Let Us Name the Enemy

In Weight-Loss Maintenance on June 3, 2011 at 6:32 am

In the forums over at Big Fat Blog, there’s a discussion going on about the 15 South Florida OB/Gyns (out of 105 that the Sun Sentinel surveyed) who limit their practices to women who weigh less than 200 pounds (and additional practices that set other, slightly higher weight limits, 250 lbs., e.g.). 

Dr. Yoni Freedhoff has also blogged on this news,  which is proving itself worthy enough for west-coast coverage

The offending doctors claim they’re discriminating because their equipment or exam tables are inadequate and that fat patients are at higher risk for complications and should go to specialists. 

Many of the voices chiming in, both at Dr. Freedhoff’s site and BFB are jumping on the blame-the-lawyers bandwagon.  In other words, the enemy is our litigious society.  Doctors are afraid of lawsuits.  This makes me uncomfortable.  We common citizens should think HARD before throwing away our legal protections.  Conflict alert:  I am married to a lawyer.  I’m also the daughter of a lawyer, and the sister of a lawyer, and sister-in-law of a lawyer.  My family is lousy with lawyers. Though I am not one myself, I am fond of lawyers.  Even if I wasn’t, however, I think this blame-the-lawyers thing wouldn’t pass the smell test.

For one thing, the assault on “frivolous lawsuits”  strikes me as overblown, exaggerated and wrong-headed as the “war on obesity.”   The Duke Law Review has the best summary I could find of the “frivolous lawsuit” scare, and it makes a measured argument for how exaggerated it is.  Brief summary:  Those cases that are, indeed, frivolous are rare but over-reported in the news media, simply because they are more interesting than the millions of run-of-the-mill claims that get settled every day.  Moreover, often these cases are oversimplified in the mainstream media (imagine that!) and outright misrepresented by insurance spokespeople and the like who benefit by portraying them as “frivolous,” when a closer examination of the facts would reveal otherwise. 

Frivolous claims are not some great industry for legit or competent attorneys, because judges already have the power to throw out “frivolous” cases and even issue $anction$ against the attorneys who file them.  Some pro-business legislators have suggested that attorney’s “game the system” by filing frivolous cases on the notion that corporations will “settle” in order to avoid going to court.  That’s ridiculous and backwards.  Corporations keep their attorneys on retainer, so it’s no additional cost to them to go to court.  More often, corporations (including insurance companies) routinely deny claims, even when legit, because they know how difficult and expensive the claim will be for a lone citizen.  A claimant has a hard enough time securing an attorney for a good but marginal case; finding an attorney stupid enough to take a “frivolous” case and risk a judge’s $anction is enormously difficult.  Finally, if a claim does make it to a jury and receive what sounds like an extreme or “frivolous” judgment, often an appeals judge later lowers the award, but this fact never becomes part of the story that creates a particular case’s urban legend.

My husband, who represents claimants in workers’ comp cases (injuries that happen on the job) must frequently deliver disappointing news to clients about how an insurance company is dragging its feet, or some such.  Some clients tell him that they understand how challenging his job is (because of all the frivolous cases, of course) and he must be happy to see them walk in the door, since their claim is legit.  “Actually, your case IS exactly the “abuse” that you’ve heard about.  Any claim to a profit-making entity – the employer or its insurance company – impedes the first mission of the company, which is profit making, and is, therefore, “frivolous.”  Your claim, some would say, will steal jobs by dinging the insurance company’s coffers and, therefore, raising premiums for your employer, which will presumably prevent your employer from hiring new people.”  The client sits dumbfounded:  “But I’m a loyal employee and it was an accident.”  My husband hands his client a tissue, and continues to work on the “frivolous” case.

So, if the enemy isn’t lawyers, who is it?  The insurance companies?  (Conflict alert:  my sister is a lawyer for an insurance company.)  I don’t think so.  Yes, they made some boner investment decisions during the financial bubble and are now trying desperately to survive the economic recession.  Moreover, it is annoying when profit-making usurps the stated goal of providing a shared-risk pool to protect clients from adverse events.  (Although, when that happens it provides work for lawyers, which is good.)   Insurance companies also may try to convince the rest of us to give up our legal protections and give them more favorable (profitable) laws by overstating how much fraud and abuse happens, but that’s to be expected.  It’s a logical part of their playbook.  We put up with these shenanigans because we do need their services, the shared risk pool, and they will – and this is most important – play by the rules they’re given, generally.  We’re the fools (we become the enemy) if we allow them to trick us into thinking that a society governed by corporate elites for the benefit of corporate elites is superior to a society where corporations are subject to reasonable regulations imposed by a government of the people for the people.

So, if not lawyers or insurance companies, who is the enemy?  I think it is (drum roll) “Fee For Service.”  For the past two weeks, I’ve been reading the enormous amount of thought and consideration that Dr. Sharma devotes to his patients before recommending them for bariatric surgery.  (The series begins here.)  The patients must suffer from debilitating conditions, in addition to being obese, before he considers even preparing them for the idea of such surgery, and then he presents the hazards as well as the benefits.  That doesn’t happen here in the US. 

Apparently, it doesn’t happen consistently in Canada either.  Dr. Sharma has a nice quote in an otherwise poorly written article about a study that calls for more oversight of private weight-loss surgery practices.   Apparently, in Canada, if you’ve got money, you may have a private weight-loss procedure, and you’ll be subjected to the same kind of misinformation and skewed, overly optimistic prognosis that you might receive in the states.  (Irony alert:  the article reports that the study reveals that some clinics provided incorrect or inaccurate information about weight-loss procedures on their websites, then in the very next sentence it inaccurately describes gastric bypass surgery.  I sigh at the state of modern journalism.)

In the US, since health care is entirely private, there is no model for what Dr. Sharma does in consulting with patients.  In the US, a fat person asks her primary care physician for a referral to a surgeon.  The PCP may know very little about bariatrics and may simply make the referral with no questions and few reservations, as long as the patient’s BMI is high enough.   From there it’s a pretty direct and uninterrupted process from first appointment to the operating room.  How much information a patient receives and the quality of aftercare depends on the philosophy and integrity of the practice.  In any event, for many weight-loss surgeons (and they often use that language instead of a more neutral “bariatrics”), the object is to make a nice living by performing surgeries – collecting fees for service.  Of course, they may be convinced that this is the best interest of fat people, and when they make someone’s life better, they feel good.  When they don’t, then, “Oh, well.  That’s the state of the art at this time.”   Do they agonize to the degree that Dr. Sharma has over the past two weeks?   I think that’s uncommon.

So, what is the answer to fee for service?  Many people in the comments on these pages have expressed dissatisfaction with health care as it is, but I don’t have a clear vision for what the alternative looks like.  Public healthcare, the UK teaches us, does not preclude fat bias and discrimination, rationing and other scary possibilities.  Hmmmm.  I open the floor for discussion.

  1. The lawsuits may be frivolous (I agree, they are) but that doesn’t change the fact that they (the frivolous lawsuits) have changed the way doctors practice. I’m not talking about those clinics you mentioned. I’m talking about the opposite end of the spectrum, where unnecessary tests are ordered, extreme procedures are done, and life is prolonged beyond reason. Of course, all this greatly increases the overall cost of healthcare, which just adds to the giant mess our healthcare system is in.

    Don’t get me started on insurance companies. They exist to make a profit. If our government regulates them to the point where they don’t make a profit, what possible reason would they have to stay in business?

    And one more thing. Our consumer-driven society. Where people are screaming about health care reform, and shouting ‘I have a right to go to the doctor for [$15] or whatever their current right is. Really? I thought that was a privilege. And those who manipulate the system. I personally know of a woman who was mildly overweight. Her labs were just mildly elevated. So she ate enough to gain enough weight to get gastric bypass. Which evidently the doctors blithely approved.

    Hmmm. Don’t know what my point is. Except that there’s enough abuse of the system out there for everyone to take their fair share of the blame. Oh, maybe it all comes down to one thing: the sinful nature of man. Now there’s a popular point of view.

    • Ah, Debby, if I were wearing a wig it would be blown into the next room, dangling from a lamp! Hee.

      I think sin is, indeed, relavent. My politics cause me to look at the sin of the corporate barons more than the small-time scammers, I guess. I find it amazing when they can fly on jets to speak to congress about how they are going to be regulated out of business (and that will cost the economy jobs), and yet they always seem have enough profits to reward themselves obscenely with worldly treasure. It doesn’t even cross their minds that they may make their businesses more “efficient” by rewarding themselves less. (Maybe living with one less vacation home?) And the wealthy legislators who look at them across their mahogany desks don’t question them, because they have five or more mansions themselves. No sense of reality as we know it. Oddly, it wasn’t too much regulation that rocked (would have killed, were market forces allowed to operate) the investment banking industry. It was too much freedom. Perhaps the world needs balance, sanity. (Dare I suggest it: morals? ethics?) We are told not to “punish accomplishment” by regulating or taxing the wealthy, and so we punish hard workers instead. But, yeah, you’re right. There are small-time scammers among the working class who squeeze the system there too.

      And the people who gain weight to qualify for weight-loss surgery? Yeesh. That is metaphor for something in our society. Thoughts for another day.

  2. I have to jump in here and say how well written your blog post is on ‘frivolous’ lawsuits. I am a journalist who has covered this area (not in the US). Doctors have very high insurance premiums, not because lawsuits are going up, but because the reinsurers – who are outside the US – were hit catastrophically hard a decade ago, by such events as 9/11 and they hiked their premiums enormously to cover their losses. This had NOTHING TO DO with patients or patient claims; however, they had to find a way to justify the increased premiums so it was casually blamed on patient legal actions. This has happened internationally; across the first world, legal actions against doctors have actually dropped sharply, as several governments have implemented tort law reforms. Patients today who are mutilated, butchered, injured or left disabled (or dead) from malpractice have much less recource than they once did.

    So much for frivolous lawsuits, indeed. Defensive medicine is a figment of the imagination – the rise in testing etc is because of the profit motive. If a radiologist sees some unusual artefact on a lung x-ray, the patient is then given a CT ‘just in case’. This is always justified on the basis that “if we miss something we’ll be sued”, whereas the radiologist who finds the very common artefact usually has a CT machine that needs to be paid off. The pattern of this becomes clear if you look at the international medical situation over the last decade.

    Now individual doctors may themselves believe that patients have become more sue-happy, because their insurers have told them so. Certainly, of all specialities, Ob/Gyn have the most complaints against them.

    There are probably multiple things going on here: paranoia about being sued; not wishing to bear the cost of dealing with high risk patients; not wanting to have a poor outcome on one’s medical record; feelings of incompetence; and maybe only being able to earn the same fee for much more work.

  3. Thank you, Annabelle. I agree on all points. Now, what to do? Ack!!

  4. I don’t have a lot to say re the litigious society angle (save for my general agreement). My comment is just that I’m afraid that this is the very tip of the iceberg. I think we’re going to see a *lot* more of this (ref: the AZ bill that’d charge obese Medicaid patients an annual fee).

    I don’t think it’s going to be a good decade to be overweight.

  5. From what I’ve seen, it’s not patients who ask their primary care doctors for referrals to WLSurgeons, it’s primary care doctors who have hectored their fat patients about their weight for years that are the ones who finally say “Look, you aren’t going to be able to lose weight any other way. You’ve tried every diet and failed. I’ve prescribed every diet drug known to man, and you’ve failed. Your last resort to lose the weight and save your life is WLS. Go see this surgeon, he can save your life for you.” And when that fails, and the patient has more complications than before the surgery and/or regains the lost weight, said patient has no legal recourse at all, because hir PCP and hir surgeon are going to point to every past failure zie has had with weight loss and say that the complications and/or weight regain are the patient’s fault.
    As for other surgeries, my son’s ex-wife had a sinus surgery 10 years ago that blinded her in one eye. This surgeon had had this happen more than once to other patients (cut off the oxygen supply to the optic nerve during surgery). She got a lawyer, sued him, and the jury found him negligent on one of two charges, but that wasn’t enough for her to collect, he had to be found guilty on both charges of malpractice. What really sucked was her case was instrumental in getting a huge settlement for the next woman he blinded in exactly the same way. The sad thing for my ex-DIL is that he blinded her in her good eye (she has an eye disease that’s slowly blinding her in the other eye). All of this was unnecessary, she still gets sinus infections, which this surgery was supposed to take care of. And to top it all off, this asshat is still doing these surgeries, after blinding I don’t know how many people (his malpractice insurance has got to be shy-high).
    On the other end of the spectrum from the doctors that order test after test to cover their asses (or pay off expensive equipment) are the ones like my ex-doctor – she sees a fat patient, all your problems are due to your fat, prescribes the Nightmare on ELMM Street, and refuses to look any farther than that. So conditions that fat patients have continue to get worse and worse until those patients finally find a doctor willing to look deeper than the fat, and by then, well, of course it’s going to be expensive to solve the problem. But who gets the blame? It’s not the doctor who pissed around and refused to look beyond the fat, it’s the patient who’s fat who gets blamed for not going to the doctor soon enough. We’re damned if we do and damned if we don’t. And the only solution I can see to that is to get of the fat-phobia in the world. Good luck with that one.

  6. Sorry, was typing too fast, meant to say “get RID of the fat-phobia in the world.” And yeah, I’m a tad bitter and disillusioned about doctors…………lolsob

  7. for decades at least poor people and working class folks with limited means have been dying prematurely, denied adequate medical treatment and working with diseases until they drop. too bad. they should have earned more and then that so-called medical outcome wouldn’t have happened–>most members of our society proclaimed or or thought privately. now, proper medical care is edging beyond the means of previously middle class people, who, like the other poor suckers, often blame themselves for not seeing into their crystals balls and choosing different lines of work way back when, or bearing fewer or no offspring, or making better investments. hey, no one is saying that fat people can’t get medical care, and no one is saying fat women can’t get ob/gyn care…they simply must pay an amount (for specialists) that the MARKET dictates, which these people either have or do not have–so, only an inconvenience for those fat with means. shrug. it’s unfortunate but no denial of access and no death sentence. hey, i don’t mind a bit of inconvenience when it comes to my health. let’s put faces to this: name women who are fat who will suffer no indignity or health issue other than a bit of inconvenience or embarrassment–no matter how fat they become. but we keep framing this as a fat issue, rather than a class issue. why?

    as for the fat women who lack the means to pay the market rate, well, that’s more problematic because, as with the poor and working class folks of the past, the suggestion (and solution) is obviously the same: *good heavens, people, just stop being unwealthy, or stop being unhealthy, or stop expecting privileges for which you can’t pay–or stop being fat. take your pick–and thank god that at least you HAVE “free choice”, and several “options” from which to choose! right?*

    discrimination is prettified doublespeak for enforced premature death, enforced increases in health risks, and legalized (institutionalized) denial of adequate health care. but until we stop framing the struggle as fat bias, but recognize that market forces are systemic-wide, institutionalized, socially constructed and culturally accepted forms of inequality based on shifting variations among intersecting social groups, and resulting in continued socially constructed privileges for a few–at the expense of the many–we will keep trying to locate a single enemy (scapegoat) who does not exist. it’s yet another diversion of attention and energy that serves to reconstruct and maintain the status quo. meanwhile…

  8. well, did not mean to stop discussion cold. or come off so effing dogmatic. *red faced*

    if these docs adhere to evidence-based medicine, then would be only proper to present the evidence that shows not only increased risk of poor outcome (huh? when did docs decide to pick and choose customers based on increased likelihood of little going wrong?), but also evidence that shows their decreased profit margins (since money appears to be their guiding factor in their rationale). and 200 or 250 pounds? really? basing predicted health risks/outcomes on weight rather than on actual HEALTH risks appears now to be status quo knowledge…unfortunately even a million believers can equal a million wrong opinions. just look as recent U.S. approval of bariatric surgery for lower BMIs and younger customers. what evidence shows that the potential benefits in those bmi categories exceed the risks? evidence-based medicine has come to rely on corporate sponsored research, and research that looks at short term risks, that gets published in journals–and the process to publication is anything but unbiased. even the language we use is socially constructed to sound “objective” and “truthful”. shouldn’t say “evidence based” but, instead, “market driven”. sigh.

    another rant. good times.

  9. Nice rant. Just posted another topic. Wish I’d read this first. In my letter to the USDA, I should have used the language “evidence based” instead of “empirical science.” That knife can cut both ways, I would think.

  10. “Now individual doctors may themselves believe that patients have become more sue-happy, because their insurers have told them so.”

    Clear critical thinking with rigorous source-checking of information, on the part of the doctors, always thrills me as well.

    /eyerolling sarcasm

    Thanks for this post. I don’t remember the last treatise I saw on the reality of “tort reform caps” and related blah blah that was written this clearly.

    (Also, I ow you a comment on a post where you requested opinions some time ago — perhaps some weeks ago; the reasons I didn’t complete it at the time are a ridiculously long story — but I did not forget.)

  11. […] closetpuritan I didn’t think I was going to write about this, mostly because other people already have, and have done an excellent job, but I changed my […]

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