Prop 46

What is this proposition all about?

Is it about physician drug testing?  Is it about allaying the pain and suffering of families of patients whose outcomes have been devastating and tragic?  Is it about the compensation of the legal counsel who represent those families and patients?

It is difficult to say after reading the proposition in its entirety.  It is definitely not clear after, like much legislation, it is loaded with baggage clauses that may increase its appeal to fringe voters marginally concerned with the other issues and tagged with other legislation just along for the ride.

But, I don't want to talk about 46.  I think the issue is very much deeper and the process that underlies medical malpractice litigation has consequences for individuals and society that may be insidious and dire.

"Attorneys are the only ones that CARE about clients/patients" was asserted by a caller who identified himself as Bill, a medical malpractice plaintiff's attorney in the San Francisco Bay Area.  He talked about the economics of his work which barely allowed him to survive between cases that were settled versus litigated and subsequently won or lost, and, of course, the current cap on awards.

Mr. Pack, himself, made the point that without retaining legal counsel and pursuing legal recourse, the system "valued his children at zero dollars."

Mr. Pack, for those who don't know his story, suffered the death of his children at the hands of a woman under the influence of excessive prescription medication.  She, herself, was not a physician, but she had reportedly received prescriptions for these medications by visiting multiple practitioners.  Mr. Pack is an internet success story who was an executive for AOL and then went on to found NetZero.

Opinions supporting 46 came from similar points of view that physicians as a profession did not really care about patients and this is manifested by negligent care, cavalier attitudes and even working under the influence of alcohol or drugs.  Of course, none of the callers' stories could be proven or disproven, but the common thread is that they were all very emotional, sometimes many years after the initial terrible events.  There were varying points of focus; some callers on the mandatory drug testing of doctors, especially after an adverse outcome, some on the increased monetary settlement.

The implication that doctors do not care about patients, I think demonstrates a lack of understanding and/or a lack of personal contact with doctors.  For these men, I do not know if this is true, and, if it is, whether this is a personal choice or self-selection based on their professions.

Is it possible that neither Robert Pack nor caller Bill have ever personally known any physicians...at least none they respect?  If there are any physicians in their personal circles would have to be either, very understanding or very bad examples of the profession.

There is a stark contrast between the motivation for medical malpractice suits and motivation to pursue a career in medicine.  The former is hyper-focused on a single event that, probably pathologically, takes over an individual's entire consciousness.  On the other side, like any choice of career, selecting medicine is usually a life decision, made after objectively weighing pros and cons.

The role of the malpractice plaintiff's attorney is such that demonizing their opponent or fueling the anger in their clients' minds helps their cause.  To be successful (based on the economics put forth by caller, Bill), they need to galvanize indignation against, and avoid sympathy with the defendants; they need to portray malevolence, existing or not. This gap is made wider by the entire legal system keeping patients/families away from the defendant physicians.  This exposes them solely to the attorney's rhetoric without rebuttle from even a third party.  The most likely result for most psyches is a stoking of the flames of anger and, most importantly, I would argue, delaying or permanently damaging the healing process of grief.

Interestingly, neuroscientists are finding increasingly the human memory is very fluid - we re-remember memories and they can be altered and colored by differing emotions while they are reinforced.  Indeed, some work is being done to treat post traumatic stress disorder by enabling patients to remember their trauma again in a less traumatic emotional milieu.  Is this not the exact opposite of plaintiff depositions?  Are plaintiff memories increasingly painful as attorney rhetoric and coaching take effect?

Physicians are not a perfect lot...not by far. There are certainly doctors who are unskilled, impaired, socially challenged or just lack good medical judgement.  There are definitely some who are very wanting in the caring department, but, from what I have seen, this is far, far, far from universal.  Physicians graduate from the rigors of training only to reach the challenges of daily practice which, from just a medical knowledge and judgement standpoint are prodigious.  The current climate from a legal, regulatory and public opinion standpoint are also becoming less favorable every day.  The current media discussions that I read on Proposition 46 are certainly not helping.  There are definitely easier ways to make a better living.

Placing the focus on a dollar amount is misguided and devalues the life of the person in question by memorializing them as a number and turning the process of grief into an economic discussion among suddenly interested third parties that will not help the healing process.  This does a great disservice to any memories of that person, and the rancor and bile of the legal battle does nothing for them, and further hijacks any healing process that loved ones might hope for.  

Do I have answers?  No more than what I feel constantly comes up when we look at human conflict.  Why is the hardest task always to see the world from someone else's point of view?  Let us place ourselves in the shoes of someone else in the conversation.  Ask these questions of yourself, removing the wants/needs of your colleagues, institutions and legal counsel...its not easy, a poor testimony to our current society:

How would I feel if this happened to me/my child/my family member?
How would I feel if I caused this to happen to someone else?
What is the right thing to do in my own heart and mind?
If it happened to me: How do I want to be remembered?  What do I want for those who survive me?

None of us who have not lived through such tragedy can ever say what we would feel.  In pediatrics, many of my colleagues and I speak of a 'if this were my child' litmus test, fully realizing that we can not really empathize if we have not lived it.  I believe that the tragedy will never go away, but I like to think that dialog with sympathy (without fear of penalty, retribution or other 'gotcha's) will heal our souls best.  And I think brain science agrees with me here.

Recently, Malcolm Gladwell sat down with Dr. Robert Pearl and his response to Dr. Pearl’s final question took the doctor aback. In response to the question of what subjects Dr. Pearl should cover for Forbes magazine in the future, Mr. Gladwell said, “Help people understand what it is really like to be a physician.”  

At first I was underwhelmed by the suggestion, but as I have ruminated on the phrase more, it has taken on several levels of complexity and woven itself in and out of other thoughts and experiences in my mind.  And I came to realize that, like many of Mr. Gladwell’s musings, it is a kind of simple genius that goes straight to the heart of the matter.  For many of practitioners of medicine, whether we acknowledge it daily or not, it is an “awesome responsibility,” as Dr. Pearl says. For me, that is not pride talking, it is a double-edged sword.  In some situations, I feel it is a terrifying honor that is given to us.  

In what seems like another life, just before I began medical school, I was speaking with a friend who had just graduated from the same institution as he kindly passed some of his textbooks down to me.  One of his pieces of advice that evening has repeatedly returned to my mind because it has been some of the best advice I have ever received.  He said simply, “Go easy on your family.”  He elaborated, “Unless this is what they also do for a living, they will not understand what it is that you will do every day.  They will try very hard to, but they will probably not completely grasp it.”  Four years later, after experiences that all medical students share, yet are completely foreign to the vast majority of souls on Earth, I was just beginning to realize how right my friend was.

I recently had the good fortune of attending a lecture by Dr. Gurpreet Dhaliwal.  The term, ‘lecture,’ really sells the man short, as it was more a diagnostic tour de force.  ‘Goop,’ as he does not mind being called, has grown quite a reputation for being able to think through a case as it is presented to him in real time - cold.  He has been called, ‘The Real Dr. House.’ The diagnosis is obligatorily esoteric and the presentation opaque, but Goop has a mesmerizing way of taking each morsel of data and turning it over and around, examining it from every angle to see how it might fit the puzzle.  Then, he tosses it into a figurative bin: useful, not useful, or maybe useful.  The most impressive part of the process is neither the dizzying breadth of his medical knowledge nor how incredibly organized his process is, but how boldly he categorizes the data and moreover, how boldly he pronounces that the most mundane diagnosis, something on the order of ‘viral syndrome’ is the most likely answer at the early stages of the patient’s presentation.  In a world where defensive medicine is the norm, Goop puts common sense first.  Common things are common and he unabashedly puts these diagnoses forth as his analysis of the case begins amorphously and has no hesitation sending the patient home.  Of course, there are two very important differences with this forum. One, the patient always returns with more perplexing symptoms and two, Goop does not have to face the repercussions of his diagnosis.  Forget that he is usually correct.  He will probably not be sued whatever the outcome; unless its by one of the audience for being nauseatingly organized while being a darn nice guy as well.  

Would that we could practice in this alternate reality.  There would be no fretting about the possibility of missing the rare but horrible diagnosis on the first encounter.  There would be less self-flagellation over that subtle sign or symptom that portended that horrible diagnosis, when the patient’s outcome was less than optimal.  Why do we do this to ourselves?  What are the spectres that lurk in the corners of physicians’ minds?   Are we haunted by the angry family or their legal counsel?  Those certainly come to mind.  However, while I can not speak for every practitioner, I would like to think that Dr. Pearl is correct in his assertion that our deepest fear is failing to live up to the trust that is placed in the physician by the patient and family.

Does the nonmedical community know this?  I suspect not.  And in a world where it must be somebody’s fault and that somebody should pay, there are many elements of the medicolegal community that benefit from society at large remaining ignorant of practitioners’ private angst.  Why is it so hard to believe that physicians do really want to make patients better?  More perplexing to me is why is it so easy to believe that physicians are greedy, incompetent or just plain malevolent?  The answer is, unfortunately, the latter characterizations are likely better rewarded on a wider social level.  I guess evil is more interesting than altruism.  

“Help people understand what it is really like to be a physician.”  The words are straightforward, but the task is going to be difficult, should physicians decide to accept it.  I believe it will require more allies like Mr. Gladwell who can win hearts and minds in their particular sectors.  

First post

I really don't know where this project will go...

Those of you who know me know that I think too much about a lot of things.  In the privacy of my own narrow circle, the fair warning is that everyone is entitled to my opinion.  In my defense, I don't require that you subscribe to it or believe it.  

My analyses are far from perfect.  My opinions have sometimes changed with new data.  I have had my biases challenged and I have been wrong.   So, to those whose opinions I value who said, "well, why don't you write it down somewhere!"  Here is my attempt...

A little about me and my specialty:

I am a pediatric cardiologist in Northern California.  My practice is located in multiple offices in the greater San Francisco Bay Area as well as the Central Valley.

Pediatric Cardiology is a sub-specialty of Pediatrics which has within it sub-sub-specialties such as Interventional Catheterization, Electrophysiology, Advanced Imaging, Critical Care and Heart Failure/Transplant to name the major ones.  Cardiologists are intimately tied to their cardiothoracic surgeons.  There are relatively few Pediatric Cardiologists in practice compared to other specialists, but we are numerous when compared to pediatric cardiothoracic surgeons.  On top of that, there are only a handful of these surgeons renowned among the narrow circles of these two specialities as truly gifted who have made significant contributions to both our specialties.  These surgeons perform the intricate and delicate work that is required to treat children with complex heart defects.  The techniques and technology that allows these children to survive and thrive have been pioneered over the past 70 years, but have accelerated their pace in the past 25 years to allow children with lesions previously thought irreparable or universally lethal to live.

My interests are mostly in imaging including fetal and transesophageal echocardiography as well as cardiac magnetic resonance.  I also do work in cardiac critical care in my practice.

Outside of cardiology, I have a deep interest in applications of technology to medicine and everyday life in general.  I don't really have a favorite platform or OS.  I think there are particular strengths in each.  I am always eager to test new hardware or their applications.  I get a lot of flak for trying new things that add minutes (or hours) to workflow in search of future time/effort savings.

This is merely intended as a forum for my views.  I don't intend any offense and there is no malice behind them.  I hope they stimulate some more thinking and discussion.   Thank you for your time and attention.