A Therapeutic Jurisprudence Perspective on Legal Responses to Medical Error

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<ul><li><p>This article was downloaded by: [UQ Library]On: 11 November 2014, At: 10:42Publisher: Taylor &amp; FrancisInforma Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House,37-41 Mortimer Street, London W1T 3JH, UK</p><p>Journal of Legal MedicinePublication details, including instructions for authors and subscription information:http://www.tandfonline.com/loi/ulgm20</p><p>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.</p><p>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</p><p>To link to this article: http://dx.doi.org/10.1080/713832126</p><p>PLEASE SCROLL DOWN FOR ARTICLE</p><p>Taylor &amp; Francis makes every effort to ensure the accuracy of all the information (the Content) containedin the publications on our platform. However, Taylor &amp; Francis, our agents, and our licensors make norepresentations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of theContent. Any opinions and views expressed in this publication are the opinions and views of the authors, andare not the views of or endorsed by Taylor &amp; Francis. The accuracy of the Content should not be relied upon andshould be independently verified with primary sources of information. Taylor and Francis shall not be liable forany losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoeveror howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use ofthe Content.</p><p>This article may be used for research, teaching, and private study purposes. Any substantial or systematicreproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in anyform to anyone is expressly forbidden. Terms &amp; Conditions of access and use can be found at http://www.tandfonline.com/page/terms-and-conditions</p><p>http://www.tandfonline.com/loi/ulgm20http://www.tandfonline.com/action/showCitFormats?doi=10.1080/713832126http://dx.doi.org/10.1080/713832126http://www.tandfonline.com/page/terms-and-conditionshttp://www.tandfonline.com/page/terms-and-conditions</p></li><li><p>February 4, 2003 12:38 LGM TJ677-04</p><p>The Journal of Legal Medicine, 24:3750Copyright C 2003 Taylor &amp; Francis0194-7648/03 $12.00 + .00DOI: 10.1080/01947640390160226</p><p>A THERAPEUTICJURISPRUDENCEPERSPECTIVEON LEGAL RESPONSES TOMEDICAL ERROR</p><p>Edward A. Dauer, LL.B., M.P.H.*</p><p>INTRODUCTION</p><p>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.</p><p>I. THE ROLE OF LAW IN MEDICAL ACCIDENTS</p><p>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.</p><p>* 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.</p><p>1 DAVID B. WEXLER &amp; 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.</p><p>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. Llewellyns best-known phrases).</p><p>37</p><p>Dow</p><p>nloa</p><p>ded </p><p>by [</p><p>UQ</p><p> Lib</p><p>rary</p><p>] at</p><p> 10:</p><p>42 1</p><p>1 N</p><p>ovem</p><p>ber </p><p>2014</p></li><li><p>February 4, 2003 12:38 LGM TJ677-04</p><p>38 DAUER</p><p>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 todays errors, as many other systems do, as opportunitiesto reduce the risk of future similar errors.</p><p>Other commentators might posit other goals for the legal system, butthese are fairly traditional and should not be terribly controversial. The first ofthemdo no harmis 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 improvements 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.</p><p>A. Malpractice Litigation</p><p>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 litigations 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.</p><p>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 concerneddeterrence is the term more</p><p>3 See, e.g., Bryan A. Liang,Error in Medicine: Legal Impediments to U.S. Reform, 24 J. HEALTH POL., POLY&amp; L. 1, 27 (1999); Bryan A. Liang,A System of Medical Error Disclosure, 11 QUAL. &amp; SAFETY IN HEALTHCARE 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. &amp; ETHICS 346 (2001) [hereinafterAdverse Event].</p><p>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.</p><p>5 HARVARD MEDICAL PRACTICE STUDY, PATIENTS, DOCTORS, AND LAWYERS: MEDICAL INJURY, MALPRACTICELITIGATION, AND PATIENT COMPENSATION IN NEW YORK: THE REPORT OF THEHARVARD MEDICAL PRACTICESTUDY TO THE STATE OF NEW YORK (1990).</p><p>Dow</p><p>nloa</p><p>ded </p><p>by [</p><p>UQ</p><p> Lib</p><p>rary</p><p>] at</p><p> 10:</p><p>42 1</p><p>1 N</p><p>ovem</p><p>ber </p><p>2014</p></li><li><p>February 4, 2003 12:38 LGM TJ677-04</p><p>LEGAL RESPONSES TOMEDICAL ERROR 39</p><p>familiar to attorneysmalpractice 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.</p><p>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</p><p>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 providersactions had they seen them occurring at the time and without knowing of anyadverse result.</p><p>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</p><p>6 See, e.g., Frank A. Sloan et al.,Tort Liability and Obstetricians Care Levels, 17 INT L REV. L. &amp; 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 OFMALPRACTICE: 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 &amp; 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).</p><p>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).</p><p>8 WEILER, supranote 6, at 124-26.9 Alexis Polles &amp; Susan Neral,The Effects of Malpractice on Mississippi Physicians, 34 J. MISS. MED.</p><p>ASSN 77 (Mar. 1993).10 Jeffrey J. Rachlinski,A Positive Psychological Theory of Judging in Hindsight, 65 U. CHI. L. REV.</p><p>571, 572 (1998); Kim A. Kamin &amp; Jeffrey J. Rachlinski,Ex Post6= Ex Ante: Determining Liability inHindsight, 19 LAW &amp; HUM. BEHAV. 89, 101 (1995).</p><p>11 WEILER, supranote 6.12 See generally Adverse Event, supranote 3, at 348 (citing K. WALSHE &amp; M. D INEEN, CLINICAL RISK</p><p>MANAGEMENT IN THE NHS: MAKING A DIFFERENCE? (1998) (finding risk management efforts limited inpromoting reductions in injuries in the United Kingdom)).</p><p>Dow</p><p>nloa</p><p>ded </p><p>by [</p><p>UQ</p><p> Lib</p><p>rary</p><p>] at</p><p> 10:</p><p>42 1</p><p>1 N</p><p>ovem</p><p>ber </p><p>2014</p></li><li><p>February 4, 2003 12:38 LGM TJ677-04</p><p>40 DAUER</p><p>future malpractice claim may be reducing liability risks but at the expense ofincreasing patient safety risks.13</p><p>B. The Requisites of Error Prevention</p><p>Some of tort litigations 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.</p><p>C. Compensation and Restoration</p><p>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.</p><p>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</p><p>13 Sara C. Charles et al.,Physicians Self-Reports of Reactions to Malpractice Litigation, 141 AM. J.PSYCHOL. 563, 564 (1984).</p><p>14 SeeEdward A. Dauer &amp; Leonard J. Marcus,Adapting Mediation to Link Resolution of Medical Mal-practice Disputes with Health Care Quality Improvement, 60 LAW &amp; CONTEMP. PROBS. 185, 197 (1997)(for a more complete comparison and citations to sources).</p><p>15 Polles &amp; Neral,supranote 9, at 78-79.16 HARVARD STUDY, supranote 5, at 11-4.</p><p>Dow</p><p>nloa</p><p>ded </p><p>by [</p><p>UQ</p><p> Lib</p><p>rary</p><p>] at</p><p> 10:</p><p>42 1</p><p>1 N</p><p>ovem</p><p>ber </p><p>2014</p></li><li><p>February 4, 2003 12:38 LGM TJ677-04</p><p>LEGAL RESPONSES TOMEDICAL ERROR 41</p><p>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...</p></li></ul>