In an interesting article on NRO, Stephen Spruiell talks a bit about a radio program that aired recently on NPR.  The NRO article makes excellent reading and provides a great deal of room for thought.  What most caught my attention in the article was the story of Dr. Dan Merenstein.  His story succinctly captures what I believe is a coming problem in health care which America will need to deal with whether or not Obamacare becomes a reality.  The problem is what to do with evidence based medicine.

To set the stage for the coming discussion, here is the quote from the NRO article describing Dr. Merenstein’s story:

The NPR team produced several stories on how defensive medicine drives up costs, including one about a doctor named Dan Merenstein. As a third-year resident, Merenstein counseled a 53-year-old man on the benefits and risks of getting a PSA screening (a common test for prostate cancer). Merenstein told his patient that he thought the risks outweighed the benefits: False positives are common, follow-ups invasive and potentially harmful. The man declined the test.

The man was later diagnosed with a fatal prostate cancer, a kind that early detection probably would not have helped. He nevertheless sued Merenstein and his residency program. The plaintiff’s lawyers argued that Merenstein shouldn’t have given the man a choice on whether to have the test. “The jury . . . rejected the idea of following the guidelines based on evidence,” Merenstein said. “They took this approach that this thing called evidence-based medicine is just a way to save money, just a way to ration care.”

The verdict left Merenstein alone, but found his residency program liable for $1 million. He told NPR that it’s hard not to see patients as potential plaintiffs. He says he still counsels patients on the potential drawbacks of the expensive, not-always-necessary screening, but he admits that he gives patients a little push by telling them that most people do get the test.

For those new to the term, evidence based medicine (EBM) is a technique for deciding what tests or treatments to offer a patient.  EBM uses the scientific method to identify which procedures are more likely than others to ensure that a patient arrives at a good outcome.  The science of EBM looks to research studies, peer reviewed publications, and experimentation to reach its conclusions, and then publishes those conclusions as guidelines for doctors to use in everyday practice.  The goal of EBM is to increase quality of care and lower costs by identifying treatments that work well, work quickly, have the fewest side effects, and minimize a patient’s risk.  What EBM provides is a recipe for doctors to follow when caring for their patients that has been shown to be scientifically sound.  What EBM does not provide is a guarantee that the recipe is always the right one in every case.

For a society gripped with litigious instincts, EBM represents one of modern medicine’s greatest double edged swords.  On the one hand, the entire point of EBM is to improve the quality of patient care by providing doctors with treatments that are both effective and affordable.  On the other hand, EBM invites a variety of legal questions which we as a society are going to need to deal with.  Should doctors be held liable for bad patient outcomes when they do not follow EBM prescribed treatments?  Should following EBM treatments create a presumption, rebuttable or not, that a doctor acted appropriately and should be held immune from suit?  Should insurance companies pay for non-EBM procedures?  What happens if the answer to both of the latter two questions is “no”?  There are many more questions, but that covers the flavor of what sorts of things that we as Americans should begin asking ourselves.

In my view, doctors should be guided by EBM, but not constrained by it.  Legally, it would be fair to create a rebuttable presumption that EBM treatments are appropriate, but leave doctors responsible for determining whether or not the EBM treatment applies.  Doctors should certainly be permitted, if not encouraged, to depart from EBM in situations where their professional judgment suggests that a different course of action is more appropriate.  Doctors should, however, be required to know exactly what they are doing and why; avoiding an EBM treatment simply because the doctor does not care for it would not be a valid line of reasoning.

As patients, we owe it to ourselves to ensure that we receive the best possible care.  It is ultimately up to each of us to make sure that doctors have made the best decisions in our particular case.  We should feel comfortable asking doctors if their treatment is evidence based, and doctors should feel comfortable explaining why not if the answer is no.