Sunday, December 27, 2009

Whistleblower Holiday Cheer 2009!

‘Twas the night before Christmas,
In the Senate and House,
Health reform creatures
Were giddy and soused.
The horses were traded,
And promises made,
Nelson and Landrieu
Were handsomely paid.
Some will be winners,
And others will lose.
The majority strategy?
 Scare and confuse!

The conference is coming
Where sausage is made,
Which plan will survive?
Neither! We prayed.
A government option
And sugarplum fees,
Isn’t the cure
Of our health care disease.
“Now Harry! Now Nancy!
On Dodd and on Baucus!”
With a wink and a twinkle,
They held tight their caucus.
The Dems all agreed
One item must fall.
Now dash away! Dash away!
Tort reform all!
Then with a crash
Through the chimney that night,
Popped out Barack
With a smile of delight.
He promised reform
Turning debt into wealth.
The better plan may be
To pray for good health.
He raced through the chambers,
Looking merry and droll
Giving Dems sparkling diamonds
To the GOP - coal.
In a flash he was gone,
And away sailed his sleigh.
Why do most of us feel
This is not our best day?

The Whistleblower wishes everyone
joy and peace for the holidays.

Thursday, December 17, 2009

Fee-For-Service Medicine: Hold on to your Tonsils!







Last week, I bravely expressed vigorous support for medical rationing. No one has yet sent the ‘death panels’ after me and I still have a pulse. This week, emboldened by my continued survival, I tread again into dangerous terrain. I will offer support for another policy that is accused of being the cause of ongoing hemorrhage of the health care system. Who would risk public opprobrium by expressing support for a practice that is so corrupt and evil? The Whistleblower knows no fear.

Caution! Any minors reading this post are strongly admonished to close this window immediately so that your impressionable minds won’t be irrevocably contaminated. I shall write the nefarious term in the smallest print allowable, hoping it will escape the attention of web censors and the D.C. Health Care Thought Police.

Fee-For-Service-Medicine

The hardest part of treating an addiction is to admit the problem publically. I stand before you with humility and hope.

"My name is Whistleblower and I am a FFS physician"

Only 11 steps to go.

I practice FFS medicine, which is felt my many to be a gangrenous limb of our health care system that needs to be excised. FFS physicians are portrayed as profiteers who are fleecing the system. Even our president offered a rather damning comment this past July.

"Right now, doctors a lot of times are forced to make decisions based on the fee payment schedule that's out there. ... The doctor may look at the reimbursement system and say to himself, 'You know what? I make a lot more money if I take this kid's tonsils out,'"

This comment really stuck in the throats of thousands of ENT (ear, nose and throat) physicians who were being accused of pushing a No Tonsil Left Behind policy. Perhaps, the president was misinformed that ENT stands for Everyone Needs a Tonsillectomy.

The president, who bristles at the suggestion that he may harbor some socialist tendencies, joins a chorus of ‘reformers’ who want physicians to salaried. Indeed, he champions large medical institutions that pay physicians by a fixed wage, as if this model could be extended nationally. Only under a salaried construct, they argue, will we phyisicans be unshackled from financial conflicts of interest that taint our advice to our patients. The word profit joins medical rationing and FFS on the dark list of evil phrases that should never be broadcast during family viewing hours. (Not to worry parents, these time slots are already reserved for Viagra, Levitra and Cialis advertisements.)

When I recommend a colonoscopy, I do so because of medical need. I have confessed in an earlier post, that there are other factors that can influence my advice, but financial gain is not one of them. FFS gives an incentive for practitioners to provide excellent customer service. Which physician will be more likely to squeeze you in for an appointment, stay late for you or meet you in the emergency room when you are sick? Will it be a physician who is paid for this extra performance, or one who is on salary? Of course, this is a generalization. There are excellent physicians on salary and average practitioners who are compensated by FFS. However, in general, folks perform better when they have an incentive to do so.

I know that many readers are convinced that salaried physicians are the right medicine. Why stop with doctors? Why not simply remove profit from all professions and trades? Do they argue that only physician financial conflicts of interest should be eliminated? Here are some other folks who operate in FFS and profit models.
  • Attorneys
  • Accountants
  • Plumbers
  • Auto mechanics
  • Business Owners
  • Consultants
  • Salesmen
  • Retailers
  • Investors
  • Capitalists

If FFS medicine is corrupt, then why shouldn’t we strike out at profit wherever it exists? Wouldn’t we all be better off if the folks who advised us and sold us stuff had nothing to gain personally from the transaction? See how silly this is sounding, at least for those of us who are avowed capitalists?

Is FFS medicine the best we can do? Perhaps not, but I’m not willing to demonize it. FFS is not the only compensation system that is flawed. Remember HMOs where physicians had an incentive to limit care? Patients loathed this system, which had an irredeemable conflict of interest. Will a replacement for FFS medicine have conflicts that are more pernicious than the current ones? I do not welcome a ‘reformed’ compensation system that pays me just for showing up or rates me using a new quality measurement metric that measures everything but actual medical quality. We need to think this through to make sure a new method to compensate physicians will be fair to the public and to the medical profession.

There are diverse opinions on this issue in the blogosphere. Gooznews, a prominent health blogger, believes that FFS should be eliminated. Medrants and Musings of a Distractible Mind point out that the current system does not reward cognitive effort and time. Dr. Wes, angry about the president’s tonsil gaffe, requested an apology on behalf on the medical profession. I doubt that one was received.

What have I learned from all this? The president has given me an idea on how I might reach higher toward a new goal in my practice. I think I can kill 2 tonsils with one stone. During one of my profit seeking FFS colonoscopies, I will use an extra long scope and try to snatch a pair of tonsils at the same time.

Sunday, December 13, 2009

Medical Rationing: The Last Best Hope?

Photo Credit

In 1972, George Carlin, the irreverent comedian who believed that boundaries are meant to be crossed, listed the 7 dirty words that could never be aired. These were considered to be a broadcaster’s ‘never event’. While society’s prohibition against offensive language and images have relaxed exponentially, there are still words and expressions that are radioactive.

I am quite certain that health care reformers have conducted focus groups to determine which verbiage offends and which phrase soothes the skeptical public. Words matter. I used to think that studying linguistics was merely an academic pursuit for grad students. Not so. These wordsmiths can now find honest work on Capital Hill. They can educate politicians on the nuances of language and expression so that our elected officials can speak out of a third side of their mouths.

We all remember from the prior presidential campaign how a wayward sentence can be exploited by adversaries who are poised to pounce. Recall this remark that Barack Obama made on the campaign trail in San Francisco in 2008.

So it’s not surprising then that they [midwestern communities]get bitter, they cling to guns or religion or antipathy to people who aren’t like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations.

If only there had been a linguist on the speechwriting staff. Obama and his handlers wish there had been a 7 second delay so that his misunderstood remark could have been bleeped, like a Carlin epithet. I don’t fault the president for his oratorical misstep. Considering the unrelenting campaign schedule, it’s expected and forgivable that candidates are not on their game 24/7.

Health care reform (HCR) advocates know that words and phrases may matter more than substance. Seasoned D.C. pols make only occasional rhetorical gaffes. Freshmen congressmen, however, rely on linguistically-correct HCR cue cards so that their words will be on message. Obviously, there are pro and con versions for each side of the aisle.

HCR Opponents Say…............... HCR Supporters Say

Tax and Spend.....................................Invest in the Future

‘Death Panel’........................................Comfort Care

Government Run Health Care..............Public Option

Free Market..........................................Price Gouging

‘Jackpot Justice’...................................Patients’ Rights

Medical Rationing ................................Evidence-Based Medicine

Clearly, I am no politician because I support medical rationing, and I’m not afraid to use the smokin' hot term. Indeed, we ration resources in our own home. Our income is finite. Our family cannot run a deficit year after year, leaving our kids or their kids to pay the bill. We have our priorities and fund those activities that we feel are critical. Like most families, we run out of money before we run out of worthy pursuits. Since our kids and us can’t have it all, this means that we are rationers. I hope that no outraged reader will report us to child protective services for negligent parenting.

Sure, the stakes in health care are higher, but the principle remains. Resources are finite and medical care is infinite. Consider this shocking development recently reported in The New York Times. A new drug, Folotyn, was approved by the Food and Drug Administration (FDA) this past September against lymphoma, a blood cancer. The tab? A mere $30,000 per month. This makes other chemotherapeutics that cost only 10 grand per month seem like bargain medicines. What does Folotyn deliver for a monthly cost that exceeds many Americans’ yearly earnings? Not much. It shrinks tumors in a minority of patients, a common claim of benefit by cancer drug advocates. However, just shrinking a tumor doesn’t make a person feel better or live longer. Indeed, no mortality advantage of Folotyn users was demonstrated.

Can we afford to spend fortunes of money on treatments, even if approved by the FDA, that have no meaningful proven value to patients? Let me respond boldly to my own inquiry. We can’t and we shouldn’t.

Other medbloggers have voiced concerns about the struggle to achieve cost control.

Medrants, an academic physician, writes that...we cannot control costs if we indiscriminately order every possible test, every new expensive drug, and provide futile care.

Dr. Val points out that other countries are more aggressive about prioritizing health benefits than we are. She writes that in Canada, expensive chemotherapies are not commonly covered by the national health plan, and in Britain, age is a determinant for transplant eligibility.

Medinnovations, a thoughtful blog by Richard Reece, M.D. states the obvious that the supply of health care is a limited resource, and the demand in an aging population is unlimited.

If the nation isn’t ready to ration hard, let’s at least ration easy and push back against expensive medical care of questionable or no value. This is the low hanging fruit. Harder choices will follow, and we will have to face them. Rationing can’t remain on the ‘dirty word’ list any more. We need to scream it out because it needs to be heard. Like Carlin, we need to break through some boundaries.

Sunday, December 6, 2009

Medical Malpractice Strikes Again! A New Confession


I’m surprised that they haven’t thrown me out of the profession yet. In the past year alone, I have been sued for medical malpractice, committed a ‘never event’ and confessed to performing an unnecessary medical test on a patient. It’s a wonder that my medical license hasn’t been revoked. Keep in mind that the above events are only those transgressions that I have admitted to. Imagine the misdeeds, misadventures and misconduct that I’ve kept secret. Are handcuffs in my future?

For example, I should I have come clean that a 2nd medical malpractice case was recently filed against me. I received the thick envelope from noble and altruistic Cleveland barristers about 6 weeks ago. Once again, I saw my name in the good company of many other physicians and our local hospital. I reviewed my medical records and felt comfortable with the care I had provided. In a medical malpractice case, quality of medical care is important, but the truth won’t set you free. It’s the documentation, stupid! I believe that I practice good medicine, but I know that I am an obsessive documenter. The former is important to my patients, and the latter is appreciated by my lawyer.

I had a single meeting with my attorney to review the legal preliminaries. It was clear that he had studied all of the relevant documents and was prepared. He was a senior partner at the firm and looked so much like a lawyer, that I thought he must be an actor. He donned a well tailored conservative suit and had elegant silver hair. He wore reading specs that conveyed a professorial demeanor. He was measured in his speech. Did he know any law? I hope so, but who can tell? As marketers and advertisers know, packaging is more important than the contents.

I had no clue where my standard of care may have strayed from the community standard. Only a person with a law degree can make such a determination. After all, what do we doctors know about medical quality? A physician cannot be expected to offer an authoritative opinion whether medical care is within acceptable standards as would be practiced by a reasonable and prudent physician if said physician were faced with similar clinical circumstances and knew, or should have known, that the patient, known as "Victim A", had a condition or set of conditions that within a reasonable degree of medical probability may have resulted in an adverse outcome had the physician not instituted prudent and proper medical care and treatment in accordance with established medical custom and practice. (Disclosure: Legalese concocted by the Whistleblower and may not conform to the community legal standard.)

Making a medical standard of care determination is certainly beyond the intellectual reach of a concrete thinking gastroenterologist who spends a good portion of his time in rectums. Lawyers, however, are paid handsomely to unravel such insoluble questions. So, at the close of our meeting, I asked him straight out why he thought I was being sued.

The wizened attorney thought for a minute before responding. He leaned towards me and with focused eye contact stated, “I have no idea”. That made two of us.

In Ohio, filing a medical malpractice case against a doctor requires that a physician sign an affidavit of merit, a sworn statement, attesting that the standard of care was breached. While these affidavits are generally signed in advance of filing suit, judges will give plaintiffs some latitude and permit the case to be filed if an affidavit will soon follow. I am in this window period, when the plaintiff’s attorney is trolling around the state trying to pay off one of my colleagues for a signature. I don’t think he’ll find one, even though this service can earn a physician up to $1,000 an autograph. Maybe some of these guys should be thrown out of the profession.
How does anyone credibly defend a system that targets innocent physicians routinely, vaporizes tens of billions of dollars on defensive medicine and misses the vast majority of patients who have been the victims of true negligence? If physicians performed according to these standards, we'd all be in handcuffs.

Sunday, November 29, 2009

The High Cost of Health Care: A Personal Confession

Photo Credit
Who says one person can’t make a difference? This past week, I personally set back health care reform. No, I wasn’t attending a ‘tea party’ or decrying Obamacare in a venomous letter to the editor. I single-handedly bent the health care cost curve in the wrong direction. I performed an unnecessary medical test on a hospitalized patient, which exposed her to risk and cost the system money. Why did I do this? Personal enrichment? Fear of litigation? Need for a juicy Whistleblower post? None of the above.

The patient was hospitalized after a week of abdominal cramps, nausea, vomiting and diarrhea. A CAT scan of the abdomen, often ordered by reflex in the emergency department (ED), showed no abnormal findings. In the ED, her white blood count was modestly elevated, but had normalized by the following morning when I met her. My physical examination demonstrated no concerning findings.

I suspected that she was suffering from gastroenteritis, medical jargon for‘stomach flu’. Physicians, lawyers and some bloggers often prefer highfalutin terminology, rather than standard colloquial English, which works just as well. I briefly digress to give a few examples of complicated phraseology used to aggrandize the pompous professional.

Pompous Phrasing........Ordinary English

Pharyngeal injection.....................................Red throat

Edematous....................................................Swollen

Cephalalgia....................................................Headache

Cholecystolithiasis........................................Gallstones

Highfalutin.....................................................Fancy-schmancy

I advised my patient that I did not advocate additional testing, and anticipated a very brief hospitalization followed by a full recovery.

She was not satisfied with this conservative approach. She had suffered a stomach ulcer nearly 20 years ago, and was concerned that her illness was a recurrence of this condition. She wanted the scope test (EGD) of her stomach to exclude this diagnosis. I spent more time with her to explain why this test was unnecessary, and told her that she might be able to be discharged late in the afternoon. I promised to check on her progress later.

It is more typical for gastroenterologists to coax folks into colonoscopies and other intestinal delights, than to dissuade them from sampling our diagnostic bag of tricks. This patient was an exception.

I called her nurse that afternoon to inquire on her condition. She advised me that the patient’s family had visited and they all insisted that an EGD be performed prior to discharge.

Here were my options:
  • Return to the hospital for a family meeting

  • Refuse to do the procedure and see the patient on rounds the following morning

  • Resign from the case and request another consulting gastroenterologist to see her

  • Perform the procedure.

Medicine is not a perfect world and its practitioners are imperfect members of the human species. It was clear to me that if the scope were not performed, that this patient and her family would believe that an essential medical service was being denied. They would be angry. In similar instances in the past, when I had counseled patients against having tests performed that they desired, I had been falsely accused of trying to save insurance company money. I did not return to the hospital to meet with the family as I believed that discussing the futile scope test with them would be futile. As the EGD has nearly no risk, I decided that performing it would serve the greater good. I recognize that other physicians may have chosen differently.

The results were normal. I’d like to think that no one got hurt in this vignette, but this isn’t true. Health care reform took a direct hit from me and my personal integrity was grazed. I’m blowing the whistle on myself.





Sunday, November 22, 2009

U.S. Preventive Services Task Force and Mammography: Evidence-Based Medicine or Medical Rationing?

WELCOME TO MAMMOGATE!


This week, the revised U.S Preventive Services Task Force (USPSTF) mammography guidelines monopolized newsprint and airtime. Was this truly Page 1 news? For a few days, mammojournalism pushed aside stories on the war in Afghanistan, double digit unemployment, Iran’s hidden nukes, the president’s foreign nation tour and the war on terror.

(Note to readers: The phrase ‘war on terror’ is now verboten in the the Obama administration. No spokesmen will utter it, except on deep backround. I unabashedly use it since it seems that our enemies are still at war with us.)

Of course, it’s not the science of mammography that is white hot – it’s the politics of breast cancer that is volatile and combustible. Medical guidelines in every specialty are revised regularly, yet no conflagration erupts in the public square, as occurred last week. When my own specialty revises colonoscopy guidelines every few years, the public and the medical community respond with a collective yawn. Not so for breast cancer,which has lobbyists and political muscle that fights to make sure that their cause remains a national priority. Even mainstream medical organizations and public advocacy groups are in their corner. Maggie Mahar writes at HealthBeat that the initial reaction from many health professionals, breast cancer survivors and advocates has been outrage and anger, with many insisting that women’s health will be compromised if these recommendations are implemented...Leading this onslaught are some key members of the cancer establishment: The American Cancer Society, The American College of Radiology and the National Cancer Institute.

First, the USPSTF was accused of being a tool of medical cost control fanatics. I agree there was bias – from the accusers, not from the USPSTF. The mammogram brigades had an agenda and weren’t going to be derailed by solid medical data. The USPSTF has earned a reputation for objectivity and caution. They do not make recommendations that are beyond the data, despite political pressure to do so. Unlike most medical societies and advocacy groups, they are skeptical and conservative, two qualities that are often lacking in the medical arena. They should be applauded for calling it like they see it. Instead, they are chastised by those who are distressed by their recommendations. However, just because we dispute the outcome, doesn't mean that the system is flawed. For example, if we don’t like a jury’s verdict, does it mean that the trial was unfair?

Preventive medicine is overrated, a heretical statement from a physician who performs screening colonoscopies. While I support mammography and colon cancer screening, their medical benefits are much more modest than the public realizes. With respect to mammography, the data demonstrating meaningful benefit to women, particularly those under 50, have always shown relatively small gains for them. This test is often portrated as a lifesaver, but this is an exaggeration. Yet, there is a juggernaut of support for annual exams behind it.

What about the downsides of yearly mammograms for average risk women in their 40s? In addition to the test’s limited efficacy in this group, here are some real concerns from overuse.

  • Radiation

  • Anxiety for patients and families
  • False postive results which lead to invasive medical care
  • Detecting cancers that may never progress.

Of course, cost is also a factor, even though the USPSTF is prohibited from considering it in their deliberations. Where is the data that yearly mammograms in younger women are cost effective? This is analogous to the PSA test in men for prostate cancer. How many men are harmed by the PSA in order to save a single life? You cannot argue that saving a life is worth any cost, as this is not how our society operates. We all know that if we lowered the highway speed limit to 40 mph, or raised the driving age to 25, that we would save lives. Yet, we do not demand these revisions. We accept low risks of catastrophic events in our daily lives.

The USPSTF revisions are being co-opted by the political right as a prelude to medical rationing. I reject this broadside, just as I do the protests from the medical left, whose enthusiasm for mammography exceeds the evidence. If rationing means that every American cannot have every available medical benefit on demand, than I am a rationer. Of course, we all know that loaded terms like rationing are routinely sanitized to make them more palatable, even if their meaning doesn’t change. Here are a few sanitization examples.


New & Improved Sanitized Descriptions

Global War on Terror morphs to Overseas Contingency Operation

Medical Rationing is scrubbed to Evidenced Based Medicine

Whistleblower is buffed into Truth-teller


Interestingly, Kathleen Sebelius, Secretary of the Department of Health and Human Services, is sprinting at top speed away from the new USPSTF guidelines. I hope she doesn’t collapse from exhaustion. I am troubled by her retreat, as are fellow medical bloggers Medrants and The Covert Rationing Blog. The Obama administration is devoting over $1 billion dollars to fund comparative effectiveness research (CER), which is supposed to use solid medical data to determine which treatments actually work. Its objective is to eliminate ineffective care, which would result in billions of dollars of cost savings. Now, the USPSTF, appointed by the federal government, has issued solid CER guidelines that our government is rejecting with alacrity and zeal. Anyone want to wager on whether CER has a prayer to succeed? The Health Care Blog notes that our government's revised CER policy is 'not on our watch'.

The USPSTF presently endorses screening colonoscopy between the ages of 50 and 75. In the forseeable future, this guideline will be revised, when new technology replaces this procedure. When this occurs, should I welcome a development that will serve humanity, or grab a pitchfork and a microphone and cry foul. One of the most intractable challenges in health care reform is to separate one’s own interest from the public interest. If there is to be any chance of success, we need to be governed by science and medical evidence. The mammography mania we have just witnessed demonstrates that we are not equal to the task. The public and many physicians are convinced that more medical care means better health, a fallacy that may take at least a decade to unravel. This is the Gordian Knot of health care reform.

Ironically, the American College of Obstetricians and Gynecologists just announced that they think we are doing too many Pap smears. Hmm, first too many mammograms and now Pap smears also? Sounds like a vast GYN conspiracy is in the making.

Sunday, November 15, 2009

A ‘Never Event’ In My Own Practice!






I have already opined on the ‘never events’ reform where hospitals would not be compensated for certain medical catastrophes that should never occur. We all agree that performing surgery on the wrong organ, or the wrong patient, should never happen. My fear is that the list of events will metastasize and will include many unfortunate medical outcomes that cannot be avoided by even the most diligent physicians and institutions, a point echoed at The Covert Rationing Blog, and elsewhere. Dr. Val, in a guest post at Health Care Law Blog argues that patient falls in the hospital, while regrettable, should not be a 'never event'. Dr. Wes, a cardiologist, irreverently suggests that the common cold may be added to the 'never events' list!

We bloggers know how easy it is to hurl opinions from our safe sanctuaries. I learned this when I wrote a post about excessive emergency room care. Folks who had never heard of me, an obscure gastroenterologist from Cleveland, were leaving comments on various websites that I hope my mother never saw. While I stand by the post, I realize now that I didn’t sufficiently consider the issue from the emergency room physicians’ vantage point.

Recently, I experienced a ‘never event’ in my own practice. I am no longer a smug blogger who is pontificating from a distance, but I am now a physician who has to explain to a real human being why something happened that never should have occurred.

Was it my fault? I don’t think so. Was I responsible? Of course. I’m the doctor.

Two months ago, an elderly man was referred to me with suspected silent internal bleeding, a medical issue that gastroenterologists commonly address. He was in his 80s and had many medical conditions. He was a very reluctant patient. To the surprise of the referring physician, he actually showed up. I gave him his options:


  • Scope examinations of the large intestine (colonoscopy) and the stomach (EGD) to search for a source of the presumed bleeding. These tests are the most accurate, but have risk. He would be advised to stop his blood thinner several days before the test. He was anxious about stopping this medication, even though the risks of briefly interrupting a blood thinner in his case are extremely low.
  • Radiographic tests of the colon and stomach. No risk, but less accurate. He could continue the blood thinner. These tests require the same cruel, but not unusual, laxative purge as required in colonsocopy. However, if a lesion is discovered on these noninvasive tests, then he may need a colonoscopy and an EGD on another day to remove it. This option is safer, but may result in the fun and excitement of a 2nd colonic cleansing.
  • Do nothing and take your chances.

He agreed to contact me in a few days with his decision. While I would have wagered handsomely that he would have selected option #3, he surprised me. He chose option #2, so I scheduled him for a virtual ‘colonoscopy’, which examines the colon with a CAT scan. He preferred this over colonsocopy because it was safer and he could continue his blood thinner. He understood that if the CAT scan showed an abnormal finding, or wasn’t a high quality study, that he would be offered the ‘enlightening’ experience of a traditional colonoscopy.

Of course, the CAT scan showed a large growth high up in the colon. I related the news to him and then offered a colonoscopy. Now that he knew for certain that he harbored an unwelcome stowaway in his large intestine, this was an offer he could not refuse. For the second time in a month, he endured the liquid-dynamite cleansing agents that we gastroenterologists casually prescribe every day. I performed the colonoscopy and removed the large lesion and submitted it to the pathologist for analysis. The patient was to see me in 2 weeks.

Days later, in advance of his appointment, our office was called as the specimen was not received by the pathology department. No need to panic yet. This was likely a clerical oversight that would soon be rectified. Not quite. After several more phone calls, I learned the truth. The nurse had discarded the specimen. Let me restate this in more familiar language. She threw it in the garbage. Why? I’m still not sure. The nurse maintains that she asked what I wanted done with the specimen and she heard me reply, “I didn't need it.” So, she obediently complied and discarded the specimen.

There have been very rare instances when a specimen has been lost, but never has this been a deliberate act. What a colossal misunderstanding! Though I cannot recall my precise words to the nurse, I am sure that I wasn't talking trash.

I was shocked at this occurrence, which should have never occurred. I have removed thousands of colon polyps and every single one of them has been sent for analysis. We never discard a specimen. The nurse should not have deviated from an unbroken pattern of medical practice. Clearly, there was a complete disconnect between her inquiry and my response. I should be relieved that she didn’t ask if we should amputate his left leg. What if I nodded ‘yes’? Would she have taken out a chainsaw?

The patient and his wife returned and I disclosed what occurred. I apologized for the event and told him that the hospital was thoroughly investigating the event to assure that such an error will never happen again. I told him that the lesion appeared benign to my eye, but I couldn’t guarantee this, or that it was completely excised. I told him that another colonoscopy in a few months was advisable. He agreed to return to see me in the office 2 months later.

I saw him last week and scheduled him for another colonoscopy. As a precaution, I will be accompanied by a retinue of trained SWAT personnel to secure the site and guarantee that the chain of polyp custody will be seamless. Should I hire a Brink's truck?

Saturday, November 7, 2009

Tort Reform for Lawyers!



The law has many privileges and protections for its own players that are necessary for the legal process to operate effectively. For example, we all accept that a judge should have absolute legal immunity for decisions and judgments made in his judicial capacity. If a judge could be sued because he ruled that certain evidence was inadmissible, for example, then the system would collapse. Immunity allows judges to decide legal issues freely, without any threat that he could be legally vulnerable. This is how it should be.

Earlier this week, the U.S. Supreme Court heard oral arguments that challenge legal immunity for prosecutors, under certain circumstances. As an aside, I learned an astonishing fact in the New York Times article that reported that …prosecutors cannot be sued for anything they do during trial, including knowingly submitting false evidence. Read this sentence again. I had to as I was sure I had misread it initially. Immunity for trial conduct was not the issue being argued before the Supreme Court this week. The case at bar was whether prosecutorial misconduct prior to trial should be protected also. Two Iowan prisoners, freed by the Iowa Supreme Court, are now suing two prosecutors for fabricating evidence against them and tainting witnesses before trial. A lower court ruled that their case could proceed. The prosecutors, who are now defendants, argue that their pre-trial activities are beyond the reach of the law and fall under the immunity umbrella.

We should be cautious before expressing outrage and demanding that lawyers’ immunity be stripped. If attorneys were vulnerable, then this could invite frivolous lawsuits against them by litigants who are dissatisfied with the outcome of their case.

Frivolous lawsuits? This phrase sounds familiar. Any physician who still has a pulse will develop a rapid heart beat just on hearing the term. While the medical profession isn’t the sole target of FLs, we have a rich and unwelcome experience with them.

The Supreme Court case is examining a concept that could relate to the medical malpractice quagmire. The reason that judges and lawyers are shielded is so they are free of extraneous distractions and fear of lawsuits. Immunity improves their judicial performance. Why should physicians be vulnerable for acts and judgments made during our official professional capacities? If physicians functioned with immunity, wouldn’t our performance improve? Why doesn't the immunity argument apply to the medical profession?

Of course, if physicians enjoyed the same immunity as our legal colleagues, we would need another mechanism to compensate injured patients. I’m open to suggestions. Although nearly any system would be better than the current one, there is no consensus on how to proceed. Tort reform is a volatile issue in the public square and in the blogosphere. Spirited and strident blog posts appear daily. Just this week EverythingHealth listed various factors that fuel medical malpractice litigation, but omitted medical negligence from the list. Shouldn't medical malpractice be the sole reason for a lawsuit? KevinMD opines in his usual measured manner, that the current tort system must be reformed, not for physicians' sakes, but for patients' sakes. On the other side of the issue, a Huffington Post blogger argues that tort reform advocates are self-serving disseminators of myths and misinformation. (Yes, the Whistleblower did comment on the sight.)

We can’t sue a teacher because little Johnny received a C- on his history test. We can’t sue a basketball coach because the team lost the championship. We can’t sue our congressman because he voted against our district’s interest. We can’t sue an army general because the military strategy failed. But, we can sue a doctor who has done his job in good faith.

Those who deride my reasoning will present arguments why we physicians are somehow different from other professions who are immune for their official conduct. Let’s see what they come up with. No matter how outrageous their arguments are, I guarantee them complete immunity. The Whistleblower is their sanctuary.















Saturday, October 31, 2009

Where Have All the Bedside Manners Gone?

St. Anthony plagued by demons. 15th century work.

I read a thoughtful post at See First entitled, What Really Matters. The blog’s name, See First, is taken from a quote from Sir William Osler, one of medicine’s greatest luminaries who emphasized the importance of learning medicine at the beside. The post is a plea for physicians to strive to achieve caring and compassionate bedside manners. It emphasizes the importance of attentiveness, communication and empathy with patients. Though it is not stated, the author clearly understands that the doctor-patient relationship is the essential element of the healing art. While every physician knows this, we still need to be reminded of this truth, from time to time.

I commented on his blog that the piece was spot on. I agree unreservedly that patients deserve compassion and caring from their physicians. They deserve appointments without bleating pagers and phone calls. They deserve eye contact. They deserve an opportunity to say 3 or 4 sentences without interruption. They deserve enough time to get their point across. They deserve to be heard. They deserve a doctor who is focused solely on their medical interests, without extraneous distractions.

Although patients deserve all of this, they don’t always get it. Why are today’s bedside manners often less robust than they should be? I offer no excuses, but there are explanations for patients to be aware of.

There are many forces swirling in physicians’ minds today that distract us and threaten our doctor-patient relationships. We try to muffle these demons that are whispering in our ears. We try to compartmentalize them and stifle their interference, but we are members of the human species. Sometimes, they win and we fail. When you visit your physician, here are a few distractions that he won’t mention or record in your medical chart.

  • Physicians are working harder each year for less money.


  • Physicians battle insurance companies every day to receive money we have already earned.


  • Physicians are demoralized by an unfair medical malpractice system.


  • Private practice physicians are being driven out by corporate medicine.


  • Employed physicians have limited professional autonomy and must genuflect to administrators and bean-counting bureaucrats.


  • Medical practices in private medicine have all the stresses and challenges of running a business - payroll, inventory, staffing, overhead and unexpected crises.


  • Physicians must plow through mounds of ridiculous paperwork every day.


  • Physicians are required to participate in government and insurance company quality programs that have no effect on medical quality, but cost us money and time.


  • Health care reform may proceed at the expense of the medical profession.

Despite these distractions, physicians should provide patients with the care and attention they deserve, even though this task is harder than ever. Ironically, we physicians increasingly feel that no one is giving us care and attention. We’re not getting it from the government. We’re not getting it from the insurance companies. We're not getting it from the press. We're certainly not getting it from the legal community. Our patients may be our last best hope for showing us some understanding. This gesture would revitalize us and shake off the demons. Then, we could try a little harder to give you Marcus Welby, M.D. instead of Dr. Gregory House.

Friday, October 16, 2009

Tort Reform vs Defensive Medicine: Place Your Bets!

In my 20 years of medical practice, no issue provokes more physician angst than the unfair medical malpractice situation we physicians endure. It is the wound that will not heal. Physicians pursue one primary strategy to protect ourselves at the expense of our patients and society; we practice defensive medicine. Defensive medicine is omnipresent and burns up billions of health care dollars that we need so desperately.

Defensive medicine, I strongly believe, is practiced by nearly every physician in the country. If you suspect that this is hyperbole, ask your own doctor, although you may find him defensive about the subject. It’s not actual lawsuits that are suffocating doctors; it’s the fear of of being sued. The aura of litigation hovers in your doctor’s office during your office visits. It's like carbon monoxide. You can't see it or smell it. But, it is real and it is potent.

Attorneys and others reject our defensive posture. They argue that we should simply perform tests and treatments that are medically necessary. Good medicine, they claim, will protect us. Their truth, however, will not set us free. A physician who has a dagger raised above his head cannot ignore this threat when advising patients. ‘Good medicine’ won’t stop a case from being filed against an innocent doctor. A system that can ensnare an innocent physician for months or years is patently defective. We practice defensively as a filter to keep us out of the medical arena in the first place. If we are ultimately released after discovery and depositions, from a case that should never have involved us, we don't agree that our belated dismissal is evidence that the system is working.

Casey Fiano at American Issues Project blames avaricious trial lawyers for forcing physicians to become diagnostic testing machines. I don’t. While I agree that many trial lawyers have lost sight of the noble mission of their profession, they are operating within a corrupt, but legal system. We need new rules. If football games had no rules or referees, then every game would become a melee. Would this be the players’ fault?

Overlawyered points out that many unnecessary hospitalizations result from physicians who want to minimize their legal risk. Do patients want this? Ironically, a hospital, a big building stuffed with germs, should be the last place that any patient wants to spend a weekend. Of course, once in the hospital, defensive medicine goes ‘viral’, as consultants carve you up according to their organ of interest.

WeStandFirm points out that none of the players supports defensive medicine. The ordering physicians don't like it. The radiologists reading these unnecessary scans don't like. Insurance companies don't like it. Patients don't like it. Yet, we physicians practice it every day.

Happy Hospitalist summarizes the situation with simple elegance. Rarely will a patient get only what they need to make the diagnosis. They get far more than is necessary. You can call it good medicine. I call it fear.

I remember our athletic coaches who always emphasized how important defense was. Defense wins ballgames is still a classic sports maxim. This strategy, however, is wrong for doctors. Medicine should not be a contact sport. When defensive medicine triumphs, then patients lose. Does the public want a system that forces physicians to order tests and medical care that it doesn't need? Tort reform, while imperfect, can help heal the wound that harms patients, incinerates a fortune of money and abuses the medical profession. Aren't these 3 defects worthy of reform?

Tuesday, October 13, 2009

Breaking News! Tort Reform Decreases Defensive Medicine.


Which doctors practice defensive medicine? Only those who are breathing. The president, however, wasn’t convinced of this reality when he spoke to the nation on September 9th at a joint session of Congress.

“I don’t believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs.”

May be contributing? Mr. President, if I may, in the gray and nebulous world of medicine, one truth is certain; defensive medicine cost billions of health care dollars every year. Physicians hold this truth to be self evident.

One month after the president’s speech, the non-partisan Congressional Budget Office (CBO) issued a report that reversed it’s own prior conclusions on the value of tort reform. It now states that tort reform could reduce “the use of diagnostic tests and other health care services when providers recommend those services principally to reduce their potential exposure to lawsuits.” The report also notes evidence that lower medical malpractice costs results in lower Medicare health care medical services. Shocking conclusions.

I wonder how many tax dollars were spent on these studies whose conclusions were already known in the guts of every practicing physician in the country. Aren’t we supposed to conduct studies when we are uncertain of the outcome? What’s next? A study to determine if the elderly will outlive their children?

CBO extimates that tort reform would reduce health care costs by 0.5% annually (0.2% from lower medical malpractice premiums and 0.3% in less defensive medicine expenses), saving $11 billion in 2009. In fairness to these low estimates, the report points out that some of savings have already occurred from state tort reform programs. Over the next decade, CBO estimates that tort reform would result in $54 billion in savings.

CBO included typical tort reform features in its analysis. Among them is the fair-share rule, which would replace joint-and-several liability. ‘Fair-share’ means that a defendant would only be responsible for damages in proportion to his liability. In other words, if a physician or a hospital was 2% responsible for the injury, then they would not be at risk for all of the damages. Wow, what a progressive concept! Imagine being responsible only for your share of the injury. Still think we don’t need tort reform?

What do trial attorneys think? Wayne Parsons, a Honolulu attorney, writes at InjuryBoard that CBO extimates of cost savings from tort reform are inaccurate. I agree, but unlike Wayne, I think the CBO has underestimated the savings we would realize. In addition, he believes that insurance companies are the villains, not trial attorneys. The folks at PopTort share findings from a Center for Justice & Democracy report which argues that tort reform may actually increase medical costs. They support repealing all existing tort reform legislation. Let's hope their wacky view is not contagious.

While I am not an economist, I suspect that CBO estimates are far too low. How can you quantify the costs of defensive medicine? While it is easy to define defensive medicine in a blog post, it’s a murky issue in the real world. When physicians defensively order specialty consultations, CAT scans, emergency room visits after hours, we always provide medical justification. You can study every medical chart in the country, and you will never the following notation: MRI ordered for defensive purposes. Since the bulk of defensive testing is deeply camouflaged, how can we estimate its cost?

I don’t even think that we physicians always know if our tests are defensive as there is often a combination of medical necessity and litigation fear present.

Estimates of defensive medical costs are further hampered because they are not one time expenses. As every physician knows, an unnecessary CAT scan lights the fuse for a medical cascade when the initial scan shows trivial and irrelevant ‘abnormalities’ that lead to more scans and specialty consultations.

I wonder what the next CBO report will show? While their current estimates of the costs of defensive medicine are low, at least they’ve admitted their existence and significance. Will the president now issue a more definitive statement on this issue to clarify his limp remark in his health care speech? If the president pushed for fair tort reform, he would earn a durable peace with the medical community. Imagine, two peace prizes in one year.

Thursday, October 8, 2009

Is Health Care a Right?

The U.S. Supreme Court has opined that we cannot falsely scream Fire! in a crowded theater, despite our sacrosanct right of free speech. Even sacred rights have limits. When individual rights collide with societal rights, then each side’s arguments must be weighed to determine whose rights will prevail. This is not a clean or satisfying process as each claimant brings passion and legitimate arguments to the table.

I have been involved in a cyber colloquy with Maggie Mahar at Health Beat discussing if health care is a right. Maggie is well known in health care circles and examines health care policy from a liberal perspective. She’s on the left and I’m not. I hesitate to define health care is an absolute right before considering some of the broader ethical ramifications.

  • Is health care a human right?

  • Is health care a constitutional right?

  • Is health care a privilege?

  • Is health care a commodity to be purchased at the discretion of the consumer?

  • Is health care a responsibility?

A laudable position is that every American has a right to health care. While this slogan sounds noble, what does it really mean? Does it mean that every citizen has a right to every available medical benefit? Or, would every American have a right to a basic package of medical benefits? Who would define these scaled down benefit packages? If someone with the guaranteed ‘no frills’ plan needed chemotherapy or a bone marrow transplant, which are not covered benefits, would we be prepared to act as the infamous ‘death panels’, recently vocalized by several conservative commentators?

My hesitancy in declaring a health care a right it that it ignores the necessary elements of personal responsibility and societal rights. While there is a potent moral argument that we provide every citizen with decent health care, this must be balanced against society’s interest in a system that allocates health care resources fairly. Here are some hypothetical issues to consider.

  • If health care is a natural right, then, are illegal aliens entitled to it as a basic human right? If not, then what is our response when they develop chronic illnesses, which cannot be effectively treated in emergency departments?
  • Do irresponsible or reckless individuals have an absolute right to health care? Is it fair to the rest of us to pay for health care for those who pursue a riskier lifestyle? Does a man with multiple DUI citations, for example, have the same right to health care as a practicing nun?
  • Should individuals who won’t take cardiac medications that they can afford, or see their physicians when advised to do so, have a right for emergency treatment for a heart attack at our expense?
  • If health care is truly a right, then should it be illegal for any citizen in America to not have medical coverage? If this were the case now, then who would be legally liable for the 46 million uninsured?
  • Can folks waive their right to health care, as the Amish community now does? Who pays when this individual needs emergency surgery?

These are very delicate issues that torment folks on all sides of the political spectrum. The Nation, an organization on the far left and the more moderate newspaper USA Today, both agree that health care is a right. The Foundry, Crystal Clear Conservative and KevinMD have reached a different conclusion. It is an enormous challenge to establish a stable equilibrium balancing society’s rights, human compassion, personal rights, medical ethics and fiscal realities. I can’t solve it, but I know that the proclamation health care is a right is a quixotic mantra that fails to appreciate the enormous complexity of the issue. If rights were so easy to establish, then we wouldn't need a judiciary.

It is possible that the Supreme Court may hear this case. While this gang of nine are the last word on determining rights, this doesn't mean they will get it right.


Saturday, October 3, 2009

Government Won’t Pay for Medical ‘Never Events’. Sound Policy or Sound Bite?


A new term has been introduced into the medical lexion - Never Events. This refers to medical misadventures that should never occur, such as removing the wrong limb or leaving a pair of pliers in a patient’s abdomen. These terms can be confusing for ordinary folks who are not medical policy wonks. Words and terminology matter here. 'Never events' are not medical complications, which are blameless events that occur in a small percentage of cases. Complications, as purely defined, are not medical malpractice events as no negligence has occurred. Here’s a primer.


Medical Complication: A patient denies medication allergies. A physician prescribes penicillin and a rash develops. There is no culpability.

Medical Malpractice: A physician prescribes penicillin without inquiring about drug allergies. The patient has a known penicillin allergy. Penicillin is prescribed and a serious allergic drug reaction ensues. This is medical negligence. The physician messed up.

Never Event: A physician knows a patient is allergic to penicillin and prescribes it anyway. This should never occur. Of course, this still qualifies as medical malpractice, but it is a deeper level of negligence. A 'never event' means that fundamental safety standards and procedures were ignored or violated.

This is my personal definition of a 'never event', although I am a mere amateur wordsmith. The federal lexicographers in Washington, D.C. have issued an official definition and an actual list of 'never events'. Hospital administrators have memorized these events because, if they occur on their wards, then they will not be reimbursed for hospital care required to treat what should have never occurred in the first place. This certainly sounds reasonable. For example, if a hospitalized patient develops a bedsore, which should not have occurred, should the hospital be paid more for the extra days of hospitalization required? The government says no, and most of us would agree. Interestingly, the physicians who would treat this same bedsore would not be penalized, at least not for now.

Here’s my concern. This initial brief list of egregious 'never events' will surely metastasize. It will be fruitful and multiply and will soon encompass routine medical complications and expected side-effects of medical treatment, which may be unavoidable. Tomorrow's 'never events' will include outcomes that are less dramatic and shocking than wrong-sided surgeries. Expectations for medical performance may become unreasonable and unrealistic. For example, patients may come to expect that a post-operative infection should never occur, especially if this becomes classified as a 'never event'. Indeed, the Covert Rationing Blog writes that the public is foresquare behind the notion that no medical complications should ever occur and if they do it is somebody’s fault.

I am skeptical that the 'never events' policy will achieve its stated mission to improve medical quality. The policy will wander off track and end up where it doesn't belong. As in many quality initiatives, the initial policy is seductive, but the inevitable mission creep becomes the hangover. In addition, the 'never events' list will become a legal cudgel against the medical profession.

Others have voiced concern over the 'never events' policy. The Health Care Blog points out that the policy as written might paradoxically discourage hospitals from treating minor infections on the 'never events' list. Aggravated Doc Surg, a blog written by a surgeon, suspects that the goal is not improving care, but denial of payment. Aetna and other insurance companies are adopting their own 'never events' policies. Are they motivated only to protect patients' health? This industry doesn't enjoy pristine credibility for their devotion to serve humanity. Perhaps, the government should dictate to them that denial or delay of payment to physicians should be a 'never event'?

The medical profession must strive for the highest quality possible. Many physicians feel, and indeed we joke with each other, that we are expected to perform flawlessly. Sure, we’d all like it if every patient recovered fully. We want 100% patient satisfaction for our services. We wish we could stamp out medical complications in our lifetimes. These are goals that we aspire to, but we will never achieve. They are true 'never events'.

Thursday, September 24, 2009

Should Patients Email Their Doctors?

This is a less controversial issue than patients ‘friending’ their doctors on Facebook, which I oppose. Although most physicians’ offices are not emailing with patients, perhaps they should. There are several obvious advantages.


  • Decompress phone lines, which are suffocating nearly every medical practice in America.

  • Relieve patients of the cruel and unusual punishment of languishing on ‘hold’ listening to elevator music or dead air.

  • Allow office staff to efficiently respond to patients’ cyber inquiries at scheduled times.

  • Eliminate the need for the ubiquitous phone menu system, a torture chamber that tests the mettle of even the most robust and seasoned patients

  • Facilitate documention of patients’ inquiries, which is not reliably accomplished with phone calls.

  • Permit staff and physicians to access patients’ emails from remote locations.

  • Allow for emails to be forwarded to other staff and physicians with a keystroke.

  • Available 24/7.


Sure, email communications between physicians and patients makes great sense, but it costs doctors dollars. Should this be a free service? The current culture of medical practice in this country is not to charge a fee for patients’ phone calls. Like every doctor, I spend hours each week on the phone with patients. This is free medical care. Patients feel entitled to this pro bono service, as I do when I call my doctor or dentist. But is this fair? If a patient calls me to ask a medical question, then why shouldn’t I be compensated for giving professional advice that requires medical training and experience? Is this free medical care a service that we should provide to our existing patients? What about patients whom we have never seen who call us after hours with a medical issue? Should this be a freebie also? Many phone calls morph into phone office visits, which not only are free, but also may not provide optimal care to the patient.

When I call my lawyer there’s always a ticking sound that I hear in the backround. For lawyers and other professionals, phone calls are fair game. Ironically, while physicians don’t charge for phone calls, we are still legally liable for the medical advice that we offer during these gratis exchanges.

Will emails be the next generation of donated physician time? Emails and phone calls to physicians should be reimbursed. Primarily, because it is fair to pay people for the work that they do. In addition, charging a fee would help reduce many of the unneccessary calls (or future emails) that deluge our office.

I welcome differing opinions on this issue. If I respond back, it will be free of charge.

Friday, September 18, 2009

Tort Reform for Drug Companies? Huge Loss for Wyeth in Supreme Court


Every physician knows what a black box warning is. This is a special Food and Drug Administration (FDA) requirement to warn doctors about potentially severe drug reactions. Most medicines do not have any black box warnings. Wyeth, a pharmaceutical company, will have to place a black box warning for their drug Phenergan, a medication routinely given for nausea. Phenergan has been on the market for over 50 years. I’ve prescribed it for years with excellent results, and I have never witnessed an adverse reaction.

The catalyst for the black box development was a tragic side-effect that a woman experienced in 2000 after receiving an injection of the drug. A physician’s assistant injected the medication improperly into her arm. As a result, she developed gangrene and her right forearm had to be amputated. She argued in court that she was not sufficiently informed about the drug’s risk and the jury awarded her $6.7 million. This past week, the U.S. Supreme Court rejected Wyeth’s appeal.

What will a black box warning accomplish? The currently published product information on Phenergan already addresses the proper dosing and method of administering the drug. Would a higher level warning have saved the plaintiff’s arm? If she knew in advance about a catastrophic side-effect that occurs in far less than 1% of injections, would she have refused the drug? I don’t think so.

Of course, patients should be advised about potential side-effects of drugs we prescribe. But, how much information is reasonable to impart? I confess that I do not warn patients before prescribing Phenergan about risks of gangrene and limb amputation. Should I? (I also don’t mention the risks of death from penicillin.) Look up the list of known or suspected side-effects of any prescription drug. You will discover pages of small print that list dangerous, and even deadly drug reactions, most of which are far more serious than the medical condition being treated.

If physicians reviewed these side-effects with patients, including extremely rare events such as Phenergan-induced gangrene, then patients would be too spooked to take any medication. How would you respond to this caveat from your physician?

“Here’s an antibiotic for your sore throat. I should warn you that this drug has caused severe colitis that has resulted in emergency surgery to remove the entire colon, leaving patients with a bag. A few folks have died, but this is very rare. Have a nice day and remember, don’t skip any pills!"

If patients were excessively informed about the harm that drugs could inflict, then they wouldn’t take them. This would be bad news for many patients, pharmacies and drug companies. It would also be an unwelcome development for lawyers, who troll the countryside for bad medical outcomes and try to concoct a pathway leading back to a doctor, a hospital or a pharmaceutical company. They prevailed against Wyeth, who had nothing to do with the improper injection of Phenergan. We physicians, who are similarly victimized with unfair allegations of medical malpractice, can empathize with their plight. Tort reform can’t come soon enough, but we won’t see it under President Obama’s watch. The president and the Democrats candidly admit that they don’t believe that medical malpractice reform is necessary.

Tragic outcomes are tragedies, not a priori evidence of medical negligence. True, the Phenergan medication may have been improperly injected, but how far should the shadow of blame extend?

Until the government injects some sanity into the medical malpractice system, then we will never achieve the health care reform that we all deserve. This is my black box warning.

Friday, September 11, 2009

Should Doctors Use Facebook with Patients?


When it comes to Facebook, I will offer full disclosure, a policy I’ve advocated in my medical ethics postings; I am neither a friend nor a fan of this godfather of social media. In my 7 member nuclear family, 6 of us use Facebook as a portal into their personal worlds. Once again, I am the outlier. I just don’t have the time to create and maintain another universe in my life. It would eliminate the scant discretionary time that is still available to me.

Bloggers at the American College of Physicians and KevinMD and have mused about physicians using Facebook to communicate with patients. Earlier this year, Sachin Jain, M.D. wrote a commentary in The New England Journal of Medicine discussing his ambivalance to ‘friend’ a prior patient. While the public might be receptive to ‘friending’ doctors, most physicians won’t be in a hurry to use social media with their patients. Physician Facebookers would not want patients to have access to their vacation photos and personal vignettes, many of which are private for a reason. Reading comments on a doctor's Facebook wall might show how that the physician is really ‘off the wall’. Conversely, do we physicians really want to enter our patients’ Facebook worlds? I think that this would corrode the patient-physician relationship. There should a line between patients and their physicians. While this barrier is not inviolable, I don’t see how blurring or eliminating this separation enhances their health care, which is our designated role. We are their physicians, not their pals. In fact, it is challenging when folks choose physicians who are within their social circle. While some doctors I know welcome this, I try to avoid having friends as patients. My objectivity would be diminished. In addition, depending upon the medical circumstances and outcome, the friendship may be at risk, which could have consequences that extend far beyond the exam room.

Physicians have always been strict guardians of confidentiality and patients’ privacy. Indeed, when I have performed a colonoscopy on a real friend (not a cyber pseudofriend), not even my wife knows that this occurred, unless the patient himself relates it to her. Could physicians who become a patient’s Facebook ‘friend’ maintain confidentiality? The doctor, of course, could make no Facebook reference to the professional relationship. Other ‘friends’, however, might recognize the medical identity of the doctor, which might lead to a line of questioning or speculation that could be problematic.

“Hey, I see that MDWhistleblower is your ‘friend’ now. Isn’t he a gastroenterologist? Are your hemorrhoids acting up again?”

I know that Facebook is a social media empire. It’s being used by tens of millions of individuals, marketing organizations, politicians, government agencies and corporations across the country. It is a powerful tool for personal and business networking. But, it lacks the intimacy of human contact, the mother’s milk of the doctor-patient relationship. Physicians and patients don’t need Facebook time; we need more face time. Is anyone else a ‘fan’ of this?

Friday, September 4, 2009

Physician-assisted Suicide: Constitutional Right or Just Plain Wrong?

This past week, the Montana Supreme Court heard a right-to-die case where the plaintiff argued that there is a constitutional right to physician-assisted suicide. A Montana physician had refused this request from a terminal cancer patient, who died in December 2008 without medical assistance. No state in the union currently has a constitutional right to die, although physician-assisted suicide is a legal practice in Oregon and Washington. In 1997 the U.S. Supreme Court ruled that there is no fundamental constitutional right to physician-assisted suicide, although it did not prohibit the practice entirely. Once the balance of the U.S. Supreme Court shifts leftward in the coming years, perhaps a constitutional right to medical euthanasia will be ‘discovered’ in the U.S. Constitution.

If the Montana plaintiff’s view prevails, would physicians there be breaking the law by refusing to assist a patient who requested a doctor-assisted death? Would such principled doctors be denying a patient a newly established constitutional right? We are all familiar with lawsuits alleging wrongful death. Would the term wrongful life be invoked by a patient who claimed physical and psychological damages because a doctor wouldn’t facilitate his demise?

While the courts can opine on these controversies, this is a moral question for society and the medical profession, not a legal issue. Just because an action or behavior is legal, doesn’t make it right. Physician-assisted suicide is wrong and no court decision can make it right.

I expect some to claim that my categorical view against this practice is callous and dogmatic. I reject these arguments. There are some moral lines that simply must not be violated. The medical profession is sworn to relieve suffering and to comfort those who cannot be healed. This is our mission. Our patients trust us with preserving and protecting their lives. If we were to hasten or cause death, regardless of the motive, we squander this trust and sacrifice the essence of what it means to be doctors. It would change how we physicians view our own profession and would certainly change how society view us. Euthanasia would conspire with overzealous organ procurement in intensive care units and nursing homes as forces that distort how we view these human beings. If physician-assisted suicide were to become accepted, then it will inevitably enter the minds of physicians, nurses and family members who are caring for dying, or even chronically ill patients. Once this becomes an option, then it becomes legitimatized. It’s easy and frightening to extrapolate where this could lead us. The medical profession must remain guardians of life, not expediters of death. We need to keep our mission pure.

Sadly, there are patients who are suffering miserably, and we must do all that we can to help them. They have a right to effective pain control. They have a right to receive expert palliative care. They have a right to refuse treatment. They have a right to pray to the Almighty for final relief. They don’t have a right, however, to expect me to answer their prayers. While I might pray for their eternal rest also, I can’t push them forward on this journey. If I did, then I will have crossed a moral and ethical boundary with no way back.

All sides to an issue claim rights. In ethics, like law, the rights of all players are weighed against each other. These analyses can be vexing as competing parties argue persuasively that their rights are paramount. Depending upon the circumstances of the ethical dispute, one right will prevail. No right, however, is absolute. The right to free speech does not permit us to scream ‘Fire!’ in a crowded theater. Similarly, if a desperately ill individual has a right to a doctor-assisted death, then it is outweighed by society’s right to life.

If the Montana Supreme Court decides for the plaintiff, then this state will become the ethical Wild Wild West.

Thursday, August 27, 2009

Medical Ethics and Organ Donation: Greasing the Slippery Slope

Organ donation is a white hot medical ethics issue. In the last month alone, there have been two scandalous reports alleging criminal and immoral donation practices. First, we read about a man, a rabbi no less, arrested for trafficking in kidneys. He referred to himself as a ‘matchmaker’, not quite the Fiddler on the Roof image of the wizened Yenta character who arranged marriages. The second story exploded after an article appeared in a Swedish newspaper that accused the Israel Defense Forces (IDF) of harvesting organs from wounded or killed Palestinians. Unlike the arrested rabbi, the Israeli Prime Minister vociferously denied the scurrilous charges.

I suspect that the rabbi is guilty, by his own statements, but I do not believe the diabolical allegations against the Israelis. Charges of this nature should never be publicized in the absence of sufficient evidence.

The reason that organ trafficking exists is because there is a shortage of available organs. We need a legal and ethical way to increase the limited supply of kidneys, livers, hearts and other organs and tissues. Thousands of Americans die every year waiting for an organ rescue. This perennial shortage has stimulated new thinking among bioethicists, politicians and the medical profession. Some of these ideas are welcome, others are controversial and a few are downright dangerous.

All agree that educating the public and encouraging organ donation is a critical strategy. If a person dies and takes viable organs with him to the grave, then others will follow after him who could have been saved. There are some who advocate a new system where consent to donate organs would be assumed unless the person opts out of the program. This would dramatically enlarge the donor pool as everyone would be a potential donor unless the person actively joined the ‘Do Not Donate’ list, similar to what most of us have done to avoid dinnertime telemarketers.

KevinMD reported a proposal in South Carolina where inmates who donated organs would have their sentences reduced. China has a more ghoulish prison program of obtaining the gift of life. It harvests organs from executed prisoners 'with their consent', and has been accused of timing executions to meet recipients' medical needs. China has just announced a voluntary organ donation program to compete against a thriving black market industry. Since 2003, only 130 Chinese citizens have offered to donate their organs, while each year, one million Chinese need one.

Bioethicists are now revisiting the issue of offering compensation to organ donors to provide an incentive to donate. Drafts of a bill advocating this approach are now circulating in the U.S. Senate. While direct cash payments are not being considered, and are currently illegal, insurance benefits and funeral expenses may be offered. In the past, ethical policy dictated that donors should be motivated by altruism only, and should not receive material gain. This categorical prohibition may be cautiously relaxed. Compensation for organs creates many avenues to exploit donors, so any legislation or policy changes would need to be carefully crafted with appropriate ethical safeguards.

Harvesting organs at the end of life poses the most intense ethical challenges. There is a conflict between the individual whose life may be ending and a desperately ill person who needs a new organ to live. The latter person may be a young executive while the potential donor may be tethered to a respirator with limited or absent higher brain function. Bright ethical lines are necessary to protect the patient who is under our direct care and to guard the healing mission of the medical profession. One life should never be sacrificed to save another.

I do not believe that any measure should be taken to hasten death. Additionally, I am very concerned that today’s zeal for organ donation creates a real risk that over time we may view critically ill or moribund individuals as organ donors, rather than as living patients to be treated. If this occurred, then physicians and nurses would be distracted from their professional responsibility to be solely focused on their patients’ interests. It might also pressure families to pull the plug prematurely. I worry also that the definition of death may be diluted in order to enlarge the organ donor pool. What if we decided that those who are in a chronic vegatative state –legally alive today – were now dead? It doesn’t take much imagination to see where this mission creep could lead to.

These are vexing ethical issues. I admit that I might have a different view if one of my kids needed a new liver to survive. However, while the views of those who need organs are valuable and should be heard, it is important that ethical policies be fair and just for society, rather than address the interest of an individual. If we let our emotions for a a child, for example triumph over sound ethical policy, then we steepen the slippery slope that we are already standing on. If we don’t have sturdy ethical guardrails to prevent our descent, then we risk the soul of the medical profession.

Sunday, August 23, 2009

Medical Ghostwriting: Spooks in the Ivory Tower


We have spent many dinner discussions with our kids discussing plagiarism. This infraction was verboten even when I was student back when, according to our kids, ‘I used to take the dinosaur out for a walk’. While I don’t think the offense is more serious today, it is much more prevalent. Educators report that there is an epidemic of it in our schools and universities. Perhaps, the practice even crosses national boundaries, which might mean that we are in the midst of a plagiarism pandemic. Unlike ‘swine flu’, there’s no vaccine available for this disease.

Of course, the offense is so much easier to commit today, with expansive information on any imaginable subject available with a keystroke. I’m sure I could cut & paste a 10 page term paper on nearly any topic during half-time of a televised football game.

Some of these rule-bending kids grow up to be adults who still misunderstand the importance of owning work that appears under their name. Joe Biden, historians Doris Kearns Goodwin and Stephen Ambrose and the infamous former New York Times reporter Jayson Blair are well known examples of folks who ‘borrowed’ without permission or attribution.

Regrettably, doctors are not immune to the affliction. I’m not referring to community physicians who do honest work each day seeing their patients. The sickness seems to have a predilection for a minority of academic physicians in our nation’s most prestigious medical schools. These are our leaders who are charged to serve as models of integrity and personal rectitude. They lecture widely about emerging medical developments. They meet with legislators to educate lawmakers and to influence health care policy. They are the prime authors of medical journal articles that are read by physicians like me who aim to stay current in our professional fields.

We now learn that scores of published journal articles over past years weren’t written by the stated authors. These articles were ghostwritten by writers hired by drug companies who prepared slanted drafts that favored their pharmaceutical employers’ interests. Disclosure to the readers of this improper practice was absent or too dilute to matter. How did these purported authors justify this misconduct? Weren’t their ethical compasses spinning wildly?

In response, medical schools, universities, medical editors and drug companies are establishing new policies to reclaim their ethical credentials. This is a limp PR response to a pattern of unethical activity that should never have occurred. Academicians and all parties involved shouldn’t need to consult a 3-ringed binder to determine if presenting a paid writer’s article as someone else’s work is proper. They should already know right from wrong, like the rest of us do. Rules, regulations and laws are more necessary for enforcing infractions than for teaching ethical behavior. Most of us don’t have to consult law books to determine if embezzlement or theft is acceptable.

If an academic physician happens to be reading this post, and is unsure if he should sign off on the drug company’s journal article on his desk, consult my kids first for some plagiarism pointers. True, they’ve never published anything, but I would trust their advice on this issue. Why? Their work is always their own.

On Halloween, many of us used to dress up as ghosts as we prowled our neighborhoods in search of treats. Now, we have ghosts masquerading as doctors. This time, we’re the ones who have been tricked.

Ghost image from http://www.kidsturncentral.com

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