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Tag: Malpractice

“Unaccountable” An Important, Courageous and Deeply Flawed Book

In his new book, Unaccountable: What Hospitals Won’t Tell You and How Transparency Can Revolutionize Health Care, Johns Hopkins surgeon Marty Makary promises a “powerful, no-nonsense, nonpartisan prescription for reforming our broken health care system.” And he partly delivers, with an insider’s and relatively unvarnished view of many of the flaws in modern hospitals. Underlying these problems, he believes, is an utter lack of transparency, the sunshine that could disinfect the stink.

The thesis is important, the honesty is admirable, and the timing seems right. Yet I found the book disappointing, sometimes maddeningly so. My hopes were high, and my letdown was large. If your political leanings are like mine, think Obama and the first debate.

Makary hits the ground running, with the memorable tales of two surgeons he encountered during his training: the charming but utterly incompetent Dr. Westchester (known as HODAD, for “Hands of Death and Destruction”) and the misanthropic “Raptor,” a technical virtuoso who was a horse’s ass. Of course, all the clinicians at their hospital knew which of these doctors they would see if they needed surgery, but none of the patients did. (Of HODAD, Makary writes, “His patients absolutely worshipped him… They had no way of connecting their extended hospitalizations, excessive surgery time, or preventable complications with the bungling, amateurish, borderline malpractice moves we on the staff all witnessed.”)

This is compelling stuff, and through stories like these Makary introduces several themes that echo throughout the book:

1) There are lots of bad apples out there.

2) Patients have no way of knowing who these bad apples are.

3) Clinicians do know, but are too intimidated to speak up.

4) If patients simply had more data, particularly the results of patient safety culture surveys, things would get much better.

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Medical Malpractice – What Obamacare Misses

Medical malpractice in America remains a thorny and contentious issue, made no less so by its virtual exclusion from the Affordable Care Act (ACA, or Obamacare) governing healthcare reform in America.

Which is why I was glad to see the former head of President Obama’s Office of Management and Budget, Peter Orszag, now with the liberal Center for American Progress,  cite it as his second top priority for gaining control of our out-sized medical spending – an implicit criticism of its omission from Obamacare.

Although  speaking in the context of criticizing Rep. Paul Ryan’s (R-WI) plan to offer vouchers so Medicare enrollees could purchase private health insurance, his comments about the need to address malpractice reform are a departure from the liberal talking points on Obamacare. Here’s what he had to say…

Former Obama Budget Head Challenges Paul Ryan To Demonstrate How His Budget Would Lower Health Costs

“Rep. Paul Ryan’s (R-WI) proposals to control health care spending by slashing the federal government’s contribution to Medicare and Medicaid and shifting that spending on to future retirees or the states, has dominated Washington’s conversation about entitlement reform. But…a group of health care economists and former Obama administration officials laid out an alternative approach that could achieve health savings by encouraging providers to deliver care more efficiently…

“‘Mr. Ryan has had too much running room to go out with proposals that neither will reduce overall health care costs nor will help individual beneficiaries simply because there has not been enough of an alternative put forward by those who believe that we really need to focus on the incentives and information for providers…If I had to pick out two or three things to do immediately, I would pick the accelerated (trend) towards bundled payments and non fee-for-service payment…

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It Doesn’t Have to Be This Way …

I was struck by the recent story in the New York Times about a young boy who was misdiagnosed, and lost his life.

The boy, Rory Staunton, was a healthy, active 12-year old, until one day he ended up in the middle of our time-strapped, broken healthcare system.  He was treated by good, well-intentioned doctors, at a leading medical center, but something went terribly wrong.  What started out as a minor cut suffered in a basketball game turned into a major infection that took his life.

Yet nowhere along Rory’s journey, from boy with a bellyache on Thursday to gravely ill boy on Friday night, did anyone act on strong indications that he might be fighting for his life. Critical information gathered by his family doctor and during his first visit to NYU Langone was not used, was not at hand or was not viewed as important when decisions were made about his care, records show.

Story’s like Rory’s happen far too often, and in far too familiar ways.  Scientific studies show that patients are misdiagnosed between 15% and 44% of the time.  Researchers have found that the combination of fragmented medical information and not enough time between doctor and patient are the leading causes of this problem.  And yet, much of America is still unaware how often misdiagnosis happens.  Lost in all the politics of healthcare is a recognition that, at its core, healthcare must be about making sure each and every patient gets the right care.

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Clinical Practice Guidelines as “Safe Harbors” against Malpractice Claims

Health care costs too much in the United States. One key problem is gold-plating of services driven by physicians’ fears of lawsuit for failure to do everything possible for patients. A notable example of such overutilization is increasingly routine ordering of advanced imaging or other tests. Reliable, evidence-based clinical guidelines promise to address low-value utilization by authoritatively stating standards of good care in advance.

Some thought leaders among Democrats seek to use guidelines to side step the routinized political battles over malpractice reform. Republicans have been saying that defensiveness and other problems justify caps and other limits on medical liability. Belittling defensiveness as a problem, Democrats have defended and promoted liability as an incentive for good care.

Defensiveness is a problem, acknowledge proponents of guidelines to reform liability. But it can be fixed simply by legislating that adherence to reliable guidelines constitutes a “safe harbor” against lawsuits for failure to do more. Safe harbors would remove the motivation for defensiveness and also any need to accept Republicans’ caps and other limits. Given the political stalemate in Washington, the idea is worth thinking through.

Good guidelines are a good idea, especially to improve quality of care, which is their main policy driver. And, because guidelines hold promise for cutting wasteful defensiveness, they have superficial appeal as a liability reform. However, practical feasibility limits the reach of safe harbors, as explained in a recent policy brief from The Urban Institute for the Robert Wood Johnson Foundation.

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You Want to Sue Me?

“I’d be lookin’ to sue you.”

I’m sorry, what?? That is what I heard from the mother of one of my patients. I was evaluating a high school athlete who had recurrent stingers (nerve injury that affects an upper limb, usually resolves with time) and a possible episode of transient quadriparesis (affecting all limbs this time). I wasn’t on the sidelines for these injuries, so I had to go on the reports given to me by the athlete and the school’s athletic trainer. However, with that information, I did not want to clear this player to return to football until I could be certain he didn’t have any cervical stenosis or any other abnormality that might put him at risk for permanent damage if he suffered another neck injury.

I told the athlete and his mother that I needed to get an MRI of his cervical spine (neck) in order to determine this. The athlete was understandably upset with my decision, but his mother supported my decision to proceed with caution. She explained to me that if her son played again, sustained another injury, and something “bad” happened, she would be more than happy to take legal action against me. Fantastic.

First of all, I can’t say that I would blame her for being angry (at the very least) if I screwed up. But to tell me in my office, to my face, that she’s already thinking about suing me? I found that ridiculous. I must be in the minority, however. If you Google “how to sue a doctor,” an abundance of information follows. There’s an “ehow” on the subject, and even CNN offers an opinion.

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Offensive Fouls and Defensive Medicine

LeBron James exploded past his defender and raced towards the lane.

Serge Ibaka, the Thunder’s mountainous center, planted his feet and raised his hands straight up into the air.  LeBron ducked his left shoulder and plowed right into Ibaka, who went crashing backwards into a nearby cameraman.

Offensive foul?

Maybe if it had been the first quarter.  But given that this was the last minutes of a tightly fought game, the referees chose to restrain themselves, not wanting the game to turn on their actions.  Was this even controversial?  Not a bit.  In such situations, announcers typically applaud the non-call, intoning platitudes like “this game should be decided by the players.”

In their excellent book Scorecasting, Tobias Moskowitz and L. Jon Woertheim explore the psychology of sports through exhaustive and yet entertaining analyses of all kinds of topics that have fueled many a heated bar stool argument.

Are referees biased against your favorite team?  According to their analyses, they are biased against your team only if it is playing an away game.  Turns out that their unconscious desires to please fans cause referees and umpires to back away from controversial calls that will raise the crowd’s ire.

One of the most fascinating chapters in the book involves what the authors call “whistle swallowing.”  All else equal, referees and umpires avoid sins of commission over sins of omission, a preference for inactivity nicely summarized by veteran NBA referee Gary Benson: “It’s late in the game and, let’s say, there’s goal tending and you miss it.  That’s an incorrect non-call and that’s bad.  But let’s say it’s late in the game and you call goal tending on a play and the re-play shows it was an incorrect call.  That’s when you’re in a really deep mess.”Continue reading…

The Michael Jackson Verdict

It has been over two years and the tragedy of Michael Jackson’s death has finally been laid to rest. The verdict of accidental manslaughter highlights how dangerous medications of any kind can be. A couple of years ago I wrote about the events surrounding Michael Jackson’s death and tried to look at why Dr. Conrad Murray was being tried for manslaughter rather than some other charge like murder. I also took a look at what happened and how.

Now that the verdict is in, it looks like Dylan Schaffer was right and the verdict does match what we knew publicly. There are a great many lessons that can be learned from the whole saga, but the biggest one is that people really need to try to understand what the medications prescribed for them do, why they should and should not take them and most importantly, really know what the right dosages are. And please do not be fooled by the fact that the drug in question is a rare and powerful one that requires prescription and careful administration.

It is all too easy to die from taking simple over the counter medications in the wrong amounts and at the wrong time. And mixing and matching medications and other substances makes things worse. Probably the easiest way to get yourself in trouble with medications is something like getting a headache and the flu, taking a heavy dose of paracetamol, then a couple of stiff drinks and a big slug of something like Nyquil. Suddenly you are getting awfully close to liver damage or death.

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No Better Care, Thanks to Tort Reform

In 2006, Dr. Howard Marcus wrote that Texas’ 2003 tort reform statute sparked an “amazing turnaround” in which doctors came to Texas in droves, instead of leaving the state as they had before. He was doubly wrong. Texas neither lost doctors before 2003 nor gained them especially quickly in subsequent years. In fact, according to statistics published by the Texas Department of State Health Services (TDSHS), the supply of active, direct patient care (DPC) doctors per capita grew faster from 1996 to 2002 than at any time after 2003. If the pre-reform growth rate had simply continued, Texas would have seven more DPC doctors per 100,000 residents than it does today.

Not only did pre-reform Texas outpace post-reform Texas; in the post-reform period Texas fell farther behind the average U.S. state. In 2002, Texas had 61 fewer DPC physicians per 100,000 residents than the average state. In 2010, Texas lagged the average state by a whopping 76.5 doctors per 100,000 residents, according to data published by the American Medical Association (AMA). Texas’ downward slide is also accelerating, meaning that Texas is falling behind the average state both farther and faster each year.

These statistics are public and well known. They can be found at TDSHS’s website and in a report Public Citizen published earlier this year. In view of this, it is shameful that Marcus, his colleagues at the Texas Alliance for Patient Access and Republican politicians continue to mislead. They are blatantly exploiting the ignorance of people who have better things to do than read up on the number of doctors in the State.

Marcus and his accomplices know about TDSHS’s numbers but have ignored them in all prior public statements I’ve found. They want to give glowing reports, so they focus on the number of new licenses granted by the Texas Medical Board (TMB) instead. TMB’s count of new licenses is misleading, however, because it ignores the number of doctors who leave the state, retire, die or stop seeing patients for other reasons. Suppose 100 calves were born into a herd of cattle that also lost 250 adult animals because of the heat and drought. The rancher who owned the herd would say he was down 150 head. Marcus and his buddies would say the herd grew by 100.

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Why This Lawyer Won’t Sue Me

I spent the entire last weekend with an attorney, not a desirable circumstance for most physicians. However, I wasn’t being deposed or interrogated on cross examination. This was a rendezvous that we both sought with enthusiasm.

Lewis is my closest friend, a bond that was forged since we were eight years old. We are separated now only by geography, and we meet periodically because we both treasure the friendship. Earlier this year we rolled the dice in Vegas. Last weekend, we sweated in the sweltering heat of the Mile High City. Next stop? Back to Denver with a few youngins’!

Lewis is the managing partner in a prominent west coast law firm that specializes in tax evasion. (Or is it tax avoidance? Am I confusing my terms here, Lew?) He has been redrafted to this position because he has earned the respect of his colleagues. Clearly, both Lewis and I have ascended to the highest strata of our professions. Lewis is in charge of a large law firm that has global reach; he travels all over the world cultivating business and negotiating deals; and he navigates clients through complex and labyrinthine legal conundrums. I, an esteemed community gastroenterologist, perform daily rectal examinations and counsel patients on flatulence.

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Myths about Medical Malpractice: Part 2 Crisis or Hoax?

Conservatives call it the “malpractice crisis.” Public Citizen, a liberal non-profit consumer organization based in Washington D.C., calls it “The Great Medical Malpractice Hoax.”

No doubt you have read that ambulance-chasing lawyers have escalated their assault on health care providers, and that as a result, malpractice insurance premiums have been levitating, along with malpractice suits, further hiking the cost of medical care.

Various solutions have been floated, including “caps” on compensation for pain and suffering; “health courts” where expert judges replace juries; immunity for doctors who follow “best practice guidelines;” and “full disclosure” policies which urge doctors and hospitals to move quickly to disclose errors, apologize, and offer compensation.

In the end, the best solutions would make malpractice reform part of heath care reform. Our malpractice system should be redesigned to reduce medical mistakes, fully compensate patients who are injured by human error, reward doctors and hospitals that disclose errors, and penalize those that try to “cover up.” When it comes to the cost of malpractice, reform should slash the exorbitant administrative costs built into an adversarial process that moves at a snail’s pace, while subjecting both plaintiffs and defendants to what a recent report from the American Enterprise Institute rightly describes as “inhumane.”

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