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Criminal charges and the effect they have on risk management efforts can be extremely discouraging for the risk manager. But all is not lost. There are some strategies you can employ to reduce the chance of such charges being brought, and to lessen their impact if they are. Here are some recommendations from the trenches:
1. Confront the fears in your organization.
While the risk of criminal prosecution is real, the actual number of charges filed against health care workers is not huge. The fear engendered by the cases that make the news is sometimes the worst result because it makes health care providers scared to admit mistakes and scared to administer legitimate, necessary pain relief.
One strategy can be particularly helpful in addressing the fears of your health care providers about prosecution or investigation. Risk managers can put together an inservice to address the fears head on. Explicitly tell them that few doctors and nurses are charged with criminal violations and that most charges result from unusual circumstances. Don’t deny the risk, but try to put it in perspective.
And the inservices should not be just for doctors; they must be multidisciplinary, says David E. Joranson, MSSW, senior scientist and director of the Pain & Policy Studies Group and the Comprehensive Cancer Center at the University of Wisconsin in Madison. Doctors often get the attention when it comes to criminalization of medical errors, but Joranson says nurses are equally susceptible to the fears and misconceptions.
"In some cases, we see situations where nurses may not fully implement the prescriptions written by a physician, or they will withhold medication because they don’t think the patient needs it," he says. "The doctor may write the prescription, but the nurse often controls what actually happens to the patient."
Joranson says you also should include pharmacists, because his research shows that they sometimes refuse to fill prescriptions, and some refuse to stock certain medications that might draw the attention of prosecutors or drug enforcement agencies.
2. Make friends with your local district attorney.
The local district attorney will be the person who ultimately decides whether to bring criminal charges in a questionable situation. Now is the time to get to know him or her, suggests Grena Porto, RN, ARM, DFASHRM, senior director of clinical operations at VHA Inc. in Berwyn, PA, and past president of the American Society for Healthcare Risk Management.
In too many cases, criminal charges are filed just because the prosecutor doesn’t understand what actually happened in the hospital or how some medical systems work. He or she sometimes doesn’t know that the health care organization will thoroughly investigate problems and take corrective action, so he or she thinks a criminal case is the only way to make sure the mistake is not repeated.
"You can contact your district attorney and invite him or her to visit your organization and become familiar with your risk management program," Porto says. "Make it a very cooperative thing, with both of you offering and learning. They can learn more about what happens in your organization, so it’s not a mystery if they start hearing allegations; and you can learn more about how their office operates and what their concerns are. You’ll both feel better the next day."
Porto advises making the encounter friendly and cooperative. It’s probably best not to say you’re scared of criminal charges, but you can admit that with a big, complicated institution like your health care system, there will be situations that sometimes need the district attorney’s attention. And as one of the hospital’s liaisons with the legal community, you’d like to get to know the local prosecutor.
As part of the give-and-take, you can explain how your department oversees error investigations and the various systems you have in place to improve quality. And remember that the district attorney will warm up to you more if you can offer something to show you’re not an adversary. Ask if there is any way that you or your hospital might help with some of his or her pet projects. The answer might be no, but you scored points just by asking.
The key, Porto says, is to do this now, before any problems arise. Any previous personal experience with the district attorney, even just a lunch, might make him or her look at an allegation differently when it arises. You want the district attorney to pick up the phone and ask you, "What’s this I hear about a morphine overdose?" so you can explain the situation, instead of having him or her launch a criminal investigation.
3. Get cozy with the local media, too.
For many of the same reasons, you should woo the local newspaper, television, and radio reporters, Porto says. Help them understand how medical errors or other problems are handled within the health care system, all the while putting a positive spin on how much your organization is working to improve the quality of care.
"Invite them in, either in a group or one at a time, to see more of how your department operates," she says. "Acknowledge that your department is the one that handles a lot of the stories they’ll be interested in, so you want to get to know them up front. Help them understand before the allegations start flying and people start making assumptions about what happened and what people’s motivations were."
As with the district attorney, you have to get to know the media before anything happens.
"By then, it’s very hard to get their attention and explain things to them rationally," she says. "In the midst of a crisis, everything you say sounds defensive, and they’re skeptical about your motivations."
4. Consider offering a symposium on criminal charges in health care.
The law enforcement community and the general public often are way out of step with the latest thinking in risk management, Porto says. They often respond to a medical tragedy, or a perceived tragedy, by demanding punishment, while risk managers want to look at the bigger picture and improve the system that allowed the error to happen.
If you’re feeling ambitious, a local symposium on the topic may go a long way toward changing the attitude in the community. Porto suggests contacting a local college or university for help and inviting local prosecutors and law enforcement agencies. The public discussion should reveal some of the discrepancies in the way people respond to criminal allegations, and you should be able to create a better atmosphere, one in which authorities aren’t eager to file criminal charges.
And at the very least, the symposium should allow you to meet law enforcement authorities and the media.
5. Once a criminal investigation is considered, immediately offer your aid.
You probably will hear that the district attorney is considering criminal charges before they actually are filed. This is your chance, Porto says.
"Go to the prosecutor, in the most cooperative tone possible, and offer to help the situation to help them understand what happened at your hospital that night and how you’re already responding to it internally," she suggests. "Remember that charges are filed sometimes just because they don’t truly understand what happened, or what you’re going to do about it."
In some cases, this conversation can lay to rest the prosecutor’s concerns before they mushroom into something more serious. And of course, this conversation will be much more productive if you already know the prosecutor personally.
There is a limit to how much you can use this technique, of course. You can’t divulge critical information, particularly if you think the criminal charges might be warranted. But in cases where you’re sure criminal charges are not justified and a simple explanation might put the whole matter to rest, go to the phone immediately. It’s a good idea to consult your legal counsel before making this call.
6. If criminal charges are filed, make sure the defendants are portrayed in the media as real people.
In a high-profile case involving a medical error or allegations of criminal conduct in a health care facility, the media often describes the victim in great detail and gives only a cursory identification of the health care professionals. That often is because the plaintiff’s attorney encourages access to the victim and the defense attorney denies access to the accused.
"Don’t let that happen," Porto cautions. "You end up with everyone sympathetic to the victim and seeing the health care workers as just faceless, uncaring employees. That makes it a lot easier to believe that they did these terrible things they’re charged with and that they had some evil intent."
Instead, make sure the media get information that allows them to portray the accused as real people, perhaps even allowing the press to do a personal profile. The more the public knows about them personally — that the nurse is the mother of three, struggled through nursing school at night, and cares for her aging mother — the harder it is to believe that she killed a patient on purpose.