The "Compensation Challenge" in Disclosure & Apology Cases...
Recently, I have had conversations with several healthcare and legal professionals who had the same message for me: More hospitals and physicians are apologizing for medical errors, but...that's it...too often they don't provide compensation for medical errors, or don't know how to broach the subject of compensation with patients/families. A legal professional said he is seeing more and more cases where the doc will apologize and describe the error(s) in great detail to the patient/family and discuss fixes so the mistake is not repeated, but, then, tell the family "goodbye." Naturally, many families feel short-changed and pursue litigation. A healthcare professional said some clinicians are not sure how to exactly to start the compensation discussion, while other clinicians worry any talk of money or other remuneration will spur patients/families to get greedy and file a lawsuit.
Look, it's great that physicians/hospitals are willing to apologize and admit fault to patients/families. Ten years ago this would have been unheard of. So, we have made progress -- great progress. But, let's be realistic: If you tell a family "we made a mistake, we are sorry," the family is probably asking themselves, "What is the hospital or doctor going to do for me?" To think otherwise is naïve and foolish. If you are going to open the door you should be willing to walk all the way through, not just halfway.
My friends indicated to me that docs are almost always handing these disclosure events, and too often clinicians often have no idea about the compensation piece and/or don't have authority to discuss money.
The compensation piece has always been a struggle in the disclosure movement. Plenty of people willing to say "sorry," but, money or other forms or compensation is a different story. I don't know how many times I heard, "Well, we told the family we were sorry...what more do they want?!?" Geez...
People want to be treated the same way you would want to be treated. If there is potential economic value with a case, it needs to be discussed during disclosure meetings and you need to put people in the room who have a) the knowledge and b) authority to discuss money. This means at some point administrative types, risk managers, etc need to be included and ready to talk. In fact, a risk consultant told me one client hospital always includes risk managers in all disclosure meetings.
And here is a great way to begin the compensation discussion with a patient or family: "Mrs. Smith, we told you we are sorry for the medical errors that hurt your husband, we acknowledged your anger and frustration, and we showed you how our processes will be fixed so it doesn't happen again to another patient....now, what do we need to do make this situation right by you?" Put it back on the patient/family, then, shut up and let Mrs. Smith talk.
You'd be surprised at the responses you will receive. Often, patients and families have no idea what to ask for, or what they can reasonably request. In fact, many patients/families have no idea that hospitals/doctors carry liability insurance. It's true! Sometimes patients/families will share wants that have nothing do with money....perhaps it will be something to remember their loved one, or being involved in the hospital...or nothing. Perhaps your honesty and candor will be all they need. Conversely, some families will need some form of compensation, whether it is money, waived bills, future medical care, or other life needs. Who knows? The point is people can be very reasonable and humble when their anger is diminished. Moreover, by asking the open-ended question -- "How do we make this right by you?" -- you can learn about really important things to the patient or family that you would have not guessed on your own.
I believe that when going into a meeting where compensation may be discussed you need to have an idea of the economic value of a given case. If a family doesn't know what to ask for, or has very modest requests, you need to be ready to make suggestions: "Mrs. Smith, we would love to have you give a talk to our medical staff, and, of course, we will waive your husband's current and future bills, but this case is worth more...your husband is missing time from work, you are burning vacation days, and there is pain and suffering for both of you..to be fair, your case is worth X."
Now, "X" can be discounted because there is no litigation or protracted waiting for the family, but it still has to pass the smell test. You have to figure that Mrs. Smith will tell her family, friends, and others in YOUR community how you handled HER case. You don't want people thinking you ripped off poor old Mrs. Smith.
Conversely, if Mrs. Smith slams her hand on the table and demands $2M for a case that is worth $50K, you continue talking with Mrs. Smith, perhaps she still has some anger that needs to be addressed, or maybe there is something about her life that truly does raise the value of the case, but, in the end, if the case is only worth $50K you say the following: "Mrs. Smith, we have made a fair offer...feel free to discuss this offer with anyone you choose, and you can contact us anytime to accept the offer." Then document the conversation. Some hospitals have found that the involvement of competent plaintiff's counsel can provide a reality check for patients/families. In fact, some hospitals won't meet unless the patient/family is represented -- but this does NOT mean the hospital has waited for the attorney to call or a lawsuit to be filed.
In conclusion, we've made progress with disclosure, but to give truly authentic apologies we have to be willing to fix the damage we caused. This means compensation (monetary and otherwise) must be considered and discussed with any case.
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