Articles Posted in Medical Malpractice

Twenty-one patients died and at least two dozen others fell ill from infections now linked to a flexible, state-of-the-art scope used in gastrointestinal examinations, even as the medical device’s manufacturer for years kept selling the instrument and failed to alert hospitals about growing dangers, the Los Angeles Times has reported. The paper detailed its findings about a nationwide outbreak that became public only after problems were publicized at a major, Southern California medical center.

The manufacturer, Olympus of Japan, blamed others and improper cleaning for deadly infections tied to its instrument. It also kept hospitals and regulators in the dark about problems with the devices, allowing each of several hospitals involved to think it was the only one having issues, the paper reported. It quoted a gastroenterologist at one affected hospital as saying the company’s silence was “unethical, irresponsible, and dangerous.”

Only after the Times published reports of three Southern California deaths did federal regulators issue a nationwide warning, and investigations in LA, Pittsburgh, and Seattle were tied together. These indicated that, what the manufacturer had called improvements in the scope’s design and had led to a higher costs for the devices, permitted a grimy film to develop in Olympus scopes; this residue harbored patient tissue and deadly microbes that were fatally spread. The company was brought in to see how hospitals tried to clean the scopes, offering no adverse commentary about intensified procedures that ultimately proved inadequate.

The Times also has posted a companion story describing Olympus’ woes with another of its scopes, this device to examine bronchial passages. As investigators discovered with these scopes, they, too, spread infections because their design hampered sterilization. Then, the company and its slow response prompted researchers from Johns Hopkins, an affected institution, to publish a 2003 letter to the New England Journal of Medicine, calling on manufacturers to accept the importance in device design of instrument cleaning to patient safety.

Such warnings apparently aren’t getting heeded as they need to be, as I’ve written before. I noted as recently as this fall that federal regulators had again issued extensive warnings to hospitals about hygiene, scopes, and other medical devices, particularly those that get re-used. Let’s also be clear: technology’s advances have created real challenges for experts in tracking and assessing safety issues as more new and redesigned devices roll out. The U.S. Government Accountability Office, a congressional watchdog, has put heightened oversight of medical devices as one of its “high risk” issues demanding urgent improvement.

As the Times stories make clear, however, fancy new hardware commands big dollars in health care. Lobbying of lawmakers by interests in this area are formidable. Further, it can be hard to create sufficient public clamor to prompt tough action by regulators and lawmakers because patients are affected piecemeal by many and different medical devices. News reporting in this area deserves credit for helping to clean up problems. It also may take concerted work in the civil justice system to hit bad actors with verdicts sizable enough to prompt more responsible action.

Let the patient beware is an adage that may need to be extended to yet another realm of healthcare: dentistry. Kudos to a reporting team in Texas for their recently published investigation, disclosing that dentists all too frequently are involved in procedures in which their patients die and that ineffectual regulators fail to halt dodgy practices and feckless practitioners, some of whom hopscotch across the country with impunity.

The seven-part Dallas Morning News series finds that at least 1,000 dental patients have died in the last five years due to questionable oral healthcare. The report says the numbers may be greater but that regulatory laissez-faire prevents the public from understanding the severity of the issue.

Patients who go to dental practices for issues as minor as tooth decay and as significant as oral surgery all have ended up dead, often after undergoing poorly supervised anesthesia, the paper says.

The stories of patient harm prove even more chilling because those who are supposed to oversee dentists and prevent injury or death show greater concern for protecting practitioners and their reputations and privacy than for public safety. In some instances the Morning News spotlights, dangerous dentists simply packed up and moved to another state, where their credentials and records barely got blinked at before they were allowed to practice anew.

The paper provides an online checklist of ways patients can try to protect themselves and offers an interactive map so consumers can check how their states perform in dental oversight. The bad news for residents of Virginia and Maryland: The News gives the two states an F and offers harrowing incidents that have occurred in both, with little or no regulatory penalty for the dental scofflaws.

Although I join anyone who sees a dentist regularly, as I do, in hoping the profession takes its own steps to clean up its ranks across the nation, I’m not surprised by the powerful and tragic findings of some fine reporting. Back at the start of my career, I worked on an investigative reporting team that found Florida regulators blind to horrific wrongdoing by doctors and impotent in preventing them from doing more damage.

And while improvements occur because of journalistic tenacity, it’s also true that “advances” in practice and technology may make us all more vulnerable: Healthcare providers have access now to a range of powerful anesthetic drugs, and these are administered in a wider variety of settings than ever before, including in specialized centers for procedures including major surgery and colonoscopy; the results aren’t always optimal.

If the public clamor can’t get lawmakers to act, and if professions can’t assist regulators rather than hamstringing them from policing practices, it may require, as it all too often does, the intervention of lawsuits in the civil justice system.

cjdTo hear many in the health care professions and tort reform advocates tell it, malpractice litigation represents one of the great scourges of modern medicine, racking up costly and time-consuming verdicts, clogging the civil justice system, and leading caregivers to wasteful defensive practices, including over-testing and over-medicating.

Bah, humbug, to such myths, The Center for Justice & Democracy at New York Law School has replied in its fifth annual Medical Malpractice by the Numbers briefing book.

The latest work, which is available online for free (click on the previous link and follow to the end of the document for a download hyperlink) provides concise, relevant references in 128 pages of carefully footnoted citations to factual research on medical malpractice, including these salient findings:

  • Medical malpractice cases constitute just 3 percent of all tort matters, with juries deciding few of these lawsuits — an estimated 3 percent to 9 percent of them.
  • Medical errors are the third leading cause of death in the United States, claiming hundreds of thousands of lives. Even with the myriad patients treated in 2014, physicians made just slight more than 8,500 malpractice payments; just 5,288 disciplinary actions were taken “that reduced, restricted, suspended, revoked or denied physicians’ clinical privileges or membership in a health care entity.”
  • A handful of MDs, roughly 11 percent, accounted for about 25 percent of the cases that resulted in complications, and surgeons with the highest complication rates are performing operations in hospitals nationwide.

“Although hundreds of thousands of patients die each year due to medical errors, very few medical claims are paid to compensate injured patients,” says Joanne Doroshow, the CJ&D executive director who is a principal author of the briefing book with  Emily Gottlieb, CJ&D’s deputy director for law and policy.

It’s hard not to look at the latest federal data on how hospitals have improved their efforts to avoid harming patients and think, “Pretty good job, folks. But can’t you do more?”

Yes, it does sound impressive that a big push under the Affordable Care Act, also known as Obamacare, has resulted in an estimated 87,000 fewer patients dying due to hospital-acquired conditions and that averting these harms saved $19.8 billion in costs  in the period between 2010 and 2014.

But it’s also true, as Kaiser Health News points out, that the measured successes also have hit a plateau after three years of declines in harms. As the KHN report notes, “Hospitals have averted many types of injuries where clear preventive steps have been identified, but they still struggle to avert complications with broader causes and less clear-cut solutions.”

And here’s where it gets unhappy, as KHN reports there still were:

“at least 4 million infections and other potentially avoidable injuries in hospitals last year. … That translates to about 12 of every 100 hospital stays. Among the most common complications that were measured — each occurring a quarter million times or more — were bed sores, falls, bad reactions to drugs used to treat diabetes, and kidney damage that develops after contrast dyes are injected through catheters to help radiologists take images of blood vessels.”

The Obama Administration has said that it will keep up the carrot-and-stick efforts to get hospitals to improve their performance through steady, consistent measurement and goal-setting, providing financial incentives to institutions that provide better care. Hospitals insist that they’re making progress and that the public will see even more as some of their initiatives kick in.

Still, as a recent Washington Post story found, patients and their families suffer enormously, in physical and fiscal pain, when medical errors occur and it remains all too often unclear that anyone will compensate them — in fact they may end up paying more for problematic care.

Unfortunately, as the Post points out, all too many American health care consumers fail to understand that malpractice lawsuits are expensive to pursue, and tort reform deliberately cuts down on how much the victim can claim, so as to make lawsuits, even meritorious ones, less financially viable for attorneys to take on contingency fee.

Further, many people confuse the reality of the current civil justice system, which is a negligence system not a no-fault compensation system. In our negligence system, plaintiffs must prove not just injury but that it should not have happened. Some patients may feel entitled to money just because they suffered an injury from medical care.

But that’s not the system we have — although ironically some tort reformers have proposed something like that. They do this to trivialize the whole enterprise so that it’s not about compensating people with horrific preventable injuries, but throwing small bones to everyone hurt, and then losing the moral aspect of the enterprise in the process.

The Centers for Disease Control and Prevention offers but one voice among many that has declared that the United States is in the midst of a prescription drug abuse epidemic. As the CDC notes: “Since 1999, the amount of prescription painkillers prescribed and sold in the U.S. has nearly quadrupled, yet there has not been an overall change in the amount of pain that Americans report. Overprescribing leads to more abuse and more overdose deaths.” Indeed, the agency says 44 Americans die daily due to prescription painkiller overdoses.

Those grim statistics provide a stark context for a startling Los Angeles case: Prosecutors have won a second-degree murder conviction against a female physician from the suburb of Rowland Heights for her role in the overdose deaths of three of her patients. The Los Angeles Times said this was one of a handful of instances in which a physician has been prosecuted on homicide charges for prescribing painkillers that led to a patient’s death.

The paper quoted experts who raised concerns as to whether the case would send a chill through the medical community, with doctors growing more sparing of powerful painkillers for patients who need them; others said that the physician involved had been reckless in her prescribing, had seen a patient overdose in her office but continued to write scripts for him, and had received multiple calls from authorities warning her that her patients had died with drugs she had prescribed in their systems.

Her attorney noted that California medical authorities had considered her wrong-doing and found her “in violation of standards” and argued that the physician should have faced civil malpractice proceedings, instead.

Perhaps. But pill addicts don’t make for the best plaintiffs and they certainly would be tarred by defense counsel as junkies deserving of little consideration. And families also typically prefer to have their loved ones alive and not have to be chasing damages after their deaths. It’s also unclear whether, after malpractice insurance payments get made, even a hefty civil win against a pill-dispensing doctor would send the requisite, widespread message to practitioners about the severity of the prescription drug abuse issue.

While the medical community has acted to address the prescribing bane — including improving pain-management regimens, supporting state laws against abuse of powerful medications, and putting in place monitoring systems so addicts can’t go, say, from emergency room to emergency room gulling harried care-givers into dispensing excess dosages — it, tragically, may take public awareness and the dual hammer of civil and criminal actions to effect change.

A recent issue of our Better Health Care newsletter focused on pain management. We interviewed Dr. Richard Ruskin, a pain management specialist who lost a relative to incompetent pill-dispensing that led to a fatal overdose.  This is an area of medicine that requires careful listening to patients, a lot of thoughtfulness, and some clear-eyed realization that people who develop chemical addictions to pain-killers are not always going to be up-front about it. That doesn’t make them bad people, and it doesn’t mean we should write them off as junkies.

Thankfully, most doctors are honest, but a pattern of greed and dishonesty has popped up with disturbing frequency around the country: heart specialists putting permanent devices into healthy hearts with no medical justification.  It’s happened in California, Maryland, New Mexico and now in a Chicago suburb, Munster, Indiana.

This town of 23,000,  30 miles southeast of Chicago, now has 293 patients asserting in lawsuits that a trio of heart specialists performed needless procedures, the New York Times reports.

State Medicaid officials, the Times says, have launched an investigation and federal authorities also may be probing the physicians, who make up Munster’s most popular cardiology practice and the highest-paid heart doctors by Medicare reimbursement.

The newspaper examines not only the practitioners and their preferences for certain medical devices and procedures but also the role of a local hospital that benefited from the physicians’ robust activity.

Among the paper’s findings, based on data it shared with a professor of Medicine at the Dartmouth Institute for Health Policy and Clinical Practice: Munster’s rate for defibrillator implants, per capita and after appropriate adjustment for various key factors, was in the top 10 percent for the country for 2010, 2011 and 2012.

The region showed up with some of Indiana’s highest rates per capita for cardiac catheterizations and coronary angioplasties, procedures that, in many cases, can be elective, i.e., optional.

Good advice gets offered in the final line by an unhappy patient who now carries a five-inch chest scar for a surgery and other procedures and medications that are under question now: “Don’t do what I did and depend on the doctor,” she says. “Get a second opinion.”

Of course, that’s easier said than done when a seemingly sincere doctor says you need heart surgery and you may not have a lot of time to dither around with second opinions.  When a doctor uses scare tactics, that’s when it’s even more important to apply the brakes and politely ask about getting a doctor from some unaffiliated medical practice to look things over and give independent advice.

A bill introduced in the New York State Legislature aimed to help people who were grievously injured by medical malpractice. It had wide, bipartisan support, and passed one of the state’s two houses. But it’s unlikely ever to become law.

As attorneys Thomas Moore and Steve Cohen wrote on the op-ed page of the New York Times, that’s because its powerful enemies flexed their misguided muscle.

The legislation is known as Lavern’s Law, named for a Brooklyn woman. She had an X-ray at a hospital that showed a suspicious mass. But no one at the facility alerted her to that result, and three years later, she died of an otherwise curable form of lung cancer. The legislation was drafted because her daughter was barred from suing for negligence because New York victims of such horrible care must take legal action within two-and-a half years of when the medical error was made. It doesn’t matter when it was discovered. Most states, unlike New York, use the discovery date as the fair starting gun on the legal clock for the time to bring a lawsuit.

But decency and fairness clearly are not priorities for some powerful interests in New York, and the people who cave to them. Hospitals and the health-care lobby opposed Lavern’s Law, Moore and Cohen suggested, because they feared more medical malpractice lawsuits. That might well be the result, the writers said, ” … but the actual number would probably be minuscule: Of the hundreds of possible cases we evaluate every year, only a handful are outside the statute of limitations. …”

As is widely reported, here and elsewhere, hospitals make lots of mistakes for which they should be accountable. “To Err is Human,” the seminal 1999 report by the Institute of Medicine, showed that at least 44,000 patients were killed and thousands more injured every year because of errors committed in hospitals. A couple of years ago, the journal HealthAffairs pegged the number of avoidable deaths at probably 10 times higher.

“Hundreds of thousands more patients are seriously injured through negligence,” according to Moore and Cohen. “Doctors and hospitals are doing a poor job of policing themselves, yet they have been successful at keeping anyone else from doing it.”

The writers remind readers, as have we, that very few such mistakes result in medical malpractice lawsuits. In 2013, even the Journal of the American Medical Association (JAMA) concluded that only 1 in 100 medical errors resulted in a claim.

“Only a tiny percentage of malpractice cases result in doctors’ hospital privileges being curtailed,” Moore and Cohen reported. “Between 2011 and 2013, there were approximately 7,400 complaints against doctors filed each year with the New York State Office of Professional Medical Conduct. Most consumer complaints are not about suspected malpractice – after all, it takes a fair amount of expertise to identify medical errors caused by negligence. Rather, most allege impairment, improper prescribing, sexual misconduct and fraud.”

Of all those complaints, only an average 287 per year, or 4 in 100, resulted in the responsible party’s license being restricted, suspended or lost.

Anybody familiar with personal injury law knows that even when victims of medical malpractice lawsuit are successful in court, their judgments often are modest. That’s often due to the wave of judgment caps imposed by state legislatures on how much people are allowed to recover in these cases, a situation we wrote about last month that also brings additional medical harm. Such unfair, restrictive relief isn’t even the issue addressed by Lavern’s Law – it was a much more basic effort to allow people sufficient time to realize that they were harmed, and the extent of that harm. Moore and Cohen called it shameful that it wasn’t allowed to come up for a final vote, and that an even greater shame “is that hospitals don’t put more emphasis on patient safety. As the Lavern’s Law travesty makes clear, we need better solutions. Don’t limit what injured people may collect, and don’t make it more difficult for victims to get their cases heard. …”

The writers offered ways to prevent negligence from happening in the first place, and it begins with medical providers being better watchdogs of their peers. A recent report by Public Citizen showed that only about 6 in 100 doctors probably were responsible for nearly 60 in 100 malpractice payments between 1991 and 2005. Why shouldn’t this small minority of wreckless professionals be identified by the people in the best position to recognize them?

Moore and Cohen also called for state licensing agencies to improve their ability to keep the worst offenders out of hospitals. “The threshold for state medical licensing agencies to initiate reviews should be reduced,” they said. “[I]n New York it takes six malpractice judgments or settlements. It should be three at most.”

We think even that is generous.

The commentary also said that hospital leaders should be held accountable for the negligence their facilities commit. “The 10 highest-paid administrators and doctors at each hospital should have a significant portion of their compensation tied to patient safety,” advised Moore and Cohen, claiming that if as much as 30% of their compensation depended on reducing malpractice claims against their facility, hospitals would be routinely safer places.

“But as long as hospitals and doctors block legislation and fight regulation,” the safety advocates concluded, “patients will remain in peril.”

We write often about the misguided, unfair movement to cap the amount of money plaintiffs in medical malpractice cases are allowed to receive. We’ve often detailed how these efforts, backed by the medical and insurance industries and conservative lawmakers who claim that they impair the efficient delivery of quality care, in fact do not result in the benefits their supporters pretend they will.

Now, a couple of studies from last year explained in The National Law Review show how such damage caps potentially can cause additional harm to patients, not to mention the health-care industry.

The authors reviewed five U.S. states that have malpractice caps imposed under the description of “tort reform,” as well as their records on what is known as Patient Safety Indicators (PSIs). Using various data, “Do Doctors Practice Defensive Medicine, Revisited” (a Northwestern University Law & Economics Research Paper from October 2014), showed a rise in the rate of PSIs after caps were implemented, and subsequently found “consistently gradual relaxation of care or failure to reinforce care standards over time.”

They also determined that this decline was widespread, that it applied to care that’s more likely to lead to a malpractice suit (for example, “never events” such as leaving an unintended piece of medical equipment inside a surgical patient’s body, operating on the wrong side, etc.), as well as care that’s less likely to cause legal action, such as a central line bloodstream infection.

In addition, the authors found evidence “that reduced risk of med[ical] mal[practice] litigation, due to state adoption of damage caps, leads to higher rates of preventable adverse patient safety events in hospitals.”

So … implementing these damage caps leads health-care facilities to relax their care standards, which leads to an increase of otherwise preventable incidents, which leads to … more malpractice suits.

Good idea, huh?

A study earlier last year, “The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform” (Northwestern University Law & Economics Research Paper No. 13-09, July 2014), suggested that physicians might practice riskier medicine in states that have caps. “For example,” according to The Review, “the physician might perform ‘high-risk services or procedures’ that would be otherwise avoided in noncapped states, or in states with common laws where an uncapped tort system would provide further deterrence from such riskier procedures.”

Here we go again: As the authors wrote, “damage caps have long been seen by health policy researchers and policymakers as a way to control health-care costs: We find, in contrast, no evidence that adoption of damage caps or other changes in med[ical] mal[practice] risk will reduce health-care spending.”

Patients who suspect malpractice after they’ve had an unforeseen injury from a surgical procedure quickly learn that the operating room works on a basic “honor system” for reporting errors. If something goes wrong, the surgeon is required to describe the event in his or her dictated report of the operation. Of course, that lets the surgeon control what gets put on paper.

Now there is a budding movement to have cameras in operating rooms record what happens and save the recordings for possible use later — both to educate professionals and as potential legal evidence.

The Washington Post has an article describing a bill introduced in the Wisconsin legislature to require such recordings. The man behind the move is the brother of a patient who died from too much propofol, the same anesthetic drug that killed Michael Jackson.

Reporter Tom Jackman’s article quotes a Toronto surgeon who has invented a device that synchronizes the vital signs recordings of a patient’s pulse etc. with video and audio recordings of what is going on in the OR. Teodor P. Grantcharov, a professor of surgery at the University of Toronto, told the Post:

If we don’t know what we’re doing wrong, we’ll never improve. This is what many other ­high-performance industries have been using for decades.

Lawyers for the medical industry complain that such recordings would “invade the privacy” of surgeons, nurses and others in the OR. But if it could educate surgeons on how to avoid errors and save lives, that seems like a minor quibble that could be worked around. Other practical issues also need to be addressed. But many surgical procedures are already video-recorded, because they are done with tiny cameras inside the body in so-called “minimally invasive” techniques.

So why not just save the recording?

In a particularly offensive and harmful misuse of professional authority, a doctor in Detroit was sentenced earlier this month to 45 years in prison for defrauding insurance companies of millions of dollars and poisoning hundreds of patients with chemotherapy treatments when they didn’t even have cancer.

Those weren’t the only crimes committed by Dr. Farid Fata, whose sordid tale was recounted by the Detroit Free Press last week. Rather than helping terminal patients die peacefully, he ordered unnecessary treatments that prolonged their suffering. And rather than treating true cancer patients properly, he withheld appropriate treatments if he made more money doing that than by addressing their need.

He was arrested two years ago and last year he pleaded guilty to fraud, money laundering and conspiracy to pay and receive kickbacks. His federal prison sentence reflects the violation of more than 550 patients’ trust and a more than $17 million haul from fraudulent billings. Federal prosecutors said it was the most egregious case of medical fraud they had ever seen.

“This is a huge, horrific series of criminal acts that were committed by the defendant,” the Free Press reported U.S. District Judge Paul Borman saying before sentencing Fata. The judge said the prominent oncologist “practiced greed and shut down whatever compassion he had.”

According to U.S. Attorney Barbara McQuade, “Chemotherapy, as you know, is poison. Dr. Fata gave poison to people who didn’t even have cancer … to make money.”

One of his victims was Kenneth Paul Loewen, who died last year at 62. He had esophageal cancer for which Fata started chemotherapy before he even healed from surgery. He also was prescribed Neulasta, a strong drug that proved to be unnecessary and made him sicker. Loewen was scheduled for eight radiation treatments one day after Fata was arrested; when he consulted different doctors, they told him he didn’t need radiation.

Testimony in the case included accounts of more than 20 victims who told heartbreaking stories. One healthy person underwent chemotherapy and lost nearly all of his teeth. One patient was diagnosed with lung cancer when he actually had kidney cancer. In some cases, Fata gave patients with no documented iron deficiencies overwhelming amounts of iron; sometimes, he gave patients lower-than-needed doses of chemotherapy drugs.

In court, Fata admitted his crimes. “In some cases,” the Free Press reported, “he gave nearly four times the recommended dosage amount of aggressive cancer drugs; in at least one, a patient was given toxic chemotherapy for five years when the standard treatment was six months, according to former patients and experts who testified in court this week.

‘I misused my talents … because of power and greed. My quest for power is self-destructive,’ Fata told the court before sentencing. He said he is ‘horribly ashamed of my conduct’ and prays for repentance.”

Fata’s criminal behavior was investigated thanks to an office manager-turned-whistleblower. Among the agencies involved in his prosecution were the FBI, IRS and U.S. Department of Health and Human Services.

Although Fata is in jail and his medical license has been revoked, it may be difficult to find mercy for such a loathsome creature. But the survivors of some of his victims managed to do so. Sydney Zaremba’s mother died fewer than four months after Fata started chemotherapy for an early stage tumor in her neck that he overtreated with drugs. Still, Zaremba believed Fata was sincere.

“I actually cried,” she told the paper. “I had felt pity the first time I saw him come in in shackles.”

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