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A Therapeutic Jurisprudence Perspective on LegalResponses to Medical ErrorEdward A. Dauer aa Dean Emeritus and Professor of Law, University of Denver; Associate, Health CareNegotiation Associates, Lexington, MassachusettsPublished online: 02 Feb 2011.

To cite this article: Edward A. Dauer (2003) A Therapeutic Jurisprudence Perspective on Legal Responses to Medical Error,Journal of Legal Medicine, 24:1, 37-50, DOI: 10.1080/713832126

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The Journal of Legal Medicine, 24:37–50Copyright C© 2003 Taylor & Francis0194-7648/03 $12.00 + .00DOI: 10.1080/01947640390160226

A THERAPEUTICJURISPRUDENCEPERSPECTIVE

ON LEGAL RESPONSES TOMEDICAL ERROR

Edward A. Dauer, LL.B., M.P.H.*

INTRODUCTION

A fundamental question for legal policy analysts working in the quality-improvement sector of health care remains the familiar one: In the aftermathof a medical error, what contributions may the legal system provide? Thisarticle begins with a fairly conventional answer to that question and then crit-ically examines whether the present system of medical liability law serves itsstated goals. This too is familiar ground and, therefore, is covered in sum-mary fashion. The principal objective of this article is to bring to bear on boththe question and the critique the perspective of a relatively recent develop-ment in legal theory that has come to be known as Therapeutic Jurisprudence(TJ).1 While TJ supports rather than discovers arguments about malpracticelitigation and its alternatives, it calls into a uniquely sharp focus some ofthe less well-known attributes of the traditional legal process that may havesignificance for the pursuit of health care quality.

I. THE ROLE OF LAW IN MEDICAL ACCIDENTS

There are three “law jobs,” as Karl Llewellyn would have put it,2 that existaround medical error. First, the law should do no harm. Legal policy analystsmust recognize that the malpractice liability system is neither the only nor themost frequent venue for examining and responding to errors and accidents.

* Dean Emeritus and Professor of Law, University of Denver; Associate, Health Care Negotiation As-sociates, Lexington, Massachusetts. Correspondence may be addressed to Professor Dauer, c/o TheUniversity of Denver, College of Law, 1900 Olive Street, Denver, Colorado 80220, or via e-mail atedauer@mail.law.du.edu.

1 DAVID B. WEXLER & BRUCE J. WINICK, LAW IN A THERAPEUTIC KEY (1996) (referring to the watershedcollection of work in Therapeutic Jurisprudence).See alsoSymposium,Bibliography of Therapeu-tic Jurisprudence, 10 N.Y.L. SCH. J. HUM. RTS. 915 (1993). An online bibliography is available atwww.law.arizona.edu/depts/upr-intj.

2 Karl N. Llewellyn, The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method, 49YALE L.J. 1355, 1376 (1940) (referring to one of Karl N. Llewellyn’s best-known phrases).

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Health care has a number of overlapping quality review systems, includingboards of medical licensure and private institutional and professional peerreview. Law should, at the least, try not to interfere with the working ofthese other systems. Second, the law has traditionally been concerned withpromoting restoration of the injured patient, or his or her family, by way ofsuch healing as it may be able to offer, including compensation. Third, thelaw should regard today’s errors, as many other systems do, as opportunitiesto reduce the risk of future similar errors.

Other commentators might posit other goals for the legal system, butthese are fairly traditional and should not be terribly controversial. The first ofthem—“do no harm”—is the subject of growing literature, much of it highlycritical.3 Suffice it here to say that there is substantial evidence showing thatthe present legal regime is rather inconsistent with the goals of health carequality improvement’s other arenas. This article focuses on the second andthird objectives, which will be referred to as “restoration” and “patient safety,”respectively. The next question then becomes how well the present systemserves these goals.

A. Malpractice Litigation

The “present system” in the United States is almost always the tradi-tional negligence-based tort litigation system. Even though very few claims ofmedical malpractice ever go through a full courtroom trial, the characteristicsof the tort litigation system are ever present, shaping virtually every aspect ofclaiming, insurance adjusting, negotiation, and settlement. The characteristicsof the present system, trials, pretrial procedures, claims and everything elsethat occurs under litigation’s overhanging ledge, are that it is fault based, it ismarked by individualized liability, and it is highly public, including linkagesthrough federal4 and, in some instances, state laws to mandated disclosure ofthe facts of the error and the claim.

A good deal is now known about the restoration and patient safety ob-jectives as well. They have been the subjects of intense empirical scrutiny,much of it instigated by theHarvard Medical Practice Study5 published over adecade ago. Where patient safety is concerned—“deterrence” is the term more

3 See, e.g., Bryan A. Liang,Error in Medicine: Legal Impediments to U.S. Reform, 24 J. HEALTH POL., POL’Y

& L. 1, 27 (1999); Bryan A. Liang,A System of Medical Error Disclosure, 11 QUAL. & SAFETY IN HEALTH

CARE 64 (2002); Bryan A. Liang,The Adverse Event of Unaddressed Medical Error: Identifying andFilling the Holes in the Health-Care and Legal Systems, 29 J.L., MED. & ETHICS 346 (2001) [hereinafterAdverse Event].

4 The National Practitioner Data Bank requires the reporting of all malpractice payments made by aninstitution (such as an insurer) on behalf of a practitioner, regardless of amount. The Data Bank wascreated by the Health Care Quality Improvement Act of 1986, 42 U.S.C.§§ 11101-11152.

5 HARVARD MEDICAL PRACTICE STUDY, PATIENTS, DOCTORS, AND LAWYERS: MEDICAL INJURY, MALPRACTICE

LITIGATION, AND PATIENT COMPENSATION IN NEW YORK: THE REPORT OF THEHARVARD MEDICAL PRACTICE

STUDY TO THE STATE OF NEW YORK (1990).

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familiar to attorneys—malpractice liability seems, at least on the margin, tohave little if any positive correlation with future error reduction.6 At the sametime the malpractice system fosters distortions in medical practice (“defensivemedicine”)7 whose value to patient health may run from the arguably usefulto the decidedly harmful.

The reasons for the absence of deterrence are not difficult to find. Physi-cians, quite correctly, believe that the risk of malpractice liability is correlatedmore with the degree of injury suffered by the patient as the result of an adverseoutcome regardless of the cause, than it is with the fact of actual negligence.8

Tort claims, many physicians believe, are motivated by economic incentivesrather than quality-based observations, and their outcomes too often rangefrom the unjustified to the outrageous.9 Moreover, in a very patent way, thetort system is ineradicably infected with “hindsight bias.”10 The fact that thereis a disabled person whose condition traces to an incident of health care makesit more likely that a lay jury will find fault with the health care provider. Cu-riously, the same group of lay people would have approved the provider’sactions had they seen them occurring at the time and without knowing of anyadverse result.

All of these factors engender a disrespect for the legal process, if notdistrust, that works at odds with the behavior changes tort liability is supposedto induce.11 Thus risk management is more often embraced as a way of re-ducing the risk of liability than as a way to reduce the risk of error.12 The twoare not always the same thing. A physician who puts less information into achart, for example, in an effort to avoid creating evidence for some imagined

6 See, e.g., Frank A. Sloan et al.,Tort Liability and Obstetricians’ Care Levels, 17 INT’ L REV. L. & ECON.245, 245-47 (1997); Douglas A. Conrad et al.,The Incentive Effects of Malpractice Liability Ruleson Dental Practice Behavior, 36 MED. CARE 706 (1998).But seePAUL WEILER ET AL., A MEASURE OF

MALPRACTICE: MEDICAL INJURY, MALPRACTICELITIGATION, AND PATIENT COMPENSATION129 (1993). Weiler hasfound contrary data in the Harvard Medical Practice Study, but concedes that the statistical significanceof the correlations was insufficient, and the inference is “statistically fragile.”See alsoMichelle M.Mello & Troyen A. Brennan,Symposium: What We Know and Do Not Know About the Impact of CivilJustice on the American Economy and Policy: Deterrence of Medical Errors: Theory and Evidence forMalpractice Reform, 80 TEX. L. REV. 1595 (2002) (the empirical literature is reviewed and analyzed).

7 Troyen A. Brennan et al.,Relation Between Negligent Adverse Events and the Outcomes of Medical-Malpractice Litigation, 335 NEW ENG. J. MED. 1963 (1996).

8 WEILER, supranote 6, at 124-26.9 Alexis Polles & Susan Neral,The Effects of Malpractice on Mississippi Physicians, 34 J. MISS. MED.

ASS’N 77 (Mar. 1993).10 Jeffrey J. Rachlinski,A Positive Psychological Theory of Judging in Hindsight, 65 U. CHI. L. REV.

571, 572 (1998); Kim A. Kamin & Jeffrey J. Rachlinski,Ex Post6= Ex Ante: Determining Liability inHindsight, 19 LAW & HUM. BEHAV. 89, 101 (1995).

11 WEILER, supranote 6.12 See generally Adverse Event, supranote 3, at 348 (citing K. WALSHE & M. D INEEN, CLINICAL RISK

MANAGEMENT IN THE NHS: MAKING A DIFFERENCE? (1998) (finding risk management efforts limited inpromoting reductions in injuries in the United Kingdom)).

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future malpractice claim may be reducing liability risks but at the expense ofincreasing patient safety risks.13

B. The Requisites of Error Prevention

Some of tort litigation’s most essential characteristics are the converseof what is known about the requisites of effective error reduction. Whilequality improvement (QI) calls for an analysis of errors as system failures,tort law focuses on the acts of individuals. QI requires an approach that seeserrors as process upsets and posits them as opportunities for identifying routesto improvement. In contrast, torts engage in blame, inflicting punishmentand often public obloquy. QI requires as much information about errors andaccidents as possible; the risk of tort liability tends to drive information furtherfrom the light of investigation. QI requires responses as soon as possible afteran event, and focused follow-up. Tort litigation provides just the contrary;delays are measured in years, and there is no follow-up after a trial.14 Boththe theoretical and the empirical cases in favor of tort liability as a promoterof patient safety are therefore doubtful at best, while the possibility that thepresent legal system inhibits the efforts of other medicine-based initiativesappears increasingly to be significant.

C. Compensation and Restoration

The case for torts as a promoter of restoration is similarly flawed. Con-sidering for the moment only the compensation aspect of all that restorationmeans, we know that the tort system as a compensation device is almost un-conscionably inefficient, with a loading factor in excess of 70% of all thefunds allocated to that function.15 It is, moreover, severely underinclusiveand overinclusive at the same time. As the Harvard Study shows, and othershave confirmed, it is a very small and select fraction of all instances of realnegligence-caused injury that are ever compensated through the tort system(including all of the out-of-court settlements). Further, a sizeable proportionof the claims that are compensated are not instances of medical negligence.16 Iftort law is supposed to be social insurance, it must be conceded that no privateinsurer could or would attempt to survive with such an economic record.

In addition to these data about compensation, the tort system does littleto respond to patients’ other, more frequent, nonfinancial needs: account-ability, emotional resolution, information about “what really happened,” and

13 Sara C. Charles et al.,Physicians’ Self-Reports of Reactions to Malpractice Litigation, 141 AM. J.PSYCHOL. 563, 564 (1984).

14 SeeEdward A. Dauer & Leonard J. Marcus,Adapting Mediation to Link Resolution of Medical Mal-practice Disputes with Health Care Quality Improvement, 60 LAW & CONTEMP. PROBS. 185, 197 (1997)(for a more complete comparison and citations to sources).

15 Polles & Neral,supranote 9, at 78-79.16 HARVARD STUDY, supranote 5, at 11-4.

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the assurance that such an event will never happen to anyone else again.These are significant needs. The point is simply that the present system isineffective for much of what counts as restoration, and inefficient as to therest.

II. THERAPEUTIC JURISPRUDENCE

Given these well-known critiques, what further insight does TJ, or Ther-apeutic Jurisprudence, provide? Addressing that question calls for a briefoverview of the substance of TJ.

A. The Basics of TJ

TJ is an approach to legal policy analysis that is both empirical andnormative.17 It is empirical in its premise that law and legal processes canhave effects on the well-being of the people who are involved with them; well-being not only in the economic sense, but in the physical and psychologicalsenses as well. It is normative in its postulate that rules and procedures thatpromote well-being are “therapeutic,” and those that impair well-being are“antitherapeutic.” Although TJ’s founders eschew any narrow definition of theword,18 their premise is that legal processes that are therapeutic are better thanthose that are not. Its proponents do not argue that the therapeutic dimensionsof the law should trump the law’s substantive goals, rather that its therapeuticor antitherapeutic consequences be recognized and valued among other factorsin the design and assessment of legal procedures. As David Wexler, one ofTJ’s founders, summarized: “People should be better off after their contactwith the law than they were before.”19

Like most lenses or prisms, TJ does not compel any particular outcomefor a problem to which it is addressed. Indeed, other than its insistence onfocusing on well-being and the psychological tenets which that requires, TJcan be a valuable approach without even adding any new data of its own.What it does do is bring “well-being” into focus as one of the many goalsof law and the legal system, and more often than not it shows connectionsthat may have been glimpsed only dimly before. TJ had its origins in thefield of law and mental health, focusing on the therapeutic implications ofthe civil commitment process. Its influence has since then spread to a wide

17 See generallyBruce J. Winick,The Jurisprudence of Therapeutic Jurisprudence, inWEXLER & WINICK,supranote 1, ch. 32.

18 See generallyDavid B. Wexler,Reflections on the Scope of Therapeutic Jurisprudence, inWEXLER

& WINICK, supranote 1, ch. 41; Cristopher Slobogin,Therapeutic Jurisprudence: Five Dilemmas toPonder, 1 PSYCHOL. PUB. POL’Y & L. 193 (1995).

19 David Wexler, Remarks at the Annual Congress of the International Association for Law and MentalHealth, Sienna, Italy (July 2000).

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variety of fields—juvenile sentencing, the exercise of consumer rights, victimparticipation in criminal trials, and the psychological effect of plaintiffs in-volved in civil litigation (torts),20 among many others.

Even this most basic description of TJ calls attention to some dimen-sions of the malpractice litigation system that are not always attended to inhealth care policy analysis. Specifically, TJ observes the people who are in-volved in that process, and the overall effect the process may have on them.It may be obvious now why, in postulating the goals of the legal systemin the aftermath of a medical error, this article uses the broader and inclu-sive notion of restoration rather than the narrower and included notion ofcompensation.

B. TJ and Medical Error Claims

This article has addressed, albeit briefly, the implications of malpracticelitigation for patients and their families. To the extent that it affects restoration,the present system does so in an incomplete and often unsatisfying way. Afavorable verdict or settlement may respond to some people’s sense of “settingthings right,” and it may provide useful money in those cases in which moneyper se matters, but it does not always respond well, if at all, to the need forcorrection, information, healing, or closure. Patients tend to bring claims whenthey feel abandoned, or betrayed; when the health care provider failed in whatthe patient expected was a relationship of dependency or trust.21 Litigation hasnever been known for promoting healing of that kind. Advocacy in the legalsystem requires the positing of extremes, fashioning “right” and “wrong” asmutually exclusive yet necessary descriptions of what the plaintiff and thedefendant did.

Hickson and others22 have shown convincingly that money, which is theonly outcome a court can order, is in fact not the dominant need or drive ofthose patients and family members who bring claims against their physicians.Money may be a surrogate, but it is not a fully satisfying one.

20 See, e.g., Sharyn A. Lenhart & Diane K. Shrier,Potential Costs and Benefits of Sexual HarassmentLitigation, 26 PSYCH. ANNALS 132, 132-38 (1996); Daniel W. Shuman,The Psychology of Compensationin Tort Law, inWEXLER & WINICK, supranote 1, ch. 22; Jack Susman,Resolving Hospital Conflicts, inWEXLER & WINICK, supranote 1, ch. 46.

21 See generallyRoy Penchansky & Carol Macnee,Initiation of Medical Malpractice Suits: A Conceptu-alization and Test, 32 MED. CARE 813 (1994); Gerald B. Hickson et al.,Factors that Prompted Familiesto File Medical Malpractice Claims Following Perinatal Injuries, 267 J.A.M.A. 1359 (1992); LaRae I.Huycke & Mark M. Huycke,Characteristics of Potential Plaintiffs in Malpractice Litigation, 120 AN-NALS INTERNAL MED. 792 (1994); Marlynn L. May & Daniel B. Stengel,Who Sues Their Doctors? HowPatients Handle Medical Grievances, 24 L. & SOC’Y REV. 105 (1990).

22 Hickson et al.,supranote 21; Gerald B. Hickson et al.,Obstetricians’ Prior Malpractice Experienceand Patients’ Satisfaction with Care, 272 J.A.M.A. 1583 (1994).

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III. THE EFFECTS OF MALPRACTICE CLAIMSAND LITIGATION

This article does not focus mainly on patients, but on physicians, for itis there that the most interesting link can be seen between the legal aftermathof today’s medical error and the prevention of tomorrow’s.

A. Antitherapeutic Consequences of Malpractice Claims for Physicians

First, TJ requires an examination of the therapeutic or antitherapeuticconsequences the medical malpractice system may have on medical practi-tioners. There is an interesting body of empirical work on exactly that topic,which has until now not been sufficiently appreciated. In the early 1980s, SaraCharles, a psychiatrist at the University of Illinois, began studying physicianswho had been sued for malpractice, comparing their psychological and phys-ical responses to those experienced by similar physicians who had not beensued.23 Among the “sued” physicians, Dr. Charles found distinct elevations inwhat she termed “depressive symptom clusters”—increased incidences of, forexample, fatigue, insomnia, difficulty in concentrating, headache and otherphysical illnesses, suicidal ideation, and a sharp (nearly tripled) increase inexcessive alcohol use. Other subjective reports showed lower self-esteem, de-creased self-confidence, “loss of nerve” in clinical situations, increased senseof being misunderstood and of being defeated; and marked increases in reportsof anger, inner tension, depressed mood, frustration, and irritability.24

Knowing how well physicians feel and feel about themselves is inter-esting and useful in its own right, but it is not the end of the significance ofthese findings. Dr. Charles was personally convinced, though she did not atthat time have the data to demonstrate it, that these antitherapeutic (not herword) effects of the fault-based malpractice claims process could result indegradations of clinical competence.25 That is to say, future patients couldbe at increased risk because of the effects on the physician of some previouspatient’s malpractice claim.

23 Charles et al.,supranote 13, at 564-65; Sara C. Charles et al.,Sued and Nonsued Physicians’ Self-Reported Reactions to Malpractice Litigation, 142 AM. J. PSYCH. 437 (1985); Sara C. Charles et al.,Appraisal of the Event as a Factor in Coping with Malpractice Litigation, 14 BEHAV. MED. 148 (Winter1988) [hereinafterAppraisal of Event]. See alsoRobyn S. Shapiro et al.,A Survey of Sued and NonsuedPhysicians and Suing Patients, 149 ARCH. INTERNAL MED. 2190 (1989); Catherine A. Martin et al.,Physicans’ Psychologic Reactions to Malpractice Litigation, 84 S. MED. J. 1300 (1991).

24 The effects did not vary significantly with the case outcomes. Winners and losers both reported thesesymptom clusters, confirming that the legal process itself was the most likely cause. Sara C. Charleset al., Physicians on Trial—Self-Reported Reactions to Malpractice Trials, 148 WEST. J. MED. 358,358-59 (1988).AccordPolles & Neral,supranote 9, at 79.

25 Sara C. Charles et al.,Sued and Nonsued Physicians: Satisfactions, Dissatisfactions, and Sources ofStress, 28 PSYCHOSOMATICS462, 466 (1987).

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B. Implications for Patient Safety

Theodore Passineau, Manager of Physician Risk Management at theFarmer’s Insurance Group, took the analysis to the next step. Passineau trackedthe loss experience of physicians who had had claims made against them,measuring the frequency of subsequent losses by calendar quarters followingthe filing of the first claim.26 To give a sense of Passineau’s findings, thetypical physician among the Farmer’s Group of insureds has, in any givenquarter, approximately a 5% chance of experiencing a loss (“loss” refers toa payment incurred by an insurer on an insured person’s behalf). Physiciansagainst whom claims had been made had, in the first quarter following thatfirst claim, a nearly 15% risk of experiencing a loss; an odds ratio (OR) ofnearly 3:1 over the average for all practitioners in the group. The elevated riskextinguished over time, the OR slowly declining to about 1:1 after two years.

Passineau’s data are now being examined for statistical significance by aresearch group that is also attempting to test for similar effects in the databasesof other, unrelated insurers. The results of those investigations are not yetavailable at the time of this writing. Nonetheless, even in their present form,Passineau’s findings are highly suggestive of a real adverse effect on patientsafety attributable to the personally antitherapeutic consequences of malprac-tice liability and claims procedures. The extinction of the elevated OR aftertwo years, for example, suggests that the correlation is not attributable to se-lection effects—that is, the probability that a physician with one claim mayjust be less careful than the norm and therefore more likely to have a secondclaim for that reason alone. The causal connection in this correlation—the in-ference that being subjected to the process of defending or resolving the priorclaim causes behaviors that result in elevated risks of further claims27—seemsto be at the very least a plausible, and disturbing, hypothesis.

The TJ lens has brought to light the possibility that the law’s presentsystem for dealing with the aftermath of a medical error has some significantflaws. Whatever the economics of the process may be, its psychological dy-namics seem to have for patients a range of impacts, very often unsatisfyingif not adverse; and for physicians the high probability of antitherapeutic con-sequences that as a practical matter may both inhibit the implicit psychologyof classical deterrence theory, and in fact create rather than reduce additionalrisks of clinical error. With respect to both its restoration and its patient safetyobjectives, the present system therefore seems to be deeply flawed.

26 Theodore Passineau,Physician Litigation Stress(2000) (unpublished manuscript on file with author).See alsoGeorge Thomasson et al.,Patient Safety Implications of Medical Malpractice Claims ResolutionProcedures, inPROCEEDINGS OF THEAMERICAN ASSOCIATION FOR THEADVANCEMENT OF SCIENCE, ENHANCING

PATIENT SAFETY AND REDUCING ERRORS INHEALTH CARE (1998) (on file with the author); Mark Crane,WhyBurned-Out Doctors Get Sued More Often, 75 MED. ECON. 210 (May 1998).

27 The effect is consistent with the finding of another researcher that the stress symptoms attributable toinvolvement in litigation themselves decline after about two years. Martin et al.,supranote 23, at 1303.

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IV. ALTERNATIVES TO THE PRESENT SYSTEM

Apart from the amplifications added by TJ, this conclusion in general ishardly new. For nearly 30 years medical malpractice litigation has been criti-cized, debated, and defended from a variety of perspectives. Alternatives havebeen proposed, though none have been widely adopted. Three alternatives inparticular deserve mention. Taken in order of their degree of departure fromthe present system, they are no fault liability, enterprise liability, and alter-ations to the rules of reporting—disclosure and confidentiality.

A. No-Fault Liability

No-fault liability would unlink an injured patient’s compensation fromthe factvel nonof the practitioner’s negligence.28 No fault has a number ofattractive characteristics. First, it removes what is now a morally questionabledistinction between socially mandated compensation for some iatrogenicallyinjured patients (those whose providers were negligent) while denying it toothers (those whose providers were not negligent) whose losses may be identi-cal. Further, by removing the cost of finding fault, which, due to its dependenceon expert testimony is often the most expensive part of a fault-based trial, ano fault system combined with an administrative compensation scheme mayimprove the efficiency of compensation dramatically. Most importantly, how-ever, removing liability for fault may remove the disincentive that now existsfor persons with information about an error to come forward with that in-formation. Removing the blame that an inquiry into fault requires may alsoremove the inhibitions that are now present in securing the commitment ofindividual practitioners to error reduction initiatives. Finally, a no fault com-pensation scheme would almost by definition embrace more incidents thanthe negligence regime does, allowing a richer database for error and accidentinvestigation.

The arguments against no-fault are unsurprising. It has been assertedthat the increase in the number of persons compensated would make its costsprohibitive (though that is vigorously debated). Additionally, it would reducethe incentives for safety that liability schemes create (though no fault hasbeen used in products liability cases for over a generation). It would also makeidentification of bad physicians more difficult (though the fact of a malpracticeallegation may be a poor signal of competence or quality). Further, it woulddecrease the “accountability” function of tort law. Finally, it would be bad

28 The most current and empirically significant work in no-fault systems for iatrogenic injury is beingdone by David Studdert and his colleagues at the Harvard School of Public Health.See, e.g., David M.Studdert et al.,Can the United States Afford a “No-Fault” System of Compensation for Medical Injury?,60 LAW & CONTEMP. PROBS. 1 (1997); David M. Studdert & Troyen A. Brennan,No-Fault Compensationfor Medical Injuries: The Prospect for Error Prevention, 286 J.A.M.A. 217 (2001).

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for the legal profession. With some very limited exceptions, no-fault has notcaught on in the United States.

B. Enterprise Liability

Enterprise liability would be somewhat less radical than a no fault sys-tem. It would not eliminate fault from the liability equation, rather it wouldfasten liability onto the institution, mainly the health plan or the hospital, inwhich the implicated practitioners worked.29 Initially, the arguments in favorof enterprise liability were that it would require a “systems” view of error,forcing institutions to examine in a more comprehensive way where and howerrors are caused so that they may be identified and guarded against. It couldalso reduce the disincentives individual practitioners now have to volunteeruseful information because they would not be held responsible (at least notto third parties) if the disclosure of that information resulted in liability topatients.

When enterprise liability was first seriously proposed during the Clintonadministration’s ill-fated initiatives in the early 1990s, it was resisted by manyphysicians’ groups. They feared that, if the institution were to be held liable forwhatever happened at the hands of its medical staff, then the institution wouldattempt to control, in intrusive and untoward ways, how the staff would be ableto practice their profession. More recently the analysis has been turned around.As William Sage observed, enterprise liability began as a theory without aconstituency, and turned into a constituency without a theory.30

Some physicians now support the idea. The control they feared wouldcome with it is here anyway through the imposition of utilization managementin managed care. For the same reason, many physicians and patient advocatesnow feel that managed care’s control over physician behavior, in a world ofphysician liability, separates responsibilty from authority—the health planconstrains what physicians may do, while the legal system holds physiciansrather than health plans responsible.31 Thus far, enterprise liability has madesome, but not very much, headway in the United States. If a prediction maybe offered, it is likely to come about with a “whimper” rather than a “bang,”as patients and their attorneys continue to erode the walls of the “citadel” withERISA-based and other fiduciary theory claims against managed care entities.

29 A number of analysts have written about enterprise liability, of whom the most well-known may beKenneth Abraham and William Sage.SeeKenneth S. Abraham & Paul C. Weiler,Enterprise MedicalLiability and the Evolution of the American Health Care System, 108 HARV. L. REV. 381 (1994); WilliamM. Sage,Enterprise Liability and the Emerging Managed Health Care System, 60 LAW & CONTEMP.PROBS. 159 (1997); Willam M. Sage & James M. Jorling,A World that Won’t Stand Still: EnterpriseLiability by Private Contract, 43 DEPAUL L. REV. 1007 (1994).

30 William Sage, Seminar remarks at The Hastings Center, Garrison, N.Y. (Jan. 19, 2002).31 See, e.g., Bryan A. Liang,Patient Injury Incentives in Law, 17 YALE L. & POL’Y REV. 1 (1998) (discussing

managed care and physician liability).

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C. Confidentiality for Error and Accident Reporting

A third avenue for reform is the least radical—that information devel-oped in the analysis of errors and accidents should be allowed a degree ofconfidentiality, to titrate in a better way the needs of quality improvementwith the drive toward accountability for professional incompetence. Theseefforts are occurring as of this writing largely in the legislative arena, wherethey may eventually meet with some success.32

The principal force set against this method is the politically resonantview that patients and potential patients have a “right to know” the malprac-tice histories of their physicians. The objection, it may be said, is not altogethersound. This argument appears circular because there is, legally speaking, no“right to know” until one is legally created. A history of malpractice claimsmay or may not signal anything about competency at all. Yet the very theory ofconsumer sovereignty might create marketplace discrimination against physi-cians with such records at the hands of health plans that wish to avoid bothliability for negligent credentialing and the loss of market share that may flowfrom affording practice privileges to physicians with publicized malpracticerecords.

V. EARLY INTERVENTION MEDIATION

There may be another, less revolutionary avenue. Is it possible to preservethe most jealously guarded and substantive parts of the present system, yetmake it less antitherapeutic? There is an interesting possibility of adding to thepresent system a form of early intervention mediation that would be available,though not mandatory, and would complement rather than entirely displacethe more legalistic post-injury litigation process.33 The teachings of TJ seemto support that proposition.

A. Patients’ Needs

In the aftermath of what patients and their families see as an avoidablemedical error, they are motivated by a handful of diverse concerns. One is theneed for compensation in some instances, though a minority. The other con-cerns include: the need to correct so far as may be possible the consequences ofthe error (restoration); the drive to find out what actually happened (closure);the wish to achieve “justice” (accountability though not necessarily liability);

32 See, e.g., Michael D. Brophy,Reconsidering the Results of National Medical Error Reporting, 19 MED.MALPRAC. L. & STRAT. 4 (Nov. 2001).

33 SeeDauer & Marcus,supranote 14; Edward A. Dauer et al.,Prometheus and the Litigators: A MediationOdyssey, 21 J. LEGAL MED. 159 (2000) [hereinafter Dauer,Prometheus]; EDWARD A. DAUER, ETHICAL

MISFITS: MEDIATION AND MEDICAL MALPRACTICE LITIGATION (Hastings Center, forthcoming).

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and the expressed concern to assure that what happened to them will nothappen to anyone else (future patient safety). Injured patients and their fami-lies often put considerable energy into pursuing these interests. The problemis that these interests are more consonant with the goals of both restorationand patient safety than are the confines of the present legal system. Hence thequestion becomes whether this energy can be channeled into more productive,and more therapeutic, forms.

One may hypothesize that a form of early intervention mediation maybe able to achieve virtually all of the law’s present policy goals at least aswell as the present system does, while at the same time eliminating certain ofits adverse (antitherapeutic) effects. TJ focuses on the processes of the law inaddition to its substance. From a practical point of view, changing the processmay be easier than changing its substance because it is not hindered by theneed to adhere solely to substantive strictures. Mediation is a process that canexist within almost any substantive environment.

B. Early Intervention Mediation

A number of focus groups conducted among health care consumers,practitioners, insurers, and attorneys have learned that mediation is a wordthat means very different things to different people.34 To defense attorneysand the insurance industry, mediation is a process of settling claims shortof litigation, undertaken fairly late in the day. Insurers engage in mediationafter they have determined that some payment will be made, and the onlyquestion separating the opposing sides is how much.35 These procedures maybe referred to as the “settlement conference” model of mediation, and thedimensions for resolution are constrained by the available dimensions of theclaims process, that is, money.

The process may or may not involve the patient and the physician person-ally. As often as not, the mediation is conducted among an insurance claimsrepresentative, the physician’s attorney, and the patient’s attorney. While eventhis much may have advantages in terms of cost and reductions in time toresolution, it is not the model of mediation that TJ commends, or that I wouldpropose.

Without describing all of it here, the early intervention model of media-tion is exactly that, a process made available to physician and patient not aftera formal claim has been filed and hardening of the adversaries has begun,but as soon as practical after an incident has been recognized. The parties

34 See generallyDauer,Prometheus, supranote 33 (for a discussion of this and some of the many otherchallenges faced by the mediation proposal).

35 Lori Bartholomew,The Realities of Medical Malpractice Mediation, presentation to the AmericanCollege of Legal Medicine, Mar. 13, 1999, New Orleans, Louisiana (unpublished). The Bartholomew-PIAA data are on file with the author.

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to the process would be the physician and the patient or patient’s familywith only the minimal necessary intervention by legal representatives. Therewould be no assumptionab initio that any compensation would be paid. Itmight be, or it might not. Where some outcome is achieved, there wouldbe no presumption that money would change hands. The outcomes could becorrective in any way that served the parties’ respective needs. Because thepurpose of this article is to illustrate the applications of TJ rather than to makethe case for early intervention mediation per se, it will forgo examining allof the additional details and the interesting challenges any such idea mustaddress. Those have been discussed elsewhere.36 A few of the essential char-acteristics of mediation, however, are illuminated by TJ’s lens and may furtherillustrate the present point.

Mediation is confidential. It offers a safe harbor for introspection, com-munication, analyzing more candidly what happened and why, and even forasserting and articulating accountability. Mediation is built around fosteringparty-to-party communication and understanding. Parties in a well-conductedmediation are brought to hear, not just to suffer, the other party’s concerns,needs, and interests, and reciprocally to communicate their own. In mediation,the outcome is almost infinitely flexible. The agreement may be for a changein office procedures, a physician’s commitment to undergo additional educa-tion, or, at the very least, a realization on each party’s part of the views andcircumstances in which the other was living at the time of the pertinent acts.These are not speculations about the results of mediation. They have beenobserved in a broad variety of areas where early intervention mediation hasbeen applied including cases involving charges brought against physicians inthe aftermath of iatrogenic injuries.37

C. Therapeutic Attributes of Mediation

Ellen Waldman, a familiar of the TJ movement who has considered me-diation from that point of view, referred to it as “a reaction to the psychologicalbrutality of the adversary system.”38 The process is one whose very effective-ness depends upon its fostering trust, safety, and, as a result of those, candor.39

The requirement of direct party participation results in enhanced compliance

36 Dauer & Marcus,supranote 14, at 212-13.37 This is in the setting of complaints to a Board of Medical Examiners rather than the civil liability process.

Dauer & Marcus,supranote 14, at 206-09.38 Ellen A. Waldman,The Evaluative-Facilitative Debate in Mediation: Applying the Lens of Therapeutic

Jurisprudence, 82 MARQ. L. REV. 155, 160 (1998).39 Ellen A. Waldman,Therapeutic Jurisprudence/Preventive Law and Alternative Dispute Resolution:

Substituting Needs for Rights in Mediation—Therapeutic or Disabling?, 5 PSYCH., PUB. POL’Y & L.1103, 1105 (1999).See generally, Sharon L. Flower, Note,Resolving Voluntary Treatment Disputesin the Community Setting: Benefits and Barriers to Effective Mediation, 14 OHIO ST. J. DISP. RESOL.881 (1999); James B. Abisch,Mediational Lawyering in the Civil Commitment Context: A TherapeuticJurisprudence Solution to the Counsel Role Dilemma, 1 PSYCH., PUB. POL’Y & L. 120 (1995).

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with the outcome as well as enhanced understanding, and possibly a greatdeal more.

Recalling the stress-induced physical and psychological effects that mal-practice claims have on physicians, it is interesting to recall the now-extensiveliterature showing a direct correlation between stress and physical illness,and the fact that stress is often the result of an absence of control over one’senvironment.40 For litigants, litigation is nothing if it is not a system in whichthe litigants have no control over the events that will deeply affect them. Me-diation is the opposite of litigation in exactly that regard. In mediation, thereis no outcome unless it is agreed to by both parties. There is no authoritativefigure, in a black robe or otherwise, with the power to err yet impose a form ofclosure that may be enormously destructive. Even if the control in mediationis shared, it exists nevertheless. This offers a more therapeutic alternative.

CONCLUSION

The objective of this article was to show that Therapeutic Jurisprudencecan make a useful, and in some ways unique, contribution to the dialogue aboutlaw and medical care, with particular reference to the law’s impact on futurepatient safety. TJ illuminates connections among existing bits of knowledgenot hitherto seen as connected, and brings a gentle insistence that certainvalues, the values of individual well-being, not be discounted or ignored inthe maelstrom of debate about other values more familiar to the legal traditionsin this area.

That TJ’s findings may not change overnight what the law does in theaftermath of a medical accident is no diminution of TJ’s contribution. The an-alytical if not the political complexity, of optimizing the relationship betweenthe goals of reducing medical error and the “law jobs” of the legal system,is daunting to say the least. Even perfect clarity in the description of policygoals does not erase the fact that different constituencies in health care havedifferent policy goals. The stakes are large, and the costs of false starts maybe unacceptable. Therefore, change is likely to be slow and piecemeal. Whileearly intervention mediation has the benefit of being incremental rather thanrevolutionary, and while it is supported if not compelled by the apparatus ofTJ, there should be no illusions about its being immediately implementedeverywhere.

40 Appraisal of Event, supranote 23, at 148.

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