Mediation: Solving the “reasonable” conflict between medical error and negligence. (Part 3 of 3)
#beforeitistoolate
Alternative dispute resolution (ADR).
Rinesh Chetty
23/10/2022
The agreement to mediation: Attempting to use the philosophy of empathy to activate reflection and evoke critical thinking.
“Put that in your pipe and smoke it, before it is too late!”
Medicine is borne from the principles of science , we use mass amounts of data and research to dictate our treatments, from years of experience of knowing what works and especially what does not. We use this principal to improve our skill, knowledge and ultimately help our patients to the best of our abilities.
Law is borne from the statutes of what is right and what is wrong. The profession is guided by judgements that dictates that the behaviour in question was either correct or not. The legal profession uses these case based judgments to improve their skill, knowledge and ultimately provide the best argument to either defend or obtain justice for their client.
What is the difference between a patient and a client?
Is there?
Both Doctor and Lawyer have a fellow human being in front of them and both professionals studied, worked and sacrificed to firstly tell that fellow human that “by title they can help them” and secondly that “by education they have the ability or power to help them”. Both professionals require a complaint that activates their call to action.
The patient has an illness that their physiology could not resolve and thus requires a medical intervention or the client has a problem their sociology could not resolve and thus requires legal intervention.
A key benefit of mediation is the time saving factor.
The doctor’s actions are in majority of the case urgent or required at the point of the complaint. I am sick now, I need help now, it can not be adjourned. Our call to decisive, urgent action is universally accepted and legally judged by the standards of what a “reasonable doctor”, would have done in that situation. To highlight the definition of reasonable: “as much as is appropriate or fair- moderate”. It does not say “talented or deficient”. By the legal term it says moderate, it leaves space for the grey, “the doctor was not very good but not that bad either’.
Are they good? I want the best? The Medical aid will pay!
A patient will quest for the “best” doctor, how do you judge? By word of mouth, referral, by how the doctor talks to you, their appearance, how much they charge, social media profile or on occasion by their outcomes, if known or available.
Doctors don’t judge each other by any of that, during internal medical reviews of complications, we use the science and evidence as our pure gold standard, to judge if that doctor followed the science. The science will either defend or defeat the doctor’s decisions they took during the process of treatment. I always think to myself, when making my judgement and analysing the timeline of the complication. What would I have done, in that situation? Would I have done something different to the actions of the doctor in question?
If I would have done the same thing: I stop reviewing and support them, because my opinion concurs. If two medically trained doctors would have done the same thing in that event on the timeline. I concur, their science agrees with my science. It’s similar to principles of the mental health act that allows for the emergency forceful detention of a suspected mentally ill person provided two doctors concur.
If however if my opinion differs, I allow the doctor to use their science to defend their treatment decisions. Show me the evidence based protocols that you followed that differs from my opinion? If they can’t defend their actions because it was not evidence based, or in other words peer- reviewed by their colleagues then I judge them as breaching their duty of care towards the patient. I disagree with your treatment decision it was not based on the science. There is no defence.
What makes me so talented to make that judgement, just like that? You question if I am an expert , what experience do I have? What if you not that good, you might be deficient in your knowledge of the science? I know, that is why I am being reasonable in my judgement of my colleague, the fact that I would have probably done same thing in that event, allows me to defend their actions. If my actions would have differed and our peers reviewed science can confirm why I would have done something different to the doctor in question, then understand why I trust myself as a medical doctor to make a negative judgement against my colleague with confidence.
A lawyer’s call to action in contrast to medical professionals can not be rushed, it requires to follow their prescribed circumspection by using a formal adjudicative process that must be fair to both parties. Their mandate simply is to investigate if ultimately this alleged medical error was negligent or not and advise what repercussions, if any follow. It will take very long. The process to assess their mandate is complicated by the strong confidentiality clause that exists in both the medical (doctor-patient) and legal (client attorney privilege) levels. A simple breach in protocol, investigation, evidence gathering and document preparation can have devastating effects to either client’s quest for justice or innocence.
The medical negligence law especially in South Africa is judged in black or white there is no room for grey (as opposed to other countries that define “gross” negligence as a criteria for guilt) hence the need to make sure the process is formal, exact and fair, which is why judges allow time for each side to prepare and communicate via formal channels, adjournments and time is afforded. This is why clients wait longer than patients. Law is case based, time is needed to formulate arguments, discover evidence, obtain documents and book court time. Time is required to prepare and judge especially in the case of something as complex as a suspected medical error that might be negligent.
Beyond the logistics that prolongs the law process, the most time spent in court follows after the preparation, the trial is used to convince a judge to remove or refute the doubt from “suspected medical error” and “it might be negligent”. The judge must advise on the repercussions based on the severity of the insult because once they know it was wrong they can judge given that is their title and expertise.
So if the legal process is activated to seek justice or innocence in medical negligence it will always take “many years” because if a doctor is judged in principle by the reasonable doctor standard and by definition reasonable does leave space to be grey, a lawyers complex job (what they are mandated to do) is to by argument using case law to prove to a judge that it is black (for the patient) or white (for the doctor). A Time consuming, costly and very frustrating process for all: the suffering patient, grieving loved ones, the doctor with a reputation and lawyers that have to interpret the grey to find the black or white and then after all that, argue it to a judge as such. This process should be allowed to take time, because for the law to be followed it must take its course or else there would be anarchy, as some might think they are above the law.
You sure? Be sure.
However if there is a perceived immediate danger to the public at large be it through suspected intentional or continued medical negligence which would then fall into the realms of criminality or insanity the legal process must be urgent . Both conditions if practised by a doctor can lead to unnecessary mortality or mobility, given the doctors trusted role in society. In that situation their clients complaint process must be expedited, investigated and in-quested with great speed. It is a legal emergency and should be handled with the same urgency a spinal surgeon would treat an acute case of cauda equina . It must take priority over anything else. For example: If the state feels they have enough evidence to arrest a doctor for murder, then an adjournment to wait for more evidence, does not make sense, the ethics and thought process or lack there of behind this is an essay on its own.
Truthful honesty
Without prejudice and 2 levels of protected confidence:
The release of the bounds of Confidentiality and prejudice are the two key elements when combined with the benefits of saving time, money and reducing the mental anguish associated with litigation would persuade any doctor that feels they “worked in the grey” to take the time to slow down from their urgent service demands of their occupation and to listen to why their patient has complained. It then also allows the doctor to at bare minimum reply or explain the grey (to clarify the science behind what happened) to their patient in a safe protected and comfortable environment.
Throw down the gauntlet?
Another benefit to the mediation process: the lawyers can also use this environment to understand the grey, it indirectly allows them the chance to peer into the Pandora’s box of formal medical negligence litigation before opening it (they can make an informed decision to litigate or defend if mediation should fail) : to calculate the amount of time, cost and burden on them, that will be required to obtain the proof, so that this case can be argued as “black or white” ultimately in the quest to get to the last butterfly of hope. Hoping that through argument they dodge the wasp stings of wrath, gluttony, greed, envy, sloth, pride and lust that so commonly fuels or feeds off these cases, so the judgement can finally be in their clients favour. We won, at what and whose cost.
Patients trusted their doctor, they would not have entered the room or allowed the doctor to treat them in the first place if they did not. How could they have done this to me, allowed this to happen or make a mistake? I trusted them to make me better not worse. I paid so much for this!
The feeling of disappointment in the outcome hurts them as much as it hurts the doctor especially if the doctor justifiably in hindsight “worked in the grey”.
A patient, as lawyers do, only see the “black or white”. The patient or my client did not get better. The outcome will always be perceived as black, looking for answers to why, how and who is to blame.
“I sat with my anger long enough until she told me her real name was grief.”-C.S Lewis
The grief of the black will always present as anger it often frustrates because an open line of communication is required with their doctor to get answers to progress through their grief of the outcome. They need the same open line that was available when they trusted their doctor, before this problem ,when they could speak freely and the doctor had a trusted relationship with them. The doctor was going to make me better, it failed and now I am worse. Any whisper of a complication be it from the patient or to the doctor’s lawyer (MPS: report any complication to them regardless if the patient complains), even if they worked in the grey will close all lines of communication, severing any hope of continuing a relationship with your patient, and incarcerating any chance for both parties to obtain therapeutic closure through clarity, trust and honesty.
Smoking the peace pipe; a term referred to those who want to make peace and compromises on issues that were not obtainable before. Native Americans smoked these pipes believing that it can transport one into a tranquil and spiritual hence reflective state of mind. The need to fight or flight is not required if you are at peace with yourself and the opponent. If each person’s neo-cortex engages in reflection it allows logic to prevail. If this state is reached it could facilitate the end of a dispute, reach a treaty or simply make peace with an opponent.
Mediation is that pipe, the mediator’s role is there as the guide to facilitate each party to light the pipe and assist adversaries to reach a mental state in which peace might be obtainable without the need for violence. The process if used responsibly and correctly can be a win win situation for everyone.
A mediation agreement: Proving that an adversarial black vs white society can thrive peacefully in the greyscale.
“Put that in your pipe and smoke it, Please?, it’s not to late.
#BeforeItsTooLate
References:
Discourage litigation. Persuade your neighbors to compromise whenever you can-Abraham Lincoln
Peace is not the absence of conflict, but the ability to cope with it-Mahatma Gandhi
Let us never negotiate out of fear. But let us never fear to negotiate.-John F. Kennedy
Mediation and reconciliation work is about a profound quest for justice and social transformation. But at the same time, they are about service, solidarity, about exploring and rediscovering the human spirit that has been lost or shattered through human conflict, cruelty, ignorance and greed.-Hizkias Assefa
https://blog.ipleaders.in/arbitration-mediation-and-conciliation-different/?amp=1