Freedom of Speech
Is the right of doctors to protect their reputations greater than the right of patients to protect their lives?
What happens in medicine is of such importance to the wellbeing of the public that patients must be able to learn about it. The public must be allowed to hear and discuss what goes on in medicine. Patients must be allowed to make their experiences in medicine public without being sued for it.
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 can be learned nowhere else? The citizens of America are capable of governing themselves when they are allowed to learn and 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 about surgeons is squelched by suits and the threats of suits. Health care 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 health care institutions, practices and professionals in order learn from our collective experience with them.
It would be worth defining health care 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 health care 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 for patient harm. Medical professionals will not report them. Hospitals often cannot
find out about them even when the happen in their own building. No record whatsoever is made of 93% of the adverse events in medicine and the other 7% are reported
inaccurately 2/3 of the time (according to HHS and others - see Medical
Reporting). Indications are that the worse the problem the less likely it is to be reported.
does get reported, it is hidden by privacy laws and gag orders and cannot be
studied or even discovered.
It's not as though patients are asking for a level playing field. They are not asking to be protected when they commit crimes against providers even though providers are protected when committing crimes against patients (see civil-criminal). Patients are asking only to be allowed to speak about it. Victims of rape, abuse and other unfriendly practices, as well as victims of negligence and error, have to be able to speak if patients are to be able to protect themselves against them. And medical personnel have to develop thicker skins, if we are to gain an understanding of, and make progress on, issues harming patients.
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 spoken to enough injured patients. We don't hear from the worst victims of abuse in medicine because of this. 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 them. 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 this crucial information is to be learned from it is going to have to be found out about from patients. No one else will report it. For them to report it, 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
Do you know anyone in medicine who ever talks about these problems? 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 the problems harming patients. 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 health care and the health care 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 that can help us chart a course on more than blind faith.
"Everyone seems to be afraid of lawsuits and the ramifications of bringing false accusations against someone in the health care community. As a potential patient, I find that unacceptable."
- M. William Phelps, author of Perfect Poison (links to a page on this site)
The Patient Safety and Quality Improvement Act signed into law on July 29, 2005 established a federally protected safe harbor for health care 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.
Health care workers keep demanding and getting more protection and patients keep getting nothing in return. Why is there no understanding of patients as humans in need of protection from aggressive health care providers? Patients are being sued even for online reviews. For instance, see this article at ihealthbeat.org.
Health care workers watch each others backs. Patients should be able to watch each other's backs too.
See Loyalty in medicine next.
Unequal protection kills patients
Below are examples of patients who exercised their freedom of speech:
The Clarke demonstration/protest
Defying Defamation (contains story of woman who dared them to sue)
A page about Defamation Suits is on this site.