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January 6, 2009 NEWSLETTER
Doug Wojcieszak, Founder & Spokesperson
Contact phone/e-mail address: 618-559-8168; doug@sorryworks.net
THIS WEEK'S EDITION:
January 6 NEWSLETTER
Doug Wojcieszak, Founder & Spokesperson
Contact phone/e-mail address: 618-559-8168; doug@sorryworks.net
IN THIS EDITION:
- New Year's Resolution: Commit to Making Disclosure a Reality in Your Organization in 2009!
- Colorado becoming more litigious?
- Pennsylvania - crisis or not?
- Sorry Works! Coming to Cleveland Area
- Canadian Disclosure Editorial & Update
Special Message: The Sorry Works! e-newsletter is distributed on Monday afternoons; however, since yesterday was the first work day in two weeks for many people, we didn't think it would be a good idea to send an e-mail when most folks would be digging out from two weeks worth of unread e-mails & mail and unreturned phone calls.
NEW YEAR'S RESOLUTION: COMMIT TO MAKING DISCLOSURE A REALITY IN YOUR ORGANIZATION IN 2009!
Happy New Year! Make it a truly happy and meaningful New Year by committing to make disclosure a reality in your organization. So many of you have heard the disclosure success and know that disclosure is the right thing to do both ethically and economically, but your organization has not embraced it yet. You may say, "But I'm just a doctor...or a nurse...or a risk manager...what can I do?" Plenty! Make it happen! Every successful disclosure program starts with one person who became the champion and pushed their organization forward. Equip yourself with knowledge such as the Sorry Works! Book ( http://www.sorryworks.net/booksoon.phtml.), and maybe host a Sorry Works! presentation at your hospital or insurance company (e- mail doug@sorryworks.net or call 618-559-8168). Form a committee of like-minded people and begin drafting (or re-drafting) your disclosure policy. Get your leadership to buy in by asking the simple question: "Hey, boss, would you be interested in developing a program that can reduce severity and the number of filings while improving patient safety?" What boss wouldn't say "YES!" Then, begin training your people.
Yes, it will take a lot of work, and yes, some people will be unhappy with you because telling the truth to patients & families makes them uncomfortable, and not just because they might get sued! But press on - disclosure is the right thing to do and we will eventually win out. That day will simply come sooner if more people commit to make disclosure a reality in 2009. Happy New Year!
COLORADO BECOMING MORE LITIGIOUS?
Colorado has long been viewed as very doctor-friendly by being a stable tort environment. Also, Colorado has one of the most robust apology laws on the books, which includes admissions of fault being excluded from evidence. Finally, Colorado is home to COPIC Insurance, which is the first med-mal insurer to have a robust and highly successful disclosure program called 3Rs. While 3Rs is not Sorry Works!, we share common beliefs with COPIC in that communication and customer service issues are the drivers of most med-mal lawsuits. The 3Rs program has significantly reduced litigation and associated costs while providing reasonable settlements and closure for patients, families, and providers.
According to a publication entitled, "Dire States, A review of the legal climates in all 50 states," written by Steven B. Hantler, Chairman of the pro-tort reform American Justice Partnership, Colorado is slipping. Consider the following from Mr. Hantler's report:
Colorado saw its ranking fall sharply from 10th last year to 22nd this year. The state's liability climate, once one of the best, is now only neutral, and unfolding events further threaten its position. Anti-reform lawmakers and Governor Bill Ritter are moving forward with legislation that will tilt the courts in favor of plaintiffs. Ritter last year signed into law one provision that increases the limit on non-economic damages in general liability cases and a second that instructs judges in employment claims to award attorneys' fees and costs to prevailing plaintiffs, but not to prevailing defendants. Legal reform advocates are currently playing defense against a bill relaxing medical malpractice damage caps. Ritter continues to make judicial appointments that reflect a bias toward the plaintiffs' bar, and the Colorado Supreme Court has demonstrated a willingness to expand tort liability. Despite judicial obstacles, Attorney General John Suthers remains a strong rule-flaw advocate. Watch for Colorado's liability climate to further degrade and become hostile to growth and job development.
Think about it: Colorado - the rock solid state long thought as one of the most friendly places for doctors - is becoming "unfriendly." This is the problem with tort reform and all other legislative/political fixes to the med-mal crisis: A different set of politicians and judges can wipe away years of work in a few pen strokes. However, this is what happens when doctors ask other people to fix the liability crisis for them. Politicians giveth, politicians taketh away.
As we have said so many times before in this forum, the real solution to the med-mal crisis is realizing 1) that med-mal lawsuits are most often driven by customer service and communication issues; 2) enhanced communication and customer service through Sorry Works! can dramatically and permanently reduce litigation and associated costs while improving patient and provider satisfaction as well as patient safety/quality.
Also, you don't need an apology law on the books to accomplish Sorry Works! Despite having a robust law in Colorado, COPIC as well as other enlightened Colorado institutions/providers will tell you they would never use the apology shield law if sued. Why give up all the great evidence produced in the disclosure process?!?
Instead of being sucked into a never-ending fight over tort reform with the plaintiff's bar, the Colorado medical and insurance community need to focus on disclosure and apology as the most immediate and permanent solution to medical malpractice litigation. Simply put, Sorry Works! is Customer Service 101 - you don't need a politician to vote the program into existence, and it can't never be taken away by a different politician or judge.
PENNSYLVANIA - IN CRISIS OR NOT?
Pennsylvania has long been a major battle ground in the nation-wide med-mal crisis. But there's good news report, or is there?
According to the American Tort Reform Association's (ATRA) 2008/2009 "Judicial Hellhole Report," Pennsylvania is now actually "a point of light" and has "emerged from the depth of the medical liability crisis." The report goes on to share all sorts of favorable statistics such as a decrease in number of malpractice filings, and then opined that filings are down because of the passage of certain laws ATRA championed. Good news, right?
Shhhhhhhhh......don't share the good news with the American Justice Partnership (AJP), which is actually formally affiliated with ATRA.
The AJP folks are saying Pennsylvania is in the depths of a "humiliating" crisis which has turned the state into a "life or death lottery for mothers in Philadelphia."
Funny, the ATRA Hellhole report specifically states med-mal filings in the Philadelphia area have dropped 50 percent. Oh, never mind, good quotes can't be bothered by facts and information. Consider the following hot air blown by the AJP President:
"Pennsylvania is the poster child for the plaintiffs' bar vision of America – sue the doctor, sue the hospital, and when they leave, support taxpayer-funded subsidies to hold onto the remaining cash cow," said Dan Pero (left), President of the American Justice Partnership Foundation (AJPF). "Reasonable reforms, including caps on non-economic damages, expert witness reform to match the standard in federal courts, and various procedural matters will help restore predictability, stabilize costs, and encourage physicians and facilities to return to Pennsylvania – all without harming the ability of legitimate claimants to have their day in court."
And there was this gem of quote in the AJP report from Philip K. Howard of Common Good:
"Restoring reliability to justice, such as with special health courts, is essential to restoring the trust needed for a healthy system of health care," said Philip K. Howard (left), Common Good founder and chair."
Sorry Works! readers will remember our friend Philip K. Howard...we discussed his health courts idea in detail last year, and shared a quote from him in which he said health courts can become a reality if medical providers send him lots of money and wait 30 to 40 years while he and an army of politicians and consultants wage political and legal jehad with the trial bar.
Aside from two major tort reform groups desperately needing to proof each other's reports - is PA in crisis or not? One story line at a time, please! - we bring this entire situation to our readers attention to make an important point: Folks have griped and moaned for years about the amount of money made by med-mal lawyers (plaintiff's and defense), but no one has really uttered a word about the truckloads of dough made by political consultants (Howard, AJP & ATRA) and their friends in the legislatures and governor's mansions in the med-mal fight. Simply put, the med-mal fight is the gift that keeps giving. These consultants and politicians live for the word "crisis," and they crave other people being dependent on them. "Give me money, doc, and I'll fight for you in the Halls of Congress." And, they'll say anything and cook data - and even telling conflicting stories ala ATRA and AJP - to keep the gravy train rolling.
Enough!
Medical providers need to wrestle back control of the med-mal issue and it starts by understanding that the med-mal crisis is primarily a customer service issue. Politicians and consultants need not apply.
SORRY WORKS! COMING TO CLEVELAND AREA
Doug Wojcieszak, Sorry Works! Founder, will be speaking at the "Forgiveness, Reconciliation, and the Law Symposium" hosted by Case Western Reserve University School of Law on April 10th. The conference will be open to medical/hospital professionals throughout the Cleveland area - stay tuned for details.
If you are interested in hosting a Sorry Works! event in your area, please contact Doug Wojcieszak at doug@sorryworks.net or 618-559- 8168.
CANADIAN DISCLOSURE EDITORIAL & UPDATE
The Canadian Medical Association released an editorial today entitled, "Medical errors, apologies, and apology laws." Full text of the editorial is below. Also, the Canadian Patient Safety Institute will be meeting on January 16th to discuss disclosure training.
Sorry Works! readers will remember last year we had praise but also sharp criticisms for the new Canadian disclosure guidelines. The guidelines were a step in the right direction by hard working, well- meaning health care professionals but, honesty, the guidelines contained some horrible advice: The document specifically stated not to share truth telling words like "error" or "mistake" with a patient or family, and don't say "sorry" but instead offer "regret." Horrible advice. Most importantly, the document didn't say a single word about offering compensation or other remedies for legitimate medical errors. Back to the drawing board, we said.
Well, by reading the Canadian Medical Association editorial it seems folks north of the border still have a way to go. Just consider these two lines from the editorial: "An apology includes an acknowledgement of the event and one's role in the event, as well as a genuine expression of regret for the patient's predicament." In defining apology, the CMA said nothing about compensating for injuries or death. Later in the editorial they offered this line: "However, it seems unlikely that apologies would shield physicians in cases of gross negligence." Well, if your "apology" doesn't offer compensation or other remedies, we would think not. To truly apologize, you have to make an effort to make things right (financially and otherwise) which will 1) will reduce the anger that pushes most litigation and 2)be your greatest protection should you still get sued - not some meaningless apology law as the CMA insisted they need in the editorial.
Hopefully, when the Canadian Patient Safety Institute folks meet in two weeks they will discuss the need for robust disclosure training that includes truth telling words like "error" and "mistake" with patients/families, using the word "sorry," and working with insurers to provide quick & reasonable compensation and other remedies to patients and families.
Medical errors, apologies and apology laws
Noni MacDonald, MD MSc* and Amir Attaran, LLB DPhil
*Section Editor, Population and Public Health, Associate Editor, Editorials, CMAJ
In everyday life when an error occurs, disclosure, apology and restitution are expected. In health care when a medical error occurs, disclosure and apology are often overridden by the fear of malpractice litigation.
Full disclosure to the patient is the ethically and professionally responsible course of action. It is also vital for improvement of patient safety and quality of care.1 By not disclosing adverse events, the physician fails the patient in terms of honesty, openness and respect. Furthermore, nondisclosure may put the patient at risk for future harms because he or she does not know what happened. Disclosure provides the patient with potentially vital information for making future health care choices and decisions. Candour about errors among colleagues is also critical for professional learning, patient safety improvements and public trust in the health care system.1
Offering an apology with disclosure is an important component of addressing medical errors. An apology includes an acknowledgement of the event and one's role in the event, as well as a genuine expression of regret for the patient's predicament. An apology can have profound healing effects for all parties. For the physician, an apology can help diminish feelings of guilt and shame. For the patient, it can facilitate forgiveness and provide the basis for reconciliation.2
To address the competing demands between the ethical and safety imperatives of disclosure and apology and the strong instinct to remain silent for fear of inciting malpractice action, apology laws were designed to reduce concerns about legal implications of disclosure and apology. They emerged in the United States in the 1990s as part of efforts to enhance medical error reporting and patient safety. Since then, physicians and hospitals have become more transparent, honest and open with early explanation of unforeseen outcomes. This, as well as early settlement offers by hospitals, has led to a dramatic decrease in malpractice claims.3 However, the actual impact of apologies and of apology laws on this outcome is less clear because both are components of broader regulatory and institutional efforts to overcome the complex problem of the silence about medical errors. Furthermore, restitution and early settlement may be an important driver of the reduction in claims.4 Countries with no-fault compensation systems, such as Sweden and France, experience less frequent complaints.
Under Canada's constitution, the provinces and territories are responsible for liability laws. The first Canadian apology legislation was passed in 2006 by British Columbia5 and Saskatchewan,6 followed in 2008 by Manitoba.7 Ontario and Alberta have since introduced similar legislation.8 The protection afforded by apology laws is similar across Canadian jurisdictions.
Some have argued that apology laws are unnecessary to allow health care workers to discharge their professional responsibility toward disclosure and that such laws will make it more difficult for legitimate malpractice claims to succeed.9 However, it seems unlikely that apologies would shield physicians in cases of gross negligence. Moreover, the Canadian Medical Protective Association advises that in jurisdictions without apology legislation, physicians "should be aware that the fact that an apology was made and any admission of fault that might have been made during an apology could be admissible in legal or College proceedings related to the adverse event."10 This statement, designed to protect physicians, threatens to inhibit apologies and supports a code of silence. As a consequence, apology legislation will play an important role in the advice given to physicians faced with a medical error or adverse event and his or her subsequent actions.
Effective disclosure and apology is neither simple nor pain free. Physicians and other health care workers need training in how best to do this when a medical error or adverse event has occurred. They also need a greater awareness of their legal, ethical and professional obligations in this regard. Errors demand a response that simultaneously addresses the needs of the patient, the health care worker and the system. Given the apology-chilling advice from the Canadian Medical Protective Association, the remaining provinces and territories also need to be pressed to enact apology laws.
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