Sound Off: Other side of the story sometimes can’t be shared

  • Tuesday, August 20, 2019 3:20pm
  • Opinion

By Jake Kempton

Chief legal officer for WhidbeyHealth

Thank you for publishing a fairly balanced article regarding the recent settlement between the hospital district and Dr. Elbaor. It’s important to remember that there are always two sides of the story.

Unfortunately, the hospital district is rarely able to share its side of the story, whether due to HIPAA, state or federal privacy laws or just good legal practice. However, what I hope to offer in this letter is insight into how and why these types of decisions are made.

Risk is an inherent part of any business, and health care is certainly no exception. As the hospital district’s chief legal officer, one of my duties is to identify and evaluate legal risks, and then advise on how to best avoid or mitigate those risks. Occasionally, situations arise that present a high degree of risk, for example, threatened or active litigation.

In those cases, we partner with our outside legal counsel and insurance company for additional guidance on how to proceed. Sometimes the answer is to defend the allegations, and other times it involves seeking resolution outside the courtroom, such as agreeing to a settlement.

The decision to settle a case, and the amount at which to settle, is always a complex decision, with many factors that must be considered. Yes, if we have made a mistake that has caused harm in some way, we should do what we can to make it right.

However, determining the “guilt” or “innocence” of the parties involved and the nature and extent of harm, if any, is almost never as straightforward as it may appear, and they are certainly not the only factors taken into consideration.

Other factors that must be considered include how much it might cost to defend the suit in court, how much time and energy would be required from our staff, what the likelihood is that a jury could return an unfavorable verdict — a consideration in any litigation and what the award for damages and attorneys’ fees could be if the jury finds against us, and finally, whether the insurance company itself is willing to pay the claim. Oftentimes, these claims are paid by our insurance company and do not come out of hospital finances. In other words, sometimes it just makes good business sense to settle a dispute, even when we, the hospital district, don’t feel like we have done anything wrong.

The Elbaor matter was a complicated case. Defending it involved review of thousands of pages of documents and many hours on the part of hospital staff, outside counsel and the insurance company. We stand by our previous statement and vigorously deny the allegations. But at the end of the day, after taking everything into consideration and after many discussions with our outside counsel and insurance company, the hospital district and the insurance company made a business determination that the most prudent pathway forward was to settle the case. The settlement was paid entirely by the insurance company. No hospital monies were involved.

Returning to the Aug. 9 newspaper article, I appreciate the author’s recognition of the “complexities of running the public hospital district …” Since beginning my employment with the hospital district in November 2015, I have seen firsthand the “complexities” involved in running a health care organization of this size and nature. Almost every important decision involves weighing numerous complicated factors, risks, regulatory requirements and intended and unintended consequences. Rarely are important decisions straightforward, and never are they made on a whim.

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