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Guarding Against Medical Malpractice: Focusing On The Possible Versus The Probable

Some put the figure for defensive medicine at 10% of medical expenses a year.  That’s $250 billion dollars.  Others claim it to be 2-3% per year or about $60 billion dollars a year.

Now ask any physician what it is.  I’d say it’s closer to 30% a year.  That’s $750 billion dollars a year.  Why?  Because I know what is going through the minds of physicians when they put the pen to the paper.  In America, we strive to exclude  the long tail diagnosis.  Why? Because getting sued for 67 million dollars because you treated a torn aorta when all the evidence pointed to an emergent MI has a way of making doctors evaluate the possible, instead of focusing on the probable.

Defensive medicine is not about losing a lawsuit.  It’s about getting sued and the lack of boundaries that protect a physician from having bad outcomes with competent medicine, even if that competent medicine was the wrong medicine for the wrong patient at the wrong time, a fact known only after the fact when a bad outcome occurs.

Getting sued because you failed to diagnose a condition that a doctor paid $500 an hour to get on the stand says you should have is why physicians defend themselves against the probable by spending 30% of America’s health care resources.  Standard of care is a sham process.  The standard is what ever the physician community says it is.  If every physician practices defensive medicine in your community, despite what the medical evidence says is good medicine, the standard is the threshold.

There isn’t a book of answers to clinical medicine.  There is experience and education learned through years of intense education.  There is a certification as competent by the board of the respective physician’s area of specialty.

And yet, none of that is enough to protect the physician from a bad outcome because they missed the possible, while focusing on the probable.  Getting sued because every MI might be a torn aorta is why only those who practice medicine truly know the true cost of their daily actions.

When I order a CT angiogram on a patient with post operative hypoxemia, rapid atrial fibrillation with a new onset right bundle branch block in the setting of  an active and ongoing history of decompensated heart failure with bilateral effusions, is this good medicine to rule out pulmonary embolism or is it defensive medicine. Is a pulmonary embolism possible?  Sure it is.  So is a ruptured ventrcular aneurysm.  So is a large pericardial effusion.  So is ARDS.  So is septic shock.

At what point do physicians stop ordering tests to evaluate the possible, and start treating the probable?  That’s the 2.5 trillion dollar question.  As physicians, our diagnostic process is driven by the differential diagnosis, which is built upon our history and physical findings.  We should order our laboratory and xray studies and need for consultative services based on the most likely cause.  However, ask any physician, and you will find that this is not usually the case.  Rarely will a patient get only what they need to make the diagnosis.  They get far more than is necessary.  You can call it good medicine.  I call it fear.

If I was given complete immunity from failing to diagnose a pulmonary embolism when the data pointed to heart failure, I would not order the CT.  I could make a probable estimation, based on my clincal experience and education that this was not likely a pulmonary embolism.  Could I guarantee it?  Of course not.  I asked a partner of mine if they would order the CT without immunity.  Yes.  Would they order it with immunity.  Same conclusion.

Would I feel bad if I missed a pulmonary embolism?  Of course I would.  Would I consider it negligent?  Of course not.  As a patient living in American medicine, the treatment of failure to diagnose as negligence drives decision making. I know that trying to practice medicine in the possible zone instead of the probable zone will continue to bankrupt our country and make any ability to fund future liabilities impossible.  Until legal protection from failure to diagnose are put into place, nothing will change in resource utilization..  Resource utilization that tries to protect oneself from  67 million dollar lawsuits.

Some choose to believe that defensive medicine is a rather small portion of our cost.  I can tell you the aswer is much greater than 2%.  It’s much greater than 10%.  It is what defines American medicine as unique from all other countries of this world.  And it’s driven by fear of the unknown.

*This blog post was originally published at A Happy Hospitalist*


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Richmond, VA – In an effort to simplify inpatient medical billing, one area hospitalist group has determined that “altered mental status” (ICD-9 780.97) is the most efficient code for use in any patient work up.

“When you enter a hospital, you’re bound to have some kind of mental status change,” said Dr. Fishbinder, co-partner of Area Hospitalists, PLLC. “Whether it’s confusion about where your room is located in relationship to the visitor’s parking structure, frustration with being woken up every hour or two to check your vital signs, or just plain old fatigue from being sick, you are not thinking as clearly as before you were admitted. And that’s all the justification we need to order anything from drug and toxin screens, to blood cultures, brain MRIs, tagged red blood cell nuclear scans, or cardiac Holter monitoring. There really is no limit to what we can pursue with our tests.”

Common causes of mental status changes in the elderly include medicine-induced cognitive side effects, disorientation due to disruption in daily routines, age-related memory impairment, and urinary tract infections.

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Nursing staff at Richmond Medical Hospital report that efforts to inform hospitalists about foul smelling urine have generally fallen on deaf ears. “I have tried to tell the hospitalists about cloudy or bloody urine that I see in patients who are undergoing extensive work ups for mental status changes,” reports nurse Sandy Anderson. “But they insist that ‘all urine smells bad’ and it’s really more of a red herring.”

Another nurse reports that delay in diagnosing urinary tract infections (while patients are scheduled for brain MRIs, nuclear scans, and biopsies) can lead to worsening symptoms which accelerate and expand testing. “Some of my patients are transferred to the ICU during the altered mental status work up,” states nurse Anita Misra. “The doctors seem to be very excited about the additional technology available to them in the intensive care setting. Between the central line placement, arterial blood gasses, and vast array of IV fluid and medication options, urosepsis is really an excellent entré into a whole new level of care.”

“As far as medicine-induced mental status changes are concerned,” added Dr. Fishbinder, “We’ve never seen a single case in the past 10 years. Today’s patients are incredibly resilient and can tolerate mixes of opioids, anti-depressants, anti-histamines, and benzodiazepines without any difficulty. We know this because most patients have been prescribed these cocktails and have been taking them for years.”

Patient family members have expressed gratitude for Dr. Fishbinder’s diagnostic process, and report that they are very pleased that he is doing everything in his power to “get to the bottom” of why their loved one isn’t as sharp as they used to be.

“I thought my mom was acting strange ever since she started taking stronger pain medicine for her arthritis,” says Nelly Hurtong, the daughter of one of Dr. Fishbinder’s inpatients. “But now I see that there are deeper reasons for her ‘altered mental status’ thanks to the brain MRI that showed some mild generalized atrophy.”

Hospital administrators praise Dr. Fishbinder as one of their top physicians. “He will do whatever it takes to figure out the true cause of patients’ cognitive impairments.” Says CEO, Daniel Griffiths. “And not only is that good medicine, it is great for our Press Ganey scores and our bottom line.”

As for the nursing staff, Griffiths offered a less glowing review. “It’s unfortunate that our nurses seem preoccupied with urine testing and medication reconciliation. I think it might be time for us to mandate further training to help them appreciate more of the medical nuances inherent in quality patient care.”

Dr. Fishbinder is in the process of creating a half-day seminar on ‘altered mental status in the inpatient setting,’ offering CME credits to physicians who enroll. Richmond Medical Hospital intends to sponsor Dr. Fishbinder’s course, and franchise it to other hospitals in the state, and ultimately nationally.

***

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