Disclosure, Apology and Early Offer: Understanding Senior Care Risk Forum

1. Disclosure, Apology and Early Offer The LTC Risk Legal FORUM – Las Vegas January 18, 2013 William J. McDonough, Managing Principal Integro Insurance Brokers

2. Which are you – an Optimist or a Pessimist

3. Agenda Introductions 1 What is Disclosure, Apology and Early Offer 2 ✓ State of the State in Senior Care and Assisted LIving 3 4 When, How and Who should I do It? 5 Disclosure and Apology – Step by Step Process 6 Your Responsibilities as a Providers 7 Questions and Answers

4. Our Objectives today … Transparency • Define Disclosure and Apology (Our focus today) • Define Early Offer Programs • Understand pitfalls of Disclosure Programs • Review and analyze industry data as respect to these Programs • Review Best Practices • Learn and have fun… • Questions and Answers

5. What Should we be thinking about? Zero Tolerance • State laws regarding disclosure, apology • Growing experimentation with disclosure approaches • Healthcare organizations • Malpractice insurers • New standards and regulatory guidance- CMS, TJC, NQF and others • Increased emphasis on transparency in healthcare generally – including SENIOR LIVING Your Logo

6. The One Certainty in Senior Living– No one said Disclosure and Apology is asy…

7. Disclosure and Apology Legislation (examples) Are we protected?

8. State of the State – Senior Living SNFs, Assisted Living, Rehab and Step Down Facilities • Focus originally with acute care healthcare and physicians in those settings (Driven by Joint Commission, and leaders in the patient safety movement (Lucian Leape, MD)) • Movement to other settings commenced in the late 1990s and early 2000s – focus Ambulatory Care, Physician Offices, Senior Living, Home Care, etc. • Unfortunately, less focus and “movement” in Senior Living sector on Disclosure, Apology and Early Offer.

9. It’s from the Resident’s Attorney

10. Is it appropriate to apologize? Events in Senior Living which are non-negotiable • Harmful errors often not disclosed • When disclosure does take place, often falls short of meeting patient or resident (family) expectations • Little prospective evidence exits regarding what disclosure strategies are effective • Impact of disclosure on outcomes unclear (e.g. will the family sue?)

11. When Choosing A PathBecomes Confusing

12. Is it appropriate to Disclose and Apologize… Is it the “right thing to do”

13. What do families want to know and WHEN? • Skins tears, wounds • Infection • Change in behavior • Fall(s) • Assault by other resident/patient • Nutrition Management • Medication Error • Report of abuse or violence • Other unexpected outcomes

14. Does Disclosure and Apology help to prevent this?

15. What is the landscape out there… Disclosure and Apology • 38 states have adopted apology laws to date • Protection varies widely • Does not mean you can’t be sued if you disclose • 7 states mandate disclosure of some events to patients • Impact of these developments likely to be limited

16. What have we learned in Senior Living? What Nurses in Senior Care have to say... • Nurses have an obligation to disclose an error when one occurs. This study explored 1180 nurses' perceptions of error disclosure in the nursing home setting. • Nurse respondents found disclosure to be a difficult process. Registered nurse respondents and nurses who had prior experience disclosing a serious error were more likely to disclose a serious error. • The study has implications to improve nursing education, policy, and patient safety culture in the nursing home setting.

17. Good apologies Acknowledgment of responsibility and allowing refusal of apology Sincere remorse May or may not include explanations or promises to change Bad apologies “Apologia” Blaming victim, minimizing the harm, or deflecting the apology to the wrong party Only expressing sorrow for suffering True or False After disclosure, an Apology is appropriate?

18. True or False Disclosure is an admission of liability?

19. THE GAP… Only 30-40% of providers disclose an event to their patient(s), or residents The GAP Most providers (86%) believe that they should disclose after an event Resolution Adverse Event When in doubt, contract your Administrator, Counsel or the Risk Management Department Source: When Things Go Wrong, Risk Management Foundation

20. Do you consider Disclosure and Apology asForced Cooperation and Collaboration

21. Disclosure Gone Bad Risk Factors in the Senior Care Setting Physical Space, Environment Not Conducive Not prepared As a Team Not familiar With rules of Conflict Resolution Not performing A “DRY RUN” Not allotting Enough time For the Dislosure Internal Investigation Not Complete

22. Record Keeping – it’s important Who’s responsibility is it at your Organization? WORDS of WISDOM Staff The words “I want to apologize” Is NOT an apology Resident YOU Family Your Logo

23. Disclosure Meeting Protocol Deliberate Steps to take with Resident, Patients, Families • Determine where the meeting will take place: • It should be a quiet, private, and comfortable setting. • There should be no barrier (table or desk) between the team and patient, resident and/or family (P/R/F) • All beepers/pagers/phones should be turned off. • Decide on the agenda in advance, share the agenda with the P/R/F. • Communications must be consistent—agree in advance on what is known, on what is not, and on what must await further investigation. • Be prepared to say “I don’t know” if some of the facts are unknown. • The treating physician, Medical Director, Administrator, DON is usually responsible for the disclosure. • Document the meeting in the P/R’s medical record according to standard practice.  • Avoid becoming angry, emotional, or defensive.

24. Disclosure Meeting Protocol Deliberate Steps to take with Resident, Patients, Families • Stay away from blame and don’t finger point! • Avoid using names; focus on what happened, including system error(s) if present. • Follow these four steps in the disclosure: • Tell the resident /family what happened—limit the discussion to known facts; avoid speculation. • Assume overall responsibility as the P/R’s caregiver—not only for what happened, but also for updating the P/R/F, monitoring, and managing complications, etc. • Apologize if appropriate—when a personal apology is appropriate, the person responsible for the adverse event or with most knowledge should make the apology. • Explain what will be done to prevent this from happening again—P/Rs want to know that this won’t happen in the future to someone else. • Future consequences of the injury (such as hospitalization, medications, surgery, future medical treatments, or disability) should be disclosed. • Make time for the patient/family to ask questions and express their feelings. Communicate to the P/R/F that they are being heard and their concerns taken seriously. • Be prepared to handle questions that might arise regarding compensation. (Is the bill being written-off? Is it being held pending further investigation?)

25. Early Offer, after Disclosure and Apology What making an offer is the “right thing to do” • Do not enter this phase “alone” • Early offer is an ideal option when liability is clear • Early offer should be a decision made with your Risk Manager, Claims consultant and/or Legal Counsel • Your insurance carrier should be involved as well RULES OF THE ROAD

26. Early Offer, part II Benefits of accepting the inevitable • Negligence is clear • Outcome could have been avoidable • P/R/F appears reasonable and working with you • Disclosure and Apology were successful • Consultants agree this is the “way to go” • P/R/F and Facility will benefit from early closure!

27. Disclosure, Apology and Early Offer is the right thing to do! We just don’t have the RIGHT TOOLS…

28. Final Thought for the Day • Ideally, caregivers would tell patients, residents and families when problems occur. Reasonable compensation would follow for avoidable injuries, and safety management would constantly be informed by experience. Patients and residents (and families) treated decently are mainly grateful, not vengeful. Senior care providers need to worry more about care outcomes than legal outcomes, and systems of accountability need to make it easier for caregivers and senior care organizations to do the right thing.

29. THANK YOU! Your Logo

30. Which are you – an Optimist or a Pessimist

31. Your Logo

32. Resources at the “click of a mouse…” • http://oregonpatientsafety.org/healthcare-professionals/disclosure-guide/ • Laura M. Wagner, Kimberley Harkness, Philip C. Hébert, Thomas H. Gallagher. Nursesʼ Perceptions of Error Reporting and Disclosure in Nursing Homes. Journal of Nursing Care Quality, 2011; DOI: 10.1097/NCQ.0b013e318232c0bc • http://www.macoalition.org/documents/respondingToAdverseEvents.pdf