good day. the human side of malpractice speaking the unspeakable

Good Day

The Human Side of MalpracticeThe Human Side of Malpractice

Speaking The Unspeakable

Bryan…Bryan… ER Physician, married, two young daughtersER Physician, married, two young daughters

•Missed a minor change on an EKGMissed a minor change on an EKG

•Sued, lost $2 million, had $1 million insuranceSued, lost $2 million, had $1 million insurance

•Abandoned and blamed by his community and Abandoned and blamed by his community and church, began drinking…church, began drinking…

•Sued by his wife for divorce….Sued by his wife for divorce….

High Risk (Surgery): 99% with a 90% probability before the age of 45

Low Risk (Family Practice): 75% with a continuous pattern throughout a career

Gregory Pokrywka Cardiology Review , 33-34 February 2012


A Brief History A Brief History

There have been There have been 6 periods6 periods of time identified with marked of time identified with marked increases in malpractice suits: increases in malpractice suits: 1840-1860, 1890-1900, 1920-1840-1860, 1890-1900, 1920-1930, 1960-1970, 1975-1985 and 2000-today1930, 1960-1970, 1975-1985 and 2000-today. All periods . All periods have been associated with broad have been associated with broad change in social and legal change in social and legal concepts of personal liability and social values that merely concepts of personal liability and social values that merely

included medicineincluded medicine

Today: A backlash against managed care and all things authoritarian


A Brief History of Malpractice In AmericaA Brief History of Malpractice In America

The First “Malpractice Crisis” occurred in 1840The First “Malpractice Crisis” occurred in 1840

•From 1840-1860, the number of reported cases From 1840-1860, the number of reported cases rose 950%rose 950%

•This explosion of cases was actually part of a This explosion of cases was actually part of a larger trend by the courts to allow greater access of larger trend by the courts to allow greater access of

the common citizen to the courts the common citizen to the courts


A Brief History (continued)A Brief History (continued)

Factors in the legal professionFactors in the legal profession that caused an that caused an increase in suits included:increase in suits included:

•The Jury SystemThe Jury System (rather than experts; contrast the (rather than experts; contrast the Napoleonic Code)Napoleonic Code)

•Tort Law LiabilityTort Law Liability (rather than Contract Law, (rather than Contract Law, without the possibility of limited liability)without the possibility of limited liability)


A Brief History (continued)A Brief History (continued)•Legal reforms occurred as a reaction to the strict Legal reforms occurred as a reaction to the strict

tort laws of England:tort laws of England:

•Contingency FeesContingency Fees were allowed were allowed

•Rules of causationRules of causation and who could testify about and who could testify about the standard of care were relaxedthe standard of care were relaxed

•Personal liability concepts were expanded to Personal liability concepts were expanded to include include pain and sufferingpain and suffering



•Medical InnovationMedical Innovation and new cures brought with and new cures brought with them new risksthem new risks

•Medical StandardsMedical Standards allowed legal allowed legal accountabilityaccountability

•The Advent of The Advent of Malpractice InsuranceMalpractice Insurance in the in the 1890’s made malpractice suits profitable1890’s made malpractice suits profitable



Malpractice liability laws were initially viewed by the Malpractice liability laws were initially viewed by the best physicians as best physicians as a way to drive charlatans and a way to drive charlatans and

amateur hacks from practiceamateur hacks from practice

The absence of clear standards of practiceThe absence of clear standards of practice resulted in resulted in open licensure of any and all, from “the woman down open licensure of any and all, from “the woman down the lane who grew a few herbs to surgeons apprenticed the lane who grew a few herbs to surgeons apprenticed

in European hospitals.”in European hospitals.”



Ironically, the development of published medical Ironically, the development of published medical treatment standards allowed physicians to be sued, treatment standards allowed physicians to be sued,

since the standards provided the norms against since the standards provided the norms against which a bad outcome could be measured which a bad outcome could be measured

““It is better to be without a diploma…to be It is better to be without a diploma…to be able to say ‘I make no pretensions, I only gave able to say ‘I make no pretensions, I only gave my my neighbor in his suffering what aid I could.’ ” neighbor in his suffering what aid I could.’ ”

William Wood MD, US Navy Physician 1849William Wood MD, US Navy Physician 1849

Commonly Stated Legal GoalsCommonly Stated Legal Goals

• Compensate Injured PatientsCompensate Injured Patients

•Create Incentives to Reduce Errors and Create Incentives to Reduce Errors and High Risk BehaviorsHigh Risk Behaviors

•Increase Informed Consent and Achieve Increase Informed Consent and Achieve Patient Advocacy GoalsPatient Advocacy Goals

Commonly Stated Legal GoalsCommonly Stated Legal Goals

•Are these goals attained in the current Are these goals attained in the current system?system?


Which physicians are sued most often?Which physicians are sued most often?

•Highly trained, competent and skilled in Highly trained, competent and skilled in either diagnostic or procedural disciplines either diagnostic or procedural disciplines

(rather than chronic care)(rather than chronic care)

•In practice for more than 5 yearsIn practice for more than 5 years

•Somewhat less charismatic or personableSomewhat less charismatic or personable

•Typically not the “bad apples”Typically not the “bad apples”

To Understand why this is true it is To Understand why this is true it is important to look first at the nature important to look first at the nature

of human errorof human error


Types of Human ActivityTypes of Human Activity

•Skill-Based ActivitySkill-Based Activity: Driving an automobile

Lucian Leape, Lucian Leape, JAMAJAMA 272:1851 (1994); Harold Kaplan 272:1851 (1994); Harold Kaplan J. Legal Med J. Legal Med 24:29 (2003)24:29 (2003)

•Rule/Knowledge Based ActivityRule/Knowledge Based Activity: Solving a new : Solving a new problem, something we have not encountered problem, something we have not encountered

before, using a principle we have learned before, using a principle we have learned elsewhere; If/Then…elsewhere; If/Then…


The Nature of Medical (Human) Error

•Error in Skill-Based Activity: Error in Skill-Based Activity: Inattention or “unavoidable” Inattention or “unavoidable” confusion of information…for example, locking the keys in confusion of information…for example, locking the keys in

your car when distracted by traffic or a child’s cryingyour car when distracted by traffic or a child’s crying

•Error in Rule/Knowledge Based Activity: Error in Rule/Knowledge Based Activity: Ignorance/Over-extension: not knowing what we do not Ignorance/Over-extension: not knowing what we do not know…for example, assuming a 4-way stop at a 2-way know…for example, assuming a 4-way stop at a 2-way

stop intersection stop intersection


•Expertise in any human endeavor necessarily Expertise in any human endeavor necessarily involves high levels of skill-based knowledgeinvolves high levels of skill-based knowledge

•The greater the expertise and experience, the greater The greater the expertise and experience, the greater the skill-based knowledge/performance the skill-based knowledge/performance

As we become expert, knowledge-based errors As we become expert, knowledge-based errors decrease, and skill-based errors increase …Net decrease, and skill-based errors increase …Net

Effect: the overall error rate falls and is quite lowEffect: the overall error rate falls and is quite low


•The Problem: a false sense of certaintyThe Problem: a false sense of certainty

•Behavioral experiments show that all humans Behavioral experiments show that all humans overestimate their knowledgeoverestimate their knowledge

•Expertise in a given subject typically (1)decreases Expertise in a given subject typically (1)decreases errors but also (2)increases overconfidence errors but also (2)increases overconfidence

Even though wrong, we become more confident we Even though wrong, we become more confident we are correct, making error analysis/error recognition are correct, making error analysis/error recognition

more difficultmore difficult


•Skill Based Behavior relies heavily on Pattern or Skill Based Behavior relies heavily on Pattern or Context Recognition Context Recognition

•White Wine colored Red is tasted as Red WineWhite Wine colored Red is tasted as Red Wine

•Chocolate flavored yogurt is tasted as strawberry Chocolate flavored yogurt is tasted as strawberry yogurt when told it is strawberry flavored yogurt when told it is strawberry flavored

Context/Pattern: The “Frame” something is in Context/Pattern: The “Frame” something is in determines how we perceive itdetermines how we perceive it


•The part of our brain that governs conscious The part of our brain that governs conscious recognition is relatively small, and can only process recognition is relatively small, and can only process

40-60 bytes/second40-60 bytes/second

•The entire cognitive processing capacity, including The entire cognitive processing capacity, including the visual and unconscious is estimated at 11 million the visual and unconscious is estimated at 11 million

bytes/secondbytes/second

•The cognitive component allowing careful, The cognitive component allowing careful, considered decisions functions <5% of the time, the considered decisions functions <5% of the time, the

unconscious functions >95% of the time…unconscious functions >95% of the time…


•Unconscious decision making is based on limited Unconscious decision making is based on limited information, cues or signals…information, cues or signals…

•Dominates over cognitive decision making when Dominates over cognitive decision making when there is too much information, or when the person is there is too much information, or when the person is

tired, stressed or preoccupied, and tends toward tired, stressed or preoccupied, and tends toward impulsive behavior/decisions…impulsive behavior/decisions…

•Guides our behavior at least 95% of the time…Guides our behavior at least 95% of the time…

Deborah A Cohen Diabetes (July 2008) 57; 1768-1773


The Nature of Medical (Human) ErrorThe Nature of Medical (Human) Error

•Most errors are systems problemsMost errors are systems problems, rather than knowledge- or skill-based (“Latent Errors”)

•…”…”accidents waiting to happen” such as the accidents waiting to happen” such as the Titanic Titanic which which had inadequate lifeboats, no shakedown cruise, and no “lids” had inadequate lifeboats, no shakedown cruise, and no “lids”

on the watertight bulkheads, inadequate radio systems to on the watertight bulkheads, inadequate radio systems to receive warningsreceive warnings

•Design ProblemsDesign Problems…

Lucian Leape, Lucian Leape, JAMAJAMA 272:1851 (1994); Harold Kaplan, 272:1851 (1994); Harold Kaplan, J. Legal Med J. Legal Med 24:29 (2003)24:29 (2003)


When Systems fail and when Pattern/Context When Systems fail and when Pattern/Context Recognition does not alert us to the unusual, Recognition does not alert us to the unusual, undetected errors occurundetected errors occur

•It is only when outcomes differ from expected It is only when outcomes differ from expected that we begin to see the problem that we begin to see the problem


Therefore:Therefore:

•Medical Errors that result in malpractice suits Medical Errors that result in malpractice suits most often occur in situations that most often occur in situations that cannot be cannot be avoidedavoided, regardless of the personal concern, , regardless of the personal concern, medical skill or high level of detailed “error medical skill or high level of detailed “error proof” care given by the individual physicianproof” care given by the individual physician

•Perfection is not possiblePerfection is not possible


Negligent ErrorNegligent Error is not volitional error

…There is no intention to harmThere is no intention to harm

Remember:Remember:


Negligent ErrorNegligent Error usually occurs usually occurs as a part of normal, ethical as a part of normal, ethical

moral behavior…and is usually moral behavior…and is usually not due to a breach of personal not due to a breach of personal

or professional standardsor professional standards


Most suits are brought for (1)sudden, Most suits are brought for (1)sudden, (2)unexpected bad outcomes that are (2)unexpected bad outcomes that are (3)perceived of as (4)severe, either in (3)perceived of as (4)severe, either in

(5)personal or (6)financial terms(5)personal or (6)financial terms

Why do patients sue? Why do patients sue?

Sense of betrayal, seeking meaning and Sense of betrayal, seeking meaning and significance for their sufferingsignificance for their suffering

To Err Is Human…To Err Is Human…

•Patients begin by asking “what happened?”Patients begin by asking “what happened?”

•Become angry/distrustful when they find no Become angry/distrustful when they find no answers… answers…

•……And seek ultimate answers in court to And seek ultimate answers in court to questions such as “why me?” and ultimate questions such as “why me?” and ultimate

solutions such as “never again to solutions such as “never again to another”…and still find no answersanother”…and still find no answers

Emotional/Personal Patient Goals…Emotional/Personal Patient Goals…

What Do We Know About Bad Outcomes?What Do We Know About Bad Outcomes?

““Bad Outcomes”Bad Outcomes” ““Avoidable Adverse Events”Avoidable Adverse Events” Medical ErrorMedical Error Criminal NegligenceCriminal Negligence HomicideHomicide


•““He uses statistics as a drunken man He uses statistics as a drunken man uses a lamppost…more for support than uses a lamppost…more for support than

illumination”illumination”

Andre LangAndre Lang

Do we compensate patients injured by medical errors? Do we compensate patients injured by medical errors? The Harvard Medical Practice Study: 1991The Harvard Medical Practice Study: 1991

Disease Associated “Bad Outcomes”Disease Associated “Bad Outcomes”

Iatrogenic Iatrogenic with “fault”with “fault”

Iatrogenic without Iatrogenic without “fault”“fault”

Filed ClaimsFiled Claims

•2% of all negligent 2% of all negligent injuries were filedinjuries were filed

•Only 1/6 of Only 1/6 of claims filed claims filed

were for were for negligent negligent injuries injuries

Do we compensate patients injured by medical errors? Do we compensate patients injured by medical errors? The Harvard Medical Practice Study: 1991The Harvard Medical Practice Study: 1991

Disease Associated “Bad Outcomes”Disease Associated “Bad Outcomes”

Iatrogenic Iatrogenic with “fault”with “fault”

Filed ClaimsFiled Claims

Iatrogenic without Iatrogenic without “fault”“fault”

““Legitimate” Focus of LitigationLegitimate” Focus of Litigation

The Harvard Medical Practice Study: 1991The Harvard Medical Practice Study: 1991

21 of the 46 claims were settled in the 21 of the 46 claims were settled in the patient’s favor over 10 years: patient’s favor over 10 years:

•10 (of 24) were for disease-related, non-negligent 10 (of 24) were for disease-related, non-negligent outcomes and averaged $98,700… outcomes and averaged $98,700…

•6 (of 13) were for iatrogenic, non-negligent outcomes 6 (of 13) were for iatrogenic, non-negligent outcomes and averaged $98,000…and averaged $98,000…

•5 (of 9) were for iatrogenic, negligent outcomes and 5 (of 9) were for iatrogenic, negligent outcomes and averaged $62, 000averaged $62, 000

Does Litigation Improve Quality of Care?Does Litigation Improve Quality of Care?

The adversarial system virtually guarantees the The adversarial system virtually guarantees the medical errors are not discussed or examined to medical errors are not discussed or examined to any significant degree…with the traditional any significant degree…with the traditional legal advice of “deny and defend”legal advice of “deny and defend”

We do not even have a good estimate of We do not even have a good estimate of how much error exists how much error exists ((see see Weingart and Weingart and Iezzoni, Iezzoni, JAMA JAMA 290:1917 (October 8, 2003)290:1917 (October 8, 2003)

To Err is Human…To Err is Human…

Current Malpractice LitigationCurrent Malpractice Litigation

•Is seriously and fatally flawed…Is seriously and fatally flawed…

•It fails to achieve the social goals of (1) It fails to achieve the social goals of (1) Compensating injured patients; (2)Creating incentives Compensating injured patients; (2)Creating incentives

to reduce medical errors and resulting injury; (3) to reduce medical errors and resulting injury; (3) Interferes with quality medical care by decreasing Interferes with quality medical care by decreasing

open dialogue between the physician and patient, and open dialogue between the physician and patient, and by increasing cost and decreasing access by increasing cost and decreasing access

Suggested Reforms Include…Suggested Reforms Include…

•From Physician Organizations:From Physician Organizations:

• Mediation rather than litigationMediation rather than litigation

•Limits on Pain and Suffering awardsLimits on Pain and Suffering awards

•Abolish or limit Joint and Several LiabilityAbolish or limit Joint and Several Liability

•Certification of a case before filed (expert opinion)Certification of a case before filed (expert opinion)

ABA ABA JournalJournal

October October 20062006

Plaintiff Bar: Plaintiff Bar: “My income “My income has dropped has dropped to probably to probably

10 percent of 10 percent of what I made what I made

in 2003.”in 2003.”

Defense Bar: Defense Bar: Tort reforms Tort reforms in Texas “…in Texas “…

hit the hit the defense side defense side

hardest first.”hardest first.”

Other Suggested Reforms Include Efforts to Other Suggested Reforms Include Efforts to Reduce Medical Error…Reduce Medical Error…

•Greater protection of peer review from discoveryGreater protection of peer review from discovery

•Protection of reported errors from discoveryProtection of reported errors from discovery

•Non-punitive and non-judgmental reporting of errors Non-punitive and non-judgmental reporting of errors and the information gleaned from such studiesand the information gleaned from such studies

•View errors as “pearls in the rough,” as part of the View errors as “pearls in the rough,” as part of the development of systems to reduce error development of systems to reduce error

•Adopt a pro-active attitude toward errorAdopt a pro-active attitude toward error

The Personal Side of MalpracticeThe Personal Side of Malpractice

The ProblemThe Problem…… Few of these solutions solve the greater Few of these solutions solve the greater

issue of the emotional injuries suffered by issue of the emotional injuries suffered by patients and physicianspatients and physicians

Until they do, malpractice will impact the Until they do, malpractice will impact the actual practice of medicine, increasing actual practice of medicine, increasing cost and interfering with the physician- cost and interfering with the physician- patient relationshippatient relationship

Physicians Liability Insurance Company of

Oklahoma (PLICO) has been a pioneer in

this movement…

Oklahoma was the first state to have law

allowing a physician to say “I’m sorry this happened” without

liability

Physicians are personally threatened…Physicians are personally threatened…

Our current legal malpractice system must Our current legal malpractice system must assign blame and shame…assign blame and shame…

Who did what terrible thing wrong?Who did what terrible thing wrong?

To Reform the System to one that To Reform the System to one that recognizes the emotional injuries…recognizes the emotional injuries…

Possible reforms include binding arbitration Possible reforms include binding arbitration or mediation …based on “avoidable adverse or mediation …based on “avoidable adverse events” rather than negligence… events” rather than negligence…

““No fault” reimbursements, modeled No fault” reimbursements, modeled after Workmen’s Compensation, to after Workmen’s Compensation, to reimburse “avoidable medical injuries”…reimburse “avoidable medical injuries”…

A Proposal for Reform… A Proposal for Reform…

A Theory of Law, the “Therapeutic A Theory of Law, the “Therapeutic Jurisprudence Approach”Jurisprudence Approach”

•Early Intervention MediationEarly Intervention Mediation11

•ArbitrationArbitration

11Kraman and Hamm “Risk Management: Extreme Honesty May Be the Best Kraman and Hamm “Risk Management: Extreme Honesty May Be the Best Policy” Policy” Annals of Internal Medicine Annals of Internal Medicine 131:963 (1999); Whitman, Park and 131:963 (1999); Whitman, Park and Hardin “How Do Patients Want Physicians to Handle Mistakes?” Hardin “How Do Patients Want Physicians to Handle Mistakes?” Arch Arch

Internal Medicine Internal Medicine 156:2565 (1996) 156:2565 (1996)

A Proposal for Reform… A Proposal for Reform…

““Therapeutic Jurisprudence Approach”Therapeutic Jurisprudence Approach”

Originally defined by David Wexler: “People should Originally defined by David Wexler: “People should be better off after their contact with the law than they be better off after their contact with the law than they

were before.”were before.”11

This includes psychological and physical well This includes psychological and physical well beingbeing

11Edward Dauer Edward Dauer Journal of Legal MedicineJournal of Legal Medicine 24:37 24:37ffff (March 2003) (March 2003)

However…However…

The psychological brutality of our current The psychological brutality of our current system damages caregivers and does not system damages caregivers and does not answer any ultimate questions… for the answer any ultimate questions… for the

patient or the physician…patient or the physician…

The Personal Side of MalpracticeThe Personal Side of Malpractice

Take a 10 minute break…Take a 10 minute break…

The psychological brutality of our current The psychological brutality of our current system damages caregivers and does not system damages caregivers and does not answer any ultimate questions… for the answer any ultimate questions… for the

patient or the physician…patient or the physician…


Common Misconceptions by PhysiciansCommon Misconceptions by Physicians

•Engage in retrospective Engage in retrospective “second guessing”“second guessing” ie ie a bad result a bad result always means something better could have and should have always means something better could have and should have

been donebeen done

•Believe that local standards or customs determine both the Believe that local standards or customs determine both the professional and legal standard of care..and professional and legal standard of care..and there is really one there is really one

best way to treat a problembest way to treat a problem

•Believe that it is possible to practice error-free medicine, and Believe that it is possible to practice error-free medicine, and only “bad physicians” commit errorsonly “bad physicians” commit errors


Common Misconceptions (continued)Common Misconceptions (continued)

•All of the information needed to do the right thing was All of the information needed to do the right thing was available before the error was madeavailable before the error was made

•If the error is not discussed, If the error is not discussed, it will go awayit will go away

•If the error is discussed, If the error is discussed, my family, patients and my family, patients and colleagues will think less of mecolleagues will think less of me

•This is the only serious error (or maybe the second This is the only serious error (or maybe the second one) I have ever made, and one) I have ever made, and it will never happen againit will never happen again if if

I just pay better attention to what I am doingI just pay better attention to what I am doing


Common Misconceptions (continued)Common Misconceptions (continued)

•The physician is responsible for everythingThe physician is responsible for everything that happens, that happens, good or bad (“Captain of the Ship”)good or bad (“Captain of the Ship”)

“ “As I think about it, there’s this element of control and As I think about it, there’s this element of control and responsibility that’s infinite.”responsibility that’s infinite.”Christensen, Christensen, ibid ibid at 426at 426

•Perfection is PossiblePerfection is Possible

““Our profession is difficult enough without our having to Our profession is difficult enough without our having to wear the yoke of perfection.” wear the yoke of perfection.” David Hilfiker, David Hilfiker, NEJMNEJM 310:118 (1984) 310:118 (1984)


The physician who cares for a patient that has an The physician who cares for a patient that has an unexpected bad outcome feels:unexpected bad outcome feels:

•Isolation…from friends, family and colleaguesIsolation…from friends, family and colleagues

•Deep Remorse and GrievingDeep Remorse and Grieving

•Guilt (Moral Culpability)Guilt (Moral Culpability)

•Loss of Self-EsteemLoss of Self-Esteem


…Whether or not he or she is sued Whether or not he or she is sued

…Whether the “error” was in fact Whether the “error” was in fact substandard care, preventable or substandard care, preventable or

something someone (anyone?) else something someone (anyone?) else considers errorconsiders error

JF Christensen, et al, J Gen Internal Med 7:424 (1992)


Emotional and Behavioral Changes includeEmotional and Behavioral Changes include::

•Self-Doubt in all areas of lifeSelf-Doubt in all areas of life

•Change in scope of practice and paranoid behaviorChange in scope of practice and paranoid behavior

•Depression and anxietyDepression and anxiety

•Alcohol and drug abuseAlcohol and drug abuse

•Divorce and relationship problemsDivorce and relationship problems

•Sexual dysfunction Sexual dysfunction

•SuicideSuicide


““We see the horror of our own mistakes, yet we are We see the horror of our own mistakes, yet we are given no permission to deal with the enormous given no permission to deal with the enormous emotional impact; instead, we are forced to emotional impact; instead, we are forced to continue the routine of repeatedly making continue the routine of repeatedly making decisions, any one of which could lead us back into decisions, any one of which could lead us back into the same pit.”the same pit.”

David Hilfiker, “Facing Our Mistakes” NEJM 310:118

(1984)


•The profession seems to have no place for its mistakes. The profession seems to have no place for its mistakes. Physicians are not trained or prepared to deal with mistakes. It Physicians are not trained or prepared to deal with mistakes. It

is virtually impossible to get an honest opinion from is virtually impossible to get an honest opinion from consultants and other physicians. consultants and other physicians.

•Society has no place for the physician who commits an errorSociety has no place for the physician who commits an error

•Errors are rarely admitted or discussedErrors are rarely admitted or discussed

•Personal absolution, restitution or reconciliation with the Personal absolution, restitution or reconciliation with the patient is impossiblepatient is impossible


What Can Be Done?What Can Be Done?

• First, realize the nature of most malpractice suits, First, realize the nature of most malpractice suits, and be less judgmental of ourselves and othersand be less judgmental of ourselves and others

•Develop and utilize effective physician Develop and utilize effective physician counseling servicescounseling services

•Support a colleague who is suedSupport a colleague who is sued

Medical Malpractice MinistryMedical Malpractice Ministry

3M …CMDA3M …CMDA Trained Physicians Trained Physicians Sued at least once and look at the Sued at least once and look at the

experience as a growing experienceexperience as a growing experience Calls to CMDA matched with physicians in Calls to CMDA matched with physicians in

other statesother states

State Medical Association CommitteesState Medical Association Committees

Depression…Depression…

Often begins in Medical School and Often begins in Medical School and Residency…Residency…

Malpractice triggers acute worsening Malpractice triggers acute worsening www.physiciandepression.com Spiritual Strength and Support are Spiritual Strength and Support are

consistently recognized deterrents to consistently recognized deterrents to suicide… suicide…

Physician, Heal Thyself…Physician, Heal Thyself…

There is no substitute for personal moral There is no substitute for personal moral and ethical development…and ethical development…

No reforms, blame shifting or intellectual No reforms, blame shifting or intellectual discussion will prepare you the moment discussion will prepare you the moment when you make your first serious error that when you make your first serious error that harms another…harms another…

Or when you are sued for something you Or when you are sued for something you genuinely feel you did not do… genuinely feel you did not do…


•““It is an old and ironic habit of human beings to It is an old and ironic habit of human beings to run faster when we have lost our way.”run faster when we have lost our way.” Rollo May Rollo May

•The reason for our suffering may have a lot The reason for our suffering may have a lot or a little to do with us personally…or a little to do with us personally…

•But all suffering is both hard and helpful But all suffering is both hard and helpful “He jests at scars who never felt a wound” Shakespeare“He jests at scars who never felt a wound” Shakespeare


•Faith like Job’s cannot be shaken because it is the Faith like Job’s cannot be shaken because it is the result of having been shaken” Rabbi Abraham result of having been shaken” Rabbi Abraham

HeschelHeschel

•““Never pay back evil to anyone. Respect what is right Never pay back evil to anyone. Respect what is right in the sight of all men. So far as it depends on you, be in the sight of all men. So far as it depends on you, be at peace with all men. Never take your own revenge at peace with all men. Never take your own revenge …vengeance is mine, I will repay says the Lord. Do …vengeance is mine, I will repay says the Lord. Do

not be overcome by evil, but overcome evil with not be overcome by evil, but overcome evil with good.” good.” (Romans 12:17-21)(Romans 12:17-21)


•Always Seek What Is Ethically and Always Seek What Is Ethically and Morally Right For Our Patients, Our Morally Right For Our Patients, Our

Colleagues and Ourselves…The Colleagues and Ourselves…The Highest and Best We Can GiveHighest and Best We Can Give


Thank YouThank You


Good Rapport Takes

Time, the opposite

of managed

care

Recognize the Essential Role of Forgiveness…Recognize the Essential Role of Forgiveness…

““To Err is Human; To Forgive, Divine.”To Err is Human; To Forgive, Divine.”

Alexander Pope (1688-1744) Alexander Pope (1688-1744) An Essay on CriticismAn Essay on Criticism

““To err is human, but to really foul things up To err is human, but to really foul things up takes a computer” takes a computer” Farmers’ Almanac “Capsules of Farmers’ Almanac “Capsules of Wisdom” 1978 (Anon)Wisdom” 1978 (Anon)

““The computer is down. I hope its down with The computer is down. I hope its down with something serious.” something serious.” San Francisco Chronicle 1984San Francisco Chronicle 1984

A Proposal for Reform…A Proposal for Reform…

Legal Theory:Legal Theory:•Therapeutic JurisprudenceTherapeutic Jurisprudence…has as a central value …has as a central value

that “[p]eople should be better off [physical and that “[p]eople should be better off [physical and psychological] after their contact with the law than psychological] after their contact with the law than

they were before”they were before”11

•Early Intervention MediationEarly Intervention Mediation… restoration … restoration (correction of any consequences), closure (what (correction of any consequences), closure (what

happened), justice (accountability without liability) happened), justice (accountability without liability) and future safety (non-repetition of any error)and future safety (non-repetition of any error)22

1 David Wexler (July 2000); 2 Edward Dauer 1 David Wexler (July 2000); 2 Edward Dauer J Legal Med J Legal Med 24:37 (2003)24:37 (2003)

good day. the human side of malpractice speaking the unspeakable

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