Leslie Kane, MACC

A new year, a fresh start. Perhaps 2008 will be the year for real progress in resolving the malpractice crisis. 

The public is slowly getting the message that stratospheric malpractice premiums ultimately harm them too, as good doctors flee certain states and drop important procedures. 

One alternative, health courts, makes a lot of sense, but its forward momentum rivals that of Sisyphus. With health courts, compensation judgments would be made outside the regular tort system. Specially trained judges would make decisions on an avoidability standard. Injuries would be compensated if they could have been avoided with best practice care. Negligence, by contrast, focuses on whether care fell below customary practice.

That means no more juries making mega-awards based on sympathy for the plaintiff. Health experts would award compensation based on uniform guidelines. 

The lack of progress isn't for lack of effort. Two separate bills were introduced in 2005 at the federal level and, most recently, a bill presented in New York in 2007 would provide for a health court pilot program in five counties. Other states have also introduced bills proposing alternatives to our current system. 

Lots of smoke, but still no fire. The bills are introduced with great fanfare, then vanish.  Through benign or active neglect on the part of the legislature, health court bills don't get put up for a vote. 

Politically, health courts are a tough sell. First, the potential benefit to consumers isn't readily clear to them. Plaintiffs could end up with less money-much less, in some cases. 

Second, the legal lobby has teeth. Many legislators are attorneys, and know that if they lose the next election, they'll be dusting off their resumes. Supporting legislation that vanquishes a source of trial lawyers' income could be a suicidal career move. 

Still, the "what's in it for me?" consumer angle may become more obvious. The proposed system is now being paired with a focus on collecting and using data to improve patient safety and hammer out guidelines about patient compensation. That could make the concept of health courts more appealing to the public.  

In addition, their cases would be easier to file; decided with greater speed and reliability; and entail less administrative overhead. This could potentially lower their healthcare costs. And doctors may not need to practice as much defensive medicine. 

Health courts would encompass a no-fault system that encourages physicians to report medical errors without fear of lawsuits or retribution. The reporting would enable people to identify and correct workplace and system deficiencies, so that the same types of errors don't recur. 

Another plus: The public has become more aware of the connection between patient safety, quality, and medical liability, says Paul Barringer, executive director of Common Good (

), which is leading the charge for health courts. As such, support for health courts will probably come from a grass roots movement, rather than a top-down edict. Barringer believes change is more likely to come as small state pilot programs like the one in New York prove their mettle and build up critical mass, attracting more backers. But first, more health court bills need to see the light of day.

Although huge awards might become scarcer in the future, consumers and doctors would benefit more from averting serious medical errors than from fighting in court to try to salvage a wrecked life. 

Articles

There's more to be gained from averting serious medical errors than from fighting in court.

Why health courts could pick up steam

Problem is, the cold turkey, muster-your-willpower approach often collapses after a brief stint. Unlearning a habit that you've been practicing for 10 or 20 years demands effort and vigilance. Habits are behaviors you've repeated so often, you now do them on autopilot. They've become part of your comfortable routine, and they often help you alleviate stress.  

In some ways, habits are "addictions lite." The latter have a chemically-addictive component (i.e., drugs or alcohol), have a stronger compulsion element, and can cause major life problems. While many scientists say there's a genetic predisposition to some addictions, most also believe that whatever the origin, you can still overcome them. 

 Ever say "I'll stop when I get motivated" or "I don't quit smoking because I don't really want to." That's not surprising. No one inherently wants to give up a comfortable, pleasurable activity. You need to motivate yourself by creating an inviting, attractive goal and focusing on the rewards of achieving it.  

Visualize the rewards that come with breaking your habit-whether it's having more energy, looking better, getting admiring looks, or feeling proud of yourself. Take some quiet time to picture those images in such detail that they become clear and visceral-in your gut, not just your mind. Actively call them into your consciousness and dwell on them throughout the day. Create reminders that evoke the new image of yourself living without this behavior.  

In addition, picture yourself in a situation where you'd normally act a certain way out of habit, and mentally rehearse acting differently. Mental rehearsal is powerful and it works; people have even reported being able to improve their golf stroke through mental practice. The same holds true with breaking a bad habit.  

 Yes, recording your actions is annoying, but it's also a critical step toward helping you change. Keep a log of every time you smoke, have too much coffee, overeat, or indulge in your habit. Note the situations that have become linked with your habit (i.e., a cigarette every night after dinner), your feelings at the time, and anything that triggered your behavior. After a week or so, identify recurring situations.  

Choose one situation to tackle first. If you pick them off one at a time, you're more likely to make changes without feeling completely deprived. The all-or-nothing approach seems so restrictive to some people, they won't even try. One alcohol abuser who rejected the Alcoholics Anonymous' abstinence edict said, "I can't even have a glass of champagne at my daughter's wedding? Forget it!"  

Several weight loss programs and habit-breaking regimens build in allowances for an occasional indulgence, known as the "harm-reduction" approach. If the specter of deprivation has kept you from breaking your habit, try the "at least I'm doing it less often" philosophy.  

Caveat: Most experts agree that drug or alcohol abuse doesn't lend itself to a harm-reduction approach. If you're abusing drugs, you need to eliminate them.  

Breaking bad habits

Let's face it: Change happens, and it can be unpleasant. Maybe your new senior partners want you to see more patients per day, or your longtime office manager quit, or a severe injury ends your participation in a sport you're passionate about.   

While some people jump in and adapt, others may react in one of four ways: by becoming depressed-feeling helpless, hopeless, and unmotivated; anxious-becoming tense, mentally overloaded and disorganized; angry-churning with hostility and blame; and denial-pretending everything is fine, but their emotions surface in less-obvious ways. 

No matter what your initial reaction to the change, you can control your attitude toward your new reality. Psychologist Albert Ellis, founder of cognitive behavior therapy, described how people react to change using an ABC mnemonic: A is the Activating event (the change); B is your thoughts or Belief about the event-how you regard it; and C becomes the Consequence of your belief, such as reaction, feeling, and behaviors. If you alter your belief by finding something positive in the situation-or by deciding that life is too short to get too distressed-your feelings can vastly improve.   

Here's what to do if change is forced upon you: 

 Look for something good about the situation even if you need a microscope to find it. If you're forced to see more patients, you may find ways to become more efficient; if the group hires a new associate who's now competing with you, you might explore ways to improve your people skills. You don't need to pretend that the negative doesn't exist, but try to view the change objectively. Inventory the gains and losses, which can help balance your emotions. 

Making change work

Annoyance. Frustration. Self-doubt. Perhaps you felt all of those when you couldn't get your partners to revise their call schedule; you hit a stone wall in your negotiations with the managed care company; the Toyota salesman rejected your offer; or you and your spouse battled over how much to spend on your home remodeling. 

Negotiating is part of daily life, whether you're dealing with patients, insurers, colleagues, or family members. But negotiation is a dance, and if you don't know the steps-or even know that there 

 steps-you'll trip over your own feet. When you're toe-to-toe with a mortgage broker, salesman, or employer, he or she has likely been through this process many times, and probably has had sales training. They know the dance and how to do it 

But that doesn't mean you can't come to agreements that satisfy you. These skills and tactics can help you bargain more successfully:  

So accept the fact that you may indeed feel awkward or distressed for the short period of time that you're negotiating. Remind yourself that the chance to get a superior outcome is well worth some brief anxiety. "Temporary inconvenience, permanent improvement" is a slogan worth remembering.  

Figure out what you're prepared to give up and be ready to compromise. In order to get, you often have to give. But don't compromise so much that you're fuming inside. What you realistically want to shoot for is to get enough of what you want, not everything you want. 

Before entering negotiations, figure out what would be your plan B-if you had to walk away from the deal. Roger Fisher, of the Harvard Negotiation Project, uses the acronym BATNA-your Best Alternative To a Negotiated Agreement. If you can't negotiate something better than your BATNA, walk away. 

Be creative about solutions. Once you know what the person you're dealing with truly wants, be open and creative in what you might offer. For instance, if you see your family during Christmas, pick another holiday to get together with your spouse's side. Think of several different options that might solve the problem in different ways. If a prospective employer doesn't seem willing to budge on salary, perhaps you can bring something else to the table, such as your ability to be visible in the community and negotiate a bonus for the extra patients you bring in to the practice. 

				  State outright what you want; don't hint and don't expect the other person to divine your desires. Wishing, hoping, and praying won't convey the message as directly as saying, "I'd like you and the kids to help me clean the garage." Better to say what you mean than internally stewing, "Can't they see the garage needs cleaning?" 

Author | Leslie Kane, MACC

Articles

Why health courts could pick up steam

Breaking bad habits

Making change work

Getting what you want