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November 3, 2008 NEWSLETTER
Doug Wojcieszak, Founder & Spokesperson
Contact phone/e-mail address: 618-559-8168; doug@sorryworks.net
THIS WEEK'S EDITION:
November 3 NEWSLETTER
Doug Wojcieszak, Founder & Spokesperson
Contact phone/e-mail address: 618-559-8168; doug@sorryworks.net
IN THIS EDITION:
- SORRY WORKS! EDITORIAL: "Regret," Not Speaking to the Media, and Clumsy Claims People
- Sorry Works! in Physician's News Digest
- Sorry Works! Webinars
- Grieving Australian Parents Just Wanted An Apology
- Sorry Works! Books for the Holidays
SORRY WORKS! EDITORIAL: "REGRET," NOT SPEAKING TO THE MEDIA, AND CLUMSY CLAIMS PEOPLE
Last week we editorialized about getting the word "regret" out of your vocabulary when it comes to disclosure and apology. If you're going to apologize - you need to use the "s word." And mean it. Don't go half-hearted or insert a weasel word such as regret in place of the Gold Standard: Sorry! It's what the patient/family wants to hear, and what providers, hospitals, and insurers need to provide in order to reduce risk and litigation. It's just that simple.
To drive home this point directly below is an important non- medical story. From time to time we provide non-medical stories about mistakes and disclosure (or lack thereof) to drive home certain points.
This week we share the story of a distraught family who learned hours before the funeral of their father, a WWII & Korean War veteran, that the funeral home mixed up the bodies and he was actually already buried! Different arena than healthcare, obviously, but many of the same issues given that people are entrusting strangers with the care of their loved ones.
Read the story below and see the "R" word to get our point. Sounds lousy. Then look how the funeral home hid behind a PR firm to do the talking when the media started calling....makes you wonder what else they're covering up? Say "bye-bye" reputation. Finally, the funeral home comped the funeral costs and all associated expenses, and also instituted system changes to make sure the same mistake didn't happen again - which is good - but a clumsy claims person mucked up the situation on the back end. Training of front-line personal dealing with grieving families is so important.
Read below and learn!
'It wasn't Dad': Funeral home mix-up leaves trauma
By Kim Bell
ST. LOUIS POST-DISPATCH
11/01/2008
BALLWIN — A widow recovering from cancer surgery was wheeled into the Schrader Funeral Home on a recent Sunday afternoon for her husband's wake.
She looked into the casket and, without hesitation, said, "That's not my Fritz."
Her husband of 52 years, Frederick M. "Fritz" Schnabel, had died of pneumonia at an Ellisville nursing home six days earlier.
The man in the casket was wearing Schnabel's signature dark-green suit and his large, wire-rimmed glasses. But he didn't have the Schnabel family nose, or Schnabel's silver-white hair.
The 15 relatives in the room for this preview, about an hour before the crowds showed up, were aghast. His widow was in tears.
"We thought we were in the wrong room, but he had Fritz's clothes on," said son-in-law Chuck Schreiber of Fort Wayne, Ind. "The confusion started right there."
What the Schnabel family had stumbled onto Sept. 28 was a funeral home mix-up.
Schrader Funeral Home, 14960 Manchester Road, had mistakenly buried the 80-year-old Schnabel three days earlier at a cemetery in St. Ann - under the name Robert J. Leonard. Leonard, 87, died the same day as Schnabel, but at a different nursing home. He too was prepared for burial by Schrader.
It took awhile to convince the funeral home of the mistake.
Before the wake, an employee came in with a makeup kit to see if doing some touchups would help.
"They tried to convince us that they can just fix it," said one of Schnabel's two daughters, Jeani Ward of Ballwin. "I said, 'No, the body is not Dad.' We had to try to convince Schrader's it wasn't Dad. That was the hardest part."
Finally, the man's shirt was unbuttoned to check for the scars from Schnabel's open-heart surgery. The man in the casket had none.
On Friday, the funeral home declined to talk to the Post-Dispatch, referring questions to the Fleishman-Hillard public relations firm. The firm said Schrader "deeply regrets the extraordinary mistake" and said it was the first of its kind in the funeral home's 140-year history.
Schrader Funeral Home also refunded the cost of both funerals and "at its own expense, provided completely new, second funerals including caskets, ministers, police escorts, floral arrangements, transportation and burial services," the firm said.
And finally, Schrader has implemented a new rule: Bodies must have identification tags before coming to the funeral home.
That step goes beyond standard practices, said Dan Callahan of Fleishman-Hillard. Schrader is "clearly taking this very seriously," Callahan said.
NO EXPLANATION
The funeral home didn't explain how the mix-up that left both families reeling occurred.
Christal Ferlisi, a niece of Leonard's, said she had doubts right away that the man she saw in his casket Sept. 25 was actually her Uncle Bob. But she didn't speak up. Leonard's wife and sister had died before him, and those attending the funeral were primarily nieces.
"I hadn't seen my uncle in over a year," said Ferlisi, of Athens, Ga. "He didn't have his glasses on, but he had on his blue suit and his Coast Guard hat, so there were things that matched."
Leonard's hair wasn't right, but she figured they put a hair tonic on it. His size didn't seem quite right, either. Ferlisi said her aunt had died six months before, and Leonard "sort of gave up" and hadn't been eating well. He lost a lot of weight.
The man in the casket "looked like somebody who had maybe put cotton in their mouth," she said. "I attributed that to he lost weight and they tried to fix it. Your mind tells you it must be him."
Ferlisi never voiced her doubts until after the burial, when she called her husband back at home. Her husband, unable to attend the funeral, is an emergency room physician who was immediately suspicious.
"I told him Uncle Bob just looks so different," she recalls. "He had heard of other families who said it had happened to them. But by this time, he'd already been buried."
At Schnabel's visitation on Sept. 28, the family listened as two funeral home employees were talking to each other to figure out where the body could be. About 200 people were about ready to show up for the 4 p.m. wake.
Many of them were from out-of-town and had come from another funeral in St. Joseph, Mo., four days earlier.
Only about 25 relatives knew that Schnabel's body was missing. They kept it quiet, they say, partly out of shock, but also because they didn't have any answers themselves. Not until the next day - two hours before the funeral was set to begin - did the funeral home's owner call to admit the mix-up.
"He said, 'Yeah, we misidentified him. We don't know for sure, but we think we already buried your father-in-law,'" Schreiber remembers being told. "'We don't think the body was cremated. We've notified the other family in Illinois and they're going to come look at the body.'"
An hour later, at 9 a.m. that Monday, the funeral home called Schreiber again to tell him that some of their relatives who didn't know about the mix-up had arrived and wanted to see Schnabel's body. Schreiber rushed to the funeral home, sat down with Schnabel's brother and some nieces and nephews and told them the bad news.
They paced, trying to comprehend what they were hearing. Their reaction worried Schreiber. They kept the news from Schnabel's sister, a frail woman in her 70s.
"We were really afraid of someone having another heart attack," Schreiber said.
'No closure'
About 15 minutes before the funeral, the funeral home told the immediate family that the Leonard family had identified the body as their relative - and that the most likely scenario was that Fritz Schnabel was already buried.
"They suggested we go through with the funeral," Chuck Schreiber said. "We're in absolute confusion. Who do you talk to? If the body was missing, we could call the police and say there's a missing body. You totally rely on the funeral home and their advice. We had people in from out of town. What do you do?"
The family went ahead with a service at Schrader, then followed in a funeral procession to Jefferson Barracks National Cemetery in south St. Louis County. It was a funeral with full military honors because Schnabel was an Army veteran of World War II and Korea. The casket was empty.
"Word is leaking out, murmurs about what's going on," Chuck Schreiber said. "It was an absolute nightmare. You're sitting there with a flag-draped casket with no one in it. My daughter played taps, and they folded the flag and handed it to his wife, saying 'from a grateful country.'"
Two days later, once Schnabel's body was recovered from the St. Ann cemetery, he was buried at Jefferson Barracks before a gathering of just five people.
Schreiber said the family has been contacted by Schrader's insurance company but that the adjuster's response was less than comforting.
"She said, 'You found the body and you've reburied him. What's the problem?'" Schreiber said the adjustor told him. "Kind of like, Get over it. I'm absolutely livid. We wanted to say our goodbyes, but here we are a month later and there's no closure."
The funeral home's insurer has offered $3,000 to each of Schnabel's children and $5,000 to his widow. The family turned it down. "The offer was so low," son-in-law Schreiber said, "it trivialized the entire situation."
kbell@post-dispatch.com | 314-340-8115
SORRY WORKS! IN PHYSICIAN'S NEWS DIGEST
Sorry Works! Co-Authors Jim Saxton, Esq, and Maggie Finkelstein, Esq, just published the article below on disclosure and apology in Physician's News Digest. Great read - share with friends and colleagues!
'How to' Guide for Disclosure and Apology
By James W. Saxton, Esq. & Maggie M. Finkelstein, Esq.
Published October 2008
Physician's News Digest
Disclosure and apology are hot topics in the health care industry, and there is no sign of the heat waning. In fact, with patient- focused health care initiatives and patient safety initiatives, the authors anticipate that disclosure and apology post-adverse event will only get hotter.
Transparency, benchmarking, hospital and doctor ratings, and pay-for- performance initiatives only make disclosure and apology more significant in the health care industry. Certainly, disclosure and apology are a part of patient satisfaction. By disclosure and apology, we are really talking about communication post-adverse event. Did you talk to the patient and/or family after the unexpected outcome occurred? Did you empathize with them? Did you explain to them, clinically, what occurred and why? When these conversations do not take place after an adverse event, patients and their families may misconstrue the silence as concern or guilt on your part. They also will often seek out a lawyer to fill in the gaps and answer their unanswered questions. It is why disclosure and apology post-adverse event are key risk reduction strategies for physicians.
We are often asked, "How this can be so – isn't discussing with a patient what happened and saying I'm sorry going to lead to a lawsuit – it's just like admitting that I committed malpractice. In the past, my attorney has always told me to keep quiet after an unexpected outcome occurs." The truth is that when done in the right way, communication post-adverse event can actually prevent or help in the defense of a lawsuit. The key is in doing it right. In this article, we will provide you with the tools to get past many of the barriers to disclosure and apology as well as provide you with an introductory "how to" – when it actually happens.
Getting Past Barriers
Below, the authors address the top reasons provided by health care professionals as to why they are fearful of disclosing post-adverse event.
If I disclose, it will heighten the chances of me being sued and increase any award of damages since I admitted fault. As noted above, when done right, communication post-adverse event can reduce the risk of a suit. Research shows that patients want to know about adverse outcomes, including medical errors, and even minor errors. This should not be shocking; after all, patients and jurors are alike. When no disclosure takes place, jurors often hold it against the doctor, and it can impact severity. Further, disclosure and the affiliated investigation may provide the doctor with early information about liability, and in certain circumstances, may be cause for fast-track of claims. However, this should only occur with involvement of legal counsel and a full investigation of the situation.
I would apologize if I knew that my apology would not be used against me in a suit. Many doctors are aware that many states have passed so-called apology laws or laws that provide doctors who say "I'm sorry" after an adverse event with immunity (preventing an apology from being used as evidence of negligence). Doctors will tell us that they will not apologize without one of those laws in place. However, the laws are helpful, but not necessary. Saying "I'm sorry" is simply the right thing to do, and when placed in the appropriate context can benefit the patient, families, and the doctor. Plaintiff counsel have told us that they would never want to introduce evidence into a trial that a doctor apologized – it makes him (or her) look too good! It is really the absence of an apology that angers the jury.
Disclosing a medical error will hurt my reputation and therefore my business. Doctors often fear a negative impact on their reputation if they were to disclose a medical error. However, the PR of an alleged cover-up is far worse. The truth is that proper disclosure prevents misinformation and reduces the perception of a cover-up. When media does desire information about an event, it is important to collaborate to be sure the same, appropriate message is reaching the patient and the public. Many examples are being seen where hospitals are providing the public with information about errors and apologize openly to the community.
If I disclose, I will lose professional liability insurance coverage for the underlying incident if I am sued. Often, professional liability insurance policies include clauses which deny coverage if a doctor hinders the defense of a claim. The perceived fear is that the insurance company will construe an apology to equate to the hindering of a defense of a claim. However, it is why collaboration not only with legal counsel but also with your professional liability insurer is essential from the beginning. Many enlightened professional liability insurers have embraced this concept for good business reasons. Get your insurer involved up front.
Disclosure and Apology "How To"
When an adverse event occurs, what do you do? The primary concern should always be the safety and welfare of the patient. Once the patient care plan is on track, you can consider the appropriate post- adverse event communication. The communication needed will be dependant on what the adverse event was. Was it simply a known complication of the procedure? Was it a true medical error?
When the event is a true complication, it is important to rely on your appropriate pre-surgery communications and documentation. Complications or risks of the procedure are discussed with patients in the informed consent process. Complications are also often documented on the informed consent form (and should be) and in the medical record notes. This drives home the importance of the second generation informed consent. Complications are not errors, and they need to be managed differently than errors.
Saying "I'm sorry" in this context needs to emphasize empathy. Fault in terms of negligence is not appropriate in this situation. Negligence is a breach of a standard of care and a post-surgical complication is clearly not negligence.
However, when a medical error occurs, not only is empathy essential, but also an acceptance of responsibility. We know what patients want after a medical error occurs, and acceptance of responsibility is part of those desires. This type of conversation will require planning, investigation and collaboration. The exact mechanics are not the topic of this article, but you can find more information about this situation in Sorry Works! Disclosure, Apology and Relationships Prevent Medical Malpractice Claims, co-authored by the authors of the present article, together with Doug Wojcieszak. Order link: http://www.sorryworks.net/booksoon.phtml.
For both situations, it is essential to have in place an event management program to be your platform for disclosure. Having in place an event management program coupled with a post-adverse event communication policy, will result in a more efficient and more effective post-adverse event result. The event management program provides the framework for immediate action and ensures that all health care providers involved understand their expectations and next steps. Collaborating with the hospital if the event took place at the hospital is important.
These are only the broad strokes of disclosure. Drilling down on the specifics is necessary as well: When do you communicate? Who communicates? And what is the meeting like?
Communicate as soon as possible after the event. Of course, it is critical to ensure that the patient is safe first and put together a plan of care, which can also be communicated to the patient. Set up a communication plan – here is what we know now – it is not once and done - provide contact information/telephone/and follow-up.
Who should communicate? Most times, it will need to be the doctor – the one with the direct patient relationship. This can be very hard for some doctors, and it is why we recommend training. However, sometimes it will be that some doctors are just not good communicators, so another health care provider with a significant relationship may be a good alternative, when necessary.
Consider the specifics of the meeting: Location? Confidentiality? Atmosphere? Any special needs of the patient and/or family? Who is present? And after the meeting, make sure there is follow-through – do what you have told the patient you would do.
It's a Job for Patients, Too
Even if you are on-board with the concept of disclosure and apology, it works most effectively when patients are also on-board. Patients need to know from the start that if things "go wrong" that their doctor wants them to return to the doctor with their questions and concerns. We have seen where some practices have incorporated this concept into their informed consent forms. For example:
"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."
Have a discussion with your patient early on in your relationship explaining that you welcome questions and concerns and that includes when a complication may occur or when it is perceived that one occurred. Clearly, if the patient does not return to the doctor, it may leave our doctors without the opportunity to communicate with a patient post-adverse event.
Disclosure, or communication post-adverse event is not easy. It requires planning, collaboration and education. Seek out CME programs on communicating post-adverse event that will also help you to practice communication skills and techniques. In this way, you will be ready and prepared for your post-adverse event communication. Because, when done in the right way, disclosure post- adverse event strengthens the physician-patient relationship, can increase patient safety, and can reduce professional liability exposure
James W. Saxton, Esq. is co-chair of Stevens & Lee's Health Care Department and Chair of the Health Care Litigation Group. Maggie M. Finkelstein, Esq. is an Associate in Stevens & Lee's Health Care and Litigation Departments.
SORRY WORKS! WEBINARS
Disclosure is a hot topic today and it pays to hear an expert speak on the topic, but in todayÂ’s tough economy not every organization can afford to pay a speaker to visit and/or send staff to a conference to hear a speaker. We have the solution for you: A Sorry Works! webinar with experts from Sorry Works! and our partners at Stevens & Lee legal and risk management firm. We come to you via the Internet & phone lines for a one to two hour live presentation over the web and conference call. We will build a customized presentation for your hospital, medical practice, or insurance company that meets your needs, including plenty of time to ask questions of the speakers.
Also, as part of this special offer, we will provide copies of the Sorry Works! Book – from which we will be lecturing – at a special reduced price of $17.95 per copy (normal price of $23.50 per copy) so you can provide books to all attendees of the webinar.
Finally, mention this advertisement when you call to order your webinar and receive a 10% discount off the webinar fee. To order your webinar today, contact Maggie Finkelstein at 717-399-6636 or mmf@stevenslee.com, or Doug Wojcieszak at 618-559-8168 or doug@sorryworks.net.
GRIEVING AUSTRALIAN PARENTS JUST WANTED AN APOLOGY
Sorry Works! has a lot of friends, supporters, and readers "down under." Well, the story below is from Australia, but it's not Aussie-specific. In fact, the same sad story plays out in hospitals and medical practices all around the Globe. Something bad happens, and the doctors, nurses, administrators, claims people and attorneys steel for the fight, straining and scrapping to protect the assets of the institution. However, many times the patient/family simply wants acknowledgment, accountability, and "sorry."
Money is not the primary motivating factor for the vast majority of patient & families involved in a medical error - but when the humanity is stripped out of the situation money is often the only thing that is left to fight for. In an effort to protect the assets of the institution and stay out of court, the behavior of medical professionals actually drives cases to court where they put their assets at great risk.
Read below and learn.
Grieving parents: 'We just wanted an apology'
Todd Cardy, court reporter
October 28, 2008
A HELENA Valley couple today criticised the way Perth's St John of God Hospital treated them after the death of their premature baby girl four years ago.
Peter and Cindy Allen said while they accepted a finding that their 23-day-old daughter, Kobey Rebecca Allen, died by way of misadventure, all they wanted was an apology from the hospital.
A five-day inquest heard earlier this year that Kobey died on July 3, 2004, wrapped in a blanket while in the hands of her father at Princess Margaret Hospital following a ``chain of mistakes."
The inquest heard that the baby was "healthy and good weight" before a series of complications at 32 weeks following an ultrasound and amniocentesis, a test of fluid in the womb, at St John of God Hospital on June 10, 2004.
That same day Mrs Allen was taken into surgery for an emergency caesarean delivery and despite efforts to revive Kobey, she died weeks later from acute renal failure, internal bleeding and extensive brain damage.
Today, Deputy State Coroner Evelyn Vicker found that while the amniocentesis was not incorrect - as doctors wanted to know if the baby had the rare blood condition Rhesus Disease - it was unnecessary.
Ms Vicker said after the delivery there was also a two-hour delay in giving the baby, who had suffered severe hemorrhaging, a blood transfusion before she was transferred to Princess Margaret Hospital because neonatal blood was not immediately available.
She said the hospital had since changed protocol to ensure blood suitable for newborns was always on hand and medical advancement had lead to better monitoring of babies who could have the blood condition.
The Allens said they accepted the findings and were pleased that Kobey's death had lead to positive changes in medical practices but the past four years had been long and hard.
"It is a shame and it's an indication of the system that we had to go through an inquest to get to this point but we're pleased that it has changed," Mr Allen told reporters.
Mrs Allen said: "We have always been open that we don't need their money, we don't want their money, we are not after them, we would have just liked an apology. It would have been nice."
SORRY WORKS! BOOKS FOR THE HOLIDAYS - ECONOMICAL GIFTS
Hard to believe it, but the Holidays are right around the corner. With a tight economy you'll need to find reasonably priced gifts for the healthcare, insurance, and legal professionals on your list. Enter the Sorry Works! Book. For the $23.50 per copy, you can provide the "how-to" manual on disclosure and apology. The book also includes a stylish bookmark with disclosure tips. Furthermore, bulk discounts are available for large orders.
You won't find a more meaningful gift or more appreciated gift for the price. To order individual copies visit this link: http://www.sorryworks.net/booksoon.phtml. To make a bulk purchase, e-mail doug@sorryworks.net or call 618- 559-8168.
Happy Holidays!
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