THE HIPPOCRATIC OATH AND LEGAL HYPOCRISY: WHAT WE CAN LEARN FROM DOCTORS?
Lawyers, particularly litigators, are infinitely wise. This is because we specialise in hindsight: “Why didn’t you do that?” ; “You should have done that”; “Why wasn’t that written down?” This is particularly acute in clinical negligence cases where one profession regularly harangues another for mistakes and failing to take obvious steps. There is, however, a major difference between the two professions. The medical profession is very much aware of the dangers of its own negligence and takes active steps to reduce it. The legal profession does not. Many adverse outcomes in law, which are the result of poor evidence collection, can be blamed on the “whim of the judge”. However mistakes are made by the legal profession on a regular basis. Very little, if anything, is done to recognise these as “mistakes” and take active steps to ensure they are not repeated. If doctors made equivalent errors to some of the evidential, procedural and other issues regularly set out in this blog, then they would have been forced to cease practice years ago.
I am addressing these issues in a course early next month “A Clinical Negligence Lawyers Survival Guide” where the key point will be learning from the mistakes of others (and thus avoiding your own).
Here I want to look at how we can learn from the medical profession, in their search to avoid negligence.
Daily rounds has a Check list for doctors to prevent medical negligence claims
One fundamental point it makes is that students are trained in medicine but not in some of the practical issues of application. This is a problem in relation to communications and dealing with problems once they arise.
- Avoid faulty communications
- Stay updated in standards and training.
- Avoid avoidance behaviour (do not run away from problems once they occur).
“Avoidance behaviour” can be a large issue in law. Many procedural problems are exacerbated and magnified because of a simple failure to accept a problem occurred and deal with that issue at once.
Lockton has guidance on avoiding a “malpractice lawsuit”.
- Establish a good relationship.
- Be clear and consistent.
- Get informed consent.
- Accurate and complete documentation.
- Stay current.
- Be prepared.
- Follow proper procedures.
That “be prepared” travels between the two professions.
“Doctors and health care professionals are often seen as distant and rushed. However true that may be of your practice, you should never compromise the time you give to preparing for appointments. Do your very best to review your patients’ files before walking in the door for an appointment. It’s not only important to ensure you’re up-to-speed about a patient’s condition and care, but it’s also a simple matter of courteousness. Again, showing that level of consideration really is meaningful to your patients. When a patient feels like “just another patient,” he may be more likely to sue in a case of perceived negligence.”
If you think that this is not important, an article In Medical Economics quotes an experienced (defendant) practitioner as saying that the key determinant in whether a claim against a medical practitioner was “likeability”.
“As important, what could you have done before the litigation process began to lessen the chances of being sued in the first place?
The answer comes from a former medical malpractice insurance claims adjuster who became an equally successful mediator, largely in the area of medical malpractice claims. His primary criterion for determining if his defendants might be found negligent by a jury of their peers was whether they were likeable. If the practitioner was amiable, remorseful (not of a bad practice procedure, but of a bad outcome), sincere, and articulate in offering his/her feelings, this adjuster said that a jury likely would not find that his/her care was negligent. Even if the medical error was relatively unmistakable, he said that the final recovery would be for significantly less than if the doctor came off as arrogant or unrepentant.
The key is that a practitioner or facility administrator cannot hope to “turn on the charm” after a bad outcome has occurred. In other words, genuine compassion and caring go a long way in communicating that even failed efforts to achieve optimum results are, nonetheless, our profession’s best efforts.”
THE ANALOGIES CAN ONLY BE TAKEN SO FAR
Not all of the guidance to clinicians can be applied to lawyers. However the key point is that the profession is trying to avoid claims, has policies in place and is addressing it directly. There are numerous articles (and books) devoted to the subject. The legal profession, by comparison, has very little training or guidance on avoiding problems and (just as important sometimes) dealing with problems once they arise.
THE AIM OF THIS…
Is, of course, to persuade you to attend the course. If not, then, at the very least, to check your own insurance policies carefully.