Freedom of Speech
for Patients
Is the right of doctors to protect their reputations
greater than the right of patients to protect their lives?
"Everyone seems to be afraid of lawsuits and the ramifications of bringing false accusations against someone in the healthcare community. As a potential patient, I find that unacceptable."
- M. William Phelps, author of Perfect Poison
Floyd E. Bloom, M.D. (President of the American Association for the Advancement of Science and chief of the neuropharmacology laboratory at the National Institute of Mental Health) has said that he would like healthcare to be regarded as something like a public utility.
Unfortunately, healthcare workers keep demanding and getting more protection and patients keep getting nothing in return. For example, the Patient Safety and Quality Improvement Act signed into law on July 29, 2005 established a federally protected safe harbor for healthcare workers who voluntarily report medical error. The law makes it so that those reports cannot be used in malpractice litigation against them. But if patients file such reports, those reports can be used against the patients.
Isn't unequal protection a violation of the Constitution?
The idea that at least certain aspects of healthcare should be public arises in various contexts, but it does keep arising. One way in which it needs to be public is simply in what we are allowed to know and to say about it.
What happens in medicine is of such in importance to the wellbeing of the public that there must be more sunshine. The public must be allowed to hear and discuss what goes on in medicine. Patients should be allowed to make their records public as easily as they currently can keep them private. And patients and others must be able to relate their experiences in medicine without being sued for it.
Qualified Privileges
The law protects communications required by moral or social duty as qualified privileges. What could be a greater moral or social duty than patients giving to other patients information about their caregivers that is available nowhere else? The citizens of America are capable of governing themselves when they are allowed to communicate.
Currently we can get more and better information about hair dryers we might buy than about surgeons who will cut us open. The only source for such information is squelched by suits and the threats of suits. Healthcare providers have such intimate access to us and such life or death control over us, that not being able to speak and learn about them is not acceptable. The extreme level of trust required from the community of patients needs to be founded on more than faith. There must be an ability to communicate about healthcare institutions, practices and professionals in order learn from our collective experience with them.
It would be worth defining healthcare workers as public figures about whom citizens are allowed to speak without fear of lawsuits. And it would worth defining speech about them to be protected as communication required by moral and social duty, even if it runs to the way they conduct their personal lives. Someone who is an alcoholic in his/her private life is worth worrying about in his/her professional life. This matter is of great concern to the public. Currently the right of healthcare to protect its reputation supersedes the right of patients to protect their lives. That is not acceptable.
Protect the Patients
Patients should be as protected as physicians. If liability limitations protect physicians even when they commit violent offenses against patients, liability limitations should protect patients who speak about those offenses. If there is to be a public discussion about patient safety, first it must be safe for patients to speak.
There is no other source for the most important data about
the problems. Medical professionals will not report it. Hospitals often cannot find out about it
even when it happens in their own building. Only
1.5% of adverse events are
reported. The reporting of crimes committed against patients is a fraction of
that small percentage. According to such numbers, it appears that the more
adverse the event, the less likely it is to be reported. And even when something
does get reported, that information is hidden by privacy laws and cannot be
studied or learned from.
It's
not as though we are asking for a level field. We are not asking to be protected even
if we commit crimes like they are protected when they commit crimes against
patients. We are asking only to be allowed to speak.
Victims of rape, abuse and other unfriendly practices, as well as victims of
negligence and error, have to be able to speak, and medical personnel have to
develop thicker skins, if we are to gain an understanding of, and make progress on,
issues in patient safety.
Currently, in some states, medical personnel can put patients in jail for speaking if the patients don't have enough assets for them to take. If you think that is not an issue, you haven't tried to speak to enough injured patients. It's why you don't hear from the worst victims of abuse in medicine. It's part of why predators can continue to be predacious in medicine. At the very least patients should have a reasonable means to protect each other from that.
No one else will report it
Since physicians and nurses will not report the worst problems in medicine (see loyalty and nurse training), there is no one other than patients to report the information. There are no viable complaint mechanisms in place to handle this. Consider the case of Dr. James Burt, one of the few cases that can be discussed publicly without getting sued. How many lives would not have been ruined if there had been viable complaint mechanisms in place?
Where complaint mechanisms do exist, they are not run by impartial people and information submitted to them is squelched by privacy laws. No one can count or analyze the data. It does little to feed the public debate.
4.1 % of sentinel events in medicine are assault/rape/homicide
If the only source of this crucial information is to be heard, it is going to have to be the case that if you work in medicine, you will be like a politician in that people publicly will judge your performance and not all of them will like it. People in medicine need to get used to the fact that some professions are more public than others and require thicker skins.
An issue cannot be discussed when the facts cannot be scrutinized because lawsuits prevent anyone from identifying real world instances. Medicine has been amazingly successful at transforming the patient safety debate into legal action and then complaining that they are the ones who need liability limitations.
Just hearing patients talk about it
likely would decrease the number of rapes and assaults
We must have the ability to speak if there is to be progress. Victims of unfriendly behavior, victims of accidents and neglect and others who have seen the worst face of medicine are the people from whom we most need to hear if we are to fix problems. Subtler issues cannot effectively be addressed when the worst problems cannot be scrutinized because they cannot even be mentioned.
We do wonder if special interests, like medicine, really do have the right to get liability limitations passed to insulate themselves from responsibility and accountability for the injuries they cause (unequal protection?). And we do worry about how liability limitations make targets out of a certain class of patients (see liability limitations). But as long as state after state is enacting them, we would like to know what patients get in return to help them survive the added insulation given to the people who may ruin the lives of patients as a matter of choice. We would at least like to be able to speak about it when they do.
Their egos and reputations are not worth more than our lives.
It is time for the who, what, when and where (and maybe even the why) of problems in medicine to be known so that fewer patients die. At present patients are the only source for much that information, but they are forced to keep it to themselves. There needs to be a complete prohibition on suing patients for complaining about or criticizing healthcare and the healthcare professionals within it.
Of course there are many situations in medicine in which patients are unconscious or otherwise unaware of what needs to be reported. Allowing patients to speak does not lift the fog, but it does put marker lights in it so that we can begin to discern where to go.