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.

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.

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.