Lee Taft 2017-06-01 20:59:11
A TOLL ON LAWYERS Exploring how the medical error disclosure movement can apply to the legal profession. What are the emotional, physical, or spiritual implications of legal malpractice on the lawyer making the mistake? Recent studies show the number of large claims against lawyers and increased indemnity payments are on the rise,1 pinpoint the areas of practice most likely to experience claims,2 and recommend how to overcome cultures that seek to bury the mistakes triggering claims.3 Yet no academic discipline has sought to explore how legal error affects the psyche of the lawyer who has made the mistake. In contrast, there is a developing body of research in health care that investigates the physical, emotional, and spiritual cost of error to doctors and nurses. In this article I’ve used the accumulating data in health care regarding the emotional implications on doctors and nurses and have extrapolated lessons learned in health care to lawyers. I posit that there is a direct link between legal errors and the high incidence of addiction, depression, and suicide among lawyers. ERROR IN HEALTH CARE In 1999, the Institute of Medicine published To Err is Human: Building a Safer Health System,4 a now famous study finding that between 44,000 and 98,000 people die each year because of preventable medical mistakes.5 In 2001, the Joint Commission—the regulatory body that accredits hospitals—responded by requiring all accredited hospitals to tell patients whenever they have an unanticipated outcome in their care,6 including those resulting from medical mistake.7 This launched the disclosure movement. I have been involved in the movement since its inception. In its first years the disclosure movement was patient-centered. It increased safety by spotlighting systems’ issues so that patients in like situations would not be similarly harmed. Disclosure also reduced costs. Stanford University’s disclosure program called PEARL, Process for Early Assessment, Resolution, and Learning, is saving the institution about $3 million per year and has reduced claims by 36 percent.8 The University of Michigan has reported even better results: its program has reduced claims and costs by more than 50 percent.9 As the disclosure movement matured, studies began to appear quantifying the effects of unanticipated outcomes on the providers involved in the events. At the University of Missouri, one in seven nurses reported having been involved in a safety event that led to increased anxiety and depression.10 In a follow-up survey of 898 health professionals, 30 percent reported personal problems within the last 12 months because of a clinical patient safety event.11 The Mayo Clinic followed a group of internal medicine residents for three years. Every three months these residents responded to a prompt that asked them “are you concerned that you have made a major medical error in the last three months?” Thirty-four percent responded that they had made at least one major error. Among this group, researchers found significantly lower quality of life, higher levels of burnout, and more than 60 percent screened positive for depression. The authors concluded that, “taken together these results suggest a vicious cycle whereby medical errors may lead to personal distress, which then contributes to further deficits in patient care.”12 These results were replicated in an international study13 as well as in a study involving 3,171 physicians who reported feeling guilty, self-critical, depressed, and scared after an actual or perceived error.14 Significantly, in the wake of a major mistake, doctors are three times more likely to contemplate suicide than their peers.15 In the wake of preventable errors, a properly designed disclosure process gives physicians the opportunity to account for the harm caused through a five-step process: remorse, explanation, apology, accommodation, and learning. In religious language, this process is called repentance, and when it comes to accounting for errors, it matters. Studies show that repentance is an important factor in determining whether an injured party will forgive. The act also invites the opportunity for authentic self-forgiveness.16 The outcomes of doctors’ errors are qualitatively different from those of lawyers. Most of the time, lawyers’ mistakes can be overcome with money; money rarely fully compensates a patient for the harm a medical error causes. Given this qualitative difference, I did not connect the data linking medical error to doctor distress with the emotional turmoil experienced by lawyers. Then, last spring, the first study in 25 years describing the rates of addiction and depression among American lawyers was published.17 Now, the link seems obvious and compelling. IMPLICATIONS FOR LAWYERS In 2016, the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs released a chilling study finding that 21 percent of the 12,825 lawyers sampled were problem drinkers.18 In comparison, 15 percent of physicians were found to be problem drinkers in a similar study, and 12 percent of the highly educated general workforce was found to be problem drinkers.19 Even more significantly, 30 percent of lawyers in their first 10 years of practice identified as problem drinkers, and lawyers 30 or younger had a 32 percent rate of problem drinking.20 “It is reasonable to surmise from these findings that being in the early stages of one’s legal career is strongly correlated with a high risk of developing an alcohol use disorder,” the authors of the study concluded.21 The study looked at lawyers’ mental health issues. Of the roughly 11,500 participants in the sub-study, 61 percent of lawyers expressed concerns about anxiety, 46 percent acknowledged suffering from depression at some point in their career, and more than 11 percent reported suicidal thoughts.22 Other studies had already established that male lawyers between the ages of 20 and 64 are more than twice as likely to die from suicide than men of the same age in other professions.23 The Hazelden study’s authors suggested some reasons to explain these grim numbers: job stress, isolation, law culture, competitiveness, financial pressures, and lack of job satisfaction.24 Yet, the study’s authors did not consider the effect of error on the lawyer. With numbers like those reported and the stakes so high, all stressors need to be examined. Like doctors, lawyers are taught to aim for perfection, be aggressive, and be emotionally detached.25 Unlike doctors, lawyers are not nearly as well-trained when they enter the practice. We are given full license to practice law without the internships and residencies required of doctors and enter a culture of trial by fire.26 When a perfectionist makes a mistake, he or she feels guilt and fear. If he or she does not account for that mistake, the guilt morphs into shame, and shame turns to isolation. It does not matter if the perfectionist is a doctor or a lawyer; both are subject to a vicious and debilitating cycle of shame in the wake of error. And those who experience shame often seek to medicate it, which could help explain why the rates of drinking are so high for lawyers, especially for lawyers new to the practice, those most likely to make mistakes. Just as disclosure is a corrective to this cycle for doctors, so, too, can it help address the suffering of lawyers. Doctors and their lawyers have had to overcome their fear of these processes, especially fears tied to the disclosure of an outcome resulting from a preventable medical mistake. When done authentically, they include fault-admitting apologies—and the evidentiary implications of those kinds of admissions make lawyers nervous. Studies like those from Stanford and the University of Michigan help doctors and their lawyers hurdle their concerns. Lawyers who wish to disclose their own errors will have to overcome similar concerns, especially if they want the forgiveness disclosure can provide. In preparing for disclosures, doctors often want to know what makes an apology successful. Some studies show that the most successful are those known in legal scholarship as full apologies.27 This is an apology in which A expresses remorse to B for the harm B has suffered and also accepts responsibility for causing that harm. In a partial apology, A expresses sympathy for the harm B has suffered without accepting any responsibility for causing that harm. In some states both full and partial apologies are legislatively protected from evidentiary import.28 In Texas, expressions of sympathy are protected; admissions of fault are not.29 Studies that have evaluated the success of apologies in facilitating settlements have shown that the full apology is the most successful, and, importantly, that offering no apology is more successful than offering a partial one.30 Studies of doctors’ apologies cut both ways. Some studies support the efficacy of apology in reducing claims and costs.31 Others have found that some patients sue even after receiving a full apology.32 Does a patient’s choice to sue mean the apology was not successful? If reducing claims and costs is the only reason the apology was offered then yes, it failed. Yet, there is more to the success of an apology than its financial efficacy. The same study that showed that some patients sue even after receiving a full apology also found that those patients held the apologizing doctor in high regard and with increased trust.33 This points to the moral and reparative dimensions of a successful apology. When A’s action harms B, B may or may not know the harm he or she has suffered is a result of A’s mistake. A must choose whether and to what extent he or she will account to B. This freedom to choose whether and what makes an apology a moral act; it demands that A wrestle with courage, honesty, vulnerability, and humility. From my perspective, the most successful apology, whether made by a doctor or a lawyer, is a full apology made after this moral struggle with full awareness that it may or may not have financial efficacy. A successful apology, then, is a full apology based on known and established information. It is dyadic: a communication between a lawyer and his client. It is offered to acknowledge and account for harm done. It is done with courage, humility, and honesty. Ultimately, a successful apology gives voice to the movements of repentance: remorse, explanation, acceptance of responsibility, accommodation, and lessons learned. The ultimate mark of its success is reconciliation between the parties evidenced by forgiveness, retained relationship, and restored trust. LOOKING AHEAD Confronted by data spotlighting the distress of their providers, hospitals are now trying to decide what to do with it. Some—a handful—are developing “wellness” programs designed to anticipate distress and respond to it. While there is not yet an agreed on model, there is agreement about key components: counseling, peer support, mentoring, and coaching. This is what such wellness initiatives could look like for lawyers: Law Schools: • Normalize errors by having professors teach from their mistakes. • Teach students disclosure processes and models. • Educate students about mental, emotional, and spiritual wellness. Law firms and bar associations: • Create mentor programs for lawyers in their first 10 years of practice. • Develop non-punitive reporting processes so that when something goes wrong, someone will know and intervene. • Destigmatize mental health interventions. Insurers: • Modernize risk management strategies and techniques. • Triage claims. • Require counseling. You: • When you know something has gone wrong for a colleague, make a house call. Hazelden’s statistics are not just numbers. They tell the story of our brothers’ and sisters’ suffering. We should follow the lead of the health care industry and conduct research on the effect of error on lawyers. And while we wait for the research, we should create wellness initiatives. The numbers are speaking—we have no time to lose. NOTES 1) American Bar Association Standing Committee on Lawyers’ Professional Liability, Profile of Legal Malpractice Claims 2012-2015 (2016) at 11, 14, and 18, http://www.abajournal.com/news/article/aba_study_suggests_legal_malpractice_insurers_are_settling_sooner. 2) Dan Pinnington, The Most Common Legal Malpractice Claims by Type of Alleged Error, Law Practice: The Business of Practicing Law, July/August 2010, available at http://www.americanbar.org/publications/law_practice_home/law_practice_archive/lpm_magazine_webonly_webonly07101.html. 3) Dolores Dorsainvil, Douglas R. Richmond, John C. Bonnie, My Bad: Creating A Culture of Owning Up to Lawyer Missteps and Resisting the Temptation to Bury Professional Error, Annual Conference of the Litigation Section of the American Bar Association 2015, available at http://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2015sac/written_materials/18_1_my_bad_creating_a_culture_of_owning_up_to_lawyer_missteps.authcheckdam.pdf. 4) Linda T. Kohn et. al. eds., To Err Is Human: Building a Safer Health System, Nat’l Acad. Press, Institute of Medicine (1999) available at http://www.nationalacademies.org/hmd/~/media/Files/Report%20Files/1999/To-Err-is-Human/To%20Err%20is%20Human%201999%20% 20report%20brief.pdf. 5) Id. at 26. 6) Joint Commission on the Accreditation of Healthcare Organizations, Hospital Accreditation Standards (2001), Standard RI.1.2.2. This standard was renumbered in so that it is now identified as Standard RI.2.90. 7) Rae M. Lamb et. al., Hospital Disclosure Practices: Results of a National Survey, 22 Health Affairs 73, 74. 8) J. Conway, F. Federico, K. Stewart, MJ Campbell, Respectful Management of Serious Clinical Adverse Events, Appendix E, Institute for Healthcare Improvement, (2d ed. 2011). 9) Allen Kachlia et. al., Liability Claims and Costs Before and After Implementation of a Medical Error Disclosure Program, 153 Annals of Internal Medicine 213, 215-17 (2010). 10) Leslie W. Hall et. al., The Second Victim of Adverse Health Care Events, Nurs. Clin. N. Am. 383, 385 (2012). 11) Id. 12) Colin P. West, et. al., Association of Perceived Medical Errors With Resident Distress and Empathy: A Prospective Longitudinal Study, 296 JAMA 1071, 1075 (2006). 13) David L.B. Schwappach et. al., The Emotional Impact of Medical Error Involvement on Physicians: A Call for Leadership and Organisational Accountability, 138 Swiss Med. Weekly 9 (2008). 14) Amy D. Waterman, et. al., The Emotional Impact of Medical Errors on Practicing Physicians in the United States and Canada, 33 Joint Commission Journal On Quality and Patient Safety, 467 (2007). 15) Tait D. Shanafelt, et. al., Special report: Suicidal ideation among American surgeons, 146 Arch. Surg. 54. (2011). 16) William Wilmot and Joyce Hocker, Interpersonal Conflict, 311 (7th ed. 2006). 17) ABA, Hazelden Betty Ford Foundation Release First National Study on Attorney Substance Use, Mental Health Concerns, Hazelden Betty Ford Foundation, February 3, 2016, available at http://www.hazelden.org/web/public/attorneysubstanceabusesurvey.page. Patrick Krill, et. al., The Prevalence of Substance Abuse and Other Mental Health Concerns Among American Attorneys, 10 Journal of Addiction Medicine 46 (2016), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4736291/. 18) Id.at48. 19) Id. 20) Joseph Wielebinski, Culture Shock: A groundbreaking empirical study confirms that lawyers face unprecedented substance abuse and mental health challenges. 79 Texas Bar Journal 226, (2016) available at https://www.texasbar.com/AM/Template.cfm?Section=Table_of_contents &Template=/CM/ContentDisplay.cfm&ContentID=32751. 21) Krill, supra note 17, at 51. 22) Wielebinski, supra note, 20 at 227. 23) Take Action to Prevent Lawyer Suicides. 76 Texas Bar Journal 64 (2013). 24) Wielebinski, supra note 20, at 228. 25) Debra Cassens Weiss, Perfectionism, ‘Psychic Battering’ Among Reasons for Lawyer Depression. ABA Journal (February 18, 2009), available at http://www.abajournal.com/news/article/perfectionism_psychic_battering_among_reasons_for_lawyer_depression/. 26) Yet, lawyers’ mistakes are not typically as apparent as medical errors and often are not disclosed despite laws, standards, and rules that require their disclosure. See e.g., Dorsainvil, supra note 3. 27) Jennifer K. Robbennolt, Apologies and Legal Settlement: An Empirical Examination, 102 Mich. L. Rev. 460, 484 n. 12 (2003). For a more detailed typology see Lee Taft, When More Than Sorry Matters, 13 Pepperdine Journal of Dispute Resolution 181, 185 n. 21 (2013). 28) E.g., Colo. Rev. Stat. Sec. 13-25-135 (West 2003); Okla. State. Ann. tit. 63 Sec. 1-1708.1H (2004); Or. Rev. State. Sec. 677.082 (2003). 29) Tex. Civ. Prac. & Rem. Code Ann. Sec. 18.061 (West 1999). 30) Robbennolt, supra note 28 at 484 n. 12. 31) See, e.g., Kachlia supra note 9; Institute for Healthcare Improvement, supra note 8; and Nicole Saitta et. al., Efficacy of a Physician’s Words of Empathy: An Overview of State Apology Laws, 112 Journal of the American Osteopathic Association, 302 (2012). 32) Albert Wu et.al., Disclosing medical errors to patients: it’s not what you say, it’s what they hear, 24 J. General Internal Med. 1012, 1015 (2009). 33) Id. LEE TAFT was a dually board certified civil litigator in Dallas when, in 1996, he made a career shift and entered Harvard Divinity School. In 2000, the Yale Law Journal published his graduate thesis on the role of apology in legal contexts. For the past 15 years, he has designed and implemented values-based crisis protocols and responses for hospitals, cities, and corporations. For more information, go to taftsolutions.com.
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