In Ohio – where this case was filed – a plaintiff in a medical malpractice case is required to obtain an “affidavit of merit” from and “expert” witness essentially stating that the case is legitimate from a medical standpoint. Apparently, the plaintiffs attorney was unable to locate a physician to sign an affidavit. Maybe it was because . . I don’t know. . the case had no merit?

The plaintiff was granted two 45 day extensions as they searched the Ohio country-side in vain for a medical professional to certify the case. After several months, Dr. Kirsch was dropped from the suit and according to Dr. Kirsch’s malpractice insurance company, the cost of “defending” this suit on behalf of Dr. Kirsch came to $9,120.85.

And like other health care costs, this one does not evaporate into the ether. This cost – and who knows how many thousands of other cases like this each year in the US – add to malpractice insurance premiums and likely eventually find their way into the health system as a whole in the form of higher costs. In short and as usual for litigation in this country, we all end up paying the costs of excessive litigation.

Of course, the US is one of the few countries in the world that does not have the so-called “English Rule” or to put it bluntly, the loser pays (the winner’s legal bills). The rational behind this rule is not to impair an injured party’s access to compensation for legitimate cases but to impede the type of gaming of the system that goes on too frequently with personal injury attorneys. Dr. Kirsch’s case is just one example of suing every physician who ever saw the patient regardless of merit or encouraging prospective clients to file suits by taking them on contingency.  These tactics  are designed to maximize the statistical probability that at least one case will yield a large settlement before trial thus minimizing risk and maximizing reward for the firm.This is especially important since the majority of malpractice cases that go to trial are won by the defendant! The key strategy is to cast a wide net and try to settle early.

But as we see in Dr. Kirsch’s case, these aborted merit-less cases still incur costs in the initial and intermediate litigation period that must be compensated for. A 1992 analysis of a 1980s era experiment in Florida with the English Rule found that that not only were more claims dropped in the initial litigation period with fewer cases being settled but cases that went to trial had a higher chance of success and settlements were generally larger, all of which suggests that the merit quality of the cases improved overall.

Ohio’s 2005 statute that requires an “affidavit of merit by a properly qualified expert with respect to each defendant against whom expert testimony is needed” also allows for extensions to made for “good cause.” What causes would be good? How about not being able to find a qualified expert witness to certify a case as having merit because your case has none? It would seem that this statute is somewhat self defeating in its aim to reduce costs by limiting access to only cases with merit. Either the plaintiff is able to dredge up some paid expert with questionable qualifications to certify the case or waste even more time and money with extensions trying to find any expert to certify a case that even the expert prostitutes won’t touch! A better system is to utilize a pretrial screening panel that decides the merits of a case and has been shown to improve case quality and reduce costs.

Just as there are plenty of wasteful medical practices that increase overall costs, there are wasteful legal practices that increase overall costs and measures can be put in place for both without limiting access to medical care or to be compensated as a result of injuries from medical malpractice.

Many things in medical practice are straight forward or back and white like taking an x-ray for a suspected broken bone or an EKG for chest pain. But there are huge areas of gray that allow for different priorities and leeway in medical decision making. Often this depends on the doctor’s experience and comfort level and their perception of risk. Perception is the key concept here as this is the driving force for defensive medicine.

Until recently this had not been well studied. But a study in the journal Circulation has found that up to 24% of cardiologists would perform an invasive cardiac catheterization primarily out of concern for malpractice litigation risk. The study was conducted as a national survey of cardiologists using hypothetical patient cases to try and evaluate for any regional differences in practice patterns.

What the study found instead may be part of the answer to why there are so many of these procedures done in the US each year when up to 40% of cardiac catheterizations to evaluate for chest pain are negative, i.e. they find no significant blockages (the other part of this answer is that invasive cardiac procedures are reimbursed at a much higher rate than medical care that is designed to reduce the risk of the development of cardiac disease in the first place).

At a cost of $2,600 each, cardiac catheterization is one of the most expensive commonly performed invasive procedures in the US to the tune of several billion dollars a year. This is real money! The chance to directly affect up to a quarter of this cost is something that the Federal government cannot ignore. But this is exactly what the current administration and Congress have done with the recent health reform legislation which did not include a single section on medical malpractice litigation reform.

Even more than limits on non-economic jury awards for pain and suffering, what is badly needed is a national system of specialized medical malpractice courts to hear cases in front of a panel of medical experts, legal experts, and consumer and patient advocates appointed by the court. The rational for these courts would be that specialized juries are far better equiped to make rulings based on complex medical issues and standards of care then the current adversarial civil court system where a lay jury picked specifically for its lack of knowledge or experience with modern medical practice is called on to decide with side’s prostituted “expert” witnesses they believe more (or which lawyer they like better).

If such specialized courts existed then maybe physicians would be more inclined to practice medicine as they were taught if they know that the legal system can tell the difference between the art of medical practice in the vast gray area of uncertainty and actual medical negligence. Thus far, Obama and the Democrats have missed their opportunity to implement a system that could save billions. Perhaps they wanted to avoid too many fights with the recent health care bill. Maybe not.

Of course, the liberal war machine when into high gear once word of this got out.

“Cassell may be walking a thin line between his right to free speech and his professional obligation”, said William Allen, professor of bioethics, law and medical professionalism at the University of Florida‘s College of Medicine.

The outspoken [U.S. Rep. Alan Grayson], described Cassell’s sign as “ridiculous.” “I’m disgusted,” he said. “Maybe he thinks the Hippocratic Oath says, ‘Do no good.’ If this is the face of the right wing in America, it’s the face of cruelty. … Why don’t they change the name of the Republican Party to the Sore Loser Party?”

To his credit, Dr. Cassell denies having abandoned or refused to treat patients based on their political views and denies even asking patients about their views or who they voted for as a

The Oath: It's Greek to me.

prerequisite for treatment.  Dr. Cassell’s sign is obviously a political statement and not a serious policy if considered in the context of the fact that voting remains by way of secret ballot in this country and that other then bumper stickers there is no way to identify the political affiliation or opinions of Americans.

Rep. Grayson is right about one thing. Taking this sign seriously is about as “ridiculous” as literally believing the intentions of a doctor who puts up a sign stating their refusal to treat anyone who’s favorite color is blue.

But don’t raise such practicalities of common sense with Mr. Grayson who has threatened to file a complaint against Dr. Cassell with the Florida Department of Health.  This is just another perfect example of why the first amendment continues to be so important (actual and real patient abandonment should be irrespective of the reasons for such ethics violations).

This case does raise a troubling issue. Are physicians for all intents and purposes, stripped of their rights to political speech and political activity if such activity directly involves patient care? One of the letters to the editor of the Orlando Sentinel expressed disgust at Dr. Cassell’s mixing of politics and patient care while ironically stating her right to choose another physician if faced with a similar sign. Wait. Don’t doctors also have the right to choose to be politically active just as patients have the right to pick and change doctors?

Though ivory tower bioethicists believe that the Hippocratic Oath binds physicians to an unbreakable doctor-patient relationship until death do us part or until the patient seeks care elsewhere, the fact is that there is nothing in the Oath that specifically forbids political activity by doctors nor compels them to treat a patient indefinitely irrespective of any reason to end the relationship. Practicalities take priority over idealism in common law.  Except for laws that bar discrimination, a physician is allowed to refuse service or to terminate services. In almost all cases, physician’s are allowed to end a professional relationship with a patient after giving appropriate notice and assistance as indicated to help the patient secure care elsewhere while being available for a practical time period to render emergency care as needed.

Ideally, political activity should NOT impact or compromise patient care but sometimes a work stoppage (strike) and refusal to participate in the system is the only way to send an effective message. Nor should doctors be forced by some false interpretation of the Hippocratic Oath to continue to provide care within a health care system that they feel compromises their own economic stability and/or the ultimate care of their patients. In other words, do the ethical constraints of the Hippocratic Oath trump the Constitutional rights of physicians? Absolutely not. The Framers were well aware of the ancient Oath in their time and did not choose to make an exception in that the rights of patients for care would negate the speech and political rights of their physicians.

In my travels, I have come across many an irate physician who enthusiastically inscribes their opinion upon the official and legal record of a patient’s chart regarding the denial by the patient’s insurance of a test or procedure.

While it is perfectly acceptable and appropriate for the physician to write a note in the chart explaining the reasons for the requested test or procedure, it is almost always not a good idea to express one’s opinion about a denial in the chart. For one, a denial by an insurance company is based on medical information (which may be incomplete or inadequate) and contrary to liberal belief, this is not the insurance company practicing medicine because the decision is about what will be reimbursed and not what will be ordered.

This distinction is important because an insurance denial does not substitute for nor remove a physician’s obligation to care for the patient despite the financial barriers that the patient faces. So if a physician writes in the chart that the insurance company is threatening the life and well-being of the patient by denying a test or procedure then that physician better find a way to get it done, continue to advise the patient to have it done, or do it anyway if able. Doctors cannot transfer the medical liability for a bad outcome from themselves to the insurance company.

Of particular importance is when a physician is able to perform a test or procedure themselves and deems it necessary and states it thus in the chart but does not do so because reimbursement is denied by the insurance company. I.e. if you call the actions of the insurance company “unethical” for denying a procedure that you normally perform and recommend for your patient, don’t be surprised when a court of law uses your own words to describe YOUR ACTIONS in refusing to perform a necessary procedure unless reimbursement is guaranteed.

Nuf, said.

Dr. N, a 58-year-old cardiologist, had one such patient, an insulin-dependent diabetic who was found to have severe cardiovascular disease after developing chest pain and undergoing a cardiac catheterization. Like many difficult patients, this diabetic sought out medical assistance and consultation from Dr. N. and then paradoxically, repeatedly refused to follow his medical recommendations. After finally undergoing coronary artery bypass surgery, the patient developed a serious sternal wound infection and refused to return to the hospital for intravenous antibiotics, instead demanding that Dr. N. bow to her convenience and treat her over the phone by calling in a prescription for oral antibiotics.

Four days later, Mrs. Y called Dr. N, vociferously complaining that she had developed a fever. Dr. N obtained the culture report, and informed Mrs. Y that she would need to return to the medical center immediately, as tests indicated that she had multiple infections in her midsternal wound.

Mrs. Y refused. “I’m not coming back,” she announced. “It’s almost an hour away. I’m weak and it’s too far for me to go in my condition.”

“You have an infected wound,” Dr. N replied. “It needs to be examined and you will need antibiotics to treat it.”

“Why don’t you just prescribe the antibiotics over the phone” she asked.

“I’m sorry,” Dr. N said. “That’s not an option. You are best off returning here, so that I can properly evaluate the problem and start treatment right away. It’s dangerous for you to wait. This sort of infection can be life-threatening if not treated promptly.”

“Well, I’m not going,” Mrs. Y said. “You’ll just have to call antibiotics into my pharmacy.”

“Mrs. Y, this is very serious. I cannot prescribe anything over the phone without seeing you. You must get treatment. If you don’t want to come back here—which is really the best option—then your alternative is to go to your local emergency department immediately. You have an infection in your chest that must be treated or it could threaten your life. Do you understand?”

“I understand that you’re not being helpful,” replied Mrs. Y, hanging up the phone.

Dr. N noted the interaction in the file, sighed, and went on with his business.

Mrs. Y did not return to the medical center, and waited 10 days before going to the local emergency department. When Mrs. Y finally sought treatment, surgery was necessary to debride the wound, and a portion of her sternum was removed.

And true to the credo of the “difficult patient”: make everyone’s lives more miserable than your own, this patient reported Dr. N. to the state medical board and when the board dismissed the case for lack of wrong doing, the patient sued Dr. N.

The article author, Ann W. Latner, JD, uses this case to highlight the importance of having malpractice insurance. This case also highlights the absurdity of the current system in which a state medical board finds no evidence of wrong doing but an obviously frivolous lawsuit is allowed to wind it’s way through the system and consume valuable money and time.

In a better system, special malpractice courts made up of independent medical experts, legal experts, and consumer advocates (appointed by the court and not prostitutes hired by either side) would make a preliminary ruling on the validity of a suit and/or order each side to arbitration and require a large cash sum be placed in escrow if the defendant insists on proceeding with the case or with an appeal despite an unfavorable ruling from the court.

Even though the current system is designed to be mailable enough to allow cases with merit to see their day in court, it also is very susceptible to people who’s main motivation appears to be to use the system as a tool to harass and attempt to extort others as a way of fulfilling their credo in life.

On average, doctors end up working 1.7 hours less per week when their expected medical liability risk increases by just 10%, according to a new study published in the latest issue of the Journal of Law and Economics. . .

When something changed the risk of medical liability—such as an adjustment in the maximum amount a jury could award in malpractice cases —doctors adjusted their workload, according to the study. When liability risk increased, physicians saw fewer patients each week to minimize their chance of a lawsuit. When liability risk went down, doctors saw more patients each week.

The economists calculated that physicians working 1.7 hours less per week is the equivalent to “one in 35 physicians leaving a workforce entirely, or about 21,000 physicians.”

And less health care utilization means lower health care costs! The Democrats are not stupid. They are well aware of the massive costs that are likely to result by providing health care for every American without any coherent plan to slow costs. But Sara Palin’s brilliant (in a savant sort of way) warning about “death panels” effectively put an end to any plans to realistically try and control costs by directly limiting utilization. So what better way then to dump it on the doctors and let them deal with it!

Instead of national caps on malpractice jury awards, expect Congress to pass a law establishing minimum amounts for jury awards for malpractice cases! This keeps everyone happy; the lawyers for obvious reasons, the politicians for establishing a national medical malpractice lottery while holding down costs, and the patients who will have more leverage than every to force their doctor’s malpractice insurance company to settle out of court. Everyone is happy except the doctors who will be leaving the profession in ever bigger numbers. But who needs them anyway? It’s health care! People’s lives are at stake. They should be seeing patients for free!

I see the patient and her daughter is waiting for me to come, hovering outside her room. We go in together and begin discussing concerns regarding discharge . . About 15 minutes in to the conversation, I glance down at the phone the daughter is holding in her hand at the bedside and notice it’s a recording app on her iPhone. And there’s a little ‘metering bar’ that’s moving as I talk – it’s actively recording the conversation. I had no idea I was being recorded.

Was it legal for the patient’s daughter to record the conversation without the doc’s consent? The general consensus among non-lawyers appears to be “no” but in reality it is illegal to record a conversation without the consent of all parties in only 12 states (California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington). These are referred to as “all-party” statutes.

Every other state is more concerned about the possibility of a third party eavesdropping and recording a private conversation and so only require the consent of one of the involved parties. Essentially these “one-party” statutes allow anyone to secretly record a private conversation without requiring the consent of anyone else as long as the recorder is one of those involved in the conversation. The same goes for Federal law but this usually applies only to electronic conversations or conversations where one party is standing in one state and the other party is standing in another (presumably within talking distance).

However, if the patient’s daughter was unlucky enough to be in one of the states with an “all-party” statute, she could potentially face criminal charges including felony charges for recording without consent. She could also be held civilly liable depending on the state. But in fairness,  her intent is likely to have been much more benign. She could have been recording a conversation with a doctor for future reference. It’s more difficult than we think for patients and family members to remember everything a doctor tells them. Some attempt to write down as much as they can and this is not illegal in any sense. Audio recording is much easier.

And the medical-legal risk is likely way overblown. The usefulness of an audio recording for the plaintiff in litigation is not automatic and may be a source of more headaches and delays for the plaintiff than simply relying on the medical record. Unlike medical records which are not usually challenged for their authenticity, an audio recording made without full consent and informally is not an official record. It must go through several processes to satisfy the court to be allowed in as evidence including; authentication and correctness of the recording, preservation of the recording to the reasonable satisfaction that there has been no tampering, identification of the speakers (may be difficult if the quality or volume is poor), and proof that the chain of custody has been preserved.

The defense can contest each step before a recording is deemed as admissible but from a practical standpoint recordings are most valuable only when no other record exists. The medical record is the official document of such conversations or patient/family encounters and should not differ significantly from the actual conversation. I.e. as a matter of legal practicality, never have a conversation with a patient/family that you would not be willing to repeat in court and/or put down on the medical record.

This leaves two possibilities in which the medical record and the audio evidence would differ. 1). An error or omission was made in the conversation but corrected in the medical record.  In this case the record should hold more weight especially if it can be shown that successive medical decisions were made based on this correct documentation. I.e. lawsuits are over outcomes and not mistaken conversations. 2). An error or omission was made in the chart but the correct decision or information was stated in the conversation. Ironically, the recording might help the defense if anything though this is doubtful.

The take home points are that in most states it is legal to record a conversation with only the consent of one party but that these recordings are more than likely to be used for personal reference rather than as the key piece of evidence in court that makes or breaks a case. Still, it is your right to refuse a case or to end a doctor-patient relationship (as long as the proper procedures are followed)  over behavior that makes you feel uncomfortable or that poisons the relationship such as if the family or patient tells you that they record all doctor conversations in case they need to use them in court.

• “On any given day” there are 120,000+ malpractice claims pending against physicians.
• 1/6th of all physicians are sued every year.
• Half of all neurosurgeons are sued every year.
• Over 30% of ER physicians, OBGYN, orthopedists, trauma and plastic surgeons are sued every year.

• Each lawsuit whether successful or not costs an average of almost $23 thousand to defend.
• Between 1997 and 2000 the median medical malpractice verdict doubled to one million!

Defensive medicine can be difficult to define (hence leading detractors to claim that it does not exist) but according to a 2002 Harris poll of 300 physicians, 79% say that they order what they consider to be unnecessary tests. “Unnecessary” in this context would mean a test that has a very low probability of finding disease (usually far less than 1%) given the clinical presentation of the patient. A less common definition would be getting a test, the results of which would neither change the diagnosis or prognosis nor change the treatment of a patient.

Defensive medicine has become so ingrained in our clinical culture that excessive testing has become the faux standard of care. When the real standards of care call for a few simple initial tests to evaluate symptoms, physicians regularly order a “battery” of advanced and often expensive tests. From a medical-legal aspect, the reasoning for this approach is straightforward. It is easier to defend against a lawsuit when a test or procedure has been performed then if it wasn’t, even if such testing would not have made a difference in the outcome of the case.

Even though it is difficult to measure defensive medicine there are some aspects of medical practice where legal defense against potential lawsuits has an undue influence over medical decision-making. Earlier this year I took a look at the rates of Cesarean section in various parts of Texas and I found that the rates of this obstetrical procedure were higher than the state average in three areas that happen to correlate with known areas of increased rates of medical malpractice lawsuits and tort abuse. The higher C-section rates in these areas also correlated with higher average costs of obstetrical care than the rest of the state. This example is just a small part of how defensive medicine adds to overall medical costs.

But all this increased diligence on the part of physicians must improve patient care despite the costs . . right? Well, no. There is no evidence that intrauterine peripartum fetal monitoring has decreased rates of cerebral palsy (the primary reason for obstetrical lawsuits) and even though C-Sections are credited with some of the decrease in neonatal mortality over the last 30-40 years there is plenty of evidence that the current high rates of C-sections in this country can be significantly lowered without affecting maternal or fetal mortality or morbidity.

Another example is the high rate of cranial CAT-scans of children in the emergency department following head injuries. Every year thousands of children receive minor head injuries as a result of typical play and sports but every year thousands of these children receive CAT scans despite the fact that they have normal neurologic exams and normal mental status (i.e. no indication of serious intracranial injury).

As a result, thousands of children are exposed to very high levels of radiation despite the fact that there is no data that aggressive scanning changes head injury outcomes and very few of these scans show any intracranial pathology. One of the reasons many of these physicians give for ordering one of these scans is because of “pressure from worried parents”. The real reason for these excess scans is that ER physicians don’t want to sit in a court room and try to explain why they didn’t order a CAT scan for a child who is now dead or severely disabled. A single CAT scan can cost over a thousand dollars. This certainly adds to the costs of medical care.

What we need is a tort system that is driven to seek truth rather then personal fortune and to use rational bases for proper compensation. We need a system where the actions of physicians are judged based on accepted standards of care by nonbiased expert witnesses using clinical evidence and evidence based medicine, and where the entire system is not run like a emotionally driven lottery a-la John Edwards.

If such a system existed and physicians felt that they could defend their decisions then maybe we would see much less excessive health care utilization and health care costs would actually drop. After all (as liberals love to point out) there is no evidence that the excessive amount of health care utilization we see in this country improves public health or affects mortality rates.

Then again, we live in a time when too many people believe that a multimillion dollar jury award is equivalent to justice served and such awards and the threat of such awards do not have any measurable effect on the health care system. These people live in a fantasy land but ironically they pay hefty health care insurance premiums as a result of excessive health care utilization that is in part caused by defensive medicine.