Organized Medicine Is a Real Trip, Always Bashing the Clinician
Sending this letter.
November 29, 2013
Chairman, Education Committee
Pennsylvania Psychiatric Society
777 East Park Drive
Harrisburg, PA 17111
Re: Patient Safety and Risk Management 2013
I am adding some missing commentary to the program. I hope you will share these comments with all faculty and attendees. The program was overly harsh, negative, and unfair to the clinicians described, thus misleading. If you decide to provide your own corrections, let me know.
All patients have access to the internet. This makes the process of informed consent automatic, and all patients now have a duty to Google. They may get as much information as any psychiatrist may have. They may look up information they cannot understand. So all claims about lack of informed consent are now frivolous, and should be automatically dismissed by the court.
There could also develop a duty to Friend, since patients will often communicate an intent to harm themselves and others on social media, and not tell the clinician until later, or never. The paranoid schizophrenic who shot people at a Batman movie in Colorado did so. The categorical prohibition of Friending patients as boundary crossing comes from silly transference concepts in psychoanalysis. The latter is a form of quackery, and psychiatric rules should not be based on such inferior conceptualizations. If a clinician harms a patient via social media, then boundary crossing has taken place.
Until the antiquated thinking of organized medicine has changed, it is a good idea to ask patients to Friend members of the family, as part of safety planning. This is similar in intent to the suggestion of informing family of urges o harm self or others, and to cooperate with eyesight supervision, as an effective alternative to hospitalization.
Safety Issues in Prescribing Hypnotics
1) A patient has an accident, and blood is taken. If it contains a benzodiazepine but no alcohol, the patient will get treated like a drunk driver. Patients need this warning.
While there is habituation of the brain to opiates and to benzodiazepines, the breathing center (http://en.wikipedia.org/wiki/Control_of_respiration) habituates to opiates but not to benzodiazepines. So the lethal dose of these drugs is the same as before the patient ever took any, with wide individual variability, and an unknown amount. See the death of Whitney Houston ( http://www.thedailybeast.com/articles/2012/02/13/whitney-houston-s-death-xanax-and-alcohol-deadly-duo.html). See the review in Postgrad Med. 2013 Jul;125(4):115-30.
Elements of a Med Mal Lawsuit
Four elements are listed. A fifth one is missing. It is of essential importance in cases of suicide. Its application should end almost all cases of malpractice for suicide of a patient.
5. Legal Causation. The fourth is Direct Causation: the patient’s damage is the direct result of the doctor’s negligence. Legal causation requires Direct Causation plus the total absence of “An Unforeseen Intervening Cause.” The definition is, An intervening act or event which overwhelms a defendant's antecedent negligence and prevents him/her from being liable. In every single case of suicide there is an intervening cause. In half the cases, the victim is intoxicated on alcohol or drugs. In the overwhelming majority of suicides, there are no prescription psychotropics in the blood, implying non-adherence with treatment. Treatment of ordinary psychiatric disorder is the single most powerful way to prevent suicide. Most victims have relationship problems driving their urges to kill themselves. Here is a long list of unforeseen intervening causes, covering 99% of suicides, http://www.suicide.org/suicide-causes.html. Each case should be analyzed for such, and no suicide case should prevail. Only cases of assisted suicide in states prohibiting it are justified. Even then one may make the case that treatment resistant depression is as bad as metastatic cancer, and that suicide may be a humane alternative.
Determining the Standard of Care. All listed items represent garbage science, and should not be allowed to be introduced. If they are, the defendant should file a cross claim against the authors, their publisher, and their supervisors in academia. Only an expert in the same field, and with the same credentials may describe the standard of care. There are no authoritative texts because any written advice is cookbook medicine, lacking the individualization of care required to meet any standard of care. The use of rating scales as part of any standard is also garbage science.
Unfortunae Truth. If you have not been sued, you will be.
Doctors should stop being crybabies. If a practice grosses $5 million a year, and has 4 lawsuits, doctors will get upset. A welding business or a store, or a service business grossing $5 million will have 400 lawsuits all the time. Walmart has 10,000 at any one time. Lawsuits are part of business in this county. The alternatives are much worse. One is a violent vendetta for 100 years. The other is government regulation. Only the tiniest fraction of malpractice acts are ever pursued in court, because they are not lucrative enough for lawyers, or the patient has undesirable personal characteristics, especially a mental illness. So things can only get worse wi th any change. Even in judicial hellholes for defendants such as Philadelphia, physicians win two thirds of cases (http://www.pacourts.us/assets/files/setting-771/file-2715.pdf?cb=bd9d58).
Better Coping: Counterattack the plaintiff lawyer, to drive them from the business. Just about all behavior in a case has legal immunity. However, there is recourse inside the trial and from the court. Seek e-discovery on the plaintiff lawyer’s and on the plaintiff’s personal and work computers, seeking an improper motive for the suit, such as animus toward doctors. Any purpose other than money compensation for damages is an improper purpose. For example, “It’s not for the money.” “So it does not happen to others.” “Psychiatry is quackery.”
Look for any misstatement of fact by plaintiff witnesses and experts. Opinion is immunized by the First Amendment and by the litigation privilege. One may not lie about a fact, for example, I read this report, when the expert has not. A motion for a mistrial and for all legal costs to the assets of the witness should be filed. The judge may sanction perjured testimony from the bench at trial. This has been done.
This has not been done yet. The defense of Outcome Bias (http://en.wikipedia.org/wiki/Outcome_bias), an error made in evaluating the quality of a decision when the outcome of that decision is already known. Even defense experts cast blame when the outcome of a theoretical case is bad, and not when outcome is good, despite the fact that all procedures described are exactly identical. It is one of many established and well studied errors in critical thinking. The list should be reviewed for other biasing effects. (http://en.wikipedia.org/wiki/List_of_cognitive_biases)
The defense lawyers who are supposed to be on the side of the doctor were overly harsh in their opinions, and insufficiently supportive of the doctor. Doctors must think of all out resistance as an investment in the future of clinical care. Lawyers learn from experience in court. If they win they come back over and over. The limp attitude of these lawyers was personally threatening to me, since they would encourage malpractice claim against others. Doctors should be encouraged to hire a personal attorney to manage and bully the insurance company lawyer. First, he paid very little, and must go to trial to make any profit. Second, he has failed to disclose that he gets his job, not from the client but from the plaintiff lawyer. So he will never hurt, scare, or deter the plaintiff lawyer, however much the client is screaming for more aggressive tactics. However, if the doctor asserts any demand, it will be laughed off. A lawyer malpractice specialist demanding zealous representation will not be laughed off.
Carefully Documenting. There is no correlation between quality of record and medical outcomes. Good records do not mean good care, nor do terrible records mean substandard care. As to electronic medical records, they should be resisted to the utmost because they force docors to become typists destroying productiveity, slowing all encounters, and slashing physician income.
No malpractice claim arising from a suicide has ever had any merit. Even in a Supermax prison, no one has enough control over the body to prevent suicide. There is no duty to commit involuntarily, and suicide is mostly caused by bad relationships, especially with the family scape goating the physician for their own guilt in the suicide.
Kidney Damage from Lithium. In this case, addiction was rewarded with a settlement. It should be general policy to never do that. No permanent damage. No relationship between testing and damage, stemming from alcohol abuse. Get rid of experts, and shun them in the future. Damage was minimal. Standards for monitoring of medication are garbage science. This is unproven speculation. Real malpractice was entirely missed. Making a diagnosis of a mood disorder in an ongoing alcoholic. Proposed process will take many hours, and have no basis in any evidence. Informed consent is a rolling process of experience and education. Patients now get package inserts, and have a duty to Google. All patients are non-adherent, especially if patient is an expert doctor in the field. Entire population would be terminated. Alternative is to persistently work with the patient.
Patient suicide. No case should be settled short of assisted suicide where illegal. Family far more to blame for the suicide. They should be mercilessly torn apart in deposition, to protect clinical care from scape goating.
Duty to Warn. There are 1000's of threats for every murder. Duty to warn based on garbage science.
Patient Suicide. Plaintiff expert promulgating garbage science. Seek a statement of a false fact under oath, then demand prosecution for perjury. File ethics charges against plaintiff expert. Move for a mistrial if found, with all costs to the assets of the expert. There is a duty to clinical care to deter fatuous, academic, purveyors of garbage science.
Metabolic Syndrome. Seen in those patients in the 1920's, caused by the disease, not the medication. Massive testing represents massive fraud against the federal government. For example, a surgeon puts a stent into every patient who has chest pain, would constitue fraud under the False Claims Act. The occurrence of metabolic syndrome is elevated in patients on these medications, 1 in 500, up from 1 in 1500. You will test 499 people to find one positive patient. This is fraud under the False Claim Act. The subject is not scientifically settled. The courts are not competent to rule on the subject. Medical controversy should not be settled in the court.
Never Events in Psychiatry.
Failure to adequately treat pain is illegal and patient abuse.
Expressing anger to patient can be appropriate sometimes.
Insider tips in the public domain are legal. “Pfizer is rolling out Viagra in three months. Time to buy. “
Sexual relationship with current patient allowed by Pennsylvania court, and affirmed at the Superior Court level. Such relationships may be protected by Lawrence v. Texas. I strongly opposed such relationship because our business is about the body, and we should remain trustworthy with it. The Judges slapped down the 3000 year old Hippocratic Oath prohibiting sex even with slaves who might be patients.
Self Disclosure is insane and unAmerican. It is an old trick. Confess to the Inquisition. Self criticize yourself to the Communist party of Stalin. Go to the stake or get shot. Silence is the best policy to protect clinical care from the lawyer predators besetting it. We are at war with the lawyer profession, making their job easier is betrayal of clinical care. Joint Commission and AMA are total adversaries of the ordinary clinician. They are fully in collaboration with the lawyer profession.
I would never use the APA recommended insurer if these lawyers are setting policy. They are too pessimistic and dismissive of clincian interest. They will not be aggressive, nor ever counterattack the other side. Why? They owe their jobs to the other side and not to the doctor. They will never deter the other side.
I was personally sued for causing tardive dyskinesia in a child. The claim came after a half dozen successful lawsuits in New Jersey and Pennsylvania. Wach was for $5 million. I had to handle the total resistance. They lost. The plaintiff experts never testified again. The lawyer went out of the TD business. A patient with horrible TD said, no lawyer will consider my case up to 150 miles away. The resistance is an investment in the future of clinical care.
I hope that if you plan to present the same namby pamby, half hearted review of the legal aspects of care, you let me know. I do not want to attend without the presentation of a lengthy rebuttal of your lawyers. However, they are telling only part of the story.
David Behar, MD