DOD/MEDCOM HEALTH
CARE LAW SYMPOSIUM
September 2014
Barbara I. Moidel
Special Assistant for Healthcare Resolutions
301-295-5434
Barbara.i.moidel.civ@mail.mil
BB 301-219-8823
Military medicine has been at the forefront of transparency following
unanticipated/adverse outcomes of care since The Joint Commission
disclosure standard was established in July 2001. That same month we
instituted a Healthcare Resolutions Program that includes disclosure training
for providers, real time disclosure coaching during specific events and a
resolution process that seeks equitable resolutions for patients, for providers
and for the organization. Transparency has gained tremendous momentum
throughout the Military Health System and is supported by the Assistant
Secretary of Defense for Health Affairs and Surgeons General of the Army,
the Navy and the Air Force. My staff and I remain committed to a culture of
transparency, the trust it engenders, the integrity it represents and the value
it places on our staff and those we are privileged to serve—our patients.
Brigadier General Jeffrey B. Clark
Director
Walter Reed National Military Medical Center
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Promote openness and transparency
in patient and family – centered care
philosophy by learning from events,
healing psychologically, showing
healthcare’s humanism and working
out issues of distrust.
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YEAR # 14
LESSONS LEARNED
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Transparency is always the right thing to do by providers who delivered
the care
There is only one truth; no clinical vs. legal truth
Transparency in military medicine is not driven by cost-containment
Transparency is appropriate even when claim is likely to be forthcoming
Transparency drives change; lessons learned are lessons applied.
Venue for resolution option that no other military medicine system
addresses.
Resolution process is totally separate from claims system; no
compromise
Resolution process is totally separate from Patient Safety/Risk
Management/Quality and protects integrity of Title 10 USC 1102; no
compromise
Not everyone seeks resolution; repeal Feres
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Serious preventable injury is a medical
emergency with two victims - patient
and caregiver
~ Lucian Leape, M.D.
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“When this first happened, I was out of school for about 2 years.
I thought
my career was over. I assumed I would not be in this profession any
more. I thought I was going to get fired. I remember having to write an
incident report about it, talk to the family and get my supervisor involved
and it just became a whole day's worth of work. I was totally exhausted. I
was totally drained and thought I was going to lose my job. I have this
degree and I will never be able to use it again.”
Anonymous
Quality and Safety in Health Care Journal
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2011 INSTITUTE FOR HEALTHCARE
IMPROVEMENT WHITE PAPER
" Every day, clinical adverse events occur within our health care system,
causing physical and psychological harm to one or more patients, their
families, staff (including medical staff), the community, and the
organization. In the crisis that often emerges, what differentiates
organizations, positively or negatively, is their culture of safety; the role
of the board of trustees and executive leadership; advanced planning for
such an event; the balanced prioritization of the needs of the patient,
family, staff, and organization; and how actions immediately and over
time address integrated elements of
empathy, disclosure, support
(including
reimbursement),
assessment,
resolution
(including
compensation), learning, and improvement. The risks of not responding
to these adverse events in a timely and effective manner are significant,
and include loss of trust, absence of healing, no learning and
improvement, the sending of mixed messages about what is really
important to the organization, increased likelihood of regulatory action or
lawsuits, and challenges by the media."
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“Patients will often forgive honest mistakes when they’re
disclosed promptly, fully and compassionately “
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“They become enraged when they think they’re being
stone walled. Even with serious errors, when a lawsuit
may be inevitable, disclosure and apology is still the best
course of action. It can mitigate the patients anger. It
demonstrates that you had the patient’s best interests at
heart.
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An appropriate apology doesn’t mean admitting liability.
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PROGRAM OVERVIEW
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Early intervention process at time of service
delivery; prior to claims being filed
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Non-legal venue to resolve healthcare issues
following unexpected outcomes of care or quality of
care concerns. Unanticipated outcome triggers our
involvement.
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Does not exist to prevent claims yet provides an
alternative resolution process; patients retain legal
rights. Withdraw if a claim is filed
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PROGRAM OVERVIEW
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Separate from Patient Safety/Risk Management/Quality
in managing adverse medical events to preserve
integrity of 10 USC 1102
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Separate from Staff Judge Advocate, Customer
Service/Patient Relations
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Serve as Special Assistant to the Director and Chief of
Staff to maintain autonomy and neutrality
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24/7 availability
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PROGRAM FUNCTIONS
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Assists organization in “doing the right thing” when there
are unanticipated outcomes of care, treatment and/or
services
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Promotes organizational transparency and integrity with
full disclosure, recognition of system vulnerabilities and a
commitment to process improvements
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Resolves complex healthcare issues and disputes
starting at the time of service delivery, in a neutral
setting, with equitable resolutions for patients, providers
and the organization
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PROGRAM FUNCTIONS
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Provides disclosure training and coaching for medical staff, ensuring
compliance with The Joint Commission standard RI 01.02.01 and
hospital policy; respect boundaries of Title10 USC 1102
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Provides training on patient-centered communication.
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Opportunity to restore trust following adverse outcomes, preserve
patient/provider relationship
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Support providers following unanticipated outcomes of care;
providers are second victims
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Conducts mediation sessions surfacing issues from all parties to
facilitate resolutions; stays involved from disclosure through case
resolution.
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ADVERSE EVENT MANAGEMENT
ADVERSE MEDICAL EVENTS
SAFETY
QUALITY
RISK
UNANTICIPATED OUTCOMES
HEALTHCARE
RESOLUTIONS
QUALITY OF CARE CONCERNS
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Disclosure issues – coaching, follow-up, maintain open
communication
Unanticipated outcomes of care
Delayed diagnosis/misdiagnosis
Medical/medication errors
Sentinel events/wrong site/wrong patient procedures
Elevation of care caused by hospital/nosocomial infections
Expected or unexpected deaths
Patient dissatisfaction with treatment outcomes or quality of care
Poor patient-provider interaction/communication
Appropriate patient disengagement without abandoning patient care
Follow up patients who leave AMA
Early referral is the key!
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ADVANTAGES OF DISCLOSURE
Patients strongly support the disclosure of unanticipated
outcomes, especially those due to medical errors. Patients
want to know about errors even when the harm is minor, and to
be told the facts concerning the event; they want a full
explanation and an apology. In the aftermath of an
unanticipated outcome due to error, patients want
acknowledgement of their pain and suffering and reassurances
that steps will be taken to prevent the error from happening
again.
www.anesthesia-analgesia.org 2012
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The only risk greater than
disclosure…
is the risk to know something and
not disclose it.
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DO NOT DISCLOSE
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Disciplinary actions
Peer review materials
Results of root cause analysis or quality assurance
reviews
Morbidity and mortality conference proceedings
Information protected by Title 10 USC 1102.
Refrain from admission of personal or institutional
liability.
Do not say: There was negligence.
We are liable
Standard of care was not met.
Military medicine should compensate you.
Patients may inquire about whether or not a review is
being conducted.
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Apologizing may assuage the patient’s
feelings of anger by subtracting the insult
from the injury and it may also ease the
physician’s feelings of guilt for causing
harm.
Annals of Emergency Medicine 2006
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DEFINITION OF SECOND VICTIMS
"Second victims are healthcare providers who are involved in an unanticipated adverse patient
event, in a medical error and/or a patient related injury and become victimized in the sense
that the provider is traumatized by the event. Frequently, these individuals feel personally
responsible for the patient outcome. Many feel as though they have failed the patient,
second guessing their clinical skills, knowledge base and career choice."
•
Excellent clinicians may leave the profession prematurely when involved in a preventable
error. These are often career-jolting events, causing a devastating personal and professional
toll similar to posttraumatic stress disorder.
•
Second victim phenomenon may be described as life-altering, leaving a permanent imprint
on involved providers.
* MAKING AN ERROR THAT HARMS A PATIENT MAY BE THE
GREATEST DISTRESS THAT CLINICIANS EXPERIENCE, THEIR
DARKEST HOUR
* Providers may recall meticulous details of these events years later
* Often affects subsequent patient care as they may be depressed and are
likely to make additional errors (third victim)
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COORDINATION WITH THE STAFF
JUDGE ADVOCATE
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Briefs the Staff Judge Advocate on healthcare cases of concern.
SJA serves in an advisory capacity.
Potential claims against the government that come to our awareness are
reported to legal counsel.
SJA is consulted in the event that acceptance of specific cases may be
questionable.
SJA shall review all written correspondence prepared by Healthcare
Resolutions.
Refer any written correspondence prepared by providers.
Notify SJA if patient retains legal counsel.
Patients retain the integrity of their legal rights.
Any subpoenas related to services of Healthcare Resolutions are referred to
SJA.
No attorneys participate in disclosure or mediation sessions.
Healthcare Resolutions is not authorized to intervene once a claim has been
filed.
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COORDINATION WITH PATIENT
SAFETY/RISK/QUALITY
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No information is sought from Patient Safety/Risk/Quality reviews.
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Event reporting to Healthcare Resolutions may be through providers
and should not be directly from the Patient Safety/Risk Management
staff.
•
Healthcare Resolutions does not make any determination regarding
negligence, medical error or any breach in standard of care. There
is no direct reporting to Professional Affairs.
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No PSR’s are completed by Healthcare Resolutions.
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Provide one-way venue for input from patients to Quality
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CONFIDENTIALITY
NEUTRALITY
DISCOVERABILITY
DOCUMENTATION /CASE FILES
PERSONAL WORKING NOTES
SHREDDING
SIGNED AGREEMENTS
PATIENTS WITH LEGAL COUNSEL
CLAIMS
SUBPOENA
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OFFICE MANAGEMENT PRACTICES
Refrain from:
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Accepting legal or service of process notice for organization
Obtaining signed waivers or confidentiality statements
Maintaining individual case files (keep personal working
notes only)
Obtaining written statements from providers
Referring to peer review
Being involved with QA reviews or securing copies of any
documentation protected by Title 10 USC 1102
Attending morbidity and mortality conferences, Quality
Council, Patient Safety forums.
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OFFICE MANAGEMENT PRACTICES
Refrain from (continued):
• Documenting in medical record
• Writing case reports
• Tape recording of sessions
• Including legal counsel in sessions (patient's or
hospital's)
• Drafting policy with the exception of disclosure policy
• Engaging with attorneys of patients
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RATIONALE FOR OFFICE MANAGEMENT
PRACTICES
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No providers would engage with us if we maintained discoverable files
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Program involvement is exclusively upon resolution process based upon
facts of the case. We have no independent knowledge, do not conduct a
risk analysis and do not draw conclusions regarding standard of care,
medical error, negligence, malpractice or liability
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Legal initially wanted program placed under Quality with 1102 protection;
however, there would be no opportunity for open communication and
potential resolution. Office practices were determined by Legal
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We have no independent medical information.
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RATIONALE FOR OFFICE MANAGEMENT
PRACTICES
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We do not conduct discovery for Legal, Risk or Quality
We do not establish or maintain any official system of government
records
Neutrality - while working for the government , “neutrality” is
evidenced by ensuring that the resolution process is fair for patients
and families, for providers and for the organization. We are neutral
to the dispute.
Not neutral to attempt to prevent claims
Not neutral to collate discoverable documents
Could not have access to providers, medical records or process
owners if we did not work for the government/hospital. Providers
would not trust us.
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PROGRAM GROWTH SINCE
2012 PRESENTATION
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Healthcare Resolutions Program was incorporated into the Department of Defense
Manual, 6025.13, Medical Quality Assurance and Clinical Quality Management in the
Military Health System.
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Four of eight healthcare resolutions specialists are DOD employees
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Disclosure training has been conducted at eight Army Medicine medical treatment
facilities
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Second cycle of disclosure training is scheduled at ten Air Force medical treatment
facilities
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Air Force has proposed hiring four healthcare resolutions specialists
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Army has proposed hiring five healthcare resolutions specialists
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Disclosure training presented to The Joint Commission Quality Improvement
Program, February 2014
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PROGRAM IMPACT/OUTCOMES
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Opportunity to achieve resolution for patients and providers to
complex healthcare needs
Skilled communicator in adversarial situations with
acknowledgement of value of personal relationships, effective
communication, sharing emotions
Opportunity to restore trust following adverse outcomes;
preservation of patient/provider relationship; lessons
learned/applied from cases
Organization shows integrity and respect to patients and
public: promotes culture of full disclosure
Provider support following unanticipated outcomes of care
Providers meet professional, moral, ethical obligations via
disclosure.
Information-sharing of meaningful feedback while protecting
quality assurance process
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CURRENT LOCATIONS FOR
HEALTHCARE RESOLUTIONS
PROGRAM
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Walter Reed National Military Medical Center
Fort Belvoir Community Hospital
Naval Medical Center Portsmouth
Naval Medical Center San Diego
Naval Hospital Jacksonville
Naval Hospital Okinawa
Current Hiring action:
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Travis Air Force Base
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Army anticipates hiring five healthcare resolutions specialists
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Air Force anticipates hiring four healthcare resolutions specialists
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Barbara I. Moidel
Special Assistant for Healthcare
Resolutions
301-295-5434
Barbara.i.moidel.civ@mail.mil
BB 301-219-8823
30