DC Medical Malpractice & Patient Safety Blog

A small victory for patient safety has come in west Texas, where a jury took less than an hour to acquit Anne Mitchell, a nurse who had been indicted on felony charges for reporting a doctor to the state medical board whom she thought was endangering patients with poor care.

The charge against Ms. Mitchell was "misuse of official information," because she had used confidential patient records in her report to the medical board. The sheriff who investigated the case and spurred the indictment was a friend and business partner of the doctor.

Ms. Mitchell told allies at the Texas Nurses Association after the verdict:

"I was just doing my job, but no one should have to go through this. I would say to every nurse, if you witness bad care, you have a duty to your patient to report it, no matter the personal ramifications. This whole ordeal was really about patient care."

The president of the American Nurses Association, Rebecca M. Patton, issued a statement underscoring the outrage of nurses over the fact that the case was ever prosecuted criminally. Ms. Patton said:

"ANA is relieved and satisfied that Anne Mitchell (RN) was vindicated and found not guilty on these outrageous criminal charges – today's verdict is a resounding win on behalf of patient safety in the U.S. Nurses play a critical, duty-bound role in acting as patient safety watch guards in our nation's health care system. The message the jury sent is clear: the freedom for nurses to report a physician's unsafe medical practices is non-negotiable.

"However, ANA remains shocked and deeply disappointed that this sort of blatant retaliation was allowed to take place and reach the trial stage – a different outcome could have endangered patient safety across the U.S., having a potential 'chilling effect' that would make nurses think twice before reporting shoddy medical practice. Nurse whistle blowers should never be fired and criminally charged for reporting questionable medical care."

Read more from the nurses association here.

Other safety leaders in the U.S. medical industry, like the Joint Commission, which accredits hospitals like the one that fired Ms. Mitchell, were conspicuously silent about the case before the acquittal. Now maybe they will speak up on the essential role nurses play and the need to make sure intimidation and retaliation cannot follow safety reports.

The handsome silver-haired doctor in the long white coat, standing at the nurse's station in a photograph accompanying a New York Times story, is the national medical director for a chain of for-profit long-term care hospitals. But he puts in barely ten hours a week for Select Medical Corporation, which has no physicians in its top management. Or nurses for that matter.

The founders of the publicly traded company, a father and son team, have made about $200 million since they started Select in late 1996, according to the Times. They also own stock worth many millions more.

From barely a handful in the entire country in the 1980s, the number of long-term care hospitals now exceeds 400, with growth fueled by Medicare payment rules that penalize hospitals when patients languish too long with a particular condition but reward those same hospitals if they can transfer the patient to a long-term care facility. Many of the long-term care hospitals -- and nearly all in the Select chain -- actually consist of a wing or floor within another hospital, so patients can be transferred just a floor or two and for reimbursement purposes be tagged as located in a wholly different facility.

According to the Times report, many of the long-term care hospitals have no doctors in the building overnight as routine practice. They have heart monitors watched by untrained clerks, or not watched at all. Patients have died from lack of appropriate attention.

Here are government inspection reports obtained by the Times from a Freedom of Information request. Statistics show that bed for bed, Select hospitals have four times as many official findings of poor quality than the average hospital.

Medicare rules pay long-term care hospitals more if the patient is hospitalized at least 25 days, but then reimbursement declines drastically for patients who need longer treatment. It's no surprise that the average length of stay at Select hovers at 25 days.

What is the appropriate role of profit making in American health care? Money can certainly drive improvements in technology and medications, but we have to question the role of profits in routine medical care.

The scandal about injuries to cancer patients from malpractice in radiation therapy has had one beneficial side effect: the Food and Drug Administration is gaining urgency and attention for its new initiative to reduce unnecessary radiation in diagnostic imaging of patients.

Here is a link to the FDA's White Paper on its steps to make sure patients get only the dosage of radiation needed, at the right time and in the right way.

One part of the project is to make it easy for patients to keep track of how much radiation they've had, because accumulated dosing is what causes long-term injuries. The FDA says it is working

to develop and disseminate a patient medical imaging record card.26 FDA will make this card available on our website. While ultimately the best way of tracking a patient’s history of radiation exposure will be to incorporate it into that patient’s paper or electronic medical record, a personal record card will give patients and their caregivers a means, in the short term, of tracking their own medical imaging histories and sharing this information with their physicians. This will help facilitate critical discussions between patients and providers about the best available clinical options.

This blog has a recurring theme of urging patients to be careful about the alleged wonders of minimally invasive surgery, and also to check a surgeon's credentials and experience carefully. These themes both come out in a new story about a malpractice legal case. An arbitration panel headed by a retired chief judge has assessed damages of nearly $12 million against a well known Florida spinal surgeon for allegedly crippling a patient.

The surgeon is Dr. Alfred Bonati, who operates his own "Bonati Institute," a glass-walled building near a highway in Pasco, Florida. The institute's specialty is minimally invasive back surgery.

According to the St. Petersburg Times, Dr. Bonati has no hospital privileges and has been tagged by a series of lawsuits since the early 1990s.

Lack of hospital privileges is a red flag for patient safety. Most doctors who have even a small chance of needing to hospitalize a patient will make sure they apply for privileges at a qualified hospital. Hospitals are required by accreditation standards to perform at least a minimal investigation of the doctor's skills and credentials before accepting him or her on staff.

A footnote to this story is that the damages decision of nearly $12 million came from a panel of three professional arbitrators, including a retired chief judge of the Sixth Florida Judicial Circuit. That shows that sober decision-makers, not just emotional juries, can find large injury damages justified in malpractice cases when the amount of harm warrants the numbers.

The victim, William Clark, was represented by Steve Yerrid of Tampa, a top plaintiff's malpractice attorney.

That question is now on trial in a small west Texas town, where a nurse stands accused of a felony for reporting a doctor whom she thought was guilty of malpractice on patients. Even if the nurse is acquitted, the case could have a chilling effect on nurses' willingness to act as whistle blowers when they see sub-standard medical care.

The defendant, Anne Mitchell, R.N., was indicted for "misuse of official information," a felony, because she reported to the state medical board her concerns about the quality of care delivered by Dr. Rolando G. Arafiles Jr.

Nurse Mitchell worked in quality of care issues for the Winkler County Memorial Hospital where both she and Dr. Arafiles worked.

The case is being followed closely by the Texas Nurses Association, which raised money for the defense of Ms. Mitchell. Click here for case updates.

When the indictment was first reported last summer against Ms. Mitchell and a second nurse (whose charges were recently dropped by the local prosecutor), the American Nurses Association also spoke out strongly.

“ANA wants Winkler County to know the world is watching – we will be monitoring this case closely in the hope that the apparent abuse of prosecutorial discretion will be corrected,” said ANA President Rebecca M. Patton, MSN, RN, CNOR. “It is outrageous to file criminal felony charges against these nurses based on allegations that they raised concerns over a physician’s actions. This undermines one of the basic tenets of the nurse’s Code of Ethics – nurses have a duty to advocate for the health and safety of their patients, and that is what these nurses were doing.”

The New York Times detailed Ms. Mitchell's concerns with Dr. Arafiles' practices in a recent article by Kevin Sack, which also discusses the bigger picture for quality of medical care.

Nurses are traditionally seen as patient safety advocates. That role needs to be nourished, not threatened, for the sake of all patients.

Once they understand what "tort reform" tries to do to victims of medical malpractice, most fair-minded people agree it's just not fair to put artificial legislative limits on the amount of money a patient can recover in a lawsuit. Such limits hurt the most devastated victims: People with spinal cord injuries, brain injuries and similar catastrophic harm are the ones who typically qualify for multi-million dollar damages to set their lives back on track. In the few cases when juries are more generous than the facts warrant -- an occurrence that is statistically rare -- the trial judge and the appeals court judges have the power to roll back the number to something reasonable.

So what does this have to do with judicial elections?

The U.S. Chamber of Commerce has poured millions of dollars into a multi-year campaign to convince the public there is an epidemic of frivolous lawsuits out there -- something no independent objective body has ever found. The reality is that the system works: the only cases that result in big damage awards are those where independent-minded judges have found plenty of evidence to support the jury's award of money, and if they don't, the jury decisions are thrown out.

The Chamber also has been busy putting money into electing judges who take a more aggressive, pro-business, anti-consumer stance. And the U.S. Supreme Court's recent decision in the Citizen United case unleashed all restraints on corporate contributions to political candidates of all kinds, including judges in those states where judges stand for election. So the Chamber can be expected to ratchet up its judicial elections campaign accordingly.

The Illinois Supreme Court this week adhered to its past precedent and ruled that that state's legislative damages cap violated the "separation of powers" between the judicial branch and the legislative branch. The case is called Lebron v. Gottlieb Memorial Hospital. Historically, it has been up to the courts to decide on a case-by-case basis how much money a particular claimant should be paid, and artificial damage caps imposed by the legislature invade that judicial power.

One of the Chamber's fair-haired judges is Illinois Supreme Court Justice Lloyd Karmeier. The Chamber paid $2.3 million to help get him elected to the high court's bench in 2004, according to the Center for Justice and Democracy.

Justice Karmeier dissented in the Lebron decision and would have let the damage cap law stand. He may have done so for reasons quite apart from politics. In fact, his dissenting opinion quoted extensively from President Obama's health care reform speech last fall, in arguing that legislatures, not judges, need to set health care policy. True enough, as far as it goes.

What's unfortunate is the continued politicization of all branches of the American government, and the Citizen United decision by the U.S. Supreme Court will make it worse, because the court gives corporations the power to put a very large thumb on one side of the judicial scales of justice-- one elected judge at a time.

This question can be answered -- perhaps unscientifically but with arresting examples nonetheless -- by just one week's worth of news. Joanne Doroshow of the Center for Justice and Democracy did a roundup of the evidence and posted her findings on the Huffington Post.

Ms. Doroshow found lots of reports of terrible injuries to patients and little accountability for the wayward practitioners except through the painful but necessary process of lawsuits in court. As she concluded:

Fixing our health care insurance system is no easy job. But this is the wrong time to consider weakening the legal liability and accountability of incompetent or reckless health care providers.

The best measure for understanding what Americans spend on health care is the health care share of GDP (Gross Domestic Production). When that share crossed the 10 percent thershold in the early 1980s, plenty of economists sounded the alarm that ruin was ahead if we couldn't somehow make that share stable, so the rise in health care spending kept pace with the economy but didn't take a bigger and bigger piece of the pie.

So how are we doing? Health care's share of the economic pie went up to 17.3 percent of GDP in 2009, according to a new report in the respected journal Health Affairs. It's the biggest single-year increase since 1960.

The Wall Street Journal's Health Blog crunched some numbers and reported:

The U.S. spent $2.472 trillion on health care last year, according to a paper out today in the journal Health Affairs. That’s $282 million an hour.

Health spending as a percent of GDP — a key metric that shows how much of all U.S. spending goes to health care — rose from 16.2% in 2008 to 17.3% in 2009, far higher than any other industrialized country. That’s the largest one-year increase since 1960, when the feds started closely tracking national health expenditures.

The figure went up so much because health spending continued to rise, even as the overall economy shrank. The aging population accounted for a small part of this rise, but two other factors were more important: rising prices and increasing use. Health-care prices rose by 3.2% in 2009, according to the Health Affairs paper, significantly faster than prices rose for the overall economy. Utilization, which includes both volume and intensity of health-care services, rose by 1.5%.

The share of health-care spending paid for by the government (through programs such as Medicare and Medicaid) is also rising, and is projected to cross the 50% threshold soon.

The share of the economy for health care will be close to 20 percent within the next 10 years, according to government forecasters.

These sobering numbers show the urgency of "bending the cost curve down," as the pundits like to say. Unfortunately the urgency of reforming the safety and quality of health care has taken a far back seat to the money discussion. They actually are compatible goals. One thing we've learned in the health care reform debate is the huge overspending in health care caused by widespread use of new technologies before their benefit is proven, driven in part by conflicts of interest by those pushing the new technologies.

To avoid becoming a malpractice victim, and to get the highest quality care, a useful safety credential for patients to look for in researching hospitals is called NSQUIP.

NSQUIP stands for the National Surgical Quality Improvement Program, developed by the American College of Surgeons. It was adapted from an error-reduction system started by the Veterans Administration system (a pioneer in patient safety and quality in several respects).

A recent report found across-the-board safety improvements in those hospitals participating in the NSQUIP since it was started in 2005.

The problem is that only about 250 hospitals in the United States participate. The College of Surgeons is now looking for ways to lower the $35,000 annual price tag for participation, which apparently has been a barrier to smaller hospitals to adopt the program.

Here is a list of the hospitals that currently participate in the NSQUIP.

The Wall Street Journal Health Blog reports on a new program growing out of NSQUIP which will help surgeons and patients calculate the exact risks of a proposed procedure and individualize it for their own hospital, based on data collected by the NSQUIP.

The NSQUIP program marks another step forward in giving patients the information they need to make intelligent choices about their health care. Unfortunately prospective patients don't have direct access to the NSQUIP data, but some of it is available indirectly through websites that gather hospital metrics, such as the Joint Commission "Quality Check" site and the Medicare Hospital Compare site.

I discuss the pros and cons of various hospital quality ratings in my book, "The Life You Save," where I conclude that one of the best measures now available is patient satisfaction, which is a survey that appears on the Medicare site.

New ethics rules that bar Harvard doctors from giving speeches paid by drug manufacturers have prompted one doctor to give up his prestigious academic position in favor of keeping the income from the speeches. The physician is Dr. Lawrence M. DuBuske, an allergy and asthma specialist who is quitting his positions at Boston's Brigham and Women’s Hospital and Harvard Medical School. According to the Boston Globe, Dr. DuBuske made about $100,000 in three months last year giving some 40 speeches for six drug makers, including GlaxoSmithKline.

The ethics rules were put in place by Partners HealthCare, the physicians' group that employs most Harvard-connected doctors.

One Globe reader put this in a good perspective:

It's a good thing that he resigned. Now, when he speaks, the information he presents will be judged by the standards of a paid speaker employed by an entity with interests, rather than a disinterested academic. Meanwhile, he remains an expert allergist, and will likely find a place to practice.

The contacts between drug companies and academic medicine are extensive. They should be. You want the best, smartest, most creative docs involved in drug (and device) production. But the money involved is huge, and some will get seduced by the Green Side of the Force. Full disclosure of interests is a step, but only a step.

For patients, it helps to know if the prescription the doctor is writing for you has even a hint of a special interest from the drug maker. The many blandishments that drug makers lavish on doctors -- even small things like pens and scratch pads, plus free meals and "fees" for speaking at seminars -- are known to do their job of creating subtle influence on the prescription writer.

That's why I recommend that patients look for doctors who have the "no free lunch" philosophy: they accept nothing whatsoever, including samples, from the drug makers. That leaves their judgment completely independent.

You can read more about the "no free lunch" movement in medicine at this website.

I have a whole chapter in my book, "The Life You Save," on how to become a smart consumer of medicines.

It ought to be so easy. Congress waves its magic wand, makes it illegal for health insurers to discriminate against sick people by charging them higher premiums or excluding their "pre-existing conditions," and voila, there you have it -- reform that everyone wants. But here's the downside, and here is why health insurance reform is not easy without tough and unpopular mandates on healthy people.

If insurance discrimination against the sick was outlawed without any requirement that everyone buy health insurance, then many people would take a chance and "go bare" of insurance while they're in good health. After all, they couldn't be punished financially once they got sick and really needed the coverage. More and more, the only people buying insurance would be the ones with big medical bills. And without the premium money from the healthy to subsidize the bills for the sick, the insurance companies would have to raise rates, and this would discourage more people from buying insurance, and soon we would have what economists call "the death spiral" of ever higher premiums and ever fewer insureds.

So no health reform has ever succeeded without a wide base of financing where the healthy and the sick alike contribute to the money pool, whether through insurance premiums or taxes.

Uwe Reinhardt, the Princeton health economist, explains this in a recent "economix" blog post in the New York Times.