Random Thoughts from a Restless Mind

It’s become one of those trendy phrases, “unnecessary care”. When you hear it on television or talkshow radio it’s usually said with a sneer. Indeed, the speakers almost spit the phrase out–“Unnecessary care”–like it tastes bad.  It’s almost always accompanied by “fraud and abuse”, or a not so subtle accusation that some doctor is profiting off this “unnecessary care” at the expense of some poor patient. But is this true? Is this always the case? Are there no longer any circumstances whatsoever where the doctor really DOES know best?

I’m an ophthalmologist, an eye surgeon.  Every single day in the office I see several patients who have enormous cataracts which have dramatically affected their vision, and yet they are not only totally unaware of this decrease, they are militant in their rejection of surgery to improve their vision. Some of them have vision which has decreased to a point where, not only would they fail their drivers license test, they are nothing short of a menace to society behind the wheel. Because cataract surgery is an elective procedure, the patient gets to choose whether or  not to proceed with surgery. In other words, operating on a patient with a cataract who does not feel he has a problem would be “unnecessary care”.

The opposite version of this happens every day, too. In about 25 states there are strict, numerical guidelines that insurance companies (including Medicare) used to determine whether or not cataract surgery is “medically necessary”. Not a day goes by when I don’t see a patient who is bitterly unhappy with her vision, and yet her measured visual acuity is better than the threshold for “medical necessity”. Despite the fact that this patient feels handicapped by decreased vision caused by a cataract, operating on her is considered “unnecessary care”.

It kinda tricky. Sort of a damned if you do, damned if you don’t thing. I know it seems like a rather fine distinction, but cataract surgery is actually a big deal when it comes to the economics of medicine in the United States. Did you know that there are almost 3,000,000 cataract surgeries performed every year in the United States? Could some of these surgeries have been “unnecessary”? I dunno. I’m really struggling with the definition of “necessary”, frankly. Is cataract surgery in my two patients unnecessary? Says who?

You can achieve the same relative mortality rates for atrial fibrillation with either a cardiac ablation, or a cocktail of medications. Maybe you are medicine–free with the ablation, and therefore free of not only the yoke of your daily medicine schedule and side effects, but also the considerable burden of navigating your health insurance-approved medication list. The ablation might be 10X the cost of the medicines, but does that make it “unnecessary”? Too much? Says who?

So how do these two cataract patient scenarios play out at Skyvision? Well, the very unhappy patient with a cataract of any size whose vision does not reach that threshold level of “medical necessity” always chooses to wait until her insurance will pay for the cataract surgery. Always, whether she is a retired schoolteacher or a wealthy heiress worth tens of millions of dollars. She leaves the office unhappy, frustrated, and frightened. She cannot enjoy her daily activities because she cannot see well enough, and she is frightened by the prospect of normal activities like driving.

The other patient? Well, this patient typically has a monstrous cataract, so brown and cloudy it’s like looking through beef broth, or even beef gravy. This patient gets angry, too, but he is angry at me. He’s angry and offended that I would have the audacity to suggest that his vision is poor, too poor to drive, for example. He doesn’t understand what 20/50, or 20/80, or 20/100 vision means, and frankly he doesn’t really care. He’s got a drivers license, dammit, and he’s legal to drive. These visits almost always end something like this:

Me: “What kind of car do you drive?”

Patient: “A crown Vic.”

Me: “What color is your Crown Vic?”

Patient:” White. Why?”

Me: “Because my wife and kids are driving on the same roads as you, and I’m going to tell them to stop and pull over every time they see a white Crown Victoria.”

I say THAT’S “necessary care”!

They got it half right. The jury that is. The jury in the malpractice case in which I just served as an expert witness got it exactly half right. Kind of like our whole medical malpractice court system if you think about it. A young woman had a bad outcome in one of her eyes following eye surgery, an outcome that has caused her quite a lot of unhappiness, quite a lot of difficulty. The jury was quite correct in recognizing this, and also quite correct in recognizing that this woman was going to need some financial help in order to make this difficult situation even a little bit better. In order to make this happen the jury found the doctor who performed the surgery guilty of medical malpractice.

Only one problem with that, though: no true malpractice actually occurred.

Herein lies the essential, fundamental problem with our medical malpractice tort system as it is presently constituted. Every single malpractice case is a “zero–some game” in which the only way that an individual who has been injured or otherwise suffered a bad outcome from some medical experience can receive financial help is for some doctor (or hospital) to lose a malpractice case. As an aside, the plaintiff’s attorneys, the lawyers who represent the victims of medical misadventure, must win the case in order to be paid. (The full–disclosure necessary here is that the only people who are guaranteed to be paid are the defense attorneys and the expert witnesses on both sides of the case.)

I’ve actually been up at night, literally losing sleep every night since the conclusion of this trial. That’s actually kind of odd, and doesn’t really make any sense at all because I received rave reviews for not only my testimony but also for the strategy suggestions I made over the four years it took to bring this case to its conclusion. Indeed, even the court reporter went out of her way to tell the defense team what a great job I had done. It’s kind of like getting all kinds of pats on the back for making 10 receptions for 200 yards in a football game your team goes on to lose–pretty empty feeling despite the fact that you did your part well.

What then, exactly, is medical malpractice? In the civil court system in the United States medical malpractice requires that two things have occurred. First, a doctor (or hospital) must commit an act of COMMISSION (do something) or an act of OMISSION (fail to do something) that falls below the Standard Of Care. This failure to meet the Standard Of Care must then result in some kind of harm to an individual. To be extremely technical and to–the–letter correct, the failure to meet the Standard Of Care is malpractice, and the resulting harm is malpractice liability. No need to get all tied up in that kind of detail; let’s just call the whole thing medical malpractice.

The Standard Of Care is a difficult concept. In effect, the Standard Of Care is defined as that care or medical decision-making that a preponderance of (most) similar practitioners would provide in similar circumstances at that time. Pretty nebulous, huh? Not a terribly rigid, hard, easy to put your hands around definition, and it’s a moving target on top of that. The Standard Of Care is an ever–evolving thing; new research findings, new technology, and new patterns of care will all combine to create a Standard Of Care that may be different today than it was even last year.

In this particular case there was never any question that it was a medical procedure that caused this patient to have such a bad outcome. There was never really even any question about the technical quality of the work performed by the doctor. No, what it all came down to was a question of whether or not the surgery should have been performed in the first place, and thus came into play that subtle little part of the Standard Of Care, the difficulty in describing to a jury of non-–physicians the difference between the Standard Of Care today and that of some years ago. The lawyers for the patient did a brilliant job of burying the jury with the details of HOW the complication arose, the difficulties that have arisen because of the complications, and the uncomfortable interactions that occurred between doctor and patient in the months following the surgery. They confused the jury about the difference between “could have done” (more than the Standard Of Care) and “should have done” (Standard Of Care). The lawyers were able to bury the fact that the Standard Of Care was followed by the doctor in question because at the time of surgery the PREPONDERANCE of similar physicians in similar circumstances at that time would have done the SAME THING.

The jury got it half right.

There, in a nutshell, is everything that’s wrong with our present medical malpractice tort system. In order for this woman, obviously harmed by this procedure, to receive some award so that she can do certain things that will make her life easier, she and her team had to “beat” a doctor and win in court. And oh yeah, she’ll also have to give 40% of whatever her award might have been to her lawyers. I think that’s a big part of why I’ve been having trouble sleeping. Not the lawyer payment thing, but the fact that a doctor who (in my opinion) practiced within the standard of care must now have a black mark against his name so that a patient can get some money that I frankly think she deserves.

Maybe a better analogy of my role in this “competition” would be something more like this: I was the consulting coach brought in to suggest an additional element to a figure skater’s program. Assuming that everyone in the competition was as conversant with the subtleties of the rules involved I suggested that the skater add an elegant, understated movement that would be obvious to any experts on the panel of judges, the jury as it were. Unfortunately, in our American system of medical malpractice, that’s not the case, and the opponents eschewed subtle elegance in favor of multiple quad jumps. The skater I assisted performed totally within the letter of the rules, but was penalized because the jury, the panel of judges, was not really an expert panel and missed the added element. And so he lost.

I DO wonder though what my reaction would have been if the opposing skater who landed all those quads had been the one who lost. Would I be up at night over that, too?

I’ve been thinking a lot about health care recently. Real health care, not Health Care as in “Health Care Crisis” or “Health Care Reform”, but the kind of health care that is provided by doctors and nurses and all kinds of other health care providers. You know, like making sick people better, and keeping healthy people healthy. The kind of health care that old guys like me (I’m 49, in case you were wondering) got from pediatricians like Dr. Roy in Southbridge, MA in the 60’s, or like my sons get from Dr. Gerace in Westlake, OH today.

I did a lot of thinking about this some 5 or so years ago, too, when I developed the concepts that eventually resulted in Skyvision Centers. My mini-epiphany at that time is that medicine is the ultimate consumer service business. At its core medicine is about one group of people providing a service to another group of people who either want or need that service. It’s the most intimate type of service, too. One to one. Face to face. You and me.

There is a remarkable lack of difference between doctors (and hospitals, for that matter) when you look at the outcomes that arise from that service– how many people get better after receiving medical care for their illnesses. The difference between the top 1 or 2% of doctors and the 50th percentile in terms of real medical outcomes is remarkably small, and much smaller today than it was in the days of my Dr. Roy.

Sure, there are differences in how people arrive at getting better. Some very instructive studies from Dartmouth have shown dramatic regional differences in the U.S. in how much money is spent on treating heart attacks, for instance. By and large, though, the same number of people get the same amount of better no matter where they are treated or from whom they received that treatment, and the quality of those treatments is several orders of magnitude greater and better than it was in my youth.

So what was it about Dr. Roy that people in my generation seem to have so much trouble finding in medical care today? If the treatment of diseases is so much better now why do so many people complain about medical care today? Why is it that Dr. Gerace has people lined up waiting to see him while other doctors don’t? Why do people rave about their experience at Skyvision Centers and complain so bitterly when they need to have a consultation at some of the most famous medical institutions in Cleveland?

I think it’s because Dr. Roy, Dr. Gerace, and I were all, once upon a time, caddies.

Seriously. We spent the earliest part of our working lives on the lowest rung of the service ladder, providing one-on-one service for a single customer. Because of that I think each of us realized that what really sets doctors (and hospitals) apart is what a patient experiences when they visit. The most successful doctors and the most successful medical practices are those who have realized that the central character in the play is the patient. The most successful caddies never forget that the most important person on the course is the golfer. The job of the caddy is to help the golfer perform a well as possible (maximize the health of her game) while at the same time making sure that she has a wonderful experience on the golf course.

Ben Stein wrote a recent column in the NY Times about his first real job; he was a shoe salesman. Imagine, at 17 years of age, selling shoes. Days filled with all manner of customers and handling the foot of each and every one of them. Customer service and sales is “learning the product you are selling, learning it so well that you can describe it while doing a pirouette of smiles for the customer and talking about the latest football scores” no matter who that customer might be. Tinker, tailor, soldier or spy, junior partner or janitor. Be they humble or haughty, gracious or grating. Totally focused on that one customer in front of you in order to provide them that service. The same can be said for any front line service job. Waitress in a diner, car mechanic, you name it.

My first summer job was caddying, and I caddied for parts of each summer through medical school. As I think about it now after reading Stein’s article it’s amazing how many parallels there are between my first job as a caddy and my career as an eye surgeon. I toted the bags for one or two golfers at a time; I usually have a patient, patient and spouse, or parent and child in the office. I was a better golfer than almost all of the men and women for whom I caddied; I know more about the eye than every patient who visits, google notwithstanding. In both circumstances my success was/is determined by my customer’s (golfer/patient) outcome, their “score”, as well as their view of the experience. Even a career-best round doesn’t feel quite as enjoyable if it took place over 6 hours in the company of a surly caddy!

I’ll tell the story of how this turned into Skyvision Centers another time; it’s a neat story and I love telling it. For the moment, though, I have a little experiment for anyone who might be listening, and a modest suggestion for the powers that be in medical education (who most assuredly AREN’T listening). The next time you visit a doctor ask him or her what their first couple of jobs were. See if you can predict which of your doctors or dentists or nurses had what kind of jobs before their medical career based on the kind of experience you’ve had in their offices or institutions.

Let’s add a little time to the education of the folks who take care of our medical problems, especially our doctors. How about 6 months selling shoes at Norstrom’s. Or a year of Sunday mornings slinging hash at a local diner. Better yet, let’s get all of those pasty white interns out on the golf course with a bag on their shoulder and a yardage book on their hip, golf hat slightly askew and Oakleys on tight (for the record, even people of color end up “washed-out” after a year of internship). Let ’em learn how to take care of a customer without the huge advantage of all that medical knowledge. We’ll take the best of them and turn them loose in offices all across the land. Those who can’t hack it, the ones who can memorize the history of Florsheim but can’t bring themselves to touch a foot, who are scratch golfers but can’t bring themselves to congratulate the hacker who sinks a 30 foot double-breaker, those we’ll hide in the lab, or put them in huge, anonymous medical centers, one more anonymous member of an anonymous team hiding under the brand umbrella of some “World Class Clinic”  where one-on-one customer service never really happens.Because the ultimate consumer service business is medicine.

Just ask a caddy.