Address your liability implications first
If your organization is ranked as having lower mortality rates for heart attack patients than any other hospital in your community, your public relations staff probably would want to jump all over this for their next promotional campaign. Indeed, many hospital web sites now include press releases using publicly reported data to trumpet how they compare to competitors. But what if the data presented are potentially misleading, due, for example, to differences in patient populations that affect outcomes?
There could be increased liability risks if the organization boasted that its care was safer and this is shown to be unfounded during a malpractice lawsuit, warns James W. Saxton, JD, chairman of the health care litigation group at Stevens & Lee, based in Lancaster, PA, and chairman of the American Health Lawyers Association’s practice group on health care litigation.
Before using quality data in advertising and marketing campaigns, consider the potential impact on patient lawsuits, Saxton advises. "We are in a crisis right now throughout the country, with medical liability rates literally driving physicians out of practice," he says.
Therefore, you must balance impressive-sounding quality data with maintaining realistic expectations, notes Saxton, adding that patient expectations right now are at an all-time high. "Patients assume their providers will be able to cure their problems 100% of the time, that it’s done with a smile and conveniently, and when that doesn’t happen, that is often what drives patients to lawyers in the first place," he says. "When expectations are out of line with the reality of what is being delivered, we have a potential problem."
Attorneys are poised and ready to use any leverage they can, and that includes your organization’s promotion of its comparative quality data, Saxton stresses. "You need to understand that plaintiff’s lawyers are downloading advertisements found on the web and in journals, are taking pictures of billboards that boast of this type of information, and are literally attaching this to the legal complaint they file and using it in the courtroom," he says. "They literally blow them up the size of a movie screen and say, This is what this hospital told the patients in this community. Don’t let them tell you that delivering anything less than that is OK,’" Saxton adds.
That type of evidence can be admissible despite the objections of defense attorneys, so juries can consider it along with everything else brought in as evidence. "And it can be pretty powerful in the courtroom," Saxton explains. "Remember that you always get 12 patients on the jury; you don’t get 12 doctors or 12 hospital administrators."
Take these steps to reduce legal risk:
• Make sure the data are accurate.
As a quality professional, you play a key role in ensuring that data are not easily subject to misinterpretation from the lay public. "I think you have to be very careful that the spirit of what you are saying is not misleading," Saxton says. For example, saying that you give safer cardiac care may be a good sound bite, but an attorney can challenge that on a factual basis in court. A plaintiff’s attorney may say, What was it about your organization that you felt was safer?’ And if you mention the statistics, they will ask, Does that really mean that your hospital is safer for this patient than the health system down the street?’ If the answer is no, could the jury get upset about that? Maybe it can affect your all-important credibility," says Saxton.
• Balance boasting with realistic expectations.
If you are proud of how you stack up against your competitor and have the data to prove it, it’s not a bad idea to brag about it, says Saxton. "I’m not suggesting that an organization shouldn’t use this information for a marketing initiative, but you need to balance it with what I call expectation management,’" he explains. Examples of this include patient education materials such as videos and brochures that explain the risks of medical procedures and a thorough informed consent about surgical procedures, says Saxton.
• Collaborate with risk managers and public relations staff.
As a quality professional, your input is essential before publicly reported data are used for a marketing campaign, since you know what will hold up under a microscope — and which statistics may fall apart upon closer inspection, advises Saxton. "In the past, that collaboration is something that has not occurred, but clearly now that publicly reported data are becoming an important issue, quality professionals need to collaborate with public relations and marketing people," he says. "You will get a healthy tension between the two and will probably end up with about the right balance."
For more information on liability risks of publicly reported data, contact:
• James W. Saxton, JD, Stevens & Lee, 25 N. Queen St., Suite 602, P.O. Box 1594, Lancaster, PA 17608-1594. Phone: (717) 399-6639. Fax: (717) 394-7726. E-mail: email@example.com.