Wednesday, January 25, 2012

The Shadows of Life

I've just been reading about Don Berwick's comments at the IHI Forum. According to Dr. Berwick, one of his five principles to guide change in health care is: put the poor and disadvantaged first, "those in the beginning, the end, and the shadows of life."

I'm grateful for the phrase, "shadows of life." I've been writing for many years, in terms of injured patients and/or their families, about those on the "economic margins", if only temporarily. What I refer to are the youth, the elderly and those without substantial current and future earnings, often women who stay at home to raise families. I'm concerned for them--the youth, the elderly, the women, the unemployed--because they often have difficulty, when the need arises, finding attorneys in medical error situations in which their concerns and questions have not been addressed at all or satisfactorily. In a state like California with non-economic damage caps, set at $250,000 in 1975 and never raised, it is difficult, if not impossible, for those in the "shadows of life" (i.e. our youth, our elderly, our community members without a substantial income history) to find attorneys. My oldest and dearest friend lost her son, a college student, to medical error several years ago. Because he was a college student, there was no lost income at the time of his death and into the future. Attorneys typically take these cases on contingency fee. With the damage caps in California and many other states, it is difficult for attorneys to make up the costs of preparing medical malpractice cases, retaining experts, taking depositions, and trying cases.

Another of the many reasons the litigation process is not always the best choice in situations in which medical error is alleged. Rather than federal law setting damage caps, promoted during the Bush Administration, perhaps we should rethink what occurs before a medical malpractice case is filed: informed patient choice, disclosure, communication and exchange between patient and physician, empowerment of patients, and more. All these processes strengthen the patient-physician relationship before any concerns about adverse events arise, such that trust is established and the likelihood of litigation is significantly lessened.

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