Ethically inconsistent marketing of communication and resolution programs

By Doug Wojcieszak 

The movement to encourage physicians to disclose, apologize, and make amends (financial and otherwise) following medical errors is gaining momentum, especially in the United States.  Many people are supporting this movement, including a large and growing collection of healthcare, insurance, and legal professionals and patient advocates who call themselves the “Collaborative for Accountability and Improvement,” or “The Collaborative.”

The Collaborative has coined the phrase “communication and resolution programs” or CRPs to describe honesty and accountability following medical errors, though there are many other names for these programs including disclosure and apology, CANDOR, and other marketing slogans. The creation of the Collaborative is a welcome development that will surely speed the development of disclosure in medicine, so long as their marketing pitch doesn’t confuse or alienate medical professionals as well as patients, families, and personal injury lawyers.

A June 2021 Collaborative webinar criticized those in the disclosure and apology movement who focus on claims and litigation reduction as “consequentialists” (ends justify the means), while the Collaborative’s speaker said their group fixates only on “fidelity of the process,” even if litigation ensues following their communication and resolution efforts. Moreover, Collaborative leaders published the following testimonial in response to the alleged-consequentialists: “Honesty, transparency, and an overriding urgency to improve the safety of the clinical care represent goals with intrinsic value and resonate with patients, caregivers, and healthcare organizations alike. When those goals and values, not dollars, sit at the center of an organization’s efforts, it is far more likely that an authentic CRP will take hold.” In fact, Collaborative leaders have long advocated that the disclosure movement should be marketed not as a risk management instrument but as a patient safety tool.

“The Benefits” link on the Collaborative’s home pages declares CRPs provide the following benefits for consumers: “When a patient is harmed during care, research shows that most patients and families want an honest explanation of what happened, an apology, and an understanding of how similar events will be prevented.  An acknowledgement of their pain can sometimes be the most important ingredient to their healing.  CRPs engage patients and families about what they need to reach resolution.”

The benefits link then promises the following advantages for healthcare providers and healthcare organizations: “The emotional toll that patient harm can have on providers can lead to trauma and burnout. CRPs provide proactive support, as well as tools to help providers communicate clearly and empathetically with patients after an unintended harm event.  The experience of openly communicating with the patient and family can rebuild trust and maintain the patient-provider relationship…CRPs remove barriers to event reporting and identify more safety gaps…..they result in organization-wide prioritization of patient-centered care.”

These ideals are noble and laudable, but are they enough for consumers and clinicians and even the Collaborative’s own leaders?  Apparently not.

The Collaborative’s leaders recently positioned CRPs as a different and better way to address the impending pandemic-induced malpractice litigation crisis with an editorial entitled, “Another Medical Malpractice Crisis? Try Something Different.”  Suddenly claims, lawsuits, and money are important. Better yet, the Collaborative’s Executive Director referred to this editorial with this May 2021 quote: “One thing that may make those in the C-suite sit up and pay attention are the financial implications of being transparent.”  Perhaps “consequentialism” is not at dirty word at the Collaborative after all?  In fact, many of the founding members of the Collaborative authored several studies and even offered Congressional testimony pointed squarely at the litigation and claims reduction and cost savings that follow the implementation of CRP programs. If CRPs are not about money, why write and speak so much about dollars?  Finally, the link below the aforementioned benefits tab on the Collaborative’s website is titled “what you can do” and includes the following language: “CRPs are quality and safety programs that have a clear risk management benefit. Contact us to learn more about how they can be a valuable part of your risk management strategy.” Speaking out both sides of the mouth is not only hypocritical, it is also unethical and damaging to the movement for transparency after medical errors.

So, what are CRPs?  Patient safety tools?  “Do the right thing” programs?  Litigation reduction mechanisms and risk management strategies?  Or can they be all of the above?  Can CRP/disclosure programs reduce litigation in an ethical manner that enhances patient safety?  And can the Collaborative, a growing organization full of medical, legal, and insurance professionals and patient advocates, offer ethically consistent marketing pitches that will neither confuse nor alienate various stakeholders, or expose their leaders as hypocritical?

There has been so much dishonesty in the medical malpractice field for decades, both with consumers and clinicians.  If we in the disclosure/CRP movement cannot be honest with ourselves regarding the intentions of these programs or offer ethically consistent marketing pitches, how can consumers or clinicians be expected to believe anything we say?

Indeed, the malpractice crises have been all about claims and litigation reduction, and physicians as well as nurses and other healthcare professionals are rightly concerned about lawsuits. Medical professionals and the insurance and legal professionals who support them will need to see and hear potential cost savings from CRPs/disclosure programs before CRP/disclosure adoption is wide-spread. Conversely, patients and families certainly want empathy and safety improvements in medicine, but they also want to know that the financial harm of medical errors will be fairly and quickly addressed. There are countless posts on social media from patients, families, and patient safety advocates mocking CRPs/disclosure programs for trying to buy off consumers – known as “cooling the mark” — with a cheap “sorry.” Many patient advocates and personal injury lawyers worry that CRPs’ ability to “cool the mark” will cause financial damage to vulnerable patients and families dealing with medical errors.

The message needs to be sent that healthcare organizations can achieve litigation reduction and cost savings with CRP/disclosure programs but only if they are honest, ethical, and fair with patients and families in every case.

 

Author: Doug Wojcieszak

Affiliation: Sorry Works! (a 501c3 patient safety organization), Glen Carbon, Illinois, USA

Social Media accounts: www.sorryworks.net; doug@sorryworks.net

Competing interests: There is no financial conflict interest to report. This article is part of a larger philosophical and ethical debate that had been simmering in the disclosure/transparency for many years around the issues of 1) marketing the disclosure/transparency movement and 2) financial compensation offered to injured consumers and grieving families. Sorry Works, the Collaborative, and other groups and individuals have participated in this brouhaha over the years. Hopefully, this article will lead to more discussion and more articles on the topic.

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