Arrogance, Abuse, Fraud, and Medical Malpractice: How Some Physicians Beg for Lawsuits
By MC Kean
Physicians and mass media often depict patients and their lawyers who file lawsuits against doctors as greedy, money-grubbing opportunist. 1 It turns out this is more projection than reality. A 1990 study by Harvard researchers of 31,000 medical records subjected to evaluation by practicing doctors and nurses, "found that doctors were injuring one out of every 25 patients (latter studies put that figure closer to one out of every seven patients), and that only 4 percent of these injured patients sued." 2 Another Harvard study of 1,452 malpractice lawsuits found that more than 90 percent of the claims evidence supported medical injury and 25 percent of the time the patient died, 60% of these injuries resulted from physician wrongdoing. The study also found when "baseless" malpractice suits were brought they were "efficiently thrown out." Only 145 of 515 patients suffering injury, but where physician fault was unclear received compensation. On the other hand, 236 cases were thrown out of court despite evidence of injury and physician error. 3. While there is no evidence that malpractice claims are being driven by greedy patients and lawyers, there is an abundance of evidence that greed is driving the malpractice suits. Not the greed of the patients, but the greed of the medical practitioners themselves. In other words, physicians are the greedy, money-grubbing opportunists, and the patients and their lawyers are just fighting back against an arrogant disregard for patient's rights, dignity, and health, against incompetence and even fraud. In a real way, a vast body of doctors have waged war on patients, arrogantly imposing their will and interest against the patients' will and best interest. Laws, medical licensing boards, and even lawsuits have largely failed to discourage profitable, but reckless and abusive practices. Below are a several examples of how physicians abuse patients for personal profit, a brief analysis of patient protections, followed by some suggestions for fighting back.
1. Kickback-driven medicine: An overwhelming number of physicians get kickbacks and other economic incentives from pharmaceutical companies, not only for being willing to prescribe a drug, or implant a devise, but also for research. Often, physicians also get kickbacks from other physicians, hospitals, and imaging facilities to which they refer patients. Physicians even get kickbacks for implant devises. Influenced by a greed for these kickbacks, many physicians prescribe medications and procedures they know are NOT the most effective response to a problem, or may even be for a problem you do not have. 4. In one study one third of the doctors interviewed, "admitted they would order unnecessary MRI scans and 25% referred patients to an imaging center where they had a financial interest." 20.
2. Promoting unnecessary surgeries: Physicians often fail to tell a patient of less radical alternatives, fail to disclose and even mislead patients about risks, and encourage a patient to elect surgeries that are not good for their health. "While it is difficult to distinguish "necessary" from "unnecessary" surgeries, some estimates put the latter at 2.5 million a year, resulting in 11,600 deaths a year as well as severe pain and disability for many of the survivors." 5. Breast implants are just one example. Implants are never permanent. Most will require another surgery within five years, virtually 100% fail within 10 years. 6. Reconstruction after a mastectomy requires multiple surgeries (including one on the healthy breast), and thus provides a whole string of opportunities for surgeons to make big bucks. For women with cancer this is particularly cruel even murderous as evidence indicates that physical trauma the like of multiple surgeries can encourage the spread of cancer. 7. Surgeons virtually never reveal this trauma induced cancer growth risk. Even women's magazines have described new "perky" breasts, and perhaps even a tummy tuck, as a couple among ten reasons to "be glad you have breast cancer." 8. While plastic surgeons claim options for such reconstruction are, "essential to women's self-esteem", there are less dangerous roads to dealing with self-esteem issues, patients are not well informed of risks, and surgeons literally peddle reconstruction. The only unsolicited call I ever remember receiving from my breast cancer surgeon was to inquire as to why I would turn down reconstruction. (Wonder if she was to get a kickback from the plastic surgeon, who acted as if he got kickbacks for implants.)
3. Bait and switch: You do a little research, meet and agree to a surgery by a certain physician, chosen for various reasons, experience, sex, bedside manor, temperament; then, once under anesthesia, your surgeon pulls a bait and switch. The person actually performing the surgery is much less experienced, or this may even be their first surgery, or first surgery of this type. Sometimes the surgeon you thought was performing is in attendance supervising. Your life threatening surgery is being used as training and you are an unwitting breathing cadaver. 9 Other times the person you thought was performing the surgery has moved on to a high paying client and left you with a resident under no supervision. The surgeon you thought was performing is paid for miraculously doing two surgeries at once in two different locations. 10 The resident is on salary.
Once limited to teaching hospitals this sort of medical fraud is now infiltrating private practices. While you are never told, while misleading language is used, while students are hidden, and even while out right lies are employed to cover this bait and switch, physicians argue that any reasonable person should know that in teaching facilities students are participating in their care, including the performance of major life threatening surgeries. Patients may or may not know a hospital is a teaching hospital; and the average patient does not know their physician will lie; we are not told the relationship is an adversarial one, rather than fiduciary (one where the physician's primary concern is our health).
4. Unnecessary procedures and exams for the sake of training: Extending anesthesia and resulting in physical trauma, excessive bruising, bleeding, and increased infections of patients, physicians often take the opportunity provided by anesthesia to parade in a line of students to perform exams. Although research indicates that 87% of patients would allow training if asked, making this sort of medical fraud unnecessary, it would take time to explain to the patient and the patient might set terms or limitations, such as on the number of trainees to be performing a procedure. 10. Informed patients while often willing to accept one or two trainees, are less likely, for example, to consent to their pelvic or anus being penetrated multiple times by multiple people. This gang bang approach to teaching is very abusive. While many argue it does not rise to the level of rape as there is no sexual intent, this argument is again invalid. 11 One could argue with such logic that the physical touching and penetration of a prisoner might be torture, but not rape as the intent was not sexual but rather investigative. Statistics indicate that such practices are risking patient health. While Teaching facilities want you to think that you will get superior up to date care at such facilities, this is just not the case. Oregon Health Sciences University is one example. OHSU patient safety ratings reveal a below average raiying for: 1. prevention of death in procedures where mortality is usually very low, 2. absence of foreign body left in during procedure, 3. avoidance of excessive bruising or bleeding as a consequence of a procedure or surgery. These stats indicate many physicians are prioritizing teaching over patient health and safety. Simply put you are more likely to die from a relatively simple and safe procedure, and will likely suffer greater trauma and pain from procedures performed at OHSU, than non-teaching facilities. The surprise is not that, OHSU is sued on average of 23 times a year, but that this figure is not much higher. One reason may be OHSU has access to the PDX VA. While the V.A. would like vets to think the big teaching facilities are better than the smaller VA facilities; the history of the V.A. also reveals unacceptable abuse and risk of patients for the sake of training. 12. Again, while cancer patients provide a host of opportunity in this regard the trauma from such practices can feed cancer. Furthermore, physicians do not seem to give any special consideration to a subject already in pain from recent surgeries, and show no qualms about subjecting such patients to more trauma from multiple penetrations by inexperienced students/trainees. No more than teaching hospitals they take pity on the crying children, as a line of students enter their rooms to practice arterial blood gasses, as was described to me by an asthmatic patient who spent their childhood in hospitals.5. Physicians will lie. Telling your doctor what you do and do not want to happen to you or your body while under anesthesia is no protection. Physicians often do as they please and simply lie before and after the fact no matter what preferences, you might have expressed. After all, they know even better than the date rapist how effective these drugs are at ensuring their violations of your rights, your body, your health, and their oath remain unknown to you. If you complain, a physician may flag your chart, "don't ask". This does not mean they will not seize the opportunity anesthesia provides to violate you, just that they will employ a "don't ask; don't tell" policy in relationship to your care. 13. Doctors are often arrogant and indifferent to the very concept of informed consent. Physicians patronizingly claim to know what is best for patients, while they fail to listen or respond to expressed needs, violate patients expressed will, and even do things to patients they would not allow be done to themselves. 14. Surely not all the staff is going to go along with this? I have listened to countless stories of this sort of abuse over the last two months, not only from patients, but also from nurses and other physicians I have interviewed. Most indicated that while they did not agree with what was done they did not report violations of consent, or even sexual assault, (such as an anesthesiologist who awakens women from anesthesia by pinching their nipples.) Mind you, I know some of these confessors well, the only reason I can see for their silence is a culture of such silence. 15.
6. Physicians target the poor: Physicians target the poor, mentally disabled, and seriously ill patients who are heavily dependent upon the medical access they receive, as they are less likely to file lawsuits. Veterans have historically been part of this pool of the abused poor as many large V.A. Medical facilities are linked to Medical Schools and economic incentives for lawyers to represent victims are minimal. In many cases the awards will not cover the costs of litigation. This is about to get much worse. As physicians look for more ways to avoid State legislation regarding teaching, as physicians look for ever more disempowered patients, as the government looks for ways to cut the costs of caring for veterans, ALL V.A. facilities are about to become teaching facilities. A physician can come from anywhere in the country (or world) to be trained on any vet in any state disregarding the state laws and often Federal Laws as well. The V.A. even employees unlicensed practitioners, and has a history of failing to check credentials. 16. Now, one will say, the vet can get medical care elsewhere; but illness breeds poverty, and war breeds illness, and you are often not told, mislead, even blatantly lied to as to who provided what care, who did what including what unnecessary penetrations to your body.
Women are particularly vulnerable. Women are relatively few in number within the V.A. system and thus scarce relative to the demand for training specific to women's health. Female Vets are subject to a sort of intensified trauma resulting from both more frequent and intense abuses by physicians, and for many patients this in conjunction with a history of military sexual trauma. "The problems with sexual harassment, assault and rape are systemic in the military beginning with recruiters, military academies, carrying on through service and at the Veterans Administrations." 17. Refusing to respect these women's requests for female practitioners, pulling the old bait and switch tactic, and using women as vending machines for training multiple students results in not only physical harm, but also serious psychological harm. These practices also increase women's risk of sexual assault.
Creating Opportunities for Rape: A woman has a fundamental right to protect herself from sexual assault or rape as she sees fit. The physician undermines this right when the patient is not allowed to exclude, limit, and/or negotiate the terms of male participation from certain types of care and while under anesthesia. Failing to acquire informed consent and refusing full disclosure in a Federal facility is a violation of a patient's civil rights and should be prosecuted accordingly. While physicians would like you to think, they as a class are above such crimes as sexual assault this is simply not the case. A Times investigation found 55 licensed practitioners in the state of Washington alone who had rap sheets for sex crimes." 18. Sexual misconduct is a common problem and protection against offenders practicing in the medical field is insufficient to non-existent.
Once you are put under anesthesia you have no way of knowing what is being done to you by whom. Medical staff seems to think nothing of leaving women alone under sedation with a man, a stranger to these patients; not something a reasonable woman would ever tolerate if told the truth. Physician response to reasonable requests by reasonable women is to simply lie. I know this from personal experience. Complaining to the V.A. about violations of my requests for, and promises made of, female only staff during procedures like colonoscopies, oophorectomies, and a mastectomy, complaining about being left in the care of men while under anesthesia, and requests for explanations for symptoms synonymous with sexual assault for which the physician claimed to have no medical explanation, has gotten me nothing more than a "don't ask; don't tell" flag in my chart by that same doctor. It seems many physicians are unwilling to give up even a small fraction of their income, many hospitals unwilling to spend a fraction more, to ensure the safety of women under anesthesia, or even respect women's own attempts to protect themselves. It took a movement to get women into the medical profession, and the rest of us were promised the comfort and security of female care only to be betrayed by petty greedy women the likes of those who have betrayed this reporter/patient.
If physicians are willing to lie to patients, to put patients at an unreasonable risk, to seek all sorts of ways to avoid any sort of meaningful informed consent, to even engage in outright medical fraud, how is a patient to have confidence in a diagnosis? How can a patent feel confident that the diagnosis is not motivated more by the need to teach this or that procedure than a thorough analysis of medical history and data? How can a patient know that a prescription or surgical suggestion from their physician is motivated by concern for their well being rather than personal profit? You cannot! In June 2002, for example, a Chicago cardiologist was sentenced to 12-1/2 years in federal prison and was ordered to pay $16.5 million in fines and restitution after pleading guilty to performing 750 medically unnecessary heart catheterizations, along with unnecessary angioplasties and other tests as part of a 10-year fraud scheme. 19 My own significant other suffered an unnecessary heart catheterization.
What protection does a patient have?
Medical Licensing Boards are little help. Sanctions are rarely proportionate to the offense. Physicians are often given no more than a few months of limitations on practice or short suspensions. Even in the most repetitive and/or grievous abuses such as sexual assaults while a patient is under anesthesia or performing high risk unnecessary surgeries, physicians are often given little more than limitations on patient demographics and mandatory counseling. At worse they may recieve two to five years suspensions with mandatory counseling followed by reinstatement with temporary supervision. These disciplinary actions are too lenient and too few to make a difference. "A D.C.-based advocacy group found only 33% of doctors who made 10 or more malpractice payments were disciplined by their state medical board; some-with as many as 31 payments-have never been disciplined." 20.
Laws are not effective. When laws are changed to help protect patients, the old, "do not ask, does not tell" tactic is employed. This was the case with California consent laws relating to informed consent and using patients under anesthesia as teaching tools for pelvic exams. 21. Illinois followed. 22 At first, many hospitals voluntarily conformed, then after a few big teaching hospitals and their physician's thumb their nose at the law, reminded legislatures that the patients are under anesthesia and therefore make lousy witnesses, interest in conforming to the law seemed to fade and continued abuse has to date gone unchallenged. 23
Lawsuits do not work. Rather than clean up their act to reduce risks of suits, many physicians have retaliated against malpractice lawyers and their family members refusing them care or firing their nursing spouses. Patients who sue one physician are refused care by others. Even some physicians who have testified as expert witnesses on behalf of plaintiffs have suffered retaliation from employing hospitals and State Medical boards. In Florida, Tampa General Hospital revised its employee "code of conduct" to prohibit staff from testifying on behalf of plaintiffs. (They may testify as witnesses for hospitals and doctors.) "In Jersey City, the medical staff at Christ Hospital voted to remove George Ciechanowski as chief of staff, according to news accounts, because he backed malpractice legislation that many of his colleagues opposed.", 24. Regardless of awards and even if insurance companies refuse to insure repeat offenders, this does not seem to slow down the abuse. Awards are not proportional to the injury, nor large enough relative to income achieved through such abuses to discourage the practices. In spite of lawsuits, sanctions, and payouts, patient abuse remains profitable. 25
Research and empirical evidence has done little to change attitudes. Research indicates that listening to and respecting patient wishes in conjunction with honesty and early confession and apology for error reduces litigation. A few hospitals that have revamped policies and practices in response to this research have reduced malpractice payouts by 85% 26 Unfortunately, such evidence fails to persuade physician attitudes, who claim they have, "No time to listen and talk to patients." 27.
What is to be done?
When patients' health and well-being are no longer the top priority of physicians the system is no longer trust worthy and should be radically reconstructed to once again serve the interests of equal protection and security of ALL patients. Piecemeal socialization or V.A. type medical care within an overarching for profit system only tends to subject the poor who do manage to access medical care to the sort of abuses described above. I heard a wise person suggest that if all the physicians and other medical staff who worked at the V.A. had to use the V.A. themselves for medical care, things would change. Likewise, only in a one-payer system that treats ALL citizens who seek medical care the same, will some of us not be subjected to such abuse in the interest of others. Only in a one-payer system will physicians and other medical staff find their interests in common with the patient's interest.
What can we as patients needing care do in the meantime?
1. Demand a single payer system,
2. while seeking the bulk of your health care on the margins outside of the mainstream of large corporate medicine. There are many ailments that can be effectively treated by Chinese physicians and naturopathic doctors.
3. Demand family member presence while under anesthesia.
4. Read all consent documents, and do not be afraid to alter those documents or bring your own for the physician to sign.
5. Ask if trainees will be involved in your care at the time you make an appointment. Record the conversation.
6. Be ready to refuse care or be turned away and find care elsewhere.
7. Lobby your state and federal representatives for greater protective legislation. Add a clause to consent forms in facilities such as the V.A. regarding adherence to state regulations they are not otherwise obligated to follow.
8. Be suspicious of physicians who make multiple referrals, use coercive tactics to convince you to do things, respond to every concern you may express with another scan, MRI, or other test, seem to have more patients than can be properly cared for without many residents and trainees helping out, lie to you even once.
9. Educate yourself and become wise about how you access medical care before you discover you have been abused. Remember, no medical care, or delayed medical care can, in many cases, be better than bad medical care.
10. Be a skeptic. Expect your doctor to lie to you. Remember their Hippocratic Oath has more to do with P.R. propaganda than having any real meaning to many physicians.
11. When you find a doctor has abused you; let the rest of us know. Post flyers, post adds, get the word out about that doctor. Start an Abusive Doctor boycott list web site in your area. As we boycott those physicians and seek care with more ethical practitioners incentives may shift a bit.
MC Kean
1. The following two articles represent a very small fraction of the propaganda concerning lawsuits and medical malpractice.
A Confederacy of Boobs, by Michael Fumento Reason, October 1995
Medical Malpractice Suits Are Dividing the Nation!, by Marcel Votlucka , The Stony Brook Press, December 8, 2005
2. Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits, Harvard School of Public Health, May 10, 2006
3. Too Many Malpractice Suits, Or Not Enough?, By Solange De Santis, ConsumerAffairs.Com, October 18, 2004
Also see, Medical Malpractice in TX: is one of many articles, facts, and research published by, Public Citizen, regarding lawsuit propaganda.
The Medical Malpractice Myth: Forget tort reform. The Democrats have a better diagnosis, by Ezra Klein, Slate, Tuesday, July 11, 2006
4. Prescription Drug Scams, by Dean Baker, Thruthout, June 29, 2006
Drug Trials Hide Conflicts for Doctors , by KURT EICHENWALD and GINA KOLATA, May 16, 1999Insurers Pay Doctors to Switch to Generics, by Joe Mantone, The Wall Street Journal Health Blog, Jan 24, 2008.
Med-tech perks for doctors questioned, by JANET MOORE, Star Tribune, Feb 28, 2008
Is Something Rotten in the State of Radiology?, by Leonard Berlin, MD, FACR, Imaging Economics, March 2007
5. Profit-Seekers, by Payne Hertz, Wednesday, August 29, 2007
Also see, Needless Surgery, Reprinted from Consumer Reports on Health (March 1998)
© 1998 Consumers Union*
To Go Under the Knife--or Not?, by Kate Murphy, Business Week, July 7 2003Health Department Fines Parkway Hospital $32,000 for Performing Unnecessary Surgeries on Patients from Leben Home, state of New York Department of Health, 7/16/01
Blue Cross and Blue Shield Plans File $30 Million Lawsuit Alleging "Rent a Patient" Fraud in Southern California, Summary by Blue Cross Blue Shield Association, BMC Cancer. 2005; 5: 94. Published online 2005 August 4. doi: 10.1186/1471-2407-5-94.
Laparoscopic Cholecystectomy Atrocity, Elizabeth Eugenia James-LaBozetta
Central Ohio Patient's-rights Service (C.O.P.S.) and Citizens for Medical Safety
6. High Rate of Failure Estimated for Silicone Breast Implants, by GARDINER HARRIS, New York Times, Published: April 7, 2005
7. Breast surgery accelerates recurrences in some women., Heatlh Facts, Nov 5, 200
Trauma-associated growth of suspected dormant micrometastasis, Nagi S El Saghir,1 Ihab I Elhajj,1 Fady B Geara,2 and Mukbil H Hourani3 BMC Cancer. 2005; 5: 94. Published online 2005 August 4. doi: 10.1186/1471-2407-5-94.
STRESS HORMONES MAY PLAY NEW ROLE IN SPEEDING UP CANCER GROWTH, Cancer Research, Nov. 1, 2006 republished OHSU Research News
Tumor dormancy: not so sleepy after all, by Cliff Murray, Nature Medicine, 1, 117 - 118 (1995)
Does surgery unfavorably perturb the "natural history" of early breast cancer by accelerating the appearance of distant metastases?,European Journal of Cancer, Volume 41, Issue 4, Pages 508-515 M. Baum, R. Demicheli, W. Hrushesky, M. Retsky
Wounding from Biopsy and Breast cancer progression, Ritsky etal, The Lancet, Vol 357, March 31, 2001
HOW SCIENTIFIC ARE ORTHODOX CANCER TREATMENTS?, by Walter Last8. Top 10 Reasons to Be Glad You Have Breast Cancer, by PJ Hamel
Monday, May 7, 2007
9. Are Med Students Practicing on You?, By: Suz Redfearn, Mens Heatlh10.
VA uses unsupervised residents and other practices that would not be accepted elsewhereBy JOAN MAZZOLINI, THE PLAIN DEALER Cleveland, Ohio Sunday, January 28, 200111. Not Rape, but Still Not Right: Hospitals Should Get Clearer
Consent Before Med Students Probe Anesthetized Women, Evan Schulz, LEGAL TIMES, Mar. 17, 2003, 54; Also see, Using tort law to secure patient dignity, by
JOHN DUNCAN
Independent
ROBIN FRETWELL WILSON
Washington and Lee University - School of Law
DAN LUGINBILL
Ness, Jett & Tanner, LLC
MATTHEW RICHARDSON
Wyche, Burgess, Freeman & Parham, PA
Training Intrusive and Needs Patient Consent, Activists Say, WASH. POST, May 10,
2003, at A1; Darin L. Passer, Medical Students Respect Their Patients, THE STATE,
July 19, 2003
12. V.A. Malpractice info website.
13. Don't Ask, Don't Tell: A Change in Medical Student Attitudes After Obstetrics/Gynecology Clerkships Toward Seeking Consent for Pelvic Examinations on an Anesthetized Patient, Peter Ubel 188 AM. J. OBSTETRICS & GYNECOLOGY 575 (2003).
14.Informed consent in public hospitals, by SP Kalantri, Indian Journal of Medical Ethics, Oct - Dec 2000 15. “Nearly half of doctors in a recent survey admit to witnessing a serious medical error but not reporting it.” How Professional Is Your Doctor?, Tara Parker Pope, The New York Times, December 3, 2007,16. V.A. Malpractice info website.
17. Rape Nation, By Kari Lydersen, for AlterNet, July 2, 2004.18. Gregoire pledges to reform health-care licensing, by Michael J. Berens, Seattle Times staff reporter April 30, 200619.
The Problem of Health Care Fraud, National Health Care Anti Fraud Association 20. Phoenix Doctor's Picture Taking Latest Sad Tale of Medical Malpractice, by Parker Waichman Alonso LLPPublic Citizen Releases Database With Names of 1,112 "Questionable Doctors" in Pennsylvania, Oct. 29, 2003The story of Dr. John York and the Calif. Board of Medical Quality Assurance, by Al Schallau
Bad doctors get slapped on the wrist, by Janet Kornblum, USA Today, Aug, 30, 2006 21. NON-CONSENSUAL PELVIC EXAMINATIONS, By: John Kasprak, Senior Attorney, ORL Research Report, June 22, 200422. First State Law in Nation Protecting Women From Unauthorized Pelvic Exams Takes Effect January 1st, Office of Assemblywoman Sally J. Lieber, Dec 19, 2003
23. Pelvic exams on unconscious women? More hospitals say no, A.P. March 11, 2003
Using tort law to secure patient dignity: often used as teaching tools for medical students, unauthorized pelvic exams erode patient rights. Litigation can reinstate them., Duncan, John ; Luginbill, Dan ; Richardson, Matthew ; Wilson, Robin Fretwell , Trial, OCT 1, 2004 24. Medical-malpractice battle gets personal, By Laura Parker, USA TODAY, June 13, 2004Also see, How Malpractice Suits Keep My Profession Honest, by Bernard Sussman, Washington Post, April 24, 2005; Page B02
Doctors Take the Offensive. More-Aggressive Tack Used to Cut Frivolous Malpractice Claims, By RACHEL EMMA SILVERMAN Staff Reporter of THE WALL STREET JOURNAL March 23, 2004
The Medical Malpractice Myth, by Tom Baker, University Of Chicago Press, December 1, 2005Law and the Life Sciences: Doctors Sue Lawyers: Malpractice inside out, George J. Annas The Hastings Center Report, Vol. 7, No. 5 (Oct., 1977), pp. 15-16
doi:10.2307/356071725.
26. Listening and talking to patients. A remedy for malpractice suits?, G W Lester and S G Smith University of Saint Thomas, Houston, Texas. 1993 and,
Apology a tool to avoid malpractice suits, By Lindsey Tanner, A.P., The Boston Globe, Nov. 12, 2004
27. “No time to listen and talk to patients.” by A W Wirtzer (al. Lester 268, or Western Journal of Medicine, June, 1993 pg 639)Original Content at http://www.opednews.com/articles/genera_mc_kean_080319_arrogance_2c_abuse_2c_fr.htm
1 comment:
Interesting links.
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