October 2004

Double Standard

By Michael J. Katin, MD

Over the past generation, members of the medical profession have become increasingly concerned about the risk of making an inaccurate diagnosis or even missing a disease entity completely. Despite this, how often have we seen a patient who has been treated for months for shoulder pain only to find that this is due to a superior sulcus tumor, or who has had been medicated for sinusitis when the cause of the symptoms is carcinoma of the nasopharynx? We in radiation oncology are accustomed to having our treatments blamed for urinary problems (often when the patient is not even being treated to the pelvis) which turn out to be due to infection, or for weakness in patients who are then found to be anemic because of their multiple previous cycles of chemotherapy. A major reason that unexpected findings are made is the assumption that the referring physician has completed the workup before referring the patient. Instead, we have to be vigilant that the final pathology review may not have been completed, and perhaps some of the imaging studies required for staging, such as an MRI of the brain in a patient with small cell bronchogenic carcinoma, were never ordered. Often we can inherit a problem which can then be compounded and place us in jeopardy, although when radiation oncologists make mistakes on their own, this is rarely at the expense of the other specialists.

Recently there has been a resurgence of interest in medical malpractice reform, even as medical practice itself needs to be reformed.  Certain state have been more adversely affected by physician migration due to rising malpractice insurance premiums and relatively lower reimbursement.  Our country is made up of 44 states, three territories, and six commonwealths, and all have slightly different legal doctrines.  It would seem proper that one national policy could be implemented before every surgeon has retired and every other physician in the United States has moved his or her practice to New Mexico. If that can't be done, we should at least reflect on the accomplishments of the rest of society and ask if we could at least be held to the same standards.

Millions of dollars and thousands of hours of effort have gone into opposition and defense of the practice of partial birth abortion.  It is estimated that no more than 0.17 per cent of abortions in the United States are performed in this manner, but due to the emotional impact of this topic, it is unlikely to be settled by compromise.  The United States Congress passed a ban on this procedure and it was vetoed by President Clinton.  In 2003, it was passed again, and this time was signed by President Bush and became law. Or did it?  The law was immediately challenged in the courts, and eventually it has gotten to the point of a ruling in the U.S. District Court for the Southern District of new York.  Judge Richard Conway Casey, who has declared that he is personally opposed to the practice, ruled that the law was unconstitutional because it did not make an exemption for using the procedure when it might be necessary to protect the mother's health and therefore it violated Supreme  Court rulings on this subject.  Is it possible that none of the people involved in drafting this bill anticipated that this could have happened?  Presumably many members of Congress have some idea about how the legislative/judicial balance works, and forty-five per cent of them are attorneys.  It would probably be impossible to get an accurate count as to how many legal experts on both sides of the issue had reviewed this prior to this event.  Had they truly not expected this outcome?  Given this development, should we hold responsible an oncologist who has a patient with fatigue, constipation, and polyuria who doesn't think to check a serum calcium level (since it isn't automatically included now on most chemistry profiles)?

In 2002, the Krispy Kreme company went public and had projection of huge profits over the next ten years. Already there had been recognition of the danger of high-carbohydrate diets and Doctor Atkins' New Diet Revolution had already been in print for 10 years and had sold 10,000,000 copies, and even had a major new edition in 2002 because of its success. Krispy Kreme is now filing for bankruptcy, losing millions of dollars and throwing thousands of employees out of work. Is this not worse that making a decision to go ahead with postoperative chemotherapy and radiation therapy in a patient with colorectal cancer who has already shown problems with healing, having required several courses of antibiotics and still having frequency of defecation even before starting adjuvant treatment? Should there be surprise that this person may need to have treatment interrupted and possibly even hospitalization for control of symptoms?

It would be impossible to match the series of events resulting from well-meaning assumptions in the 1930's. In foreign affairs, there was the belief that Adolf Hitler would be palliated by being given the Sudetenland. On the domestic front, the Social Security system was being set up as a fallback support for widows (historical note--most women worked very hard in the home but not outside the home in the 1930's) and workers who were simply unable to do work of any kind after age 65. Most of the people who were unable to work were in that condition because they would be dead within several years. President Franklin D. Roosevelt, who signed the Social Security Act on August 14, 1935, didn't even survive another ten years, dying at age 63. This has now become a guaranteed income for vigorous retirees, who will probably still be on waverunners at age 85, to help them live in Arizona, North Carolina, and Florida during the winter and who will vote out of office anyone who even suggests creating a means test.

Even in 1964, the Medicare system had accurate predictions---based on that era. Was it thought that there would not be major technologic advances over the next decades? One of the major triumphs of the 20th Century, other than the invention of Saran Wrap, was the explosion of medical knowledge and development of new therapeutic interventions. We have dramatically moved past the days of digitalis leaf, physical intrusion for treatment of TB, pneumoencephalograms, and handwritten consultations (with much shorter review of systems sections). Due to our success, the medical profession is now being penalized by having the cost of increased lifespan (and the cost of expectation of aggressive treatment) blamed on us. Somehow, the price of a human life is different if you have to spend money to preserve it versus how much more it's worth if it was lost in a product liability case. The fact is that the projections for Medicare expenses would have been perfectly accurate except for our progress.

I doubt anyone would think that major misconceptions and underestimates in the Social Security and Medicare programs would allow excusing the sequelae of having exceeded one's original constraints on the spinal cord in order to get better coverage of a tumor volume. We could never match the magnitude of errors of other professions and, of course, we should strive to never do anything that could jeopardize a patient's management and survival, but perhaps we should object to being placed into an environment in which it becomes too restrictive to practice. Maybe there are still some Krispy Kreme franchises available.