5 Crisis Management Strategies For Health Care Attorneys

Even before 2020 brought us a pandemic, unprecedented wildfires in California and murder hornets, hospitals and health care organizations were no stranger to crisis.

The Joint Commission outlines three categories of hazardous conditions that should be considered in the context of health care emergency preparedness: natural hazards, human-caused hazards and technological hazards.

While national emergency preparedness requirements ensure sound and timely planning as the foundation for effective crisis management, ensuring your organization emerges from a crisis unscathed requires focused effort.

 

The Case for Proactive Crisis Management

Across industries, organizational crises are on the rise and continue to place extraordinary demands on business leaders and their legal counsel. In its 2019 Global Crisis Survey, PricewaterhouseCoopers LLP confirmed this phenomenon noting nearly seven in 10 leaders have experienced at least one recent crisis.

Almost all of the leaders surveyed — 95% — expect to be hit by one in the future. But the research also found that the nature, volume and cross-functional affects of modern crises have not only made them harder to predict but also more complex and challenging.

For instance, take a negative patient experience most health care attorneys will have faced. Each experience is undoubtedly unique, affecting any number of internal or external stakeholders. Yet, unless the matter involved a threat to the public (e.g., civil disturbance, bomb threat or other acts of violence), national emergency preparedness guidelines typically offer little more than generic guidance or boundaries for your hospital or health care organization to base a response.

Unfortunately, we find that in the absence of defined guidelines or regulations many organizations fail to recognize and mitigate the risk before it becomes a crisis. And the result is often lasting reputational damage.

The National Research Corporation conducted a market insights survey of 270,000 consumers nationwide and found that 87% indicated reputation is important when selecting a hospital for a planned overnight stay.

Moreover, researchers found the relationship between patient and hospital reputation is strongest when measured six months later, as the voice of former patients proved to influence the beliefs of others.[1] Likewise, reputational damage can also crossover and negatively affect business relationships, employee morale, legal issues and other areas that impact the bottom line.

 

Crisis Management as a Competitive Advantage

Effective crisis management is a business imperative for hospitals and health care organizations, but it also can be a competitive advantage. The American Hospital Association recently emphasized the need for health care organizations to foster resilient leadership, especially amid the COVID-19 crisis.

They called for clinicians to “forge a path forward through rapid change, information overload and information resources.[2] Health care attorneys can and should play a leading role, alongside their communications team.

From our experience, we have seen attorneys leverage their experience with executive management and vision across the organization to take the lead. In doing so, the attorneys can help their organization avoid long-term reputational damage as well as position the organization for success in defending future litigation that may result.

Yet, many attorneys find themselves most often in a defensive and reactive posture that can make it difficult to find a competitive advantage, let alone any strategic opportunities amid a crisis. That is because crises often set off a chain reaction within an organization, magnifying vulnerabilities simmering under the surface.

Staying on top of these issues can feel insurmountable and leave many executives feeling exasperated. It is not uncommon to hear stressed health care leaders exclaim, “I feel like I’ve been putting out fires all day!” But when routine matters become intensified, actual firefighters know reactive strategies are rarely enough — and can lead to the downfall of even the most experienced teams.

Health care attorneys who want to differentiate themselves and their organizations would be wise to consider the advice of Ben Franklin. In 1736, Gentle Ben coined the phrase “an ounce of prevention is worth a pound of cure” to remind Philadelphians about fire safety. His approach still rings true today and can be used to adapt national emergency preparedness guidelines to meet the challenge of today’s crises.

Our professional experience teaches five fundamental rules of effective crisis management and communication for health care attorneys: (1) protect the brand; (2) build a team; (3) prioritize stakeholder communication; (4) make crisis management a part of succession planning; and (5) practice makes perfect.

1. Protect the brand.

Reputation is built on trust. In the organizational context, trust and subsequent consumer behavior (i.e., hospital selection) is derived from the organization’s perceived competence and ethics. However, many are surprised to learn consumers weigh the ethics of an organization as three times more important than competence.[3]

This is a critical consideration for health care attorneys as most health care crises inevitably involve litigation, regulatory or other legal issues.

While a “no comment” statement may seem like a good idea, it rarely serves the best interests of the hospital or health care organization’s brand — one of its most valuable nonfinancial assets. Even with patient confidentiality regulations under HIPAA in mind, there is always something you can greenlight the organization to say or do that will add reputational value where a “no comment” statement detracts.

Unfortunately, collaboration between legal and communications teams often devolves into competition in high-stakes situations. The result can be a lackluster response that fails to adequately address stakeholder concerns in the best-case scenario and lead to nuclear verdicts in the worst case. But health care attorneys can be a force for good and set themselves up for future success in the courtroom by cheerleading collaborative teams.

When health care attorneys bring a “how we can” attitude to the table, they empower nonattorneys to share their ideas, contribute diverse viewpoints and, together, build more comprehensive solutions to complex issues.

As leaders, health care attorneys should aim to become bricoleurs. These are individuals who have become accustomed to drawing order from even the most chaotic situations.

Bricoleurs are able to maintain their cool — and creativity — under pressure because they embrace the challenge of working with just the materials or information immediately available to them. They do not become frustrated when details are limited and instead focus on innovation. For those less interested or adept in bricolage, health care attorneys can add value through confidential engagements with outside counsel.

Public relations firms specialized in crisis management and litigation communications are often made up of bricoleurs whose experience has been forged in the fire. These external teams are trained to facilitate internal dialogue and lead collaborative teams to make the best use of the resources available while recommending actions that will maintain or build upon critical stakeholder relationships amid a crisis situation.

2. Build a team.

One of the most critical investments organizations can make in proactive crisis management is building a collaborative team. Because most organizations view risk through a legal lens, health care attorneys are often default and leading members of the crisis management team. And in emergency situations where hospital incident command is activated, the roles of all team members are clearly defined and designed to ensure coordination between major functional areas including command, operations, planning, logistics and finance/administration.

However, many crises do not necessitate the activation of hospital incident command and often organizations falter when processes, roles and structure are not as clearly defined.

Take the infamous Mann Gulch fire disaster of 1949 for an example. What started as a 10:00 a.m. fire, meaning a fire that could be quickly surrounded and extinguished overnight (by 10:00 a.m. the next morning), turned into a wildfire that tragically overran 16 firefighters.

For decades, the Mann Gulch fire has been studied in the context of organizational leadership to understand what causes seasoned teams to unravel and how organizations can become more resilient. The results of this research underscore preparedness as the capstone to effective crisis management.

In the case of Mann Gulch, the firefighters had come to expect a 10:00 a.m. fire and found themselves woefully unprepared to deal with something more sinister. Like the firefighters, organizational teams that become habituated to dealing with one type of crisis are more apt to collapse, as their tried-and-true techniques fall short in the face of an evolving or sustained crisis.

To avoid disaster, collaborative teams need to be defined outside of traditional incident command. We recommend hospitals and health care organizations consider their human capital as part of their hazard vulnerabilities assessment process.

For each potential hazard, create an extended version of the incident command system to assign ownership over various vulnerabilities and map the internal stakeholder relationships required for an efficient and effective response. Then, commit resources to ensure those individuals are aware of their role and participate in simulations just as they would be expected to do as part of hospital incident command.

The benefits of building a collaborative team are immense. PwC also found as part of its 2019 global crisis survey that organizations who invested in these internal and external resources before a crisis hit were not only able to weather the storm, but more than one-third also saw revenue growth a result of their efforts.

Moreover, organizations that routinely conducted simulations to test their crisis plans enhanced teamwork and bolstered their preparedness by documenting lessons learned. These organizations were four times more likely to emerge stronger from a crisis.

3. Prioritize stakeholder communication.

In most hospitals and health care organizations, legal and communications teams enjoy productive relationships. These reputations will continue to grow and become an essential resource for health care attorneys, especially as the aftermath of a crisis may require litigation communications.

Unlike traditional crisis communications, litigation communications is privileged communications counsel that is aligned with an organization’s legal strategies and conducted under the direction of legal counsel. Public relations professionals who specialize in litigation communications are charged with achieving specific objectives in light of desired legal outcomes.

Litigation communications is often confused with trial publicity, which can be an outcome of litigation communications but is not always the objective. While many situations will call for media relations strategies (e.g., publicity), these professionals may also consult on internal or employee communications, community relations or public affairs.

It is also a misconception that litigation communications professionals will attempt to spin or try a case in the court of public opinion. Rather, they are focused on ensuring stakeholders are informed about issues that affect them while maintaining the independence of the judicial process.

In line with the American Bar Association‘s Model Rules of Professional Conduct, these strategies are limited to effective communication that is both unprejudiced and contained in the public record, among other stipulations and ethical considerations.

In addition to ensuring stakeholders are informed about litigation that affects them, litigation communicators also play a role in helping organizations communicate their mission, vision and values as they relate to broader societal issues. More and more, consumers are demanding organizations take a stand on issues like climate change, diversity, equity and inclusion, privacy and others.

Health care attorneys and litigation communications professionals can work together to identify strategic opportunities to communicate values advocacy messages in amicus briefs. Demonstrating your organization’s legal alignment with stakeholder opinions on matters of public concern shows you walk the walk and can build lasting, productive relationships over time. Furthermore, these relationships and actions can help to offset the risk of reputational loss arising from an unrelated crisis in the future.

4. Make crisis management a part of succession planning.

Proactive talent management also is integral to ensure long-term crisis management success. Crises can be a useful training ground to develop your succession plan; however, it is important for general counsel to remember leaders who thrive in crisis (i.e., bricoleurs and others) may not be the traditional leaders of their legal department.

When considering an individual for crisis management responsibilities, simulating crisis experiences can give you some perspective on who will sink and who will swim — and realize it is often experience and interpersonal skills that make the difference.

Consider individuals who have had to deliver bad news up the chain of command, how did they handle that experience? Were they able to communicate effectively and with empathy? Or did they become defensive? Another useful training scenario involves asking an individual to take on a task force role within the organization, working collaboratively with others to achieve a shared, defined outcome.

The ideal crisis leader will demonstrate curiosity, flexibility and resolve. Once future crisis leaders are identified, involve them in increasingly advanced strategies and tactics including real-life crisis scenarios to ensure they are primed and at-the-ready to take the lead when the time comes.

Finally, just as health care attorneys can be pivotal in facilitating productive crisis management dialogue, reaching across departments to provide training and resources can help identify allies and advocates on other teams hedge your success.

Working with the communications team to provide training on considerations like attorney-client privilege, First Amendment issues and more can enhance their skills while ensuring your team does not inadvertently waive privilege or create other problems for the legal department down the road.

Likewise, communications teams can provide valuable insights to legal teams on stakeholder perception and messaging strategies that may inform your litigation strategy. These experiences will not only introduce you to potential partners within the organization, but also support ongoing professional development and build necessary relationships that will help everyone work better together under stress.

5. Practice makes perfect.

While each of these strategies can strengthen your organization’s crisis management capabilities, the most resilient organizations never stop building preparedness into their culture.

Health care attorneys can lead this charge and help their colleagues shift from a reactionary mindset to one that is more crisis aware, enlisting support from diverse audiences to build collaborative teams, quickly engaging outside expertise as needed and developing a talent pipeline to maintain their organization’s resilience — and reputation — no matter what the future holds.

Dan Sanders is a partner at Nelson Mullins Riley & Scarborough LLP and a former vice president, general counsel and chief compliance officer of Michelin North America Inc.

Megan Paquin is vice president at Poston Communications LLC.

This article first appeared in Law360 on November 13, 2020 and is republished here with permission from the publication.