Can't we all just get along? Let's talk more, litigate less

Commentary. By Leonard J. Marcus, PhD, and Barry C. Dorn, MD, amednews contributors. Sept. 15, 2003.

COMMENTARY

Observations on the state of medical practice and medical life

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Humans are contentious and evolving beings. We defend with great might that which we hold dear: territory, security, and the successes of our career.

We have a history of handling our contentious impulses through violent and aggressive means. Though we have evolved into more civilized methods for curbing the viciousness of our fighting -- with "rules of war" and courts of law -- we still invest enormous energy and anticipation into conquest, dominance and outright winning. When threatened, we are keen to draw a line in the sand and raise arms -- or at least threats -- as we shift into the offensive and defensive strategies of battle.

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When a dispute inexorably escalates, it is reassuring for civilized societies to observe their leaders at the negotiating table, working out their differences through diplomatic words. Getting to diplomacy and beyond the dark side of conflict is no easy matter. It requires building new confidence and trust. It is less about blame and more about correction and remediation. And once this sort of conciliatory talking is achieved, it is very valuable and very constructive. It is the upside of human nature at its very best. It's a dynamic step in the evolutionary process. And for all the work and the tremendous effort involved in making this sort of constructive talk happen, it isn't cheap.

There has been an avalanche of recent attention on the contentious issues of medical malpractice litigation and overall health system reform. Physicians' liability insurance premiums have been skyrocketing in parallel with health care costs for patients.

Battle lines are being drawn. Around the country, the public has witnessed physicians walking out on strike, clinicians leaving their practices, and hospitals suspending needed community services. Like an epidemic, these pockets of crisis are spreading, as breakdowns in one area place a surge of demand upon adjacent caregivers, further straining the capacity of the health system to respond to patient needs.

And of course, all this happens as the system is also expected to prepare to accept mass casualties in the event of a large-scale terrorist incident.

The pressures are escalating. And escalating pressure often leads to escalating conflict.

The irony of course is that, bottom line, most stakeholders voicing an opinion on these issues want slight variations on the same theme: high quality, cost-effective care that is accessible and affordable to all.

Getting there is the problem. We have been fighting about health care in this country for years. Might this not be the time to propose a health care cease-fire, to get the sides talking, and out of it, to find solutions reflecting what is best for and best about the country?

The matter of performance improvement provides a pragmatic illustration. Performance improvement is directly tied to adoption of a linked series of clinical protocols, behaviors, expectations and routines. Clinical decision-making must be based on evidence and sound science. Care must be measured and caregivers must be accountable for their decisions and actions. The measurement process must create information that can be used to meaningfully assess and improve the quality of care.

Problems and errors in the course of care are likely and perhaps even inevitable. Every reasonable effort should be invested to reduce their likelihood, and when they do occur, what is learned from those errors should be used to generate information, corrective actions, and changes that will decrease the likelihood of recurrence.

These activities taken together represent a simple formula that would save lives, money, and an enormous amount of distraction. And yet, adoption of such a recipe has been elusive at best. Why?

People are not talking. The mantle and impact of medical malpractice is about far more than just the verdicts and awards in the courtroom or negotiations on the courthouse steps. And it is about far more than the high costs involved in financing this expensive system.

The contentious and adversarial system by which we investigate, prosecute and compensate for medical errors is at the heart of our incapacity to build an effective performance and quality improvement system in this country. The tort system essentially creates a "wall of silence." Physicians are discouraged from discussing a medical situation openly and honestly for fear of harsh and punitive legal ramifications. As a result, the litigious nature of error identification and assessment has hindered efforts to fully disclose and translate important findings into new knowledge that can be shared, learned and adopted.

While there certainly are circumstances for which litigation is the best and perhaps only means to find justice, the system as it now exists has made people afraid or at least reluctant to talk, for fear of what it could mean for their practices, their careers, or their cases.

That talk could be most valuable, and it is in the best interests of the system to find ways to encourage and support it.

We have written in previous columns about the methods and advantages of alternative dispute resolution as a means to encourage patients and physicians to talk safely and constructively with one another. Mediated conversations between patients and caregivers following an unexpected outcome have been found to reap important advantages for both sides.

Our research indicates patients are eager for three key outcomes:

To know what happened.
To receive an apology or an acknowledgement from the caregiver.
To see that corrective actions are taken so that what happened to them will not recur.

These objectives are in keeping with those of the caregiver, who is:

Eager to reduce anxiety related to the unresolved claim or complaint.
Wanting to communicate on a human level with the patient.
Encouraged and assured by the prospect that corrective actions can be taken to reduce the likelihood of a repetition.

For both sides, the notion that something good can emerge out of something that was unintended and bad provides just the sense of hope and resolve that is essential, both to the conflict resolution and to the patient safety processes.

And even beyond this sort of post-incident talking, often the best antidote to quell threats of litigation is ongoing clear, engaging and respectful talking with patients. To encourage the process, many states -- California, Texas and Massachusetts among them -- have passed laws allowing physicians to offer an apology without concern that the statements will later be used against them in court.

Whether about a specific care incident or about general issues of policy and organizational design, the greatest hope for our health care system is in getting key people talking constructively with one another. Talking and good communication is part of the healing process, and our system, just as our patients, is in great need of such understanding and treatment.

Dr. Marcus is director and is associate director of the Program for Health Care Negotiation and Conflict Resolution at the Harvard School of Public Health. Dr. Dorn is CEO of Health Care Negotiation Associates. They are the authors of the book "Renegotiating Health Care: Resolving Conflict to Build Collaboration," portions of which appeared here as the column Renegotiating Health Care.