Sunday, July 12, 2015

It's time to sue the trustees

I’m not a health care person by training. Much of my background is in the public policy arena—starting first in energy and then branching out to telecommunications, and thence to water and wastewater. In parallel, I’ve also run large organizations and managed thousands of people and billions of dollars in capital and operating budgets. I’ve been a regulator and I’ve been regulated. When I offer opinions and illustrative stories on this blog, I am mainly driven by what I see as failures, and I try to offer approaches that might work to improve things.

In that sense, for almost nine years, the blog has presented a series of advocacy documents. Regular readers know that I have seldom pulled my punches: There are enough people who try to be diplomatic in what they say and how they say it. When it comes to saving lives from preventable harm, I am too impatient to be overly considerate about people’s sensibilities.

In all this, I’ve had to decide my own role, beyond what I do to make a living (providing negotiation training and advice to companies in many sectors around the world.) I’m honored to be invited by hospitals and others to provide stories, training, and maybe even some inspiration as they pursue their journeys towards patient-driven care. Those journeys rely on creating learning organizations, characterized by respectful treatment of the staff and transparency to achieve process improvement to deliver high quality and safe care. I’ve chosen to interact mainly with those hospitals that we have come to view as “islands of excellence in a sea of mediocrity.” I don’t spend time in places that are not committed to the quality and safety journey because I only have so much time available and because I don’t find much merit in hitting my head against a wall.

Admittedly, that’s a luxury on my part, hanging out with the 5% or 10% of institutions that “get it.” But what becomes of the rest, the vast majority of hospitals that don’t get it? My buddy Dave Mayer likes to say that the answer to achieving greater quality and safety and transparency is to “educate the young and (when necessary) regulate the old.” Beyond the humor, there is an element of wisdom in Dave’s construction of the argument.

I’ve spent a lot of time on this blog carping about the lack of rigor that has gone into the design of health care regulation, so I don’t want to spend time on that today. Suffice it to say that the hand of government is often roughly applied, and we can only hope that officials get better at designing and implementing policies.

But recent remarks by Bob Galbraith at our student and resident training program (Telluride East) reminded me that the heart of professional activities must be self-regulation. He posited that the medical profession has failed in this regard—avoiding discipline of their members who are clearly impaired, incompetent, and negligent. So, he suggests, fix this they must, or some one will step in and do it for them.

Bob’s right on his particular point, but we know that most medical harm does not derive from the individual actions of doctors. It derives from the work patterns and systems that are in place in hospitals. These are not organizational aspects in which most doctors and nurses have been trained. They are trainable with some time, effort, and resources—but those in a position of authority must encourage and demand that it happen. The “those” in this case must be the boards of trustees, the governing bodies of the hospitals.

But it is in this arena that we have a public policy lacuna. While trustees often have a statutory responsibility for the quality of care given in their hospitals, they are never held accountable for that care. The history of involvement by lay governing bodies is heavily centered on the social and community aspects of governance, including fund-raising. Clinical decisions are left to the clinical staff, as they should be, but oversight of clinical activities by the governing body is often rudimentary at best.

It’s time to change this pattern and, where necessary, force greater engagement by trustees in quality and safety issues. Given the stature of trustees in the community and their political influence, I don’t expect legislators to do much on this front. But there is a group that could take advantage of the current situation and give those trustees a real incentive to learn how to effectively govern safety and quality.

That group is the medical malpractice plaintiff bar.

Currently, plaintiffs’ attorneys sue the doctors or nurses or the hospital when someone is harmed and negligence is alleged. The main argument is that the standard of care was not met, and the focus is usually on the specific actions or non-actions by the clinical staff.

But it’s time for a broader definition of negligence: Negligence today is found in a hospital that has not used the wealth of data and experience garnered around the world by the “islands of excellence,” those thoughtful hospitals who have created a new standard of care by the manner in which they have organized work and by the existence of a culture of continuous process improvement. All of those hospitals, too, have boards that are assiduously engaged in appropriate governance of quality and safety.

I call upon the plaintiff bar to expand their reach in medical malpractice cases. Name the individual trustees as defendants. Depose them as to the extent of their activity and oversight with regard to quality and safety improvement. Ask them if they have established a corporate goal of eliminating preventable harm. Find out how they measure and monitor harm in their hospitals. Ask them how much time in each board meeting is devoted to the topic compared to, say, financial matters.

Counselors, I think you will find—all too often—a prima facie case of governance negligence, a factor which is highly likely to support the underlying contention in your particular litigation.

And think more broadly than individual patient lawsuits. Curious about targets of opportunity? The CMS Hospital Compare website might provide guidance. Simply look for those hospitals that have an incidence rate for, say, central line infections or surgical site infections or urinary tract infections that is above the national average. Given the standard of care for such items, if a place has been persistently below average, it’s likely that something is awry. You might even find that you have the basis for a class action lawsuit in those hospitals, as their poor performance is a composite of hundreds of patients.

I have no interest in seeing trustees being held financially liable at a personal level for their lapses, and, after all, insurance will protect them from that. But I do have an interest in having them squirm under the questioning of an experienced malpractice attorney about their failure to carry out their most important fiduciary responsibility, the well-being of patients in their institutions.


Brad F said...

Although we reference "team-based care" as the model we have, or we are evolving too in hospital care, I always find irony in our litigation system. If we have and want team based care, why not include nurses, pharmacists, and social workers in actions. They are the team. Docs no longer belong at the center of the wagon wheel (with exceptions of course). That's if we are evolving to that higher plain of course.

With your proposal, if we assume trustees oversee the team and entire enterprise, by fiat, boards should always be fully accountable.

So if we assume a new normal: Trustees first, then "team," in no particular order, second.


nonlocal MD said...

Wow! Strong words indeed, but they needed to be said. I would like to comment on the following nuggets:

1. "Regular readers know that I have seldom pulled my punches: There are enough people who try to be diplomatic in what they say and how they say it."

Right on. People are sheep. Stop it. It is critical right now in health care that we speak up, as the hour of change is finally at hand. As the highway signs in my home state say, "See something, say something."

2. "He posited that the medical profession has failed in this regard—avoiding discipline of their members who are clearly impaired, incompetent, and negligent."

I would definitely go further than that statement. Our profession through its specialty societies has profoundly failed to discipline its members for even more egregious offenses such as willful lapses of ethics, deliberate conflicts of interest, or even outright criminal conduct such as the oncologist in MI.

Our profession's training organizations have profoundly failed our patients and professional members by refusing to move more quickly to change curricula to train medical students and residents in the very organizational imperatives for safety and quality which you point out that they lack. People have been noting this deficiency for years. Not only does this kill people, but it leaves doctors as the powerless 'labor' force to be directed, however reluctantly, by the 'management' of CEO's and trustees to which you refer, as medicine corporatizes.

3. "But it’s time for a broader definition of negligence: Negligence today is found in a hospital that has not used the wealth of data and experience garnered around the world by the “islands of excellence,” those thoughtful hospitals who have created a new standard of care by the manner in which they have organized work and by the existence of a culture of continuous process improvement."

You are absolutely right. There is no excuse for not learning the lessons that are out there for the taking by anyone who wants to improve. This should be the new legal definition of an institutional standard of care.

I hate that the only thing which forces needed change in American business is often our world-renowned litigation system, but in so many other arenas that is all that has worked. So be it. Bring it on.

Al Lewis said...

Yikes! What you're proposing might actually work, which of course means it will never see the light of day. Far too many trustees are far too politically connected, I'm afraid. (Yes, I get that this is the judiciary you're talking about but these days judges seem to think they report to the party that had them appointed.)

Anonymous said...

Very well stated.

It is time to call the question. Any other industry would be regulated already based on the slowness of change demonstrated by many.

Naomi Kaufman Price said...

From Facebook:

Love this. Goes straight to the heart of accountability. Most boards get D&O insurance so individual members aren't personally liable (all nonprofit board members should insist on this, by the way) but your idea speaks to collective culpability. Bravo.

Barry Carol said...

Even if a hospital’s board of trustees wants its hospital to become an island of excellence, I’m not sure how you create a culture of collaboration and collegiality among doctors if it doesn’t already exist especially if most of the doctors are not hospital employees but independent contractors with practice and admitting privileges. Moreover, if nurses, techs and others don’t feel empowered to speak up if they see something wrong or in need of improvement, how do you change that?

It seems that for the hospital to get from point A to point B, it may have to fire or withdraw privileges from doctors who won’t embrace the new culture which, in turn, could create significant disruption and financial hardship for the hospital in the short term. In order to become an island of excellence in the long term, you first have to survive financially in the short term. That may be easier said than done.

Paul Levy said...

I very much disagree, Barry. There are many examples of hospitals with non-employee MDs who have been able to work cooperatively with them and dramatically enhance quality and safety. Yes, there are sometimes a few recalcitrant ones, but they are few and far between.

As for empowering people to speak up, yes, that's essential. Again, there examples of where that has been done.

If you approach this in a sensible and respectful fashion, life is better for the staff--and ceratinly for the patients!

Melissa Clarkson said...

This post prompted me to reflect on the Board of Trustees at the hospital in my mother’s small Kansas town. My concern is whether the members without clinical training are even in a position to inquire about (and act upon) patient safety concerns, if those with clinical training would prefer to discourage any oversight of safety issues.

My father died after a serious error in a small Kansas hospital. My mother and I met with the CEO a few months later. He dismissed our concerns. When we followed up with a letter, he informed us that he is not allowed to talk to us about my father’s care because that is prohibited by the State of Kansas. (No, Kansas law does say this, but that didn’t stop the hospital (and their legal consultant) from saying this.)

My mother and I took two paths in response to this:

The first path involves legislation. This started out as an idea formed in a meeting with my mother, the CEO, and the hospital’s legal council to fix the law that prohibited the hospital from talking to my mother. After a couple months went by with no action, I got involved and worked with my mother to draft legislation that would require patients/families to be informed of harm that occurred during their care. (There were a couple meeting with the CEO in the months after that, but I came to suspect that this interaction was largely to run out the statute of limitation so that my family could not file a lawsuit.) I wish that legislation like that was not necessary. I wish that hospitals would regulate themselves — but our experience on the second path shows the need for it.

The second path was to try to work with the hospital (and Board) to get them to recognize the right of patients to know what has happened in their care. For example, we wanted a statement in the patient bill of rights. We had a reasonable chance of working with the Board of Trustees on this, because two of the members of the Board knew my father quite well (one through work, one through church). And yet, nothing from the Board, other than a condolence letter. Nothing. Silence.

We had stated in a letter early on that we were considering a lawsuit, but we would prefer to work with the hospital to improve communication and safety. They chose to not work with us, and by doing that they chose a lawsuit. I can't imagine what they were thinking.

Our lawsuit will be entering mediation this October. So much information that would otherwise not have been revealed has come to light. And therefore, I think the hospital made the right decision: they needed a lawsuit to wake them up. And this is the best thing that could have come out of my father’s suffering and death — an analysis of the breakdowns and bad decisions that affected my father, because those same factors can affect every other patient in that hospital.

So in reflecting on the role of the Board, I wonder… Do board members without clinical training have any knowledge of patient safety? Because if those with clinical training prefer to brush over patient safety issues — because it is much easier to focus on financial topics and developing the hospital’s prestige and stories of saving lives and bringing babies into the world — who is going to insist on talking about the ugly parts?

Perhaps Boards only see their role as damage control when lawsuits become public. What if they saw their role in “damage control” as actions that keep patients from being harmed in the first place.

So what would it take for members of the Board to see themselves as responsible for ensuring patient safety? As you suggest, perhaps naming the Board in lawsuits. And that is really sad.

Carole said...

Ms. Clarkson,
God bless you and your mother for your loss, and the amazing amount of strength it will take to get justice for your father. Because I lost my beloved mother to negligence as well, after I read your story, and before I could start writing this, I broke down and cried like the day I lost her knowing I will never get justice for her and it hurts so deeply. The blessed lesson I learned from this tragedy is how majorly important five little letters put together can make on someone else's life. S. O. R. R. Y. "Sorry" :( . That's all I really wanted, since I knew I couldn't get my mother back, of course that would of been my first choice. Good luck to you on your journey for truth and accountability. God bless your Dad and my Mom and may God continue to comfort them. And I pray my mom knows I tried and I'm so sorry for not having the strength to endure the process.

Anonymous said...

Yes! I have a good story of how conflicts between people employed by the hospital corporation that had a surgeon where there are many "discrepancies" at, that I said/told them in writing did nothing to fix the problem. That led to the surgeon talking about me and id'ing me to someone off the street. That behavior should have been nipped in the bud a long time ago. Twice the surgeon stated he wasn't supposed to say anything but did.

Its time business people are held responsible when profits come before patients.

I don't have he said/she said, I've got things in writing.

Carole said...

"Team based care"? "Team based denial" ? I always assumed that already existed... Brad had some pretty legit points for sure. Those who are responsible for the denial,, are not part of the solution, not even part of the problem, they are indeed the PROBLEM. Right or wrong, good or bad it's a job and someone has to do it. With that way of thinking, that's how their able to sleep at night. Profits will always come before patients , let's just be honest. There are many good people with good intentions, I just wonder if there's enough of them to get the much needed changes done. In the long run it benefits us all, hospital staff and patients like Mr. Levy stated.

Carole said...

Wow, post above " the word secret" is what I was going to use instead of "denial". Thought denial covered everything more!