Below is an email I received (actually from another list) that I
thought would certainly be of interest to the physicians here.
Also, it covers some issues involving medical information and
collaboration. Mr. Green has joined us on the list and I thought
we might be able to 'pick his brain' on liability issues in
regard to open source software. While this may not be his
specialty he (and our other resident attorney) may have some
things to watch for as we develop and implement FreePM and other
projects.
Jerry also forwarded another document that I have posted on
FreePM.org (see links at the bottom of the page). I am especially
interested in how electronic documentation can assist in showing
that a physician gave the patient certain information (physician
protectionism). What do we need to build in to the software?
Does it need to be as strict as what Horst Herb is trying to do
with his project, GnuMed?
------------------------------------------------------------------
Subject: Conference follow up.
This was the outcome of the 10/20-21/00 conference I spoke at:
MANAGING TO DO BETTER:
PRIMARY CARE PRACTICE AND EDUCATION IN THE 21ST CENTURY
Presented by Partnerships for Quality Education at Harvard
Medical School
and the Center for the Health Professions at the University of
California,
San Francisco, at Hyatt Regency La Jolla - San Diego, California
Course Directors: Gordon Moore, MD, MPH and Sunita Mutha, MD
Would you like to forward this?
This is a c.c. to those listed at the end.
Sunita Mutha, MD, Director
Center for the Health Professions
University of California
San Francisco
Dear Sunita: Re: PARTNERS IN COLLABORATION
A playful green rubber ball now sits on my desk suggesting
"Partnerships
for Quality Education." Thank you for creating the opportunity
for us to
meet and share our converging perspectives of potential
disruptive
innovations to cure heath care. I was most impressed by the
acceptance of
Dr. Moore and other leading thinkers of the fact that our
difficulties
represent a paradigm shift, and that an image of a new order is
not yet
visible from the fragmentations that pervade your current
workplace. Would
that other fields of vested interest approach self-reflection
with such
humility. You are a tribute to the integrity of your oath.
I left the conference with a different intention than I had
when I
arrived for my presentation on collaborative planning. I remain
open to
selling the idea, if asked, that agreements between doctors and
patients can
avoid problems associated with informed consent and lay a
foundation for
improved clinical efficacy. I believe both to be true. However,
some
physicians and nurse practitioners I met who have been making
contracts, and
a handful of others who seek out express agreements from
collaborative
conversations without realizing their significance, have given me
a better
idea.
Collaboration has been a growing buzz-word in health care.
This
suggests to me that its uses are diverse, and its objectives may
often be
less than intentional. Collaboration may or may not lead to
agreement.
When it does, it reduces adversity in clinical relationships and
improves
clinical efficacy. It also constitutes a profound shift in the
context for
evaluating professional responsibility. Hereıs my better idea.
I want to help the people I met discover the pockets where
collaborative
planning exists, and bring attention to the significance of their
activities. I can help them think about the issues on which
agreements
might be sought, and what education, procedures and documentation
might be
appropriate for their interests. I suspect that most of the
existing
collaborative planning is aimed at a diversity of issues which
reflect what
might make specific relationships work better. They can use the
website at
MedAgree.com to think about scope of practice and decisionmaking
roles,
though I suspect these issues are seldom the subject of "informal
agreements."
This activity alone may draw attention to the practice of
collaborative
planning and make a topic out of what is now mostly a buzz-word.
It will
stimulate thinking about the potential benefits of health care
agreements,
and hopefully spill over to the often-hazy boundaries between the
responsibilities of related specialists. My efforts in this
regard will
underscore that collaborative planning is a natural evolution and
not some
lawyerıs widget. Then the medical lawyers will see only the
results of its
impact, and we may avoid confronting invested resistance to
disruptive
innovations.
Whatever the landscape of the new order looks like, I am
certain that
its dimensions will grow from the foundations of partnership.
Health care
agreements are suggested by so many of the themes we heard last
week;
"informed patients," "empowered consumers," shifting of the
authority model
of "doctors orders" to "patientsıchoices."
I am copying this email to this initial group of
collaboration partners,
together with my website intro. Collaborative planning means
ongoing
agreements, which change when needed. This is contract thinking
without the
static implications of "legal contracts." Planning is a familiar
concept in
medicine. As we begin to think more about planning with
patients, consider
making agreements about the issues that need clarification in
order to
improve cooperation and efficacy.
Though I suspect that decisionmaking and scope of practice will
become
standard issues, they may not be the initial ones. Make any
agreements that
will make relationships work better. Ultimately, I suspect, your
agreements
will come to include these two issues, about which there will
always be
implied agreements. Then, express agreements will clarify
divergent
implications, because collaboration is also a diagnostic tool.
Please spread this email around where you think people are making
express
agreements. You can recognize agreements if the parties
distinguish choice
from consent. Encourage other "partners in collaboration" to
email me, and
I will send them this letter and web intro, and keep you all on a
growing
"partners list" to whom I can send updates and cultivate
supportive
relationships. Let me know how I can till the soil in your
collaborative
planning garden.
Jerry A. Green, JD
Practice Management Consultant
Medical Decisionmaking Institute
c.c.
Gordon Moore, MD
Elizabeth March
Brian Battle
Lisa Biggs, MD
Mary Knudtson, FNP
Mary Corley, RN
Tariq Malik, MD
Teresa Erskine, RN
Carol Stack, ARNP/JD
George Isham, MD
Jerry Reeves, MD
Rahul Singal, MD
Arlyss Anderson Rothman, RN
W. Blair Brooks, MD
Blackford Middleton, MD
Website intro: This website has been re-designed to provide
collaborative
planning information as a stand alone project, independent of any
professional assistance, seminars or consulting services.
Empower Shared Decisionmaking with Collaborative Planning
MEDICAL DECISIONMAKING INSTITUTE
I have a contribution to make to the corner of the medical
decisionmaking
field who are concerned with patientsı roles and relationships.
The
proponents of shared decisionmaking who appeared on the NPR
program
Healthcare Choices and Medical Decision-Making (6/30/00)
underscored the
distinction between consent and choice, and seemed to imply some
frustration
with popular understanding or what it involves. They are not
alone among
those who wrestle with irregular boundaries of "informed
consent." My work
is about the choice we have to clarify how informed consent is
understood
and used.
The model contemplated by the website MedAgree.com identifies
the
fundamental functions of the health care relationship, and
suggests how
common misunderstandings may be clarified by agreement. Because
the basic
terms of the health care contract have remained implied (and
subject to
misunderstandings,) our evolution toward shared decisionmaking
has been
slow. A President's Commission's proclaimed our need for it to
replace
informed consent twelve years ago.
My published writings on this subject are based on the 1988
President's
Commission's findings and the principles of evolution in common
law
articulated in 1976 by University of Chicago Law Professor
Richard Epstein.
His writings describe the natural evolution from tort to contract
as it is
seen in other fields, and illustrate his hypothesis with examples
from
products liability law and other areas.
Collaborative planning can define how informed consent is
understood and
used; it defines the allocation of responsibility for making
decisions. It
also enables both parties to define the scope of professional
responsibility
that health care professionals assume. It makes an express
contract out of
a hazy implied contract that may contain different views of all
same terms.
I am also interested in public education, and have provided the
website with
a patient survey of values and preferences, which reflects the
ideas in the
professional program.
I am aware of the programs produced by the Foundation for
Informed
Decision-Making, and have followed their use in several health
care
facilities. Like research assisted telephone advice systems,
such programs
can be of great value to patients facing decisions which are
clearly theirs
to make. However, patients coming "armed with medical research"
can
exacerbate adversarial relationships. Thus in my opinion, both
these forms
of patient education will benefit mostly patients facing their
own
decisions, not the many shared and professional medical decisions
they may
face. Collaborative planning defines the landscape for all
decisions. And
making agreements improves relationships.
The remainder of this material contains excerpts from pages at
the site.
Visit the site and use it for your clinical practices. Teach
collaborative
planning in your programs. The site can work by itself, and the
principles
can be taught by almost anyone. I can help you design programs,
and speak
on its principles and applications. If health professionals made
clearer
agreements with patients, and with role clarification and
collaborative
planning they can, we might enjoy a more expanded view of the
need for a
"patientıs bill of rights." I look forward to meeting you
personally.
Jerry A. Green, JD
MedAgree.com
COLLABORATIVE PLANNING FOR PHYSICIANS
The program format contemplates the making of agreements that
clarify
physicianıs roles and the patientıs responsibilities. It also
provides for
the allocation of responsibility for making decisions according
to
physiciansı preferences and patientıs values and needs. The
program may be
used to accomplish the following objectives:
improving doctor-patient relationships
clarifying your scope of practice
reducing malpractice risks
reducing unrealistic expectations
improving clinical efficacy
improving trust, confidence and compliance
identifying problems generated by informed consents
increasing appreciation of professional talents
clarifying informed consent
This program, available free at MedAgree.com, includes a
survey of one's
existing decisionmaking patterns. Just by completing this part
of the
program, you will learn the programıs basic dynamics, and begin
noticing
aspects of your practice patterns that you may want to expand, or
things you
may want to change.
THE PROGRAMıS PREMISES
Every doctor practices with a combination of implied and
express
agreements which allocate responsibility in their clinical
relationships.
Oneıs pattern of agreements reflects oneıs skills and preferences
for
sharing responsibility with patients. When roles are implied by
conduct
rather than defined by agreement, they are often misunderstood by
both
parties.
Twenty years of consulting with medical malpractice attorneys
has
enabled me to identify patterns of misunderstandings between
doctors and
patients which generate unrealistic expectations, adversity and
litigation.
I have observed that less than 20% of malpractice cases involve
negligence,
yet probably 90% involve common misunderstandings between doctors
and
patients about their roles and respective responsibilities.
The remedy for these misunderstandings is shared
decisionmaking and
collaborative planning, which also includes role clarification
and the
making of individual agreements or plans. Employed together,
shared
decisionmaking and collaborative planning clarify the context
within which
informed consent is understood.
This professional education program identifies the four
models of
decision making, enabling doctors to make agreements with
patients about
which forms their decisions take. In addition, the program
clarifies the
scope of professional responsibility that is assumed, and
provides a
framework for defining patient responsibilities upon which
treatment
expectations depend.
The program format has two parts. The first part evaluates a
physicianıs
current patterns of generating expectations and allocating
responsibility.
The second part teaches a framework for structuring relationships
by
agreements, which are based upon physician interest and skills
and patient
needs and preferences. It may be completed privately or in
seminar form
through your practice management offices.
Our intention is to impart the concepts and skills that will
allow
physicians to transform adversity in clinical relationships where
a struggle
goes on between professional standards, personal values and
individual
preferences for allocating responsibility. A Presidentıs
Commission in 1982
acknowledged that the doctrine of informed consent does not have
the
capacity to encompass the diversity of reasonable possibilities
in shared
decisionmaking. See J. Green, Minimizing Malpractice Risks by
Role
Clarification: The Confusing Transition from Tort to Contract,
Annals of
Internal Medicine 109/3: 234-241, 8/1/88.
Our goal is to empower doctors to elect decisionmaking
strategies which
may depart from their preconceived patterns in order to
accommodate the
values and preferences of individual patients; not to get them to
share
decisions, but to enable them to choose to allocate
responsibility according
to their own desires. As our health care system transforms
itself, those
practices that are built upon the foundations of collaborative
planning will
have more lasting value.
Comments:
"The interpersonal process is the vehicle by which technical care
is
implemented and on which its success depends."
Avedis Donabedian, MD, MPH
"Doctor-patient agreements can clarify how consent is understood
and used."
Laurens White, MD CMA Past President
"Greater patient involvement in decisionmaking is essential, not
only to the
malpractice crisis, but also to the larger goal of optimal
resource
allocation."
Patricia Danzon, PhD, University of Pennsylvania
Medical Malpractice: Theory, Evidence & Public Policy
"It is very difficult to fashion public standards, be they
judicial or
legislative, that function better than the contractual rules they
replace.
There are elaborate agreements for common purchases of household
goods; we
need explicit agreements now for medical practice."
Richard Epstein, LLB University of Chicago
Medical Malpractice: The Case for Contract (1976)
"I am fortunate to have found Mr. Green, who is a fruitful source
of ideas
on successfully structuring health care practice. In an
educational format,
he is unusually talented in explaining these ideas. He listens
to client
concerns, analyzes them cogently, and suggests approaches
succinctly and
effectively."
K. Lee Peifer, Heath Care Attorney, Albuquerque, NM
"Your professional education at Grand Rounds in Obstetrics and
Gynecoloy at
UCSF was extremely enlightening and very effective in defining
the various
roles played by each person."
Edward C. Hill, M.D., Professor Emeritus
"Mr. Green presented a fascinating program at the California
Society for
Healthcare Risk Management's Annual Education Program. All
attendees showed
great interest, and the Board of Directors of CHSRM were uniform
in their
praise of the refreshing presentation."
Mark Cohen, ARM, RPLU, CSHRM Director, Risk Management Consultant
Introduction
Collaborative Planning for Physicians, includes study exercises,
model
forms, an article entitled Shared Decisionmaking and Role
Clarification
Potentials in Medicine, and consulting time to offer suggestions
and provide
answers to questions. The objectives of the consulting time may
be achieved
in a seminar format.
To begin your own study of collaborative planning, I suggest
that you
first identify three patients in your current practice who
exemplify the
following decisionmaking styles:
Patient A: usually wants you to decide.
Patient B: usually only wants "your expertise and advice."
Patient C: is a joint decision-maker.
Then ask yourself the following questions:
1. What do you like/dislike about this relationship?
2. What is your scope of practice (professional responsibility)
in this
relationship?
During this inquiry, distinguish between collaborative planning
about the
purpose of your work (your scope of practice) on the one hand,
and your
chosen manner of allocating responsibility for making decisions,
on the
other.
AUTHOR'S PROFILE Jerry A. Green, J.D., has been a special
consultant to
attorneys on medical issues in malpractice for over twenty
years. He
conducts professional education programs on risk management,
informed
consent and role clarification. He received his B.A. from
University of
California, Berkeley in 1964 and his J.D. from Boalt Law School
in 1967. He
is a pioneer of the health care contract, and has authored
articles and
contributed to professional education conferences on the subject.
A list of
medical conference presentations is available on site. His most
recent
article, entitled Shared Decision Making and Role Clarification
Potentials
in Medicine is unpublished, and is available on request. He
authored
Collaborative Planning for Physicians, with which he consults on
practice
management and conducts professional seminars for physicians and
other
health practitioners. He is a member of The Society for Medical
Decision
Making.
Medical Decisionmaking Institute
Post Office Box 72, Graton, CA 95444 (707) 824-4344
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