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!!!.

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.