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Cultural norms and the changing landscape of surgical practice
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There has been much public discussion about the role cultural norms play in our national medical malpractice experience. American society is sometimes viewed as litigious, but whether Americans are more litigious by nature than other cultures, remains somewhat speculative. There may, however, be another important characteristic of the American culture that does significantly contribute of the filing of malpractice lawsuits. This article explores how some of our cultural norms can relate to medical malpractice, and how a recent federal appellate ruling may presage changes in future surgical practice patterns.
It is the nature of American society that Americans want to do something to fix perceived problems. Author Luigi Barzini in The Europeans wrote, “[p]ragmatic Americans consider the very existence of problems intolerable and life with problems unacceptable. They believe … that all problems not only must be solved, but also they can be solved and that in fact, the main purpose of a man’s life is the solution of problems.”
This “can do” attitude is reflected in our health care delivery system. As the house officer created by Samuel Shem, MD, in his book The House of God noted, “I’m the captain of this ship, and I deliver medical care, which for your information, means not doing nothing, but doing something. In fact, doing everything you can, see?”
Much of our cultural attitude toward health care is reflected in the language we use to treat disease processes. In the early 1970s, President Nixon launched his “war against cancer.” If cancer is the enemy, then physicians are implicitly warriors armed with powerful and toxic weapons to defeat it. It has become common to refer to “beating an illness” as if healing were a contest with winners and losers.
B. Sonny Bal
A byproduct of this model, even if subconscious, is that patients file lawsuits if their physicians are seen as combatants in a war between perfect health and disease, defeat, and/or disability. After all, is not defeat failure and should not warriors be held accountable for their battle losses? This American attitude leaves little room for acceptance of disease and disability, and little tolerance for the inevitability of death.
Aggressive spirit
Lynn Payer, author of Medicine and Culture, observed that “This (American) medical aggressiveness reflects an aggressiveness of the American character that has often been attributed to the effect the vast frontier had on the people who came to settle it. The once seemingly limitless lands gave rise to a spirit that anything was possible if only the natural environment … could be conquered. Disease also could be conquered, but only by aggressively ferreting it out diagnostically and just as aggressively treating it …”
The aggressive nature of American medicine can trace its roots to Benjamin Rush, MD, who was a signer of the Declaration of Independence. Historian Martin S. Pernick noted, “Rush promoted his therapies in part by convincing practitioners and patients alike that they were heroic, bold courageous, manly, and patriotic. Americans were tougher than Europeans; American diseases were correspondingly tougher than mild Europeans disease; to cure Americans would require uniquely powerful doses administered by heroic American physicians.”
This attitude may be reflected in contemporary American medicine. American surgeons perform elective surgery much more frequently than their counterparts in France, Germany and Great Britain. Those surgeries are often more aggressive. American physicians also perform more diagnostic tests and prescribe medications to more patients. Whether these interventions result in improvements in patient health is a matter of debate and speculation.
Litigation
There is little doubt that this traditionally aggressive approach has significant benefits to some patients. However, there has been a price to pay for this medical aggressiveness for patients and physicians. One price may be the so-called American “malpractice crisis.” Americans’ approach to health care may result in malpractice lawsuits for several reasons, including the following:
- Every medical intervention carries the risk of complications. As surgical volume goes up, so does the incidence of medical complications, and correspondingly, so does the risk of a malpractice lawsuit;
- The more frequently and more aggressively physicians/surgeons intervene, the more opportunities exist for acts of medical negligence;
- Aggressive medicine can result in overstating the benefits of intervention while correspondingly diminishing the advantages of doing nothing; and,
- Medical aggressiveness can create in the patient, an expectation that their problems will be solved. Anything short of a perfect outcome is seen as disappointment.
Physicians interested in reducing their malpractice experience could benefit from Lynn Payer’s observation that “…our medicine is not the inevitable result of medical progress but of choices — conscious or not — that arise from our own cultural biases. Perhaps, if we come to know these biases better, our choices will reflect less the memory of a frontier past and more our needs as inhabitants of a complex modern society.”
Managing risk
Reducing litigation risk means taking a nuanced approach to a surgical intervention, even if such an approach is at odds with the hallowed American traditions of intervention, conquest, aggression, and victory over disease and ailment. Practically, a nuanced approach may mean less volume of surgery, and reduced revenue from practice dollars. But, times have changed, and we submit that surgeons will have to change to fit the times. Surgeon discretion, manifested in assertions of independent physician judgment, are being replaced with oversight, peer review, and sometimes judicial review of clinical decisions in present day medicine.
Lawrence H. Brenner
As one example, so called “high-volume surgeons” or outliers were usually considered to be masters at their craft, or gifted with efficiency and discipline, and either revered, despised or both, by their peers. Nearly every sizable medical community in the United States has its share of the cardiologist who does the highest volume of stents, or the ophthalmologist who does a “ton of cataracts,” or the orthopedic surgeon who runs a factory that turns out total knees. Aside from professional jealousy and the occasional complication that might come to light, such physicians were usually protected from scrutiny, and prospered financially from an egregious volume of surgery and attendant billing.
The appropriateness of surgery or the indications for elective surgery were often a matter of debate between the physician, hospital peer-review bodies and competitors. The scope of scrutiny and attendant risk expanded dramatically with the U.S. v. McLean. In April 2013, the U.S. Court of Appeals for the 4th Circuit upheld the criminal conviction of John McLean, MD, a Maryland cardiologist, accused of performing unnecessary cardiac stent insertions for supposed coronary disease.
McLean had a busy cardiology practice and performed a high volume of coronary stent placements. An incensed competitor complained to the hospital board that McLean was performing unnecessary surgery in patients with only mild coronary vessel disease. An initial review by the hospital peer committee led to outside investigation by an independent reviewer, and ultimately, the matter reached the attention of the federal government and the FBI who charged McLean with health care fraud related to improper billing, because of deficient medical necessity.In his defense, McLean argued that the cardiac stents performed by him were medically necessary. Competing expert witnesses argued on either side; the experts for McLean claimed the physician had performed cardiac stent placement in appropriate candidates who had coronary vessel stenosis, while experts for the government said the cardiac stents were medically unnecessary. The jury verdict at the trial court was against McLean, imposing fines, restitution, forfeiture and a prison sentence.
On appeal, McLean argued that the criminal statute under which he was convicted was vague, and should therefore be constitutionally void. Essentially, McLean asked the government to specify how much coronary artery blockage had to exist before a cardiologist could be criminally indicted for performing a stent procedure. McLean’s argument went to the heart of a fundamental constitutional protection, i.e., that a criminal defendant must be able to understand the precise criminal statute and attendant standard under which he/she is convicted.
In upholding McLean’s jury conviction for criminal health care fraud, the appellate court refused to cite a clear standard as to how much stenosis makes coronary vessel stenting a crime. The situation is akin to an orthopedic surgeon performing a high volume of knee replacement surgery, and a competitor complaining that the indications were improper. Assuming the knee surgeon were to be indicted for improper Medicare billing related to unnecessary surgery, the clarifying point relates to the accused surgeon asking how much knee arthritis has to exist, quantitatively, before the performance of a total knee replacement becomes a crime. On this point, rather than specify a clear, bright line, as dictated by constitutional protections, the appellate court essentially deferred to the trial court findings that had relied on competing expert testimony.
Aftermath
The long tradition of American aggression, forward-thinking and action, and an interventionist attitude notwithstanding, the McLean decision has serious implications for surgeons raised in the isolationist, aggressive, can-do mindset. McLean stands for the proposition that medical necessity, to the point of becoming criminal conduct when billing for surgical procedures, is not a bright-line legal standard specified by the government, but a matter of subjective interpretation by one’s peers, manifested by competing testimony by hired physicians produced by either side in an adversarial legal proceeding.
The practical implication of the McLean decision, and the attendant changes in the health care landscape in terms of scrutiny, competitive pressures and regulatory oversight are that high-volume, aggressive and interventionist health care providers will be more easily identified and will attract attention. We predict the gradual demise of the outlier physician who has a “killer practice” and is “churning out the numbers like a factory.” Accordingly, the outlier surgical practices in terms of income generation will probably become a thing of the past, as American health care marches into a brave new future.
References:
Barzini L. The Europeans. Imprint unknown (August 11, 2008).
Payer L. Medicine and Culture. Penguin Books (November 1, 1989).
Pernick MS. Hastings Cent Rep. 1983 Apr;13(2):26-36.
Shem S. The House of God. Penguin Books (May 1, 1984).
For more information:
B. Sonny Bal, MD, JD, MBA; and Lawrence H. Brenner, JD, are partners in the law firm of BalBrenner/Orthopedic Law Center and are the exclusive providers of loss prevention, risk management and quality improvement services for the Orthopedic Physician’s Insurance Company. Brenner can be reached at lbrenner@balbrenner.com.
Disclosures: Bal and Brenner have no relevant financial disclosures.