The following is the second of three excerpts from a feature article, written by Rob Weinhold, Fallston Group Chief Executive, and published by “Captive International” in July 2020. Read part one here and part three here.
I’ve worked with partners in the healthcare space on a myriad of issues, including accusations of patient dumping, criminal activity, gross mismanagement, sexual harassment accusations and medical malpractice claims, to name a few. There is no shortage of issues to contend with in this industry.
In many cases, those filing claims will lay their case out, complete with disparaging facts with only a loose connection to the perceived truth, and with an aggressive demand for settlement. Layered into the claim is often the subtly veiled or overt threat of “going public” if the settlement demands are not met within very short periods of time. This leaves the healthcare client and its legal/risk teams with a decision to make: should they settle and avoid the court of public opinion or risk reputational damage for the sake of saving dollars and/or doing what the system believes is fair and just?
This is a tricky balance, as the court of public opinion may initially weigh heavily in favor of the plaintiff. Its legal team is often first to market, putting the healthcare organization on the defensive. To complicate matters, the court of public opinion renders a verdict in hours and days, not months and years. Captives are seeing more instances of plaintiff attorneys using the media to attract more clients, as well as threats of class action suits if matters are not settled quickly. This can be especially challenging in cases involving allegations of sexual misconduct: how does one protect the reputation of the corporation or institution without completely submitting to the demands of the plaintiffs?
There is no easy answer in such situations. It is important to remember how the corporation or institution handles itself in the media in response to a lawsuit, or threat of one. This will be a factor in determining how that corporation or institution can recover once the event/lawsuit is resolved. It’s imperative to think both short and long-term, understanding that you are setting precedent along the way. It is a time to strategize cognitively, not emotionally.
To manage this dynamic, the forward-thinking legal teams I’ve worked with quickly analyze the treacherous traditional and digital landscape—the who, what, where, when, why and how of storytelling. It is about predicting how a story will land—and be reacted to—on varying media platforms, to the diverse micro-audiences who are influenced. Concurrently, there is a lot of due diligence under way to ensure all of the facts are known; spokespeople are identified and trained; ambassadors, detractors and influencers are accounted for; media market is sized up and executive alignment is in tow. It is a real-time chess game whereby court filings or press conferences can occur at any moment.
Some healthcare boards put their CEO at the center of the management of their media response. This is best accomplished by having the chief executive on the captive/risk board, so all the facts, nuances and timelines are clearly understood. Generally, in order to respond nimbly to such legal events, having the right people on the board and the right people supporting the captive is central to a favorable outcome. If there is a desire to speak publicly about a lawsuit or pending matter before a case is resolved, it is important to make sure the right spokesperson is selected. Should it be a representative of the healthcare institution? If so, what level? Or should it be defense counsel? Should the spokesperson deal with the print media only, or also broadcast journalists? What about timing? How will the story evolve? What are the plaintiffs and their attorneys saying? Does it matter? The list of considerations goes on and on.
An increasing number of organizations are propelled into crisis by video—generally a sudden, digital event. Several years ago, a US-based healthcare system was suddenly thrust on the international stage when its emergency department (ED) security team was recorded escorting a vulnerable patient from the ED to a nearby bus stop wearing only a hospital gown. To compound matters, the incident took place at night with the temperature close to freezing. Needless to say, within 24 hours the video elicited global outrage toward an institution that was “supposed to help people” as cries of “patient dumping” grew in the marketplace.
There is no question the situation was mishandled from an operating standpoint—on many levels, and with severe legal implications. Many clients have an internal tug-of-war at this point—do we simply issue a statement and not say anything more in anticipation of the possibility of a trial? Or is it better to get out in front by being open with the media, apologizing and taking responsibility, and talking about the organizational steps forward?
It is often the executive leadership who will make that call, at times against the advice of counsel or insurance providers. In this particular case, the chief executive of the hospital stepped-up, apologized and humanized the institution and its response. The hospital’s response was handled brilliantly, in crisis terms, and on television for the world to see. Leadership owned the issue—there was no deflection. Much like a sprinter’s start, effective crisis leadership is about getting out of the starting block strongly and saying the right things for the right reasons. That said, winning the race comes down to sustaining the intense messaging tempo and making the proper leadership, strategy and operating decisions that drive long-term sustainable change. The hospital accused of patient dumping, over time, made timely policy and operating adjustments which serve their community well. This is an example of turning short-term adversity into long-term advantage—a patient advantage.
