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I got a call recently from a friend asking me to look at the medical records of another friend’s mother who had died in the hospital. You might assume that they just wanted some more medical information, but I’m also a lawyer. Not one of those slimy bastards that sues doctors. I just got a law degree for the masochistic fun of playing on the dark side. Anyway, when people come to me for a ‘medical opinion’ of the care someone received, I know what it is really about. They routinely claim that, “We don’t want to sue anybody. We just want to know what happened.” And often times they are being honest, at least initially. But in the back of their minds is a voice that says, “This shouldn’t have happened. It must be someone’s fault. That person should be punished.” And even further back in their mind is a tiny voice that whispers, “This could be worth millions.” The fact that the patient was over 80 years old and had long-standing valvular heart disease made little difference to the family. They felt that somebody had to have screwed up for their mother to die. The real problem was that deep inside of me was a voice that wanted to agree with them.

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Last month I had the privilege to address the International Conference on Emergency Medicine (ICEM) in Singapore on the topic of defensive medicine. I felt like an addict standing before a crowd warning them not to go down the path that America has taken. By our own admission, we have allowed a system to balloon out of control that creates unrealistic expectations from patients. Patients believe that we can cure, fix, or mend almost anything. And on the flip side, if a positive outcome is not reached, it’s because someone – usually a doctor – failed. The result is that the public spends anywhere from $150–$200 billion a year on tests they don’t need so we can cover our butts in the event that we get sued. We like to blame lawyers for causing the problem, but they couldn’t have done it without our help.

For the last several years EPM has run a recurring column called The Standard of Care Project. We send out a case scenario to several thousand readers who then respond by telling us whether they think the EP in the case met the standard of care. I never cease to be amazed by how hard we are on each other. And I say we, because I am like many others. Knowing that there was a bad outcome, I comb through the case looking for the smoking gun, the flaw in thinking, the gap in knowledge. And when I find it, I get a smug sense of satisfaction by announcing to myself, “I wouldn’t have done that.”

We are much like the test pilots in Tom Wolfe’s The Right Stuff who would sit around the bar after a friend had crashed a plane and dissect his final moments. They would silently conclude that his crash was a personal failure reflecting the fact that he just didn’t have what it took to be perfect, like they were, because they were still alive. Likewise, we often look at our colleagues’ bad outcomes and conclude that it had to be the result of having done something that we would never do.

The result is that this new level of CYA testing and treatment becomes the standard of care. “He was negligent for not covering the remote possibility of this bad outcome.” When EPM surveyed readers recently, over 80% responded that they ordered tests that they didn’t feel were needed for quality care, but were ordered simply to give some sort of assurance that they did everything possible in the event of a bad outcome. This kind of defensive medicine is called “assurance behavior”.

But there is also “avoidance behavior.” How many consults and referrals occur for problems we are fully capable of taking care of ourselves? But we pass on the case for fear of criticism in the event of a bad outcome. Our on-call list of subspecialists do the same thing, passing the buck to the referral hospital or refusing to take call at all.

So how do we start to climb out of this hole that we’ve dug for ourselves. First, I say that we shouldn’t look to outside sources for help. The new health care reform bill promises to set up panels of ‘experts’ to determine cost effective treatment protocols. But even if compliance with these guidelines provides some type of ‘safe harbor’ protection from litigation, we could still find ourselves in a new but similar position. Bad outcomes will still happen. And lawyers will still be looking for every minute deviation to exploit. And we will provide the ‘experts’ to point to those deviations.

No, I believe that the answer to defensive medicine and the damage it has done to our health care system lies in our own hands. We are the ones who establish the ‘standard of care,’ beneath which is negligence. We must first start with the understanding and agreement that medicine is as much art as science. And by that I mean that there are some questions and situations to which we simply do not have reliable empirical answers. Practitioners are left with making their best effort, under a given set of circumstances. We need to extend to one another a spirit of grace.

But for those circumstances where there is reasonable empirical evidence, we need to establish clear, evidence-based, widely publicized and agreed upon standards of care. These standards of care need to be understood as what the non-negligent physician would do under similar circumstances. Intelligent people can disagree about what is best practice. But we should all agree on what is non-negligent. There should actually be a gap between what is thought to be best practice and non-negligent practice. Right now, that gap is narrow if it exists at all.

Some may argue that I am advocating for a dumbing down of the standards of medical care. I am not. I am simply recognizing the areas where people of reasonable intelligence have examined the same research and have come to different conclusions. Negligence is not falling below some academics idea of perfect care. Negligence is failing to do what most other similarly trained specialists would do.

To that end I have started a new phase of the Standard of Care Project. I have begun the arduous task of formulating some very basic statements of what is standard care in certain given circumstances, beginning of course with the areas most prone to litigation. I will begin by sending the first of many emails to EPM’s loyal readers. It is my hope that you will help me hone these reflections and then eventually sign your name to these statements. This is a viral, grass roots project with no funding or outside help. It will only succeed if recipients pass it along to their colleagues. I remind you that I’m not trying to establish best practices, simply what is non-negligent. I think we all should know that when we see it. When a sufficient majority of the universe of emergency physicians agrees on a given statement of the standard of non-negligent care, these statements will be made public and available to trial attorneys, both plaintiffs and defendants. It is my hope that someday, when a plaintiff’s attorney attempts to introduce the testimony of an expert that is clearly his opinion of best practice, the defense will simply reply, “Doctor, do you realize that your opinion is not the same as 30,000 of your colleagues?”

Follow the progress of the Standard of Care Project at www.epmonthly.com.

Mark Plaster, MD, JD, is the founder and executive editor of Emergency Physicians Monthly

 

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