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Troubling talk with local med mal JD

Discussion in 'Emergency Medicine' started by TrumpetDoc, Jun 24, 2014.

  1. TrumpetDoc

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    This may be interested to some. I found this troubling.

    Recently I had a discussion with a local med mal JD. I was at a party of an old friend who is a newer lawyer (business law) but of course a lot of local JDs present. We started talking about policy stuff and I found he was a med mal guy so I asked some of his thought on med mal. We talked for a bit and while at many times I had visions of causing bodily harm to him, it did make me a bit concerned as there is a disconnect from what we are being told by our some of our medical brethren in journals/throwaways/podcasts/MD/JDs. I will paraphrase some of his comments.

    1. Testing. I have been hearing often from my former groups lead MD/JD, people like Dr Henry, and such that increased testing never protected anybody. Phrases like "so you think not ordering/ordering a CT is going to be a deciding factor in if get sued?" I hear from them as they lecture us on resource utilization/medical costs/variation of practice of EM docs etc. I tell him this and his response: "That's Bull$&/)!”
    MrJD: when there is a bad case or outcome, and I see an upstream doc that had the chance to make the diagnosis with a test or procedure, I smile every time. I can get an expert from any specialty to debunk a doc's thought that his/her exam and thoughts are good enough these days. And if we go to trial, I have a pretty set script here. To the effect of "so Doctor, you just didn't care enough about my client to order this test?” Or “so my client was just a statistic, just a percentage to you?”…in reference to a retort I made on evidence based medicine and good clinical medicine. Jury's love that stuff!


    2. Med mal will be getting worse for us (doctors). He is extremely knowledgeable of trends in healthcare, irritatingly so. He is extremely bullish on the med mal business in the coming years.
    MrJD: “You guys are being hung out to dry. So are hospitals. There is already starting to be a contraction on spending and costs (he used air quotes there). This is just awesome for me. There will be a lot of bad discharges, refused admits (what he seems to be calling us working up properly dispositioning patients that want admission from ED with follow up), procedure delays, diagnoses delays, all in the name of costs (air quotes again). Your societies and hospitals are masking this as evidence based practice, etc. But I can get a jury to see that very differently. A lot of physicians will be paying out before long, as will hospitals”
    He again referenced testing…
    "Testing is what makes diagnoses, saves people"
    I rebut and firmly discuss clinical acumen, experience, evidence and our own experts who could/would defend our actions
    "But that is in your world people live in mine… juries live in mine" - smug smile and chest tapping... I had to restrain myself;)

    I went back on the “refused admit” thing and he mentions to the effect of “If a patient is in the ER and wants to be admitted…you better just pray nothing happens in a reasonable time frame after if you discharge them against their wishes.

    I asked about defensive medicine protecting from us suits. Mr JD: “ to a point, it does. Will you get sued? Sure. Will I be less inclined to take a case that had a complete workup? Yup. If you appear to me like you cared and did everything you could, you certainly more protected. – I clarified, and to him/lay people, “everything we could and complete workup” basically equals Tests (labs/CTs/MRIs) in the ED.


    3. Nurses will hang you. MrJD: “EHRs are awesome!” “And nurses chart everything they freaking think of while in the ER with a patient. They are there to cover their butt, and often it is very helpful to me. It is so common that there are discrepancies in the medical record, and now they are so easy to find.”

    4. EHRs will hang you, see above.

    5. Choosing Wisely: he thinks this will do nothing to protect anyone. He states any junior litigator can paint the doc and societies as the bad guy here.


    We know about nursing notes and EHRs of course. But the first two parts of our talk made me cringe. The "perception" is that tests must be done. But we are being told that there is no fear or little fear of addressing healthcare costs biting us. At best, the powers that be are simply not talking about it like they should be.
     
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  3. VA Hopeful Dr

    VA Hopeful Dr Senior Member
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    Sure would be nice to put this back on the insurance companies...
     
  4. Birdstrike

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    I agree with him completely. I post stuff like this all the time. In a time when academics like Peter Rosen on your textbook will testify against you for money, and other academics like McNamara are getting sued for multimillions, I say listen to the attorney. I have some attorney acquaintances. That's who I always talk to at cocktail parties, not the doctors who just want to complain about how they're "getting killed" all the time at work. The attorneys and only the attorneys know how best you need to cover your arshnickle. When I hear all this nonsense that you mention, about saving costs, saving the system, I just laugh. This is idealistic nonsense they preach to the young lambs when they're still green enough to suck it up, to clear their own conscious and look good with policy makers to keep their ivory tower jobs and big wig society appointments. (See your own thread on ACEP putting a gag order on it's own officers: http://www.epmonthly.com/www.epmonthly.com/features/current-features/acep-puts-a-gag-on-council-candidates/ ). It's like sending sheep to the slaughter. What a joke. Put your disgust aside, and have a drink with this guy once a week. And send him a thank you note and an Edible Arrangement for being more honest with you than your teachers and your so-called "representatives." He's like your double agent behind enemy lines. Like Michael Corleone said in Godfather Part II, "Keep your friends close and your enemies closure."
     
    #3 Birdstrike, Jun 24, 2014
    Last edited: Jun 24, 2014
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  5. SpaceLeftBlank

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    I'm a med-mal JD, too, but I represent physicians. I live in a tort-reform state, so filings are WAY down, here, but your acquaintance's bravado aside, they're down everywhere else too. Plaintiffs' attorneys talk a good game, but around here, they lose about 90 percent of the few cases they manage to get to trial in the first place.

    I also represent lawyers in malpractice suits, and what I've learned over the years is that most doctors are more terrified of malpractice suits than they should be, while a lot of lawyers out there should be more afraid of them because they're basically oblivious, but malpractice worries never enter their minds.




    Sent from my iPhone using SDN Mobile
     
  6. TrumpetDoc

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    I hear ya...and he was a a smug type.
    However with me, and I would assume many others, the fact of getting sued in the first place is the main fear.
     
  7. @JackShephard

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    So much lack of transparency... even ACEP, wow.
     
  8. goodoldalky

    goodoldalky Member
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    There's always Texas
     
  9. Birdstrike

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    Yes, but is tort reform that fantastically good there? Really? Nobody's getting sued there for BS reasons, or has it just slowed the bleeding?

    I mean, seriously. Have med-mal plaintiffs attorneys started leaving Texas for work in states more favorable to them?

    That's really the test for me. When we start hearing about a "lack of medical malpractice plaintiffs attorney crisis" in a given state, like we've had with some MD specialists in certain states, that would tell me something.
     
  10. Druggernaut

    Physician Lifetime Donor Classifieds Approved 10+ Year Member

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    Yeah, wasn't there a thread here not that long ago that mentioned a successful lawsuit against an EP in Georgia, one of those states where the plaintiff has to demonstrate the physician was guilty of "gross negligence," when it seemed as though the physician had actually provided good, sound medical care that happened to have a bad outcome anyway? Maybe it's still rare on a population level, which is probably as good as we can hope for, but that's not going to be very comforting if some shyster cleans you out anyway.

    As long as we use juries, it'll be a crapshoot once a case gets to court. The capabilities of those people to twist and misinterpret even the simplest facts and rules... Man, you might as well be tried by the guy in room 7 at 4 AM who's so drunk and stoned he both wet and crapped the bed.
     
  11. Mr. Hat

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    I find your comparison between the average jury and drunk stoners to be very offensive and unfair.... to drunk stoners.
     
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  12. Birdstrike

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    http://forums.studentdoctor.net/index.php?threads/What-do-you-think-of-this-%22expert%22-testimony%3F.1059639/
     
  13. Birdstrike

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    That thread was called: "What do you think of this "expert" testimony?"
     
  14. KarlPilkington

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    It's all a game.
    I'm good friends with some med-mal folks (the kind that aren't on our team)
    I have no respect for what they do to make a living, but at the end of the day they aren't horrible people.
    For them its all business. They may put on a good show before the jury, but at the end of the day, they have bills to pay, and the easiest way to pay those bills is to chase after our insurance money.
    It's rare for any doc to pay outside of their malpractice limits, and most lawyers really just want their cut of your malpractice policy. We all hear about cases where the jury returns a huge verdict against the doc, but the majority of cases settle for well within the limits of the docs policy.
    I can assure you that these guys aren't losing sleep over the cases, they're just doing a job.
    As physicians we need to fight the natural inclination to emotions get involved with malpractice. The lawyers aren't emotional, the insurance company isn't emotional, the hospital system isn't emotional, the physician is the only person in the equation who brings emotions to the table.
    Getting sued is unfortunately a nearly unavoidable cost of practicing medicine in the US.
    My approach is to go all in and force the folks to settle. If you get named, you already have to list it on all license and credentialing in the future. If I settle my case, I walk away with little more than a more complicated application next time I want to moonlight at a new hospital. If I fight the case and go to trial, I lose years of my time dealing with a case that could go to a jury of total morons and end up costing me my entire life savings. Other than the pride of winning a case, I'm not sure how a physician comes out on top anytime they go to trial. Yeah my insurance premiums may go up, but is there anyone who went into medicine who didn't realize that lawsuits were a clear part of the process. You're not a bad doctor if you get sued, you just work in a really strange system that rewards bad outcomes and drama.
    Trials are expensive and extremely time consuming. I vote that we save everyone the hassle, stay out of the courts, and let the insurance companies foot the bill.
     
  15. goodoldalky

    goodoldalky Member
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    Karl.. I've got to ask.. have you actually done that before?
     
  16. KarlPilkington

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    Not quite yet.
    I've gotten really close, but haven't fully implemented my plan just yet, I'm sure my day is coming soon.
     
  17. Apollyon

    Apollyon Screw the GST
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    If there was a way I could "dislike" a post, this would be it.

    Not "horrible people"? Uh, yes, they are. They are opportunistic, greedy people whose kids I would NOT let play with my own. Your being an apologist for them, because they are your friends, makes me wonder what kind of person are you.

    And I talked to a guy that used to do med mal - he got out of it because he wanted to be able to look himself in the eye, and to sleep at night (paraphrasing you, but he said this over a year ago).

    Remember that line from "Taken"? "It was just business." "Not to me."

    I don't give a flying rat's ass if they have bills to pay at the end of the day. What you describe fits the analogy of the attorney and the prostitute - faking it all, just in it for the money, don't give ANYTHING away for free, and just doing a job. If my neighbor works as a coyote, smuggling in illegal aliens, and dumping the dead ones that don't complete the trip unceremoniously by the side of the road, but is a "good guy", who cuts his lawn, and plays with his kids, and goes to church each Sunday, I am still going to think he's a horrible person. If someone voluntarily chooses to take a job that entails ruining lives, yes, that makes him/her a horrible person.

    And, the lawyers, insurance companies, hospital system, physician. Two of those aren't even people (well, literal people, but corporate persons ARE jerks), so they're out. The lawyers are the ones accusing, not the accused, and not the aggrieved, so they have no skin in the game. They would suck if they were emotionally attached. And that would imply humanity and caring.

    Again, your apologetic statements of just giving up the ghost, and paying out sound quite defeatist and have a quisling aspect to them. Did you know that some people's insurance gets canceled if they lose or settle? Are you familiar with the NPDB? If you settle, you get an entry. Try getting credentialed with more than one ding in the databank. Guess what? You won't be working where you want to. Or, if you are in a litigious area, and doing fields where people sue (like Ob and neuro/ortho spine), then you might be out of a job. What if your wife needs a C-section, due to decels, and the closest hospital is 35 minutes by helicopter, but they're not flying due to weather, so you have to go by ground, because people sued the earlier Ob group out of business there? How is that justice?

    Are you a resident? Do you know what happens to docs that get sued? Even ones that prevail report that those that don't drink, start. Those that do drink, drink more. Relationships fall apart. Sexual dysfunction. Alienation of children. Work problems due to being "snake-bit" and becoming the most conservative they can. Insomnia. Chronic nausea. Chronic diarrhea. If it is JUST your life savings, count yourself lucky (although your insurance provider should provide you with an attorney).

    Try suing an attorney for malpractice, and see how they react, now that the accuser is accused. I'll bet you they start to lose sleep, then.

    And, finally, "not a bad doctor if you get sued" - so you are saying that there is no merit to the suits that are filed? That's how that sounds. Some sued docs ARE bad, but most aren't - the scummier people are the attorneys that won't take a case because it won't yield $300K, which is the cost to go to trial. If you are unlucky person who has all 4 prongs of malpractice, but only $50K's worth of damages - sorry, Charlie - you get nada. You ain't even worth the time. How is THAT justice?
     
  18. meister

    meister Senior Member
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    Why the f*ck do nurses chart when the patient farts anyway? Such useless information.
     
  19. KarlPilkington

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    Clearly its an emotional issue, but I'd slow down a bit, as a lot of your comments make your otherwise valid points sound pretty unprofessional.

    -I'm no apologist for the lawyers, I've just found that the world is full of a lot of halfway decent people who make really bad decisions. I think suing physicians is a really bad idea, but if anything our line of work has shown me that its rarely fair or helpful to define people solely by the choices they make. Feel free to question the "kind of person" that I am, I'd encourage you to spend some time looking in the mirror.

    -I'm not a resident, and I have a very good understanding of how the system works. I admit the NPDB is problematic and the issues you bring up with credentialing and insurance, while rare, can be very huge issues in certain instances. Personally and professionally I advise folks to stay out of court if at all possible. If you put potential ramifications from the NPDB aside, the best chance you have of keeping your house, sanity, and health is to stay far away from a jury. I'm not saying that settling a case is a free pass, or that it doesn't take a lot out of folks, but it significantly reduces the chances of anyone getting anything more than insurance money. You can always come up with a particular situation where the right solution was to fight a case out in court for 4 years, but if you look at the numbers, staying out of court is the cheapest, quickest, and arguably safest option.

    -Sure there are bad docs that get sued. I don't think that the legal system has any decent ability to identify problematic providers. These issues should be decided with true jury of your peers, not in a courtroom of non healthcare providers.

    -I'm very familiar with the toll that this takes on physicians. We can't necessarily change the system, but we do have some ability to change how we let the system impact us. When you get sued, the issue is rarely with the physician. Typically you were just the guy on the schedule when something really unfortunate happened to someone who wasn't satisfied with some aspect of the outcome and thought that they/their family deserved some money. The system is broken, don't let the system break you.

    - There are a lot of people in the world who go through amazing stressful situations, but for some reason our rates of depression/Suicide/substance abuse/divorce are much higher, especially when you look at folks going through a lawsuit. As physicians I think we have to have some ownership in this. I don't have the answers, but as a profession we need to find a better way to handle a lawsuit, which for most of use is guaranteed cost of doing business in the current system. I've seen lawsuits take too many good physicians out of the game. I don't think we can plan to just "not get sued" so we need to come up with a Plan B.
     
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  20. Birdstrike

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    Amen to these 2 points.

    Though, I disagree that we shouldn't fight suits in court. 2/3 of cases that go to court are wins for the physician. Automatically settling every time just encourages easy money for the lawyers. You don't have to let a suit ruin you life for 7 years. Do your depositions, testify and it's over. Your life doesn't have to be hell between every encounter with attorneys, considering sometimes there are months or years that go by between even hearing anything about a suit, while it's going on.

    What's better than being 100% right, and dragging a med-mal plaintiffs attorney through 7 years of his life, and him getting NOTHING for all his work on a bogus lawsuit where you did everything correctly?

    Where we agree and come back full circle is that either way, there is absolutely no reason that some bogus lawsuit (or even one with some merit) from an attorney needs to send anyone into a life changing depression, crisis or drug/ETOH bender. That's the "taking ownership" part you talk about. It happens, though. Doctors are human.

    I think academics does a great job teaching the "stay out of court" approach and hammering home the need to practice defensively. Where I think they do a poor job is preaching the inevitability of lawsuits. This is where the mindset needs to change and this is what Medical Schools and residencies should teach openly and with pride:

    Getting sued for doing your job correctly, truly is in the MD job description, for good doctors.

    Sometimes the best doctors get sued more because they take on higher risk cases! In high risk specialties the percent that get sued approaches 100% over a career and is >50% in "low risk" specialties (I've posted the references before, but don't have them in front of me; Medscape, I think). That's why things like mock trials and mock depositions should be RRC residency requirements. Not cushy Cush M & M conferences where your buddies tell you that you they might have treated a patient differently, but by real med mal attorneys. The people writing the textbooks should stop testifying against their brothers, and go back to work and put a chapter in about this instead. It should be on the boards, written, orals, in-service and interviews.

    The problem is that no residency or med school wants to be seen as the first one that "teaches their doctors to be sued" or harden their "being a doctor is all rainbows and unicorns" recruiting strategies, but I think they're setting their students up for a big fall. Some have taken such falls, like you've said with the depression/suicides, burnout and substance abuse.
     
    #19 Birdstrike, Jun 26, 2014
    Last edited: Jun 26, 2014
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  21. TooMuchResearch

    TooMuchResearch i'm goin' to Kathmandu...
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    It's a game? Their cut? Just settle?

    F*ck that.
     
  22. Arcan57

    Arcan57 Junior Member
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    Anyone can complain (to your director, to the c-suite, to the state medical board) or sue you at anytime for anything. Every disease has a non-zero miss rate at some stage of progression. No test is 100% sensitive or specific. You can't test every patient for everything every time. No amount of documentation is protective enough to prevent you being named in a lawsuit. Missing something that leads to a bad outcome feels horrible and if a complaint or suit results from the miss, that horrible feeling will be perpetuated for months to years. Some of your peers have decided it's safer and easier to be paid to testify about your incompetence than it is to risk dealing with the consequences of their own incompetence.

    These are the truths of medicine and are not specialty dependent. We are more exposed to these truths because I would argue that full-time EPs have more novel patient encounters than any other specialty per year. We also interface with a variety of specialties that can profoundly influence the patient and their family's perception of our care. Think about these things and weigh whether the risk is something you can tolerate.

    But don't let some blowhard attorney dictate how you are going to practice medicine. The doc that scans everyone doesn't have better outcomes then the ones that uses their brains and judgment. Produce a medical record that shows that you thought about the bad things your patient could have but didn't, listen to the voice in the back of your head telling you something's wrong with the patient, and explain as much as possible in language the patient understands what you're thinking and what the next steps will be. If you're viewing patients as the enemy, take a break or change practice environments. Going into work miserable is going to rub off in terms of how you communicate with the patients, nurses, and consultants all of whom you need to stay "on-stage" around.
     
  23. Birdstrike

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    Have you been sued yet?
     
  24. Arcan57

    Arcan57 Junior Member
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    Is there something in my post with which you disagree?
     
  25. TrumpetDoc

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    Granted....this guy was very smug and arrogant, but I agree with Bird in that I find it valuable to talk to folks who do this for a living.

    I seriously doubt any of us can say we do not practice defensive medicine. Just a fact. And that IS letting lawyers dictate how we practice.
    I don't feel defensive medicine makes the job easier, in fact for me it makes the job exponentially less enjoyable. It belittles the knowledge and training we have honed. It has significantly contributed to burn out for me (but in conjunction with other factors)

    But is practicing defensive medicine completely protect you from action? Of course not. But it seems what WE call defensive, the public calls "complete/good care" :/


    Thumb typed from iPhone using Tapatalk
     
  26. Birdstrike

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    Agree.

    Agree.


    Agree.

    Agree.


    Here's the one I'm not so sure about.

    It sounds good. Feels good. Defiant. I love this attitude, but it strikes me as "whistling past the graveyard." My guess is you have not ever been sued, which if the case, is great. I think things change for a lot of people when they're served papers at work or in their driveway playing with their kid, by a cop or process server. Most of us have absolute moral outrage over it. We view ourselves as "The Good Guy." Most of us chose this career to help people, and we make great sacrifices that very few people understand or appreciate. The sacrifices are ignored and replaced with visions of the "Rich Greedy Doctor." Yet we have to pay what amounts to mob protection money, to attorneys to protect us from attorneys, for doing our jobs and DOING THEM CORRECTLY! It feels personal. Getting sued doesn't have to be life altering, but I think most people would say it affected them moving forward, in some way. You don't have to say whether or not you've been sued. That's cool. I have.

    http://www.epmonthly.com/whitecoat/2013/02/it-didnt-feel-like-a-win/

    Either way, I think anyone that says the threat of being sued doesn't affect them in some way, either is a very rare bird, or not being very honest with themselves. As doctors, we're told 400 times each shift "how to practice medicine" by various people or entities, whether administrators, insurance companies, Joint Commission, our patients, nurses, and the list goes on. Each and everyone of those "affects the way we practice medicine" yet the ones who're going to drag us into court, slander our reputations and try to extract our life savings from us are the only ones who aren't going to affect how we practice medicine? Hmm...

    It's no big disagreement. It's just the 2 cent opinion of one inconsequential, non-appointed, non-elected, non-academic, non-AMA non-big-wig, regular-Joe Doc.
     
    #25 Birdstrike, Jun 27, 2014
    Last edited: Jun 27, 2014
  27. Arcan57

    Arcan57 Junior Member
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    I'm not saying that the threat of malpractice doesn't or shouldn't have any influence on how we practice medicine. It clearly informs a large part of our decision making and test ordering. What I am concerned about is that we take what we understand as the "rules" of avoiding litigation and come up with internal "policies" that don't actually accomplish what we want. Using CT scans or admitting patients as a substitute for sitting down and giving the patient an explanation of what you think is going on, what you need them to do next, and "game-changing" symptoms for which to return to the ED is misapplying the lesson.

    -Arcan57
    "Pit doc with a fascination for EM's metagame"
     
  28. Old_Mil

    Old_Mil Senior Member
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    Glad you posted this as it confirms many of my suspicions about what I call the public health/public policy crowd in medicine and their recommendations like "Choosing Wisely". It probably is more accurate to call it "Choosing Cheaply".

    Sent from my Z10 using Tapatalk
     
  29. Arcan57

    Arcan57 Junior Member
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    Do you disagree with the EM "Choosing Wisely" initiatives? Or are you bothered by the idea of ACEP issuing practice guidelines? Personally I'm more comfortable (although by no means completely comfortable) with ACEP coming up with the initiatives as CMS has shown extraordinarily little understanding of the ED as a environment for delvering healthcare. Also, the majority of the EM initiatives are as much harm preventing as cost savings (decreased CAUTIs, decreased allergic rxn from unnecessary abx for abscesses, theoretically decreased cancer burden from not CTing minor head injury).
     
  30. Old_Mil

    Old_Mil Senior Member
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    Attending Physician
    ACEP can do whatever it wants...I practice defensive medicine. If they release a recommendation that I feel is more likely to result in my getting sued, I simply ignore it.

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    Birdstrike and sb247 like this.

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