If something goes wrong in the care environment, saying "I'm sorry" isn't necessarily an admission of wrongdoing.
In fact, it may even help keep you out of court.
If a resident does not appear for a meal, a member of your staff will check on her.
If she's not signed out of the community and doesn't answer the phone, a staff member will enter the resident's apartment to ensure everything is O.
K.
However, this past weekend that system of checks broke down.
Mrs.
Smith fell just before noon on Sunday and broke her hip and her shoulder.
She wasn't wearing her emergency call pendant and couldn't reach the phone.
Mrs.
Smith lay on the floor, in extreme pain, for nearly 24 hours, until a caregiver came as scheduled on Monday morning, to remind her to take her morning medication and assist her with a shower.
Mrs.
Smith and her family are extremely angry.
What is your response? When things go wrong, your first reaction may be a defensive one.
Reinforced by fears of lawsuits and sometimes the advice of counsel or insurers, a strategy of silence may appear to be an attractive option-particularly when, as here, the community quite clearly didn't do what it had promised.
But what will be the resident's and family's reaction to this silence? Very likely, it will be intensified anger and a lawsuit.
Therefore, a policy of "never apologize, never explain" is most often counterproductive.
Provider Policies Among providers of general health care, those who have adopted policies encouraging expressions of sympathy, disclosure, and-where there is fault-an early offer of settlement, have experienced significantly reduced numbers of claims, reduced payments for damages and legal defense costs, and improved relationships with their customers.
Many assisted living providers routinely implement such policies when the effect on the resident is merely an inconvenience.
Mistakes about meal preferences or a botched transportation schedule can result in a simple "I'm sorry," a brief explanation of what went wrong, and a credit on the next bill.
But what should happen when, as here, the effect on the resident is significant and the threat of litigation is real? If the community adopts a policy of expressing empathy, making disclosure, and offering an early settlement, the first step is to tell the family about the incident and express sympathy to both the resident and the family.
"We are so sorry that this happened," is not an admission of liability.
However, when an expression of sympathy alone is not sufficient, the provider should also promise a prompt and thorough investigation.
For example: "We'll do a full investigation and get back to you in three days.
" What is important initially is a prompt and sincere expression of sympathy and the commitment to investigate.
An apology is not appropriate at this point.
After all, the community may not be at fault.
Wait and see what the investigation shows, but don't delay the investigation.
In this case, the investigation shows that the fall was unanticipated; Mrs.
Smith was actually a low fall risk.
Her fall could have been caused by her daughter's recent re-arranging of the furniture in her apartment or by dizziness due to a new medication prescribed just a few days ago by her doctor.
The reason for the delay in finding Mrs.
Smith after she fell, however, was clearly the community's fault.
Staff responsible for the "resident checks" program that Sunday were new or temporary and simply didn't implement the program, which was not included in job descriptions or orientation.
Should the executive director simply meet with the family and say, "The staff on duty didn't implement the resident check program the way they should and I apologize.
This should not have happened.
"? If the community has a policy of empathy and disclosure, the answer is a resounding "Yes.
" And the resident and family should be told exactly what the community is doing to try to ensure that this doesn't happen again.
Questions of Liability Is saying you're sorry it happened an admission of liability? No.
Is explaining that staff simply dropped the ball an admission of potential liability? Yes.
Does making such a statement increase liability? Probably not, for at least two reasons.
First, many states now have laws that prohibit using expressions of sympathy, apology, or fault as evidence in a lawsuit.
(Providers should check state law carefully, however, since a specific state's law may not apply to assisted living, or may apply only to "medical malpractice," or may cover expressions of sympathy or apology but not statements of fault.
) Second, and more important, is the fact that if there is litigation, the staff's failure to implement the resident check policy will inevitably be disclosed anyway-after tens of thousands of dollars in attorneys' fees may have already been expended.
And the resident and family will still be angry.
Sometimes the resident and family truly want only full disclosure and an apology.
Providers who implement a policy of encouraging empathy and disclosure, however, should not do so in the belief that these steps alone will always resolve the situation.
Some residents and families will also expect compensation, which can be negotiated.
The experience of other types of providers shows dramatically reduced payments in such cases.
An additional important benefit is the resident's and family's satisfaction with both the process and the outcome, even though they may remain distressed by the incident itself.
Experience to date shows that a prompt expression of sympathy, investigation, and disclosure and-when appropriate-an early settlement offer will most often result in significant benefits for both providers and consumers.
Per-Case Management Tips Remember that every situation is different.
Whether or not the community is at fault for something going wrong, it is important to carefully examine each case and consider all of the extenuating circumstances.
Here are some quick tips for doing that.
In fact, it may even help keep you out of court.
If a resident does not appear for a meal, a member of your staff will check on her.
If she's not signed out of the community and doesn't answer the phone, a staff member will enter the resident's apartment to ensure everything is O.
K.
However, this past weekend that system of checks broke down.
Mrs.
Smith fell just before noon on Sunday and broke her hip and her shoulder.
She wasn't wearing her emergency call pendant and couldn't reach the phone.
Mrs.
Smith lay on the floor, in extreme pain, for nearly 24 hours, until a caregiver came as scheduled on Monday morning, to remind her to take her morning medication and assist her with a shower.
Mrs.
Smith and her family are extremely angry.
What is your response? When things go wrong, your first reaction may be a defensive one.
Reinforced by fears of lawsuits and sometimes the advice of counsel or insurers, a strategy of silence may appear to be an attractive option-particularly when, as here, the community quite clearly didn't do what it had promised.
But what will be the resident's and family's reaction to this silence? Very likely, it will be intensified anger and a lawsuit.
Therefore, a policy of "never apologize, never explain" is most often counterproductive.
Provider Policies Among providers of general health care, those who have adopted policies encouraging expressions of sympathy, disclosure, and-where there is fault-an early offer of settlement, have experienced significantly reduced numbers of claims, reduced payments for damages and legal defense costs, and improved relationships with their customers.
Many assisted living providers routinely implement such policies when the effect on the resident is merely an inconvenience.
Mistakes about meal preferences or a botched transportation schedule can result in a simple "I'm sorry," a brief explanation of what went wrong, and a credit on the next bill.
But what should happen when, as here, the effect on the resident is significant and the threat of litigation is real? If the community adopts a policy of expressing empathy, making disclosure, and offering an early settlement, the first step is to tell the family about the incident and express sympathy to both the resident and the family.
"We are so sorry that this happened," is not an admission of liability.
However, when an expression of sympathy alone is not sufficient, the provider should also promise a prompt and thorough investigation.
For example: "We'll do a full investigation and get back to you in three days.
" What is important initially is a prompt and sincere expression of sympathy and the commitment to investigate.
An apology is not appropriate at this point.
After all, the community may not be at fault.
Wait and see what the investigation shows, but don't delay the investigation.
In this case, the investigation shows that the fall was unanticipated; Mrs.
Smith was actually a low fall risk.
Her fall could have been caused by her daughter's recent re-arranging of the furniture in her apartment or by dizziness due to a new medication prescribed just a few days ago by her doctor.
The reason for the delay in finding Mrs.
Smith after she fell, however, was clearly the community's fault.
Staff responsible for the "resident checks" program that Sunday were new or temporary and simply didn't implement the program, which was not included in job descriptions or orientation.
Should the executive director simply meet with the family and say, "The staff on duty didn't implement the resident check program the way they should and I apologize.
This should not have happened.
"? If the community has a policy of empathy and disclosure, the answer is a resounding "Yes.
" And the resident and family should be told exactly what the community is doing to try to ensure that this doesn't happen again.
Questions of Liability Is saying you're sorry it happened an admission of liability? No.
Is explaining that staff simply dropped the ball an admission of potential liability? Yes.
Does making such a statement increase liability? Probably not, for at least two reasons.
First, many states now have laws that prohibit using expressions of sympathy, apology, or fault as evidence in a lawsuit.
(Providers should check state law carefully, however, since a specific state's law may not apply to assisted living, or may apply only to "medical malpractice," or may cover expressions of sympathy or apology but not statements of fault.
) Second, and more important, is the fact that if there is litigation, the staff's failure to implement the resident check policy will inevitably be disclosed anyway-after tens of thousands of dollars in attorneys' fees may have already been expended.
And the resident and family will still be angry.
Sometimes the resident and family truly want only full disclosure and an apology.
Providers who implement a policy of encouraging empathy and disclosure, however, should not do so in the belief that these steps alone will always resolve the situation.
Some residents and families will also expect compensation, which can be negotiated.
The experience of other types of providers shows dramatically reduced payments in such cases.
An additional important benefit is the resident's and family's satisfaction with both the process and the outcome, even though they may remain distressed by the incident itself.
Experience to date shows that a prompt expression of sympathy, investigation, and disclosure and-when appropriate-an early settlement offer will most often result in significant benefits for both providers and consumers.
Per-Case Management Tips Remember that every situation is different.
Whether or not the community is at fault for something going wrong, it is important to carefully examine each case and consider all of the extenuating circumstances.
Here are some quick tips for doing that.
- Consult with counsel both about the program and about each case.
- Inform your insurer, though often any compensation paid is well below the provider's self-insured retention obligation.
- Carefully select, train, and actively assist the person(s) who will meet with the resident and family.
- If the community was at fault, be reasonably candid about what happened.
Extended "true confessions" are not appropriate, but a clear and concise explanation of what went wrong is needed. - Emphasize the corrective measures that have been put in place.
- Consult with counsel about the need to obtain a release, if compensation is paid.
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