Wednesday, January 9, 2019

Choosing an Attorney for your best Medical Advice

As the frost covered grounds of Indiana begin to thaw during the closing days of Winter the amorous carnal longings of my extended family seem to burst forth. December births are common among my cousins who added to the clan this year in furtherance of this synchronized generational expansion. While the two newborns healthfully departed their maternal denizens their respective forays into the greater world have proceeded at distinctly contrasting rates.

Following the ritual Winter family gathering my parents queried between themselves why one baby is being brought into the throngs of fellow beings while the other is kept hunkered down in its domestic fortress. More particularly why is one doctor saying do not take the baby out of the house while the other encourages wanderings.

Such contrasting suggestions bring forth no bewilderment to my mind. However, they may not be apparent to those outside my fields of practice. Thus, I present this examination of general professional counsel using these babies as case in point.

The answer for why two medical professionals advising differently on the same circumstance comes down to their respective legal counsel and statistically probabilities of harm. In this case I will use a hypothetical statistical risk assessment using bacterial meningitis.

Let’s say that, while only considering whether a child is quarantined for the first two post-utero weeks of life, 1/3 of meningitis cases are of quarantined children while 2/3 are of environmentally exposed children. Based upon this 2:1 ratio legal counsel for the insurer of the first doctor says that newborns should be quarantined for the first two weeks. The reasoning behind this is that in a medical malpractice lawsuit against the doctor an attorney would raise the issue that the doctor knew that the risk was twice as high for babies not quarantined. Thus, the insurer for that doctor or a medical association includes the quarantine recommendation in its “best medical practices for doctors” guidebook.

So, what about the second doctor? Well, her insurer has legal counsel which read a medical journal article stating that 2/3 of cases contracted by babies outside the home occur from just a few risky scenarios. These included being bottle fed rather than breast fed [contaminated bottle] or exposure to the environment of livestock carrying e-coli or the workers around the livestock. Keep in mind that this is simply my imaginary statistics and causes.

Here is how this works out mathematically thus far;
3/9 cases occur in quarantined children
2/9 cases occur in exposed children
4/9 cases occur in exposed children

Setting aside cases from these few risk factors the ratio of contracting bacterial meningitis for quarantined versus exposed children is 3:2. Armed with this information the insurer for the second doctor publishes an advisory that says newborns are less likely to become infected if they are environmentally exposed but livestock environments and bottle feeding should be avoided.

This dichotomy demonstrates two contrasting styles of thinking. The first is the blanket approach that does not allow for judgment or deliberate action. The second is the case specific approach which requires deliberation and decision which reduce risks by a greater degree. The second approach is on the decline.

The overall goal is the reduction of risks. That is risks to the professional not you the consumer. Again, in the medical field this is apparent in the scheduling of elective surgery. It could be for a knee replacement. The doctor has two years of medical history, x-rays, and field knowledge about the scope, progression, and pain associated with the joint failure. The patient asks, “When should I get this done?” In years gone by the answer may have been, “You could wait until the end of Summer when your son goes off to college.”

But someone who had been told that message was going down some stairs the week before the post Summer surgery was scheduled. While doing so she lost her balance and fell which resulted in numerous fractures. During trial one expert said the deteriorating knee was a likely contributor and that the doctor should have scheduled the surgery earlier.

So, now the response from the doctor is, “I suggest doing it as soon as possible but I will schedule it for when you feel like you want it done.” Thus, if some adverse experience should occur pre-operative time then the doctor can fall back on the patient deciding to wait, against medical advice.

This professional decision making based upon legal advice is ubiquitous in our litigious society. Here is a hiring example.

This is based on actual events. A school hired a teacher based upon educational credentials, work experience, and a criminal background check. The necessary teaching degree/certifications had been obtained, there was positive employment experience, and he had not committed any of particular crimes of violence, sexual in nature or against children that would disqualify him. So, he was hired. Then he was criminally charged for sexual relations with a student.

~ ~ ~ A quick side note. If you want to know where the most prolific and proficient sexual molesters of children are go to where there is ready access to children and look for people not on the sex offender registry. ~ ~ ~

The school had protected itself in two ways. First, it relied upon information provided by others that are reasonable measures to filter potential sexual abusers of children from the employment pool. Second, no one could be held liable for wrongful termination for firing him on a “hunch” that he was going to do this.

The legal protection scheme goes like this. Create a record trail to say we tried to prevent the abuse through hiring procedures, if the potential for abuse is suspected then monitor but let it happen unless you have clear proof of intent, then terminate based upon the judgment of police or a prosecutor that abuse did happened. Using this scheme the sexual abuse risk is reduced. Not for the children but of the financial liability for the insurer of the school corporation.

Our society shuns responsibility. The cacophony of lamentations over parents not being responsible for their children. The lawsuits against tobacco companies for causing people to smoke. Now it’s obesity is caused by the so-called foods industry or portion sizes. People steal because of drugs. And the falsehoods and rationalizations for avoiding responsibility proliferate and have a common basis.

The root for it comes from the top. The white collar professionals have clearly demonstrated a near uniform avoidance of personal accountability for making judgments. Of the few domains where judgments are made those actors are protected by statutory immunity or legislatures are scrambling to expanding immunity to include them. Instead of making judgments based upon experience, intuition, or logical thinking the professionals have outsourced that to attorneys.

So next time you are seeking medical advice make sure it comes from a competent attorney.

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©2008, 2019 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in its’ entirety with credit given.

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