Tuesday, January 27, 2015

If All the Docs are Doing it, is it not Malpractice?

Part of the legal definition of malpractice includes the idea that the treatment provided falls below the accepted standard of practice in the medical community.  In other words, it must be shown that the practitioner was acting in a manner which was contrary to the generally accepted standard operating procedures that are currently being widely used by other physicians in the city in which the doctor practices.

For a malpractice case to be successfully pursued in court, the treatment must also be shown to be negligent and of course result in some quantifiable harm to the patient. But what happens if certain harmful procedures were being widely performed by almost all of the other doctors in the community? Even if the harms are predictable and significant, is a doctor protected from liability just because "everybody's doing it?"

Many mothers back in my day used to answer their kids' protestations that "other kids get to do it!" with, "If everyone jumped off a bridge, would you do it too?" I can't speak for others, but mindlessly following the herd was not something that was encouraged in my family system.

I do not know off hand what the answer is to the question above. Perhaps some malpractice attorney who happens to read this might write in with the answer. The reason I thought of this question was something I recently read in the psychopharmacology (psych drug) newsletter Biological Therapies in Psychiatry (July 2014) about how often kids are monitored for side effects when they are prescribed psychiatric medications.

Regular readers of this blog know that I think that the diagnosis of pediatric bipolar disorder is in the vast majority of cases a scam, and that prescribing antipsychotic drugs to children to control their behavior is a reprehensible activity. Kids should not be sedated into being less affected by family dysfunction.   

That would be bad enough, but what is worse is that antipsychotic drugs have potentially dangerous side effects. Particularly with the newer, "atypical" antipsychotics, there is a significant risk of causing weight gain, type II diabetes, and high cholesterol. These risks may be higher in children and adolescents than they are in adults.

If a patient is psychotic, the benefits of these medications generally outweigh the risks, especially if the patient is monitored for the emergence of these side effects. And there are few other options. (Sometimes one drug in a class will do it in a given patient, but not another drug in the same class). If patients are not psychotic, and very few kids are, the benefits decidedly do not outweigh the risks.

At the very least, the doctor should take blood tests periodically to see if these side effects are developing. You would think that doing that would be the standard community practice.

Well, if you thought that you would be wrong. 

In a retrospective study by Delate and others (JAMA Pediatrics, 2014 May 5) of pediatric patients started on an atypical antipsychotic within the Kaiser Permanente system HMO in Colorado, the authors found that only 1 patient out of 1023 received the full recommended panel of baseline and follow-up blood monitoring!

That's right; you read correctly. 1 out of over 1000, or one tenth of one percent. Of course we don't know if kids in other health plans are being treated this negligently, but I would not be surprised.

So if almost all of the doctors in a community are making little kids jump off bridges, does this mean that they are not going to be held liable if they are sued for malpractice?


  1. What makes it even worse is how deeply parents of patients will will come to rely on those very questionable diagnoses. Parents who are afraid to look at their own misguided emotions and chalk all behaviors up to genetics and biology love love love to get, for instance, and ADHD dx, thereby relieving them of all responsibility for their kid's crazy behavior. Not only would the parent, if he found the kid's dx to be in question, have to question the MD's judgement, they'd have to question their own judgement, so, yeah, it ain't ever happening.

  2. I don't know, but I think that the answer is "No." I once heard Kay Jamison talk about the standard of care being defined by what research demonstrated, i.e. "most people do not receive the standard of care." Steven Reidbord says that that can't be accurate, essentially that's like saying the status quo is wrong (as opposed to worngheaded); the status quo is what it is and can not by definition be wrong.