After a verdict: Doctors need to be taught a lesson. Really?


Recently, a jury awarded a young California resident $28.2 million for a delayed diagnosis of a pelvic tumor. The jury found Kaiser Permanente (KP) negligent. Doctors in the system, touted to be one of the finest systems by the president, allegedly refused an immediate MRI for back pain in a 17 year old. The patient eventually received an MRI three months after presentation, which found a tumor so extensive that the patient needed an amputation.

The case is instructive at multiple levels. It shows a tense dialectic between the individual and society. It also highlights a truism that many don’t understand or don’t acknowledge: missed/ delayed diagnosis and waste are reciprocal. They’re birds of a feather. You can’t have less of one without more of the other.

The patient presented with back pain. MRI for back pain is the poster child of waste. Why so? Because so many are negative. Even more are meaninglessly positive: Disc bulges which simply mean, “I’m Homo sapiens and I wasn’t intelligently designed to be sitting at the desk.”

High-quality doctors don’t order MRI for back pain immediately, reflexively and incontinently. Think about this. A high-quality doctor should say “I don’t think you need an MRI because it won’t change the management and doesn’t improve outcomes.” That’s the resounding message from the top. If it doesn’t improve outcomes, it’s not a worthy test. High-quality doctors will, once in a while, cost their organization a lot of money.

But quality is still not settled. Quality doctors must satisfy patients. If a patient asks for an MRI for back pain, the quality doctor must acquiesce, if that refusal dissatisfies. I’m confused. Ordering an MRI for back pain is poor care. But not ordering an MRI for back pain is poor care. Which is it?

We don’t know the facts of the case. It’s possible that the patient had a neurological deficit that should have raised the urgency. It’s possible that the physician didn’t examine the patient and had he/ she examined, the tumor might have been detected. We don’t know. We shouldn’t judge.

But we know that the delay in getting the MRI was 3 months. Three months are an eternity. Right? The wait time for MRI in Canada is 18 months (eighteen, by the way, is six times three). Many yearn for the Canadian health care system like I yearn for a Bentley. Many believe, and I’m disposed to that camp, that the Canadian system is equitable, just, fair and efficient. Swallow those words one at a time, particularly justice, social justice.

Social justice means equality. Equality means that we can’t throw bundles of cash chasing rare events, particularly if, like Canada, when we chase rare pelvic tumors there’s less change for public education for the poor.

Still want social justice? No, I didn’t really think so. Yes, you protest. Then put your tort where your mouth is. But please don’t pander the individual whilst making false pretenses about the population. Which one is it, individual or society? Decide.

Three months.  In 3 months did the tumor change from curable to unresectable without amputation? Unlikely.

Sorry I didn’t ask you about the probabilities I asked you is it conceivable that had the MRI been done immediately and the tumor detected, and the diagnosis not delayed by 3 months, patient might not have lost her leg? Possible, doctor, possible. Don’t you understand the meaning of possible?

Yes, it’s possible. Possible encompasses probabilities from 0.00001 percent  to 100 percent. Here we have another tension. FDA wants probabilities. Medicare wants outcomes and probabilities. Insurers want any excuse not to pay, and lack of probable will do. In courts possibility delivers a knockout punch to probability.

Doctors must be guided by probability, the essence of evidence-based medicine (EBM), but be mindful of possibility. Cognitive dissonance, anyone? Probability screws possibility. Possibility nullifies probability. Which one? Make up your minds.

The award might not have been as high if the defendant wasn’t an integrated system such as KP. In the era of shared risk, ACOs and shared savings this merits introspection.

Remember that equation: value = quality/ cost? Bonuses will be doled out for high-value care. High value is moderate quality/ super low costs.

Excited, are we, to be incentivized to reduce waste? Think about the denominator. Think how it sounds to the jury as the plaintiff attorney grills the CEO of a cost-cutting, highly successful integrated system.

“Ms. Thrifty, your organization prides itself on cost cutting. Was my client’s life not as important as the bonuses of your doctors? You apply principles of Lean. Do you treat people like widgets?”

“Ladies and gentlemen of the jury, I submit to you that my client would have lived were it not for the doctors and their greed for the bonuses from Medicare for restricting care. They chose their pockets. I urge you to teach them a lesson.”

Money for thrift doesn’t sound good. Still excited about shared savings?  You may retort that doctors should decline an MRI for the right reason. The “right reason” is determined after the fact by the jury, who will find it offensive when doctors don’t do a test, ostensibly, to save money, particularly when there are CT scans and MRIs every nook and corner.

Every era has its David vs. Goliath. Once it was Erin Brokovich vs. greedy polluting capitalists. The greedy capitalists are hiding in corporate clothes. Who’s the next Goliath? There must be a Goliath. We need good vs. evil narrative. Who better a Goliath than a cost-cutting integrated healthcare system endorsed by POTUS?

KP is efficient, you say. Six Sigma, reduced variation, reduced waste, improved outcomes, population health. Efficient like Toyota.

Bring it on! Any skilled plaintiff attorney will reframe waste reduction, population health, EBM, and that hilariously Orwellian term, resource stewardship, as soulless, greedy rationing. And will find a bunch of MDs willing to muddy the case. There’s a reason Health Maintenance Organizations (HMOs) failed. HMOs are not American. I’m not American. I get it. I’m amazed 47 percent don’t.

As a foreigner, I’m frequently awed and sometimes puzzled. Awed because the system often achieves a Lazarus-like feat. Puzzled because people ask why healthcare is so expensive.

Why so expensive? Must you ask? Because everyone must live. There can be no harm. There can be no outlier. We chase possibilities. Canada and Britain are garrisoned by probabilities. Possibility costs. Probability can be demonized — Mrs. Jones is a person, not a statistic. I’m not saying people get the healthcare system they deserve. I’m saying the system makes perfect sense, given the ethos, culture and expectations of the people.

As a radiologist, physicians chasing possibilities have often frustrated me. Deep down, though, I’ve known two things. First, they’re patient-centered. Yes, that dull cliché. Sorry, I couldn’t avoid it. Second, I might have done the same thing in their shoes.

I have sympathy for the patient. The lottery of life was unfair to her. In her position, I would have sued as well. Juries compensate for cosmic injustice as much as they restitute medical negligence. I know that.

The patient said that she hoped the verdict would “teach doctors a lesson.”  Doctors don’t need to be taught a lesson. We know when it comes to thrift and waste reduction we’re on our own. If we stick our neck out no one will rescue us when something goes wrong. We know that the same physicians who write editorials in high impact journals promising utopia and waste reduction will testify that we so patently missed a red flag. We know that in the muddy world of uncertainty the charlatans in our midst proliferate disingenuity faster than fecund rabbits on ginseng.

Yet I refuse to practice defensive medicine.  I know there’s a risk I’ll be sued. But what of the thousands I stop from going down anxiety-provoking imaging rabbit holes? They’re people, too. I’m patient-centered as well.

Saurabh Jha is a radiologist and can be reached on Twitter @RogueRad.  This article originally appeared in the Health Care Blog. 

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