Open discussion of medical errors and other liability issues actually can help drive claims down, not up, as many risk managers fear, says Kathryn K. Wire, MBA, CPHRM, president of Enhanced Claim and Risk Services in St. Louis. The big hurdle, she says, is getting health professionals past their fear of talking after years of being told to keep quiet.
Too often, she says, risk managers and other health care leaders only talk to the patient or family member who feels like the victim of negligence in two situations: either the patient or family member is demanding money or you think he deserves money. That creates a situation in which money is the sole focus even if you dance around the issue with other talk about doing the right thing and improving quality.
"Why do we limit our interaction with the patient and family to reimbursement talk?" Wire asks. "Why not make them part of the larger process? What better time to get their input?"
Full disclosure of medical errors and negligence has been gaining steam in recent years, but she says you still are likely to do encounter substantial resistance when you start encouraging clinicians to talk more openly. To get around those obstacles, Wire encourages risk managers to take on the role of coach and provide the support that staff need to make this significant change in thinking and process.
7 steps to full disclosure
At the recent meeting of the American Society for Healthcare Risk Management in Orlando, FL, Wire outlined a seven-step plan for encouraging full disclosure and embracing poor outcomes as a claims management tool. These are her seven steps:
1. Make sure you can count on early and complete event reporting. Staff should complete a preliminary investigation and preserve evidence as soon as possible. Encourage staff to report nearly everything with a very low threshold for what constitutes an "error" or "adverse event." Infections and tape burns should be reported, she says, though that doesn’t mean every reported incident will be investigated.
2. Work to secure cooperation and support form the patient’s attending physician and the medical staff in general. "Let’s face it. Nothing goes well in a hospital or clinic if the doctor doesn’t like it," Wire says. "You have to get them on board."
The good news, she says, is that most doctors want open communication. They just don’t know how to go about it. So put on your coach’s hat and help them by providing examples and walking them through realistic scenarios. Lots of hand-holding might be needed.
Wire also advises working with the physicians’ insurance company claims agents to get them on board with full disclosure and open communication. That will help avoid any conflict (real or perceived) with your philosophy and the insurance company’s.
3. Contact the patient or family when an issue arises. Don’t wait for them to come to you. First, determine who will contact the patient or family. If the issue is staff-related, a unit supervisor may be appropriate. If the issue relates to physician care, or if there will be significant issues about the patient’s condition and ongoing care, the physician probably should make contact. The risk manager should handle any money questions.
Remember that contacting the patient or family is a multistage process. Offer a time line for when they might expect more information. Tell them about any legitimate impediments to your process, but be careful not to offer hollow excuses. Also outline for the patient or family what can and cannot be shared.
"Be careful what you say, because nothing is worse than giving bad information," she says. "You should assume that the patient will get an attorney who will investigate. If you don’t know for sure yet, just say so."
Report investigation results to family
4. When appropriate, quickly confer with the insurer or claims committee. Wire explains that there is a window of time in which you can resolve claims in the most painless way possible. That window opens when the event happens and closes shortly after the investigation is finished.
"The earlier you can talk business, the more seriously the patient or family will take your position," she explains. "Remember, plaintiffs’ attorneys don’t get a fee on money you offer before they are involved."
5. Conduct a full investigation. Wire points out that this is not the first step. You should make contact with the patient or family first. When organizing the investigation, include the staff and attending physician. Conduct your full investigation parallel to the sentinel event and defense investigations.
The risk manager does not have to direct or control this investigation. If you need to bring in outside expertise for your investigation, do not use the same experts who do your physician peer review. That could destroy the confidentiality of your peer review process.
6. When the investigation is complete, go back to the patient or family with results. Disclose all factual information that is not purely protected, such as peer review outcomes for physicians. Talk about system changes if you can or, if you can’t, promise that you will get back to them with specifics as soon as possible.
When possible, involve the patient or family in the changes that may result from your investigation. Wire says you should be ready to deny a claim or talk dollars at this point, but only if the other party raises the issue.
7. When payment is appropriate, don’t delay. No matter how constructive and conciliatory your response after an adverse event, there is no getting around the bottom line: If the patient or family is due some money, you will have to write a check. Get authority quickly and don’t delay the payment unnecessarily.
Four obstacles and ways around them
When employing that strategy, Wire cautions that you are likely to encounter obstacles in form of other participants who are reluctant to proceed in the way you know will yield the best result for everyone. Here are the four most common obstacles and her strategies for getting around them:
• The physician who won’t disclose. This is a common problem because for years physicians have been taught to keep their mouths shut when something goes wrong, or when they are accused of an error. Wire advises reminding physicians that the tide has changed and not only is disclosure a good idea, but it is required in some situations. Cite the ethical need to disclose.
"The important thing to know is that doctors really want to disclose, but they’re just scared," she says. "Offer support. You have to acknowledge that this is something that can be very intimidating to them."
Also, Wire says you must make sure the physicians know about the open disclosure approach before they have an incident requiring disclosure. Bringing up the subject for the first time in the midst of an adverse event will not go over well.
• Hospital administration will not support your effort. Like physicians, hospital administrators often have a firm belief that you should keep quiet when bad things happen. The risk manager can counter that by discussing the disclosure strategy at every level before an event occurs. Stress the good financial results and the positive public relations that can accrue from disclosure.
Notify administration quickly about adverse events, and outline an emergency authority structure in advance. Be prepared for resistance when you request large sums for payout with a short lead time.
"Be ready to persuade administrators over and over again," she says. "You have to keep repeating the No. 1 reason you’re doing this: It’s the right thing to do."
• Defense counsel is against full disclosure. Lawyers rarely want their clients to admit liability. It goes against everything they do as lawyers. But your defense counsel needs to be aware of your disclosure plan up front and available to advise on damage questions during the disclosure process.
Wire advises that the defense counsel and administration might gang up against you. They will feed each other’s worries about the disclosure plan and you will have to be ready with a good argument in support of your plan.
• Greedy or glory-seeking plaintiff’s attorneys fight your disclosure plan. This can be one of the most challenging obstacles, Wire says, and there is no immediate way to overcome the influence of an attorney who discourages a client from participating in your disclosure process. You can work with the local plaintiff’s bar to exert some peer pressure on attorneys who act against their clients’ best interests, but expect only limited success.
Rest assured, however, that an attorney who steers his client toward a more combative approach will eventually look bad when you admit liability at trial or mediation and point out that you wanted to do so early on. Be prepared to talk with the client directly if he or she separates from the attorney in an effort to resolve the case.