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It’s OK for Physicians Not to Go by the Book

Some time ago, I performed a colonoscopy on a patient who was having serious internal bleeding. He had already received multiple transfusions since he was admitted to the hospital. After obtaining informed consent for the procedure, I performed the colon exam. I encountered blood throughout the entire colon, but saw no definite bleeding site, raising the possibility that the source of blood might be higher up than the colon, such as from the stomach.

I had not considered this possibility when I met the patient, but this was now plausible. Can I proceed with the upper scope test, to which the patient did not consent, while the patient is still sedated from the colon exam?

Seasoned gastroenterologists can usually predict the site of internal bleeding based on numerous medical facts, but there are times that we are surprised or misled. Patients don’t always behave according to the textbook presentations we learned.

At this point, which of the following options are most reasonable?

  • Do not scope the stomach now as the patient is still sedated from the colonoscopy and cannot give consent. Once the patient has awakened and recovered, discuss the new diagnostic hypothesis, and obtain informed consent to examine the stomach to look for a bleeding site.
  • Forge ahead with the stomach scope exam while the patient is still sedated. Assume informed consent and proceed.

I opted for the latter option. Ethically, I felt that I was on terra firma as the patient had already consented to a colon exam to evaluate the bleeding. It seemed absurd that he would have consented for a colonoscopy but withhold consent for a stomach exam that was now deemed essential to pursue the same diagnostic mission. Moreover, the patient had received multiple transfusions, so there was clearly a medical urgency to identify the bleeding site.

Assuming consent for a subsequent procedure that was not initially anticipated is rational and defensible if the test is clearly in parallel with the medical evaluation, and there is a medical exigency present. Presuming informed consent, however, is an exceptional event. Physicians are not permitted to go rogue.

The blood in the colon didn’t come from the colon, as I had wrongly suspected. It came from a duodenal ulcer just beyond the stomach, which I easily spotted with the stomach scope exam.

This patient didn’t go by the book. Sometimes, we physicians need to deviate from established policies also.

Michael Kirsch, MD, is a gastroenterologist who blogs at MD Whistleblower.

This post appeared on KevinMD.

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Trump Wants to ‘Walk Out’ of Walter Reed Today, President’s Physicians Say He’s Doing ‘Very Well’

President Donald Trump’s physician Dr. Sean Conley said he is doing “very well” Saturday morning and all of his coughing and congestion conditions are steadily improving. Trump’s medical care team said the president has been fever-free for over 24 hours and that he’s in “good spirits.”



a man wearing a suit and tie: White House physician Sean Conley gives an update on the condition of US President Donald Trump, on October 3, 2020, at Walter Reed Medical Center in Bethesda, Maryland. - Trump was hospitalized on October 2 due to a Covid-19 diagnosis.


© BRENDAN SMIALOWSKI/AFP via Getty Images/Getty
White House physician Sean Conley gives an update on the condition of US President Donald Trump, on October 3, 2020, at Walter Reed Medical Center in Bethesda, Maryland. – Trump was hospitalized on October 2 due to a Covid-19 diagnosis.

Speaking outside of the Walter Reed National Military Medical Center Saturday morning, Dr. Conley said Trump’s vitals are normal, and that the president is not on oxygen and “there is no cause for concern” as of Saturday morning. Conley said Trump is not currently taking hydroxychloroquine but the two discussed taking the anti-malarial drug.

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Dr. Sean Dooley, a pulmonary critical care physician on-hand for treatment, quipped that the president is ready to get all of the work done that White House Chief of Staff Mark Meadows has prepared for him during his illness. Conley declined to say how or when exactly Trump became infected.

“I feel like I could walk out of here today,” the president said Saturday morning, according to Dooley, adding that Trump is getting around the hospital without any assistance. First lady Melania Trump did not require health care or treatment at Walter Reed.

“We are extremely happy with the progress the president has made,” Conley added, noting that all of his vitals and liver and kidney functions are performing normally.

In a Thursday statement, Conley confirmed both President Trump and the first lady tested positive for COVID-19. Trump initially experienced a low-grade fever, chills, nasal congestion and a cough before being sent to Walter Reed Medical Center for continued treatment Friday evening. Conley issued a memo Friday night saying Trump was doing “very well,” and ABC News reported Saturday morning that Trump was no longer experiencing shortness of breath.

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A Morning Consult poll published Saturday found only 44 percent of Americans trust the president’s physician to truthfully report Trump’s true health condition.

Trump on Friday took a single dose of the experimental antibody Remdesivir through an IV at the “compassionate use” request of his physician, The Associated Press reported Saturday. Trump is said to only be experiencing mild symptoms including fatigue. The treatment is not authorized by the U.S. Food and Drug Administration.

Conley, a U.S. Navy officer, became the president’s official physician in May 2018, but it wasn’t until May 2020 that he was put in the national spotlight. Two months into the U.S. coronavirus pandemic, Trump announced he was taking hydroxychloroquine as a preventative measure against coronavirus at the direction of Conley.

“After numerous discussions he and I had regarding the evidence for and against the use of hydroxychloroquine, we concluded the potential

Presidential Physicians Don’t Always Tell the Public the Full Story

“He is suffering from the teeth,” Bryant said. “That is all.”

Bryant was the president of the New York Academy of Medicine and would later serve as the president of the American Medical Association. His credentials were unimpeachable.

And so the next day, the papers dutifully reported that Cleveland was suffering from nothing worse than a toothache, and the nation was reassured.

But Bryant had lied. Cleveland was in fact very ill.

In late June, Bryant had examined a lesion on the roof of Cleveland’s mouth and declared it a “bad-looking tenant.” The doctor recommended it be removed immediately. But Cleveland didn’t want the public to know he was ill, so the operation was performed on a yacht owned by one of the president’s friends.

In a 90-minute operation, a hastily assembled surgical team, sworn to secrecy, removed the tumor, along with five teeth and much of Cleveland’s upper-left palate and jawbone. The procedure took place entirely within the patient’s mouth, so that no external scars would betray the operation.

Cleveland eventually recovered, and the truth would not be known until long after he died, in 1908.

Cleveland insisted on keeping his condition secret, because he didn’t want to alarm the public. At the time, the nation was mired in an economic depression now known as the Panic of 1893. If the public knew he had cancer, Cleveland believed, the stock market would crash.

Cleveland, like all presidents, was also loath to appear weak in any way. (This is especially true of the incumbent, of course.) Presidents have an almost pathological need to appear vigorous, regardless of any infirmities. And if they can’t appear vigorous, then they try not to appear at all.

That was the case with Woodrow Wilson. On October 2, 1919, he suffered a massive stroke at the White House. The left side of his body was paralyzed. It was a pivotal time for the country: The Senate was debating whether the United States would join the League of Nations. According to the historian Robert Ferrell, “The president should have resigned immediately.” But rather than resign, Wilson went into hiding inside the White House, even concealing his ailment from his own Cabinet. His physician, Cary T. Grayson, announced that the president was merely suffering from “nervous exhaustion.” For the next four months, Wilson conducted virtually no official business. The United States never joined the League of Nations.

Donald Trump has been less transparent than most presidents about his health. His trip to Walter Reed National Military Medical Center last November remains shrouded in mystery. He is also prone to exaggeration. Harold Bornstein, the doctor who attended Trump before he became president, wrote in a 2015 letter that the then-candidate was in “astonishingly excellent” health and would be the “healthiest individual ever elected to the presidency.” Bornstein later insisted that Trump himself had dictated the letter.

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Physicians Misjudge a Terminal Patient’s Life Span: Is It Fraud?

Can physicians always tell when a patient has less than 6 months to live? And if they misjudge, is that fraud?

A registered nurse and three nonclinicians filed a federal False Claims Act (FCA) lawsuit against Care Alternatives, a for-profit hospice in Cranford, New Jersey, claiming the hospice illegally admitted at least 16 patients who were not in their last 6 months of life and so did not qualify for Medicare hospice coverage.



The whistleblowers’ medical expert, Robert Jayes, MD, testified that the patients’ medical records did not back up the hospice medical director’s prognosis of imminent death and thus did not support a certification of need for hospice care. The hospice’s medical expert disagreed, testifying that a physician could reasonably have determined that the life expectancy of each of those patients was 6 months or less. The whistleblowers were all former staffers.

A federal district judge held that a “mere difference of opinion between physicians, without more, is not enough” to show that the hospice filed false claims to Medicare under the law. But in March, the 3rd US Circuit Court of Appeals reversed that ruling, finding that “a difference of medical opinion is enough evidence to create a triable dispute of fact regarding FCA falsity.”

Attorneys for Care Alternatives, including famed Supreme Court advocate Paul Clement, asked the justices in September to resolve the question of “whether a physician’s honestly held clinical judgment regarding hospice certification can be ‘false’ under the False Claims Act based solely on a reasonable difference of opinion among physicians.”

The justices may take the case because there is direct conflict between the circuits on this question. In September 2019, an 11th Circuit panel held that a hospice medical director’s finding of terminal illness cannot be deemed false for the purposes of the FCA “when there is only a reasonable disagreement between medical experts as to the accuracy of that conclusion, with no other evidence to prove the falsity of the assessment.”

So what does it take for whistleblowers and the government to prove a physician’s clinical determination that a patient has 6 months or less to live was false? Conversely, what does it take for hospices and their physicians to make their certifications legally bulletproof?

Such clinical determinations are required to certify that Medicare patients are eligible for hospice benefits, and such patients must be recertified at regular intervals. But if a second physician testifies that the hospice medical director was wrong, is that disagreement enough to defeat a motion for summary judgment and send a FCA fraud lawsuit to a jury?

One key factor is that there is a degree of subjectivity regarding criteria for hospice care. The Centers for Medicare & Medicaid Services (CMS) has not created clinical benchmarks that must be satisfied to certify a patient as terminally ill   certify a patient as terminally ill. Medicaid administrative contractors offer hospices written guidance on how to determine whether specific medical conditions carry a 6-month prognosis. But that determination still requires a