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?

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.

apology

I'm reading Aaron Lazare's "On Apology". One of the apologies he discussed really struck me and brought to mind what I've read about many adverse medical event situations. The story involved an 82 year old man who was the son of Holocaust victims. The man sued the French National Railroad System for its part in deporting 76,000 Jews from France to the concentration camps.
The compensation he requested: one Euro and acknowledgment by the railroad that it played an active role in the deportation. Noone could say that all he cared about was the money.

While doing research for my dissertation, I found an accumulation of evidence that many patients/families litigated medical malpractice cases to find out what happened and to protect future patients from the same mistakes. The money was secondary. Just think about what that says about our communities, our humanity. This, of course, is not to suggest that patients/families should not seek compensation, just to point out how important acknowledgment and helping others are for injured patients/families.

tort reform/medical malpractice liability reform

Caught part of the interview on NPR of Rahul K. Parikh, M.D., a pediatrician in my neighborhood. From there, I found his salon.com post, a post I so appreciated and generally agreed with. Dr. Parikh, both in his post and in his interview, addresses "defensive medicine" and its focus on blame. He, like so many other authors and thinkers on this topic, does not discuss how adverse medical events are handled in our health care systems BEFORE litigation, i.e. has there been disclosure, meeting with patients/families, opportunity for patients/families to offer first-hand information that could improve patient safety for future patients, apology and/or offers of compensation, if appropriate.

We hear statistics about "frivolous lawsuits". I'm not sure what that means, who is making that determination, if anyone, that a percentage of med mal cases filed are "frivolous". Are these cases that may not involve compensable injury but involve injured patients or their families who are unable to get any answers, are unable to get any health care provider to talk to them? Does that make their claims "frivolous"?

Can we START this conversation with the response of the health care providers to adverse medical events, completely aside from concepts of error and/or negligence? Why don't we try to establish criteria to determine if conversations between health care providers and patients/families after adverse medical events are improving patient safety practices for future patients? Why don't we start keeping statistics/anecdotes on how many medical malpractices cases are filed after disclosure, after conversation and open exchange, after listening to patients' experiences?

I think the way to change the conversation, expand the conversation, is one person at a time. As long as the conversation continues to blame the lawyers, we can't move forward. Like the conversation about caps on damages, the conversation about "defensive medicine" is not helping the patients. Both physicians and attorneys are healers, in my opinion, so let's get back to healing: healing the patients AND the health care providers, the "second victims". Let's start with the language of healing.

Who's with me on this?

defensive medicine and appreciative inquiry

Was reading an email last night on the AIlist serve (Appreciative Inquiry). What struck me was two questions: "Could we even say that what we perceive as "problems" contain assets we haven't identified yet"? and "Does classifying something as a 'problem' mean that it can't be part of the solution"? Also, the comment that sometimes we need to bump up our thinking to a higher level, referring to Einstein's comment, "You can't solve problems by using the same kind of thinking we used to create them."
Why not use this thinking, this appreciative inquiry approach, in terms of "defensive medicine". As I mentioned in an earlier post, we can shift the conversation, frame it in terms of "preventive medicine", subsuming "defensive medicine" in it, and making "defensive medicine" part of the solution. Also, we can look at the assets in "defensive medicine" to help us get to a solution.

Defensive Medicine

While listening in on the web to a physician stakeholder discussion on health care reform, sponsored b HHS and the WH, I was particularly interested in one physician's comment that the cost of "defensive medicine" in the U.S. on a yearly basis is $120B! I've seen another number, a much higher one. Robert Wachter, M.D. states, in his book, Understanding Patient Safety, that reducing damages against health care providers would save $250B yearly in the U.S. in "defensive medicine" costs. My understanding of "defensive medicine" is medical practices designed to avert malpractice suits, such as overutilization of unnecessary and/or expensive testing and procedures, as well as referrals to unneeded specialists, questionable surgeries, and/or actions taken to specifically avoid liability, rather than to benefit the patient. I don't know how these "defensive medicine" figures have been calculated.
I just finished reading Atul Gawande's The Cost Conundrum in the June 21, 09 issue of The New Yorker. Gawande writes about the overuse of medical services to maximize revenue for health care providers. I don't suggest that this is a widespread phenomenon. I would doubt it. I do wonder, however, how many dollars of "defensive medicine" are associated with maximizing revenue, rather than trying to avoid liability.
In any case, can we reframe the conversation, shift it to "preventive medicine", a central focus of the disclosure process after adverse medical events. Very briefly, for purposes of this post, the disclosure process presents the opportunity to bring into the open patient safety issues and work with injured patients to prevent injury to future patients. That is preventive. Can we focus on this, on preventive medicine? If we do, the culture of "defensive medicine", the need for "defensive medicine", will be lessened and become less important.