Law and medicine are more intertwined than they should be

I’m a law abiding blogger. Laws are meant to be obeyed. If an individual opposes a law in a free country, then he should operate within the system to modify it. I recognize that even in free societies, certain laws are so unjust and in violation of natural law that that the citizenry may be justified in relying upon other measures to affect necessary reform.

I’m not suggesting that an unwelcome federal tax on gasoline be greeted with pitchforks in the street. However, our own democracy is a nation where slavery, “separate but equal,” exclusive male suffrage and Jim Crow discrimination were all legal. In such cases, can we expect a legislature to strike down unjust laws that it enacted?

Law and medicine are increasingly intertwined today, and more than they should be. Physicians no longer practice unfettered from legal encroachments and regulations. I am not referring here to the unfair medical malpractice system. Look what Obamacare has wrought and what it threatens to do in the future? Private practice medicine — my gig, for example — will either be declared illegal or will be deprived of oxygen and put to sleep.

The most ludicrous intersections between law and medicine are when legislators try to play doctor for crass political reasons. This is nonsensical as even trained physicians can’t agree about medical testing and treatment. Medical experts, for example, are not of one mind on when mammography should be offered and at what intervals. I don’t fault our profession for failing to achieve a consensus here. The science behind the issue is not certain and differing and valid interpretations are expected. I admit here that some of these physician opinions may be politically tainted for reasons of self-interest, but even non-partisan and objective medical experts may simply interpret data differently.

When there is an important controversy in medicine, it should be addressed by additional medical research or accepting an interim position based on the views of medical professionals.

So do you think that the mammography controversy should be settled by doctors or a legislator submitting a bill that mandates mammography coverage starting at age 40?

If we allowed it, politicians would pass all kinds of medical care treatment and testing laws to curry favor with various interests groups. This might be good fertilizer to cultivate some votes, but is this how we want the practice of medicine to advance?

Ohio passed a law earlier this year that would require physicians to inform women facing mastectomy about options for breast reconstruction. The aim of the bill is to assure women that future reconstruction would be a covered insurance benefit so that they would be more likely to accept mastectomy.

Of course, I want these women to be informed of the reconstruction option. Indeed, this is the responsibility of the treating physician. I object, however, to a law that requires it. For those who support such a law, why only breasts? Surely, laws could be passed affecting every medical specialist and every organ of the body mandating certain medical advice.

I advise my patients who have reached the 50 year mark that they should pursue colon cancer screening. I don’t think a law should be passed mandating this conversation, but it’s no stretch to imagine a pontificating populist politician from trying to do so. I’m not taking any chances. I’m buying a pitchfork, just in case.

Michael Kirsch is a gastroenterologist who blogs at MD Whistleblower

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  • SteveCaley

    The problem is not the Law, but the perversion of the Law.
    Tyranny, in all its manifestations, simply states that all manner of actions by persons are subject to the scrutiny of Authority, to assure that they are agreeable to that Authority.
    Tyranny can always fall back on the argument of reasonability – that a sufficiently benevolent and intelligent Authority can act justly in all circumstances, so the objection to its intrusiveness is moot.
    Plato gave a good run at this in The Republic, it has been re-enacted throughout history, and always with terrible results.
    Rather than proceeding with the details of this problem which could take many words, and already has throughout the millennia, we concurred that certain individuals might be trained and have a certain expertise in some small area, that they might be considered experts by individuals, and sought out for advice for certain troubles related to the area of expertise. This discussion was seen as to be covered under the cloak of personal privacy – the doctor, lawyer and minister were accorded certain confidentiality provisions, not to excuse them from poor execution of their duties, but rather to cloak them from the all-reaching scrutiny of Authority. If everything has an appeal to Authority, then those professionals will not behave in a manner to benefit their client, but rather to sustain credibility at any appeal to Authority.
    So goes medicine these days.
    We set a national standard of a strict duty to provide perfect outcomes, and allow free scrutiny of any decisions made in any professional area regarding the failure to produce up to expectations.
    That is by no means unjust for a society to do in Law – societies may make any sort of Laws they wish.
    But if the Law states, for instance, that all Obstetricians shall deliver healthy babies with no defects, than the number of professionals with the arrogance necessary to make such a promise is vanishingly small.
    The State and Federal Legislatures proceed under the idea that no act should be permitted (or forbidden) without the voice of Authority present. Jolly good, then – every tyranny has done something like this.
    The only problem, it doesn’t work. Other than that, it’s a fine idea.

  • QQQ

    An economic and constitutional catastrophe for the United States of America is Obamacare. Obamacare is a good example of how corrupt our government has become. No one in their right mind would sign a contract without knowing how it would effect their business yet clearly in big daddy government did and should be held criminally responsible for it. It is sad that our judicial branch has succumbed to the same greed and intimidation as the other 2 branches. Obamacare was simply used as a means to get votes from naive voters that thought they would get free health care and was never meant to be anything else. It will never be a financially sound program and in fact is costing more than having the government just pay the doctors and hospitals directly for those that can’t afford it. An expansion of medicaid and a law stating you can’t be denied coverage was all that was needed. The KISS principle.

  • querywoman

    Lovely simile! Offer bionic leg reconstruction to all leg amputees! Seems like the medicos will do all kinds of stuff to encourage women to get a breast hacked off!

  • querywoman

    I abide by the law also, but I try to respect wishes even when something is perfectly legal. I had to give a fingerprint to cash a small check, maybe $15, from a friend at one of the bank biggies.
    I sent umpteen faxes, and some snot-nosed young man on the phone told me that if I sent one more fax, they’d tell the police. I said I’d tell the police he threatened.
    I called the police to report his threat. They told me, of course, “We don’t get involved in civil matters.”
    So, I switched from faxing the bank to emailing it.
    That really amused a minister in my church.

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