Thursday, April 25, 2013

Attorneys and physicians share common goals?

Here is big news from the March 2013 issue of the American College of Surgeons Bulletin.
 
The headline reads, "Attorneys and physicians share common goals." 

The primary author is a medical liability plaintiff's lawyer from Washington, DC. 

The article states that surgeons and liability attorneys want similar things for patients. "Both surgeons and patient attorneys are committed to patient well-being and the relief of patient suffering." Really? So for liability attorneys, it's not about the money? I see; it's about "relief of patient suffering."

"Surgeons belong to an ancient and esteemed profession; every day, surgeons cure disease, relieve pain, and make lives better. Attorneys see themselves as members of another healing profession, helping to restore to broken lives some measure of independence and dignity." I did not know that attorneys were members of another healing profession. I've never heard it put that way before. I mistakenly assumed it might be about the money.

"When injured patients are treated fairly in the legal system, it helps restore their trust by facilitating communication between the clinician and the patient and providing clarity about a potential error and how it occurred." So the elaborate process that goes along with a medical liability lawsuit is all about communication and restoring trust? And I thought it was about the money.

"Liability cases and fair compensation are means of honoring patients. Because they draw attention to patient suffering and physician error, they help ensure that the opportunity to prevent harm to another patient will not be lost or wasted." It's good to know that plaintiff's attorneys are in business for the purpose of honoring patients. Silly, cynical me. I thought it was about the money.

"In the U.S., the 'deny and defend' response from physicians is quite common. This reaction may be due in part to the perverse and dangerous incentives that characterize the American medical system. For instance, the fee-for-service model provides a disincentive for less-qualified surgeons to refer patients to trained specialists." According to Mr. Malone, doctors' denying and defending lawsuits is the real problem. And that's because of the fee-for-service payment system? Sorry, I don't follow that line of reasoning.

"One legal reform could go a long way toward fixing this problem. If surgeons were employees of their hospitals and not independent contractors, the employer would have both the muscle and the financial motivation to better supervise individual practitioners." Mr. Malone may have a point here, but I wonder if he would opt for a system that made all lawyers employees and not independent contractors? Since we are both members of healing professions, I think it would be fair if everyone was salaried.

Regarding the use of guidelines as a malpractice defense which some have labeled a "safe harbor," he says, "However, the safe harbor concept becomes unacceptable if it allows guidelines to be used as a 'get out of jail free' card. Guidelines must be useful in exonerating and implicating clinician wrongdoing." What he seems to be saying is that it's OK to use a guideline to prove a clinician did wrong, but following guidelines shouldn't be a fail-safe defense strategy.

Maybe someone can explain to me why the American College of Surgeons would print an article such as this in its house journal.

26 comments:

artiger said...

ACS is really out of touch, as evidenced lately. Glad I'm not a part of that club.

It's all about the money for all of us, when you get down to it. I'm not ashamed to admit it, but I also believe in doing the best I can for every patient in front of me. I think that deserves just compensation, and I didn't take a vow of poverty when I took the Hypocritic Oath, and I didn't get in to this to be lower middle class. I do enjoy it on most days. Now if I can just get someone to pay me for fishing, cooking, and wine tasting, I'll be set.

That (sarcasm) being said, defensive medicine and the accompanying expense (which I still believe is underestimated) will not go away with our current legal system. Some of it is the shame of "getting it wrong", but it's the consequences (legal) of missing something that really drives it.

I won't go so far as to say that physicians are Good and Lawyers are Evil in the ultimate battle, for that is simply a matter of perspective. The lawyers truly believe what this guy is saying. They are wired differently than we are. If you've spent enough time around one (or more) you know what I mean.

I'm not sure what to do about guidelines. It would be nice to use them as a defense, but to be fair, I agree that it has to work both ways; otherwise, guidelines have no teeth.

qtipp said...

“How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn't make it a leg.”
― Abraham Lincoln

Perhaps we have some "tail reassignment" going on here.

I'm not calling attorney's evil. They serve a meaningful purpose... I just don't think that purpose was accurately described by the quotes above.

Skeptical Scalpel said...

Thanks for the comments. qtipp, I don't quite get it. Please explain.

Tom said...

"It's all about the money for all of us, when you get down to it. I'm not ashamed to admit it"

I must say that comments such as these make me think this article is more accurate than you think. If it is 'all about the money' with care for the client thrown in, then I can hardly differentiate.

In Australia, you get paid adequately as a medical officer but not great, and there are far less opportunities to make money compared to the US system. A similar thing could be said of our legal system and opportunities for big salaries for the average lawyer.

Perhaps the problem isn't so much a problem with your legal system, as it is with the enormous greed and capitalist nature of your citizenry.

artiger said...

Uh, Tom, I think that was the point of the post, in case you didn't read the whole thing. Turn up the sensitivity on your sarcasm meter while you're at it.

Anonymous said...

Here are my crass observations:

I believe (on the basis of no studies) that physicians are generally less likely to be thinking about money when one-on-one with a patient/client. But, perhaps one reason is that physicians are basically guaranteed a well-paying job for life.

Now, one may argue whether 150K for a PCP in San Francisco is all that great (esp. when your 28 year old neighbor just cashed in his Google options and retired). The fact remains, almost all physicians live pretty well.

In contrast, many (?most) lawyers struggle to make 6 figures. Yes, the top law firms pay their associates 150K+, but they only hire Harvard/Yale/Stanford/etc. grads, and those grads aren't going to be handling typical med-mal cases. So, yes, the latter will be paying closer concentration to their income.

Tom said...

"I'm not ashamed to admit it, but I also believe in doing the best I can for every patient in front of me"

My apologies, but it seems one would need an incredibly fine tuned sarcasm meter.

Though I still stand by my comments based at least from what I have seen in interviews of surgeons and medical officers in the US constantly trying to find a balance between patient outcomes and profitability, as though it were the norm.

Don't get me wrong, I appreciate that anywhere in the world there is a financial element, 'how can we provide the most appropriate care within the boundaries of our budget', but I think there is an additional problem when individual salaries are so closely tied to procedures and interventions.

artiger said...

Tom, I can certainly agree with your last paragraph. What I was getting at initially was that our even with our legal system being what it is, there isn't as much difference between us physicians and the lawyers as we would like to believe. I probably didn't state that well enough in the first place.

Skeptical Scalpel said...

Tom, I don't know how many American doctors you have heard being interviewed. My sense is that the majority do not become physicians for the money. And that seems to be the case with the current generation for sure. They amass a lot of debt and the future income is uncertain.

I believe that lawyers do not go into law because of a lure of the higher calling that practicing law offers or to help people.

Anonymous said...

Geez, I'm a little confused. I must have missed something. Which part of (the) healthcare (industry) is not all about the money? Is it the drug industry, the healthcare insurance industry, the medical malpractice insurance folks, the for-profit hospitals, the "not-for-profit" hospital executives, the docs who own the CT scanners they refer their patients to, the docs who make rounds from the doorways of patient rooms and bill for an extended visit, the who get kick-backs and perks for using products, the docs who unbundle bills? The actual list is endlessly confusing.

In fact, what in the world is not based on MONEY? The wars? The gun industry? The Red Cross?

Skeptical Scalpel said...

Anon,

Please note my answer to Tom just above your comment.

I'm sticking to it. Some, but not the majority by any stretch, become doctors for the money.

Anonymous said...

We'll see...take away the income, replace it with the average lawyers' income, and how many physicians would stick around?

Skeptical Scalpel said...

Stick around? What do you think we are qualified to do besides medicine after 4 years of college, 4 years of med school and 3 to 7 years of residency training?

What does the average lawyer's income have to do with it anyway? Half of the graduates of law school today can't even find jobs as lawyers--not an entirely bad thing, by the way.

Anonymous said...

lol....a response that is entirely off point, but lovingly vehement.

Tom said...

"We'll see...take away the income, replace it with the average lawyers' income, and how many physicians would stick around? "

I don't know what the system is like elsewhere, but as discussed previously it is many years after graduating before a physician starts earning a reasonable income. When they first graduate from medical school they earn less than a newly graduated Registered Nurse (which I can assure you is pretty slim).

In regard to the other comment above regarding 'everything in healthcare is based on profit', I would say that (at least in Australia) most competent physicians specifically avoid doing unnecessary scans, promoting unnecessary intervention and prescribing unnecessary pharamceuticals. The hospital 'executives' don't encourage it, they oppose it, because the list of people who actually need these things is so large that trying to make a profit out of people who don't is just wasteful.

Healthcare costs are already a burden on society, it is hardly in the best interests of a hospitals budget to be indulging in overanalysis and hypochondriasis.

artiger said...

Anonymous, you are not entirely off base, but things are different now for physicians in training than they were even 10 years ago. There is still an enormous expense, but post graduate training has been cushioned extensively. Only time will tell how many prospective physicians decide to stick around.

That's one of the things about becoming a physician. It takes so damn long that once you get there you don't have enough time in your life to retrain in something else. That's probably why NP's and PA's are going to proliferate even further.

Henna said...

I followed this post and comments with interest, primarily because of Tom's comments. I spent 8 years living in Australia. During that time I was hospitalized four times and had major surgery three times. Nearly all my Australian friends are doctors; many others are nurses. I have one dentist friend there.
I am an American nurse. I agree with Skeptical Scalpel. The vast majority of American doctors do not go into it for the money. As in Australia, most American doctors also try hard to avoid unnecessary scans, interventions, and pharmaceuticals. They are generally highly aware of the monetary constraints on their patients. As a rule, I don't see tests, scans, or pharmaceuticals ordered for a hospitalized patient in the absence of a compelling need.
Are there a few practitioners who violate this principle? Of course. But they exist in Australia too.
There are a number of opportunities for Australian doctors to earn extra income. A GP friend cheerfully described a number of options at her disposal. An obstetrician friend who has a mixed public and private practice does some all-ultrasound days which he told me openly were to coin money.
Many Australian doctors I knew chose NOT to earn more money when they could have, because they preferred to have more free time instead. I'm sure you know, Tom, that one of the problems behind the shortage of GPs in Australia is that many women doctors like having a lucrative job that can be done part-time. A number of older doctors saw that as the sting in the tail of low-cost medical degrees (relative to the USA).
As far as the behavior of residents/registrars, as mentioned in another post, believe me, I've heard Australian friends complain long and hard about exactly the same problems. I have one friend who is past president of the college of his surgical specialty. Another is currently supervisor of training in her state for her medical specialty. Yet another is director of training for a surgical specialty at a renowned tertiary referral hospital. Many others are consultants who supervise registrars in some capacity. All complained vigorously about registrars who don't want to work at night, turn up to scrub for patients whom they haven't researched, refuse to take part in expected workload, can't take a good history, are unfamiliar with more than basic anatomy, etc.
Australian doctors also made very similar complaints about Australian lawyers. I don't think any of them would see lawyers as members of a "healing profession" either.

Anonymous said...

Getting back to the original post, I can only hope the article was published in the ACS journal as a paid advertisement, not something espoused by the editorial leadership.

Skeptical Scalpel said...

Henna, your comments are most enlightening. I especially was intrigued by the similarities between Australian and US doctors, lawyers and trainees. Thanks for joining the conversation.

Anon, This was not a paid ad. It was an article in what was billed as a special issue on "New Approached to Liability Reform." See for yourself. The link to it is in the first line of my post.

Anonymous said...

I wonder if the ACS is publishing the lawyer's perspective to avoid seeming biased toward surgeons. Perhaps you could write an article about the abuses of the malpractice "lottery" system and get it published in the trial lawyer's monthly journal?

I think advocating for more liability for the loser's of frivolous lawsuits would be another "new approach to liability reform".

Skeptical Scalpel said...

Anon, the ACS should be biased toward surgeons. That's why we pay our dues. Penalties for frivolous suits will never happen. Lawyers claim it would hinder poor people with legitimate claims. And of course, lawyers never file frivolous suits (so they say).

DD said...

"Both surgeons and patient attorneys are committed to patient well-being and the relief of patient suffering."

Disagree.People who become surgeons assume a 24/7 responsibility disproportionately greater than their monetary compensation. I doubt many lawyers are woken at 2am by a call requiring life-or-death decision making.

As long a humans are delivering healthcare, there will be errors; how we learn from those mistakes matters.
http://legacy.justculture.org/downloads/manage-risk.pdf

Anonymous said...

Medmal lawyers actually turn down most of their applicants, or so I understand. However, since each year 7% of all physicians get sued, the percentage having patients complaining to lawyers seems astonishing high. Of course, it only takes one disgruntled patient out of thousands per year, but still....

Here is an interesting article from NEJM from a couple of years back about malpractice claims across specialties: http://www.nejm.org/doi/full/10.1056/NEJMsa1012370 .

Neurosurgeons are most likely to be sued - 19% per year. But, general surgeons are the specialists most likely to pay out (approx. 4% each year). The biggest payout per successful claim is for pediatrics (as I would expect). By age 65, most physicians will have been sued; for high-risk specialties, like surgery, the likelihood is 99%.

Kinda off-topic, but it is an interesting read.


Skeptical Scalpel said...

DD, I hope to see the "just culture" concept adopted in medicine before I die, but I doubt it will happen. Here's a post I wrote on the subject last year: http://skepticalscalpel.blogspot.com/2012/02/quest-for-medical-error-transparency.html

I agree that lawyers don't face life and death decisions that have to be made on the spot. They can research cases for months or years.

Anon, yes the stats on lawsuits are sobering. That was a good article.

Anonymous said...

I'm in the unfortunate position of both being an attorney and frequently requiring the services of doctors. I see no shortage of incompetence, greed and arrogance in either business (let's stop pretending they're "professions").

Skeptical Scalpel said...

Anon, you are right. They really aren't professions any longer. Interestingly, the powers that be made "Professionalism" one of the six core competencies of all residency training many years ago. It doesn't seem to be working in some cases.

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