Response Rant

(This began as a response to a comment on my previous rant, but it quickly turned into a rant on it's own, and so I'll post it new.)

The problem with the hypocratic oath is that our legal system likes to interpret that as "Doing nothing is OK, as long as you don't accidentally do something HARMFUL."

When we hear about high profile malpractice suits, they're usually because the doctor DID something which (according to the suit) "caused" some bad result, or failed to cure the condition. The suit against a doctor because he DIDN'T do something is rarer (or at least, gets less press).

I think it's horrific what passes for "proof" in our courts. There are several classic examples. Dow Chemical's trials with breast implants, for one. The famous "McDonald's is liable because they served HOT coffee" is another.

In the first, a classic false "proof" was used: Testimonials. A certain percentage of the population is going to come down with any known disease, and with breast implants as prevalent as they are, there is going to be some cross over. If one person in a hundred (1%) of people come down with XYZ's disease, and one person in a hundred who has breast implants also comes down with XYZ's disease, then statistically, the implants had no effect. But if you gather up 50 or 100 of those people (skipping over the other 4999 or 9999 who DIDN'T get the disease), and parade them one after another in front of the jury, it's human nature to eventually start to believe the testimonials.

Let's put this another way: If I put label 10 ping-pong balls 1 through 10, sterilyze them and put them into a bag, and then ask 10,000 people to pick one out of the bag and remember their number, some small percentage of those people will get a headache in the next day or so (and would have gotten one, whether they'd picked the ball out or not). Now imagine that I ask all of the people who picked 3, and gathered up the 50 or so who'd gotten a headache.

Now I parade them in front of you one after another, to testify that "I picked #3, and less than a day later, I had a headache". After enough of them testified, I might be able to convince the jury that the number 3 was evil and actually caused headaches. Never mind that there are roughtly 950 people who picked 3 who did NOT get headaches, and nevermind that there are about 50 people who picked each of the OTHER numbers who also got headaches. The jury is never presented with this information.

We fall for this same tactic every time we see an add for some "food supplement" on television or on line. If you pay close attention, rarely do they quote any scientific double-blind study proving efficacy. No, they just parade about 5 people past who say "I took Dr. Ultra's Miracle Pill and within 3 weeks, my toenail fungus was completely cleared up!" It's very possible that each of these people would have been spontaneously cured WITHOUT the miracle pill, certainly there are few diseases which do not OCCASIONALLY spontaneously go into remission (or "cure"). The key is to take the population of people who took "Dr. Ultra's Miracle Pill" and the population of people who experienced spontaneous remission of the disease in question, find the intersection of the two sets (however small), and only present THOSE cases to the judging body.

Back to the examples of "proof", there's the famous case of the McDonald's coffee that was "too hot". We've become so lawsuit happy that a company such as McDonald's can't do it right. They're damned if they do and damned if they don't. Why, you ask? Well, consider the two options.

1) Drive-thru windows are not SUPPOSED to encourage eating while driving. Although we all know this is not how it happens, the intent is supposed to be "I'll buy my food at the drive through, take it to where I'm going, and eat it there". As a result, you're going to want to serve the coffee just as hot as you can, so that the coffee is still warm when the destination is reached. Hot coffee is good, iced coffee is good. Tepid coffee is gross.

2) On the other hand, you have the case as it exists, someone who "didn't expect the coffee to be that hot", spilled it on herself, and then sued for pain and suffering.

Now, given both of these options, before the case in question came up, which would you think the better choice: serve your coffee hot because who expects someone to complain because coffee is hot, or serve your coffee warm and hope no one gets into an accident and then sues on the grounds that "The coffee is never hot enough, I had to drink it before I got home, or it would have been gross!".

So unfortunately, although I don't like the behavior of the "bad apples" among the medical community, I can certainly UNDERSTAND the annoying "ass covering" maneuvers perpetrated by most. When we have a legal system that actively hostile to doctors, is it any wonder most doctors aren't willing to take any risks or accept any but the standard accepted course of treatment for a disease, even when it doesn't seem to be working?

Copyright (c) March 10, 2005 by Liam Johnson. http://www.liamjohnson.net