Sunday, February 26, 2017

Do Doctors have a Right to Free Speech? Hippocrates Weighs In.

Free speech is one of our bedrock constitutional rights.  The debate and battle of what constitutes lawful free speech is ongoing.  The issue is more complex than I can grasp with legal distinctions separating political speech, commercial speech and non-commercial speech.  And, of course the right of speech does not permit the free expression of obscenity or ‘fighting words’, along with some other exclusions.  And, there is no right to free speech in a private work place, where an employee can be fired for speaking his or her mind.  While worker in a private shop may claim that he had a right to call his boss a flippin’ jerk, he would likely find that he suddenly has an abundance of free time to contemplate his prior utterance.

Leaving aside the First Amendment, physicians have always enjoyed free speech in our offices.  We ask our patients questions of the most private and intimate nature.  And, they answer us.  We ask such questions because, under appropriate circumstances, we need the information in order to provide our best medical advice.   We ask about specific sexual practices.  We ask about prior or current substance abuse.  We ask if patients are alcoholics.  We ask if patients are suffering from abuse or neglect. 

While we may not invariably receive truthful responses from these inquires, often we do.  Patients trust us to respect their confidentiality, which has been embedded into medical culture and practice since the time of Hippocrates.

And whatsoever I shall see or hear in the course of my profession, as well as outside my profession in my intercourse with men, if it be what should not be published abroad, I will never divulge, holding such things to be holy secrets.

Hippocrates -2500 years before HIPAA!


His admonition holds true nearly 2500 years later.  How’s that for meeting the test of time?

In 2011, the Florida Republican legislature, with the approval of the governor, passed a law that restricted physicians from inquiring of their patients about gun ownership and safety.  Physicians found to be in violation risked loss of their professional licenses or fines.  Nearly two weeks ago, an appeals court struck this silly law down.  Not only was such a law an obvious encroachment on physicians’ First Amendment rights, but also posed a barrier preventing doctors from doing their jobs.  Should a pediatrician, for example, be prevented from asking a parent if firearms in the home are properly secured?  This is not a political or partisan issue – it’s a medical and safety issue.

Of course, the appeals court got it right in a case that I regard as a judicial lay-up.  But, how did such a ridiculous law get passed in the first place?



Sunday, February 19, 2017

Do Judges Legislate from the Bench? What's Your Ruling?

Judge Neil Gorsuch, President Trump’s nominee to fill a vacant seat on the Supreme Court of the United States, will face a contentious vetting process in the U.S. Senate.  I expect the sausage-making process to be an opportunity for political grandstanding where bombastic bloviators will spew forth partisan pabulum.  Look for a senator, for example, to point out that the judge did not clean up after his dog when he was in the 7th grade.  “If we can’t trust you to clean up after Sparky, then how can we trust you to mind the Constitution?”

We read and hear about the scourge of judicial activism (JA), where judges invent laws rather than interpret existing law, as they are charged to do.  The antidote to judicial activism is judicial restraint (JR), when judges exercise modesty and base their rulings on the intent of the framers or on the words in the statute.  If, for example, the statute does not specify that “the puppies shall be saved”, then it is not for the judge, who may be a dog lover, to take on canine rescue as a ‘pet project’.

Let me define JA and JR more clearly for readers who do not wallow in the judicial universe.

Judicial Activism: A ruling that is disliked by various individuals and interests.
Judicial Restraint: A ruling that is celebrated by various individuals and interests.

If a judge rules for your cause, then he or she is a titan on the bench.  If however, you did not receive your desired judicial outcome, then the judge is an activist hack who is legislating from the bench.  I am generalizing, of course, but you get the point. 


A Den of Activism?

How has the judicial branch been performing?  A lot better than the other two branches, in my view.  Here’s some rough polling data.

      Approval Rating
Trump                            38%  (2017)
Congress                        28% ((2017 –  Surging -up 9 points in 1 month!)
Supreme Court             42% (2016)

Let’s not read more into this than the numbers merit.   Negative poll numbers do not mean that an individual or an institution is not performing well.  It simply means that the public is dissatisfied.  If Congress, for example, passes a law eliminating the deductibility of home mortgages, which may be a sound public policy measure, don’t look for an upward spike in poll numbers.

Hopefully, this blog, at least from time to time, polls well with readers.  What’s your ruling?  Of course, if I don’t like it, I will merely label you as an Activist Reader!

Sunday, February 12, 2017

Communication Between Doctors and Patients - Words Matter

Here’s a quote that readers will not readily recognize.

It is a pity that a doctor is precluded by his profession from being able sometimes to say what he really thinks.

I’ll share the origin of the quote at the post’s conclusion.  How’s that for a teaser?  I'll give you a hint below.

Author of the Quote as a Young Child

Physicians by training and experience are guarded with our words.  To begin, we are never entirely sure of anything, and we should make sure that we do not convey certainty when none exists.  This is why physicians rarely use phrases such as, I’m positive that..., I’m 100% sure…, there are no side-effects…

Because of the uncertainties of the medical universe, sometimes we sanitize our own concerns when we are advising patients and their families.  We may see an individual in the office with unexplained weight loss and a change in her bowel pattern.  While we may fear that a malignancy is lurking, we would be wise to keep our own counsel on this impression pending further study.  This patient, for example, may be suffering from a curable thyroid disorder. 

Words matter.  We all have heard how patients and families can dwell on one or two words uttered by a physician, who may have spoken at some length on a patient’s condition.  In these cases, the families may have inferred more serious news than the physician intended.  Doctors need to be mindful of this phenomenon when we are communicating.  Which of these messages would you prefer to receive on your voice mail?

“Please make an appointment to review your biopsy results.”

“Your biopsy results are benign.  Please make an appointment so we can discuss them further.”

On other occasions, physicians may opt to leave out certain words or suspicions.  Why unload anxiety on folks before the truth is known?  Additionally, not every patient wants the whole truth administered in a single dose.  These scenarios demonstrate the advantage that a physician has when he has an established rapport and relationship with his patient. 

Conversely, I don’t feel we are helping patients and their loved ones when we overly sanitize the medical situation in order to postpone an unpleasant physician task or to create hope that may not be realistic.  There’s a balance to be attempted, and I still struggle to achieve it. 

The quote that started this post was published 90 years ago, not by a doctor or a nurse.  I stumbled upon it when reading The Murder of Roger Ackroyd, one of the greatest works by the master of mystery, Dame Agatha Christie.


Sunday, February 5, 2017

Should Patients Order Their Own Lab Tests?

Knowledge is power.  Increasingly, patients are demanding and receiving access to levers in the medical machine that would have been unthinkable a generation ago.  I have already opined on this blog whether the informed consent process, which I support, can overwhelm ordinary patients and families with conflicting and bewildering options.  Television and the airwaves routinely advertise prescription drugs directly to the public.  Consider the strategy of direct-to-consumer drug marketing when millions of dollars are spent advertising a drug that viewers are not permitted to purchase themselves.  The public can now with a few clicks on a laptop, research individual physicians and hospitals to compare them to competitors.  The ‘Sunshine Act’, an Obamacare feature, publicizes payments to physicians and hospitals by pharmaceutical companies and other manufacturers.


"Sunlight is said to be the best disinfectant"
Every physician today has the experience of patients coming to the office presenting their internet search on their symptoms for the doctor’s consideration. “Yes, Mrs. Johnson, although it is true that malaria can cause an upset stomach, I just don’t think this should be our first priority.”
There are now laws that permit patients to order their own lab tests such as cholesterol or glucose.  Even registered nurses working in intensive care units are not permitted to order these tests without a physician's authorization.  Ordering diagnostic tests and medical treatments has always been under the purview of a physician or highly trained medical professionals.  Who interprets the results?  The patient?  The lab tech who drew the blood? The cashier at the retail health clinic?  A policeman?  A hospital custodian?
I had an office visit with my own physician to discuss how best to manage my own cholesterol level.  While this discussion did not have the drama of cardiac bypass surgery, it took time to consider the risks and benefits of various options along with my personal and family risk of cardiac disease.  My point is that even two medical professionals had to navigate through an issue that had more complexity than one might think.  Understanding the significance of a lab result takes nuance and medical judgment.
Patients already purchase all varieties of heartburn medicines over-the-counter, that years ago were out of reach.  Should we permit patients to buy antibiotics, blood pressure medicines, ‘statins’ for elevated cholesterol and anti-depressants? Why not?
Think of all the money the system would save.  A depressed individual, for example, doesn’t have to waste time and money with a psychiatrist.  He already knows he’s depressed. He can proceed directly to the Mood Aisle of the local drug store and get the pills he needs.  Wouldn’t it be easier and cheaper if patients could just buy antibiotics themselves for those pesky colds and flus?  No office visit or time off work for a doctor appointment. The fact that antibiotics don’t combat colds and other viruses never seemed to deter their use. 
Eventually, patients can order their own colonoscopies, stress tests, cardiac catheterizations and gallbladder removals.  Perhaps, we will see the creation of AmazonMEDPRIME.  Feeling a little chest tightness?  Just click the app, and the Cardiac Cath Mobile will be at your door in 30 minutes or less.    


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