Linking Legal and Communications for Effective Healthcare Crisis Management

Via Bloomberg BNA

At the first hint of a crisis, a health-care organization CEO’s first call typically is to their legal counsel. Some of the best initial advice that counsel can then give is for that CEO to make one of their next alerts to their communications lead.

As a crisis looms for such an organization, it can be easy to lose sight of the main goal: to minimize overall damage to the organization. That’s in part because some kinds of risks, such as financial or legal consequences, are more tangible than others, such as the threat to reputation. That can create the appearance of a conflict. Attorneys want to limit risk and legal exposure, while the goal of communicators is to increase exposure of the company’s messages.

But when Communications and Legal work as partners, each understanding and respecting the contributions the other makes to the overall result, health-care organizations have a potent recipe to protect the organization.

Essential to an effective crisis response are a response team structured so that all relevant players have a seat at the table, a holistic approach to both risk assessment and strategy, and a clear understanding of the overall goal.

The intent of this article is to focus specifically on the role of communications in crisis response and how to structure a communications response to achieve an optimal result.

Health-care organizations can maximize the opportunity for a successful crisis response by making communicators early and full partners in the rapid strategic planning that must take place—and by creating a structure for that participation in advance.

This article will:

  • Outline effective organizational structures to integrate Communications into strategic planning,
  • Discuss ways that legal counsel can work effectively with communicators during a crisis response, and
  • Examine considerations in answering two key strategic communications questions.

But first, a brief look at some of the faulty assumptions about Communications that can lead health-care organizations astray in crises.

Why Leaders Don’t Communicate With Communicators During a Crisis

Crises at health-care organizations generally fall into three categories:

  • The first category is events in which the organization, say a hospital, is providing care for people hurt in a disaster originating outside its walls—such as a hurricane, fire or chemical spill. The need for communication, within the confines of HIPAA, is obvious as the public will want to know what is being done to help the victims. Communicators typically encounter fewer barriers to accessing internal information than in the situations we will discuss next. Hospitals are required to have an emergency response plan for such situations, and when it is activated and an incident command center is set up, these plans call for a designated public information officer who typically reports to the incident commander.
  • The second category of crises is events originating within the walls of the hospital. These can include disasters occurring at the hospital. Or, they may be another type of event altogether: a Medicare fraud investigation, medical harm, malware attack, embezzlement, patient abuse, termination of a key leader, etc. Often these events involve sensitive information about finances, patient conditions, physician errors, organizational failings and so on. Understandably, in these situations, the first instinct of many top leaders is to keep the critical information on a need-to-know basis, lest damaging information leak out. Communicators sometimes aren’t seen as part of the inner circle and aren’t brought into strategy sessions to devise an overall response to the crisis.
  • The third category might be called “crises in slow motion”. These have their origins before any event has occurred. The hospital may be considering severing relations with a vendor demanding more money for supplying a popular group of hospitalists. Or it may be thinking of a physician group practice acquisition that may, in the eyes of antitrust enforcers, enable the hospital to dominate the market. Leadership discussions in these situations can focus exclusively on legal and operational issues, with communicators not seen as necessary members of the brain trust. Communicators might only be brought in at the last moment to craft an announcement, forfeiting what might have been the opportunity to avert a reputational crisis with their advice during the planning process.

Because reputation is one the most precious assets for any organization, it only makes sense that risks to that asset be factored into decision-making. A strategy set without input from Communications may fall short of what is needed to achieve maximum protection for the organization. In fact, efforts to limit an organization’s legal risk may, in some cases, severely damage its reputation, which can dramatically impact the bottom line.

Bringing Communications Into the Circle of Trust

Time is clearly of the essence when it comes to responding to a crisis. Social media can spread misinformation instantly, framing an inaccurate narrative about the crisis and putting the organization on the defensive.

A logical organizational response is to create a crisis communications structure built for speed. The heart of such a structure is the Crisis Communication Team. Core membership typically consists of key Communications leaders, a representative of the legal department, and, often, an outside crisis communication consultant. Subject matter experts may join as well. The team is charged with developing a communications strategy for approval by hospital leadership and overseeing its execution. The team leader is also a member of the organization’s core response team, has access to all information and serves as a conduit for that information to the Crisis Communications Team. The team leader has clear access to the leader of the overall crisis response team to facilitate approval of the strategy and key communications.

Having a representative from Legal on the Crisis Communications Team can greatly increase its effectiveness. This allows the team to have a clear perspective on legal issues in devising a strategy and drafting communications, which can speed response time.

Communications Strategy Considerations

While each crisis is unique in terms of circumstances, there are two strategic questions that come up in virtually every crisis that require input from both Legal and Communications.

How Transparent Should We Be?

A common impulse when it comes to communicating about a crisis that does not involve a disaster is to say little and hope it all goes away. That instinct is understandable, and sometimes that approach works, at least in the short term. But it often backfires. In our social media age, information is easier to access and can spread quickly. Even without social media, all it takes is one indiscretion—say a hospital manager inside the circle of trust mentioning the situation to a close associate who has not been clued in—and word can spread like wildfire.

The less information that is provided by the organization, the greater the chances that the informational vacuum will be filled by inaccurate speculation. That risk is particularly pronounced with internal leaders, such as board members, physicians, directors and managers. If they find out about a crisis issue through informal channels, they may well interpret leadership’s decision to exclude them from information as a lack of trust, or in the case of the Board, as a violation of leadership’s responsibility. Reduced trust leads to reduced engagement, which health-care organizations can ill-afford, especially at a time of challenge.

Keeping a lid on a crisis may buy an organization some valuable time. However, it does increase the risk of a subsequent crisis unleashing a snowball effect, however. Individuals who know about a crisis and were willing initially to stay silent may feel compelled to speak up if a subsequent crisis becomes public and questions about leadership mount.

The more inclusive the organization is in providing information, the more motivated the team will be in assisting with the operational response. That said, internal audiences will be more likely to accept exclusion from information if a plausible explanation is provided, such as patient privacy or other legal considerations.

Should We Be Proactive or Reactive With the Media?

Hand in hand with the issue of transparency is the question of how to handle the media. It’s fair to say that virtually all organizational leaders would prefer not to see their troubles aired in the media. But it can be a strategic mistake to allow that hope to stand in for a clear-eyed assessment of likely outcomes.

As traditional news outlets shrink their staffs in the face of economic pressure, it is especially tempting to think that the organization can skate through a crisis without journalists noticing. Certainly, that can happen. But even in its weakened state, the news media is still potent, and it only takes one reporter getting wind of the problem to break the dam. Consider, as well, the role of social media: It can be the method that alerts media to a crisis, a source of tips, and a means of maintaining reader interest in a story. Journalism organizations may have fewer resources, but they can deploy them toward a story that is going viral at a moment’s notice.

So, wishful thinking needs to be put aside. Leadership needs to assume that the media will eventually find out. The question then becomes this: What approach will best serve the organization’s interest in minimizing reputational damage: waiting for the media to inquire before releasing information or going proactive?

A first inclination might be to wait, hope the media call never comes, and if it does, provide a transparent response (again with some limitations). That way the organization does not borrow trouble, yet still can preserve credibility by being forthcoming when asked. And that may well produce the best result in terms of reputational damage when all factors are put into the equation—the odds of the call never coming vs. the risk of damage to credibility by appearing to wait to make a disclosure until forced to do so.

But there is another path worth considering: proactive release to the media. Research studies have found that companies that self-disclose significant bad news suffer less reputational damage than those who wait for the news media to break the story. A recent study published in the Harvard Business Review explains part of the reason why: Once the organization rips off the Band-Aid, subsequent news reports are viewed as “old news” and receive less attention from audiences.

The Bottom Line

Any crisis response needs to keep the ultimate goal in mind—minimizing damage to the organization. As noted above, sometimes legal considerations trump transparency. The risk of a significant legal or financial consequence from disclosure may be a more important consideration than the risk of damage to credibility resulting from a lack of transparency. But it is also true that the loss of credibility and the resulting damage to reputation may have more severe long-term consequences.


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