Subscribe to The Podcast by KevinMD. Catch up on old episodes!

We delve into the intricate and challenging world of medical decision-making with L. Joseph Parker, a research physician. Join us as we explore the delicate balance between rapid decision-making and precision in high-pressure medical situations. Joseph will share insights on the critical role of self-reflection and peer discussions in the medical profession, particularly through mortality and morbidity reviews, and how these practices contribute to the continuous improvement of medical care.

L. Joseph Parker is a research physician.

He discusses the KevinMD article, “Navigating the new minefield of ER medical practice.”

Our presenting sponsor is Nuance, a Microsoft company.

Together, Microsoft and Nuance are leveraging their rich digital technology and advanced AI capabilities to tackle some of health care’s biggest challenges. AI-driven technology promises to revolutionize patient and provider experiences with clinical documentation that writes itself.

The Nuance Dragon Ambient eXperience, or DAX for short, is a voice-enabled solution that automatically captures patient encounters securely and accurately at the point of care. DAX Copilot combines proven conversational and ambient AI with the most advanced generative AI in a mobile application that integrates directly with your existing workflows.

Physicians who use DAX have reported a 50 percent decrease in documentation time and a 70 percent reduction in feelings of burnout, and 85 percent of patients say their physician is more personable and conversational.

Discover AI-powered clinical documentation that writes itself. Visit https://nuance.com/daxinaction to see a 12-minute DAX Copilot demo.

VISIT SPONSOR → https://nuance.com/daxinaction

SUBSCRIBE TO THE PODCAST → https://kevinmd.com/podcast

RECOMMENDED BY KEVINMD → https://kevinmd.com/recommended

GET CME FOR THIS EPISODE → https://earnc.me/4V8EN4

Powered by CMEfy.

Transcript

Kevin Pho: Hi, and welcome to the show. Subscribe at KevinMD.com/podcast, get CME for this episode by clicking on the CME link in the show notes. Today we welcome back L. Joseph Parker. He’s a research physician. Today’s KevinMD article is titled “Navigating the new minefield of ER medical practice.” Joseph, welcome back to the show.

L. Joseph Parker: Thank you very much.

Kevin Pho: So let’s go straight into today’s article. For those who want to listen to Joseph’s past episodes, go to KevinMD.com/podcast to search up his name, he’s been on multiple times, he’s a regular guest. What’s this most recent article about?

L. Joseph Parker: In the state of Idaho a law was passed making it illegal for any physician or anyone to perform an abortion except when the mother’s life is at risk, but basically when you’re 100 percent sure she’s going to die. And doctors had protested against that, and a federal court had blocked it, and then the appellate court went ahead and removed the blocks, saying that the protections were enough. And I don’t think they are.

Kevin Pho: So in Idaho, in the emergency department, tell us how that’s affecting medical decision making in the emergency department.

L. Joseph Parker: Idaho is already losing physicians over it. A specialist in this area, in the care for pregnant women, Dr. Lauren Miller, has already said that she’s leaving the state. And she said, we have a death exception that is without any other guidelines. If I don’t act fast enough to save your life, preventing you from getting septic, I could be liable for my practice. But if I act too quickly and I’m not 100 percent certain that the patient is going to die from the complication she’s sustaining, then I could be guilty of a felony and I could be looking at up to five years in prison. And she said, we don’t know what that bar is, and no one wants to be the guinea pig, the first test case of that.

So politicians passing vague laws about situations they don’t understand is what I think is the problem.

Kevin Pho: So that gray area where the mother’s life is at risk, is there no articulation in the law as to what that actually means?

L. Joseph Parker: No, just like the laws that say for legitimate medical purpose, or in the usual practice of medicine, these are vague and undefined, and will be filled in later as doctors are prosecuted and their career is destroyed and they lose their liberty. So you don’t know what it means until someone goes away for it.

And I would argue, having been an ER doctor, and I can tell you that the ER is a unique environment, having been both a United States Marine and in the ER, the ER is the closest thing to battlefield experience the civilian can get. I saw many more gunshots in the emergency room during gang wars than I saw in the military.

And you have to make a command decision, you have to make a rapid, fast decision. To have someone Monday morning quarterback you and threaten to take away your liberty when you can’t prove with 100 percent certainty that anyone’s going to die. There’s no patient who’s still breathing that you can say with 100 percent certainty they’re going to die until they die. Even people with metastatic glioblastoma brain tumors spontaneously remit.

And they’re putting the physician in an impossible situation. What it’s going to make the doctors do is wait too late. The only safe thing to do is wait till they’re almost dead and then try to save them, and that’s going to kill a lot of women and babies.

Kevin Pho: Have cases like that actually come to fruition, to your knowledge?

L. Joseph Parker: They have. There is a doctor in Texas who is suing the state of Texas, and I think the mother’s suing also, because I think she had an ectopic pregnancy. And of course as physicians we know what that means immediately. An ectopic pregnancy cannot possibly survive. But because these state laws don’t make exceptions for ectopic pregnancies, you’ve got to wait till the mother’s about to die.

Which means that, an ectopic pregnancy is outside the uterus, maybe in a fallopian tube, the physicians know that, nurses know that, as the fetus develops it can rupture whatever it’s contained in, and then there’s intra-abdominal bleeding, and that can kill someone in 30 seconds. You’ve got just a fraction of the amount of time. And this woman almost died because the doctor had to wait until the mother was almost dead. And that’s the problem we’re running into.

Kevin Pho: So you’ve worked in the emergency department setting, and it goes without saying how chaotic things can get there, and medical decisions need to be made sometimes on a split-second basis. So to be clear, state laws like the one that you’re describing in Idaho, that is always in the back of an emergency physician’s mind and potentially can influence their medical decision making?

L. Joseph Parker: Absolutely. We all don’t want to be sued, but being sued is civil court, and you can defend yourself in civil court because all evidence must be shown to the defense. In criminal court they’re allowed to withhold evidence. Your chance of justice is much higher in civil court than it is in criminal.

And doctors also know that when you are charged, your career is over, your life is effectively over. It doesn’t matter what happens after that. Of course it matters to you and to your family, but effectively the charges themselves bring dramatic destruction to everything that you’ve built, and doctors are terrified of that.

Kevin Pho: What kind of guidance is being given to physicians in these states in terms of how to proceed and how to manage these gray area situations?

L. Joseph Parker: Extremely variable guidance. The politicians will say, as long as the doctor is acting in good faith he’s OK. But when does he get to prove that he’s acting in good faith, or she? When they’re in front of a jury. And by then it’s already too late, their career is already destroyed, it’s years down the road, they haven’t been able to practice, everything they’ve built is gone, they’re usually financially destitute, because it’s not unusual for it to cost a million dollars to defend a doctor against criminal charges.

And we don’t have insurance. They have legal insurance for gun owners, they don’t have legal insurance for physicians, and I think that’s something that some of these legal insurance companies need to look into. Physicians need protection, not just from civil suit like our malpractice insurance, but we need protection from criminal charges. As a matter of fact, one of the states, and it might be Idaho, one of the malpractice insurers said, we are going to cover physicians for criminal charges, for this purpose, for abortion specifically.

Kevin Pho: How commonplace is that, to your knowledge?

L. Joseph Parker: Extremely rare, that’s the only state to do so. In the past doctors were not usually charged unless they had been exceptionally negligent and mens rea, a guilty mind, unless they had criminal intent. But now they’ve gotten around that by arguing knew or should have known, or willfully blind. So they can prosecute any doctor. If he aborts a fetus to save the life of the mother, they can prosecute them and say he was willfully blind to the fact that she would have survived without having to do that procedure.

And then you end up arguing to a lay jury medical issues that are so complicated that you and I, not being OB/GYNs, probably would not be able to give a valid opinion on. I can give an ER doctor’s opinion, but I can’t give a valid opinion on when exactly is the right second. And OB/GYNs would not agree. The practice of medicine is not just a science but an art, because every patient is individualistic.

And before, prosecuting doctors who had clear criminal intent, and restricting prosecutions to that, protected us. But now, if someone in the state of Idaho, a prosecutor wants to make their name known in the community, and especially in the community that’s against abortions, all they have to do is prosecute a doctor. Win or lose, they’re going to be that group’s hero, and that can catapult them into a political career. And that’s what we’re going to see. We’re going to see prosecutors with political ambitions prosecuting doctors for the purpose of getting their name out there.

Kevin Pho: And this law is causing not only emergency physicians but obstetricians, gynecologists, to leave these states. Is that correct?

L. Joseph Parker: Absolutely. And it’s already hard to find an OB/GYN. I have many colleagues that are doing other areas of medicine now who had done the residency in OB/GYN and went back and did something else, because they’re saying, I’m not going to pay these malpractice premiums, I’m not going to be under this kind of scrutiny.

You can deliver a baby and you can be sued 18 years later based on the child’s grades. They can say, well, there must have been an anoxic injury, and they’ll find an expert somewhere to agree, and you end up defending yourself in court. But civil court is very different than criminal. Criminal charges, you are accused of knowingly and willfully killing somebody or something, or committing a crime. And many, many doctors are being prosecuted who had no criminal intent, they just made a decision that a politician or federal agent doesn’t agree with.

Kevin Pho: An obvious outcome of course is that patients are going to have a harder time finding care. Now to your knowledge, has that happened yet in Idaho? Are you hearing stories where patients can’t find an obstetrician gynecologist, or even in the emergency department being short staffed because of laws like this?

L. Joseph Parker: Absolutely. The high-risk patients, the ones with preeclampsia and all of that, they’re having an extremely hard time finding anyone who will take care of them, because who wants to be responsible for that?

And another thing, the doctors willing to take the most severe cases, the sickest people, are going to have the most complications, and that will make them look like a bad doctor, right? So more of your patients are going to die. It’s like the primary care doctors who accept oncology patients into their practice. Well, you’re going to have a lot of patients dying, and that can be used against you.

The insurance companies have these AIs that are now scanning databases looking for these statistics, and they say, oh look, eight patients died within 30 days of seeing Dr. Johnson. It doesn’t say those eight patients had kidney failure, liver failure, cancer. It doesn’t say that, it just throws your name up. And once you get scrutinized to a certain degree, a prosecutor will find a reason to convict you.

And I have a videotape of one of them saying that. I have a videotape of a prosecutor saying, if we look at them for overprescribing and we can’t prosecute them, then we’ll try to get them for health care fraud or money laundering or something else. Now, he wasn’t saying that to a group of doctors, he was saying it to a group of prosecutors.

Kevin Pho: Now, short of leaving the state, what kind of advice do you have for physicians who want to stay in practice?

L. Joseph Parker: It’s a very tough thing, because you have to decide, if you choose to stay in that state and you’re an ER doctor, you have to think ahead of time. You better get a good relationship with a health care specialist criminal defense attorney, and try to get some legal insurance if you can. And you better be ready and have thought this out ahead of time, because the battlefield decision, the command decision you make, could completely destroy your life, even if you’re acting in the best interest.

So what hospitals need to do is have a non-prescribing specialist who looks these things over, is trained in it, or is a physician who’s not actively practicing, who can come in and say, yes, it’s time, and then it’s not that individual doctor making that decision. If you’ve got backup, if you’ve got someone going into court that they can’t charge with a crime, willing to stand up for you and say, yes, I told them now was the time, and here’s why, more of a scientific point of view than the medical doctor, then it’s much, much harder to convict someone if others will stand up and speak out for them.

Kevin Pho: Now to your knowledge, does that happen, having some type of non-clinician legally sound backup for physicians with these cases? Does that happen?

L. Joseph Parker: Yes, you will see that large pain practices have what’s called an opiate medication manager, and this is usually a non-MD position, usually it’s a master’s degree or something. And their job is to basically do addiction and diversion avoidance, and they look for cues that the doctors didn’t see, and they’re specially trained to know what these are and to look for them from that perspective. The doctor’s always looking from, how can I help you, not, are you trying to deceive me.

But again, you have to be able to afford that. You have to be a big practice to be able to afford that specialist. But that’s what hospitals will need to have on hand. It wouldn’t be a bad idea if they also have maybe an MLS, a master of legal studies in health care, or master of legal science in health care it’s sometimes called, so that they’ve got some legal knowledge also.

Kevin Pho: What other states have laws similar to the one you’re describing in Idaho?

L. Joseph Parker: Almost half the states now. I think there’s 24 or 25 states that now have laws that prohibit abortion. Most have the exception of saving the life of the mother. Even those that don’t, EMTALA, which is a federal law regulating treating people in emergency rooms, requires that you try to save the life of a person who comes in, you must stabilize them. And that was what this original lawsuit was under. The doctors sued and said, hey, this is violating the federal EMTALA law, you’re telling me I can’t stabilize this person.

But the Ninth Circuit said, well, the doctors have enough protection by arguing good faith. What they don’t acknowledge is that when you are charged, the harm to you is irreparable. So I think there needs to be a federal law passed that you cannot prosecute a doctor for anything without criminal intent.

You can always take civil action. If they’re prescribing in a way you don’t like, why don’t you just take their opiate prescribing certificate, their DEA certificate? Then they can’t prescribe anything controlled. They don’t do that because that’s a civil matter, and they would have a heck of a time defending their reasoning for doing that in civil court, because they would have to open up all the records. So they go criminal.

And in Idaho it is only a matter of time until a doctor is charged with this, and the first prosecutor to do so will be the darling of the group that doesn’t want to see these procedures done under any circumstances.

Kevin Pho: We’re talking to L. Joseph Parker. He’s a research physician. Today’s KevinMD article is titled “Navigating the new minefield of ER medical practice.” Joseph, let’s end with some of your take-home messages to the KevinMD audience.

L. Joseph Parker: I would say, if you are in one of those states and you’re an ER doctor, research what the laws in the state are, think ahead of time of what you’re going to do in that situation, and have some backup. Speak to the hospital legal department, make sure you know how much support you’re going to get, because I guarantee you it will be a lot less than you expect.

Kevin Pho: Joseph, once again, thank you for coming back on the show and sharing your perspective and insight.

L. Joseph Parker: Thank you.