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?