At Least We’re Not the Only Ones Who Are Grossly Inefficient

The December 10, 2007 issue of The New Yorker contains a fascinating article entitled “The Checklist.” It’s by Atul Gawande, a surgeon who’s also a staff writer at The New Yorker.

The article discusses how using checklists—a process pioneered by a critical-care specialist named Peter Pronovost—significantly improves the consistency of the extremely complex care administered in intensive care units. The result is dramatically improved patient outcomes.

What particularly caught my attention is the resistance to implementing checklists:

We have the means to make some of the most complex and dangerous work we do—in surgery, emergency care, and I.C.U. medicine—more effective than we ever thought possible. But the prospect pushes against the traditional culture of medicine, with its central belief that in situations of high risk and complexity what you want is a kind of expert audacity—the right stuff, again. Checklists and standard operating procedures feel like exactly the opposite, and that’s what rankles many people.

It’s ludicrous, though, to suppose that checklists are going to do away with the need for courage, wits, and improvisation. The body is too intricate and individual for that: good medicine will not be able to dispense with expert audacity. Yet it should also be ready to accept the virtues of regimentation.

The still limited response to Pronovost’s work may be easy to explain, but it is hard to justify. If someone found a new drug that could wipe out infections with anything remotely like the effectiveness of Pronovost’s lists, there would be television ads with Robert Jarvik extolling its virtues, detail men offering free lunches to get doctors to make it part of their practice, government programs to research it, and competitors jumping in to make a newer, better version. That’s what happened when manufacturers marketed central-line catheters coated with silver or other antimicrobials; they cost a third more, and reduced infections only slightly—and hospitals have spent tens of millions of dollars on them. But, with the checklist, what we have is Peter Pronovost trying to see if maybe, in the next year or two, hospitals in Rhode Island and New Jersey will give his idea a try.

It’s not hard to see parallels to the current state of contract drafting. The improvements to be made in terms of quality are dramatic. I routinely witness this myself, most recently in my Penn Law redrafting project. The same effect is on display in the materials I prepared for a panel discussion at the 2007 ABA annual meeting (available here), as well as in the “before” and “after” versions of the “RMA Widgets” contract that I include in my seminar materials.

And when a rigorous approach to quality is married to document automation, you can achieve dramatic savings. If you’re a company handling a high volume of contracts and you haven’t investigated document assembly, you’re likely leaving money on the table.

Furthermore, commoditizing the heavy lifting that has traditionally been the lot of the contract drafter would leave unaffected the tasks, such as devising strategy and negotiating, that allow a lawyer to really add value.

Nevertheless, I encounter plenty of resistance. (I recently sounded off about this.) Trotting out the tired conventional wisdom is easier than thinking. And reinventing the wheel has been plenty profitable—at least for law firms—so why change now?

The short answer is that developments in technology and shifts in the marketplace mean that for some organizations, the incentive for change will now be stronger than the dead weight of inertia. This is something I discuss in my “Two Elephants” article.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.