[IMPROVEDX] death certificates-litigation-fear of litigation

robert bell rmsbell200 at YAHOO.COM
Wed May 25 04:18:37 UTC 2016


Phil,

Good luck - trusting that you get the grant.

What you intend to do will be a good advance. Someone is doing something!

Do you have any information that fear of litigation is a big hindrance to progress in medicine. Good data for example not being collected, and fear of appointing a Safety Officer in private HCPs offices because the procedures will collect safety data that could be discovered in a future legal case, Etc., etc.

And if so, how to handle that fear so that things happen.

Rob Bell
> On May 24, 2016, at 8:56 PM, Phillip Benton, MD, JD <pgbentonmd at aol.com> wrote:
> 
> Both Bob's (Bell & Latino) and others:
> 
> My 30 year legal experience is that lawyers representing plaintiffs feel the economic pressures described in Joanna Shepard Bailey's "Justice in Crisis"  (http://ssrn.com/abstract=2147915). For the few (6%) of injured patients that can get representation, their lawyers are concerned with the great transactional costs in both money ($50-100K) and time (3-5 years) per case. They are also taught in law school that their duty is to that client first, and to society second. Only if one's family has suffered a medical error will the attorney become 'activist' enough to try to leverage the error involved to work changes in the system. Notably, the follow-up working to prevent future error is not something they are paid for; once that case closes, they go on to the next case. This lack of concern for future error is why plaintiffs lawyers routinely allow defense lawyer to draft and file 'confidentiality' motions, since they will no longer be concerned with facts of a closed case.
> 
> I am hoping to work from within the AAJ (American Association for Justice) to generate a Special Interest Group (SIG) to prevent future medical error by leveraging the facts of a proper case to demand RCA identified changes as part of a mediated settlement, and to insist that confidentiality agreements routinely have a standard exclusion when the (de-identified) info can be used by organized medicine to promote quality care and patient safety. The liability insurers claim that if other patients or plaintiffs’ lawyers hear that they have paid big money, their company might be looked upon as an easy target. I am convinced that I can help to change this culture with the Veritas Lex Medicus project if the grant is approved.  
> 
> Phil Benton, Atlanta
> 
> 
> 
> 
> -----Original Message-----
> From: robert bell <0000000296e45ec4-dmarc-request at LIST.IMPROVEDIAGNOSIS.ORG>
> To: IMPROVEDX <IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG>
> Sent: Tue, May 24, 2016 10:02 pm
> Subject: Re: [IMPROVEDX] [IMPROVEDX] death certificates-litigation-fear of litigation
> 
> Thanks Bob,
> 
> This is so important but what I think is more important is having a strategy to change the litigation scene so that we do not perpetuate medical error and that there is an eventual  compromise between lawyers and HCPs so that patients do not die or are injured in the first place. 
> 
> This is the important sentence in Phill Benton’s post. —- the traditional ‘deny and defend’ with ‘confidential’ resolutions perpetuates medical error instead of studying it to diminish future error.
> 
> I plead for triaging our problems and dealing with the hard things first. If we do not do this we cannot ever hope to succeed. This requires immense courage and leadership.
> 
> Rob Bell, MD
> 
> On May 24, 2016, at 3:34 AM, Bob Latino <blatino at RELIABILITY.COM <mailto:blatino at RELIABILITY.COM>> wrote:
> 
> FYI Related to This Thread.
>  
> "Two articles describing the "Michigan Model"  at the University of Michigan Health System (Boothman RD et al (2009) JHlth & Life Sc Vol 2, #2 125-159; and Boothman RD et al (2012) JFrontiers Hlth Serv Mgmt, 28:3, 15-28) provide all the data needed to confirm that "Early and Full Disclosure with Just Offers for Compensation, is not only the right thing to do morally but is also a sound business decision, since it decreases numbers of claims and total payouts. Add to that the human costs of protracted litigation wrought by the almost universal "deny and defend" approach to resolving medical error disputes. Most importantly, the traditional 'deny and defend' with 'confidential' resolutions perpetuates medical error instead of studying it to diminish future error.
> 
> Phil Benton, MD, JD
> Atlanta Medical Center
> Adjunct, Emory Law School"
>  
>  
>  
> Robert J. Latino, CEO
> Reliability Center, Inc.
> 1.800.457.0645
> blatino at reliability.com <mailto:blatino at reliability.com>
> www.reliability.com <http://www.reliability.com/>
>  
> From: robert bell [mailto:0000000296e45ec4-dmarc-request at LIST.IMPROVEDIAGNOSIS.ORG <mailto:0000000296e45ec4-dmarc-request at LIST.IMPROVEDIAGNOSIS.ORG>] 
> Sent: Sunday, May 22, 2016 5:17 PM
> To: IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG <mailto:IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG>
> Subject: Re: [IMPROVEDX] [IMPROVEDX] death certificates-litigation
>  
> Thanks Joe,
>  
> My concern has been that a fear of litigation, or a fear of being deposed, or information being discovered stops much transparency. That fear may not be real but it exists and stops so much. Safety data is not collected or even inaccurately collected because of litigation repercussions.
>  
> Surely Hospitals/HCPs could negotiate a deal with the legislatures and lawyers that would provide compensation for the patients involved, but HCPs receiving some tort reform consideration if the errors in a particular hospital remained low.  Yes, some difficulties, but surely something could be worked out to focus on the problem, and in turn save lives and injury.
>  
> Start in one state!
>  
> Robert Bell, MD.
>  
>  
> On May 6, 2016, at 8:41 AM, Joe Graedon <jgraedon at gmail.com <mailto:jgraedon at gmail.com>> wrote:
>  
> Robert,
>  
> We have heard for years (decades) that litigation is the problem. Mean, nasty, aggressive plaintiffs lawyers are what prevents transparency. If we could only institute tort reform and reduce the risk of litigation and large settlements, then everyone could live happily ever after and report errors and the system would function superbly well.
>  
> Sorry, I hate to play devil’s advocate on this, but where is the evidence that would make any difference? A lot of people who are severely injured as a result of medical mistakes are left in limbo when tort reform prevents legal recourse.
>  
> If I am not mistaken, Tim McDonald, MD, JD, demonstrated that the Seven Pillars program he initiated at the University of Illinois demonstrated that transparency works and does not result in outrageous settlements. If anything, it saves money.
>  
> Here is a link to our interview with him and an overview of his research:
>  
> http://www.peoplespharmacy.com/2015/09/23/show-1007-coming-clean-on-medical-mistakes/ <http://www.peoplespharmacy.com/2015/09/23/show-1007-coming-clean-on-medical-mistakes/>
>  
> Seven Pillars of Transparency:
> "Despite the fear, some health care institutions have found that transparency with respect to errors actually reduces lawsuits and generates good will. Learn about the Seven Pillars approach to disclosure and remediation utilized successfully at the University of Illinois. Should it be adopted elsewhere?”
> 
> Joe
>  
>  
>  
> On May 6, 2016, at 1:05 PM, Robert Bell <0000000296e45ec4-dmarc-request at LIST.IMPROVEDIAGNOSIS.ORG <mailto:0000000296e45ec4-dmarc-request at LIST.IMPROVEDIAGNOSIS.ORG>> wrote:
>  
> Yskert, a real step forward. We need solutions.
>  
> Your thoughts, where appropriate, should also be extended to every private doctor''s office and all other medical facilities outside of hospitals. Although it could be harder to do.
>  
> However, I have been recommending for years a system of having at least one person assigned as a "Safety Officer" in HCPs offices with periodic discussion and remedies of ALL the negative events collected. Call back failures, appointment problems, lost lab work, 911 calling, etc., etc.
>  
> But to my knowledge I have had no offices that have recently introduced such an arrangement. But I may not have heard of them. I have heard by hearsay that a very, very small number of larger offices have such a system in practice, but that was some years ago. Not recently.
>  
> The lack of interest I think is because no one wants anything to do with errors/mistakes, or any record keeping of these in case they are discoverable in future law cases. Cost may be a minor problem.
>  
> And this presumably is the same reluctance that hospitals have to collecting decent error data.
>  
> So this gets back to my point in this thread of can we achieve ANYTHING significant without first fixing the litigation issues?
>  
> Without this are we just perpetually committed to talking, talking, talking but doing nothing very concrete to remedy the injury and loss of life!
>  
> Rob Bell, MD
> 
> Sent from my iPad
> 
> On May 6, 2016, at 2:33, "Kodolitsch von, Yskert" <kodolitsch at UKE.DE <mailto:kodolitsch at UKE.DE>> wrote:
> 
> Dear Peter,
>  
> your comment is brilliant. Quite humanistic, I would say.
> The literature on hospital management seems quite uniform in suggesting a command and control model of leadership instead (see for example all the strange articles that currently appear in the N Engl J Med; e.g. http://www.nejm.org/doi/full/10.1056/NEJMp1502312 <http://www.nejm.org/doi/full/10.1056/NEJMp1502312>, or http://www.nejm.org/doi/full/10.1056/NEJMp1502419 <http://www.nejm.org/doi/full/10.1056/NEJMp1502419> ) .
> If this goes on, there will be a deadly avalanche of costs for control and external incentives that finally destroys motivated healthcare.  
> Do you know any good literature that substantiates your view in healthcare leadership?
> There has to be an organizational theory framework to ground your views (beyond the usual literature on “team motivation”).
>  
> Best from Hamburg
>  
> Yskert von Kodolitsch
>  
> Von: Elias Peter [mailto:pheski69 at GMAIL.COM <mailto:pheski69 at GMAIL.COM>] 
> Gesendet: Freitag, 6. Mai 2016 01:34
> An: IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG <mailto:IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG>
> Betreff: Re: [IMPROVEDX] death certificates
>  
> I didn’t say reward and punishment won’t work. I said (or I tried to say) that this is too simple a phrasing to be either accurate or actionable.
>  
> I think there is never a single simple thing that will solve a complex and multifactorial problem. But here are some ideas I would try if I were CEO of my institution and had a magic wand:
>  
> Essentially NO rewards to individuals based on individual metrics. (See Deming and the Red Bead Game for why. Here is a link to a talk where Berwick does a shortened but effective version:   )
> Set up the rewards (salary, bonuses, parking spaces, extra time off) so they are tied to outcomes across the institution, not by individuals. If complication X goes down by Y percent, EVERYONE (janitor to CEO) gets a piece of the reward.
> At least half of the items measured and tracked should be selected by a broad and open process rather than imposed. 
> Largely eliminate performance evaluations of individuals and replace them with performance evaluations of processes and teams.
> Publish the institution’s statistics. 
> Set up a process where, after an error is found (with or without actual harm) the involved individuals (including patients) are told what happened, the results of the root cause analysis, and what specific things are changing to prevent a recurrence. 
> When someone makes a mistake and harm occurs, provide counseling and support. (I have not fully healed from some mistakes I made 3 decades ago.)
> Make self-examination of processes and small tests of change for improvement a standard part of everyone’s job description, with budgeted time and support infrastructure.
> Make self-examination of errors and harm a standard part of everyone’s job description, with budgeted time and support infrastructure. (E.g., a weekly meeting of clinicians and office staff to talk about things that didn’t work well and how to improve them.)
> When something bad happens (from wrong side amputation to failure to notify a patient of a normal lab result) and is reported by someone involved who suggests an improvement, a thank-you note wet-signed by the CEO and included in the personnel file.
> Etc.
>  
> The overwhelming majority of people in health care are motivated (driven) by a desire to do the right thing for the right reason in the right time frame. Leverage this. Build on this commitment and the accompanying internal motivation. Avoid turning internal motivation into a materialistic economy, which is much easier to game and less likely to work.
>  
> All my suggestions are intended to make success something measured at the highest team level possible, remove or blunt a punitive mind set, make sure metrics happen at a level where there is at least a chance that they are meaningful (they are not meaningful at the individual clinician level), and focus all the talk and energy on making things better.
>  
> Peter
>  
>  
>  
>  
> On 2016.05.05, at 6:22 PM, Joe's New Gmail <jgraedon at GMAIL.COM <mailto:jgraedon at GMAIL.COM>> wrote:
>  
> So Peter...how would you go about changing behavior?
>  
> If reward and punishment won't work, what would improve the reporting process? 
>  
> Joe
> 
> On May 5, 2016, at 5:04 PM, Elias Peter <pheski69 at GMAIL.COM <mailto:pheski69 at GMAIL.COM>> wrote:
> 
> I love blunt. I’ll also be blunt. 
>  
> Without disagreeing, I would add that it is important to remember that ‘reward’ is a simple two syllable word that codes for an incredibly array of possibilities. Big, small, intrinsic, extrinsic, immediate, delayed, proportional, disproportional; these all impact the effectiveness (or counter-productivity) of rewards.
>  
> Pilots, to my knowledge, are not rewarded *directly* for reporting errors, problems, incidents. They are ‘encouraged’ by a combination of culture, support when they do so, seeing positive results when they do so, and the knowledge that their fate is the same as the fate of the airplane.
>  
> Let’s not think that we can create a reward system for reporting errors and thereby change the culture.
>  
> Peter
>  
> On 2016.05.05, at 4:35 PM, Joe Graedon <jgraedon at GMAIL.COM <mailto:jgraedon at GMAIL.COM>> wrote:
>  
> I am a firm believer in the principles of reward and punishment. By that I mean, people, animals, and all sorts of other creatures do what gets them rewards, treats, food, toys, whatever. They also try to avoid the things that cause them distress. 
>  
> Our medical system rarely rewards health care professionals for reporting errors. If anything, physicians are punished by their employers, insurance companies and yes, malpractice lawyers, for being transparent about mistakes, especially those that lead to death. 
>  
> I only imagine we will see change if we come up with strategies to reward physicians, nurses and all others involved in health care to share mistakes the way pilots are encouraged to share close call information. We need billions of dollars in federal money (think the National Institute of Error Prevention-NIEP) to come up with solutions to diagnostic errors and treatment mistakes. And we need to punish institutions that hide their mistakes. 
>  
> Reward the behavior we wish to encourage. Punish the behavior we wish to disappear. 
>  
> Sorry to be so blunt.
>  
> Joe
>  
>  
> On May 5, 2016, at 3:57 PM, Phillip Benton, MD, JD <0000000697ec7b18-dmarc-request at LIST.IMPROVEDIAGNOSIS.ORG <mailto:0000000697ec7b18-dmarc-request at LIST.IMPROVEDIAGNOSIS.ORG>> wrote:
>  
> Liz,
> 
> Is such review not essentially what Lucien Leape and colleagues did in the Harvard Medical Practice study (N Engl J Med. <http://www.ncbi.nlm.nih.gov/pubmed/?term=Leape+L%2C+Brennan+T%2C+Laird+N%2C+et+al.+The+nature+of+adverse+events+in+hospitalized> 1991 Feb 7;324(6):377-84) 25 years ago, referenced in the IOM  report To Err Is Human (1999)? The several reviews that followed were systematically re-reviewed  by John James just 3 years ago (J Patient Saf. <http://www.ncbi.nlm.nih.gov/pubmed/?term=James+JT%2C+Journal+of+Patient+safety+2013> 2013Sep;9(3):122-8.). 
> 
> Can we deny the problem?  NO.  Can we arrive at a consensus definition (wth qualifiers) and ascribe an ICD code (with modifiers)?  Most probably YES if anyone will take it on.
> 
> Phil Benton, MD, JD
> Atlanta, GA
> 
> -----Original Message-----
> From: Elizabeth Regan <lizregan53 at GMAIL.COM <mailto:lizregan53 at GMAIL.COM>>
> To: IMPROVEDX <IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG <mailto:IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG>>
> Sent: Thu, May 5, 2016 2:24 pm
> Subject: [IMPROVEDX] death certificates
> 
> I would not favor adding medical error to death certificates for a variety of reasons but the chief one being that it is so hard to define and while is obvious to those who want to see improvement, it is less obvious to those who want to avoid the concept. At the point where there is broader consensus on how to identify and reduce medical error (especially diagnostic error) I think it will be easier to record and track the event.
> 
> I believe strongly that it is critical to do that, but we are not there yet.
> 
> I have just completed a project to adjudicate cause of death in nearly a 1000 deaths for a large cohort study. The project involves reviewing both death certificates and medical records. At that level of review I did not see evidence of diagnostic error or other errors. Now that I consider the project in light of this discussion - I guess that is interesting.
> 
> I don’t interpret this to mean that none of those subjects experienced error, but rather to reflect on the invisibility of error in our record keeping.
> 
> I wonder about the feasibility of re-reviewing the data with a more critical eye and finding more. However, I don’t really think I would find much.
> 
> Liz Regan
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> Moderator:David Meyers, Board Member, Society for Improving Diagnosis in Medicine
> 
> To learn more about SIDM visit:
> http://www.improvediagnosis.org/ <http://www.improvediagnosis.org/>
>  
>  
> Robert M. Bell, M.D., Ph.C.
> P.O. Box 3668
> West Sedona, AZ  86340-3668
> USA
> Tel: Fax: 928 203-4517
>  
>  
>  
>  
> 
> Address messages to: IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG <mailto:IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG>
> 
> To unsubscribe from IMPROVEDX: click the following link:
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> 
> Moderator:David Meyers, Board Member, Society for Improving Diagnosis in Medicine
> 
> To learn more about SIDM visit:
> http://www.improvediagnosis.org/ <http://www.improvediagnosis.org/>
> 
> Address messages to: IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG <mailto:IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG>
> 
> To unsubscribe from IMPROVEDX: click the following link:
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> 
> or send email to: IMPROVEDX-SIGNOFF-REQUEST at LIST.IMPROVEDIAGNOSIS.ORG <mailto:IMPROVEDX-SIGNOFF-REQUEST at LIST.IMPROVEDIAGNOSIS.ORG>
> 
> Visit the searchable archives or adjust your subscription at: http://list.improvediagnosis.org/scripts/wa-IMPDIAG.exe?INDEX <http://list.improvediagnosis.org/scripts/wa-IMPDIAG.exe?INDEX>
> 
> 
> Moderator:David Meyers, Board Member, Society for Improving Diagnosis in Medicine
> 
> To learn more about SIDM visit:
> http://www.improvediagnosis.org/ <http://www.improvediagnosis.org/>
> Robert M. Bell, M.D., Ph.C.
> P.O. Box 3668
> West Sedona, AZ  86340-3668
> USA
> Tel: Fax: 928 203-4517
> 
> 
> 
> 
> 
> Address messages to: IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG <mailto:IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG>
> 
> To unsubscribe from IMPROVEDX: click the following link:
> http://list.improvediagnosis.org/scripts/wa-IMPDIAG.exe?SUBED1=IMPROVEDX&A=1 <http://list.improvediagnosis.org/scripts/wa-IMPDIAG.exe?SUBED1=IMPROVEDX&A=1>
> 
> or send email to: IMPROVEDX-SIGNOFF-REQUEST at LIST.IMPROVEDIAGNOSIS.ORG <mailto:REQUEST at LIST.IMPROVEDIAGNOSIS.ORG>
> 
> Visit the searchable archives or adjust your subscription at: http://list.improvediagnosis.org/scripts/wa-IMPDIAG.exe?INDEX <http://list.improvediagnosis.org/scripts/wa-IMPDIAG.exe?INDEX>
> 
> 
> Moderator:David Meyers, Board Member, Society for Improving Diagnosis in Medicine
> 
> To learn more about SIDM visit:
> http://www.improvediagnosis.org/ <http://www.improvediagnosis.org/>
> 

Robert M. Bell, M.D., Ph.C.
P.O. Box 3668
West Sedona, AZ  86340-3668
USA
Tel: Fax: 928 203-4517









Moderator: David Meyers, Board Member, Society to Improve Diagnosis in Medicine


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