A friend and colleague, Doug Wojcieszak, recently posted an article on his blog, Sorry Works, about responding to criticism in health care.  Actually, it was more than just criticism. A law firm ran ads soliciting plaintiffs against a nursing home. The nursing home sued the law firm. The story and Doug’s response are worth reading.

A recent news story stated that three Georgia nursing homes won a round in court against a PI law firm that ran ads targeting their facilities. Many of you have seen these type of ads where a PI law firm will exclaim – shout! –  in a newspaper or billboard that a certain nursing home was cited for the following deficiencies by state regulators and residents may have suffered bodily harm or death due to the lapses and here’s our phone number if you have a loved one at said facility.  Georgia state law requires such advertisements to provide more detail on the deficiencies, including whether the lapses actually injured or killed any residents.  

The nursing homes sued the law firm and one of the firm’s attorneys over the ads. The law firm and the lawyer fought back saying the case should be dropped because it was nothing more than a SLAPP lawsuit or “Strategic Lawsuit Against Public Participation” meant to chill the First Amendment rights of critics and safety advocates.  A lower court disagreed with the defendant law firm and lawyer. The case is now is being appealed to the Georgia Supreme Court.

Nursing homes have been under been attack by these types of ads for many years. One of the factors that makes the nursing home/long-term care business different from acute care is the heightened level of emotions. Sending mom or dad or any member of the family to a nursing home is tough stuff….lots of guilt, regret, and other bad feelings.  Families are in vulnerable, emotionally charged situations, and then a lawyer comes along and plays on those fears. Is that fair? Is it wrong, or simply the price we pay for living in a free and open society?  Where do you draw the line?  

Where I sit no one is free from blame in this situation….there are many honest, ethical PI lawyers who genuinely help families in horrible situations and have helped make healthcare safer. I know many PI lawyers who would never dream of running such ads, mainly because they have more than enough strong, legitimate cases already coming through the door. However, there are PI firms that run commercials that don’t tell the whole story — they’re no different than political ads — and play on the emotions of families. 

There are many nursing homes and long-term care professionals who do God’s work every day caring for the most vulnerable members of our society.  They have an extremely difficult job.  Unfortunately, mistakes happen in nursing homes, and the long-term care industry has not always been honest with residents and families. Same is true for our entire healthcare system. Disclosure and apology is still a work in progress in the long-term care industry and throughout our healthcare system. 

So, who started this fight?  Overly aggressive PI lawyers, long-term care administrators not willing to tell the truth when mistakes happen and say sorry…or families with excessive guilt and unreasonable expectations?  Probably all of the above. 

How do we get out of this mess?

I have written in this space before that dishonesty attracts dirt bags. In other words, when your organization is perceived as being dishonest when things go wrong, that perception opens the doors to all sorts of marginal and even frivolous claims being brought forward.  After all, who knows when you are telling the truth? Conversely, disclosure organizations generally don’t settle nuisance claims, and when they say “We didn’t make a mistake” are more likely to be believed.  I like to say disclosure produces an “honesty dividend.”  Moreover, being perceived as honest can help quell the passions of zealous regulators who honestly believe they are the only protectors of seniors warehoused in nursing homes.  

I think there should be truth in advertising, especially when touching the heart strings of vulnerable residents and families. Moreover, I understand the desire for the nursing homes to fight back.  However, I am worried this fight will provide some exposure they don’t want.  

A few years ago, a nursing home client of Sorry Works! shared the following response to ads run by PI law firm ads.  They didn’t sue…instead they placed this letter as an ad in their local newspapers.  I think it’s remarkable.  See what you think: 

“A letter from Rockcastle Health and Rehabilitation to the community of Brodhead

Nobody chooses to work in a nursing home for money, for glory, or for power. We do this because we love it and because we believe that taking care of our elders is some of the most meaningful and important work imaginable.

Recently, someone took out a full page newspaper ad saying some not-very-nice things about us. This is not the first time they done it. In fact, they take out similar ads all around the country and make their money by playing on people’s fears.

We know we aren’t perfect. But we are honest and hardworking, and we are striving to get better. If we do something wrong, we pride ourselves on admitting it and saying “We’re sorry.”

I would personally like to invite you to come visit us and see the changes we’re making at Rockcastle Health and Rehab. If you can’t make it to our facility, we’d love to hear from you on our website at RockcastleHealth.com or via phone. My cell phone number is 606-308-5813. You may even know someone who works at Rockcastle Health and Rehab. If you do, ask them what we’re all about.

To our residents and their families, we want to say that we love you. If we’ve fallen short of your expectations in any way or done something to upset you, please know that we’re sorry. And please feel free to schedule a time for us to talk. I promise that we will try to make it right.

Taking care of your loved ones is a sacred duty, and we want you to know how seriously we take it.

David Dickerson, Administrator”

That’s a powerful letter I hope you will remember the next time you are targeted with a negative ad by a PI law firm.  More broadly, I hope you consider developing a disclosure program. 

About the Author:

Doug Wojcieszak is a disclosure training consultant who created Sorry Works! and has trained over 30,000 healthcare, insurance, and legal professionals.  Wojcieszak is a sought-after speaker and trainer, and Sorry Works! content (books, booklets, on-line learning, etc) has become the “go to” references for organizations dealing with adverse medical events.  Sorry Works! and Wojcieszak partnered with The Sullivan Group to provide on-line disclosure training content for healthcare professionals