Getting doctors and other caregivers to wash their hands is hard. It’s surprising just how difficult even that seemingly simple issue is
As part of my series about “authors who are making an important social impact”, I had the pleasure of interviewing Michael Saks and Stephan Landsman, authors of Closing Death’s Door.
Michael J. Saks is Regents Professor at the Arizona State University, where he is on the faculties of the Sandra Day O’Connor College of Law, the Department of Psychology, and the Law and Behavioral Science Program, and is also a fellow in the Center for Law, Science, and Innovation. Previously, he was a faculty member at the University of Iowa as the Edward F. Howrey Professor of Law and Professor of Psychology. For a decade, he taught appellate judges in the University of Virginia Law School’s summer LL.M. program, trial judges in Duke University’s Judging Science program, law professors at the Georgetown University Law Center, and law students, graduate students, and/or undergraduates at Boston College, Georgetown, and Ohio State University, as well as at ASU and Iowa.
Michael’s research and scholarship have spanned a range of topics: the psychology of decision-making in the legal process, the behavior of the litigation system, scientific and other expert evidence in the law, and legal policy related to iatrogenic injury.
Michael has authored several books including, Modern Scientific Evidence: The Law and Science of Expert Testimony (five volumes), The Psychological Foundations of Evidence Law (2016) and Closing Death’s Door: Legal Innovations to End the Epidemic of Healthcare Harm (2021).
Michael’s work has earned a number of awards and has been cited in various judicial opinions, including several by the United States Supreme Court. His articles have made a lasting impact on the legal system, in part because he tries to address the big picture. Thus, his piece on “The Behavior of the Tort Litigation System,” a landmark integrative review of empirical research concerning the litigation system, has been the most-cited article on tort law for more than a quarter-century. And, “The Coming Paradigm Shift in Forensic Identification Science,” in the journal Science, helped stimulate a groundbreaking examination by the (U.S.) National Research Council of the traditional forensic sciences.
He earned a Ph.D. in experimental social psychology from the Ohio State University and an M.S.L. from the Yale Law School.
Professor Stephan Landsman is the Clifford Professor of Tort Law and Social Policy, Emeritus, at DePaul University College of Law in Chicago, Il. He is a graduate of Harvard Law School, the author of six books and more than 70 articles. His most recent books concern medical error, the challenge of crimes of the Holocaust, and the merits of the American adversary system of justice. He is an expert on the American jury. Stephan’s scholarly articles examine the history, value, and workings of the jury. He was the Reporter responsible for drafting the American Bar Association’s Principles for Juries and Jury Trials.
He successfully argued before the United States Supreme Court in Akron Center for Reproductive Health v. City of Akron and has pursued claims regarding medical malpractice, sex discrimination, judicial recusal, products liability and aviation accidents.
As a professor, Stephan has taught in England and India, and lectured in Japan, China, Australia, Israel and across the United States. He continues to work as a practicing lawyer, as he has throughout his career.
Thank you so much for joining us in this interview series! When you were younger, was there a book that you read that inspired you to take action or changed your life? Can you share a story about that?
Landsman: I know this will seem a cliche for a lawyer, and it is actually drawn from the film version, but I was truly inspired by “To Kill A Mockingbird.” Atticus Finch (as played by Gregory Peck) is my idea of what the heroic lawyer can be and do. The moment at the end of the terrible trial when all the African Americans and Finch’s children stand to honor him for his fight for justice moves me whenever I think about it.
Saks: In my first year as a graduate student, I came across an ancient (1954) little book by Darrell Huff called “How to Lie With Statistics.” Between that and the much heavier books we read in our statistics classes, I felt better armed to critically evaluate quantitative evidence, and empirical evidence more generally. But it was Huff’s book that inspired me to arm others with the intellectual weapons to defend against such misinformation and disinformation. And that has been the centerpiece of my mission as a teacher (including when my students have been judges, lawyers, and law professors) as well as my scholarly work.
Can you share the funniest or most interesting mistake that occurred to you in the course of your career? What lesson or take away did you learn from that?
Saks: If we pay close attention, we will realize that we all make little mistakes in the course of our daily lives, personal and professional, too numerous and too minor to remember. But that’s because most of us, most of the time, can recover from our mistakes without having done much harm. We back up and do it over. So, I’m sure I too have made many little mistakes, easily corrected if they needed correcting, and they did such trivial harm that they have been long forgotten. But in healthcare, little mistakes — like mislabeling a tissue sample, or misreading a label on a drug before injecting it into a patient, or mixing up left and right, can cause disaster. The lesson is that we humans make mistakes all the time, and if the mistakes tend to cause serious harm, it is important to prevent them. In healthcare, that will take investments of time, energy, ingenuity, and money that the industry has not yet committed to.
Can you describe how you aim to make a significant social impact with your book?
Saks: Though the book’s title is “Closing Death’s Door,” you could say that its goal is to “open a door.” A door to serious conversations about how law can find innovative ways to help the healthcare industry make the changes it needs to make to redesign itself to prevent the mistakes, large and small, simple and complex, that cause huge numbers of deaths and injuries every day in caring for patients. An enormous amount of suffering could be prevented, and hundreds of thousands of lives could be saved each year.
Can you share with us the most interesting story that you shared in your book?
Saks: Everyone will have their own “favorite” stories from the book. (And there are quotes around “favorite” because few of the stories are not shocking or depressing, so they hardly deserve to be called favorites.) But, for me, the most interesting story, because it is so important, is the discussion of how, in healthcare, making expensive mistakes is profitable. You can bill for the actions that led to and constituted the error, and then bill again for treating the harm caused by the error. That perverse incentive shows the immensity of the challenge society the healthcare industry faces to make itself safer. Imagine you are the CEO of a hospital, and you committed your institution to make whatever investment it took to bring down the number of patients injured by preventable mistakes. That investment would be costly. And its success — saving patients’ lives and preventing injuries — would mean that, going forward, you would bring in less revenue. From whence will come the incentive to do that to yourself.
What was the “aha moment” or series of events that made you decide to bring your message to the greater world? Can you share a story about that?
Landsman: Many years ago, I worked on an Illinois commission that sought to make the medical practice safer by sharing near-miss and iatrogenic event data in a secure system akin to the commercial aviation reporting system. The doctors and lawyers worked hard and found common ground. Their efforts were torpedoed by hospital administration counsel who said their institutions would never agree to such a plan. The system is not arranged for safety.
Without sharing specific names, can you tell us a story about a particular individual who was impacted or helped by your cause?
Landsman: Although it may not be the main thrust of the question, I think of Dr. Peter Pronovost of Johns Hopkins University and the impact he had, doing the kinds of things we are hoping to encourage. He was convinced that safety could be improved in the ICU. He designed, tested and got Hopkins to adopt a “checklist” for ICU use of central lines. The medical profession hates checklists. Dr. Pronovost persisted. He put safety ahead of medical culture. He persuaded hospitals in Michigan to try the checklist. Literally, thousands of lives have been saved. The idea spread and now virtually all ICUs in America follow Pronovost’s program. He saw the iatrogenic danger and found a way to overcome it.
Are there three things the community/society/politicians can do to help you address the root of the problem you are trying to solve?
Saks: At the end of the day, it will probably have to be law and government that come to the rescue. The healthcare industry has been unable by itself to make the major system design improvements necessary to make healthcare substantially safer than it has been. The healthcare industry has been more interested in hiding the bad news, lobbying for legislation to protect them from having to compensate injured patients and resisting even simple but helpful innovations, such as Pronovost’s program.
Law and government can do a range of things. (A) They could do as little as facilitate meetings of healthcare industry officials to enable them to coordinate disparate practices to reduce the risk of error (such as by adopting more uniform practices). For example, does every hospital need to invent its own color-coding system to alert caregivers to patient-specific risk?) (B) They could fund patient safety research and create a go-to clearinghouse of whatever are found to be best practices. © Or they could do something as bold as to create a system of patient-safety taxation, somewhat like worker’s compensation. The tax rates would reflect the level of harm occurring in the hospital. That would create an incentive to develop safer practices. The tax revenue could be used to fund safety research. As hospitals became safer and safer, their patient-safety taxes would fall lower and lower.
How do you define “Leadership”? Can you explain what you mean or give an example?
Landsman: Dr. David Axelrod was Health Commissioner of New York State for 12 years beginning in 1979. He fought corporate polluters over Love Canal, began the push to curb public use of tobacco, launched the Harvard/New York hospital study that definitively exposed the epidemic of healthcare harm, and through unprecedented public disclosure drove New York hospitals providing bypass graft surgery to become the safest in the nation. His leadership opened a way forward toward safety when corporate interests and the healthcare industry sought to put profits above life.
What are your “5 things I wish someone told me when I first started” and why. Please share a story or example for each.
Landsman: (A) Data are critical. It was only when California medical organizations in the 1970s authorized research regarding the medical error that an undeniable problem was disclosed. (B) Doctors can be victims of the healthcare delivery system they devised when they try to make it safer. The story of Dr. Ignatz Semmelweis, a physician who tried to “blow the whistle” on doctors’ dirty hands as the cause of childbed fever (leading to countless maternal deaths in hospitals) provides a legendary example of resistance to the realities of safety. For his relentless insistence on cleanliness to prevent transmission of disease from the morgue to the maternity ward, he was drummed out of the profession. © Medical advances are important but public health steps regarding things like housing and sewage conditions are even more important. The English typhoid experience is illustrative. (D) Getting doctors and other caregivers to wash their hands is hard. It’s surprising just how difficult even that seemingly simple issue is. (E) Medical malpractice lawsuits are not the answer. But abolishing them will not make things better.
Is there a person in the world, or in the US with whom you would like to have a private breakfast or lunch with, and why? He or she might just see this, especially if we tag them. 🙂
Landsman: Two doctors whose writings have inspired me are people I would love to sit with. These two are Dr. Atul Gawande and Dr. Robert Wachter.
How can our readers further follow your work online?
Saks: Now that the book is written and published, the conversation among people in healthcare, people in law and government, people who get healthcare (that’s all of us) can begin. The book is available on Amazon. Read it. Share it with anyone you think could be a part of the conversation about making healthcare safer. You can help make it happen.
Thank you so much for these amazing insights. This was so inspiring, and we wish you continued success!