Helen Osborne: Hello. Welcome to Health Literacy Out Loud. I’m Helen Osborne, President of Health Literacy Consulting, founder of Health Literacy Month and your host of Health Literacy Out Loud.

In these podcasts, you get to listen in on my conversations about health literacy with some pretty amazing people.

Today, I’m talking with Christopher Trudeau, who is a professor at Western Michigan University Thomas M. Cooley Law School. Chris is one of the leading advocates on health literacy and the law and is widely recognized as the expert on informed consent.

He often speaks to audiences of health professionals, or lawyers, or both at the same time, about creating processes to not only engage patients, but also protect healthcare organizations.

Chris and I have met in person several times when speaking at the same health literacy conferences. I am delighted he agreed to be a guest on Health Literacy Out Loud.

Welcome, Chris.

Chris Trudeau: Thank you, Helen, for the introduction, and thanks for having me on the podcast. I really appreciate it.

Helen Osborne: That’s great. Let’s explore this topic of lawyers and health literacy. In my long experience in this field, this is not a commonly occurring match.

Chris Trudeau: This is true, yes. I’ve had that same experience.

Helen Osborne: We come from different worlds. You’re the lawyer and I’m the health literacy person. Why haven’t we gotten together sooner? Let’s start with what the problem is and then let’s talk about where we might go from here. What’s been the problem? Why have we been on opposite ends of this conversation?

Chris Trudeau: I’m not sure that lawyers are really aware of health literacy. Its genesis is more recent than a lot of the established lawyers out there.

I think of a legal career as a hierarchy. Right now, the lawyers that have graduated since health literacy has become well researched are not necessarily the decision makers, so they’re not the ones that actually can control what their clients are doing. I think some of that is just awareness

Helen Osborne: Lawyers just hadn’t heard about us. We as healthcare people, as I know when I teach Plain Language, are well aware of the impact of lawyers and regulators because people are always worried about what their lawyers will say.

It hasn’t been a natural pairing. But I also know and appreciate that probably all of us, lawyers and healthcare people, want to do the right thing for the people we care for and care about. How did you get on board? Why did you cross over to the other side?

Chris Trudeau: It’s interesting. My background is in Plain Language, as you know, and I started by redrafting a lot of employment contracts and business agreements.

In that perspective, it’s always a little bit harder of a sell in the sense that my arguments for clarifying those types of contracts, a 15-page employment agreement or some other type of agreement between two business entities, is a little bit harder to motivate lawyers to change their ways.

When we think about drafting contracts, we think, “Let’s just get this contract done and let’s look to see what we’ve done in the past and use portions of that in this particular contract.” You’re really regurgitating a lot the language that may have been created decades ago in some fashion.

Helen Osborne: It’s that hand-me-down, “whereupon” and you come up with some really unusual terms. I can’t even think of them.

Chris Trudeau: The archaic language just propagates itself.

Helen Osborne: Give us an example of that. You know those terms.

Chris Trudeau: I like to break it down, because this is where lawyers will draw the line, between legal terms of art, which have an actual legal meaning.

A concept in tort law or civil liability is called res ipsa loquitur. I like to think of that as something doesn’t normally happen but for the fact of some negligence or wrongdoing. I tell lawyers, “I can live with that if you use it.”

Helen Osborne: Your legal terms of art, which would be the same thing as in medicine like the word metastases. It just has to be there. There’s no better term for it, right?

Chris Trudeau: That’s right. To explain res ipsa loquitur, for example, would take a paragraph or two to somebody. In those types of situations, I try not to push on the lawyers too hard. I’ll say, “Use your legal terms of art, but for all of those legal terms that really don’t have a necessary meaning. . .”

Helen Osborne: Like what?

Christ Trudeau: Like the word inter alia. All that means is among other things, but lawyers throw that in there a lot.

You don’t even need “among other things” most of the time. You could just cross out the whole phrase, but if you wanted to use it, you could just say, “Among other things,” instead of inter alia because somebody is not going to understand what inter alia means.

Helen Osborne: I’m already grasping the similarities between what we do in healthcare. We’ve got those words that just have to be there. Maybe we have to spend a little time explaining them clearly, but they have to be there. Those other multi-syllabic mouthfuls we can easily do away with. It sounds like in law you’ve got the same thing.

Chris Trudeau: Absolutely.

Helen Osborne: You’ve got that in all the kinds of documents you write. How did you learn about health, medicine and health literacy?

Chris Trudeau: It started when I started looking at Plain Language from the client perspective. I’ve always been a big proponent of explaining things to the people.

I come from that background where I wasn’t well to do. I wasn’t the first to go to college in my family, but one of the first, so I’ve always respected that and thought, “How would I explain this to my family members?”

What really drew me to health literacy was my Plain Language training and thinking about the health world. Everybody is impacted by that. Not everybody is impacted by a business agreement between two entities that’s never going to be seen by the public, but every single person uses the health system, so that’s what really motivates me.

I can bring my unique perspective on the law and my willingness and desire to explain difficult concepts to people who really want to understand them. That marries nicely in the health world because people generally need to know what’s going on with their health in order to make informed health decisions.

Helen Osborne: I love that it comes from a place of just deep conviction inside. I can just hear that in your voice right now. I know that, when I’ve heard you speak or when we’ve chatted informally, you really believe this. It’s not just a passing fad. I get that.

Chris Trudeau: Thank you. I do appreciate that, and I’m glad that it’s coming across here and then in my other presentations and such.

Helen Osborne: It certainly is.

Let’s move this forward. You’re a true believer, I’m a true believer and our listeners want to know more about this. Where do you see this going? You’re championing the cause of legal coming on with health. Where do you see this moving toward?

Chris Trudeau: The way I think of things is let’s create win-wins, where patients win and providers are protected. That’s the way I think of it.

Helen Osborne: Be specific.

Chris Trudeau: The lawyer’s main duty, and this is something that we’re always going to put first, is to protect our clients. That’s why we’re there. We need to protect our clients.

Often, we get into this mindset of “If I’m representing a hospital, my first goal is to protect the hospital and make sure that they’re legally protected and following all of the rules and regulations so that if they get sued there’s some basis for defending” and that type of thing.

Helen Osborne: Chris, I’m going to interrupt you right there. That’s what it feels like to me is the problem. When I work on or teach people how to work on informed consents or something, we’re doing it from the patient’s perspective and then some lawyer or regulator will come through and change it all. It feels like they’re just protecting the hospital and not the patient.

Chris Trudeau: That is their goal, but my angle is to try to convince hospital lawyers, other health lawyers and just regulators in general that the goals are still the same.

By protecting and informing the patient, you’re actually better protecting the healthcare organization and the providers, so you can create this win-win.

Helen Osborne: Are people getting that message?

Chris Trudeau: That’s the battle. I think they’re starting to get the message. I actually have the perfect audience that I’m looking for coming up this March. I’m speaking for Michigan’s Health Law Institute and it’s all health lawyers.

It’s usually really well attended, so I have the health lawyers in a room right after the first day’s lunch. I’m really anxious just to kind of inform them about health literacy and talk about how they can create win-wins.

Again, it’s creating that awareness that you’re doing just one step of your job. You’re trying to protect your client, but you can do a better job of protecting the healthcare organization by weaving in health literacy and patient-engagement principles. You’re going to make your healthcare organization executives happier because that’s usually their goal nowadays.

Helen Osborne: Chris, this reminds me of the early stages of health literacy 20 years ago. I’d speak to health professionals who hadn’t heard this term and there was resistance or lack of awareness. With awareness, people got on board.

Look at it now. It’s a ground swell of amazing efforts worldwide. It sounds like you’re on the same track there.

Chris Trudeau: I think so.

Helen Osborne: I hope there are some lawyers listening, but who knows? I’m sure that our listeners include clinicians, public health folks, academics and people somehow involved on that health communication end. What can we be doing to help amplify your message to lawyers?

Chris Trudeau: I think from a public health perspective of somebody who’s not a lawyer trying to get people on board, one of the first things, and I mentioned it earlier, is to respect or understand that lawyer’s duty. Their role is to protect the client, so that’s where they’re coming from.

When we create arguments or advocate for change, we can create arguments that incorporate that perspective and then show “I’m recognizing your duty to protect the client and this is going to help.”

Helen Osborne: Can you give us some wording? We can just roleplay this, but we’ll do the opposite. I’m the hospital lawyer, like I know what I’m talking about. You’re the person trying to get me on board for health literacy. What words can you use? What can you say to me to make a compelling case?

Chris Trudeau: One of the ways I make a compelling case, at least from my perspective, is if somebody were to look at this document, would they be able to follow the instructions? Would they really be able to understand things?

This is the problem, I think, with lawyers. It’s not just giving them awareness of the problem of health literacy, but showing them how you can fix it.

One of the things I did last summer for The Institute of Medicine was to recreate a colonoscopy consent form using a lot of the design principles, Plain Language principles and that type of thing.

Helen Osborne: You and I are in the hospital situation. You’re the clinician and I’m the lawyer. We can just get together for half an hour and come from a place of mutual respect and say, “Let’s look at this together.”

Chris Trudeau: That’s right. That might be a way to do it. Say, “Here’s what we have now and this is our proposal. Let’s see really what the difference is here.”

If the lawyer’s sticking point happens to be certain regulatory language and they’re saying that this needs to be in there because of a certain law, that’s fine, but let’s not change the whole document. I’ll let you put this in there if you can work with me.

It really is coming from that place, like you said, of mutual respect and saying, “We’re trying to marry the worlds together, so I’ll let you have this if you let me have the design of this document.”

It doesn’t always have to be perfect, because there are some regulations that say you need to take this language and put it in the document. Even if we don’t like it, we have to do it.

I worry that, and this is what I think happens too often, lawyers take that as a guidance to just keep things the way they are and say, “Let’s not change anything else.”

Helen Osborne: That’s what I’ve seen. You take the whole HIPAA form, that multi-page health protection privacy act form, that’s very difficult to read. I don’t know who even reads it as a patient.

You don’t want to go to that extreme, but you don’t need to go to the plainest of plain language that’s almost a little startling there, but together come to that happy place.

Chris Trudeau: Yes, come to a happy place. I think that eventually, once you get somebody on board to some medium ground, you can keep working toward the easier form that’s better designed and that’s even to the level that you want it to be in.

I think it’s going to be more of a progressive process. It’s going to be more of a change that takes place over time. Then, as the current lawyers who are stuck in their ways retire and the new folks come up and have learned about this and it’s embedded in their souls, you’re more likely to see change.

Helen Osborne: I wonder if we can also suggest that lawyers maybe listen to this podcast so they can hear a law professor talking about this.

I know that I did another podcast a few years ago with Joe Kimble, who is also a very esteemed law professor who talks about the benefits of Plain Language. We can support that with lawyers talking to lawyers and provide that access.

Chris Trudeau: That helps too. Joe Kimble, by the way, is my mentor. He’s the one who taught me not everything he knows, but everything I know about Plain Language, and then I’ve sprouted off from there.

Helen Osborne: Another resource that I know I’ve been involved with in a small way, and I think you in a bigger way, is the association PLAIN, Plain Language Association International. Don’t they have an arm that looks at legal information?

Chris Trudeau: They do. There’s another organization that’s related to PLAIN called Clarity International. They alternate every year. One year it’s PLAIN’s conference and the next year it’s Clarity’s conference. They’re separate organizations, but the overlap of membership is pretty high. They all look at legal information in many ways.

Clarity and PLAIN, for example, both also focus on health, Plain Language in government and Plain Language in business, even in the non-legal perspective.

Helen Osborne: That’s great. On your Health Literacy Out Loud web page, we are going to have links to these organizations and to my podcast with Joe Kimble. That’s wonderful.

Just recapping this, Chris, it sounds like we need to come from that place of mutual respect with our lawyers. We’re both getting there, just not always at the same time. We need to come to the same place and raise awareness of each other.

We as healthcare people need to know more about the mandates of what lawyers are under and hopefully they can know where we’re heading in this work to come together in a friendly, reasonable way, perhaps work on something together, give a little bit and add some resources. It sounds like we’ll be moving that partnership forward.

Chris Trudeau: That’s the hope. Again, that’s empowering.

One of the other ways of moving this forward is realizing or empowering the lawyers that they’re doing more than just protecting their client by engaging patients.

I’ve had some lawyers tell me, “I think we can do it. We just have never been challenged enough to do this. We just are in our siloed role.”

If we start making legal teams part of the development process at the beginning, then they have some ownership in the creation of the document rather than just oversight or review.

They put some of their effort and their blood, sweat and tears into creating something. If they’re part of it, it’s more likely to be approved and you’re likely to get some compromise there.

Helen Osborne: Chris, I thank you for championing the cause. I often say and I truly believe that health literacy is bigger than any one person, profession or program, and together we can really make a big lasting, sustainable difference.

Thank you so much for bringing lawyers on board to health literacy and for telling us about it on Health Literacy Out Loud.

Chris Trudeau: Thank you very much for having me. I really appreciate it.

Helen Osborne: As we just heard from Christopher Trudeau, health literacy happens when all of us from all professions and points of view work together. But communicating clearly and creating partnerships is not always easy.

For help clearly communicating your health message, please visit my Health Literacy Consulting website at www.HealthLiteracy.com. While you are there, sign up for the free monthly e-newsletter, What’s New in Health Literacy Consulting

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Until next time, I’m Helen Osborne.

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