apology

I'm reading Aaron Lazare's "On Apology". One of the apologies he discussed really struck me and brought to mind what I've read about many adverse medical event situations. The story involved an 82 year old man who was the son of Holocaust victims. The man sued the French National Railroad System for its part in deporting 76,000 Jews from France to the concentration camps.
The compensation he requested: one Euro and acknowledgment by the railroad that it played an active role in the deportation. Noone could say that all he cared about was the money.

While doing research for my dissertation, I found an accumulation of evidence that many patients/families litigated medical malpractice cases to find out what happened and to protect future patients from the same mistakes. The money was secondary. Just think about what that says about our communities, our humanity. This, of course, is not to suggest that patients/families should not seek compensation, just to point out how important acknowledgment and helping others are for injured patients/families.

tort reform/medical malpractice liability reform

Caught part of the interview on NPR of Rahul K. Parikh, M.D., a pediatrician in my neighborhood. From there, I found his salon.com post, a post I so appreciated and generally agreed with. Dr. Parikh, both in his post and in his interview, addresses "defensive medicine" and its focus on blame. He, like so many other authors and thinkers on this topic, does not discuss how adverse medical events are handled in our health care systems BEFORE litigation, i.e. has there been disclosure, meeting with patients/families, opportunity for patients/families to offer first-hand information that could improve patient safety for future patients, apology and/or offers of compensation, if appropriate.

We hear statistics about "frivolous lawsuits". I'm not sure what that means, who is making that determination, if anyone, that a percentage of med mal cases filed are "frivolous". Are these cases that may not involve compensable injury but involve injured patients or their families who are unable to get any answers, are unable to get any health care provider to talk to them? Does that make their claims "frivolous"?

Can we START this conversation with the response of the health care providers to adverse medical events, completely aside from concepts of error and/or negligence? Why don't we try to establish criteria to determine if conversations between health care providers and patients/families after adverse medical events are improving patient safety practices for future patients? Why don't we start keeping statistics/anecdotes on how many medical malpractices cases are filed after disclosure, after conversation and open exchange, after listening to patients' experiences?

I think the way to change the conversation, expand the conversation, is one person at a time. As long as the conversation continues to blame the lawyers, we can't move forward. Like the conversation about caps on damages, the conversation about "defensive medicine" is not helping the patients. Both physicians and attorneys are healers, in my opinion, so let's get back to healing: healing the patients AND the health care providers, the "second victims". Let's start with the language of healing.

Who's with me on this?

defensive medicine and appreciative inquiry

Was reading an email last night on the AIlist serve (Appreciative Inquiry). What struck me was two questions: "Could we even say that what we perceive as "problems" contain assets we haven't identified yet"? and "Does classifying something as a 'problem' mean that it can't be part of the solution"? Also, the comment that sometimes we need to bump up our thinking to a higher level, referring to Einstein's comment, "You can't solve problems by using the same kind of thinking we used to create them."
Why not use this thinking, this appreciative inquiry approach, in terms of "defensive medicine". As I mentioned in an earlier post, we can shift the conversation, frame it in terms of "preventive medicine", subsuming "defensive medicine" in it, and making "defensive medicine" part of the solution. Also, we can look at the assets in "defensive medicine" to help us get to a solution.

Defensive Medicine

While listening in on the web to a physician stakeholder discussion on health care reform, sponsored b HHS and the WH, I was particularly interested in one physician's comment that the cost of "defensive medicine" in the U.S. on a yearly basis is $120B! I've seen another number, a much higher one. Robert Wachter, M.D. states, in his book, Understanding Patient Safety, that reducing damages against health care providers would save $250B yearly in the U.S. in "defensive medicine" costs. My understanding of "defensive medicine" is medical practices designed to avert malpractice suits, such as overutilization of unnecessary and/or expensive testing and procedures, as well as referrals to unneeded specialists, questionable surgeries, and/or actions taken to specifically avoid liability, rather than to benefit the patient. I don't know how these "defensive medicine" figures have been calculated.
I just finished reading Atul Gawande's The Cost Conundrum in the June 21, 09 issue of The New Yorker. Gawande writes about the overuse of medical services to maximize revenue for health care providers. I don't suggest that this is a widespread phenomenon. I would doubt it. I do wonder, however, how many dollars of "defensive medicine" are associated with maximizing revenue, rather than trying to avoid liability.
In any case, can we reframe the conversation, shift it to "preventive medicine", a central focus of the disclosure process after adverse medical events. Very briefly, for purposes of this post, the disclosure process presents the opportunity to bring into the open patient safety issues and work with injured patients to prevent injury to future patients. That is preventive. Can we focus on this, on preventive medicine? If we do, the culture of "defensive medicine", the need for "defensive medicine", will be lessened and become less important.

Medical Board of California

On Friday, May 7, 2009, during the public comment period, I read a statement before the medical board (available on my website, www.servantlawyership.com), addressing the purposes and goals of the board's Medical Error Task Force, established by the board in January, 2008. The Task Force appears to have been eliminated or its mission subsumed into the board's education and wellness committees at the end of 2008.

What I found so hopeful and promising about the Task Force when I first read about it early last year on the MBC's website was its goal to "assist those in the medical community in their efforts to reduce errors". One member reported the challenge is how to take physicians, hospitals, lawyers and others out of a litigation mentality and encourage them to cooperate to solve problems. Finally, the website also indicated that the Task Force's goal was to minimize discipline and maximize engagement early in the process to find way to prevent future errors.

The work the Task Force set out for itself was truly revolutionary. Although the committee/task force structures have changed, I do not for a minute believe the goals, principles and values of the board have changed. I see a tremendous opportunity right here, right now, for the board to join the dialogue/conversation about responses to adverse medical events, along with other stakeholders, including physicians, plaintiffs and defendants' attorneys, insurers, risk managers, hospitals, patients, patient advocates and other health care providers/interested persons. I believe that all these stakeholders have the same goal: patient safety. Such dialogue works: I've convened and facilitated them, but without the medical board. Dialogues provide the opportunity to break down barriers between the regulators, such as the medical board, and the other stakeholders. The board has the opportunity to consider expanding and enhancing its role in promoting patient safety by creating a blame-free medical error/adverse event reporting system that encourages accountability, teamwork, learning and respect.

I have many ideas on how to structure what I hope will be a series of dialogues, which I will "blog" about soon. In the meantime, I would love the thoughts/ideas/suggestions of anyone reading this who is interested in this topic.

Physicians and Attorneys In Service Together

I'm frustrated, having just read another article (NY Times, Just Medicine, April 2, 2009) in which physicians are portrayed as victims of attorneys. We're told that physicians conceal errors, don't offer explanations or apologize, don't communicate with their patients, and practice "defensive medicine", all because they fear and blame attorneys. Let's take this opportunity to stop blaming and finger-pointing, which divides and erects walls between us. Why don't we attempt to define blaming out of bounds?

When physicians and attorneys begin to set aside blame in our conversations, we can more effectively work together, communicate clearly, build trust, set aside misconceptions, and create a common vision in the arena of responding to adverse medical events. How do we bring all the stakeholders (physicians, attorneys, insurers and others) into the conversation, such that they can discuss new ideas and new evidence, leading all of us to a healthier, more healing place in the adverse medical event context?

One effective process is dialogue, a collaborative process that promotes communciation across misconceptions, misunderstanding and differences through listening, thinking and talking together to find creative options that allow all stakeholders and interested parties to build community, build common understanding and work together. Rather than: it's the lawyers who want to line their pockets, it's the insurance companies who never want to pay any claims, the conversation becomes: how do we move forward to our common goals, patient safety and explanation to the injured party? Are there creative alliances that can accelerate this process, the process of bringing transparency, fairness and healing to all parties, a process that protects the public, reduces medical errors and promotes the highest levels of patient safety? These are questions for powerful, creative dialogue.

Dialogue can take place at any time but is most effective before adverse medical events, before attorneys and physicians become adversaries. It gives us the opportunity to discuss fairness and healing and to examine our common humanity and values, one of which is healing. Former Chief Justice of the United States, Warren Burger, said, "The healing function ought to be the primary role of the lawyers in the highest conception of our profession..." Similarly, the AMA Declaration of Professional Responsibility: Medicine's Social Contract With Humanity, states that physicians "commit themselves to advocate for social, economic, educational and political changes that ameliorate suffering and contribute to human well-being." Thee mission of both professions is, to a great extent, healing.