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Communication-and-resolution programs have been widely adopted, but the execution is uneven. Risk managers should review the actual performance of these programs.
• The risk manager should not make the first approach to the patient and family.
• Listening to the patient and family is important.
• Ensure compensation discussions are nonadversarial.
Hospitals and health systems continue to embrace communication-and-resolution programs (CRPs) that provide structure for talking openly with patients and family members after an adverse event, and even initiating compensation, but there is room for improvement in many cases. Hospital leaders may be conducting their CRPs with the best intentions, but that doesn’t necessarily mean CRPs are conducted in the best way.
The specific manner in which CRPs are conducted and the resulting effects were studied recently by Jennifer Moore, LLB, PhD, senior lecturer at the University of New South Wales in Sydney, Australia, and colleagues in the United States. They found that patients and family members sometimes report dissatisfaction with the discussions, even when the healthcare professionals thought they had conducted a by-the-book CRP.
Researchers interviewed patients, family members, and staff at three U.S. hospitals with CRPs and found that the CRP experience was positive overall for 18 of the 30 patients and family members. Satisfaction was highest when communications were empathetic and nonadversarial, they found.
“Patients and families expressed a strong need to be heard and expected the attending physician to listen without interrupting during conversations about the event. Thirty-five of the 40 respondents believed that including plaintiffs’ attorneys in these discussions was helpful,” the researchers reported. “Sixteen of the 30 patients and family members deemed their compensation to be adequate, but 17 reported that the offer was not sufficiently proactive. Patients and families strongly desired to know what the hospital did to prevent recurrences of the event, but 24 of 30 reported receiving no information about safety improvement efforts.” (An abstract of the report is available online at: http://bit.ly/2B5lV3M.)
Moore tells Healthcare Risk Management that their research suggests that there are four main ways to enhance CRPs. First, risk managers should spend time thinking about how to undertake the initial approach to the patient and family. The initial disclosure conversation should conclude with asking patients what form of communication they prefer in the future, such as email, telephone, or personal meetings.
“Risk managers should also consider asking the quality and patient safety office to make the initial approach. Consider involving a patient liaison or similar person to help the patient and family navigate,” Moore says.
Second, structure the programs so that they attend to patients’ and family members’ emotional needs. For example, use appropriate terminology such as “reconciliation” instead of “resolution.” Ensure that patient safety efforts are communicated to the patient and create space for the patient to be heard, Moore advises.
Third, ensure that the compensation discussions are nonadversarial, proactive, and occur early in the process. Fourth, structure ongoing contact opportunities into the process. For example, invite patients to provide feedback about the CRP. Seek feedback from patients and families about their CRP experiences a few months after completion, and contact patients on the anniversary of the event, she says.
“This research suggests that institutions should have the courage to reach out to patients,” Moore says. “Indeed, deciding not to reach out to patients because of liability fears may increase the likelihood that the matter escalates.”
Moore also identifies the key ways that CRPs typically fall short of their potential:
• not providing sufficient time for patients and families to be heard, particularly about matters that are important to them, but not clinically relevant;
• undertaking the compensation discussions in an adversarial style;
• not communicating patient safety efforts to patients and families;
• not notifying patients that they may consult an attorney;
• using an inappropriate form of communication and/or person when undertaking the initial approach.
CRPs can be optimized by using the Communications and Optimal Resolution Toolkit, or CANDOR, developed by the Agency for Healthcare Research and Quality, suggests Victoria Rollins, MHA, RN, CPHRM, CPTS, director of the patient safety program with The Doctors Company, a malpractice liability insurer in Napa, CA. The toolkit is available online at: http://bit.ly/2m9fch7.
“This toolkit works best because it was created by healthcare professionals and calls for a prompt response and specific actions after an adverse event. CANDOR calls for actions to be taken by specially trained hospital staff within an hour of an event and calls for the hospital to complete a thorough investigation within two months, keeping patients and relatives fully informed along the way,” Rollins says. “When the investigation is complete, the patient and family are provided with the findings and engaged in a discussion of how the healthcare organization will try to prevent similar adverse events in the future.”
All CRPs should include a commitment to patient-centered quality and safety, Rollins says. For all parties involved, a good CRP can offer resolution without the stress, time, expense, and unknown outcomes of a lawsuit. Patients who are satisfied with their physician and believe their physician is as honest as possible are less likely to sue, she notes.
“Even when the matter cannot be resolved and goes to trial, the fact that the patient and doctor talked early on can make a huge difference in the outcome of the case,” Rollins says. “Patients tend to pursue litigation with a vengeance when they think the doctor doesn’t care, but they tend to be much more reasonable when they can see that the physician is a human being with emotions, regret, and sympathy for the patient.”
A common mistake is to look at CRPs as a malpractice liability reduction strategy, says David B. Mayer, MD, vice president for quality and safety with MedStar Health in Columbia, MD.
“It is not a medical malpractice strategy, so if you think that, you’re starting off on the wrong foot,” he says. “Reducing claims and payouts are wonderful secondary benefits, but a good CRP is a comprehensive patient safety strategy that has been shown to reduce risks to future patients.”
Mayer also recommends the CANDOR toolkit, which was piloted at eight MedStar hospitals. MedStar uses CANDOR in its 10 hospitals and 300 ambulatory sites. The health system uses a “Go Team” approach that is modeled after the National Transportation Safety Board’s process for quickly dispatching professionals to the site of a transportation accident, with specific goals in mind.
MedStar dispatches teams of trained employees to particular tasks after an adverse event. The “discovery and learning” team investigates the facts, the “care for the caregiver” team helps clinicians involved in the incident, and the “patient and family communication” team initiates conversations with the patient and family.
“We activate teams right away. We don’t wait weeks or a month until we’ve had an M&M conference,” he says. “We immediately start conducting interviews to learn what happened, and that team is trained in how to do interviews correctly, as opposed to looking for someone to blame and punish. If we need to, we bring in experts like pharmacists who might understand the issue more deeply than our team members, so they can help us design better processes and fix the gaps in our program so this incident doesn’t happen again.”
The “care for the caregiver” team addresses part of the process that is overlooked: acknowledging the trauma and lasting emotional effects on the clinicians involved, Mayer says. This team also is activated for situations other than medical errors, such as when clinicians lose a patient they have come to know during treatment.
“This is a comprehensive patient safety program that has been shown to reduce harm to future patients, and when you reduce harm to future patients then you see fewer claims and better care,” he says. “Then you don’t have to employ CANDOR as often. The aviation industry still has tragedies occasionally, but when you look at the progress they’ve made over the years it is remarkable how effective they have been in reducing harm. That’s what we should be striving for in healthcare, as well.”
Mayer notes that good and prompt reporting of adverse events is critical to making CANDOR or any CRP work. If you don’t hear about an incident for a week or until a claim is filed, you have lost much of the opportunity to investigate and interact with people in the most effective way possible.
MedStar teaches clinicians that the first thing they should do after stabilizing the patient is to contact the safety office at the hospital — but that requires a culture in which staff believe that the goal is to learn and not to punish, he says.
“Some hospitals and leadership think they’re ready for this, but they’re not. They may have individuals who believe in this and want to make it happen, but the culture has gaps so significant that they’re not going to be successful with CANDOR until they address those issues,” he says. “They have to be ready at all levels, from the physicians who have to get over the very legitimate fears they have about admitting errors up through the board and the C-suite.”
That fear from physicians is not unfounded, notes Dennis J. Alessi, JD, co-chair of the healthcare law and employment law practices at Mandelbaum Salsburg law firm in Roseland, NJ. Thirty-two states have enacted “apology laws” protecting clinicians who express regret after an adverse outcome, but such laws do not offer unlimited protection, he explains.
Most statutes distinguish between an expression of sympathy and an admission that the care provided did not meet the standard of care, he says. The first generally is not admissible in court, but the second is.
“You sometimes end up with the judge deciding whether it was a statement of sympathy or an admission that they performed below the standard of care, and it’s not always clear. You have lawyers arguing that the doctor felt sorry only because he knew he made a mistake, so the statement should be admissible,” Alessi says. “Doctors don’t get a lot of protection from these statutes in some states, and 18 states don’t have even that level of protection.”
Risk managers must take those concerns into account when urging physicians to participate fully in a CRP, he says. To best protect clinicians against claims that they admitted guilt when talking to patients and family, Alessi says the clinician should always be accompanied by an uninvolved witness who could later verify the nature of the conversation. This could be a nurse not involved in the adverse event, for instance, but not someone like a physician from the same practice who would have a financial interest in the outcome of litigation.
“That visit should go in the clinical notes just like every other encounter with the patient. The nurse or other witness should sign off on the accuracy of those notes,” Alessi says. “Those notes are admissible in court, and you have within those notes the signed statement by another person that those notes are accurate. That gives your attorney the opportunity to introduce those clinical records showing there was no admission, which can be persuasive even if the judge still allows testimony saying there was an admission.”
• Dennis J. Alessi, JD, Co-chair of the Healthcare Law and Employment Law Practices, Mandelbaum Salsburg, Roseland, NJ. Phone: (973)-736-4600, ext. 151. Email: email@example.com.
• David B. Mayer, MD, Vice President for Quality & Safety, MedStar Health, Columbia, MD. Phone: (410) 772-6562. Email: firstname.lastname@example.org.
• Jennifer Moore, LLB, PhD, senior lecturer, University of New South Wales, Sydney, Australia. Email: email@example.com.
• Victoria Rollins, MHA, RN, CPHRM, CPTS, director, patient safety program, The Doctors Company, Napa, CA. Phone: (800) 421-2368, ext. 1477. Email: firstname.lastname@example.org.
Financial Disclosure: Author Greg Freeman, Editor Jill Drachenberg, Editor Jonathan Springston, Editorial Group Manager Terrey L. Hatcher, and Nurse Planner Maureen Archambault report no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study. Consulting Editor Arnold Mackles, MD, MBA, LHRM, discloses that he is an author and advisory board member for The Sullivan Group and that he is owner, stockholder, presenter, author, and consultant for Innovative Healthcare Compliance Group.