Tuesday, December 31, 2013

A lawyer tries (unsuccessfully) to take down Skeptical Scalpel



A trial lawyer named Max Kennerly has taken issue with a piece I wrote called "Can defensive medicine ever be stopped?" It appeared last week on KevinMD.

On his blog, he he says defensive medicine is a "myth" and accuses me of many wrongs, too numerous to detail here.

I will address a few of them.

He read my post but apparently did so selectively. He failed to note that I agreed with him that tort reform did not reduce the cost of medical care in states that have enacted it. This was documented by a paper from the National Center for Policy Analysis which I cited.

He went on to criticize three brief examples of defensive medicine that I mentioned in my post—about abdominal pain, a wound infection after colon surgery, and chest pain.

Mr. Kennerly writes, "a young girl with lower abdominal pain gets an ultrasound for appendicitis (among the least invasive, least expensive, and most helpful tests in history — remember this funny GE ad for their portable ultrasound?)."

He says he is "a trial lawyer for injured people," but his knowledge of medicine seems rudimentary at best. Apparently he advocates obtaining a portable ultrasound on every patient with abdominal pain who presents to an emergency room. With 7 million visits per year, abdominal pain is the most common complaint presenting in emergency departments in the US.

A conservative estimate of the average cost of an abdominal ultrasound in a hospital is $400. If every patient received one, it would amount to a cost of $2.8 billion dollars per year. That may not seem like much to a trial lawyer, but it is to me.

In addition, ultrasound is not accurate enough to rule out appendicitis as this CME article from the American College of Emergency Physicians points out. Here's a quote: " "Unfortunately, its [ultrasound's] poor sensitivity in comparison to CT does not allow it to be utilized as a good 'rule out' test, necessitating additional testing if the ultrasound result is not positive for appendicitis."

Oh, and lots of luck defending yourself against the likes of Mr. Kennerly if you misdiagnose appendicitis with the GE portable ultrasound machine he posted a link to. What, no radiologist read the study? And you used a portable machine instead of the gold standard $40,000 state-of-the-art machine in the radiology department?

Another of his criticisms of my examples reads as follows: "a surgeon calls up an infectious disease colleague to confirm he or she can drain an E. Coli-infected post-operative wound by draining it, without antibiotics."

As I stated in my post, my point is that surgeons have far more experience in treating wound infections than infectious disease specialists. For a simple wound infection, a consultation with an ID doctor is completely unnecessary, yet many surgeons do it for defensive reasons. Mr. Kennerly thinks that is just fine. He proposed that the surgeon should get "a quick informal consultation from an expert." He should know better. Informal consultations are very risky and should never be done. If the ID consultant didn't see the patient and the outcome was not perfect, you can bet Mr. Kennerly would happily file a suit against him.

In his best lawyerly fashion, he twisted my third example to meet his needs. Here's what I wrote: "A young man with chest pain arrives in the ED. After taking a history and examining the patient, the ED MD is 99.99% certain that the patient did not have a heart attack or a pulmonary embolism. But he’s a little short of breath. He remembers a case of a fatal PE with only minimal shortness of breath, orders a blood gas and CT angiogram of the chest." Note that I said CT angiogram, a test which costs well over $1000.

Here's what Mr. Kennerly wrote: "Is it such a terrible burden on the health care system to run an electrocardiogram and normal blood labs on a person with substantial enough chest pain and shortness of breath that they brought themselves [sic] to an ER? The cost of each is trivial, and the risks are non-existent. Dr. Scalpel is advocating for the equivalent of a mechanic saying, 'I don’t need to look' when your brake light comes on because the mechanic is 'pretty sure' it’s just the sensor." Note that he said EKG and lab tests, neither of which I mentioned.

So Mr. Kennerly, while saying that defensive medicine is a myth, suggests that doctors should never rely on their clinical judgment but rather order numerous expensive tests instead.

This is a good example of what we are up against in medicine today, and furthermore, it shows why costly and wasteful defensive medicine will persist for the foreseeable future.

22 comments:

thethingspatientssay said...

His method of getting to the CT angiogram shows a marked misunderstanding of the physiology involved. He completely ignored your statement about the PE and suggested that you were trying to rule out an MI instead. Even then, he recommended EKG, then an echo (good luck getting cards to read that in the ER), then a CTA. So, ~$100 for the EKG, $400 for the echo, then $1k for the CTA (mentioning nothing about the risks of IV dye). That's cost effective, for sure.

Skeptical Scalpel said...

Agree. He read what he wanted to read and commented on his own version of the post.

Skeptical Scalpel said...

Here's an anonymous comment from someone who had trouble posting it herself. It was emailed to me. I have condensed it.

She had some issues with food allergies as a child, but for many years has had no problems. She recently began taking lisinopril, which is associated with exacerbations of oral allergies. After eating a salad with beans, she became short of breath and was gagging. She didn't want to call EMS and go to an ER because of the expense, so she was taken by a friend to an urgent care center.

She wrote: "At the urgent care I was still a little shaky, but my breathing was fine. They called me back immediately and I spoke to one of the RNs. She basically said that they could not treat me, and I had to go to the ER across the street. I was too shaken up to argue much at the time, but it was completely ludicrous. I basically needed a corticosteroid and a prescription for an epi-pen. I could buy Benadryl over the counter, thanks. She still insisted that my symptoms were too severe, and I needed to go to the ER.

"I went to the ER and saw the NP on duty. I was really embarrassed to be there, since I was perfectly fine by that point. I made sure they knew that the urgent care clinic had insisted I go to the ER. She listened to my breathing and wrote prescriptions for prednisone, diphenhydramine (Benadryl lol), and an epi-pen. It cost me a $250 copay to see the NP at the ER instead of $35 to see the IM doc at the urgent care clinic. I guess I should have asked for an ultrasound, since I had upper right side chest pain when I was lying on the ground struggling to breath. (sarcasm) The NP was great btw, she spent a lot of time making sure I knew when and how to use the epi-pen. I probably got more time with her at the ER than I would have with the Dr at the urgent care, but I really couldn't afford the $200 more it cost me for that time.

This woman experienced defensive medicine at its finest. Never mind how the patient felt or looked at the time. Cover your ass. Send her to the ER.

thethingspatientssay said...

As someone who worked in urgent care while in residency, I can confirm this story a thousand-fold. Forbes had an interesting article awhile back about a patient compensation fund that would hear cases rather than allowing doctors to be sued directly. The title is a little misleading, but, for your consideration: http://www.forbes.com/sites/realspin/2013/08/27/defensive-medicine-a-cure-worse-than-the-disease/

Ryan Gray said...

How much of it is defensive medicine (which I'm sure it is a lot of) - vs being rewarded for ordering lots of tests, and therefore billing a lot.

During my training, I was disgusted by an ED attending that would order CT scans on everybody. I thought it was just due to defensive medicine. Then someone mentioned (not sure of their source) that the hospital loves him because he is one of the biggest billers.

Vamsi Aribindi said...

My comment on his blog was denied approval. I rather expected this, so I made sure to copy the text. Here it is:

"
You misunderstand entirely, perhaps purposefully.

With regards to the chest pain patient, Dr. Scalpel made the quite reasonable assertion that even in tort-reformed states, if a young healthy patient came in with chest pain, an ED doc would be pressured to give a young man (who has already had an EKG and appropriate labs) further inappropriate workup- effectively in order to turn a 99.9% certainty into a 99.999% probability, and exposing the patient to harms down the road from radiation exposure. In effect, in exchange for an extra .099% certainty, you are giving the patient an extra 2% chance of various cancers by using that invasive test- which you are doing solely to reduce malpractice risk.

With regards to the ultrasound example, you seem to forget the expense and harms of ultrasound. It is quite conceivable that the US shows some lump or bump (an incidentaloma in medical parlance). That lump will then be biopsied and found to be benign- but not before the patient is exposed to the unnecessary risks of surgery and anesthesia. Once again, more patients are harmed then helped by the US in certain cases, but the ED doc will order it anyway because they don't want to get sued in the rare chance for a missed diagnosis.

The ID consult is also misunderstood- it's done simply because if sued, the surgeon and the ID doctor would have to be sued together- and the both of them agreeing on treatment is far more convincing to a jury. However, the expense of the consult is entirely unjustified and makes no difference to care.

Ultimately, the malpractice system is a joke. 98% of patients who are harmed, don't sue. Of those that sue and go to trial, over 70% lose. The people who are actually hurt don't sue, and the people who sue perhaps shouldn't (though no stats are available on settlements). What we need is a New Zealand style system that simply compensates for any rare complication suffered by a patient - similar to the vaccine injury program. That way, we can avoid the 25-30% of the costs that go to lawyers and the courts, compensate victims far more rapidly, and improve medical quality (it's easier to investigate errors when the result won't impact your hospital's payout).
"

Respectfully,
Vamsi Aribindi

Skeptical Scalpel said...

"thethings," thanks for the link. It was an interesting and relevant article.

Ryan, I appreciate your comment. I think that most defensive medicine is not driven by money though. The docs themselves nearly always do not directly profit from ordering tests.

Vamsi, your remarks are spot on. My comment on the lawyer's blog site, which was merely stating that I responded on my own blog, has not been posted either. He has updated his post with some even more nonsensical ramblings.

I am not going to engage him further because it is not worth the effort.

Jay Weigel said...

I got "defensive medicinized" when I went to the local hospital ER expecting to be put on the "fast track" because I knew I had something viral and I only went because I had a fever which was unusual for me. They refused to "fast track" me simply because of my age (over 65) and I ended up getting the full ER workup….to be diagnosed with "viral syndrome" and sent home…….6 hours later. Don't tell this RN (retired) there's no such thing!

Skeptical Scalpel said...

Jay, 6 hours? They must have done DNA studies.

Anonymous said...

He has posted a reply to your reply.

Do you think he knows he is full of it and doesn't care because his position is good for his business or do you think he truly believes he knows how to practice medicine better than most physicians?

Skeptical Scalpel said...

Anon, good question. I would say the answer is "all of the above." He's full of it; he doesn't care because it's good for business; he think he knows how to practice medicine better the most, if not all, physicians.

Ahmad Alhashemi said...

The most telling part from the lawyers post is that he lists a series of tests to investigate the chest pain from least to most expensive, but doesn't say how the less expensive tests inform your decision to proceed to more expensive ones. It doesn't matter what you order, you'll get sued for what you didn't order and that's why you feel obliged to order everything, i.e: defensive medicine.

Skeptical Scalpel said...

Ahmad, I agree. I don't know what the lawyer is trying to say. He claims defensive medicine is a "myth," but advocates ordering every test he can think of.

Anonymous said...

His response to my "venting" comment on his blog was interesting.

Skeptical Scalpel said...

Yes. He was, in fact, giving medical advice in his original post. He did not say that he had hired an expert to tell him what should be done. He is not only clueless, he's arrogant.

artiger said...

Y'all should know better than to argue with lawyers, even if they start it (or maybe I should say, especially if they start it).

Skeptical Scalpel said...

Artiger, if they start it? They ALWAYS start it.

artiger said...

Scalpel, that's kind of what I meant. Sorry the sarcasm doesn't shine through in these posts.

TownesLaw said...

As I told my ortho before he worked on my shoulder, in the two hundred and some jury trials I had done, I discovered that witnesses don't show up and sometimes change their stories when they do, and sometimes a surprise witness changes everything. I told him I figured medicine had a lot in common with trial work, and I only expected him to do the best he could, not perfection. Seems fair. Wish those PI lawyers would stop telling people otherwise.

Anonymous said...

If you look at the comments section on his post, Max identifies the real problem with our medical system: "lazy, arrogant doctors" (his words, not mine).

Skeptical Scalpel said...

Townes, thanks for the comment. You have the right attitude.

Anon, thanks for the update. I had to stop looking at his post. It just annoyed me.

Anonymous said...

There's a difference between liking a doctor who is incompetent vs. one who practices defensive medicine. The problem is that many times they have to practice cookbook medicine bc of lawsuits.

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