sorry seems to be the hardest word: mitigating risk...

Sorry Seems to be the Hardest Word: Mitigating Risk Through Effective

Contrition

Jeff DunnChair Health Law Practice Group

Sandberg PhoenixSt. Louis, Mo

Acknowledgments

Thanks to those who have helped me build an expertise in how to Apologize effectively

The Nursing Home Industry

William Jefferson Clinton

My Wife

What We’ll Cover

1. Why

2. What to Say (and not)

3. How

4. Who

5. When

Disclaimer

• When dealing with a significant damage adverse event

• Fully investigate

• Think “Tripartate”

• Client, Carrier, Counsel - All need to be involved in this process

University of Illinois began its apology program in 2006, the Medical Malpractice Claims cut in half.

Kevin Sack, Doctors Say ‘I’m Sorry’ Before ‘See You in Court, New York Times, May 18, 2008

I - Why: Benefits of Contrition

Medical schools now include in their medical professionalism course practicums on

apologizing for medical error. Ralph A. Gillies, PhD; Stacie H. Speers, MS; Sara E. Young, MD; Christopher

A. Fly, MD, Teaching Medical Error Apologies: Development of a Multi-component Intervention, Family Medicine, June 2011

I - Why: Benefits of Contrition

Study by researchers from University of Michigan Health System and Brigham and Women's Hospital, analyzed records on 1,131 malpractice claims, or requests for compensation due to medical error, between 1995 and 2007, which covered several years before and after the program was implemented.

Sandra Koch, MD and Patrice Weiss, MD, Medical errors: Disclosure and apology, Contemporary OB/GYN, June 1, 2012

I - Why: Benefits of Contrition

After health care providers began admitting mistakes, apologizing and offering compensation:

• The monthly rate for new claims fell from just over seven per 100,000 patient encounters to 4.52 per 100,000, or 36%.

• The average monthly rate of malpractice lawsuits filed against the hospital fell by more than half,

• The median time it took to resolve claims also dropped by several months

• The mean costs for liability, including compensating patients and paying attorneys, fell by about 60%.

• The average cost for lawsuits that were filed decreased, from nearly $406,000 to $228,000.

I - Why: Benefits of Contrition

The Case for Apology: First and foremost, you apologize if/when/because

it is the right thing to do. Think “Ought”

Mistakes happen, but it is how we respond to those mistakes that

will help define the outcome.

I - Why: Benefits of Contrition

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I - Why: Benefits of Contrition

Direct Benefits:

• Improves employee and patient/resident satisfaction• Healing (on all sides) - The disclosure is not just about the

patient its about the employee too• Improves

• Transparency• Closure• Care• Communication• Trust • Morale

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Traditional approach is conservative; we are usually reluctant to apologize or admit error

Fear of the patient or family response

Lack of support & agreement among all caregivers

It is a learned skill set that must be taught, encouraged, and supported.

I - Why: Benefits of Contrition

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• Event• Full investigation and reporting • Get all the facts

• Gather and review all records• Interview all witnesses

• Fully involve carrier, risk management and legal - Involve all stake holders on board

• Initial Disclosure

II - What: Steps in Handling (Before the apology)

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II - What: Key Factors to an Injured Party

1.Timely disclosure of the error

2.Truth and transparency

3.Clear explanation of what happened and why

4.Explanation of how the consequences of the adverse events will be addressed (medical treatment, etc.)

5.Assurance that steps have been/will be taken to prevent the error from happening again

6.Emotional support including an apology

Your apology should have all five.

Five possible strategies for making an apology (Cohen & Olshtain,1981)

1. An expression of an apology.

2. Acknowledgement of responsibility. 3. An explanation or account. 4. An offer of repair. 5. A promise of non-recurrence.

II - What: Key Elements to an Apology

II - What (Not): Key Factors to Avoid

II - What (Not): Key Factors to Avoid

Tiger II - What (Not): Key Factors to Avoid

The non-apology

Nobody is sorrier than me that the police officer had to spend his valuable time writing out a parking ticket on my car.

Though from my personal standpoint I know for a certainty that the meter had not yet expired, please accept my expression of deep regret at this unfortunate incident.

II - What (Not): Key Factors to Avoid

Just because you say the word “sorry” does not mean you apologized

1.Admission

2.Explanation

3.Contrition

4.Remediation

Four Steps

III - How: Key Factors to an Injured Party

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1. Disclosure/Apology

2. Preparation

3. Review the facts

4. Designate a spokesperson and disclosure team

5. Select an appropriate setting

6. The Conversation/Disclosure

7. Simply describe what happened

8. State the facts

9. Say “I’m Sorry”

10. Establish a plan for follow up

11. Resolution

12. Provide the opportunity for closure

III - How: Getting it Right

1. Safe Atmosphere

2. Authentic and Genuine

3. Emotionally appropriate

4. Tone

II - How

III - How - Getting it right

III - How - Getting it right

• Honest

• Complete

• Sincere

• Authentic

• Genuine

• Ability/Capacity

• Most importantly, it is human.

III - How - Getting it right

Case study:

Mistakes were made...

William Saffire calls this the “passive-evasive” apology.

Passive tone, no responsibility accepted.

III - How (Not): Key Factors to Avoid

The “If apology”"If the remarks on the tape left anyone with the impression that I was disrespectful to either Governor Cuomo or Italian-Americans, then I deeply regret it." - Bill Clinton

"If any of my comments or actions have indeed been unwelcome, or if I have conducted myself in any way that has caused any individual discomfort or embarrassment, for that I am sincerely sorry." - Bob Packwood

III - How (Not): Key Factors to Avoid

• Get the right person

• Ideally, the one making the error (if an individual) - but not always

• If systemic - the captain of the ship

• Only if they have the capacity (High EQ)

V - Who

• Immediately once you have

• The Why

• The What

• The How

• The Who

V - When

Thirty –six states have “apology laws” which prohibit certain statements, expressions, or other evidence related to disclosure from being admissible in a lawsuit. Depending on the State, there is a slight variation in the types of statements that are protected by these statutes. Protected statements typically include a combination of apology, fault, sympathy, commiseration, condolence,

ArizonaCaliforniaColoradoConnecticutDelawareFloridaGeorgiaHawaiiIdahoIowaIndianaLouisianaMaineMarylandMassachusettsMichiganMissouriMontana

NebraskaNew HampshireNew JerseyNorth CarolinaNorth DakotaOhioOklahomaOregonSouth CarolinaSouth DakotaTennesseeTexasUtahVermontVirginiaWashingtonWest VirginiaWyoming

States with Apology Laws:

But remember....

If you admit fault,

it is coming in to evidence at trial.