Webinar on collaborative law

I just held my first "test" webinar, bringing together: physician, nurse, psychologist, attorneys/mediators, patient safety advocate, family members, law school professors, and organizational development/systems thinkers. Such a great conversation, bringing so many perspectives into the conversation. Wonderful, hopeful group, discussing medical error, attorneys' roles, mediators' roles, patient advocates' roles, family members' experiences of medical error, systems thinkers' ideas about medical error, informed patient choice issues, and language in law and medicine.

I hope to continue to expand the conversation to include others involved in prevention of and response to medical error situations. So much work to be done!

Language

Working at the intersection of law and medicine, I've begun to pay more attention to language. I guess, more than anything, it began with me stepping back and listening to myself, as well as others. In addition, reading of others' experiences with language has been eye-opening. For instance, I read of a physician who spoke of being served with a medical malpractice complaint that alleged that he had acted "without due care, negligently, carelessly, and recklessly" in his care of a patient. I've heard attoneys say in response that that is just standard languge in a complaint, almost suggesting that it shouldn't be taken personally. That is "standard" language, in my experience, but does that excuse it? Shouldn't we be more careful in the words we use, words that are so hurtful and over-the-top? It seems that more respectful language might be more likely to create the opportunity for more openeness and discussions between the parties. It is likely that respectful language would create far less acrimony and anger. Even in litigation, there is opportunity for the humanity of all of us to be evident. This is not to suggest that the injured party doesn't have the right to be angry, disappointed or mistrustful, just that there is gentler language that could be used, language that supports respect and the possibility for connection.

Just to mention other language that may be transformational and, perhaps, more descriptive of processes that we hope for and values we espouse, including:

"Informed Patient Choice", rather than "informed consent": choice is active, suggesting full explanation, understanding and partnership between patient and physician, rather than consent, which is passive, suggesting physician makes decisions and patient consents (see earlier post);

"Continuing informed patient choice" or "continuing conversation and explanation", rather than "disclosure", which suggests healthcare provider choice in whether to provide necessary information to patients; it suggests choice, perhaps withholding, followed by conscious decision to "disclose" information; and

Physician as "provider" and patient as "consumer", suggesting powerful one giving and the helpless one receiving. I've read that "practitioner" has begun to be substituted for "provider" in some settings.

Some of the many language issues I'm thinking about in law and medicine.

Informed Patient Choice/Informed Consent

The State of Washington now has, by statute, a process called Informed Patient Choice. Evidence that the physician explained the options to the patient, gave the patient videos to watch, had signed Informed Patient Choice, answered the patient's questions, and considered the patient's overall health status all weigh in to protect the physician from the tort of failure of informed consent.

The process of Informed Patient Choice also protects the patients, of course, by giving them a full voice in making decisions about medical procedures. Studies indicate that when patients are fully informed about their options, they often choose very differently from their physicians, i.e. patients are less likely to choose surgical intervention and/or expensive medical testing. Therefore, giving full consideration and participation to patients very likely will save millions, if not billions, of dollars in health care costs.

A Dartmouth Atlas White Paper, entitled An Agenda For Change: Improving Quality and Curbing Health Care Spending: Opportunitites for the Congress and the Obama Administration, states, "Failure to base the determination of medical necessity on informed patient choice leads to misuse of care, to what should be considered a form of medical error: operations on patients who, had they been adequately informed, and given a real chance to share in the decision-making, would not have consented to surgical treatment." In an earlier post, I referenced the tragic and appalling statistic: 50% of C-sections are not medically necessary (quoted from Mayor Bloomberg's speech to the New York State Bar earlier this year). Were all these women adequately informed and given the opportunity to share equally in the decision-making process?

I hope California will consider Informed Patient Choice in the very near future to promote safer health care and tremendous health care savings.

"defensive medicine"

I was just reading an estimate of the costs of "defensive medicine", defined as unnecessary tests and procedures physicians order to protect themselves from lawsuits, as $44 Billion. I'm still trying to determine where that and similar numbers come from. Assuming defensive medicine exists for this post, how is this number possible?

My understanding is that all testing, unless something simple like a blood test, and procedures require informed consent. Informed consent/informed patient choice is sought and given for treatment that is appropriate, necessary, and desired by the patient. If informed consent is sought for treatment that is inappropriate or unnecessary, how does a physician explain that to a patient in order to get infomed consent?

Rather than stating that billions are spent (wasted) on unnecessary or inappropriate or unwanted tests and procedures and using that informaton as evidence that SOMETHING must be done about medical mapractice litigation, shouldn't we look at what is underneath those numbers? How are physicians getting informed consent to do these procedures? If they are handing a form to a patient and asking that it be signed, without discussion, explanation, and joint decision-making, there is no informed consent. Shouldn't that be the issue we address?

In an earlier post, I talked about statistics cited by Mayor Bloomberg regarding the shocking number of C-sections performed that are unnecessary. Are there "informed" consents for these staggering numbers? What information is provided? What alternatives are discussed? What conversations are held? What warnings/concerns are expressed? What time is given for the patient to consider all options before signing?

Shouldn't we set aside the conversation about defensive medicine and consider the one-on-one conversations between patients and physicians that need to truly inform patients? If patients are not being appropriately informed, new processes/laws need to be in place to change that. Once patients are appropriately informed and are given the choice about the procedure/testing, there will be a lot less "defensive medicine". Patients will be equal partners in decision-making and won't be agreeing to procedures and testing they don't need. Hence, even if physicians want to do testing to protect themselves, patients won't agree.

It makes perfect sense, so, let's get busy!!!.

Procedural Justice

I recently presented at the Association for Conflict Resolution (ACRNC) annual conference in Oakland, California. As often happens at these conferences, I quickly become the learner, not the teacher. There is always at least one nugget that I leave with. At this conference, it was a term I'd not heard before: procedural justice. That was defined as giving justice to the parties in conflict by giving them the opportunity to speak and be heard. That particularly struck me because my interest (and presentation) involves collaborative law, a non-adversarial practice after medical error. At its core, collaborative law in medical error situations gives the parties, patients and physicians alike, a voice in the process and its resolution, as well as an opportunity to speak and be heard, to work together to improve patient safety, and to ask questions and have them answered.

The process begins with the parties entering into a participation agreement, which provides for the parties and their attorneys meeting together to work through the issues of the case, making every attempt to settle it. The process can't work without the parties' participation. The process permits patients and physicians to commit (or recommit) to a trusting relationship. As to the patient, the process gives her/him a voice, possibilitites for resolution not limited by traditional legal remedies, and control over the outcome. As to the physician, it supports openness and healing and removes uncertainty, fear, worry and distraction, all of which arise in litigation. In addition, research indicates that physicians who are sued are more likely to be sued a second time during the initial litigation process because they are distracted and distressed about the first litigation. So, avoiding litigation, we (especially physicians!) can all agree, is the best choice for physicians. Participating in non-adversarial resolution processes like collaborative law, for the reasons set forth herein, appears to be the safest, clearest, and most expeditious process for physicians (and patients).

In litigation and most mediations, physicians have no control over the process and, generally, do not even take part in either process, except for deposition. As to mediations, physicians don't normally attend, even when they express interest in doing so. Instead, only their attorneys and insurance carriers attend, missing a tremendous opportunity for learning and healing.
I remain hopeful that physicians and attorneys can and will work together to make practices like colaborative law part of the culture of healthcare, truly creating a seamless process of healing and procedural justice for all parties.

Prevention of medical errors

I just read an article stating that a recent government (IG at HHS) study estimated that 15,000 medicare patients die every month from care given to them in hospitals. Peter Pronovost of Johns Hopkins University stated that medical mistakes are "an enormous public-health problem."

Everyone is concerned about the cost and accessibility of healthcare. "Tort reform", such as caps on damages, higher burdens of proof, shortened statutes of limitation, caps on attorneys fees, apology protection, and health courts, seeks to give physicians increased protection against medical malpractice lawsuits. It does nothing to protect patients and public health. True reform, on the other hand, starts far, far upstream from caps on damages and the like, all of which are intended to slow or stop litigation. True reform begins with examination of the physician's conduct shortly after an adverse event. Between the adverse event and the filing of a lawsuit, what did the physician do: contact the patient/family immediately, explain what happened, explain investigation to take place, offer compensation, if appropriate, involve healthcare team members, if appropriate, and improve systems and procedures, based on patient-provided information. If we begin to collect and analyse this information, we can begin to understand more about the reasons lawsuits are filed (or not). We can also begin to address the impact of these conversations on rapid improvement in healthcare processes, based on the patient's observations and ideas.

If surveys address the physicians' responsibilities, as I suggest, I have no doubt that it will become very clear very quickly that physicians who act quickly and accept responsibility, when appropriate, are rarely sued. That informaton is already available but perhaps not in the mainsteam media. Perhaps that is why that information continues to get brushed under the carpet in favor of the mainstream media's focus on "tort reform."

Tort reform does nothing to alleviate the "enormous public health problem" associated with medical mistakes.

Bloomberg speech to NY Bar Association Re Medical Malpractice Liability

Mayor Bloomberg stated in his speech to the NY Bar Association's Presidential Summit on January 26, 2011, concerning medical malpractice liability, "For example, the number of women receiving C-sections is rising, with doctors now performing 50 percent more than are medically necessary." Is this possible? Peforming unnecesssary major surgery on mother and child 50 percent of the time? There must be some misunderstanding. Physicians don't wheel a woman into an operating room and cut her open unnecessarily because they are afraid of lawyers. That isn't possible.
If the Mayor referrred to the right statistic and I didn't misunderstand, how is it possible that we, as a society, have strayed so far from, "First, do no harm", and from law and medicine being healing professions? How can we step back, learn how to work together again to promote healing, compassion, trust and community, and protect everyone from unnecessary surgery? First, perhaps, by accepting our own share of responsibility as individuals, professionals, and members of our communities.
I will write more about this in the next several days. In the meantime, I'm thinking about it and asking for input from anyone and everyone interested in this topic. How about an on-line dialogue? Who is interested? Also, I'm writing to Mayor Bloomberg!
When you have a minute, please take a look at an article I wrote two years ago about bringing healing to law and medicine (and the rest of us) on my website, http://www.servantlawyership.com/.

President's Budget

Included in the President's Budget proposal is a call for a "more aggressive effort to reform our medical malpractice system to reduce defensive medicine, promote patient safety, and improve patient outcomes." The President called for $250M in Justice Department grants to help states rewrite their malpractice laws. The good news is these grants will provide the opportunity to address these issues in the legislatures of all the states, through hearings, public comment, and analysis of what has worked in the past and what new nonadversarial practices will give patients a voice in the outcome.

One of the ideas suggested is health courts. I think health courts are as antithetical to healing as traditional litigation. Neither give the patient a voice in the process. Neither promote patient safety, as they are based on secrecy and long delays, missing the opportunity to take the patient's experience forward expeditiously to create improved healthcare. Collaborative law/practices, on the other hand, create the opportunity for expeditious resolution, chosen by and agreed to by the parties, enhanced patient safety, acceptance of responsibility for error, and healing fo all parties, physician and patient alike.

Requiring physicians and hospitals to disclose early, offer apology and compensation is another approach suggested by the Administration. However, that approach has been required by law for some time in several states, including Pennsylvania, where it has been found to be generally ineffective. Can these ethical obligations be legislated? Should they be legislated? Voluntary diclosure programs, such as the one that has existed for ten years at the University of Michigan Medical Center, have been shown to be very effective, lessening litgation to a great extent and lessening payouts associated with errors.

Perhaps the use of colaborative law/practices in medical error situations can be validated and supported through the legislative process. That is my hope.

Legislative Options Involving Medical Malpractice: The Way Forward

I've recently read of H.R. 1031, reintroduced in the House of Representatives. This legislation would cap non-economic damages at $250,000 and limit attorneys fees. I hope that Congress plans to hold hearings on this legislation because of its great potential for expansion to address the causes of medical malpractice, as well as the result (litigation and damages). If physicians participate in disclosure (continuing informed consent), accept responsibility (if error has occurred), offer fair compensation (as appropriate), and learn from the patients' experiences to improve healthcare for future patients, there would be very little need for attorneys. Therefore, physicians' (and their insurers) concerns with damages and attorneys fees arising out of the litigation process could be, to a great extent, put to rest. Physicians communicate with their patients, trust is maintained (or, at least, not shattered), resolution occurs, the patient is heard, and impovements are proposed and take place.

I know the goal of all of us is patient safety, as then-Senators Clinton and Obama noted in their MEDiC legislation and their NEJM article. Using that goal as the jumping-off place, let's look at the entire picture involving medical error, rather than just look at the result. I know this sounds like a fairy tale, but no more of a fairy tale than attorneys-are-to-blame-for-everything. I also know that multi-layered medical error situations are very complicated, with many issues to address and many parties and participants.

Involving physicians' responses to possible medical error will protect and support both the physicians and the patients. It will take us away from blame and toward the responsibilities of all parties. It will give us an opportunity to present to Congress the substantial numbers of physicians who take part in these practices and are not sued and the tremendous savings associated with expeditious, non-adversarial resolution.

Isn't this time, place and legislation (H.R. 1031) an ideal place to start shifting and expanding the conversation to bring fairness, respect, and responsibility to all involved in medical error situations?

Arizona statute A.R.S. 12-572 raises the burden of proof in a medical malpractice case against emergency room physicians and on-call medical specialists to clear and convincing evidence, the highest legal standard (burden of proof) in a civil case. This standard makes it very difficult, if not impossible, for an injured patient and/or family member to find an attorney or otherwise pursue a medical malpractice case. The Arizona legislature is now considering raising the burden of proof to clear and convincing against all physicians in Arizona, making it increasingly dfficult to maintain an action against ANY physican in Arizona for malpractice.

Assuming the proposed legislation will be considered in legislative hearings, I suggest that the hearings provide the opportunity for testimony regarding the physicians' responsibilities vis a vis their patients. Rather than place another increased burden on injured patients, I suggest addressing the physician's responsibilities regarding informed consent (increasingly, "informed patient choice"), disclosure regarding all aspects of patient care, attention to patient's experiences to improve patient safety, offers of compensation, and apology. In terms of evidence, if a physician establishes that s/he adequately met these responsibilities, when (and if)the burden shifts to the physician, s/he could be entitled to a defense verdict. It is difficult to imagine that physicians would oppose this approach since most of them are doing this already, out of respect for their patients, themselves, and the entire healthcare system.

These hearings would provide a tremendous opportunity for the legislature to take a measured, reasoned approach to the entire topic of medical malpractice. It would also provide the opportunity to consider non-adversarial approaches to medical error situations, including collaborative law/practices, such that litigation becomes less and less a process that injured patients turn to. The process can and has in some sectors become more about healing and less about acrimony. The hearings will provide a forum to discuss all these issues among ALL stakeholders in healthcare. It will provide a look at the entire process: from possible medical error to disclosure, apology, possibilities to improve patient safety, and more.