Moral Monsters

There’s lots of reasons why the lawsuit over John Ritter’s death (the “Three’s Company” actor, if you remember that show) is categorically asinine.  You can read about the latest here.  But here’s one of the biggest problems with the case:

The suit is for 67 million dollars.

The jury are being told that the doctors did everything wrong, largely because they treated Ritter for a heart attack when in fact he was having an aortic dissection.  Only mildly important in this case is the fact that the dissection actually did lead to a heart attack and that, in general, they are extremely easy to miss.  There’s lots of ways to interepret the actions of the medical staff and lots of mistakes that can be identified now that we have all the information about the case.  But note who is making the claim – lawyers.  Not doctors who have been in these situations.  Not doctors who have made similar mistakes.  Sure, they’ll get some doc to say exactly what they want on the stand, but the argument is being made by lawyers.  These are people with no training in medicine and who probably had to look up ‘aortic dissection’ before they took the case.  They aren’t in this game for truth, or to improve the medical system.  They want one thing:

Show them the money.

As I’ve mentioned before, the major problem with medical litigation in the U.S. is the financial incentive.  Ritter’s lawyers have already successfully sued the hospital and 8 medical personnel for close to 14 million dollars.  Now they’re suing two doctors for an additional 67 million.  These lawyers stand to make a fortune on this case.  They’ve hit the jackpot.  A typical John Edwards haul.  Soon, after the minor detail of catastrophically destroying the emotional and possibly professional lives of two doctors, these lawyers will be able to enjoy their 26,000 square foot homes, $400 haircuts and send their kids to the best schools in the land, just like our earstwhile presidential candidate who also sued doctors to ascend to his upper-class life.

You can say that people are basically good; that common decency would dictate that you don’t excoriate someone for an honest mistake, especially if the truth is murky and unclear anyway.  You might assert that we all need grace in the harsh light of hindsight and you might be honestly grateful for the times when this kind of grace has been extended to you.  Most people believe these things.

But I bet you still wonder at times – while living out your grim job day after day with no hope of real financial freedom – just what it would be like to live in a mansion and never have to worry about money again.  What would it be like to get the best service, own nice cars, have the ability to take care of your financially ailing family?  We’d all like to live that way…the allure of a life like that is intoxicating even for good people who generally want to do good things in the world.  This is why the system is broken.  When it comes to medical litigation, the very rules  we follow entice even the moral among us to become monsters.

Make It Right – More Thoughts on Medical Litigation

Thanks to all who dropped by over the past few days. My latest post about apologizing in medicine caused a more than 300% increase in hits to the blog. That particular post was listed at #24 on the WordPress Blog of the Day list as well. The coolest part about that was seeing my wave avatar – the greatest avatar of all time – in line between some guy’s face and a picture of handcuffs! Anyway, I seem to have hit a nerve.

Although not the only thing I think about in my job, I will continue this line of thought with a little (true) story:

I had a friend in high school who had two pet parakeets. They seemed like they were pretty close pals in their cage – snuggling together at night, chirping at each other…you know, parakeet stuff. When my friend (let’s call her “Beth”) woke up to find one of the parakeets droopy and sick-looking, she quickly put him/her into a little shoe box and whisked it to the nearest veternarian to get checked out.

The vet, who no doubt had many years of education behind him, probably didn’t see many vaguely ill parakeets. Be that as it may, his “physical exam” didn’t go so well. In the course of pushing on one part of the bird, my friend hear a distant *snump*, and suddenly the bird’s head pointed in an acute angle from the body. In short order, the bird went completely limp. The sweet little parakeet – singer of songs, snuggler of partner parakeets – now dead at the hands of the medical professional entrusted to it. The vet looked up to what I’m sure qualified as highly uncomfortable stares of reproach and surprise. Beth was too shocked to much more than mutter, “Oh my god, you just killed my bird.”

“Uh..,” He searched around the exam room. Reaching into a drawer, he pulled out a brown paper lunch sack, dropped the corpse into it, rolled up the top and handed it to Beth’s mom. “That’ll be no charge,” He said, subdued. “Sorry about that.”

So my friend went home with her bird that may very well have died anyway, but now was dead for certain. And from a broken neck, not some mysterious infection. She showed the carcass to her other bird, who let out a warble of what any human raised on a steady diet of Disney anthropomorphisms for a decade could only interpret as the parakeet version of rending garments and gnashing teeth (or beak) in abject sorrow. Furthermore, she thenceforth enjoyed her surviving bird very little at all. It quit singing and became rather “pecky”. It also began masturbating an average of 5 times a day, which altogether made for a rather dispiriting pet, especially when there was company (they had to hide the hapless, undersexed avian in the closet).

So, the vet messed up. But imagine if after dropping the bird unceremoniously into the paper bag, he had unabashedly walked out to his front desk and filled out a bill for a typical visit. “Sorry about killing your bird. That’ll be 80 bucks. Cash or credit?”

In my mind, if you make a mistake in good faith, you should apologize and then try to make things right between you and the person who has been harmed. This entirely justified premise, I think, led to the birth of medical litigation. But this perceived need for litigation came about because of hospitals themselves. Just a few days ago, it was announced with some fanfare, that hospitals here in the Pacific Northwest, would “tear up” bills to patients who endured medical mistakes. They just decided to employ this policy? After 30 years of catastrophic, irrational and flagrantly craven medical litigation, they’re just starting to do this? Can you imagine going to the hospital and leaving with the wrong leg amputated…and then getting a $26,000 bill for the procedure? Until recently, this was actually pretty common. No wonder people got the courts involved!

Hospitals provide free care to homeless and destitute – largely through their ER where they can’t turn people away – on a regular basis. My hospital gives away over a million dollars in care every year. They write it off as charity care and the government gives them a break on their taxes for it. They have a budget for this already. There is absolutely no reason why they can’t designate some patients as qualified for free care for certain problems caused by the hospital staff. No, some guy can’t have monthly chest CT’s because a hangnail got infected while walking across the parking lot to pick up 80 cartons of Virginia Slims. But any continuing care associated with a medical mistake should be free.

Imagine a patient and family being seated in a nice conference room. In attendance are the top administrators of the hospital, the lead doctors and nurses and anyone else heavily involved in his/her case. The doctor then verbally apologizes for a serious mistake that was made even though the entire team had the best intentions. S/he can describe what led up to the mistake and explain how it actually occurred. Then there is an explanation of what is being done to try to protect others from a similar situation. After the doctor is done, the hospital C.E.O. can then tell the patient that all care related to that mistake will be covered by the hospital. Forever. It’s taken care of. Then, the patient and family gets to say talk. They can say anything they want – to the doctor, the nurses and staff on their case, or the administration. This is their chance to rant, to bitch, to tell off the medical team if they want to. They can get everything off their chest and ask any questions they have. They can make recommendations and requests.

I believe that a hospital (and individual clinic) process like this would nearly eliminate high-payout medical litigation. With one other major additional change: Cases should NEVER result in financial independence for the plaintiff. Courts should be used help find blame when the patient and the hospital/doctor disagree. If it is found that the doctor is to blame, then the doc and the institution should be required to provide any related care for as long as necessary. Multi-million dollar payouts, by contrast, provide too much incentive to win the case for Machiavellian reasons. Suddenly, instead of just trying to figure out who is to blame, people are trying to prove incompetence, denigrating character and reputations and flat-out excoriating one another. This system is why I’ll never trust John Edwards, who lives in 26 THOUSAND square feet of house, but professes to care so much for poor people.

It’s easy to say this whole tort system is about the patients harmed, about justice. But as the system is set up, it’s mostly about the money. Lawyers and too many patients get involved with medical litigation to make themselves rich. They should be getting involved to make things right. There’s a big difference.

Medical Mistakes – Never Apologize

I learned early on that you don’t say “oops” in the OR during an operation. Even though the patient can’t hear you (supposedly), you still never give any indication that a mistake occurred. Ever. It’s like religion. Don’t mess with it.

What I’m still coming to terms with is that you really shouldn’t say “oops” anywhere in the medical field. A trial lawyer’s favorite word is “oops”. And there’s this unspoken pressure to withhold admission of mistakes from patients because – doctors worry – the patient will lose confidence in the competency of the doc if it is clear that a mistake was made.

I once gave a patient what is generally regarded as a pretty small dose of dilaudid – a narcotic pain med commonly used on hospital floors. She was about my age and of normal weight and having excruciating headaches, we think caused by herpes virus infecting the meningeal layer of her brain.

Imagine that pain for a moment: If you’ve ever had a cold sore or fever blister…think of that happening inside your skull, but scattered all over your brain. I think I’d rather just crush my head in a trash compactor. Naturally, until we could actually do something to cure this woman (there actually isn’t much that CAN be done), I wanted to do what I could to help with the pain. Still, she was young and thin, so I ordered a fairly minimal dose range of 0.5 mg – 2 mg. The actual amount could then be determined by the nurse based on how much pain the patient was having.

The next day, I returned to the hospital to find that my patient had nearly quit breathing overnight, after just one dose of the narcotic at 1 mg. The nurses had called a “rapid response” team to her room, which is one step away from calling the “code” team, which is that group of heros in primary-color spandex who come in and bashes on your dead chest screaming, “C’mon, dammit, don’t you leave me!” So, basically, she almost died. My first thought was that I contributed to the problem because I gave the order for the narcotics. I figured I shouldn’t have given a dose range and should have just written for the 0.5 mg dose until I saw how she handled that amount. And I could have spent more time with her to determine how she reacted to narcotics. I could have avoided narcotics in general and just told her to, “Quit gripin’ you baby-faced American. It’s just a headache. They don’t have IV dilaudid in Darfur and everybody does just fine.”

So, I got up to her room quickly after morning report and found that her mom was also in the room. I should mention that I regarded both of these women as friends as well as patients. This woman’s headaches waxed and waned, so in the previous days I spent as much time talking about life and joking about all kinds of common interests with she and her mom as I did talking about her condition. We got along great and I related to them – in particular I related to my patient’s wry sense of humor and I admired her courage as she dealt with what really is a “short straw” dealt to her by life. So, naturally, when I heard she almost stopped breathing, I was concerned and dismayed. It was like being told your friend almost died but don’t worry, everything’s ok now.

Really? What happend? I need to talk to her and make sure for myself.  Like any friend would.  Like any doctor should.

Swooping into her room that morning, I already noted that her vital signs had stabilized over the previous few hours and that things were – from a “gonna die or not” perspective – resolved. “Jeez, what a tool of a doctor you have!” I exclaimed. “Wow, I’m really sorry about that. I never expected it at that dose.”

After checking her out and seeing that she was actually fine, I asked in all seriousness, “So, did we get rid of the headache?” The three of us laughed. “By God, if it kills me, I’m going to stop the pain!” She replied. We then seriously talked over the best plan for her…which didn’t involve the same level or type of narcotics.

The patient did well over the next couple of nights and eventually went home. It seemed to me that we were on good terms with each other and I felt like I had approached the interaction in total honesty throughout. Was her near-calamity my fault entirely? No. But I did contribute to it, and felt that admitting it was a good thing to do for the relationship between me and the pt. and her family.

So I apologized in the way that a friend might apologize to another friend. I was as much saying I was sorry for the way things turned out as I was saying that I did something wrong. It’s like I took a friend to dinner and they got food poisoning. I would apologize for that. But I would be expressing regret over the situation entirely, including whatever I may have done to facilitate my buddy sinking his head in the white throne of grace for 3 days straight. This thinking, however, met with some harsh responses among my superiors. “You APOLOGIZED? Don’t you know that’s effectively an admission of guilt? How do you know it was you? Maybe she took something else you didn’t authorize. Maybe the nurse dosed it wrong. Maybe she was dehydrated.” Blah, blah. My point was I was sorry for what happened…HOWEVER it happened.

I can’t see where the legal system has helped medicine that much. I’m certainly dismayed to work in an environment where I can’t say I’m sorry without first considering the legal ramifications of doing so. Lawyers have succeeded in sucking the notion of friendship and genuine relationship between doctor and patient entirely out of the equation. In the vacuum, they have managed to inject calculation and risk-management. If I’d been told prior to going to med school that I would be required to appraise every patient for their potential aggressiveness; to size up their projected risk to me, I most certainly would have chosen another field.

But, hey, the system demanded 300k in loans from me, so I’m stuck. Therefore, I’m practicing a stable of post-error responses akin to: “Too bad that happened. Must suck to be you, but good thing you have an infallible doctor that didn’t contribute in any way to what happened. The nurses around here are pretty air-headed, by the way. Did I mention that before? Anyway, not to worry. I’ll find that nurse and rest assured I won’t sleep until I can be certain you get the correct dose next time.”