Considerations for Legal Counsel Representing Candor Participants

The Candor process for addressing adverse health care incidents has developed over the last two decades as a response to data showing that there is an unacceptable level of preventable patient harm. This has led to “communication and resolution” programs which:

• promote transparency between health care providers and patients after an unexpected outcome,
• encourage patients and their families to be part of a health care facility’s or a practice’s quality improvement process to prevent a similar harm to other patients, and
• allow for remediation, which may include compensation where warranted.

Some states, such as Iowa and Colorado, have passed laws to encourage the Candor process. The Candor laws provide a framework for health care providers to follow after they become aware of an adverse health care incident. Attorneys representing patients who have had an unexpected outcome play an important role in assisting their clients through the Candor process. Attorneys representing health care providers or facilities can also help their clients understand the Candor law framework and how the process differs from the traditional management of a claim.

The Candor process is meant to restore the trust that is the foundation of the physician-patient relationship. Attorneys representing Candor participants should understand that, while an unexpected outcome is devastating to a patient, it can also have a profound negative impact on the health care provider. When the Candor process is used successfully, it can allow both the patient and the health care provider to move forward.

Attorneys can help their clients by working collegially with other attorneys involved in the Candor process by:

Making sure there are complete medical records available for review

If the care involved multiple providers or more than one facility, an investigation into what happened can’t occur without a complete record of events. The case may need one or more expert reviews to make a final determination of whether the care was appropriate or not.

Preparing the client about what to expect

The Candor meeting can be stressful and emotional for the patients, families, and providers. The meeting will be more productive if the attorneys, working through the meeting facilitator, can discuss what questions and concerns the patient/family has so that the provider(s) are prepared to answer them and respectfully listen to their grievances. Some practices, facilities, and insurers offer peer support for providers going through this process.

Working with the facilitator on the Candor meeting ground rules and logistics

The attorneys should work with the facilitator to ensure that the Candor meeting is at a time and place acceptable to all. If there are multiple providers, it is important to identify them ahead of time. It is best to make sure all of the right people are involved, or at least available, because providers should each speak to their own care and not speculate about someone else’s.

Understanding the attorneys’ role in the Candor meeting

The Candor meeting should be a discussion between the patients and providers about the clinical care. Attorneys can be present but they should not be the ones asking the questions. The goal is to have an open conversation that allows for healing. If attorneys ask questions as they would at a deposition, it can erode the trust needed for the Candor conversation. Providers should be encouraged to be open and honest and not defensive.

Addressing compensation outside the Candor meeting

The formal Candor meeting is meant to address the clinical care and answer questions about what happened based on a provider or facility’s investigation. If there is a decision regarding compensation, this should be conveyed to the patient/family soon after the meeting. If there are multiple providers involved, it can be helpful to consider how compensation will be apportioned before the negotiations about the compensation amount.

Even where no compensation is warranted, a provider or facility may want to consider other gestures of goodwill that would be meaningful to the patient or family to promote healing.