My recurring debate

At this junction we can say:

Are all attorneys bad? No.

Are all doctors good? No.

Can we rely on insurance companies to do the “right” thing? No.

I see a well intentioned system plagued by distortions. Frivolous law suits. Defensive medicine. Unrealistic patient expectations. Pharma. The list can be longer.

The real issue then becomes how do we eliminate the distortions while maintaining the required checks and balances. Meaningful discussions are needed to look at the facts of our current situation. The problem will be the potential financial gain for any one player who tilts the results in their favor.

Evan has hit on a very important point. A good friend of mine practices this in his own medical career. He holds up ORs because he is discussing various aspects of patient-care with his patients. [And boy does he get major "talking-to's".] He has got nothing but appreciation from all his patients and their families, even when things go wrong, as invariably a small percentage of them do.

What I’ve experienced in the little I’ve been in the care of others, is a doc who was too quick on the draw with a very serious diagnosis. A lack of proper pre-procedure testing, and proper informed consent. The physician laughingly said things like: “Oh, you could end up paralyzed, and perhaps dead… ha ha ha”- out the door he went. Ha ha ha indeed. I should have contacted the legal group at his hospital. Instead he got a patient who was a ball of tears for 3 hours in pain from the procedure, with a lack of knowledge about what just happened or why it had to happen at all- or what the risks involved with the care were. That is completely unacceptable. To add insult to injury- he didn’t really seem to care that much at all. Luckily, this is likely rare. But, when it happens to someone you love, the gloves are going to come off. Patient care is just that. I whole-heartedly agree with Evan on this. Care must be shown, and to each new face seen, or each 10 minute meeting you have, deciding that patient’s minor-fate, one must be conscious of that care. If you are not, and if you do not treat your patients with care, it will bite you.

I personally see the lack of access to charts, video, etc., as a big indication of the round-the-wagons approach medicine has taken. When I know more about the situation of a patient than the doctor knows [I am not an MD]- this is a very bad sign. Docs don’t have the time to do background research these days, and the healthcare system is pushing through too many patients in too short a time. I myself know of at least 1 doc who double-books on a consistent basis- often he’s spending 5-10 minutes with patients tops… this is completely unacceptable. [And this is post-op follow-up. I'd hate to know what regular check-ups are like.]

So many things need to change in our current system. I personally feel that litigation which is not completely focused on doctor incompetence or malpractice should be severely limited, or should have serious ramifications for a negative ruling. If improving care is the important aspect of litigation, it must be focused on just that. I personally strongly suspect the current socialized/hmo care system is the primary reason for reduction in proper care. Practice-groups are focused on dollars and patients pushed through the system- on OR time, and on amount billed. This is not conducive to patient care.

To top it off, when a patient receives a bill, it rarely if ever discusses exactly what was used, exact dosages of drugs administered and side-effects of these drugs, and how much various aspects of the care came to (billing divided by nurse and surgeon). [We can thank HIPAA for that one- lot of good HIPAA has done for anyone.] Usually a patient doesn’t even know that he can request different care before a surgery- i.e., the anesthetist, or even a second opinion. It’s a big black box and the patients are generally kept out of the loop completely. They’re shoved into the offices, and shoved out of the offices- almost as fast as they possibly can be.

The current state of patient care in the medical system in the US is horrendous, at least in my little experience [caveat].

Moving to a more socialized system, unfortunately, will not solve these problems. In fact, likely it will add to these problems.

Sorry for the ranting. I’m sure we have all experienced poor care before. It is definitely not a laughing matter.

What I am seeing is that limited patient knowledge is being used as a way of limiting liability. This is not appropriate. As well, limited access to patient records and recordings of procedures are commonplace- and due most likely to limiting liability. The MD’s feel that the less a patient knows, the less harm can come to him. If a video is reviewed by someone else, and something is caught that indicated a problem that wasn’t seen before- this likely will turn into a big mess… so, why not just refuse to give out videos of procedures, images taken during the OR, or any aspect of patient care to the patients and their families. This way, what they don’t know can’t hurt the MD’s. It’s out of fear of litigation that various aspects of patient care are being hampered.

Oh, and at least in my limited knowledge, anesthesia is still the highest litigated group of medical care – even if they did help the situation previously.

CJD is actually onto something here. The data that he cites rings true to me- “the patient-physician relationship is the key to claims. Physicians who fail to treat their patients with respect, or ignore them when something goes wrong, are far more likely to have claims filed against them.”

Does anyone else see something very wrong here? Bad outcomes are an inherent part of medicine. We do our best to minimize these, but they cannot be eliminated. Many/most bad outcomes do not result in litigation, for several reasons, such as the patient/family truly felt that everything possible had been done, or they were upset and consulted an attorney who thought that they didn’t have a good case, or the potential financial return was too small. Cases do get filed when the patient/family is sufficiently PO’d enough to go to a lawyer and the lawyer agrees to proceed. Both of these things have to happen to generate a malpractice lawsuit.

Who decides if the patient/family is PO’d? They do! If they are upset enough because a loved one died or was injured during a medical encounter, they start paying attention to the TV lawyer commercials promising them justice, and it’s off to the races. The case may or may not get filed according to the judgment of the lawyer, so the PO’d patient/family is a necessary (but not sufficient) part of the process to start a lawsuit.

Is there another commercial endeavor where the customer’s subjective opinion of how he was treated, how much respect he had been treated with, plays such a major role in determining legal action? Some people are just plain unreasonable, and cannot be satisfied no matter how much effort is put into pleasing them. A physician can be concerned about a critically ill patient in the ICU, and not be able to spend another 20 minutes at the bedside placating the spouse of a stable patient who feels that she deserves another explanation of why her husband is recovering more slowly than she expects. We are human, and sometimes if we have been up most of the night with urgent problems, the fellow who comes into our office demanding 40 minutes of service when his appointment was for a blood pressure check and medication renewal may not get Nordstrom’s level service, and might be told somewhat brusquely that he will have to come back another time. Sometimes two people just can’t get along no matter what, but are forced together in a tense situation due to the bad combination of trauma or an MI or pneumonia and the ER call schedule. In any other business that might lose a customer, or generate an angry email to customer service. In our business, it can generate a lawsuit.

I agree strongly that attorneys greatly underestimate the bad effects that lawsuits have on physicians personally, and more importantly, the entire health care system. They look at numbers, such as that our malpractice premiums, while high, are only 5% or so of our gross revenue, and ignore how their actions skew what we do and how we relate to our patients. We know that there is very little relationship between true malpractice, i.e., doing something demonstrably incorrect in a given clinical situation, and the cases that generate suits. CJD is right- it’s more important for the patient to think that we are being nice to him than it is to actually give the best care. Giving the best care does not protect us from lawsuits- there will always be bad outcomes even with the best care. The legal system places a greater emphasis on subjective feel-good perception than quality of care. That’s what it will get.

MLO says much but adds little to this discussion. He alleges that a small group of physicians are responsible for the majority of malpractice suits, and quotes an unnamed study from “Several states.” This is just plain not true, unless specialty is not controlled for. Certainly the group of obstetricians, neurosurgeons, and orthopedists will be overrepresented as malpractice defendants compared to people who do not do surgery. If a small group of doctors were in fact responsible for all of the malpractice, as opposed to malpractice litigation, it would be a relatively simple task to deal with them. The fact of the matter, as I noted above, is that there is very little relationship between true malpractice, and the likelihood that a lawsuit will be filed. That is why, contrary to the allegation, the typical position is sued at least once in his career, and a high risk specialist can expect to be sued three or four times.

MLO credits nurses with knowing who is a good physician, and who is not. What nurses know, unfortunately, is who is a friendly, easy to get a long with, personable physician, not who is technically competent. As medicine and surgery have become more complicated and more technically oriented, physicians have spent more years of training to learn their specialties. All physicians now have at least seven years of postgraduate training, and anyone practicing a surgical specialty has a minimum of eight years, and often 10 or 11 years, before they are allowed to begin independent practice. Nurses, on the other hand, typically practice with no (as in zero) postgraduate training. They get their bachelor of science in nursing, and then take their boards and start working in a hospital. What is worse, much of what they learn in their nursing training is psychobabble, having to do with becoming attentive listeners to their clients concerns, and “validating the nursing process.” Any nurse who has graduated in the last decade will tell you that she was just about worthless when she first began working, and it took a lot of on the job training to begin to feel competent. It is amazing to me how shallow a typical nurse’s understanding of pharmacology, physiology, and anatomy is. Nurses do very important work, under often terrible conditions, and do it well, but that does not mean that they are in a position to judge whether a physician does his job right or not. What they do judge is how the physician interacts with them, patients, and families. Does the physician call back promptly when he is paged, and is he a holy terror or just barely grumpy when he is called at 3 a.m. for a minor problem? These are generally the same types of observations that lay people make. Because of their increased exposure to this side of the physician, they are in a better position to make valid judgments, but still, what they are judging is not technical competence, but friendliness, helpfulness, and other subjective aspects of the physician’s personality. Nurses will know if one surgeon has a higher number of complications than another, but what they do not know, and are in no position to judge, is whether one surgeon takes on more challenging patients, while another one may cherry pick just the healthy ones. Nurses are extremely valuable hard-working members of the healthcare team, but they are in no position to judge technical competence of physicians.

MLO wants any physician who has more than four malpractice suits in a two-year period reviewed by a panel of physicians, medical care practitioners, and laypeople. That is something that is done on a regular basis in every state. It is done by state medical boards, which are typically comprised of physicians, laypeople, and administrators. Malpractice suits are reported to the medical boards, and a simple perusal of any state medical board’s website will confirm that physicians are reprimanded, suspended, or have their licenses revoked routinely for various transgressions. Usually these transgressions are not strictly speaking malpractice suits, as any physician who has this number of malpractice suits will find it impossible or prohibitively expensive to get insurance, and will either change his practice style or find another line of work.

MLO states “Just because someone completed medical training does not make them good doctors.” Agreed. Nobody in any state is allowed to practice medicine just because he has completed medical training. The prospective practicing physician must pass a series of tests, obtaine a license, apply to a hospital staff, and undergo continuous evaluation by his peers, medical board, and the public if he is to continue to practice medicine.

Please accept my apology for posting ideas that contradict the Trial Bar’s talking points, CJD. I now realize that it just isn’t done, at least in polite company. We MDs wouldn’t know the difference between real malpractice and a juicy lawsuit based on emotion, having spent only a decade or so learning our craft and seeing the negative effect that the legal system has on the way we practice medicine. No, only the legal system has standing to determine what reality is.

The difference between medmal and the cases you describe is that in traffic law there are clear cut laws, and there is a literal traffic cop who says that person A broke the law and is responsible for the damages. In medmal, it’s who has the more sympathetic story, who has the smoothest experts, and, ultimately, it’s a crapshoot. Only 20% of medmal trails are won by the plaintiff, so 80% of plaintiffs go home empty-handed and bitter having been initially advised that their case is worth pursuing by their attorney. The few cases that do win, win big, so the attorneys do very well over the long haul, never mind that 80% of their clients get screwed. Do 80% of your traffic clients go home with nothing after you tell them they have a vilid case? I don’t think so.

No, we wouldn’t want to base policy on how it affects the physicians that society depends on to maintain and restore our health. Seeing our colleagues’ careers ended, writing five- and six-figure checks every year to pay our premiums, reacting to stuff like that is irrational. We should blithely go about our business, confident that the Trial Bar would never file suit against us just because we have million dollar insurance policies and they have a pretty girl in a wheelchair. We know that we did the right thing and our care was good, so we have nothing to worry about. Yeah, right.

Um…Nurses and pharmacists in my state are required to have continuing education credits to remain licensed. I would hate to be in a a state where this is not true. And nurses tend to fall into specialization as well.

Nurses do not just go by “whoever is nicest to patients.” Most of the nurses I know would recommend the “a**h**e surgeon” if he has good outcomes. Just because someone is a screaming h*ll**n does not disqualify them from being recommended – but they usually warn you that the person is not that sociable.

Of course, I’m spoiled, I’m in a state with 3 large medical schools, a top veterinary school, and several top research hospitals. There are doctors who repeatedly make the same mistakes – and other doctors know who they are because they clean up those mistakes.

Also, I know a number of attorneys, and well, if you actually go to court, most attorneys would consider that a lose/lose situation. You do not want to end up in court. Unfortunately, the way the insurance companies have set things up, it behooves people not to settle in many cases.

I didn’t go out searching for the study about the same names because, well, I didn’t have time. I did say you had to correct for specialization. There are certain groups of physicians who are taking a much greater risk – OB/GYNs, high-risk surgeons, neo-natal care, etc. , and higher levels of proof should be required. Patient education would help a great deal.

Part of the problem is that the media, physicians, and the public have encouraged the view that modern medicine can fix everything. It can’t. Medicine is an art that uses science and technology as its paintbrush.

There are the everyday artists, the virtuosos, and the bad artists. It would improve things greatly if medical professionals would remind their patients that there are ZERO guarantees in medicine. There is always the fluke circumstance that can create an unintended consequence.

This, obviously, will not stop the ghouls who want to make a buck off of a physician or the ones who are lashing out in pain. But there is a percentage of cases where, when cornered, even physicians admit there was no reason that what happened should have happened and that physician should not be practicing medicine. And, yes, some states are very good at weeding out bad doctors, but, there some states will allow someone to practice under different licensure requirements – or, my favorite, hospitals getting rid of doctors, pharmacists, and nurses quietly so as not to besmirch anyone.

I’m sorry, but the truth is, medicine – like everyone else these days – does not police itself all that well.

Pax.