Arbitration & Mediation

Negotiating Life's End: the Coming Crisis and Likelihood of Litigation

By Victoria Pynchon

One of the reasons I began this series was to explore the type of professional behavior that tends to trigger professional malpractice litigation -- and how that litigation might be avoided.  .  

As you may recall, my first post reported the findings of a study of the motivations giving rise to medical malpractice lawsuits.  Reasons reported by 90% or more of the respondents were

so that it would not happen to anyone else . . . 91%

I wanted an explanation . . . 91%

I wanted the doctors to realize what they’d done . . . 90%

Only 66% of respondents indicated that they'd brought suit because they wanted financial compensation.  

Other studies have reported that ineffective communication with patients and their families account more for litigation than the adverse results of medical treatment themselves.  As reported in the March/April issue of Patient Safety and Quality Healthcare

ineffective communication with patients and families, rather than quality of care, was the underlying cause of patients' and families' decisions to file suit against their caregivers (Vincent et al., 1994; Hickson et al., 1992). Other researchers found that most patients would be less angry and less likely to sue if physicians honestly and compassionately disclosed medical errors that occurred, admitted responsibility, took steps to reduce the chances of repeat errors in the future, and offered sincere apologies for the suffering that may have resulted because of the bad outcomes (Gallagher et al., 2003). Similarly, research on apologies suggests that individuals receiving a full apology that both expresses sympathy and takes responsibility by the person who wronged them are more likely to accept settlement offers and negotiate towards a resolution rather than going to trial (Robbennolt, 2003). 

See Conflict Management From the Heart:  A Day in the Life of a Medical Ombuds/Mediator by Carole S. Houk, JD, LLM, and Leigh Ana Amerson, BA here.

In Why People Sue Hospitals and Health Care Professionals in Heatlh Industry Online we learn that 40% of respondents answered "yes" to the question whether anything could have been done to prevent litigation after an adverse medical incident.  Those pre-litigation interventions were reported as follows:  

Conflict Associated with End-of-Life Decisions

Someone once told me that a divorce is a hologram of the marriage -- that all of the marital dynamics that have never been resolved -- or even surfaced -- by the divorcing couple -- take shape and form in one way or another in the course of the divorce.  Not surprisingly, the "weapons" of marital dissolution are its most precious assets -- relationship and children -- and its most symbolic -- money. /*

So it is that historic family dynamics (rife with unresolved conflict) will more or less naturally play themselves out around the bed of a loved one who is -- or may  be -- dying.  

How much conflict is there?

One recent study found that conflict associated with decisions about life-sustaining treatment were rife with conflict between medical staff and the families of dying patients.  An abstract of an Conflict associated with decisions to limit life-sustaining treatment in intensive care units reported: 

MAIN RESULTS:  At least 1 health care provider in 78% of the cases described a situation coded as conflict. Conflict occurred between the staff and family members in 48% of the cases, among staff members in 48%, and among family members in 24%. In 63% of the cases, conflict arose over the decision about life-sustaining treatment itself. In 45% of the cases, conflict occurred over other tasks such as communication and pain control. Social issues caused conflict in 19% of the cases.

CONCLUSIONS: Conflict is more prevalent in the setting of intensive care decision making than has previously been demonstrated. While conflict over the treatment decision itself is most common, conflict over other issues, including social issues, is also significant. By identifying conflict and by recognizing that the treatment decision may not be the only conflict present, or even the main one, clinicians may address conflict more constructively.

It's Not About Money But it Will Become About Money if Conflict is Not Treated at the Source

I have much more to say about this but I need to get out to the Valley to see my dad who is -- amazingly (to me at any rate) -- surviving without food or water into Day Nine.

For now, I will simply remind my readers of the following:

• the law monetizes injustice -- people don't
• it's about respect more than it is about money
• the recognition that the individual with whom you are in conflict is acting from moral rather than venal motivations is often the first patch of common ground
• when people focus on money rather than relationship, they universally respond by becoming less generous
• our brains reward us for cooperative behavior, i.e., we're hard-wired for understanding, compassion, forgiveness and reconciliation
• even monkeys (our fellow primates) protest if they believe they are being treated unfairly

Why the Coming Crisis and Likelihood of Litigation?

The parents' of the baby-boom are dying.  Extraordinarily high levels of conflict in health care settings are associated with dying.  Hospitals and health care professionals are not yet up to par in resolving conflict at its source.  In the absence of programs to assist the families of the dying negotiate their way through this traumatic experience, people will seek out attorneys; attorneys will, as the law does, monetize pain, suffering, and injustice. 

The research is in.  The solutions are available.

It's up to us.  

______________________________________

*/   Money is symbolic?  Yes it is.  As my longer article on the many meanings people give to money notes:

It is money’s nearly infinite plasticity that makes exchange of unlike things not only possible, but nearly effortless. Unlike barter, which famously requires a “double coincidence of wants,”  money creates a bridge to the future; permits trade at a distance; allows the exchange of durable objects for perishable goods; and, is capable of reducing nearly every human activity into a quantitative monetary value. 

Although contemporary money seems to have shed all of its qualities except its quantity,  “its oneness or fiveness or fiftyness,” we do not in fact use money as if it were fungible. We experience the value of a dollar earned differently from the way we experience one that is stolen or given to us as a gift and we spend it differently as well. 

See The Cost of a Thing is Your Life here

Full post as published by Settle It Now Negotiation Blog on June 06, 2008 (boomark / email).