When the stakes are high

The American Society for Healthcare Risk Management has long been a champion of transparency and disclosure in healthcare. Geri Amori, a past ASHRM president and vice president, academic affairs for HCPEducation, explains why these issues are so important.

In what way are risk managers champions of transparency?
Risk managers are champions of transparency through their efforts to strengthen honest communication with patients and families. Honest communication is supported by providing: 1) infrastructure that helps distinguish hearsay, gossip, and assumptions from fact; 2) ongoing training for staff in effective communication skills; 3) tools to help staff hold difficult conversations; and 4) emotional and psychological support services for staff who are involved in traumatic events.

Why does transparency matter?
Transparency matters because it is a basic construct of trust. Humans need to feel in control of their situation. If we can’t control the physical aspects of our situation, we need to feel that we are respected. Respect puts us in control of our psychological situation. We believe that people who respect us will treat us fairly. They treat us fairly by giving us information so we can maintain as much control of our physical and psychological situation as possible.

That is what we call ‘trust’. Humans also sense when others are not being completely honest. That lack of transparency quickly leads to a lack of trust. Lack of trust leads humans to suspicion. Suspicion sets the framework for easily triggered anger. And, in our society, anger leads to litigation or even physical violence.
How have risk managers’ roles changed over the past decade in relation to the need for transparency?
Risk managers’ roles have changed dramatically in the last decade as our society has shifted from the perception of healthcare as physician-oriented to patient-oriented. The goal of risk management is still to look for risks, identify how to mitigate risks, and provide finance for those risks that will happen. However, the world has caught up with what risk managers have known all along: the best way to manage risk is to recognize the impact on everyone and every aspect of the organization, identify the best ways to provide safe, effective care, and to be a trustworthy partner in care with the patients we serve.

What is ASHRM’s position on transparency?
Since 2000 ASHRM has been an international leader emphasizing the value of transparency to help identify areas for improving care and for maintaining the trust of staff, patients, families, and our communities.

What was the reason for ASHRM’s monographs on disclosure?
In late 1999, when the Institute of Medicine Report To Err is Human was released, there was a period of confusion and a sense of deep vulnerability. It was clear we were on the path to more public scrutiny. While many of us already believed that transparency was the ethical and appropriate approach, there were many legal ramifications. There were licensure implications for physicians and nurses who admitted they made a mistake. There was a general belief that malpractice litigations would increase if patients knew about errors. There were litigation ramifications if hospitals tried to fix error-prone processes while active litigation was pending.

Consequently, organizations were unclear about the best way to develop policies about disclosure, support transparent conversations, and deal with the history that made disclosure very unfamiliar territory.
ASHRM has published four monographs on disclosure. The first was released in 2001 when the first Joint Commission standard on patient safety was released. At that time ASHRM was setting the stage for further discussion. The initial monograph was the combined input of national thought-leaders about the current state of transparency. It was a landmark event including input from chief executive officers.

The subsequent monographs were written to provide a comprehensive roadmap for organizations. They provide a model infrastructure, guidance for policies and procedures, and information for the development of in-house coaching and training.

What were the main points put across in these?
The first monograph discusses disclosure and transparency in general terms. It provides a rationale and models for building an organizational infrastructure that supports transparent communication. It also examines the psychological and legal barriers to open communication.

The second monograph dissects an open communication policy. It provides a framework for developing a policy as well as important considerations. For example, the monograph presents the view that a ‘communication’ policy may convey the intent of transparency more appropriately than simply a ‘disclosure’ policy. This is a perspective for consideration by organizations who may wish focus on improved communication.

The third monograph is a communication guide for those involved in the process. It is a basic review of skills needed to communicate effectively after an unanticipated event.

What changes have there been since these were published?
Happily, many more organizations have moved towards a full disclosure philosophy. They have built infrastructures that support honestly telling patients that something unexpected has happened. They are reporting findings of investigations back to patients and families.

They are advising patients to get legal representation and they are apologizing and offering early resolution when appropriate. By the same token, these organizations do not offer apology or money when there is no error. They are creating a process of mutual respect. It is a partnership of the highest order.

In addition, in 2003 when the triad of monographs was released, there were 10 states with apology laws. Now there are 36. Apology laws are no panacea. Most so-called apology laws are really ‘empathy’ laws. They allow a provider to express empathy for the situation. Nonetheless, they are a true step towards allowing physicians, nurses, hospitals, and others to admit humanity and vulnerability, which is a key component of trust.

How can a risk manager square the need to protect a hospital’s reputation with the need for transparency?
I would argue that the best way to protect a hospital’s reputation is to be transparent. It’s not enough just to say what went wrong, but you have also to say what you are doing to ensure it doesn’t happen again.
The bigger issue (especially when the media are involved) is how does the risk manager square the need to protect a patient’s right to privacy with the need for transparency? Patients can say whatever they want. It’s their story. The risk manager has to protect the patient’s right to privacy except under very specific situations.
In general, we don’t tell the community enough about what we are constantly doing to make healthcare safer. Consequently when something bad happens there can be a community belief that we haven’t been paying attention at all. That belief is generally based upon a lack of knowledge. Rather than talking about how great we are to our communities, thereby setting up unrealistic expectations, we need perhaps to talk about our positive outcomes and our real efforts to constantly improve.

What should a risk manager do when police, media or lawyers become involved?
This is Risk Management 101. It’s what all new risk managers learn from the first day on the job. As stated above, the risk manager has a primary responsibility to protect the privacy of the patient. The police do not trump that unless they have the requisite legal documents giving them access. The media do not trump that responsibility unless they have the appropriate releases. Lawyers don’t trump that obligation unless they have the proper releases. 

The proper legal releases or paperwork are defined by federal and state laws. Sometimes risk managers get painted as the ‘bad guys’ because they don’t release information. What the general public don’t understand is that the risk manager is under legal obligation not to release certain information without proper permission.

What are the repercussions of unanticipated patient events for a hospital and what are the risk manager’s responsibilities in relation to these?
The repercussions of unanticipated patient events for a hospital are felt throughout the entire organization. No event happens in a vacuum.

First, there are the ramifications for the patient involved. There is the possibility of future care and long-term outcomes. Or, it might mark the end of life. There are the family reactions and what that means for the hospital. Does the hospital provide support for the care of the patient? Is the family going to sue? Then, of course, there is the potential for litigation. The risk manager is actively involved in all of these.

Beyond that, there are possible repercussions that the general public don’t consider. There is the emotional impact on the individuals who were involved in the event. Doctors, nurses, and staff feel these events very directly, whether or not they were personally involved. The health and wellbeing of the healthcare team has an impact on them personally and on the health of the organizations.

The repercussions of a patient event on the reputation of the organization can be huge. The community hears the patient’s story. Members of the community worry about the safety of their own future healthcare through the stories they hear about patient care in the hospital. How the organization handles that story determines the level of trust future patients will have when they begin care at the hospital.

The time required to identify latent system failures that led to the event is costly. The time and energy needed to improve processes while ensuring there are no new latent weaknesses created is expensive and time-intensive. There may be a need to change vendors, business relationships, or enterprise fiscal

Who is the risk manager ultimately responsible to: the hospital or the patient?
While the hospital pays the salary of the risk manager, the ASHRM Code of Professional Responsibility states:
“The healthcare risk management professional has a responsibility to help promote the overall quality of life, dignity safety, and wellbeing of every individual needing healthcare services.”

It goes on to say a variety of things that are particularly germane to this conversation. They include that risk management professionals:
• Respect the dignity of all individuals by practicing in a non-discriminatory manner;
• Recognize that patients and their families are partners in the healthcare delivery process are entitled to fair and respectful treatment;
• Communicate honestly and factually with patients and their families, as well as colleagues and others;
• Share confidential or protected health information only in circumstances where appropriately authorized or required by law;
• Investigate and analyze events so that steps can be taken to reduce the likelihood of similar injury to others;
• Promote cultural change that encourages the reporting of events that may result in actual or potential harm to patients or others; and
• Advocate for patient safety.

We are therefore legally responsible to obey the laws and rules related to employment and ethically responsible to represent the needs of patients.

What needs to happen regarding disclosure in the future?
While we have come a long way, there is still more work to be done. While many of us believe that an error is the result of a combination of factors that come together to create an error-prone situation, our legal system is still a fault-based system. Whomever is at the sharp end of that medication or treatment error is still at fault by law. That is not particularly conducive to encouraging people to speak up.

Furthermore, the tail for litigation is long. Although there is increasing evidence that disclosure and early resolution saves money, we don’t know that yet for the long term. Some people believe it’s a halo effect: “we’re doing something ‘new’ so it is working”.

Finally, transparent communication will always be difficult to do. Training is helpful—it is essential. Most people are never taught how to have these types of discussions or to deal with all types of interpersonal reactions when the emotional and legal stakes are high.

 
The closest most of us come to this type of communication is after an automobile accident. It is no preparation for the emotional devastation that comes when we have hurt an individual who was in our care, or the pain we feel when our healing has backfired through some sort of slip, lapse, or system failure. There is the very real blow to our hearts and egos that we have failed. There is the very real fear of litigation. Often there an equally real fear for our license or livelihood. None of it is good.

What must happen to hardwire transparent communication into our systems?
• Organizations must develop a culture of transparency with both staff and patients. In order to communicate trust, the organization must be trustworthy.
• Organizations must not think of disclosure as a risk management technique to reduce claims. It is not. It is style of communication which has as its goal to maintain or regain the trust of those we serve. It also allows us to know and fix safety issues. It might save money.
• An organization must create dialogue with the community it serves, including the plaintiff’s attorneys, the media, and the police. It’s not enough to change the rules internally, it is important to communicate your intention.
• The organization must have an infrastructure that supports providers and staff who are about to have a difficult conversation. These conversations may be about disclosure, bad news, or about performance or organizational restructuring. There must be a process in the organization that supports and coaches humans having conversations that are difficult and have emotional impact on others.
• Organizations must pay attention to teaching providers and all staff the skills for having transparent communication, including how to sort out assumptions and hearsay from facts.
• Training must be ongoing. Skills must be refreshed and practiced with both patients and with colleagues annually.
• Emotional support programs for anyone involved in an unanticipated event must be available, and their utilization encouraged.
• In an ideal world there would be changes to legislation that impede the willingness to communicate openly with patients and families. While laws are theoretically designed to protect the population, in many cases the law gets in the way of the very protection it is designed to create. This will continue to make transparency an uphill climb for years to come. 