Shared Decision Making and Role Clarification Potentials in Medicine (4/28/08)
Jerry Green
Decision making patterns are studied according to four models that distinguish shared decisionmaking from informed consent. Principles of collaborative planning for varying decisionmaking according to the kinds of decisions and the values and preferences of patients and physicians are defined and discussed. The values and risks of allocating responsibility by express agreement are compared with situations in which assumptions about decisionmaking responsibility may be implied from circumstances or accustomed practice.

Co-Mediation by Doctors and Lawyers Begun for Med Mal Mediations (4/07/08)
Keith Seat

A pilot project to pair up doctors and lawyers as co-mediators in an effort to resolve medical malpractice claims has begun at a Philadelphia suburban hospital. The productivity and healing potential of mediation is being emphasized over the possible monetary savings, as the program tries to reach better outcomes for the parties. Mediation training has begun for 30 doctors and lawyers to become mediators, which was eye-opening for many doctors who realized for the first time how hard it can be to deal productively with strong emotion and find common ground. Many of the lawyers had previous experience with mediation and are expected to take the lead initially in mediations.

Philadelphia Inquirer (March 4, 2008)

Kentucky Legislation Would Require Med Mal Mediation and Shield Apologies (3/05/08)
Keith Seat

Mandatory mediation of all lawsuits involving professional negligence claims against health care providers (defined broadly) would be required by H.B. 8, which was introduced in Kentucky on January 23, 2008. The Kentucky legislation sets forth procedures for the mandatory mediation, including timing, selection of mediators, attendance, location and submission of materials. The mediator is required to submit a report to the applicable court on the outcome of the mediation. In addition, H.B. 8 would prevent apologies for any unanticipated outcomes due to medical treatment from being admitted in any litigation or arbitration as an admission of liability or other admission against interest; however statements of fault which go beyond apology would remain admissible.

Kentucky H.B. 8

Mandatory arbitration agreements unhealthy for patients (2/19/08)
Diane J. Levin

Two different sources — one approvingly, one not — report that a growing number of doctors are asking patients to enter into agreements to arbitrate malpractice claims and waive their right to trial by jury. Both sources link to “Arbitration a growing trend in health care“, a story appearing earlier this month in the Philadelphia Inquirer:

Michael Cohen was handed an arbitration agreement when he visited his longtime primary-care doctor in Bucks County. Cohen said he was not the suing kind, but the thought of being asked to give up his right to sue “stopped me in my tracks.”

He said no, and his doctor saw him anyway.

Then Hedy Cohen, who has had a kidney transplant, was mailed a similar form by a group of kidney specialists she planned to see for the first time. The form from Hypertension-Nephrology Associates in Willow Grove insisted on binding arbitration and said she would have to pay the doctors’ legal fees if she filed a complaint and lost.

Hedy Cohen said no and was told to find another nephrologist.

That was fine with Cohen, a nurse with a master’s degree in health-care administration. “I couldn’t have a relationship with this person because they had already set the tone,” she said. “We’re adversaries before we even know each other.”

You can count me in the camp that considers such agreements a really bad idea. Never mind all of the usual arguments against mandatory arbitration agreements — they go without saying. The chief problem I see is the message it conveys — it says plainly, “I care more about my own self-interest than I do about the quality of my relationship with my patients.” What impact does that have on a patient’s trust? What does it say about the physician’s priorities? His or her sense of duty to that patient? What does it convey about that physician’s commitment to providing good patient care — what is at bottom good customer service? It would tell me as a patient all I need to know — to seek medical care somewhere else.

What if instead a physician asked a patient to enter into a very different kind of understanding? An understanding premised on trust, mutual respect, and a willingness to communicate?

It’s not so far-fetched. Listen to “Medical Apologies“, which aired recently on Radio Boston. It describes what happens when health care professionals actually talk to patients when medical procedures go wrong. It means fewer lawsuits, not more, when doctors apologize to patients for medical errors.  And it represents a healthier direction for the health care field and for patients than the mandatory arbitration trend.

DIY Dispute Resolution: Accountability, Apology, Forgiveness and Reconciliation (1/28/08)
Victoria Pynchon

When I was mediating the resolution of litigation on my local court-annexed ADR panel, I used to help attorneys, their insurance adjusters and physician clients resolve medical malpractice cases.  

Some of my most profound human interactions occurred in these mediations.  One surgeon said to me, with burning passion in his gaze, "you do not understand.  The operating room is my church."  

Another told me he could not consent to the settlement of a lawsuit because the sum the carrier was offering "would mean that I killed my patient."

Though I do not mediate malpractice cases anymore, I have been given a taste of the trauma that physicians experience when they are sued for malpractice.

What Does This Have to Do with Do It Yourself Dispute Resolution? 

Research on the reasons patients sue their doctors suggest that malpractice litigation could be avoided if:  (1)  the patient understood the reason for an unexpectably bad result; and, (2) the physician were able to express to the patient responsibility for the outcome. See e.g. this Lancet study reporting that patients expressed the following reasons for suing their physicians:

[1] concern with standards of care--both patients and relatives wanted to prevent similar incidents in the future;

[2] the need for an explanation--to know how the injury happened and why; compensation--for actual losses, pain and suffering or to provide care in the future for an injured person; 

[3] accountability--a belief that the staff or organisation should have to account for their actions; [and]

[4] [p]atients taking legal action wanted greater honesty, an appreciation of the severity of the trauma they had suffered, and assurances that lessons had been learnt from their experiences. 

Which Brings Us to Transplant Surgeon Pauline Chen's Book Final Exam

Chen tells us that surgeons, who expect themselves and their colleagues to be infallible, have ritualized their response to error in Morbidity and Mortality -- M&M -- conferences.  She cites sociologist Charles Bosk as first recognizing that M&M conferences

were a special ritual '"for witnessing [errors], resolving the confusion they create, and incorporating them into the group's history and the individuals biography."  And this ritual function [is] so important that even 'those accustomed to letting others cool their heels" cleared all other obligations in order to attend M and M.

                                     *                       *                      *

M and M, our professional ritual centered on death, attempts to heal the rents in our professional fabric caused by patient deaths.  There are few other opportunities for surgeons to discuss death.  We may mention it in passing, but we steadfastly reserve discussion for the conference, which will give us, as a group, ritual absolution.  M and M requires a public accounting of loss and, in so doing, reconstructs the death into an event that affirms a core value of our professional identity:  the need to be infallible in a highly variable world.  In this way, M and M is like death rituals in other cultures; it seeks to transform death's loss into an affirmative experience.  

According to Chen, this ritual of accountability also helps physicians deny their human fallibility, which may prevent them from taking the responsibility assumed in an M and M conference out into their patients' lives.  Chen continues:

By defining death only as the result of errors, we erase the face of our patients and insert our own fiercely optimistic version of immortality.  While admirable in some respects, this paradigm also denies our essential humanness.  When we refuse to accept our own fallibility, we deny ourselves grief.  In the end, then, M and M may prevent us from reaching what we so desperately want to achieve:  the very best care for our patients.

Fallibility,  Accountability and Apology

I have never been responsible for saving, or potentially losing, a human life.  I have only been responsible for other people's money.  And yet Pauline Chen's observations on fallibility strike a deep chord in me as a professional.  If we make a mistake, people get hurt.  And it is harder to accept responsibility for the mistakes that cause others harm than it is to accept just about any other disappointment in one's performance.  It goes not simply to our "core values" as professionals, but to the very center of our professional and individual identity.  

Some of us -- all of us under certain conditions -- will do almost anything to avoid admitting fault. 

Which Takes Us to Brian Cox's Book Faith-Based Reconciliation

First let me say that I experience the same cognitive dissonance reading this book as I experienced taking Professor Cox's Faith-Based International Diplomacy class at Pepperdine Law School.  The necessary wisdom contained here, however, makes me simply translate 'faith' and god (yes, I am, at best, an agnostic) into humanism and other people.

That said, here is Canon Cox's step-by-step prescription for accountability, forgiveness and reconciliation:

• Acknowledgment of moral culpability:  "I was wrong to have said or done . . . "  This demonstrates moral character.
• Acknowledgment of the offense or wrongdoing as specifically as possible:  "This is what I did . . . "  The more specific you are in your apology, the more likely that you will receive a positive response.
• Acknowledgment of awareness of the impact of your behavior:  "This is how I understand that it affected you . . . "  This demonstrates empathy or compassion.
• Expression of sorrow or regret at having caused offense:  "I feel sadness that I did this to you . . . "  This demonstrates caring.
• Acknowledgment that there is no adequate or true justification for your behavior:  "There is no excuse for my actions that caused you pain . . ."  This demonstrates sincere . . . sorrow for your actions.
• Explanation of what you will do to make restitution and/or alter your behavior in the future.
• Acknowledgment that you are prepared to accept the consequences of your actions.  Avoiding consequences creates the impression that you are attempting to avoid responsibility for your actions and that your apology is insincere.
• Plea for forgiveness:  "Will you forgive me?"  This is the signal that you have done all you can and that the response has now been shifted to the other person.

Are there potential legal consequences to so open an acknowledgment of error and the adverse consequences it has caused.  Yes there are and we will address them in the next post.

Let me say this, however.  I firmly believe (and I believe the research will support me in this) that apology is far more likely to avoid litigation than it is to trigger it.  In any event, living an authentic, robust life in community requires this.  It is a small act of courage.  Imagine what you would do if your life were at stake and so much more courage were required of you.  Exercise the small acts of bravery now so that you will be prepared to face the much larger ones that may be required of you some day.

Mandatory Med Mal Mediation Approved for Illinois County (11/14/07)
Keith Seat

Mandatory mediation of all medical malpractice cases was approved for Madison County by the Illinois Supreme Court, establishing the first rule of its kind in Illinois. The new rule is also considered unique by allowing parties to chose between lawyers and judges to mediate the case, although a judge trained in mediation will be assigned at no cost to the parties unless all parties agree on an alternate mediator who they will compensate. All mediators are required by the rule to file a report with the court stating whether the parties mediated in “good faith.” Mediations must be completed within 90 days after the depositions of all plaintiffs and defendants.

The Madison-St. Clair Record (September 26, 2007)

Putting "Public" Back in Public Health Work (11/12/07)
Don Greenstein, Doug Thompson
Experts say chances of a deadly worldwide outbreak of pandemic flu are increasing. In order to involve the public in developing plans for how the government would react to such an outbreak, the CDC held four public meetings to hear public views about possible community control measures that could limit the outbreak. This report outlines and evaluates this award-winning project, which sought to put the "public" in public health by effectively allowing people to participate in policy development.

Apologies can improve the health of hospital-patient relations (10/15/07)
Diane J. Levin
All Things Considered, a National Public Radio news magazine, recently aired a program on the benefits for both patients and the medical profession when hospitals find better ways to respond to medical errors and unsatisfactory patient outcomes in "Practice of Hospital Apologies Is Gaining Ground".

What stands out is the reaction of one patient interviewed for the program whose doctors failed to make an early cancer diagnosis. Instead of denying responsibility for the error, the hospital's attorney arranged a meeting with the patient, the patient's husband and her attorney, and the two oncologists who treated her. The patient had this to say about the experience:

My husband and I both left that meeting feeling like a million bucks. I was heard that night. That's all I really wanted. I wanted them to know that this was not right, what happened to me.

The hospital's attorney, also interviewed for the story, emphasized how important these conversations are for everyone involved. Looking back on a case early in his career in which a jury returned a defense verdict for his client, he remembered,

After the jury was dismissed, the lady who sued my client leaned across the podium and said, 'If you had only told me everything I heard in this courtroom, I would never have sued you in the first place.' That really left a mark on me, and for 20 years I wondered why we never talk to each other.

The benefits of these programs are numerous. Not only does everyone save money on legal costs, and not only do both sides learn important information from each other during the course of the conversation, but this willingness to be open encourages medical staff to come forward to report errors, which means greater safety for patients.

Listen to the story here--it's well worth the six minutes it takes to hear those involved describe just how invaluable talking to each other can be.

(Photo credit: Wolf Friedmann.)

The Transforming Wisdom of Beyond Reason: Using Emotions As You Negotiate - Leading to An Attitude of Gratitude (10/15/07)
Charlie Hogge
The very fine book review by Jan Frankel Schau, posted here on Mediate.com inspired me to share the following. I wrote these reflections on my Italian hospital experience on May 6, 2006 - the day after arriving home. The subject of these reflections: An Attitude of Gratitude.   1 Comment

CaliforniaSpeaks: Working Together for Better Healthcare (7/30/07)
Susan Dupre
Facilitators are needed for California's state-wide health care conversation. Thousands of Californians will come together on Saturday, August 11th, to evaluate proposals for reforming California’s health care system and send a message to state leaders about their priorities. Interactive television will link together public meetings in eight cities to create a true state-wide conversation.

Conflict Transformation - A Nurse Managers Experience Dealing With Confrontational Situations (7/27/07)
Lisa Grant
People are not always ready to deal with situations involving conflict that arise at home and in the worklace.The following article reflects on the experiences of a young inexperienced nurse dealing with confrontational situations. It follows the journey travelled in order to gain confidence and skill in conflict transformation.   2 Comments

Mandatory Med Mal Mediation Expanding in Rhode Island (7/25/07)
Keith Seat

A successful pilot mediation program for medical malpractice cases in Rhode Island Superior Court is being expanded statewide and will be permanent. The program, which requires all med mal cases to go to mediation prior to trial, achieved settlement in about half its cases. Counsel for both plaintiffs and defendants support the program, especially in larger cases. In addition to saving time and money, successful mediations spare families from reliving their anguish at trial. The program also has made a difference in delays that have plagued Rhode Island, where med mal cases on average take over six years, and has reduced the need for legislative reform that many believe would harm those with legitimate claims.

Providence Business News (June 25, 2007)

Private Dialogues on Public Issues (7/16/07)
Jan Frankel Schau

While on vacation last week, I saw the Michael Moore's brilliant new documentary, "SIcko". We've all been there: in the place where we've hesitated about getting needed health care until we can figure out what's covered by insurance. So why isn't America discussing this issue? I've decided it's time for mediators to take a crack at it. I've invited an elite corps of commercial and community mediators together in the Fall to begin to promote public dialogue on the health care system in America.
I intend to invite elected officials, insurance and hospital owners or at least managers and free clinic directors with a hope that this will begin a respectful process of discussing the issues, better understanding the various perspectives and lending our skill set to the fray with a goal towards initiating needed change. Why do movie producers get to have all of the fun? On another note, over my holiday I read my favorite book of all time, "A Thousand Splended Suns", by Khaled Hosseini. As agitated as I was after watching "SIcko", Hosseini's book made me feel darn lucky to have been born in America, raised my children in a land that valued personal freedom, and generally followed a code of law with which I could abide. If you have a summer vacation planned, I highly recommend you read it. It's haunting, but ultimately gratifying and beautifully written. The story takes place in more or less modern day Afghanistan, beginning in the 1970's. It is the story of two women's lives, how they intertwine and are affected by the political events over the past thirty years. It is written by the author of "The KiteRunner", which was also a fabulous read. Hosseini was born in Kabul, but has been in the United States since 1980. Bravo for bringing these stories to life and bringing these hard topics to American readers!

Allotting Resources for HIV Prevention (12/12/05)
Policy Consensus Institute
When the Centers for Disease Control (CDC) announced it would distribute money to the states for HIV prevention programs, it included a pivotal condition: To a considerable degree, the amount of money a state received would depend on how well the state engaged all concerned parties in agreeing on the state’s HIV prevention plan.

Dear Healthcare Leader (10/03/04)
Debra Gerardi
I am writing to request your help with a large project aimed at improving quality and safety within your organization. Your role in this endeavor is essential and the key criterion for success is your solid commitment to begin a new dialogue among your colleagues. The communities you serve are depending on you to take on the task of changing the culture in which healthcare services are delivered. I invite you to envision how to create healthy environments that enable patients and professionals to work together- to develop creative approaches which reduce adversarial interactions and promote collaborative care. It is time to return hope to healthcare.

Elder Mediation: New Role In Healthcare (9/20/04)
Patricia Ruflin, Patricia Bertschler
As nurses, professional caregivers, and mediators we can all regale ourselves with accounts of family conflicts that seem to reach new heights as they unfold before us. We are amazed by what people say, at their behaviors in front of strangers, and to what levels they will go to hold fast to fiercely held beliefs and positions.

Bioethical Mediation: Peacemaking and End of Life Conflicts (8/02/04)
Douglas Noll
Bioethical mediation provides a respectful way for resolving difficult medical care conflicts. It honors the interests of all of the stakeholders and seeks peace through a caring, understanding process. Bioethics mediation, although new, is another example of how positive peacemaking is finding its way into our culture, our institutions, and our daily lives.   1 Comment

The Internal Neutral: Why Doesn't Your Hospital Have One? (6/11/04)
Carole Houk
The National Naval Medical Center (NNMC) in Bethesda, Maryland is the first acute health care institution in the nation to offer a full-time internal neutral for the resolution of health care issues. The data obtained thus far indicates that the presence of a well-trained and properly positioned internal neutral can be a highly cost-effective and efficient resource for resolving patient-provider conflicts.   8 Comments

Applying Pre-Litigation Mediation to Internal Disputes in Pharmaceutical Construction Teams (3/22/04)
Leo Hura
Mediation is commonly utilized to settle construction disputes. However, despite the need and benefits, mediation is not currently utilized by corporate pharmaceutical teams in internal project disputes. The author views this as an opportunity for mediators to explore. The essay uses a case study from a hypothetical pharmaceutical capital project to illustrate how mediation can be utilized by corporations in avoiding capital project failures due to unresolved internal disputes. By understanding how corporate teams work and the tailoring of the mediation process mediators can provide a valuable service to their corporate clients in an area mediators already understand.   4 Comments

I Found A Lump, Now What? A Creative Way to Resolve Conflict With Breast Cancer Patients (1/26/04)
Pamela K. Embury
This project was developed to focus on developing a creative response to conflict for women diagnosed with breast cancer. My own experience suggested that conflict was inherent in the institutional processes and third party roles that surround this diagnosis. Since my own diagnosis in April 2002 at the age of 38, I have become consumed by research for the resolution of conflict surrounding the diagnosis of breast cancer and my own experiences have been a catalyst for this project.

High Conflict & Asperger’s Syndrome (1/19/04)
Sheila K. Jennings
Where there is lengthy conflict related to separation, & where one party has Asperger’s Syndrome, we submit that the source of post-separation conflict is likely to be found predominantly in the problems generated by the neurological disability. This view is a radical departure from the literature on high conflict separation which assumes that both parties are the source of post separation conflict.   251 Comments

The Tipping Point: Managing Conflict to Create Culture Change in Health Care (1/05/04)
Debra Gerardi
In his book, The Tipping Point, Malcolm Gladwell identifies the factors that have proven effective in creating a "social epidemic." The spread of ideas throughout society is analogized to the spread of a virus. As the awareness increases, the development of the field of health care conflict management will spread like an epidemic throughout the world. And those who are "infected" with the virus, will find themselves a part of an exciting and humanizing chapter in the historical evolution of the culture of health care.

Conflict Management Training for Health Care Professionals (11/24/03)
Debra Gerardi
Regardless of the role of the professional; physician, nurse, administrator, manager, social worker or technician, as a group, health care professionals face more conflict and greater complexity than any other profession. Despite the challenges of balancing competing interests, philosophies, training backgrounds, the endless quest for adequate resources, and the emotional quality of the work that they do, very few health care professionals have had the opportunity to learn the skills and processes necessary for negotiating their environments.   1 Comment

ADR in Healthcare: The Last Big ADR Frontier? (11/24/03)
Rob Robson, Ginny Morrison
You are probably saying to yourself “What a strange title.” This seems especially true when you consider that dispute resolution and conflict management (DR/CM) practitioners are a fairly flexible, adaptable and imaginative group. Surely there will be lots of new “frontiers” left for us to conquer in the future?

Connecting Neurobiology and Mediation (11/03/03)
Cris Currie
Recent research in neurobiology, as summarized in Synaptic Self: How Our Brains Become Who We Are by Joseph LeDoux, has some very important implications for mediation.