Tort Reform and the Rain Forest: Lawyers' Advice Needed

When this post hits, I will be out of the country in a rain forest thousands of miles from home. I hope the experience won’t be an opportunity to learn about the tropical diseases I memorized in medical school, and promptly forgot after the test. Prior to leaving, I surrendered my arm to hepatitis A and typhoid vaccines. I hope that they deliver. Of course, if I do get struck by typhoid, then this would have to be someone’s fault. In the medical world, when an adverse event occurs, the interrogative response is often, who screwed up? Hmmm. This gives me an idea. If I did get sick abroad, who could I hold responsible for the medical misadventure? Who could I sue?

As is often pointed out on this blog, I know nothing about the law, rules of evidence or even the most rudimentary aspects of American jurisprudence. So, I need some help from lawyerly readers. Below is my list of potential defendants to blame, if I were to get sick in Central America. I’m sure I have overlooked many ripe targets, and I hope that you will comment on my oversights.

Kirsch vs ?

• The vaccine manufacturer. Obviously they are at fault becauseI did not experience a perfect outcome.
• The Republic of Costa Rica: The government should have sterilized the country.
• My Mom: She did not provide me with adequate immunity. (Pssst, Mom, we can split the recovery.)
• My Wife: The vaccines were administered by her staff. Clearly, they messed up. (Sorry, honey, business is business.)
• The Salmonella Germ: I haven’t figured out how to initiate this lawsuit, or to collect afterwards, so I really appreciate some pro bono advice from any erudite juris doctors.
• God: He could have turned the germ into a pillar of salt, as he boldly did to Lot’s wife in Genesis. Wow, a lawsuit against the Omipotent? Now, that would be 'divine justice'!

Of course, my fervent hope is to remain germ free. I certainly would not want to get sick just to have access to someone else’s cash. It doesn’t seem fair to make someone compensate me for an event that was not his fault. Who could defend a system like this?

 

CT Scan Risks: Radiation Danger and Overuse Threatens Patients

Many patients erroneously believe that x-rays and CAT scans have no risk. In their minds, they are non-invasive studies that can cause no harm. Since there are no incisions or anesthesia, they regard the experience as having the same risk as taking a family photograph. How wrong they are.  In my mind the danger from non-invasive radiology studies may surpass the risk of hard core medical treatment. True, radiology tests won’t puncture an organ or a blood vessel, as a surgeon or a gastroenterologist can. Imaging studies do not cause direct damage, but they may lead patients onto the medical battlefield. These diagnostic tests are an insidious force that draws patients into a spiral of direct risk and medical overutilization.

Is this post a shot at radiologists? No, it’s a shot at all of us. Remember, radiologists never order CAT scans; the rest of us physicians do. I certainly am distressed with the obsessive manner that my radiology colleagues interpret studies today, identifying innocent, tiny ‘abnormalities' that will then light a fuse for further studies. In many of these cases, the CAT scans were ordered for defensive purposes, and the radiologists' interpretations often keep the defensive medicine train lumbering forward.

On July 1, 2010, the New England Journal of Medicine, the most prestigious medical journal in the world, published 2 commentaries on CAT scans and medical imaging. While readers are free to review the first and second essays in the journal, I will summarize the major points here.

• Nearly 400 patients in the U.S. who underwent brain-perfusion scans are known to have received an overdose of radiation. How many folks have received a 'brain sizzle' that we do not know about?
• Radiation doses from CAT scans are hundreds of times higher than standard x-rays.
• There is persuasive medical evidence that radiation is carcinogenic.
• Physicians like me who order scans have limited knowledge of radiation doses and toxicity.
• Technology exists and can be further developed to reduce radiation exposure to patients.
• There are no evidence-based standards on the proper role for medical imaging tests. It's a free for all.
• CAT scans are overutilized. Amazingly, about 10% of the U.S. population undergoes a CAT scan each year.  So far, I've never undergone one.  How much longer can I hold out?
• Individual patients should have their radiation exposure history tracked.
• Physicians often order CAT scans and other imaging studies believing this will lower their risk of being sued for medical malpractice.  I can vouch for this in my own experience.
• Radiologists, also seeking to lower their legal risk, routinely identify insignificant abnormalities and advise that these ‘lesions’ be evaluated and scanned in the future to verify that they have not changed.
• Effective tort reform is one mechanism to reduce the number of unnecessary imaging tests.
• Scans are routinely ordered when the probability that the disease exists is low. I have addressed the consequences of this approach in a prior post.
• Radiologists serve as technicians, rather than serve as medical consultants to assist clinicians.
• Medical students are not trained to rely upon medical evidence with regard to imaging tests. Bad habits learned in medical school tend to be sustained throughout a career.

CT scanning, and related medical technologies, are towering milestones that have revolutionized the medical profession.  They have eliminated millions of exploratory surgeries and have allowed physicians to make and exclude various critical diagnoses.  We couldn't function without them.  Nevertheless, CT scan overuse is rampant, and there are no forces that are curtailing or guiding its use.  We are spending billions of dollars on scans that are not medically necessary.  I have ordered some of these scans personally, so I acknowledge that my own practice needs remediation.

We describe medical imaging tests as non-invasive, but this is deceptive.  First, there is direct risk of harm from accumulated radiation exposure.  Secondly, and more importantly, there are the indirect consequences.  For many patients, the radiology suite is a danger zone, a trap door that can drop patients into a medical cascade with no way out. 

Why Total Body Scans are Scams: Maze vs Bayes

Folks across the country are paying hard cash for total body scans, abdominal aortic aneurysm testing, CAT coronary artery scans and carotid artery evaluations to prevent disease or find important lesions early. It’s a seductive argument, and it’s a scam.

Ordinary patients don’t understand about pre-test probability and positive and negative predictive values. Indeed, all physicians were taught to consider Bayesian theory when ordering diagnostic tests. This is very tough concept for patients to grasp. A critical principle of proper diagnostic testing can be summarized in a single sentence.

If an individual is unlikely to have the medical condition under consideration, then a diagnostic test that yields a positive result is likely to be a false reading.

Here is an illustration demonstrating why patients need to understand this issue. While the forthcoming example is hypothetical, I guarantee that every physician has seen very similar patients in their practices. While the patient presented here has a presumed cardiology issue, every medical specialist and primary care physician can land in the same trap. When this occurs, patients suffer.

A 30-year-old non-smoker sees me in the office with chest pain that is readily relieved with antacids. It is very unlikely to be angina, and probably represents simple heartburn. If I arrange for this person to undergo a cardiac stress test, and the result is positive, then it is much more likely that  the test result is wrong than that the individual has true heart disease. This is not simply my opinion, but a conclusion based upon mathematical and statistical principles. However, try explaining this to a patient with a false positive stress test result. Despite the physician’s reassurance that the test result is erroneous, the patient will likely become anxious and remain unconvinced. Such a patient can easily slide, or be pushed, down a medical cascade that may include cardiac catheterization, or even stenting of a coronary artery that was not responsible for the patient’s symptoms, and should have been left alone.

The key is that diagnostic tests need to be ordered when the patient has a reasonable chance of having the condition under consideration. (If the physician is nearly certain of the disease, then the test may not be needed.) This determination is made on the basis of a careful history and physical examination. When stress tests and various scans are ordered casually by physicians, or requested by patients, then this opens a pathway into a medical labyrinth with no easy way out. Would you prefer to agonize over a false positive test result that pushes you toward medical quicksand, or avoid an unnecessary test in the first place?

Of course, there are rare individuals who have benefited from a scan that was ordered for the wrong reasons. These folks understandably are convinced that the scan saved their lives. These anecdotes, however, which make for potent testimonials, should not change established medical diagnostic principles. Every day, folks become millionaires after purchasing winning lottery tickets. Since nearly 100% of lottery tickets become bookmarks or end up in landfills, we know that this is a poor strategy to accumulate wealth. Should every person undergo a CAT scan of the head every year because it is theoretically possible that a few might benefit by accident? Dumb luck should not be our diagnostic touchstone.

Total body scans, and all of their cousins, are examples of medicine at its worst. It is a commercial enterprise that bypasses sound medical principles and judgment. These entrepreneurs proffer a promise that they know they cannot fulfill. It’s a scam clad in a white coat. For the majority of their unsuspecting customers, a positive result will be wrong and a negative result will guarantee nothing.  I realize that an ordinary patient will celebrate when his total body scan is negative, but this is not how medicine works.  You can have a normal EKG performed weekly, but this will not prevent a heart attack or exclude significant coronary artery disease. 

Still thinking about that cardiac scan being advertised in the newspaper or on television? Do yourself a favor. Buy some snake oil instead. The result will be the same, but you won’t waste nearly as much money and you won’t end up with a stent.

Many patients who have endured a ride on the medical cascade may feel that they were rescued from certain disaster.  I'd rather rescue folks from the cascade.

Should Physicians Give Up and Surrender?

Photo Credit

More and more, I read about physicians who are ready to give it up. I hear similar views in the physicians lounge and in hospital hallways. These conversations are a modern phenomenon; they did not occur when I entered the profession 20 years ago.

They have germinated as a result of rising forces that have demoralized many practitioners. Some of them include:

• Loss of autonomy
• Loss of income
• Loss of stature and prestige
• Required ‘Quality’ initiatives
• Health care ‘reform’
• Infighting within the medical profession
• EMR
• Medical liability system
• Insurance company hurdles to get paid
• General gerbil wheel existance

Luckily for me, I am still happy on the job. Of course, I am not immune to the above realities, and would readily accept a vaccine to protect against them, if one existed. I try to focus on the core purpose of being a physician, and work to sequester the noise and static, at least while a patient is seated before me. Since I am a member of the human species, I do not always succeed. Sometimes, stuff creeps out of a compartment at the wrong time, and I try to stuff it back in its place. It’s a struggle, but I usually prevail. So, with regard to being a practicing physician, I am not ready to give up.  I keep my 'white flag' in the closet.

There is a part of the profession, however, that I have given up with zeal and enthusiasm. For me the decision was easy, but for some colleagues it is agonizing. A few years ago, I gave up performing a procedure that is essential for many gastroenterologists. It is called ERCP, which stands for a term that is so long, that I wonder if its practitioners thought they would be ‘paid by the letter’. To save you googlers a key stroke, here’s the term in full.

Endoscopic Retrograde CholangioPancreatography!

This is a fancy endoscopic event when the gastroenterologist passes one of our flexible black serpents down your throat and snakes it around corners to reach the small intestine. Then, tiny tubes can be inserted through the scope into the liver and pancreas to accomplish tasks that previously required surgery. This invention is a towering milestone in the practice of gastroenterology.

How important is this skill in my trade? Peruse the ads at the back of any medical journal under the gastroenterology section and you will read phrases, ERCP required or ERCP preferred.

Why would I give up performing a test that distinguished me in my specialty and made me a more marketable gastroenterologist? Would we expect a professional basketball player to eliminate 3 point shots from his game? Would we expect a concert pianist to declare a moratorium on playing any piece in the key of A flat? Would we expect a congressman to vote on legislation that he hasn’t read? (Yes, you may snicker now.)

It seems odd to voluntarily surrender skills that allows one to occupy a higher orbit in his profession; yet this is exactly what I have done. I gave up ERCP because I simply wasn’t good enough at it. I never killed anyone, and my complication rate was within the expected range for this procedure. It certainly was exhilirating when I was successful, and quite demoralizing when I couldn't get the job done.  More and more, I realized that the ERCP field was advancing, but I wasn’t. My skills were acceptable, but stagnant. Why didn’t I simply incorporate the evolving technology and gadgetry into my practice?  This response is a blog post in itself, but the summary statement is that it is extremely difficult for a practicing community gastroenterologist to stay current with evolving technical procedures.

So, I gave it up, not the professsion, but an important aspect of my practice. It was liberating as I now knew that any of my patients who needed ERCP skills would be referred to someone who did it much better than I could. The quality of a physician – or any occupation – is determined by the weakest element of his practice. I hope that pruning my practice has made it sturdier.

These are vexing issues. When does someone give up an essential element of his occupation? Sometimes, the answer is obvious. We don’t want cardiac surgeons with flapping tremors to perform delicate heart surgery. We don’t want airline pilots who suffer from sudden blackouts to be at the controls. However, sometimes the deficits are more subtle, and it is not clear that the practitioner is impaired to the extent that a professional change is required. Where is the boundary line and who should set it?

Quality measurers from the government, insurance companies and professional medical societies will soon be unleashed on a mission that they can't succeed at. They will fan out across the countryside claiming they can measure the unmeasurable. Those of us who understand the guts of medical care realize that what really counts, in medicine can’t be counted. For example, these qualitycrats might have deemed my ERCP skills to be acceptable, using their check-off boxes and quality rubrics. Indeed, I was granted privileges to perform this procedure in my local hospitals every 2 years through the perfunctory recredentialing process. The reasons that impelled me to set the ERCP scope aside are real and legitimate.  But,  they can’t be weighed and measured.

I hope that the quality buzzards who will suffocate the medical profession give up before we physicians do. I can loan them my white flag.