Escaping the Shadow of Malpractice Law

I INTRODUCTION Medical malpractice doctrine is one of the core issues in the current debate over healthcare reform in the United States. For decades now, it has been universally accepted that the threat or reality of formal litigation stemming from--or at least claiming--malpractice has been the single most important factor shaping the medico-legal arena. While conventional wisdom has it that patient safety is and should be our paramount concern, the proliferation of malpractice claims has dramatically increased the costs of medical care and has adversely affected its quality due to the emergence of "defensive medicine" and an ensuing "brain drain" from certain medical specialties. Based on empirical findings, this article argues that this view is at once overly broad and overly narrow. First, the preoccupation with malpractice suits has served to overshadow the importance of other, more common disputes that have a profound impact on the medical environment. Second, much of the discourse has tended to overlook the pernicious byproduct of malpractice law that I term "defensive communication"--a mode of interaction designed to protect practitioners from malpractice suits, but which, in fact, breeds conflict and serves as a barrier to resolution efforts. Both the importance of non-malpractice disputes and the spread of defensive communication have often gone unnoticed in the legal and medical communities. Our prevailing understanding of the daily reality of doctor-patient relations has therefore been incomplete in two central spheres, hindering efforts to reform medical-malpractice law and to improve healthcare services. These empirical findings are drawn from a qualitative research project examining the culture of disputing at one hospital. More specifically, the study analyzed the prevalent types of disputes, existing avenues for addressing them, and the potential of Alternative Dispute Resolution (ADR)- and mediation-based skills for effectively resolving and preventing conflict in two of the hospital units. This close inspection of the quotidian reality in medical settings reveals that the most common types of disputes in day-to-day hospital life are small-scale conflicts over such matters as long waits, having to vacate a bed, being transferred to another department or institution, or even a doctor's tone of voice. These "little injustices" (1) are typically ignored or dealt with on an ad hoc basis; in some cases, they lead to a formal complaint, but they are only rarely litigated. I therefore refer to them as "non-litigable disputes." (2) As the findings of this research project reveal, despite the "small scale" nature of these conflicts, their cumulative impact is by no means trivial. Non-litigable disputes are widespread' and exact a high toll, not only from disgruntled patients and their angry families, but also from worn out medical staff. Doctors and nurses describe their workplace as a battlefield, an environment fraught with disputes, which detracts not only from clinicians' well-being but also, ultimately, from the quality of healthcare they deliver. Despite these compelling descriptions, we find that non-litigable disputes tend to be addressed unsatisfactorily, if at all. Most non-litigable disputes arise from miscommunication or are exacerbated by it, and, as such, could, in theory, be addressed effectively through ADR or through the advancement of ADR-based communication skills among medical staff. Indeed, there have been numerous efforts over the years to introduce ADR mechanisms into hospitals (and the healthcare arena more generally) as well as serious attempts to enhance medical staffs' (in particular, doctors') communication skills. However, many of these initiatives have stemmed from a malpractice-driven agenda, offering these processes for the resolution of malpractice claims, as a means for preempting litigation in the aftermath of a medical mishap or preventing medical errors from occurring. …