[Ed. note, we are pleased to welcome Suzan Sanal to HRW. A second year law student at Seton Hall University School of Law pursuing a Health Law concentration, she is a representative of Seton Hall's Health Law Forum and is presently interning at the Community Health Law Project, a New Jersey based nonprofit advocacy and legal services organization, working on issues relating to the Affordable Care Act and grant writing.]
As Health Reform Watch author Jae W. Joo wrote back in 2010 , studies have shown a “woeful lack of communication (and a wide gap in perception) between hospital staff physicians and ‘their’ patients.” Chaplain Sharon Hindle, oncology chaplain and educator at Robert Wood Johnson University Hospital, knows this woe all too well. Hindle began in 1998 working as a hospital chaplain to comfort patients during the most traumatic period of their lives. She soon found out, however, that patients not only need comfort, but they also need advocacy.
“I end up being a liaison between the doctors and the patients,” Hindle stated in an interview with Health Reform Watch. “I really felt that people were the most vulnerable and the least capable at this point in their life, because they don’t know the language and they’re making a life altering decision. I became a chaplain because I first wanted to become an advocate.”
Hindle places blame on medical education, “There are very few opportunities where [medical students] are being told how to communicate the medical information that they have to the patient.” In response to this, Hindle began running workshops for medical students, interns, and fellows in order to address patient concerns. Through these workshops, she said, “We’re teaching physicians to be engaging, loving, caring, and intuitive.”
These workshops teach skills such as how to have a family meeting, how to deliver bad news, and how to train the patient to provide self-care. In these workshops, Hindle stresses two questions physicians should be asking their patients, the first being “Can you tell me about your medical situation?” From this, physicians can gather what the patient, or the family member if the patient is not conscious, understands and assess their intellectual, language, and emotional skills. Hindle said, “That question gives you their starting line- that way you don’t offend, patronize, or start way ahead of the patient or family’s capability to comprehend.” She described that doctors sometimes think that a patient is experiencing denial if they do not seem to understand the gravity of the situation, when in fact, the patient simply does not comprehend his or her diagnosis.
The second question is “Do you have any questions before we begin this conversation?” Hindle said that asking this question before communicating medical information allows the patient and the family to “Open-up their listening skills because they’re no longer ruminating about what questions they need to ask.”
At the cardiac and neurology intensive care units workshop held in Robert Wood, she meets with students during their one-month rotation. Hindle teaches the importance of asking these two questions and holds a discussion on a current case where students are having difficulty communicating to the patient and/or the patient’s family. At the University of Medicine and Dentistry of New Jersey (UMDNJ), she participates on a panel that includes a social worker, a physician, and a psychiatrist. The panel reviews a case and each professional discusses their role in interacting with the patient. Students may then ask questions.
There are also opportunities for students to participate in small groups reviewing a mock case study with an attending physician and professor at UMDNJ and a professional considered trained in verbal skills, like Hindle. In review of these mock scenarios, Hindle says, “When you are telling someone that they have a life-threatening or life-ending illness, it’s terrifying because you don’t know how the patient and the family is going to react, so it sets-up a situation where maybe these young medical students try to dance around it and make it seem less catastrophic than it is. It’s important for them to practice the words coming out of their mouth.”
Hindle finds that family practice and oncology are probably the most engaged specialties in running these workshops. She labels these types of fields as “relational,” because the physician may have a relationship with this patient over a lifetime, which is why she stresses the value of communication. Hindle contrasts these types of fields with specialties such as surgery and orthopedics, where a patient may have only a short-term relationship with a doctor. She therefore believes there is less of a need for refined communication skills with this second group. Hindle said, “If I need brain surgery, I don’t care if the guy’s a jerk, I just need him to do this brain surgery once. I just need him to be the best brain surgeon in the world. But If I need a physician that I’m going to have a relationship with, there needs to be a symbiotic relationship where there’s trust. Trust that I’m heard.”
If patients do not feel that a symbiotic relationship is present, Hindle strongly encourages patients to speak up. “As a patient, you need to be your own advocate,” Hindle said. She continues, “If, in fact, you do not believe you are being heard, you need to speak up until you believe you’ve been heard. Nobody is going to know your body as well as you. It’s terrible, but you’re a consumer.”
Other particular areas which Hindle believes need to be addressed are: teaching physicians how to cope with loss, failure, and rejection. She believes there is a need to have an appropriate connection with a patient while not becoming emotionally involved.
In the broad view, Hindle understands that good communication with a doctor can have a profound impact on the patient’s physical well-being and recovery. Hindle said, “My feeling is that our body only has so much energy. [...] If you feel you’ve been heard by your medical team, it really alleviates stress. Your body can now use all of that towards healing.” In close, Hindle continues to feel encouraged about the strengthening of patient-doctor communication, “In the ten years I’ve been at Robert Wood, I’ve seen a tremendous difference in the patient perception on communication. They see that on the whole, doctors are communicating better and they really do care.”
Chaplain Sharon Hindle is an oncology chaplain and educator at Robert Wood Johnson University Hospital in New Brunswick, New Jersey. She also volunteers her expertise at the University of Medicine and Dentistry of New Jersey. Hindle has a blog entitled “Taken Oasis” (http://www.takenoasis.com/). She was also recently interviewed by Inside Jersey and a video interview is soon to appear on Robert Wood Johnson’s You Tube channel. Hindle considers Robert Buckman’s techniques in his book, “How to Break Bad News: A Guide for Health Care Professionals,” the gold standard for doctor-patient communication. She also notes Christina M. Puchalski, MD and Harold Koenig, MD as important voices in the field.
As proof that the only news in health law does not involve the Supreme Court’s consideration of the challenge to the Affordable Care Act, here are some interesting recent articles that are worth a read:
1. Frank McClellan and others recently released the results of their study, “Do Poor People Sue Doctors More Frequently? Confronting Unconscious Bias and the Role of Cultural Competency.” Some doctors perceive that socioeconomically disadvantaged patients tend to sue their doctors more frequently, which has influenced them not to provide care or to provide care in different ways to this population. For example, 57 percent of physicians polled in California in 1995 cited this belief as important in their decision not to treat Medicaid patients. Yet McClellan and his co-authors review studies showing that, to the contrary, poor patients tend to sue their physicians less often than other groups. Indeed, there is evidence that patients in lower socioeconomic groups are also less likely to file nonmeritorious malpractice claims. One possible explanation that the authors of this project offer to explain this disconnect between physician perception and fact is unconscious or implicit bias, which “describes thinking and decision making affected by stereotypes without one being aware of it” that “can explain why people may consciously believe in a truth, whereas their behavior, affected by subconscious prejudices, is contrary to that truth.” For example, physicians unconsciously concerned that poor patients will not adequately compensate them for their care “might consciously or unconsciously presume poor patients are more likely to sue as an excuse or way of avoiding the presumed difficulty associated with collections from such patients.” The authors of this study make recommendations to confront unconscious bias and provide culturally competent care (“CCC”), including increasing diversity, educating providers about CCC, improving provider communication skills, and enhancing patient health literacy. CCC educational efforts are especially valuable in specialties like orthopaedic surgery, where approximately 84 to 89 percent of providers are white males. It is thought that these efforts will improve medical care to lower socioeconomic groups and reduce the risk of malpractice claims.
2. In “Diversion of Offenders with Mental Health Disorders: Mental Health Courts,” Sarah Ryan and Dr. Darius Whelan review the use of mental health courts in the United States, Canada, England, and Wales and consider whether these courts should be established in Ireland. The article first reviews Therapeutic Jurisprudence (“TJ”), a foundational theory underlying problem-solving courts like mental health and drug courts that “promotes the employment of a ‘problem-solving pro-active and results oriented posture that is responsive to the current emotional and social problems of legal consumers.’” While advocating its strengths, the authors also warn of the danger that paternalistic applications of TJ can water down due process and rule of law values. They then identify and compare features of mental health courts that have developed in the United States, Canada, England, and Wales since the pioneer court started operating in Broward County, Florida in 1987. After evaluating the main merits (e.g., more appropriate treatment and potentially reduced recidivism and costs) and criticisms (e.g., concerns about coercion, waiver of due process rights, stigmatization and segregation of the mentally ill, diversion of resources, and lack of empirical data that they are effective) of these courts, the authors conclude that mental health courts could offer a partial solution to the challenges facing Ireland’s criminal justice system. Not surprisingly, they urge policymakers to select the best features of the programs that have evolved to date and to apply TJ “in a careful manner, to avoid interference with defendants['] constitutional rights.” For example, the authors recommend that a solicitor be appointed at the first indication an offender could be eligible to participate. Further, they believe that Ireland should not require offenders to plead guilty as a pre-condition to participate in the program because such a requirement is “antithetical to the goal of decriminalising the mentally ill.” They warn, however, that for the program to be viable, Ireland would have to allocate substantial funding to develop community mental health treatment facilities.
3. Recent Harvard Law School graduate Maggie Francis has written, “Forty Years of ‘Testing, Testing’: The Past and Future Role of Policy Experimentation in Healthcare Reform,” which reviews the federal government’s use of pilot projects and demonstration projects over the past forty years to test innovative health reform ideas. As Ms. Francis describes, her article is the “first . . . in the legal literature to analyze the use of systemic policy experimentation by the federal government to reform the healthcare system.” She describes the number and types of problems facing the healthcare system and why policymakers have chosen pilots as a means of addressing these problems. The article then evaluates whether pilot projects are a useful tool in healthcare reform. Ms. Francis identifies numerous advantages to pilots, including that they provide some cover to controversial innovations from political pressures and permit government to try multiple theories in different pilots to assess what works better in different populations, locations, etc. and to make adjustments based on experience that should make large-scale implementation smoother. She also warns of some possible roadblocks, including lack of adequate information and competence to select the right pilots and then to oversee their implementation and evaluation. A common criticism of these programs is that they take too long to test new ideas and expand those that are successful. Securing consistent funding has also been a challenge. In addition, political interference and gamesmanship can undermine efforts to innovate. Ms. Francis concludes that, despite their limitations, pilot projects satisfy policy makers’ need for information about reform ideas and their consequences and offer the most promise where “organizational challenges, rather than stakeholder opposition and distributional problems, are the primary obstacle to reform.” As a result, she posits that pilots might be more successful at encouraging widespread adoption of less controversial innovations, such as medical homes, than with contributing “significantly to the goal of cost control, which necessarily raises contentious distributional issues among powerful stakeholders in the healthcare industry and is likely to trigger rent-seeking behavior by interest groups.” Ms. Francis’s observations are not merely historically interesting but rather offer important insights given the variety of pilot projects included in the ACA to help identify a politically viable way to bend the healthcare cost curve while improving quality. Ms. Francis reviews the diverse medley of pilots in the ACA, including, but far from limited to, the creation of the Center for Medicare and Medicaid Innovation, reminding us all how much more there is to the ACA than just the mandate and how much we will learn from its implementation.
Michael Ricciardelli’s recent post concerning a judge-directed negotiation pilot program in the Bronx to facilitate early resolution of medical malpractice cases reminded me of another idea to improve our expensive, expert-deadlocked, malpractice litigation system: hot tubbing.
I first heard this term (related to litigation, that is) earlier this Spring when a former colleague shared an article by Bryan Finlay QC, head of the litigation practice at WeirFoulds LLP in Canada, and law student, Kristi Collins, that discusses hot tubbing as an example of a new tool for judges to use in managing evidence in complex litigation. According to this article, hot tubbing, also less colorfully referred to as concurrent evidence, refers to “a method of presenting expert evidence all at once by having the expert witnesses for both parties give testimony, answer questions, and fully discuss the expert evidence on one panel.” Finlay and Collins report that this practice originated in Australia in recent years and is gaining attention in Canada, the United Kingdom, and the United States.
Honorable Justice Peter McClellan, Chief Judge at Common Law, Supreme Court of New South Wales, Australia, describes the concurrent evidence process in a 2010 article in the Journal of Court Innovation:
Concurrent evidence is essentially a discussion chaired by the judge in which the various experts, the parties, the advocates and the judge engage in a cooperative endeavor to identify the issues and arrive where possible at a common resolution of them. Where resolution of issues is not possible, a structured discussion, with the judge as chairperson, allows the experts to give their opinions without the constraints of the adversarial process and in a forum which enables them to respond directly to each other. The judge is not confined to the opinion of one advisor but has the benefit of multiple advisors who are rigorously examined in public.
* * *
[Concurrent evidence] requires the experts retained by the parties to prepare a written report in the conventional fashion. The reports are exchanged and, as is now the case in many Australian courts, the experts are required to meet without the parties or their representatives to discuss those reports. . . . The experts are required to prepare a bullet-point document incorporating a summary of the matters upon which they agree, but, more significantly, matters upon which they disagree. The experts are sworn together and, using the summary of matters upon which they disagree, the judge settles an agenda with counsel for a “directed” discussion, chaired by the judge, of the issues in disagreement. The process provides an opportunity for each expert to place his or her view on a particular issue or sub-issue before the court. The experts are encouraged to ask and answer questions of each other. The advocates also may ask questions during the course of the discussion to ensure that an expert’s opinion is fully articulated and tested against a contrary opinion. At the end of the discussion, the judge will ask a general question to ensure that all of the experts have had the opportunity to fully explain their positions.
(To see how hot tubbing works in trials in Australia, you can watch a video narrated by Justice McClellan here.)
Finlay and Collins report that “[e]xperts tend to like the hot-tubbing method.” As they explain, “[t]he procedure allows them to more fully flesh-out and discuss their positions in, at least the beginning, a less adversarial way. They like the opportunity to pose questions to each other.” Justice McClellan agrees, reporting that “[t]he change in procedure has been met with overwhelming support from the experts and their professional organizations.” This can lead to a more collegial and less partisan and adversarial exchange among professional colleagues. This process may also reduce the likelihood that experts will take extreme positions, knowing that a colleague stands ready to challenge the basis for their statement.
Justice McClellan also relayed that “[a]lthough counsel may be hesitant about the process initially, [he has] heard little criticism once they have experienced it.”
Finders of fact, too, seem to like what hot tubbing offers. Justice McClellan, who has presided over numerous hot tubs, is an unabashed proponent:
From the decision-maker’s perspective, the opportunity to observe the experts in conversation with each other about the matter, together with the ability to ask and answer each others’ questions, greatly enhances the capacity of the judge to decide which expert to accept. Rather than have a person’s expertise translated or colored by the skill of the advocate, and as we know the impact of the advocate can be significant, the experts can express their views in their own words. There also are benefits which aid in the decision-writing process. Concurrent evidence allows for a well-organized transcript because each expert answers the same question at the same point in the proceeding. Read more
A recent article in the New York Times by William Glaberson on a form of fast track medical malpractice resolution being piloted in the Bronx is well worth a read and some consideration. The program puts a judge with better than average medical knowledge, assisted by a nurse with legal training, at the center of early negotiations between the parties.
The approach, known as judge-directed negotiation, is seen by the Obama administration as offering states a way to curb liability expenses that have sharply increased health care costs nationally. Getting judges involved earlier, more often and much more actively in pushing for settlements, is its crucial ingredient – evident in the recent session watched by this reporter, one of many that are usually not attended by the public.
New York officials say the program bypasses years of court battles, limiting legal costs while providing injured patients with compensation that is likely to be less than a jury would award but can be paid out years earlier, without lengthy appeals.
Published in 1911, Ambrose Bierce’s Devil’s Dictionary defines “litigation” as “A machine which you go into as a pig and come out of as a sausage.”
With early judicial intervention, as opposed to a forced mediation session just prior to the prospect of trial, it would seem there is more room for negotiation. The lawyers have not spent years in preparation, nor the reams of money requisite for discovery, depositions and reams of medical expert reports. There is, of course, a price to be paid for the time and money invested in lengthy litigation– on all sides.
The Bronx program, overseen by the federal Agency for Healthcare Research and Quality, is for malpractice suits against public entities. But with success comes expansion:
Under a $3 million federal grant, the city courts are now expanding the program beyond the Bronx, where it started in cases against city hospitals, to courts in Brooklyn and Manhattan, as well as to cases against private hospitals. It is to begin in Buffalo courts in the fall.
Success? The Times reports that “The city’s public hospitals say the program, along with other changes, like sharply increased attention to safety, has helped save $66 million in malpractice costs a year.”
And let’s not forget the time. Or that, although there’s some variation in findings, more than 90% and perhaps as high as 98% of all cases ultimately settle anyways.
Reconsidering Law and Policy Debates: A Public Health Perspective, edited by John Culhane, is a superb collection of thought-provoking essays which features some of the most well-regarded health law scholars in the US. It also includes contributors from schools of public health, public affairs, and public administration. The chapters are uniformly well-written and instructive. Though I cannot in this brief review give consideration to all of the essays, I will try to highlight contributions related to some of my own areas of interest in the intersection between public health and medico-legal research.
Several authors focus on the difficult questions raised by extreme inequality. For example, Vernellia R. Randall’s Dying While Black in America reflects on the disturbing disparity between white and black death rates in the US. A black American male can expect to live seven years less than a white American male, and black women face a four-year gap. Randall explores a number of potential explanations, including discriminatory policies and practices, lack of language and culturally competent care, inadequate inclusion in healthcare research, and hidden discrimination in rationing mechanisms. Randall argues that these disparities will never be addressed effectively until the legal system develops doctrines that can deter not only intentional discrimination, but also “negligent discrimination in healthcare:”
Negligent discrimination in healthcare would occur when healthcare providers failed to take reasonable steps to avoid discrimination based on race when they knew or should have known that their actions would result in discrimination. An example of this would be decisions to close inner-city hospitals and move them to the suburbs. (86)
Randall expertly characterizes race as a key “social determinant of health” in the United States. Countering the many current legal doctrines that promote the legitimation of discrimination, Randall envisions the type of guarantees of equality that will be necessary to realize the antisubordination and antisubjugation principles that animate the 14th Amendment properly understood.
Diane E. Hoffman also addresses stunning inequalities, this time on a global level. Hoffman’s long engagement with end-of-life care informs a consistently sensitive and insightful public health perspective. Considering the situation in the United States, Hoffman concludes that “it is not as all clear that we would want to give the state a public health justification for taking on end-of-life care,” because “we might have trouble reining in the government and preventing it from implementing increasingly more coercive measures” (59). This judgment is particularly pertinent in a political environment where extreme inequality and ever-lower taxes on the wealthiest have imperiled many important health programs for the aged.
However, Hoffman comes to a different conclusion in the case of many developing countries, where the question is less one of rationing access to life extending technologies than it is one of extending access to basic treatments for pain. In a sobering series of statistics, Hoffman presents a tragic panorama of human suffering. In India, only 1% of the 1.6 million people enduring cancer pain each year are likely to receive any type of pain medication. Morphine dispensaries are rare; Calcutta, with 14 million residents, has only one. Though nearly half its population is extremely poor, India is not an outlier. While developing countries account for 80% of world population, they use only 6% of the morphine consumed each year. Sometimes, shortages of medical personnel help explain the problem: for example, in Sierra Leone, there is only one doctor for every 54,000 people (as opposed to a 1:350 ratio in the US). But Hoffman gives several examples of easily preventable policies and business practices that keep painkillers out of the hands of the world’s poorest individuals. This is a truly neglected global crisis, generating levels of suffering that are rarely encountered or even imagined in the developed world.
Returning to the US, the last two chapters in the book are very interesting contributions to ongoing debates about the nature and role of tort doctrine. Elizabeth Weeks Leonard expertly deconstructs the usual dichotomy between tort law’s individualism and the population focus of public health. As she notes, cases involving asbestos, lead paint, silicone breast implants, the Dalkon shield, hazardous autos, tobacco, firearms, Phen-Fen, OxyContin, and Vioxx have all combined efforts by individuals to secure compensation for injuries with broader strikes against destructive products and practices. Weeks succeeds in demonstrating the “counterintuitive fit between tort law and public health law” (189), arguing that each “offers approaches to addressing inevitable conflicts in organized society between individual interests and community needs.”
Jean Macchiaroli Eggen tries to make the fit better by focusing on punitive damages. Toward the end of her chapter, she proposes that states solve the “plaintiff windfall problem” in punitive damages by requiring that “the portion of the punitive award the plaintiff does not receive [due to split-recovery statutes and other measures] be allocated to a state or private program that will enhance the deterrence of the conduct that gave rise to the warden the particular case.” The contributions of both Weeks Leonard and Macchiaroli Eggen would be of great interest to tort classes and seminars considering the difficult issues raised by judicial efforts to address public health concerns.
John Culhane is to be commended for bringing together such an illustrious group of contributors to address public health, an issue that has been neglected in law schools. Knowing full well that factors like income, race, pollution, and even commute length may have a far greater impact on health than, say, dispute resolution methods used by insurance companies, law professors nevertheless tend to focus on purely legal topics. (I am as guilty of this as anyone, and credit this book (and many interventions by Daniel Goldberg) for pushing me to do more to consider the social determinants of health in my own work.) Well after the sturm und drang surrounding the constitutionality of the ACA has dissolved, we will still face problems of balancing liberty, equality, and welfare that this book’s thoughtful contributors address. Their voices deserve to be heard in those future, more substantive, debates.