September 28th, 2009 by Happy Hospitalist in Better Health Network, Opinion
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I have blogged extensively about why standard of care is an irresponsible measure of the threshold for determining negligence in medical care. Most recently, I blogged about it
here and
here. Imagine for a moment what capitalism would be like if your investment adviser was sued every time your investment value went down. Imagine what life would be like if they risked civil liability every time a bad outcome occurred. What if no laws were broken? What if an after the fact determination of negligence was based on a bad outcome?
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*This blog post was originally published at A Happy Hospitalist*
September 28th, 2009 by Shadowfax in Better Health Network, Health Policy, Opinion
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A thoughtful and (dare I say it) balanced look at medical malpractice in today’s NYT:
Malpractice System Breeds More Waste in Medicine – NYTimes.com
The debate over medical malpractice can often seem theological. On one side are those conservatives and doctors who have no doubt that frivolous lawsuits and Democratic politicians beholden to trial lawyers are the reasons American health care is so expensive. On the other side are those liberals who see malpractice reform as another Republican conspiracy to shift attention from the real problem. […]
The direct costs of malpractice lawsuits — jury awards, settlements and the like — are such a minuscule part of health spending that they barely merit discussion, economists say. But that doesn’t mean the malpractice system is working.
The fear of lawsuits among doctors does seem to lead to a noticeable amount of wasteful treatment. Amitabh Chandra — a Harvard economist whose research is cited by both the American Medical Association and the trial lawyers’ association — says $60 billion a year, or about 3 percent of overall medical spending, is a reasonable upper-end estimate. If a new policy could eliminate close to that much waste without causing other problems, it would be a no-brainer.
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*This blog post was originally published at Movin' Meat*
September 22nd, 2009 by Happy Hospitalist in Better Health Network, Opinion
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What’s wrong with using standard of care as the threshold of medical negligence? I walked you through a case, point by point, as to how the failure to diagnose cannot be considered negligence and why the process of the differential diagnosis must be protected from the fear based legal system we operate in.
When the differential diagnosis became a legal driven process, we physicians lost our ability to offer cost effective, clinical driven medicine. We became front seat drivers in the world’s largest Ponzi scheme known as the Medicare National Bank. A
99 trillion dollar black hole of defensive medicine.
What is it about the threshold of standard of care that makes it irrational? Why is that the standard for negligence? And what exactly is it? In six years of clinical hospitalist practice, three years of residency and four years of medical school, I have never taken a lecture, never seen a presentation, and never read a book about the mystical standard of care. In fact, I find myself grasping to comprehend exactly how to define its very existence.
The great legal resource,
Wikipedia, defines standard of care as
The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact, and is usually phrased in terms of the reasonable person. It was famously described in Vaughn v. Menlove (1837) as whether the individual “proceed[ed] with such reasonable caution as a prudent man would have exercised under such circumstances.”
It goes on to define that reasonable caution as the
Bolam Test
Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals (eg doctors): the “Bolam test”. Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion.
I see a problem with what the standard has become. If everyone in my community orders a head CT for drunks with altered mental status, that represents an action by a responsible body of opinion. Does it mean it’s the right opinion? It does not. When the body of opinion has been contaminated by a persistent and progress fear of litigation, the standard defies the evidence, and itself creates irrational bars of achievement that can never be sustained. The responsible body has itself become irresponsible.
If we are to be a science driven profession, we must be allowed to maintain our integrity, without the fear of legal retribution for failing to uphold the irresponsible responsible body of opinion. Our standards are no longer based on science. When everyone orders the CT scan in drunks with altered mental status, the standard itself has become unreasonable.
Yet the marked deviation of the standard of care from the science of care marches on.
I have argued that standard of care is a local phenomenon. It is what ever the local community of professionals says it is, as they are the responsible body of opinion. The standard for evaluating a pulmonary embolism in downtown Chicago is not the same as the standard in rural New Mexico as it is in the jungles of Africa.
A lawyer previously responded that the local community should not set the standard. They argued that the standard should be a national, or perhaps an international evidence based standard. If science is science, there is no reason to believe that evaluating a pulmonary embolism in the United States should be any different than it is in the jungles of Africa. The most important factor in medical decision making if often not the science but the way the science is practiced on a local level.
The
standard of care in
McAllen, Texas is not necessarily the same as the standard of care at the Mayo Clinic. Is the cost difference legally driven or is it money driven at the local level? I suspect the contribution from both is enormous. Some argue that we should practice as Mayo practices. Mayo may be cheaper, but it isn’t cheap. I would argue that even under their payment model as a large salaried multispecialty organization with economies of scale, the ability to practice defensive medicine still thrives. Who says what costs $8,000 in McAllen but costs $5,000 at Mayo couldn’t be done for $2,000 if the victory against defensive medicine was won? I suspect it could, if physicians weren’t held to irrational standards by the unreasonable
reasonable body of opinion.
If the standard in McAllen is to do a heart catheterization on everyone with chest pain, that is what the community has decided. If the standard of care at Mayo is to do a cardiac stress test, that is the standard at Mayo. If the standard in the African jungles is to do a history and physical, that is the standard in the African jungle? What is the right standard?
The right standard is the one that doesn’t get you sued.
Now, are all three standards of care based on science? No. They are based on what the community of physicians has decided should be done. There will always be a large disconnect between evidence based medicine and clinical medicine. It is not reasonable to do a CT scan to evaluate a pulmonary embolism in the jungles of Africa if that is not the standard, even if the evidence suggests otherwise. Clinical factors should always drive the medical decision making.
Some have argued the standard of care should be founded in evidence based guidelines and not local practice expectations from responsible bodies of opinion. Rarely are guidelines clinically relevant in the hundreds of decision trees physicians make every day in their diagnostic processes. Guidelines are based on studies with limited populations of patients whose neatly defined age groups have packaged disease processes. The realities of clinical medicine make many guidelines unworkable and unreasonable.
My post here is an example of the limited value of guidelines in the differential diagnostic process. Not only are the guidelines often not relevant, they are often contaminated by medical societies and other big businesses with a money driven agenda and stealth conflicts of interest.We must also remember that most guidelines are not based on science but rather based on
expert opinion. All physicians are experts in their scope of practice and their opinions should therefore carry the same weight as the opinions expressed on academic based guidelines. Those that believe national standards should exist to drive standard of care practices across the vast clinical spectrum lack an understanding of what it means to be a physician.
Some lawyers wish to believe that having X, Y, and Z data points means doing A, B and C. Some wish to believe that failure to do so represents negligence as a responsible body of opinion would have done so.
I have never been introduced to this responsible body of opinion. I have no way of speaking for their recommendations. We have local culture driving decision making. We have limited national guidelines often corrupted by external influences. We have a legal system, who’s negligence is based on responsible bodies of opinion, opinions which have been established by fear driven medicine.
So what exactly does it all mean? When I order a lab or a test or a procedure or an x-ray to make my clinical decision making, I don’t sit there and think to myself, “What is the standard of care?”
I think to myself, “What is my expected action or reaction from doing this? What am I trying to accomplish?” I have never been introduced to this elusive responsible body of opinion. I have never been invited to a luncheon. This responsible body has never asked me out for a drink. I have never gone on a date with this body. I have navigated through ten years of clinical medicine and I have never once been formally introduced to this all knowing body of opinion.
By establishing the threshold of negligence as a vague responsible body of opinion, a concept which few physicians have studied, few physicians can quantify and few physicians trust, we have built exactly what the medical-legal-industrial complex has prepared for us: A high volume, high supply, high demand, high cost fear driven reality that we all pay for with out of control health care inflation.
If you think Mayo care is cheap, the time has come to consider that even the highest quality, lowest cost centers in this country could reduce their utilization of health care resources by 1/3, 1/2 or more if the fear of civil retribution for failure to diagnose was taken off the shoulders of passionate and devoted physicians from all fields of training and they were allowed the freedom to employ their differential diagnosis skills in a manner consistent with scientific inquiry and not a legal driven fear.
The longer we deny the fear, the quicker the end will be here.
*This blog post was originally published at A Happy Hospitalist*
July 12th, 2009 by Happy Hospitalist in Better Health Network, Expert Interviews
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I discussed my thoughts on risk and how all physicians theoretically carry the same risk, not because one field has more bad outcomes than another (which they obviously do) but because all physicians are trained to be experts in their field of training. This expert training should theoretically create no difference in risk between different subspecialties, as long as all physicians practice within their scope of practice.
In a follow up post, I discussed my experience with discharging patients from the emergency department and how this increased my risk exposure not because the science of the discharge is wrong, but rather because the perception of negligence is greater. I discussed the irrational standards of care that have been created out of a legal necessity to avoid litigation at all costs. An irrational standard that creates exponentially infinite costs that are bankrupting this country with little to no benefit to society as a whole. By expecting perfection on an individual basis, an expectation that will never be achieved, we are risking the implosion of affordable care for all. This is physician driven. Driven out of a fear of bad outcomes, which sets irrational standards, which creates negligence when those impossible standards cannot be achieved.
And a reader hit the nail on the head with this comment. I couldn’t have said it any better.
as a hospitalist, you are at the bottom of the funnel in the risk cascade.
If you continue to send pts home from the ER, by numbers alone, somebody is going to have a bad outcome and it’s all going to fall on you.
If you are willing to accept this, more power to you.
Problem X- undifferentiated, high risk, broad ddx type problem.
ie chest pain, dyspnea,abdominal pain,fever,headache, etc.
PMD busy in office, doesn’t want to deal with it.
sends pt to ER for “work-up”
-if something goes awry, “I knew he was sick, so I sent him to the ER”.
Then:
ER gets pt, checks a “pan-panel” and multiple imaging studies.
If anything turns up–admit to hospitalist.
If negative-“I don’t know what’s wrong, better admit.”
Hospitalist is now last one standing; if send pt home and adverse outcome= “Doc HH, you mean two physicians thought this pt was too sick to be at home, yet you sent them home?”
Safe move is to always admit–as you say, if adverse outcome in house, doesn’t seem as bad.
Now, you have a three way risk pie–and any specialists that were called to consult.
Not great medicine, but the risks are too high to hold it all by yourself
I can’t tell you how true this is. This is the basis of establishing irrational standards of care. The last bolded section says it all. You the patient, have become the legal hot potato in your journey through your illness. The rational being, if you put the responsibility of certain aspects of care on someone else, it is that someone else who will ultimately be responsible should a bad outcome occur.
The lawyers want you to believe this doesn’t exist. I can tell you categorically, 100%, without a doubt that patients are treated like hot potatoes, in one way or another, with just about every encounter they experience in American medicine.
I have a really hard time playing that game when I have experience and science on my side. At some point, physicians need to be held accountable for the irrational standards they have implemented out of fear and establish standards based on most likely plausible explanations, not the least likely explanation. Until we can do that for our profession, we are a big part of the problem for the financing of this country’s health care needs.
*This blog post was originally published at A Happy Hospitalist*
July 1st, 2009 by SteveSimmonsMD in Better Health Network, Primary Care Wednesdays
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When my six-year-old daughter heard that I was going to write about President Obama’s speech to the American Medical Association in Chicago, she offered me this insight: “He’s not a doctor! He isn’t supposed to tell people what to do when they’re sick; he’s supposed to rule the world.” Yet, regrettably, doctors do need his help and it was with great interest that on June 15, the medical community listened.
I suspect that my colleagues in Chicago are the only crowd to boo the President during a speech since his election, and I think that much can be learned by examining why this occurred. Just moments before being booed, Obama received raucous applause when he acknowledged, “that some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That’s a real issue.” Physicians in the audience then booed the next line, “I’m not advocating caps on malpractice awards which I believe can be unfair to people who’ve been wrongfully harmed.” The President went on to offer a plan to help physicians avoid practicing expensive defensive medicine. “We need to explore a range of ideas about how to put patient safety first, let doctor’s focus on practicing medicine, and encourage broader use of evidence based guidelines.”
I do not object to President Obama’s sincere and well delivered remarks to the AMA, but found some of them to contain trite platitudes. Encouraging physicians to “put patient safety first, focus on practicing medicine and follow evidence-based guidelines” is like asking airline pilots to pay attention to safety gauges, fly their planes, and respect passengers. I found the admonition to follow evidence-based guidelines as a means to avoid medical malpractice claims a particularly naïve statement. I’m not arguing against using guidelines, I just don’t see how guidelines will protect me from a lawsuit any more than the currently used standard-of-care.
I share the President’s opinion that any individual should have the option of remediation through the court system when wronged but large, punitive settlements change the way hospitals and physicians practice medicine and have resulted in an untold number of unnecessary surgeries as well as causing the actual death of many who never had their day in court. Unreasonably large medical malpractice settlements often have consequences that reach far beyond the parties involved in the original suit. Follow the relationship between cerebral palsy and C-sections and you will understand my assertion. In 1985, then trial lawyer John Edwards won a settlement of 6.5 million dollars against a hospital and 1.5 million dollars from an OB/GYN doctor arguing that if a C-section had only been done for an unfortunate child she would have been born without cerebral palsy. This case set off a chain reaction of suits throughout the country, leading obstetricians to practice defensive c-sections. The United States currently has the highest rate of C-sections in the world, the most expensive obstetrical costs per birth, and when measuring infant mortality ranks 42nd out of 43 industrialized nations.
In 1970, six percent of births in the U.S. were done by C-section; today that number has risen to over 30% while the WHO recommended, in 2006, that the actual rate should be no higher than 15%. Yet, the last four decades have seen the cerebral palsy birth rates remain close to 2 per 1000 live births in the U.S. without change. Considering that women are 4 times more likely to die during a C section than during a vaginal birth it becomes a simple and tragic mathematical exercise. Consider that in Scandinavia the maternal death rate is 3 per 100,000 births while 13 mothers die per 100,000 births in the United States; unless you’re African American–then you count an appalling 34 dead for every 100,000 births. Furthermore, once you have had a C-section there is a very good chance that all future births will be done the same way with an increased rate of hysterectomies, post-operative infections, blood clots, drug reactions, etc.
On the other hand, tort reform has resulted in major shifts in the physician workforce. In 2003 Texas put a cap of a quarter million dollars on malpractice settlements for pain and suffering but did not place a limit on the actual economic loss suffered by a plaintiff. The limit for a wrongful death case was set at 1.6 million dollars. Since 2003 Texas has seen 18% more doctors filing for new medical licenses per year (30% in 2007) and by the end of 2007 there was a 6 month backlog for the medical board to begin processing new license requests. The increased number of physicians has helped to improve access to care. Medical malpractice reform is necessary to avoid the kind of collective defensive behaviors that, ironically, may not be in the best interests of patients.
In my next few posts, I plan to discuss various aspects of our broken healthcare system. It is imperative that we understand all of these problems to avoid making things worse. This will require a probing and honest evaluation of what is wrong today. I also intend to discuss the President’s plans for reform and while I don’t agree with all of his plans, he has put forth many ideas that I do agree with. The time for reform is here, action appears inevitable, and the moment to speak out is now.
Until next week, I remain yours in primary care,
Steve Simmons, MD
