That Big Kaiser Verdict Is Instructive

Recently, a jury awarded a young California resident $28.2 million for a delayed diagnosis of a pelvic tumor. The jury found Kaiser Permanente negligent. Doctors in the system allegedly refused an immediate MRI for back pain in a 17-year-old. The patient eventually received an MRI three months after presentation, which found a tumor so extensive that the patient needed an amputation.

The case is instructive at multiple levels. It shows a tense dialectic between the individual and society. It also highlights a truism that many don’t understand or don’t acknowledge – missed/ delayed diagnosis and waste are reciprocal. 

The patient presented with back pain. MRI for back pain is the poster child of waste. Why so? Because so many are negative. Even more are meaninglessly positive –disc bulges which simply mean “I’m Homo sapiens and I wasn’t intelligently designed to be sitting at the desk.”

High quality doctors don’t order MRI for back pain immediately, reflexively and incontinently. Yet quality is still not settled. Quality doctors must satisfy patients. If a patient asks for an MRI for back pain the quality doctor must acquiesce if that refusal dissatisfies. I’m confused. Ordering an MRI for back pain is poor care. But not ordering an MRI for back pain is poor care. Which is it?

It’s possible that the patient had a neurological deficit that should have raised the urgency. It’s possible that the physician didn’t examine the patient and had he/ she examined, the tumor might have been detected. We don’t know. We shouldn’t judge (1).

But we know that the delay in getting the MRI was three months. Three months is an eternity. Right? 

In 3 months did the tumor change from curable to ‘unresectable without amputation’? Unlikely.

Yes, it’s possible. Possible encompasses probabilities from 0.00001 % to 100 %. Here we have another tension. FDA wants probabilities. Medicare wants outcomes and probabilities. Insurers want any excuse not to pay, and lack of probable will do. In courts possibility delivers a knock-out punch to probability.

Doctors must be guided by probability, the essence of evidence-based medicine (EBM), but be mindful of possibility. Cognitive dissonance, anyone? Probability screws possibility. Possibility nullifies probability. Which one? 

The award might not have been as high if the defendant wasn’t an integrated system such as KP. In the era of shared risk, ACOs and shared savings this merits introspection.

Remember that equation: value=quality/ cost? Bonuses will be doled out for high value care. 

Money for thrift doesn’t sound good. Still excited about shared savings?  You may retort that doctors should decline an MRI for the right reason. The “right reason” is determined after the fact by the jury, who will find it offensive when doctors don’t do a test, ostensibly, to save money, particularly when there are CAT scans and MRIs every nook and corner.

Any skilled plaintiff attorney will reframe waste reduction, population health, EBM, and that hilariously Orwellian term, resource stewardship, as soulless, greedy rationing. And will find a bunch of MDs willing to muddy the case. There’s a reason Health Maintenance Organizations (HMOs) failed. HMOs are not American (2). I’m not American. I get it. I’m amazed 47 % don’t (3).

I’m not saying people get the healthcare system they deserve. I’m saying the system makes perfect sense, given the ethos, culture and expectations of the people.

I have sympathy for the patient. The lottery of life was unfair to her. In her position I would have sued as well. Juries compensate for cosmic injustice as much as they restitute medical negligence. I know that.

The patient said that she hoped the verdict would “teach doctors a lesson.”  Doctors don’t need to be taught a lesson. We know when it comes to thrift and waste reduction we’re on our own.

Yet I refuse to practice defensive medicine.  I know there’s a risk I’ll be sued. But what of the thousands I stop from going down anxiety-provoking imaging rabbit holes? They’re people, too. I’m patient-centered as well.

Saurabh Jha is a radiologist and professor of radiology who writes frequently on healthcare policy issues. He can be reached on Twitter at @RogueRad.