Monday, November 15, 2010

Checklist Manifesto for Regulatory Issues: How to Manage Legal Complexity Effectively


Is a mystery to me.

Is important to me.

Is plain fascinating.

The Internet has its pros and its cons; its positives and its negatives.

Personally, one of the greatest benefits of the Internet is exposure to the envelope of serendipity.

Recently, I connected with Adam Stoffa: He read my previous essay on Dr. Atul Gawande's Checklist Manifesto book and then linked it to his real-world legal work by thinkering.

Here's the net result (Note: Next up is an essay with G on Fractal Governance):

Checklist Manifesto for Regulatory Issues: How to Manage Legal Complexity

Adam Stoffa, JD (@SEEAdamTrain and Stretch. Exercise. Eat)
Brent Pottenger, MHA (@epistemocrat and healthcare epistemocrat)

BRENT: Complexity gets complex quickly. In the face of such perplexity, human beings sense inherent uncertainty; they get uneasy. Attorneys, like physicians, must manage these feelings professionally; they must act responsibly. Despite the unpredictability associated with each specific client’s legal case, that does not justify practicing law willy-nilly. Instead, out of respect for human beings’ evolved emotional systems, we can introduce some strategic structure to the process to help avoid known missteps while simultaneously challenging ourselves to think about possible outcomes and difficulties. As Dr. Atul Gawande has shown in surgery, checklists provide practitioners with a simple modality that supports professionals as they push the humble limits of being human in various realms of performance. Like surgeons, lawyers could generate, test, and refine checklists to serve as minimalist frameworks for decision-making that prevent shortsighted mistakes while providing people with enough degrees-of-freedom to read and respond to local nuances and unforeseen details. Surgeons prepare for surgery in a team-oriented manner, checking and rechecking intake information about the patient, the procedure, and the instruments needed to act. Similarly, for a given “fact pattern”, lawyers must work as team members with clients, other regulators, third parties, etc., so engaging all these individuals in a check list process could help synchronize their efforts and ensure that everyone is on the same page, in synergy, from the start of the case.

*****

ADAM: Nothing tests the limits of our ability to perform like conflict, where hard-wired reactions manifest through emotions. Emotional reactions short circuit cognition; and, consequently, key steps are missed or skipped. Furthermore, by their very nature, reactions are not coordinated with others. In a complex situation, missing or skipping steps and failing to coordinate actions leads to unacceptable outcomes.

The analysis below focuses on responding to complaints alleging violations of the anti-discrimination statutes and regulations (EEO complaints). This particular type of regulatory compliance was chosen because Equal Employment Opportunity (EEO) complaints offer a particularly good example of a situation where failing to manage complexity impedes an organization's ability to achieve an acceptable outcome.

Emotions

EEO complaints happen. They are complex and controversial. When faced with such a complaint, organizations must work together, focus on accomplishing appropriate action steps, and find a way to achieve an acceptable outcome.

Unfortunately, pointing this out does very little to overcome the natural reactions of: (1) supervisors who see the complaint as a personal attack on their ability to manage; (2) the principals, those at the center of the conflict, who become defensive and/or combative as work-center awareness that a formal complaint has been lodged increases; and (3) third party witnesses, usually co-workers, who typically manifest a strong desire to avoid any involvement with the complaint. With this much emotional tension in play, it is no surprise that key action steps are missed and responses tend to be uncoordinated. High stress, missed steps, and disjointed responses lead to a status quo where it is acceptable to believe that the EEO system is broken and can not be fixed.

Strict Compliance

Beyond the emotional reactions of the key players, there is another aspect to EEO complaints that makes managing them a daunting task. The anti-discrimination statutes and the EEO regulations require absolute compliance. With strict compliance as the standard, supervisors become concerned that they will be unfairly criticized, as their decisions and decision making processes are scrutinized for discriminatory intent.

To a degree, this is a problem of context, as many of these same supervisors manage other circumstances that require strict compliance. For example, safety measures require strict compliance. Managers regularly meet safety standards and when they fall short, good managers do not give up in exasperation. Rather, safety standards are reviewed and adjusted. Thus, the problem is not that supervisors can not manage situations that require absolute compliance. Rather, they need to be aware that with EEO complaints they are facing a strict compliance standard. As with safety standards, they need a game plan for responding to potential violations.

The Two Types of Mistakes

Going a little deeper into our analysis, let's look at two types of mistakes that tend to decrease the probability of achieving an acceptable outcome. As Gawande explains in The Checklist Manifesto, Mistakes of Ignorance occur when the individuals involved do not know enough about the subject matter to properly respond to the situation. Because management has a duty to comply with the anti-discrimination statutes and the principles of Equal Employment Opportunity, mistakes of ignorance provide no legal defense to a complaint of discrimination.

A second type of mistake, Mistakes of Ineptitude, occur when key steps are skipped or responses are not coordinated with other members of the team. Whether negotiating a resolution or undertaking litigation, your organization’s response to the complaint is subject to interpretation. Consequently, mistakes of ineptitude may be misinterpreted as mistakes of ignorance; they may be construed as intentional acts designed to cover up misconduct; or they may be seen as indicative of a poor attitude, or a lack of dedication to the principles of Equal Employment Opportunity.

Setting an Agenda for Improvement

In setting an agenda for improvement, we must consider: (1) the need to break through initial emotional reactions, (2) the strict compliance standards for EEO, (3) the duty to eliminate mistakes of ignorance, and (4) limiting to the greatest extent possible mistakes of ineptitude. A fifth critical element, a team approach that facilitates communication between all players, must be in place.

Recently, I have been able to help organizations and their managers address these issues by introducing a matrix that provides an organizational approach to responding to reports of violations and a checklist specifically designed to aid the supervisor assigned responsibility for the work center where the complaint originated. Used in combination, by the organization and the individual supervisor, these tools provide a strategic overview and a tactical list of necessary action steps.



The Matrix

The matrix (above) is a reference document designed to give the team the 10,000 foot view. It introduces the team to the three phases of response (Immediate Actions, Follow-on Steps, Close-out) and four categories of action steps (Notify, Investigate, Correct Behavior, Remedy). During an actual complaint, the matrix can be a useful way for team members to orient themselves. However, this is only a general reference document. The matrix is not focused enough to be a checklist.



The Phase 1 Checklist

A properly formulated task-focused checklist reduces the likelihood that a key step will be overlooked, because it engages the thinking part of the brain. In the field, key steps are not so much consciously skipped, as much as they are missed due to environmental distractions. In the case of an EEO complaint, there can be many distractions, not the least of which is making sure that the affected work center continues to accomplish its work.

By creating an agreed upon checklist of action items, we decrease the risk that key steps are missed due to distractions. To this end, the Phase 1: Checklist for Supervisors serves as a cognitive safety net, making it easier for supervisors to engage the project at hand, responding to a report of unlawful discrimination. The Phase 1: Checklist for Supervisors follows the same design as the Matrix, but drills down to a new level of detail, providing action steps in each category for supervisors to follow.

The Toolkit

To go along with the checklist, there is a corresponding set of available tools for supervisors to use. For example, the Phase 1: Checklist has 3 steps dedicated to issuing a written notice to employees. Issuing written notice to the employees is a key step designed to reinforce management’s expectations for appropriate behavior at the work site and its dedication to assuring Equal Employment Opportunity. To facilitate carrying out the action steps associated with providing written notice, there is a corresponding tool, a sample memo that is available for supervisors to use.

Maintain Communication

Communication needs to start well before a report of a complaint is received, but it is critical that communication not drop during the process of responding to the complaint. The Matrix helps facilitate communication, as it describes the network of people involved, including an employee reporting a potential violation, other employees in the work center, the appropriate supervisor, higher level management officials, and appropriate advisory staff. To help ensure that basic communication is maintained, key communication steps have been built into the Checklist.

Can This Approach Work?

It is working. When I brief directors, maybe for the first time, they recognize that EEO complaints are not amorphous, personality-driven problems that they or their people cannot get their arms around. Rather, this approach allows for a structured response.

At the supervisor level, anxiety is reduced because the supervisors’ roles are defined, and they know they are part of a team. The Checklist engages a cognitive response and helps guide them through unfamiliar territory. Meanwhile, tools are prepositioned and ready for them to use along the way.

A coordinated response that pays attention to detail does more than guarantee regulatory compliance. It demonstrates to employees that management takes their complaints seriously and gives them due consideration. It lets supervisors know that there is an organizational standard to be maintained and if they do their part, they will not be unfairly criticized.

This approach is designed to maximize the probability of achieving acceptable outcomes without litigation. However, if litigation comes, the people within the organization can hold their heads high knowing that they did their best to work together and provide a focused response. When walking into a hearing, that is a huge advantage.

*****

BRENT: Medicine is a craft practiced amidst a regulatory landscape that requires special considerations given the fact that people's lives are on the line in unique ways. Experimenting with checklists provides one tangible way to help clinicians navigate this maze successfully.

*****

Finally, I had the awesome opportunity to visit some good friends in Boston: Nate, co-founder of the Harvard Food Law Society; and, Michal, co-founder of Living Paleo in Boston. I'm thankful for their generous hospitality.

Here are some images from my journey ...

HARVARD DIVINITY SCHOOL
HARVARD HUMAN EVOLUTIONARY BIOLOGY: DAN LIEBERMAN'S LAB
video

Note that I switch from proper forefoot landing to heel-striking and then back to forefoot running in order to test the differences between these two styles of locomotion. The force plate readings from the treadmill captured this abrupt change beautifully: all of the sudden, instead of spreading force out over the natural roll of my forefoot, I struck the ground with my heel, creating an acute, sharp force on my body. Translation: recipe for injury. Takeaway: run naturally with forefoot landing. Parkour!

To good health,

Brent

9 comments:

  1. When I've tried running up on my toes it's felt too much like prancing - is it possible to run with good form while wearing ordinary trainers (sneakers)?

    ReplyDelete
  2. Hi G,

    Reach. Grab. Pull.

    If you're Prancing, you're doing too much Dancing.

    Try doing more Gliding and Reaching. When I run, I try to Reach forward with my big toes as far as possible, then Grab the ground and try to Pull the ground back underneath and behind me as if I were trying to whirl the globe around using my feet. The goal is to have as much force exerted tangent to the surface of the earth, and prancing motions will exert far too much force vertically.

    Training barefoot on the grass or in sand helps get the feel for the motion, but after that, you should be able to run just fine in some minimalist sneakers, though you're effectively placing a "cast" on so many muscles, tendons, and neurons in the ever-so-intricately evolved human foot.

    Get Horizontal: Reach. Grab. Pull.

    And go barefoot.

    Cheers!

    Brent

    ReplyDelete
  3. That sounds right. I would not go barefoot in Glasgow though; I would end up running on pincushions full of broken Buckfast bottles and hypodermic needles. ;-) I will try 'reaching and gliding'.

    ReplyDelete
  4. Thanks for reminding me how lovely Harvard's campus is. I love Southern Cali but I do miss Boston and Cambridge.

    ReplyDelete
  5. The public transportation system in Boston is lots of fun to meander about on: very ancestrally friendly city!

    And gorgeous, yes, in a non-Californian way.

    Cheers,

    Brent

    ReplyDelete
  6. Nice and meaty; worth bookmarking and coming back to again and again. Here's my post on using the checklist to resolve disputes. Hope you enjoy mine as much as I enjoyed yours! http://www.negotiationlawblog.com/conflict-resolution/can-a-checklist-lead-the-adversarial-system-into-the-21st-century/

    Best, Vickie Pynchon

    ReplyDelete
  7. This week came across this quote in The Wave: In the Pursuit of the Rogues, Freaks and Giants of the Ocean.

    Hamilton and Kalama had been busy prepping Jet Skis, tow ropes, boards, and rescue equipment. "The bigger it is, the more redundant we get, " Hamilton said. "We've got a checklist of things we go through every time. Did we change the plugs? Tighten our footstraps? How are the sleds? Do we need oil? Radio batteries? There are just multiple layers of stuff. I'll go through it. And then Kalama will go through it. Then I'll go back through it again. And then he might go through it one more time. It's a ritual of consequence."

    A ritual of consequence...In both medical and legal practice, this is a very important idea.

    ReplyDelete
  8. Thanks, Adam.

    "A Ritual of Consequence" reminds me of Dr. Ben Carson's "Take the Risk" decision-making thinkering:

    Before making uncertain or risky decisions, Carson tries to think in new ways, weigh his alternatives, and reach his own conclusions by asking himself four simple questions (p. 105):

    What is the best thing that can happen if I do this?

    What is the worst thing that can happen if I do this?

    What is the best thing that can happen if I don't do this?

    What is the worst thing that can happen if I don't do this?

    http://epistemocrat.blogspot.com/2008/01/dynamic-hedging-against-uncertainty.html

    Gawande mentioned this briefly in his Grand Rounds presentation at UCSF: the balance between redundancy and efficiency in the checklist creation process. I wonder if there is any way to study this balance empirically? Clearly, the more steps in the checklist the more the administrative burden but the better you hedge against Errors of Ineptitude.

    Fascinating, as always, and thanks for reminding me of Dr. Carson's work again. He's great.

    Best,

    Brent

    ReplyDelete
  9. PS. Dr. Peter Pronovost, also of Johns Hopkins School of Medicine (like Dr. Ben Carson), recently published a book on checklists as well:

    http://www.amazon.com/Safe-Patients-Smart-Hospitals-Checklist/dp/159463064X

    Dr. Pronovost (http://en.wikipedia.org/wiki/Peter_Pronovost) was featured in NYTimes earlier this year:

    http://www.nytimes.com/2010/03/09/science/09conv.html

    I like how he values translational research:

    http://www.youtube.com/watch?v=Y5kSoOPAe24

    To good health,

    Brent

    ReplyDelete