communication with patients and families, especially when they were innocent!

The results for the Sorry Works! protocol at Kraman's hospital were impressive. The number of settlements increased, but the size of the settlements decreased and lawsuits became rare. In the first sixteen years of the program, only three lawsuits went to trial. Furthermore, defense litigation bills decreased significantly and the hospital saved money overall. Most importantly, doctor-patient relationships were preserved and medical errors reduced. Dr. Kraman published the results of their full-disclosure approach in the November 1999 edition of Annals of Internal Medicine.

Similar positive results have been reported at other United States hospitals that practice a full-disclosure system similar to Sorry Works. The University of Michigan hospital system recently reported that it reduced lawsuits by nearly 50% by using a full-disclosure methodology for medical errors. Other hospitals such as Johns Hopkins and the Minneapolis Childrens' Hospital report similar positive results with full-disclosure programs. Furthermore, the recently published book, "Healing Words, the power of apology in medicine," by Dr. Michael Woods adds further credence to the value of using honesty to address medical errors.

Sorry Works! works with lawn mowers too!

Toro, the $1.5 billion lawn mower and outdoor equipment company, has been using a full-disclosure system similar to Sorry Works! for nearly 10 years for injuries caused by their products. Toro claims their average payout per claim (including attorney fees and payouts) has dropped from $115,000 to $35,000 with the full-disclosure approach. Furthermore, Toro's chief legal officer, Andrew Myers, likes to brag that his company has not seen the inside of a courtroom in 10 years because of a product liability claim.

So why does Sorry Works! work? Let's go step by step.

1. Settlements increase/more victims receive justice
   The number of settlements and payouts for patient costs for a hospital and its doctor will increase with Sorry Works. All deaths and unanticipated outcomes are reviewed, and if a mistake is found the patients and/or family are notified - even if the family wouldn't have suspected a mistake. In fact, the first case Dr. Kraman's hospital handled with Sorry Works! involved a situation where a women in poor health died in the hospital and the family had no reason to suspect an error occurred. However, an internal review by the medical staff revealed that a medical error caused the woman's death prematurely. The woman's family received an apology and compensation from the hospital. It was the ethical thing to do. Disclosing errors and lapses in a medical system is always the right thing to do.

2. Size of settlements and number of lawsuits decrease:
   Sorry Works! removes anger from the situation, and with it the desire to financially punish physicians and hospitals. It's hard to become angry or remain upset with a doctor when he/she is apologizing and making a good faith effort to set things right. When the anger is removed, so is the desire to file a lawsuit in most cases. By providing compensation up front, the plaintiffs' attorney and hospital attorney can negotiate a fair deal. Furthermore, the plaintiffs' attorney will likely advise their client that taking the offer will spare them the lengthy and stressful lawsuit process that will often produce roughly the same amount of money (after expenses and fees) as the initial offer.
   
   The Sorry Works! communication model also reduces the chance of a lawsuit being filed with a bad outcome where the standard of care was met. Sorry Works! effectively communicates not only errors and fault, but also innocence.

3. Defense litigation bills decrease:
   Under Sorry Works, hospitals and doctors close cases in a matter of months as opposed to dragging them out for years. It's easy to see how this process provides significant savings on defense litigation bills. The University of Michigan hospital system reported in the first year of implementing a Sorry Works! protocol defense litigation costs decreased from $3 million to $1 million annually. Furthermore, this process substantially reduces stress and time for the hospital administrator and their doctors.

4. Doctor-patient relationships preserved:
   Sorry Works! keeps open the lines of communication between doctors and their patients, and preserves the relationships. Dr. Kraman tells stories of patients and families who kept coming back to their hospital even after an error occurred because the doctors were honest. Most of these patients had insurance and thus choice, but they kept choosing the Lexington VA even after an error. Patients and families wanted to give the doctors a second chance.

5. Medical errors reduced:
   With Sorry Works! a thorough, honest reviewed is conducted which leads to improvements in doctors and medical systems. Patients and families can be involved in the reviews and allowed to provide input too. This is often one of the most important aspects of the program for patients and families because they believe they are helping to ensure the same error won't happen to someone else.

Sorry Works! pilot program/Illinois legislation (HB4847)

Sorry Works! is a cultural change for many doctors, hospitals, and insurers. Despite data that shows the concept reduces overall costs, many people are still reluctant to try the program. The same excuse is heard again and again, "We can't admit guilt by saying 'sorry' because we'll get our pants sued off." It is an emotionally based arguments that is simply no longer supported by the data.

The Sorry Works! pilot program idea removes this excuse and allow doctors, hospitals, and their insurers to try Sorry Works! risk free for a set period of time. The Illinois General Assembly is considering such a pilot program whereby two Illinois hospitals would be given a risk free try for two years. Illinois House Bill 4847 contains the pilot program legislation; it has passed the Illinois Senate and awaits action in the Illinois House.

Under HB4847, the State of Illinois would establish a committee of medical, insurance, and legal experts to administer the pilot program. Hospitals interested in participating would submit their claims-loss data, defense litigation expenses, and other data to provide the committee with a picture of their normal costs handling medical errors in the traditional "deny and defend" manner. The committee would then evaluate if a pilot hospital's malpractice expenses increased, decreased, or remained the same under Sorry Works. If the costs increase, the State of Illinois will cover the difference between the increased cost and normal cost. However, if practiced correctly, Sorry Works! should reduce overall costs, the pilot hospital will save money, and the State of Illinois will have no expenses.

At the end of the study, the two pilot program hospitals are required under HB4847 to publicly publish the results of their experiences with Sorry Works.

Launching The Sorry Works! Coalition

The goals of The Sorry Works! Coalition are to 1) build a national movement to promote Sorry Works! and educate stake holders, the media, and the public; 2) become an organizing force and clearinghouse for research, discussion, and dissemination of information about Sorry Works! and related full-disclosure methods; 3) lobby for the development of Sorry Works! pilot programs around the country. Listed on the next page are steps to accomplish these goals.

• Establish a steering committee and board of directors
  We will solicit the participation of doctors, lawyers, insurance executives, hospital administrators, consumer and patient advocates, academics, political leaders, and others from around the United States to join an initial steering committee. This group of people will lend their names to the organization and help recruit additional people for the organization along with setting initial goals and helping secure funding. A board of directors will be selected from the steering committee members.

• Implementation of public relations strategy, clearinghouse website, and pilot programs:

  1. Public relations/education: The Sorry Works! Coalition will target states and regions of the country to introduce the Sorry Works! concept primarily through a public relations strategy that includes (but is not limited to) press releases, stories in newspapers, radio, and television, letters to the editor, talk radio interviews, and other "free" media opportunities.

  2. Organizing Force and Clearinghouse: The coalition will be the organizing force the Sorry Works/full-disclosure movement. The coalition launch a comprehensive website on Sorry Works! and full-disclosure along with discussion boards and links. This website will become THE place for researchers, stakeholders, and the public to learn the latest news and ideas about Sorry Works, full-disclosure programs, and related research efforts. The website will become a clearinghouse and central distribution point for ideas and information on full-disclosure efforts around the nation.

  3. Pilot programs: The Sorry Works! Coalition will initially target the 20 states that are considered to be in a medical malpractice insurance crisis by the American Medical Association to lobby for the development of pilot programs. The introduction and development of pilot program aids the public relations/education strategy. Indeed, every time a pilot program bill is introduced, moved in committee, or voted on, a story will be written which further educates the public.

• Funding
  Professional staffing for Middle Ground will initially be provided free of charge by Tactical Consulting (T/C) Public Relations of Illinois. T/C partner Doug Wojcieszak lost a brother to medical errors in 1998 and has worked on both sides of the tort reform debate. Wojcieszak was instrumental in getting a Sorry Works! pilot program introduced and passed by the Illinois Senate in Spring 2004; the pilot program legislation currently awaits action in the Illinois House.
  
  Tactical Consulting will work with steering committee members to raise funds for the first year of operation.

States with Apology Laws

There are a number of states that have passed (or are considering passing) immunity for apology laws. These statutes allow doctors and health care providers to apologize and offer expressions of grief without their words being used against them in court. We support these laws, especially if they make doctors more comfortable communicating with their patients. However, we encourage doctors and lawyers to understand that it may to be their benefit to have apologies, expressions of grief, and offers of upfront compensation brought into the court if a medical malpractice lawsuit is initiated. Doctors will learn that a sympathetic defendant who has done the right thing is a lousy target in the court room.

Here is a list of states that have passed apology laws:

• Arizona
• California
• Colorado
• Florida
• Georgia
• Hawaii
• Idaho
• Illinois (awaiting signature of Governor)
• Maryland
• Massachusetts
• Montana
• North Carolina
• Ohio
• Oklahoma
• Oregon
• Texas
• Virginia
• Washington
• West Virginia

Vermont has case law that provides immunity for doctors’ apologies.

Illinois also recently passed a Sorry Works! pilot program that provides hospitals and doctors a risk-free try at Sorry Works! with state backing.

Finally, Pennsylvania, Florida, and Nevada have also passed laws mandating written disclosure to adverse events/bad outcomes to patients and families.

To learn more, call 618-559-8168 or e-mail doug@sorryworks.net.

 

 

 

4....New Hampshire Union Leader

Conservative Columnist Praises Sorry Works!
By Deroy Murdock
July 16, 2005

http://www.sorryworks.net/media28.phtml

 

Across the years and through the morphine, I recall an anesthesiologist explaining how he goofed during major surgery — on me. I was in a dreadful car crash in 1986. While trying to insert a small antibiotic tube near my heart, a Tucson Medical Center anesthetist accidentally slipped and punctured my lung, making it collapse. As I recovered from that morning’s incisions, he detailed his mistake and said he was sorry.

“I have two questions,” I groggily declared: “Did you intentionally collapse my lung?”

“No,” the doctor replied.

“Were you trying to make me better?”

“Yes,” he said.

“Well, then I forgive you. Thank you for putting me back together.”

Absent that apology, a gurney-chasing attorney could have convinced me to sue this physician for malpractice. Instead, I was touched by his honesty and felt no malice toward him. As I recuperated, litigating against him was the last thing on my mind.

Along these lines, a new organization called “The Sorry Works! Coalition” (SorryWorks.net) hopes to curb lawsuits stemming from medical errors. It encourages doctors and hospitals to fess up when they screw up and offer fair compensation to those they have harmed. This simple idea should brighten the climate wherein doctors often fear the sick as potential litigants, while too many patients treat practitioners like unguarded pots of gold.

Sorry Works! cites several apologies that have vaccinated physicians against lawsuits:

 

• Linda Kenney had ankle surgery in 1999, but nearly died after accidentally receiving anesthesia in her heart. The anesthetist ignored the hospital’s advice and apologized for his gaffe. She never sued, and the two have become friends. “For him, it was like a great weight was lifted from his shoulders,” Kenney told Boston’s CBS-4 TV. “For me, it was like freedom to move on.”

• A misprogrammed pump gave a child a fatal dose of painkillers at a University of Michigan hospital. Its medical director apologized to the grieving mother. Despite capturing his words on tape, she refused to sue and accepted an undisclosed settlement.

• When another Michigan patient suffered blurry vision after Lasik eye surgery, he prepared to sue. The doctor explained that corneal wrinkling is a standard risk in such procedures, and that he did nothing wrong. The patient dropped his suit and let that physician correct the damage.

Apologies have saved providers plenty in legal fees and payouts.

• The Veterans Administration Medical Center in Lexington, Ky., launched an apology policy in 1987. By 2000, it had settled with 170 patients and only thrice went to trial. Its average payment across all claims was $16,000 compared to the VA system’s $98,000 average in 2000.

• University of Michigan hospitals have cut routine caseloads from 260 to 275 claims in 2002 to 120 to 140 today. Concluding a typical case required 1,160 days (about three years and two months) then, vs. 320 days (10 and a half months) now, a 72.4 percent savings. Per-case legal costs have plunged from $65,000 to $35,000. Annual legal defense expenses have dropped from roughly $3 million to $1 million.

• Denver-based COPIC Insurance Companies covers some 5,800 Colorado physicians, of whom 1,942 participate in its 3-R’s Program. Since late 2000, this initiative has sought to “recognize, respond (to) and resolve” medical errors.

“The average payment in 3-R’s cases is $5,586,” says COPIC’s George Dikeou, “while the average outside the program is about $284,000.”

“The majority of people who file medical lawsuits file out of anger, not greed,” says Sorry Works! founder Doug Wojcieszak. “That anger is driven by lack of communication, being abandoned by doctors and no one taking responsibility for his mistakes. Apologizing and offering some up-front compensation reduces this anger.”

Seventeen states have enacted apology laws; some make remorseful words inadmissible in court if uttered soon after mishaps occur. U.S. Sens. Max Baucus, D-Mont., and Michael Enzi, R-Wyo., introduced the Reliable Medical Justice Act on June 29 to provide federal funding for apology projects around the nation. While the need for federal grants here is a mystery, Washington should encourage this concept without reflexively whipping out the checkbook. Implementing it in VA hospitals would be a solid start.

This terrific idea should sweep the nation. To cure medical-malpractice lawsuits, “sorry” shouldn’t be the hardest word.

Deroy Murdock is a columnist with Scripps Howard News Service and a senior fellow with the Atlas Economic Research Foundation in Fairfax, Va. E-mail him at deroy.murdock@gmail.com

 

 

5....Sorry Works! website

Sorry Works!/full-disclosure Bi-partisan Federal Legislation Introduced
http://www.sorryworks.net/media27.phtml

July 6, 2005

`Bi-partisan federal legislation was introduced last week by United States Senators Mike Enzi (R-WY) and Max Baucus (D-MT) that will provide federal grants for full-disclosure/Sorry Works! type pilot programs at the state level. The bill number is S 1337 and can be viewed at this link.

This is yet another exciting development after the recent passage of the Sorry Works! pilot program in Illinois (Illinois Senate Bill 475). Pilot programs at the state level will encourage more hospitals and doctors to try Sorry Works/full-disclosure and learn first hand how this approach reduces lawsuits and liability costs while providing swift justice to more victims and reducing medical errors.

Please call or write your member of Congress and tell them to support S 1337.

Stay tuned to the Sorry Works! website for updates on this legislation and please sign up for our newsletter by hitting this link to receive bi-weekly updates on the legislation and other important information.

If you have questions call 618-559-8168 or e-mail doug@sorryworks.net. Thank you!

 

 

 

 

6....ABA Health E-Source 

Disclosure Of Medical Errors Is Honesty The Best Policy Legally?
by Ken Braxton and Kip Poe, Stewart Stimmel LLP, Dallas, TX 

A majority of states have adopted or are considering apology laws that exempt expressions of regret, sympathy or compassion from being considered as admissions of liability in medical malpractice lawsuits. The intent is to encourage physicians and other healthcare providers to apologize to patients when a medical error, accident or unanticipated outcome occurs without the apology being taken as an admission of guilt. The consensus is that healthcare providers have become reluctant to explain to patients and their families what happened when procedures go wrong because they fear the information will be used against them in court. Many healthcare providers have struggled with their desire to explain and apologize to their patient, but have often been strongly advised against such open discussions by their defense attorneys. Is the reluctance justified or is honesty really the best policy?

In our experience as medical negligence defense attorneys, we have found that failing to disclose medical errors or failing to explain unanticipated outcomes to patients often creates frustration and anger and may lead patients or their families to file lawsuits to “get to the bottom of the matter”. A perceived “cover-up” is a certain invitation to being sued. We have seen many instances of patients suing over their anger of feeling like they weren't being given the facts by their doctor, and then not being angry over the mistake when it was finally explained to them. Unfortunately, once the lawsuit is filed and an attorney is involved, the lawsuit rarely resolves just because the anger dissipates. As a result, we agree that honesty and an open dialogue with a patient is the best policy; however, it is imperative that healthcare providers be fully informed and knowledgeable regarding how to appropriately provide “apologies” to patients and their families. For healthcare providers in training, this requires that they are taught how to discuss medical errors with their patients the same way they are taught to obtain a medical history from the patient. For practicing providers, their insurance carriers, risk managers, and healthcare lawyers must educate the providers during risk management lectures and discussions. JCAHO, the accreditation organization for hospitals, is placing more emphasis on institutional policies regarding sentinel events or unanticipated outcomes and how institutions are to deal with these outcomes.¹ For healthcare lawyers advising hospitals, a possible approach to protecting the confidentiality of medical apologies is to incorporate these discussions into JCAHO imposed guidelines and peer review protocols within the institution. By doing so, the institution avails itself of any medical peer review privileges provided by state laws.

While most states have joined in the trend to protect medical apologies, several state laws continue to allow statements concerning culpable conduct or admissions of fault to be admitted as evidence of liability. Healthcare providers should work with their employer or professional liability insurer’s risk management or legal staff to fully understand the applicable state law regarding “I am Sorry” guidelines, just as they are educated on state laws regarding patient consent issues. As the law is constantly evolving in each state, firms should keep track of individual state’s “I am sorry” laws in which they have healthcare clients.

Most insurers are receptive to their providers participating in these discussions and apologies when properly conducted. An excellent source of information for healthcare providers, attorneys, risk managers, and insurance carriers is The Sorry Works! Coalition, which is a national group advocating a formal apology program for medical errors as a proactive solution to the medical malpractice crisis and proposals for tort reform.² The group has gained Congressional allies in Senators Hillary Rodham Clinton and Barack Obama (Democratic senators from New York and Illinois, respectively) who have introduced federal legislation regarding the communication and apology of medical errors.³ Several large healthcare centers and professional negligence carriers are advocates of these principles, and have incorporated the “Sorry Works” approach into their risk management educational programs. Two of the major healthcare entities to incorporate this approach, after extensive studies, are the University of Michigan Hospital System and the Veteran’s Affairs Administration.

The bottom line is that open communication with patients throughout their care has a dramatic effect on making a patient “feel” like they are in control and are a part of the healthcare team. When a mistake is made, an open discussion of the error, within the guidelines of state and federal law, has been shown to decrease the likelihood of the patient filing a lawsuit, and can decrease the costs of defending a meritorious claim by taking anger out of the equation. Since every state has different requirements to protect these discussions, healthcare attorneys need to become acquainted with the specific language in the statutes of their state.

Mr. Braxton is a partner in the Stewart Stimmel LLP law firm and has over sixteen years experience in defending healthcare providers. He previously taught at the Texas Tech law school, medical school, and nursing school on healthcare matters and continues to be a frequently invited lecturer on these issues. Ms. Poe is a registered nurse with a background in trauma care and former professor at the Texas Tech medical and nursing schools. She has been defending as well as educating healthcare providers for fifteen years.

 

¹ Joint Commission on Accreditation of Health Care Organizations. Revisions to Joint Commission Standards in Support of Patient Safety and Medical Health Care Error Reduction. July 1, 2001.
² http://www.sorryworks.net.
³ See U.S. Senate Bill 1784. (The National Medical Error Disclosure and Compensation (MEDiC) Act of 2005.) www.clinton.senate.gov.

 

((Details of that legislation follows....I would have liked to have seen more bi-partisan support of this effort and think it would have a better chance of passage if BOTH sponsors were not members of the same party, but when you're trying to get legislation passed, sometimes groups have to work with those who are willing to get the job done....))

 

“The National Medical Error Disclosure and Compensation (MEDiC) Act of 2005”
Senator Hillary Rodham Clinton and Senator Barack Obama
September 28, 2005
Background

http://www.clinton.senate.gov/documents/092805sectionbysection.pdf

In 1999, the Institute of Medicine released a report entitled “To Err is Human” that found medical errors to be the eighth leading cause of death in the United States, with as many as 98,000 people dying each year as a result of medical errors. ((See, right there I have a problem with this....but to be fair, this mischaracterization of 22 year old data has been quoted and misquoted by everyone ELSE, so I guess it shouldn't be a surprise to find it here....)) To reduce deaths and injuries due to medical errors, the health care system must identify and learn how to prevent such errors so that health care quality can be improved. At the same time, studies have shown the inconsistency of the medical liability system in determining negligence and compensating patients, and doctors are struggling to pay soaring medical liability premiums.

Solutions to the patient safety, litigation, and medical liability insurance problems, while challenging, are critical. In an attempt to address these issues, a number of hospital systems and private liability insurance companies around the country have adopted a policy of robust disclosure of medical errors with thorough analysis and intervention, apologies for such errors, and early compensation for patient injury. Overall, these policies have resulted in greater patient trust and satisfaction, more patients being compensated for injuries, fewer numbers of malpractice suits being filed, and significantly reduced administrative and legal defense costs for providers, insurers, and hospitals where such policies are in place. The MEDiC Act models the successes found through these programs and builds on the recently enacted Patient Safety and Quality Improvement Act.

Office of Patient Safety and Health Care Quality

The bill creates an Office of Patient Safety and Health Care Quality within HHS, which in collaboration with the Agency for Healthcare Research and Quality shall increase patient safety and health care quality across healthcare settings. The Director of the Office shall establish the National Patient Safety Database, conduct data analyses to inform policy and practice recommendations for providers, establish and administer the National Medical Error Disclosure and Compensation (MEDiC) Program, and support a number of studies related to MEDiC and the medical liability system.

National Patient Safety Database

The Director shall in consultation with other Patient Safety Organizations, establish a National Patient Safety Database to collect confidential patient safety data from National Medical Error Disclosure and Compensation (MEDiC) Program participants. The Director is tasked with adopting standard patient safety taxonomy, developing common and consistent definitions for patient safety terms, and establishing a standardized electronic interface to allow for the streamlined, consistent entry of data to the Database in a form and manner that precludes identification of a provider, patient, or reporter of patient safety data.

National Medical Error Disclosure and Compensation Program

This section establishes the Medical Error Disclosure and Compensation (MEDiC) Program to:

• Improve the quality of health care by encouraging open communication between patients and health care providers;
• Reduce rates of preventable medical errors;
• Ensure patients have access to fair compensation for medical injury, negligence, or malpractice;
• Reduce the cost of medical liability insurance for doctors, hospitals, health systems, and other health care providers.

The National Medical Error Disclosure and Compensation (MEDiC) Program shall provide Federal support to doctors, hospitals, and health systems in disclosing medical errors and other patient safety events and offering fair compensation for injuries or harm. Once enrolled in the Program, participants shall submit a comprehensive safety plan and designate a patient safety officer to be responsible for meeting the goals and conditions of the Program. ((This sounds a lot like what we already have in Pennsylvania, through the Patient Safety Authority created by the MCARE Act of 2002 and supported strongly by Pennsylvania's medical community....and which recently reported that three quarters of Pennsylvania's hospitals have implemented patient safety improvements as a result of the authority's recommendations and protocols....))

Under the Program, any medical error, patient safety event, or notice of legal action related to the medical liability of a health care provider, shall be reported to the patient safety officer. If it is determined that a patient was injured or harmed as a result of medical error or the standard of care not being followed, the Program participant would be required to disclose the matter to the patient, and offer to enter into negotiations for fair compensation to the patient. The terms of negotiation for compensation assure confidentiality, protection for any apology made by a health care provider to the patient within the negotiation period, a patient’s right to seek legal counsel, and allow for the use of a neutral third party mediator to facilitate the negotiation. All negotiations must be completed within a six-month period, with the possibility for a one-time extension of three months.

As part of the conditions of participation in the Program, medical liability insurance companies and health care providers would be required to apply a percentage of the savings they reap from lower administrative and legal costs to the reduction of premiums for physicians and toward initiatives to improve patient safety and reduce medical error.

National Medical Error Disclosure and Compensation (MEDiC) Grant Program

This section allows the Director to develop and oversee grant programs to encourage participation in the program and support patient safety initiatives. Program participants would be eligible for funding to develop and implement communication training programs to help health care providers learn how to effectively disclose medical errors and other patient safety events to patients. Program participants may also receive funding to improve the use of information technology in order to facilitate the reporting, collection, and analysis of patient safety data.

Patient safety organizations and other entities would be eligible for grant funding to facilitate the tracking and analysis of local and regional patient safety trends, and the development and dissemination of training guidelines and recommendations for health care providers that focus on methods to reduce medical errors and improve patient safety and quality of care.

Of the total funds appropriated to carry out the National MEDiC program, there is a provision to hold in reserve twenty percent for the purpose of providing funding to Program participants if the total costs of the cases handled under the Program for the grant period exceed the total costs that would have been incurred if such cases had not been handled under the Program.

The National Patient Safety and Fair Compensation Accountability Study

This section requires the Director, directly or through contract, to analyze the patient safety data in the Database and from other sources to determine performance and systems standards, tools and best practices for doctors and other health care providers necessary to prevent medical errors, improve patient safety, and increase accountability within the healthcare system. Such analysis will consider the value of increasing the transparency of patient safety data to include the identity of health care providers and provide recommendations for improvements to the peer review process. A report with recommendations resulting from this analysis shall be submitted to Congress and be made available to States, State medical boards, and the public.

The Medical Liability Insurance Study

This section requires the Director, directly or through contract, to analyze the medical liability insurance market to determine historic and current legal costs related to medical liability, factors leading to increased legal costs related to medical liability, and which, if any, State medical liability insurance reforms have led to stabilization or reduction in medical liability premiums. Such an analysis shall distinguish between types of carriers. A report with recommendations resulting from this analysis shall be submitted to Congress and be made available to States, State insurance regulators, and the public.

Study to Reduce the Incidence of Lawsuits Not Related to Medical Error

This section requires the Director, directly or through contract, to analyze the patient safety data in the Database to examine those cases that were not successfully negotiated through the Program, or of which the parties chose not to participate in the Program and to determine the reasons, trends, and impact of such outcomes on Program participants and patients. A report with recommendations resulting from this analysis shall be submitted to Congress and be made available to States and the public.

 

 

 

7....SorryWorks! Website

SORRY WORKS NOW THE RULE IN ALL VA HOSPITALS

The Sorry Works! protocol, which was initially developed at the Lexington, Kentucky VA hospital and has spread to many other government and private hospitals, is now the rule in all VA hospitals nationwide as of last week. This is a major development in the Sorry Works! movement. More doctors and more patients are going to be exposed to Sorry Works!, and it's just a matter of time before Sorry Works! is the rule in all hospitals - government and private.

The new VA disclosure policy is freely available on the VA website or by clicking on this link. The document will download as a PDF file.
 

 

 

 

8...Sorry Works! Website

Sorry Doesn’t Work Alone

http://www.sorryworks.net/article31.phtml

 

Below is an un-edited column submitted by Dr. Steve Kraman, former chief of staff at the Lexington VA, and Rick Boothman, chief risk officer at the University of Michigan. Kraman and Boothman designed and implemented the two best publicized and successful disclosure programs in American hospitals. What they have to say in this column is very important. Chiefly, they are concerned that all the hoopla surrounding Sorry Works! and the apology movement has glossed over the process that must be developed for successful disclosure programs. Kraman and Boothman want healthcare, insurance, and legal professionals to understand there is much more to successful disclosure programs than just saying, “I’m sorry.” We appreciate and applaud this contributions made by Kraman and Boothman. What they write in this column is exactly in-line with everything Sorry Works! preaches. However, it is also in line with our frustrations too….healthcare providers think they can just apologize and everything will be OK. Sorry Works! is much more than apologies, as explained by Kraman and Boothman.

 

Kraman/Boothman Column

 

The legislative proposal known as Sorry Works continues to generate interest and slowly spreads with proposed legislation in several states for pilot projects and a number of hospitals and healthcare systems supporting the practice. Outside the United States, Australia adopted a nationwide full-disclosure scheme (but one that is voluntary and lacks compensation rules or guidelines) and a bill, the NHS Redress Bill, is progressing along the legislative route in the English Parliament; it includes limited compensation for those injured by medical mistakes. Still, with evidence growing that Sorry Works-type practices actually work to diminish malpractice claims and expense, and with the total absence of evidence supporting traditional deny and defend practices, we must ask why the movement seems so gradual.

The answer, we believe, may have something to do with the manner in which Sorry Works is portrayed. Sorry Works is often presented in a touchy-feely and self righteous manner. The combination of the name “Sorry Works” and statements that it is “the right thing to do” appeals to the public and even healthcare workers. However, risk management professionals, defense attorneys and insurers are flinty, hard-edged types who see the world as a dangerous place and equate soft-hearted with soft-headed. We suspect that many people in the business of risk management have not looked much beyond the apology part of Sorry Works. We can’t blame them as there is far too much attention being paid to the apology and even to disclosures. These aspects are only small parts of the whole.

The real key component in any successful claims management program, from ours at the Lexington VA, to the successful program at the University of Michigan, to that described by Sorry Works is competent case assessment and principled management with a backbone. Medicine is inherently dangerous. Even the most seemingly benign actions by the most careful of health care professionals, like prescribing an antibiotic for an ear infection, is fraught with potentially devastating consequences. Knowing the difference between reasonable and unreasonable care is key and resolving to act accordingly is the answer.

At the University of Michigan and the VA hospital at Lexington (the only two hospitals to publicly air their financial outcomes), risk management is a hard-nosed system based first, on working hard to know the difference between reasonable and unreasonable care and next, resolving to take advantage of no one and allowing no one to take advantage of you. Hospital managers who don¹t have these capabilities or processes in place to know the difference are naturally loath to admit any error because they don’t know how many others are lurking, or because it is easier for them to let the litigation system ultimately ferret out the distinction however expensive that method may be. The fear is in the unknown. A constant litany of “doing the right thing” won¹t persuade the doubters. They have to understand this as the management issue that it is. Apart from the nuances of “Sorry Works” and other such approaches, to gain real ground we need to frame the problem and the solution in real and realistic terms.

Perhaps the two of us have been as guilty as any in not representing this the correct way. Unfortunately, the “Sorry Works” brand seems to focus on the apology component. The name has stuck, but the full breadth of the concept needs further explanation and realization. Those of us who have practiced “Sorry Works”-type programs need to emphasize the whole concept rather than just the “soft” parts. Ultimately, it IS about “doing the right thing” but doing the right thing for everyone concerned, health care professionals and institutions, as well as our patients, and it starts by knowing the difference and having the backbone to act accordingly.

Steve Kraman, M.D
Professor, University of Kentucky
College of Medicine, Former Chief of Staff
Lexington, VA Medical Center
email: sskram01@uky.edu
 

Richard Boothman, J.D.
Chief Risk Officer, University of Michigan
Health System
email: boothman@med.umich.edu

 

 

9....AHRQ WebM&M

Removing Insult from Injury—Disclosing Adverse Events
by Albert W. Wu, MD, MPH

http://www.sorryworks.net/article28.phtml

You pull into a parking space, swing open the car door, and are dismayed to hear it hit the car next to you. What is the first thing that you do? Here are two possible answers—look around to see if anyone else saw what happened, then rub the scrape with your thumb to see if you can make it go away. Or perhaps you slide a detailed note under the windshield wiper including an apology, your name, phone number, and insurance information. So, which one sounds more familiar?

Despite the best of intentions, it is tough to admit a mistake. In the more consequential world of medicine, we realize that we need to tell patients, or their families, about adverse events. We learned this in medical ethics, and we know in our hearts that it is the right thing to do.⁽¹⁾ Still, we dread the conversations. We have a vague but disturbing recollection of the phrase, “Anything you say can be used against you.” What a great relief it would be if someone whispered to us, “Don’t worry, you don’t have to tell the patient.” Like the dented car, nobody saw the scrape—just rub off the paint and get back to your important business. Worse, we don’t even know what to say. Most of us have no training in how to handle this scary and potentially explosive conversation. What do you do if the person becomes hysterical or enraged? How to even get the conversation started?

The bottom line is that most patients are never told that they have been the victim of a medical error.⁽²⁾ However, patients generally want to be informed about even minor errors in their care, especially if they are injured.^(3,4) Ironically, perhaps the most common reason patients sue is they felt it was the only way they could get information about what happened.⁽⁵⁾ The patient who later learns about what happened and suspects a “cover-up” is likely to become much more upset and angry than he or she would have been after a straightforward explanation and apology.

The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) now requires that patients be informed about adverse events. Institutions have adopted policies to follow suit. Since 2001, our institution has specified that, “It is the right of the patient to receive information about clinically relevant medical errors,” and that “the Johns Hopkins Hospital has an obligation to disclose information regarding these errors to the patient in a prompt, clear, and honest manner.”

So, how to do it? We recommend a simple, four-step approach: (i) tell the patient what happened, using plain language; (ii) accept responsibility on behalf of the institution or yourself, as appropriate; (iii) apologize; and (iv) describe the next steps, including what will be done for the patient, and what will be done to prevent similar events in the future.

I believe that the apology is mandatory. It is both the right thing to do and what patients expect of us. The common belief that apologizing increases the risk of a malpractice suit is probably not true; in fact, there is a fair bit of anecdotal evidence to the contrary.^(4,6,7) Following implementation of a full disclosure policy at the Veterans Administration Hospital in Lexington Kentucky, there was a swell in the number of settlements, but a steep drop in total payouts.⁽⁸⁾ The University of Michigan Health System and our own institution have also seen reductions in legal costs following adoption of disclosure policies. A recent newspaper article, entitled “Doctors’ new tool to fight lawsuits: saying ‘I’m sorry’,” described how a patient who received an apology dropped her plans to sue.⁽⁹⁾

We have developed a series of video vignettes, each of which depicts a physician disclosing an adverse event to a patient. We have shown these videos to volunteers and asked them what they thought about the discussions and the doctors. I asked a woman what she thought of a vignette in which a surgeon is very slow to respond to urgent pages, precipitating an emergency for a pediatric patient. She promptly replied, “I’d sue [him]!” I asked, “What would it take for you not to sue him?” She thought for a moment, and then responded, “He’d have to apologize and apologize, call me at home that evening and apologize, and call me the next day and apologize. Then maybe I wouldn’t sue him.”

There is now legislation in many states that attempts to protect apologies by making them inadmissible as evidence to prove liability in court. Most of the laws make inadmissible expressions of sympathy and regret after an adverse event. A few, beginning with Colorado’s apology law, provide stronger protections, excluding from evidence even apologies that include an admission of fault. As more and more bills are being introduced related to apologies, perhaps this will help temper the defensive-medicine instinct to avoid “self-incrimination.” The way I figure it, apology is cheap. It is certainly true that if you disclose an adverse event to a patient that had previously been unrecognized, you may be sued. For these cases, you are still obliged to tell the patient on ethical grounds. However, for an adverse event that the patient is already aware of, there is every reason—both ethically and pragmatically—to apologize.

We have produced a 25-minute educational video that features the vignettes mentioned above and describes how to conduct the initial disclosure of an adverse event.⁽¹⁰⁾ It opens with one mother describing the tragic death of her baby daughter at Johns Hopkins Hospital. She discusses how well the disclosure discussions were handled by the chairman of the pediatrics department. “Johns Hopkins did the right thing. They told us exactly what went wrong, they apologized, and they said that they would fix the problem.” Moved in part by this experience, she has become a tremendous advocate for patient safety, both at our institution and nationally, donating countless hours to our collective efforts to prevent medical errors.

When done well, full disclosure, coupled with an appropriate apology, probably prevents lawsuits, engages the patient or family members as allies in the fight to improve patient safety, and feels good. We have found that the momentary relief that some providers feel when they “leave the scene of the accident” is often followed by years of lingering guilt. Take advantage of the resources that are available to learn to apologize, and then just do it. You’ll feel better knowing that you did the right thing.

Albert W. Wu, MD, MPH
Professor of Medicine, Johns Hopkins University School of Medicine
Professor of Health Policy and Management, Johns Hopkins Bloomberg School of Public Health

 

 

¹ Wu AW, Cavanaugh TA, McPhee SJ, Lo B, Micco GP. To tell the truth: ethical and practical issues in disclosing medical mistakes to patients. J Gen Intern Med. 1997;12:770-775.
² Lamb RM, Studdert DM, Bohmer RMJ, Berwick DM, Brennan TA. Hospital disclosure practices: results of a national survey. Health Aff. 2003;22:73-83.
³ Gallagher TH, Waterman AD, Ebers AG, Fraser VJ, Levinson W. Patients’ and physicians’ attitudes regarding the disclosure of medical errors. JAMA. 2003;289:1001-1007.
⁴ Mazor KM, Simon SR, Yood RA, et al. Health plan members’ views about disclosure of medical errors. Ann Intern Med. 2004;140:409-418.
⁵ Vincent C, Young M, Phillips A. Why do people sue doctors? A study of patients and relatives taking legal action. Lancet. 1994;343:1609-1613.
⁶ Kraman SS, Hamm G. Risk management: extreme honesty may be the best policy. Ann Intern Med. 1999;131:963-967.
⁷ Kachalia A, Shojania KG, Hofer TP, Piotrowski M, Saint S. Does full disclosure of medical errors affect malpractice liability? The jury is still out. Jt Comm J Qual Saf. 2003;29:503-511.
⁸ Kraman SS. A risk management program based on full disclosure and trust: does everyone win? Compr Ther. 2001;27:253-257.
⁹ Zimmerman R. Doctors’ new tool for fighting lawsuits: saying ‘I’m sorry.’ The Wall Street Journal. May 18, 2004:A1.
¹⁰ Removing Insult from Injury: Disclosing Adverse Events. Baltimore, MD: Johns Hopkins Bloomberg School of Public Health; 2005. Available at: http://www.jhsph.edu/removinginsultfrominjury. Accessed January 10, 2006.

 

 

 

10....Sorry Works! website

Dr. Lucian Leape of the Harvard Medical School on Apology

http://www.sorryworks.net/article25.phtml

 

Dr. Lucian Leape, M.D is nationally and internationally renowned patient safety expert from the Harvard Medical School. Dr. Leape was one of the founders of the National Patient Safety Foundation (NPSF). ((Which was supported in large part by the AMA....))  A recent NPSF newsletter featured a powerful piece from Dr. Leape entitled, “Understanding the Power of Apology: How Saying “I’m Sorry” Helps Heal Patients and Caregivers.”

Dr. Leape makes the case for full-disclosure and apology after medical errors in his article. The most important part of the article is at the end where Dr. Leape counsels his colleagues that if they still get sued after a disclosure event the apology and disclosure will play to their advantage – not disadvantage – in the courtroom.

To see the article, visit this link: http://www.npsf.org/download/Focus2005Vol8No4.pdf

 

 

 

11....Sorry Works! Website

The Facts on the University Michigan’s Apology/Disclosure Program

http://www.sorryworks.net/article27.phtml

 

There’s lots of interest and questions about the University of Michigan’s successful disclosure and apology program. The March/April 2006 edition of The Physician Executive has an important two-page guest column from Rick Boothman, Chief Risk Officer for the University of Michigan Health System.

To see the article, visit this pdf link and look at pages 2 and 4.
 

 

 

 

12....Sorry Works! website

SORRY WORKS! INTERVIEW WITH FORMER HOSPITAL DEFENSE ATTORNEY

http://www.sorryworks.net/article17.phtml

 

We are pleased to share an important and compelling interview Jane Ruddell, a former hospital defense attorney. Please share this important interview with friends and colleagues by forwarding this free newsletter.

What makes Jane's story and this interview so important and compelling is her instant credibility with healthcare and insurance professionals. She has spent the better part of her legal career defending hospitals and insurers from lawsuits. Like many defense attorneys, Jane initially believed the best way to thwart a lawsuit was to limit and even break off communication with patients and families after bad outcomes. But her feelings have changed.

Ms. Ruddell began her health law career in 1984 as the first General Counsel for the Lankenau Hospital in Wynnewood, Pennsylvania. She capped her 20 year in-house counsel career with 8 years of service as Senior Vice President and General Counsel of the Jefferson Health System, the largest system of health care providers in the greater Philadelphia region.

Jane currently owns a consulting company - Healthcare Resolutions - and she advices and instructs healthcare and insurance professionals on the importance of full-disclosure and Sorry Works!

Below are questions we asked Ms. Ruddell and her unedited responses. Again, please share this important interview with colleagues and friends by forwarding this free e-newsletter

 

SW!: Tell us briefly about your career … you've defended hospitals and doctors in medical malpractice lawsuits throughout your career, correct?

Jane Ruddell: I have for a good part of my career. I had a private practice litigation background before I became the first general counsel for a large hospital system in the Philadelphia area. While with the system I had responsibility for medical claims and litigation for a number of years before moving to a senior management position. My claims work included managing the aftermath of adverse events, coaching physicians and caregivers, working closely with outside defense counsel on trial strategy, negotiating settlements and preparing physicians, nurses and other caregivers as witnesses.

SW!: You used to advise "deny and defend" to your physician and hospital clients, correct?

Jane Ruddell: Yes, initially I did. In the aftermath of adverse events, I advised physicians to be extremely careful, giving out only controlled and coached information. And, for sure, I did not advise them to talk to families freely and openly. Rather, I invoked an old litigation motto: "What you don't say can't hurt you." Just when the patient and physicians were most in need of contact and connection, I advised our hospitals and physicians to withdraw behind a wall of silence.

SW!: What made you change your mind about deny and defend?

Jane Ruddell: Observation and experience. One incident in particular stays with me. We inexplicably lost a mother following a routine C- section in one of our hospitals. The look of utter devastation on the face of the attending OB/GYN as he told me about it spoke volumes. I realized then how important it was to recognize and address the human, not just the legal, concerns when counseling my clients. Over time, I have watched the emotional toll these situations take on physicians and nurses. They experience anxiety, sadness, guilt, remorse, fear, and self-doubt. Litigation adds anger, frustration and hostility and, often by the time of trial, full blown vilification. At some point, it just struck me that a non- communicative, dehumanizing, adversarial process was at complete odds with the mission of healing, delivering compassionate care and treating patients with dignity and respect. Coupling that with the high cost and unpredictability of litigation, I began to think about ways to reduce its emotional, financial and time-consuming costs. This led me to focus more on why patients pursue legal action in the first place and to find ways to handle adverse events differently.

SW!: Why doesn't defend and deny work and sorry does?

Jane Ruddell: Because it's human. If you are looking for vindication and victory in court, defend and deny does work – if you win. But litigation ignores the underlying reasons patients sue in the first place. Patients want information, an explanation of what happened, provider accountability and to be sure someone else doesn't have to go through what they did. Patients turn to lawyers because doctors and hospitals stop talking to them. Full disclosure, apologies and open communication pre- empt the fundamental reasons patients sue, allow for human expression of compassion and concern and create a foundation for physicians and hospitals to work with patients to address their needs. Litigation offers only money, but these other issues are often more important to patients than dollars.

SW!: Tell us about your business now and how you promote full-disclosure/SorryWorks! with your clients.

Jane Ruddell: I founded HCR because I believe that our health care industry needs better ways to prevent and resolve conflicts – of all kinds.

We talk about HCR's work in the medical liability and claims field as "Restoring the Human Connection." Our programs help organizations and individuals recognize and respond to the core human dimension inherent in every adverse outcome and prevent costly litigation. We design our early intervention programs around communication training and coaching, accepting accountability, bringing patients into the process and keeping them fully informed, listening to them, and changing policies and practices based on what we learn from them. While customizing our models for each client, these components are central to all.

One of our most exciting projects is working with the Pennsylvania Medical Society on an innovative 7 Point Mediation Initiative. Roger Mecum, the Executive Director of PMS, designed the initiative to use mediation as a way to change Pennsylvania's difficult litigation climate for physicians. We are working with PMS on education and training, creating a Mediation Kit for physicians, and starting a cutting edge pilot early intervention program. The Pilot will be led by one of the county medical societies in cooperation with the courts, the county bar association and a non-profit hospital and will be consistent with the philosophy of SorryWorks! To my knowledge, a cross- disciplinary, collaborative program like this Pilot will be the first of its kind anywhere.

HCR is pleased to be a part of the SorryWorks! Coalition. It is heartening to know that so many like-minded people are all working in many ways to improve the human experience in healthcare.

 

 

 

13....Cleveland Plain Dealer 

Doctors starting to say 'I'm sorry'
Duck, deny may not be best way to avoid suits
Monday, May 15, 2006
by Harlan Spector

http://www.sorryworks.net/media48.phtml

It turns out that never having to say you're sorry is not good for love - or medicine.

In the case of love, the divorce rate peaked after the sappy 1970 movie "Love Story" proclaimed that apology is uncalled for between sweethearts. As for medicine - where the standard response to blunders has been to duck and deny - well, you've heard about the malpractice liability crisis?

Some forward-thinkers in health care are changing the deeply entrenched policy of admitting no wrong.

With the blessings of hospital risk managers and a push from a group called the Sorry Works! Coalition, doctors are increasingly reaching out to patients and families to explain medical errors and apologize for them.

The era of full disclosure is in its infancy, but already advocates tout promising results. The University of Michigan Health System began acknowledging harmful mistakes and offering compensation to injured patients in 2001. The health system reported that the new policy saved $2.2 million a year in litigation costs. The Veterans Health Administration also has adopted a disclosure policy.

"I've observed that patients are willing to forgive," said Joseph Feltes, a Canton lawyer who represents several hospitals. "But you've got to be upfront with people."

Medical errors kill as many as 98,000 people a year in the United States, according to a groundbreaking 1999 report from the Institute of Medicine. ((Argh.....!))

Experts say medical mistakes don't trigger most malpractice suits, but rather anger over being spurned by caregivers after something goes wrong.

As many as 80 percent of malpractice claims arise from communication breakdowns, according to a recent article in Patient Safety and Quality Healthcare, an online publication.

Feltes tells a story of a widow who sued her late husband's doctor for malpractice and refused reasonable settlement offers. Asked by a judge why she refused to settle, the woman said she was angry that her husband's longtime physician never spoke to the family or apologized after the death.

Michele McBride of Lyndhurst said her family might not have filed suit in 2003 if a doctor had come clean after her 22-year-old sister, Shannon, bled to death following a tonsillectomy. The family lost the case at trial in Lake County Common Pleas Court.

"No one ever sat down with me or my family and said, 'This is what happened to Shannon,' " said McBride, 32, who last year formed a consumer group with another sister called Patient Safety Cleveland. "You have this doctor, this nurse who help you through your entire stay at the hospital. But if something goes wrong, you're cut off."

Advocates say full disclosure not only improves the litigation climate but also encourages better safety practices.

University Hospitals Health System has a policy that encourages full disclosure of medical errors, spokeswoman Loree Vick said. The Cleveland Clinic Health System has no formal policy but educates its physicians about the importance of being forthcoming with patients about complications or outcomes that fall short of patient expectations, spokeswoman Eileen Sheil wrote in an e-mail.

Many states wrestling with tort reform have passed laws that shield doctors from legal liability for apologies. Ohio passed such a measure in 2004. But state law does not protect a doctor's admission of error, which some say is a stumbling block to full disclosure.

Dr. Lloyd Jacobs, president of the Medical University of Ohio in Toledo, told the Ohio Medical Malpractice Commission in 2004 that the "punishing" atmosphere of the state legal system made openness difficult to achieve.

Ohio's insurance director, Ann Womer Benjamin, who chaired the commission, said in an interview that doctors are concerned about potential liability being attributed to them for any discussion.

"We have a state where the litigation system is strong; trial lawyers are a strong voice and do not want to impede a person's ability to go to court and file a claim," she said.

Ultimately, though, the acceptance of open disclosure may rest more with doctors than lawyers and legislators. It starts with medical schools, which are traditionally weak on teaching communication skills, Jacobs said.

Changing the duck-and-deny culture may take decades, he said.

"Those people over 45 years old are skeptical," Jacobs said. "Those under 35 years of age are enthusiastic."

For more information, visit the Sorry Works! Coalition at www.sorryworks.net and Patient Safety Cleveland at www.patientsafetycle.bravehost.com

To reach this Plain Dealer Reporter:

hspector@plaind.com, 216-999-4543

 

 

14.....Allentown Morning Call

Sorry Works injects decency into malpractice debate
April 20, 2006
by Margie Peterson

http://www.sorryworks.net/media47.phtml

One of the sad things about the medical malpractice crisis is that it has stifled the instinct toward decency.

From the time we can talk, people are taught that when we do something that hurts someone we should apologize.

But for years doctors, on advice from lawyers and insurers, were too often discouraged from apologizing when they made a medical error for fear it could be used as an admission of guilt if they were sued.

That's bad advice, according to Doug Wojcieszak, spokesman for Sorry Works, an Illinois-based coalition that encourages the medical community to adopt full-disclosure and apology policies.

An apology and an explanation would have gone a long way when Wojcieszak's brother died after a series of medical mistakes, he told me in a phone interview. Instead, when his father approached the hospital staff for an explanation and some sense of how the doctors planned to make sure it didn't happen to others, the staff told him their lawyers instructed them not to talk. Wojcieszak said his family sued and eventually recovered a settlement.

A better way can be found in the University of Michigan Health System, which dramatically cut the number of pending lawsuits against its hospitals after adopting a full-disclosure policy in 2002. It also reduced the costs of defending against suits from an average of $65,000 per case to $35,000 per case and cut the time it took to resolve cases from three years to about a year.

Under the policy, a hospital investigates suspected errors, and sits down with the patient and the patient's lawyer to review what happened. If the staff was found to have erred, they apologize and offer a settlement. If the treatment was shown to have been justified, the staff meets with the patient to explain why.

Should the patient decide to sue anyway, the hospital defends against the litigation. It's just as important that hospitals stand up for doctors and don't cave in and settle unwarranted lawsuits, Wojcieszak said.

A survey of trial lawyers in Michigan found that more are taking a pass on marginal medical malpractice cases because of the Health System's reputation for fairness, he said. ''Because if University of Michigan is saying, 'We didn't make a mistake,' they probably didn't,'' he said.

Such hospitals are catching up to Department of Veterans Affairs hospitals, which pioneered full-disclosure policies in the 1980s, said Dr. Jim Bagian, chief of patient safety for the VA. ''Most of the time people sue, they don't sue to collect damages,'' Bagian said. ''They sue because they're mad. They're mad about how they were treated after the injury. People want you to admit there was a problem and [want to know] what are you going to do to make sure that it doesn't happen to someone else.''

That last part is especially important, said health care consumer advocate Charles Inlander of Fogelsville, who is on the board of Sorry Works.

"This is really about making sure when errors occur, they're fixed and they're acknowledged," Inlander said.

On that he gets no argument from Dr. Ray Singer, a local thoracic surgeon and president of the Pennsylvania Association for Thoracic Surgery.

Pennsylvania already has a law that requires hospitals to notify patients within seven days if they made a serious error in their care, Singer noted. But patients don't generally sue doctors they like and those who have been upfront with them, he said. ''The fact that you've been so open and honest has probably decreased your risk of being sued in the first place,'' Singer said.

By appealing to all sides' better instincts, the Sorry Works approach undercuts the rhetoric about blood-sucking lawyers and quack doctors that usually accompanies the medical malpractice debate.

 

 

 

15....Patient Safety and Quality Healthcare; www.psqh.com

Finally, Patient Safety Advocates Can Feel Good About Tort Reform
By Doug Wojcieszak; Susan E. Sheridan, MIM, MBA; Martin J. Hatlie, JD
January/February 2006

http://www.sorryworks.net/media45.phtml

 

In 2005, Illinois became the first state to adopt an innovative disclosure program known as Sorry Works! Incorporated into a larger medical liability reform bill (Ill. Gen. Ass. Pub. Act 094-0677, 2005). Sorry Works! is a pilot project that supports provider organizations that agree to implement and study the impact of full disclosure of medical errors. It also provides economic and regulatory protection in the unlikely event that their disclosure activities increase liability exposure. No constitutional rights are abrogated; no plaintiff or defendant is denied access to the courts. Sorry Works! is a true middle-ground solution that incentivizes behavior that an increasing body of research strongly indicates will benefit consumers, healthcare providers, and their liability insurers alike. Innovative plaintiff and defense lawyers have also expressed support. In short, the Sorry Works! approach is creating exciting new opportunities for partnerships among people and organizations that, regardless of their position on tort reform, support systems-based care and the future of the physician-patient relationship.

Within weeks after Illinois enactment, the Sorry Works! program was integrated into federal legislation now known as the National Medical Error Disclosure and Compensation (MEDiC) Act (S. 1784). Introduced by Senators Hilary Rodham Clinton and Barack Obama in September 2005, the bill will:

• Provide grants to implement full-disclosure MEDiC programs and immunity for full disclosure — a portion of the grant funds are dedicated to covering any added liability exposure incurred by providers who participate.

• Establish, in consultation with other organizations, a National Patient Safety Database to collect and analyze data generated by MEDiC pilot programs.

• Establish an Office of Patient Safety and Health Care Quality within the U.S. Department of Health and Human Services to administer and study the MEDiC program.

Request for Support

Each of the authors of this column has substantial experience in the tort reform movement. While we identify primarily as consumer advocates for improved patient safety, we acknowledge the concerns that doctors, nurses, healthcare organization executives, and others have with litigation. We are aware that lawsuits sometimes produce unfair or seemingly irrational outcomes for defendants, just as they sometimes do for patients and their families.

Macroscopically, we are very troubled about the role fear of litigation plays in undermining both patient safety and the physician-patient relationship. It is fundamental that reducing patient harm depends on robust information-sharing about risk and that the physician-patient relationship must be grounded in mutual trust. Fear of malpractice litigation undermines both of these highly desirable goals. Accordingly, we strongly support incentivizing full disclosure through supportive, economically effective nationwide policy. We ask for your help to generate additional sponsors for S. 1784, both Republican and Democrat, and call for hearings.

Why S. 1784? Why Now?

As an issue, disclosure is politically ripe. Organized medicine — the American Medical Association, among others — has led in developing the ethical dimension of the issue (AMA, 1994; Sweet & Bernat, 1997; Brazeau, 1999). In addition, a growing body of research suggests that disclosure is highly desired by patients and families who have experienced adverse treatment outcomes and discourages lawsuits from being filed when it is done (Hickson, 1992; Vincent, et al., 1994; Wu, 1999; Gallaher, et al., 2003). The experience of prominent healthcare systems that do disclosure, such as the Veterans Health Administration and University of Michigan Health System, has been positive (Kraman & Hamm, 1999). Liability insurers who have acted on this research, taught disclosure skills, and either incentivized or implemented disclosure programs also have been very successful. Although some insurance company data is unpublished for proprietary reasons, these organizations increasingly report high rates of satisfaction among healthcare professionals and consumers, more liability claims that are settled early or likely avoided altogether, and reduced overall liability costs.

Moreover, the impact of disclosure on the physician-patient relationship is profound. Emotionally fraught as these conversations often are, they are crucial to healing both the professionals involved and the families impacted. As such, they are the surest way to regenerate trust after tragedy.

As a patient safety improvement strategy, it is notable that disclosure to patients is an aspect of system transparency. As such, it can be a culture-carrier. Honest conversations after an adverse outcome provide the opportunity to increase awareness among consumers about inherent risk in healthcare and the importance of sharing lessons learned. By infusing honesty in medicine, full disclosure also dissipates one of the primary obstacles to error reporting, i.e. fear that the patient or family will find out about what happened. Hence, incentivizing and supporting full disclosure is likely to increase reporting of adverse outcomes and lessons learned to the Joint Commission on Accreditation of Healthcare Organizations' (JCAHO) sentinel event reporting program, the new federally protected Patient Safety Organizations, and other voluntary reporting programs.

How Do We Start?

To expedite change, the data and experience with disclosure summarized above needs to be amplified in the public and policymaking arena. Despite the increasingly evidence-based merits of disclosure and well-respected disclosure champions in the healthcare sector, the fear barrier is deeply entrenched in medical and legal culture. Ethical exhortations, white papers, legislation protecting apologies from being used as admissions of fault, and standards enforced by JCAHO all have had limited affect at the sharp end. Recent survey data suggests that only about 55% of physicians fully disclose treatment failures to patients or families (Lamb, et al., 2003).

What is needed is a new coalition of leaders with the courage, perspective, and collective voice to dispel the current attitudes held about disclosure, transforming them into a win/win future. These leaders already are beginning to emerge from the physician and consumer communities, as well as among liability insurers, the hospital industry, defense counsel, and the plaintiff's bar, as part of The Sorry Works! Coalition. The resonance among these diverse stakeholders about the benefits of disclosure testifies to both the ethical concerns and economic forces that are aligning.

We encourage doctors, healthcare organizations, insurance companies, bar associations, lawyers, patient advocates, and concerned citizens to sign and circulate our petition to show support for the Sorry Works! legislation, S. 1784. (The petition is available at www.sorryworks.net/petition.phtml.) The petition drive is not only a chance to send a strong message to Congress, it's also a great way to partner in achieving a middle ground, systems-based solution that will benefit every person and every organization that cares about patient safety and patient-provider trust.

 

Doug Wojcieszak is a public relations and public affairs consultant and the founder of The Sorry Works! Coalition, a nationwide group of doctors, patient advocates, lawyers, and insurers that promotes full-disclosure as a middle ground solution to the medical malpractice crisis. He may be contacted at doug@sorryworks.net.

Susan Sheridan is president and co-founder of Consumers Advancing Patient Safety (CAPS), a non-profit organization dedicated to fostering the role of consumer as proactive partner. She also leads the World Health Organization's (WHO) Patients for Patient Safety Initiative. Sheridan is a member of PSQH's Editorial Advisory Board and may be contacted at ssheridan@patientsafety.org.

Martin Hatlie is president of Partnership for Patient Safety (p4ps), a patient-centered initiative dedicated to advancing the reliability of healthcare systems worldwide. He co-founded CAPS and serves as an officer on its board. He also serves on the Sentinel Event Advisory Group of the Joint Commission on Accreditation of Healthcare Organizations, the Steering Committee of the WHO Patients for Patient Safety program, and the PSQH Editorial Advisory Board. He may be contacted at mhatlie@p4ps.org.

References

American College of Physician. (1998). Ethics manual: fourth edition. Annals of Internal Medicine, 128, 576-594.
American Medical Association Council on Ethical and Judicial Affairs. (1994). Code of Medical Ethics, Current Opinions, E-8.12 Patient information.
Brazeau, C. (1999). Disclosing the truth about a medical error, American Family Physician, 60, 1013-1014.
Gallagher, T. H., Waterman, A. D., Ebers, A. G., Frasier, V. J., & Levinson, W. (2003). Patients and physicians attitudes regarding the disclosure of medical errors, Journal of the American Medical Associaition, 289(8), 1001-1007.
Hickson, G. B. (1992). Factors that prompted families to file medical malpractice claims following perinatal injuries. Journal of the American Medical Association, 267:10, 1359-1363.
Ill. Gen. Ass., An act concerning insurance, Pub. Act 094-0677, 2005.
Kraman, S. S., & Hamm, G. (1999). Risk management: extreme honesty may be the best policy. Annals of Internal Medicine, 131, 963-967.
Lamb, R. M., Studdert, D. M., Bohmer, R. M., Berwick, D. M., & Brennan, T. A. (2003). Hospital disclosure practices: Results of a national survey. Health Affairs (Millwood), 22(2), 73-83.

 

 

 

16.....Drug Topics - Health-System Edition

Federal bill would promote apology after medical errors
By Fred Gebhart
November 21, 2005

http://www.sorryworks.net/media43.phtml

 

“Children's has seen nearly a 50% drop in malpractice lawsuits since it began the full disclosure program.”

Supporters of the notion that apologies are better than malpractice lawsuits got a boost in late September. Sens. Hillary Rodham Clinton (D, N.Y.) and Barack Obama (D, Ill.) introduced the National Medical Error Disclosure and Compensation (MEDiC) Act to encourage hospitals to apologize after medical errors and negotiate fair compensation.

"Patients and physicians are paying the price for a healthcare system that discourages the communication needed to find and correct the conditions that lead to medical errors," Clinton said in a statement introducing the bill. "We need to do everything we can to put patient safety first. I am introducing legislation that will provide incentives to create a culture of safety that will reduce errors and lower malpractice costs."

It's a familiar concept to Christine Koentopp, director of pharmacy at Children's Hospitals and Clinics in Minneapolis. Children's implemented its own OPS (pronounced "oops") program following a fatal medication error several years ago.

When pharmacists, nurses, physicians, and other hospital workers spot an error or a situation that could contribute to an error, they must report it to the Office of Patient Safety. "When we identify a medical error, even if it did not harm the patient, we talk with the parents," Koentopp said. "It is important to talk with them up front. We would do this even if it did not impact on lawsuits. Apologizing when something goes wrong is the right thing to do."

Koentopp has seen both sides of medical errors. One of her children was the victim of a medical error several years ago and recovered. She was also involved when a nurse mistakenly injected an oral drug formulation into a patient's intravenous line. The patient was not harmed, but the parents were told of the error anyway.

"What I wanted to hear as a parent is what every parent wants to hear," Koentopp said. "I wanted to hear what happened and what was being done to make sure it didn't happen to somebody else. The worst thing you can do is try to cover it up. That's what brings on lawsuits."
Children's has seen nearly a 50% drop in malpractice lawsuits since it began the full disclosure program.

"There is pretty good evidence that a healthcare organization doing the right thing and apologizing is extremely beneficial," said Kasey Thompson, director of ASHP's Center on Patient Safety. "An apology is a very powerful message for patients and their families to hear."

MEDiC would create a voluntary federal program to help hospitals revamp their institutional response to medical errors. Instead of stonewalling, hospitals would be encouraged to apologize for errors, compensate patients for any harm, and institute safety programs to reduce future errors. The bill would also create a national database of medical errors and an Office of Patient Safety and Health Care Quality within the Department of Health & Human Services.

MEDiC mimics policy changes advocated by the Sorry Works! Coalition. ((I was actually a bit disappointed in the flurry of media coverage of this bill to NOT see Doug and Sorry Works! credited with the concept and the program.....)) Founded by public relations expert Doug Wojcieszak, who lost a brother to a medical error, the coalition is pushing a protocol developed by Steve Kraman, M.D., professor of pulmonary and critical care medicine at the University of Kentucky and former chief of staff at the Lexington, Ky., VA Medical Center.

After the VA hospital lost a pair of high-profile medical malpractice suits in the 1980s, Kraman and VA attorney Ginny Hamm developed a new approach. All deaths and unanticipated outcomes were reviewed internally. If an error or mistake in treatment was found, the patient and/or the patient's family would be informed and encouraged to retain an attorney.

As soon as possible, hospital, patient, and attorney would meet. The hospital would offer an apology for the event, answer any questions, and offer a monetary settlement. If no error was found, the hospital used the same communication model to talk with the patient and attorney, answer questions, provide medical records, and try to dispel any fears or doubts.

During the first 13 years of the program, only three medical malpractice cases went to trial. In 2000, Lexington's mean settlement was $36,000 compared with the national VA mean pretrial settlement of $98,000.

"The No. 1 reason people sue is anger, not the error itself," Wojcieszak explained. "Doctors and their lawyers make it worse by refusing to answer honest questions, even when the doctor did nothing wrong. That is a warped risk management strategy. We're just trying to get people to use a little common sense." 

 

 

17....Long island Business News

It’s OK to apologize
By Reni Gertner
Friday, January 6, 2006

 

Say you’re sorry.

Apparently, the art of apologizing is taking hold in the legal world, with many risk managers, lawyers, physicians, public relations specialists and hospital administrators arguing that heartfelt apologies are reducing medical malpractice litigation – and minimizing recoveries even when lawsuits do arise.

“Doctors are told to run away after bad outcomes, and that’s why we have so much medical malpractice litigation,” said Doug Wojcieszak, who founded Sorry Works!, an Illinois-based coalition to promote disclosure and apology policies at hospitals.

Robert M. Higgins, a medical malpractice attorney in Boston added that many of his clients say they wouldn’t have come if “they just accepted responsibility or acknowledged the mistake.”

This is a “hot issue,” said Lancaster, Pa. attorney Jim Saxton, who represents medical professionals and hospitals and has written books about proactive risk management.

While some apology proponents advocate complete disclosure, many attorneys suggest that health care professionals who want to apologize be careful about how much they say.

Ralph C. Martin II, who practices at Bingham McCutchen in Boston, said, “There is a distinction between admitting liability or that you’ve done something wrong, and something short of that which conveys empathy for someone else’s human condition.”

And it’s not just whether someone says he is sorry; it’s also how he says it and whether he means it that makes a difference.

Risk managers generally advocate open disclosure of errors. In the medical arena, this means admitting someone made a mistake, explaining why it happened and determining a reasonable amount of compensation.

If a physician or other health care professional made a mistake, “every patient is entitled to an open and honest disclosure of facts,” said Rick Boothman, chief risk officer for the University of Michigan Health System, which has an apology and disclosure policy. “Some things are clear mistakes, while other things are just bad outcomes despite our best efforts. Either way, we get them the facts.”

But lawyers argue that whether a physician, nurse or health care professional should apologize after a bad outcome – and how much they should say – should be determined on a case-by-case basis.

In general, “Deciding what you want to demonstrate between empathy and responsibility depends on what your knowledge of the circumstances is, what your perceived liability is and what message you want to send to a number of internal and external constituencies,” Martin said.

Saxton said that doctors need to be careful, because apologies could be misinterpreted as an admission of error.

In addition to malpractice claims, attorneys advising doctors should remember that a poorly stated apology could lead to licensing complaints – which can sometimes be more damaging to the client than a medical malpractice claim.  ((In Pennsylvania, every filed case must be self-reported to the medical licensing board and results in an investigation - the VAST MAJORITY of these are ultimately dismissed....))

 

 

18....American College of Physician Executives

Forgiveness: Rx for Safety

Barry Silbaugh MD
bsilbaugh@swcp.com

President, American College of Physician Executives

 

Forgiveness. Is there anything more difficult to do than ask for forgiveness? Is there anything more powerful to enable a healing process to begin than asking for forgiveness? Like many physicians, I have struggled with my imperfections in a world where perfection is expected – and imperfection is punished. Once we come to acknowledge the Alexander Pope quote (and the title of the first Institute of Medicine Report in 1999), “To Err is Human”, the next step is to remember that he also noted, “To Forgive, Divine”¹.

Take a journey with me to the foundation of improvement in health care: forgiveness. It is safe to talk about what organizational change needs to occur to spur improvement in the high risk, high consequence environment of health care. It is much harder to talk about individual changes among health care professionals (clinicians and managers) that might lead to safer and more professionally satisfying roles in health care. This commentary will explore both types of changes, because organizations are fundamentally about people – their behaviors, beliefs, hopes, and conflicts.

In peeling the onion of health care dynamics, the layers that come off before forgiveness include high error rates, unanticipated adverse outcomes, compassion, high liability costs, service problems, and a failure to make patients and families the center of the health care universe. Before outlining the forgiveness connection, let me share a story.

At the National Patient Safety Foundation annual meeting last year, I chose to attend a small breakout session on “The consumer perspective of safety”. During that session, as a nationally known patient safety advocate generated group discussion about her experience in losing her mother more than a decade earlier, one of the audience members had a profound comment. He is a well known figure in the health care industry. His wife was the victim of medical error several years ago that left her brain injured and in a long term care facility. His life has been forever altered by this tragedy. This is what he said:

“People want to forgive, but we (health care professionals) don’t make it easy for them to do that.”

He and others in that session spoke about the silence that they encountered when trying to learn what happened. Wanting to prevent someone else’s loved one from a similar fate, they described the frustration and anger that arise when no one talks with them. Worse yet, many related the unwanted and unpleasant experience of having to speak through attorneys in a highly adversarial situation.

After thinking about the importance of allowing forgiveness to occur in these tragic, unanticipated, and unintentional situations, I began to realize the power of forgiveness in my own life as a physician – and how difficult it is for physicians to forgive ourselves in these situations. (It is even difficult to write about it – I want to make it less personal by using the term “themselves” instead of “ourselves”, but have resisted the temptation.)

Organizational Reasons for Forgiveness

The reasons for health care organizations to focus on allowing victims of medical error to forgive are numerous. First and foremost, it is the right thing to do. Medical ethics teaches that Respect for Persons includes telling the truth, and Beneficence calls for acting with charity and kindness. Telling the truth, apologizing, and expressing remorse uphold the time-honored principles of medical ethics.

Second, if health care organizations are serious about their missions of healing, it is impossible to ignore the healing that must occur after a tragedy if all participants (including health care professionals) are to regain physical and emotional health. Victims tell us consistently that the anger and vengeful feelings that come when truth, apology and remorse are missing is an unhealthy situation. We know from our experiences as physicians that the angry and vengeful heart is an unhealthy heart. The Dalai Lama, in his book “The Wisdom of Forgiveness”, says:

“But revenge…..this creates more unhappiness. So think wider perspective: revenge no good, so forgive. Forgiveness does not mean you just forget about the past. No, you remember the past. Should be aware that these past sufferings happened because of narrow mindedness on both sides. So now, time passed. We feel more wise, more developed. I think that’s the only way.”²

Sister Diane Traffas, a dear friend and former colleague, wrote this about saying “I’m sorry”:

Christ is our model for how we are to behave when confronted with vulnerability. Jesus always illustrated trust by offering hope, courage, and a caring presence to others that said, “I am with you.” We who say we want to be His hands and ears and eyes for the healing profession betray our calling if we do any less.”³

Third, a growing body of evidence suggests that liability costs of health systems can be reduced by full disclosure and apology. The early experience of the Lexington, KY Veterans Hospital outlining reduction in claim costs⁴, and more recent reports from the University of Michigan Health Systems of 50% reductions in claims and more than 50% reduction in attorneys fees are encouraging signs of the power of apology.⁵

Personal Reasons for Forgiveness

But now it’s time to get personal. Why should an individual, particularly a physician, make him/herself vulnerable to a brutal legal system, critical colleagues, or angry patients by asking forgiveness for a mistake? Physicians’ personality characteristics have been studied for years by several authors. Some of the findings make it especially difficult for physicians to acknowledge error, and to express responsibility. For example, physicians typically are very sensitive to criticism, are perfectionistic and compulsive, and often have low self esteem⁶. Many are “alpha males”, who tend to be uncomfortable showing vulnerability, and take high performance for granted⁷.

With this background then, it will be difficult – but not impossible – to change patterns. Based on my own personal experience as a physician – and more importantly as a human being with all my wonderful flaws and imperfections that come with that designation – here is how I see forgiveness applying to each one of us as health care professionals.

1. Think of yourself as a human being first, a physician second. We are no different in our ability to make mistakes than other humans. Forgive yourself for making unintentional mistakes because you are not perfect – and never will be. If necessary, forgive yourself for being human. Get off that pedestal that has been built (sometimes with our own sweat) for physicians.

2. Realize that errors are not usually your fault alone. It generally takes a series of circumstances lining up in just the right way for a catastrophe to occur- the “Swiss Cheese” model of error⁸. Don’t personalize the error – look for what can be fixed in the system that allowed the error to occur.

3. Understand that admitting error, and apologizing for it, is a characteristic of great people. It takes strength of character to acknowledge responsibility, and to show compassion for victims of medical misadventure.

4. Trying to keep quiet about our accountability will affect our own health because we know our Hippocratic instinct is to tell the truth. Asking forgiveness for our humanness, and allowing patients or families to forgive us, can begin the healing process for ourselves – as well as for our patients.

5. If we acknowledge our human frailties as physicians, then we should be able to realize that we can create work processes that include communication techniques with other human beings to minimize the opportunity for human error. For example, we can learn from aviation, from deck hands on aircraft carriers, from companies outside of health care that produce products or services with few defects how to build safety into our work. In my case, I learn from my oldest son, a young pilot who is willing to quit his job if his concerns about flight safety are not addressed by his superiors. He has helped me understand the communication techniques that allow dangerous situations to get handled without challenging someone’s competence, or resulting in punitive consequences for the individual raising the concern. Another source of ideas for health care is Toyota, specifically the Toyota Production System, which stresses minimization of errors, and recognizes the creativity and good intentions of the people closest to the problem. Other industries or organizations may be of more interest to you. What is important is that we recognize the vulnerability of our health care system to error, and begin to search for solutions.

6. Finally, I believe it is possible for us to recapture the excitement and promise of a career in medicine by becoming leaders for patient safety improvements in our organizations. We are lifelong learners. The body of knowledge on safety is huge, and just now being explored in health care. We have a sacred responsibility as healers, and as advocates for our patients, to do nothing less on their behalf.

 

¹ Alexander Pope. Essay on Criticism. 1711.
² His Holiness the Dalai Lama and Victor Chan. The Wisdom of Forgiveness: Intimate Conversations and Journeys. p. 109.
³ Sr. Diane Traffas, personal communication, June 2005.
⁴ Kraman S, Hamm G. Annals of Internal Medicine, 21 Dec. 1999, pp. 963-967.
⁵ Tanner L. “Doctors Eye Apologies for Medical Mistakes.” AP Medical Writer, Nov. 6, 2004.
⁶ Linney B. American College of Physician Executives, from presentation in June 2004.
⁷ Erlandson E. “Coaching the Alpha Male”, Harvard Business Review. May 2004.
⁸ Reason J. Managing the Risks of Organizational Accidents, p. 9.

 

 

 

19....SorryWorks! Website

SORRY WORKS! INTERVIEW WITH DR. AARON LAZARE, M.D.

 

The Sorry Works! Coalition is pleased to provide our readers with an un-edited interview with Dr. Aaron Lazare, M.D, Chancellor and Dean of the Massachusetts Medical School, and author of the book, “On Apology.” Dr. Lazare’s book is available at all major book stores and on-line. Also, contact information for his publisher is available under the Favorite Books section of this website. We hope you find this interview informative and enjoyable

 

SW! Tell us in your own words why “On Apology” is an important book.

Dr. Lazare: An apology is one of the most important interchanges between individuals, groups, and nations. It is a communication that many of us long to receive from others and yet struggle to offer.

This book is important for several reasons. (1) It is one of just a few books on the subject of apology. (2) More than a “how to” book, On Apology attempts to understand the psychology of apology. (3) The book is organized into chapters that have relevance to every reader: why apologies are growing in importance, why apologies heal, the structure of successful apologies, the timing of apologies, why apologies are often delayed, motives to apologize, why people avoid apologizing, and why many apologies can be understood as negotiations between two parties. This organization and analysis clarifies why apologies succeed or fail. (4) The meaning and analysis of apologies are illustrated by numerous apologies from current affairs (e.g. recent presidents), history (e.g. Lincoln’s Second Inaugural Address), literature (e.g. Homer’s Iliad), and personal stories of the author, his friends and acquaintances. (5) The book explains why forgiveness is sometimes offered only in response to an apology. (6) The book’s personal and intimate style, enhanced by numerous stories, helps to engage the reader.

SW! You are the Chancellor and Dean of the University of Massachusetts Medical School. How has this book been received by your school?

Dr. Lazare: The book has been well received by students (medical students, graduate nursing students, biologic science PhD students), their faculty, and the parents of students. Its relevance goes beyond patient care and extends to relationships between peers, friends and family.

Having the chancellor/dean as the author of the book is a statement that civility is an important value of the institution. Other related values that the book advocates in stressing the importance of apologies are honesty, generosity, commitment and courage.

Most people advocate such values but are silent about them. Having the leadership of an institution reinforce them through a concrete piece of work (a book) facilitates their adoption.

The parents of medical students, with whom I become acquainted, commonly become advocates of the book to family, friends and their communities.

It is gratifying that two prestigious universities in Boston (a nearby metropolis) and two equally prestigious educational institutions in Dallas have organized major speaking engagements whose main focus is On Apology.

SW! What important lessons can doctors and health care providers learn from your book?

Dr. Lazare: The most profound lesson that doctors and health care providers can learn from On Apology is that apologizing to patients and their families for medical errors is both an ethical and a psychological remedy for damage to the professional/patient relationship. The apology is an ethical statement because is right to admit to a mistake and express regret and remorse in a relationship in which the patient puts his/her life in the caregiver’s hands. The apology further heals the care giver/ patient relationship by the very nature of the acknowledgement, explanation, expression of remorse and offer of reparation. As a result of the apology, the relationship is usually preserved and often enhanced. This outcome is a result of the restoration of the dignity of the patient, the offering of power to the previously powerless patient, the validation to the patient that something went wrong, and restoration of or compensation for some or all of the damage for the harm that was done.

Doctors and health care providers can also learn how apologies resolve some of the offenses that naturally occur between health care professionals at work as well as within families.

SW! Your book has been well received in many different circles (legal, religious, business, etc.) Why are so many different groups of people hungry to learn about apology and forgiveness?

Dr. Lazare: The hunger for apologies applies to most individuals and groups who want to survive and thrive in the global village in which we all live. Certain groups, nevertheless, have a special interest in the apology process.

Religious groups are interested in apologies because of its similarities to repentance. Business groups are interested as they advocate teamwork in the company and customer satisfaction. Law schools are interested in apology as an important part of alternative dispute resolution. Hospice care organizations are interested since clients who are near death often want to apologize before they die. Health care providers are interested in apology in the context of medical mistakes. Conflict resolution groups both in business as well as in international peace seeking use apology as one of their tools. Finally, high schools and colleges use apology to teach civility and conflict resolution as character building. Many of the above groups are beginning to recognize the importance of apology and its application to their work. Equally important, they learn that the skill of apologizing can be taught and learned.

 

 

20....Sorry Works! Website

Stories where Sorry Worked

 

"I agree that sorry works. Nineteen years ago my daughter's pediatrician misdiagnosed her for a medical condition she had for the first nine months of her life. He explained to me his mistake and even told me he could be sued for malpractice. However, all that was lost was nine months of needless sickness and sleepless nights. I genuinely liked my doctor, accepted his apology, and did not sue. Yes, I think the program works." - Eva, Wisconsin

 

"I would like to comment on a personal experience that lends credence to your argument. Ten years ago, I hurt my Achilles tendon playing football. I had my foot x-rayed at my local physician's office, and the results were negative. I was barely able to walk for over a week, and my ankle continued to be weak and tender for next four months. I then visited a sports medicine doctor who diagnosed a torn Achilles tendon and recommended surgery. Unfortunately, the doctor learned that the tendon was not ruptured when he operated. However, the doctor quickly informed me that his diagnosis had been in error and apologized for the unnecessary surgery. My friends and family suggested a lawsuit, but the doctor's honesty, candor, and apology impressed me. He was humble enough to admit a mistake and that is primary factor I did not entertain a lawsuit." - Preston, Louisiana

 

 

Two stories taken from the Wall Street Journal, May 18, 2004

"When a medical mishap turned Linda Kenney's routine ankle surgery into a chilling brush with death, the family quickly paid a visit to a lawyer's office. The jury, the family suspected, would likely show little mercy to the anesthesiologist, Frederick van Pelt, who inadvertently injected a painkilling drug in the wrong place, causing Ms. Kenny's heart to stop. To restart it, doctors at the Brigham and Women's hospital sliced her chest and cracked open her rib cage. Ms. Kenney's husband, Kevin, 'wanted to kill the anesthesiologist, flatten him," says the 41 year-old mother of three.

But then, Dr. Van Pelt broke with convention. Against the hospital's advice, he wrote Ms. Kenney a personal letter saying he was "deeply saddened" by her suffering. Later, over coffee at a suburban dinner, he apologized for the terrible accident.

'I found out he was a real person,' Ms. Kenney says. 'He made an effort to seek me out and say he was sorry I suffered.' Moved by the doctor's contrition, Ms. Kenney dropped her plans to sue."