HARRY REIN, JD, MD
This is a jurisprudence column, and you may wonder whether or not the philosophical approach regarding the practice of medicine discussed herein has anything to do with law or surgical technique and skill. Do personality and the art with which one practices the doctor-patient relationship have anything to do with medical malpractice? They certainly do and are pervasive in the courtroom. Personality and the philosophic approach to patients have a great deal to do with the discovery process, and it almost always is one of the bases of a patient seeking legal help. Litigation in the health care fields has leveled off. It seems that there are fewer claims and lawsuits this year than in the past few years, but I don’t think that is necessarily true in the “newer procedure” specialties. Perhaps this is because there is more willingness to discuss fault in these fields or because those litigating such specialties are becoming more informed and more sophisticated. But doctors in active practice, such as those developing newer procedures involving minimally invasive surgery, tell me that medical malpractice lawsuits they see affect most of the fundamental aspects of patient care. You become much concerned with this litigation, either consciously or subconsciously, because of all the publicity you constantly hear, mail you continuously get, and most recently, due to the increasing malpractice insurance premiums. We clearly become concerned with medical malpractice when it is time to pay the premium. Risk management seminars are required in some states; but they, along with our medical journals, unfortunately do not discuss those things which affect doctors the most. What seem to be disappearing are “art of medicine” discussions and teaching methods implementing the doctor patient dialogue techniques; they have been displaced by laparoscopic entry techniques, newer laser beams, and an overwhelming array of microsurgical instruments. We therefore wonder if the art of medicine ever existed except to merely fill in those spaces where the science, technical knowledge, and mechanics of medicine left a void. Surely the “art of medicine” of which we speak so reverently refers primarily to the doctor-patient relationship. It lives and is well, needs to be nurtured, and must survive. However, most other forms of patient care are becoming truly scientific, including even many of the psychiatric disciplines. Certainly most if not all of laparoscopic surgical care is scientific, technical, and mechanical. No one can claim that it is the art of medicine when the laser is directed (or misdirected); no one can claim that it is an art form to dissect an ovary or to insert a first trocar or to clearly visualize the ureter. Unless we say that the learning and proper application of these skills is an art form, we must mean only the personal relationships. The malpractice defense in every case, “...medicine is an art form and not a science...” is disappearing, although still used. The elders among us with years of practice might consider the change undesirable. Yet it is no longer accurate to say that the amount of knowledge a physician possesses and his surgical skills are an art. They are a scientific application of the current state of knowledge.
Doctors have increased public expectations by educating, promoting, and advertising. We now accept that defensive medicine merely means good medical care, consideration of our patients’ persona, and following certain basic rules and procedures in our medical practice similar to what we do in daily living. Professional liability, a better phrase than medical malpractice because it seems to create less emotional reaction and far less anger, is merely a system by which we are held accountable for our actions as everyone should be. We must learn to accept it. It is an equalizer, some say. That is, others are watching us. We have not been used to this. Doctors did not have others watching, do not like others watching, resent being questioned or challenged by anyone, and in particular, resent the testing that accompanies the discovery process by someone in a different profession outside the academic arena of medical grand rounds.
A former Florida senator friend of mine told me that when she was in the hospital, she could sense the “imperial walk” and aura approaching her room down the hall. There are positive aspects to this point of view. Perhaps that was what is still meant by the art of medicine, the doctor-patient relationship. Patients can benefit from positive influences and total control by the physician over the health care management of that particular illness. This benevolent dictatorship- if that is what it is- has historically done a great deal of good and accomplished much. There are also dictators who are feared but against whom there is revolution when the fuse is lit. The fuse is what is known as the “triggering process,” that which begins investigation into the medical care of an unhappy patient with a bad result. It rarely is the bad result, the injury, the second operation, or the failed procedure, which brings the patient to a lawyer. It is something, which happened between the doctor and his patient, between his representative and the family, or perhaps best put, due to absence of “art” in the way he dealt with the emotional moments that needed him the most.
With that in mind, we then look at the concept of accountability for all people and may well be able to say that those who seem to care less end up paying more for improper actions. The system is not only intended to compensate for losses, but also to deter negligence and to improve substandard practices. The system asks for compensation, but is always directed at those other parts, which are only discussed obliquely in the courtroom. Perhaps the practicing physician does not have the opportunity to short-cut compensation for losses, but he certainly has the opportunity to deter negligence and to elevate substandard practices to higher levels. This should be the intent of quality assurance departments, risk management, continued medical education, and improved teaching practices at all levels of medical education. Physician controlled, health care provider managed, hospital initiated quality assurance efforts have not worked well enough, are not pervasive throughout our country, and do not change in response to others’ faults and failures. This concept is totally under doctor control and if properly managed could without more, cut malpractice losses by fifty percent. Until we take control of teaching each other and recognizing inferior quality and lose the fear of showing the way to our peers, the deterrence of negligence and the elevation of substandard practices through medical malpractice litigation will continue. Some feel it must continue for the benefit of patients, since so called self-policing has failed. Look around your own community to determine which physicians have been chastised, had their licenses revoked, or have been taken under an education wing to improve their techniques and practices. For the most part, regulating boards and peers find it easier to go after doctors who abuse drugs, rape patients, act otherwise feloniously, or earn too much money through excess surgical procedures. Is it not interesting that the overwhelming majority of chastised physicians- chastised by their peers- are from the various minorities who practice among us and that “Mr. Clean” is rarely among them? Is it because he is clean, or is it because he belongs to the right organizations? Human nature causes these errors. If we teach standards to control damage, if we emphasize accepted methods throughout the community to which all must subscribe, and if malpractice cases, litigation, claims, complaints, and adverse reactions become part of the teaching process rather than the enemy, the situation will change.
Our system must provide behavior modification processes for physicians instead of defensive behavior. The defensive posture is aggressive, angry, destructive and creates anxiety; but it can create a good framework for education. Positive behavior modification means deriving something good from every adverse reaction, preventing a harm because of every previous malpractice case, improving the quality of care because of every previous adverse reaction, preventing recurrences, and using patient complaints as teaching guides rather than calling such patients noncompliant. Even the clinical pathologic conferences, which might still exist in some institutions, do not focus adequately and selectively on the professional performance of the doctors as much as on the poor outcomes and complications. The key questions, which must always be asked, are: Was the event foreseeable (even remotely)? What could have been done to prevent it? Were there signs and symptoms as the adverse reaction was developing? Was more attention paid to the minor, albeit more common causes of such signs and symptoms? What if the procedure that initiated the bad result had never been done?
The cost of doing business includes medical malpractice insurance premiums, and all doctors know all their costs well. In my interviews with dozens of physicians and in my conversations with hundreds of doctors on these subjects, they never include the emotional stress, the fear, the anxiety, the anger, and its spin-offs as the costs of doing business. These are greater costs. They can be controlled by the physician himself and are not in the hands of the economic spiral in which we find ourselves. This pervasive problem began when medical malpractice became a major topic of conversation in 1975. Since then we have been following false prophets. We have challenged, fought with, resented, and developed an adverse relationship with those on whom we depend most of all, our patients. Elders of generations gone by used to teach us that if we take care of our business properly, it will take care of us. It is impossible to properly take care of your patients if you consider them your enemies or if you fear them. Patient are not your enemies; they are, and will remain your best friend, the finest juror you can find, and the person who wishes to sue you the least. Believe it. Consider medical malpractice litigation for what it really is, something other and more than you perceive it. It is a mechanism with which patients catch your attention, ask you to change your ways, and let you know of their dissatisfaction.
I say you in the generic sense. We must learn and profit from everything that happens to our colleagues. Don’t think of medical malpractice litigation as a lawsuit that occurs every time something goes wrong. You know that is not true and can prove it to yourself by merely looking at all the adverse reactions you have had in your career which have resulted in satisfied patients, that is, at least satisfied with your approach to the problem. You may be angry, and you may point a finger at the system and at plaintiffs’ attorneys to no avail. Physicians have tried since 1975 to change this, but we have now wasted 20 years aimlessly acting out and pursuing legislation adverse to our patients’ interests. Remember that the only one who counts is the patient. Behavior modification, changing our thought processes, and looking at the problem objectively while searching for palliation, if not a cure, requires that we protect the patient, take care of the patient, keep the patient our friend, while remembering that if we properly take care of our business it will take care of us. Knowledge is power. With power we get control. With control we can elevate habits and practices to safer medicine and reinstitute the art of medicine by eliminating some of the triggers that result from a breakdown in the relationship when the strongest sense of caring is needed.
Address reprint requests to: Harry Rein, JD, MD,
1877 Wingfield Dr, Longwood, FL 32779, Telephone: 407 333 4444, E-mail: DrRein@USCourt.com, Web site: www.uscourt.com
Dr Rein writes and actively teaches medical malpractice to health care providers and is “of counsel” to several dozen law firms. His publications include The Primer on Soft Tissue Injuries, The Horizontal Review of Medical Records, and his Medical Malpractice Thoughtbook. Dr Rein developed the SLS Postgraduate Course “Annual Law School for Doctors,” now entering it’s third year. The program teaches doctors how to regain and maintain control, save time and money, prevents and relieves anxiety by recognizing, preventing, and mitigating harm and knowing what to do when it happens. From experiences with over 12,000 cases, his trial techniques have become standards.
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