Addressing Fear of Litigation.

Thaddeus Pope reminds us that even perceived fear - in this case, among care practitioners of prosecution for refusing inappropriate medicine or for overmedicating - is legitimate. The cause of the fear may not be justified (prosecution/accusations may be rare) but the fear itself is. It comes from somewhere - the culture, the stigma of pain, etc. - and we are remiss to not address it as such. Only education, "safe harbors" and communication can combat this and allow care providers with the freedom to, in conjunction with the patient and their family, to make the best decisions.

In her "Regulating Physician Behavior: Taking Doctors' 'Bad Law' Claims Seriously" Childress Lecture, Sandra Johnson makes a compelling case that, even when they are misinformed, the risk perceptions of healthcare providers must be addressed. They can be addressed through safe harbors, through education, and through other mechanisms. But it is not sufficient to simply dismiss provider concerns even if they do lack a solid (or any) basis in legal reality. Perceptions of risk, not actual risk, guides behavior. Therefore, to get optimal treatment behavior, it is not sufficient to reduce or eliminate the risk itself. Providers must also view the risk as de minimus or non-existent. I was reminded of this twice today.

First, this morning during the Council on Health Care Economics and Policy conference at the RWJF in Princeton, Norm Fost argued that the risk of liability or prosecution for unilaterally refusing inappropriate medicine is close to zero. He may be right. Nevertheless, such care is regularly provided. Sometimes, it is because physicians themselves want to provide it. Sometimes. providers understand the legal risk is low, but still want to avoid conflict and cave-in. But still other times, providers really do fear some sanctions.

The second event from today that reminded me of the importance of perceptions is a report in today's British Telegraph that a significant percentage of British nurses fail to provide adequate pain control. Why? Because of a fear or prosecution for accelerating death.