MD Whistleblower

One of the advantages of the computer era is that patients and physicians can communicate via a portal system.  A patient can submit an inquiry which I typically respond to promptly.  It also offers me the opportunity to provide advice or test results to patients.  Moreover, the system documents that the patient has in fact read my message.  Beyond the medical value, it also provides some legal protection if it is later alleged that ‘my doctor never sent me my results’.  I have always endorsed the concept that patients must accept personal responsibility.   Consider this hypothetical example. A patient undergoes a screening colonoscopy and a polyp is removed.   The patient is told to expect a portal message detailing the results in the coming days.   Once the analysis of the polyp has been completed, the doctor sends a message via the portal communicating that the polyp is benign, but is regarded as ‘precancerous'.   The patient is advise...

My great pal Lewis, with whom I have shared a friendship for over half a century, have much in common professionally.   Is he also a gastroenterologist?    A physician?   A nurse?   Actually, he is a tax attorney.   So, where’s the commonality?   Could it be that my patients and his adversaries both feel that they are being ‘instrumented’?    While I suspect that this may be true, it is a different aspect of our respective professions that binds us. Lewis’s clients and my patients need to grapple with and accept uncertainty.   I find the parallels here to be striking and I’ll do my best to illustrate. Legal Uncertainty The client brings an issue to his attorney seeking a legal remedy or an opinion.    Let us assume a corporation wants to know if a particular expense can be legally considered a tax deduction.   The experienced tax attorney responds, after careful thought and deliberation (yes, the time...

Are you getting a little tired of being warned that all kinds of stuff you do is unsafe?   I wrote a post recently about Warning Fatigue with regard to our office’s Electronic Medical Record which I fear will emit a flashing Red Alert if I prescribe a patient an aspirin. Now, I start every morning with a steaming cup of coffee.   In fact, there is one beside me right now, as I peck about my Dell keyboard to create this post.   My inner circle of intimates and those with whom I share a high percentage of DNA, are aware that I add something to the java, which is a rather atypical additive.   Curious readers may inquire further, although I cannot pledge here that I will make a full disclosure.    Persuade me to disclose, and I will give your request due consideration.. Recently, a judge in California ruled that various coffee companies, including Starbucks, must issue a cancer warning regarding a component of coffee called acrylamide   Violato...

Reasonableness is like pornography - hard to define, but we know it when we see it.  (with a nod toward U.S. Supreme Court Justice Potter Stewart.) It’s interesting how folks classify themselves on the political spectrum.  Most individuals regard themselves as moderate, independent and reasonable, regardless of their views and positions.  Try asking an extremely  partisan political conservative how he classifies himself and you will hear terms such as ‘family values’, ‘mainstream’ and ‘pro American’.   A politician on the far left is more likely to describe himself as ‘Progressive’, rather than as a 'liberal fanatic'. The point is that unreasonable people believe that they are reasonable. I read an account of an episode that occurred last week in Cleveland that hinged upon the legal meaning of the word reasonable.   A 16-year-old boy with various allergies joined several friends at an expensive restaurant.  Without providing advance not...

Readers are not aware of my personal view on abortion, and they won’t be after this post.  While abortion seems on its face to be a complex biomedical issue, interestingly, those with firm views on either side do not describe it as a great moral quandary.  Those who ardently favor abortion rights, and those who oppose them in equal measure, often express that this is not a controversial issue.  For them, it is a clear issue of right and wrong, with each believing that the other side is entirely wrong and misguided.  This observation applies best to those who are toward the poles of the abortion question.  If you believe that an embryo and a fetus are human beings, than abortion is murder.  Not much room for debate here.  If you do not confer personhood on an embryo and a fetus, then a right to abortion is a woman’s right to freedom and autonomy.  Clear cut argument here also .  Of course, many thoughtful individual wrestle with this issue...

Lawyers and physicians have so much in common, despite some benign grievances that occasionally reach the level of homicidal rage.  Just kidding.  Calm down, juris doctors.  Consider the similarities.  Both professions serve a public who needs help.  Both wield professional advice and judgment that must be tailored to an individual’s unique circumstances.  Neither professional is ever 100% certain of anything, and an outcome cannot be guaranteed.  Both are charged to put their clients' and patients' interests above their own.  (Snickering permitted here.) Let's see what our legal brethren are up to.  Law schools in America are having a serious problem that they are struggling to remedy.   They need more students.  Of course, they could fill their classrooms by recruiting qualified candidates to apply to their institutions.  This strategy apparently couldn't fill the seats, assuming that it was even considered.  So,...

Doctors do not know everything.    We make mistakes and mistakes in judgment.  Sometimes we make the mistake of speaking when we should keep silent.  At times, patients ask us questions that we can’t or shouldn’t answer; and yet we do.  It shouldn’t be our objective to force certainty into an issue which is amorphous and murky.  Here’s a response that I recommend in situations where certainty is elusive. “I don’t know.” I saw a patient for the first time when he was sent to me for a colonoscopy.  Prior to the procedure, we interviewed him to be acquainted with his medical history.  We are always particularly interested in the cardiac and pulmonary history, as these conditions impact on the risk of the procedures and the anesthesia.   This patient had a lung resection.   He related the details which left my staff and me aghast. “The doctors told me that I had cancer and would be dead in 3 months.” Of co...

I’m all for free speech and I’m very hostile to censorship.  The response to ugly speech is not censorship, but is rebuttal speech.   Of course, there’s a lot of speech out there that should never be uttered.  Indecent and rude speech is constitutionally protected, but is usually a poor choice.    We have the right to make speech that is wrong. Does First Amendment Apply to Physicians? I relish my free speech in the office with patients.   I am interested in their interests and occupations and sometimes even find time to discuss their medical concerns.  I am cautious about having a political discussion with them, but patients often want my thoughts and advice on various aspects of medical politics, and I am willing to share my views with them.   I don’t think they fear that politics or any other issue under discussion will affect their care.  It won’t. A Federal Appeal Court recently decided in a Florida case t...

I read recently that the left coast state of California is contemplating requiring physicians to submit to alcohol and drug testing.   Citizens there will be voting on this proposal this November.I do think that the public is entitled to be treated by physicians who are unimpaired.  Physicians, as members of the human species, have the same vices and frailties as the rest of us. Traveling leftward I have no objection to this new requirement, if it passes. This will not be a stand-alone proposal on the ballot, but is a part of the ballot initiative.   Why would trial lawyers in the Golden State want to include it?  The meat of their ballot effort is to reverse effective tort reform that had been in place there for several years.   Click on the Legal Quality category on this blog for a fuller explanation of why the medical malpractice system has been screaming for reform, and is slowing getting it.  Sure, there are always two or more si...

Remember personal responsibility?  There actually was an Era of Responsibility when folks admitted when they screwed up and didn’t blame others for their own mistakes.  I know this may seem incredible to the younger generation who simply assume that when something goes wrong today, it must be someone else’s fault.   In today’s culture, this is not scapegoating, but the pursuit of justice.  Welcome to the Era of Big Victim. In the olden days, if someone slipped on ice and sustained injuries, he went to a doctor. Today, we could expect a court case where a jury would hear testimony from an Illumination Expert testifying that the wattage and angle of the sidewalk lighting was clearly deficient.   A Saline Expert would add that the salt that the proprietor applied to the sidewalk was not dispensed with a certified salt sprayer, thereby allowing dangerous ice crystals to survive.  Perhaps, an Ambulation Expert would instruct the jury that the s...

Folks who have wandered through the Legal Quality category of this blog understand my views on our perverted and unfair medical malpractice system.  I've been in the arena many times, and always walked away unharmed.   If this system were presented in front of a fair minded and impartial jury, it would be dismantled.  Sure, there are positive elements present, but they are dwarfed and suffocated by the drawbacks. The self-serving arguments supporting the current system are far outweighed by the financial and emotional costs that innocent physicians unfairly bear.  Tort reform should not be controversial.  You may wish to peruse a few of my medical malpractice posts before spewing forth vitriol in the comments section. Beyond the medical arena, who wants to defend the crushing volume of litigation in the United States?   Let me be bold.  I think we have too much litigation and fear of litigation in this country.  Put that i...

I had thought that apologizing was a straightforward act, but I now realize that it is a nuanced art form.  We’ve all heard the ‘mistakes were made’ version, usually issued by politicians who attempt to insert a layer of passive voice insulation between themselves and their screw ups.  There is also the ever present conditional apology which by definition falls short of complete responsibility acceptance.  The template here is: “I’m sorry for my oversight which wouldn’t have happened if….” The Gettysburg Address - Silly Remarks? There have been several apologies in the news recently.  First President Obama offered a faux mea culpa with regard to his indisputable and repeated ‘misrepresentations’ on his broken promise that we could all keep our own doctors and health insurance plans.  Here’s what he said on November 7 th . “I am sorry that they are finding themselves in this situation based on assurance they got from me.” Finding themselves ?...

Some time ago, about 200 physicians met one evening for a conference. This is not newsworthy. Medical education is deeply engrained in our professional culture. Indeed, physicians are committed to lifelong learning and self-improvement. To stay current, we read several medical journals and professional communications, we attend lectures at our hospitals, we engage in on-line educational pursuits, we learn from colleagues and we travel to medical conferences. Conscientious physicians devote many hours to educational activities each week On this night, however, we were not learning about new treatments for heart disease or diabetes. We were not learning about emerging strategies to diagnose cancer at a curable stage. There was no talk about new techniques to reduce hospital infections or other preventable complications. We were not even learning about ‘soft’ subjects, such as medical ethics or doctor-patient communication issues. We were together at the strong urging of our medic...

Sometimes, I feel like I belong in law enforcement.   There was a time in my life that I seriously considered a career where I would haul in the bad guys and make society a better place.   Of course, every American male youngster fantasized that he would one day drive the Aston Martin, get the girl, defuse the bomb, and sip on a martini that was shaken, not stirred.  I was no different.  I was 10 years old then when my pal Lewis and I were secret agents with the requisite weapons, invisible ink and secret codes.   At the risk of disclosing that I have a tincture of obsessive compulsiveness, I still retain the files of our secret organization.  While Lewis has expressed concern that these files in the wrong hands could threaten international order, I have reassured him that the enemies of mankind will be unable conquer our layers of sophisticated encryption.  At risk of being accused of hyperbole, Israeli and American intelligence agenc...

I was engaged in one of my pleasures, sitting in a coffee shop leafing through medical journals. Usually, I am perusing newspapers. I spend many hours each week combing through various newspapers and routinely forward items of interest to folks of interest. No newspapers today. I have a few gastroenterology journals to look through. My professional reading habits have evolved over my career. I am more interested in reading about medical ethics, health care policy and the art of medicine than in studying hard science or clinical research, which used to be my required reading years ago. I read an essay entitled, Irritable Bowel Syndrome (IBS) Patients’ Willingness to Take Risks with Medications published in the June 2012 issue of the American Journal of Gastroenterology. The article stated that IBS patients would accept a small chance of death if there were an overwhelming likelihood of cure. This caught my attention. Of course, IBS can be a debilitating illness. But, it is not cance...

Romney lost.  This update is for those who have just awakened from a deep coma.  I voted for him which will not surprise even the occasional reader of this blog.  While he was an imperfect candidate, I believe that a businessman whose successes have straddled the public and private worlds may have provided a pathway forward out of the abyss.  Sure, I recognize that campaigning is quite different from governing.  Had Romney prevailed then he would have been opposed by an obstructionist Senate that would have stiff-armed him in the way that I expect the House to do to the president.   The loser always faces a merciless post mortem where pundits and pontificators point out the series of fatal errors that the candidate committed.  “He dissed the Latinos.” “He didn’t reach out to women.” “He tacked too far to the right in order to gain the nomination.” “He made a $10,000 bet with Rick ‘Brain-Freeze’ Perry on national TV.” “He introduced us...

There was phone message on my desk to call a lawyer. I had no idea what he was seeking, but knew that I couldn’t be a target since plaintiff attorneys do not personally contact their victims to make a introduction. I had no idea if his inquiry even pertained to a medical malpractice issue. Perhaps, he was cold calling to convince me that his estate planning skills could enrich the next several generations of Whistleblowers. Maybe he was going to notify me about a huge inheritance. Could it be that he wanted a screening colonoscopy for himself ASAP, and threw out his lawyer title to assure he would get a prompt call back? I then drifted into a reverie where lawyers were lined up outside my office all waiting for me to perform colonoscopies on them. I returned the call and he asked if I would help in the defense of an internist who is being sued for medical malpractice. Years ago, this physician prescribed Reglan, an anti-nausea medicine, to a patient who subsequently developed tardive...

Whistleblower readers know my views on the perverse and dysfunctional medical liability system. I have read numerous plaintiff lawyers’ blogs, and those of other tort reform opponents, to better understand the issue from other perspective. As a physician, I bring bias to the issue, as do all the players in the game. After 20 years of thought, and some legal brushfires, I am persuaded that the medical profession has the better argument. I also do not believe that we physicians are as strident and ideological as the other side is, but perhaps this is simply because this gastroenterologist has a jaundiced view of the issue. For example, most physicians readily admitted that our health care system, before Obama and the Democrats cured it, had serious deficiencies that demanded reform. In contrast, rarely do I hear or read plaintiffs’ attorneys remarking that the medical liability system needs some healing. What I read in their columns and postings is a spirited defense of the status quo. W...

When lawyers talk, I listen. Two attorneys penned a piece on medical malpractice reform in the April 21st issue of The New England Journal of Medicine, the most prestigious medical journal on the planet. Here is an excerpt from their article, New Directions in Medical Liability Reform. The best estimates are that only 2 to 3% of patients injured by negligence file claims, only about half of claimants recover money, and litigation is resolved discordantly with the merit of the claim (i.e., money is awarded in nonmeritorious cases or no money is awarded in meritorious cases) about a quarter of the time. This is not self-serving drivel spewed forth by greedy, bitter doctors, but a view offered by attorneys, esteemed officers of the court. Apply the statistics in their quote to your profession. Would you be satisfied if your efforts were benefiting 2-3% of your customers or clients? Would this performance level give me bragging rights as a gastroenterologist? Perhaps, I should attach ...