Sunday, June 19, 2016

A Conundrum of Medicine

Years ago, I was called upon to defend a malpractice case brought by a former prisoner. He alleged that during his incarceration he had presented to a correctional facility for medical care. Following his discharge, he had received a different diagnosis than was rendered during his incarceration. On the basis of that difference, a lawsuit was filed, accusing the doctors at the facility of malpractice for failing to make the same diagnosis. Despite his many complaints to the prison infirmary, he was not seen by specialists and did not undergo extensive testing. His lawsuit after release alleged these amounted to malpractice. 

The details of that litigation came back to me recently when I read Inmate Can Sue Prison Officials for Allegedly Ignoring Injury on This is a story of a Kentucky inmate who was in the course of a work assignment when he broke his back. He is suing the prison officials for being "indifferent to his condition."

The United States has a system in place specifically for such injuries, called the "Inmate Accident Compensation Act," and this inmate received compensation from it. However, he is seeking damages for "violation of his constitutional rights" as he recovered from the injury. Prison officials sought to have his case dismissed, using the compensation act as a shield. A federal court denied that. 

The focus of the article is this action for damages that is reminiscent of civil rights damage cases. It also provides some detail of the accident, which bear review. The inmate fell from a ladder while cleaning a prison kitchen. Falls are a serious safety risk. The CDC says the direct cost of medical care for falls is tops $34 billion annually. Hundreds of thousands are hospitalized for resulting injury; the most prevalent are hip and head injuries. 

This inmate landed on his back following this fall from a ladder. Initially, he claimed he was "unable to feel his feet or legs." He was "able to get up," within minutes. However, he claimed his "pain was a '12' on a scale of one to 10." 

He was seen in the facility medical clinic by a physician's assistant. The diagnosis was "muscle spasm" and he was returned to normal activities with some ibuprofen. A notable allegation in the civil rights litigation is the inmate's claim that he asked for an x-ray, but was denied. The inmate complains that his condition worsened, and within days he was incapable of arising from bed. His conservative care continued for "over six months," with medical personnel incredulous about the severity of his injury and abilities. 

The current litigation is against the federal prison officials for violation of "his Eighth Amendment rights by ignoring his medical needs." The lawsuit also includes "claims for violations of his rights under the First, Fifth and 14th amendments." His pro-se litigation was initially dismissed, but revitalized by the 6th Circuit Court of Appeal. 

The Court reasoned that the statutory limitation is not a prisoner's exclusive remedy for any and all claims, though it is the "exclusive remedy for an inmate's work-related injuries." In concluding the law does not foreclose all claims, such as these for constitutional relief, the Sixth Circuit's decision is consistent with prior decisions in the "7th, 9th and 10th circuits."

The case is interesting from a variety of perspectives. Obviously, the exclusive remedy comparison with workers' compensation makes it interesting. Of course, the fact that falls are so prevalent, and result in such dramatic medical costs is also interesting. The focus of employers on safety issues in this regard is easily understood in light of this significant potential harm. At conferences, I hear much about "fall protection" and that makes a world of sense in light of the potential outcomes. 

But, another subject is perhaps less noticed in this story, and was present in the malpractice case so many years ago. That is the subjective element of physical complaint in personal injuries. In this story, there is mention that the patient "broke his back." Unfortunately, that phrase could be used to describe a variety of actual medical conditions, and we are left without significant detail as to the diagnosis and what care would have been appropriate. The actual severity of the injury remains unexpressed by the press, and would provide context to the discussion. 

We might conclude, however, a few points. First, when there is blunt-force trauma to the body, most patients expect to be x-rayed. In many depositions over many years, I have heard multiple medical perspectives on this. Most physicians have insisted that such x-rays are critical in eliminating potential injuries from the analysis. This is less pervasive an opinion in back injuries that do not involve trauma, such as lifting injuries. 

But, with the cost of x-ray as low as it is, and with the prevalence and availability of such machines, it seems to most a prudent step in the diagnostic process. Though I am not a doctor, and though my experience in this regard is in no way a scientific sampling, this is the consensus impression with which I have been left. Should it matter that most people simply expect an x-ray, and would be as relieved to learn of a negative result as they might be concerned with a positive?

Second, there are a population of symptoms that are simply difficult. One of those insinuated in a huge population of injury situations is pain and discomfort. I have met a few people over the years who allege a pain level of 10 on a scale of 1 to 10, but this article describes the first one I have heard of that rated his pain a "12." Health Central provides a definition of the pain scale that is reasonably consistent to descriptions I have heard over the years. They define "10" as "Unspeakable pain. Bedridden and possibly delirious. Very few people will ever experience this level of pain." With that in mind, I have no idea what a "12" might be. 

This illustrates a potential complication with pain. When expressing the extent of pain, there is always the potentiality that a patient might overstate. This could be a conscious effort to mislead or exaggerate. It might be intended to precipitated more medical care, greater sympathy, or more stringent activity restrictions. There are even instances in which such exaggeration might be intended to procure stronger or longer pain medications. Expressions of pain, therefore, may be looked upon with some skepticism. 

But, it is also possible that such exaggeration may not be exaggeration at all. It is entirely possible that people perceive pain in their own way, that pain is a very personalized issue. There is medical evidence to support this conclusion. Some would argue in this context, though, that such perception issues should be expected to influence whether you as an individual are at a "10" or a "1" or somewhere in between, but should not change the "1 to 10" scale into a "1 to 12" scale. There is some merit in that. Does exaggeration beyond the offered range of "1 to 10" help to convey the true perceived pain severity or does it suggest to the physician a lack of credibility for the patient?

And finally, should we consider the role of physicians in the process? There seems to be a tendency to engage physician's assistants (PA), nurse practitioners and others in the treatment process. A stated rationale is the cost savings that may result from such involvement. This may seem to some to be illusory, however. A non-workers' compensation patient related to me that her/his family physician referred to a specialist to rule-out some issues and for a second opinion. The patient's  co-pay at the family physician is $25 and at any specialist is $40. The patient was surprised then to find that the $25 payment resulted in seeing a physician and the $40 visit to the specialist garnered only the attention of a PA. Why does it cost a patient more to see a PA at a specialist's office than to see a family physician medical doctor?

And, when the patient complaints are ongoing, should there be some tendency to return to the basics such as an x-ray? Should there be a reaction to engage a specialist for further evaluation and or diagnostics? And, in the end, will we admit that there are some things that medical science just does not understand? The patient described above with the $40 copay has never had relief of symptoms, nor even a plausible diagnosis of the physical complaints described. She/he has followed medical advice, undergone tests, swallowed various remedies, and the results have been precisely nothing, except money expended and time spent. Does that mean that no malady exists, the patient is a "malingerer." Or, does it just mean that science at this point cannot find a malady or cause to which it can point?

It is possible that her/his physical complaints are results of undiagnosed, as yet, conditions. It is also possible that those complaints are simply something that, as yet, the various medical specialists simply do not understand. And thus, we conclude with the fact that medical science, professionals, testing, and patients are imperfect. Just as imperfect as the rest of us. There will be human dynamics and imperfections interwoven into any complaints of physical pain, discomfort, or dysfunction. These will be present, and there will be challenges that result. The question will be how systems, science, processes and humans, deal with these human challenges. 

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