Results Oriented CommunicationRegina A. Casey, BSN, MSN, JD, CHC

Shareholder, Wroten & Associates

Marilynn W. Allemann, L.C.S.W., CPCOwner/President Masters Executive Coaching

Georgia McCullough, RN, JD, CPHRM Clinical Risk Manager, MemorialCare Health Services

Debi Witt, MBA, MHA, NHA Director of California Field Operations, Golden Living

“The Greatest Problem In Communication Is The Illusion That It Has Been Accomplished.”

-- George Bernard Shaw

Styles of Communication• Aggressive• Passive• Assertive

“When The Eyes Say One Thing, And The Tongue Another, A Practiced Man Relies On The Language Of The First.”

-- Ralph Waldo Emerson

Methods Of Communication• VERBAL: Speaking, the words we choose and how we

say them, tone of voice, intonation and volume.

• NON-VERBAL:– Written: Electronic/email/texting. – Body Language: Posture, gestures, facial expressions,

eye contact, positioning of arms and legs, and spatial distance.

“If We Were Supposed To Talk More Than We Listen, We Would Have Two Mouths And One Ear.”

--Mark Twain

Listening - A Key To Effective Communication

• PASSIVE LISTENING: The basic level of listening.

• EVALUATIVE LISTENING: Most of us do this.

• INTENTIONAL/ACTIVE LISTENING: The most sophisticated level.

Case Study

• 86 year old female moves into assisted living facility, Shady Place• Resident is wheelchair bound due to left sided weakness from a

stroke and self-propels her wheelchair around facility• Mentally competent and capable of making own healthcare

decisions• Resident is a smoker, no documentation of smoking assessment in

chart, but considered safe smoker by staff• Spends every afternoon on patio in designated smoking area• Shady Place does not have a written policy or procedure regarding

resident smoking nor uses a smoking contract

Facts of the Case

• Resident living at the facility for one year. • Resident was alone on the patio and catches on fire. • Another resident, who was in his room, smelled smoke, called for

help and went to the patio to assist. • Tried to use the hose to put out fire but it did not reach. • As resident was engulfed in flames she cried out “Help me! I am

going to die!”• The daughter arrives at the facility and sees Mom being

transferred to a gurney to be taken to the hospital, where she dies.

Add Video Scenario 1

What was wrong with this scenario?

First ListenFirst Listen• Stop talking

• Eye contact

• Don’t interrupt

• If you’re thinking about what you’re going to say, you aren’t listening

How to RespondHow to Respond The right way…• "I appreciate your

feelings." • "This situation must be

very difficult." • " I am so sorry that your

are going through this."

Not the right way

Human ReleaseHuman Release

• Listen – without judgment,

– without apologizing,

– with compassionate acknowledgment often provides some measure of catharsis and can diffuse frustration and anger.

When Unexpected When Unexpected Events HappenEvents Happen

• Using the Human Touch to Avoid Litigation

Add VideoScenario 2

InvestigationInvestigation• Administrator needs to conduct/oversee an

investigation• Interviews with residents, employees, family

may be conducted by the Administrator or other assigned person(s)

• Root cause analysis

When Do You InvestigateWhen Do You Investigate• Death• Missing resident• Abuse/neglect allegations• Serious accidental injury resulting from a facility practice,

action/inaction by staff, or circumstances w/in the facility• Hospitalization resulting from a facility practice,

action/inaction by staff, or circumstances w/in the facility• Exploitation allegations

Proactive CommunicationProactive Communication

• Meet EMTs at the door and prepare them for anything unusual regarding the patient

• Contact ER staff and provide details or history regarding patient (behaviors, wounds, bruising, etc.)

• Involve the attending physician

Why Investigate?Why Investigate?

• Statutory duty to investigate, both federal and state

• Part of Quality Assurance Process to improve quality of care

• Preserve evidence to use in defense if law suit is filed

IInvestigationsnvestigations• Federal Law

– Legal obligation to report under 42 CFR § 483.13 (c)(2)

– Legal obligation to investigate allegations of neglect or abuse under 42 CFR § 483.13 (c)(3)

• State Law– Title 22 CCR § 80061-SNF– Title 22 CCR § 87211-RCFE

InvestigationInvestigation

• The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress.

InvestigationInvestigation• Facility must attempt to identify cause of

injury• Document its investigation• Maintain its records in a way that will

enable third parties to review what the facility has done or not done to investigate the alleged abuse

Facts of the Case

• The outside video camera, which allows staff to monitor this area, was broken.

• Incident occurred during lunch time, so staff was busy escorting residents to the dining room – no staff member was on patio at the time of the incident.

• Several residents interviewed report she frequently would take cat naps on the patio with a lit cigarette.

• Staff reported finding holes in the Resident’s clothing and the cushion of her wheelchair, presumably from ash or dropped cigarettes.

The Investigation revealed:

Scenario 3

Disclosure Policy and Procedure: Disclosure Policy and Procedure: Step OneStep One

• Legal: Triage and Assessment– When it’s time to call Legal– Investigation and Analysis of Risk and Value

University of MichiganUniversity of Michigan• Disclosure program

– Emphasis change from “Deny & Defend” to full disclosure– Utilizes ombudsman mediator

• Claims– 262 claims pending in 2001 (new program begins)– 104 claims pending in 2006– 100 claims pending in 2011 despite expanded practices

• Claim closure time reduced by half• Loss rate reduced by third

Guarding Your DocumentsGuarding Your Documents• Incident Reports / Photos / Witness Statements

– The relevant inquiry is whether or not the document derives from an investigation into the quality of care or evaluation thereof by medical staff. Santa Rosa Memorial Hospital v. Superior Court (1985) 174 Cal. App. 3d 711, (1985)

– "Nothing in section 1157(a) limits the privilege to records that are generated by a medical staff committee, and nothing in the statute supports the suggestion that materials submitted to a committee for review are not protected "records" of the committee.” Alexander v. Superior Court 5 Cal. 4th 1218. (1993) (Overruled on other grounds).

Incident Reports / Witness Statements / Incident Reports / Witness Statements / PhotographsPhotographs

Witness should report event to a CQI committee member.

Witness should include factual information only in the incident report.

As part of ongoing analysis, CQI member should describe the incident and include any other information that might be helpful, including:

Evaluation of the witness' actions. Evaluation of responsible party's actions. Analysis of how this incident may be related to other incidents, etc.

CQI member’s report should be reviewed and discussed by CQI committee.

CQI committee members should be free to add more comments to the incident report, if necessary.

Once the entire committee has had an opportunity to review and discuss the incident report and add any comments, each committee member should sign the report.

The report should be presented at the next QA Committee Meeting.

Disclosure RecordDisclosure Record• Maintain separate disclosure file as part of

Quality Assurance Process

• Document– Meetings and discussions– Patient updates to family/patient– Objective – Facts Only! No conjecture, blame, accusations

• Disclosure– communication of information regarding the results of a

diagnostic test or medical treatment.– Factual– Not an Opinion– Not an Apology

• Adverse Event – a negative result stemming from a diagnostic test or medical

treatment.• Unanticipated Outcome

– a result that differs significantly from what was anticipated to be the result of a treatment.

DisclosureDisclosure

Disclosure Disclosure Policy and ProcedurePolicy and Procedure

• What should I disclose?– Facts not opinion

• When should I disclose?– As soon as possible– Set expectations for more information as investigation proceeds

Provide InformationProvide Information

• Results of investigation

• Not peer review or employee discipline

• Establish contact for ongoing communication

Disclosure Policy and Procedure:Disclosure Policy and Procedure:Step TwoStep Two

• Engage Patient/Family and Share Information – Just the facts ma’am!– use Ombudsman as mediator as needed

Disclosure Policy and Procedure:Disclosure Policy and Procedure:Step ThreeStep Three

• Mistake and Injury determined – Engage educational opportunities– Engage clinical quality improvement now what?

Scenario 4

When & How to SayWhen & How to SayI’m SorryI’m Sorry

Two Categories of ApologyTwo Categories of Apology• An expression of sympathy or remorse without

an admission of fault, mistake or error causing an injury suffered by a patient ("I'm sorry that you are hurt.") and;

• An expression of sympathy or remorse with an admission of fault, mistake or error causing an injury suffered by a patient ("I'm sorry that what I did caused your injury.”

Historical PerspectiveHistorical PerspectiveI’m Sorry LawsI’m Sorry Laws

• 1999 Institute of Medicine report: To Err is Human

• 2001 JCAHO releases standard re: disclosure

• 2001 University of Michigan– “I’m sorry” and transparency becomes policy– A decade of success in reducing litigation

State Review of AdmissibilityState Review of Admissibility• Washington

– Statements or benevolent gestures not admissible– Admissions of fault are admissible

• Oregon– Any expression of regret/apology not admissible– Admissions of fault may be admissible

• California– Statements or benevolent gestures not admissible– Admissions of fault may be admissible

• Nevada• Idaho

– Statements of sympathy/apology/benevolence/fault – Not admissible

• Montana– Statements or benevolent gestures not admissible– Admissions of fault may be admissible

Apology in CourtApology in Court• “I would never introduce a doctor's

apology in court. It is my job to make a doctor look bad in front of a jury, and telling the jury the doctor apologized and tried to do the right thing kills my case.”

President of South Carolina's Trial Lawyers Association http://www.sorryworks.net

“Mistakes are an inevitable part of everyone’s life. They happen; they hurt—ourselves and others. They demonstrate our fallibility. Shown our mistake and forgiven them, we can grow, perhaps in some small way become better people. Mistakes, understood this way, are a process, a way we connect with one another and with our deepest selves.”

-David Hilfiker, M.D.Mistakes

Jury OpinionsJury Opinions

• Forgive providers who:– Try their hardest– Cared about the patient– Honest explanation

Summary of Communication Tips• Always maintain your professionalism within the confines of your role

• Follow the policies and procedures in your organization

• Do not avoid speaking with family, silence interpreted as insensitivity, lack of concern or hiding something

• Be empathic and sincere

• Explore the issue/event prior to your conversations whenever possible

• It’s not personal. Don’t take the other person’s reaction or anger personally

• Always speak in a non-threatening, calm manner

Summary of Communication Tips• Engage with person by making eye contact and positive body language

• Be aware of your “non-verbal” cues

• Keep client/family informed and updated

• Give the other person a chance to speak and actively listen

• Suspend judgment and try to see things from their perspective

• Use inquiry

• Ask for clarification and summarize what you hear

Summary of Communication Tips

• Avoid making excuses - You don’t have to have all the answers.

• Look for alternative explanations (increases empathy and decreases judgment)

• Pay attention to and validate the person’s feelings/frustration

• Apologize, sincerely without accepting or assigning blame