Medical Malpractice News

The State of Disclosure

Tags: , , | Comments: 0 | May 20th, 2013

A surgeon at a St. Louis hospital performed a “right-sided craniotomy procedure,” when instead he should have performed a “left-sided craniotomy bypass” in April 2013. A wrong-sided surgery that left the 54-year old patient crippled and dependent on around-the-clock care. The correct surgery was performed six days later but the damage was done. The surgeon, an employee of the hospital, apparently confessed his mistake quickly, but a lawsuit was filed the first week of May 2013 coupled with a sensational media story. A few days later the CEO of the hospital publicly apologized for the wrong-side surgery, but, again, the damage was done. Why wasn’t disclosure and apology including fair, upfront compensation addressed immediately after the wrong-side surgery? Why did the hospital wait almost 30 days? Why did the family have to file a lawsuit? And many other questions.

You can read the entire story including the video coverage here.

I started this article with this story because it typifies where most hospitals, insurers, and caregivers are with disclosure. Almost everyone knows disclosure is the “right thing to do” ethically as well as financially, but the trick is how to do it and when to do it? Disclosure is getting easier with more physicians become employed or covered by hospital RRGs, but as the story above shows even with employed physicians, disclosure can be challenging and sometimes too slow.

At its heart, disclosure is all about relationships. Keeping relationships alive and parties communicating even under the worst circumstances.  Keeping relationships alive so problems can be fixed without litigation. The old risk management style of “deny and defend” destroyed relationships, killed communication, fed suspicions, and made people angry – very angry – which led to lawsuits. Disclosure is a better way for all stakeholders.

The whole “relationship and communication thing” sounds good, but it’s difficult to conceptualize in a busy, crazy chaotic healthcare environment. How do you make disclosure operational with doctors and nurses who have historically been told to “shut up” after something goes wrong? Who talks post-event, what do they say, what do they not say, and a thousand other questions that can often slow and stall the process, which angers families and invites litigation.

At Sorry Works!, we work with hospitals and insurers all across the country on the issue of disclosure. In this brief article, I want to provide a few thoughts on what we consider best practices for disclosure.

1. Develop a disclosure program

It is critical to develop a true program that is operated by trained people who can guide staff through difficult post-event discussions. Moreover, the program allows the organization to move quickly – but not too quickly! – post-event and be responsive to the needs of the patient and family but also the caregivers. Moving quickly and being pro-active means showing empathy and concern in the immediate aftermath of an event, quickly reviewing the situation while staying connected with the patient/family, and, when necessary, having capacity to address financial and emotional needs upfront without the dance to the courthouse (i.e, your disclosure program needs to be synced with your claims and insurance coverage). The disclosure program also needs to be a known entity within your organization, complete with visible hot-line numbers and team members recognized by doctors and nurses. We fully recognize that developing a disclosure program will require a financial investment and dollars are tight in healthcare, but if you stop just one lawsuit the investment will be paid back with interest. If your CEO or CFO continues to resist, show him/her the story about the St. Louis hospital above. Your hospital is just one phone call, e-mail, or text message away from being in a similar situation unless you have a disclosure program as part of your neurosurgery medical malpractice insurance!

2. Train your staff how to empathize and stay connected post-event

The disclosure program needs to raise awareness among staff, including training them on how to empathize and stay connected with patients and families post-event without prematurely admitting fault. To be frank, this is where a lot of hospitals and insurers who practice disclosure fall-down. The c-suite or leadership understands and embraces disclosure, but no one has trained the front-line docs and nurses on their role in the process. Consequently, when something bad happens the docs and nurses resort to the “deny and defend” principles drilled into their heads, leadership doesn’t learn about the situation, and the family finds a lawyer  — and then you are like the St. Louis hospital getting slammed by litigation and horrible media coverage. The staff needs to be taught how to empathize – say “sorry” – without admitting fault, provide immediate assistance to the patient/family, stay connected with them — and call the disclosure program for help going forward.

3. Keep your culture alive!

Disclosure can’t be the “flavor of the month” or you and your patients & families will never receive the full benefit. Like anything else, you have to keep working at it. A good program will a) keep disclosure in front of your people, b) make sure new hires are properly trained, c) share success stories and also failures throughout the organization, and d) continue to be a visible presence and resource throughout the organization.

Disclosure is not easy, but the good news is many hospitals and malpractice insurers­ across the country in all sorts of venues are developing successful disclosure programs.

This blog is a guest post by Sorry Works! Learn more about their organization by visiting Sorry Works! specializes in making disclosure a reality for healthcare organizations. Sorry Works! educates and trains healthcare employees and insurance providers on the best practices for disclosure. Give us a call at 618-559-8168 or email