Friday, May 27, 2011


Working at the intersection of law and medicine, I've begun to pay more attention to language. I guess, more than anything, it began with me stepping back and listening to myself, as well as others. In addition, reading of others' experiences with language has been eye-opening. For instance, I read of a physician who spoke of being served with a medical malpractice complaint that alleged that he had acted "without due care, negligently, carelessly, and recklessly" in his care of a patient. I've heard attoneys say in response that that is just standard languge in a complaint, almost suggesting that it shouldn't be taken personally. That is "standard" language, in my experience, but does that excuse it? Shouldn't we be more careful in the words we use, words that are so hurtful and over-the-top? It seems that more respectful language might be more likely to create the opportunity for more openeness and discussions between the parties. It is likely that respectful language would create far less acrimony and anger. Even in litigation, there is opportunity for the humanity of all of us to be evident. This is not to suggest that the injured party doesn't have the right to be angry, disappointed or mistrustful, just that there is gentler language that could be used, language that supports respect and the possibility for connection.

Just to mention other language that may be transformational and, perhaps, more descriptive of processes that we hope for and values we espouse, including:

"Informed Patient Choice", rather than "informed consent": choice is active, suggesting full explanation, understanding and partnership between patient and physician, rather than consent, which is passive, suggesting physician makes decisions and patient consents (see earlier post);

"Continuing informed patient choice" or "continuing conversation and explanation", rather than "disclosure", which suggests healthcare provider choice in whether to provide necessary information to patients; it suggests choice, perhaps withholding, followed by conscious decision to "disclose" information; and

Physician as "provider" and patient as "consumer", suggesting powerful one giving and the helpless one receiving. I've read that "practitioner" has begun to be substituted for "provider" in some settings.

Some of the many language issues I'm thinking about in law and medicine.

Sunday, May 15, 2011

Informed Patient Choice/Informed Consent

The State of Washington now has, by statute, a process called Informed Patient Choice. Evidence that the physician explained the options to the patient, gave the patient videos to watch, had signed Informed Patient Choice, answered the patient's questions, and considered the patient's overall health status all weigh in to protect the physician from the tort of failure of informed consent.

The process of Informed Patient Choice also protects the patients, of course, by giving them a full voice in making decisions about medical procedures. Studies indicate that when patients are fully informed about their options, they often choose very differently from their physicians, i.e. patients are less likely to choose surgical intervention and/or expensive medical testing. Therefore, giving full consideration and participation to patients very likely will save millions, if not billions, of dollars in health care costs.

A Dartmouth Atlas White Paper, entitled An Agenda For Change: Improving Quality and Curbing Health Care Spending: Opportunitites for the Congress and the Obama Administration, states, "Failure to base the determination of medical necessity on informed patient choice leads to misuse of care, to what should be considered a form of medical error: operations on patients who, had they been adequately informed, and given a real chance to share in the decision-making, would not have consented to surgical treatment." In an earlier post, I referenced the tragic and appalling statistic: 50% of C-sections are not medically necessary (quoted from Mayor Bloomberg's speech to the New York State Bar earlier this year). Were all these women adequately informed and given the opportunity to share equally in the decision-making process?

I hope California will consider Informed Patient Choice in the very near future to promote safer health care and tremendous health care savings.

Friday, May 6, 2011

"defensive medicine"

I was just reading an estimate of the costs of "defensive medicine", defined as unnecessary tests and procedures physicians order to protect themselves from lawsuits, as $44 Billion. I'm still trying to determine where that and similar numbers come from. Assuming defensive medicine exists for this post, how is this number possible?

My understanding is that all testing, unless something simple like a blood test, and procedures require informed consent. Informed consent/informed patient choice is sought and given for treatment that is appropriate, necessary, and desired by the patient. If informed consent is sought for treatment that is inappropriate or unnecessary, how does a physician explain that to a patient in order to get infomed consent?

Rather than stating that billions are spent (wasted) on unnecessary or inappropriate or unwanted tests and procedures and using that informaton as evidence that SOMETHING must be done about medical mapractice litigation, shouldn't we look at what is underneath those numbers? How are physicians getting informed consent to do these procedures? If they are handing a form to a patient and asking that it be signed, without discussion, explanation, and joint decision-making, there is no informed consent. Shouldn't that be the issue we address?

In an earlier post, I talked about statistics cited by Mayor Bloomberg regarding the shocking number of C-sections performed that are unnecessary. Are there "informed" consents for these staggering numbers? What information is provided? What alternatives are discussed? What conversations are held? What warnings/concerns are expressed? What time is given for the patient to consider all options before signing?

Shouldn't we set aside the conversation about defensive medicine and consider the one-on-one conversations between patients and physicians that need to truly inform patients? If patients are not being appropriately informed, new processes/laws need to be in place to change that. Once patients are appropriately informed and are given the choice about the procedure/testing, there will be a lot less "defensive medicine". Patients will be equal partners in decision-making and won't be agreeing to procedures and testing they don't need. Hence, even if physicians want to do testing to protect themselves, patients won't agree.

It makes perfect sense, so, let's get busy!!!.