Sorry Seems to be the Hardest Word Mitigating

Sorry Seems to be the Hardest Word: Mitigating Risk Through Effective Contrition Nicki Larch Sandberg Phoenix St. Louis, Mo

In the Beginning… As parents, most of us aim to instill in our children the ability to recognize when they have wronged someone, to apologize for the wrong, and try to make it up to the person.

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What We’ll Cover 1. Why 2. What to Say (and not) 3. How 4. Who 5. When

Disclaimer • When dealing with a significant damage adverse event • Fully investigate • Think “Tripartate” • Client, Carrier, Counsel - All need to be involved in this process

I - Why: Benefits of Contrition University of Illinois began its apology program in 2006, the Medical Malpractice Claims cut in half. Kevin Sack, Doctors Say ‘I’m Sorry’ Before ‘See You in Court, New York Times, May 18, 2008

I-Why: Benefits of Contrition Medstar Health, the mid-Atlantic region’s largest health system, participated in the Agency for Healthcare Research and Quality’s pilot program, Communication and Optimal Resolution (CANDOR) process Sandra G. Boodman, Should hospitals – and doctors – apologize for medical mistakes? , Washington Post, March 12, 2017

I-Why: Benefits of Contrition Hospitals involved in the 2010 AHRQ CANDOR program demonstrated the following results: • 40% reduction in preventable medical harm events • 80% reduction in time to settle cases • 20% reduction in services associated with defensive medicine Irene Paigah, Patient Safety Movement Applauds the Agency for Healthcare Research and Quality (AHRQ) & Medstar Health for Developing the CANDOR Toolkit (2016), http: //patientsafetymovement. org (last visited May 20, 2018).

I - Why: Benefits of Contrition Study by researchers from University of Michigan Health System and Brigham and Women's Hospital, analyzed records on 1, 131 malpractice claims, or requests for compensation due to medical error, between 1995 and 2007, which covered several years before and after the program was implemented. Sandra Koch, MD and Patrice Weiss, MD, Medical errors: Disclosure and apology, Contemporary OB/GYN, June 1, 2012

I - Why: Benefits of Effective Contrition • After health care providers began admitting mistakes, apologizing and offering compensation: – The monthly rate for new claims fell from just over seven per 100, 000 patient encounters to 4. 52 per 100, 000, or 36%. – The average monthly rate of malpractice lawsuits filed against the hospital fell by more than half, – The median time it took to resolve claims also dropped by several months – The mean costs for liability, including compensating patients and paying attorneys, fell by about 60%. – The average cost for lawsuits that were filed decreased, from nearly $406, 000 to $228, 000.

I - Why: Benefits of Contrition • The Case for Apology: – First and foremost, you apologize if/when/because it is the right thing to do. Think “Ought” – Mistakes happen, but it is how we respond to those mistakes that will help define the outcome.

I - Why: Benefits of Contrition Direct Benefits: • Improves employee and patient/resident satisfaction • Healing (on all sides) - The disclosure is not just about the patient/resident, it’s about the employee too • Improves: • Transparency • Closure • Care • Communication • Trust • Morale

I - Why: Benefits of Contrition • Traditional approach is conservative; we are usually reluctant to apologize or admit error • Fear of the patient/resident or family response • Lack of support & agreement among all caregivers • It is a learned skill set that must be taught, encouraged, and supported. 11

II - What: Steps in Handling (Before the apology) • • • Event Full investigation and reporting Get all the facts - gather and review all records Interview all witnesses Fully involve carrier, risk management and legal Involve all stake holders • Initial Disclosure

II - What: Key Factors to an Injured Party • Timely disclosure of the error • Truth and transparency • Clear explanation of what happened and why • Explanation of how the consequences of the adverse events will be addressed for them personally (medical treatment, etc. ) • Assurance that steps have been/will be taken to prevent the error from happening again • Emotional support, including an apology

II - What: Key Elements to an Apology Six Elements of an Effective Apology (Lewicki R, Lount R, & Polin B, 2016) 1. Expression of regret. 2. Explanation of what went wrong. 3. Acknowledgement of responsibility. 4. Declaration of repentance. 5. Offer of repair. 6. Request forgiveness. Your apology should have at least the first 5.

II - What (Not): Key Factors to Avoid

II - What (Not): Key Factors to Avoid The non-apology “Nobody is sorrier than me that the police officer had to spend his valuable time writing out a parking ticket on my car. ” “I’m sorry you feel that way…” “To anyone who might be offended…”

III - How (Not): Key Factors to Avoid Mistakes were made. . . • Commentator William Saffire calls this the “passive-evasive” apology. • Passive tone, no responsibility accepted.

III - How (Not): Key Factors to Avoid The “If apology” "If the remarks on the tape left anyone with the impression that I was disrespectful to either Governor Cuomo or Italian-Americans, then I deeply regret it. " Bill Clinton

III - How: Key Factors to an Injured Party Four Steps • Admission • Explanation • Contrition • Remediation

III - How: Getting it Right • Disclosure/Apology • Preparation • Review the facts • Designate a spokesperson and/or disclosure team • Select an appropriate setting • The Conversation/Disclosure • Simply describe what happened • State the facts • Say “I’m Sorry” • Establish a plan for follow up • Resolution

III - How - Getting it right • • Safe atmosphere Honest Complete Sincere Authentic & Genuine Emotionally Appropriate Tone Most importantly, it is human.

V - Who • Get the right person • Ideally, the one making the error (if an individual) - but not always • If systemic - the captain of the ship • Only if they have the capacity (High EQ)

V - When • Immediately once you have – The What – The Why – The How – The Who

But remember. . If you admit fault, it is likely coming into evidence at trial.

But remember. . 538. 229. 1. The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. However, nothing in this section shall prohibit admission of a statement of fault. 2. For the purposes of this section, the following terms mean: (1) "Benevolent gestures", actions which convey a sense of compassion or commiseration emanating from humane impulses; (2) "Family", the spouse, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half brother, half sister, adopted children of a parent, or spouse's parents of an injured party. Section 539. 229 RSMo (2005)