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Telling the Truth Reduces Liability? Who Woulda Thought?

Previously published in PR News

Remember the bizarre scene in the movie Patch Adams when Robin Williams, playing a medical student, looks through his medical school record for the reasons he’s being expelled and discovers that one of the complaints against him is “excessive happiness”? The movie character is patterned after a real physician from the South whose iconoclastic approach to patient care and clown-like sense of humor were not looked upon favorably. Yet, his most important audience, his patients, seemed to get well faster and fully support his efforts to expand the wonderful healing power of laughter and happiness. Is this obvious, or what?

Extreme Honesty

Honesty Is The Best Policy Message. Recycled paper note pinned on cork board. Concept ImageNow comes the U.S. Department of Veterans Affairs with a new risk management strategy: extreme honesty. An article published in Annals of Internal Medicine, December 21, 1999, outlines this new litigation risk reduction strategy: Keep the patient in the information loop, aggressively, constantly, no matter what, especially when mistakes and errors occur.

Humanistic Risk Management

For the first time a credible organization has adopted a strategy that can reduce liability, litigation, and threats to reputation, and could validate something virtually every ethical PR practitioner seeks to do – deal honestly, openly, fairly, and truthfully with various constituencies, especially when bad things happen. In the paper’s abstract, the authors discuss what they call “humanistic risk management.” It includes “early injury review, steadfast maintenance of the relationship between the hospital and the patient, proactive full disclosure to patients who have been injured because of accidents or medical negligence, and fair compensation for injuries.”

The abstract continues, “The financial consequences of this type of policy are not yet known; however, one Veterans Affairs medical center (Lexington, Kentucky), which has been using humanistic risk management since 1987, has had encouragingly moderate liability payments. The Department of Veterans Affairs now requires such a policy for all of its facilities; therefore, comprehensive experience may be only a few years away.”

Victim Management

The greatest barrier to disclosure and appropriate victim attitude management is management’s fear of liability, fostered by well-meaning but misguided counsel. Any credible way to reduce or mitigate this fear is essential to better behavior, reputation management, and litigation reduction.

The lawyer’s first assumption, now well ingrained in management, is that total honesty and candor in situations of error and negligence can only lead to higher liability. The data in this article tend to refute that, saying essentially that the liability performance of the Lexington facility is better than other comparable facilities that rely on secrecy, denial, even deception.

The article also mentions a study published in The Journal of the American Medical Association in 1992 that examined why 127 families sued their healthcare providers for perinatal injuries[1]:  “Of 127 families who sued, 43 percent were motivated by the suspicion of a cover-up or by the desire for revenge. Another study of 149 randomly selected patients in an academic internal medicine practice found that almost all the respondents “wanted their physicians to acknowledge even minor errors; many stated that they would respond to an unacknowledged moderate or severe mistake by filing a lawsuit.”

One lawyer interviewed for the article put it this way: “In over 25 years of representing both physicians and patients, it became apparent that a large percentage of patient dissatisfaction was generated by physician attitude and denial, rather than the negligence itself. In fact, my experience has been that close to half of malpractice cases could have been avoided through disclosure or apology but instead were relegated to litigation. What the majority of patients really wanted was simply an honest explanation of what happened, and if appropriate, an apology. Unfortunately, when they were not only offered neither but were rejected as well, they felt doubly wronged and then sought legal counsel.”

If you simply substitute the word “victim” for “patient” in this article, you have the basis for a major lesson in reputation preservation for your organization.

To request reprints of the Annuals of Internal Medicine article, “Risk Management: Extreme Honesty May Be the Best Policy,” December 1999, 131:963-96, contact Steve S. Kraman. M.D., Veteran’s Affairs Medical Center, 2250 Leestown Road, Lexington, Kentucky 40511, (215) 351-2657.

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James E. Lukaszewski, ABC, APR, Fellow PRSA, is a specialist in helping clients deal with sensitive situations including litigation communications and reputation management.  He is President of The Lukaszewski Group Division, Risdall Marketing Group, based in the Twin Cities.

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20060615 veteran's affairs by schizoform, Flickr, CC license

20060615 veteran’s affairs by schizoform, Flickr, CC license

SIDEBAR:

Extreme Honesty:  How This Process Works at the VA

Notifying Patients of Negligence

Here’s how this process works at the VA:

  1. Risk management committee:
  • Identifies an instance of accident, negligence, or malpractice.
  • Investigates the facts.
  • Interviews involved physicians, the chief of relevant clinical service and other personnel.
  1. If the Committee finds malpractice or substantial error (resulted in loss of patient’s function, earning capacity, or life):
  • Plans are made to notify the patient or next of kin.
  • Patient’s surrogate or next of kin is called (usually by the chief of staff).
  • Family is told that there was a problem with the care in question and is asked to come to the medical center at their convenience for an explanation.
  • Telephone conversation provides just enough details to indicate the seriousness of the matter (including, if necessary, a statement that a medical mistake was made and that an attorney may accompany the patient or family, if desired.
  1. Face-to-face meeting:
  • With the chief of staff, the facility attorney, the quality manager, the quality management nurse, and sometimes the facility director.
  • All details are provided as sensitively as possible, including the identities of persons involved in the incident.
  • Emphasis is placed on the regret of the institution and the personnel involved; and on any corrective action that was taken to prevent similar events.
  • Offer to answer questions and an offer of restitution, along with subsequent medical or surgical treatment.
  • Assistance with filing for service connection under 38 United States Code, section 1151.
  1. Claims assistance:
  • Patient, surrogate, or next of kin is assisted in filing the necessary forms.
  • Victim is given the names and phone numbers of persons who can answer any additional questions.
  • Patient or next of kin are advised to retain counsel, if they haven’t already.
  • Committee is forthcoming to the plaintiff’s attorney so that the attorney’s review of the medical record will confirm the information that was volunteered.
  • The facility’s attorney and the patient’s attorney work together to reach an equitable settlement on the basis of “reasonable calculation of loss.”

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[1]  Hickson GB, Clayton EW, Githens PB, Sloan FA.  Factors that prompted families to file medical malpractice claims following perinatal injuries, JAMA 1992; 267: 1359-63.


James E. Lukaszewski, ABC, Fellow IABC; APR, Fellow PRSA, BEPS Emeritus


If you have questions, or would like to dive more deeply into the subject of this blog, you can reach me 24/7 at jel@e911.com; 203-948-7029 (voicemail, email, text). I look forward, as a friend and colleague, to helping you achieve the objectives you’ve set for yourself for having a happier, more influential, successful and meaningful career.

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