DC Medical Malpractice & Patient Safety Blog

It's been known for a while that Minnesota ranks dead last in the nation in the frequency with which its doctors are disciplined by the state licensing board for harming patients. Now we know why.

A new investigative series by the Minneapolis Star Tribune has some dizzying quotes from state officials who are charged with protecting the public.

For example, when asked why Minnesota so seldom took action against a doctor's license when authorities in another state had already done so, Ruth Martinez, supervisor of the board's complaint review unit, replied:

"What's the point of piling on?"

(Earth to Ms. Martinez: If your state is the only one that hasn't restricted a doctor's license to practice after some horrendous harm to patients, where do you think that doctor is going to end up practicing?)

Perhaps even more revealing are the words of the board's executive director, Robert Leach, who is quoted as follows by the Star Tribune:

"I'm satisfied the public is protected in Minnesota -- very satisfied. And remember that part of public protection is ensuring an adequate supply of health care practitioners to the public. You can't take everybody out of practice just because they had a problem. That's why we're not in the business of removing credentials unless absolutely necessary. We want to be remedial."

When the board declines to act against a doctor, patients have no way of finding out that that doctor might be a problem -- because by law in Minnesota, only public discipline is disclosable. So there's a real Catch 22 for patients trying to make sure they are seeing a top notch doctor.

Kudos to Public Citizen's Health Research Group for its compilation of the discipline statistics state by state, on which the Minneapolis newspaper report was based.

Surgery with the da Vinci robot to remove a cancerous prostate gland is guaranteed to dazzle the patient with the high-tech wizardry of it all. Problem is the outcomes in side effects that can disable men after prostate surgery -- incontinence and sexual dysfunction -- are no better than with conventional surgery. And the robot costs a lot more.

The latest of several studies to reach the same conclusion about the robot being less than it's cracked up to be is published in the Journal of Clinical Oncology. The authors randomly surveyed men who had had either robot or traditional surgery and found that both had high rates of sexual and urinary complications, with no advantage for the robot.

Dr. Michael Barry and his co-authors questioned whether this might be a case of "gizmo idolatry," the tendency in medicine to adopt new and expensive technology before there is real evidence of improved patient outcomes.

We've written before on our patient safety blog about benefits of the robot being oversold. Another critical issue for patients is the experience of the surgeon; the robot takes a lot more practice to get up to speed and reduce complication rates than does ordinary surgery.

As health care journalist blogger Gary Schwitzer notes, the marketing of the surgical robot gets hyped even more by naive news coverage with headlines like:

* Robot doctor – surgery of tomorrow
* Da Vinci puts magical touch on the prostate
* Cancer survivors meet lifesaving surgical robot
* Robotic surgeon’s hands never tremble
* Da Vinci is code for faster recovery

Once again, the take-home for patients is: Don't be dazzled by technology. What you want is a surgeon with a proven track record. Ask pointed questions, and don't assume that machines work better than experienced hands.

Article first published as Robot Surgery of the Prostate: No Evidence of Better Outcomes for Patients on Technorati.

Last week we reported about the shockingly deficient numbers of hospitals that do not conduct autopsies, and, as a result, miss important diagnostic and/or treatment lessons from the results.

In a related and equally disturbing reality, when elderly people die under suspicious circumstances, the reasons often remain unknown because autopsies are seldom performed on people older than 65. The investigative report by ProPublica and PBS Frontline says that no one knows how many of these suspicious deaths have been ascribed to “natural” fatalities, and how many, in fact, were the result of elder abuse or mistreatment. The report quotes a U.S. Department of Justice researcher describing the situation as “a hidden national scandal.”

The system of investigating the cause of suspicious deaths is compromised by insufficient funds, a shortage of trained medical personnel and lack of national standards that, the writers conclude, sometimes have “helped to send innocent people to prison and allowed killers to walk free. When it comes to the elderly, the system errs by omission.”

Specifically, here’s how the system discourages appropriate scrutiny of senior citizen deaths:

• When treating physicians report that a death is natural, coroners and medical examiners almost never investigate. But doctors often get it wrong: Nearly half the doctors in one study failed to identify the correct cause of death for an elderly patient with a brain injury caused by a fall.


• In most states, doctors can write out a death certificate without ever seeing the body.


• Autopsies of seniors have become increasingly rare. People older than 65 represented about 6 in 10 U.S. deaths and 3.5 in 10 autopsied deaths in 1972. A generation later, seniors accounted for 7 in 10 deaths, but fewer than 2 in 10 autopsied deaths. Of the 1.8 million seniors who died in 2008, post-mortem exams were performed on only 36,000.

In another case, the death was attributed to "failure to thrive" due to "dementia." The physician who signed the death certificate hadn't seen the patient for 13 days before he died. She never saw his corpse.

Only when the director of the funeral home that was preparing his body for burial spoke up was it discovered how wrong was the official cause of death. "I'm no CSI expert, but I've been doing this for 25 years, and I've seen a lot of dead people," the funeral home official said. "He was all bruised up and purple, and his ribs were all broken."

He contacted the coroner's office, and an autopsy showed that some kind of violent impact had snapped five ribs. One of the broken bones had pierced the patient’s left lung, flooding his chest with blood. The damage was fatal. His case, too, resulted in criminal prosecution of a nursing home employee.

The reporters identified more than three-dozen cases “in which the alleged neglect, abuse or even murder of seniors eluded authorities. But for the intervention of whistleblowers, concerned relatives and others, the truth about these deaths might never have come to light.”

State laws rely on doctors to separate extraordinary fatalities from routine ones, principally by what they record on death certificates. When a doctor encounters an unusual fatality—a death that might have been caused by homicide, suicide or accident—the physician must report it to the coroner or medical examiner for further investigation.

But death certificates are frequently erroneous or incomplete; one study published last year found that nearly half of 371 Florida death certificates surveyed had errors in them. Doctors without training in forensics often have trouble determining which cases should be referred to a coroner or medical examiner.

Robert Anderson, chief of mortality statistics for the Centers for Disease Control and Prevention, said some doctors don't grasp the significance of death certificates. "I've had instances where the physician just doesn't understand the importance of what they're writing down," he told ProPublica/Frontline. "I'm appalled when I hear that."

Part of the problem is age bias—the death of an older person is accepted much more readily than someone younger—and part of the problem is a lack of resources. Coroners and medical examiners can’t keep up with the number of bodies to be autopsied as it is. Bringing in more seniors exacerbates the problem.

Article first published as Our Nation's Hidden Elderly Deaths Scandal on Technorati.

Last year we covered the outrageous spectacle in west Texas when two nurses who were appalled at a doctor's quackish and dangerous treatments of patients got into criminal trouble when they tried to report him to the state licensing board. Eventually the nurses were vindicated, but not before they lost their jobs. Now the doctor and the criminal authorities who did his bidding in Winkler County have had their comeuppance.

But still one question remains. How could this doctor, Rolando G. Arafiles Jr., have moved from town to town in Texas, inflicting harm on patients and ultimately moving on, and the authorities have taken so long to bring him to earth?

The answer exposes the perennial conflict-of-interest flaw in any professional self-disciplinary system, where the authorities bend over backwards to find some reason to let one of their fellow doctors keep practicing.

It's really not too different from the child sexual abuse scandal at Penn State, where a powerful authority figure, an assistant football coach, could continually inflict grievous harm on small children and his fellow football coaches like Joe Paterno looked the other way out of self-interest.

The Texas story is summed up in this Texas Observer story, which has this telling paragraph:

The more we dug into Arafiles' past, the more a troubling circular pattern emerged. In his wanderings across Texas—from Victoria to Crane to his wilderness years as a contract doctor to, finally, Kermit—Arafiles did the same things over and over, with the same results. He moved into town. He charmed the townsfolk. He began practicing medicine that can be charitably described as questionable; less charitably as dangerous. He peddled fringe treatments of dubious medical value. He tried to turn town authority figures against anyone who challenged him. He turned litigious when challenged. Eventually, he was stopped, but not punished. He left town, he moved on to somewhere else, and he did it all over again. And perhaps he would still be doing it today had two brave nurses in Kermit not put a stop to it.

Propofol is a surgical anesthetic safely used only in a hospital operating room or a comparably equipped medical facility with continuous monitoring of the patient's heart rate and breathing. The idea of using propofol as a sleep aid in a private home, with a doctor occasionally looking in? Unthinkable, before Michael Jackson's death.

Now Dr. Conrad Murray has been convicted of manslaughter for his role in Jackson's death. Murray was supposed to be Jackson's personal doctor, a unique physician with only one patient, who was paid $150,000 a month by Jackson's concert agency to keep the singer healthy.

Medical malpractice occurs when a doctor violates basic patient safety rules and causes harm to a patient. But this was much worse. Dr. Murray was guilty not just of breaking rules, but of a fundamental conflict of interest. Apparently seduced by his large monthly salary, he threw his medical judgment out the window and let Michael Jackson wheedle him into dangerous and ultimately fatal behavior with powerful prescription drugs. If he had "just said no," like any ethical, responsible physician would have done, Jackson presumably would have shopped for some other doctor to supply him drugs. But then Jackson's death would have been on some other hands, and Murray would not be facing prison and loss of his medical license.

While this is a particularly egregious example, conflicts of interest are common in medicine, from unnecessary surgery to advocating drugs, surgical devices and other treatments based on the doctor's relationship with the drug or device manufacturer.

If you believe your care provider has caused serious harm by negligence or malpractice, consult an attorney about legal relief. But that’s using a machete, and sometimes the job requires a butter knife.

If you have a medical procedure – surgery, a screening test – whose outcome is not what you were led to expect, or has made you worse off, there are several ways to lodge complaints. Many of these options recently were spelled out in an article in the Los Angeles Times.

Often, as simple a gesture as writing a letter can have the desired effect, especially if your primary objective is to have your problem acknowledged. If you’ve expressed concern, for example, about enduring, post-procedure pain that hasn’t been addressed, a letter to your doctor seeking the name of another practitioner who can evaluate your symptoms, review the procedure that caused them and suggest how to treat it can be a wake-up call.

As The Times reported, a doctor no longer interested in treating a patient is legally required to notify him or her in writing. The doctor also is obliged to provide references to another physician, and instruct the patient or new provider how to access the records relevant to your treatment.

If you’re trying to get, say, a surgeon, to accept responsibility for an adverse outcome, Dr. Michael Carome, deputy director of the Health Research Group at Public Citizen in Washington, D.C., outlines what to do. “Failure to do so,” he said in The Times, “amounts to patient abandonment, an infraction that would justify an investigation by the state medical board.”

Most state medical boards – the agencies responsible for licensing medical practitioners, monitoring their behavior and imposing discipline – have similar provider requirements. Jennifer Simoes of California’s Medical Board said that a patient should file a complaint if he or she “believes the quality of care that they received was poor or not the standard of care they should have received."

Other state agencies also are appropriate places to report medical mistreatment and misadventure, such as state insurance commissions, which monitor health-care coverage by private insurers. Complain to your insurance company via letter, and copy your state insurance commission.

Medical societies, which range from all-encompassing organizations such as the American Medical Association (AMA) to groups whose membership is limited to certain medical specialties, such as the American Academy of Orthopedic Surgeons (AAOS), are concerned about their reputations. It’s in their best interest to ensure their members are responsive to patient needs and complaints.

To find a state medical society, visit the AMA’s website and click on the “Patients” tab to link to the Medical Societies Directories.

If your problem relates to a surgery or procedure performed in a hospital, file a complaint with that facility’s patient advocate and, if it has one, the ombudsman. Many hospitals are accredited by the Joint Commission, about which we recently wrote. It’s an independent, nonprofit organization that accredits and certifies U.S. health-care organizations and programs.

The Joint Commission also accepts patient complaints, and its Office of Quality Monitoring uses consumer complaints to help assess if a hospital meets its accreditation standards. In The Times’ story, Michael Kulczycki, executive director of the Joint Commission's Ambulatory Care Accreditation Program, said of patient complaints, "We would focus on the continuity of care and appropriate follow-up to the patient."

File complaints at http://www.jointcommission.org. Click on Report a Complaint About a Health Care Organization in the Action Center box on the home page. After reviewing a complaint, the Joint Commission can present your issue to the hospital and ask it to review the doctor’s actions to see if additional action is necessary.

Medicare patients have additional avenues to voice complaints. Contact your regional Medicare Quality Improvement Organization (QIO), which reviews medical care and helps consumers who complain about the quality of their care. Locate a QIO near you at http://www.ahqa.org. Click on QIO Locator.

As always, you have legal rights to safe and responsible medical care. Don’t be reluctant to exercise them if you’re not getting the attention, professional courtesy and resolution you believe you deserve. As Carome said in The Times, "Ultimately another way physicians are held accountable is through litigation."

You can find out more about non-lawsuit options for making a complaint about a doctor, nurse, hospital or other health care provider by reading the Health Care Advocates' Power Kit on Patrick Malone's law firm website. It contains addresses of all the relevant agencies and tips on how to make an effective complaint.

A Kansas neurosurgeon who has been sued at least 16 times for malpractice has been able to enlist one important ally in protecting his privacy: the federal agency that runs the data bank that is supposed to keep track of dangerous doctors so they don't drift from hospital to hospital without their track record becoming known to hospitals who hire them.

The National Practitioner Data Bank (NPDB) is run by the U.S. Health Resources and Services Administration. It has both a public mission and a confidential one. The confidential mission is to allow hospitals to query the data base to obtain the track record of lawsuit payouts and disciplinary actions against doctors so they can make an intelligent decision about whether to bring a doctor onto their staff. The data bank also publishes aggregate data, without individual identifiers, about the doctors it keeps an eye on, so the public can see that it is doing its job.

A reporter for the Kansas City Star used the public data on the NPDB, among other resources, to figure out the lawsuit record of neurosurgeon Robert Tenny.

As shown by newly released documents, Dr. Tenny responded with a flurry of letters to the federal agency, which responded with:

* A threat against the newspaper reporter to punish him with fines for misusing the data bank. (This was later withdrawn.)

* Stern letters to all the 28 hospitals who had queried the data bank about Dr. Tenny to warn them that the information they had obtained on him was confidential and not to be disclosed.

* Shutting down the public access portion of the data bank.

The shutdown of all public data from the data bank has caused the most outcry, with a bunch of journalist organizations demanding that it be reinstated.

Senator Charles Grassley of Iowa released documents this week showing the cozy relationship between Dr. Tenny and the federal agency. You can read the documents by clicking here.

Article first published as Federal Health Agency Takes Side of Multi-Sued Surgeon on Technorati.

The conservative Cato Institute is out with a new study arguing that putting limits on malpractice verdicts could be doubly bad for patients. It could result in both inadequate compensation for victims of malpractice, and could reduce the incentives of malpractice insurance carriers to hit malpracticing doctors with financial penalties to encourage better and safer care.

Here's a quote from the executive summary of the study done by Shirley Svorny, professor of economics at California State University, Northridge:

First, caps on awards may result in some patients not receiving adequate compensation for injuries they suffer as a result of physician negligence. Second, because caps limit physician liability, they can also mute incentives for physicians to reduce the risk of negligent injuries. ...

This paper reviews an existing body of work that shows that medical malpractice awards do track actual damages. Furthermore, this paper provides evidence that medical malpractice insurance carriers use various tools to reduce the risk of patient injury, including experience rating of physicians’ malpractice premiums. High-risk physicians face higher malpractice insurance premiums than their less-risky peers.
In addition, carriers offer other incentives for physicians to reduce the risk of negligent care. ...

If the medical malpractice liability insurance industry does indeed protect consumers, then policies that reduce liability or shield physicians from oversight by carriers may harm consumers. In particular, caps on damages would reduce physicians’ and carriers’ incentives to keep track of and reduce practice risk.

The malpractice liability system is the sole means by which consumers can bring some measure of accountability to health care providers who cause harm to patients. So the new Cato study provides important support for the idea that tinkering with the system, which the medical industry claims would produce more affordable health care, could be exactly the wrong approach for patient safety.

The per-capita U.S. expenditure for health care is twice that of the average industrialized nation, and it’s growing at an undsustainable rate. One reason for that grim reality, says a survey of doctors in the Archives of Internal Medicine, is that a considerable amount of health care is unnecessary. Patients, they say, get too much care.

You can’t read a big-city newspaper without encountering stories about people without adequate medical insurance going without medical care. But folks being overtreated? Not so much.

Nearly half of the of the 440-some respondents believe their own patients receive too much care, and just more than half believe the amount of care is just right. Nearly 3 in 10 said they were practicing more aggressive medicine than they would like.

They gave three primary reasons for their indulgent care:

• concern over malpractice lawsuits (that is, if you overtreat, accusations that your care was wanting lose their punch);


• clinical performance measures (that is, you have to “prove” your worth); and


• inadequate time to spend with patients (that is, if you don’t have time for people, give them tests and treatments to fill the void of communication).

The study concluded that “physicians are open to practicing more conservatively,” and that “physicians believe they are paid to do more and exposed to legal punishment if they do less. Reimbursement systems should encourage longer primarly care physician visits and telephone, email and nursing follow-up, rather than diagnostic intensity.”

In an accompanying commentary to the study, Dr. Calvin Chou sees “a kind of trained helplessness” in the physicians’ responses. They practice aggressively because they have no recourse.

Chou suggests that doctors address the problem through communication and by avoiding burnout.

His reflection mirrors our feelings. As far as avoiding burnout, well, we’re not career counselors, but we do understand the value of communicating with patients. Larding unnecessary tests and treatments into patient care is like giving kids expensive toys and too much sugar when you don’t have time sit down and go over their homework. It’s a replacement for time, and it’s not without side effects.

We also believe the concern about malpractice lawsuits causing defensive medicine is off target. When patients sue for not having been tested enough, it's because a simple test was available that could have headed off the catastrophe which then occurred.

There's no "defensive medicine" in ordering the right test, and it's perverse to suggest that a doctor might only order a valuable test on a patient because of the threat of being sued if he doesn't.

We've written about this topic before on this blog here and here.

The Obama administration's decision to remove from the Web a database of physician discipline and malpractice activity shows how far this country is from giving the public ready access to information on who the most dangerous doctors are.

The National Practitioner Data Bank was set up in 1986 to provide a clearing house for hospitals and state licensing agencies to easily check out a doctor's prior history of malpractice claims and licensing discipline. From the start, the database has shielded from the public the names of the doctors in its data set. Only hospitals and licensing agencies could get the real goods. The idea was that by keeping the database confidential, health care providers would be encouraged to send in reports that would strengthen the quality of the information.

Each year, a public report of filings to the data bank is published, with all identifying information scrubbed out. The idea is to provide statistical trends.

But now there have been a few instances of enterprising journalists who have figured out from clues in the annual reports exactly which practitioners are among the heaviest sued or disciplined. And the data bank people don't like that. Hence the new move to take the whole thing down from any public access, even anonymized.

Three journalism organizations objected when the National Practitioner Data Bank was yanked by the Department of Health and Human Services (HHS) Sept. 1 from digital public access after neurosurgeon Robert Tenny, whose checkered professional history we profiled recently, complained.

As the New York Times reported, the data bank, created in 1986, is reviewed by state medical boards, insurers and hospitals, but recently, the public also could monitor claims against doctors, and their outcomes. As The Times said, the data bank “has provided valuable information for many years to researchers and reporters investigating oversight of doctors, trends in disciplinary actions and malpractice awards.”

In protesting the removal, ProPublica, Investigative Reporters and Editors and the Society of Professional Journalists noted that the Kansas City Star reporter who wrote the story about Tenny’s questionable competence received a letter from HHS warning him of liability for violating federal confidentiality laws. The document reads an awful lot like the kind of threat that chills free speech and the public’s right to know.

“Reporters across the country have used the public use file to write stories that have exposed serious lapses in the oversight of doctors that have put patients at risk,” Charles Ornstein told The Times. He’s president of the Association of Health Care Journalists and a reporter for the investigative outfit ProPublica. “Their stories have led to new legislation, additional levels of transparency in various states, and kept medical boards focused on issues of patient safety.”

A spokesman said the feds had been contacted by the doctor, who was concerned that The Star’s reporter had obtained information beyond that contained within the database’s public use file. He hadn’t.

Still, HHS is reviewing the public use file and might change it to further assure confidentiality before posting it back on the Web. The spokesman said he hoped it would be public again within six months.

Ornstein noted that The Star’s reporter, like many others across the country, had extensively researched courts, state agencies and hospital actions, “allowing them to connect the dots” to individual doctors. The federal database did not reveal identities.

As The Times’ pointed out, other recent notable articles based partly on the database have appeared in The Duluth News Tribune in Minnesota and The St. Louis Post-Dispatch, which published a series last year titled, “Who Protects the Patients?”

The answer to that question, in light of the HHS withdrawal of valuable information from public scrutiny, would have to be “not the government.”

If you're interested in more on this controversy, including the name and address of the government official responsible for the decision, check out this blog piece on the Kansas City Star affair.

Article first published as Database of Dangerous Doctors Gets Yanked from Public Eye on Technorati.

You have to wonder how in the modern world it is possible that a surgeon with 16 prior malpractice lawsuits for medical mistakes was allowed to operate on Maribeth Chase’s brain. She certainly was unaware the checkered history of Dr. Robert Tenny.

Her tortuous trip through medical misadventure and the system that enables it was told in a long story earlier this month in the Kansas City Star. The takeaway message from this shocking event is that a doctor’s history of alleged malpractice is often unknown to patients, and that doctors under such scrutiny often go undisciplined.

Here’s the cautionary tale.

Tenny’s Kansas medical license was in good standing and despite a history of malpractice claim payments, state licensing officials had never taken action against him.

In 2007, when Chase went under Tenny’s knife for the relatively simple procedure of draining blood from her brain, she didn’t know that Tenny’s poor care previously had left one patient dead, others paralyzed and yet others requiring remedial operations. She didn’t know he’d been denied clinical privileges by a local hospital.

Chase awoke from her surgery paralyzed on one side and unable to speak, the victim of a brain injury sustained during the operation. Her condition gradually deteriorated, and she died.

Tenny settled her family’s wrongful death suit for $1,010,000, a sum that brought the amount of malpractice payments made on Tenny’s behalf since the early 1990s to about $3.7 million. But that’s only part of the story.

Tenny denied causing Chase’s injury and continues to practice medicine, never mind that other disciplinary proceedings against him are pending and his Kansas license remains in good standing.

One week after Chase died, her daughter Claire filed a detailed complaint about Tenny with the Kansas medical licensing board. The board did not start formal disciplinary proceedings against Tenny until June 2010. More than a year later, the case is still not scheduled for a hearing.

It gets worse.

The Kansas City Star found 20 other doctors in Kansas and Missouri with clean, unencumbered licenses despite having lengthy histories of malpractice cases. “Some have been sued over patient deaths and serious injuries. Some allegedly operated on the wrong body parts, made incorrect diagnoses, delivered unnecessary treatment or left surgical materials inside their patients,” according to the paper.

None of their records reflects any discipline by state medical licensing boards.

Doctors and insurance companies in Kansas and Missouri must notify the boards about malpractice payments and the information also is collected by a federal agency, the National Practitioner Data Bank. State officials claim to review malpractice payments, but also say that a payout doesn’t necessarily mean there are grounds for disciplinary action. A financial settlement can be a business calculation, “a cost-benefit analysis of whether to go to trial,” one official told The Star.

The American Medical Association has reported that most doctors will be sued for malpractice by the time they retire, but most never face more than one lawsuit.

Doctors who are sued repeatedly and successfully are uncommon. According to The Star, “If you’re a doctor with more than two malpractice payments, you’re in a rare group,” said Russell Aims of the Massachusetts Board of Registration in Medicine.

The Star noted that the advocacy group Public Citizen recently released a nationwide analysis of the Data Bank. It found 14 states with physicians who had at least 10 malpractice payments plus at least one report by a hospital revoking or limiting clinical privileges, but who had not been disciplined by their state. One undisciplined doctor in New Mexico had 26 malpractice cases. One in Indiana had 20.

According to analyst Robert Oshel, formerly of the National Practitioner Data Bank, fewer than 2% of doctors nationwide have accounted for half of the reported $67 billion paid out for malpractice claims in the U.S. since 1990. “Taking that 2% of physicians out of practice would certainly make quite a difference,” Oshel told The Star.

“I wouldn’t necessarily recommend revoking the licenses of all the docs responsible for half of the payments,” Oshel said. “Some who have a single large payment are probably good, safe doctors. But all of them, especially those with multiple payments, would be good candidates for investigation by the licensing boards.”

After her mother’s ordeal, Claire Chase said, “I certainly at this point wouldn’t trust … (a) doctor without checking their history.”

If your state isn’t among the 17 that allow patients to view medical boards websites to find out about doctors’ malpractice histories, it’s time to let your legislators know that this is not acceptable. That this is a matter of life and death.

Check out this graphic display of some of the statistics of hospital hazards. Infections, malpractice, errors due to poor record keeping, medication errors, mistakes due to sleep deprivation of trainee doctors: It's all displayed here, courtesy of a group called Medical Billing and Coding Certification.

When a previously healthy baby dies from a medical error during birth, what should the grieving mother be paid for her suffering?

That is the difficult but necessary calculation that must be made in any malpractice lawsuit where the clock cannot be turned backwards to restore the baby to life, and the only justice the legal system can measure out is money compensation for a tragedy that should have been prevented.

There is no doubt that the emotional injury to the mother and father of the stillborn child can endure for many years, as a recent letter writer in the New York Times, Nancy Mendez-Booth, explained:

My husband and I lost our son in 2008. We arrived at the hospital one evening, me in labor and giddy with anticipation. The news of our baby’s death was delivered to us before I delivered him. The loss is devastating. The silence hurts just as much: the empty crib in the waiting nursery; the friends and co-workers who avoid conversation and eye contact; family afraid to acknowledge our loss.

Another story in the Times talks about how lawyers and judges grope to calculate fair numbers for a stillbirth that should not have happened.

If you follow patient safety news, you've seen this headline before. Why should you care? Apart from retaining an attorney to represent you in the event of medical malpractice, what stands most prominently between medical consumers and the bad behavior of health-care providers is their states' medical boards.

These government agencies are charged with licensing medical practitioners, monitoring their practices and punishing those who make serious mistakes or who commit crimes. Sometimes, this oversight is lacking. We’ve written here before about states that fail to discipline doctors whose own hospitals find their behavior wanting, and about how one state—Washington—took the lead in addressing its board’s deficiencies.

A recent study by consumer watchdog Public Citizen has ranked states’ effectiveness in protecting their citizens from substandard physicians. Thanks primarily to shrinking budgets and also to flagging political will and leadership, residents of many states have a lot to be concerned about.

Most states, the study concludes, do not live up to their obligations to protect patients from doctors who practice substandard medicine.

The report analyzed data from the Federation of State Medical Boards on all disciplinary actions taken against doctors in 2010. It calculated the rate of serious disciplinary actions (revocations and surrenders of licenses, suspensions and probation/restrictions) taken by state medical boards. The rate was slightly lower than that in 2009 and “significantly” lower than the peak for the last 10 years.

Some of the worst states have been consistently poor performers. Nationally, in 2010 state medical boards took 2.97 serious actions per 1,000 physicians – down 3% from the last period and 20% from the peak rate of discipline in 2004 of 3.72 per 1,000 physicians.

Had the national rate of doctor discipline repeated the 2004 peak rate, there would have been 745 additional serious disciplinary actions in 2010 against U.S. physicians. “With a typical doctor having between 500 and 1,000 or more patients in their practice,” the report reads, “the positive impact of this on the large number of patients going to these doctors would be enormous.”

Minnesota was the worst state when it came to disciplining doctors. South Carolina and Wisconsin also have been consistently among the bottom 10 states for each of the last eight rankings. Connecticut has been in the bottom 10 for the last five rankings, and for the third consecutive ranking, Florida, at no. 7, is among the 10 states with the lowest rates of serious disciplinary actions. It’s a highly populated state with a lot of older people who use more health-care services than other demographic segments.

Filling out the bottom 10 are: Massachusetts, Rhode Island, New Hampshire, Utah and Vermont.

States whose rank has declined the most since their peak are: Vermont (8 to 42), Utah (10 to 43), Massachusetts (23 to 47), Montana (8 to 32) and Georgia (15 to 40).

Louisiana ranked highest in disciplining doctors, taking 5.98 serious actions per 1,000 physicians. Five states – Alaska, Arizona, Colorado, Ohio and Oklahoma – have been in the top 10 for all eight rankings. Other states in the top 10 are: Wyoming, North Dakota, New Mexico and Nebraska.

States whose rank has improved the most since their nadir: Hawaii (51 to 11), Delaware (50 to 13), Maine (46 to 19), North Carolina (41 to 16), Washington (42 to 18) and Arkansas (45 to 23). There are 51 rankings because the District of Columbia was also included (no. 37).

“One reason for medical boards’ declining rate of discipline is likely tighter state budgets,” said Dr. Sidney Wolfe, director of Public Citizen’s Health Research Group. “The ability of certain states to rapidly increase or decrease their rankings … can only be due to changes in practices at the board level. The prevalence of physicians eligible for discipline cannot possibly change so rapidly.”

Most boards do not perform satisfactorily in disciplining physicians. Public Citizen called for legislative action and public pressure to kick them into action and, by extension, improve patient protection.

The organization said medical boards are more likely to address physician misbehavior if:

• they receive adequate funding (all money from license fees going to fund board activities instead of into the state’s general fund);


• they have adequate staffing;


• they engage in proactive investigations, rather than only reacting to complaints;


• they use all available/reliable data from other sources such as Medicare and Medicaid sanctions, hospital sanctions and malpractice payouts;


• they have excellent leadership;


• they have independence from state medical societies;


• they are independent from other state agencies; and


• a reasonable legal framework exists for disciplining doctors (the “preponderance of the evidence” rather than “beyond reasonable doubt” or “clear and convincing evidence” as the legal standard for discipline).

Never underestimate the doggedness of an insurance company in guarding its own treasury from malpractice claimants. Even when the patient wins, you can often count on a multi-year battle in the appeals courts to collect what you are owed.

For our firm's client Sharon Burke, an eleven-year odyssey has finally ended in her favor, after a second trip to the District of Columbia Court of Appeals.

Ms. Burke's malpractice case concerned a misreading of her MRI scan that caused a fateful delay in finding a problem in the arteries feeding blood to her brain. The delay led to a disabling stroke for her. Read more details here.

On the first go-round, the Court of Appeals denied the radiologists' motion for a new trial. You can read about that decision on our firm's website about verdicts, here.

But that decision came three years after we won the verdict at trial. So on Ms. Burke's behalf, we wanted the interest that had accrued on the verdict during that 3-year span.

That started round 2 of the appellate war. We calculated the interest owed based on the fluctuating interest rate provided by the District of Columbia statute. The rate varies with the rate of interest published by the Internal Revenue Service for underpayment of taxes, which in turn is pegged to the interest rate on U.S. Treasury bonds. That's a fair system, because it gives the winning party a rough approximation of the market interest rate on the money owed while the defendant holds onto the money during the appeal.

Between our verdict in March 2004 until the final judgment in March 2007, the rate had climbed from 3 percent to 6 percent. So we asked for interest for each quarter based on the interest rate then in effect. That came to a little under $500,000.

The insurance company really liked the 3 percent rate that was in effect when the verdict first came down. That saved it a little under $200,000 from what we calculated it owed. So it asked the trial judge to order the lower interest rate. To our surprise, the trial judge granted the insurer's request. The judge had "discretion" to change the interest rate downward, but we appealed her decision, since we said there was no reason to penalize Ms. Burke with a sub-market interest rate on the money the radiologists' insurer owed to her.

This week, four years later, the District of Columbia Court of Appeals agreed with our argument. It said the trial judge had abused her discretion in lowering the interest. The court noted the important public policy behind "post-judgment" interest. The idea is to "make the plaintiff whole" -- that is, when you win a lawsuit and the defendant owes you money, if the defendant wants to hold onto the money while it appeals, in fairness, you should get something close to what the market would have paid by way of interest.

You can read the decision on our website.

Now Sharon Burke will finally get paid everything she is owed. It won't restore her brain health, but it will help the dignity and quality of her life.

It was supposed to be a routine hernia operation. But then the surgeon ordered the anesthesiologist to give the patient a blood-thinning drug. The anesthesiologist, who wasn't familiar with the drug, injected the drug directly into the patient's i.v. line, as soon as the surgeon ordered it. That was a double mistake, and it started a cascade of consequences for the patient, who later became our law firm's client.

The legal issue in the medical malpractice lawsuit we filed was: Who was responsible for the misuse of the drug? Just the anesthesiologist, who should have known better than to inject the drug intravenously, and so soon? Or the surgeon too?

That issue was finally resolved this week in our client's favor. Here is what happened.

The too-quick use of the drug Lovenox, which was intended to prevent blood clots in the legs after the surgery, caused bleeding in the spinal cord, with permanent nerve damage for our client. The use of the drug was against the "black box warning" on the drug's official labeling, which said doctors should wait after a spinal anesthetic at least several hours, and also against the official policy of the Washington, DC hospital where the surgery happened.

The anesthesiologist settled out of court on the eve of trial and turned over to the injured patient the anesthesiologist's cross-claim for "contribution" against the surgeon.

The trial court then ruled, after a hard-fought trial, that the surgeon was jointly responsible with the anesthesiologist for the injury.

After a long battle, the District of Columbia Court of Appeals affirmed the trial court's ruling in all respects. You can read the decision on our firm's website here.

Want to go to medical school? How well do you listen? How well do you work in a team? Those issues are now being tested by the nation's newest medical school in screening applicants.

This is not just a matter of touchy-feely. Preventable deaths and malpractice have been proven to happen all too often when arrogance trumps smooth teamwork and easy communication among members of medical teams.

But testing communication skills is not so easy. So in the new testing regime created by the leaders of Virginia Tech Carilion medical school, medical school applicants are given a series of quick, speed-dating type interviews where they have to show how they respond to real world scenarios that require good communication and teamwork skills.

Gardiner Harris has a fascinating account in the New York Times about the new program. A key quote from the article brings home its importance:

A pleasant bedside manner and an attentive ear have always been desirable traits in doctors, of course, but two trends have led school administrators to make the hunt for these qualities a priority. The first is a growing catalog of studies that pin the blame for an appalling share of preventable deaths on poor communication among doctors, patients and nurses that often results because some doctors, while technically competent, are socially inept.

The second and related trend is that medicine is evolving from an individual to a team sport. Solo medical practices are disappearing. In their place, large health systems — encouraged by new government policies — are creating teams to provide care coordinated across disciplines. The strength of such teams often has more to do with communication than the technical competence of any one member.

Most medical malpractice lawsuits are not settled or decided by trial. They are abandoned by the patients and family members who brought them. A study in the medical journal Health Affairs reviewed the outcome of 3,695 malpractice claims filed in Massachusetts between 2006 and 2010, The Boston Globe reports.

Nearly 60% of the lawsuits filed against hospitals, doctors and other medical providers were abandoned. Twenty-six percent were settled, and a mere 15% went to trial. The journal concluded that "claims are not dropped because a large percentage of them are frivolous, but for other reasons."

According to the malpractice attorneys interviewed by researchers, plaintiffs most often drop lawsuits because, after learning more about the medical procedure that went wrong, they conclude their case is weaker than they imagined.

The study recommends that that hospitals and insurance companies adopt policies to encourage lawyers on both sides to exchange information more quickly and discuss cases more openly. "Such reforms would greatly reduce both the frequency and the duration of cases that are dropped," read the journal report, "and thus the cost of malpractice litigation."

Another thing that might help, from this lawyer's experience, is for hospitals to talk more candidly with patients and their families when the patient winds up worse off for the hospital experience. Many patients come to legal advocates like me to investigate a potential malpractice suit because they are first bewildered at what happened, then suspicious when the doctors and nurses won't talk to them. We have to do extensive investigations to get to the bottom of events, and sometimes -- although not nearly as often as seemed to happen with the lawsuits in this study -- we discover that the care was acceptable but it was just a tragic outcome.

One person, two scenarios: the first almost effortless, the second chock-full of hassles. And with those hassles comes the danger of a malpractice event and a preventable patient injury. Consider:

Our Patient -- we'll call her OP -- had an appointment for a chest X-ray in the morning, and an appointment for a blood draw in the afternoon. The radiologist was on time, the procedure took mere minutes and it required only a small co-pay. Can a medical visit get any better?

Yes! When OP asked for a copy of the image for her own records, the office manager offered to put it online via an IT service that manages their office records on the cloud--an Internet data storage system accessed by log-in, enabling patients and doctors to share information.

Now for Scenario No. 2: After Our Patient had the blood drawn at the doctor's office, she was told to wait three days before calling for the lab results. When she asked that copies of the whole blood panel be sent to her for her records, she was told there would a processing charge unless she wished to make an appointment to make her own copies at the office. There was no option for online file sharing.

Lots of patients at that point would say to heck with it and would skip getting the lab results, with possible negative consequences for their health if the results showed something abnormal and the test result slipped through the cracks at the office of the ordering doctor -- a frequent problem with offices deluged with paper test results.

Last autumn, we reported about a study by the Institute of Medicine (IOM) to identify best policies and practices for improving health-care safety and reducing malpractice when using electronic health records. Its focus is the prevention of health IT-related errors, rapid reporting of patient safety concerns and methods to promote safety-enhancing features of electronic health records. Although the study results and recommendations are several months away, electronic record-keeping remains front and center.

Despite a vigorous campaign by the federal government and some large health-care providers to move the nation’s patient records from the Jurassic Age of paper to the Electronic Age of digital communication, most physicians and clinics have been slow to embrace the transfer. Apart from radiology, which the Los Angeles Times notes leads the digital charge, there are two overriding reasons for the health-care establishments to lag other industries in digital record-keeping.

The concern for patient privacy resonates with many people, especially in light of what seem to be daily disclosures of hackers compromising the customer data base of a bank, a social media platform, a large retailer… Both health-care providers and patients rightfully wonder about privacy and security.

The second impediment to efficiently computerizing medical records reflects the labyrinthian nature of codifying a wide variety of medical specialties and medical office practices to be organized by a myriad of IT companies vying for the business. According to MarketWatch, “Critics say the architects of the plan left out a means of ensuring that the systems in the emerging patchwork of proprietary software will be able talk to each other. On top of that, the very act of digitizing millions of patient histories represents a technological leap for the legions of doctors who remain attached to paper record-keeping.”

Because health care represents one-sixth of federal spending, and because, according to federal estimates, 80% of doctors and hospitals had yet to embrace even rudimentary measures to computerize records, the federal economic stimulus in 2009 included incentives for doctors to digitize their records. It’s hardly been a resounding success, and one physician’s experience might indicate why: His practice purchased a system from a small vendor for $400,00 ($80,000 per doctor), but looks to recover only one-sixth of the cost from the feds. “There’s no uniform code by which the medical community is operating, and no widely used software standard like Microsoft’s Windows being used,” MarketWatch reported.

So it might be a while before patients and their caregivers can access all of their records with efficiency and security. If you are considering keeping and transferring your records in electronic form, here, according to the Los Angeles Times, is what you need to ask to ensure they’re secure:

• *Is the IT company managing the records legitimate? Find out from the practitioner or facility that recommended it whether they have a "business associate agreement" with the vendor. This is a contract required by the federal Health Insurance Portability and Accountability Act (HIPAA), which spells out when health-care providers may share protected health information with other people or companies. The details of how that information is secured are established in a business associate agreement. Such a contract signals that the company that stores your medical information is HIPAA-compliant and that your privacy is being protected.


• *Will your data will be stored in the United States? Will all information will be encrypted before being sent across the network? “Yes” is the only acceptable answer to both.


• *Is contact information available on the vendor’s website? If the company’s site does not include staff member names, a company address and telephone number, decline its services.


• *What happens if something goes wrong? If the company goes bankrupt or is acquired by another, what happens to your data and who owns it? If the contingency isn’t clear or treats your records like a tradable commodity, decline its services.

Article first published as The Too-Slow Evolution of Electronic Medical Records on Technorati.

A favorite whipping boy of the medical industrial complex is the alleged wave of lawsuits that need to be squashed for freedom to reign once more in America. Now, a new documentary airing on HBO exposes the truth behind so-called "tort reform."

The documentary is called "Hot Coffee" -- after the infamous case of spilled McDonald's coffee that turns out to have a lot more merit, and a far more serious injury, than the Chamber of Commerce would like the public to realize.

The documentary airs Monday, June 27th at 9 pm EDT on HBO. It's done by trial lawyer Susan Saladoff, former DC resident who now practices in Oregon. Check it out.

Here's a good preview piece in the New York Times.

Physician groups and health insurers often blame excessive malpractice settlements for the high rates that doctors have to pay to obtain malpractice liability insurance. But a recent analysis indicates that regional differences may play an even more significant role in determining malpractice insurance rates.

According to a recent analysis by Excellus BlueCross BlueShield, a BC/BS carrier in upstate New York, medical malpractice premiums for physicians in different regions of the state can vary as much as five times the amount paid, and the difference can exceed $100,000 for some specialties. In particular, malpractice rates for upstate New York physicians are considerably less than those in downstate regions and are similar to the amounts paid by physicians in states that report the lowest premium rates in the country.

The analysis, entitled “The Facts About New York State Medical Malpractice Coverage Premiums," found that the standard malpractice premium for an internist in Buffalo, Syracuse, Binghamton and Utica ($9,874) is significantly lower than for an internist practicing on Long Island ($35,028). A general surgeon's premium rate in those same upstate areas is $32,663, contrasted with a Long Island general surgeon's rate of $115,872, while obstetricians/gynecologists in many upstate regions may pay $52,650, whereas their Long Island counterparts pay a standard rate of $186,772.

The data presented in the fact sheet for New York state physicians is based on current standard premium rates of the Medical Liability Mutual Insurance Co., which insures most physicians in the state.

Source: The Ithaca Journal

You can obtain a free copy of “The Facts About New York State Medical Malpractice Coverage Premiums” here.

It’s bad enough when a treatment goes so wrong a patient has to sue to get financial compensation for the physician’s malpractice, but what if the physician has no liability insurance and the judgment can’t be collected? For Georgia residents, this no longer poses a problem, because under a new law that may be the first of its kind in the U.S., physicians must disclose whether or not they are covered by medical liability insurance.

According to the law, which was signed by Georgia Governor Nathan Deal last month, physicians are required to inform the Georgia Composite Medical Board if they are insured. The board will make the information available on its website as part of a physician's public profile. In addition, doctors also must disclose whether they are covered by insurance when asked by patients. If the physician declines to inform his patients, the result could be disciplinary action by the board.

"The patient has a right to know if a physician carries malpractice insurance," says Rep. Ben Watson, MD, who sponsored the measure. "This is part of how a patient can judge a physician."

The Medical Association of Georgia, which represents physicians in Georgia, supported the bill. The vast majority of Georgia’s nearly 18,000 physicians have liability insurance.

The Georgia law may be the first of its kind to add "insurance coverage" to the list of public disclosures required of physicians. Last month, the Illinois Assembly passed a similar bill, but it has yet to be signed into law.

Source: American Medical News

Doctors who aren't directly involved in patient safety issues often sail through their careers without much awareness of how commonly errors and malpractice infect hospitals, clinics and medical offices. Then they become patients, and suddenly their world is turned upside down.

Itzhak Brook, M.D., has been a doctor for more than 40 years. He is an infectious disease pediatrician at Georgetown University Hospital in Washington, D.C. Then he got throat cancer a few years ago.

His cancer was successfully removed, but then it came back. He had to have his voice box -- the larynx -- removed, and the throat was reconstructed.

It was then that the errors began to pile up, or, as he puts it, “mistakes occurred at all levels of my care.”

Dr. Brook recorded these incidents before, during and after his surgery:

* Surgeons had failed to timely diagnose the recurrence of his cancer. It was finally observed by an astute resident via a basic procedure that allowed visualization of the pyriform sinus, which was where his tumor was located. Had his experienced surgeons done the same basic procedure, his tumor most likely would have been observed and removed much earlier.

* Surgeons mistakenly removed scar tissue instead of the cancerous lesion. A week after the surgery, pathological studies revealed that the tumor was actually farther down in the pyriform sinus. This error could have been avoided if frozen sections of the lesion itself, not just its margins, had been analyzed in the operating room. As a result, he had to undergo additional surgery to remove the tumor, which was more difficult because of swelling and changes to the surgical site due to the original operation.

* While still in the ICU one day after surgery, he experienced an airway obstruction and couldn’t find his call button, which had fallen on the floor. Though he was only a few feet away from the nurses station, he was unable to get the attention of staff but was ignored. (He couldn’t call out because he no longer had a larynx).

* In what was probably the most serious error, he was fed soft food by mouth far too early, which, following laryngectomy with flap reconstruction, can lead to failure of integration by the flap. It took 16 hours before the feeding was stopped, and only after Dr. Brook brought this to the attention of a senior surgeon. The error occurred because the order to start feeding was in fact intended for another patient.

In addition, nurses and other staff:

Did not clean or wash their hands.

Did not use gloves.

Took oral temperature without placing the thermometer in a plastic sheath.

Used an inappropriately sized blood pressure cuff (which produced alarming readings).

Attempted to administer medications by mouth intended to be given by nasogastric tube.

Dissolved pills in hot water and fed them through the feeding tube (thus irritating the esophagus).

Delivered an incorrect dose of a medication.

Connected a suction machine directly to the port in the wall without a bottle of water.

Forgot to rinse the hydrogen peroxide used for cleaning the tracheal breathing tube (causing
severe irritation).

Did not write down verbal orders.

Fortunately, despite all these errors, Dr. Brook did not suffer any long-term consequences. Still, his experience made him realize that a hospital is the least safe place for patients, and that all hospitalized patients should have a dedicated patient advocate such as a family member or a friend at their bedside.

Dr. Brook writes extensively about his experiences as a throat cancer patient on his blog. He also lectures to medical groups to try to get doctors and nurses to understand the human costs of the epidemic of medical error.

You can also read Dr. Brook’s account of his hospital experiences in the Journal of Participatory Medicine.

While evidence continues to mount of the high cost of preventable medical errors, and the failure of safety efforts to put much of a dent in the rising tide of injuries from health care, here's a curious new statistic: Malpractice lawsuit payments are at their lowest level in 20 years.

That figure comes from Public Citizen, which every year scours the official National Practitioner Data Bank for data on total payments. According to Public Citizen, the cumulative total of payouts in 2010 across the United States was its lowest since the data bank started in 1990, adjusted for inflation.

Public Citizen says the numbers give the lie to efforts by some Congressmen to blame rising health care costs on malpractice victims who sue for accountability. A bill which has advanced in the House of Representatives, the Help Efficient, Accessible, Low-cost, Timely Healthcare Act of 2011 (H.R. 5), would put an artificial "cap" on malpractice lawsuit damages (other than tangible items like lost wages and medical bills) of $250,000 even for the most catastrophic injuries and death. The cap would also apply to cases against drug and medical device manufacturers for defective products.

The decline in dollar payouts to malpractice victims may reflect the efforts of lawmakers in many states to make malpractice lawsuits more difficult and expensive to bring by putting lids on damages, shortening the time for filing a lawsuit, and other tactics. That legislative strategy is the same one behind the H.R. 5 bill in Congress, which would make "tort reform" uniform and applicable in every state.

“There is a crisis in medical malpractice, not lawsuits,” said Taylor Lincoln, research director for Public Citizen’s Congress Watch division and the author of the new study. “Trying to stop people from being compensated for catastrophic injuries is not the answer. We should instead concentrate on making hospitals safer and disciplining doctors who repeatedly commit malpractice.”

The Public Citizen analysis also found that:

• Between 2000 and 2010, health care spending rose 90 percent while medical malpractice payments fell 11.9 percent;

• Malpractice payments in 2010 amounted to only 0.13 percent of 1 percent of national health costs, the lowest percentage on record; and

• Total costs for malpractice litigation fell in 2009 to just 0.40 of 1 percent of health costs, the lowest level since the databank’s inception.

Meantime, medical journals continue to report that preventable injuries happen commonly in hospitals and other health care facilities. A recent study of North Carolina hospitals, published in the prestigious New England Journal of Medicine, found that one in four hospital admissions included harm to the patient due to medical care, and two out of three of those harms were judged to be preventable.

The researchers wrote: "[W]e found that harms remain common, with little evidence of widespread improvement."

Article first published as Malpractice Lawsuits Are Down While Injuries Are Up on Technorati.

Ask any nurse for stories about dealing with doctors, and you will hear that American hospitals and other health care institutions have a long way to go before civility and teamwork rule the day. Why is that a malpractice prevention issue?

Nurses have a vital role as a check and balance to catch mistakes and oversights by doctors that could lead to tragic malpractice injuries. But a typical example, when a nurse quietly questions a doctor's order for a medication that the nurse doesn't think appropriate, is to hear the doctor say: "When you get an MD after your name, you can question what I order."

Stamping out the attitude of doctor superiority is important for everyone in the health care system, especially patients. That message came through loud and clear in letters to the editor of the New York Times responding to a nurse's frustrated column about being humiliated one too many times by a doctor in front of a patient.

The CEO of one of New York City's top hospitals: Herbert Pardes of New York-Presbyterian Hospital, wrote:

The best doctors I know consider themselves part of a team and use the team’s knowledge to the advantage of the patient. They think “patient first” and draw on the experience of nurses, laboratory technicians and other medical professionals. The patient receives the doctor’s best treatment advice based on the collective knowledge of the team.

Doctors who accept only their own counsel are putting ego before medicine, possibly at the expense of the patient. Hospital care should be based on collective wisdom to reach the best treatment plan. Nurses, doctors and all highly trained medical professionals each have a role to play, each of which is invaluable to the patient.

And another letter writer, Donna Nickitas, a nursing professor at Hunter College, said:

As a nurse, I would not want my family member or my nursing students in a hospital where physicians demean and insult their nurse colleagues, thus hampering their ability to care. A culture of civility and a climate of respect and dignity not only win the day but also ensure patient safety and quality care.

So when you're in a hospital and you see doctors acting arrogantly, know that it's not just a personality quirk, but something that could be bad for the health of any patient, including you and your loved ones.

It's a new story but an old story too: For-profit spine surgery centers recruit patients with promises of relieving their long-standing back pain with tiny cuts and high-tech lasers. Then comes a string of malpractice lawsuits from patients crippled by the surgery. Then the journalists mount the evidence: Big profits, many operations, little scrutiny from state or federal health regulators, and no evidence the high-tech stuff even works.

Bloomberg News just published this expose of malpractice issues at the Laser Spine Institute, which has surgery centers in Philadelphia, Tampa, Scottsdale and Oklahoma City.

One problem for patients is that there's no FDA for surgeons. Unlike drug companies which have to show scientific evidence that their products work, surgeons can make promises to patients about minimally invasive surgery and show testimonials from satisfied customers that make it all sound irresistible, even with no real scientific proof that their high-tech stuff works any better than what other surgeons offer.

The laser part of the surgery merely substitutes the laser beam for what other surgeons would accomplish with an electrical current. In both cases, the idea is to burn off sensitive nerve endings between the vertebrae. The problem is that no matter what device does the burning, the pain relief tends to be short-lived as the nerve endings grow back.

The other part of the typical surgery at Laser Spine Institute involves removing some of the bones surrounding the spinal cord when those bones have become overgrown and the spinal canal is narrowed and painful. That is standard back surgery. It's different at the Laser Spine Institute only in the doctors operating through smaller holes and viewing the operative site through telescopes (endoscopes) rather than direct vision.

Since the surgery is done at a same-day surgery center, patients are sent home or to hotel rooms afterward, and that can be a huge issue if something goes awry. For example, it's not uncommon that patients start bleeding near the spinal cord after back surgery. This can create a collection of blood near the spine that compresses the nerves and can cause paralysis and damage to nerves controlling bowel and bladder function -- known as cauda equina syndrome.

The Bloomberg article also documents malpractice issues with other for-profit spine surgery outfits that compete with Laser Spine for patients. Those include the Bonati Institute in Hudson, Florida and North American Spine of Dallas.

Another big problem with the business model of these spine outfits, which are competing for an estimated $73 billion that Americans spend annually seeking relief from back pain, is that surgeons are offered a "piece of the action" as investors in the profitability of the surgery center. That means that the more patients they send to surgery, and the bigger and more elaborate the operations they do, the more profit they make.

Sure enough, University of Michigan researchers found that surgeons increased their recommendations for back surgery by 87 percent after they became part owners of surgery centers. Their findings were published in the journal Health Affairs last year.

As reported in more detail on our child safety blog, New York state has created a new fund to pay medical expenses for infants who suffer brain and nerve damage because of medical malpractice and other medical errors.

The fund, which is due to go into effect on Oct. 1, 2011, allows medical costs to be provided on a yearly basis to injured children. Parents can still pursue medical malpractice actions on the basis of emotional distress and other harms.

Fortunately for the babies, a part of the proposal that would have put an arbitrary and low ceiling of $250,000 on the amount recoverable for intangible injuries was dropped from the final legislation.

Source: New York Law Journal

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."

Oh.

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.

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).
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Source: Erie Times-News and WICU-12

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

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.

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.

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.

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.

State medical boards responsible for disciplining physicians have failed to do so in more than half of cases where hospitals have revoked or restricted a physician’s privileges.

A study conducted by Public Citizen, a non-profit consumer advocacy group, found that 63% of the doctors whose hospital privileges were restricted or revoked were not disciplined by the state's Board of Medicine, and 32 states didn’t even reprimand more than half of the offending physicians.

"Either state medical boards are receiving this disturbing information from hospitals but not acting upon it or, much less likely, they are not receiving the information at all,” says study overseer Dr. Sidney Wolfe, adding that either scenario is alarming.

The report was based on data from the National Practitioner Data Bank from 1990 to 2009. It examined the number of doctors whose hospitals barred — or put restrictions on — their practicing medicine there. Of the 10,672 U.S. physicians who faced hospital sanctions, 55 percent escaped any licensing action or discipline from their state medical board.

"In 20 years, only 10,000 doctors have ever been disciplined — which is an indictment of hospitals," Wolfe says. "But once hospitals take action, it's pretty serious. Of those, 5,800 were thrown off the staff of the hospital."

Yet in many cases, the state medical board did not discipline the doctor any further, and as a result, many are still practicing medicine, he says.

"It's a real indictment of medical boards," Wolfe says, because these cases are the most egregious and already have been investigated by the hospital. "It's like handing you a case on a silver platter. The investigation has been done."

State medical boards and hospital peer review are considered two of the three "legs" of the three-legged stool of patient safety and doctor discipline. The third leg that holds doctors and hospitals accountable is the availability of medical malpractice lawsuits for injured patients.

But that leg is under continual threat from medical industry advocates who complain, without good evidence, that the industry could do a better job of policing itself if state laws could make it harder for advocates for injured patients -- trial lawyers -- to file lawsuits.

Other Public Citizen report highlights include:

Of the 5,887 physicians who the state medical boards failed to discipline — many of whom also had a history of medical malpractice payments — 1,119 were disciplined for incompetence, negligence or malpractice; 605 were disciplined for substandard care; and 220 were identified as an immediate threat to health or safety.

Other categories of serious deviations of physician behavior and/or performance that resulted in the loss of hospital privileges included sexual misconduct; inability to practice safely; fraud including insurance fraud, fraud obtaining a license and fraud against health care programs; and narcotics violations. A total of 2,071 physicians were disciplined by their hospital employers for one or more of these violations.

3,218 physicians in the study lost their clinical privileges permanently, and an additional 389 physicians lost privileges for more than one year.

Source: The Los Angeles Times

You can read the complete study here.

Backers of a Nevada bill that would give plaintiffs a 45-day “time cushion” to obtain and file an expert witness affidavit call it an issue of fairness. At a hearing before the state’s Assembly Judiciary Committee, witnesses noted that in some cases, affidavits become separated from lawsuits or cannot be obtained within the 1-year statute of limitations.

Opponents of the bill say that if the time cushion became law, it would erode provisions of a 2004 initiative passed by voters to cap malpractice awards and reduce so-called frivolous litigation. They maintain that 1-year statute of limitations allows enough time for those with meritorious claims to find an attorney, secure medical records and a medical expert affidavit..

However, the Committee heard differently from witness Sandra Payan, who testified that her mother’s death following a hernia operation was later determined to have been caused by a punctured colon which then ruptured. After more than 2 years, the malpractice suit filed by the family was dismissed just weeks before trial after defense attorneys successfully argued the affidavit was not filed along with the suit but instead was filed separately a few days later.

After Payan’s testimony, one member of the Assembly agreed that dismissing a suit because an affidavit may have gotten lost in a clerical error was a harsh penalty and said the 45-day window would be “beneficial to both parties.”

Source: Businessweek

“Alarm fatigue” caused by the rising use of monitors is distracting and numbing hospital personnel with deadly results, the Boston Globe reports.

An investigation by the newspaper reveals that more than 200 hospital patient deaths in the U.S. between January 2005 and June 2010 are linked to problems with alarms on patient monitors that track heart function, breathing, and other vital signs.

Typically, the problem isn’t the equipment, but rather the failure by medical personnel to react with urgency or notice the alarm. As monitor use continues to increase, the audible beeps from the machines can become so relentless that nurses become desensitized. How relentless? At a 15-bed unit at Johns Hopkins Hospital in Baltimore, staff documented an average of 942 alarms per day — about 1 critical alarm every 90 seconds.

Nurses said the number of alarms can be so overwhelming that they turn into background noise — although a dozen nurses interviewed by the Globe said they have never seen a nurse purposely ignore an alarm. The problem, says one nurse, is that “everyone who walks in the door gets a monitor. We have 17 [types of] alarms that can go off at any time. They all have different pitches and different sounds. You hear alarms all the time. It becomes . . . background.’’

In addition, the devices themselves have flaws that contribute to alarm fatigue. For example, monitors can be so sensitive that alarms go off when patients sit up, turn over or cough. Some studies have found more than 85 percent of alarms are false (i.e. they go off when the patient isn't in danger. Over time this can make nurses less and less likely to respond urgently to the sound.

In many cases, of course, nurses miss alarms warning of problems that aren’t life-threatening. But even the highest-level crisis alarms, which are typically faster and higher-pitched, also may go unheeded.

In one extreme case, a cardiac monitor blared 19 dangerous arrhythmia alarms for nearly 2 hours before staff silenced the alarms temporarily without treating the patient, who died. In other instances, staff have misprogrammed complicated monitors or forgotten to turn them on.

Hospitals that have experienced alarm-related deaths have aggressively addressed the issue, hiring nurses and technicians whose sole job is to monitor the monitors and modifying monitors to make them less sensitive to unimportant changes and less prone to false alarms. But overall, hospitals and the medical device industry have yet to seriously tackle the issue.

Source: The Boston Globe

If you wanted to lobby for a law that wipes out the rights of patients to hold hospitals, drug manufacturers and doctors accountable when they hurt people by carelessness and wrongful conduct, what would you call your group?

"Protect Patients Now!" It has a nice ring, doesn't it?

However, the people behind this campaign, which was launched in Washington to advocate for the H.R. 5 "tort reform" bill in Congress, are anything but patient advocates.

The campaign comes from a group called the Health Coalition on Liability and Access. A list of the coalition's members can be found on its website, and includes:

* Major medical malpractice insurance carriers (Pro Assurance, The Doctors' Company, Medical Protective);

* Doctors' lobbying organizations, especially those who have been active in political efforts to curb lawsuits (the AMA, plus neurosurgeons' and orthopedic surgeons' societies and others);

* Long-time "players" in the legal "reform" space, particularly the American Tort Reform Association, which got much of its seed money from the tobacco industry.

The coalition calls itself a "grassroots advocacy organization" but conspicuously absent from its membership are any of the consumer groups — Consumers Union and Public Citizen, to name two — who have been pushing the medical industry to make health care safer (and thereby solve its lawsuit problem).

H.R. 5 was sent to the floor of the U.S. House of Representatives this week by a party line vote of the House Judiciary Committee. The bill gives special breaks in the form of damage "caps" and other special treatment not only to all physicians, nurses and other individual caregivers, but also to drug manufacturers, nursing homes and hospitals.

The idea of H.R. 5 is that by making the medical industry less legally accountable for the harms it causes, Congress will free up the industry to become safer and provide cheaper care to more Americans.

I did not make that up.

The American Association for Justice (of which I am a member) has an online petition for concerned consumers to send a message to their Member of Congress about this bill.

Article first published as George Orwell Comes to Washington: The "Protect Patients Now" Lobbying Group on Technorati.

Recently passed legislation in the Pennsylvania General Assembly that would prohibit malpractice plaintiffs from using apologies in lawsuits could hurt victims of malpractice seeking restitution in the courts. If the bill becomes law, it would make inadmissible “any benevolent gesture or admission of fault made prior to the commencement of a medical professional liability action” concerning an “unexpected outcome.”

Republican State Rep. Keith Gillespie, the main sponsor of the bill, says words like “I’m sorry” can come back to haunt medical professionals when used to allege that a physician has admitted fault. Gillespie maintains that the bill does nothing to prevent lawsuits from being filed, and simply allows medical professionals in hospitals and nursing homes to have “frank, open conversation” after a bad outcome. Similar “apology” legislation has already been passed in 35 other states.

But Harrisburg attorney Scott Cooper, vice president of the trial lawyers organization Pennsylvania Association for Justice, warns that the legislation could take away power from people pursuing a legitimate claim in court. "It's the devil in the details," Cooper said.

For example, it's one thing to bar the patient from using a mere apology by the doctor. But what if the doctor admits exactly what went wrong? And what if the patient has no other way to prove what happened other than what the doctor said in the apology?

The legislation is part of an overall tort reform package pushed by Pennsylvania Gov. Tom Corbett, who also is proposing a cap on non-economic damages in malpractice suits.

Source: York Daily Record

Anyone who believes it's inevitable that some babies will get injured during childbirth may have a change of heart after reading how a New York City hospital dramatically cut staff errors and reduced medical malpractice payouts by 99%.

In a report published in the American Journal of Obstetrics & Gynecology, the head of the obstetrics team at New York Weill Cornell Medical Center describes how the safety initiatives they introduced reduced avoidable deaths and serious injuries to zero in 2008-2009, down from five in 2000.

“Any hospital could do it — it's not about money, it's about changing the culture to make it safer to deliver babies,” says team leader Dr. Amos Grunebaum. The new measures introduced by the team reduced errors and helped ward off lawsuits by clearly documenting everything doctors did right in cases where a bad outcome was not their fault.

Consumer advocates are hailing the report as a breakthrough in patient safety and a better way to curb malpractice costs than so-called tort reform.

Patient safety advocates like me, who represent patients in medical malpractice lawsuits, have said over and over that we would like to see lawyers get less business by making the medical system safer for patients.

The reforms at Weill Cornell resulted in annual medical malpractice payouts dropping from an average of $28 million from 2003 to 2006 to $2.6 million a year from 2007 to 2009. And since there were no sentinel events reported in 2008 and 2009, those numbers are expected to drop even more.

Among the changes were:

* Doing away with the labor and delivery unit's dry-erase whiteboard, which staff used to communicate patients' progress, and replacing it with a new electronic application.

* Not allowing any paper charting.

* Hiring a full-time patient safety nurse to educate staff on new protocols the doctors wanted and to conduct emergency drills.

* Hiring three physician assistants and a “laborist” (an obstetrician who works at the hospital full-time) who works nights and weekends, reducing on-call time for other obstetricians, in order to avoid errors due to sleep deprivation.

Though many aspects of the plan were costly, the authors concluded that the savings in medical malpractice payments "dwarf the incremental cost of the patient safety program.”

Source: Crain’s New York Business.com

You can read the article in the American Journal of Obstetrics and Gynecology here.

The medical community is waking up to an enormous problem with radiation – mainly X-rays and CT scans — used to diagnose disease and injury. Patients are getting too much radiation, and the excess itself causes injuries, many years down the road, in a big uptick in the risk of cancer.

Even a “routine” CT scan of the abdomen, ordered thousands of times every day in the United States for patients with belly pain, carries a large risk of downstream cancer, just from that single scan.

Dr. Rebecca Smith-Bindman, MD, of the University of California San Francisco, estimates a 20-year-old woman who undergoes a CT scan of the abdomen and pelvis has a one in 250 chance over her lifetime of getting cancer just from that single dose of radiation. This number was in a talk she gave recently at UCSF, as reported by her colleague Bob Wachter, MD, a patient safety expert at UCSF.

More scary statistics are in two articles Dr. Smith-Bindman and her colleagues published in Archives of Internal Medicine in 2009. There, they estimated that a single CT scan of the heart’s arteries (called a CT coronary angiogram, and promoted as being safer than the usual test called a cardiac catheterization) would cause cancer in one in 270 women and one in 600 men who underwent the test at age 40.

One problem is a huge range in the amount of radiation used at different facilities. Dr. Smith-Bindman’s group found a 13-fold variation from the lowest to the highest radiation exposure between scanners running the exact same imaging study.

She blames lax regulation by the Food and Drug Administration and lack of aggressive self-regulation by the medical physicists, working in hospitals, who are supposed to protect patients.

Most patients have no idea of the amount of radiation in one CT scan. It’s estimated to be about 200,000 times more than the radiation you get from going through an airport whole-body scanner, or about 450 times more than a simple chest X-ray.

Once people start to appreciate the risk, they realize that the pretty pictures produces by CT scans can have a very expensive cost down the road. It's something to remember the next time you see a billboard advertising “whole body scans” for healthy checkups, or “virtual colonoscopies” (to pick two examples of the heavily hyped types of CT scans now available).

Article first published as The Coming Cancer Epidemic from Overuse of CT Scans on Technorati.

The state of Maryland is putting some financial sting in its efforts to get hospitals to lower the number of patients who contract deadly infections while hospitalized.

Nine hospitals are being fined a total of $2.1 million for having higher than usual infection rates.

The hospitals are: in the Washington, DC area: Prince George's Hospital Center, Shady Grove Adventist, Montgomery General, Doctors Community and Washington Adventist, plus University of Maryland Medical Center in Baltimore, St. Joseph Medical Center in Towson, Civista Medical Center in La Plata and Memorial Hospital in Cumberland (now part of the Western Maryland Health System).

Twenty-three hospitals - including Holy Cross, Howard County General, Suburban Hospital and Johns Hopkins in Baltimore - did better than the state average and will receive small bonuses.

The list of all hospitals included in the survey and their infection rates for fiscal year 2010 can be found by clicking here and then click on this line on the web page: Hospital Infection Related PPC Rates, FY 2010.

The state's effort is more ambitious than just infections. It follows a set of 49 PPCs: Potentially Preventable Complications. It sets up payment incentives and fines to encourage hospitals to reach goals of making patient care safer.

A bill currently awaiting action in the Arizona state Senate would prevent patients injured by medical students from being able to sue them. If the bill passes, students under the supervision of a licensed health care professional would not be liable for malpractice unless there was clear and convincing evidence that the student acted with gross negligence.

As with many proposed legislative bills, the proposal sounds like a solution in search of a problem. It's not clear that medical students EVER get sued for malpractice, and even if they were, the logical person to hold accountable would be the supervising physician who failed to oversee the student's conduct. But legal immunity is always a slippery concept, because one ambiguity in this bill is whether ANYONE would be liable if the student hurt someone.

Critics of the proposed bill maintain that there is no reason to grant immunity to someone actually providing health care (as opposed to just studying) and that such immunity could provoke irresponsibility.

But proponents of the bill argue that victims would not be without recourse, noting that the supervising physician, his/her employer and/or the student’s university would likely incur the costs of defending such malpractice suits. They also point out that being named a defendant in a malpractice lawsuit will follow the student around, potentially making it harder to find work and increasing malpractice insurance rates.

One Democratic Senator is demanding specific language in the final version of the bill that would clearly spell out that the supervising physician would be liable for any malpractice attributable to a medical student.

Source: Arizona Daily Sun

Most breast lumps found in women need to be looked at under the microscope to make sure they're not cancer. But new research says too many women are getting unnecessarily aggressive open biopsies, which produce a scar, when most of them could get enough tissue for sampling with a simple needle stick.

About 1.6 million breast biopsies are done every year in the United States, with about 200,000 of those resulting in a diagnosis of invasive cancer, which requires more treatment. That means that about seven in eight women who undergo biopsy receive the good news of no cancer (or the pre-invasive diagnosis of ductal carcinoma in situ).

Needle biopsy is the gold standard for the initial investigation of most suspicious breast lumps, except for those that a needle cannot reach. It can be done with numbing local anesthetic and a quick needle stick, which sometimes needs to be guided by x-ray imaging when the lump cannot be felt. In that case the needle biopsy is done by a radiologist, not a surgeon.

An open biopsy requires a one-inch incision, which leaves a scar, and must be done with either general anesthesia or sedation. It costs about twice as much as a needle biopsy, both for the surgeon's fee and the hospital's fee. And that could be the economic motivator for the persistently high rates of open biopsies still done in the U.S., according to researchers.

The new study of breast biopsies in Florida found that three in ten were done by the more expensive and scarring open technique, when the rate should be less than one in ten.

A New York Times piece on the new study quoted Dr. Melvin J. Silverstein, a breast cancer surgeon at Hoag Memorial Hospital Presbyterian in Newport Beach, Calif., as saying it was “outrageous” that 30 percent of breast biopsies were done by surgery. The article went on:

He said some of the unnecessary procedures were being performed by surgeons who did not want to lose biopsy fees by sending patients to a radiologist.

“I hate to even say that,” Dr. Silverstein said. “But I don’t know how else to explain these numbers.”

One of the main arguments made by proponents of malpractice reform is that physicians would order fewer medical tests if patients could receive only a limited amount of money in a potential lawsuit. But that assumption may not be true, according to a recent study published in the journal Health Affairs. In that study, researchers from the University of Iowa found that not only does reducing malpractice costs not make physicians less concerned about being sued, it also doesn't necessarily result in them ordering fewer tests.

The study evaluated physicians’ perceptions about malpractice claims in states where more objective indicators of malpractice risk, such as malpractice premiums, varied considerably. It found high levels of malpractice concern among both generalists and specialists in states where objective measures of malpractice risk were low. The study also found relatively modest differences in physicians’ concerns across states with and without common tort reforms. These results suggest that many policies aimed at controlling malpractice costs may have a limited effect on physicians’ malpractice concerns.

Proponents of malpractice reform, including lawmakers, assume that physicians order unnecessary tests because they fear being sued, and this so-called "defensive medicine" is one of the main factors driving up health care spending.

However, opponents of malpractice reform argue that although some physicians request unneeded tests to avoid potential lawsuits, in many cases, physicians order tests because they're trying to do a thorough job with patients, while others order tests to exploit the “fee-for-service” system, which allows physicians to bill more when they perform more services or provide more care.

Source: Des Moines Register editorial

You can read the abstract of the University of Iowa study here.

Hospitals say they are barring parents from taking videos of the birth of their children strictly out of concern for privacy of the health care workers and to prevent doctors and nurses from being distracted. But a New York Times article on the subject makes clear the hidden agenda: Hospitals really want to avoid the creation of graphic video evidence in the event that something goes wrong with the birth and they are sued for medical malpractice.

As a patient safety advocate, it seems to me that any hospital that concerned about legal liability is one that parents would want to avoid giving their business to. Any hospital oriented to safety would be proud of its work and would want to have the videos to exonerate their doctors and nurses, if it came to a lawsuit.

The fact is that cellphone cameras are so unobtrusive now that it is hard to imagine a real safety issue with their being in "record" mode for the moments of birth, which some parents want to capture for posterity.

I explained my concerns in an interview on a local television news show, which you can watch here.

A group of malpractice victims who met with White House officials last year have just sent this new letter to the President:

January 28, 2011

President Barack Obama
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

Dear President Obama:

On March 1, 2010, the undersigned five survivors of medical negligence and family members had the honor of meeting with the White House Office of Public Engagement about the issue of medical malpractice. We were extremely grateful for this opportunity.

We noted in our July 7, 2009 letter to you requesting this meeting that, “People like us and our families certainly do not feel as though doctors and hospitals practice too much ‘defensive medicine,’ or that lawsuits against negligent providers are frivolous, or that there is any justification for eliminating or restricting the right to jury trial in medical malpractice cases.” We wanted the opportunity to explain to you why patients injured by medical malpractice should not be blamed for our nation’s health care costs, and that the only real medical malpractice problem in this country today is the unacceptable amount of preventable errors and negligence.

We asked for a chance to be heard and we were hoping that we were. For example, one of the things for which we asked at this meeting was that you not continue to use the language “frivolous lawsuits” to describe this nation’s malpractice problems. Frivolous medical malpractice lawsuits are rare; medical errors are rampant. This language is incredibly hurtful to those of us who have been devastated by medical negligence and have sought justice in the courts.

At this meeting, we were told that this was one request that seemed “doable.” It is now apparent that the results of this meeting were not communicated. Therefore, we are again respectfully requesting a White House meeting, but this time with you or an office that will communicate the results of the meeting to you directly.

Thank you for considering this request. We look forward to hearing from you.

Sincerely,

Molly Akers,
New Lenox, IL

Kaitlyn, Mark, and Dr. Amy Fought,
Blacksburg, VA

Dylan Malone,
Everett, WA

Kathy, Scott, and Steven Olsen
Chula Vista, CA

Patty Skolnik
Denver, CO

A woman in Napa, Ca., has been awarded $250,000 in a malpractice suit against the surgeon who removed her gallbladder and erroneously cut her hepatic duct. The verdict includes $70,393 for past medical expenses and $179,607 for pain and suffering.

According to court documents, while performing a laparoscopic cholecystectomy (gall bladder removal), the surgeon cut the hepatic duct instead of the cystic duct. The plaintiff’s lawyers argued that the surgeon could have attempted to identify the correct duct before cutting it by taking an x-ray picture -- an intraoperative cholangiogram, which many surgeons routinely perform in conjunction with laparoscopic cholecystectomies.

The surgeon argued unsuccessfully that the technique he used was not only within the standard of care, but was common and typical for surgeons with his training and experience with this procedure, and that injury to the hepatic (common bile) duct is a well-known potential complication of any gallbladder surgery. He also maintained that the patient’s anatomy was abnormal, in that the cystic duct was adherent to and congruent with the hepatic duct, effectively mimicking the cystic duct.

Nearly 500,000 laparoscopic cholecystectomies (commonly referred to as lap choles) are performed in the U.S. every year. In 0.04% (200) of those cases, the common bile duct or the hepatic duct is improperly cut.

Source: Napa Valley Register

Footnote: Nearly all of the time, it is possible for the surgeon to identify the correct structure and cut the connection to the gallbladder. The hepatic duct delivers bile from the liver to the intestines, where it performs life-essential functions in breaking down fats in food.

Former patients of an orthopedic surgeon in Dayton, Ohio, have petitioned a federal court to force a medical device company to stop selling him medical equipment. The complaint, filed in U.S. District Court against Roswell, Ga.-based Mylotec Inc., also seeks damages for 19 former patients of Dr. Lawrence Rothstein.

According to the complaint, Mylotec allegedly sold video-guided catheters to Rothstein, even though the catheters were not FDA approved for use with a laser. “Myelotec representatives were present during many of the spinal surgeries conducted in Ohio and knew or should have known that the company was placing patients at risk by promoting and permitting the alteration of its devices for non-FDA approved surgical use,” the complaint says.

Rothstein claims to have pioneered a non-invasive laser spine surgery called AccuraScope. The former patients allege Rothstein’s surgery left them with nerve damage, pain, weakness, numbness, paralysis and incontinence.

Rothstein declared bankruptcy in June 2010. At that time, there were 19 active malpractice cases against him. Previously, he had settled at least three cases and lost two trials, including a $5 million judgment for a Clark County woman who was left with permanent brain damage due to an overdose of pain medication. The bankruptcy case – which is still pending – halted the remaining malpractice cases.

Source: Dayton Daily News

A new style of cosmetic liposuction leaves patients fully awake with only local injections of lidocaine to control their pain at the site where the doctor is suctioning their body fat. It's a bad idea all around -- dangerous, painful, and a potential tragedy to boot.

The "Awake" treatment is touted as a way for patients to experience their liposuction fully awake. But why would anyone want to? It's not better for patients. It only allows the operating doctor to skip the extra charge of having an anesthesiologist or nurse anesthetist present to keep the patient sedated safely.

Lidocaine, the local anesthetic drug typically used in so-called "tumescent liposuction," is no cakewalk drug. Too much injected into a patient's system can travel to the heart and numb the nerve fibers that transmit the electrical impulses that make the heart fire -- causing a rhythm disturbance or complete cardiac arrest.

A client of mine went into cardiac arrest and suffered severe brain damage before her heart could be restarted, in a liposuction procedure a few years ago in Montgomery County, Maryland. Her heart stopped for this very reason: too much lidocaine injected too quickly into her body fat. We brought a successful malpractice lawsuit for her against the plastic surgeon, but nothing could restore her health.

Lesson for patients: Anyone undergoing any type of surgery whatsoever should insist on at least the presence of a certified nurse anesthetist, and a doctor specializing in anesthesiology should be present too in the building to provide backup for any emergencies.

A chapter in my book, "The Life You Save," details this issue and other points about how to get the safest surgery.

Here is a news article alerting consumers about the dangers of the "Awake" technique.

A West Virginia couple who had been awarded more than $1.5 million in damages in a medical malpractice case only to have the award cut by two-thirds is challenging the state law that caps medical malpractice payouts to victims.

The husband developed rhabdomyolysis after being given a combination of medications at a West Virginia hospital. A jury awarded the couple $1.5 million for pain and suffering and $129,000 for medical expenses and lost wages, greatly exceeding West Virginia’s malpractice damages cap.

The cap, originally $1 million when enacted in 1986, has been cut repeatedly and now stands at $250,000 for most cases and $500,000 for the most severe. The cap applies no matter how many plaintiffs there are, so multiple plaintiffs have to split the award, which can be no more than $500,000.

In the rhabdomyolysis case, the man was awarded $1 million for his pain and suffering and his wife $500,000, but their claim was reduced to $500,000 in total for both of them. The couple is arguing that the damages cap is unconstitutional because it interferes with the right to a trial by jury and prevents the jury from making the ultimate decision in the case.

Lobbyists representing physicians and insurance groups have filed a brief in the case arguing that the caps should remain in place in order to keep malpractice insurance rates affordable and to prevent physicians from leaving the state. The case has been appealed to the West Virginia Supreme Court.

Source: Renal and Urology News December 2010

A wrongful death and medical malpractice lawsuit has been filed against a Vancouver, Wa., pain clinic by four plaintiffs who allege the clinic prescribed excessive amounts of pain medications, causing overdose deaths and addictions.

The estates of two patients who died of opiate overdoses are suing Vancouver Payette Clinic in Clark County, Wa., circuit court, along with two other plantiffs who allege the clinic prescribed them "grossly excessive" amounts of controlled substances that caused physical and mental injuries.

"Payette Clinic practitioners knew or had reason to know that the massive quantities of controlled substances they were prescribing were either being diverted by patients and sold in the illegal drug market, or being taken by their patients at great risk to the patient's own health," the suit says.

The clinic was previously been linked to the Dec. 9, 2008 overdose death of an 18-year-old girl.

The lawsuit contends that between January and November 2007, five people prescribed opiates by the clinic died from prescription overdoses, ranging from methadone to morphine intoxication.

The suit contends the clinic failed to do pill counts or give its patients random drug tests to control the massive amount of pills prescribed. It said a man died from a drug overdose Sept. 29, 2009 after a nurse practitioner prescribed him over 5,000 morphine sulfate tablets, in addition to other drugs, between June 2007 and July 2008. At the time of his death, he had over 2000 200-mg morphine sulfate tablets in his possession.

The Payette Clinic was raided by federal narcotics agents in March 2009. By December 2009, the advanced nurse practitioners at the clinic forfeited for 2 years (until December 2011) their licenses to prescribe Class II opiates, including oxycodone, Oxycontin, methadone or morphine.

Source: The Oregonian

Research shows that a surgeon who has been working for 24 hours is impaired as much as a drunk person in thinking and motor function. So should patients have a right to know if their doctor has been up all night?

Yes, say a group of sleep researchers, who argued for full disclosure of sleep deprivation in a recent article in the prestigious New England Journal of Medicine.

No, responded the American College of Surgeons, whose leaders say it should be up to the individual surgeon to decide if he or she is too tired to operate -- or if the surgeon needs to tell the patient before heading to the OR.

The debate shows that surgeons and hospital administrators are just beginning to consider some basic issues of fatigue and patient safety that in other contexts -- piloting airliners and driving large trucks on interstate highways -- have long been settled.

Surgeons understandably don't want to be subject to the welter of bureaucratic rules that truck drivers and pilots deal with. And patients might not like it either if a surgeon was required to announce that he would be starting their surgery but another doctor would come into finish it because the time would stretch beyond the first doctor's hour limit.

But some sensible limits could easily be put in place. For one, the opportunity for a surgeon to work inhuman hours is created by hospitals who let a surgeon sign up for overnight call, which often results in working all night in the OR, and let the same surgeon schedule elective non-urgent cases for the next day.

Why would a surgeon do this in the first place? The lure of money, as a number of commenters on the New England Journal of Medicine website candidly admitted. Which raises a problem with the American College of Surgeons' idea that surgeons should be left to their good judgment on when and when not to operate. Anyone who schedules back-to-back call nights with elective cases is not showing good judgment in the first place.

Another issue for patient safety is the surgeon who is well rested but inexperienced, for not having gone through sleepless nights filled with surgical cases. Residency training programs are now starting to limit young surgeons to 16-hour days, which many surgeons say is going to result in a generation of rested but green doctors.

The right of informed consent gives at least one answer to the conundrum. Every patient has a right to know what any reasonable patient would want to know going into a surgery. And since we would all pause before submitting to the knife with a surgeon smelling of alcohol, the same right should apply to the less obvious danger of the sleep-deprived surgeon. If a doctor wouldn't want a family member to undergo surgery with that glassy-eyed doctor, then the same right should apply to all patients.

This means patients should be told, and should be given the option of rescheduling or bringing in a fresh replacement to operate. This will be inconvenient for hospital schedulers and may cause some surgeons to lose income. But patients will ultimately be safer for it.

And if hospitals want to minimize patients getting upset for having their plans upended at the last minute, all they have to do is adjust their call schedules to make these up-all-night dilemmas a rare event.

Article first published as Should Patients Have a Right to Know When Their Surgeon Has Been Up All Night? on Technorati.

Federal and Massachusetts state health investigators have cited a Boston teaching hospital for making at least three surgical errors in the last four months of 2010, all of which involved surgeons operating on the wrong vertebrae during spinal surgery. Two of the surgeries were performed by the same surgeon, whose name has not been released.

The spike in spinal surgical errors at the Beth Israel Deaconess Medical Center -- one of Harvard's teaching hospitals -- was notable, because hospitals across Massachusetts had reported only 11 similar incidents from 2006 through 2008. Officials noted that the incidents were unrelated and attributable to human error on the part of the surgeons.

Wrong-site surgical errors are considered to be “never” events (i.e. events that should not happen if the surgeon and medical staff follow the appropriate standards of medical care). The hospital said it had procedures in place to prevent such errors, and said it could not explain how the incidents happened if those procedures were being followed.

In a recent study, U.S. researchers found that errors in judgment were involved in 85% of wrong-site surgical errors and that in 72% of the medical mistakes in the operating room, the surgical team failed to take a “time out” to assess the situation and make sure their surgical plan was correct.

In all three cases at the Beth Israel Deaconess, the doctors completed the surgery without realizing that the vertebrae they were working on was undamaged and just below or above the part of the spine that was actually injured. Two of the errors were discovered during post-surgical X-rays, when patients continued to suffer back pains, and the third was discovered in a routine postoperative X-ray.

Source: About Lawsuits.com

You can view an abstract of the study in Archives of Surgery here.

The idea that doctors order unnecessary tests to avoid being sued has enough surface plausibility that people nod "of course" as if it's undeniable truth. The "fraud" of "defensive medicine" is two-fold: It doesn't really happen, at least not that anyone has ever proven, and even if it did happen, it would mean that doctors were committing fraud -- insurance fraud by ordering tests to protect their own rear ends and not to benefit the patient.

This is back in the news because the new Republican leadership of the House of Representatives wants to hold hearings about how cutting back on patients' rights to sue for redress when they've suffered preventable injuries from medical malpractice will allegedly improve the budget deficit.

Joanne Doroshow of the Center for Justice and Democracy has a new column in the Huffington Post that takes on this issue.

An excerpt:

While anonymous doctor surveys provide the principal foundation for the argument that widespread "defensive medicine" exists, credible organizations who have looked into the issue have had a very hard time identifying pervasive "defensive medicine," especially when managed care companies are paying the bill. For example, the Congressional Budget Office found tiny health care savings - "0.3 percent from slightly less utilization of health care services" - if severe tort reform were passed nationally. According to the CBO, if there is any problem at all, it's with Medicare, specifically its emphasis on "fee-for-service" spending, whereas private managed care "limit[s] the use of services that have marginal or no benefit to patients (some of which might otherwise be provided as 'defensive medicine')."

But there is another issue. In these anonymous surveys, doctors never actually identify specific tests or procedures they have conducted for the primary purpose of avoiding a lawsuit, let alone a service they would no longer perform if severe "tort reform" were enacted.

Read more here.

Without a license to practice medicine or surgery or nursing or whatever, no health care practitioner can touch a patient. So the state licensing boards that issue -- and are authorized by law to take away -- licenses are important watchdogs for patient safety and accountability.

Which is why a year-long investigation by reporter William Heisel makes you want to cry.

He found ... well, let's borrow the introduction to his new article:

Medical boards from coast to coast are inconsistent, inefficient and ill equipped to monitor the hundreds of thousands of doctors licensed under their watch, Antidote’s investigation of every state board has found. There are some standouts, but, overall, they do a terrible job protecting patients and informing the public.

It bears repeating that most doctors do a great job and are focused on one thing: helping their patients heal and lead healthier lives. The mission of this tour was to explore what happens to that minority of doctors who don’t follow the rules.

One example in the story: Licensing boards that think they're doing a good thing when they restrict a doctor convicted of sexual molestation from seeing a certain age group of patients, naively failing to realize that the doctor will just "pivot his practice" to prey on a different age group.

Another issue: So many malpracticing doctors getting shunted to places where the patients are already vulnerable: poor towns, prisons, and addiction treatment centers.

Read the rest of his piece here.

An Arkansas medical malpractice lawsuit ended in mistrial in federal court in Jonesboro when the doctor being sued treated an ill juror in the courtroom in front of other jurors. The juror, who was not named, became ill during opening statements of the lawsuit against Dr. Stephen Eichert. The nature of the illness also was not disclosed.

Eichert is being sued by Cristina Renee Chaffin for allegedly not performing proper tests before operating on Chaffin's back and failing to tell Chaffin of the risk of surgery. Chaffin is asking for $75,000 for the costs of two surgeries and follow-up visits and lost wages plus an amount to be determined by a jury for pain, suffering, and mental and emotional anguish.

Chaffin's attorney asked for the mistrial and Eichert's attorney agreed.

This issue comes up more often than you would think. Any time a doctor can show off his treatment skills in court, that can tilt the balance in a close case in favor of the doctor, even if the treatment has nothing to do with what is at issue in the lawsuit. So it's standard practice for the patient's lawyer to ask to stop the trial if someone in the courtroom gets sick and the doctor defendant gives treatment.

Source: Insurance Journal

Why do patients who need focused, precise doses of radiation get walloped with huge overdoses that cause serious and even fatal injuries? A deadly combination of non-user-friendly radiation equipment, incompatible software when machines from different manufacturers are cobbled together, user error by the technicians administering the radiation, and lax regulation by federal authorities: All these are major issues in the ongoing expose by the New York Times of malpractice issues in radiation therapy.

In the latest installment, the team led by reporter Walt Bogdanich focuses on linear accelerators, machines that originally were intended to give broad-beam radiation doses to large swaths of the body, but now are increasingly modified to deliver what are supposed to be precise, focused radiation beams. The therapy is called stereotactic radiosurgery, and it allows hospitals who lack the more expensive competitor device, gamma knife surgery, to compete for radiation therapy business when the patient needs a very focused, intense dose to sensitive tissue -- such as a nerve deep in the brain.

But without proper setup, and without an easy way to see when the machine's beam has not been focused properly, tragedies can happen, as the reporters document.

One issue that this blog has focused on in other contexts with medical devices: The lack of a mandatory public registry to gather prompt reports of injuries and errors so that problems can be nipped in the bud rather than injuring patient after patient. The society of radiation oncologists is now asking for the creation of such a registry by the Food and Drug Administration. But the FDA lacks legal authority to force anyone other than a manufacturer to make a report.

How can patients protect themselves? Make sure the radiation unit you go to is well established, not brand new, and that the technicians are certified in the field of medical physics. More tips can be found in our previous article on the subject here.

The Oregon Court of Appeals recently reversed a decision by a lower court to reduce a malpractice award because of the plaintiff’s “comparative fault” in the case. In doing so, the court pronounced a new rule that, “as a matter of law, conduct that merely creates the need for medical treament cannot cause the type of harm at issue in medical malpratice cases -- the injury resulting from the malpractice.”

In the case -- Son v. Ashland Community Healthcare Services (AHCS) -- Sara Burns died while under the medical care of AHCS following an attempted suicide by drug overdose. Her mother, as personal representative of Sara’s estate, brought a wrongful death action against ACHS alleging professional negligence in its treatment of Sara.

ACHS raised the comparative fault defense, alleging that Sara failed to inform ACHS of her ingestion of a particular drug that would have changed ACHS’ treatment plan and likely would have prevented her death. The jury returned a verdict for the plaintiff of $740,000, after which the court reduced the award by a percentage because of Sara’s comparative fault.

Sara’s mother than appealed, and the Oregon Court of Appeals reversed the decision, addressing for the first time the comparative fault defense in the context of medical malpractice cases. The general rule for comparative fault comes from Fazzolari v. Portland School Dist. No. 1J and has been stated as “whether facts of the case indicate that the plaintiff took some action or failed to take some action which a reasonable person could have foreseen would increase the risk of harm to the plaintiff, and that the plaintiff did indeed suffer harm of the type which could have been foreseen.”

The appeals court narrowed the rule in medical malpractice cases to the injury caused by the negligent treatment, not the original injury that necessitated the need for treatment. Here, the court found that Sara’s negligent conduct occured prior to ACHS’ negligent treatment and was therefore not eligible to be considered as comparative fault.

The distinction is important in many malpractice cases, not just those involving suicide attempts. For example, this decision puts off-limits in a lung cancer misdiagnosis case any defense that the patient was partly at fault for being a smoker. But if the same patient neglected to follow the doctor's advice to return for a followup visit, that could potentially count against the patient.

Source: Oregon Business Report

You can view the full text of the decision here.

Patients in Texas whose health has been ruined by incompetent decisions by ER physicians are having a hard time finding malpractice attorneys to represent them, even when the lawyers admit they have a great case. The reason: The tort reform state lawmakers passed in 2003, which made it more difficult for patients to win damages in any health care setting, but especially in ERs.

The “reform” capped medical liability for noneconomic damages at $250,000 per health care provider, with a maximum award of $750,000. But it also safeguarded emergency physicians from civil damages unless it could be proved that they acted with “willful and wanton” negligence (i.e. that they not only put the patient in extreme risk but knew they were doing it.).

According to Jon Powell, a malpractice and personal injury lawyer based in San Antonio, this is a near-impossible threshold to meet. “You’d have to be a Nazi death camp guard to meet this standard,” Powell says.

Tort reform advocates disagree, noting that patients in Texas continue to sue doctors and hospitals over emergency care. And, they say, the “willful and wanton” language, as well as the damage caps, have driven down malpractice insurance rates by nearly 30% and attracted more emergency room doctors to Texas.

Malpractice lawyers say these developments have come at the expense of patients. They argue that the “willful and wanton” rule means emergency room care in Texas is some of the most dangerous in the country. And a preliminary study shows that malpractice claims dropped by 60% between 2003, when the law was enacted, and 2007.

Source: The Texas Tribune

Invisibility, inertia and income. That's the answer from one health care expert.

I'm borrowing this guest column from the blog of the prestigious Health Affairs journal. It's by Michael Millenson, an expert consultant and author in patient safety.

You can read comments from readers and his original article here.

A recent front-page article in the New York Times conveyed grim news about patient safety. The first large-scale study of hospital safety in a decade concluded that care has not gotten significantly safer since the Institute of Medicine’s 1999 estimate of up to 98,000 preventable deaths and 1 million preventable injuries annually.

What for me struck a particularly jarring note was not just the absence of improvement, but the reluctance of the health care leaders interviewed to speak candidly about why progress has been so slow. Instead, they offered nostrums about the need to “do more” or opined that “openness” or better “coordination” would somehow turn the tide.

But tucked in the actual study’s conclusions section, between bland boilerplate about “further study” and a “refocusing of resources,” some carefully worded candor cautiously peeked through: “[T]he absence of large-scale improvement is not evidence that current efforts to improve safety are futile,” wrote Christopher Landrigan and colleagues in the Nov. 25 New England Journal of Medicine. “On the contrary, data have shown that focused efforts to reduce discrete harms, such as nosocomial infections and surgical complications, can significantly improve safety.”

In plain language, we know how to prevent many of these patient deaths, but we don’t. That makes, “Why?” a lot tougher question.

It is a question that has haunted me since I discovered that clear descriptions of the medical error problem, its human cost and the corrective actions needed began appearing in the medical literature in the 1950s. The first large-scale study of hospital safety, by Don Harper Mills in California, was published in 1978. My extrapolation of its findings showed a preventable national death rate of about 120,000 patients annually. That’s roughly the same as the numbers from the oft-quoted Harvard Medical Practice Study published in 1991 that the IOM relied upon in its 1999 To Err is Human report. In human terms it means that 2.5 million men, women, and children died preventable deaths in U.S. hospitals during the 21 years between 1978 and 1999. A staggering seven to 17 million suffered preventable injuries.

The Silence Continues

I laid out those numbers in a March, 2003 Health Affairs article that challenged the profession to break a silence of deed — failing to take corrective actions — and a silence of word — failing to discuss openly the consequences of that failure. This pervasive silence, I wrote:

continually distorts the public policy debate [and] gives individuals and institutions that must undergo difficult changes a license to postpone them. Most seriously of all, it allows tens of thousands of preventable patient deaths and injuries to continue to accumulate while the industry only gradually starts to fix a problem that is both long-standing and urgent.

Nearly eight years later, medical professionals now talk freely about the existence of error and loudly about the need for combating it, but silence about the extent of professional inaction and its causes remains the norm. You can see it in this latest study, which decries the continuing “patient-safety epidemic” while failing to do next what any public health professional would instinctually do: tally up the toll. Instead, we get dry language about the IOM’s goal of a 50 percent error reduction over five years not being met.

Let’s fill in the blanks: If this unchecked “epidemic” were influenza and not iatrogenesis, then from 1999 to date it would have killed the equivalent of every man, woman and child in the cities of Raleigh (this study took place in North Carolina) and Washington, D.C. Does a disaster of that magnitude really suggest that “further study” and a “refocusing of resources” are what’s needed?

Why are we still killing so many patients? Call it the “three I’s”: invisibility, inertia and income.

The invisibility issue is commonly articulated this way: while airplane crashes kill a lot of people at once in a very public manner, medical error kills a few people at a time in private, spread out among thousands of hospitals. Moreover, most deaths occur among those who were already very sick, and only a small proportion represent negligence. This is inadvertent harm; there are no villains here. In any event, medical care is complicated. As a result, as a 2009 JAMA commentary pointedly noted, “Clinicians have labeled virtually all harm as inevitable for decades.”

That conviction is conveyed to and largely believed by patients. Why else would the advocacy groups for the sickest patients, such as the American Cancer Society or American Diabetes Association, pay so little attention to treatment-caused harm? Absent public or peer pressure, doctors and hospitals are reluctant to adopt interventions whose efficacy they mistrust to prevent an epidemic they really don’t see and which is profoundly discomfiting to confront.

Letting Children Die Unnecessarily

There are many examples of the inertia these beliefs produce, but one I cannot get out of my mind concerns sick children. At the 2009 AcademyHealth meeting, Dr. Richard Brilli of Nationwide Children’s Hospital presented data showing how a collaborative backed by some of the most respected organizations in pediatric care had slashed the rate of catheter-associated bloodstream infections (CA-BSIs). CA-BSIs are relatively common, very expensive and can be quite deadly (up to one quarter of victims die). Brilli said his collaborative had tried to recruit 330 pediatric intensive care units to join the initial participants, but after three years, just sixty had accepted. The reasons Brilli said he’s been given indicated to me that few had taken the time to examine the collaborative’s methodology or results. Instead, respondents asserted that their patients were sicker, their hospital was busier than the others in the study, that joining would make them look bad to others, or that the mortality reduction didn’t apply because “I am in a world famous center.”

Now fast-forward to the February, 2010 issue of Pediatrics, in which the collaborative concluded: “CA-BSIs are a preventable cause of patient harm to critically ill children.” What you can’t see in the peer-reviewed literature is this context: at literally scores of hospitals which declined to participate in the collaborative, hundreds of sick children likely were injured or killed who probably would not have been harmed had the hospital been a collaborative member. Those harmed were tended to by dedicated staff who thought they were doing everything they could to help the kids in their care. They were dead wrong, but even today they may not know it. Certainly, their patients and the public do not.

I’ll cite just two other examples of inertia and invisibility interacting to impede change. When the Institute for Healthcare Improvement launched its “Save 100,000 Lives” Campaign on the fifth anniversary of the IOM report (the delay speaks for itself), four out of 10 U.S. hospitals still declined to participate. No policymakers or commentators questioned why 40 percent of hospitals would sit out this opportunity to improve care.

Another example: the Centers for Disease Control and Prevention published its first hand-washing guidelines in 1975. Yet nearly 35 years later, when the Joint Commission launched an improving hand hygiene project, the eight hospitals that volunteered had a baseline hand hygiene rate typical of hospitals nationwide: 48 percent. That’s worse than the worst rate at the worst big public men’s room in the United States, according to one recent survey. But rather than giving providers an ultimatum, we launch campaigns to ask patients to ask providers to please wash up.

Most lethal of all is when invisibility and inertia interact with income. Ironically, the modern patient safety movement owes its foundational data to providers’ belief that malpractice insurance premiums were too high. The landmark studies of medical error published in 1978 and 1991 were backed by physician groups which hypothesized that unjustified lawsuits, not actual medical problems, were driving up premiums. In the event, research demonstrated that only a small percentage of errors resulted in lawsuits and an even smaller percentage in judgments. By that yardstick, the most recent study represents progress, since it was motivated by care improvement rather than income protection. Still, provider fear of being unjustly sued no doubt obstructs needed sharing of information and argues for malpractice reform.

Confronting The Belief That Complications Bring Extra Income

But there’s another elephant in the room that makes providers squirm even more. Put bluntly, many hospital executives believe they make money from complications. (Not from deaths, of course, because those shorten length of stay). Frustrated clinicians have personally told me this many times over the years, and as recently as a few weeks ago. The evidence has even made its way into the medical literature.

To cite just one example, let’s go back to those expensive bloodstream infections that affect the most vulnerable of patients, critically ill children, being cared for at the most eleemosynary of institutions, children’s hospitals. Even here, clinicians find themselves forced to argue that there is a “business case” for reducing CA-BSI’s in the pediatric intensive care unit.

In a recent journal article, the authors framed their case this way: Yes, infections increased the hospital stay by an average of nine days, and yes, insurers saved more money than hospitals by eliminating them. However, if a hospital filled the beds vacated by non-injured patients, it actually made more money because new patients provided more revenue in the first few days than tacking on those days to the hospital stay of patients already in the ICU. A clinical and financial win-win!

The Unknown Success Story Of Ascension Health

The ultimate irony about the silence surrounding patient safety is that one of the most extraordinary success stories in preventing harm has largely gone unheard. Ascension Health looks like most of the U.S. health care system, operating 65 community hospitals with independent medical staffs. Yet its program to eliminate all preventable injuries or deaths has been highly effective. They have carefully documented how they reduced infections, falls, complications of childbirth and a host of other common causes of patient harm to a fraction of national norms and saved more than 2,000 lives every year.

The clinical and administrative leaders of Ascension Health, one of the nation’s largest Catholic health systems, made the invisible visible, and found that errors were far more prevalent than they thought. They declared that inertia would not be tolerated; all their affiliated hospitals had to participate. And they were willing to risk hospital income to prove that they were serious about change.

It is a story that so far seems to have excited only a few conference goers and regular readers of theJoint Commission Journal, which has been publishing articles about Ascension’s results since 2006.

As a society, we know what combination of social pressure, economic incentives and provision of tools to enable new behavior lead to transformational change. In patient safety we are using all of them, including various public and private programs to refuse payment for preventable error and publicize hospitals’ safety records. But at the front lines of patient care, it is all too clear that these efforts have yet to make much of a difference, as well-intentioned professionals silently turn away from the preventable harm we are still inflicting on those we are working so hard to help.

One reason the medical industry keeps pushing for lawsuit "reforms" is that if it's harder for patients to sue doctors for malpractice, doctors will then practice less "defensive medicine" and that will save a lot of money with fewer unnecessary tests and treatments. Turns out that theory doesn't match reality.

One main reason, according to a new study funded by the Robert Wood Johnson Foundation, is that doctors have a high fear of lawsuits even in jurisdictions where most of the fear of litigation has been removed by legislative action. And therefore so-called tort reforms carry little bang for the buck in saving health care dollars -- since they don't affect physician behavior.

The researchers ranked objective lawsuit risk by the rate of claims actually paid and by the insurance premiums paid by doctors, on a state-by-state basis. They found that doctors in low-risk states had almost the same levels of anxiety about lawsuits as those in high-risk states, even when the objective risk was three-fold different.

The researchers concluded, according to a release from the University of Iowa where the study originated:

Overall, the study suggests that current tort reform efforts aimed at reducing malpractice risk would be relatively ineffective in alleviating physicians' concern about lawsuits and therefore may not alter defensive medicine practices.

More information is at the U of Iowa website here.

Here's a real irony: Other recent studies of actual risk of malpractice events at hospitals find that patients experience preventable harms from medical error at an alarming rate.

For example, a major study of ten hospitals in North Carolina finds a one-in-four chance of being hurt by medical care, a rate that hasn't improved in the ten years since a landmark study said that 100,000 Americans were killed by malpractice and medical error each year.

The study, published in November in the nation's leading medical journal, the New England Journal of Medicine, looked at 2,300 randomly chosen admissions in the ten hospitals. North Carolina was chosen for the study because it has a high rate of participation in hospital safety efforts.

But the results were discouraging. One in four hospital admissions included harm to the patient due to medical care, and two out of three of those harms were judged to be preventable. (Read the whole study here.)

All of which suggests that a more effective way to solve the malpractice problem would be to make hospitals safer places. Then the irrational fear of lawsuits by doctors would go away because patients wouldn't be harmed so often.

Article first published as Doctors' Fear of Lawsuits Is Often Irrational on Technorati.

The Third Circuit Court of Appeal in Louisiana has ruled the state’s $500,000 malpractice cap to be unconstitutional.

Joe and Helena Oliver had sought relief from the Louisiana Medical Malpractice Act, which shrank the damage award their daughter received for disfiguring injuries from $6.2 million to $500,000.

Their daughter, Taylor, developed severe injuries after she was treated by a “grandfathered” nurse practitioner who was practicing with only a high school diploma. Susan Duhon, a registered nurse practitioner and sole owner of the Magnolia Clinic, treated Taylor for vomiting, nausea and diarrhea. Taylor visited the clinic 32 times, and Duhon prescribed more than 30 medications. Duhon had a statutory duty to consult a physician, but Taylor never saw one during any of her visits.

When Taylor was 14 months old, another hospital diagnosed her with neuroblastoma, a childhood cancer. One of the signs is severe bruising around the eyes, a symptom Taylor had presented with at the Magnolia Clinic when she was 6 months old.

If neuroblastoma is diagnosed within the first year of life, the child has a 90 percent chance of an event-free recovery. But because of the delayed diagnosis, the quality of Taylor's life has been severely diminished. Though she survived the cancer, the tumor caused her head to become misshapen. In addition, her eyes are abnormally large and she is legally blind.

The Olivers won their medical malpractice lawsuit, but their $6.2 million award was cut to $500,000 under Louisiana state law. The appeals court ruled that the cap on malpractice damages is unconstitutional, noting that “the cap discriminates against Taylor and her parents by limiting their general damage recovery to a single $500,000 payment, while allowing other less severely injured victims to fully recover their general damage awards."

In another case, the same appeals court reversed a jury decision and awarded $400,000 in damages to a man who lost all vision in one eye after a cataract operation. The case involved cataract surgery performed in 2002 by ophthalmologist Ernesto Kufoy on Ronald Bianchi. During the surgery to remove the cataract and implant an artificial lens, the lining of the old lens was torn and a second artificial lens was implanted.

After the surgery, Bianchi reported worsening pain and vision loss. After a malpractice suit was filed in 2002, a medical review panel found malpractice on Kufoy’s part. (Kufoy did not chart his treatment of Bianchi and had no medical records to support his testimony.)

A jury trial in December 2009 determined that Kufoy had breached the standard of care, but the jury did not award damages because it did not find proof of cause. However, the Third Circuit Court of Appeal found there was no factual basis to support the jury’s verdict and called it “manifestly erroneous.”

The court overruled the jury’s verdict and awarded Bianchi and his wife $100,000 for past and future medical expenses and $300,000 in general damages. The cost of the appeal also was assessed to the defendant.

Sources: Beauregard Daily News for the Bianchi case.

Courthouse News Service for the Oliver case.

The Center for Justice & Democracy has a new fact sheet on recently published studies on medical malpractice, hospital errors and preventable injuries.

The depressing findings:

* Preventable injuries continue at very high rates. This is according to recent studies from Medicare and from a big study published in the New England Journal of Medicine. Much of this data has previously been reported on this blog.

* Reporting of errors is seldom done.

* Malpractice lawsuit rates are dropping and comprise only a small fraction of the civil lawsuit caseload in most jurisdictions -- typically under 5 percent of cases.

Read more at the Center's website and download the full fact sheet here.

The cap on awards for malpractice lawsuits in Virginia will go up $50,000 a year for the next 20 years, following a recent compromise between trial lawyers and physicians in the Commonwealth.

Incremental increases to the cap had been made previously. But once the cap reached $2 million, physicians argued that further increases would result in higher malpractice insurance premiums, while the state’s trial lawyers, who represent injured patients, disputed that one would automatically follow the other.

To break the impasse, two state legislators threatened to impose a decision in the General Assembly if the Medical Society of Virginia and the Virginia Trial Lawyers Association didn’t reach a compromise. Last month, they did just that, settling on $50,000 annual increases to the cap starting in 2012.

Physicians can live with the increases, says MSV President Cynthia Romero, MD, because it will stabilize premiums for doctors, thereby bringing more insurers and physicians to the state. In a letter to MSV members, Romero said the agreement:

Retains Virginia’s total cap

Establishes an agreement for a long period of time

Minimizes the risk of large premium increases

Delays the effective date of any increases.

In addition, says Romero, the deal ensures that there will be no legislative efforts by VTLA to eliminate the total cap, amend the cap to apply only to non-economic damages or create a second cap within the total cap.

Source: WTVR

To view the MSV president's letter to members, go here.

Merrill Goozner has an excellent blog on the medical industry. Here's his take on the cardiac stent "mill" in Baltimore, and how it has come to light and reached some measure of accountability.

He writes on his "Gooznews" blog:

... let us point out a few interesting aspects of this still evolving story.

First, it was officials with access to patient billing records at the Centers for Medicare and Medicaid Services who launched the investigation. Yet we read this morning in the Washington Post a story by Kaiser Health News about pushback from the American Civil Liberties Union and others against the creation of comprehensive electronic database containing records from the Federal Employees Health Benefits Program, which covers millions of federal workers. One of the purposes of such a database would be to conduct investigations like the one carried out by CMS.

Second, it was local reporters at the Baltimore Sun, after learning about letters sent from the hospital to patients advising them about their possibly unnecessary operations, who brought the story to light. Individual cases highlighted in today’s New York Times story on the Senate report came from trial lawyers suing the hospital on behalf of those patients.

There’s talk these days about cutting Medicare budgets by making seniors pick up more of the tab. Having “more skin in the game” will lead consumers to think twice before buying unnecessary medical services. There is also a lot of talk about limiting patients’ right to sue in order to stop physicians from practicing defensive medicine.

Can individuals without legal rights whose every second opinion will require another payment out of pocket be able to stop rogue physicians from practicing money-driven medical practices like those at the Baltimore hospital? ...

Not much of a chance that that will happen, Merrill.

Here's our report on the consumer groups pushing back on the deficit commission proposals to save money on medical care by wiping out patients' rights to get legal accountability when they are injured by poor medical care.

With lucrative fees for doctors, little oversight, and much disagreement about who needs stents in their heart arteries, it was perhaps inevitable that malpractice allegations of unnecessary surgery would explode into hundreds of lawsuits against a single cardiologist in Baltimore.

But now a new report from the U.S. Senate Finance Committee, which oversees the federal Medicare program, says the Maryland cases against Dr. Mark Midei may be only the tip of a very large iceberg.

Medicare spends $3.5 billion a year on cardiac stents, the tiny wire mesh tubes that are intended to prop open clogged arteries feeding the heart muscle.

In a long story in the New York Times, Dr. Steven Nissen, chief of heart medicine at the Cleveland Clinic, said:

"What was going on in Baltimore is going on right now in every city in America. We’re spending a fortune as a country on procedures that people don’t need.”

Dr. Nissen said he routinely treats patients who have been given multiple unneeded stents by other doctors.

I wrote about unnecessary cardiac procedures in my patient safety newsletter last summer. You can read it here.

A good resource for readers is the Harvard Medical School newsletter on cardiac care. The bottom line for most patients, the Harvard doctors say, is that if you're not having symptoms, you should be very wary about anyone proposing to put stents in your heart.

Half of all graduating medical residents or fellows trained in Illinois are leaving the state to practice elsewhere, according to a new study, which seems to indicate that as many as 50% of the state’s medical school graduates are turned off by the “toxic” malpractice environment. Critics, however, say the study is just another attempt by the health care industry to blame its problems on malpractice claims.

The study, which was funded by the Illinois Hospital Association and the Illinois State Medical Society, asked 561 medical students where they intended to practice after graduation and why. Students who said they planned to leave Illinois cited salary, opportunities to work in their specialty and proximity to family as the most important factors driving their decision. The survey also found that for nearly 70 percent of these students, their perception of Illinois' liability environment -- based on the state's high medical malpractice insurance premiums compared to its neighbors, as well as the Illinois Supreme Court's recent decision to remove caps on damages for medical lawsuits -- also played a role.

But are malpractice claims really driving new physicians from Illinois?. Patrick Salvi, a Chicago-based malpractice attorney, doesn’t think so. “There could be many reasons to explain an impending physician shortage in Illinois, including a general population shift, so it's utterly wrong to say it's solely because of medical malpractice claims,” Salvi says. “The fact is that medical negligence litigation comprises a very small fraction of costs within the health care industry, and those costs would not have been accrued if a physician had not made a terrible mistake that led to the injury or death of a patient.”

Salvi also points to a report by the American Association for Justice which, using data from the American Medical Association, showed that the number of physicians per 100,000 residents was 21 percent higher in states without caps on medical liability damages than in states with caps.

Source: Chicago Sun-Times

You can view or download a PDF of the complete Northwestern Report here.

Go here for more on the critique of the Northwestern report's conclusions.

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The federal "debt commission" proposals have a variety of features that would allegedly make medical care more affordable by hurting victims' right to financial redress if they are hurt by the ongoing epidemic of hospital malpractice and other incidents of preventable medical error.

Fortunately consumers are speaking out against these "blame the victim" proposals.

Here's the text of a letter just sent to the debt commission from a coalition of consumer groups:

December 2, 2010

National Commission on Fiscal Responsibility and Reform
1650 Pennsylvania Ave NW
Washington, DC 20504
via email: commission@fc.eop.gov

Re: Commission recommendation 3.3.12 medical malpractice liability reform

Dear Chairmen Simpson and Bowles and Members of the National Commission on Fiscal
Responsibility and Reform:

We, the undersigned consumer and patient safety advocacy organizations, strongly oppose the
Commission’s recommendation 3.3.12 in its “Moment of Truth” report. The recommendation to
impose cruel liability restrictions on patients injured by the medical errors of private medical
workers and institutions demonstrates a significant lack of forethought about the consequences to the country’s health care system as well as its fiscal health.

Last month, we expressed our concerns to the Commission regarding Chairmen Alan Simpson
and Erskine Bowles’ previously released deficit reduction proposal, which dedicated a vague
paragraph to recommending medical liability restrictions. Unfortunately, instead of removing the
recommendation, the Commission’s report identifies specific liability proposals and principles,
each of which we discuss and disprove in the accompanying analysis. We urge all
commissioners to reject the report if medical liability restrictions are included, and to offer
proposals that represent true health care cost savings, such as efforts to reduce unnecessary
medical errors.

The prevalence of medical mistakes continues to be an ongoing health care crisis, which is
quickly turning into a fiscal crisis as well. In fact, a few days after the release of the cochairmen’s proposal, the Department of Health and Human Services Inspector General (HHS)
released a patient safety report illustrating that the frequency of medical errors in the U.S. health care system is a big contributor to the expanding deficit. HHS found that 1.6 million Medicare patients suffer injuries every year from medical mistakes, amounting to an annual taxpayer price tag of at least $4.4 billion. While the Commission claims that limiting providers’ liability would save $17 billion through 2020, eliminating avoidable medical errors could potentially save $44 billion over the same period.

Limiting patients’ legal rights in the middle of these urgent circumstances will only worsen the
safety and fiscal problems. Injured patients will be further restricted from seeking compensation
from the private parties who caused the harm and the associated costs will shift to others. State
and federal governments will have to be prepared to bear the brunt of covering patients’ health
care costs because the actual culprits will be let off the hook.

As the HHS study indicates, Medicare already bears a substantial amount of the burden of paying for others’ medical mistakes. If the restrictions are implemented, it will be forced to pay significantly more. Finally, medical providers, shielded from accountability as this proposal promises to do, will have no impetus to improve patient care, which will again increase medical mistakes and their associated costs.

We support the federal government’s effort to practice fiscal responsibility, however, the medical
liability recommendation only promises to be ineffective and dangerous. If the commissioners
fully consider the consequences of these restrictions that shield negligent parties and shift the
costs of care to government entities, they will reject the present proposal contained within the
report.

Sincerely,

Alliance for Justice
Center for Justice & Democracy
Consumer Watchdog
National Consumer Voice for Quality Long-Term Care
Public Citizen
Citizens for Patient Safety, Denver, CO
Coalition For Patients’ Rights, Baltimore, MD
Connecticut Center for Patient Safety, Harford, CT
Empowered Patient Coalition, San Francisco, CA
HealthCare PSI, Springfield, MO
James’s Project, Wayne, PA
Mothers Against Medical Error, Columbia, SC
MRSA Survivors Network, Hindale, IL
New Hampshire Patient Voices, Bow, NH
Ohio Infectious Disease Forum, Raleigh, NC
Patient Safety America, Houston, TX
Patients Right To Know, Centennial, CO
Save The Patient, Chicago, IL
South Carolina Voices for Patient Safety, Chesterfield, SC
Texas Watch, Austin, TX
Voice4Patients, Warren, ME
Woodymatters, Minneapolis, MN

Read more here from the Center for Justice and Democracy.

A Louisiana neurosurgeon may face multiple lawsuits after the fund that normally handles malpractice claims in the state said it might not cover the cases.

Dr. Ravish Patwardhan already has had to surrender his surgical privileges in September over concerns about the speed of his surgeries, the number of surgeries he performed annually and the amount of followup care he provided. Now the state’s compensation fund says that if it decides Patwardhan intentionally caused harm to patients, he’s on his own.

In Louisiana, malpractice claims involving negligence or lack of medical skill are not filed against physicians directly. Instead, they are filed against the Louisiana Patients Compensation Fund, which physicians pay into in return for malpractice coverage. Such claims are capped at $500,000. However, the fund won’t cover cases if it determines that the physician intentionally harmed the patient. A panel of experts will review the claims made against Patwardhan, a process that could take as long as 2 years.

The case is unusual because usually people can sue only after a panel finishes its work. However, John Hammons, the attorney who is handling about 100 potential malpractice claims against Patwardhan, sued both Patwardhan and the fund directly after being notified that the claims might not be covered under Louisiana malpractice law.

Earlier this year, Hammons reported his concerns about Patwardhan to the Louisiana State Board of Medical Examiners, triggering an investigation that led to the board suspending Dr. Patwardhan's right to practice surgery.

Source: The Shreveport Times

A study of ten hospitals in North Carolina finds a one-in-four chance of being hurt by medical care, a rate that hasn't improved in the ten years since a landmark study said that 100,000 Americans were killed by malpractice and medical error each year.

The new study, published in the nation's leading medical journal, the New England Journal of Medicine, looked at 2,300 randomly chosen admissions in the ten hospitals. North Carolina was chosen for the study because it has a high rate of participation in hospital safety efforts.

But the results were discouraging. One in four hospital admissions included harm to the patient due to medical care, and two out of three of those harms were judged to be preventable.

The researchers wrote: "[W]e found that harms remain common, with little evidence of widespread improvement."

What needs to be done? Patient safety experts know that provable techniques to reduce harm to patients haven't penetrated as well as they should into routine hospital practice. Among the techniques identified in this study:

* Computerized order entry systems, to prevent errors in medications.

* Hand washing by doctors and nurses to prevent infection spread.

* Reducing excessive hours by doctors in training and nurses.

* Mandatory, rather than voluntary, error reporting systems.

You can read the whole study here.

An orthopedic surgeon who performed the wrong operation on a patient now says he no longer sees any burden in The Joint Commission’s (TJC) Universal Protocol for Preventing Wrong Site, Wrong Procedure and Wrong Person Surgery. And he's gone on the record in a prominent medical journal to confess error and try to help other surgeons do it right.

TJC’s universal protocol recommends that surgeons:

1. Conduct a pre-procedure verification process.

2. Mark the procedure site before the procedure is performed.

3. Perform a time out.

The surgeon, David C. Ring, M.D., was treating a 65-year-old woman whom he had diagnosed 3 months earlier with trigger finger, a common disorder in late adulthood in which a finger or thumb snaps or locks before unlocking (like a trigger), caused by a swollen flexor tendon.

According to Dr. Ring’s own account, the correct arm had been marked at the wrist by the nurse but the planned incision site on the hand was not marked. Dr. Ring performed three other carpal tunnel procedures that day, one of which was performed on a patient who became extremely agitated before and after the procedure, causing the surgeon to vow that the next procedure would be the best carpal tunnel release he’d ever performed. In addition, the patient was moved to another operating room, resulting in a change of personnel which meant the nurse who had had performed the preoperative assessment would not be in the room during the procedure.

About 15 minutes after performing the carpal tunnel procedure, Dr. Ring realized he had performed the wrong surgery. After informing staff, he told the patient about the error, apologized and offered to perform the correct procedure. The patient agreed, and the trigger finger release was performed. Later, the patient’s son informed Dr. Ring that the patient had lost faith in him and would not return for followup care. A financial settlement was negotiated shortly after the event.

Dr. Ring asked that the case be published in the Case Records of the Massachusetts General Hospital to encourage the development and following of procedures that would minimize the risk of such events occurring again.

Source: New England Journal of Medicine

You can view and download a poster of the Universal Protocol here.

A new study from the Office of Inspector General of the US Health and Human Services Department estimates that one in seven Medicare patients in hospitals -- or some 134,000 patients per month -- are hurt by "adverse events" in hospitals.

Nearly half of those events are preventable, based on reviews by doctors, the report says.

Read the summary of the report here.

And here is a USA Today story about the report.

ProPublica, the investigative reporting group, is publishing a series on the quality of care the nation's 400,000 dialysis patients get, and it's not pretty. The basic conclusion:

"Taxpayers spend more than $20 billion a year to care for those on dialysis -- about $77,000 per patient, more, by some accounts, than any other nation. Yet the United States continues to have one of the industrialized world's highest mortality rates for dialysis care. ...

"At clinics from coast to coast, patients commonly receive treatment in settings that are unsanitary and prone to perilous lapses in care. Regulators have few tools and little will to enforce quality standards. Industry consolidation has left patients with fewer choices of provider. The government has withheld critical data about clinics' performance from patients, the very people who need it most. Meanwhile, the two corporate chains that dominate the dialysis-care system are consistently profitable, together making about $2 billion in operating profits a year."

The ProPublica reporters go on to say that: "One reason the system's problems have evolved out of the health care spotlight is that kidney failure disproportionately afflicts minorities and the dispossessed."

Read more about this emerging malpractice and safety scandal here.

And here is part 2 of the series, which opens with a horrifying story about a woman who lost a quarter of her blood because the dialysis tube delivering the cleansed blood back to her body became dislodged and the technicians didn't notice until it was too late.

Here is one more piece of it, an important footnote about how the ProPublica reporters got the hard data on patient deaths that the government keeps hidden from the public.

St. Joseph Medical Center in Towson, Maryland will pay $22 million to the federal government to settle claims that it engaged in a decade-long, illegal kickback scheme with the cardiology group MidAtlantic Cardiovascular Associates, which was co-founded by Mark G. Midei - the cardiologist accused of performing hundreds of unnecessary heart procedures.

More than 100 patients have filed malpractice lawsuits against the hospital and Midei. He was taken off duty in May 2009 under suspicion that he had falsified patient records to justify unneeded stent procedures.

Dr. Midei filed a suit against St. Joseph last month in which he said that officials there ruined his reputation by warning nearly 600 patients about his work. He denies all allegations against him.

Read more in the Washington Post article here.

The headline is not exactly shocking, so the real news may be why the issue of how long work days can cause doctors to make errors is so rarely studied.

For nurses and residents (doctors in training), plenty of studies have found that when work days stretch beyond twelve hours, more mistakes are made, and patients become vulnerable to malpractice and even smaller errors.

But a new study of radiologists is one of the first to examine the effect of long work days on the performance of attending level physicians. The researchers gave a set of bone X-rays to radiologists at the beginning of their work day, and again at the end. Then they measured their accuracy at finding fractures. By the end of the day, the radiologists were making around one in twenty more errors -- both missing fractures and seeing ones that weren't there -- than at the start of the day. It's a small but significant difference.

The study in the radiology journal concluded:

"After a day of clinical reading, radiologists have reduced ability to focus, increased symptoms of fatigue and oculomotor strain, and reduced ability to detect fractures."

Dr. Bob Wachter, a UCSF patient safety guru, has a thoughtful piece on this in his own blog, which he titled: Tugging on Superman's Cape. Read it here.

Dr. Wachter riffed off a story he heard about legendary heart surgeon Michael Debakey performing sixteen open heart surgeries in a single day, even in his eighties. While the Baylor staffer who told Wachter this story was awestruck at Debakey's stamina, Wachter wondered what it would be like to be patient No. 16.

For the rest of us, there's a lesson when facing elective surgery. Surgeons love to stack up patients back to back and operate from the early morning to late in the day. If we have any choice, we should opt for a place early in the queue. Why tempt the gods of fatigue?

Article first published as Fatigue Wears at Doctors' Work Performance Too on Technorati.

Victims of hospital malpractice hunger to be treated with respect as human beings by the hospitals who have destroyed or damaged their lives. A simple "we're sorry" is a good first step, but only a first step. Some forward-looking hospitals are learning that implementing patient safety changes as part of the healing process makes good business sense in addition to helping the patients and their families.

The online magazine, Hospitals and Health Networks, has a good article in its current issue on this. An excerpt:

When Sandra Coletta took the helm as president and CEO of Kent Hospital in Warwick, R.I., in October 2008, she received a trial-by-fire course in the management of medical error. Two years earlier, in July 2006, a high-profile medical error had occurred in Kent's emergency department when heart monitoring that a doctor ordered for a patient never happened, and the patient died hours after seeking help in the ED. When Coletta began her post at Kent, the legal case was still pending.

"No one from the hospital had talked to the family," Coletta says. "They had only been contacted by lawyers." The hospital had taken a causality defense, its initial position being that the patient's death could not be proven to be a result of its failure to monitor.

For Coletta, it was black and white. The hospital had made an error and was not owning up to it. The family was not getting answers they deserved, and no one was healing, including the caregivers involved in the error.

"There are many pressures from all fronts not to get involved, especially from a legal or public relations perspective," says Coletta. Instead, knowing it would be the only way for everyone involved to begin the healing process, Coletta chose to sit down with the family and do the unthinkable in a medical lawsuit—apologize.

Read more about this different approach to defending hospital malpractice lawsuits here.

An Illinois Supreme Court judge who earlier this year voted to throw out a 2005 law that placed caps on the amount patients could receive in medical malpractice cases has raised $2.5 million for his retention campaign. Opponents of Tom Kilbride, who is running as an independent, have raised $650,000 to campaign against his retention.

Combined, the $3 million+ raised make this contentious race the most expensive Supreme Court retention campaign the state has ever seen, according to the Illinois Campaign for Political Reform.

Under the 2005 law, jury awards for pain and suffering had been capped at $500,000 for doctors and $1 million for hospitals. Kilbride, along with three other judges, voted to overturn those caps as violating the state's constitution.

The Kilbride campaign has received the majority ($1.4 million) of its money from the Illinois Democratic Party. The Illinois Federation of Teachers have also pitched in hundreds of thousands of dollars. His opponents believe these large donations show Kilbride is not the independent he claims to be.

“He claims in his commercials that he’s independent. That is pure hogwash,” said Ed Murnane, president of the Illinois Civil Justice League, which is heading the campaign opposing Kilbride’s retention. The league has been rallying support from national tort reformers and business interests because of the malpractice decision.The Kilbride campaign accuses its opponents of running a “smear campaign” and distorting Kilbride’s record.

The race has also drawn interest because the court is split along party lines. Kilbride is one of four Democrats on the court, while the other three justices are Republicans. It is feasible that a Republican could replace him on the court if he is not retained. However, an Illinois Supreme Court justice has never lost a retention race.

Source: The Galesburg Register-Mail
To read the malpractice decision at the heart of the campaign against Judge Kilbride, go here.

"Why didn't they check?" That was the front-page headline in a Bundaberg, Australia newspaper about Dr. Jayant Patel, asking why the local hospital had hired Dr. Patel when he had already been the subject of medical discipline for patient deaths and injuries in Portland, Oregon.

But tragically, the question wasn't asked until Dr. Patel had been working in the Australian city for three years and until he had been the subject of several confidential complaints to the licensing authorities from nurses who saw frequent complications with his surgical patients.

Once the newspaper put a reporter on the case, he found the old information from Oregon with a simple Google search.

Now the surgeon has been convicted of manslaughter for the deaths of three patients.

Read more here from CNN International.

Until a terrible injury happens to you or a family member because of someone else's carelessness, you probably give little thought to the civil justice system that holds wrongdoers accountable in American courts. Except for a nagging thought that maybe there are a lot of frivolous lawsuits out there.

That anti-lawsuit thought is planted in people's brains courtesy of the massive public relations machine of the U.S. Chamber of Commerce (which happens to be a few blocks from my own office in downtown Washington).

Now a new report documents how the Chamber really feels about lawsuits: They love them! WIth one qualifier: The Chamber aggressively uses lawsuits to cow government agencies or otherwise implement the agenda of the big corporations that fund the Chamber. They never side with the little people who get injured by indifferent or careless corporate activity.

One of the items on the Chamber's agenda is restricting the rights of patients to file malpractice actions against doctors and hospitals.

Here's an excerpt from the new report from the American Association for Justice:

On one hand, the Chamber spends an unrivaled amount of money lobbying to restrict access to the courts for ordinary Americans. On the other, it files copious lawsuits and briefs in defense of the likes of AIG, Wal-Mart, Firestone and a slew of pharmaceutical and insurance companies.

In almost every case, the Chamber’s litigation on behalf of corporations has come at the
expense of Americans’ health or financial security. The Chamber has:

• justified the actions of Wall Street banks that drove the country’s economy into
turmoil;

• defended the most conceited and worst behaved CEOs and their most extravagant
excesses;

• tried to force workers, instead of employers, to pay for their own safety equipment;

• filed numerous actions opposing any move to combat climate change;

• sought to shield pharmaceutical executives who skirted safety procedures that
ultimately killed 11 children;

• opposed measures allowing workers to receive a rest period during a full work day;

• fought on behalf of lead paint manufacturers found to have poisoned thousands of
children;

• defended corporations that discriminated on the basis of race and disability;

• and spent years defending big tobacco, asbestos companies and chemical companies
found to have contaminated water and air.

Read the whole report here.

The frequency of malpractice claims against hospitals has declined slightly and the severity of those claims is leveling off, according to a report from Zurich, the insurance company.

The fifth annual Zurich benchmarking report on claims trends in the healthcare industry, which collected data from 1,600 U.S. hospitals between 1997 and 2007, indicates that claims severity, or the average amount per claim, has stabilized over the past several years, with an average annual rise over the past 11 years of 4%.

Zurich also reports that teaching and children’s hospitals have higher claim severity than acute care community hospitals and outpatient facilities. Non-profit hospitals have the lowest severity; and among non-profits, faith-based institutions have the lowest severity of all.

Leo Carroll, head of Health Specialty Products, Zurich North America Commercial, says:

“It’s interesting to note that severity does continue to rise among claims valued under $1 million, which are the claims considered more typical within an institution's loss experience, while the most severe claims (those valued above $1 million and $5 million) have stabilized overall, the frequency of those large losses has increased slightly.”

Carroll also noted that the most severity prone states continue to be New York, Illinois and Pennsylvania. Meanwhile, in Pennsylvania, Gov. Edward G. Rendell has vetoed a bill that would have frozen primary medical malpractice insurance limits for 7 years, saying the bill would destabilize the medical malpractice insurance marketplace and undermine the state’s ability to attract and retain medical providers. According to Rendell:

“We have worked very hard in the last eight years to get to this new, improved place in which medical malpractice claims are down, insurance coverage is more available and affordable, and the number of medical providers is increasing. I vetoed Senate Bill 1280 because I do not want to impede that progress or put our doctors at risk. Further study, analysis and public input are warranted before implementing the changes contemplated in this bill."

Source: Insurancenewsnet.com

You'll find the complete Zurich report here.

When Trevor Roberts' leg bones snapped during a high school football game near Wichita, Kansas, he received the standard orthopedic treatment: a resetting of the bones with a titanium rod to hold them in place. So why did he have to have an above-the-knee amputation because of gangrene six days later?

The surgeon who had to remove most of the boy's leg, Dr. Archie Heddings at the University of Kansas Medical Center in Kansas City, told USA Today he thought the health care system had failed Roberts in some way.

Dr. Heddings told the newspaper:

"To me, in all honesty, I think this is a failure of the doctor-hospital system. I don't want to impugn anybody. But ... one of the first things you're supposed to do when there's an open fracture is get tetanus and antibiotics. Then, you take that person to the operating room and you get out all the dirt, you get out all the bone that doesn't have soft tissue attached to it — that's dead bone — and you take out all the dead muscle. And then if there's any question 48 hours later, you take the patient back to the operating room and look at the wound and make sure there's no dead muscle. If there is dead muscle, those bacteria have something they can reproduce in. And they'll ... start wreaking havoc."

From the newspaper's account, the first surgery to put the leg back together occurred at a Wichita hospital on the same Friday night as the injury. The 17-year-old was sent to his home near Lawrence, Kansas on the following Sunday. Then he had a high fever and went to another hospital in Lawrence two days later. It's not clear what happened at that visit, but he didn't get definitive care until two more days when he was back in the Lawrence hospital with another fever and a blistered foot. That brought him to the care of the surgeon in Kansas City who told the young man he had to amputate to save his life.

An investigation is under way to get to the bottom of this sad story.

Read the whole newspaper account by clicking here.

Five hospitals in New York City have joined a 3-year, $3-million program aimed at decreasing medical malpractice costs. The federally funded program will attempt to cut malpractice-related costs at the five hospitals by (a) revealing medical errors quickly; (b) offering early settlements; and (c) using judicial mediators to assist in settlement negotiations as an alternative to having cases go to jury trials.

The program is one of several funded by the federal government to encourage hospitals to acknowledge and reduce medical errors.

Four of the hospitals -- Beth Israel Medical Center, Mount Sinai Medical Center, Maimonides Medical Center, and Montefiore Medical Center – will focus on reducing obstetrical errors, while the fifth – New York Presbyterian Hospital – will try to prevent surgical errors.

Judges working as judicial mediators will help patients negotiate disputes with hospitals, though plaintiffs retain the option of seeking a jury trial. In addition, patients who use the judge mediators can have an attorney present during settlement talks.

However, concerns remain about how the program will protect the rights of patients – in particular, the right to a lawyer. Although participation in mediation is voluntary and patients are to be notified of their right to have an attorney represent them during the mediation, the fact that the patient is not required to have an attorney has led to concerns that hospital attorneys could take advantage of unrepresented injured patients and convince them to accept inadequate compensation. Another concern is that promoting a policy of early disclosure and settlement could allow hospitals to escape full liability

Sources: Renal and Urology News and 24/7 press release

A group of patient safety advocates has put together two outstanding web sites chock full of information about how to navigate the health care system safely for you and your loved ones.

The Empowered Patient Coalition (click here for the web site) is educating patients on how to become informed and involved in their own health care -- which makes for better, safer outcomes. One of their first projects is a blueprint for managing a stay in the hospital. The web site has many more valuable resources, including this directory of non-profit patient safety groups, helpful books and other resources. Many of these groups were started by lay people who had terrible experiences with medical malpractice in the health care system and want to make a difference by helping others to avoid injury.

A related web site has a broader directory of patient safety advocates who serve the public. The directory includes patient safety professionals, radio shows, blogs and other links. Click here for the link. Mothers Against Medical Error (MAME), through its founder Helen Haskell, put together this directory.

Until now, it’s been easier to rate appliances and restaurants than surgeons in most parts of the country, but that should change now that surgeons who perform cardiac bypass surgery are being rated on objective quality measures in Consumer Reports magazine.

The consumer magazine recently published ratings of 221 surgical groups in 42 states online. The same ratings will be available in the October print issue. To date, only a few states, such as New York, compile data-based ratings of physicians.

The data Consumer Reports used to rate the physicians was collected the Society of Thoracic Surgeons, which includes more than 90% of cardiothoracic surgeons in the U.S. in its membership. Physician groups, not individual surgeons, were rated either above average, average or below average based on (a) complication and survival rates; (b) the surgical technique used; and (c) the type of medication(s) the patient was sent home with after surgery.

An article in the New England Journal of Medicine called the move to make this data public “a watershed event in health care accountability.”

The 221 groups rated in Consumer Report represent less than a quarter of physician groups that perform bypass surgery in the U.S., as only surgical groups that allowed their information to be published were rated. Of these, only five were rated below average, which is fortunate, because the gap in treatment between a below-average and an above-average surgical group can be extremely wide; for instance, at an above-average hospital, patients had a 92% chance of receiving the recommended medications when leaving the hospital; at one of the below-average hospitals, patients had only a 24% chance of getting the recommended drug.

For now, the information is available only to people who subscribe to Consumer Reports online and print subscribers. However, STS says it will make the ratings freely available on its web site in a few months.

Source: New York Times
Visit the web site of the Society of Thoracic Surgeons (STS) here.

Two nurses who were fired from their hospital for alerting state authorities to a dangerous doctor have now been fully vindicated -- except for one thing.

The nurses won a $750,000 settlement of their lawsuit against the Winkler County (Texas) Memorial Hospital and the local authorities who criminally prosecuted them for their complaint to the state medical board about the doctor. Read details here.

The west Texas hospital has been fined $15,850 by the state health department for its role in firing the two nurses, who worked in quality assurance at the hospital and had a duty under the state nursing practice act to turn in the doctor.

The doctor himself, Rolando G. Arafiles Jr., has now been charged in an administrative complaint by the state licensing board with endangering at least nine patients in recent years and with other violations of good medical care. You can read the official complaint here.

The only thing left: nurses Anne Mitchell, RN, and Vickilyn Galle, RN, who live in Jal, New Mexico, still haven't been able to find a new job since their illegal firing, according to their lawyer, Brian Carney. And the physician? Dr. Arafiles still works every day at the Winkler County Memorial Hospital.

Recent news reports suggest that getting only part of your colon scoped for precancerous lesions might be a good enough way to prevent colon cancer. But the real story is that whatever test you get, there is a wide variation in the quality of the colon examinations that doctors do, and out of hurry or poor training, some doctors miss a lot of lesions that should be taken out.

So if you want to have a safe, effective -- and potentially life-saving -- exam, you need to do some simple doctor screening to make sure the doctor is right for you.

The good news is it's not that hard. Research has found that two simple questions will bring out what you need to know to assure that all the trouble you're going through to get your colon examined will be worthwhile.

Before I lay out the questions, some quick anatomy to make this easy to understand:

The food we eat passes through the stomach and then through nearly thirty feet of small intestine before hitting the large intestine, or colon. The place where the small intestine joins the colon is called the ileocecal valve. It connects the ileum, the final part of the small intestine, to the cecum, the first part of the colon. The cecum is also where your appendix dangles off the end of the colon. In most people, the cecum and the appendix are in the right lower section of your abdomen. Intestinal contents travel from there vertically, in the ascending colon, up your right side toward the liver. The colon then turns 90 degrees to cross your belly from the right to the left. This section is called the transverse colon. Then the colon turns south in the descending colon, which runs down the left side of your abdomen. Finally it moves sideways one more time, in the sigmoid colon, which then reaches the rectum and the anus.

A colonoscopy uses a flexible telescope inserted through your anus to travel the entire length of the colon, to where it ends at the cecum. Most of the visual inspection by the doctor is done while the scope is being pulled back from the cecum to the exit at the anus.

A sigmoidoscopy, by contrast, only inspects the first foot or so of your colon. In some people, that's enough to find most precancerous growths. But in many, it's not. African-Americans, for example, have a higher rate of colon cancer in the further reaches of the colon beyond where the sigmoidoscope looks.

So the smart choice is to go with the full colonoscopy, even though the bowel preparation you have to undergo is more burdensome. That's the recommendation of the American Gastroenterological Association, the doctors' group that specializes in the intestines.

Now for the two questions to get the best chance of a good colon exam:

First, ask the doctor:

What is your detection rate of precancerous polyps?

(These are technically called adenomas). The rate should be at least 20 percent -- or 25 percent in men patients and 15 percent in women patients. A lower rate means the doctor is very likely missing precancerous lesions that are waiting to turn into cancer -- when the whole purpose of the colonoscopy is to find them and snip them off before they go bad.

The second question for the doctor:

What is the amount of time you typically take to inspect the entire length of the colon?

This answer should be at least six minutes. It takes that long to adequately inspect all the nooks and crannies.

Both these questions get at the same issue. You want to minimize the chance that a hurried examination will give you a clean bill of health by mistake.

How often does that happen? Frightfully often. In research published this year, the rate of colon cancers in people who had had a colonoscopy within the previous five years was ten times higher when the doctors who did the colonoscopy had a detection rate of ten percent or less, compared to doctors who had a detection rate of twenty percent or more.

Dr. Douglas Rex of Indiana University has written guidelines for his fellow gastrointestinal doctors about how to do an adequate colon exam. Dr. Rex is an advocate for careful comparison shopping by patients. In an article he wrote for fellow practitioners, he estimated that the doctors with the lowest detection rates are missing 75 to 90 percent of precancerous growths in the colon.

That's a huge number. But patients can do their part to make sure their colon cancers aren't missed by asking these simple questions before they undergo a colonoscopy.

Mary Ellen Mannix lost her baby son James to an unexplained event in a hospital intensive care unit. It took persistent digging by her lawyer to work through the cover story of the providers who cared for James. Here is an excerpt from Mary Ellen's book, "Split the Baby: One Child's Journey through Medicine and Law."

The testimony of James's bedside nurse is highlighted in this sample, introduced by Mary Ellen:

From the moment I was told my baby "had a serious and sudden event", I had one question "What happened?"

I asked everyone while I was at the hospital and after we left. We never got an answer. Until I "tripped" upon a lawyer who wanted to help. The following post highlights the deposition of James's bedside nurse about the night of October 4, 2001. It was traumatic to have to learn via litigation. When a patient or family member asks a question(s), it is because they do indeed want an honest answer. Not a lawsuit. Medical malpractice litigation is however the only route though which some injured patients and families may have to get answers. As a result, this is all public information that if shared purposefully can help stop this from happening to another newborn, young child, mother, physicians, nurse, Heart family.

The pediatric cardiac intensive care unite nurse began with her first entry into James’s flowchart: “At 19:30 the baby awoke, heart rate decreased, requiring hand ventilation to bring the heart rate back up with a mask, and medications were given to achieve that goal.”

She was ready. Her bedside manner and sense of empathy for a patient had been checked at the door. James's lawyer,Jim Beasley, Jr., who also held his medical degree, slowed her down to go left from right, point to point.

“My initial heart rate was 138 and it had changed by the time I finished writing to 107. I have an arrow indicating that it was beginning to decrease,” the nurse testified.

Read more at Mary Ellen Mannix's blog site here.

One question I asked myself while reading: How could such a traumatic event have left this nurse with absolutely no recall of what had happened? Is amnesia one defense to unacceptable mistakes?

Medical errors and malpractice events cost the U.S. economy $19.5 billion in 2008, according to a recently released study commissioned by the Society of Actuaries.

Of the approximately $80 billion in costs associated with medical injuries, about 25% were the result of avoidable medical errors, the study says.

Lost productivity due to related short-term disability claims cost $1.1 billion, while $1.4 billion was lost due to increased death rates among individuals who experienced medical mistakes.

The study also found that:

• There were 6.3 million measureable medical injuries in the U.S. in 2008; of the 6.3 million injuries, the SOA and Milliman estimate that 1.5 million were associated with a medical error.

• The average total cost per error was approximately $13,000.

• In an inpatient setting, seven percent of admissions are estimated to result in some type of medical injury.

• The measurable medical errors resulted in more than 2,500 avoidable deaths and more than 10 million excess days missed from work due to short-term disability.

The study also identifies the 10 medical errors that are most costly to the U.S. economy each year. Approximately 55 percent of the total error costs were the result of five common errors:

• Pressure ulcers • Postoperative infections • Mechanical complications of devices, implants, or grafts • Postlaminectomy syndrome -- back surgery • Excessive bleeding complicating a procedure

Source: Fierce Healthcare

To view the complete report, click here.

A new study from the American Medical Association about malpractice lawsuits has an eye-catching statistic: Six out of 10 physicians 55 and older have been sued, according to the AMA. But is it really true?

"Even though the vast majority of claims are dropped or decided in favor of physicians, the understandable fear of meritless lawsuits can influence what specialty of medicine physicians practice, where they practice and when they retire," AMA Immediate Past President J. James Rohack, MD., said in a statement. "This litigious climate hurts patients' access to physician care at a time when the nation is working to reduce unnecessary health care costs."

Patient safety advocates called the report misleading. "Their data, as well as other studies, show that a small percentage of physicians are responsible for the vast majority of malpractice claims," according to Ray De Lorenzi, spokesman for the American Association for Justice, which represents lawyers who represent patients in lawsuits against doctors and hospitals.

Research has shown that "the vast majority of claims are meritorious and involve real errors," and those types of errors are not declining, De Lorenzi said. "This reinforces why lawmakers must focus on the 98,000 people that die every year from preventable medical errors, not eliminating the rights of injured patients," he said.

That figure was popularized by a 1999 Institute of Medicine report, which cited research stating that such medical errors kill between 44,000 and 98,000 people each year.

The new AMA study analyzed data from 5,825 physicians who responded to the AMA's Physician Practice Information survey, which examined costs of medical practice and associated factors from 2007 to 2008. Among the report’s highlights:

* Only 5% of medical liability lawsuits make it to trial. However, defendants won 90% of these cases.

* 42.2% of physicians were sued, with 22.4% sued twice or more.

* General surgeons and obstetrician-gynecologists were most likely to be sued (both 69.2%), while pediatricians (22.2%) and psychiatrists (27.3%) were sued the least.

Source: American Medical News
You can view the report from AMA Policy Research Perspectives, entitled "Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians" here.

Hospitals that want to reduce their exposure to malpractice lawsuits from patients might want to take a hard look at a new study about a radically new strategy: Being honest with patients when errors have happened.

The usual hospital strategy in the face of a malpractice event is to deny everything and hope the patient and the family go away quietly, then when a lawsuit is filed, defend it to the hilt. But they do things differently at the University of Michigan Health System (UMHS), and it's a win-win for both patients and the hospital.

Since 2001, the University of Michigan Health System (UMHS) has fully disclosed and offered compensation to patients for medical errors. Under this model, UMHS has claimed to proactively look for medical errors, fully disclose found errors to patients and offer compensation when at fault.

The study -- newly published in the Annals of Internal Medicine -- compared liability claims before and after the “disclosure-with-offer” program was implemented between 1995 and 1997 and assessed the number of new claims for compensation, number of claims compensated, time- to-claim resolution and claims-related costs.

After full implementation of a disclosure-with-offer program, the study found that the average monthly rate of new claims decreased from 7.03 to 4.52 per 100,000 patient encounters. Likewise, the average monthly rate of lawsuits decreased from 2.13 to 0.75 per 100,000 patient encounters.

Median time from claim reporting to resolution decreased from 1.36 to 0.95 years, wrote the authors, who also reported that the average monthly cost rates decreased for total liability (rate ratio, 0.41), patient compensation (rate ratio, 0.41) and non-compensation-related legal costs (rate ratio, 0.39).

However, the researchers acknowledged that the study “design cannot establish causality” and noted that malpractice claims generally declined in Michigan during the latter part of the study period. As a result, “the findings might not apply to other health systems, given that UMHS has a closed staff model covered by a captive insurance company and often assumes legal responsibility,” the researchers said.

Source: Annals of Internal Medicine
You can view the full text of the study here.

When is a radiation overdose not an overdose? When the facility giving the CT scans says so. At least that's what the Food and Drug Administration concluded when it dropped a safety investigation of the Huntsville, Alabama Hospital.

Now the FDA, which monitors radiation safety for the medical industry, is considering re-starting its investigation, once a New York Times reporting team found that the doses of radiation given to patients at the Huntsville Hospital were 13 times the normal dose for this type of scan, called a CT brain perfusion scan. The scan is used to test patients for stroke.

Even a properly done CT brain perfusion scan delivers about 200 times more radiation to a patient's head than a skull X-ray.

According to the Times, the hospital claims it used higher doses to get sharper images.

A quotable quote from the article, the latest in a series about medical radiation overdoses:

“It is absolutely shocking and mind-boggling that this facility would say the doses are acceptable,” said Dr. Rebecca Smith-Bindman, a radiology professor who has testified before Congress about the need for more controls over CT scans.

A long article in the New York Times brings home the dangers of women undergoing disfiguring surgery or radiation for breast cancer they never had. The story is a familiar one to malpractice attorneys but not well enough known to the public: The critical job of determining if breast tissue is cancerous or not is sometimes left in the hands of inexperienced pathologists who are prone to error.

The problem is worse with diagnosis of "ductal carcinoma in situ" (DCIS), an early form of cancer that may or may not progress to truly invasive cancer. The criteria for DCIS are sometimes subtle and not all pathologists agree on them.

What can patients do to protect themselves?

As I write in my book, "The Life You Save," you should never have any kind of cancer surgery without at least one second opinion on the biopsy. You can have a top cancer pathologist review your tissue slides for a cost of at most a few hundred dollars, and it might even be covered by your insurance.

Second, make sure the pathologist who interprets your specimen has enough experience. The College of American Pathologists now says 250 cases a year are the minimum for competence in this field, and it is starting a special certification program for breast cancer pathology.

The Times' article features Monica Long, a nurse in northern Michigan who had disfiguring breast surgery for DCIS, only to learn later that she never had it. She also learned too late that the pathologist at her hospital had only seen 50 cases a year and was not yet certified in any kind of pathology when he gave the reading on her tissue.

Some women get so scared by the diagnosis of DCIS that they have BOTH breasts removed. As previously reported in this blog, having a healthy breast removed does not improve a woman's statistical odds of survival. And as many as two out of three cases of DCIS never progress to full-fledged cancer. But such is the power of the "C" word to frighten people into doing anything -- even undergoing mutilation unnecessarily -- to try to stay alive.

This makes it all the more imperative for the pathology community to develop better criteria for the diagnosis of DCIS, and to improve the certification program so that this scary diagnosis is not made unless it's truly warranted.

The Times' "Well" blog has compelling accounts written in by other patients. Click here to browse them.

Reading these stories compels me to make another point: Unless you are financially destitute, I think it's a bad idea to let insurance coverage drive important medical decisions. If the insurance company won't pay for getting a second reading on the biopsy, scrape up the dough and get it done yourself. You'll be glad you did.

Among other second opinion providers, the Armed Forces Institute of Pathology in Washington, DC, gives second readings at a modest cost.

A new survey in a medical journal says the overwhelming majority of doctors believe that defensive medicine is costing the nation billions of dollars a year and they need protection from malpractice lawsuits. But does it really add up?

There is no question that U.S. patients undergo many more tests and procedures than any other country, and that we don't show anything good for it in our health statistics compared to other countries with much more inexpensive care.

Doctors typically say their peers order unnecessary tests because the patient will sue them if they don't.

This has always struck me as a strange admission.

To get paid, doctors have to attest to the necessity of any test they order, so when they order these so-called defensive tests purely to protect themselves, they commit insurance fraud.

Of course, if there's any chance the test may help the patient by revealing a treatable problem, then the test was necessary and doesn't fall into the category of insurance fraud or defensive medicine. Yet many doctors seem to think it's only the extra threat of being sued for not ordering the test that pushes them over the line to ordering it.

The Wall Street Journal's Katherine Hobson wrote up the new survey on her health blog, which appeared in Archives of Internal Medicine, and drew some interesting comments from readers. One patient told his own story:

* Gerald wrote:

I have read comments here with interest. I have had a doctor tell me he was ordering a test on me more out of a fear of being sued, and that it “was probably not necessary.” I was shocked. I said, “Doc, you are telling me that if I have a brain tumor, and die, that is not a serious enough risk for me to have an MRI, UNLESS YOU COULD BE SUED FOR IT!” I had some severe headaches.

The doctor turned red with embarrassment, and perhaps shame. He apologized and said he did not realize what he was saying. He could only be sued if turned out to have a serious medical problem that could have been prevented by the test. He was admitting that my life was not enough motivation for the test, but if he could be sued for the lost of my life; then it was good motivation for the test.

The survey was not scientifically rigorous. As reported by the WSJ:

Researchers say that 91% of the 1,231 doctors who responded to their survey “reported believing that physicians order more tests and procedures than needed to protect themselves from malpractice suits.”

The "belief" by a survey respondent that some doctors order tests only to protect themselves is a far cry from admitting that one personally does this.

Another commenter, who identified himself on the WSJ blog as Rod Tucker Esq., wrote:

Every survey such as this one should require that the doctors give their names and specific examples of the tests they had done which they did not feel were necessary. Then their patients could ask why they were forced to undergo these often harmful and usually painful tests and why they were forced to pay for unnecessary acts by the doctor. The insurance company could also refuse to pay because the test was by definition unnecessary.

No person in business (doctors get paid for their work and are by definition in business) has the right to demand that they get to mess up and not be responsible to the innocent person they hurt. So instead of trying to give doctors a free pass how about we treat them like everyone else and ask the cost of a test and decide for ourselves if it is necessary, just like we do when we buy anything else.

The greatest fear for any patient in the hospital, and the biggest nightmare for their families, is that something will go wrong suddenly and no one will respond until it's too late. Beeping monitors are no help if their alarms go unheeded. Patient safety experts know that one basic way to keep patients safe and prevent death or injury from malpractice is to have enough nurses on hand.

How many is enough? Nursing leaders got the state of California, after a 10-year fight with the hospital industry, to mandate minimum nurse-to-patient ratios: one nurse for every five post-surgery patients, one nurse for every two intensive care patients, one nurse for every four children in the pediatrics ward.

If you have a family member in the hospital, these numbers are worth keeping in mind. Ask the bedside nurse how many patients he or she is in charge of. And don't let hospital management confuse the issue by pointing out how many aides they have. Aides can plump pillows and give other comfort measures. But only a nurse can recognize when a patient is in peril and give lifesaving treatment.

A new study by a nursing professor at the University of Pennsylvania, Linda Aiken, asserts that mandatory minimum nurse-to-patient ratios like California's could prevent as many as 14 percent of post-surgery deaths in New Jersey hospitals and 11 percent in Pennsylvania.

Another important outcome of ensuring that nurses aren't overwhelmed by too many patients is that nurse burnout and job turnover go down, and overall quality of care improves, according to the study.

Theresa Brown, an oncology nurse in Pittsburgh, has an op-ed piece in the New York TImes asking why bills in Congress to mandate minimums nationally haven't gone anywhere.

Saving money, of course, is the issue. But that's a penny-wise answer. Saving lives can be a lot cheaper in the long run.

Sometimes patients sign up for surgery with an experienced surgeon who then allows a doctor in training, with far less experience, to do the actual surgery. If this hasn't been disclosed up front by the surgeon and agreed to by the patient, the switcheroo is called "ghost surgery," and it's not acceptable. But exactly that has now occurred at the prestigious Cleveland Clinic, according to allegations in a new malpractice lawsuit reported by Diane Suchetka in the Cleveland Plain Dealer.

Retired Air Force Colonel David Antoon says in his legal complaint filed in court that he, his wife, and the surgeon, Dr. Jihad Kaouk, signed a consent form in advance agreeing that only Dr. Kaouk would do the surgery to remove Mr. Antoon's prostate gland. He alleges in the suit that he has been left incontinent of urine and sexually impotent as a result of Dr. Kaouk allowing junior doctors to do the surgery.

The patient also contends that the hospital ombudsman who investigated his informal complaints told him there was no such consent form in his records at the hospital.

Surgical volume is critically important to a good outcome for prostate surgery, as previously reported on this patient safety blog. The author of one study in the Journal of the American Medical Association said he didn't feel comfortable about his own competence with the "robot" device now widely used for prostate removal until he had had several hundred cases under his belt. So it's understandable why Mr. Antoon would feel outraged that his wishes weren't followed.

I discussed "ghost surgery" in my book, "The Life You Save." Here is my advice for how you can avoid having this happen to you:

First, have a good discussion with the surgeon about who is going to do the critical parts of your surgery. If you don't feel comfortable turning over those aspects of the surgery to a doctor in training, then say so.

Second, follow up by putting it in writing. One simple way to do so is on the consent form. It usually says something like "I authorize Dr. Jones and/or his designee to perform _____ [type of surgery filled in here] on me." All you have to do is cross out the phrase "and/or his designee" and initial your cross-out.

Third, if you're in a teaching hospital, you might want to consider some compromise that lets trainee doctors do the non-critical parts of the procedure. But you have every right to insist that only the experienced doctor do the delicate, critical work. If the surgeon resists your wishes, you may have to go to another surgeon.

The scandal of Dr. Mark Midei, the cardiologist at St. Joseph's Medical Center in the Baltimore suburb of Towson, Maryland, is scaling new heights in the number of victims counted. The hospital mailed letters to 585 Midei patients informing them that an independent review shows they may have received heart stents unnecessarily for artery narrowing that Midei grossly exaggerated. But now, according to the Baltimore Sun, many more patients are coming forward whose procedures were done outside the two-year arbitrary time limit the hospital set for its own review. It appears now that the total number of cases of unnecessary heart stents could easily exceed one thousand.

Read more here.

Hundreds of patients appear to have received cardiac stents that they didn't need from Dr. Mark Midei, a cardiologist at St. Joseph's Hospital in Towson, Maryland. So why did no one at the hospital blow the whistle? And why did the patients not realize that Midei was rushing them into unwise and risky surgery?

Heart surgery is highly profitable, and there are no incentives for doctors or hospital administrators to rock the boat by raising questions when one cardiologist is putting stents into far more patients than his colleagues.

As for the patients, we Americans have a bias toward dramatic action. If one doctor tells us we need a stent to prop open the coronary arteries in the heart, and another doctor says all we need to do is take a pill every day, most of us will tilt toward the big intervention. Which can be a big mistake, because we then get a piece of metal permanently implanted in a blood vessel, and we have to take medicines anyway for the rest of our life to avoid getting blood clots from the metal that could cause a devastating stroke or more heart damage.

Recently in this blog, I pointed readers toward an excellent review by the Harvard Medical School of the scientific evidence on who should -- and shouldn't -- get the balloon and stent treatment for opening their heart arteries. Many studies have found that unless a patient is having repeated symptoms, the stent treatment does nothing to extend his or her life, even if an artery looks dramatically narrowed.

In the case of Dr. Midei, it appears that outright fraud might have been involved. You have to have a significant narrowing of the artery, 70 percent or more, to even start to qualify for stent treatment, and Midei aggressively over-read his own X-ray studies of the heart's blood vessels to make it seem that patients had much worse narrowing than they really did, according to the published allegations about his practice.

This raises a Fox/Henhouse issue: How is it that a cardiologist can do his own testing to see if someone needs treatment, and then be the one to profit mightily if the decision is yes, they need it? Should second opinions be mandatory on any patient with blood vessel narrowing?

Dr. Bob Wachter, a patient safety pioneer at UCSF medical school in San Francisco, wrote a thoughtful blog on this topic. I'm reprinting part of it below, and urge readers to read the whole article here.

Dr. Wachter writes:

Obviously, the Mideis of the world could be caught by requiring that every cath [blood vessel X-ray] undergo an independent second reading. Some insurers in New Jersey now require such readings before they authorize a stent, and at least one SoCal Kaiser hospital mandates that each cath be presented at a conference before a treatment decision is rendered, analogous to what many tumor boards do for cancers.

Such required peer review might have benefits beyond simply preventing the rare case of fraud. If done well, it might also ensure that other conflicts of interest and non-evidence-based decisions are avoided to the degree possible. For example, a meta-analysis in last month’s Annals of Internal Medicine illustrates the limited value of percutaneous coronary interventions – whereas older studies found that PCI was more effective than medical therapy in treating angina, more recent studies show that these differences have narrowed or even vanished. I’d guess that, when recommending a treatment for a patient with mild angina and a 60% LAD lesion, a peer review group is more likely to pay attention to this kind of evidence than the average cath jock – who may not only be staring at his kid’s private school tuition bill but also at a patient whose bias is to see a stent as a more intuitively satisfying solution than “just medications.”

Some will argue that mandating second opinions for every cath is the equivalent of hitting a nail with a sledgehammer, and they might well be right. However, I do favor at least random over-reads of a sample of catheterization studies. Something like this already happens in a few specialties. In many teaching hospitals, a random sample of pathology studies is reviewed by a second provider. In a few forward-thinking practices, radiologists re-read a sample of x-rays, looking for discrepancies. In response to this case, in fact, St. Joseph’s now requires that 5% of its cath cases undergo a random and blinded re-review. Random audits won’t catch every case of fraud, any more than IRS audits catch every tax scofflaw. But they do help keep people honest, particularly if the audits are coupled with a culture in which the docs welcome feedback and strive for continuous improvement.

Speaking of which, the Midei case made me wonder about the institutional culture at St. Joseph’s. Was Midei a rogue interventionalist working in isolation? Perhaps so – it's common for no other doc to be looking over the shoulder of a cardiologist and his cath readings. But cardiologists don’t perform caths on desert islands – they are assisted by cath techs and nurses. In my experience, these folks become as adept at reading cath films as any physician. If the allegations against Midei are true, it strains credibility to think that no one in the lab knew that inconsequential lesions were being read as tight stenoses and treated with stents.

And what about the hospital administrators? Stents are big business. When Johnson & Johnson first launched their drug coated Cypher stent in 2003, Dr. Midei told the Baltimore Sun, “This is the hottest thing in cardiology in years.” And it was: Maryland hospitals chalked up nearly $250 million in stent business in 2009, and St. Joseph’s stent revenues were $38 million, up more than 50% in 5 years. Before the case broke, St. Joseph’s advertised itself as the busiest cath hospital in Maryland, averaging nearly 20 interventional cases daily. While it is possible that no St. Joe’s leader knew precisely what was happening, I'm guessing that some did but chose to look the other way: the pressure to steer clear of the golden-egg-laying goose must have been intense. Perhaps the fact that the hospital’s CEO and two other senior executives resigned after the case broke provides a clue as to who knew what when.

Cases like this one are terribly troubling, not just because they harm individual patients but because they do violence to the trust that is so fundamental to the physician-patient relationship. Part of the solution must be more robust oversight procedures, such as mandatory second readings of randomly selected cath films.

But these cases also force us to consider the kind of culture that could allow such a fraud to take root and go on for years – a culture that likely prized the hospitals’ and physicians’ financial health over the clinical health of their patients. If the allegations are true, the penalties should be severe, not only for Dr. Midei but also for leaders who knew – or should have known – what was going on, yet remained silent.

Patients need to know that this is not just an issue of a few rogue bad apples. Medicine's fee-for-service payment system pushes doctors toward advocating for more aggressive and profitable interventions. The only way to find out what your body really needs is to shop for second and third opinions, every time. I have more on this subject in chapter 9 of my book, "The Life You Save."

The chapter title says it all: "The Second Opinion: Always Your First Choice."

A tragic death in Albany, New York proves the power of the civil justice system to spur safety improvements to prevent injury to other patients.

In settling out of court a lawsuit for the death of 32-year-old Diane McCabe, who bled to death after a Cesarean section delivery, the Albany Medical Center agreed to fund for the next 20 years a Diane McCabe Memorial Quality Lecture series focusing on enhancing patient safety. The settlement also requires the hospital to buy a maternal and neonatal simulator to be used in staff training on the labor and delivery unit and to change procedures on the use of a machine that monitors a patient's vital signs during childbirth.

The attorney for Ms. McCabe's family, John Powers, said:

"It was never about the money with the family. It came down to the non-monetary aspects involved with the settlement. They wanted to do something to make certain this doesn't happen to someone else and to create a memorial to Diane for the children as they grow up that they'll know that their mother is being remembered in this way."

Read more in the Albany Times Union here.

Unfortunately the medical industry continues to push for "reforms" that would curb the right of patients and their families to seek legal redress for tragic incidents of malpractice. The industry actually argues that hospitals would work harder to improve patient safety if they were freed from the risk of lawsuits when they fail to live up to their promises. Joanne Doroshow, the author of the Pop Tort blog, has a one word response to this notion: "Pul-leze!" Read more from her column here.

Deaths of mothers in childbirth are fortunately rare. But injuries to the newborn baby are not so uncommon. My law firm's website has more about birth injuries here and here.

It's helpful to look at the actual facts, not supposition, about so-called "tort reform" and medical malpractice, because so many medical leaders persist in arguing that curbing victims' rights to accountability for medical injuries would make the health care system better.

The following discussion is courtesy of Joanne Doroshow, the head of Center for Justice & Democracy, and based on a submission she made to the Medicare payment review board.

No serious economist believes that medical malpractice litigation is a major driver of health care costs. In over 30 years, medical malpractice premiums and claims have never been greater than 1% of our nation’s health care costs.

Senator Orrin Hatch asked the Congressional Budget Office to look into the cost issue. CBO responded in an October 9, 2009 letter, trying to determine health care cost savings if Congress enacted a menu of extreme tort restrictions advocated by the medical lobbies, the insurance industry and a lot misinformed doctors. CBO could go no further than to find an extremely small percentage - about 0.5% - of health care savings by wiping out most litigation, legitimate and otherwise (which is what these measures would do – see the Texas example, below). This is far lower than the highly exaggerated numbers thrown around by those who would like to restrict patients’ rights. Alexander C. Hart, “Medical malpractice reform savings would be small, report says,” Los Angeles Times, October 10, 2009;

To reach the 0.5% savings figure, CBO determined that 0.3% was specifically due to defensive medicine. That’s it. Moreover, CBO found little evidence of this “defensive medicine” phenomenon except in studies of Medicare, not studies of private managed care systems. Obviously doctors operate under the same liability rules no matter the system of payment or the age of the patient, so the explanation for this disparity cannot lie with the legal system. Rather, according to CBO, the problem is Medicare’s emphasis on “fee-for-service” spending, whereas private managed care “limit[s] the use of services that have marginal or no benefit to patients (some of which might otherwise be provided as ‘defensive medicine’).” In other words, CBO suggests that to the extent defensive medicine exists at all, it can be controlled through simply managing care correctly as opposed to taking away patients’ rights and possibly killing and injuring more people.

As far as medical malpractice premiums, CBO attributed 0.2% to this cost. This insurance industry continuously fights its own figures on this, but I think they speak for themselves. (See, e.g, a New York Times article.) And here’s what the figures say:

• Medical malpractice premiums, inflation-adjusted, are nearly the lowest they have been in over 30 years. The periodic premium spikes that doctors experience, as they did from 2002 until 2005, are not related to claims, which have been steady or dropping for many years, but to the economic cycle of insurers and to drops in investment income. In fact, medical malpractice claims, inflation-adjusted, are down 45 percent since 2000.

• Medical malpractice insurer profits are higher than the rest of the property casualty industry, which has been remarkably profitable over the last five years.

• Many states that have resisted enacting severe restrictions on injured patients’ legal rights experienced rate changes (i.e., premium increases or decreases for doctors) similar to those states that enacted severe restrictions on patients’ rights, i.e., there is no correlation between “tort reform” and insurance rates for doctors.

All the data backing up these statistics can be found here: For more information, contact the study’s main author, actuary J. Robert Hunter, former Federal Insurance Administrator under Presidents Carter and Ford, former Texas Insurance Commissioner, and now Director of Insurance for the Consumer Federation of America.

Finally, you may be familiar with the widely-read and cited June 1, 2009, New Yorker magazine article by Dr. Atul Gawande, “The Cost Conundrum; What a Texas town can teach us about health care,” which explored why the town of McAllen, Texas, “was the country’s most expensive place for health care.” The following exchange took place with a group of doctors and Dr. Gawande:

“It’s malpractice,” a family physician who had practiced here for thirty-three years said. “McAllen is legal hell,” the cardiologist agreed. Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere.

That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. Didn’t lawsuits go down? “Practically to zero,” the cardiologist admitted.

“Come on,” the general surgeon finally said. “We all know these arguments are bullshit. There is overutilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures.

This is true for all states that have enacted "caps" and other restrictions on patients' rights. Moreover, CBO noted that “imposing limits on [the right to sue for damages] might be expected to have a negative impact on health outcomes” and cites one study finding such tort restrictions would lead to a 0.2 % increase in the nation’s overall death rate. If true, that would be an additional 4,853 Americans killed every year by medical malpractice, or 48,250 Americans over the ten-year period CBO examines. This should be unacceptable to us as a nation.

An article by Jane Brody in the New York Times, "When Your Looks Take Over Your Life," draws attention to a tragic mental health issue called "body dysmorphic disorder."

These are people who are obsessed about a "flaw" in some aspect of their bodily appearance, and who sometimes subject themselves to repeated rounds of cosmetic surgery to "cure" this problem. And of course the surgery never works because the problem is much deeper than the skin. A malpractice lawsuit is not the answer for these patients, as I explained in a comment on the New York Times' "Well" blog:

As a malpractice attorney who represents patients, I have been consulted several times by potential clients whom I later realized had body dysmorphic disorder. When they called for the appointment, the story on the telephone was that they had been grotesquely disfigured by a cosmetic surgeon, often with repeat surgery. Then when I met them, I would not be able to see anything wrong with their appearance, even when they pointed it out to me.

One man in his mid-20s had had his nose operated on three times by the same surgeon. All I could see was that one nostril was slightly larger than the other. He was talking about needing to have yet another surgery. I politely urged him to see a psychiatrist first, and told him I could not represent him in any legal action against the surgeon.

My personal belief is that an ethical cosmetic surgeon would decline to operate on anyone with obvious signs of body dysmorphic disorder (if for no other reason than that this will be a hard-to-please patient), but a willing patient with the means to pay for the surgery can be persuasive for some surgeons, it seems. (Witness Michael Jackson.)

The legal system does not have good answers for these patients. A lawsuit would only perpetuate the patient's idea that their appearance can be "fixed" and that it's the doctor's fault for not doing so. Still, my heart goes out to people with this disorder especially when they subject themselves to a fruitless round of surgeries. They definitely need counseling.

Read more comments on the Well blog here.

A new website has tools for learning how to speak up effectively when you've had a bad health care experience. That can be anything from being on the wrong end of someone's rudeness to being the victim of a serious malpractice event. The website is called The Assertive Patient. Click here for the link. It comes out of Massachusetts but has good resources for patients everywhere.

The website has a good diagram here that shows the steps involved in getting resolution to a bad experience, especially if it's in a hospital. You start with talking with the providers involved and if they are non-responsive, the hospital will have some sort of patient advocate or ombudsman or quality assurance officer or "risk manager" (many different terms cover the same thing). If this doesn't work, formal complaints to regulatory bodies are the next step, or talking to a lawyer.

The final chapter in my book, The Life You Save: Nine Steps to Finding the Best Medical Care -- and Avoiding the Worst, also gives a step-by-step approach to getting to the bottom of poor quality care. And you can get the same information at my law firm's website, by filling out the form to download our free Injury Fact Kit.

A new report from Public Citizen puts the lie to claims that doctors and hospitals are burdened by excessive payments to malpractice victims. The report finds that as health care costs have soared, the total payments to victims of preventable errors has continued to decline.

The consumer advocacy group concludes that Congress should focus on ways to cut medical errors, not to reduce the rights of patients to be compensated for injuries.

According to Public Citizen, fewer medical malpractice payments were made on behalf of doctors in 2009 than any year on record, according to its study of the National Practitioner Data Bank numbers.

The value of malpractice payments in actual (unadjusted) dollars was the lowest since 1999. Adjusted for inflation, payments were at their lowest since 1992. Last year was the fifth consecutive year the number of payments has fallen and the sixth straight year in which the value of payments has fallen. In contrast, U.S. health care costs have increased every year since 1965, the earliest year for which such data exist.

A total of 10,772 payments were made on behalf of doctors in 2009, totaling $3.49 billion. That figure equals 0.14 of one percent of the Centers for Medicare and Medcaid Services estimated $2.5 trillion in overall U.S. health care spending for 2009.

As Public Citizen's report notes, numerous studies have found that injuries and deaths caused by medical errors dwarf the number of actual medical malpractice payments. For example, the Institute of Medicine found in 1999 that 44,000 to 98,000 people die every year due to avoidable errors. Subsequent studies have estimated even higher casualty levels.

The U.S. Senate Finance Committee is investigating deaths of patients at long-term care hospitals, in follow-up to a report in the New York Times last month. That report showed that the profit-making chains who run these hospitals, which cater to chronically ill patients, sometimes skimp on staffing and training, and disasters have resulted.

More on the original report in the Times can be found in our blog entry on the subject here.

These long-term care hospitals occupy a niche between large general hospitals and nursing homes. They do not treat specific kinds of patients but are defined only by the fact that patients tend to stay longer than at a regular acute-care hospital, but less time than at a nursing home. They are typically small, with around 60 beds. Many times they lease space from a regular hospital and will occupy a floor or wing in a larger facility.

The New York Times reports that it has received new information about disturbing events at hospitals run by the Select Medical chain. One example from the Times:

According to a doctor’s deposition in a lawsuit, nurses at a Select hospital in Tulsa, Okla., injected a relatively healthy 79-year-old woman with 10 times the amount of insulin she was supposed to receive back in January 2009. They then failed to notify her doctor for at least 90 minutes after they discovered that she had fallen into a coma. The woman, Ruth Tanner, died a month later without fully regaining consciousness, according to medical records and the lawsuit.

Select Medical generally does not comment on pending lawsuits, so out of respect for the legal process and the parties involved, it will not do so in the Tanner case, the company spokeswoman, Ms. Curnane, said.

Dan Graves, an attorney for Ms. Tanner’s family, said that family members agonized after the overdose. “Now their grief and loss has been multiplied by the knowledge that other families have suffered similar tragedies because of Select’s practices.”

Deaths from preventable medical error kill as many people in the nation's capital as guns, and far more than motor vehicle crashes, according to a new report from the D.C. Department of Health.

The report, the first of its kind in the District of Columbia, analyzed the 5,168 total deaths reported to health officials in 2007. It determined that fully half of the deaths could have been prevented. Among the leading causes of preventable death:

1. Tobacco: 860 deaths
2. Poor diet and physical inactivity: 780 deaths
3. Infections (not counting HIV): 240
4. Alcohol abuse: 150
5. Firearms: 140
6. Medical errors: 140
7. Poisons (and pollution): 110 deaths

DC Motor vehicle deaths were a distant 10th place on the list of leading preventable causes of death, with 30 deaths in 2007, according to the Health Department.

Another interesting number: The Department estimates that as many people died from lack of health insurance -- which discourages access to medical care -- as motor vehicles -- 30 people in 2007.

The estimate of deaths from lack of health insurance is based on the number of uninsured people in D.C. and uses methodology from a report by the Kaiser Family Foundation. The estimate of deaths from medical error was made by applying D.C. population numbers to estimates that were made in 2000 by the Institute of Medicine, part of the National Academy of Sciences.

It sure is. Work by Peter Pronovost and other pioneers in the patient safety movement has shown over and over that medicine's culture of "doctor knows best" can be dangerous to patient safety and can cause episodes of medical malpractice. That's because nurses (still mostly female) often see errors in the making and yet feel it is not their place to criticize or correct the (usually male) physician.

Pronovost, a Johns Hopkins critical care doctor, has a new book: Safe Patients, Smart Hospitals: How One Doctor's Checklist Can Help Us Change Health Care from the Inside Out.

Changing the culture of medicine, to encourage nurses to speak up as valued members of the medical team, is critical to improving patient safety, Dr. Pronovost says.

I interviewed Peter Pronovost last year for my book, The Life You Save: Nine Steps to Finding the Best Medical Care -- and Avoiding the Worst. One of the things I wrote about then was how the simple culture change of having all members of the surgical team introduce themselves by name at the beginning of the operation has been found to have a big impact on improving safety. Why? Because when people know each other by name, and not just by "nurse," or "doctor," they communicate better with each other, and good communications are vital in preventing hospital errors.

Patient Safety And Sexism In Medicine

I've been thinking about sexism in medicine since the news last month about the west Texas nurse who was brought up on criminal charges for having the gumption to report a doctor she thought was endangering patients to the state licensing board. The nurse was ultimately acquitted, as reported on this blog, but of course the outrage was that she was investigated and indicted in the first place (and fired from her job at the hospital where she had watched this doctor).

It's no surprise that the nurse was female, the doctor was male, and the nurse's accusers in the sheriff's office and the local prosecutor were male too.

Of course, it's not just the gender of the people involved, but their power. Doctors admit patients to hospitals and thus are "cash cows" who are often coddled by hospital administrators for fear the doctor will take his business elsewhere.

After the Texas "not guilty" verdict, there were some interesting comments from nurses about their experiences. One posted on the San Antonio Express newspaper web site was revealing:

I am from the east coast. There, the relationship between doctors and nurses is collegial. We respect one another as licensed professionals. I was amazed that the difference here in Tx. One simple example - if a patient being admitted for chest pain, and their blood test that shows they probably had a heart attack is positive, then standard of care is that they should be admitted to a unit that can do constant heart monitoring (telemetry). Where I am from, if the doctor gave written or telephone orders for a standard unit (without telemetry), it is the DUTY of the nurse to remind him/her that the patient has a positive Troponin and needs a telemetry bed. If you did not do that, and the patient had a poor outcome, the review committee would point the finger to the nurse that took the telephone orders for admission on not taking it up the chain of command until that patient had a telemetry bed. She or he would then face a peer review and be potentially turned into their state licensing agency to determine if their license should be suspended or revoked for failure to follow appropriate patient standards of care.

I heard a nurse very politely say "doctor, would you like a telemetry bed for this patient with a high troponin level"?

His response? "Can you put a nurse on the phone that knows how to take orders"?

The issue was dropped, right then and there, and the decision to let it drop was supported by the ER and hospital nursing supervisor, because they didn't want to upset the physician. Now I have met very nice physicians here, but for the most part, this is the attitude of many physicians towards the nurses. Nurses hold a license, and have a duty to ensure quality and safety of care, in addition to taking care of the patient.This includes reporting even the SUSPICION of unsafe care. It is a shame when our ability to do so is threatened by situations like this.

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.

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.

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.

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.

Time and again in U.S. health care, new technologies are hurried into wide use with little testing, scant training of their human operators, and lack of solid evidence that newer really is better. After the flush of optimism has faded, billions of dollars later, we learn how to judiciously use the new equipment, but only after patients have been hurt or killed by the rush to the new.

The latest example is the deployment of new radiation therapy machines on cancer patients with operators who are not properly trained or credentialed and equipment that has not been tested or calibrated. The New York Times' recent investigative series on the subject prompted one knowledgeable reader, Dr. Joseph Imperato, medical director of the Center for Advanced Radiation Medicine at Lake Forest (Ill.) Hospital. to write this:

To the Editor:

As a radiation oncologist practicing for 25 years, I believe that there is a crucial part of the story of radiation mishaps that has not been mentioned: the “nuclear arms race,” in which people want the newest technologies, without stopping to think about who is operating them.

In the past, academic medical centers were typically the first to obtain and use new technologies. The equipment would be thoroughly vetted and reported on in peer review articles before being accepted and used by the smaller community hospitals.

Now the reverse is true. Small community hospitals often far outpace academic medical centers. One example is the proliferation of proton centers run by for-profit companies. Often the staff has limited knowledge and experience with this extraordinarily complex equipment. And new technologies are often assumed by the public to be better, even though there is often little firm clinical data to support that.

As we struggle as a country to come to grips with health care costs, this is one area where there is great opportunity for savings. Clinical reviews can prevent the proliferation of needlessly expensive technology. What the public must come to grips with is that “new” is not automatically “better.”

See the Times' letters section for more.

In my book, "The Life You Save," I have several chapters that speak to this issue, particularly with new drugs. What patients need to understand is that whatever the technology, the early years of use are in essence a continuation of the testing phase. If you are comfortable with being a guinea pig, that's fine, but very often you can get better, safer care with the tried and true. And if the new technology looks enticing, go with an operator who has the most experience using it, because practice does make perfect.

Measured by results -- preventable deaths and injuries due to malpractice, medical errors, preventable infections, misdiagnosis and other events that shouldn't happen -- American health care has a lot of problems. Millions of patients are injured every year, and upwards of 200,000 patients die annually from preventable errors and hospital-acquired infections. The United States also lags far behind other developed countries in basic health outcome measures like life expectancy and infant death rates.

But when U.S. hospitals measure themselves with a different yardstick -- the "process" measures of how often certain important things get done for commonly treated diseases -- the results are astoundingly good. An annual report from the Joint Commission, the agency that inspects and accredits hospitals, finds steady improvement in the "process" quality measures that it looks at -- with most hospitals now performing in the 99% range on things like how often heart attack patients get standard treatments in the ER like aspirin and beta-blocker drugs.

The Joint Commission now measures 31 quality indicators. They cover the most common hospitalizable conditions: heart attack, heart failure (when the pump isn't pumping effectively), pneumonia, surgical care, and children's asthma. You can go to this website to look up information about a particular hospital.

The problems with the report are:

* Data is reported voluntarily by the hospitals, with no independent audit from anyone other than the Joint Commission. The Joint Commission says it's independent from the hospital industry but is often seen by critics as a cheerleader.

* Outcome measures -- deaths and injuries -- are not included in the report. Even infection rates, which could have required reports if Congress ever passes health care reform, are not yet reported.

Consumers Union has a Safe Patients Project. CU says it's high time for the U.S. health care industry to be required to report its results. Patient advocates like me agree wholeheartedly.

What can cancer patients do to protect themselves from malpractice in radiation therapy? This urgent question arises from a lengthy series of investigative reports in the New York Times. The articles exposed serious patient injuries that stem from therapists who are overwhelmed and inexperienced, lax regulation and indifference by hospital administrators.

A key part of the problem is that technological sophistication has outrun the ability of the humans running the radiation machines to monitor the safety of the radiation beams they train on patients' bodies.

Another issue is that no central agency is responsible for inspecting the machines and credentialing the people who run them. Depending on the type of radiation involved, the Food and Drug Administration, the Nuclear Regulatory Commission and various state health agencies could have jurisdiction. Or worse, each could claim that someone else has the jurisdiction, and the patient can slip through the cracks.

There is one simple way that patients can take some measure of self-protection. That is to make sure that the radiation therapy center treating you has significant experience, in years not months, with the specific machine being used on you. Too often, hospital administrators buy a fancy new machine, advertise it heavily in glossy brochures, but don't take the time to make sure the machine is properly calibrated and that the medical physicists who operate the machine are fully trained.

You should also ask if the machine treating you has been inspected recently by an independent agency. One federally funded inspection and testing service is the Radiological Physics Center, operated out of MD Anderson Hospital in Houston. It does inspections for any radiation center that wants to receive federal funding for clinical trials. The Center found in 2008 that nearly three in ten hospitals it inspected failed to accurately irradiate a test dummy using IMRT technology.

The Times also found rampant problems with fake credentials among medical physicists, who are in charge of making sure patients get the right dose of radiation. The American Board of Radiology certifies medical physicists in one of three sub-specialties. You can check if a physicist is certified at the umbrella website for all medical board certifications, the American Board of Medical Specialties. Click here to go to the login page to search for a medical physicist's certification. The same page will let you search for whether a doctor is board-certified in any of the ABMS specialties or sub-specialties.

Also, the American Board of Medical Physics runs some certification programs. Its website has lists of diplomates but lacks any searchable database of qualified physicists. So the ABMS website is a better choice.

I recommend that patients ask questions to find out the qualifications of the persons running your radiation treatment program. If they lack certification, why take a chance?

I discuss the certification issue in detail in my book, "The Life You Save: Nine Steps to Finding the Best Medical Care -- and Avoiding the Worst." Many of the most egregious cases of malpractice that I have prosecuted for victims' families have involved doctors who lacked basic board certifications. Click here for more information on the kinds of malpractice cases we work on.

More evidence of the urgent need for "checklists" to protect patient safety in complex medical treatments comes with a long article in the New York Times about terrible injuries from malpractice episodes during radiation therapy. Yet readers have to dive deep into the article to find this key point.

Scott Jerome-Parks suffered terrible radiation burns to his neck, and lingered for two years in agony before dying, because he received a seven-fold overdose in the radiation that was supposed to treat his tongue cancer, on three separate occasions. Why did it happen? The hospital, St. Vincent's in New York, blamed a confluence of tragic coincidences. But I reached a different conclusion, as I wrote in a blog post to the Times' "Well" blog:

Deep in this tragic article is the following paragraph that exposes the reforms that are needed before medical care can become safe for all patients:

"It was customary — though not mandatory — that the physicist would run a test before the first treatment to make sure that the computer had been programmed correctly. Yet that was not done until after the third overdose."

So there you have it. If the physicist had been required to run the test -- better yet, if the equipment had been set so that it wouldn't work until the final test had been run -- Scott Jerome-Parks would not have suffered the hideous injuries so eloquently described in the article.

Medicine needs to adopt standard and mandatory - not merely "customary" -- checklist routines to ensure the safety of patients. This is the thesis of Atul Gawande's new book, "The Checklist Manifesto," and I have a chapter on how patients can enforce checklist protocols before surgery in my own book, "The Life You Save: Nine Steps to Finding the Best Medical Care -- and Avoiding the Worst."

Many medical commenters on the New York Times "Well" blog defensively say, "We're only human," to excuse these kinds of errors. Yes! That's exactly the point of the checklist. It recognizes that we're all only human and that when we are deploying potentially deadly treatments, a final check and double-check is needed, every time, before pressing the button.

The Times also found that the manufacturer of the software that ran the linear accelerator, which delivered the radiation, did not have in place until after the injury a simple "fail-safe" mechanism to prevent the kind of error that occurred.

The entire article by the brilliant reporter, Walt Bogdanich, is worth reading. Here is the Times' own summary of the article:

The Times found that while this new technology allows doctors to more accurately attack tumors and reduce certain mistakes, its complexity has created new avenues for error — through software flaws, faulty programming, poor safety procedures or inadequate staffing and training. When those errors occur, they can be crippling.

I also recommend that readers interested in patient safety issues go through some of the NYT "Well" blog posts on this article.

An effort to overturn Maryland's unfair malpractice damages "cap" has been scotched by Maryland's highest court. The case involved Richard Semsker, a deceased Rockville attorney whose family was represented in a wrongful death lawsuit by Patrick Malone & Associates. The Maryland Court of Appeals has ruled that the jury's verdict must be reduced to account for the damages ceiling imposed by the state legislature.

An article in the Montgomery County Gazette discusses the decision and quotes the Semskers' attorney, Patrick Malone, who said:

"We had the entire Maryland medical establishment against us. While we have the better of the issue on the moral ground — damage caps are a terrible imposition upon victims of proven malpractice — on the other hand the establishment was against us on that."

While little understood by the general public, which often responds to vaguely worded public opinion polls by favoring some forms of "tort reform," including damage "caps," these arbitrary limits on damage awards impose a tax on the most severely injured victims of provable malpractice. Victims who have lesser injuries are not affected by the damage caps.

In the Semsker case, for example, no one challenged as unreasonable the jury's decision to pay Mr. Semsker's widow $1 million for loss of the husband to whom she had been married 21 years, and to pay each of his twin teenaged daughters $500,000 for the loss of their father. The jury heard evidence about how close the Semsker family was and how devoted Mr. Semsker was to his daughters and wife. The jury also ruled that the defendants should have to pay $1 million for Mr. Semsker's suffering in the last year of his life, which included multiple surgeries, radiation, and highly toxic chemotherapy -- all to treat a skin cancer that, according to the undisputed testimony, would have been 100% curable if his dermatologists had caught it in time.

But while the jury acted reasonably based on the evidence, the statutory damage cap required a rollback of the verdict for these "non-economic" damages from a total of $3 million to a total of $812,500. That is the "one size fits all" number that the legislature came up with in 2005 as a limit on all non-economic damages in all wrongful death lawsuits for malpractice.

Even worse, the damage cap discriminates against malpractice victims specifically, as compared to victims of other types of injuries. If the same physicians had run over Mr. Semsker with their car, that would have been a non-malpractice case and the damage cap would have been around $1.6 million instead of $812,500.

The Semsker case is also discussed in Mr. Malone's book, The Life You Save: Nine Steps to Finding the Best Medical Care -- and Avoiding the Worst, an excerpt of which can be read here.

The Semskers had persuaded the judge who presided over the trial that the damage cap statute was written in such a way that its language excluded their case from imposition of the cap. But this week, the Court of Appeals reversed that decision and imposed the cap.