Doug Wojcieszak, James W. Saxton, Esq., and Maggie
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This book is, in part, adapted from speeches I have given to medical, insurance, and legal organizations across the United States and in Australia and Canada over the last two years. Liability exposure has been a major issue for healthcare and insurance professionals for a long time, and they are looking for new solutions to an old problem. More and more doctors, nurses, risk managers, hospital administrators, and insurance executives are turning to Sorry Works! for answers. I thought it was time to put Sorry Works! in a book that was concise and to the point. Along the way I met and had the pleasure of working with James Saxton and his team at the law firm of Stevens & Lee. It was fascinating to me how as lawyers and health law consultants they were spreading the same message. To make sure this message was well grounded in law and risk management principles, we collaborated, and this book is part of that partnership. This book adequately covers the topic of disclosure and apology but has intentionally been kept short so even the busiest professional could read it on a plane ride or over a weekend.
Though Sorry Works! has its roots in medicine, it is my hope that this book finds a wider audience in corporations, the small business community, and other sectors of our society that are concerned about litigation. I also hope the book appears in college course syllabi so future doctors, lawyers, and business people can read, discuss, and debate it. Indeed, if Sorry Works! can work in medical malpractice (often thought to be one of the most contentious and expensive litigation arenas) imagine what it can do elsewhere! Moreover, though Sorry Works! is a process and program, it also a way of life universal to all people. Indeed, Sorry Works! returns us to our parents’ lessons about apology and fixing mistakes.
People can actually live with mistakes, but they do not accept or tolerate cover-ups. Sorry Works! taps into this psyche and, in doing so, provides a simple yet devastatingly effective way to reduce litigation and associated expenses while improving outcomes and safety, which further decreases litigation exposure. The keys are honesty, candor, and a real commitment to fix problems when something goes wrong. All three elements must be present to prevent conflict, and Sorry Works! shows you how to do it.
James W. Saxton, Esquire has been an active trial lawyer representing healthcare professionals in state and federal courts and administrative proceedings for over 25 years. He uses his extensive experience as a litigator to advise healthcare professionals in connection with understanding and reducing their professional liability risk.
Maggie M. Finkelstein, Esquire concentrates her practice in health law with a focus on loss control and event management for healthcare professionals and is an experienced litigator in both federal and state courts.
Doug Wojcieszak is a public relations and political consultant with extensive experience in medical malpractice. He founded the Sorry Works! Coalition to teach healthcare professionals and insurance companies that disclosure and apology is the best way to address adverse medical events.
Sorry Works! . . . works, but don’t think about it as a name, but rather as a concept. It really does work. Concern about the concept most likely stems from confusing the concept of showing empathy and compassion versus an apology where one accepts responsibility. Both are important concepts, but are very different. Many lawyers, risk managers, and insurance professionals thought that “sorry” meant one was somehow admitting liability or that they had done something “wrong,” perhaps accepting responsibility. This concern was enough to make many pause . . . some from even interacting with patients and family after an unfortunate outcome. Laws even had to be passed so doctors could say, “I’m sorry,” without being somehow made to also have admitted fault.
We’ve been making it too hard. Sorry Works! works when there is an adverse outcome. Everyone is sorry, as they should be. Everyone wants to show empathy, which is a basic human response and need. It is a little sad that this concept has become at all controversial. Admittedly, with the phrase, “I’m sorry,” there is room for misinterpretation, all the way around and probably in good faith. A doctor could misinterpret the concept, thinking this means he or she is accepting responsibility for a known complication of a procedure or for failing to meet patient expectations. That is not the case. Patients may think “I’m sorry” means that someone did something wrong. Insurance companies may think it means that they will be required to make a payment. These conclusions underscore the importance of education and institution of a process and a program.
To be clear, “sorry,” or showing empathy, works by making a difficult situation a little better nearly 100% of the time. It does not mean the pain, discomfort, and expenses that go along with an adverse outcome will go away. Of course not. It does not mean 100% of the time the patient will not go to a lawyer or not pursue a lawsuit. However, it does make these very difficult situations a little better almost 100% of the time. “Sorry” works.
At times, an apology and literally accepting responsibility for an error needs to happen. An apology that includes acceptance and ownership is powerful and important and far better than the alternative of years of contentious public litigation in many situations. However, it is admittedly more complex. Sometimes it is hard to quickly determine fault (meaning responsibility). In America and other similar countries where there is not a “no-fault system,” we need to be thoughtful about the method. Further, once we accept responsibility, sometimes it is difficult to determine value. Determining value for inherently subjective damages is challenging, but can be accomplished. Do lawyers help? Maybe, but not all the time. Some would argue that the transactional cost of a settlement with a lawyer has climbed rather high. If we had the 50% transactional costs and expenses and settled with a family three years earlier, we could certainly do a lot of good. However, sometimes lawyers do help, a lot.
Think of Sorry Works! first as a concept...the act of kindness, caring, and reaching out to the patient and family after an adverse event. Part of that process will be expressing sorrow: “I’m sorry.” We will show you how this can be done appropriately without admitting fault prematurely. We will show you how it actually makes the entire situation better for the providers if the event moves forward to litigation. We will also explain when it is appropriate to apologize and accept responsibility, and how to do it.
Let’s not get bogged down with why it may not work, but instead talk about how we can thoughtfully make it happen. Doug Wojcieszak knows firsthand, and the hard way, how badly Sorry Works! is needed. He and his family went through it. In the first chapter of this book, he will share with you the importance of this concept. Our team of healthcare litigators, along with risk managers, surgical consultants, psychologists, and physicians, in collaboration with insurers and hospitals across the country, has dealt with this issue time and time again. The Sorry Works! Coalition and Stevens & Lee have collaborated to put forth a straightforward book on this concept often referred to as disclosure, and a concept we feel is really a subset of enhanced communication post-adverse event. We will go through what Sorry Works! is and what it is not - why it works and most importantly how. We have done so only after seeing it work for many, many doctors, hospitals, insurers, and, of critical importance, patients. We have talked to the “naysayers” and worked through the concept with them as well. Many have found out how important this concept is the hard way — in court. You need not.
There is work to be done with Sorry Works! by doctors, insurers, hospitals, and yes, patients. There is clearly a job for patients here. We must get patients on the same side of the table as our doctors post-adverse event. It really works better when, at least initially, patients go to their doctors first. Also, it is important to understand that Sorry Works! or disclosure and apology does not just happen. Like so many things in life, there needs to be a process, a method, a plan, and execution steps. That is where this book can help.
If you ever sat through a meeting with a doctor and a patient after heartfelt empathy is exchanged with everyone in the room crying and yet everyone in the room feeling better, you would understand that “sorry” works for everyone. Let’s get started.
