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'.

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