SURVIVING MITCHELL 19: PRACTICE "DEFENSIVE LITIGATION" OR DON'T PRACTICE AT ALL
This is the 19th (and penultimate) in this series on “surviving Mitchell”. What the Mitchell case makes clear is that there is now precious little room for error in civil procedure. We have to develop systems of “defensive litigation”. That is a system whereby the most common cause of mistakes are identified and steps taken to avoid problems.
A PARALLEL WITH DEFENSIVE MEDICINE
There is a major controversy in the medical profession on the question of whether “defensive medicine” is a good thing. However some things are obvious. Why does the nurse always ask you your date of birth before giving you an injection. Why is the dose always double-checked by another practitioner? These are areas of common mistakes and steps have been identified that can reduce or eliminate the risk of error.
FURTHER ANALOGIES WITH MEDICINE
Look at an article in Medscape on preventative medicine.
“More Work Needed to Reduce Diagnostic Errors
Several other articles in Health Affairs point out ways to lower the incidence of malpractice in the first place.
Marcus Semel, MD, a general surgery resident at Brigham and Women’s Hospital in Boston, Massachusetts, and colleagues write that hospitals can reduce their surgical complication rates — and save money in the process — by adopting the World Health Organization Surgical Safety Checklist. This checklist prompts an operating room team before induction of anesthesia, for example, to verbally establish that the patient has confirmed his or her identity, the procedure, the surgical site, and his or her consent to the operation.”
BACK TO CHECKLISTS:HELP ALREADY ON THE BLOG
This cannot be a surprise to regular readers of the blog. There is little doubt that safe litigation is best based on checklists. This is not a degrading of the litigator’s skills but an enhancement of them. (Ask a pilot whether it is unprofessional if they omit pre-flight checklists). The secret is to make them comprehensive enough to be useful, but no so detailed that they are stifling.
On this blog we now have
There are, at least, three more to come.
DEFENSIVE LITIGATION IS A NECESSITY
Avoiding problems in litigation is no longer an option. It is a necessity. The final post in this series will draws the entire series together as a major “checklist” to avoid problems.