Vol. 85, No. 7, July 2012
I enjoyed reading the outstanding article "Why Docs Avoid Lawyers," by Jason Knutson and Guy Du Beau (Feb. 2012). Their eight techniques and tips address the primary complaints I hear from physician colleagues about their interactions with lawyers. As a lawyer turned physician, I'd like to describe what happens when a sentinel event (an act through error or omission that does or could possibly harm a patient) occurs in the health care process in an effort to put doctors' fear and perceived arrogance in perspective.
I do not know of any physician who wakes up in the morning with the intent of harming a patient. Unfortunately, medicine is high-risk by its very nature. When they discover that what they have done has harmed or had the potential to harm a patient, physicians experience a tremendous amount of personal guilt and shame. This is followed by interpersonal and peer review of the entire event. The self-critique is invariably brutal; the peer review has historically been characterized as positively medieval.
While the broad health care community is actively moving to a blame-free environment to better support a culture of safety, the conventional model for physician review of sentinel events is to have the physician stand before an audience of superiors, peers, and support staff while a third-party physician reviews the case. The audience members then take turns questioning the physician (which can feel like berating) about his or her actions – many of which were dictated by standards and circumstances outside the physician's control. Traditionally, the review process takes from weeks to months, during which time physicians report sleeplessness, depression, and anxiety. The process is also a contributing factor to why physicians have one of the highest suicide rates of any profession – something well studied and documented. This process has been a significant barrier to effective review. Again, the medical community is trying to change from a culture of blame to a systems-based approach to facilitate more frequent and higher quality reviews, increase reporting of potential harm events, identify process improvements, and encourage openness.
As you can imagine, after the self-critique and the peer review, physicians can feel battered, humbled, and numb. It is often at that point they are faced with the legal aspects of the case. By this time their defenses are fully engaged and the prospect of revisiting any part of the experience frequently leads to defense mechanisms that are often perceived as arrogance and an apparent distaste for the entire legal profession. Your approach of open communication, thorough preparation, and follow-up will help physicians get past this. Reiterating that the goal of litigation is to help the patient will give you common ground with the physician, and ought to facilitate open communication.
Again, I applaud your message. This article would support a powerful presentation at local and regional medical conferences. The earlier that communication begins, the easier it will be for all parties.
Lt. Robert P Lennon, M.D., J.D., USN
(The opinions in this letter are the author's own and do not necessarily reflect those of the Department of the Navy or the Department of Defense.)
So Much for Democracy
Many thanks to State Bar President Brennan for his superb exposé of our shattered legal system (May 2012). Private citizens in many states, thanks to the U.S. Supreme Court, can now be jailed and strip-searched for outstanding parking tickets (Florence v. County of Burlington) and have their property condemned and lost to "desirable" development in their community (Kelo v. New London). And large corporations are now "citizens" that have constitutional rights and can now "speak" for the candidates of their choice with their corporate millions (Citizens United v. Federal Election Commission). These are only a few of the most prominent cases abolishing our hard-won rights. So much for democracy – and this country.
Owen S. Durigan