Bringing Dialogue and Collaborative Law to Health Care

1. Bringing Dialogue and Collaborative Law to Health Care Health Care Professionals and Conflict Resolution Professionals Working Together to Improve Patient Safety Kathleen Clark, PhD, JD, MAM www.ServantLawyership.com KathleenClark@ServantLawyership.com

2. A Touch of Inspiration “Whatever you can do or dream you can, begin it.” - Goethe

3. Patient Safety Legislation “We need to learn from errors that permeate the system, physicians, nurses, hospitals, licensing boards, regulators, state and federal, 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)

4. Patient Safety Legislation • 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-elect Obama and Senator Clinton 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.”

5. Patient Safety Legislation “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)

6. 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 procedure associated with collaborative law. • Explain how collaborative law will promote healing and increased patient safety.

7. 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

8. 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.

9. 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,)

10. 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…

11. 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)

12. Who are the Stakeholders? • Insurers • Risk managers • Hospital administrators • Medical ethicists • Regulators • Judges and other court personnel • Injured patients • Patient advocates • Health care providers, including physicians, nurses, technicians, and others • Attorneys, for defendants and plaintiffs

13. 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

14. 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 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.

15. 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

16. Questions For 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?

17. Questions for Dialogue, cont. • What do 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?

18. 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).

19. 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

20. 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.

21. The Collaborative Law Process • The process can be set in motion by any party immediately upon discovery of a medical error or adverse event. • Provides opportunities for learning and growth, that allows the parties to talk and work together in a non-adversarial process, within a culture of healing, a culture of protecting and enhancing the patient/provider relationship.

22. 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

23. 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 and acts as additional protection for the confidentiality of the process. This keeps the focus on interest-based negotiations.

24. 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 and acts as additional protection for the confidentiality of the process. This keeps the focus on interest-based negotiations.

25. Litigation vs. Collaborative Law • 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 less blame • opportunity to collaborate on patient safety issues • and cost savings • 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

26. An Opportunity for Healing • Collaborative law consists of a series of meetings with the injured patient/family and all parties to sit down, listen to each other, ask questions, get answers, discuss patient safety, perhaps develop trust and work towards a resolution unique to the facts of the case and limited by legal remedies.

27. For Patient/Family • The collaborative law process, encourages early discussion with patients and families in the dialogue process. • early opportunity for their voice 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

28. Training • Group training that is multidisciplinary, multi-professional builds community, trust and understanding • Components: • Training involves disclosure • practice settings • parties work together on patient safety issues and solutions

29. Summary • Collaborative law maximizes patient safety through: • A safe, confidential, respectful, supportive structure to address medical errors • Patients and families to openly communicate with physicians, nurses, and other health care providers their observations, and solutions to patient safety issues • Creates non-punitive, non-adversarial forums • Protection for future patients and communities • A cultural shift in both law and medicine to move towards transparency and trust

30. Thoughts In Closing “We can’t do it differently until we see it differently” “We all are working toward the same goal” Patient safety! Kathleen Clark, PhD, JD, MA www.ServantLawyership.com KathleenClark@servantlawyership.com