PREVENTIVE LAW

Using the analogy with preventive medicine, preventive law is the legal specialty of preventing the disease of litigation. Litigation is a serious disease that leaves its victims financially and emotionally weakened and, in some cases, may lead to their economic demise. It is a contagious disease characterized by a latent state with intermittent crises (individual suits). Symptomatic treatment of the crisis phase may lead to a remission, but the disease usually recurs in a more serious form.

The litigation disease is carried by dissatisfied patients. Attorneys are necessary in the spread of the disease, but only to the extent that they provide a mechanism for the dissatisfied patient to breach the defenses of the victim. Its virulence is determined by the interaction of environmental and intrinsic risk factors. The disease cannot be cured, but it can be controlled by carefully monitored therapy and regular checkups.

There are two significant difference between preventive law and curative law. The first is that preventive law deals with fact patterns that may arise in the future (hot facts) while curative law deals with facts that have occurred in the past (cold facts). The second is that in curative law practice the ultimate decision maker is a third party, such as a judge or arbitrator, while in preventive law practice the ultimate decision maker is the client, acting on the advice of an attorney. The job of the curative lawyer is to act as a historian, interpreting past events in a light that is most favorable to the client. The job of the preventive lawyer is to help the client to shape future events so that the facts will reflect favorably on the client. This task is more difficult than that of the curative lawyer because of the uncertainty of future events, but it more financially rewarding to the client because it reduced legal costs as well as potential litigation costs.

Two premises of preventive law are (1) that most legal confrontations can be prevented and (2) that it is financially beneficial to avoid legal confrontations. The basic tool of the preventive lawyer is the legal checkup. While legal planning is performed by practitioners in all areas of legal practice, it is the legal checkup that distinguishes preventive law from other areas of practice. The preventive law checkup is a review of all of a client's legal relationships in order to detect areas of potential controversy. For example, if a standards-setting organization, such as the Center for Disease Control, changes the recommended treatment schedules for a disease, a provider treating the disease must use the new schedule or risk a medical malpractice suit. One of the tasks in a preventive law checkup is to ensure that all treatment protocols reflect the most recently adopted standards.

Preventive law checkups usually use a checklist technique for determining if a client has any potential legal problems. This approach is unsuitable in the medical environment, however, because the checkups there must cover many unique situations and because they must be ongoing rather than periodic. This requires that preventive law considerations be incorporated directly into medical care delivery. This is best accomplished by the creation of a quality control program that includes the necessary legal parameters as part of its review function.

The premise that legal confrontations should be avoided means that controversies in progress should be defused if possible. For example, health care providers must develop effective mechanisms for handling patient complaints before they result in litigation. When faced with a patient relations problems, the question should not be, "Can I win in court?" but rather, "Can we work this out without going to court?" The problem is that most attorneys are trained only in adversarial techniques, not in mediation and negotiation techniques. Part of any risk management strategy must be the careful monitoring of the actions of counsel to control the tendency to use adversarial techniques when conciliation would be more effective.

The purpose of monitoring is twofold; it prevents counsel from involving the provider in unnecessary controversies, and it serves as a check on legal costs. Even a layperson can increase the cost effectiveness of legal representation by requiring counsel to prepare budgets, to project the legal costs of various alternatives, and to give plain-language explanations of what counsel is doing. Ideally, the health care provider would use a preventive law specialist to evaluate the performance of its counsel and to suggest ways to reduce the cost s of legal representation.

Chapter 4 through 12 present examples of preventive law techniques for the reducing the probability of litigation. These are not explicitly referred to as preventive law techniques because that terminology is foreign to most health care providers. However, it is important to realize that medical and administrative actions that reduce the probability of patient injury of patient dissatisfaction must be regarded as preventive law techniques. The most successful preventive law techniques are those that become inseparable from the activities they are designed to protect.