Daytime TV advertising is dominated by two players. Pharmaceutical companies with direct to consumer pitches and the so-called “toxic tort.” How confusing it must be to the average person to see a new drug pushed by one commercial, to be immediately followed by another commercial from a lawyer trying to sue for the known side effects of the exact same drug. It doesn’t take much for a toxic tort to get started, and the last thing we need is to feed this monstrosity.

Case in point. Several months ago I started seeing commercials regarding infections of total joint replacements. Occasional at first, but now at increasing frequency. The push is right to the point. If you had an infected total replacement (TJR) you might be eligible for “substantial compensation.”

Some background: TJR has been around for about 50 years, and an infection has always been a known and devastating complication, so much so that orthopedists have always had a hyper-paranoid desire to prevent them. Since the commercials just started, one must ask what has changed? After researching the background of this new toxic tort obsession, one prime candidate has to be the declaration that infected TJR is a “never event.”

A never event is a medical outcome that is deemed never should occur if the providers were just more vigilant. The problem is that mistakes that, in theory, could be 100 percent prevented — such as wrong site surgeries or wrong drug dosages — were lumped together with known medical complications such as blood clots or an infected TJR (which even under the best of circumstances can never be eliminated 100 percent). As stated, the vast majority of physicians were well aware of these issues and tried their best to prevent them. However, we are now entering the brave new world of actually punishing physicians for known complications. It was inevitable that the trial bar would try and take advantage of this for their own gain.

One has to ask what is going to be the result of all this, and there is only one conclusion. Since additional efforts to reduce these complications are going to move the needle very little, physicians are going to take whatever steps necessary to not get involved in the first place. That means avoidance of high-risk patients.

Is this avoidance actually taking place? Hard to measure but there are examples. Here is one of mine. Several years ago I saw a number of obese patients that would have really benefited from a joint replacement. At times, it became a chicken and egg scenario where you want the patient to exercise to lose weight but they can’t because of the joint pain. It is well documented that obese patients benefit from TJR. However, it is also true that there is a higher complication rate with these patients because of the difficult surgery and the higher rate of medical issues such as diabetes.

One of the tertiary hospitals I dealt with started a program of TJR in the obese patient. This made sense since they could afford to make the investment in the specialized equipment needed such as larger operating tables and specialized surgical instruments. I sent many patients there, and the results were impressive. With a lot less pain, their activity level increased enabling them to lose weight and become much healthier.

One day this hospital abruptly stopped the program. I spoke to one of the surgeons who was doing the procedure and although he would not admit it, I suspected as to the reason why. Other hospitals that were considering the procedure also stopped. It is now difficult to find a surgeon or hospital willing to do the procedure. In an ironic twist complications associated with bariatric surgery for weight loss are also listed as never events.

That leaves the obese patient with few options, one of which is basic pain control; and that inevitably means narcotics. You now have an obese patient in increasing pain, gaining additional weight, now at risk for narcotic addiction all because we have decided to declare well-known medical complications as never events made much worse by the predilection of the trial bar to pounce on any opportunity they can.

At least we can boast that we are saving money because narcotics are cheap.

Thomas D. Guastavino is an orthopedic surgeon.

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