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"They" are the Cause

Ask people who they hold responsible for the medical malpractice crisis and attorneys will be somewhere in the answer.

Organized Medicine should get a public relations award for creative obfuscation. Like a parlor magician who diverts attention with one hand and performs the trick with the other, Organized Medicine has diverted most public scrutiny from themselves to a very accessible target – attorneys.

There are 3 things readers should know about this issue:
1. Attorneys are NOT the cause of the medical malpractice crisis.
2. Attorneys can never contribute to the solution of that crisis.
3. I am neither a paid or unpaid advocate for the ATAA.

A solution for a social problem must begin with identifying the root cause of that problem. Just because the AMA says attorneys are the primary cause of the medical malpractice crisis does NOT make it true.

Doctors are the cause of the medical malpractice crisis – and – doctors are the only cure for that crisis.

One of the greatest impediments to solving the medical malpractice crisis is that doctors have been convinced they are not the primary cause of that social reality. Most doctors know far too little of the history of their own profession, particularly that history pertaining to the era of “Modern Medicine.”

A “walk down memory lane” through the Journal of the American Medical Association (JAMA) should disabuse them of the notion that anyone else is the cause of their problem. Read the JAMA, as I have done, from 1949 – 2003. The stark contrast between AMA pronouncements in the early decades of that period and current declarations are illuminating.

AMA proclamations in those early years of post WWII Modern Medicine were those of a true profession:
“Doctors are the best judge of other doctors.”
“We owe it to the public to judge ourselves.”
“If we don’t do it, someone else will.”
“The most logical place to apprehend the incompetent physician is in the hospital.”
And the best one is:
“The only act in medical practice which may properly be termed “malpractice” is
negligence in the care of a patient.”

Idealistic rhetoric rears its ugly head. Literature regarding medical malpractice over the last forty years has a vast quantity of generalities and platitudes, with negligible specifics to find a tangible solution.

“Doctors are the best judge of other doctors” is a truism.
“Doctors do not know how to judge other doctors” is a reality.

Society has been left with that sad reality, but it is not recognized in medical literature. What’s more, there is no authority or media watch-dog to question it.

What Can You Do?

Everyone wants healthcare change, so what can you do?
First, you must understand where to look for that change.
Let’s “do the math.”

America has two healthcare systems, so each has two different paths that lead to possible change.

Federal healthcare is legislated by Congress and regulated by the Department of Defense (DOD) and the Veterans Administration (VA). They’ve made sweeping changes quickly before so there is NO doubt that they are capable of doing it again…if they want to.

The Department of Defense zipped far past the private practice of medicine in the way they credentialed doctors in the mid-1980s. The VA improved their entire medical and patient care structure in the 1990s.

So they can change. But not without a will to change and a means to do it.

Federal “will to act” on major issues must come from YOU.

Private healthcare is regulated by each state. Private practice of medicine is the least regulated economic activity in America. There is NO person in any state who can prove that statement to be incorrect. There is also NO state which can provide evidence of effective healthcare change during the past two decades of a growing, clearly evident need. They just don’t get it.

State legislatures could create the most effective healthcare change but they are the least likely to do so. If you think Congress functions poorly, spend a few days observing your state legislature in action. Be prepared to come away in tears. It will not be a pretty sight.

Healthcare change can occur through other means.

Harvard Medical School Department of Anesthesia demonstrated in the mid-1980s that institutions can make major changes when they are pressed to do it. Medical schools, teaching hospitals and large medical clinics have the power too, but have never demonstrated the will.

Two additional, potential agencies for healthcare change should also be considered.

Organized Medicine makes state legislatures look better and more competent than they really are, history proves it.

John D. Clough, MD, Editor-in-Chief, Cleveland Clinic Journal of Medicine had this to say in 1997, “In the past, the state and county medical societies played a reactionary role in virtually every political debate affecting health care, and to some extent they continue on this path. They have acquired the reputation of opposing whatever the current reform proposal was, while rarely offering a reasonable alternative (or even directly addressing problems everyone inside and outside the health care system knew existed). The societies protected the interests of physicians, but were often blind to the needs of society and even to the needs of the patients they served. They were almost never seen as a part of the solution, and gradually they came to be viewed as part of the problem.”

So much for expectations of positive healthcare change originating from Organized Medicine.

Let’s also look at the cottage industry of healthcare. Governmental and non-governmental agencies, universities, foundations and think-tanks play a major role in every consideration for healthcare change. They each create volumes of articles and books. Is there any evidence of a viable solution within those works? The end result is that after over two decades of recognized need for change, positive healthcare change remains an illusion.

What can you do? Hammer them. And continue to hammer them. But know who you are applying pressure to and exactly where they can best participate in future, positive healthcare change.

Congress, state legislators, medical educators, and anyone who contributes to the written or spoken word regarding healthcare change must be held accountable.

Congress should NOT attempt to regulate private medicine. State legislatures make a poor enough effort without Congress’ help. Each should stick to their respective area of healthcare influence, but each must be held accountable for what they do, or more likely, don’t do.

You are the best source of power to initiate any future healthcare change. They have proven at every possible level that they are unable to do what needs to be done on their own.

You can continue to be part of the problem by doing nothing, or you can become part of the solution by pushing them to make changes.

On Being a Heretic

Few people can imagine the frustration of constantly knowing you see and understand a social phenomenon “no one else” comprehends. I believe I see and understand the dual professional dilemmas, medical malpractice and medical peer review, far better than any other person in America.

Furthermore, I believe almost everything heard or read regarding those subjects is based upon flawed fundamentals and distorted logic. More importantly, very little of my belief is based upon “my opinion”, which, like a Star Bucks latte and $5.00 will get you a small (grande in their language) and some change.

The vast majority of that understanding of medical malpractice and medical peer review is based upon facts taken from the medical profession’s own literature and other related sources.

How might a lone heretic overcome the concentrated public relations, media savvy might of Organized Medicine and federal and state bureaucracy? Only through a discerning public. Discernment demands that the listener differentiate between fact and rhetoric.

Organized Medicine (AMA, Joint Commission, AHA, etc., etc.) and non-medical profession sources can literally engulf an interested audience with mountains of literature, past, present and to be created.

Few people are old enough to remember Dragnet’s Sergeant Friday, “The facts, madam, just give me the facts.”

Organized Medicine’s defense of their past track record regarding the administration of their profession will be “a day late and a dollar short” if only documented facts are accepted in rendering a judgment.

The problem occurs because the “facts” regarding each subject (malpractice and medical peer review) get lost in the fact-less rhetoric. Discernment between fact and rhetoric requires time and effort, two commodities most of the public and few in the media offer either medical malpractice or medical peer review.

The public must choose if they want to continue just talking about healthcare change or do they finally want to begin making healthcare change happen?

I recently had a person at the highest level of business leadership ask me, “But, what can I do?” If a person at the highest level of business leadership can ask, ‘But, what can I do?’, where does that leave everyone else?

Is it any wonder that we’ve spent the last 20 years just “talking” about the need for healthcare change? That need is so obvious, but the ability to direct meaningful healthcare change has been missing. And it is also obvious that Organized Medicine will never be one of the guiding forces for such change.

I can direct interested parties toward positive healthcare change – NOW! A “desire” for healthcare change merely offers more of the same.

Get involved if you truly want healthcare change. The public needs to “look back in anger” and say “Enough talk, lets do something positive.”

Why Me?

I have been asked, why has an oral surgeon become so involved with medical malpractice? One incident, which began in 1979 and continued for several years demonstrated the enormous void between the vocalized professionalism of the practice of medicine and the unprofessional reality of questionable patient care.

Patients only have the rights our medical profession can demonstrate to be in existence.

I was asked to assume the responsibility to treat a patient whose condition, after several months of treatment by two other surgeons, was worst than her original injury. After treating and stabilizing her shocking, doctor-induced disability, I reviewed the hospital records of her previous two hospital admissions and surgeries.

Medical incompetence is the most civil description one might apply to her previous surgical care. My conclusion was that those two surgeons, over a four-month period, had done nothing right and everything wrong. After a brief meeting, requested by me, the senior of the two surgeons announced, “We did nothing wrong.” A simple fracture of the lower jaw, which typically required six weeks for satisfactory healing, had turned into three hospital admissions, three surgical procedures, months of antibiotic therapy, and they had done “nothing wrong”.

As a member of that hospital medical staff I felt it my professional duty to present my concerns to the hospital medical director. My reward was to be asked, “Are you a trouble-maker?” So much for patient’s rights.

Despite the unprofessional slur, I demanded, without the patient’s knowledge, that a review of her care be accomplished. The term “circle the wagons” is appropriate with the findings of their surgical peer review committee. There was not a single positive factor related to her first two hospital admissions and surgeries, yet that peer review committee could find no evidence of unacceptable care. That hospital’s acceptable standard of care for the treatment of simple fractures of the lower jaw could only be breached, apparently, if the patient had died.

Additional patient care review of that case was forced, by me, through every level of medical staff review, including the medical staff executive committee and NO fault with her care was ever indicated. Subsequently, review of her care was also found acceptable by the hospital system’s board of governors and the JCAH.

I had listed several elements of clearly substandard patient care, all documented in the patient’s hospital record, for each of the medical staff committee reviews and each level of medical staff review found no evidence of unacceptable care.

I presented the detailed evidence of her care and a list of all of the medical staff committees’ reviews to the doctor in charge of the JCAH review of that hospital several months after the hospital system’s board of governors had also found her care to be acceptable. There is no evidence that the JCAH took notice of all of the questions arising from her previous care.

Both surgeons were later found guilty of negligent care regarding that case.

Why is an incident, even a shockingly horrible incident of inept medical peer review extending up to and including the JCAH, a worthy consideration? Medical peer review is one of only three systems with the “potential” for questionable patient care review, and one of those three systems, state medical examining boards, is shown to be of no value in that regard.

Medical peer review has been given the state and federal privilege of being secret for over twenty years. Every hospital medical staff has the presumed responsibility to provide a functioning system of medical peer review. Yet no community in America has ever been provided evidence that medical peer review exist, much less functions, in cases of questionable patient care.

Does anyone care?

Doctors say the darndest things!

Art Linkletter, where are you when we need you? Doctors, like kids, can say the darndest things, but unlike kids, too often, what they say is not very funny. Organized Medicine has, in the past few years, made some incredulous public statements which should have demanded being questioned and were, instead, quietly accepted as gospel.

AMA produced thousands of colorful, tri-fold brochures in 2003 entitled Will Your Doctor Be There? The first full paragraph of that brochure begins with the phrase, “The primary cause of America’s medical liability crisis is -----.” To properly understand that statement one should appreciate the medical significance of the first three words; “The primary cause”.

The primary cause is the bedrock of all medical intellectual endeavor and is the holy grail of diagnostic medicine. Therefore, anything described medically as “the primary cause” has been given the greatest significance. I gained great appreciation for that phrase early in my surgical training. My six month rotation on the Pathology Department staff required me to perform 35 autopsies. The goal of an autopsy is to determine the primary cause of death, as well as any secondary, contributing causes.

I have belabored the point for good reason. Medical pronouncements of “the primary cause” are not merely casual designations. Now, back to their unquestioned statement.

Greedy, overzealous attorneys are the primary cause of the medical malpractice crisis. So says that AMA brochure which was meant to be placed in doctor’s waiting rooms for patients to take home and read. Let’s see how that occurs. Someone has surgery and days, weeks or months later there is clear evidence of post-surgical problems. How, when and where did an attorney create the problem?

Doctors have caught the Great American Syndrome, “Something bad happened, but its somebody else’s fault!” Far more important, however, is the fact that no one has ever questioned the AMA to clarify the fundamental disconnect between fact and the premise of their declaration. If medical malpractice is a medically induced human fault, how can attorneys, or any other non-medical source, be “the primary cause”?

“Legally acceptable medical standard of care is set at the lowest possible rung.” That statement was made by an AMA past-president who has both a medical and a legal degree. I term this definition of legally acceptable medical care to be the “onion-skin” rule. There is an onion-skin between the legally acceptable medical standard of care and that patient care which should be judged substandard care or medical malpractice.

Notice should be taken that the AMA does not speak of where the medically acceptable medical standard of care is positioned since questionable patient care is predominately judged through the medical liability system of civil court.

That same dual-degree AMA past-president offered doctors with Organized Medicine’s latest definition of medical malpractice, also in 2003. “Medical malpractice is treatment beneath a standard of care set by the law.”

String those three statements together; attorneys are the primary cause of the malpractice crisis, legally acceptable medical standard of care is set at the lowest possible rung and medical malpractice is treatment beneath a standard of care set by the law. A very disquieting pattern seems to emerge.

Organized Medicine never declared in a colorful, tri-fold brochure widely distributed to the nation through doctor’s waiting rooms that medical malpractice litigation was the principle system for the review of questionable patient care. That revelation was never communicated to society by the profession, but the overwhelming evidence is that our medical profession chose malpractice litigation as the system of choice for the review of questionable patient care.

Organized Medicine has a litany of highly questionable statements which have completely avoided public demands for clarification. No other facet of American society appears to enjoy such unquestioned acceptance of all declarations. Strange!

Friend or Foe?

This blog has begun with several negative, even hostile encounters with our nation's medical profession. Consequently, it is fitting and proper to question the author's underlying motivation. Am I the doctor's friend or foe?

It is rapidly approaching fifty years since I was pronounced to be a professional and a member of a time-honored profession. Society is fortunate that few persons so honored dishonor that privileged status by transgressions. Most medical and dental professionals strive to do good.

I love and respect my profession (dentistry), my specialty (oral surgery) and my co-profession (medicine) as much as one can. Love, however, demands confrontation when the subject of that love appears to be on a path toward self-destruction. When it comes to the review of questionable patient care, doctors have always been their own worst enemy.

Society passively, and federal and state governments actively, have rewarded our nation's medical profession with far too much self-regulation and control. The results have been disastrous for all. Medical practice is the least regulated economic activity in America - and always has been. That is a theme which will constantly reappear in future blogs until some authority can prove otherwise.

Attention for this blog must be refocused on the author's underlying motivation: friend or foe?

Our cuture has recognized, named, and classified a fairly new response when loved ones appear to be on a pathway leading to self-destruction. It is called intervention. Uniquely, in this instance, one person (author) is seeking to perform an intervention with the many (medical profession) as an act of love. I am NOT the enemy!

Interventions, however, require harsh truths be told and in so doing one can easily be preceived as the "enemy" when the exact opposite is the intent.

I was recently speaking with the healthcare guru on the staff of one of South Carolina's Senators. The question arose, "Was I intending to confront doctors with my thesis, doctors are the only cause of the long-standing medical malpractice crisis and doctors are the only cure for that crisis?" That does seem to be the currently acceptable mechanism used in interventions, confront the misguided in the hope of redirecting them to a more beneficial mode of conduct.

Is there a gentle manner in which learned individuals can be made to understand that their entire profession has traveled a self-destructive pathway, medical malpractice litigation, and that their only professional salvation can be found in medical peer review? All such recommendations would be gratefully taken in to advisement.

Therefore, thsoe who might view the author's intent as hostile and uncaring would be mistaken. A more loving attempt at the intervention of an entire profession can not be found.

Jacques Barzun, who wrote the 800 page From Dawn to Decadence, 500 years of Western Cultured Life after age 90, also wrote in The Profession's Under Siege, Harpers Magazine, 1978 the following quote,

"What all the professions need today is critics from inside, men who know what the conditions are, and also the arguments and excuses, and in a full sweep over the field can offer their fellow practitioners a new vision of the profession as an institution."

I can offer a new vision for the medical profession.

Idealistic Rhetoric

In last week’s post, Finding the Art of Medicine, Dr. Audiey Kao, AMA Vice-President, Ethics Standards is quoted as saying, “I would argue that this logic applies to the art of medicine - otherwise it simply becomes idealistic rhetoric.”

Idealistic rhetoric are prophetic words regarding the medical profession’s inability to measure the quality of clinical medicine. The volume of medical literature attempting to identify and judge the quality of medicine is enormous, and the wide range of sources of that literature is immense. Research papers by governmental departments, agencies and organizations, universities, public and private organizations and books by doctors, lawyers and other academic experts contribute to a gigantic amount of words on paper, and therein lies the problem.

If only it was possible to collect all of the current literature regarding medical malpractice and place that collection under great pressure, with the desired goal to extract the essence. I challenge anyone to read the books, articles and research papers regarding the cause and/or the cure for the medical malpractice crisis and catalog any definitive measures offered as a potential solution for that crisis.

Idealistic rhetoric abounds in all of the literature regarding medical malpractice and medical peer review, while the essence of a possible solution remains undiscovered.

The truth regarding all medical treatment is a simple as the formula for water. Mix two hydrogen molecules with one oxygen molecule and the result is water. Every basic form of medical care can be calculated in a similar manner. All medical care is comprised of the science and the art of medicine, and when combined in specific patient care the result is a medical standard of care. That basic equation applies to every form of patient care from a tonsillectomy to a heart transplant.

Doctors are taught the science of medicine and each doctor applies their personal art of medicine each and every time they treat a patient. One should surmise, “It can’t get much simpler than that, can it?”

Yet, almost sixty years after the “Dawn of Modern Medicine” Organized Medicine continues to lament their inability to identify, define and judge one of the two basic characteristics of every form of medical care. Doubters should search the web for the “art” of medicine and limit their findings to that form of art, which, combined with science, yields a medical standard of care. Their findings will be bleak.


Some might attempt to defend this hugh professional lapse by comparing efforts to describe the art of medicine with similar efforts to describe the taste of a fine wine or a delectable dessert. Not true! The art of medicine is a tangible characteristic evident in every incident of patient care.

It doesn’t take long for an air force or airline crew member to distinguish the “art” of flying demonstrated by various pilots. There are great pilots, good pilots and “good-luck” pilots and the same analogy exists within the medical profession. The distinction between the separate groups is exhibited through each individual practitioner’s art of medicine.

Still, Organized Medicine decries their inability to even identify that salient characteristic, much less define and judge it. Definitive discourse must replace idealistic rhetoric regarding the basic characteristic of all medical care, else the present chaos will continue to inflict pain upon our heirs.

Press for First, Do No Harm

Great reviews for my first book: First, Do No Harm

"...a fascinating read for anyone working in healthcare. He offers an alternative to the historic handling of medical malpractice and truly believes that the public's trust in the medical profession can be resurrected." Nancy Herbein RN, CNOR - AORN Journal

"First, Do No Harm is a riveting revelation of a severe social problem. First, Do No Harm goes beyond pointing out the injury, however it offers viable strategies for inproving national health care." The Bookwatch, The Midwest Book Review


"One of the largely ignored findings of the Harvard Medical Malpractice Study is that, although most physicians who responded to a survey were willing to admit that all doctors make mistakes, they are often unwilling to label substandard care the result of negligence. First, Do No Harm confronts this view head on and proposes a way to start thinking seriously about how to reduce medical errors and maybe even the amount of malpractice litigation." Neil Vidmar Ph. D. Duke University Law School - New England Journal of Medicine

FInding the Art of Medicine

The perfect analogy for the practice of medicine is a pilot flying a single engine airplane. Each student pilot is taught the science of flying an airplane. Each pilot, student or graduate pilot, provides their personal art of flying an airplane each time they take off and hopefully land safely. The exact same combination of science and art occurs each and every time a doctor treats a patient.

All medical care has three inherent characteristics: science, art and a standard of care.

Science of Medicine: Doctors are taught the science of medicine. Medical schools transform non-doctors into doctors. Other than rare exceptions, all current medical care has a basis derived from previous forms of medical care.
Art of Medicine: The art of medicine does now and has always existed. Every doctor provides their personal art to each patient they treat.

From a tonsillectomy to a heart transplant, each patient is like a painter’s fresh canvas, where the doctors practice their art of medicine. But, no doctor can tell you exactly what it is, or how to find and judge it.

Though the medical profession has failed to establish a means of identifying, defining and judging one of the two inherent characteristics of all medical care, it does not mean the art of medicine is intangible nor identifiable and capable of being judged.

Dr. Audiey Kao, AMA Vice-President, Ethics Standards said in 2002, “A not-so-famous man once said, ‘If you can’t measure it, it’s less likely to be important.’ In the case of good medicine, it is widely accepted that we need to measure how well physicians are providing clinical care so that we can continue to make improvements. I would argue that this logic applies not only to the science of medicine, but also in many important respects to the art of medicine - otherwise it simply becomes idealistic rhetoric. Leaders in medicine must work together to develop effective ways of imparting and evaluating the ethical skills and competencies of physicians.”

Organized Medicine’s lack of ability to identify, define and judge is one of the two missing links in the medical malpractice crisis.