MD Whistleblower

Medical malpractice reform is in the news again. Of course, for the medical profession, the medical malpractice system is the wound that simply will not heal. For the plaintiffs bar, in contrast, the medical liability system is the gift that keeps on giving. I have argued that the current system fails on four important fronts. Efficiency Cost Fairness Quality Improvement I admit readily that my profession has not been as diligent as it should be in holding ourselves accountable. We have not been forthright in admitting our medical errors, although can you blame us under the current medical liability construct? There is merit to the argument that tort reform is championed by medical malpractice insurance companies who have an economic agenda in this issue. I recognize that certain malpractice reform measures, such as caps on non-economic damages, means that some individuals who have suffered severe injuries as a result of medical negligence, would not be adequately compensate

Ohio made national news twice in one week, and the Cuyahoga River wasn’t even on fire. First, Obama and his entourage flew here to headline the conference, Winning the Future Forum for Small Business, when he addressed small business leaders. He referred to the ‘reinvention of Cleveland’, a term that suggests we are experiencing a renaissance here, an event that most of us are unaware of. In any event, when a president flies in, it offers an opportunity to think, particularly if you are held hostage on the highway awaiting the presidential motorcade. Then, you can ponder how late you will be for your destination. Education, one of my preferred issues, also made headlines. A Mount Vernon, Ohio teacher was accused of infecting his curriculum with creationism, among other allegations which readers can discover with a single click after a Google search. Ohioans follow the creationism issue closely and pride ourselves on being more enlightened than many spirited evangelists from the Sunf

We watched the president’s State of the Union address recently with the kids, to try and inculcate them with civic interest and responsibility. He is an inspiring and skilled speaker whose words seem to transcend partisanship and divisiveness. Nothing like an electoral ‘shellacking’ to push a politician into a Kumbaya mode. I thought the speech was long on ideals but sidestepped the pain and sacrifice it would take to reach the objectives the president outlined. I was waiting to hear the president’s plans regarding Medicare and Social Security, and I’m still waiting. The president took such a high road, that it was in the stratosphere, beyond real life. Here’s what he said:  ...by the end of the decade, America will once again have the highest proportion of college graduates in the world. Here’s what he didn’t say: ...to save Social Security we are cutting benefits and raising the age when seniors can collect. I’m not a journalist or a speechwriter, but my understanding is t

Several posts on this blog have been devoted to tort reform . More than any other subject, this topic generates more heat than light. Indeed, I describe these debates and commnets on this blog and elsewhere as duels, not discussions.  Many folks on various sides of this issue earnestly believe that they have the better argument. Other viewpoints are not purely held and are clearly contaminated by self-interest. I have written repeatedly that I believe that the current system is unfair and does not serve the public well. The public understands the issues and the controversies. In general, I don’t think most Americans believe that we have too few lawyers or lawsuits in this country. It is astonishing that people can defend a medical liability system that           Misses the vast majority of patients injured by medical negligence           Ensnares many more innocent physicians than negligent ones. Shouldn’t these two inarguable facts be sufficient to demand at least an examinat

Photo Credit Two days from this writing, I will go mano a mano with a computer screen.    This will be my second gastroenterology (GI) board recertification.    Last week I suggested that the 490 minutes of unfettered fun might not be money well spent.   A reader could infer my view that the $1200 fee has more to do with securing the finances of the American Board of Internal Medicine than it does to enhance my knowledge of GI.    Perhaps, I was hyperventilating about the cost.   When I calculate the GI board CPM (cost per minute), I determine that the exam only costs $2.45 per minute    In other words, a full minute of quality board testing time costs about the same as a slice of pizza.   Clearly, the test is a bargain, and I retract any prior Whistleblower whisperings that contradict this.   Yesterday, I took another exam, this one to recertify me as a qualified Advanced Cardiac Life Support (ACLS) practitioner.   An excellent paramedic instructed me and my 2 GI partners on new

Photo Credit Leisure Guy, one of my most faithful commenters, opines that I am omitting an important aspect of the tort reform argument. He has implored me repeatedly to read a particular book that I suspect buttresses his views, but this worthy pursuit is simply not near the top of my priority pyramid. Since he’s retired, he enjoys the luxury of burrowing deeply into the base of his priority pyramid. With 4 tuitions to go, retirement is a distant mirage for me. I’m can be a ‘leisure guy’, but only in my dreams. I have written throughout this blog and elsewhere that there are too many frivolous lawsuits against physicians. I have admitted that caps on non-economic damages are not ideal, because they deny some worthy plaintiffs of complete compensation, but I support them because I believe they serve the greater good. I have ranted that there is no effective filter to screen out physicians who should never be invited to the litigation party in the first place. I believe that the cur

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 ta

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 concl

Several months ago on this blog, I informed readers that I was a defendant in a medical malpractice case. I offered no specifics, as I didn’t want my attorney to fire me as a client, in case he discovered the post. Although the plaintiff was granted two 45 day extensions to troll for an Ohio physician to sign an affidavit of merit against my care, none could be found. My lawyer had reviewed every syllable of the medical record, and couldn’t divine an allegation against me. My lawyer and I were groping guests in a Chamber of the Absurd - trying to figure out what allegations the other side might concoct. After a few months, I was dropped from this case that should have never been filed in the first place. Years ago, as a younger and more idealistic gastroenterologist, I was kept dangling on a lawsuit for a few years. I endured the light hearted amusement of the discovery process, including expert witnesses outside of my specialty who claimed in their written reports that my care was

Whistleblower readers know my views on the medical liability system. I have devoted more posts to tort reform than to any other issue. Readers, whose blood pressures are adequately controlled, are invited to review those posts on this blog under the Legal Quality category. (I was tempted to name the category Legal Abuse, but wanted to keep the category names consistent.) I review many legal blogs, most of which are ideological rants against physicians that express steadfast fidelity to the current system. If the medical community were as united and focused as the trial lawyers are, our future would be more sanguine. Gerald Oginsky is a plaintiff’s attorney who sues physicians. I have never met him and he has never sued me. Gerry left a comment on one of my Legal Quality posts, which demonstrated fairness and reasonableness. This lured me to his blog, where these same two qualities are evident. For this week’s Whistleblower, I am sharing a recent posting from Gerry’s blog . While

I’m surprised that they haven’t thrown me out of the profession yet. In the past year alone, I have been sued for medical malpractice , committed a ‘ never event’ and confessed to performing an unnecessary medical test on a patient. It’s a wonder that my medical license hasn’t been revoked. Keep in mind that the above events are only those transgressions that I have admitted to. Imagine the misdeeds, misadventures and misconduct that I’ve kept secret. Are handcuffs in my future? For example, I should I have come clean that a 2nd medical malpractice case was recently filed against me. I received the thick envelope from noble and altruistic Cleveland barristers about 6 weeks ago. Once again, I saw my name in the good company of many other physicians and our local hospital. I reviewed my medical records and felt comfortable with the care I had provided. In a medical malpractice case, quality of medical care is important, but the truth won’t set you free. It’s the documentation, stupid! I

The law has many privileges and protections for its own players that are necessary for the legal process to operate effectively. For example, we all accept that a judge should have absolute legal immunity for decisions and judgments made in his judicial capacity. If a judge could be sued because he ruled that certain evidence was inadmissible, for example, then the system would collapse. Immunity allows judges to decide legal issues freely, without any threat that he could be legally vulnerable. This is how it should be. Earlier this week, the U.S. Supreme Court heard oral arguments that challenge legal immunity for prosecutors, under certain circumstances. As an aside, I learned an astonishing fact in the New York Times article that reported that … prosecutors cannot be sued for anything they do during trial, including knowingly submitting false evidence . Read this sentence again. I had to as I was sure I had misread it initially. Immunity for trial conduct was not the issue bein

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

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 als

Every physician knows what a black box warning is. This is a special Food and Drug Administration (FDA) requirement to warn doctors about potentially severe drug reactions. Most medicines do not have any black box warnings. Wyeth, a pharmaceutical company, will have to place a black box warning for their drug Phenergan, a medication routinely given for nausea. Phenergan has been on the market for over 50 years. I’ve prescribed it for years with excellent results, and I have never witnessed an adverse reaction. The catalyst for the black box development was a tragic side-effect that a woman experienced in 2000 after receiving an injection of the drug. A physician’s assistant injected the medication improperly into her arm. As a result, she developed gangrene and her right forearm had to be amputated. She argued in court that she was not sufficiently informed about the drug’s risk and the jury awarded her $6.7 million. This past week, the U.S. Supreme Court rejected Wyeth’s appeal. What

Over the past week or so, I have been engaged in a colloquy with a presumed lawyer on tort reform on KevinMD’s blog. It has been a frustrating and unsatisfying exchange. I have had many discussions with attorneys over the years, and I am always struck by the gulf that separates us on this issue. I regard myself as a fair-minded individual. I believe that I can separate my own self-interest from the public interest. Indeed, many Whistleblower postings take aim at my own profession and have generated some spirited responses from my colleagues, some of them delivered offline. Although I am a gastroenterologist, I will not defend the value of colonoscopy when a better option for patients emerges. I admit and write that our health care system is riddled with excesses and inefficiencies and that we physicians deviate from evidence based medicine regularly. Lawyers, at least those who I’ve spoken with, express an unwavering fidelity to the tort system. This is why the dialogue between the pr

For a while now, I’ve been in between lawsuits. I am now pleased to report that I am a defendant again. Such good fortune, like a lottery win, descends upon doctors without warning or invitation. Nothing else can leaven a physician’s morale more than opening that thick envelope delivered by certified mail. We should not regard a medical malpractice lawsuit as a personal legal assault, but rather as an opportunity to promote truth, justice and the American way of life. (If I had the technical skills, an audio of the Star Spangled Banner would now begin.) We physicians, through our involuntary participation and testimony, can shed light in the darkened corners of the medical world. This is no time for physician anger. This is a time to give back and make others whole. Litigation is a natural extension of our professional mission to serve humanity. When viewed from this perspective, sitting in the courtroom or giving a deposition are important opportunities to heal our injured patients. T

We’ve already had a little fun presenting ‘ tort for sport’ for your entertainment, describing a system that is nearly exclusively advocated by trial lawyers and their minions. Beyond their tendentious rhetoric, however, are the inescapable hard facts that the tort system misses most cases of true medical negligence and wounds too many physicians as friendly fire casualties. Let’s put this issue in medical terms. As lawyers so often say, ‘let’s consider a hypothetical’. A pharmaceutical company launches a new medical screening test to diagnose pancreatic cancer at an early stage when the disease is curable. The test can accurately detect the condition in only 5% of cases. Unfortunately, the test causes side effects in most patients, who experience severe fatigue, muscle aches and joint pains. These symptoms last for several months and then gradually resolve. If this screening test were widely adopted as a routine test, then 95% of early pancreatic cancer patients would be missed and m

Physicians and plaintiff attorneys have philosophically divergent views on our tort system. I know the attorneys’ views on this issue well. There are lawyers in my family who have prosecuted physicians for alleged medical malpractice. Sometimes, there hasn’t been enough antacids in our house to douse my flaming heartburn after some of our discussions. Obviously, one reason that lawyers support the current system is because it enriches them. However, there are purists among them who truly believe that the tort system, despite some flaws, is the best means available to pursue justice and to compensate injured people. They point out that the medical profession has been lax to monitor itself and to sanction incompetent physicians. Too many medical mistakes, they claim, are ‘buried’. Without aggressive legal advocacy, what recourse would negligently injured individuals have against the powerful and well financed medical profession? In addition, they argue that the system is a powerful deter