Bringing Dialogue and Collaborative Law to Health

CareHealth Care Professionals and Attorneys Working

Together to Improve Patient Safety

Kathleen Clark, PhD, JD, MAM

KathleenClark@ServantLawyership.com

www.ServantLawyership.com

Pleasant Hill, California

A Touch of Inspiration

“Whatever you can do or dream you can, begin it.”

- Goethe

AGENDA

10AM: Welcome and brief introduction

10:10AM Introductions/interests/work of participants

10:30AM What is Collaborative Law? How does it fit into the world of

healthcare/medicine? How/when can lawyers assist/counsel in the medical process prior to medical

AGENDA Cont’d

error/collaborative practice; Use of language; Informed consent/informed patient choice; Disclosure: assist/counsel in this

conversation. 11AM Questions and Answers; Ideas and suggestions from participants;

Staying Connected 11:30AM Adjourn

An Opportunity for Healing

• Collaborative law consists of a series of meetings among the injured patient/family, the health care providers, and the attorneys for both in which the parties listen to each other, ask questions, get answers, discuss patient safety, enhance trust, and work towards a resolution unique to the facts of the case and not limited by legal remedies.

The Collaborative Law Process

• A structured, voluntary, non-adversarial, respectful process in which all parties make their own decisions.

• A process for healing for ALL the parties through respectful listening, answering questions, supporting each other, offering apology, and offering compensation, when appropriate, with counsel from attorneys.

The Collaborative Law Process

• Can be set in motion by any party immediately upon discovery of a medical error or adverse event, and

• Provides opportunities for learning and growth within the non-adversarial process that supports both the healthcare culture of healing and the patient/physician relationship.

Participation Agreement• Collaborative law requires the parties and

their attorneys to sign a Participation Agreement, which provides for: – full disclosure – confidentiality – retained experts – outside legal opinion – withdrawal of collaborative counsel– Full information exchange available to

attorneys AND parties

Collaborative Commitment

• The withdrawal provision is often referred to as the collaborative commitment, intended to ensure that the attorneys are fully committed to the process. It keeps the focus on interest-based negotiations and acts as additional protection for the confidentiality of the process.

Litigation vs. Collaborative Law• Litigation

– no opportunity for dialogue

– unable to question– no explanations

provided– adversarial from

beginning– not open to the other

side– interested in monetary

settlement only

• Collaborative Law access to a collaborative

attorney confidentiality control over the process early opportunity to offer

explanation, apology and answer questions

early opportunity to strengthen the relationship with one’s patient

atmosphere of no blame opportunity to

collaborate on patient safety issues

cost savings

Collaborative Law

• The Collaborative Continuum involves a safety-conscious culture in health care settings, a culture of dialogue between and among stakeholders in medical error/adverse event situations, and collaborative law in medical error situations to include:– Disclosure– Apology– Confidentiality– Patient Safety Solutions

For Patient/Family• The collaborative law process encourages

early discussion with patients and families in the dialogue process. – early opportunity for their voices to be heard– to question– to contribute to improved patient safety– to seek resolution and restitution– to heal– to make one’s own decisions

Total transparency, total respect

Summary• Collaborative law maximizes patient safety through:

– A safe, confidential, respectful, supportive structure to address medical errors

– Open communication between patients/families and physicians, nurses, and other health care providers regarding patients’ observations and possible solutions to patient safety issues

– Creation of non-punitive, non-adversarial forums– Protection for future patients and communities– A cultural shift in both law and medicine, moving towards

transparency and trust

Traditional Medical Malpractice Litigation

• Tort law is adversarial by nature; a culture of safety is collaborative. – There is an almost total disconnect

between medical malpractice litigation and patient safety

– Litigation helps very few people – 98% of American families that are hurt by medical error don’t sue. (U.S. Senator Max Baucus, Call To Action: Health Reform, 2009, p. 75, www.finance.senate.gov).

Professional Development• Multidisciplinary professional

development/continuing conversation builds community, trust and understanding

• Components: - Informed Patient Choice

- Use of language – Disclosure conversations– Dialogue and open exchange– Patients and physicians discussing patient

safety issues and solutions

Dialogue is Communication

“Dialogue is communication involving the effort of two or more people to make something in common, i.e. create something new together.”

(David Bohm, quoted in Dialogue: Life and Death of the Organization,)

Dialogue is Conversation

“Everyone came to this dialogue from the fringes, from different perspectives, having had different experiences; now, as we end this session, everyone is moving toward the center.”

(Dialogue Participant, Irwin Kash, MD)

Dialogue is Problem Solving“Not to solve what had been seen as a

problem, but to develop from our new reactions new socially intelligible ways forward, in which the old problems become irrelevant.” (Shotter, 1993)

Dialogue is a step toward building community and healing…

Dialogue Objectives• Explore the use of dialogue to bring all

stakeholders together to develop trust and community and discuss options to traditional medical malpractice litigation.

• Describe the concepts and procedures associated with collaborative law.

• Explain how collaborative law will promote healing and increased patient safety.

Dialogue• Dialogue is the first step in developing

the collaborative relationships necessary to move the collaborative law process into general usage.

• Dialogue does not require people to agree with each other. Instead, it encourages people to participate in a pool of shared meaning that leads to aligned action.

• It is about making a contribution.

Dialogue Process• The dialogue process:

– Builds community– Builds trust– Creates conversational space– Breaks down assumptions– Creates opportunities for shared thinking and new

ideas– Integrates multiple perspectives– Creates the space for understanding and healing

Who are the Stakeholders?– Injured patients– Patient advocates–Health care

providers, including physicians, nurses, technicians, and others

– Attorneys for defendants and plaintiffs

Insurers Risk managers Hospital

administrators Medical ethicists Regulators Judges and other

court personnel

What is Appreciative Inquiry?

• A place to begin dialogue is to use the Appreciative Inquiry approach – a process that focuses on possibilities, not

problems, to discover what works so that we can do more of it. It is inquiry, based on positive questions.

– an appropriate process to use in dialogue involving stakeholders with opposing approaches and thinking - to think together and develop trust

– What we focus on becomes our reality– From silence to disclosure

Appreciative Dialogue• Bring stakeholders together who engaged in

processes similar to collaborative law– Inquire of those not familiar with collaborative

law or other healing processes after medical error what their organizations do to promote healing, transparency, conflict engagement, and honesty.–Ask them to tell and share stories. Based on

those stories, help each other develop building blocks to grow in the direction of healing.

Appreciative Dialogue• If you can’t call on someone who is

using a process that is working, ask the group to share stories of the smallest piece of their work that is effective and build on that.Always keep the focus on what works

Questions For Appreciative Dialogue

• Try a quote, followed by questions, such as:

The New England Journal of Medicine ((356 NEJM 2713-9, June 28, 2007) stated, “A transformation in how the medical professional

communicates with patients about harmful medical errors has begun.”

– Questions:

• Is this accurate in your experience as a health care provider? • Tell a story about it in your experience? • How can we expand on that process? • If you believe that statement is not accurate, why do you think that is?• How does the transformation manifest itself?

Questions for Dialogue, cont.

• What can you do that could bring about change leading to a climate of healing?

• What will it take to move your organization in the direction of healing?

• How do you create the culture and shift the organization to change towards a continuing healing atmosphere?

Communication“Studies show that the most important

factor in people’s decisions to file lawsuits is not negligence, but ineffective communication between patients and providers… The current tort system does not promote open communication to improve patient safety. On the contrary, it jeopardizes patient safety by creating an intimidating liability environment.”

(New England Journal of Medicine, 2006)

Patient Safety • 98,000 deaths in U.S. each year result

from medical error and 90 % of these deaths are the result of failed systems and procedures. (To Err is Human, IOM Report, 1999)

• President Obama and Secretary Clinton (formerly Senators) stated, “We need to shift our response from placing blame on individual providers or health care organizations to developing systems for improving the quality of our patient safety practices.”

Learning

“We need to learn from errors that permeate the system; physicians, nurses, hospitals, licensing boards, regulators, state and federal, and media all can claim a legitimate interest in learning from medical mistakes, add to that the patient who suffered from the error.”

(Wachter, 2004 Internal Bleeding: The Truth Behind America’s Terrifying Epidemic of Medical

Mistakes)

Thoughts In Closing“We can’t do it differently until we see it

differently”We all are working toward the same goal:

Collaboration

Kathleen Clark, PhD, JD, MAMwww.ServantLawyership.com

KathleenClark@servantlawyership.comwww.ServantLawyership.blogspot.com