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Hospital Leaves Tube in Aorta, Doesn't Tell Patient, Fights Lawsuit --- how would your risk, claims, and legal team handle differently?

I have a 10-year old and 6-year old. My son, Will, the 10-year old, is my buddy, while Claire, the six-year old, is my joy. Will and I do a lot together, while Claire can put a smile on my face anytime, including the worst days. I really love my kids, but there are days when they baffle and anger me over the silliest things. I usually shake my head and say, "Really?

Really, Will?

Really, Claire?"

Any parent knows exactly what I am talking about....

So, when an article was sent me to earlier this week about a hospital leaving a eight-inch fragment of a catheter tube in a patient's heart, the hospital knew about the tube for seven years but neglected to tell the patient, when the patient found out the hospital was basically non-responsive, the patient sued, the hospital is fighting the lawsuit claiming, among other things, a statute of limitations defense, AND the hospital has a disclosure policy, all I could do was shake my head and mutter, "Really?"

The Dallas Morning News published a story about the lawsuit, and their news story is really a great teaching tool for front-line staff, risk and claims, legal, c-suite, and outside insurers. Moreover, I believe the Dallas Morning News story is really a great test case to see if your defense lawyers and risk and claims folks are on-board with your disclosure program. "How would you handle this situation differently?" is a question that should be posed to every member of your team, especially defense counsel.

Moreover, ask your defense counsel the following hypothetical question: "We know we did wrong and hurt somebody, the case has bad PR and regulatory implications, and could destroy our safety culture and the morale of our staff, BUT there might be a statute of limitations defense...what are YOU, our lawyer, going to advise us to do? In addition to giving us legal advice, what kind of business, public relations, AND ethical advice will you be giving us?"

The hospital in this case is Parkland Hospital in Dallas (where President Kennedy was taken after being shot), and the patient, Mrs. Debra Wilson, age 59, was born at Parkland, delivered her three children at Parkland, and received regular care at Parkland for diabetes and a heart condition, including a life-saving heart procedure in 2007. This was a long-term relationship punctuated with some heroic care. However according to three experts contacted by the Dallas Morning News, Parkland Hospital knew about the eight inch fragment of catheter tube left in Mrs. Wilson's heart following the 2007 heart procedure that saved her life, but did not tell Mrs. Wilson until 2014. Mrs. Wilson claimed to have 22 chest x-rays between her life-saving procedure in 2007 and 2014, when she was finally told. The experts contacted by the Dallas Morning News say the medical records clearly shows the hospital knew about the fragment lodged in her heart. For example, a 2012 note in the chart allegedly states the fragment has moved higher "than on examination in 2007." A month later (October 2012), Parkland doctors allegedly wrote in the chart that removing the fragment might lead to infections -- yet, allegedly, no one informed Mrs. Wilson. Going forward, the tube fragment in Mrs. Wilson's heart could pose serious health problems.

Upon learning about the tube fragment lodged in her heart, Mrs. Wilson complained to the hospital. She claims to have received a "we regret we did not meet your expectations and we're looking into it" kind of letter. Then, two months passed with nothing from the hospital. So, she contacted the hospital again, got pretty much the same letter, except this letter promised to follow but only after a review that might take "several weeks." Mrs. Wilson felt she was getting the run-around for a very serious problem.

Really, Parkland? Really?

So, Mrs. Wilson, who was born at Parkland, delivered her three kids at this hospital, and was a life-long patient, sued the hospital.

Now, Parkland is fighting the lawsuit with several legal theories including statute of limitations, and this lawyer speak: "General knowledge that a catheter was used is not the same as knowledge that a fragment of the catheter was retained."

Really, Parkland? Really?

The ultimate irony is Parkland has a disclosure policy...the policy was linked in the Dallas Morning News article. It's not a bad policy, could use some work, but clearly what happened in this story and what is written in their disclosure policy did not jibe. Not...even....close.

A lot of hospitals have disclosure policies that are simply in place to meet regulatory requirements. When I visit these hospitals - or nursing homes - and ask staff and leadership about their disclosure policy (which I was given before my visit), I often get puzzled looks and questions like, "What disclosure policy?" Usually, only a handful of staff members even know such policies exist, and an even smaller subset have read the policy. Perhaps this is the case at Parkland hospital? Nobody has been trained in disclosure, and there in no institutional expectations or support for disclosure?

What is really remarkable is Mrs. Wilson gave the hospital two (2) chances to get it right. She didn't run immediately to a lawyer. Instead she returned to the hospital twice -- two times! -- and all she got for her troubles was a couple half-baked letters. No meeting. No follow through. No effort to get re-connected. No nothing.

Question for you: When patients/families return to your hospital or nursing home with serious problems, are you and your team ready to listen to these consumers and take their concerns seriously? In this case, there should have been a phone call followed up with an in-person meeting, then maybe a letter to memorialize everything with date-specific next steps included. Parkland Hospital should have done everything possible to maintain the relationship with Mrs. Wilson. Indeed, Mrs. Wilson did all she could to maintain the relationship, but she was abandoned by Parkland, so she found a new friend -- a lawyer!

This case appears to be a black eye on the leadership of Parkland. Surely there will be calls for the ouster of the CEO and other c-suite staff. It's really calls into question the ethics of the organization. You don't want this story to happen at your hospital or nursing home...but it could be if a) you don't have a good disclosure policy; b) nobody knows about your disclosure policy; c) your front-line staff are not trained on disclosure and empathy; d) you don't have a disclosure program in place to proactively address complaints from patients and families; and e) your legal team is a mismatch for your disclosure principles.

Again, I would ask the following question of any lawyer representing your hospital or nursing home (or any prospective lawyer or law firm): "We know we did wrong and we hurt somebody, the case has bad PR and regulatory implications, and could destroy our safety culture and the morale of our staff, BUT there might be a statute of limitations defense...what are YOU, our lawyer, going to advise us to do? In addition to giving us legal advice, what kind of business, public relations, AND ethical advice will you be giving us?"

I think this is especially true for religiously-affiliated organizations. I've never heard a pastor preach about a statue of limitations with God.

To avoid the legal and PR train-wreck falling down on Parkland Hospital, you need to develop a robust disclosure program for your hospital or nursing home. The Sorry Works! Tool Kit is THE comprehensive resource to help develop your disclosure program, train your staff, and keep your disclosure program alive and vibrant for years to come. To order the Tool Kit today, click on this link.

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