Leading a Healthier Company: Advancing a Public Health Model of Ethics and Compliance

• Published date: 01 December 2021
• Author: Todd Haugh
• Date: 01 December 2021
• DOI: http://doi.org/10.1111/ablj.12195

American Business Law Journal

Volume 58, Issue 4, 799–848, Winter 2021

Leading a Healthier Company:

Advancing a Public Health Model of

Ethics and Compliance

Todd Haugh*

This article advances a public health model of ethics and compliance. It argues

that corporate leaders should draw from the successful lessons of public health to

promote ethical behavior more effectively in their companies. With its attention to

data-driven risk mitigation and behaviorally cognizant processes, a public health

model can move compliance from the faulty assumption on which it is based, that

is, that organizational wrongdoing can be deterred solely through appeals to the

rational decision-making processes of employees, to a more accurate understanding

of the situational and social influences that foster noncompliance. The article sup-

ports its thesis in three parts. It begins by explaining the evolution of compliance

and its transition from overly legalistic to behaviorally aware. Next, it draws on

behavioral ethics and network research to make the connection between public

health and compliance. Third, it explores how corporate leaders can meld the

insights from these two disciplines, offering a new way of approaching ethics and

compliance that is focused on behavioral ethics conduct risk and the practical

application of behavioral science within the firm—the best way to improve the

legal, ethical, and financial health of companies.

*Associate Professor of Business Law and Ethics and Arthur M. Weimer Faculty Fellow in

Business Law, Indiana University, Kelley School of Business; Board Member, The Poynter

Center for the Study of Ethics and American Institutions; Supreme Court Fellow, Supreme

Court of the United States (2011–2012). I would like to thank the Tobias Leadership Cen-

ter, Indiana University, and the Center for Legal Studies & Business Ethics, Oklahoma State

University, for hosting the symposium at which this article was first presented and received

helpful feedback. In addition, helpful comments were provided by Joseph Murphy, Peter

Robau, and Susan Park. I would also like to particularly acknowledge the work of Hui

Chen, which provided the inspiration for this article.

©2021 The Authors.

American Business Law Journal ©2021 Academy of Legal Studies in Business.

799

INTRODUCTION

In 1952, Virginia Apgar did something quite remarkable: she trans-

formed the field of obstetrics by creating a simple list. Although

Apgar was not an obstetrician herself and had never delivered a

baby (she had been denied a surgical position because at the time it

was believed “women had little chance of attracting patients”), her

checklist of newborn characteristics—now known as the Apgar

score—is used in virtually every hospital birth in the world.

1

The

score works by assigning points based on indicators of a baby’s

health, with higher numbers for things such as crying, vigorous

breathing, and pink complexion. A total of ten points signals perfect

health; four or less means the baby requires immediate medical

intervention.

2

Apgar’s genius was to create a simple device that allowed the intan-

gible and subjective—the condition of a newborn—to be converted

into an actionable measure. And just as important, using it meant

more careful observation of babies during their most vulnerable

moments. Apgar spent much of her life instructing others on how to

use her scoring system, almost singlehandedly creating the field of

neonatology.

3

It is estimated that the Apgar score, and the behaviors

that it fostered, may have saved the lives of upward of six million

babies in the United States—all due to a simple list and one woman’s

leadership in advancing it.

4

The story of Virginia Apgar is one of many in public health,

whereby a simple process designed to shape individual behavior

resulted in a profound benefit to the public. Handwashing and line-

insertion protocols before surgery, now widely adopted, are other

1

Atul Gawande, The Score,NEW YORKER (Oct. 6, 2006), https://www.newyorker.com/

magazine/2006/10/09/the-score [hereinafter Gawande, Score].

2

Id.

3

See It Happened Here: The Apgar Score,NEWYORK-PRESBYTERIAN:HEALTH MATTERS (Feb. 23,

2021), https://healthmatters.nyp.org/apgar-score/.

4

Gawande, Score,supra note 1 (extrapolating based on the potential of 120,000 newborn

deaths in 1940).

800 Vol. 58 / American Business Law Journal

good examples.

5

When followed, they reduce infection rates substan-

tially—infections that are fatal in up to more than a quarter of the

patients who get them.

6

Mask wearing practices during a pandemic

can have a similarly profound impact; estimates are that universal

mask wearing in the United States during the height of the COVID-19

pandemic would have saved 130,000 lives.

7

These initiatives

5

Line insertion protocols, sometimes called central line “bundles,”are a set of evidence-

based practices that have been proven to improve patient outcomes. Erwin Ista, Ben van

der Hoven, Rene

´F Kornelisse, Cynthia van der Starre, Margreet C. Vos, Eric Boersma &

Onno K Helder, Effectiveness of Insertion and Maintenance Bundles to Prevent Central-Line-Asso-

ciated Bloodstream Infections in Critically Ill Patients of All Ages: A Systematic Review and Meta-

Analysis,16L

ANCET INFECTIOUS DISEASES 724, 724 (2016). These bundles include educating

clinicians about practices to control infection from line-related bloodstream infections, crea-

tion of a central-line cart with necessary supplies, and use of a checklist to ensure adherence

to infection-control practices, among other practices. Peter Pronovost, Dale Needham,Sean

Berenholtz, David Sinopoli, Haitao Chu, Sara Cosgrove, Bryan Sexton, Robert Hyzy,

Robert Welsh, Gary Roth, Joseph Bander, John Kepros & Christine Goeschel, An Interven-

tion to Decrease Catheter-Related Bloodstream Infections in the ICU, 355 NEW ENG.J.MED. 2725,

2726 (2006).

6

See Atul Gawande, The Checklist,NEW YORKER (Dec. 10, 2007), https://www.newyorker.com/

magazine/2007/12/10/the-checklist (explaining that such protocols in just one hospital

prevented forty-three infections and eight deaths, and saved two million dollars in costs, in

just fifteen months) [hereinafter Gawande, Checklist].

7

See IHME COVID-19 Forecasting Team, Robert C. Reiner, Jr., Ryan M. Barber, James K.

Collins, Peng Zheng, Christopher Adolph, James Albright, Catherine M. Antony, Aleksandr

Y. Aravkin, Steven D. Bachmeier, Bree Bang-Jensen, Marlena S. Bannick, Sabina Bloom,

Austin Carter, Emma Castro, Kate Causey, Suman Chakrabarti, Fiona J. Charlson, Rebecca

M. Cogen, Emily Combs, Xiaochen Dai, William James Dangel, Lucas Earl, Samuel B.

Ewald, Maha Ezalarab, Alize J. Ferrari, Abraham Flaxman, Joseph Jon Frostad, Nancy Ful-

lman, Emmanuela Gakidou, John Gallagher, Scott D. Glenn, Erik A. Goosmann, Jiawei He,

Nathaniel J. Henry, Erin N. Hullard, Benjamin Hurst, Casey Johanns, Parkes J. Kendrick,

Apurva Khemani, Samantha Leigh Larson, Alice Lazzar-Atwood, Kate E. L eGrand, Haley

Lescinski, Akiaja Lindstrom, Emily Linebarger, Rafael Lozano, Rui Ma, Johan Ma

˚nsson,

Beatrice Magistro, Ana M. Mantilla Herrera, Laurie B. Marczak, Molly K. Miller-Petrie, Ali

H. Mokdad, Julia Deryn Morgan, Paulami Naik, Christopher M. Odell, James K.

O’Halloran, Aaron E. Osgood-Zimmerman, Samuel M. Ostroff, Maja Pasovic, Louise Pen-

berthy, Geoffrey Phipps, David M. Pigott, Ian Pollock, Rebecca E. Ramshaw, Sofia Boston

Redford, Grace Reinke, Sam Rolfe, Damian Francesco Santomauro, John R. Shackleton,

David H. Shaw, Brittney S. Sheena, Aleksei Sholokhov, Reed J. D. Sorensen, Gianna Sparks,

Emma Elizabeth Spurlock, Michelle L. Subart, Ruri Syailendrawati, Anna E. Torre, Christo-

pher E. Troeger, Theo Vos, Alexandrea Watson, Stefanie Watson, Kirsten E. Wiens, Lauren

Woyczynski, Liming Xu, Jize Zhang, Simon I. Hay, Stephen S. Lim & Christopher J. L.

Murray, Modeling COVID-19 Scenarios for the United States,27N

ATURE MED. 94, 94 (2021)

(finding that universal mask use (ninety-five percent use in public) could ameliorate the

worst effects of epidemic resurgences and save an additional 129,574 lives over six months).

2021 / Leading a Healthier Company 801