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.