Sunday, June 27, 2010

Will Smarter Lawyers End Frivolous Lawsuits?

How do you know if a lawyer is any good?  Of course, they've all passed the bar, but now their profession is lowering it.  While most of us strive for excellence, and raise our children to value this virtue, prominent legal educators are establishing a new quality intitiative for their profession.  Who says that lawyers can't reform themselves?  Perhaps, we physicians can follow their bold example and raise the credentials of our pre-medical students.  I’ll present the facts. You be the judge.

I have written a dozen posts on tort reform on this blog, which always generate spirited and adversarial retorts from attorneys and their supporters. They accuse me and other tort reform advocates of carrying water for insurance companies. They repeatedly point out that I know nothing about the legal system and are unqualified to opine on its flaws. They deride me when I argue that effective tort reform would reduce the practice of defensive medicine, despite the recent supportive conclusion of the nonpartisan Congressional Budget Office. They deny that their fidelity to the status quo is related to any personal financial conflicts of interest. They maintain that the current system, while imperfect, is sound and just.

I won’t respond to these points here, as I have done so expansively on prior posts in the Legal Quality category of this blog. I reject the dimissive and smarmy remark that I am not qualified to offer views and opinions on the current medical liability system. Does one need a law degree to criticize or praise the legal profession? Do you need to be a chef before you can recommend a restaurant? This is ridiculous. Moreover, any individual who has had the pleasure of being sued and deposed, as I have, has a valid view on the legal process, and is entitled to be heard.

Before shutting me down because you assume that I have a visceral animus against attorneys, keep in mind that my father was an attorney, my brother was an attorney and is now a sitting judge and my sister married an attorney. I grew up hearing about the law and respecting the profession. I fantasized, even during my medical career, of studying law.
  
I learned last week that law students across the country will instantly become much smarter.  How will they accomplish this collective and worthy feat?  Will they study harder?  Will they take summer classes?  Will they pursue advanced degrees?  Hardly.  Law students will get smarter automatically. Here's how the magic will happen.  Their law schools will declare that their students are now smarter.  It's that simple.

Is this a trick? Am I playing with my readers? Am I fabricating this to lure folks to this blog?

Not at all. The Whistleblower uses honest weights. If my word is not enough to satisfy skeptical readers, then here is the link to the New York Times article for your review.

Law schools have decided to arbitrarily raise the grade point averages (GPA) of students to make them more attractive to hiring firms. Here are some key points.

• Several law schools, including highly prestigious institutions, are easing academic standards to raise students’ grades
• Some law schools pay law firms directly to hire their students
• Harvard and Stanford Law Schools recently eliminated traditional grading so employers cannot easily differentiate the students

The schools were responding to complaints that students were having difficulty finding employment. If an applicant is having difficulty finding a job, then I humbly suggest that the applicant and the law school work together to improve the applicant. Isn’t that the purpose of an educational institution? If a football kicker can’t kick a field goal, should the coach lower the goal posts?   Should law students' strategy for securing employment be to increase their legitimate credentials and performance or to lower academic standards?  Law schools have made their choice. 

When leading educational institutions teach that lowering standards is a pathway to success, then they have failed in their mission. This moral and educational transgression is even deeper when it is concocted by law schools, who are ostensibly paragons of justice and fair play. Shameful!

Why stop with lawyers? Let’s raise everyone’s GPA across the nation, so we can instantly become a smarter country. I am willing to support a proposal declaring that every college student is now in the top 10% of his class.

This perverted strategy is likely to prolong the practice of filing frivolous lawsuits.  How can we expect tomorrow's lawyers to recognize that it is wrong to sue innocent people?  Such a recognition requires a moral and ethical mindset, and apparently these qualities are not part of law school curricula, judging by their GPA legerdemain.  What can we expect of lawyers who were taught by their faculty that gaining advantage without merit is commendable?  Their law degrees may be even more frivolous than the cases they will file against us.

I'll borrow a legal term to summarize my reaction to this grade inflation scheme: res ipsa loquitur, latin for 'the thing speaks for itself'.  Does it ever.




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Sunday, June 20, 2010

Are Direct-to-Consumer Drug Ads Right for You?

Should the public be shielded from medical information that can mislead it? Many argue against direct-to-consumer (DTC) advertising, which is omnipresent in print and on the airwaves. Opponents of this practice argue that it promotes the use of expensive medications when patients ask their doctors if the ‘drug is right for them’, the tag line that appears at the end of every ad. This phrase is the drug company’s limp disclaimer that it is really the physician who will make the prescribing recommendation. Yeah, right. Of course, DTC ads promote drug sales. Isn’t that the purpose of advertising? Antagonists of this drug pushing state that resources spent on advertising should be used instead to lower drug prices for consumers. Couldn’t the same argument be made about any product being advertised? Should General Motors cease and desist from spending marketing money and divert these funds instead for consumer rebates? Legal products have the right to advertise and market their wares.

Personally, I dislike the tsunami of drug ads that are in my face several times daily. I don’t agree that they provide useful health information, despite claims that they are public service announcements. They annoy me. Nevertheless, the pharmaceutical companies, like any business, have a right to advertise and promote their products, and I would oppose an effort to ban the practice. I think that the industry’s commercial right to free speech trumps arguments advanced to restrict this practice. The twist here in the pharmaceutical business is that the public cannot directly purchase their products, as it can with cars, breakfast cereal and house furniture.

I would support a targeted advertising ban, particularly on television, for various urologic potions that promise to bring new blood to an old pastime. I cannot count how many times over the years these ads have popped up while my kids were watching television. While the industry claims that these ads are not run during family viewing hours, this time slot definition never seems to apply to my family. I would support restrictions on these ads during appropriate hours on the basis of public policy, as the companies do have a potent free speech argument. Of course, companies could enact a voluntary moratorium, which would generate good will at the expense of brand exposure and sales. I don't expect this as when business interests collide with family values, guess who wins?

Why should my kids and yours have to be acquainted with Viagra, Cialis and Levitra, and learn words and phrases that are not yet essential in their lexicons? Of course, the companies could counter that if I am concerned about the content of their ads, that I should disable the cable. Similarly, Howard Stern retorted to critics of his radio show that if they were offended, then they should change the station. He further stated that he wouldn’t permit his young children to listen to his show as he believed that the correct response to adult content was proper parenting, and not censorship. He has a point, but even good parents cannot hover over our kids every moment.

Of course, its not just drug companies that are pursuing DTC ads with gusto. Physicians and hospitals are hawking our goods and services with zeal and enthusiasm as we troll the countryside for patients. Here in Cleveland, these ads are a ubiquitious plague upon us. These ads can pose curious conflicts. For example, how many hospitals can fairly claim to be #1 in cardiac care?

Hospital marketing mavins don’t just push individual doctors or traditional medical specialties on us. They now lure us to ‘women’s health seminars’, ‘spine centers’, ‘digestive institutes, ‘sports medicine departments’ and ‘wellness centers’. Many conventional medical institutions are now offering alternative medical services, knowing that this is a marketing magnet for a believing public. Should the choice of a specific medical service by a health institution be a medical or a marketing decision?

I don’t like all of this advertising clutter and static, but I can’t avoid it, and we can’t change it. Medicine is now as much of a business as it is a profession. With all the changes that I fear await the medical profession, I wonder how college students will respond to the question,’ is medicine the right profession for you?’

Sunday, June 13, 2010

FDA ‘Bad Ad’ Program Recruits Physicians. Pharma Beware!

Photo Credit

One of the advantages of marrying an immigrant is having intense exposure to another culture. My wife’s Russian heritage, and her family, have enriched my own life immeasurably. The trip that I took with her and my brother to Russia in 1990, where she served as our personal translator, was unforgettable.

During the early years of our relationship, I heard stories about her family that seemed incredible to an American like myself who was raised in ordinary cirumstances in suburbia.

In Russia, her father, uncle and close relatives were arrested and imprisoned on absurd charges. Her family, like so many others, was subjected to persecution and anti-Semitism. One would imagine that her family would celebrate when Stalin died in 1953. Instead, I am told that my mother-in-law, whose family had suffered under his brutal fist, was in tears, demonsrating the deep reach that this tyrannical leader had on the populace. He had a cult of personality, an intoxicant that numbed the senses of even his victims. To this day, I am sure there are still pockets within the former Soviet Union that celebrate him.

One of Stalin’s most feared institutions was his security apparatus. In addition to conventional law enforcement and intelligence apparatus, there was a nebulous web of informers across the country, ordinary citizens who were recruited to spy on their neighbors. Imagine this scenario. Your coworker confides to you that he thinks that their Communist boss is inept. However, this is not innocent factory floor banter. The coworker is an informer and was coerced under threat to approach you by the KGB, or some similar agency. You are subsequently arrested for failure to report him to the authorities.

Here in America, we don’t spy on each other, although the Bush folks fumbled when they tried to recruit Moslems to be vigilant and squeal on other Moslems.

Our own government, albeit on a much smaller scale, is currently recruiting physicians to serve as government informers. As an ardent James Bondophile, I have always fantasized about life as a spy using secret cameras, recording devices and driving the famed Aston Martin. Any male who denies having a similar fantasy couldn’t pass a lie detector test.

The Food and Drug Administration (FDA) wants physicians to turn in Big Pharma marketing and promotional materials that are misleading, that are poisoning us with information that reaches beyond FDA’s approved indications and regulations. This new government initiative is called the ‘Bad Ad’ program, a name so absurd, that it must have taken months of committee meetings to create. Physicians who encounter a rogue drug rep, or promotional materials that promise more than the FDA permits, can anonymously report the offender via an email address and phone number, which I will not provide here.

There is a Stalinesque aura to all of this. If I ask a drug rep about off label use of a drug, am I doing so to acquire medical information for a patient, or am I serving as a government agent, a G-Man, who is setting a trap?

Is this a good idea? Will this foster collaboration and trust between the medical profession and the pharmaceutical industry? Is it physicians’ role to serve as an enforcement arm of the government?

Personally, I believe that the FDA regulations on marketing to physicians is overly restrictive. For example, every physicians prescribes off label medicines, but we can’t discuss these uses with pharm reps who are often excellent resources on unapproved medication uses. These sales folks may call on leaders in the field and may be able to relate to us nuances and new uses of medicines that can benefit our patients.

I know that these guys and gals are not physicians, but are trying to sell products, like everyone else in the marketplace. Sometimes, marketers go over the line. For example, Kelloggs, the cereal company, had to take back two health claims:

• Frosted Mini-Wheats can improve kids’ attention spans.
• Rice Krispies can enhance kids’ immunity.

In these cases, the Federal Trade Commission was right to intervene. Drug promotion can also go over the line and need to be reined in and sanctioned. I am not sure, however, that the line is in the right place presently. What is your view?

I don’t like the ‘bad ad’ program, and I don’t intend to have the FDA on my speed dial. I don’t like the precedent of folks being encouraged to turn in colleagues. Imagine where this idea could take us.

This post has riled me up and I need to calm down. I need an 'off label' anxiolytic.  It’s time for a Vodka Martini, shaken not stirred.

Sunday, June 6, 2010

Unneccesary Medical Tests: Tort Reform Can't Solve it All

Gastroenterologist's view of the stomach

Recently, while covering for one of my partners on a weekend, I was consulted by a physician to do a procedure. The doctor wanted his patient to undergo an EGD, which is a scope test that examines the esophagus, stomach and first portion of the small intestine called the duodenum. We gastroenterologists do this test routinely to search for an explanation for a patient’s symptoms, or to determine if these organs might be harboring a lesion that is silently bleeding.

Gastroenterologists are obligated to perform procedures for sound medical reasons. I have already confessed publicly on this blog why physicians like me have performed medical tests for the wrong reasons. The medical universe is not ideal, and neither are its players. Nevertheless, we want our care to make sense and not to waste dollars. For example, if a patient is suffering an acute headache, it would be hard to justify ordering a CAT scan of the abdomen, which would be unlikely to explain the symptom. One reason that wrong tests are done is because physicians ask colleagues for a specific procedure, and not for their cognitive advice.

For example, when we order a radiology examination, such as routine x-rays, CAT scans, MRIs, etc., we are not requesting the radiologist’s opinion on the medical issue, only that the test be performed. For ordinary readers who are on the sidelines of the medical arena, here’s how it works.

• A doctor like me decides that a patient needs a CAT scan.
• I order it.
• The radiologist does it.

Personally, I think this is a serious failing in medical practice. Radiologists have the deepest expertise in the procedures they do, yet they are not routinely consulted in advance. If they had knowledge of the particular patient, they could advise us if our intended test is the best option. Perhaps, a different radiology test would clarify the clinical issue better. Or, perhaps, we ordered the proper test, but it should be performed using special technique. In general, radiologists are not treated as true consultants, but as technicians. By doing so, clinicians like me who take care of patients are squandering an opportunity to practice better medicine. 

Of course, there are many times that physicians and radiologists do confer to optimize the diagnostic approach. But, in my experience, these important conversations are exceptional. Physicians who order imaging studies on their patients likely feel that they have enough knowledge to choose the right exam. Some do, and some don’t.

I have never liked serving as a technician gastroenterologist, but I am often asked to do so. Like every other gastroenterologist, I have performed requested procedures that were reasonable, but that I would not have personally recommended if my advice had been sought. The patient referenced at the top of this post was in a different category. This was not a 'gray area' issue.

This particular patient was having some minor rectal bleeding. He had already had the pleasure of a full colonoscopy this past November, when hemorrhoids were discovered. No additional testing was necessary for the current minor bleeding, as hemorrhoids were the likely culprit. The request for an EGD was nonsensical. The ordering physician had no economic conflict of interest in ordering the test; only the gastroenterologist would benefit financially. An EGD here was like ordering a foot x-ray on a patient with a sore throat.

I will now risk outrage from my medical colleagues by sharing a dark secret with the public. I will divulge two pieces of confidential medical code, and trust you all to protect me from vengeful physicians who will accuse me of breaking sacred medical omerta. In other words, what you read on Whistleblower, must remain here.

At the very bottom of my consultation report, I wrote: ‘will discuss with you’. This is standard medical code for, your request is nuts and I won’t put in writing what I really think. When a doctor uses this phrase, it means that a private conversation between the consulting and referring physician will soon follow. Ask your own doctor what the phrase ‘will discuss with you’ means, but be prepared for garbled gobbledygook seasoned with a dash of doublespeak.

Later that day, my partner continued the discussion with the physician and gently asked for his rationale for requesting the EGD. Here comes secret code #2. The referring physician wanted the EGD 'for completeness’. When a doctor uses this phrase, as we all have done, it means, the test makes no sense and is totally unnecessary.

So, what happened? Monday morning, the gastroenterologist who was originally consulted assumed care of the case. The EGD was done.

Fear of litigation results in overutilization of medical care. I know this personally. But, there are other reasons why we physicians pull the procedure trigger. This vignette illustrates that our profession has its own healing to do.  Tort reform can't cure it all.

While I didn’t perform the EGD, am I an accomplice by not standing up to the referring physician initially?  Can I rightfully still consider myself to be an ethical practitioner?  Radiologists don’t refuse to do CAT scans that make no clinical sense. Should the standard be different for other medical procedures, which have very low risks of complications? What would you have done here? Would you have refused the physician's request, which would likely result in the loss of this physician’s future referrals? Would you rationalize the unnecessary test knowing that if you didn’t do the EGD, that someone else would? Do private pracitioners view this scenario differently than employed physicians? Should they?

Do you have similar vignettes from your own practice or experience that you can share?

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