Monday, January 19, 2015
Collaborative Law: The Big Picture - Applying The Collaborative Process To The Medical Industry
By Jon Wax
If patient safety was managed like airline passenger safety – with a collaborative process led by an outcomes-oriented oversight agency – thousands of lives and millions of dollars could be saved.
Look at the numbers: Air travel has become the safest mode of transportation in America – after decades of oversight by the FAA and the NTSB. In 2013, according to the latest estimates from the NTSB, there were only two fatalities out of nearly 9 million U.S. commercial airline flights. Contrast this with the medical industry. A 2013 study reported in the Journal of Patient Safety revealed more than 200,000 deaths are associated with preventable harm in hospitals annually. That is the equivalent of three commercial planes crashing every day with no survivors.
Why doesn’t the medical industry have a better record? The simple answer is the lack of a centralized system to investigate, solve, and improve these outcomes.
Imagine a world where doctors, patients, and families freely discuss medical "events" and work together to reduce the incidence of medical errors, which in turn would reduce medical malpractice premiums and, ultimately, the cost of health care. This is possible, but not within the archaic, inefficient, and adversarial system that prevails in our country today.
Chesley Sullenberger, the U.S. Airways pilot whose 2009 emergency splash-landing of an A320 saved the lives of 155 passengers, has become a crusader in the cause of saving patients’ lives by reducing medical errors and accidents. His approach highlights a major medical industry deficiency: Information about medical accidents and errors is not pooled and mined to identify systemic issues.
Sullenberger envisions making American hospitals safer by “applying all the things we’ve learned for decades in aviation and making them transferrable to medicine.” He advocates forming a medical accident investigation board to oversee a formal “lessons-learned” process where the findings are widely disseminated but locally actionable. The board would also enforce a doctor’s “checklist manifesto” similar to the ones pilots use.
Information related to medical errors and accidents must be shared. The FAA and NTSB require complete access to crash sites, evidence, records, survivors, and anything else they deem necessary to understand causes, effects, and solutions. All parties must be forthcoming. Only when the investigation is complete, and remedies are made to mitigate future occurrences, can the parties pursue civil action.
In medicine, civil hostilities will remain a critical impediment unless there are changes to the method of settling these disputes. Enter the collaborative process, which would enable a medical investigation board to uphold fairness and civility in dispute resolution. The collaborative process differs from traditional mediation by contractually prohibiting lawyers and other professional intermediaries from representing parties if the process breaks down. This is an inducement for the entire professional team to make the process work.
We should encourage non-adversarial collaboration to achieve common good: reduced medical errors resulting in lives saved; elimination of defensive medicine; and reduced settlement amounts, litigation, and malpractice premiums.
The collaborative process can improve the medical malpractice field. Imagine the positive effect on other civil practice fields. Please consider how the collaborative process can improve outcomes for your clients and your practice.