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					            Sorry Works! Disclosure, Apology
            and Relationships Prevent Medical
                   Malpractice Claims
                                 August 19, 2008

    Maggie M. Finkelstein, Esquire                               Doug Wojcieszak
      Healthcare Litigation Group                             The Sorry Works! Coalition
          Health Law Group                                      doug@sorryworks.net
        mmf@stevenslee.com




CONFIDENTIAL & PRIVILEGED               STEVENS & LEE
                            Health Care Litigation and Risk Management Group
                           Maggie M. Finkelstein, Esq.
   An associate attorney with Stevens & Lee
   Concentrates her practice in health law and litigation with a
    focus on loss control and event management for physicians,
    hospitals, staff, and the long-term care communities
   Has developed risk management and loss control tools and strategies, providing
    risk reduction opportunities in the health care industry
   Has worked with physicians to develop risk reduction strategies and tools and also
    supports providers in managing patient events on a daily basis
   Has conducted research and analysis of various risk management and liability risk
    issues including the risks associated with bariatric surgery as well as radiology
   Has fashioned risk reduction tools in response to research and analysis in efforts
    to provide strategies to physicians, their practices, and hospitals to reduce liability
    risk
   With James Saxton, she has co-authored numerous publications, including a
    book, book chapters, and articles on loss control strategies and liability risk
   Former law clerk to the Honorable William W. Caldwell of the U.S. District Court
    for the Middle District of Pennsylvania
   A summa cum laude graduate of the Widener University School of Law and
    received a B.S. in Biology from the Pennsylvania State University

                                         STEVENS & LEE                                        2
                             Health Care Litigation and Risk Management Group
                              Douglas B. Wojcieszak
   Founder and Spokesperson for The Sorry Works! Coalition
   A public relations consultant who has had several personal and
    professional experiences with tort reform and medical malpractice
   In 2001, Mr. Wojcieszak founded a public relations consulting firm where he also
    served as the Spokesperson and touted traditional plaintiffs/anti-tort reform
    messages such as insurance reform and increased doctor discipline
   He studied full-disclosure methods for medical errors as a way to lower malpractice
    lawsuits and liability costs and reduce medical errors
   Created a marketing term, “Sorry Works!”, to promote apologies for medical errors
    as the solution to the medical malpractice crisis – a term that attracted interest and
    support of many doctors, insurers and trial lawyers
   In 2004, Mr. Wojcieszak form The Sorry Works! Coalition which is solely dedicated
    to promoting Sorry Works! and full-disclosure methods as a middle ground solution
    to the malpractice crisis
   Teaches health care, insurance and legal professionals what patients and families
    want most after adverse events and bad outcomes
   Speaks to prominent medical, health care and insurance organizations throughout
    the United States
                                         STEVENS & LEE                                       3
                             Health Care Litigation and Risk Management Group
                                       Objectives

1.   Understand how disclosure impacts
     litigation
2.   Understand why disclosure is important in
     the new environment
3.   Appreciate the important differences
     between empathy and true apology
4.   Know how to develop disclosure policies
     and improve existing policies
5.   Turn a disclosure policy into a disclosure
     program
6.   Learn how to say "sorry" to patients and
     families after adverse medical events
7.   Learn the recent and "classic" disclosure
     success stories


                                      STEVENS & LEE                          4
                          Health Care Litigation and Risk Management Group
                               The Environment

   Psychologists/Jury consultants
    help us understand
        The “plus”
        The anger factor
        The information factor


   As they advertise...




                                     STEVENS & LEE                          5
                         Health Care Litigation and Risk Management Group
            Why is Severity Staying High?!


    Selective cases being pursued

    Consolidation of counsel

    Courtroom drama will continue1

    Complications coupled with a “plus”




1 Garrison J. “Lawyers learn to share their pain with jurors: They use a technique called
psychodrama to connect better by showing vulnerability.” LA Times 2006, Nov. 25.




                                                      STEVENS & LEE                         6
                                        Health Care Litigation and Risk Management Group
                      A Changing Environment




                                                                          Modern Healthcare,
                                                                          February 4, 2008

   Patient safety initiatives                   Benchmarking
   Best practices                               Disclosure after an adverse event

                                   STEVENS & LEE                                               7
                       Health Care Litigation and Risk Management Group
          Transparency




                               Healthcare
                               Leadership
                               Review December
                               2007

            STEVENS & LEE                          8
Health Care Litigation and Risk Management Group
 Zagat Surveying in Healthcare
Hospitals & Health
Networks, December 2007




                  STEVENS & LEE                          9
      Health Care Litigation and Risk Management Group
   Pay-for-Performance




                          www.sciencedaily.com
                          January 11, 2008




            STEVENS & LEE                          10
Health Care Litigation and Risk Management Group
                                                    Never Events
                                                                        3 additions!
                                                                              Foreign object retained after surgery
                                                                              Air embolism
                                                                              Blood incompatibility
                                                                              Pressure ulcer stages III & IV
                                                                              Falls and trauma (fracture, dislocation,
                                                                               intracranial injury, crushing injury, burn,
                                                                               electric shock)
                                                                              Catheter-associated UTI
                                                                              Vascular Catheter-Associated infection
                                                                              Surgical site infection, mediastinitis,
 Oct. 2008...Medicare will not                                                 following CABG
 pay for “preventable”                                                        Manifestations of poor glycemic control
                                                                              Surgical site infection following certain
 conditions, mistakes, and                                                     orthopedic procedures
 infections from a hospital stay2                                             Surgical site infection following
                                                                               bariatric surgery for obesity
                                                                              DVT and PE following certain
                                                                               orthopedic procedures
                                                                        And they will continue to
2 Medicare Program: Changes to the hospital inpatient
prospective payment systems and fiscal year 2008 rates. Fed              consider more!
Regist 2007;72:47379-47428.
                                                                        Encouraging states to adopt!

                                                      STEVENS & LEE                                                      11
                                         Health Care Litigation and Risk Management Group
Modern Healthcare
June 23, 2008
                                STEVENS & LEE                          12
                    Health Care Litigation and Risk Management Group
          Disclosure Can Change the Liability Equation



   $$                 $$                            $$                         $$
  Risk            Event                          Claim                    Lawsuit
Infrastructure
                 Create positive
   Baseline
                    evidence                       Build the
 assessments
                                                  foundation          Being aggressive- using
                                                                           the evidence

    Risk             Event                    Control of the               A Different
 Mitigation       Management                    Process                     Defense

                           The combination
                      POWERFUL RESULTS
                               STEVENS & LEE                                                    13
                   Health Care Litigation and Risk Management Group
The Relationship Bank Redefined




                STEVENS & LEE                          14
    Health Care Litigation and Risk Management Group
              When an Adverse Event Occurs…

   What does the doctor do…?

   What does the risk manager do…?

   What does the hospital do…?

   What does the patient do…?




                               STEVENS & LEE                          15
                   Health Care Litigation and Risk Management Group
                                           Hospitals, Consider...

      Accreditation Standards
            Joint Commission of Accreditation of Healthcare Organizations
                   Standard requires outcomes of care, treatment and services, including
                    unanticipated outcomes, are disclosed to patients or families3
                   Elements of performance include disclosure by the responsible practice or
                    designee and coordination with the facility sentinel events program




    3 RI.2.90, Joint Commission on Accreditation of Healthcare Organizations, Hospital Accreditation Standards, 2006.


                                                      STEVENS & LEE                                                     16
                                         Health Care Litigation and Risk Management Group
     How Can You Make It Happen at Your Hospital, and Get Past
                          the Barriers?

1.     Have a platform...Event management

2.     Identify your champions of disclosure

3.     Establish the buy-in

4.     Form a committee

5.     Implement a disclosure/communication policy

6.     Educate and train



                                       STEVENS & LEE                          17
                           Health Care Litigation and Risk Management Group
    Event Management – The Glue




A platform to enhance investigation and
  communication post adverse event.




                   STEVENS & LEE                          18
       Health Care Litigation and Risk Management Group
                                        Benefits


   True event management allows an organization to:

       Gain greater control of its risk, thus creating stability
       Set the stage for appropriate accelerated claims management
       Create the evidence that may be used for us…or against us!
       Aggressively defend litigation, when necessary
       Provide ongoing, continuous improvement of your risk profile
       Provide a platform for disclosure




                                     STEVENS & LEE                          19
                         Health Care Litigation and Risk Management Group
                      Event Management Process

   Coordination and collaboration among health care professionals:

       Investigation – importantly, first 24 hours
       Objective information
       Prompt with more to come
       Leave a contact number
       Having a point person
       Follow through
       Documentation
       Communication...platform for initial and on-going




                                     STEVENS & LEE                          20
                         Health Care Litigation and Risk Management Group
                       Who Are the Champions?

   Risk manager?

   Patient safety officer?

   Surgical department chair?

   Certain physicians?

   Do they form your committee?




                                    STEVENS & LEE                          21
                        Health Care Litigation and Risk Management Group
                             Establish the Buy-In

   Educate!
        The administration
        The decision – makers
        The doctors
        The staff
   To understand
        What disclosure means
        That the hospital is committed to the disclosure concept
        That it is a team endeavor
   To start – bring in a speaker
        Then, regular in-services




                                      STEVENS & LEE                          22
                          Health Care Litigation and Risk Management Group
          Setting Expectations…A Post-Adverse Event
                     Communication Policy

   So we’re all on the same page…

   What is the process?

   What is disclosed?

   Who discloses?

   What do you document?

   A guideline…



                                     STEVENS & LEE                          23
                         Health Care Litigation and Risk Management Group
                                        Training

   Disclosure is about communication

   It is not learned in medical school

   It is not easy, rather it can be extremely difficult

   Provide training for the doctors, staff
        Hands-on
        Roll playing
        Actors




                                     STEVENS & LEE                          24
                         Health Care Litigation and Risk Management Group
                     Then…When It Happens…

   Hospital backs disclosure, and the doctors

   Patients expect disclosure

   Your doctors have been educated, and trained

   The platform kicks into gear…

   Drilling down on the specifics…




                                  STEVENS & LEE                          25
                      Health Care Litigation and Risk Management Group
             When an Adverse Event Occurs...What is “It”?

   An adverse event can be
       A complication – a known risk of the procedure
       A medical error – generally, a preventable adverse outcome
       None of the above


   And adverse event is
       The whole universe of negative outcomes/care
       This is nearly 100% of our claims
            Why? Informed consent and relationship


   What do you say?
       It depends…what is it?




                                       STEVENS & LEE                          26
                           Health Care Litigation and Risk Management Group
                    How...When a Complication Occurs


   First and foremost empathize!
   Objective facts – what is known
        What happened, why
        If not yet known, say so...but follow up
   Discuss what is being done to reduce further harm
        If not clear about what caused injury, say so
   Extension of informed consent discussion
   Answer questions you know they must have




                                        STEVENS & LEE                          27
                            Health Care Litigation and Risk Management Group
                                           Empathy

   Always express empathy, and as soon as possible
        A heartfelt showing of empathy helps to make a bad situation better
         100% of the time
        Not an “apology” (more on this later)
   But “I’m sorry” in context
        Prevents patient misperceptions


         “We are so sorry. As you know, your mom
         is in the ICU now. She is being carefully
         monitored. We want to review with you
         what we are doing. Also, we want to talk
         about what we think happened and
         answer any questions you may have.”


                                        STEVENS & LEE                          28
                            Health Care Litigation and Risk Management Group
                              Informed Consent

   New!

       Use in pre-event discussions

       Appropriate procedure-specific form

       Enhance education

       Then use it in post-adverse event discussion




                                     STEVENS & LEE                          29
                         Health Care Litigation and Risk Management Group
                  How...When a Medical Error Occurs
   Investigation reveals responsibility...
        The hardest
        Takes planning, coordination, preparation
        Involve legal counsel
        Fast track claims process when applicable
   Same advice as complications...
        Empathy
        Objective, known facts
        What happened and why
        Discuss what is being done to reduce further harm
   ...and
        Accept responsibility
        If a systems error, indicate what is being done to prevent the same from
         occurring again in the future to anyone else


                                      STEVENS & LEE                                 30
                          Health Care Litigation and Risk Management Group
          What Does it Mean to Accept Responsibility?

   Empathy or “I’m sorry”
   Admission of fault
   Explanation of what happened and how it will be prevented
   The fix (compensation or other solution, as appropriate)


      “You received 3 times the dose we anticipated. We do
      not understand why, but are determined to do so. Your
      laboratory values are being closely monitored. We do
       not anticipate any harmful effects. We cannot tell you
          how sorry we are and how committed we are to
                understanding how this happened.”



                                  STEVENS & LEE                          31
                      Health Care Litigation and Risk Management Group
                      Phrases to Stay Away From!

   “I thought your mother was a good candidate for this
    surgery. Now, well...perhaps more conservative
    therapy was warranted...I don’t know...”

   “Well, of course, knowing what I do now, I would not
    have recommended...”

   “I have to tell you. The common bile duct was cut. I
    have done this surgery hundreds of times and just do
    not know how I did this.”

   I did not go to medical school to learn to hurt people...
    I am so sorry...


                                     STEVENS & LEE                          32
                         Health Care Litigation and Risk Management Group
                      When do we Communicate?



   As soon as possible after the event or occurrence

   Ensure patient safety and plan of care first

   Setting up a communication plan…here is what we know now…

   A continuum…not a once and done issue




                                     STEVENS & LEE                          33
                         Health Care Litigation and Risk Management Group
                                          Who?

   The physician
        That’s who they want to hear from!
        Must be a good communicator…part of training


   Or another healthcare provider with a significant relationship with the
    patient




                                    STEVENS & LEE                             34
                        Health Care Litigation and Risk Management Group
                 Drill Down on How...The Meeting

   Word choice
   Body language – patients watch it!
   Consider location - confidentiality
   Consider atmosphere – warm, uncluttered
   Consider patient/family needs - including special needs
   Consider the time available - uninterrupted
   Consider participants - always ensure a witness
   Collaboration with other providers, risk management
   Provide a contact for questions




                                  STEVENS & LEE                          35
                      Health Care Litigation and Risk Management Group
                                After the Meeting

   Follow through
        Further investigation if warranted
        With the patient/family


   Use as an opportunity to learn
        Clinical
        The plus




                                      STEVENS & LEE                          36
                          Health Care Litigation and Risk Management Group
    Not Just a Job for Doctors/Hospitals...It’s for Patients Too!

   First, acceptance by
    healthcare professionals

   Then, patients return to their
    doctor, first...not their lawyer!

   It is an opportunity for the
    patient and the doctor




                                     STEVENS & LEE                          37
                         Health Care Litigation and Risk Management Group
          In Your Informed Consent Form?



“In the unlikely event that one or more of the above
inherent complications may occur, my physician(s) will
take appropriate and reasonable steps to help manage
the clinical situation and be available to me and my
family to address our concerns and questions.”




                           STEVENS & LEE                          38
               Health Care Litigation and Risk Management Group
     A Newspaper Ad?




            STEVENS & LEE                          39
Health Care Litigation and Risk Management Group
        A Real Life Example…Patients Need Their Doctors and
                       Hospitals More than Ever




                                  By Doug Wojcieszak



CONFIDENTIAL & PRIVILEGED               STEVENS & LEE
                            Health Care Litigation and Risk Management Group
                              New Success Stories!




CONFIDENTIAL & PRIVILEGED               STEVENS & LEE
                            Health Care Litigation and Risk Management Group
        Tragic Medical Error at Park Nicollet Hospital…

“We are saddened to tell you that Park Nicollet has made a tragic medical
error for which we accept full responsibility. We have apologized to the
family….”

                        - Excerpt from Park Nicollet memo, March 2008




                                 STEVENS & LEE                          42
                     Health Care Litigation and Risk Management Group
        Florida Hospital Apologizes for Toddler’s Death

“To his mother, father, younger brother, and other family members, we
extend our prayers, thoughts, and deepest sympathies…We take full
responsibility for Sebastian’s death and are very, very sorry.”

- Dr. Donald Novak, Vice Chair, UF College of Medicine, Dept. of Peds,
Fall 2007




                                 STEVENS & LEE                           43
                     Health Care Litigation and Risk Management Group
Nebraska Hospital Produces Video With Family About Deadly
                         Mistake

“In the video, initiated by Methodist, the hospital’s doctors acknowledge
the mistakes that Methodist made in diagnosing the medical problem that
caused his death.”



“It was a way to memorialize Tyler, and we hope to prevent this from
happening again,” Sara Juster, VP, Nebraska Methodist Health System,
Summer 2007




                                  STEVENS & LEE                             44
                      Health Care Litigation and Risk Management Group
      Boston Hospital Apologizes for Wrong Side Surgery

“People want to trust the doctors and the hospitals they go to…and I think
people also know that we’re not infallible and that by admitting our
mistakes and demonstrating our desire to improve, it helps the public
understand that we really care about them.”

                - Paul Levy, CEO, Beth Israel Deaconess, July 2008




                                  STEVENS & LEE                              45
                      Health Care Litigation and Risk Management Group
                 “Classic” Disclosure Success Stories

   Sorry really does work!
        Lexington VA hospital/all VA hospitals
        University of Michigan
        University of Illinois Medical Center
        Stanford University and Harvard Teaching Hospitals
        Kaiser hospitals (28 hospitals)
        Minneapolis Children’s
        Catholic Healthcare West (40 hospitals)
        COPIC
        Catholic Health Initiatives
        …and more!




                                     STEVENS & LEE                          46
                         Health Care Litigation and Risk Management Group
                                 Lexington, VA

   After 7 years of program, when compared to 35 similarly situated VA
    hospitals, top quartile for claims but bottom quartile for total payments

   Mean National VA judgment: $413K

   Mean National VA settlement pre-trial: $98K

   Mean National VA settlement at trial: $248K

   Lexington’s mean payment: $36K




                                    STEVENS & LEE                               47
                        Health Care Litigation and Risk Management Group
                University of Michigan Health System

   Cut lawsuits in half back to pre-1990 levels

   Cut litigation defense bills by 2/3 or $2 million annually

   Reduced reserves from $72 million in 2001 to less than $20 million
    today

   “Lawyers who tell clients to deny and defend find a willing audience
    because doctors’ emotions rather than logic are guiding them.” Need
    to tell doctors their best defense to avoid litigation is “to make it right,
    right now”




                                    STEVENS & LEE                                  48
                        Health Care Litigation and Risk Management Group
                 University of Illinois Medical Center

   Cook County!

   40 disclosures, only one claim!

   Program to manage communications with patients/families post
    adverse event.

   Got defense counsel in-line

   “We’re not just providing full disclosure and rapid settlement, we’re
    taking each of these cases and learning from it”

   Patients/families come back for more care

                                    STEVENS & LEE                           49
                        Health Care Litigation and Risk Management Group
                      Geisinger Health System

   Taking PA disclosure one step further…

   “Physicians and other providers gradually discovered that this policy
    actually helps them”

   Geisinger has had fewer claims filed than the national average

   “Patients and families get a full explanation, a commitment from us that
    we’re going to correct the problem, and feedback after the root cause
    analysis to let them know what we’ve done”




                                   STEVENS & LEE                            50
                       Health Care Litigation and Risk Management Group
                       Catholic Health Initiatives

   “This is what we’re doing, this is why we’re doing it, and if you can’t get
    comfortable, then we’ll need to retain someone else to represent these
    facilities in litigation”

   “Our losses when somebody sues us are coming down….the
    outcomes are better”

   “Our policy and our practice is that, if we made a mistake for which we
    think we have liability, the objective is not to fight that”




                                    STEVENS & LEE                             51
                        Health Care Litigation and Risk Management Group
                  Brigham and Women’s Hospital

   “Before this policy, we were concerned about telling patients and
    families too much, now, we tend to be concerned about telling them
    too little”

   “We’ve seen a decline in lawsuits since we’ve implemented this
    policy…I think we’ve been able to resolve some cases more quickly
    because we’ve taken on the problems at the very beginning”




                                  STEVENS & LEE                          52
                      Health Care Litigation and Risk Management Group
         Hurdles to Disclosures & Questions about Disclosure




CONFIDENTIAL & PRIVILEGED               STEVENS & LEE
                            Health Care Litigation and Risk Management Group
                            Sitting Ducks?


Challenge:
“Doctors will become sitting ducks under Sorry Works! Trial
lawyers will really take advantage of this well-intentioned
program!”




                               STEVENS & LEE                          54
                   Health Care Litigation and Risk Management Group
                     Adequate Compensation?

Question:
“Who determines what is “fair” compensation to offer in disclosure, and
where does this money come from?”




                                  STEVENS & LEE                           55
                      Health Care Litigation and Risk Management Group
                            If it Doesn’t Work?

Challenge:
“What if “I’m sorry” doesn’t work and I still get sued? I’m dead in court,
right?”




                                   STEVENS & LEE                             56
                       Health Care Litigation and Risk Management Group
                    The Post Event Relationship

Question:
“Is it OK to attend a patient’s funeral? Our attorneys have told us no in
the past.”




                                  STEVENS & LEE                             57
                      Health Care Litigation and Risk Management Group
                             Compensation?

Question:
“When do we begin discussing compensation with a patient/family during
the disclosure process?”




                                 STEVENS & LEE                           58
                     Health Care Litigation and Risk Management Group
                            Once and Done?

Question/Challenge:
“I thought we did everything right…we disclosed, we apologized, we took
care of the family, and we never heard from them again. We assumed
everything was OK. Then, wham, a day before the statute would run out
we were hit with a lawsuit. What happened?!”




                                 STEVENS & LEE                            59
                     Health Care Litigation and Risk Management Group
             When Multiple Providers are Involved

Question/Challenge:
“Well, the hospital has its own insurance and some of the docs are
covered under that plan, but me and my colleagues have our own
insurance. When an error happens three or more insurance companies
might be involved. How can this work under Sorry Works?”




                                STEVENS & LEE                          60
                    Health Care Litigation and Risk Management Group
                        A Plaintiff’s Attorney?

Challenge:
“What if the patient/family
brings an attorney?
Then we brake off the
disclosure meeting,
right?”




                                   STEVENS & LEE                          61
                       Health Care Litigation and Risk Management Group
                 Crisis Communication and the Media?

   Question: Can disclosure play a role in crisis management?

       Park Nicollet, UF Shands, Beth-Israel, Methodist in Omaha

       Having a program with training is so important
            ….so your staff is ready


       Communicating with the patient/family
            …consistent message


       Communication with the media - if necessary
            …consistent message




                                        STEVENS & LEE                          62
                            Health Care Litigation and Risk Management Group
                                            Plan

   The landscape has changed and will
    continue to

   You can gain control

   Critical Success Factors
        Have an event management platform
        Have a communication/disclosure policy
        Being prepared – education and training
         for disclosure


   Good for the patient, good for you



                                     STEVENS & LEE                          63
                         Health Care Litigation and Risk Management Group
                            Questions and Answers




CONFIDENTIAL & PRIVILEGED               STEVENS & LEE
                            Health Care Litigation and Risk Management Group
                      The Sorry Works! Coalition

   Website: www.sorryworks.net

   Phone: 618-559-8168

   E-mail contact: doug@sorryworks.net

   Nation’s leading advocacy organization for disclosure and apology
    after medical errors.

   3,000+ members, 10,000+ readers of weekly e-newsletter




                                   STEVENS & LEE                          65
                       Health Care Litigation and Risk Management Group
Stevens & Lee’s 220 lawyer and non-lawyer professionals assist health care
providers and organizations meet the challenges they face in a changing and
consolidating industry. Our Health Care Department is comprised of approximately
30 professionals – including 16 attorneys whose exclusive practice is in health care
– who serve as general counsel to acute care and specialty health care
organizations, health systems, long-term care providers, managed care
organizations, integrated delivery systems, physician practices and other health
care providers and organizations.
Stevens & Lee’s Health Care Litigation and Risk Management Group provides a
variety of risk management services including disclosure training, event
management and five-star service excellence training.

        For more information, please contact Maggie M. Finkelstein, Esq.:
                                  STEVENS & LEE
                                51 South Duke Street
                              Lancaster, PA 17608-1594
                                    717-399-6636
                               mmf@stevenslee.com
CONFIDENTIAL & PRIVILEGED               STEVENS & LEE
                            Health Care Litigation and Risk Management Group

				
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