22 October 2010

Great Ideas that won't work (part 27)

Peter Orzag is a super smart guy.  He's a wonk's wonk. Serious, articulate and innovative, he possesses some serious nerd-fu powers, and I'm a huge fan of this former OMB director. (We all have a favorite, don't we?)  

But he doesn't know jack about medical malpractice, it seems.

Ezra pointed out a clever idea the Orzag wrote about in his NY Times column regarding medical malpractice reform:

As President Obama noted in his speech to the American Medical Association in June 2009, too many doctors order unnecessary tests and treatments only because they believe it will protect them from a lawsuit. Instead, he said, “We need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine and encourage broader use of evidence-based guidelines.” [...] What’s needed is a much more aggressive national effort to protect doctors who follow evidence-based guidelines. That’s the only way that malpractice reform could broadly promote the adoption of best practices.

Well, it sounds great, especially from a policy nerd's point of view: you kill two birds with one stone. Encourage adoption of evidence-based medicine, and also provide doctors with much-needed protection from baseless accusations of malpractice.  What's not to love?

Nothing, except the fact that it wouldn't work.

Seriously, I have reviewed lots of med mal cases, and, sadly, "failure to follow evidence-based standards" isn't a common allegation of professional negligence.  It's "failure to diagnose" and technical errors that tend to be the big money-losers in the legal arena. Evidence-based standards don't help.

Consider the biggest money-loser in Emergency Medicine: missed MI.  I'm not sure there are formal evidence-based standards for the diagnosis of myocardial infarction, but if there were they would probably be pretty straightforward, along the lines of get an ECG and order serum troponin, maybe with some subrecommendations about serial troponins if the first tests were negative; most of the existing guidelines focus on the most efficacious proven treatments of MI once it has been identified.  But if I may slightly fictionalize a case I recently reviewed, there was a guy who presented in the ER with a toothache. He thought he lost a filling and was triaged to fast track. He never complained of chest pain, though he did have nausea and vomiting (attributed to the tooth pain) and a triage nurse had recorded a complaint of left arm numbness.  He was discharged with penicillin and pain medicine and a referral to a dentist. He came back with a V-Fib arrest  about 8 hours later and subsequently died.

In retrospect, it's pretty apparent what happened here. The treating doctor simply never considered "chest pain" and cardiac issues as an avenue he should work up. An ECG was never ordered, because why would you?  I think this case was not malpractice (that was my opinion) in that this was a very atypical presentation of the disease and most reasonably prudent physicians would not have been able to correctly diagnose this particular MI, based on the information that was available at the time the patient presented. Evidence-based standards really only apply when the diagnosis is already made, or when the presentation is typical enough that standardized work-ups are appropriate.  Orzag's clever idea would not provide much of a line of defense for the physician who simply misses the diagnosis (whether it was his fault or not).

Similarly, if you do follow evidence-based standards, that won't shield you from allegations that you did so incorrectly. Another case I recall was a baby whose mother dropped it on its head and suffered an epidural hematoma. The ER doc did follow what would likely be the evidence-based guidelines and ordered a head CT. The bleed was diagnosed and treated appropriately. The child had a poor neurological outcome, and the plaintiffs later claimed that some trivial delays in the ordering of the CT scan were the cause of the bad outcome.  While in this case, the delay did not cause the bad outcome, it's hard to imagine that the "I followed the guidelines" defense would quash the lawsuit, and in some cases a delay really could cause harm and perhaps should be considered as grounds for negligence.

Then, finally, there are the claims that rely on faulty technical performance. Consider a patient in whom the ER doc follows the guidelines in securing an endotracheal airway, but cannot do so and as a result the patient suffers an anoxic brain injury. Evidence-based treatment is not at all relevant to the question of the physician's competence in adequately intubating the patient.

So what I am saying is that Orzag's proposal, attractive as it is, would not be particularly effective in changing the overall culture of defensive medicine or the jackpot mentality that pervades the medicolegal culture. It would provide physician defendants with an attractive line of defense in some occasional cases, which is welcome.  But as a panacea, or even as a driver of improvement in either of the desired policy arenas, it would be completely ineffective.


  1. Plus there will always be another doctor who is willing (for a few thousand dollars) to stand in front of a jury and claim that because MI occasionally presents as tooth pain, all patients with tooth pain should receive cardiac work up and risk stratification.
    That assertion is of logical error, but I don't think juries care about discussion of rhetoric and logical fallicies...

  2. Forgive a lowly MS1 for wondering aloud how a note in triage of "left arm numbness" does not trump "tooth pain" as the departure point for a line of inquiry. Armchair diagnostician in me would have to work up a differential with that little nugget first.


    Almost any abnormal reported item in the review of systems could justify a work-up on its own. Part of the "art" of medicine is learning how to filter all the random crap that people tell you in the review of systems. Much of it is imaginary or irrelevant or benign, and too-credulous practitioners can spend a lot of time chasing ghosts until they learn the judgement necessary to focus their workups and put things together in the constellations of symptoms that commonly represent disease. This skill is especially important in the ER. This particular case (I simplified it a bit) was one in which in retrospect, things made sense, but prospectively was just shocking.

  4. SFax, get ready. This is what you wanted. When someone comes in, you start asking questions posed to you on a computer screen, and when the final answer pops out, that is the pill you give them.

    The good news is Obama's guys will ensure that if you follow the computer screen to the letter, then you won't get sued. That is where the cost control comes in.

    Do more people die this way? Sure. A smart doctor with the patient in front of him will always out diagnose a committee working a hypothetical. He'll spend a lot more too. And that is the problem.

    These committees will decide when and if you get a CT. If they say you don't need a CT, no worry to you. Your ass is covered.

    If only someone had warned about these panels of knowledge. Maybe if they had a more sinister name, like kill panels, profit panels, or death panels, we would have not taken this all so lightly.

    If only if only if only.

    Congrats on letting the camel's nose under the tent. Now crawl in that bed and tell me how comfy it is.

  5. While tort reform is the intent of Mr. Orzag's argument, from a patients perspective, it is simply a red herring.

    Tort reform reduced Texas' malpractice insurance rates, but the cost of healthcare increased at nearly double the national average.

    Cost control will succeed when physicians compete against each other without the interference of health insurance companies and the AMA's exclusivity of medical coding/number of practitioners.

  6. I had a guy come in with a tooth ache once and something about the way he looked made me do an ekg and he was an AMI. One of the proudest moments of my nursing career. I think it was the way the pain kind of came in waves.

    I get pissed off about people bitching about people ordering tests because of malpractice. They fail to realize that if don't order a test that would have negative results you're not going to get sued. You know "I'm just ordering this CT because its defensive medicine." Bullshit. If you know the guy doesn't have a head bleed you don't need the CT. You're not going to get sued for not doing a CT on a guy without a bleed. You're ordering the CT because you're really not 100% sure he doesn't have a bleed.

    And if the only reason you care about missing a bleed is because of getting sued, well then you're pretty lame.

  7. i had a guy who went to the dentist with "toothache and heartburn," the dentist did a root canal THAT VISIT and then sent him in to "get his heartburn checked out." inferior STEMI, big shocker there.

    also, reform that keeps me from being sued is vastly different than reform that helps me "win" my lawsuit 5 years down the line. which is the "wonk's wonk" talking about? if it's the latter, i would still argue that my current plan of reducing my clinical time to ZERO will offer me better protection.

  8. I would encourage nurses, with whom the buck does not stop, to never complain about doctors who are afraid of being sued.

  9. But the point is the "not getting sued" is bullshit. When the homeless drunk comes in who has absolutely no family to sue, we still do the head CT. Because we really give a shit about missing the bleed whether we're going to get sued or not. That's why we're doing the test.

    You cannot get sued for not doing a CT or lab test if you know that the test is going to be negative. We do the tests because we're not 100% sure of the results.

    What are the damages going to be if you don't do a CT and they don't have a bleed?


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