So, I read everything I can concerning "how doctors think," "how to think like a lawyer," etc. I've been studying legal reasoning since my senior undergrad year at UTK in 1985, when I took "Senior Seminar in the Psychology of Law," a course taught by a psych prof who also had a Juris Doc, a degree he acquired while researching the salient elements of eyewitness testimony (bottom line, it's egregiously unreliable; nonetheless, if you are charged with but innocent of some crime but have an eyewitness against you at trial, you are probably so screwed).
I just finished this book the other day:
Ran across a couple of interesting tidbits. e.g.,
HERE COME THE COMPUTERSYeah. apropos of medicine and health IT, think messrs Weed. Recall my 2012 post "Down in the Weeds'"
Recently a new tool for improving predictions about case outcomes is making waves: computers. “Lex Machina” is Latin for “Law Machine.” It’s also the name of a tech startup that emerged in 2009 from a Stanford Law School project to help “companies anticipate, manage, and win patent and other intellectual property [IP] law suits.” The idea to create a sophisticated database with reliable information about IP suits came to Stanford law professor Mark Lemley after he grew tired of hearing unsubstantiated assertions about patent litigation. “People would make all kinds of claims in policy debates that were presumably testable but were radically different from each other, you know with one saying patent suits are 50 percent of all lawsuits and another saying, no, it’s 1 percent.” A team of lawyers and engineers put in over 100,000 hours categorizing, tagging, and coding information to produce a database of 150,000 IP cases, 134,000 attorney records, and information about 1,400 judges, 63,0000 law firms, and 64,000 parties from the last decade. Every day the database grows. Lex Machina’s crawler, using natural language processing and machine learning tools, continues to extract new data from all ninety-four federal district court sites, the Patent and Trademark Office site, and other sites with IP litigation data.
According to an executive of a venture capital fund that poured more than $ 2 million in funding into the project, Lex Machina offers clients “previously impossible insights” that “inform winning IP business and legal strategies.” Sasha Rao, a partner in the Palo Alto firm of Ropes & Gray, says Lex Machina’s rich and easily searchable data “fundamentally improves an IP litigator’s chances of winning” by facilitating everything from “initial investigations through trials and appeals.” Vicki Veenker, an attorney with Sherman & Sterling, praised the data that “reveal a judge’s entire case decision history” in IP cases, information she finds “invaluable for choosing venue, drafting motions, preparing oral arguments and advising on settlement.”
For every company executive contemplating initiating IP litigation, the question they want answered is “What are our chances of winning and how much will it cost?” According to the Federal Judicial Center, the average cost of taking a patent case to trial is about $ 5 million per patent, so companies have strong incentives to carefully assess the odds of success. Joshua Walker, co-founder of Lex Machina, is confident that the technology his company provides will “revolutionize how corporate finance looks at litigation. We’ve done a number of use cases where we’ve said, ‘Here are the settlement patterns and win rates for these companies’.”
Predictive computer databases are likely to make their mark first in legal fields that, like IP, are complex and involve high stakes. (Don’t expect public defenders or legal aid lawyers to be using tools like this anytime soon.) The trend, however, is unmistakable. Company executives hoping to hold down litigation costs will have more access than ever before to data that will empower them to participate with their legal counsel in strategizing. Lawyers whose predictions about litigation outcomes reflect overconfidence or other biases can expect to be exposed by the data and abandoned by increasingly sophisticated clients. The lesson for attorneys is clear: make better predictions or lose clients.
Linder, Douglas O.; Levit, Nancy (2014-04-06). The Good Lawyer: Seeking Quality in the Practice of Law (Kindle Locations 2805-2847). Oxford University Press, USA. Kindle Edition.
A culture of denial subverts the health care system from its foundation. The foundation—the basis for deciding what care each patient individually needs— is connecting patient data to medical knowledge. That foundation, and the processes of care resting upon it, are built by the fallible minds of physicians. A new, secure foundation requires two elements external to the mind: electronic information tools and standards of care for managing clinical information.
Electronic information tools are now widely discussed, but the tools depend on standards of care that are still widely ignored. The necessary standards for managing clinical information are analogous to accounting standards for managing financial information. If businesses were permitted to operate without accounting standards, the entire economy would be crippled. That is the condition in which the $21⁄2 trillion U.S. health care system finds itself—crippled by lack of standards of care for managing clinical information. The system persists in a state of denial about the disorder that our own minds create, and that the missing standards of care would expose.
This pervasive disorder begins at the system’s foundation. Contrary to what the public is asked to believe, physicians are not educated to connect patient data with medical knowledge safely and effectively. Rather than building that secure foundation for decisions, physicians are educated to do the opposite—to rely on personal knowledge and judgment—in denial of the need for external standards and tools. Medical decision making thus lacks the order, transparency and power that enforcing external standards and tools would bring about...
Everyone wrestling with the myriad contentious issues that continue to bedevil Health IT should read this important book, IMO. I also commend to everyone the works of Dr. Jerome Taylor on his blog "EHR Science," specifically his two posts entitled "Is the Electronic Health Record defunct?"
When building software, requirements are everything. And although good requirements do not necessarily lead to good software, poor requirements never do. So how does this apply to electronic health records? Electronic health records are defined primarily as repositories or archives of patient data. However, in the era of meaningful use, patient-centered medical homes, and accountable care organizations, patient data repositories are not sufficient to meet the complex care support needs of clinical professionals. The requirements that gave birth to modern EHR systems are for building electronic patient data stores, not complex clinical care support systems–we are using the wrong requirements...Excellent stuff, if a bit abstract and theoretical at times. Important, all of it.
Beyond data systems and data availability, equally important are the "soft" cognitive elements of expert judgment. Another interesting excerpt from The Good Lawyer.
CAN LAWYERS LEARN TO BE MORE EMPATHETIC?Change "lawyer" to "doctor," and "clients" to "patients." While #9 is impractical in all but the rarest of circumstances and #10 is not really relevant to the practice of medicine, the other ten might well be applicable -- if you feel that empathy is an important clinical skill component. I do.
We’ve seen that empathy allows lawyers to better understand their clients’ problems, reduces miscommunication, and provides the basis for telling the stories of clients in more effective and compelling ways. Lawyers short on empathy might well ask whether they can increase their empathy, or whether their bad “empathy genes” or deficient family bonding have set their empathy quotient in stone. The honest answer is that the jury is still out on that question. Role-playing techniques, such as the psychodrama used at the Trial Lawyers College, might well increase empathy over the longer term, but there have been few, if any, controlled studies to justify drawing that conclusion with confidence. Sure, many graduates of TLC might say they now have more empathy, but do they really?
Research provides stronger evidence that emotion recognition, one of the two main components of empathy, can be improved than exists for the other component, empathetic response. It seems that it is easier to teach people to pick up on the emotions another is experiencing than it is to teach them to respond to that person with an appropriate emotion of their own. Better emotion recognition will reduce miscommunications between a lawyer and client, but without appropriate emotional responses, your client might still think you an insensitive jerk. Even though no training program can guarantee that it will turn a low empathizer into a high empathizer, there are simple steps to make the most of the empathy we do have
How to Make the Most of Your Empathy: A Checklist
- Give your client your full attention. Do not multitask when meeting with clients. Take steps to avoid interruptions and external distractions, such as noise.
- Listen actively. Avoid thinking about what you will say next when your client is talking. Understanding should precede being understood.
- Pay close attention to clients’ clues (body language, tone of voice) so as to appropriately respond to their concerns.
- Reflect your understanding of your client’s emotional state. Acknowledge how your client’s legal problem makes him feel.
- Think of your client as a person, not just as a source of income, and be curious about your client’s entire story.
- Think of yourself as a coach as well as a provider of legal services. Recognize that part of your job is to move clients toward more positive emotions.
- Avoid legal jargon, lectures, and long-winded answers. Pause between paragraphs to give clients time to process your explanations and their own emotions.
- Ask clients open-ended questions. Ask for explanations and examples. Don’t just ask leading questions.
- If possible, meet clients in their environment rather than in a sterile law office.
- Role-play and engage in simulation scenarios with colleagues to improve your empathetic response.
- Communicate regularly with clients. Respond to their emotions and their expressed regrets. Ask them frequently if you are accurately perceiving their concerns and desires.
- Use resources such as personality inventories to become more aware of your own strengths and weaknesses as a communicator.
apropos, I point you back to the writings of Dr. Danielle Ofri:
...Smack square in this debate over whether empathy is innate or learned is the consistent and depressing observation that medical students seem to lose prodigious amounts of empathy as they progress along the medical training route. Something in our medical training system serves to stamp out whatever empathy students bring with them on day one.Indeed. See also my December 4th, 2013 post "Philosophia sana in ars medica sana."
The research appears to conclude that it is the third year of the traditional medical curriculum that does the most damage. This is a dispiriting finding, as the third year of medical school is the one in which medical students take their first steps into actual patient care. For most students, the third year of medical school is eagerly awaited. After two long years sitting in classrooms, you get to actually do what it is that doctors do— be in hospitals, take care of patients. One would think that these first steps into real patient care would bring forth all the idealism that drove students to medical school in the first place— idealism that is sorely tested in the first two years of memorizing reams of arcane facts.
But the reverse seems to occur. After their seminal clinical experiences involving real contact with real patients, medical students emerge with their empathy battered. Their ideals of medicine as a profession are pummeled by their initiation into the real world of clinical medicine. And it is in this demoralized state that we send them into residency to accrue what are arguably the most influential and formative experiences of becoming practicing physicians.
Why do medical students lose empathy during the clinical years of medical school? There are likely many reasons. Some are related to the disorientation and fatigue experienced by students as they are thrown into the fire of hospital life— so different from the orderly, clean, controlled classroom life in which they have existed for two years. That student world is cemented along predetermined schedules, explicit curricula, definitive tests. Even if the knowledge requirements are overwhelming— as they are— medical students at least know what to expect, down to nearly every second of their waking hours.
Wednesday, 8: 30 a.m.– 10: 00 a.m., Pathology class; Topic: Peptic Ulcer Disease, room 203, Professor O’Brien, pages 237– 54 in Robbins’ Pathologic Basis of Disease, Exam on December 15.This elaborately structured world of lectures, labs, classrooms, tests, and professors is a heliotropic universe with the medical students squarely at the fiery center. Everything exists for their sake. Their medical education is the raison d’être of the entire enterprise.
When the students enter the wards, however, the tables are not just turned, they are upended entirely. Temperamentally, the world of the hospital is a different planet from the medical-school lecture hall. To the greenhorn, it is sheer anarchy. Some of this is the nature of medicine: human beings and their illnesses do not trouble themselves with schedules, flow charts, or textbooks.
Chemotherapy infusion protocols conflict with CT scanner availability, but bronchoscopy can only be done after the CT scan, however the pulmonologist was called away to an emergency so the bronchoscopy needs to be rescheduled. Mrs. Baradi spiked a fever so chemo needs to be canceled and the patient in the next bed over just developed an unusual rash so needs to be moved to an isolation room, but the ER is backed up with admissions so five new patients are coming to the ward at the same time and no isolation beds are available. Mr. Langley’s family is here and needs to speak to his doctor, but 15-West is short-staffed today so two nurses will have to be “floated” over there, and if the ambulette forms aren’t filled out immediately then Ms. Gemberson’s discharge will be delayed another day. There’s a code on 17-North— drop everything!Hospital life— with its byzantine array of moving parts layered atop the unpredictable rhythms of illness— is a permanent state of flux. Seasoned doctors and nurses are accustomed to working with a certain amount of ongoing bedlam. But new medical students, used to the orderly scheduling of academic life, are overwhelmed. They are easy to spot on the wards, not just because of their short white coats but because of the befogged expressions on their faces as clinical medicine swirls around them. They stand awkwardly on the edges of the ward as people, stretchers, emergencies, hospital lingo, and rapidly changing clinical priorities zing past them at bewildering speeds.
To add to their discomfort, the students are astute enough to know that they don’t actually have any real purpose on the wards, no definitive job description like the doctors, nurses, pharmacists, phlebotomists, respiratory therapists, X-ray technicians, clerks, orderlies, dietitians, housekeepers, and electricians. Medical students are there only to learn. The inherently self-centered nature of their existence in a setting that is not specifically designed for their education— as the classroom part of medical school had been— creates an intensely uncomfortable state of being.
They did choose a career in medicine to help others, didn’t they? Most medical students desperately want to help out on the wards— to ease some of their guilt, to “pay back” the interns and residents who are teaching them, to do some good for the patients in need they see all around them. But it’s hard to know where to start when your skills are minimal and everything is moving at breakneck speed with a paradoxically anarchic efficiency that you are sure to jam up. Indeed, the help that medical students earnestly offer often slows things down, a point that is painfully obvious to all parties involved.
Although medical students eventually acclimatize somewhat to the clinical tumult, most retain that awkward sense of feeling useless, of being a constant fifth wheel. This difficulty in finding purpose, in finding a justified place in the beehive, can cause many students to unconsciously curtail their desire for engagement and hence their empathy.
A second and perhaps even more significant factor in loss of empathy is what has been termed the hidden curriculum of medical school. The formal curriculum— what is taught in the lecture halls, what is embodied in the school’s mission statement, what is intoned by the deans and senior faculty who usher the students into the sacred world of medicine— can be trounced in a thrice by the hidden or informal curriculum that the students are submerged in once they enter the clinical fray.
The students’ true teachers are no longer the august, gray-haired professors who practiced medicine in “the days of the giants” but harried interns and residents in grubby white coats stained with the badges of medicine in the trenches. These younger doctors are the immediate interface with clinical medicine for the students. The students trail their interns and residents every waking minute and absorb from them how medicine is done— how it is spoken, thought, written, performed, attired, and equipped.
Residents and interns are the grunts of the medical profession, tasked, simply, with getting everything done. The practical side of the clinical buck stops with them (even if the ultimate clinical and legal responsibility rests with the attendings), and the house staff do whatever it takes to get everything done. With their scut lists in hand, their coat pockets doubling as supply cabinets, they are the embodiment of the pragmatic. While many still retain their interest in the theories and mechanisms of disease, the overriding modus operandi is utilitarian, because unlike the electricians, housekeepers, therapists, technicians, orderlies, dietitians, even the nurses and senior doctors, their job description has no bounds.
If an X-ray needs to be done and transport is not available, it is the intern who wheels the patient down to radiology. If a form needs to get to the social worker’s office immediately because a discharge is riding on it but the fax machine is broken, there is the intern galloping down the stairs, paper in hand. Although house staff are not enamored of the clerical, administrative, transportation, and nonmedical miscellany that falls into their laps, they would rather do it themselves than suffer the time delays inherent in waiting for the regular channels to creak forward.
They don’t want time delays for their patients because they do genuinely want the best, timeliest care for them. But they don’t want time delays for themselves either, because time delays translate to more work. And more work translates to less sleep. (One doctor recalled a board game he and his colleagues used to play during residency. It was called the Intern Game. Instead of money, the units of the game were hours of sleep, and this is what you would “spend” for any activity or item in the game.)
There is a baseness to this, but it’s the natural outcome of putting smart, competitive, perfectionist people in a high-stress system with myriads of ever-changing tasks for which they feel professional responsibility, coupled with sleep deprivation and the granite-hard fact of only twenty-four hours in the day . . . even in a sleepless one.
This whatever-it-takes-to-get-it-done attitude breeds an efficiency that often dispenses with niceties.
Ofri, Danielle (2013-06-04). What Doctors Feel: How Emotions Affect the Practice of Medicine, Beacon Press. Kindle Edition.
Perhaps if physicians were paid more like lawyers, some of these problematic cognitive burden issues would be attenuated.
Good luck with that proposition, I know.
UPDATE ON THE VA CUSTERFLUCK
Interesting Slate.com article by Phillip Carter.
President Barack Obama had no choice but to accept Veteran Affairs Secretary Eric Shinseki’s resignation. The VA inspector general’s interim report issued this week contained too many damning findings of “systemic” problems that grew under Shinseki’s watch. Key among these was the finding that the actual VA primary care wait times in Phoenix averaged 115 days—more than four times the VA’s previously reported average of 24 days. That discrepancy revealed a gap between reality and official reporting, and suggested questions about the VA’s integrity ran all the way up to the secretary’s office.
More broadly, the growing VA scandal cast doubt on the ability of the government to deliver health care, a major Obama administration priority. If the White House could not deliver on this promise to veterans, a key constituency for whom the president and vice president have frequently described health care as part of a “sacred trust,” then how could the administration be trusted to provide care for all Americans? Coming after the legal and practical challenges to the Affordable Care Act, the White House could not afford another health care failure. And so Shinseki had to go.
Unfortunately, his departure will do little to fix the broader problems in the massive VA health care system—and may even set the quasi-leaderless agency back as it waits for a new secretary to be appointed and confirmed.
The VA is the second-largest cabinet agency, and the nation’s largest health care and benefits provider, with an overall fiscal 2015 budget of $165 billion (greater than the State Department, USAID, and entire intelligence community combined), including $60 billion for health care. The VA employs more than 320,000 personnel to run 151 major medical centers, 820 outpatient clinics, 300 storefront “Vet Centers,” more than 50 regional benefits offices, and scores of other facilities. This massive system provides health care to roughly 9 million enrolled veterans, including 6 million who seek care on a regular basis...Read the entire piece. Phillip Carter is an Iraq veteran who now directs the veterans research program at the Center for a New American Security.
More to come...