TCS Daily

Our Edwardian Healthcare System

By Sydney Smith - February 5, 2004 12:00 AM

John Edwards wants us to know he is a man of heart. He has stood against "armies of lawyers," to help families through the "darkest moments of their lives." He is a "champion of quality healthcare," a trial lawyer who will hold lawyers responsible for their role in escalating healthcare costs, by "preventing and punishing frivolous lawsuits."

What he doesn't mention is that he amassed a substantial personal fortune by winning the sorts of lawsuits that most doctors would classify as "frivolous," and in doing so he has, along with many of his colleagues, done much to undermine the quality of healthcare.

Take, for example, Edwards' litigation specialty, birth trauma. As a trial lawyer, Edwards made a name for himself successfully suing obstetricians unfortunate enough to have delivered a baby with cerebral palsy. Cerebral palsy is a broad term that encompasses a group of conditions usually distinguished by abnormal muscle tone, and sometimes by cognitive or speech impairment. It arises from an insult to the brain, either before, during, or immediately after birth. Just what that insult is varies from case to case. It can be caused by infections, exposure to toxins, disruptions of blood flow to the placenta, or asphyxiation during birth. It was the birth asphyxiation cases which were the focus and foundation of John Edwards's very successful career. With the benefit of 20/20 hindsight, and fetal heart rate monitor strips, he was able to determine the exact time when unborn babies became stricken with cerebral palsy.

That's quite a feat considering that fetal heart rate monitoring has false-postive rates as high as 99.8% and that even experience obstetricians disagree widely when interpreting the same strip. Not only that, the routine use of fetal heart rate monitoring does not prevent cerebral palsy. But it does result in a forty percent increase in cesarean sections, a much riskier procedure for both mother and baby.

It would seem that no one gains anything from fetal heart rate monitoring, except the trial bar.

And yet, despite its miserable record, fetal heart rate monitoring is used in over seventy-five percent of deliveries in the United States. The reason? Fear of litigation. For, as hard as it is to defend a decision based on a fetal heart rate monitor, it's even harder to justify not using a monitor. Especially when the malpractice attorney can cull the field of "expert witnesses" to find the one doctor out of forty-one who will testify that it should have been used.

That kind of fear permeates every field of medicine. Radiologists cautiously over-interpret X-rays and recommend follow-up CT scans for the smallest of abnormalities, increasing the radiation exposure and cancer risk for patients. Primary care doctors and urologists order blood tests for prostate cancer screening with little discussion of their limitations and the increased risk of needless invasive procedures. Go to the emergency room with chest pain, and you'll most likely be admitted, even if your symptoms are more suggestive of a pulled muscle than heart disease. The list could go on and on. From a medico-legal standpoint, it's far better to err on the side of testing than not testing, since "failure to diagnose" is the most common reason for malpractice suits. A day doesn't go by when the average doctor doesn't imagine a lawyer looking over his shoulder as he wrestles with a treatment decision.

Some would argue that that's a good thing. That it keeps physicians on their toes and practicing good medicine. But, when those CT scans lead to follow-up CT scans every four to six months just to allay a radiologist's fears of litigation, or to complications from biopsies that in the end weren't needed; when the chest pain admission leads to a false positive stress test and complications from a subsequent cardiac catheterization, or a newborn baby ends up on a ventilator because he was delivered by an unnecessary Cesarean section, it becomes apparent that over treatment does not equal quality treatment.

So, if John Edwards is sincere about championing quality healthcare and reducing frivolous lawsuits, he would do well to examine his own heart as closely as he did those of unborn babies. He couldn't find a better blueprint for everything in the system that needs to be changed than that offered by his legal career.

Sydney Smith is a family physician who has been in private practice since 1991. She is board certified by the American Board of Family Practice, and is a Fellow of the American Academy of Family Practice. She is the publisher of MedPundit.


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