Random Thoughts from a Restless Mind

I’ve been thinking a lot about health care recently. Real health care, not Health Care as in “Health Care Crisis” or “Health Care Reform”, but the kind of health care that is provided by doctors and nurses and all kinds of other health care providers. You know, like making sick people better, and keeping healthy people healthy. The kind of health care that old guys like me (I’m 52, in case you were wondering) got from pediatricians like Dr. Roy in Southbridge, MA in the 60′s, or like my sons get from Dr. Gerace in Westlake, OH today.

I did a lot of thinking about this some 7 or so years ago, too, when I developed the concepts that eventually resulted in Skyvision Centers. My mini-epiphany at that time is that medicine is the ultimate consumer service business. At its core medicine is about one group of people providing a service to another group of people who either want or need that service. It’s the most intimate type of service, too. One to one. Face to face. You and me.

There is a remarkable lack of difference between doctors (and hospitals, for that matter) when you look at the outcomes that arise from that service– how many people get better after receiving medical care for their illnesses. The difference between the top 1 or 2% of doctors and the 50th percentile in terms of real medical outcomes is remarkably small, and much smaller today than it was in the days of my Dr. Roy.

Sure, there are differences in how people arrive at getting better. Some very instructive studies from Dartmouth have shown dramatic regional differences in the U.S. in how much money is spent on treating heart attacks, for instance. By and large, though, the same number of people get the same amount of better no matter where they are treated or from whom they received that treatment, and the quality of those treatments is several orders of magnitude greater and better than it was in my youth.

So what was it about Dr. Roy that people in my generation seem to have so much trouble finding in medical care today? If the treatment of diseases is so much better now why do so many people complain about medical care today? Why is it that Dr. Gerace has people lined up waiting to see him while other doctors don’t? Why do people rave about their experience at Skyvision Centers and complain so bitterly when they need to have a consultation at some of the most famous medical institutions in Cleveland?

I think it’s because Dr. Roy, Dr. Gerace, and I were all, once upon a time, caddies.

Seriously. We spent the earliest part of our working lives on the lowest rung of the service ladder, providing one-on-one service for a single customer. Because of that I think each of us realized that what really sets doctors (and hospitals) apart is what a patient experiences when they visit. The most successful doctors and the most successful medical practices are those who have realized that the central character in the play is the patient. The most successful caddies never forget that the most important person on the course is the golfer. The job of the caddy is to help the golfer perform a well as possible (maximize the health of her game) while at the same time making sure that she has a wonderful experience on the golf course.

Ben Stein wrote a column in the NY Times about his first real job; he was a shoe salesman. Imagine, at 17 years of age, selling shoes. Days filled with all manner of customers and handling the foot of each and every one of them. Customer service and sales is “learning the product you are selling, learning it so well that you can describe it while doing a pirouette of smiles for the customer and talking about the latest football scores” no matter who that customer might be. Tinker, tailor, soldier or spy, junior partner or janitor. Be they humble or haughty, gracious or grating. Totally focused on that one customer in front of you in order to provide them that service. The same can be said for any front line service job. Waitress in a diner, car mechanic, you name it.

My first summer job was caddying, and I caddied for parts of each summer through medical school. As I think about it now after reading Stein’s article it’s amazing how many parallels there are between my first job as a caddy and my career as an eye surgeon. I toted the bags for one or two golfers at a time; I usually have a patient, patient and spouse, or parent and child in the office. I was a better golfer than almost all of the men and women for whom I caddied; I know more about the eye than every patient who visits, google notwithstanding. In both circumstances my success was/is determined by my customer’s (golfer/patient) outcome, their “score”, as well as their view of the experience. Even a career-best round doesn’t feel quite as enjoyable if it took place over 6 hours in the company of a surly caddy!

I’ve told the story of how being a caddy turned into Skyvision Centers; it’s a neat story and I love telling it. For the moment, though, I have a little experiment for anyone who might be listening, and a modest suggestion for the powers that be in medical education (who most assuredly AREN’T listening). The next time you visit a doctor ask him or her what their first couple of jobs were. See if you can predict which of your doctors or dentists (or nurses) had what kind of jobs before their medical career based on the kind of experience you’ve had in their offices or institutions.

Let’s add a little time to the education of the folks who take care of our medical problems, especially our doctors. How about 6 months selling shoes at Nordstrom’s. Or a year of Sunday mornings slinging hash at a local diner. Better yet, let’s get all of those pasty washed-out interns out on the golf course with a bag on their shoulder and a yardage book on their hip, golf hat slightly askew and Oakleys on tight. Let ‘em learn how to take care of a customer without the huge advantage of all that medical knowledge. We’ll take the best of them and turn them loose in offices all across the land. Those who can’t hack it, the ones who can memorize the history of Florsheim but can’t bring themselves to touch a foot, who are scratch golfers but can’t bring themselves to congratulate the hacker who sinks a 30 foot double-breaker, those we’ll hide in the lab, or put them in huge, anonymous medical centers, one more anonymous member of an anonymous team hiding under the brand umbrella of some “World Class Clinic”  where one-on-one customer service never really happens.Because the ultimate consumer service business is medicine.

Just ask a caddy.

It’s funny how stressful situations remind one of the truisms of life. We are now Day 7 without power in the White house, our own “Little House on the Prairie” complete with fireplace and communal bed (shared by 3 dogs). The tiny generator we were able to score powers the fridge and the sump pump (we had 6 flooded basement episodes in 2011) but not the furnace. The temp just went UP to 52 in the house.

And yet, it’s OK. We have food and we can cook. We have wood and offers of more if we need it. Randy has become a wizard at building and stoking a fire. Me? Grunt work like foraging for wood and fuel, and starting an epically awful beard. The extent of my pique, such as it is, is refusing to wear a tie to work until the power is back on.

We’re OK largely because we have CHOSEN to be OK. It’s a bummer, and it’s a nuisance, but it’s the hand we’ve been dealt, one that is not nearly as bad as others in Sandy’s aftermath. Our attitude is in stark contrast with others on display. One neighbor, a city councilwoman no less, de-camped to a hotel after bitterly complaining about the noise of the generators, our “little engine that could” especially. “We just couldn’t take it anymore.” Really?

My staff and most of our patients handled stuff with an equally sanguine attitude, re-scheduling when necessary, coming in early or staying late, whatever. The few folks who copped a bad attitude stuck out so painfully it was comical. The gal who hung up on me when I told her I couldn’t examine her pinkeye without power (M’am, all I have is a flashlight and a toothpick). The patient coming for a surgical consult, appointment confirmed by automatic email Monday night by a computer that was as dark and dead as the rest of the office when she arrived on Tuesday, who screamed at us for 10 minutes on the phone on Wednesday. Really?

Our circumstances often arrive unchosen and uncontrollable, and most often we are left with no choice but to react to them as well as we possibly can. While the circumstances are beyond our control we certainly can control our attitude, our outlook. We are in control of how we will approach the task at hand. We are in control of how we will approach the person at hand.

Frankly, I don’t know if a positive attitude makes the tasks any easier, or makes it more palatable to get through something tough like this Sandy thing What I DO know is that it is always easier if I come across someone in similar straits, or someone I’ll need for help, if they are at least trying to “put a good face on.” I think this goes for everyday life, too, and making this your baseline choice (a good attitude) might make it easier to keep your chin up when the chips are down.

Attitude is a choice. Your attitude says more about you than it does about your circumstances.

As I posted a few weeks ago, in order to continue to use an outpatient surgery center where I have performed surgeries for 15 years or so, I am now required to use the electronic medical record EPIC. My hope had been that I would be able to continue to run “under the radar” by utilizing my pre-–dictated notes and standard orders, signing the papers as I have done lo these many years. Tragically, this was not to be. Having come to this realization about a month ago I reached out to the IT department and asked for training on the system. Being the somewhat self–involved surgeon that I am, I naturally assumed that a single phone call or e-mail would see multiple individuals leaping into action in order to help me so that I might continue to use that surgery center and generate revenue for the hospital. Silly me.

Four weeks, a dozen conversations, several e-mails, and I am assured more than several telephone calls later, I finally received a call from IT and one of the physician–advocates/trainers. I explained that I had a back log of signatures (little did I know!), and that I would be taking ER call soon, and did he perhaps have some time available to show me how to use the EMR? In the first of several remarkably positive little things in this process, Andrew did, indeed, have some time available the very next morning when I, too, could sit with him for a little bit.

Andrew himself was one of those little surprises. And ex–cop who had put himself through nursing school with the intention of using his nursing degree as a springboard to management, he informed me that he was one semester away from an MBA. It was clear he was anticipating a hostile interaction; this had been his typical experience when teaching physicians the system, especially private practice physicians. I liked him instantly, we connected, which probably contributed to the speed with which we flew through phase 1 of my indoctrination.

This can’t be all good, of course, otherwise there would be no reason to do this series! After learning how to get into the system (no, you cannot change your username), we looked at my chart deficiencies, specifically op notes that needed to be signed tracing back to November. I cleaned up all the old stuff, and then we got stuck with all of the charts that were sitting there from last week. Apparently part of the efficiency of the system allows the medical records department to put you on the “bad boy” list as soon as the case is done! We agreed to ignore these deficiencies since these would still be paper charts needing to be signed and moved on to pharmacy orders.

This was rich. I looked at about 200 orders with a “signature required” tag. Things like IV orders, and medicine injected to into the IV. Some were anesthesia orders which have no business on my list, and essentially all of the rest had already been signed. Andrew told me he’d taken a look at my in basket before we met and deleted three or four months of the pharmacy orders. I think the number he used was 800,000 orders! Whoa, maybe this isn’t going to go as well as it looks like it might. There is no connection between the electronically entered pharmacy orders and the signatures on the order sheets! 30 some odd orders per patient, each one individually entered and requiring a signature. I did 22 cases yesterday! Are you kidding me? This is what my colleagues were talking about when they mentioned the four minute per chart rule.

Like I said, though, this was a surprisingly positive interaction. Andrew took a couple of screenshots and said that he was going to sit with the IT magicians and see if we might be able to figure this particular one out. Man, that’s gotta work. I mean, the whole exercise took me about 45 minutes, and I didn’t even learn how to ENTER an order.

I can sign one, though. I’ve got some ER call coming up, and I’ll have to do some–patient consultations as part of my responsibilities. I’d better polish up my “helpless look” and rehearse my supplications. Getting someone to take verbal orders is gonna be the key to salvation.

More to come…

For all of the whining, moaning, and kvetching, eye Doctors have really good jobs. Especially eye surgeons. Well, at least the eye doctoring part of our jobs.  Sure, the business part of running any medical practice is hard and getting harder every day; buried under the never–ending avalanche of new and existing regulations, it’s a wonder we ever get to practice any medicine at all. But when we do, we actually have a pretty good job.

Some of the stuff we do and the successes associated with that are really quite obvious. Take an older individual who is about to lose her drivers license because she can’t see, remove her cataract, and all of a sudden you might have a 75-year-old “Mommio Andretti”! I don’t care who you are, that’s pretty cool. Add in some of the extraordinary new advanced lens implants and we have retired people who started wearing glasses in the third grade running around with bare naked faces. Seriously, you could be Genghis Khan and if you take someone’s vision from 20/100 to 20/20, people are going to like you.

It used to be that retinal surgeons celebrated “anatomic success”, the achievement of a normal appearing retina. Nowadays, with the advent of advanced micro surgical techniques and injectable medications, retinal surgeons are not only are preventing vision loss but they are improving vision in everything from retinal detachments to wet macular degeneration. They don’t really have any refractive retinal surgeries yet, but I’m thinking it’s only a matter of time. Think about it–how good is your job if you take someone with a bleeding retina and 20/200 vision, and a few months later they can drive a car? Pretty good job.

Some of the mundane things that we all do, things that are profoundly uninteresting to eye doctors, have an outsized importance to our patients. The surface of the eye has more pain fibers per unit of area than any other part of the body. If you believe in evolution, and I do, this actually makes a lot of sense. We are such visual creatures that our sensory cortex devoted to vision is dramatically bigger then any other mammal. Those pain fibers prompt us to rapidly close our eyes for protection. Ever get anything in your eye? A piece of gravel, perhaps a tiny piece of metal while doing some grinding? How about a scratch? It’s amazing how many people are assaulted by their Christmas trees in December and January. Its bread and butter for us, but making that “jump off a bridge” searing pain go away makes for a pretty happy patient. Happy patients make it a good job.

Whenever I get a little down or blue, overwhelmed by all of the minutia of running a business, or borderline depressed at the thought of ever more government intrusion into the space between me and my patients, I remember just how good my job is when I can get to doing it. I don’t really think about all of the high-tech things, the LASIK, the cataract surgery, the fantastic medicines I have at my disposal to treat things like infections or glaucoma. No, what think about is the oldest, least fancy, most routine part of my job: prescribing that first pair of glasses to a kid who can’t see. Seriously, you should see the look on their face when they realize just how poorly they’ve been seeing. Even better, the “AHA! moment” when you put that prescription in front of their eyes and all of a sudden there’s a 20/20 line on the eye chart. I’ve been at this for 25 years or so, and that moment, that simple, low–tech moment never fails to make me smile. When the simplest, tiniest thing you do can make someone that happy, well, you’ve probably got a great job.

Like me.

I am about to be forced to use the EMR abomination know as “Epic” in order to continue to perform surgery at a particular institution, one where I spend ~10% of my clinical time. My work there is very profitable for the institution; I am not paid by the institution. At present my administrative load is 2X what it was 5 years ago, but the majority is borne by my staff. Once I am required to use their EHR my administrative load will increase at least 20X and I will bear all of it.

Why? My forms are standardized and fulfilling my part of the administrative load presently requires approximately 8 signatures for each case. 8 swipes with a pen on 8 pages layed out before me and marked “sign here”. Time = 0:10/case. Soon I will have to sign into the system for each case and move through a series of ~5 steps to reach the point where I will perform the digital version of my sweeping pen. Time, I am told by colleagues using the system to achieve this, = ~4:00/case. Let’s be generous and assume that they can’t possibly be correct, that it can’t possibly take 4:00 to do digitally what I now do with a pen (Heaven help if I have to enter pre- and post-op orders w/out standard forms!), and that it’s only 2:00. A typical OR day includes 20+ patients. 40 minutes added minimum. Did I mention that I have to do it TWICE because you can’t sign an op note right after surgery?

Lest you think this 52 yo doc is a Luddite and has avoided any and all such technology let me assure you that quite the opposite is the case. We have had an extremely efficient EMR in our office for 7 years; our management and scheduling has been done by computer for 16. My home is littered with Apple products. I’m a buyer of tech WHEN IT MAKES SENSE.

Unfortunately, it appears that I’m about to be forced to be a buyer of this “meaningless use” very soon. I thought I’d share the experience with you here. I’ll keep a log under “The Epic Adventure” and I’ll record not only my experiences but also the time I will be forced to “invest” in learning how to use the system and the time it takes me to comply with its requirements.

It promises to be quite a ride, albeit a rather slow one

8:00 p.m. on a Friday night. An urgent page from Express Scripts. “Approval needed for sleeping medicine, Agnes Jones*. 800–333–4444.” Agnes Jones is a nursing home patient with a brain tumor.

4:59 PM, Friday afternoon. Telephone call from CVS pharmacy. “The nonsteroidal anti-inflammatory eyedrop that you prescribed is not covered by Mrs. Jones’ insurance company. We need your authorization to change to the generic version.” We told Mrs. Jones in writing that the generic version was inferior, caused pain, and had 10 times the complication rate. On Monday.

7:30 AM, Sunday morning. Telephone call from answering service. “Doctor, the prescription that you sent electronically on Tuesday for Mrs. Jones was written incorrectly. Please correct this and refile it immediately. Please remember that your status as a provider is contingent upon meeting our customer service standards.” Confirmation of receipt/prescription filled was received on Wednesday.

And, my very favorite, most recent telephone call, this one from the daughter of one of my patients. “Dr. White, NALC needs you to send them a letter proving that my father’s eye drops are not prescribed for cosmetic purposes.”

Welcome to the world of the American physician in the modern era. There are, of course, a host of entirely appropriate responses to all of these pages, beeps, and phone calls. However, this last one put me over the edge. I sat at my desk with the message in front of me, closed my eyes, and thought about how I’d REALLY like to respond. The totally, truly amazing part about this request to justify the eyedrop prescription was that, not only was all the information necessary to cover this already on file at NALC, and not only did a real, live human being actually look at this file, but she admitted that and gave me her name! Ya can’t make this stuff up.

“Dear Alex:

Thank you for this opportunity to express my thoughts about some of the pitfalls associated with the pending ‘meaningful use’ regulations for computerized health records. After you personally reviewing the record you requested information about eyedrops that I prescribed for one of my patients. There is apparently a concern about whether or not this patient is using said medication for cosmetic rather than medicinal purposes. As you know, among the more significant ‘meaningful uses’ of electronic medical records are to make sure that everyone has the same exact information about a particular patient, to utilize this information in such a way that proper care is ensured, and to be more time-efficient for the patient, doctor, and everyone else involved in the care process.

If you will open up your file again regarding the patient in question, JOSEPH Smith, you’ll see that, had meaningful use activity actually been applied, this entire communication could have been avoided. Had you actually read the file you would have seen that MISTER  Smith is an 87 YEAR OLD MALE with a long-standing diagnosis of GLAUCOMA. As your software no doubt shows, the eyedrop Lumigan  is a first line medical treatment for glaucoma. All of this information is contained in your database since Mr. Smith has been taking this medication for no fewer than five years, and the bill for his office visit was paid in full by NALC, diagnosis: glaucoma.

A copy of this letter will be forwarded to my US Rep. and two senators, the FDA, and CMS along with a note asking how they propose that all of their fancy new laws about EMR and ‘meaningful use’ will prevent lazy and incompetent file clerks from blinding my patients.

I trust that the information in this ‘old–school’ letter is meaningful enough to prove that Mr. Smith’s use of Lumigan is not for cosmetic purposes.

Sincerely,”

——————————————————–

“Dear Alex,

Attachment: Pic.JSmith.jpg

Seriously? Really? You would like me to prove that my toothless, 87-year-old patient named JOSEPH is not using his glaucoma drops for cosmetic purposes?! The guy with the electronic bill in your system with a diagnosis for glaucoma, taking three other glaucoma medicines, all for 20 years? The Joseph Smith who can’t be bothered to remove the 11 skin cancers growing out of his face like barnacles on a sun-scorched barge? COSMETIC?

This is a joke, right?

Sincerely,”

——————————————————————-

” Dear Alex,

You caught me! But please, don’t tell anyone else. We have the largest population of semi retired 87-year-old drag queens in America in our practice. They just can’t let it go! We have been prescribing medicines so that they could maintain their long, luxurious eyelashes forEVER. I mean, who WOULDN’T rather have long, thick, natural lashes, especially after a lifetime fussing with those falsies and all that icky, sticky glue. Joe has been SO happy!

It’s amazing how important it is for him and all the ‘girls’ to be able to bat their eyelashes at those cute boy orderlies in the nursing home.

Not that there’s anything wrong with that…

Sincerely,”

Sigh…

*All names are fictitious, of course. The examples are not.

It’s become one of those trendy phrases, “unnecessary care”. When you hear it on television or talkshow radio it’s usually said with a sneer. Indeed, the speakers almost spit the phrase out–“Unnecessary care”–like it tastes bad.  It’s almost always accompanied by “fraud and abuse”, or a not so subtle accusation that some doctor is profiting off this “unnecessary care” at the expense of some poor patient. But is this true? Is this always the case? Are there no longer any circumstances whatsoever where the doctor really DOES know best?

I’m an ophthalmologist, an eye surgeon.  Every single day in the office I see several patients who have enormous cataracts which have dramatically affected their vision, and yet they are not only totally unaware of this decrease, they are militant in their rejection of surgery to improve their vision. Some of them have vision which has decreased to a point where, not only would they fail their drivers license test, they are nothing short of a menace to society behind the wheel. Because cataract surgery is an elective procedure, the patient gets to choose whether or  not to proceed with surgery. In other words, operating on a patient with a cataract who does not feel he has a problem would be “unnecessary care”.

The opposite version of this happens every day, too. In about 25 states there are strict, numerical guidelines that insurance companies (including Medicare) used to determine whether or not cataract surgery is “medically necessary”. Not a day goes by when I don’t see a patient who is bitterly unhappy with her vision, and yet her measured visual acuity is better than the threshold for “medical necessity”. Despite the fact that this patient feels handicapped by decreased vision caused by a cataract, operating on her is considered “unnecessary care”.

It kinda tricky. Sort of a damned if you do, damned if you don’t thing. I know it seems like a rather fine distinction, but cataract surgery is actually a big deal when it comes to the economics of medicine in the United States. Did you know that there are almost 3,000,000 cataract surgeries performed every year in the United States? Could some of these surgeries have been “unnecessary”? I dunno. I’m really struggling with the definition of “necessary”, frankly. Is cataract surgery in my two patients unnecessary? Says who?

You can achieve the same relative mortality rates for atrial fibrillation with either a cardiac ablation, or a cocktail of medications. Maybe you are medicine–free with the ablation, and therefore free of not only the yoke of your daily medicine schedule and side effects, but also the considerable burden of navigating your health insurance-approved medication list. The ablation might be 10X the cost of the medicines, but does that make it “unnecessary”? Too much? Says who?

So how do these two cataract patient scenarios play out at Skyvision? Well, the very unhappy patient with a cataract of any size whose vision does not reach that threshold level of “medical necessity” always chooses to wait until her insurance will pay for the cataract surgery. Always, whether she is a retired schoolteacher or a wealthy heiress worth tens of millions of dollars. She leaves the office unhappy, frustrated, and frightened. She cannot enjoy her daily activities because she cannot see well enough, and she is frightened by the prospect of normal activities like driving.

The other patient? Well, this patient typically has a monstrous cataract, so brown and cloudy it’s like looking through beef broth, or even beef gravy. This patient gets angry, too, but he is angry at me. He’s angry and offended that I would have the audacity to suggest that his vision is poor, too poor to drive, for example. He doesn’t understand what 20/50, or 20/80, or 20/100 vision means, and frankly he doesn’t really care. He’s got a drivers license, dammit, and he’s legal to drive. These visits almost always end something like this:

Me: “What kind of car do you drive?”

Patient: “A crown Vic.”

Me: “What color is your Crown Vic?”

Patient:” White. Why?”

Me: “Because my wife and kids are driving on the same roads as you, and I’m going to tell them to stop and pull over every time they see a white Crown Victoria.”

I say THAT’S “necessary care”!

They got it half right. The jury that is. The jury in the malpractice case in which I just served as an expert witness got it exactly half right. Kind of like our whole medical malpractice court system if you think about it. A young woman had a bad outcome in one of her eyes following eye surgery, an outcome that has caused her quite a lot of unhappiness, quite a lot of difficulty. The jury was quite correct in recognizing this, and also quite correct in recognizing that this woman was going to need some financial help in order to make this difficult situation even a little bit better. In order to make this happen the jury found the doctor who performed the surgery guilty of medical malpractice.

Only one problem with that, though: no true malpractice actually occurred.

Herein lies the essential, fundamental problem with our medical malpractice tort system as it is presently constituted. Every single malpractice case is a “zero–some game” in which the only way that an individual who has been injured or otherwise suffered a bad outcome from some medical experience can receive financial help is for some doctor (or hospital) to lose a malpractice case. As an aside, the plaintiff’s attorneys, the lawyers who represent the victims of medical misadventure, must win the case in order to be paid. (The full–disclosure necessary here is that the only people who are guaranteed to be paid are the defense attorneys and the expert witnesses on both sides of the case.)

I’ve actually been up at night, literally losing sleep every night since the conclusion of this trial. That’s actually kind of odd, and doesn’t really make any sense at all because I received rave reviews for not only my testimony but also for the strategy suggestions I made over the four years it took to bring this case to its conclusion. Indeed, even the court reporter went out of her way to tell the defense team what a great job I had done. It’s kind of like getting all kinds of pats on the back for making 10 receptions for 200 yards in a football game your team goes on to lose–pretty empty feeling despite the fact that you did your part well.

What then, exactly, is medical malpractice? In the civil court system in the United States medical malpractice requires that two things have occurred. First, a doctor (or hospital) must commit an act of COMMISSION (do something) or an act of OMISSION (fail to do something) that falls below the Standard Of Care. This failure to meet the Standard Of Care must then result in some kind of harm to an individual. To be extremely technical and to–the–letter correct, the failure to meet the Standard Of Care is malpractice, and the resulting harm is malpractice liability. No need to get all tied up in that kind of detail; let’s just call the whole thing medical malpractice.

The Standard Of Care is a difficult concept. In effect, the Standard Of Care is defined as that care or medical decision-making that a preponderance of (most) similar practitioners would provide in similar circumstances at that time. Pretty nebulous, huh? Not a terribly rigid, hard, easy to put your hands around definition, and it’s a moving target on top of that. The Standard Of Care is an ever–evolving thing; new research findings, new technology, and new patterns of care will all combine to create a Standard Of Care that may be different today than it was even last year.

In this particular case there was never any question that it was a medical procedure that caused this patient to have such a bad outcome. There was never really even any question about the technical quality of the work performed by the doctor. No, what it all came down to was a question of whether or not the surgery should have been performed in the first place, and thus came into play that subtle little part of the Standard Of Care, the difficulty in describing to a jury of non-–physicians the difference between the Standard Of Care today and that of some years ago. The lawyers for the patient did a brilliant job of burying the jury with the details of HOW the complication arose, the difficulties that have arisen because of the complications, and the uncomfortable interactions that occurred between doctor and patient in the months following the surgery. They confused the jury about the difference between “could have done” (more than the Standard Of Care) and “should have done” (Standard Of Care). The lawyers were able to bury the fact that the Standard Of Care was followed by the doctor in question because at the time of surgery the PREPONDERANCE of similar physicians in similar circumstances at that time would have done the SAME THING.

The jury got it half right.

There, in a nutshell, is everything that’s wrong with our present medical malpractice tort system. In order for this woman, obviously harmed by this procedure, to receive some award so that she can do certain things that will make her life easier, she and her team had to “beat” a doctor and win in court. And oh yeah, she’ll also have to give 40% of whatever her award might have been to her lawyers. I think that’s a big part of why I’ve been having trouble sleeping. Not the lawyer payment thing, but the fact that a doctor who (in my opinion) practiced within the standard of care must now have a black mark against his name so that a patient can get some money that I frankly think she deserves.

Maybe a better analogy of my role in this “competition” would be something more like this: I was the consulting coach brought in to suggest an additional element to a figure skater’s program. Assuming that everyone in the competition was as conversant with the subtleties of the rules involved I suggested that the skater add an elegant, understated movement that would be obvious to any experts on the panel of judges, the jury as it were. Unfortunately, in our American system of medical malpractice, that’s not the case, and the opponents eschewed subtle elegance in favor of multiple quad jumps. The skater I assisted performed totally within the letter of the rules, but was penalized because the jury, the panel of judges, was not really an expert panel and missed the added element. And so he lost.

I DO wonder though what my reaction would have been if the opposing skater who landed all those quads had been the one who lost. Would I be up at night over that, too?