Sued for Medical Malpractice - Again

Folks who have wandered through the Legal Quality category of this blog understand my views on our perverted and unfair medical malpractice system.  I've been in the arena many times, and always walked away unharmed.   If this system were presented in front of a fair minded and impartial jury, it would be dismantled.  Sure, there are positive elements present, but they are dwarfed and suffocated by the drawbacks. The self-serving arguments supporting the current system are far outweighed by the financial and emotional costs that innocent physicians unfairly bear.  Tort reform should not be controversial. 

You may wish to peruse a few of my medical malpractice posts before spewing forth vitriol in the comments section.

Beyond the medical arena, who wants to defend the crushing volume of litigation in the United States?   Let me be bold.  I think we have too much litigation and fear of litigation in this country.  Put that item up for a vote anywhere in the country except at an American Bar Association convention, and you don’t need to be a soothsayer to predict the outcome.  You just need to be breathing.

About two years ago, I was sued months after the death of a patient for whom I provided appropriate care.  Being sued is not a lonely process.  I was among many defendants, including several doctors, a hospital and other corporate entities. 

I reviewed the medical record and reached two conclusions:

    (1)    My care was appropriate and proper

    (2)    The record documented the above.

In the medical malpractice arena, it is much more important what has been documented than what has been done.  Meditate on this statement for a few moments.

The complaint against me didn’t offer a single specific allegation of a breach of my care.   Instead, there was a general statement, which used against every defendant, that we were negligent.  My attorney also could not divine from the complaint an actual allegation against me.   Isn’t there an obligation to state to the accused what the alleged negligence is?

In Ohio, a physician not involved with the case must sign an affidavit of merit swearing that there is a reasonable basis that malpractice occurred before a case can go forward.  While this sounds like a filter, it functions as a sieve.  Shockingly, this single physician swore that every physician deserved to be sued.  I suspect that if a hamster were sued, that this doctor would have put the little varmint in the dock also.

Many of these physician ‘experts’ earn a substantial portion of their incomes by serving trial attorneys.  Anyone spot a conflict of interest here?

The case was dropped against everyone, presumably as the plaintiff’s attorney couldn’t find real experts to support the claims of negligence. 

I thought I was in the clear until the case was refiled a few months ago.   My attorney petitioned the court to dismiss me as the physician who signed the affidavit of merit was not in my specialty.  The court agreed.  For all I know, this doctor may have been a psychiatrist.

What a system.  Consider that I’m only one defendant who was drawn into the legal labyrinth.  My malpractice carrier informed me it cost $11,750.22 to defend me, and my case never even reached the discovery phase.  How's that for money well spent?

I wonder what the financial costs are from all of the unnecessary litigation that our country endures in a year.  Probably, enough to truly reform the health care system.  Hey, this gives me an idea…

Hospital Medicine Threatens Quality of Care with Communication Lapses

To those brave souls who have returned after digesting last week’s cheerleading on hospitalists, here is the Achilles’s heel of the system.  While the advantages are clear and substantial, there are serious vulnerabilities which have not yet been adequately remedied. 

Achilles Held by the Heel Being Dipped into the River Styx

• Hospitalists cannot appreciate the medical nuances, personality, family dynamics, life events and prior experiences that may be well known by the out-patient physician.   
• There are serious communication lapses, all of which cannot be bridged.  The out-patient doc may know that the patient’s chest pain is his typical anxiety and that it is not necessary to repeat the cardiac evaluation that was done 2 years ago.  The hospitalist may take a different tack here. 
• Despite their best efforts, hospitalists know that they will not be seeing the patients after discharge.  As they are not permanently vested,  they may not address certain patient concerns, punting these  to the outpatient arena.  While this may be medically acceptable, it may be frustrating for some patients.
• The hand off back to the out-patient doc after hospital discharge can be a minefield.   Patients may be on new medications.   They may have had a variety of laboratory and radiology tests.  Some of these results might be ‘pending’ at the time of discharge.   How does the out-patient physician reliably receive these results and understand their context?   Did medical specialists on the case leave recommendations that the primary physician now has to track and implement?   When the primary care doctor resumes care of a patient who had a complex hospitalization, is he now responsible to search out and address every loose end contained within the voluminous hospital record?   Could a single laboratory abnormality buried in the record that was totally unrelated to the medical illness become a medico-legal issue years later?  Do we really think that the hospitalists discharge summary to the primary care physician is airtight? 

A primary care physician recently complained to me that the local hospitalists never call him when his patient is admitted when he might provide useful information about his patient that only he know.   This is a legitimate gripe.

No system is perfect
.  

So, over the past 2 weeks you have been offered a fair and balanced presentation on hospital medicine.   Which side of the issue has the better argument?

Hospitalists Improve Quality of Care

Hospitalists are now firmly planted in the medical landscape.  These doctors have no office practices and earn their living exclusively by managing hospitalized patients.  These guys and gals are either hospital employees or are private groups who are under contract by hospitals.  The market and the profession were hungry for this new specialty, which has exploded across the country.   The advantages to patients and to practicing physicians are enormous.  Are there drawbacks?  Of course, but you’ll have to wait a week to read about them.

Hospitalists Pro or Con?  Which side has more weight?

When these hospital physicians first appeared on the hospital scene, there was buzz that patients would push back against these stranger-docs wanting their own office doctors to attend to them instead.   This never materialized.    Patients no longer had the expectation that their own doc would be available to them 7 days a week.  Indeed, medical physician groups and institutions had on-call rosters such that it was likely that the doctor available was not the patient’s actual physician.  So, the heavy lifting had already been done.

Once patients and their families recognized the high quality of care that hospitalists provide, whatever doubts that may have existed evaporated.

Here’s the upside.

• Hospitalists provide superior hospital care because of their training and experience.   It is probably true that a physician who treats 75 heart attack patients each year is more skilled at doing so than is a family doctor who does this quarterly.  In general, higher volume translates to higher quality.
• Hospitalists are there around the clock.  They are available to check on patients throughout the day and night.  Can anyone argue that this is not superior to the prior system of the attending physician seeing the patient once daily?  Go ahead.   Make your case.
• Hospitalists allow primary care physicians to stay clear of the hospital so they can focus on their out-patient practices, where their skills are better matched.   Additionally, it is very inefficient for a primary care physician to come each day to the hospital to see a patient or two.  For these reasons, the vast majority of primary care physicians refer their hospitalized patients to hospitalists for care and treatment.
• Internists enjoy a higher quality of life as they no longer have to stagger in at 3 a.m. to admit one of their patients.

Next week, I’ll offer my view of the downside of hospital medicine.  Yes, I know the suspense is killing you.  I can only hope that if I write it, that you will come.

Alternative and Complementary Medicine, Placebo Effect or Panacea?

Readers know that I am skeptical over the efficacy of complementary and alternative medicine.  This is not merely a demonstration of my inborn skepticism, but doubt based on the fact the so much of their claims are untested, unproven or refuted.

I don’t regard the above comment as controversial.  It is factual.   I’ll let readers decide if it is but another example of the arrogance of conventional physicians who worship on the altar of evidence based medicine. 

Recently, I read a column in The New York Times by a university professor who was treated for a cold in China by drinking fresh turtle blood laced with grain alcohol.  In a day or two, he felt better.  Cause and effect?

 It’s not easy to talk someone out of a view that a pseudoscientific remedy healed them.  Why should we do so?   If a patient tells me that his fatigue has finally lifted after giving up guacamole, do I serve him or the profession by pointing out the absence of any scientific basis for his renewed energy level?   Or, is the better response for me to celebrate his progress and urge him to continue his ‘treatment’ which clearly poses no health risk?

Guac anyone?

Certainly, if I felt a patient was pursuing an alternative medical treatment, or any remedy, that threatened his health, I would plainly state this so the patient was making an informed choice.  If a patient was suffering from a bleeding ulcer, and wanted only herbal medicines, I would make sure that the risks of this choice were well understood.

I need to make a confession here.   Physicians face a huge knowledge vacuum with regard to the human body which is the product of millions of years of natural selection.  We are no match for comprehending its nuances and complexity.  Taking care of patients is a hugely humbling experience.  Consider how microscopic germs, organisms that are not sentient and have no brains, can wipe out millions of humans.   We should acknowledge that we’re not that smart.

There’s another possibility to be considered when a patient relates the success of remedy that we don’t support or understand.  It might actually be working.

Have you been tired lately?  Fatigued?   How much guac have you had lately?  

Quiz on CAT Scan Ownership, EMR, Defensive Medicine and Obamacare

From time to time, the Whistleblower will offer readers a quiz.  Physicians, similar to other professionals, have taken scores of standardized tests over the years.  Most physicians are skilled at these exercises which, in my view, are a poor measurements of skills necessary for becoming a capable and caring physician.  Yet, as we have learned from pay-for-performance and other ‘quality’ initiatives, we measure what can be easily measured even if it doesn’t really count. 

The Kirsch progeny have been exposed to well over 100 quizzes during their formative years, when they competed for valuable prizes at the dinner table.  As we know at carnivals and county fairs, everyone wants to win that Teddy bear, no matter how much it costs to win it.   It’s the victory, not the prize.

1902 Washington Post Cartoon with Teddy Bear and TR

True or False?

A physician who owns a CAT scan machine is more likely to order scans than would another physician who does not own a scanner on an equivalent population of patients.

True or False?

Electronic Medical Records helps to cultivate the doctor-patient relationship by facilitating eye contact and reading body language.

True or False?

Defensive medicine improves medical quality as these additional diagnostic tests give an extra margin of safety that a serious condition will not be missed.

True or False?

The Patient Protection and Affordable Care Act, aka Obamacare, should be zealously supported as it will provide every American with high quality and affordable health care.

Ok, so these questions were ‘gimmee’s.   Future quizzes will be tougher and are likely to include multiple choice questions.   Prize donations welcome.

Can Private Practice Survive?

Just read another article forecasting the demise of private practice, which is the model I practice in.  We certainly feel the squeeze here in Cleveland, where our small gastroenterology (GI) practice is suffering from some breathlessness as surrounding health care institutions suck up oxygen in the community.

Now, being deprived of oxygen isn’t necessarily fatal.  Many patients suffer from diseases that result in low oxygen levels in their blood.  Folks who live at high altitudes don’t have the same concentration of oxygen available as do those who reside at sea level.  Yet, they live active lives.

How do these folks survive?  Do they have lessons for my GI practice?

Take a Deep Breath...

Here are some options that help individuals with low oxygen levels breathe easier.

• Receive supplemental oxygen using an oxygen tank.  No analogous solution for my medical practice here.  For us, the ‘oxygen level’ can’t be artificially increased.
• Reduce activity level to minimize oxygen requirement.  This is why folks with respiratory conditions tend to remain sedentary so they can function at a lower oxygen level.  Not sure if there’s a lesson here for our practice.  Do we move more slowly in the office?  Do we see fewer patients?  If we doctors used oxygen tanks, would this inject more vitality into the practice?
• Attack the root cause of the oxygen assault.  If the cause of a patient’s low oxygen is pneumonia, then prescribe the right antibiotic to reverse the injury.  If the doctors in our practice attacked the proximate cause of our oxygen deprivation, we could go to jail. 
• Train at a high altitude locale for athletic competition in the lowlands.  Marathoners seek out high altitude training courses to build endurance in preparation for the big race down below.  Perhaps, we should move our practice to high altitude Colorado for a year.  After doing colonoscopies there for a year, imagine the increase in our performance when we returned to Cleveland?  I will place this on the agenda of our upcoming practice meeting. 

Great choices for us.  Breathe less, do less or move.

Feed a Cold and Starve a Fever? Not on my Watch

Physicians and patients collaborate to treat symptoms.   This is not newsworthy and even sounds appropriate.  Isn’t that what doctors are trained to do?   It is but I’m not sure this should be a central focus of our healing mission.  Treating a symptom is not the same as treating a disease. 

For example,  if an individual is having abdominal discomfort, pain medicine should not be the first responder, even if this would bring the patient relief.  Physicians try to understand the cause of the pain which would then guide our therapeutic response. The treatment would differ substantially if the cause of the pain were appendicitis or an ulcer or a kidney stone.

Is Fever the Enemy?

Often symptoms are regarded as diseases themselves that need to be treated.   Over the years, I have been called by nurses hundreds of times to prescribe medicine for patients who were nauseated.  Nurses are exceptional professionals, but they are not physicians.   They are preoccupied with the patients’ comfort and welfare and are vigilant about symptomatic treatment of nausea, diarrhea, headaches, constipation and insomnia.   This is one reason, but not the only reason, that hospitalized patients routinely receive sleeping pills, Imodium, laxatives and acetaminophen.   Most of us at home do not reach for antacids or other symptomatic remedies as often as these elixirs are dispensed in the hospital, where the culture of medicating is more pervasive.  In fact, medical interns and residents often include several ‘standing orders’ for patients they admit to the hospital so that nurses will not have to contact them for advice if these common symptoms develop.  

Standing Orders

If patient develops constipation, then give laxative A.

If patient develops diarrhea from laxative A, then give Metamucil.

If patient develops gas and bloating from Metamucil, then give simethicone.

If simethicone does not relieve gas, then double the dose.

If patient complains that high dose simethicone is causing sleeplessness, then give sleeping pill Y.

If patient complains of lethargy after receiving sleeping pill Y…

Interns who didn’t use standing orders would be guaranteed to receive nurses’ pages around the clock alerting young, tired physicians with scores of symptoms to respond to.  Standing orders were an intern’s insurance policy against paging assault.  This collaboration between interns/residents and nurses is where we physicians first learned to pull the symptomatic trigger so reflexively.   I think even seasoned physicians often casually prescribe anti-nausea medicine rather than aim to understand the cause of the symptom.  It's a tidy response to nurse's concern about a patient, which is often relayed to the doctor after hours on the phone.

In addition, not every symptom should demand an immediate pharmacologic response.   Yet, in the hospital, and often in our offices, this may be our modus operandi.

And finally, are we so sure that symptoms should be squashed?   Why do we treat every fever, for example?   Could it be that fever, diarrhea or vomiting are actually bodily defense mechanisms that are combating disease and illness?  Could it be that an infected person develops a fever in order to make his body less hospitable to germs or to sharpen his immune system?   Are today’s medical professionals really much smarter that millions of years of natural selection?   Let’s dose ourselves with a tincture of humility.  We’re not all that smart.

Even writing about this stuff gets me worked up.  I feel some heartburn developing.   Where are my Tums?