I am taking the position in this post of the health care Provider and assume that there is an impression of medical malpractice because of an adverse outcome or a perceived mistake.
I have been there and the feeling is horrific.
Need one – Reiterative education. People grasp at straws and ignore possible adverse outcomes when they think there is a chance they can be better, less pain and restorative function. Even when risks or percentages are discussed, there is an expectation through hope that the receiving person and their family will never be affected by the adverse outcome or complication and will always prevail against the odds. We have a saying in surgery – the informed consent just keeps you out of jail for assault, it doesn’t not protect the provider from liability. So need number one is focused education instead of what in litigation is called ‘discovery’ in which every arcane piece of information is used by plaintiff’s attorneys in order to impugn a hospital, provider or nurse, that has nothing to do with the facts or issues around a case. A neutral evaluator with access to same specialty consultation or real time quick response ‘peer review’ would listen to the issue/patient complaint and process is it quickly through local expert channels (physician, nursing, therapy, admin), discussed the perceived mistake by the patient/family and schedule a rapid response conference with the affected party. The treating provider must attend as part of their credentialing requirements. This not only spurs communication, but understanding. From my specialty perspective, this would be enormously helpful since no matter how much one tries to explain issues to patients, there are profound unrealistic expectations and when patient’s don’t get “the results they paid for” (pain free and 21 again), animosity flourishes.
Need two – Keep it in the healthcare community. The litigation process is public and acrimonious and there is no presumption of innocence on the healthcare provider team. A public accusation universally leads to finger pointing and blame within the healthcare system (lawyers love this), permanent distrust and feelings of hostility between all parties. There is a profound reflexive defensive mechanism that further alienates providers (doctors and nurses) from their supposed support communities during this time so attempting to get providers to apologies and work with Q/A once a public attack has occurred is unlikely. An ADR process that stems from point number one and does identify mistakes from a systems perspective and not just the providers fault, would encourage interaction with all staff, admission of responsibility and participation on a private resolution. There really is no need to drag healthcare providers into the public eye if mistakes are made. The internal peer review process and hospital credentialing oversight can be fairly draconian, so repeat offenders, in a functioning system, will lose their privileges long before public censure has any effect.
Need three – Litigation pays the lawyers and experts first and the victims get the leftovers. With a 40% fee PLUS process costs, including experts running into the tens of thousands of dollars, injured parties get much less compensation than they think. The ADR process would reallocate a settlement to the victims and dramatically reduce the “valuation” of those settlements. Although plaintiff attorney’s favorite key stroke are the zeros they keep adding onto the claim for damages, the actual court system, awards, judgments and settlements don’t really see it that way. The needs for safety, apology, and elimination of financial burden to fix a problem, are never achieved through litigation. Ultimately, a few years down the line, the plaintiff/patient might receive a check, but statistics show that reasonably good plaintiff’s lawyers take 4-6% of the cases brought to them, send those for expert reviews and of that group, only process 50-75% by a claim made against the provider or hospital. The magic number here is the other 94-96% of patients or families that are disgruntles and looking for lawyers because they think they have been harmed or been injured from medical negligence. An effective ADR system within a hospital would encourage investigation of every complaint and issue, not just quickly processed by an Admin person to assess what the hospital is at risk for, but actually go back to my first point and resolve the issue, if it can be by this format of staff-patient interaction.