Interview with Ginny Hamm
Hedrick Smith: Were in Lexington, Kentucky and were talking to Ginny Hamm, Staff Attorney for the Department of Veterans Affairs.
Ginny Hamm: I actually work for the Office of Regional Counsel. And my Regional Counsel is Indianapolis, Indiana, but I am out-stationed here at the Lexington Hospital to serve my one and only client.
Hedrick Smith: This isnt your first job as an attorney; what else have you done as an attorney and has it been in health care?
Ginny Hamm: My first job as an attorney was in private practice with a gentleman I graduated from law school with in 1978. And from there I joined a law firm that largely did insurance defense and did some medical malpractice defense. And then I went back out into private practice after my firm broke up. From there I found this job quite by accident and thought it was a wonderful opportunity to do what Id always wanted to do and thats medical law.
Hedrick Smith: Whats the normal mode of an attorney practicing medical law? Take us into the world of attorneys who practice medical law.
Ginny Hamm: Attorneys who practice medical law are taught in law school to be very tactical. Learn your case, learn the medicine, hire the best experts and win. A win is very important. And when you come out of law school with an interest in medical law and the first thing you think of is, if Im gonna represent plaintiffs, then the only way plaintiffs are going to come to me as clients is if I have a reputation as an attorney who can get results. On the defense side, if doctors are gonna trust me with their cases, Ive got to have a reputation as a lawyer who defends doctors to the fullest and prevails. And thats the normal mindset of medical litigators - people who go into the courtroom on either side of medical cases.
Hedrick Smith: Does the patient get lost in the legal battles?
Ginny Hamm: My experience as a defense attorney before I came here is that the patient gets lost when their attorneys put their own needs for prevailing in a case before the actual problems and needs of the patient or the patients family. Theyll get caught up in the game of being the best tactician, the best advocate and the best litigator in town. And their client sort of has to sit back and say, "Wait a minute, remember me? Im the one who got hurt here. And youre kind of carrying this case to great extremes. And maybe we just want to settle." I think a lot of cases get carried out because the lawyers get into the spirit of the case and sort of forget who they represent. And that happens on both sides.
Hedrick Smith: How different is that normal mode that youre describing from what youre practicing now?
Ginny Hamm: The way I practice in this institution was a new experience. And when I came here I found out I could have the freedom to go ahead and resolve cases without anybody saying, "Hey, Ginny, why arent you fighting? Whats the matter? Are you gonna roll over and give these people money?" Or, "Hey Ginny whats the story?" I found the support in this institution for moving to do the right thing for I consider myself having three interests. One is, obviously, the Medical Center and the providers in it and the staff, everybody in the Medical Center. Thats who Im hired to represent. But I also represent the veterans and their families because thats what the VA is all about. I also have to think in terms of the taxpayers dollar because everything the VA does is taxpayer dollar including judgements and settlements we pay. So I feel like I have a duty to be a steward for all three of those, an advocate for all three of those people.
Hedrick Smith: So, how and why did you come up with the idea of changing the policy here on medical errors and how you handle them?
Ginny Hamm: It was an evolution. When this group first started as a risk management group, the concept was that we would prepare for possible tort claims and litigation that might arise in the future. We have a long statute of limitations; its two years here. And if the two years passes and we dont commemorate the evidence and the testimony right soon after the incident arises, by the time it goes to trial, its four or five years down the road; memories are gone, people are gone, and evidence is often gone. So we had the original concept that this would be a group that put together testimony and evidence and put it away and wait.
Then the day came that we realized that we were seeing things that needed change, that needed action, and coincidentally, about that time our chairman passed away, and Steve [Kraman] stepped into the chairmanship. And it took on a whole different complexion then because he had the personality, the integrity and the power to do things very quickly when we would have something arise that we found during the review of a case. Thats when we really started saying, hey we can be proactive, we can be interactive, we can really make quick and efficient changes in the way we do business here. Then came the case where we realized we had an error that nobody else realized except our staff in this hospital. And thats when we changed our philosophy.
We were, as a risk management committee, looking initially at cases from a defense standpoint. But we had not encountered a case until sometime in 1990 that we discovered that we had a medical error that killed a patient. The patients children were estranged, and she was unmarried. So we had the only knowledge about that error -- we as a hospital. I say we and I mean that as the hospital not just Dr. Kraman, myself, or the committee.
At that point we decided we had to be more than just a committee that looked for problems and rated them to the degree of risk and identified and corrected small systems errors and large systems errors; but we had to be proactive with people we had to do what was morally and ethically right, for those individuals that we had harmed. And we had a hard time with how you do that. How do you sit down with daughters of a deceased veteran and say we caused the death of your mother without putting them at great risk for some emotional shock? We worked hard with that. We studied about it and talked about it for several weeks before we made the decision.
Dr. Kraman, myself, I think we had one or two nurses in the room when we made the first disclosure. We decided the best way to do it was not be blunt but to not dally, not work up to the truth [but] just go ahead and tell what happened and follow that by an apology and follow that by a discussion of what remedies were available. And thats the turning point in our committee, and thats when we became what I guess we are today, although I would hope were still evolving, getting better and more sensitive to the way we do things.
Hedrick Smith: How radical a departure for this institution and for you as an attorney is this new approach?
Ginny Hamm: It was a radical departure for the institution because our process had been to wait for tort claims to be filed and then respond to them. Although we were at that time compiling files so we could be prepared. But we were still operating, until this case, from a standpoint of well wait and see.
Hedrick Smith: And whatever you do, dont admit you did anything wrong?
Ginny Hamm: Admissions of liability were so unheard of when I was first practicing this type of law that people thought you were absolutely crazy if you suggested an admission of liability. Because that was viewed as a no turning back, you then were faced with damages only and you didnt have an opportunity to put on the parts of your case that might have improved your image if nothing else.
The first time we said were admitting liability in this case, we were met with, oh my goodness, now wait, wait lets talk, lets work this through. But when we sat down and talked and worked it through, the United States Attorneys Office here came right on board with us and have been a total supporter of the way were doing business. A radical departure from my old way of thinking. The first time I did it, it scared me to do it with the case we first identified as the moral dilemma. But it felt good. It really felt comfortable. I had never felt that good in a malpractice case before.
Hedrick Smith: Tell me about the Holbrook case.
Ginny Hamm: The Holbrook case was one of the most fascinating and terrifying cases because what happened, the mistakes that were made were made by people who had never made mistakes before that were known; they didnt know of any mistakes they had made, we didnt know of any mistakes they had made. And when you looked at how the error occurred, it could have happened to anyone. But it was clearly an error.
The case happened when Mr. Holbrook was put on an injectable heparin to control his blood-clotting factor. He had very difficult blood clotting to control. He had been tried on other drugs, and they had not worked. So this injectable heparin was considered really a last effort. And injectable heparin is administered in a different concentration than you normally see in heparin because the normal thing people see is the type of heparin solution thats used to wash out IV sites. Its in a large bottle, and its used to clean out, to wash IV site. And so the injectable heparin was seldom used in our way of understanding as an outpatient drug.
So when this prescription was presented, the way it was written, even though it was clearly written, the first thought you had, the click in your mind was the normal solution you would see. And because it was just a difference in the number of zeroes, it was very difficult to discern the difference unless you really stopped and thought about it; there were no commas placed. So it was just a one and zeroes. So the pharmacist and the tech who filled the prescription, their mind clicked to the normal click; they filled it, they initialed it, they put the serial numbers of the drug they filled it with on the original prescription, and sent the medication out.
The problem was that the concentration that was given to Mr. Holbrook and his family when he left from his hospitalization, when given according to the instructions they were given would have been an entirely too weak and totally inefficient dose which would have allowed him to clot, and it did. He came back into the hospital in acute distress and died after a short illness here.
Hedrick Smith: Who told that story to the family after he died? We did talk to Dr. McCormick this morning and he indicated that something had been discovered while Mr. Holbrook was in the hospital and had not yet died. But after his death who took that word? What was said? Were you there? What was it like?
Ginny Hamm: This was a complicated set of circumstances that happened. While Mr. Holbrook was here, when he came in, Dr. McCormick was treating him. Dr. McCormick, being a pulmonologist, and Mr. Holbrook, having a pulmonary condition, Dr. McCormick was treating him as an in-patient; he was on service. And what apparently happened is the home-health nurse had looked at the medicine cabinet where the Holbrooks kept his medicine and noticed that the bottle of heparin. She, knowing he was in the hospital acutely ill (from the Holbrook family) phoned our telephone care nurses and advised them of the situation. This was very consistent with his illness and Dr. McCormick advised the family of what he believed the cause was that the heparin had been not effective in controlling his clotting because the dosage was reduced. And he was very forthright with them.
At that same time, it was almost like three things were happening at once. We were advised as a risk management group that this had happened, and we immediately initiated a look into how the error occurred. It took a very brief time for pharmacy to find the original prescriptions. We had the bottle of heparin they had brought back in with him. As I recall, the pharmacist when he checked it off had written the lot number of the heparin that was dispensed on the back of the prescription which is the procedure for filling it, signed his name. So when the prescription was located, the bottle that was brought in was simply checked against the control number on the back of the prescription and the incorrect bottle of heparin matched the fill information on the back.
The pharmacist was shocked at his error. He was very remorseful about his error, he was sickened, I think, is a good word. His face just had a look Ive not been able to really categorize since that time. But he acknowledged that was his error. His technician said, yes, we did that. And we had already talked, by this time Mr. Holbrook had died.
Very shortly after his death, Connie Johnson, the nurse that works with us on all of this type of activity, and I had gone to the Holbrooks home in Saylersville and we had talked with them to get as much information as we could from them before we came to absolute conclusions. We wanted to make sure we hadnt missed something and werent about to disclose something that wasnt totally correct. We verified other bottles of heparin, both the correct vials that he had had before and the incorrect vials. The Holbrooks were very cooperative -- Mrs. Holbrook and her daughters. And we brought that information back, verified it against what we had found with the pharmacy. The risk management group concluded we had a medical error and, based on Dr. McCormicks evaluation of the cause of death, we added all those things together, made again a consensus decision including Dr. McCormick and the pharmacy people, who we kept involved in the loop the whole time. We did not want them to feel they were not a part of this decision.
We then went back to Saylersville, Connie and I, we told them what we found. We told them everything we found. We showed them the prescription. We showed them Dr. McCormicks notes about his death. And we talked to them at length about remedies. We gave them kind of a full menu of what we had to offer in the way of remedies. One of the things Mrs. Holbrook was interested in was her future. She had lost her source of income, and so we tried to make sure that she got survivors benefits. Once we had established that with her, we went back to the table and talked about settlement of the tort claim itself.
They had to file a tort claim. At that point theyre saying why do we have to file this claim? I said the tort claim is the only mechanism I have for paying these lump sums out, thats what the law tells me I have to do. We worked it out, we wrote it out together, as we did her disability. And we settled. We paid very quickly because I think part of closure of a case like this is to move things in a timely fashion, not make it a long and arduous process, like trying a case. Families go through years of hell, doctors go through years of hell in a lawsuit, and we felt that the best thing is always to do it as quickly as we can when we have the right information.
Hedrick Smith: How explicit are you? Is there a moment at which you say here are all the facts, we made an error, it was our error that killed your father or your husband?
Ginny Hamm: I told the Holbrook family that we had made the error that we believed contributed solely to his death at that time. He was a very ill man, but we believed from what we had discovered that the VA, through its pharmacy, a critical mistake had caused the death of their father at that time. The daughter was very worried because the way she had been taught to give his medicine, she was concerned that she might have misunderstood. We reassured her that that was simply not the case, that she should not feel responsible. She had been his sole caregiver and sort of the home nurse. And she had taken that responsibility because she didnt want her mother to have to do it. She had a terrible time with his death because she really was concerned. And we spent a lot of time reassuring her that she had made no error, she had done nothing but good care for her father.
Once we have the information out and we go through what is really an emotional experience for all of us, then we try to refocus on what could we do now. So what do we have that we can use to make them feel better about what happened. In other words, how can we compensate them for their loss. I always try to explain that the worst part of my job is valuing anyones life or limb in dollars and cents because it doesnt compute. Nobody can say my daddy is worth twenty thousand or a hundred thousand dollars. So I always try to explain that that is the tool the law gives me. And if they would please understand that. That I dont want to offend them by talking about a life in dollars and cents; thats simply the tool Ive got and would they help me with that.
Hedrick Smith: In the case of the Holbrook family, was there the kind of anger and urge to lash back and well go get a malpractice lawyer that a lot of people anticipate?
Ginny Hamm: Mrs. Holbrook and her daughters, before we came back the second time, had talked with an attorney friend of theirs. I always advise people in this situation that we certainly welcome any representation. I always tell them, actually I prefer to have a lawyer in the picture because its so much easier to talk to a lawyer in terms of valuing human life rather than looking the loved ones in the eye and talking the value of human life. Thats very difficult. The Holbrooks had spoken with a lawyer and had a lawyer basically on standby. What they said to me and we said back was as long as were proceeding well, its okay. If anything doesnt go comfortably, then you go get your lawyer, bring your lawyer into this picture because we dont want a breakdown of this relationship at this point.
Hedrick Smith: Now, why are you so receptive to lawyers?
Ginny Hamm: The first person I want to hear from is a malpractice lawyer. A good malpractice lawyer understands the law, they understand the concept of damages, and you can bargain with them and deal with them without worrying about breaking down a very carefully put together relationship. Lawyers dont have fragile relationships with each other. We know what to expect of each other.
Hedrick Smith: There is generically a deep mistrust and a deep fear on the part of the medical profession towards malpractice lawyers certainly, and maybe towards the law, but also towards disclosure. Why?
Ginny Hamm: The medical community, I think and from my experience with them over this last thirteen years, fears several things. They fear monetary losses and the loss of their insurance carrier. They fear the peer pressure, the negative peer pressure they might get if they are found to be operating below the standard of care, somehow deficient in the way they treated a patient. They fear embarrassment. They fear public humiliation, loss of patients, their families change in attitude toward them, they fear going home and telling their wife, I just got sued for a million dollars, I made a mistake. The kids going to come home and read it in the paper, and they fear that. They fear that whole series of things that happens when youre involved in angry litigation. And most litigation once it gets beyond a certain point necessarily becomes very adversarial, necessarily gets to be a war of the experts and a criticism of each side by the other.
Hedrick Smith: How do you reverse that dynamic, probably everybodys psyche, but particularly the psyches of doctors?
Ginny Hamm: My tactic here has been to be a partner with the doctors throughout any kind of a process where they have a problem; to be there and understand and reassure and explain whats going on; prepare them for the hard questions, show them how to handle the situation so theyre comfortable. When we have an error, the doctor needs to be a part of the decision-making process on how that errors going to be managed. And I have found over the last thirteen years that physicians want errors dealt with; they dont want to go home at night and toss and turn and worry about when that shoes going to drop. They want a remedy, and they feel good when they get it. And if you deliver, they will come back to you, and they will tell their friends its okay to come to you.
Hedrick Smith: In 1995, the Department of Veterans Affairs, adopted your policy at least in words. Whats happened in practice? Has it been generally carried out?
Ginny Hamm: When the VA adopted our language, and moved into this arena, I think it opened a lot of doors for a lot of physicians who wanted to tell the truth. And I think across the country its been a sporadic attempt at complying with that policy; I think its inconsistent, but I know people are trying. Weve had a lot of calls here; weve had people visit us; weve had private and government lawyers and hospitals call us and say, "How do you really do this? How are you doing it?" We tell all our doctors to be honest. But thats not enough because youve got two levels of honesty youve got to deal with. Youve got the clinical honesty which is telling the clinical facts to the patient as they occur clearly and honestly so the patient can understand them. But then youve got this legal honesty. Once you discover the evidence of a problem, then youve got to make this legal determination and then have the legal disclosure that goes along with the clinical disclosure. So its a two level honesty, and I think there are a lot of people out there who practice clinical honesty -- and I hope [thats] everybody. But I think the legal honesty, putting those two pieces together and developing a system for doing it has been the challenge.
Hedrick Smith: Would [this system] work at The University of Kentucky Medical Center?
Ginny Hamm: I think this system could be tailored to the needs of that Medical Center and work. I think it would require a special tailoring. Every medical center is different. Every corporate medical practice is different. So the system doesnt have to be like our system; it just needs to be a system involving the right people with the right philosophy and the right attitudes that develop their own process for identifying the problem, investigating the problem, and managing the problem.
Hedrick Smith: So essentially youre saying you've got to decide to dive off the diving board and be confident theres water in the pool.
Ginny Hamm: You have to be brave enough to believe that your morals, your ethics, and your experience are going to serve you well. You've got to take a risk. Thats why we call it risk management.
Hedrick Smith: Whats the resistance in the private sector?
Ginny Hamm: Well, I think the resistance in the private sector is the simply the fragmentation of the parties that would have to get together to make it work because they are so diverse; theres the insurance industry, the hospitals with their administration, the individual practitioners and their individual carriers as well. The hospital has a carrier, each practitioner has a carrier. So theres a lot of people. And again, I think fear, embarrassment -- people dont like their professionalism challenged publicly. Its humiliating, its demeaning, its extremely personal when your professionalism is attacked. Once it happens, once the doctors get involved and see it doesnt hurt so bad, then its easier the second time.
Hedrick Smith: You've described the response of the rest of the Department of Veterans Affairs and the other VA hospitals, and to me, it comes across as if there are some others trying to dip their toes in the water, but I dont see many people plunging in at least by your account and by other accounts weve heard. Whats the problem there?
Ginny Hamm: I think its difficult for old bureaucracies to change. We live in what I would term a machine bureaucracy. That is we are all will-bound. And it takes a long time to change those attitudes and, as I believe and have always believed the doctors want to be honest and I think theyre largely clinically honest. I think the bureaucracy has to move away from one person who manages all of the risk issues in the medical center and have some sort of an integrated, diverse group that works these things out together. And thats what were lucky to have. We didnt hire a risk manager because we believed that we should share the responsibility as a group.
I have seen in VAs, sadly, that risk management can become a tiny little office where one or two people process paperwork and dont have time to go out and be interactive, they dont have time to meet with a doctor and a family to make sure the process goes smoothly. They dont have a team to support them, and a lot of them do not have administrative support. And if you dont have top administration sitting right there beside you in a risk management arena, you will never accomplish it.
Hedrick Smith: How did the financial settlement with the Holbrook family finally work out?
Ginny Hamm: The financial settlement we arrived at with the Holbrook family came about because the hospital admitted fault which immediately made Mrs. Holbrook eligible to get both a government pension and settle under the tort. So, just by us admitting fault, it triggered both processes that would reimburse her for her loss. One is a pension, the other a lump sum settlement.
Hedrick Smith: A lot of people are saying if you go into this method you are going to lose your shirt.
Ginny Hamm: This hospital has found that we can only contrast what happened before our process and after our process. Before the process in the two years immediately before we started, we lost about a million-and-a-half in court judgements, in malpractice. In the seven years that we looked at once the process started, we had approximately eighty-eight cases and I think the total pay out on all of those aggregated cases was about one-point-three million, maybe a little over. So it averages down pretty nicely to a, very comfortable figure and we feel that you dont lose money being honest. We cant prove you save a lot of money but we know you dont lose a lot of money.
Hedrick Smith: What made you as a lawyer break with your past and your training and pervasive practice of conceal and defend and make the other side prove the case?
Ginny Hamm: Once I became the attorney for this institution, [I] saw patients being treated by providers, saw how the medical system works first hand, became an inside part of it and really got to know the process. It was simply a matter that I know Dr. X. If Dr. X made a mistake, Im not going to put him at risk by playing some defensive maneuver that might cause the judge to think were doing a cover-up and really smack him good. That is not a responsible, ethical thing for me to do as that doctors lawyer.
Ive enjoyed that freedom. Its a freedom, it really is. Its a kind of a privilege, but it came with learning my client from the inside out. And you want to make sure you do the right thing by them. I know half the patients here. They drop by even if theyve sued us; they still come by and say hello. I think I have a duty to do the right thing for all of the people involved. And I have a real duty to make sure the veterans get a fair shake in this.
Hedrick Smith: How special, how different is this program that you have?
Ginny Hamm: Dr. Kraman and I have done a lot of looking at other VAs and at what we could of the private sector. And we both believe that we have a unique program; we do things differently. We are more apt to be legally honest and we have a better process for being legally honest. We have achieved, through some hard work but some real good things, a real high degree of trust between the providers in our system. And I think that makes us extremely unique because I hear providers in other hospitals who do not know their lawyer, they dont know their Chief of Staff, and you cant have trust that way.
I dont hear other people using the technique of legal honesty. I dont hear people making the disclosures the way we do. I hear a lot of people say all of our doctors are honest, and Im sure thats right. But, I think we have a very different approach to the management of medical errors than most people out there. Weve had a lot of visitors who have come here and a lot of people who talk to us and they think we have a unique system as well. So, weve sort of been validated by others. And we worked very hard to make sure that this paper conveyed and this program conveys a real researched approach to how we do business here. We dont want to be honest on the fly. We want to have it all put together and do it right or not do it. But I truly believe we have a unique program.
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