It’s bad enough being sued for malpractice. But what if reporters are calling and articles are being written? How should you respond when you’re getting bad press? Better have a plan now.
The news is bad enough, devastating, and to receive it from an absolute stranger. It’s beyond worst-case scenario.
“A former patient has just filed a $10 million medical malpractice lawsuit against you in circuit court, claiming gross negligence. I’m a reporter with the local newspaper. Do you care to comment?”
How you respond could change the entire course of your career, perhaps even effectively end it. Never mind that you graduated at the top of your class. Never mind that you’ve committed your life to your patients, spending too many hours in the office and not enough at home. Never mind that you did everything you could - all of it by the book - for a patient who you now learn is expressing his gratitude by suing you to kingdom come.
“Doctor? Your comment?”
If you think this could never happen to you, think again. More than 46 percent of physicians will be sued during their careers, according to an AMA survey. And while not all lawsuits attract media coverage, there are numerous other circumstances that can place you on the receiving end of a reporter’s phone call or television camera. Your practice could lose patient medical data. An employee could embezzle cash. A partner could get a little too liberal with prescriptions for pain meds.
Suddenly, it seems that all that stands between you and the death of your hard-earned reputation is a harried reporter scavenging for something hot enough to make the front page or to lead the next broadcast. The resulting story will be exhibit No. 1 in the court of public opinion. The “jurors,” your current and potential patients, could render a “verdict” with their feet, leaving your practice for a competitor, never to return.
Given the potentially catastrophic consequences, you feel you have just seconds to articulate an all-important response to a crisis you never saw coming. But should you find yourself in such a situation, it might not be as bad as you first think. Really. There are effective ways to manage the flow of information during a crisis. In fact, if you handle it well, you can actually burnish your reputation rather than lose it.
Getting the lay of the land
Before delving into specifics, it’s important to take a macro view of the environment in which you practice today.
Payment and workload issues aside, the standard to which the public holds healthcare providers has become unreasonably high, laments Jack G. Slover Jr., an Atlanta attorney with more than a quarter century of experience defending doctors. “The public expects perfect medicine,” he says.
That, of course, is an impossible standard, and one that fuels litigation. By dismissing the associated risks of treatment, patients increasingly believe they deserve a financial remedy when one of those risks becomes reality.
Stephen H. Kaufman, a longtime healthcare lawyer in the Baltimore area, puts it bluntly: “Part of doing business as a doctor is getting sued.”
Plaintiffs’ lawyers routinely sue every doctor on a patient’s chart, regardless of who did what, meaning you can get sued without so much as laying a finger on anybody, Kaufman explains.
In such cases, your odds of victory might be very good in a court of law. But in the court of public opinion, the facts don’t always play as large a role, says Joseph A. Camarra, a Chicago attorney who has been defending doctors and hospitals for nearly 37 years. “The media doesn’t cover a story with an eye toward making a doctor look good,” he says. “Coverage skews toward plaintiffs, the aggrieved, the injured. … That’s what sells.”
Still, relatively few medical malpractice cases make it into the press. Remember this if you are sued or some other crisis breaks out within your practice. It’s natural to think your “story” is big enough to generate unflattering headlines. But chances are it isn’t.
“Physicians are usually very unprepared for this,” says Levi Rabinowitz, president of Redzone News Management, a firm he founded to help professionals and companies deal with the media during times of crisis. “They feel like they’re practicing good medicine, and they care for their patients, and they work hard, and many of them today are underpaid, and they’re under so much pressure because of the whole insurance [issue], so they’re kind of devastated when they get hit.”
Nevertheless, what is - or feels - catastrophic to you may seem less than mundane to the press. So it’s a good idea to develop a better understanding of what commands the press’s attention. Of course, there are no hard-and-fast rules, but there are some general guidelines, says Rabinowitz, who handled press relations for individuals involved in the Watergate and Monica Lewinsky scandals, among other events.
The press loves the themes of power, money, sex, morality, and ethics (or lack thereof). “The more of these themes you find in a story mix,” says Rabinowitz, “the more fuel there is for the life cycle of the story.”
Many of you are no doubt thinking that you’ll never produce a story including any of these themes, much less more than one. The problem is that there are those who view you as one of the most powerful people in their lives. And no matter what your accountant tells you, they also think you have lots and lots of money.
That’s why the time to devise a plan to counteract the court of public opinion is not when you’re called by the press, experts say. It’s right now, before any potentially newsworthy events occur.
Two out of three companies have a crisis communications plan, according to the most recent survey on the topic by the International Association of Business Communicators, a trade group representing more than 14,000 communications professionals worldwide. But you don’t need to panic if your business lacks such a plan. Unlike your practice, the companies surveyed have professional communicators, such as public relations experts, on staff.
But you shouldn’t get complacent, either, says Julie Freeman, president of the business communicators organization. No matter how small your group, it’s a good idea to formulate a plan before a crisis breaks out.
Freeman suggests hiring a vendor, such as a crisis news manager or an experienced public relations pro, to lend a hand. To find one, search the Internet or your local phone book. You can also check out the IABC’s Job Centre.
Rabinowitz advises consulting your lawyer before seeking PR help, as your legal and media strategies should always be in sync. While careful not to criticize public relations pros, Rabinowitz says the firm that produces press releases for you isn’t necessarily the firm you want to handle crisis management. These tasks require two very different skills, he says, adding that people who have media experience in the political arena tend to be the best prepared for handling crises for businesses.
“There’s something about people who come out of campaign press operations,” says Rabinowitz. “They’ve developed an understanding of the value of information to reporters, the immediacy of the process, the short- and long-term goals of a campaign, and how to blend them for tactical messaging.” This expertise translates very well to crisis management in the business world, he says.
Once you’ve gotten the help you need, you must determine your plan of action in the event of a crisis. The plan should take into account all of your communications, Freeman and Rabinowitz say. It covers everything from the relationships you cultivate with reporters to the consent forms you produce for patients, from the access you provide to the press to the way you speak with patients behind closed doors. In all of these ways and more, you’re creating your public image.
“The PR ‘battle’ has to be fought on a daily basis. It’s grounded in ethical actions, being a responsible corporate citizen, dealing fairly with customers,” says Freeman, who handled media relations during the high-profile Dalkon Shield birth control crisis in the 1980s.
The most obvious reason to wage this battle? The people with whom you have good relationships, including patients and reporters, are less likely to sue you and more likely to give you a fair hearing. Communicating well with these people and being up-front in your dealings with them can defuse crises before they occur.
But what happens when there’s no plan, or the plan fails, and a crisis does erupt?
Care to comment?
OK, so a reporter’s on the phone awaiting comment. What do you do? First, the receptionist should act as a quasi-reporter on your behalf, respectfully gathering information to help you react and respond appropriately, Rabinowitz advises. Who are you? Which news organization do you represent? What questions do you have so I can get the appropriate person on the phone? We’ll get back to you as soon as we can.
If the reporter is opposed to providing questions, a useful and honest response is: We can’t determine whether to get back to you or not unless you’re willing to share what you’re looking for, Rabinowitz says. “If somebody’s going to ask you a question, you have a right to know what that question is.”
It’s important to always be respectful. And it’s important to know that the press isn’t your enemy. “Thinking the press is hostile is the biggest mistake” people make, Rabinowitz says. The minute you look at someone or something as “the enemy,” it informs the way you respond. Your practice will involuntarily adopt a bunker mentality, refusing all requests for information, even those that may help you. Keep in mind that the media can be your best means of communicating with the public during such times.
After your receptionist gathers as much information as possible, ask your attorney or media adviser, if you have one, how to proceed.
Most defense lawyers I reached for this article are vehemently opposed to saying anything to the press, arguing that it can’t possibly help clients, but it can definitely hurt them.
“I’ll tell it to the jury. I don’t need to tell it to the press,” Camarra, the Chicago defense lawyer, says, explaining that what clients tell reporters can be used against them in a court of law. Without exception, Camarra has clients refer reporters to him, and he gives them all the same answer: “No comment.”
Likewise, Kaufman has his clients direct reporters to him, and he routinely redirects them to court filings, which are open to the public.
Public statements not only can be used against doctors in court, but they can also undermine physicians’ relationships with their insurers. In the event of a medical malpractice suit, a lawyer representing your insurer is sure to get involved along with your personal lawyer. You don’t want to exacerbate the situation by leading your insurance lawyer to think you’ve done something stupid by speaking to the press, Kaufman says.
Slover of Atlanta also doesn’t see much benefit in having his clients talk to the press. But he acknowledges that the “no comment” approach can appear incriminating, as can a confidential out-of-court settlement.
Let sleeping dogs sleep
To gain some perspective on all of this, ask yourself how many patients or potential patients you would expect to know that you’re mired in a controversy - should one occur - unless they read a story about it that very day. Kaufman conjectures that it’s probably less than one in 1,000. He adds he’s never seen one of his clients lose patients after a medical malpractice case, as people are generally pretty loyal to good doctors.
Paul Mark Sandler, a lawyer who has written several books and has appeared on CNN’s “Crossfire,” “Larry King Live,” and the “Today Show,” among others, takes a much different view.
Whether and how you deal with the press depends on the case, says Sandler. In some situations, responding to the media is crucial. In other cases, it’s self-defeating. His advice is to be “very strategic and very careful.”
For example, you probably don’t want to generate publicity where there is none. But if you are under public assault, there may be great value in offsetting scurrilous attacks. It might also be important to attempt to amend inaccurate reporting.
“Whenever there is a lawsuit and adverse publicity is deep and wide, the individual, the aggrieved client, should consider the idea of undertaking a battle in the court of public opinion. But there is great risk, and it requires great skill,” says Sandler.
Also know that participating in media coverage doesn’t necessarily mean that you go on the record. An established and respected news manager can get in touch with a reporter or producer off the record to inform and shape a piece.
If you do choose to talk to the press, you or your practice should speak with one voice, Rabinowitz says. And that voice, that speaker, should understand the relationship he or she is about to enter.
“You have no obligation to share your life with the public, regardless of what a reporter may ask or a media adviser may tell you,” Rabinowitz says. “You do have an obligation - I believe this firmly - you have an obligation to say what you believe, which in effect will share with the public who you really are, not some image of who you are … .”
Know your core values. Say what you believe; don’t try to believe what you say, Rabinowitz adds. And be consistent with the press. Demonstrate that you do what you say you’ll do, and do it in a timely fashion.
Also, don’t overlook your employees when the TV trucks are idling in your parking lot. You need to communicate with them, too. Leaks occur when staffers are afraid that the full truth isn’t being told and that their personal reputations will suffer as a result.
Finally, a likely time for press contact is after you’ve lost a lawsuit. “You want to be gracious when you lose,” Kaufman says.
A great example of this is the story of Frederick Schwaibold, an Atlanta-area radiologist. Outside the courtroom where a jury had just ordered him to pay $250,000 to a former patient for treating the wrong side of her body, Schwaibold apologized to the couple that sued him and said he wished they’d gotten more money. This was reported by the Atlanta Journal-Constitution, which went on to write that after apologizing, Schwaibold hustled back to the hospital “to treat a woman whose eyesight is in jeopardy and two men with prostate cancer.” “I couldn’t leave and dwell on ‘woe is me,’” he later told the reporter. “I had to drive back to the office and put on a lab coat and see my first patient.”
His attorney, Jack Slover, said the story generated several supportive letters to the editor.
Mark R. Cheshire is managing editor of Physicians Practice. A graduate of the Columbia University Graduate School of Journalism, he has 15 years of journalism experience. He can be reached at 443 543 5120 or firstname.lastname@example.org.
This article originally appeared in the July/August 2007 issue of Physicians Practice.