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Litigation and Legacy in Education and Medicine

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Distinct Fields Bound by Certain Parallels

[By Jeffrey M. Hartman]

jhThe fields of education and medicine are distinct, yet bound by certain parallels. In particular, litigation has shaped present practices in each field. Case law has expanded the rights of students and parents while increasing protections for patients. Resulting improvements in the quality of education or health care vary depending on perspective.

Of greater certainty is the comparable increase in procedures, protocols, and overall bureaucracy needed in each field as a result of litigation.

Compensation Culture

Throughout the 1980s and 1990s, a perceived rise in civil cases led some pundits to ascribe a compensation culture to certain segments of America. Sensationalistic stories about plaintiffs seeking outrageous damages generated concern that this compensation culture was real and threatening to business interests across the country.

Media outlets frequently portrayed those behind the questionable suits as poor but entitled people looking to take advantage of tort law for personal gain. Pundits claimed these cases represented a decline in personal responsibility matched by an increase in shameless greed. At the same time, the notion of frivolous litigation creating unnecessary layers of bureaucracy took hold in the American conscious and remained there.

Predatory Litigation

The actual incidence and impact of supposedly predatory litigation remains debatable. Some civil liberties advocates suggest American companies created smear campaigns in the media to make the issue appear more prevalent than it was while attempting to curtail future suits. Without question, some companies have had to pay significant damages, particularly in class action cases.

However, the claims against these companies typically haven’t materialized without cause. Tort law always has existed as a protection. A few plaintiffs and attorneys may have exploited these laws and others may continue to do so. Such exploitative cases haven’t outnumbered cases built around legitimate claims.

Ethics

Questions about the ethics and even the prevalence of civil suits are the stuff of legal philosophy. The more immediate question is whether or not such cases have impacted particular fields and if so, what has been the nature of the impact. Legal precedents often lead to regulation of industries. Some forms of regulation can alter business practices. This can be for the better of all involved. Even if regulation increases costs, it often improves safety or quality.

In fields such as education and medicine, litigation has profoundly influenced practices. Influence on quality is another matter.

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education

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Education

The impact of litigation on education has been most apparent in special education. Class action suits resulted in the foundational special education law in America. Case law continues to establish precedents and corresponding mandates that states and school districts must follow. Many of the cases parents bring against districts stem from these districts struggling to abide by demanding mandates. Large districts retain teams of attorneys who spend a disproportionate amount of their time handling special education cases. Special education bureaucracy requires many schools to employ administrators who deal solely with compliance and protocol. In special education, litigation has led to more litigation.

Special Education

Special education litigation affects school practices in several additional ways. Compensatory education losses in special education pull from overall budgets. Teachers need to compile data on special education students not just for planning, but to protect themselves and their schools in disputes with parents. School members of IEP teams construct programs from the perspective of how readily they can defend themselves should a legal case develop. Decisions about goals for students are often based on the likelihood of students appearing to make progress in a way that prevents potential conflict. When lawsuits do emerge, school districts have demonstrated a historic willingness to settle and give parents what they want rather than getting involved in lengthy and costly legal battles.

Medicine

In medicine, public perception of the effects of litigation are somewhat skewed. Malpractice cases make for attention-getting headlines. However, the number of malpractice suits has decreased in recent years. The average amount for damage claims has leveled off as well. These cases tend to be reserved for incidents involving serious injury and death. Although this might seem counter-intuitive, plaintiffs often lose malpractice cases. Preventable mistakes still account for a massive amount of loss in medicine, but the public perception of malpractice suits driving up insurance costs isn’t exactly accurate.

Malpractice Liability

This isn’t to say litigation has had no effect. Some health care professionals have had their careers upended by ruinous malpractice suits. A few states have enacted damage caps to limit what plaintiffs can claim. Expensive malpractice insurance has become ubiquitous for health care professionals. Many physicians have been suspected of practicing defensive medicine, or over-diagnosing for their own protection from suits. Defensive medicine resembles the tendency of special education teachers to write IEPs that ensure student progress. Layers of bureaucracy weigh on health care systems. Much of this exists as liability protections. Again, this parallels how schools have to handle special education.

***

doc

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Improvements?

So, has litigation improved either field? In education, programs for students with special needs have expanded opportunities for equitable education. The expansion stems directly from litigation. However, special education has not solved the dearth of opportunities waiting for students with special needs after high school. At the same time, the expense of special education—including the continuing need for defense against further litigation—mires the most vulnerable school districts.

Health care has improved in many ways in recent decades, but most of these improvements are tied to technological advancements rather than litigation. Technological innovations also have contributed to increases in costs. The surge in bureaucracy does more to protect health care systems than patients, but patients have indirectly benefitted somewhat from the precautions litigation has made necessary. Patient behavior continues to drive the incidence of illness, but widespread health education campaigns have made some impact in behaviors such as smoking. Litigation has aided the creation of such public campaigns through pressure on lawmakers.

Imperfect Analogues

Education and medicine aren’t perfectly analogous, so certain comparisons can’t be made fairly. Despite differences, each field has had to respond in similar ways to changes in society. Pressure from litigation is just one of these changes. Other changes have involved how each field interacts with the public it serves. Schools and hospitals have increasingly become de facto social service providers for needy communities. Educators and physicians have had to become wary of their reputations via online ratings sites and their presence in social media in general.

Experts in both fields have their positions challenged by what information parents and patients find online. These similarities might be more analogous than similarities wrought by litigation.

Although the effects of litigation have been different in the two fields, the response in each field has been noteworthy. Litigation more or less created special education. The burgeoning field has improved equitable opportunities while creating logistical quagmires for schools. Outcomes for students have been limited by factors schools can’t control, thus derailing some of the idealistic aims of litigation. Poor outcomes haven’t lessened the burden special education law places on schools.

Meanwhile, public perception of how malpractice has affected medicine differs from the actual effects. Litigation has affected physician practices more than it has affected costs. Patient care has improved through technology more than through legal mandates. Protections have improved vicariously through the threat of litigation, but this might be inadvertently affecting how physicians offer treatment.

Assessment

Overall, litigation has complicated each field by adding layers of protective bureaucracy. Improvements in quality might not be commensurate with the effort expended. Often what the public gains in protection is loses in simplicity and effectiveness. These fields exemplify this maxim.

ABOUT

Jeffrey M. Hartman is a former teacher who blogs at http://jeffreymhartman.com/

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4 Responses

  1. Virtual Patients Deliver Real Learning

    Just as the US health care system is at a critical juncture, so is the system of medical education.

    http://wingofzock.org/2015/06/09/virtual-patients-deliver-real-learning/

    Medical education needs to change, not only to keep pace with a rapidly changing health system, but to drive change by better educating the next generation of providers to create a transformed health care system.

    Virtual patients (VPs) can play an important role in the transformation of medical education, and can produce the real learning required to facilitate change.

    Eli

    Like

  2. What Academic Medical Centers Can Learn from Lippi

    What does this 15th century Renaissance painting have to do with a 21st century academic medical center?

    Painted by Fra. Lippi (a monk of some questionable repute) in about 1465, I selected this image as an analogy for our two broad challenges in building a successful academic medical enterprise in the rapidly changing healthcare environment.

    http://transformcare.blogspot.com/2015/07/what-academic-medical-centers-can-learn.html

    James T McDeavitt MD via Ann Miller RN MHA

    Like

  3. Teachers

    South Dakota is tops in many things. We are consistently rated as among the best in the nation for business climate, trust law, clean air, low taxes, and the best cities to retire in. It annoys me, then, when we are last in something important, like teacher’s salaries.

    But how do our lower cost of living and low state and local taxes affect our low salary ranking? Certainly salaries must buy more in the way of lifestyle in South Dakota than in states that have higher salaries but also higher taxes and living costs. I was willing to bet, when the annual salary of a South Dakota teacher was adjusted for cost of living and taxes, that we really wouldn’t have the lowest salaries in the nation.

    To find out, I first consulted data from the National Education Association to get the most current average state salaries of teachers. South Dakota was dead last with a $40,641 average. It was no surprise that the highest salaries in the nation are paid by coastal states of New York with $76,865, Massachusetts with $71,620, Washington DC with $70,906, California with $70,887, and New Jersey with $70,367.

    I adjusted all the average teacher salaries for state and local taxes using data from the Tax Foundation and for the cost of living using data from the Council for Community and Economic Research as presented by the Missouri Economic Research and Information Center. As I suspected, the amount of the salary isn’t as important as the amount people have left after paying all their taxes and living expenses.

    While teachers in New York are the highest paid in the nation, when you factor in what they pay for living expenses and taxes, they fall to 22nd place with an adjusted salary of $50,022. The adjusted salaries drop the second-highest paid teachers of Massachusetts to 37th place with $45,939, while those in the District of Columbia fall from third to 42nd with a comparatively low $43,379.

    Which teachers in the nation really make the most money? If you want the best lifestyle as a teacher, apply for positions in top-ranked Michigan where the adjusted salary is $61,020. The second-highest adjusted salaries are in Wyoming with $59,679, followed by Pennsylvania with $56,528, Ohio with $56,480, and Delaware with $55,211.

    What state had the honor of coming in dead last? Hawaii. It ranks 20th for its average teacher salary of $55,757, which becomes a stunningly paltry $30,200 after adjustments. To my surprise, South Dakota’s adjusted average of $38, 644 only moved it from last place to second from last. Rounding out the bottom five are Maine with $39,216, New Mexico with $40,686, and West Virginia with $41,324.

    Adjusting the average teacher salaries for various states’ cost of living and tax rates, however, does make a significant difference. For example, comparing only salaries shows the average South Dakota teacher makes $30,265 less than the average teacher in Washington DC. After adjusting for purchasing power, the South Dakota teacher earns just $4,735 less. While South Dakota teachers make $15,116 a year less than those in Hawaii, after adjusting for purchasing power South Dakota teachers make $8,444 more.

    While the results could be slightly skewed by comparing 2011 tax numbers (the latest I found) with 2015 salaries and living costs, my research it suggests two conclusions. One, while South Dakota certainly is in the bottom tier of teacher’s salaries, in terms of buying power we are nowhere close to being as far behind as it appears. Second, if you are a teacher in Washington DC, you might consider heading west to Michigan or Wyoming.

    Rick Kahler MS CFP®
    http://www.KahlerFinancial.com

    Like

  4. The decline and fall of medical writing

    An essay by Richard Gunderman MD PhD and James Lynch MD.

    George Orwell said, “If people cannot write well, they cannot think well, and if they cannot think well, others will do their thinking for them.”

    If Orwell was right, the profession of medicine and the patients it cares for could be in big trouble.

    http://www.kevinmd.com/blog/2016/02/the-decline-and-fall-of-medical-writing.html

    As a result of ongoing changes in healthcare, today’s medical students and residents are being asked to write much less than in the past, with a predictable decline in the quality of what they produce.

    Ann Miller RN MHA

    Like

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