Posted On: April 29, 2011

Plugging the "Black Hole" in Medical Licensing Boards

Too often, patients and families with a serious complaint about an incompetent or unethical medical doctor will write their concerns to the state licensing board and then see their case drop into a black hole. But now, thanks to the work of one crusading family, the state of Washington has a new law to make its board more responsive.

Consumers shuld hope that more of these disciplinary bodies around the country sign on for the basic changes in board conduct now required by the state of Washington. For instance, the new law requires the board to give families a report of the final disposition of any complaint, with reasons for the board's action.

These bodies are important upholders of patient safety because they have the legal power to pull or place restrictions on a doctor's or nurse's license to practice -- yet they seldom do.

In malpractice actions brought by the Patrick Malone law firm, we have often experienced the black hole first hand when we have tried to bring dangerous practitioners to the attention of state licensing authorities.

In one case, we sent a thick pile of medical records to a state licensing board about a plastic surgeon who overdosed a patient with so much local anesthetic that her heart stopped, causing her to go into a vegetative state.

The board responded a year later with a notice that the surgeon had been given a "private reprimand." When we asked them to explain what that meant, they said it was "private."


In another case, we sent records, expert reports and other data to a state board demonstrating how a nurse had mishandled Pitocin, causing a woman's uterus to rupture with tragic consequences for her unborn baby. Two years later, we received a one-sentence notice that the board had decided not to do anything. The board advised us with pro forma language that we could send them more information. We pointed out in response that not knowing what else they might need, we felt stymied. The board said that was our problem.

Washington state has acted thanks to the efforts of Yanling Yu and Rex Johnson. Three years ago, Yu's father, Xingxun Yu, 81, died after being given a drug his daughter says triggered a fatal allergic reaction. They filed a complaint with the state's Medical Quality Assurance Commission about the doctor. When the board proved non-responsive, they enlisted the help of two state senators.

The new Washington law, which was signed by the governor a week ago, requires a disciplinary authority to promptly respond to inquiries about a complaint's status and provide the person complaining with a report on its final disposition. The law also gives family members the right to tell boards how a medical injury has affected them or their loved ones.

Yu told the Seattle Times: "I think it will make a difference, at least make them more responsive. I think it is a great step forward from what I call the dark ages in the process."

Lisa McGiffert, campaign manager for Consumer Union's Safe Patient Project, said she hoped the new Washington law would become a national model.

Article first published as Plugging the "Black Hole" in Medical Licensing Boards on Technorati.

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Posted On: April 28, 2011

Two malpractice verdicts in two days in Pennsylvania town

Juries in Erie, Pa., last week returned substantial - and in the first case, record - verdicts on consecutive days in favor of the plaintiffs in two malpractices cases. One day after a jury gave $21.6 million - the largest malpractice verdict in the county’s history - to an Erie mother and her son over his botched delivery in 2006, another jury at the same courthouse returned a $1.8 million verdict in favor of the estate of a woman who died of lung cancer at age 66 in April 2005.

The first case began in 2006, when a mother went to the then Hamot Medical Center to have fraternal twins. The daughter was born normal but the son had severe brain damage. The jury agreed with the boy’s mother that the hospital's nursing staff was unprepared for complications arising from a breach birth and didn't do enough to prevent oxygen deprivation that left the boy unable to speak and requiring feeding through a tube.

The verdict includes $19.6 million to provide for the boy's future medical expenses. The rest covers past medical expenses and the boy's lost lifetime earning capacity. The hospital's attorney declined to comment on the verdict or whether the hospital will appeal.

The next day, a second jury determined that physicians treating Carolyn Champlin failed to properly diagnose and treat her lung cancer and returned a $1.8 million verdict. Champlin died in April 2005.

Her estate maintained that physicians in Erie and Kane failed to properly diagnose and treat the cancer. Champlin had received chest X-rays at Hamot and two other hospitals between 1998 and 2003. One of the plaintiff’s lawyers said after the verdict that the evidence showed Champlin had cancer in 2000, but was not properly diagnosed for 3 years. During that time, the lung cancer went from operable and curable to inoperable and incurable.

The jury agreed and found the two physicians negligent - her longtime primary-care doctor and a thoracic surgeon to whom she was referred. The estate settled with the surgeon before the trial ended. As a result, the jury verdict of $1,821,529 was reduced by 40% (the amount of the negligence attributed to the surgeon).
Source: Erie Times-News and WICU-12

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Posted On: April 26, 2011

Accurate quality measures needed to improve health care quality and safety

The push to make hospitals and doctors more accountable for health care quality means more attention must be paid to the accuracy and reliability of measures used to evaluate caregivers, according to Johns Hopkins patient safety expert Peter Pronovost.

There is little consensus as to which measures are scientifically valid and accurate assessments of quality, and this risks misinforming patients who may make decisions based on metrics that poorly reflect the state of health care, Pronovost wrote in the April issue of Health Affairs.

Pronovost supports the bipartisan effort to pay for value rather than volume with health care, but says serious work needs to be done to create a “whole library of outcome measures” such efforts require. Failure to create such measures “could ultimately lead to a failure to make improvements in hospitals where quality is judged to be better than it is,” he says.

Pronovost maintains that despite the substantial, persistent shortcomings in the quality of care that causes needless patient harm and increases health care costs, fixes can’t be put in place until rigorous scientific data show exactly where systems are broken, and until hard comparative evidence points to what types of repairs work best.

In the absence of such safety and efficacy science, he says, there will remain little consensus among hospitals and physicians about the best methods to judge quality or improvement. He points to overall hospital death rates as an example of an imperfect reflection of quality of care that in many cases is the only measure used.

Pronovost notes that physicians typically support the use of outcome measures if they are valid and reliable enough to enable conclusions to be drawn about the quality of care. Unfortunately, too often they aren’t.

For example, he says, some states penalize institutions for what they deem are preventable complications contracted by patients during their hospital stays, even though the hospitals don’t know exactly what they are being judged on because those states use a proprietary algorithm (commonly referred to as a "black box") created by a private company to determine which hospitals are “successful” and which ones should be sanctioned. Clinicians and the public end up not knowing how accurate the measures are or how they were calculated.

Source: The Johns Hopkins University Gazette

You can read the abstract of the article in Health Affairs here.

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Posted On: April 20, 2011

Washington state bill seeks consumer accountability for medical licensing board

Washington state lawmakers have proposed a bill that would give more rights to people who file licensing complaints alleging medical mistakes. Up to now, when something terrible happens to a patient in a hospital or under a doctor's care, families often file complaints with the Medical Quality Assurance Commission (MQAC) - the state's medical disciplinary board - but hear nothing for months or even years, only to finally be told that the official finding is "insufficient evidence" or "no cause for action." Not surprisingly, this leaves many families wondering if the physician and/or hospital have covered up what really happened to the patient.

Last year, nearly 1,400 Washington families filed complaints with the MQAC. Like most state medical boards, the MQAC typically closes most without action - of the 1,400 complaints, 950 were investigated and disciplinary action taken in only 94 cases, says its legal manager, Michael Farrell. Current Washington state law doesn’t require MQAC to divulge evidence during investigations or to detail its reasoning, Farrell says, and for the most part, it doesn’t.

But Lisa McGiffert, director of Consumers Union's Safe Patient Project, a national patient-safety effort, says that “many patients who file complaints end up getting frustrated because they feel like their report disappears into a bureaucratic black hole." Under the proposed law, which has already been passed by the House and is currently before a Senate committee, patients would have a "better opportunity to be heard."

The proposed law, which is being touted as model legislation for other states, would require a health profession's disciplinary board to promptly respond to complainants' queries about the status of an investigation, provide copies of files on request once a case is closed and, when deciding whether to reconsider its original finding because of new evidence, provide an explanation of its reasoning. For the first time, families would be given the right to tell board members how they've been affected - in writing or in person and before a case is closed - and recommend sanctions.

Source: The Seattle Times

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Posted On: April 18, 2011

Philadelphia physicians failed to report dangerous peer

Many women who went to Dr. Kermit Gosnell to end their pregnancies came away with life-threatening infections and punctured organs; some still had fetal parts inside them when they arrived at the ER of nearby hospitals. Though physicians at the University of Pennsylvania Health System, which operates two hospitals within a mile of the West Philadelphia abortion clinic, saw at least six of these patients — two of whom died – they failed to report their peer's incompetence, according to a grand jury report.

"We are very troubled that almost all of the doctors who treated these women routinely failed to report a fellow physician who was so obviously endangering his patients," wrote the Philadelphia grand jurors, who recommended a slew of charges against Gosnell and his staff in January.

The health system - in apparent contradiction of the grand jury report - released a statement saying that it had "provided reports to the authorities regarding patients of Dr. Gosnell who sought additional care at our hospitals" starting in 1999. However, attorneys for the health system could only produce a single report for the grand jury.

The grand jury also criticized Pennsylvania's health and medical regulators for taking no action against Gosnell, despite reports that he was harming patients. But the panel also said too many local physicians had shirked their professional and legal responsibilities to report him and thus protect the lives of future clinic patients.

Pennsylvania law requires doctors to report abortion complications to the state Health Department. And the American Medical Association says "physicians have an ethical obligation to report impaired, incompetent and unethical colleagues."

Prosecutors described Gosnell's clinic as "a house of horrors," where viable babies were killed with scissors, fetal remains were kept in jars and freezers, and dirty medical equipment was operated by unlicensed, often untrained and unsupervised employees. Gosnell himself was never certified in obstetrics and gynecology, only family practice.

Gosnell, 70, is jailed without bail and charged with eight counts of murder in the deaths of one patient and seven viable babies. Authorities say he also routinely maimed his clients, sometimes leaving them sterile and near death.

Source: Associated Press

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Posted On: April 16, 2011

A Gentler Option to Barking: "Did You Wash Your Hands?"

Hospitalized patients are right to be terrified of getting a serious infection from the hands of their doctors or nurses. But is there any option to barking at everyone who comes in your room: "Did you wash your hands?"?

Yes, says gastroenterologist Steven Kussin, author of the forthcoming book “Doctor, Your Patient Will See You Now.”

Here's the problem Dr. Kussin identifies if you ask the "did you wash your hands" question:

Doctors or staff members who respond “no” are guilty of a grave medical lapse. If they didn’t wash and then lie to you, they’re also guilty of a grave ethical lapse. Either way, the question raises their defenses and their hackles. Instead, if you didn’t witness a hand-washing ritual, then assume it didn’t happen. You’ll probably be right. Physician hand-washing compliance runs about 33 percent.

And his answer, in a letter to the editor in the New York Times:

If you show them, they will wash. When they, or anyone, approach your bedside, give them notice of your intent. Hold out a bottle of sanitizer with a big smile. As you squirt them say: “I know how busy you are, and I am sure you’ve already done this a million times a day. But I’m terrified of those infections I’ve been reading about. I hope you’re O.K. with this.”

That’s it. Easy, pleasant and effective.

Good advice. I have more about avoiding infections in the hospital, and other avoidable medical harms, in my patient safety newsletter, which you can read here.

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Posted On: April 13, 2011

New Hampshire governor fights subpoena over efforts to dip into malpractice fund to reduce budget deficit

The governor and attorney general of New Hampshire are fighting a subpoena to testify about state efforts to take $110 million from a malpractice fund to plug a budget hole. Policyholders of the medical malpractice Joint Underwriting Association are suing its board for breach of financial responsibility.

Health care providers have paid into the fund for years. The lawsuit claims that Gov. John Lynch and Attorney General Michael Delaney 's Office instructed the board not to fight efforts to take the money “and also ordered them to fire their lawyer and to conceal the opinion that that private lawyer gave the JUA board, which expressed concern about the legality of the proposed taking," the attorney representing the policyholders said.

Lynch and Delaney strongly deny the allegations. Delaney’s office took a position that the JUA is a state entity and continues to take that position today, despite a superior court decision stating otherwise.

The contrary legal opinion — obtained by the JUA board of directors, who were also concerned at the outset that Lynch’s plan was possibly illegal — was kept confidential because it was protected as attorney/client communication, Delaney said.

While hiding the contrary legal opinion, Lynch and Delaney publicly touted a legal opinion by Senior Assistant Attorney General Glenn Perlow saying the state had a right to the JUA money, according to a right-to-know lawsuit JUA policyholders filed against the state last October.

The state Supreme Court ultimately backed a lower court ruling and said it was unconstitutional for the state to take JUA reserves. A second attempt to seize the reserves by legislatively changing Insurance Department rules also failed.

The JUA was formed by the Insurance Department in 1975 to insure health care providers who were having trouble at the time finding affordable malpractice insurance. It insures about 900 doctors, hospitals, nursing homes and other allied providers in New Hampshire.

Source: Manchester Union Leader

You can read the complete Union Leader article here.

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Posted On: April 12, 2011

Government Gets Serious about Patient Safety

The new federal "Partnership for Patients" safety initiative has drawn enthusiastic early endorsement from safety mavens like Dr. Bob Wachter of UCSF. It should: By his own insider's account, Wachter helped inspire HHS leaders to finally take seriously the national scandal of preventable harm in hospitals and clinics. Here's his story.

The official government announcement with details is here.

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Posted On: April 12, 2011

As much as 45% of all U.S. health care costs due to medical errors, studies show

Medical mistakes account for between 18 and 45 cents of every health care dollar spent in the U.S., and a medical error or adverse effect occurs in one out of every three hospital admissions, researchers say.

According to studies published in the journal Health Affairs, the single most expensive cause of harm is infection after surgery, with more than 252,000 infections costing $3.36 billion reported in 2008, while pressure ulcers (bedsores) are the most common preventable event, with with nearly 375,000 cases in 2008 costing $3.27 billion.

Following a shocking 1999 report that showed that as many as 98,000 people die annually due to medical mistakes, hospitals have tried to reduce such adverse effects, but serious mistakes persist. In 2006, for instance, medical mistakes contributed to as many as 187,135 deaths and 6.1 million injuries that cost between $393 billion and $958 billion.

“There are some examples of excellence; we have many [intensive-care units] that have eradicated central line infections. But surrounding those examples of excellence we have serious adverse events going on,” said Dr. Mark Chassin, president of the Joint Commission, a nonprofit organization that accredits health care programs. “Every week in the United States, up to 40 patients undergo a procedure meant for somebody else or the wrong body part,” he said.

The costliest medical errors were:

1. Infections after surgery (252,695 in 2008, cost $3.36 billion)

2. Pressure ulcers - Bedsores (374,964 in 2008, cost $3.27 billion)

3. Complications from noncardiac implants and grafts (60,380, cost $1.07 billion)

4. Complications from lower back surgery (113,823, cost $1 billion)

5. Excessive bleeding complicating a procedure (78,216, cost $680 million)

Source: National Journal

You’ll find more information about the Health Affairs studies here.

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Posted On: April 7, 2011

Treatment Gap Wide For Brain Injury Victims

The following is a guest blog submitted by the Hawaii injury law firm of Davis Levin Livingston.

As reported by USA Today, there is a large treatment gap for brain injury victims in the United States. Despite the fact that programs like Medicare and Medicaid, and even most insurers, cover medical costs related to brain surgery and intensive care needed to save traumatic brain injury patients, many insurers simply don’t provide adequate funds for rehabilitation.

These rehab programs may cost anywhere from $600 to $8,000 a day, depending on the nature and extent of the services provided, according to Susan Connors, president of the Brain Injury Association of America.

Tragically, this lack of coverage for brain injury rehabilitation translates into thousands of TBI patients being discharged every from hospitals to nursing homes or to languish in their beds. Since it is in the early months following injury when their brains are most receptive to healing, many patients who might have otherwise have more successful recoveries simply miss their window according to data from the National Institute for Disability and Rehabilitation Research. As many as two-thirds of patients discharged from rehabilitation hospitals following 16 days of general treatment receive no further treatment.

Unfortunately, this means that countless brain-trauma patients, who but for the lack of treatment, may never regain full use of their limbs, their ability to use language, their emotional balance or their power to think clearly.

The views, opinions and positions expressed within this guest post are those of the author alone and do not represent those of Patrick Malone & Associates, PC. The accuracy, completeness and validity of any statements made within this article are not guaranteed. We accept no liability for any errors, omissions or representations.

Attorney Mark Davis has been recognized as one of the top trial lawyers in Hawaii and in the United States. The Hawaii injury lawyers at Davis Levin Livingston are able to handle complex and costly litigation through a combination of common experience and expertise and individual achievement.

The views, opinions and positions expressed within this guest post are those of the author alone and do not represent those of Patrick Malone & Associates, PC. The accuracy, completeness and validity of any statements made within this article are not guaranteed. We accept no liability for any errors, omissions or representations.

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Posted On: April 5, 2011

Oregon bill would extend whistleblower protection to non-nursing hospital staff

A bill before Oregon’s state Senate would give non-nursing hospital staff members workplace protection when reporting health care practices that endanger patient safety.

Currently, Oregon nurses are legally protected against retaliation in hospitals when reporting practices that jeopardize patient health or safety. If it becomes law, Senate bill 237 would extend the same protections to Oregon’s non-nursing hospital staff, including lab and X-ray technicians, certified nursing assistants, licensed practical nurses and others.

Advocates of the bill say it is necessary because workplace retaliation against healthcare workers who report patient safety issues is common, and filing a complaint with a regulatory agency or speaking truthfully to an on-site regulatory inspector can pose significant career risks. The bill would improve patient care and safety by legally prohibiting retaliation against staff by their hospital employers.

The Senate committee studying the bill also heard testimony that because of the “warm and fuzzy” relationship between hospitals and state and federal legislators, hospital health care workers also need protection from retaliation from state and federal regulatory agency employees. In addition, state Senators were urged to prohibit the disclosure of any personal identifiers of any complainant to any other person or entity.

Source: Salem Statesman Journal

You can read the draft legislation here.

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Posted On: April 4, 2011

Savings from malpractice reform are a myth, study shows

Malpractice claims are not out of control and a damages cap would not result in big insurance savings for doctors and hospitals, according to a new study of malpractice insurance in New York state. The study comes as lawmakers across the nation are under pressure to enact tight restrictions on the rights of medical malpractice patients.

According to Joanne Doroshow, Executive Director of the Center for Justice & Democracy and co-founder of Americans for Insurance Reform, which commissioned the report, “The notion that either claims or premiums in New York State are out of control is the most sensationalized fiction driving these horrendous medical malpractice proposals. AIR’s study refutes the principal basis for the argument that a $250,000 ‘cap’ on damages for injured patients will result in massive insurance ‘savings’ for doctors and hospitals.”

Doroshow adds that the only public justification for the push to cap malpractice damages “is a one-line sentence in the Governor’s Medicaid Redesign Team’s Proposal 131, referencing Milliman," an insurance industry consulting firm that she says is discredited.

The AIR study, called “Medical Liability and Malpractice Insurance in New York State,” examines over 30 years of New York insurance data to show that New York’s insurance rate increases and decreases are not driven by the legal system or jury verdicts, and that the causes of and solutions to any insurance problems that exist here lie not with the legal system (i.e., capping damages) but with the business practices of the insurance industry.

The analysis was done by J. Robert Hunter, AIR co-founder, director of insurance for the Consumer Federation of America, and formerly the Commissioner of Insurance for the State of Texas and Federal Insurance Administrator under Presidents Carter and Ford.

The AIR study also found that:

Inflation-adjusted payouts per doctor in New York State have been stable, have failed to increase in recent years, and are comparable to what they were in the early 1980s.

Inflation-adjusted premiums per doctor in New York State are among the lowest they have been in over 30 years, comparable to what they were in the mid-1970s.

The study concluded that there is absolutely no reason to further limit the liability of doctors and hospitals, who already benefit from numerous liability protections in New York State for their negligence.

Source: Americans for Insurance Reform

The complete study can be found here.

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