Tuesday, July 27, 2004


First of all, I'm sure I'm not the only one who found it ironic that Jimmy Carter talked about serving for two Presidents of different parties who fulfilled their military obligations with honor, leading us into President Clinton's speech...

Update:  I'm not:  http://althouse.blogspot.com/2004_07_01_althouse_archive.html#109089036379570221

Second, when Senator Clinton said "I know a thing or two about health care," I could see one thing clearly: that between Senator Clinton's "knowledge" about health care and Senator Edwards' "knowledge" about it, what the Democrats are offering to DOCTORS (you know, the drones who actually, um, PROVIDE HEALTH CARE) is intimate knowledge of how to undermine, destroy, and otherwise dismantle Physicians - and somehow they want us to believe that is going to make the health care system better.


Tuesday, July 13, 2004

Moral Dilemmas

I recently evaluated an elderly woman who was brought in by her home care attendant. The attendant had noted small amounts of vaginal bleeding, obviously abnormal in a woman in this age group. I think that most gynecologists would agree that an endometrial biopsy figures into the diagnosis of this problem, as there is a non-trivial likelihood of neoplasm (ie cancers or other tumors) being the responsible agent.

The problem is that this particular woman suffers from dementia, and couldn't understand the risks, benefits, and alternatives to the proposed treatment (the biopsy), which, despite its relative ease and benign nature (low risk of complications, quick and often easy to obtain, minimal to moderate discomfort for a very short duration, can be done in the office, etc.), is from a legal standpoint, surgical. Fundamentally, as simple as it can be, technically, it's surgical removal of a (small) piece of her body.

And thus, from a moral and legal standpoint, we need either her consent, or in the event that she cannot give it (if she lacks decision-making capacity), consent from someone who is LEGALLY, and we assume morally, entitled to make those decisions for her. A proxy.

In this case, that consent was easy to obtain, from the patient's daughter, and this consent was documented in the medical record just in case John Edwards and company later have a reason to review it. But what about cases where it isn't easy?

Send the patient home until consent can be obtained, even though she might have a growing cancer that ought to be diagnosed? Do the biopsy anyway, without anyone's consent (this meets the legal definition of "battery," by the way). If I send her home, and she doesn't followup, and develops advanced cancer, I can be held liable for MY failure to find her!

In an emergency, two attending physicians can sign that a procedure is medically necessary, overriding the need to first obtain informed consent. But what exactly is an "emergency?" Probably the possibility of having cancer doesn't qualify.

The health care system, and the liability system, as they are currently structured, put the doctor in a tough position in hypothetical cases like this one. Essentially, the medical and ethical reasons to perform the right diagnostic test are outweighed by the moral imperative not to do surgery on someone without their (or their proxy's) consent. From a medical and ethical standpoint, then, it may be relatively clear that not doing the biopsy is the right thing. The doctor then has accepted some degree of moral burden for hunting down this patient until she comes back with consent - now I'm on the hook for whatever happens to her, just because she came in and couldn't give consent for treatment - or until it is clear to her proxy that she is entitled not to have the proposed treatment, and that they accept the responsibility for this (see "It's Personal Responsibility, Stupid!" below).

But the legal liability isn't so clearly distributed, because as above, if she doesn't followup and gets cancer, negligence can be imputed. And while you might remember to chase down one particular patient, seeing 10-40 patients per day, five days a week, inevitably something won't get followed up correctly.

We spend big $$$ on receptionists and schedulers whose sole job is to chase these patients down and get them back in. When we can't find them, we send them certified mail and telegrams to be able to prove we have tried to get them in, so we can show the attorneys. In the clinic, the schedulers are (appropriately) told not to tell the patients the nature of the abnormal results that require them to come in (privacy regulations), so instead they just are basically scared into returning.

That's not an ideally humanitarian way to take care of people. And that's also a lot money that isn't getting spent on medicine. It's all thrown into the liability protection system. What a pity.

Thursday, July 08, 2004

It's Personal Responsibility, Stupid!

Recently, a young woman had some abdominal pain and went to the emergency room. They called me because she was pregnant (supposedly 9 weeks) but her hormone level and ultrasound did not conclusively demonstrate a viable intrauterine pregnancy (a small sac was seen in the uterus, but not consistent with a 9 week gestation), raising the possibility that she had a potentially dangerous ectopic pregnancy.

Even though her pain was mild and transient, and she wanted to go home, she and her family had inadvertently walked themselves into a small problem. You see, if "we" (me, the ER doctor, the Hospital, Anyone With a Deep Pocket Who Happened To Be Standing Nearby Or In the Same Legal Jurisdiction, right Senator Edwards?) let her go home, and she did end up having an ectopic pregnancy, and she had a complication from it, retroactively many, if not most people would conclude we did the wrong thing in letting her leave, even if it had been a reasonable choice at the time. Most laypeople, regardless of IQ, just aren't used to thinking about situations like that retrospectively, and it would be hard to persuade them that given the facts at the time, it was reasonable to discharge this patient. Certainly, no malpractice litigator who wants to win a case would want a jury to have a clear understanding of how looking prospectively and retrospectively at this problem could lead to different choices, and it's painfully easy for them to point to the complication and say "all of this could have been prevented IF ONLY the negligent doctors, hospital, etc., had kept this woman in the Emergency Room." (Of course, they don't have to explain that it is impossible to keep every person under 24-hour medical surveillance for an indefinitely long period of time just because something might happen to them in the future.)

But doctors and hospitals have become smarter about that, haven't we? We don't just send people out the door anymore, even if we explain to them the risks they are taking by not staying (indefinitely). So in the case of this woman I advised her to stay in the Emergency Room (indefinitely) until we could be "sure" that she was ok.

Her pain was gone. Her tests could be interpreted in several ways (ectopic, early normal pregnancy, or miscarriage at 9 weeks), some of which are dangerous, some of which are not. But even though she felt fine at this point, and probably wasn't in danger, we were not just going to let her go home. Going home became her problem.

And the underlying message we're sending to her is, "We don't want to accept responsibility for what happens to you if you go home, so we advise you to stay here."

And there is an answer, a solution for her, but I have yet to see a single patient figure it out for themselves. The answer is to say, "Fine. I absolve you of any responsibility for what happens to me if I choose to go home, recognizing that we have an incomplete ability to predict what might happen to me."

Maybe the words are sophisticated, they way I write them, but the idea really isn't. Take responsibility for your actions. (I choose to go home, now that the MD's have explained to me the risks, benefits, and alternatives to staying or going, and therefore, I am responsible for what happens to me, provided the doctors have given me medically accurate advice.)

But patients generally don't say this. And probably don't believe it. (I expect most people would rather believe that their misfortunes can be blamed on other people who have failed to do their jobs correctly than believe that their bad luck is partially or completely their fault.)

Fortunately for doctors, hospitals, and fundamentally, for patients who would otherwise become prisoners of a health care system that refused to release them out of the fear of litigation risk, there is a mechanism for achieving this contract of personal responsibility.

The patient signs herself out of the hospital "Against Medical Advice." We advise her to stay (indefinitely), she signs saying she wants to go home, even though we've told her her life is at risk.

It's a poor solution, also it's probably easy to impeach in court, but it isn't worthless. And it formalizes the process of having a patient take responsibility for their choice. So doctors don't have to have infinite, limitless responsibility for the slings and arrows of outrageous fortune.

Tuesday, July 06, 2004

God Bless America, and God Help Us If Edwards Gets Into the White House

From an article at CNSNews.com, citing the Boston Globe's 2003 profile of Senator Edwards:

"The Globe cited an example of Edwards' oratorical skills from a medical malpractice trial in 1985. Edwards had alleged that a doctor and a hospital had been responsible for the cerebral palsy afflicting then-five-year-old Jennifer Campbell.

'I have to tell you right now -- I didn't plan to talk about this -- right now I feel her (Jennifer), I feel her presence,' Edwards told the jury according to court records. "[Jennifer's] inside me and she's talking to you ... And this is what she says to you. She says, 'I don't ask for your pity. What I ask for is your strength. And I don't ask for your sympathy, but I do ask for your courage.'"

Add: 7/6/04; 1240 pm:

Don't miss Kate O'Beirne at the NRO, with a recap of a NY Times article about Edwards' spiel from one of his malpractice cases:


Referencing the hour-by-hour monitor readings, Edwards told the jury, "She said at 3, 'I'm fine.' She said at 4, 'I'm having a little trouble, but I'm doing O.K.'...At 5:30, she said, 'I need out.'" His closer: "She speaks to you through me...I feel her presence. She's inside me, and she's talking to you." Edwards's clients won a $6.5 million verdict in that cerebral-palsy case and Edwards went on to win over $60 million in about 20 similar lawsuits over allegedly botched deliveries against doctors and hospitals. His share of the verdicts was typically about a third.

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