Fate

Last summer, my wife and I were sitting at the kitchen table at noontime, discussing I do not know what. Possibly an upcoming vacation, or our children’s adjustment to a new school. But it was August 25, three days before the first anniversary of Hurricane Katrina, and it is likely we were discussing that. There was nothing for us to do regarding that anniversary, and I do not recall that either of us had any particular apprehensions about that day. It nonetheless would have been on our minds. One year previously we were living in a different city in a different home, now all reduced to ruin by a hurricane.

We were talking, and I was probably expounding to her on the differences between my old medical practice in flooded-out Chalmette and my new one in Mississippi, or she may have been expressing her concerns about living in a small town after spending her life in so many big ones, when we were interrupted by a loud thump. The lights went out at that same moment, but we did not notice that at the time. The thump seemed loud, though not exceptionally loud to me; but some weeks later I talked to a nurse at my hospital who said he heard the thump in his home also and rushed outside expecting to see a car accident in the street. He lives around the corner and three houses down. It must have been loud.

Through my front window I saw a large branch lying on top of my car. My car, shaded under the new dressing. seemed almost embarrassed in its predicament. I looked up and down the street and could see that every door and porch was darkened with a figure gazing out. I would have to make the best of it as a neighborhood Man, going out and making a show of inspecting my vehicle as if I knew anything about cars.

I stepped out of my front door into the heat. The sky was flawlessly blue, and there was no wind whatsoever. Not a single reason in the world for a branch to fall out of a tree. We had had a little unfavorable weather the night before, but my suspicion was that the tree had been weakened in Hurricane Katrina’s winds a year before. Though our current home is 100 miles from the shore, Katrina shot through McComb, carrying 80 mile-an-hour winds with her. She had created a lot of firewood in McComb. And so I was thinking: One year out, living in a different state, miles from open water, and that storm was still punishing me.

Walking up to my car, I could see that the branch that had landed on it was more than a placid laurel. It was a forked branch, and one limb had gouged the roof of the car, and another had gone straight through the rear window, obliterating it. This branch, this miraculous branch, on its way down, also fell across the utility lines that passed from the utility pole across the street to our house.

And so, in summary, a single branch falling from the tree in my front yard on a clear blue day with zero wind crushed my car, and disabled the phone, internet, electricity, and cable service to my house in one clean shot. If all that was not bad enough, it was two o’clock on a Friday afternoon. What were our chances of getting three different utility services hooked up again in a small town on a Friday afternoon?

The irony ran in every direction to infinity. Oh, all right, I exaggerate, but it wasn’t a good day. I had come home from work about twenty minutes before, and parked in just the right spot for the branch to do maximum damage to my car. I had to be back at work at 2:30, which meant the miraculous branch had a fifty-minute window to do its job. Any other time and it would have found only my driveway. Well, driveway and utility line.

Lugubriously I took our other car to work. My wife, ever the paragon of efficiency, got on the phone. (The cell phone, I mean.) The electric company came out immediately, since the branch had not just cut off our power, it had shorted the power to the entire street. The electric guy repaired the power line, but could not hook up our house. The force of the branch had not simply disconnected the power line, it had jerked the line out of the wall of our house, stripping the electric line inside our wall. We had to get our house rewired.

Second came the cable guy. He had the cable and internet hooked up in minutes.

The phone company called and said they could come in a week.

(It almost goes without saying that, given the relative efficiency of the responders, I would strongly recommend that if you decide to invest in communications, go cable. Our local phone company doesn't even seem to consider its own services essential.)

When the electric repairman told us we needed our household wiring fixed before he could reconnect us, we called a local electrician for an emergency repair. He came by about four o’clock, and had our house electricity-ready in an hour. We called the electric company back, and were told that we could not get electricity again until the new wiring was inspected by the City of McComb.

Then we called the city of McComb . . . . AWOL until Monday, of course. If there is a certainty in life, it is that government officials do not make themselves available on weekends for emergencies. (Katrina hit Sunday night — remember?) Without electricity, we packed all of the food in our refrigerator into ice chests, hauled the chests in darkness to our one operating car, and spent the weekend with relatives. We hoped to return on Monday and pull things together then.

I do not believe in fate. The stars, or the forces of nature, or the spirits of the dead do not in my estimation conspire to fix events in accordance with some kind of twisted cosmic logic. Yet, when things like this happen, I can certainly see why ancients, with no other explanation available, might have thought differently. The coincidences here mounted and mounted. One year ago with Hurricane Katrina: we lost our home, communications, and one of our cars, and had to evacuate to a relative’s home. This year, the same. One year ago, the major delay was slow government response to disaster. This year, we were forced out of our house for several days because the city government would not respond to our phone calls. Last year, days after the storm we were on the phone with insurance companies. I am certain my car insurance company was not happy to hear from me again on the Katrina Anniversary.

The second time around it was not quite so bad. On Monday we came back home, and prevailed upon the city to inspect our house. We got the utilities back up the same day. As for my car, I lost it for two weeks to the body shop, but got it back in pristine condition, which is more than I can say for the car I lost to Katrina. Final repair cost, $4,500.

A week after the Great Fall my wife made a few more phone calls and arranged to get the offending tree chopped down. It was gone in two weeks. A fellow came by and looked the tree over, gave us an estimate, and we made a deal. Chopping down a fifty foot tall oak is not something I take lightly, but this was not a tree that had treated our house kindly. One of the mighty limbs of this oak fell on our house during Hurricane Katrina three months before we bought it, tearing a ten foot hole in the living room ceiling. Now, one year later, this happens. We were not going to wait to see if a third branch was going to fall.

A few days after the agreement, four workers showed up at our house and started shearing off the largest branches and carting them off. Then they crosscut the trunk, leaving only a stump three-and-a-half feet in diameter. At last they came with a huge chipper that ground the trunk to bits, tossing strings of white oak fibers all over our lawn. There was nothing left but mulch. Now I park my car in the deadly spot with confidence.

Fate had deprived us of house and car but this time we got both back much more quickly and easily than the first time. To ensure that Fate did not get the last word, in retaliation we deprived nature of one of her proud trees. It has, however, not escaped my notice that there are a two more oaks just like the first standing in our back yard. It is possible that these two are whispering to one another in the fall winds, plotting to get even.

My wife thinks so. She has the tree cutters on speed dial and has put all the trees in the back yard on notice.

I Sued Somebody. Who Knew?

After expending a day manfully slogging through the vicissitudes of using medical arts to benefit my fellow human beings, I rumbled through my front door and into the kitchen, and confronted a counter leaden with the daily mail. Among the Christmas catalogs and offers of $25,000 credit limits to one Michelle Hubert, I found a legal document in a mass mailing envelope. I took and read.

"Honey," I called out to my wife after a moment of mental indigestion, "I'm suing Cisco Systems."

"What?" my dearest replied. "Don't play around with me, I've had a rough day. Your son has been baptizing himself in the toilet water again."

"No, I'm serious. I'm suing Cisco. It looks like I have been in litigation since 2001. I must have been really peeved."

Yes, it was true.  A group of upstanding citizens from the law firm of Lerach, Coughlin, Stoia, Geller, Rudman, & Robbins, and the law firm of Levin, Papantonio, Thomas, Mitchell, Echsner, & Proctor filed a class-action suit against Cisco Systems of San Jose, California way back in 2001 on my behalf and then in 2006 belatedly thought of me. A judge was about to make a final ruling on the case, and they wanted to let me know that I was in for a sweet cut of the ultimate reward.

Did I want to sign up for the largesse, it inquired. It politely offered me the option of declining, saying, "IF YOU DO NOT WISH TO BE INCLUDED IN THE CLASS AND YOU DO NOT WISH TO PARTICIPATE IN THE PROPOSED SETTLEMENT DESCRIBED IN THIS NOTICE, YOU MAY REQUEST TO BE EXCLUDED." (The capitalization is theirs. I am not usually that annoying.) Well, THANK GOD, I said. I can opt out of a lawsuit that was filed in my name without my approval if I should have, well, you know, scruples.

Except, as lawyers like to say, don't neglect to read the next sentence. And the next, and the next, and the next, and the next. Somewhere in there is the  gotcha. "TO DO SO, YOU MUST SUBMIT A WRITTEN REQUEST FOR EXCLUSION THAT MUST BE RECEIVED ON OR BEFORE OCTOBER 31, 2006."

All right, now. I got the letter on November 13, 2006. Admittedly the U.S. Post Office is slow, but I'll give them credit for getting a letter from the West Coast to Mississippi in less than 14 days. Unfortunately, the letter was mass mailed and thus bypassed the local post office. It bore no postmark. In other words, I got the letter two weeks too late to opt out of the lawsuit, and I had no postmark to prove it was intentionally mailed out late to prevent me from refusing to participate. The old expiration date trick. That was slick, Mssrs. Lerach, Coughlin, Stoia, Geller, Rudman, Robbins, Levin, Papantonio, Thomas, Mitchell, Echsner, & Proctor -- real slick. I'll remember to never buy a gallon of milk from you guys. The cows that made it could have died in the Falklands War.

I wondered aloud to my sweetie how I ever got involved in this. I don't remember signing anything or seeing any legal notices before. How did they get my name? How did they file a lawsuit for me without my permission? Then, like a Republican watching the election returns, the truth dawned on me. "Dammit!" I shrieked. "I have got to start reading those licensing agreements that pop up every time I update Windows. Here I am just clicking on 'I Agree -- Install Now' and God knows what Bill Gates is putting in there."

Now a little background. Back when I was doing my resident training, I went through a period when I fancied myself a budding savant of high finance. I read a few investment books and subscribed to an investment newsletter. Sometime in late 1999 the newsletter recommended Cisco Systems stock as a strong buy, and I bought. I was only playing around then, so I laid in a little over $500 for the stock at about $55 a share, which of course comes to a total of 10 shares. After soaring to $110 by late 2000, the stock crashed during the 2001 dot com bust and currently trades at 26.88. An object lesson I guess, the lesson being that investment newsletters are a waste of money.

Little did I know that small investment would drop me in the middle of a multi-million dollar legal imbroglio. The legal documents spelled everything out nicely.

This Notice has been sent to you pursuant to Rule 23 of the Federal Rules of Civli Procedure and an Order of the United States District Court of the Northern District of California (the "Court"). The purpose of this Notice is to inform you of the pendency and proposed settlement of this class action litigation and of the hearing to be held by the Court to consider the fairness, reasonableness, and adequacy of the settlement.

Of course. (As an aside, my spell checker gagged on the word "pendency" and so do I, but I am bent on telling it like it is.)

The proposed settlement creates a fund in the amount of $99,250,000 in cash . . . and will include interest that accrues on the fund prior to the distribution.

I understand completely. And how much of the $99 million comes to me?

Depending on the number of eligible shares purchased by Class Members who elect to participate [as well as other factors] . . . . the estimated average distribution per share will be approximately $0.09 before deduction of Court-approved fees and expenses.

Now, I am sure at this point most of my readers, at least the ones still awake, are thinking, "Blast it! Don't the rich always get richer? That crazy doctor is has hit the jackpot!"

Relax, folks. Thet 90¢ check I will get from my ten shares won't pay off as much of my yacht note as you may think. Taking out "court-approved fees and expenses" and income taxes, I'll be lucky to get away with 40¢ free and clear, and that's nothing to write home about. Come to think of it, if a first class stamp now costs 39¢ and I do write home about it, I will be only one penny in the black.

(Yet another aside: When I wrote the above paragraph I inadvertently discovered that the modern computer keyboard does not include the ¢ symbol any more, the way typewriters used to. I guess that says something about (1) my age, and (2) what a penny is worth these days.)

So how much do Lerach, Coughlin, Stoia, Geller, Rudman, Robbins, Levin, Papantonio, Thomas, Mitchell, Echsner, & Proctor get?

If the settlement is approved by the Court, counsel for the plaintiffs will apply to the Court for attorney's fees of $15 million or approximately 15.1% of the Settlement Fund and reimbursement of out-of-pocket expenses not to exceed $8.9 million.

I am gratified to see that lawyers have finally figured out how to bill. Why, just the other day I gave a patient a shot in the office (her "office" was "paining" her) and charged $2 for my medical knowledge and $8.9 million for the syringe. You've got to do it. Out-of-pocket expenses will kill you every time. I can  imagine the extremity of out-of-pocket costs involved in a typical suit. You've got copier paper, and toner cartridges, and legal copier paper, and color-coordinated paper clips, and highlighters. Replacement ink barrels for a Mont Blanc pen can run $5.50 apiece. I know, my drug rep has one.

Then I wondered, what dastardly deed has Cisco perpetrated so as to deserve a $99 million clip? I searched it out in the fine, fine print.

Cisco securities were allegedly artificially inflated . . . during the Class Period . . . . Lead Plaintiffs [made statements that] were materially false or misleading [that] influenced . . . the trading price at Cisco securities at various times during the Class Period.

In other words, Cisco issued quarterly statements that inflated the stock prices, had to correct those statements later, and this sent the stock price down, thus shattering the lives of Cisco's 25 bejillion stock holders. Most of us who had read a few investment newsletters would have said that stocks go up, stocks go down, and that's how it is, but thanks to alert individuals like Lerach, Coughlin, Stoia, Geller, Rudman, Robbins, Levin, Papantonio, Thomas, Mitchell, Echsner, & Proctor we have the opportunity to try that time-worn idea out in court.

Speaking for myself, I know there is no way 90¢ can ever make up for the pain I have experienced over all this. The extra trips to the liquor store. The antidepressant samples I cribbed from my office sample closets. The weeks of missed work. The mounting gambling debts as I tried to conceal my losses with winnings on the roulette table.

Thinking about the injustice sent a rage shivering through my nervous system faster than a rumor about a secretary getting breast implants during her recent vacation spurts through a doctor's office staff. The bastards! They cheated me! I hope they hang. For a brief moment I was ever so grateful to Lerach, Coughlin, Stoia, Geller, Rudman, Robbins, Levin, Papantonio, Thomas, Mitchell, Echsner, & Proctor for stepping up so unselfishly on my behalf. After all, without Lerach, Coughlin, Stoia, Geller, Rudman, Robbins, Levin, Papantonio, Thomas, Mitchell, Echsner, & Proctor I would be 90 cents poorer. And it isn't just about the money.

In the old days, corporate fraud was handled by the Securities and Exchange Commission (SEC). But ever since George W. Bush took office as President, the SEC has done somewhat less to curb corporate corruption than the other SEC (the Southeastern Conference) has done. (I say somewhat less because in 2001 Ole Miss quarterback Eli Manning purportedly overthrew a receiver during the Tennessee game, beaning the dean of the UT business school in the head.) Without the SEC -- the U.S. government one, I mean -- to protect us miserable shareholders, we only have fine folks like Lerach, Coughlin, Stoia, Geller, Rudman, Robbins, Levin, Papantonio, Thomas, Mitchell, Echsner, & Proctor to keep our heads above water.

Allowing the flush of outrage to subside, I started to think things over. Who wins if this case is successful, I wondered. Why us, the 90¢ shareholders,  I cried triumphantly! And who loses? Those souless rapscallions who own Cisco, that's who!

But wait, said a voice in my head. Who owns Cisco?

The villianous shareholders, I replied. Burn 'em all at the stake!

One moment, please, the voice persisted. Aren't you a shareholder?

That's right! I AM! I am a proud shareholder, a villianl, I, uh, um, waitaminute . . . .

Finally I got it. When Lerach, Coughlin, Stoia, Geller, Rudman, Robbins, Levin, Papantonio, Thomas, Mitchell, Echsner, & Proctor sued the owners of Cisco on behalf of the shareholders, they were suing the shareholders on behalf of the shareholders. The owners were suing the owners, and the lawyers were collecting $24 million ($15 million + $8.9 million) for the service. As a shareholder, I wasn't asked to pay anything directly, but on the other hand, a pending $100 million lawsuit might have had some influence on the 50% price drop over 4 years. Maybe if I subscribe to another financial newsletter I can find that out.

I get a 90¢ check, and I lose half of my investment. In the exchange, I also profitted from a fine object lesson in the vagaries of corporate law. And at a cost of only $8.9 million in "out-of-pocket" expenses, the lesson was a steal.

"Criteria"

This morning I got a call from a case manager at my hospital. For those unfamiliar with the hospital business, a case manager is an individual hired by a hospital to review charts and make sure the hospital is paid for its services. Insurance companies have rules, rules, rules, and rules which they call criteria, and all hospital admissions must meet these said criteria. If a patient does not not meet "criteria" neither doctor nor patient is paid. Insurance companies say the criteria are there to encourage hospitals to provide proper care, but this is a baldfaced lie. Criteria are excuses insurance companies use to deny payment and force financial responsibilty on to the patient. To prevent this from happening, case managers study up on the insurers' rules (which change constantly) and alert doctors and hospital administrators when the almighty criteria are not met.

 Anyway, this case manager calls me to let me know that one of my admissions does not "meet criteria." She then explains to me that he is not getting sufficient medical treatment, according to the insurance company's admission criteria, to merit remaining in the hospital.

"He has a kidney infection; he is having abdominal pain," I protest. "I can't send him home."

"Yes, I understand that," she replied, "but the problem is that the insurance carrier feels the treatment being given could be given in an alternate setting."

"Well what exactly would qualify him for admission status?"

"He needs to be on IV fluids. An IV fluid requirement would allow him to stay on as a full admit."

"He is on IV fluids."

"Yes, but not enough. The ER put him on 70 cc per hour. He would meet admission criteria if he were on 75 cc an hour."

I had to ask her to repeat that. The difference between 70 cc and 75 cc is one teaspoon an hour, or 4 ounces a day. Put another way, the insurance company was refusing to pay for a hospital admission, regardless of what the diagnosis may have been, for the sole and entire reason that we were giving the patient 4 ounces a day less IV fluid than "criteria" required.

I boosted the rate to 80 cc. Now everything is great.

Or not so great. People sometime wonder why I am so pessimistc about the future of health care in the U.S. This is why. I understand as well as anyone the need for rules, but when rules are enforced to the letter absurdities sometimes result. Bureaucratic absurdities are acceptable in things like zoning or tax law, but in medicine, where lives are at stake, common sense should always trump rules. Except that they don't. And I can testify that these stupidities are everywhere in medicine these days, and nobody seems to care except the people these stupidities belittle.

So docs like me just bump up the IV fluid rate, feel a little more jerked around, and end up taking out their frustrations in some other way. Until eventually we get so disgusted we walk away. 

Perhaps you think I am overreacting. Just your typical whiny little doctor. I do not think so. In my medical training I was taught to diagnose and treat disease. I find out what is wrong with the patient, and then I address it. I was not taught pages and pages of "criteria." I do not think that way, and neither do most doctors. If a patient looks sick we put them in the hospital. We don't worry about whether or not his temperature is high enough, if he has an elevated white cell count or not, or if he is sufficiently old or has the right O₂ saturation. I don't usually think that way.

When I am forced to think that way it throws me off my game. If I have to think about whether my patient is getting 75 cc of fluids an hour or 70, I am not thinking about how sick he is, or what I think he really needs. I am thinking about what someone else -- someone who works for an insurance company, no less -- thinks he needs, and I find that more than a little distasteful.

Some advice to the reader: If you are ever getting admitted to the hospital, make sure your IV fluids are going at over 75 cc per hour. It will save you a bundle on the bill. What? You were too sick and forgot to ask? Too bad. Hope you don't mind taking out a second mortgage on your home. 

Correspondence

 An Alternate History of Katrina

 
I want to share with my readers a few email messages I have gotten recently. First, this letter comes from a nurse who apparently weathered Hurricane Katrina in a hospital in New Orleans that I worked at many times as a resident:

I was at Lindy Boggs (Mercy Hosp) through the storm. I had an article printed as well in JCN.

 

Apparently we don't have similar attitudes towards the way people and the government behaved.

 

My observations, while standing on the rooftop trying to be noticed....helicopters thick in the air as soon as the wind died down. Military, police, EMT's, Paramedics...people everywhere trying their best to evacuate an entire city. Standing on the interstate on broken I10 loading ambulances until I could hardly stand up anymore... good people doing their best. The Govt doing it's best!
I do not agree with you here. It was, after all...a huge city. And we did behave rather badly on national TV.

 

I think the rescue efforts were commendable. I would like to see more gratitude and less finger pointing. What other nation would mount such a massive rescue effort?

This nurse may be the only person from New Orleans I know of who felt the government did a good job after Katrina. I do not feel the need to debate her or discredit her – she is entitled to her opinion after all, as I am mine – but since it is my blog I would like to make a few observations.

First, even if one is to give the government a passing grade on Katrina (and I know of very few people who would), certainly the response was not all it could have been. Even if the response was good, there is always room for improvement. In the aftermath of Katrina, constructive criticism is much more important than self-congratulations. The government cannot be allowed to get away with self-congratulations because politicians are way too good at this. If we give them our approval, they will be all too willing to close their eyes to obvious opportunities to improve, and it is our peril if we allow this to happen.

Second, I have to take issue with the line: “What other nation would mount such a massive rescue effort?” This implies that if a similar disaster occurred in another industrialized nation like Britain or France or Japan, the government of that nation would not make every effort to rescue victims. That argument is totally without foundation. In fact, Japan in particular has had a marvelous history of overcoming natural disasters, most recently after the Kobe earthquake of 1995. It is one thing to say that the American government is good. It is another to say that we are better than other nations just because. Americans sometimes exhibit a disturbing tendency to assume everything here is unquestionably the best. When we do that we condemn ourselves to less than the best because we give up looking abroad for new and better approaches to problems.

Euthanasia at Memorial Hospital; An Idle Rant on the Topic of Nonmalfeasance

Regarding the accusation that Dr. Anna Pou, a physician at Memorial Hospital in New Orleans, committed 5 acts of euthanasia in the aftermath of Hurricane Katrina: A friend forwarded to me an interesting exchange between a New Orleans ENT (Ears, Nose, and Throat specialist) and a malpractice lawyer.

The first quote is from the ENT, a person I know well. Keep in mind that the writer is in the same specialty as Dr. Pou and knows her personally. The “Foti” in the quote is Charles Foti, the Attorney General of Louisiana who charged Anna Pou and two nurses with euthanasia after Hurricane Katrina. (Note: I have made no effort to correct the grammar.)

Just my opinion as a physician, but

Foti should be held accountable for his obscene abuse of power in declaring these professionals guilty of murder without benefit of actual charges, grand jury, prosecution by DA with jurisdiction or a court, etc.

Secondly, he should likely be disbarred for not recusing himself for refusing to allow the state to defend from malpractice allegations these providers who were working for the state, and therefor "insured" by the state for malpractice.   Particularly since his inane accusations precipitated the lawsuits.

Clearly he has a conflict of interest by virtue of his unethical & unprofessional pre-judgment of guilt rather than presumption of innocence.

His arrogance is despicable.

Even if these people are ultimately found guilty, has he handled the case properly?  Has he tainted the process?   Does it matter to anyone?

Where is the Bar Association, Supreme Court, Federal Attorney General Association or other entities with jurisdiction over such a legal authority running rampant?

What the ENT is referring to here is that Mr. Foti called a news conference and publicly accused Dr. Pou and the two nurses of murder. This is not the usual procedure. Protocol is would be to privately conduct an investigation and turn over the findings to the District Attorney in New Orleans without public comment. It is not up to Foti to charge Pou. This case falls entirely within the jurisdiction of Eddie Jordan, the Orleans Parish DA.

He has a point. This is not how murder charges are usually brought up.

His second point is that Anne Pou was a professor at the LSU Medical School. Her malpractice is paid by the state.  Since Foti is the default state legal counsel, he is in the peculiar position of defending and accusing Pou at the same time.  To extract himself from this predicament, Foti has refused to defend Pou against malpractice suits. This puts Foti in a very bad light, though I am less sure than the ENT that it merits disbarment.

A malpractice lawyer who represents one the family of one of the euthanized patients responds:

I will refrain from the debate as to whether Foti handled the matter properly, as I agree that I would have handled things differently, primarily to ensure that the Orleans DA would be assured of convictions.  But let's not try and "victimize" Dr. Pou and the others.  I represent the families of one of the victims who were killed by the Dr.  Keep in mind that Dr. Pou was not even their treating physician and had no authority whatsoever to touch my clients' parent.  NONE.  She had no business on the seventh floor.  And, by all accounts, she didn't ask my client if he wanted to die.

Who's the real victim here?  Was Foti wrong?  Maybe.  But by comparison any mistakes he may have made here pale in comparison to the ones that those here that have sworn to "First, do no harm."

I have numerous problems problems with this response. First, he begins with the assumption that the patients were euthanized, and this has not been proven. Not only that, but no one has been charged yet. I suppose as the attorney for the aggrieved family he  has to advocate the family's position, but he is also a lawyer. He should be protecting the integrity of the legal process as well.

As I have stated in a post before, there is only hearsay evidence that anyone was euthanized. No one saw it happen, and there is no documentation of it happening. Foti’s claim that the autopsy reports “prove” murder is ridiculous. The bodies were lying dead and decaying in an abandoned hospital for weeks before they were recovered. Under those conditions, it is simply not possible to determine if a patient was a recipient of a lethal dose of morphine or not.

The argument that Dr. Pou was not the "treating physician" is also specious. There were only a few doctors in that whole hospital. The "treating physician"  had abandoned the patient and the hospital. It could have been malpractice for Dr. Pou to refuse to deliver care if the treating physician was unavailable. Moreover, if Dr. Pou was simply delivering emergency treatment when no other help was available, she may have been covered under the Good Samaritan law, which protects doctors from malpractice suits when they deliver emergency care to people who would get no help otherwise.

The “treating physician” argument is exceedingly dangerous. It implies that if I am rounding in the hospital at night and I observe a patient clutch his chest and collapse in the hallway, I should not touch him because I am not the treating doctor. Is that the way this lawyer wants medicine practiced?

But the argument I find most offensive is his invocation of the "First, do no harm" principle. He has no idea what he is talking about. No doctor in any country in the world ever swears to “First, do no harm.” This is not in the Hippocratic Oath, and anyway, the Hippocratic Oath is not required for a medical license in the U.S.

To set the record straight, the Hippocratic Oath was originally composed in Greek and exists in many different English translations. Some, but not all, medical schools ask their graduates to take this oath at commencement. Because the wording varies so widely, it is not considered a binding legal or ethical basis for medical practice. Here, however, is passage from an often quoted version:

I will prescribe regimens for the good of my patients according to my ability and my judgment and never do harm to anyone.

To please no one will I prescribe a deadly drug nor give advice which may cause his death.

As an interesting aside, the original oath also includes this language:

Nor will I give a woman a pessary to procure abortion.

It is not clear where the words “First, do no harm” come from, but some people trace them to a phrase used by the Greek philosopher Galen that was later quoted by Hippocrates in one of his works.

Thus, it is true that the Hippocratic Oath does prohibit euthanasia. It also admonishes against harming patients, but this is not the same thing as saying that doing no harm is the first principle of medicine. If the reader will abide with me, I want to press this point further, because I think it is very important.

Medical ethicists often refer to the “first, do no harm”  (from the Latin, primum non nocere) as the doctrine of nonmalfeasance. Nonmalfeasance is not considered an absolute rule, but instead one that must be balanced against other ethical principles, including beneficence, justice, and autonomy. In other words, a physician must weigh the harm a medical treatment may cause for a patient against many factors, such as the benefits the treatment would incur, the patient’s natural right to have access to appropriate treatment, his right to comfort from suffering, and the right of a patient to participate in the choice of his own treatment.

If any doctor took the primum non nocere doctrine as an absolute, there would be no chemotherapy for cancer. No one would ever undergo surgery. If there is a prohibition against doing any harm whatsoever, then there is no opportunity for medical treatment because there is no tolerance for risk, or for untoward side effects. Nonmalfeasance is not a law, or even an ethical rule. It is a guidepost.

Primum non nocere is, however, a rule lawyers like to use to win lawsuits against drug companies. But thank God, it is not the overarching rule of medicine.

It never ceases to annoy me when primum non nocere is invoked as a criticism of doctors. Usually when the complaint of nonmalfeasance is leveled against a doctor, it is in a legal context, as in, “You did not do your duty (the patient was harmed); therefore you must pay.” I find this insulting because it overlooks the reality of medicine, which is that medical therapy is a complex balancing act of risks and benefits. “First, do no harm” is way too simple a code to be used alone in the judgment of a medical act.

Since the priniple of nonmalfeasance is not found in any law, a doctor who is accused of violating this principle is being accused of not adhering to a principle that is beyond mere law. Should doctors be held to a standard above law? Of course they should. But courts are for enforcing the law, and not for enforcing principles that are above the law.  A doctor should not be successfully sued for violating a principle that the law has not codified. Ethical violations should be properly investigated by professional panels and punished by professional standards, and legal violations should be tried in court and punished according to the law. What we have here is a lawyer who accuses a doctor of ethical transgressions that are above the law but still wants to use these same non-legal principles to collect the big moolah through civil court.

The proper question is, was a murder committed? If a jury says yes, then Pou should be punished. If no, she should not be tried in any court on the basis of a nonmalfeasance principle that has no real basis in law that I know of. Put another way, if Pou did not actively kill the patient, the fact that the patient may have died as an unintended consequence of medical care is not a matter for the courts, criminal or civil. It is a matter for medical ethics boards, and it should be properly hashed out there.

And if that is not enough, this silly lawyer complains that Dr. Pou “didn't ask my client if he wanted to die.” Now, I am not a lawyer, but to my knowledge, if the patient had asked to die and Dr. Pou complied with his request, she would have been practicing physician-assisted suicide, which is just as illegal in Louisiana as euthanasia. So he makes a distinction without a difference. Now that’s what I call a keen legal mind.

Election Day

Today appears to be the day of reckoning for the Iraqi War. Voters going to the polls in almost every region of the country say the war is the most important issue they will consider as they cast their ballots.

Just like the last election. The 2004 elections were decided on the war issue. In fact, the thrust of the Bush campaign then was that America should not change captains in the heat of battle. Having won on that issue last time, Republicans have tried to make the same case again, but this time the mood of the electorate may have changed.

I can understand the voter concern over the war. It is immediate; it is on television every night; it is a major focus in American foreign policy. Unfortunately, this romance with war has once again kicked major concerns to the curb, such as health care reform, global warming, international free trade, the future of higher education, and terrorism. When is health care ever going to come to the forefront as an election issue? Not as long as there is a war to fight.

And yes, the war is pushing anti-terrorist policy to the back burner. For the Iraqi War is nothing more than a subcategory in the war against terrorism. Any time an apologist for President Bush brings up terrorism, the argument always devolves to Iraq, as if no other aspect of anti-terrorism matters. The shame of it is that we may fight an entire war to protect us against terrorism, but the war may have eaten up so much of our resources that we are more vulnerable elsewhere. Who’s to say? Republicans won’t even talk about it.

Be all that as it may, the public is right about one thing. It is time to reassess the Iraqi War. A simple survey of the major conflicts in U.S. history reveals an interesting fact. Consider the major American wars and the dates they started and ended:

                    Revolutionary War             1775-1783

                    War of 1812                            1812-1815

                    Mexican American War    1846-1848

                    Civil War                                  1861-1865

                    Spanish American War      1898

                    World War I                           1917-1918

                    World War II                         1941-1945

                    Korean War                           1950-1953

                    Vietnam War                         1964-1973

                    Gulf War                                  1990-1991

                    Iraqi War                                2002-

There were, of course, many smaller conflicts, but these are the major military engagements in U.S. history. Of note, the dates reflect U.S. involvement, not the total length of war, which in the cases of the World Wars was much longer.

Just from a superficial glance at these eras, one thing stands out. The U.S. has only been involved in two wars, Vietnam and the Revolution, that were longer than 4 years. Now the Revolution is a special case, because in 1775 there was no U.S. government to declare war, and no standing army to fight it, which explains it length. The entire Revolution was in fact a protracted guerrilla conflict.

If I were to be so careless as to cast aside all of the fine points, I could easily conclude that, taking the Revolution as an exception, the U.S. should be very wary of expecting to win a war that lasts more than 4 years. We are 8-0 in wars lasting 4 years or less, 0-1 in wars over 4 years. The only war we lost, Vietnam, was a 12-year conflict.

Perhaps a trained historian would pick me apart over this, but sometimes superficial conclusions are the right ones. The U.S. has always been a prosperous country, and we tend to bring superior technology and financial resources to bear on any war. That we would win most of our wars in 4 years or less should be no surprise.

It should, however, make us pause over our current one. If we cannot, with superior weapons and wealth, finish off a war in 4 years, there are strong reasons to reconsider our need to be in it. The Iraqi War technically began when Congress passed H.J Resolution 114 on October 16, 2002. That makes this conflict almost exactly 4 years old. There is, that I can see, no clear end in sight.

In the 1940s it took the United States 3 years and 9 months to simultaneously defeat Germany, Italy, and Japan on two separate continents. We have been in Iraq longer than that and can’t even keep the lights on in Baghdad. That alone should be grounds to consider a major strategy revision.

War is supposed to be about achieving military aims. Our military aim, the deposition of Saddam Hussein, was accomplished in 2003. Our remaining aim is social – to establish democracy in Iraq. Since this is not a military aim, it may not be achievable with military force. This elementary observation is one the current administration does not even seem to be entertaining.

It would be easy for someone to retort: “Just because we have never won a war longer than 4 years doesn’t mean we can’t.” Of course this is true, but it overlooks the empirical point that we never have won a long war. There are reasons for patterns. Perhaps we have been successful in waging war because we typically choose wars we have the strength and resources to win quickly. In our history, we have picked our fights wisely. That is, until Vietnam.

Not all history lessons have to be esoteric. The American mood is changing about this war, and the swing is happening right around the its 4^th anniversary. Americans seem to have a natural sense about how long a war ought to take. God bless common sense, it may save us yet.

Now if we can just transfer some of that common sense to health care reform.