Litigation in Healthcare – The Two Sides to the Pond

I like Dr Crippen’s blog and enjoy reading his posts and commentary. He typifies the long suffering British doctor in many respects. He rails into waste as in this post on the ridiculous expenditure by Essex health commissars (!!) insisting on spending who knows how much on educating the population that they should eat more fruit and nuts. As Dr Crippen says:

..most of all, it is a waste of money. The hospital is on fire, burning to the ground. Why is no one doing anything? Where are the fire-fighters? They are in the local school lecturing children on the dangers of matches

But in this recent post: Paranoid Doctors he is distraught that in the US attorney’s advertise their services and offer a “No recovery, No Fee” option. As he puts it

So I can stop my medication. And thank God we don’t live in America

Yes and no…… as one of the comments on his post put it:

How would you respond to a patient whose GP had been giving him Steroid eye drops on repeat prescription for 11 years without reviewing him and who was not under the care of an Ophthalmologist, who now has bilateral steroid induced glaucoma and steroid induced cataracts?

I bet you dollars to donuts that this is a real case not just a hypothetical and therein lies the challenge. While there is abuse (as there is in any system) the idea that making it so costly and difficult provides good protection for the patient is wrong. A very good friend of mine was treated for a complex fracture of radius and ulna at some local hospital. The gung ho orthopedic surgeon decided he was up the task of treating this set of fractures and left him with permanent disability and finished his tennis career. No amount of money will ever make up for that but without accountability that surgeon would continue his treatment of other patient instead of referring them to a specialist. This all the more worrying since it occurred in the NHS a system that does not reward by number of patients/procedures carried out

For a more detailed look at the state of medical litigation this piece by Atul Gawande in the New Yorker – The Malpractice Mess provides more detail and an interesting slant on the topic. The case under review was for medical malpractice from nine years ago but what makes this more interesting is the lawyer for the patient Barry Lang was an orthopedic surgeon for 23 years. He had even been an expert witness on behalf of other surgeons defending their treatment in court. He certainly did not do it for the money and ended up in his new career because as he described:

because he thought he’d be good at it, because he thought he could help people, and because, after twenty-three years in medicine, he was burning out

Part of his original intent was to be a defensive lawyer for his colleagues but nobody would hire him as he had no experience. But as he advertised his expertise as the “Law Doctor” he managed to carve out a business working on behalf of patients. He does not take every case and in fact takes only a small percentage of the cases that comes his way. For him there are two basic requirements

1. You need the doctor to be negligent
2. You need the doctor to have caused damage

Most fail on both but when they don’t he spends time investigating and applying his years of clinical practice and experience to understanding the case to determine if there is malpractice. Many factors contribute but he takes the risk on a case since his payment is dependent on a successful outcome. There is much to dislike about a system of accountability that can reward inappropriately but accountability and review is an essential part of any high quality system.

Somewhere in this mess there has to be a better balance and approach. Malpractice is not bad – it is the abuse of Malpractice that is bad. Consider the MGH physician Bill Franklin who’s son’s developed a lung tumor that had been identified on a Chest X-Ray 4 years previously but never followed up and acted upon. His attempt to understand the reason for the failure to prevent the occurrence happening again to some other patient were met with

The (hospital) director told him that he couldn’t talk to him about the matter. He should get a lawyer, he said. Was there no other way, Franklin wanted to know. There wasn’t.

He was left with no other course than to open a malpractice suit which was won. It left an indelible mark on the son and the father and changed the way both practice medicine. But the method is still unsatisfactory

litigation has proved to be a singularly unsatisfactory solution. It is expensive, drawn-out, and painfully adversarial. It also helps very few people. Ninety-eight per cent of families that are hurt by medical errors don’t sue. They are unable to find lawyers who think they would make good plaintiffs, or they are simply too daunted. Of those who do sue, most will lose. In the end, fewer than one in a hundred deserving families receive any money. The rest get nothing: no help, not even an apology

There have been many attempts and much like the healthcare debate the special interests weigh in quickly when they feel their turf and income stream might be threatened. One such system started for vaccines where a surcharge is made to the cost of the vaccine that is placed in a fund set aside for the purpose of compensating the small percentage of people harmed by side effects. Some countries have tried to instigate systems along similar lines – New Zealand which has a set of limits, clear defined liability and importantly quick payouts (within 9 months). There are better models and solutions. The answer lies in a fair timely system that helps those that have been hurt, identifies fault in an effort to prevent future errors without over burdening the system and the clinicians.

Malpractice or some variant of oversight is an essential part of our healthcare system and needs to be included in any debate of reform but as with all things balance and informed debate is the way to go

Exercise will Make you Fat – Not!

In some recent news Time Magazine headlined a piece titled: The Myth About Exercise” which suggested that exercise was fueling hunger and making people fatter. Complete and utter codswallop! But the fact that Time magazine gets away with this kind of piece and worse yet as was featured on one diet blog has people saying:

“If Time magazine dedicates an entire cover story to it then it must be big”

Is a very worrying result. They go on – “the question health researchers are now asking is “Is Exercise really needed for weight loss”

Good grief – who writes this stuff. Providing even a small element of hope for the already overweight population that is getting fatter and unhealthier is just plain wrong. You can see some great presentation of economic and health trends at GapMinder here (Presented at the equally great site of TED Talks by Hans Rosling).

Even if there is a shred of truth to any of the report we need to be encouraging exercise not discouraging it. Our population needs exercise – in fact your body needs exercise
Don’t loose site of this goal of regular and frequent exercise.

As Rebecca Scritchfield pointed out in her blog of this media disinformation is a big price we pay for listening to this tripe. As she says

the reality is the science tells a totally different story: There is strong evidence from the majority of the scientific literature that physical activity is an important component of an effective weight loss program; Physical activity is one of the most important behavioral factors in weight maintenance and improving long-term weight loss outcomes. In fact, participation in an exercise program has proven to be the very best predictor of maintaining weight that was lost; Effective weight loss and maintenance depend on a simple equation called energy balance: Calories expended through physical activity and normal lifestyle functions must exceed calories consumed; It is a myth that exercise can actually prevent weight loss by leading exercisers to overeat. Research and common sense disprove this notion. Look around the gym or the jogging trail. If this were the case, wouldn’t those who regularly exercise be the fattest?

Quite! Don’t get duped by the media’s desire for sensational shock stories. There is more on this blog with Good Morning America bringing on an “expert” nutritionist providing a platform to someone who as Rebecca points out”

ANYONE can call themselves a nutritionist. You can. Your grandma can. President Obama can.

So from this nutritionist I am here to tell you exercise is good and an essential part of a weight loss and positive health program. So get off your chair, turn off the computer and go for a walk..it will do you some good. Then Rinse lather and repeat!

Self Care and Management

In a great post by Don Kempler (CEO of Healthwise) on the Healthcare Blog titled “Patient Heal Thyself” the challenge of health management and the over usage was very clearly addressed by comparing two families – the Jones’ and the Smiths

The Smith family represents the vast majority of healthcare usage in the US – Doctor knows best and is typified in my experience with the frequent visits for every ailment that crops up. The Joneses are at the other end of the spectrum and much more conservative using the information they find and more importantly applying it as part of their interaction with their physician

For the same condition of back pain they represent the cost both financially and also from a health perspective
The Smiths (Doctor knows best):

When Sam Smith’s back pain flared at age 45, he was quick to accept his doctor’s recommendation for an MRI and a visit to an orthopedic specialist to make sure it wasn’t serious. The MRI showed a possible cause of the pain and (just to be sure) Sam had surgery the following week, marveling at the efficiency of the system. The cost: about $40,000 for surgery, hospital, physician care and rehab.

For the Joneses with the same condition:

When Jay Jones, also age 45, had an identical bout of back pain he reviewed a back surgery decision aid on the Web—even before his first visit. He learned that back surgery is not usually needed or always successful. For him the case for surgery was not very strong.

When his doctor recommended an MRI, Jay pointed out that a decision aid helped him learn that 50 percent of back pain cases go away in four weeks, 90 percent in six months, and only 10 percent of back pain cases need surgery. Jay also learned that MRI reports often find things that can lead to surgery even though they were not the cause of the pain. With that information he asked if he might put off the MRI and the surgery while he determined if his back would get better on its own—it did. The cost: $150 for the office call and $12 for the over-the-counter medications. Back surgery is among the most over prescribed treatments.

Now not everyone is comfortable with the self diagnosis and I blogged about that some time back in this piece on online symptom checkers but that the point is not to defer the whole diagnostic process to technology but to use the technology to help support decision making.

I know where our family is (sometimes to the chagrin of my own children who feel I am less than sympathetic) – we use the services when we feel we need them and are very conservative. Intervention and investigation is not always good as we discovered in the hospital I commissioned a number of years ago. To check the equipment the staff were asked for volunteers to test the MRI machine – it was a very short run as no soon as we put people into the MRI but we discovered “abnormalities”. In this case abnormalities that were not abnormal but normal variations but the cost in time and investigation was high on the institution and on the individuals and the tests ere stopped.

Using good judgment and being a Jones family is better for your health and better for your wallet.

Which family is closest to your style. Had good or bad experiences with either style – let me know