August 26, 2015

The Connection Between Medical Malpractice Caps and Medical Harm

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

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

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

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

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

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

Good idea, huh?

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

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

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August 26, 2015

A "black box" for operating room mishaps?

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

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

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

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

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

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

So why not just save the recording?

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July 22, 2015

Doctor Who Defrauded and Disabled Is Sentenced to Prison

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

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

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

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

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

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

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

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

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

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

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

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

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July 7, 2015

Can You Tell Fact from Malpractice Fiction?

Never let the facts get in the way of a good story. That seems to be the rallying cry in too many medical-legal quarters. So once again, we offer a short quiz to separate the truth from what some people only wish was true about medical malpractice, courtesy of the civil justice website PopTort.

1. Medical malpractice case filings represent what percent of new civil cases filed in U.S. courts?

a. 25%
b. 12%
c. 5%
d. Less than 1%

(d) is the correct answer. According to the most recent data from the National Center for State Courts (NCSC), in 2012 medical malpractice case filings represented well under 1% of all incoming civil cases and less than 7% of incoming tort cases (negligence and intentional wrong cases that result in harm) in the courts of eight states reporting.

2. True or False: State-enacted “caps” on noneconomic damages (that is, limits on the amount of judgments) reduce the costs of so-called “defensive medicine” such as diagnostic imaging (MRIs, CT scans, etc.)


After analyzing data from the Centers for Medicare and Medicaid Services, researchers found that imaging costs did not drop in states with medical malpractice noneconomic damages (NED) caps. In fact, “imaging costs in some of the states that cap NED payouts were among the highest in the nation.”

For example, “California, a state with NED tort reform,” PopTort reported, “was ranked among the most costly for imaging”; charges there for a level I diagnostic and screening ultrasound was 36% higher than for all states, and over the past decade its imaging charges have increased by 400%, despite the NED tort reform.

3. How many surgeries are done each year on the wrong body part?

a. 50
b. 100
c. 250
d. 500

(d). Few things are more egregious or preventable than operating on the wrong body part. Yet according to a comprehensive data review published in JAMA Surgery, every year an estimated 500 surgeries are performed on the wrong body part and 5,000 surgical items unintentionally are left in patients’ bodies. In addition, 46% to 65% of adverse events in hospitals are related to surgery.

4. The Leapfrog Group, which scores hospital safety, says “patient safety should be Job No. 1 in every hospital.” What percent of hospitals does Leapfrog award an C, D or F “patient safety” grade?

a. 5%
b. 18%
c. 25%
d. 40%

(d. “[P]erformance on safety outcomes — including preventing errors, accidents and infections — has not significantly improved,” according to Leapfrog; 40% of the 2,523 hospitals analyzed received a C, D or F grade.

5. True or False: Most hospital executive boards consider patient safety a top concern.


According to the New York Times, “In general, hospital boards do not view themselves as institutional champions of quality…. Only half of boards view clinical quality as one of their top two concerns. In contrast, financial performance was a top priority for about three-quarters of hospital boards."

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June 26, 2015

When Malpractice Starts with a Doctor’s Mouth

A northern Virginia man successfully sued a doctor for defamation and medical malpractice, earlier this month receiving a judgment of $500,000 for the serious — and, frankly, weird — ethical and medical harm he suffered during a colonoscopy.

The case is weird because “defamation” is something plaintiffs who are medically harmed don’t often claim, and also because the proof of both the defamation and the malpractice was recorded by the man’s phone. During the procedure, he was under general anesthetic and dressed only in the standard hospital gown.

As the Washington Post explained,

“Because he was going to be fully anesthetized, the man decided to turn on his cellphone’s audio recorder before the procedure so it would capture the doctor’s post-operation instructions, the suit states. But the man’s phone, in his pants, was placed beneath him under the operating table and inadvertently recorded the audio of the entire procedure, court records show. The doctors’ attorneys argued that the recording was illegal, but the man’s attorneys noted that Virginia is a ‘one-party consent’ state, meaning that only one person involved in a conversation need agree to the recording.”

It was clear that the gastroenterologist, Soloman Shah, who was dismissed from the suit, and the anesthesiologist, Tiffany M. Ingham, mocked and insulted the man while he was incapacitated. Ingham made fun of his stated aversion to needles and made several other disparaging remarks about his character, stating her personal dislike of his manner. She defamed him, the jury decided, by warning a medical assistant not to touch a rash on his genitals because she might get “some syphilis on your arm or something,” and added, “It’s probably tuberculosis in the penis, so you’ll be all right.”

She was guilty of malpractice, the jury determined, by falsifying his chart with the notation that he had hemorrhoids. He did not, but Ingham was recorded as saying, “I’m going to mark ‘hemorrhoids’ even though we don’t see them and probably won’t...”

She and Shah also suggested “misleading and avoiding” the plaintiff after his procedure. Ingham was recorded as saying Shah should pretend to receive an urgent “fake page” and said, “I’ve done the fake page before,” according to the complaint. “Round and round we go. Wheel of annoying patients we go. Where it’ll land, nobody knows.”

Rarely is such disrespect for the people you’re supposed to help so clearly expressed and captured. No surprise that the jury, composed of human beings with the requisite compassion the medical “professionals” lacked, found in favor of the patient.

One of the jurors told The Post that the plaintiff had asked for $1.75 million and that the $500,000 judgment was a compromise between one juror who thought the man deserved nothing and at least one who thought he deserved more.

“We finally came to a conclusion,” the juror said, “that we have to give him something, just to make sure that this doesn’t happen again.”

Ingham seems to have disappeared from the northern Virginia area since the case came to light. Listening to her trash talk on the inadvertently recorded audio is a strange experience. One or two little black humor jokes is one thing. But as the audio rolls on and on, you realize this is one doctor who is alienated from the whole concept of the awe necessary when an anesthesia doctor beholds that a helpless patient's life is entirely in his or her hands.

You wonder how many doctors are so unhappy with their profession as to take it out on their unconscious patients. Hopefully the number is few, and maybe it's time for Ingham to think about a different career, when the people she's talking to may get a chance to talk back.

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June 21, 2015

Want Fewer Medical Malpractice Claims? Then Deliver Better Care

The verdict is in. Again. Yet another study proves that medical malpractice claims diminish not by limiting consumers’ rights to file them, but by delivering better medical care.

PopTort, an initiative of the Center for Justice & Democracy at New York Law School, commented earlier this month on a new study published in the American Journal of Medical Quality that showed how one state reduced malpractice claims by improving the quality of its hospital care.

“Turns out you can reduce claims and lawsuits not only by stripping patients of their legal rights after they’ve already been hurt (as in Texas),” PopTort observed. “You can accomplish the same thing by stopping the injuries and deaths in the first place, which they found examining a hospital system in Louisiana.”

The recent research study depicted how the drop in malpractice claims in that state corresponded with an increase in hospitals' quality scores based on 22 factors Medicare uses to measure hospital performance.

The study’s co-author, Dr. Khaled J. Saleh, who is chief of Division of Orthopedic Surgery at Southern Illinois University School of Medicine, said the findings suggest that hospitals can reduce liability claims with or without tort reform.

That term describes efforts to limit plaintiff judgments on medical malpractice and other restrictions that effectively stack the deck against people who have been harmed through medical misadventure.

“Clearly,” Saleh told HealthLeaders, “the evidence shows that if you do high-quality care, it is well received by patients and decreases your medicolegal costs."

Then there’s Texas. Its “success” at tort reform, PopTort reminded, has made its laws “so Draconian that legitimate claims can no longer be brought.” The extent of its decline in civil justice is explored in a new book, “Tort Reform: Plaintiffs' Lawyers, and Access to Justice,” by Stephen Daniels of the American Bar Foundation and Joanne Martin at the American Bar Endowment.

By reducing lawyers' ability to use contingency fees as compensation, as tort reform has done in Texas, attorneys lose their economic incentive to pursue even the most righteous claims. Pointing to more than 20 years of research, extensive surveys and interviews, Daniels and Martin illustrated the sorry effect of the tort reform movement in Texas on the ability of plaintiffs to obtain judgments.

PopTort referred to a Rand study of a few years ago that reinforced the idea that the best way to reduce medical malpractice claims is to clean up your medical act, not deprive harmed patients of their rights. That study focused on California, where there was a highly significant correlation between the frequency of adverse medical events and malpractice claims. According to the study, “On average, a county that shows a decrease of 10 adverse events in a given year would also see a decrease of 3.7 malpractice claims."

Its conclusion? “[N]ew safety interventions potentially can have positive effects on the volume of malpractice litigation — a desirable result to seek out, even beyond the immediate impact of medical injuries avoided.”

Then there was the paper three physicians published in 2011 about a comprehensive obstetric patient safety program at Presbyterian Hospital-Weill Cornell Medical Center in New York. “[I]mplementing a comprehensive obstetric patient safety program,” they wrote, “not only decreases severe adverse outcomes but can also have an immediate impact on compensation payments.”


  • 2009 compensation payments were almost 100% less than the average 2003-2006 payments ($27,591,610 to $250,000)

  • average yearly compensation payment from 2007 to 2009 was $2,550,136 versus an average of $27,591,610 in 2003 to 2006 (yearly saving of $25,041,475)

“How is it,” PopTort wondered, “that some respected opinion leaders don’t seem to care about addressing the problem of deaths, injuries, claims and lawsuits with proven patient safety solutions, but instead would rather focus on reducing accountability and the legal rights of sick and injured patients after they’ve been hurt? And by the way, then forcing taxpayers to pick up the tab for their care and letting the med mal insurance industry make out like bandits.

“It's obvious, but it bears repeating: The best way to reduce malpractice litigation is not to take away the rights of injured patients, but to reduce the amount of malpractice.”

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April 7, 2015

Medicare Pay Fix Has an Add-On: Malpractice Protection for Doctors

Last month much attention was paid to the passage of a bill by the House of Representatives to reconfigure how doctors are paid by Medicare. But one of its provisions escaped most people’s attention, and it has a huge potential effect on patient safety. It grants added protection for doctors against medical malpractice lawsuits.

As reported last week by the New York Times, “The bill, which requires the government to measure the quality of care that doctors provide and rate their performance on a scale of zero to 100, protects doctors by stipulating that the quality-of-care standards used in federal health programs — Medicare, Medicaid and the Affordable Care Act — cannot be used in malpractice cases.”

Everyone’s familiar with the comparison of law-making to sausage-making, and that description is apt here, too, as the language in the bill essentially replicates the language doctors and insurance companies wanted to see; that is, special-interest lobbies influenced public policy more than civil justice.

The medical industry claimed that because federal standards and guidelines do not fairly reflect standards of care, they shouldn’t be used as evidence of negligence when something goes wrong in the care of a patient.

But there has to be some kind of standard by which performance is measured, especially when taxpayers are footing the medical bill. Why should doctors and hospitals not receive the same kind of work scrutiny everyone else is subject to?

Insurance companies and federal programs such as Medicare increasingly require providers to report data that are used to review the quality of care. Reimbursement is based on performance as compared with similar providers.

As The Times explained, “Medicare, for example, asks doctors: What percentage of tobacco users receive counseling on how to stop smoking? What percentage of patients develop infections after surgery? What percentage of diabetes patients have blood sugar levels in the normal range?”

And that sort of oversight is only expected to increase as more people are covered by government insurance plans and as medical costs increase.

Providers worry about the increasing reliance on cold numbers, and there are limits to how well numbers represent someone’s skill and the ability to treat patients as individuals, not sets of symptoms.

Brian K. Atchinson is president of the Physician Insurers Association of America, a trade group for insurers. He told The Times that the bill would “eliminate the uncertainty” about how to use federal guidelines and standards in determining legal liability of providers. Rather than an extra layer of protection, he said the bill would, “simply preserve the status quo with respect to medical professional liability.”

But to other industry observers that seems more like a reason to excuse medical providers from paying the attention all patients have the right to expect. “Why wouldn’t you want to take these guidelines into consideration?” asked Tom Baker, an expert on insurance law at the University of Pennsylvania. “They indicate what a reasonable doctor does and should do, just like guidelines adopted by a medical specialty society.”

Other consumer advocates also see the bill’s provision as more ominous than reasonable.

The National Consumer Voice for Quality Long-Term Care told the newspaper that the protection provision would make it more difficult for nursing home residents who are injured to defend their rights, that it would interfere with their ability to prove negligence by showing that a facility had violated federal health and safety standards.

Provider lobbyists want such testimony to come from “experts,” not guidelines. They want doctors to be able to say that other doctors must be able to make decisions they believe are best for a given patient instead of being forced to make a decision based on what the government believes is best for all people with that condition.

That misses the point. No one argues that doctors must have flexibility in treating people; what they’re not allowed to have is a negligent practice. If they make a mistake, the reasons for it should be open to scrutiny by whatever measure can explain it.

The primary goal of the House Medicare bill, which the Senate did not consider before Congress left on Easter break, is to revise the way doctors are paid; it isn’t to address what happens if they’re negligent.

The bill would head off a scheduled 21% cut in what Medicare pays doctors; the Senate is supposed to consider the bill when legislators return April 13.

One of the bill’s sponsors, according to The Times, said the new payment formula would help doctors “get out from under the constant threat of payment cuts” while endorsing a new payment system based on “quality measures.”

“While taking these important steps toward ensuring quality care,” he said, “the bill specifically states that these quality measures are not creating a federal right of action or a legal standard of care.”

President Obama and many representatives, Democrats and Republicans, have endorsed the bill, but how many of them read, or understand, what it means not just for paying doctors, but protecting patients?

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March 29, 2015

The Poster Child for Medical Malpractice Injustice

If you’re looking for a model of how to deprive people of their rights after they’ve suffered from medical malpractice, go to Wisconsin. As reported last week in the Milwaukee Journal Sentinel, companies that provide medical malpractice insurance in that state are reaping huge profits while the number of medical malpractice claims have fallen to record lows because lawyers can’t afford to take cases that are so burdened by legal handcuffs.

Only 84 medical malpractice suits were filed in Wisconsin in 2014, down from 140 in 2013. In 1999, 294 claims were filed. But last year, the state-managed insurance fund for doctors grew to a bountiful $1.2 billion.

According to one longtime medical malpractice attorney in the state, "Ninety-nine percent of lawyers ... just don't want to take medical malpractice cases. The cases are very expensive, very time consuming and so many are lost that ought to be won."

Why are things so obviously upside down in Wisconsin?

Because state law prohibits harmed patients from filing a lawsuit in court until after they have filed with a state Medical Mediation Panel. About 1 in 3 mediation complaints in 2013 and 2014 were filed without lawyers.

Because state laws limit who may file medical malpractice lawsuits and how much they may receive in damages. Judgments for noneconomic damages, such as pain and suffering, are capped at $750,000 in Wisconsin.

Because state law limits who may file a medical malpractice wrongful death suit. “Only spouses and minor children can sue for loss of companionship in those cases,” reported the Journal Sentinel, “and parents who lose an 18-year-old child to medical error are locked out of the court system, as is a child of the same age who loses a parent.”

The mediation panels received 118 complaints in 2014, the fewest in the agency's history (there were 161 in 2013).

So the number of suits filed decline as the insurance fund grew. The company that underwrites more malpractice insurance in Wisconsin than any other posted national net income of $81.4 million in 2014, an increase of more than $9 million from 2013.

And doctors are getting a better deal, too; their premiums for coverage by the state Injured Patients and Families Compensation Fund are scheduled to decline an average of 34% in a few months, the second consecutive year that rates have fallen. Wisconsin’s fund is the largest of its kind in the U.S., nearly doubling its assets since 2009, when it had $645 million.

But it has paid out only $13 million on three — three! — claims during the 12-month period ending June 30, 2014. It paid harmed patients only $6.3 million in the second half of 2014.

Is anyone surprised that Ted Nickel, the state insurance commissioner who chairs the board that oversees the fund, declined to be interviewed by the Journal Sentinel?

Michael Matray, editor of a malpractice insurance trade journal, told the newspaper that medical malpractice lawsuits are down throughout the U.S. because so many states have laws that cap potential judgments, because it’s so expensive to bring a lawsuit and because juries tend to side with physicians, who win more than 9 in 10 cases that go to trial.

"Plaintiff attorneys are only taking the slam dunks," he said.

As we’ve explained in previous blogs, plaintiff lawyers generally are paid only when the verdict goes their clients’ way — that is, they receive a portion of the judgment, so they must cover the cost of all the expenses upfront. The Journal Sentinel said that such expenses can exceed $100,000, for such things as hiring experts to review the thousands of pages of medical records.

"Who is going to spend $130,000 and 500 hours of their life for a case that has little chance of winning?" said one plaintiff's attorney.

The saddest thing is that the chances of winning have so little to do with the merits of the case, especially when the state stacks the deck against you.

If there’s anything remotely hopeful here, it’s that one Wisconsin state senator has said she probably would sponsor a bill this year to allow parents of children younger than 27 who die from medical malpractice to file a wrongful-death suit.

It’s better than nothing, but not much.

Read the Journal Sentinel’s investigation last year into the impediments of bringing legitimate claims of medical malpractice to account.

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March 16, 2015

A Big Step for Civil Justice

Good news last week about protecting consumer rights. As spelled out by, the civil justice website, a large study supported by the federal government concluded that forcing individual credit card, bank and other financial/product services customers to agree to arbitration and forgo their class-action rights in the event of a dispute prevents righteous lawsuits from being filed.

The Consumer Financial Protection Board’s study was 700+ pages of evidence that these forced “agreements” amount to a system rigged to benefit corporations. At the expense, of course, of real people. (See our blog, "Arbitration Agreements: Bad for Consumers, Good for Nursing Homes.")

As PopTort explains, because “most cases are too expensive and difficult to bring individually, these clauses plus class action waivers result in the disappearance of claims and immunity for the wrongdoer.”

Study highlights include:

  • Forcing people to sign repugnant contracts is widespread. For example, almost 9 in 10 mobile wireless providers who authorize third parties to charge consumers for services have arbitration clauses. Such providers cover nearly 100% of the market.

  • Most people who are forced into arbitration or prevented from filing as a class give up their claims. Of tens of millions of consumer financial contracts, only about 600 arbitration cases and 1,200 individual federal lawsuits happen every year versus, on average, about 32 million consumers eligible for relief through class-action settlements in federal court.

  • Contrary to widespread misinformation that class actions benefit only attorneys, the CFPB found that “settlements totaled $2.7 billion in cash, in-kind relief, expenses and fees,” and that only about “18% of that [went] to attorneys’ fees and expenses.”

  • The CFPB also noted that those figures don’t reflect the potential value to consumers of companies changing their behavior. In the cases for which data was available, at least $1.1 billion was paid or scheduled to be paid to at least 34 million consumers.

As PopTort summarized, the misguided and unfair movement for “tort reform” has raged for decades. And its claims that such “reform” is necessary to prevent frivolous lawsuits, and enriching lawyers at the expense of just folks, have been proved wrong.

“Look at the area of medical negligence,” PopTort advised, “where preventable errors are at epidemic levels – the third leading cause of death in America. Ninety-nine percent of the time, there is no claim or legal accountability. If jury verdicts are severely limited by law, lawyers paid on contingency cannot afford to take many of the most serious and costly cases. And as any trial lawyer who has to turn away 100 cases for every 1 they take knows, most people have no idea that lawmakers have stripped away their rights – or even that they may have voted to give up their own rights, convinced by fabrications and fear-mongering by industries seeking immunity.”

The CFPB study is a big first step in the right direction of banning forced arbitration clauses and class-action waivers. Another positive development occurred last week, when a judge in Tennessee ruled that that state’s cap on economic damages in personal injury cases is unconstitutional.

As reported in the Insurance Journal, in 2011, the Tennessee Legislature limited the amount of money for a personal injury judgment. Noneconomic damages include pain and suffering, disfigurement or scarring and loss of enjoyment of life. In most cases, the cap for noneconomic damages is $750,000.

If you’d like to contribute to the effort to protect your rights as a consumer sign the petition, and as a potentially harmed patient, hope that tort reform laws get the same kind of attention as financial services contracts.

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March 8, 2015

Concierge Medicine Company Found Liable for Doctor’s Malpractice

The practice of “concierge” medicine has grown recently, thanks to doctors who are frustrated with the intrusive bureaucracy involved in the usual delivery of medical care, and patients with enough money to pay annual retainers for better access to them.

Now, this new-ish form of medical business is on the paying side of what is believed to be the first malpractice jury assessment. Last month, (KHN) reported on a lawsuit against MDVIP, the nation’s largest concierge medicine practice, and the jury’s $8.5 million verdict for the plaintiff.

MDVIP, which includes nearly 800 affiliated physicians in 41 states, was founded 15 years ago. Patients pay a $1,500 annual membership fee in exchange for faster service and more attention from their primary care doctor, but the fee doesn’t necessarily cover the full costs of care; as usual, those depend on each patient’s problem, and his or her insurance coverage. Some concierge doctors don’t accept insurance.

In the lawsuit, which was tried in Florida, MDVIP was found liable for the negligence of one of its physicians, who was sued by the patient’s family for misdiagnosing her leg pain. Despite the pain getting progressively worse, the physician and other MDVIP-affiliated staff repeatedly misdiagnosed the cause. The patient was referred to orthopedists who said they had not gotten her medical records or learned about the worsening symptoms.

With the benefit of that information, her serious circulation problem might have been discovered before it got so bad that her leg had to be amputated.

In addition to finding the MDVIP liable for that disastrous outcome, the jury also decided that it had falsely advertised the nature of its “exceptional” care.

As explained by KHN, “Industry experts say the ruling is significant because it shows concierge companies can be held liable for the care provided by their contracted doctors. The companies typically argue they do not actually provide care but merely act as brokers between doctors and patients.”

An official with the American Academy of Private Physicians, a trade group of concierge doctors, told KHN that the judgment shows that concierge companies “have a legal risk that everyone assumed did not exist.”

The primary care doctor had settled a lawsuit with the patient’s family before the MDVIP trial. The company had claimed that because its physicians were not employees, but contractors, it was not responsible for their actions. Doctors affiliated with the company pay it fees for marketing, branding and other business development services.

One of the plaintiff’s attorneys said the verdict will ensure that concierge companies exercise more oversight about the doctors with whom they affiliate, and that they will be more careful about their advertising claims.

Another attorney who practices health-care law but who was not involved in the MDVIP case called the verdict “shocking,” and agreed that it would prompt concierge companies to examine their promotional claims.

But MDVIP plans to appeal the decision, and one consultant for the concierge medical industry was skeptical that this single verdict, significant though it is, will have a long-term effect.

KHN estimates that 6,000 doctors in the U.S. have adopted concierge-style practices in the last 15 years, and the trade group said the number has doubled in the last five years.

An executive with the concierge trade group told KHN that the industry generally has a good track record, noting that although concierge physicians are not immune from malpractice suits, they’re less likely to be sued because they spend more time with patients than most doctors.

He has a point; as we’ve written, strong doctor-patient communication is key to good care, and you can’t communicate well when you’re treating by stopwatch. In order to have sufficient time for good care, concierge physicians generally limit the number of patients they treat; MDVIP’s limit is 600 compared with a few thousand for a traditional practice.

So money — retainer fees — can buy more time with the doctor. But shouldn’t everybody, not just those who can afford it, be able to take the time necessary to improve and maintain their health?

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February 18, 2015

One Woman’s Losing Struggle for Medical Malpractice Relief

Too many medical malpractice attorneys are turning away too many righteous cases because they’re not allowed to play on a level legal field. The result is that people victimized by serious medical errors suffer twice, once in the medical facility and the second time by the law.

A story recently published in the Insurance Journal told the story of Jennifer Eastman, who was admitted to a South Dakota hospital in 2013 to have a dead fetus removed from her uterus. Her loss and anguish were bad enough, but they would get worse, thanks to state law that deters legitimate claims like hers.

In the recovery room after her procedure, Eastman went into shock, and a doctor who examined her failed to notice that the doctor who removed the fetus had perforated her uterus. She was bleeding to death, and not until a nurse notice something was wrong was Eastman rushed back to the operating room for emergency surgery to remove her uterus.

Her dream of having a large family ended, she claimed, because of a medical error. She wanted justice, but couldn’t find a lawyer to take her case.

South Dakota caps noneconomic damages in medical malpractice cases at $500,000. The law passed in 1976 and has no provision for increases due to inflation. If it did, the cap would be more than $2 million today.

We recently blogged about California’s ballot measure last election to address the same statutory medical malpractices limitations. The measure failed, largely due to obscene amounts of medical money poured into a campaign filled with misleading, scary advertisements.

Because lawyers generally accept medical malpractice cases on contingency — meaning they are paid only if they win, from a percentage of the judgment or settlement — they can’t afford to spend the enormous amount of time it takes to try such a case unless they are reasonably assured of winning enough to make a living.

The costs of bringing malpractice cases have become enormous, as the Insurance Journal pointed out. “The cost of each case can run into the hundreds of thousands in time and expert witnesses. And in some cases, insurance companies can swoop in and take money from an award, leaving less for the victim and lawyer.”

So in South Dakota, and other states, providing justice doesn’t pencil out, and many deserving clients won’t get any. Steve Johnson, a top plaintiff lawyer in South Dakota, told the Insurance Journal that he has decided to stop taking medical malpractice cases partly because of the cap on noneconomic damages.

“The cap is a negative in terms of being able to adequately represent people in this particular area,” Johnson said. “It simply is.”

But plenty of people on the other side raise the tired — and demonstrably inaccurate — argument that the cap is necessary to maintain a strong health-care system. Dr. Mary Milroy, president of the South Dakota State Medical Association, still believes that the cap deters frivolous lawsuits despite overwhelming evidence that there are very, very few of those, and that doctors, as she claimed, don’t live in fear of being sued.

“If people judge South Dakota as a dangerous place with no caps, they may not come here to practice,” she told the Insurance Journal.

We’ve heard that before. But in Texas, for example, provider numbers have not diminished despite a draconian damage cap plus other laws that abrogate harmed patients’ rights.

Out of 100 people who have been harmed by medical mistakes, only two or three ever attempt to seek compensation. Still, about 30 states have laws that restrict what plaintiffs can recover in noneconomic losses, which include judgments for pain and suffering, emotional distress, loss of companionship and other injuries without specific dollar amounts.

That means that people with the worst injuries — brain damage, disfigurement — can’t be compensated commensurate with their suffering, Nora Freemana Engstron, a professor at Stanford Law School, told the Insurance Journal.

So lawyers who might want to represent them have to play the percentages. If potential clients don’t have large losses not subject to the cap (such as lost wages), they often can’t take the case. Engstrom said that disproportionately hurts people who are impoverished, including women, children and the elderly, regardless of the merit of their claim.

John Hughes, a South Dakota lawyer who gets more than 100 malpractice case inquiries every year, takes only two or three. He said one consequence of the cap on noneconomic losses is that many of medical error victims end up on Social Security disability, Medicare and other taxpayer-funded programs because they couldn’t access the justice system.

“The public ends up subsidizing the health care industry and their insurance companies,” the Insurance Journal said in summarizing Hughes’ explanation.

“We have the public subsidizing negligence,” Hughes told the magazine said. “I don’t understand a system that works that way. That is not a just society that allows anybody to externalize their negligence.”

The cap effectively creates a privileged class of people and institutions that aren’t held to the same standard for negligence. South Dakota’s cap applies not only to doctors, but to dentists, chiropractors, nurses, dental assistants, nurse midwives, as well as other specialties and their corporate employers.

So people like Eastman are left bereft on many levels. “It’s the justice part that I want,” she said. “I want validation, and I can’t get that.”

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February 4, 2015

Joan Rivers’ Death Prompts Malpractice Lawsuit

Last year, the sudden death of comedian and commentator Joan Rivers from what was supposed to be a routine procedure spurred an investigation by federal investigators, and now, a lawsuit for malpractice by her daughter, Melissa.

In August, Rivers went to Yorkville Endoscopy, an outpatient clinic in New York, for treatment of throat problems. Something went horribly wrong, and she went into cardiac and respiratory arrest during the procedure. She died several days later at Mount Sinai Hospital. As reported by the New York Times, it hasn’t been determined officially exactly what killed her, but the investigation enumerated several errors.

Still, the clinic was allowed to address problems in an effort to keep its accreditation.

The Times recounted, per the suit, how the tragedy unfolded:

The anesthesiologist was getting nervous.

Joan Rivers, the comic known for her sassy wit and raspy voice, had been complaining of more than the usual hoarseness. Now Ms. Rivers was on the operating table at an Upper East Side clinic and her private doctor, Gwen Korovin, wanted to send a small instrument into her windpipe to take a second look at her vocal cords,…

The anesthesiologist warned that the cords were extremely swollen, and that they could seize up and Ms. Rivers would not be able to breathe. "You’re such a curious cat," Dr. Lawrence Cohen, the medical director of the clinic, … scolded the anesthesiologist, … Dr. Cohen dismissed the anesthesiologist’s concern as "paranoid" and let Dr. Korovin proceed, … with disastrous results.

When Dr. Renuka Bankulla, the anesthesiologist, determined that Rivers’ airway was obstructed, that her vocal cords were closing, the claim says, she didn’t order a “crash cart” to administer a drug to relax her muscles so a breathing tube could be inserted, she waited several minutes then sought help.

Two anesthesiologists arrived, one of whom supposedly tried to administer oxygen through a mask, but it didn’t work.

Bankulla allegedly tried to find Korovin, an ear, nose and throat specialist, to perform an emergency cricohyrotomy. That’s a small incision in the throat to enable breathing. But, according to the lawsuit, Korovin had left the clinic.

Melissa Rivers’ claims are based on what The Times said were as-yet-unreleased documents, including a statement by Bankulla and interviews conducted by the medical examiner.

In addition to the errors supposedly made by the medical team (which included the failure to notice that Rivers’ vital signs were dropping), the complaint accuses Cohen of taking cellphone pictures of Rivers lying on the operating table while her brain was being damaged by lack of oxygen.

So the lawsuit also blames the celebrity culture for Rivers’ deficient treatment, accusing her doctors of being too star-struck to provide adequate care. Korovin did not have privileges at the clinic, but Cohen allowed her to attend, according to Melissa Rivers’ attorney, Jeffrey Bloom.

The suit says Korovin left the clinic when it became clear that Rivers was in trouble because she knew she was not supposed to be there, and “wanted to avoid getting caught.”

“Joan Rivers needed a doctor, not a groupie,” Bloom said in The Times.

The defendants in the lawsuit are Korovin, Bankulla, Cohen and the clinic. Cohen no longer is the clinic’s medical director, the clinic declined to comment on the lawsuit and the attorney for Bankulla told The Times, “The claims of malpractice against her are unfounded.”

In a statement, Melissa Rivers said, “Not only did my mother deserve better, every patient deserves better.”

The Times reported that the feds have given Yorkville Endoscopy until March 2 to correct problems discovered by the health investigators, or it will lose its ability to receive Medicare and Medicaid payments.

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February 2, 2015

Top Reasons Internists Are Sued

More than half of all malpractice lawsuits filed against internists were due to two kinds of errors, according to a study published last year that sought to figure out why internal medicine practitioners were sued, and how successful the plaintiffs were.

The research, published in JAMA Internal Medicine, disclosed that improper diagnoses and medical equipment failure accounted for the lion’s share of claims, as reported by

The research team, led by Dr. Sandeep Mangalmurti, a cardiologist, analyzed nearly 250,000 cases handled by the Physician Insurers Association of America. That’s a trade association of medical liability insurers concerned with more than 6 in 10 claims filed every year, which is estimated to be about 45,000. The cases in the study all were closed between 1985 and 2009, and the researchers limited their review to the ones involving internal medicine physicians; they numbered 33,747.

The data, the study authors wrote, "confirm that internists are vulnerable to claims related to what they do commonly — evaluation and management activities — and for the commonly fatal diseases that they are expected to diagnose, such as acute myocardial infarction [heart attack] and lung, colon, and breast cancers."

Mangalmurti’s team, by the way, found similar results when they analyzed the top reasons why cardiologists were sued for medical malpractice.

Of all the closed cases, these are the five most common reasons internists were sued were:

1. Harm caused by failure to diagnose correctly primary medical condition (26.4%)

As MedPage Today said, “It seems like a no-brainer that improper diagnosis would top a list of why any doctor would be sued for malpractice, but that is especially the case for specialties whose primary job is to diagnose patients. The exception might be a field such as surgery, where most of the work is procedural and not diagnostic.”

"I wouldn't be surprised in other primarily procedural-oriented specialties, the problem isn't diagnosis but actual improper performance," Mangalmurti told MedPage Today.

About 1 in 3 claims in this category were paid for a median amount of $183,300.

2. Breach of care due to other failures (25.4%)

This category includes events that happen but aren't actual mistakes according to the administration of medical care. Examples include failure to obtain consent or equipment failure. These are mistakes you wouldn't necessarily blame on a doctor’s poor judgment. They involve external factors that still can cause injury.

But as Mangalmurti told MedPage Today, physicians must be aware of these issues, because medical care isn’t just about making the right decision; it can be about factors out of their hands.

Almost 5 in 100 claims in this category were paid, for a median amount of $114,150.

3. Harm caused by errors in actual performance of a procedure (11.1%)

Although this category seems to be an obvious cause of malpractice lawsuits against physicians, fewer than 1 in 3 cases resulted in a payment to patients to compensate for damages; the median amount was $103,203.

4. Harm caused by failure to monitor subordinates such as a nurse or resident (10.9%)

Physicians shouldn’t be held responsible for some mistakes committed by a nurse or physician they’re supervising, but, as Mangalmurti told MedPage Today, "there are certainly some situations where the subordinate is acting as a surrogate or an extension of the physician."

He said this kind of error might be avoided through sheer common sense, monitoring the staff’s work when appropriate and setting expectations for them.

About 31 in 100 claims in this category were paid, for a median amount of $141,875.

5. Harm caused by incorrect prescription or administration of medications (8.5%)

This category includes mistakes such as giving someone medicine without finding about his or her known allergies, giving an incorrect dosage or giving a drug with known side effects and not checking for signs of those adverse events.

Almost 30 in 100 claims in this category were paid, for a median amount of $89,600.

After the top five categories, reasons for being sued for malpractice included harm from unrecognized complications of procedures (3.6% of all closed claims), harm from failure to perform medically indicated procedures (2.7%) and harm from not performing a medically indicated consultation in a timely manner (2.3%).

Although plaintiffs’ success in their lawsuits and their payment amounts were similar to previous findings and work in other subspecialties, the researchers found a wide range of circumstances leading to judgments for patients.

  • More than 4 in 10 claims from failing to refer patients and nearly 4 in 10 from not performing a procedure resulted in a payment.

  • But fewer than 5 in 100 claims because of nonmedical judgment errors such as equipment failure resulted in a payment.

Payment amounts were less extreme, ranging from more than $183,000 for incorrect diagnosis to less than $90,000 for incorrect prescription or medication administration.

The researchers found similar results when they reviewed the top reasons cardiologists were sued for medical malpractice.

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January 8, 2015

Ruling Makes Cruise Lines Subject to Medical Malpractice Lawsuits

It seems like every month brings another story about some dire medical problem aboard a cruise ship where the subjects’ misery is compounded by their inability to seek legal relief. But after more than a century, it looks as though cruise passengers now might be able to sue for medical malpractice.

As reported last month by the Associated Press (AP), a federal appeals court ruled that the exemption to malpractice liability that cruise lines were given through a series of court cases no longer should apply. The 11th U.S. Circuit Court of Appeals said that the most recent such ruling, known as “Barbetta,” is outdated law. Previous rulings had said that cruise passengers shouldn’t expect the same level of medical care on a ship as they get on land, and that ships' doctors and nurses were private contractors beyond the cruise lines' direct control.

So if you got sick or suffered an injury while taking a cruise, it was your bad.

That’s what happened to Pasquale Vaglio, who died after taking a fall while cruising. His family sued.

In 2011, Vaglio, 82, was with several family members aboard a Royal Caribbean ship when he fell and hit his head shortly after disembarking to go sightseeing in Bermuda. He was taken to the ship's medical unit. A nurse examined him briefly, noted a bump and scrape on his head, but did not recommend a diagnostic scan. She advised that he rest in his cabin, and that his wife should monitor him for signs of concussion.

Vaglio’s condition declined, and his daughter contacted ship personnel. It took 20 minutes for a wheelchair to arrive and take him from the cabin back to the infirmary. More time elapsed while staff collected his credit card information. Four hours after his accident, and suffering from bleeding in his skull, Vaglio was examined by the ship's doctor, who sent him to a hospital in Bermuda.

He was airlifted to a hospital in New York, where he died a week later.

The 11th Circuit court noted that the Royal Caribbean doctor and nurse wore cruise line uniforms, were presented to passengers as ship employees and that the onboard medical center was heavily promoted for its capabilities for care. Some cruise ships, the court said, even have intensive care units and laboratories, and can conduct live video conferences with medical experts on shore.

So why should these medical practitioners and the company that employs them be excused from the consequences of their errors?

"We can discern no sound reason in law to carve out a special exemption for all acts of onboard medical negligence," Circuit Judge Stanley Marcus wrote. "Much has changed in the quarter-century since Barbetta."

This victory for patient safety, AP said, could affect many of the 21 million people who take cruises every year.

Joseph Vaglio, Pasquale’s son, told AP, "What we didn't realize until this happened was that they [cruise lines] have zero liability. There is no way they should be getting away with this. They are making money hand over fist. Part of their cost of doing business should be to have a competent medical staff."

Instead of accepting responsibility for passenger safety, Royal Caribbean said, essentially, “say what?

"While cruise ships may have improved their medical facilities in the last 100 years, they should not be punished for it," wrote the company’s lawyers last month in a motion for rehearing. "Royal Caribbean is not in the business of providing health care. It is in the business of providing vacations."

The 11th Circuit’s ruling conflicts with other circuits' decisions. It could end up in the U.S. Supreme Court.

One maritime lawyer told AP that said if the decision stands, successful medical malpractice lawsuits will have to prove that the cruise lines control their medical staffs; that they aren't independent contractors.

“There's ample evidence of that control in the modern cruise industry,” according to the story. “The Cruise Lines International Association, for example, requires members to have medical staff aboard all ships around the clock. The organization has developed guidelines and policies for cruise lines to maintain high-standard medical care.”

A cruise line spokeswoman acknowledged that "Cruise ships go to great lengths to keep passengers healthy and well."

But Royal Caribbean remained unmoved, saying it was unfair to compare cruise ships to an onshore medical center with numerous specialists and access to lab work and test equipment. "Cruise ships are still not floating hospitals," according to its lawyers.

But the 11th Circuit's ruling gives Vaglio's relatives the right to prove their claims that the ship’s medical staff was negligent in his death. Absent a settlement, the case will go a jury to determine if damages are due.

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December 21, 2014

In Military Hospitals, Whistle Blowing Is Bad for Your Health

Another takeout in the New York Times' coverage of poor quality in our nation's military medical system has this quote about what happens when doctors and nurses on the inside complain:

" ... brushed off, transferred, investigated, passed over for promotion or fired after they pointed out problems with care."

The Times had asked anyone with experiences of military medicine to write in to the Times' reporters, and today's piece talks about the dozens of responses from doctors and nurses trying to buck the culture of silence and obedience, which works most of the time for the military, but not for health care.

The newspaper is still looking for stories from individuals with first-hand knowledge of the military health care system. Go to this web page if you have one to tell. They won't publish your name without your OK.

December 4, 2014

People Who Commit Medical Errors Still Don’t Get It

Knowing what is the right thing to do and research supporting the wisdom of doing it still haven’t moved a lot of practitioners who commit medical errors to respond as they should.

The results of a survey conducted by ProPublica, the consumer investigative news site, are pretty well summed up in its headline: “The Two Things That Rarely Happen After a Medical Mistake.” Patients, the story says, seldom are told or get an apology when they are harmed from medical care. Little wonder that they turn to a medical malpractice lawyer to try to figure out what happened.

The study examined responses of 236 patients who completed ProPublica's Patient Harm Questionnaire during a one-year period, and who agreed to share their experiences. The study was led by Dr. Marty Makary, professor of surgery at the Johns Hopkins University School of Medicine, and was published last month by the Journal of Patient Safety.

Why do we still have to report that this survey, like so many stories told in court when harmed patients seek redress for medical mistakes, showed that patients who suffer injuries, infections or mistakes during medical care rarely get an acknowledgment or apology?


  • It was common for health-care providers to withhold information about medical mistakes. Only 9 in 100 respondents said the medical facility voluntarily disclosed the harm.

  • When officials did disclose harm, often it was because they were forced to. Nine in 100 respondents said the harm was acknowledged only under pressure.

  • Apologies were infrequent. Only 11 in 100 patients or their family members reported getting an apology from a provider.

  • More than 3 in 10 reported paying bills related to the harm. The average cost: $14,024.

According to ProPublica, another study in the Journal of Patient Safety estimated that at least 210,000 and maybe as many as 440,000 U.S. hospital patients a year die from medical mistakes. (See our blog, “Protecting Yourself from the Thousand-a-Day Toll of Medical Error.”)

The researchers for the more recent survey suggested that clinicians might see the need to be more honest with patients about the adverse effects of their treatment, but might lack the “moral courage” to do it. As we’ve blogged repeatedly, such acknowledgments go a long way toward heading off litigation and improving patient care.

The researchers said that patient advocates and providers should work together on how to best inform patients, and that medical schools and training programs can introduce the needed skills. Again. This is not a new prescription for correction, so why isn’t the message getting through?

Because the study’s findings come from a self-selected sample of patients, it can’t be considered hard science from which definitive conclusions about patient harm or disclosure can be made. But, really, isn’t there just a whole lot of common sense here?

To share your story about being harmed by medical care, fill out the questionnaire on the ProPublica site, and also consult the Safe Patient project sponsored by Consumers Union.

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November 16, 2014

Hospital Settles with Ebola Victim’s Family

Last week Texas Health Presbyterian Hospital settled the malpractice claims brought by the family of Thomas Eric Duncan, the man who died of Ebola because of serial mistakes the Dallas facility made.

Although the terms of the settlement weren’t disclosed, the family’s attorney, according to the Los Angeles Times, said it was comparable to what a jury might have decided in a civil lawsuit. In Texas, of course, that’s not much — it’s one of many states that cap malpractice judgments. In the Lone Star state, the maximum a harmed party may receive for pain and suffering against a physician is $250,000, and damages against a hospital are the same amount.

But the fast resolution tells a story beyond the fact that mistakes were made that demanded redress for the patient’s family. The underlying message is, that for all its initial missteps we blogged about last month (See “Ebola Patient’s ER Discharge Was Classic Malpractice”), ultimately the hospital did the right thing: The chief executive apologized to the family, and again publicly in a letter printed in local newspapers.

And when the settlement was announced, hospital officials repeated the apology in no uncertain terms.

Capping the amount aggrieved parties may receive as a result of medical malpractice is unfair, and undermines justice, especially when the amounts are as low as Duncan’s relatives presumably received. As PopTort, the civil justice blog, noted last week, Texas law essentially immunizes hospitals, which doesn’t exactly incentivize them to reduce errors and promote patient safety.

But at least the dirty laundry was washed with dispatch. We can only hope Presbyterian Hospital continues to do the right thing: Don’t screw up, and when you do, don’t dance around the truth — acknowledge what happened, who got hurt and make a meaningful gesture to make it better.

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November 10, 2014

Electronic Medical Records Can Frustrate Doctors and Threaten Patients

When it comes to medical malpractice, doctors are concerned about something the rest of us haven’t thought much about —the use of electronic medical records.

Writing on, Neil Chesanow, senior editor of the site geared toward health care practitioners, explains how a doctor can be sued if his or her medical records compromise patient safety or confidentiality.

As we’ve written, although mistakes happen and some need to be corrected through legal means, the single best way a doctor can avoid being sued is to make the doctor-patient relationship a priority of care.

That means communicating often, and with respect. Studies have shown that health-care providers who admit their mistakes, and apologize, are less likely to be sued. This seems especially so in terms of record-keeping.

Being compensated for having been medically harmed isn’t about vengeance, it’s about rightful redress of grievances. And people who have strong relationships are much less likely to be aggrieved about mistakes of minimal consequence.

A lot of Medscape’s professional readers say that electronic health records (EHRs) are time-consuming and make patient visits longer. Many try to streamline their use, and in the process leave themselves vulnerable to malpractice lawsuits.

“Even if your EHR has a bug or design flaw,” Chesanow writes, “it's up to you to contact the vendor to get it fixed. Otherwise, if a patient is harmed as a result of the glitch, you may bear the blame in court. That's what the vendor contract you signed essentially says: The buck stops with you.”

Here are some ways physicians might try to make EHRs more efficient but that could put you at risk:

  • copying and pasting large pieces of text from one record to another

  • sharing a single password with several staffers in the practice

  • ignoring pop-up support prompts

Asking your doctor about these habits can be difficult; it can make him or her defensive. Practitioners are frustrated by the demands of insurance paperwork and medical facility administration; many feel like they’re forced to use a certain system, then held liable when it doesn’t work. Like everybody else, they get irritated by the idiotic demands by faceless corporations and technology that doesn’t work as it’s supposed to.

Here’s how one doctors expressed his frustration. "The software engineers employed by my office's EHR vendor are arrogant, unresponsive to my requests, and write a simple sentence so poorly that their emails are unintelligible. I am dismissed as a nuisance by the vendor because I don't have any financial authority over the EHR. From a malpractice standpoint, I feel my only options are to quit or keep a record of my complaints and how they have been ignored by the vendor."

So when you ask about how your records are kept, be sympathetic to their plight — a doctor who sees you as a partner instead of a difficult busybody is more likely to tell you what you need to know, and to protect your interests.

"The best doctors were the country doctors," one provider told Medscape. "Doctor to patient — not doctor to computer gizmos, and somewhere in this hole of technology is the patient. Could you throw me a rope, please?"

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November 9, 2014

Doctor Demonstrates How Malpractice ‘Reform’ Won’t Cut Health-Care Costs

Like abortion, gun control and Obamacare, medical malpractice is a hot-button issue that makes people claim crazy things to make a point. People who want the truth about the effect of malpractice “reform” on the cost of health care should listen to Dr. Aaron E. Carroll.

Writing last week in the New York Times, Carroll, a professor of pediatrics at Indiana University School of Medicine, reviewed statistics and studies to reach the conclusion captured in the title of his op-ed: “Malpractice Reform Won’t Do Much to Reduce Health Spending.”

We regularly weigh in on the pressures felt by harmed patients and their advocates when so many interests try to deprive them of their rights by capping the amount a jury can decide they are due. In his commentary, Carroll focuses on one claim these forces make that is demonstrably wrong: that if you “reform” the legal system, the cost of health care will drop.

“The rationale for malpractice reform as cost control is somewhat complex,” Carroll writes. “It assumes the existence of ‘defensive medicine,’ meaning that doctors order additional tests, or perform extra procedures or recommend more visits, all because they think those actions will protect them from being sued. Doctors fear an ‘epidemic’ of lawsuits so much that they practice wasteful medicine to shield themselves from nuisance cases, this theory goes.”

Fear, Carroll shows, should take a back seat in favor of fact.

As he notes, through examining the National Practitioner Data Bank’s statistics about malpractice payments made on behalf of doctors, there’s no “malpractice crisis”; the number of those payments has declined steadily for 10 years.

That doesn’t mean malpractice and protecting against it isn’t costly, but its relative expense pales in comparison to other health-care costs.

Carroll’s review of one study in 2010 showed that the estimated cost of malpractice to be more than $55 billion a year, including about $5.7 billion paid to plaintiffs for damages caused by medical error, and $4.1 billion for expenses such as legal fees and the administration of justice. The rest, about $45.6 billion, was for defensive medicine.

That’s a lot of money, but consider: That study concluded that the cost of the malpractice system was 2.4% of all health-care spending.

Even if you believe that health-care is more expensive because doctors are afraid of being sued, Carroll says, theoretically reform could reduce fear, and waste. It doesn’t.

“In 2003,” Carroll reminds us, “Texas passed a law that capped noneconomic damages at $250,000 per year. The idea was to decrease the number of suits, lowering overall indemnity payments, which would lead insurance companies to decrease premiums for malpractice insurance. This, coupled with reduced claims, would make doctors feel safer, and therefore reduce their practice of defensive medicine.

“Health care spending didn’t go down in Texas, though. In fact, Medicare spending per beneficiary went up more quickly in Texas after the change than it did in the rest of the country.”

As we reported last month, the New England Journal of Medicine published a study about the changes in emergency-room care in Texas, Georgia and South Carolina, which also capped damages in 2005. Compared with neighboring states without similar laws, those states had no significant changes in factors like how often imaging was used to rule out problems and and how many patients were admitted to the hospital.

In other words, “reform” didn’t change anything.

The evidence of how misguided it is to effect positive change through taking away harmed people’s right just mounts. Carroll looked at another study of more than 15 million medical insurance claims in 30 states with varying levels of risk of malpractice suits to compare how the same conditions were treated in states with high malpractice-suit risk and in states with low risk.

The difference wasn’t much. “[E]ven if malpractice premiums fell by as much as 30% (which would be huge),” Carroll summarizes, “overall spending on defensive medicine would drop only 0.4%.”

So, he suggests, even with capped damages and reduced indemnity payments, the cost savings aren’t always passed on to physicians in the form of lower malpractice insurance premiums, and so they don’t change their defensive behavior.

“Sometimes those savings are pocketed by insurance companies, as they appear to have been in Florida since malpractice reform passed there in 2003,” Carroll says. “If that happens, there’s no reason to believe doctors will practice much differently.”

But if fear of being sued does contribute to the practice of defensive medicine, it’s not the only thing that does. As Carroll notes, doctors order tests, procedures and consultations for lots of reasons. “The most glaring one is that usually physicians are paid for doing so. Other times, physicians want to play it safe not only because they might be sued, but also because they think it’s in the best interests of their patients to double- or triple-check some detail.”

He refers to a recent study in JAMA Internal Medicine that analyzed how many orders were defensive in nature, and how much of the decision for that procedure was defensive. The doctor subjects rated their own orders using a “defensiveness score” from 0 (not at all defensive) to 4 (completely defensive).

Defensive orders were not uncommon, but being defensive as the sole reason for ordering a test was, accounting for less than 3% percent of overall treatment cost.

“If we’re being honest,” Carroll says, “this is the waste we might trim by malpractice reform — and while 3 percent of medical spending is nothing to turn up our noses at, a one-time reduction of that amount, even if achievable, won’t do much for the long-term problem.

Meanwhile, other orders may also be “defensive,” but if they’re also being issued for reasons unaffected by legal reform, they would continue to made in the future.”

“… There are many legitimate reasons to reform the malpractice system,” Carroll concludes. “It just doesn’t appear that reducing health care spending is one of them.”

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October 27, 2014

How "Tort Reform" Is Hurting Medical Care for Everyone

It's bad enough that damage caps and other so-called "reforms" punish patients who have suffered preventable injuries from medical malpractice. But new research says it's much worse: These reforms actually worsen quality medical care for all patients. And they don't have any desirable tradeoffs like making care more affordable or attracting more doctors to a state.

Blogger Joanne Doroshow of the Center for Justice and Democracy, a patient rights advocate, reviews the evidence in a new piece on Huffington Post.

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October 26, 2014

Independent Report Shows Hypocrisy of Attacks on Medical Malpractice Claims

When the conversation turns to public policy, and how to protect individual rights, the nonprofit, nonpartisan organization Public Citizen calls itself “the people’s voice.” This month it has been particularly articulate on the state of medical malpractice lawsuits and claims. They're low, and there is no reason to cut back on patients' rights to bring claims for preventable injuries.

The group’s new report concluded that although medical malpractice payments rose slightly last year, payouts remained at an historic low. Public Citizen analyzed data from the federal government’s National Practitioner Data Bank (NPDB) to show that the dollar value of malpractice payments in 2013 was the second lowest in the last 15 years.

Confirming what we’ve shown in previous blogs, the analysis supports that while the number of avoidable errors occurring in hospitals remains disturbingly high, liability payments for these errors has declined.

In a statement accompanying the release of the report, Robert Weissman, president of Public Citizen, said, “Medical malpractice should be treated as a health issue, not an economic one. And the cure is not reducing access to justice for victims of malpractice, but eliminating avoidable medical errors and negligence.”

But many states continue to cap the amount harmed patients may receive in a malpractice judgment, and take other steps to make it harder to sue doctors, like the recent wave of laws in some southern states to make it almost impossible to sue for malpractice in emergency rooms. (A new study on those states finds no evidence that the immunity laws have had any benefit in rolling back the ordering of wasteful and unnecessary tests by ER doctors who are supposedly terrified of being sued.)

In the Public Citizen study, although both the number and the cumulative value of medical malpractice payments made on behalf of doctors increased in 2013, the amounts were small, and it’s the first time in a decade we’ve seen such an increase.

At the same time, however, medical liability insurance rates dropped.

According to the report:

  • The number of payments made on behalf of doctors rose slightly, from 9,370 in 2012 to 9,677 in 2013.

  • The value of malpractice payments on behalf of doctors in 2013 was $3.3 billion; in 2012, it was $3.1 billion.

  • Payments in 2013 accounted for about 0.11% of U.S. health-care costs, roughly the same as in 2012.

The number and value of medical malpractice payments have declined steadily for more than a decade, since, as Public Citizen notes, the American Medical Association (AMA) deemed the liability climate in a dozen states a “crisis.” If lower cost for malpractice insurance coupled with diminishing malpractice awards constitutes a “crisis,” what in the world do you call hundreds of thousands of preventable medical errors every year?

“As the purported crisis over medical liability costs to doctors has receded, we are learning that the actual crisis over avoidable medical errors is worse than we ever knew,” Taylor Lincoln, research director for Public Citizen’s Congress Watch division said in the statement. “The time has come for the AMA to exhibit as much concern over the tragedies stemming from avoidable medical errors as it has over medical liability insurance costs.”

Read the full Public Citizen report here.

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October 21, 2014

Restoring Legal Rights to Victims of Medical Malpractice

In the 20 years between 1992 and 2012, medical malpractice claims in the U.S. decreased by 57%, and not because the quality of medical care improved. It was because the legal system made the pursuit of parties who committed medical errors more difficult.

So wrote attorney Shanin Specter in a recent commentary in the Philadelphia Inquirer. He called this travesty of justice a “silent crisis” because so many victims of medical negligence go not only uncompensated but unheard for the harms they suffered.

He deplored this state of affairs in his state, Pennsylvania, which has tallied 43.3% fewer medical malpractice cases in the last 10 years, resulting in an almost 50% decrease in payouts by the state’s insurance department. Good for that department’s budget, bad for the suffering patients who deserved to be compensated.

And Pennsylvania’s numbers are better than the national average, because that state does not impose a cap on judgments for pain and suffering.

Readers of this blog know that such caps, which limit how much money a harmed patient can recover in court regardless of the nature or severity of the medical mistake, not only deprive people of their rightful redress, but chill the whole process. Attorneys can’t afford to take cases they believe they have little chance of winning, or in which the judgments would be too small. Invariably, medical malpractice attorneys work on spec — that is, clients don’t pay for their services unless and until they are awarded damages in court. Then their advocates get a cut.

Another wave of so-called "reform" is the change in legal standards that virtually immunize some doctors, notably those working in emergency rooms, from any lawsuit unless the patient can prove something close to intentional harm and not mere carelessness. As we noted recently in this blog, new research has found that the ostensible purpose for such legal changes, to reduce so-called "defensive medicine," doesn't work. Medical costs are the same; only injured patients are hurt when they get no legal redress for their preventable harms.

Medical malpractice cases have declined, Specter noted, by more than half even in states that don’t have caps. The number of paid claims per physician career show such a steep decline, he wrote, that “the average physician will never be involved in a medical-malpractice claim that results in the payment of money.”

A telling consequence of this reality is that, according to Specter, malpractice insurance rates have fallen nationally about 20% since 2006.

The quality of medical care in some areas has improved, Specter allowed, but “studies continue to show very high error rates, with no evidence of improvement.” (See our blog, “Protecting Yourself from the Thousand-a-Day Toll of Medical Error.”)

The changes in law that deprive harmed patients of their rights not only have lowered the cost of insurance coverage for health-care providers, but have reduced the amount people can recover for what they lost in future earnings potential, for periodic payments of future medical and personal care expenses, and have limited where plaintiffs may prosecute their complaints. “The cumulative effect of these changes,” Specter wrote, “is to deter roughly half of lawsuits and prevent roughly half of the payments for claims.”

“Every action,” he pointed out, “has an equal and opposite reaction.” And as you might imagine, it’s not to your benefit.

Between 2009 and 2013, plaintiffs won only 16 in 146 jury trials in four suburban counties in Pennsylvania.

“Given these odds,” he noted, “and the reduced value of the claims, it's no wonder that law firms report that they accept only about 1% of medical-malpractice inquiries for representation.”

Here’s what Specter recommends to remedy the wrong:

1. “Malpractice victims and defendants should play by the same rules as other tort victims and defendants.” (A tort is a civil wrong that can be redressed by awarding damages.)

Medical-malpractice cases, Specter said, should be allowed to be filed in any county where at least one of the defendants regularly conducts business, as is allowed in Pennsylvania for motor vehicle accident cases, premises liability cases, contractual disputes and nearly all other civil matters. Including malpractice cases in this club would avoid abuse of the rules, such as transferring cases to a place so inconvenient as to dissuade people from pursuing their claims.

2. “[T]here is a significant issue about whether it is fair to pay less to victims of medical malpractice than to victims of other torts. Only the medical profession enjoys special rules with respect to reduction to present worth of lost earning capacity and periodic payments of future medical and personal care expenses.”

Spectoe suggested such caps violate the constitutional guarantee of equal protection, and that the special-venue rules violate equal protection.

In conclusion, Specter wrote, “The pendulum has swung too far in favor of health-care providers and their insurers and against medical-malpractice victims. It's time to move toward the center.”

In our opinion, it’s long past that time. People have been hurt by the hand of others, and they shouldn’t have to fight for fairness.

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October 19, 2014

Immunizing Doctors from Lawsuits Doesn't Reduce Medical Costs

An article of faith among doctors is that they order huge numbers of unnecessary and expensive tests like MRIs and CT scans solely to protect themselves from malpractice lawsuits. If this "defensive medicine" really happens, immunizing doctors from lawsuits should cut down on wasteful testing and save us all a lot of money.

A new study from the RAND Institute finds no evidence of any such savings when emergency medicine doctors obtained virtual lawsuit immunity from the legislatures of three states: Georgia, Texas and South Carolina. The study was published in the prestigious New England Journal of Medicine.

Use of tests like CT and MRI, overall costs and decisions to admit patients from the ER to the hospital -- all of these showed no different trend in the three immunity states compared to control states that had not immunized their emergency doctors.

The researchers, led by a UCLA emergency medicine doctor named Daniel Waxman, studied millions of ER visits since the three states passed their malpractice reforms in 2003 (Texas) and 2005 (Georgia and South Carolina).

All three states changed their legal standards for what a patient has to prove to win a malpractice case, getting rid of the time-honored ordinary negligence/carelessness standard that applies to everyone else who hurts someone. Now, patients must prove that the emergency room doctor was "willful and wanton" (Texas) or "grossly negligent" (GA and SC). That means the patient must show the doctor actually knew there was a high risk of serious injury and ignored it. As a practical matter, that provides virtual immunity from lawsuits.

In all three states, lawsuit filings against hospital emergency rooms have plunged since the new legal standards went into effect. So the medical industry, especially malpractice insurers, has saved a lot of money at the expense of injured patients. But what about the costs of patient care? That's where the new study found no evidence of any changes in the habits of ER doctors. They still test at the same rate and keep patients overnight at the same rate.

So does "defensive medicine" really exist? If you ask doctors in surveys, they insist it does. For example, a survey of ER doctors cited in the RAND study found 70 percent claimed they often ordered unnecessary tests as lawsuit protection, and most of those cited MRI and CT as their most recent act of defensive medicine.

The concept of "defensive medicine" has always been a head-scratcher for lawyers like me who represent patients in malpractice suits. Most of the time, defensive medicine is like defensive driving; it's just good, cautious medical practice to test rather than guess and to proceed as if the patient might have a serious condition and not blow off troubling findings. And nobody ever sues a doctor for not ordering a test. They sue when a test wasn't ordered and a catastrophe resulted because the test could have caught some serious process in time to turn it around. A truly unnecessary test, ordered only to protect the doctor and not the patient, would be insurance fraud if it really happened.

That's why I'm skeptical of these anonymous doctor surveys that claim high rates of bogus testing. I think what's going on is that doctors are looking for bogey men to blame for the high costs of medicine, and who better than lawyers?

The new RAND study doesn't prove that all of the testing in modern ERs is absolutely necessary. But it does show that you cannot blame the lawyers for unnecessary testing. And maybe more important, it shows that cutting back on patients' rights for legal accountability for serious injuries is not a good idea.

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October 12, 2014

Ebola Patient's ER Discharge Was Classic Malpractice

New details have emerged about Ebola victim Thomas Duncan's first treatment at a Dallas hospital emergency room. High fever, severe pain, a recent trip from a foreign country: classic markers of a patient who needs to stay in the hospital and not be ushered out the door. Yet he was sent home, and came back three days later when he was much sicker, and ultimately died.

Whether the mistreatment of Mr. Duncan had to do with his skin color, as his family alleges, might be questionable. Plenty of people of all races fall victim regularly to medical malpractice. Yet the emergency staff's first interaction with the patient gave them plenty of clues.

He showed up in the ER complaining of abdominal pain and a headache but no fever, according to records obtained by the family and turned over to the Associated Press. Then, three hours into his four-hour stay, his temperature spiked to 103 degrees. Why? Doctors had no explanation for that, nor for his report of 8-out-of-10 pain. Pain out of proportion to the patient's appearance -- no obvious trauma or other apparent reason -- is well known to skilled doctors as a reason to proceed with care and caution, and do further tests and observations. That didn't happen on September 25, the day Mr. Duncan showed up at the ER of Texas Health Presbyterian Hospital. Instead he got a diagnosis of sinus infection, another head scratcher in light of his normal head CT scan and unexplained abdominal pain.

The hospital's story about why he wasn't admitted that day is also growing sketchier by the day. Its initial excuse was:

* His fever only got to 100.3, not enough to set off alarm bells.

* His symptoms were not severe.

* The doctors treating him were not told of his trip from Liberia, due to some snafu in the hospital's electronic record system.

Now we know all three of those reasons are wrong. The bit about the records glitch was first to fall, when hospital administrators admitted that Mr. Duncan had told the staff of his trip from Africa and that it appeared in all of his electronic records that treaters saw.

Now the real number on his fever - 103 - and his severe pain have been revealed, and it all adds up to a patient who most independent doctors would say should have never been sent home. Would that have saved his life? Hard to say, but the odds would have definitely improved, as early diagnosis has saved some other Ebola victims.

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September 28, 2014

Doctors Aren’t Afraid of Being Sued but Still Want to Limit Your Malpractice Rights

You would think with yet another objective, substantive study showing that defensive medicine — doctors overtreating patients for fear of being sued for malpractice — represents only a tiny fraction of health-care spending that advocates of so-called “tort reform” would get the message.

They do get the message, but they still want to yank your rights away.

Tort reform, as readers of this blog know, is the misguided and disingenuous effort to reduce the monetary damages one may receive in the case of medical malpractice. Supporters of the idea like to say it will take care of the problem of frivolous malpractice lawsuits.

But “‘Frivolous lawsuits,’” wrote Michael Hiltzik in the Los Angeles Times, “[are] a problem that exists mostly in the minds of conservatives and the medical establishment.”

According to the study, published in JAMA Internal Medicine, defensive medicine accounts for only 3%, at the most, of U.S. health-care costs. That adds up to about $78 billion, which is a lot of money, but considering that the total cost of U.S. health care every year is estimated to be about $2.7 trillion, it should hardly be fueling the move to limit the rights of harmed patients.

In addition to curbing your ability to recover damages from malpractice, tort reform actually could increase other costs because limiting court system oversight could boost the incidence of medical mistakes. It costs a lot of money to clean up medical errors, assuming you even can.

The JAMA study authors noted that even doctors might be overestimating the prevalence of defensive medicine. Practitioners might order many procedures partly as a defensive habit, but mostly they do so for what they believe are legitimate diagnostic or therapeutic reasons. So tort reform would address the things they order solely because they fear litigation, a tiny percentage of the total.

Like many people who see the brazen move to take away legal rights, Hiltzik wrote, “Tort reform has seldom been about reducing healthcare spending. For Republicans, it's about de-funding a bloc of reliable Democratic Party supporters — trial lawyers.”

Always a popular target. Who hasn’t heard that the only reason lawyers want to represent you is for their cut of a malpractice judgment? Who hasn’t heard lawyers who represent people harmed by malpractice referred to as “ambulance chasers”?

The conservative agenda, Hiltzik claimed, is what drives the suppression of malpractice lawsuits despite the evidence that its impact on health-care spending would be small. It’s not about righting a wrong, it’s about punishing people you don’t agree with. And tort reformers even admit as much!

Avik Roy, a conservative health-care pundit, acknowledges that defensive medicine accounts for only a tiny percentage of spending, but still wrote, "nonetheless, reform is warranted … [because] the U.S. health care-system is uniquely vulnerable to frivolous malpractice lawsuits."

What does Roy have against math? Science? Proof that his ideas are wrong?

“The minimal impact of defensive medicine on healthcare costs demonstrates the injustice of the stringent limits on malpractice lawsuits advocated by doctors, insurance companies and Republican policymakers,” Hiltzik wrote.

He pointed out that capping the amount of money a harmed patient is legally allowed to receive for "pain-and-suffering" is a common ploy among tort reformers — see our blog, “Florida Stands Up to Anti-Consumer Malpractice Cap.” Such tactics discourage people from filing malpractice lawsuits to the benefit mostly of insurance companies. And their impact, Hiltzik wrote, “falls disproportionately on women and families with infants, because their economic damages, which remain subject to jury awards, are hard to estimate and typically underestimated.”

Hiltzik repeats a truism we, too, regularly write about; that "frivolous lawsuits," or cases that should never have been brought, are significantly rarer than the tort reform crowd would have you believe. That’s because the bar is high for plaintiffs to prove that the harm done to them was the result of negligence, so most people who might have a claim don’t pursue it because of the slim chances it would result in a monetary judgment in their favor.

And even when people have legitimate claims, they often can't pursue them because attorneys know how slim their chances are of winning, and because they work for a percentage of a successful claim, they can't take cases they otherwise would.

A bigger problem than frivolous lawsuits, Hiltzik said, is that genuinely injured patients can't get justice “because the courthouse doors have been shut to them. The victims there are often lower-income or unemployed patients.”

The issue is particularly acute in California, as the upcoming election includes a proposition for voters to lift an antiquated, unfair medical malpractice cap. (See our blog.) It’s all about the Medical Injury Compensation Reform Act (MICRA), which Hiltzik referred to as “the state's shame.” In 1975, MICRA capped noneconomic and nonmedical damages in malpractice to $250,000. In today’s dollars, that’s about $57,000.

To remain current with inflation, the amount should be about $1.1 million, and that’s what Proposition 46 proposes. (Sadly, as Hiltzik and many other advocates of fairness observe, the MICRA increase proposal is accompanied by a silly plan for drug testing of doctors.) Roy proposes that noneconomic damages for patients whose health care is subsidized by the Affordable Care Act (that is, by any of the federal or state health care exchanges established by “Obamacare”) be capped at the same $250,000 it has been for more than a generation. His cap also would apply to anybody with insurance through Medicaid, Medicare or any other federal program.

“Why them?” Hiltzik wondered. “Apparently only because they're within the grasp of federal law. Roy all but acknowledges that there's no legitimate economic reason for this punitive approach. It won't save a significant amount of money. It won't change the direction of healthcare costs. It's just nastiness, and as is usual … punishes the most defenseless members of society. Healthcare policy should do just the opposite.”

Yes, it should. And so should the justice system.

To get the facts about medical malpractice litigation served up as thoughtful entertainment, visit PopTort, a civil justice blog sponsored by the Center for Justice & Democracy at New York Law School. You can review the center’s new briefing book, “Medical Malpractice — By the Numbers!”

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September 2, 2014

Exposè Shows Military Hospitals Are Huge Providers of Substandard Care

In a sweeping and horrifically detailed indictment, the New York Times called out the U.S. military hospital system for its shockingly substandard care.

The paper looked at the records of the 40 hospitals across the country run by the armed forces that provide care for 1.35 million active-duty service members and their families, among other patients. The problem of poor care appears to stem from the fact that these hospitals are so small and see so few patients that doctors and nurses don't get enough experience to diagnose and treat serious illnesses properly. Most of these facilities handle less than one-third as many patients as a typical civilian hospital.

These numbers are so significant that Dr. Lucian L. Leape, a leading patient-safety expert at the Harvard School of Public Health, said, “I think they should be outlawed.”

Another huge problem is one of priorities: Hospitals that must develop practitioner skills to address battlefield casualties don't have the resources (or will) to hone the skills necessary for a typical hospital caseload of primary and specialty care, such as delivering babies and performing routine surgeries.

Some people who worked at military hospitals question whether, in most cases, the military should even be in the hospital business.

“It’s a dangerous game,” John Schafer told The Times. He served for eight years as deputy commander for clinical operations at Reynolds Army Community Hospital at Fort Sill in Oklahoma. Now he's senior director of physician services at Comanche County Memorial Hospital nearby. From his office, he can see the military hospital, which treats an average of just 13 patients a day.

“I loved that place,” he said. “But it should not be a hospital. I retired because I could see the unsafe care. Nobody was listening.”

In The Times' analysis, the biggest problems at military hospitals were found in maternity care and surgery. "Compared with leading civilian hospitals, more than half of domestic military hospitals," the paper reported, "... performed poorly on one or more measures of harm to mothers or babies in 2011 and 2012. ... half of the military hospitals whose surgical data are submitted for outside review had higher than expected rates of surgical complications."

Among the patients whose suffered from military hospital deficiencies:

  • a woman who had what was supposed to be a routine hernia surgery but ended up having more than a dozen follow-up operations to address complications that have left her in constant pain, and without a stomach, a job or anything resembling her former life;

  • a woman who went in for a checkup during her high-risk pregnancy during which nurses lost track of the fetus' heart rate for nearly an hour, failed to recognize the emergency and the fetus died. The parents sued for malpractice and received a judgment of $250,000;

  • a 7-week-old baby died of congestive heart failure because of what appeared to be delays and malfunctioning equipment at a hospital where one of its doctors told The Times, “People notice that something is wrong, and they are told to mind their own business.”;

  • an active-duty servicewoman died after medical workers missed the signs of necrotizing fasciitis, a dangerous bacterial infection;

  • a retired officer died of appendicitis two days after being told he had a hernia.

And that's only a sampling.

Would you send a loved one to a military hospital where even its own medical staffers say, “If you are a physician, it’s very scary. You decide you are going to admit your sick patient, but there is no I.C.U., no gastroenterologist, no pulmonologist, no pathologist. Nobody’s on call.”?

As The Times reported, last year the government paid 21 military patients more than $500,000 each to settle malpractice claims, an indication of “significant harm.”

To learn more about military malpractice, see our backgrounder.

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September 2, 2014

Court Nixes Litigation Standards Set by Pathologists

What if a truck drivers' union tried to set standards for when juries could conclude that a driver was negligent in causing a motor vehicle wreck? Or what if a trucking company could defend its driver falling asleep at the wheel by showing that its other drivers had impeccable driving records?

That's about the situation the courts face with litigation guidelines set by two pathologists' groups about when misreadings of Pap smears by members of these groups should be judged negligent.

A recent ruling by the 11th Circuit Court of Appeals, the federal appeals court for the southeastern-most states, found the pathologists were wrong in trying to enforce their litigation standards. And it reinstated a lawsuit brought by a patient which had been thrown out by a trial judge because the plaintiff's expert had not followed the litigation guidelines promulgated by the College of American Pathologists (CAP) and the American Society of Cytopathology (ASC).

Here's a quotation from the 11th Circuit's decision in Adams v. LabCorp that shows the judges saw the difference between clinical practice guidelines promulgated for better patient care versus these litigation guidelines:

As an initial matter, it is important to put these guidelines in context. Both sets of them focus not on how cytotechnologists should go about their duties in examining slides, but instead on how courts should go about their duty to adjudicate claims against cytotechnologists and similar professionals. In the words of the guidelines, they are to be used in assessing Pap smear slides “in conjunction with litigation or potential litigation.” They are not objective, scientific findings; they are not guidelines followed by laboratories to screen for pre-cancerous or cancerous cells; they are policy proposals to limit how the courts can find the members of the organizations liable for professional negligence when they are sued.

As far as we are aware, this is the first time that an industry group has promulgated a set of guidelines that attempts to define and limit the evidence courts should accept when the group’s members are sued. The members of the CAP and ASC have a substantial interest in making it more difficult for plaintiffs to sue based on alleged negligence in their Pap smear screening, and their guidelines do just that.

The guidelines, if enforced, would have made it not just difficult, but VERY difficult to impossible, to prove that a laboratory had been careless or negligent in reading a patient's Pap smear. Here's an excerpt from the ASC's guidelines:

A violation of a reasonable prudent practitioner standard of practice based on how specific Pap tests were screened and interpreted can only be established through an unbiased blinded rescreening review process that includes the contested case as one of a number of normal and abnormal GYN cytology samples representing a variety of disease states. Focused review or review with knowledge of subsequent development of carcinoma inevitably biases the objectivity of the review against the laboratory and does not reflect standard practice.

Hindsight bias is an issue, and every honest expert witness I've dealt with tries to make sure to keep that in mind and not let it unduly influence his or her view of a case. But these guidelines essentially use an elephant gun to go after a flea.

In practical terms, the ASC guidelines would require the plaintiff to hire an independent pathologist to go to the defendant laboratory, whereupon the pathologist would be put to a test devised by the defendant: the specimens at issue would be salted in with a group of other specimens, some normal, some not, and the pathologist would then study the specimens under the microscope as if they were specimens seen in the ordinary course of lab work.

(Except, of course, that most labs, LabCorp included, use "cytotechnologists," non-doctors, to first screen the specimens and point out potential abnormalities for the pathologists to then study more closely. And the issue in this case was that the cytotechnologists at LabCorp had not even flagged this patient's smears as possibly worrisome.)

And what if the independent pathologist passes the test devised by the defendant lab and correctly diagnoses the mix of normal and abnormal specimens? The test of the plaintiff's expert is still not over, because the ASC guidelines go on to say:

Courts and experts should recognize that a false‐negative result by itself is not sufficient proof of negligence. Rather, the courts should evaluate whether the overall Pap‐test practices of the laboratory meet the standard of care and whether unbiased blinded rescreening consistently detects significant abnormalities not initially identified by the laboratory.

I've italicized two key pieces. First, "overall practices of the laboratory" seems to mean that as long as the lab overall has a good track record, it shouldn't be found negligent for messing up on one patient's specimen, even if it was wrong that one time. This would be like a trucking company saying, "Never mind that our driver fell asleep at the wheel; we have a nearly spotless driving record other than this one time."

A fundamental aspect of American tort law is that the defendant's conduct is judged on the specific case, and it's not relevant to prosecute or defend a case based on what happened on some other occasions (with a few exceptions when the allegation of wrongful conduct is that the defendant had failed to detect a pattern in the prior events). This prevents plaintiffs from using prior bad events unfairly, and it prevents defendants from using prior good events unfairly.

The second italics is on the word "consistently." That means the pathology groups want their members to be found guilty ONLY if no experts can be found to defend their reading on a particular occasion. So only the most egregious cases could go forward, since it's child's play to find an expert who will give a pass to conduct that other experts will criticize.

In the Adams case, the plaintiff had hired an expert of sterling credentials, Dr. Dorothy Rosenthal of Johns Hopkins Hospital. She had not only spent 40 years training cytotechnologists how to read Pap smears, she also had worked on the pathologists' committee that set the medical standards for when cells on a Pap smear look cancerous, when they look borderline, and when they are benign.

The lab had criticized Dr. Rosenthal for doing a non-blinded review of Ms. Adams' Pap smears, but as the 11th Circuit pointed out, the lab's own expert witness did exactly the same non-blinded review. And the 11th Circuit was troubled by the one-sided nature of the litigation guidelines:

...the ASC's guidelines condemn non-blinded review because it “biases the objectivity of the review against the laboratory,” but express no concern about non-blinded review biasing the assessment of defense experts against plaintiffs. Clearly, the purpose of the guidelines is to raise the bar only on the plaintiffs' side of the courtroom.

The litigation guidelines go way too far on hindsight bias, as the court observed:

...both sets of guidelines treat the mere risk of review bias as intolerable. They do not specify the frequency or degree to which review bias actually affects reviewers’ judgments. Nor do they cite any empirical evidence supporting their assertion that knowing the outcome “inevitably biases” the reviewer. Yet they insist that a court should exclude expert testimony unless the expert has eliminated entirely the possibility of any review bias. That would be a radical reworking of [Federal Evidence] Rule 702, which requires courts to determine that the expert’s method is reliable, not that it is free of any possibility of bias.

The lab also claimed that Dr. Rosenthal's opinions were "Ipse Dixit" -- Latin for, "because I say so" -- but the Court said that was wrong too, since the expert had used the same atlas showing what abnormal cervical cells look like that the defendant's employees had used:

Dr. Rosenthal used a well-established classification system to assess the cells: the same Bethesda System that LabCorp's cytotechnologists use. In her deposition testimony she went picture-by-picture, pointing to specific places in each one where Ms. Adams's cells showed abnormalities and classifying those abnormalities using the same Bethesda classification system that is used by LabCorp's cytotechnologists and nearly every other professional in the field of cytopathology. And the Bethesda Atlas, which is maintained by the ASC, provides numerous examples of each abnormality that Dr. Rosenthal identified, including “classic examples” of abnormal cells as well as “borderline” cells. As Dr. Rosenthal explained in her deposition, the images in the Atlas could be used to assess whether her opinion was in step with the established standards in the field. The fact that Dr. Rosenthal applied an established diagnostic system in which she was well versed contributed to the reliability of her methodology.

One puzzle remains: these guidelines have been around since at least 2000, in the case of ASC, but only now in 2014 reached the attention of a federal appeals court. Maybe that's because trial courts before the one that was reversed here by the 11th Circuit could see so plainly that the "litigation guidelines" were an improper attempt by a self-interested professional group to stack the deck of lawsuits against its members.

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August 20, 2014

Californians to Vote on Revising Caps on Medical Malpractice Judgments

It has been 39 years since California passed the Medical Injury Compensation Reform Act (MICRA), and, finally, its chilling effect on the rightful redress for the victims of medical error is being exposed to prospective voters as the unjust law that it is.

Voters will decide in November whether to adjust the caps on medical malpractice judgments for people who have been harmed by medical errors. But the argument in favor of correcting a gross injustice is complicated by tangential medical oversight measures that have been included in the ballot proposition.

Originally, as we blogged last year, MICRA was promoted as a way to address what some people perceived as a malpractice insurance “crisis” that was boosting insurance premiums and driving doctors out of the state. It capped the amount plaintiffs could recover in damages at $250,000, and it wasn’t indexed to inflation. In 1975 dollars, $250,000 is worth less than $58,000 today. If it had been inflation-indexed, that current cap would be $1.1 million.

Last month, the advocacy organization Consumer Watchdog reported that the medical malpractice insurance industry and hospitals are subsidizing the campaign against what it supports as a patient safety measure. Consumer Watchdog said those interests have spent more than $27 million to oppose Proposition 46.

No wonder. Denying people their rights has been good for the medical and insurance industries. They like to repeat the old, demonstrably wrong line that malpractice caps like MICRA prevent frivolous lawsuits and curb the practice of defensive medicine, in which doctors overtreat for fear of being sued for not doing their job.

As Los Angeles Times columnist Michael Hiltzik was quoted in our blog last year, “… the most frequent injustice in malpractice cases involved not undeserving patients collecting payments, but the opposite, deserving patients getting nothing.”

“Malpractice litigation,” he said, “has indeed failed to serve patients and their doctors. The cost of a lawsuit, which includes extensive expert witness fees, has become exorbitant for both sides, and the typical case takes five years to resolve.”

“… Simply padlocking the courthouse to whole categories of plaintiffs doesn't meet the fairness test. ... It's time to bring this … law into the 21st century, and fix the malpractice system so that it actually works.”

The ballot initiative, known as the Troy and Alana Pack Patient Safety Act, would raise the malpractice cap to at least $500,000, and to index it to inflation. Bob Pack is the father of Troy and Alana. As young children, they were killed by a drunk and drugged driver who had gamed the system by “doctor-shopping” to get physicians to overprescribe him thousands of pills.

“Even as America experiences an epidemic of up to 440,000 deaths a year due to preventable medical errors,” Pack said in the Consumer Watchdog report, “those who hold our lives in their hands are more interested in protecting dollars and bad doctors rather than taking reasonable steps to save lives.”

As explained by Consumer Watchdog, the medical malpractice insurance industry is “incredibly” profitable, and has paid out in malpractice claims as little as 10 cents of every dollar collected in insurance premiums. According to its report, “Malpractice insurers’ net income is roughly double what is collected by most other lines of insurance, including auto and home policies.”

Some supporters of malpractice reform are troubled that the proposed initiative deals with more than just caps on judgments that are indexed to inflation. The proposition includes a physician oversight measure that, although intended to protect patients, could dissuade voters opposed to what they see as over-regulation but who otherwise would vote to correct decades of legal malpractice injustice.

Proposition 46 would:

  • Adjust the state’s cap on malpractice damages, giving the cap the same value it had when it took effect in 1975, while maintaining the existing cap on attorneys’ fees.

  • Require physicians to check the state’s existing prescription drug database before prescribing certain addictive drugs to first-time patients, in order to curb doctor-shopping drug abusers.

  • Require random drug and alcohol testing of doctors with admitting privileges at California hospitals, to protect patients from being treated by impaired physicians.

Like other regions, California patients are vulnerable to impaired doctors. According to Consumer Watchdog, the state’s medical board says that nearly 1 in 5 five doctors will abuse drugs or alcohol during their lifetimes.

But whether this reality undermines or assists the effort to revise the state’s deficient medical malpractice laws remains to be seen.

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July 29, 2014

Hospital Settles Case of Doctor Who Photographed His Patients

There’s no doubt that Dr. Nikita A. Levy was a creep of the highest order, a gynecologist who secretly recorded his patients’ intimate body parts during routine exams. Last week, the hospital where practiced agreed to pay $190 million to more than 7,000 women.

Although Levy killed himself last year during the investigation of his actions, spurred by the observations of his colleague, Johns Hopkins Hospital was responsible as the facility where Nikita’s gross violation of doctor-patient trust unfolded. According to the New York Times, it was one of the largest medical malpractice cases of its kind.

No criminal charges were filed, because it was determined that Levy had not shared the more than 1,000 videos and images he had stored on home computers. But a class-action lawsuit against the hospital accused him of “harmful and offensive sexual” contact with patients.

The civil suit charged the hospital with invasion of privacy, emotional distress and negligence in its oversight of Dr. Levy, who practiced in a community clinic in East Baltimore run by Johns Hopkins.

The hospital identified nearly 12,700 patients Levy might have treated during the 25 years he was an employee. Investigators believe that he began recording patients with tiny cameras hidden in a pen or a key fob around 2005.

After learning of Levy’s actions, many of the women victims reported disturbances in their work and personal lives.

If the settlement is approved by the Circuit Court for Baltimore City, each plaintiff’s circumstances will be reviewed to determine her share of the damages. But no amount of money can compensate for the horrible loss of trust a patient deserves to have in her health-care provider.

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July 17, 2014

Legal Remedies for Patients Harmed by Unsafe Injection Practices

“Law as a Tool to Promote Healthcare Safety,” an article recently published in Clinical Governance: An International Journal, discusses how the legal system can punish health-care providers who engage in unsafe injection practices, and deter them, and others, from putting future patients at risk.

As we wrote in our blog “Safe Injection Practices Are not a Shot in the Dark,” tens of thousands of people are harmed every year from infections caused by sloppy injection procedures that are completely preventable, and that the Centers for Disease Control and Prevention (CDC) has addressed.

Practices that compromise patient safety include using needles on more than one person, using single-dose or single-use medications for more than one patient and failing to use proper hygiene when handling, preparing and storing meds and injection.

The Clinical Governance paper reviewed legal theory and precedents, and identified several ways, from the administrative to the criminal, in which the law can address disputes about unsafe injection practices, including:

  • holding doctors or facilities responsible for preventing harms;

  • using state civil courts in malpractice lawsuits to compensate victims for the harms they suffer;

  • prosecuting defendants as criminals in order to deter practices that cause disability or death.

To review guidelines for safe injection practices devised by the CDC, link here.

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June 30, 2014

Military Medicine: Much Malpractice, Little Oversight

The news is not surprising, but still shocking: the nation's military medicine system is rife with lapses in quality of care that hurt service members and their families, and very little is being done about it, according to a long investigative takeout in the New York Times.

I say not surprising, because attorneys like me who represent military families in medical malpractice lawsuits against the government for sub-standard care see a lot of the kinds of problems documented in the Times article.

Pregnancy and newborn care is especially vulnerable to errors that can have lifelong consequences when children are born with brain damage. The Times investigators reported that of the 50,000 babies born at military hospitals each year, they are twice as likely to be injured during delivery as the average for all newborns around the U.S.

Perhaps the most shocking thing the Times found is the lack of accountability and followup when patients are injured in the military system. In non-military hospitals, there is at least some effort made with what is called "root cause analysis" to get to the bottom of errors and try to prevent future harm.

Dr. Mary Lopez, a former staff officer under the Army surgeon general, told the Times:

"The patient-safety system is broken. It has no teeth. Reports are submitted, but patient-safety offices have no authority."

One problem the public doesn't grasp is that the military is immune from lawsuits when an active duty service member is injured by malpractice, even if the harm occurs thousands of miles from any battle front. That immunity stems from a 1950 U.S. Supreme Court case called Feres v. United States. Congress could pass a law overriding this judge-made immunity but has never done so. Meantime, there is a double-standard system: If a family member of a soldier or sailor is hurt by malpractice, they have a right to sue under the Federal Tort Claims Act. But a service member cannot sue.

That insulates the military medical system from a lot of the accountability that lawsuits could otherwise bring to the poor quality care.

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June 24, 2014

Resistance to Change Drives Malpractice Claims

Attorney Steve Cohen is used to people calling him because they want to sue a doctor. What he’s not used to is when the caller is a prominent doctor.

She was a friend of his, he explains in an essay on, who is board-certified in three specialties, and lives in Washington, D.C. Her mother, who lives in Florida, had been rushed to a hospital, and by the time the doctor got there, mom had been diagnosed, admitted and treated.

But she wasn’t doing well, and Cohen’s friend thought the problem was a medication error. She’s not licensed to practice in Florida, so she asked the doctor who had prescribed the medicine to review it, and consider adjusting it.

He declined, because it was a three-day holiday, and, as he told her, “I need a vacation too.”

So she found another doctor to examine her mother. He changed the meds, and her mother recovered.

But the daughter was furious, and when she called Cohen, she wanted to sue the first doctor and the hospital. It wasn’t about money, it was about fixing a system she found terribly deficient. Maybe a lawsuit would send a message strong enough to prompt institutional change.

Cohen helped her understand that a lawsuit probably wasn’t the best or most efficient way to effect the change or satisfaction she sought, and that filing a formal complaint with the Joint Commission on accreditation might be the better approach. The Joint Commission, as we’ve discussed, is a national organization that monitors and promotes hospital quality and safety.

But, as Cohen concedes, that, too, is a long shot for making substantive change.

“Unfortunately, a formal complaint by even as formidable a figure as [his friend] will probably have little impact,” he writes. “The medical community’s resistance to reform is notoriously passionate.”

He noted that last year, The Joint Commission reported that only 1 in 3 of the 3,300 hospitals it has accredited have achieved its “top performer” rating. (About 2,400 U.S. hospitals are not accredited by the commission.) Only 182 hospitals have maintained a spot on that list for three consecutive years.

The intractability to change drives some people to file — or want to file — malpractice lawsuits.

Dr. Donald Berwick, former head of the Centers for Medicare and Medicaid (CMS) and, before that, president of the Institute for Healthcare Improvement, launched an initiative about 10 years ago called the “100,000 Lives Campaign.” The point was to reduce the thousands of hospital errors that occur every year in the U.S.

The campaign asked hospitals to commit to six evidence-based interventions to save lives. It also would establish measurements to determine how many people actually benefited from the reforms. After 18 months, Cohen says, with fewer than 2,300 hospitals participating and implementing at least one of the changes, an estimated 122,300 lives would be saved over the next 18 months.

Two years later, Berwick launched the “5 Million Lives” initiative to significantly reduce illness, mortality or medical harm from such things as adverse drug events or surgical complications. It asked participating hospitals to commit to harm prevention measures for a two-year period, from 2006 to 2008.

But, despite demonstrable success with the earlier campaign, “[o]nly 2,000 hospitals agreed to implement all 12 safety interventions,” Cohen reports.

It’s not only hospitals that are resistant to change, Cohen says; professional associations drag their feet, too. The American Congress of Obstetrics and Gynecologists (ACOG) has refused to adopt 21 changes that were shown to reduce the incidence of unanticipated events that result in death or serious injury to patients.

That test, conducted over seven years at New York Presbyterian Hospital, showed a drop in malpractice judgments from more than $50 million to $250,000. “Yet ACOG refuses to recommend these reforms on the grounds that they may infringe on individual doctor or hospital prerogatives,” Cohen writes.

“Make no mistake: Money is the principal goal of most malpractice suits,” Cohen concludes. “It is the only remedy our system of civil justice knows how to provide. … But sometimes, lawsuits do much more: They provide essential light on a systemic problem and impetus to overcome institutional inertia.”

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June 11, 2014

"Distracted Doctoring" Puts Patients at Risk and Practitioners in Trouble

When you’re anesthetized and under the knife in an operating room, you assume your surgical team is concentrating on you, not texting on an iPad. For one heart patient, however, that assumption was wrong.

Pacific Standard Magazine’s unsettling review of distractions during medical procedures described the circumstances of a malpractice case in Texas when a 61-year-old woman died after a relatively low-risk cardiac procedure to correct her irregular heartbeat.

Dr. Christopher Spillers, the anesthesiologist, had been using his iPad throughout the operation. In his deposition in a subsequent malpractice lawsuit, the surgeon testified that the anesthesiologist hadn’t noticed the patient’s dangerously low blood-oxygen levels until “15 or 20 minutes” after she “turned blue.”

Spillers had been known to text, read ebooks and post on Facebook during other procedures. He excused himself by saying that he monitors blood oxygen and blood pressure at least every five minutes.

Did he go to med school? The brain begins to die after just a few minutes without oxygen.

The Texas case isn’t unique. A neurosurgeon in Colorado settled a medical malpractice case with a patient he paralyzed during a surgery in which he had made no fewer than 10 phone calls. A nurse at an Oregon hospital was caught checking airfares on a computer in the operating room.

Dr. Peter Papadakos, an anesthesiologist with the University of Rochester and an expert on the fascination with electronics that leads to “distracted doctoring,” told the magazine, “Airline pilots don’t allow themselves to be distracted by social media, because they themselves do not want to die.” To ensure health-care providers also spurn these distractions, he said, would be to say, “If there’s a wrong-site surgery or other error, we will shoot everybody in the OR.”

Digitally connected practitioners often say that they use electronic devices to keep medical records or research medical information. But when interfacing with patients, such uses should be fairly limited. The Health Insurance and Portability and Accountability Act (HIPAA), the federal regulation that protects the privacy of an individual’s health information, makes the use of these devices for most kinds of communicating with or about patients illegal. “Even if the purpose of the use is valid,” the magazine says, “the decision to use a device for any reason not immediately relevant to the patient is indefensible.”

Even worse, the culprits know they’re wrong. In 2011, a presentation at an American Society of Anesthesiologists conference offered survey data showing that “nurse anesthetists and residents were distracted by something other than patient care in 54% of cases — even when they knew they were being watched. … [M]ost of what took their time were pleasure cruises on the Internet.”

A 2010 survey published by Perfusion, a journal for the technicians who operate bypass machines used in heart surgery, found that:

  • 56 in 100 respondents admitted to using cellphones during procedures;

  • 78 in 100 said that cellphone use posed a risk to patients;

  • 42 in 100 said that having a cellphone conversation during surgery was always unsafe;

  • 52 in 100 said that texting during surgery was not safe.

So most perfusionists believe that using a cellphone while operating the heart-lung machine is unsafe, but most do it.

As the magazine suggests, this behavior isn’t about “distracted doctoring,” it’s about addiction. The term “distracted” isn’t “adequate to describe the phenomenon of health-care providers who habitually use electronic devices for nonmedical purposes during appointments and procedures,” it says. These practitioners “aren’t momentarily distracted: They’re deciding to interact with Facebook friends or Twitter followers instead of the patient in front of them.”

Papadakos is in favor of studies to understand this form of compulsion and to eliminate it. Well, maybe, but what’s wrong with a common-sense solution? Personal electronic use should not be allowed during any patient interaction, period. Personal cellphones should not be allowed in an operating room.

As the magazine asks, “A surgeon addicted to alcohol or an illegal drug wouldn’t be allowed to operate while drunk or drinking — so why are physicians addicted to their iPhones and technicians given to texting still allowed in the operating room?”

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May 8, 2014

Disabled People Get Inferior Care

The report covered only one state, but its conclusion is disturbing: People with disabilities “fare worse” than other people in terms of physical and mental health and in their access to high-quality medical care from providers who are sensitive to their needs.

The report, “Health Needs Assessment of People With Disabilities in Massachusetts, 2013,” pretty much confirmed what’s been going on a long time — people with disabilities are treated as lesser human beings, and advanced societies like ours should be deeply ashamed. There’s no reason to think their situation in Massachusetts is any different from elsewhere in the U.S.

As reported by, Boston’s NPR news station, researchers from the University of Massachusetts Medical School’s Disability, Health and Employment Unit and the state’s Department of Public Health concluded that disabled patients often can’t get specialty medical care, and many can’t even find a doctor willing to treat even common medical conditions.

The report includes data from existing health surveys, an online survey and interviews with members of the disability community. The key findings:

  • About 25 in 100 people with disabilities is a smoker (about 16 in 100 adults without disabilities smoke).

  • Disabled people were more likely to report lifetime sexual violence compared with people without disabilities. The ratios were: disabled men, 7 in 100 vs. able men 4 in 100; disabled women, 1 in 4 vs. able women, nearly 1 in 5.

  • Adults with disabilities were nearly twice as likely to report being overweight as those without disabilities — 64 in 100 vs. 34 in 100.

But that’s only part of the raw health deal the disabled get. Nearly 3 in 4 disabled people who responded to report’s the survey were also troubled by the lack of affordable housing; nearly 2 in 3 had trouble finding adequate dental care, and about the same number had trouble finding adequate mental-health services. More than half found it difficult to find a doctor who understood disability issues, and the same number had difficulty getting transportation to a doctor’s appointment.

Communication was a problem: More than half of the respondents had trouble with support such as large-print materials, Braille and Computer Assisted Realtime Translation (CART) readers. Half had trouble managing chronic conditions, such as diabetes, paying for prescription medicine and finding a doctor who accepts public health insurance. Nearly half couldn’t find an accessible gym.

According to one survey respondent, “... people with disabilities are all too often still stigmatized and that stigma leads to being seen as a less important part of the landscape and so we become an afterthought.”

That people are made to feel this is unacceptable anywhere, and especially in America.

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May 4, 2014

Stemming the Tide of Misdiagnosis in Doctors' Offices

We know a lot more than we used to about diagnosis mistakes in hospitals, but a new study says that every year, at least 1 in 20 adults gets the wrong diagnosis in a doctor's office.

For more than 6 million U.S. patients a year, according to the authors of the study published in the journal BMJ Quality & Safety, these misdiagnoses can have major consequences and can amount to medical malpractice.

“The question is, can we eliminate human error, and the answer is no,” Hardeep Singh, lead author of the paper, told The Boston Globe. “We have just now begun to understand what [these errors] are and what we can do.”

Although hospital misdiagnoses aren’t news, said one Globe source, not many researchers have studied the incidence and consequences of outpatient misdiagnoses. We wrote about one such study published last year in JAMA Internal Medicine that showed essentially the same results as the new one in BMJ.

An outpatient error can be as minor as calling a cold an allergy, but it can be as major as overlooking cancer or stroke and causing a dangerous delay in treatment.

Lots of things complicate making a diagnosis, and making sure it’s correct. Doctors must find the right balance between overtesting and overtreating, and missing diagnoses that should have been given more attention and intervention.

And there isn’t even a clear, best-practice definition of diagnostic error. Different practitioners use different measures to define a mistake.

The BMJ researchers analyzed data from three earlier studies, two concerning cancer and one about diagnostic errors recorded in primary care electronic health records. They all used similar definitions of outpatient misdiagnosis.

Because misdiagnosis is complicated, it requires a multifaceted solution, the authors say. It requires the patient, the care team and the health-care system to work together to reduce mistakes. We’ve long been champions of this quality-control approach to delivering health care.

Another Globe source said patients must be involved, and assertive, and readers of this blog know we agree. Patients must tell their doctor about medications they take and problems they’re having. They must ask questions if they don’t understand something the doctor says, or if the doctor isn’t responding to them. Never leave a doctor’s office wondering what happened, what to do and what are the consequences if you don’t understand or follow instructions.

Patients should make sure all their caretakers — people they’re seeing for second opinions, specialists, physical therapists, etc. — have access to their medical data.

Doctors who aren’t completely confident in their diagnosis or treatment recommendation should ask colleagues for a second opinion. That’s often difficult for people in their position of authority, but it’s essential to prevent patient harm. And patients have the right, if not the obligation, to ask their doctor how confident they are of the diagnosis, on a scale of 1 to 10. If the confidence factor is less than 7 or 8, ask for a second opinion.

Expert analysts of the new study said systemic changes also are necessary to lower the rate of outpatient misdiagnosis. Physician support and follow-up should be standard operating procedure.

And when mistakes happen — and they will, no matter how good the care is — practitioners need to know. That’s the only way they can learn from them. According to one Globe source, “There’s a lot of learning that should be going on, that’s not.”

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March 23, 2014

Florida Stands Up to Anti-Consumer Malpractice Cap

To the people trying to prevent patients harmed by medical errors from seeking adequate redress in the courts, “tort reform” is their weapon of choice. It’s code for limiting financial judgments plaintiffs may receive. But according to Los Angeles Times business columnist Michael Hiltzik, tort reform is nothing more than "shutting the courthouse door to malpractice victims."

Last week, Hiltzik wrote about the “refreshing” decision by Florida’s Supreme Court that, by a 5-2 vote, overturned that state’s cap on malpractice damages because it deemed the 2003 law that imposed it unconstitutional. The court called the cap discriminatory and said that claims by tort reformers of a malpractice insurance "crisis" were bogus.

Thanks, your honors, for confirming what we — and many others — have been saying, and proving, for a long time.

Promoters of tort reform, and their misleading — OK, untruthful — claims are found all over the country, and Hiltzik, like other supporters of reality and fairness, appealed to Congress to reject their noise about a malpractice crisis that they say is driving up health-care costs and creating doctor shortages. Neither claim is based on fact, only fear.

The Florida case that produced the Supreme Court ruling concerned Michelle McCall, whose pregnancy and delivery of a healthy baby in 2005 went terribly wrong. Her physicians diagnosed a serious complication requiring immediate delivery, but in the few hours after her son was born, she suffered severe blood loss. Her medical team didn’t notice, and didn’t treat it. McCall went into cardiac arrest and died. Her family sued.

Initially, they received a judgment of nearly $1 million in financial losses, and $2 million in nonfinancial losses. But the court was required to cut the latter sum in half because Florida state law capped pain and suffering judgments in wrongful-death cases to $1 million, "regardless of the number of claimants."

The Supreme Court said the limit was unfair and illogical, that it effectively saved "a modest amount for many by imposing devastating costs on a few — those who are most grievously injured, those who sustain the greatest damage and loss ... simply based upon the existence of the cap."

Hiltzik found the ruling more compelling for its dissection of the malpractice "crisis." The cap was enacted in 2003 because its advocates claimed that Florida faced "a medical malpractice crisis of unprecedented magnitude." Doctors were bailing out of the state, they said, because multimillion-dollar malpractice jury awards were driving insurance premiums sky-high.

But, as Justice R. Fred Lewis pointed out, the supply of doctors in Florida was increasing during the supposed crisis, not decreasing. And tort reformers were lying about it. The state medical society said that two counties had lost all their neurosurgeons, but five were working in each county at the time the claim was made.

And it wasn’t juries that decided on the highest amounts — most malpractice judgments of $1 million or more came from settlements; that is, the dollar amounts were agreed to by the parties before the cases ever got to a jury.

And increasing premiums were found to result not from litigation claims but from the insurance industry underwriting cycle. “Put simply,” Hiltzik explained, “the industry vacillates between under-reserving for claims and over-reserving. When it under-reserves, its profits look flush and carriers might even drop rates to win market share. When claims then outpace reserves, profits drop, premiums are driven higher and — presto! — there’s your malpractice ‘crisis.’”

The Supreme Court cited evidence that malpractice caps have no appreciable effect on malpractice rates. They enhance insurer profits and do nothing for either the doctors who pay them or the patients denied justice for their harms. The interests being served by what Hiltzik called the “incessant nattering about ‘tort reform’” are not those of doctors, hospitals or consumers; they’re insurers. And in Florida, he said, “the Supreme Court is telling them they'll have to earn their money honestly.”

If you want to read some of the most telling quotes from the court’s ruling, link to PopTort, the civil justice blog sponsored by the Center for Justice & Democracy.

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February 23, 2014

Two Different Responses to Medical Malpractice Claims

The latest episodes in the long-running medical malpractice drama are brought to you by the states of Maryland, Kentucky and Florida. Their responses to medical mistakes show how different perceptions drive policy, one for the good, one not so much.

Maryland is contemplating the creation of a birth injury fund from which children and families would be compensated for health problems caused by medical mistakes during birth. On its face, sounds like it might be a good idea, but the legislation would limit the ability of families to pursue medical malpractice lawsuits.

That’s tort reform, which, as applied to medical malpractice, often means limiting an injured party’s rights, not expanding the ability to seek redress (See our blog, “A Case Study of Tort Reform’s Misleading Claims.”

The “no-fault” birth injury fund idea was implemented in Virginia in 1987, but it gets mixed reviews. The fund’s financial viability is uncertain, it might not cover all the costs of raising a child with a birth injury and many analysts believe it hasn’t reached the societal goals of better obstetric coverage for all.

As explained by, the Maryland fund was proposed by Dr. Dan K. Morhaim, a member of the House of Delegates, to provide compensation for injured patients while shielding medical personnel and hospitals from jury verdicts with substantially more compensation. Morhaim claimed that such a fund would mean more infants would be compensated because their parents wouldn’t have to win a trial.

Look closely at the idea, however, and you see that the fund would protect doctors and hospitals that provide substandard care. So-called “reform” shouldn’t sweep aside the problems in favor of quicker — and often less — compensation, it should improve care in the hope of preventing birth injuries.

Only children born in Maryland who were harmed by birth-related neurological injury would be eligible for compensation by the fund, as determined by an administrative law judge. There would be a one-time payment of only as much as $100,000. It would include lifetime medical care with no cap, and lost earnings compensation. Each case would be reviewed by the Maryland Department of Health and Mental Hygiene and the Maryland Board of Physicians, who would review hospitals and doctors, respectively, for indications of substandard care.

Which seems to us a little like the fox guarding the hen house.

AP covered a story about legislation pertaining to all medical malpractice claims, not just birth injuries, that’s pending in Kentucky, where panels of “medical experts” would offer opinions on whether standards of care were violated, but would not make findings of fact or conclusions of law.

"How is it fair for a panel to render an opinion, but not tell any of the parties the basis for the opinion?" one opponent asked. "That can't be fair. That's fundamentally unconstitutional."

In contrast, in Florida, “‘Disclose-and-Investigate’ Approach to Malpractice Claims Pays Off,” according to Gastroenterology & Endoscopy News. A study showed that when the gastroenterology division of the University of Michigan Health System (UMHS) changed its confrontational approach to malpractice claims in favor of a more honest and immediate one, it benefited enormously. And so do patients.

The study showed that the more honest, direct approach reduced the number of malpractice claims, as well as the costs per claim, the total costs for defending claims and the time it took to resolve claims.

Doing the right thing, in other words, was a win-win, and the article says that changing the policy “appears to be generating improvements in quality of care.” That won’t surprise regular readers of this blog.

In 2001, UMHS replaced its traditional “deny-and-defend” approach to claims of medical error with a “disclose-and-investigate” approach. Before it did so, any malpractice claim immediately was referred to a defense attorney. Now, a team of physicians, nurses and administrators review each claim, and if it determines that the care was unreasonable, the finding is disclosed, an apology to the patient is extended and compensation is offered, irrespective of any outside legal action.

Of course, if the team determines that the care was reasonable, the claim is defended.

These results aren’t unprecedented. The article refers to a study published in 2010 in The Annals of Internal Medicine that showed a 65% reduction in lawsuits, a 59% reduction in both total liability and patient compensation and a 61% reduction in noncompensation-related legal costs after implementing a medical errors disclosure program. That study also showed that the time between reporting a claim and its resolution was reduced by more than one-third.

Key to the UMHS experiment was that it wasn’t primarily about managing risk; it was about improving care. The team of reviewers is charged not only with identifying and disclosing errors, but figuring out how to prevent the same ones from recurring.

One staff physician called it a “culture change,” and told the journal, “One problem with the deny-and-defend approach is that it does not help to reduce errors and therefore may not best serve the overarching goal of improving patient safety.”

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February 21, 2014

Appeals Court Affirms Jury Verdict against Orthopedic Surgeons Society

An orthopedic surgeon who fought back and won a court case after the society of orthopedic surgeons slammed him for testifying that another surgeon had committed malpractice has now won an appeal of the legal case.

We reported last March on Dr. Steven Graboff's successful lawsuit against the American Academy of Orthopedic Surgeons (AAOS), when the trial judge rejected the AAOS's bid to overturn the jury verdict against it. We called our report: "When 'Peer Review' Has an Ulterior Motive."

The ulterior motive here is that the bone doctors set up their "peer review" program to go after doctors who testified in court that a surgeon had committed malpractice.

Now, eleven months later, the U.S. Court of Appeals says the trial judge was correct in refusing to throw out the jury verdict. The jury had found that the AAOS's report of its "peer review" of Dr. Graboff did not include "false statements" but did cast Dr. Graboff in a "false light," by failing to tell the full story of what had happened. The jury also found that the Academy acted knowing that its published report about Dr. Graboff was untrue or "in reckless disregard for the truth." The appeals court rejected the idea that there was anything inconsistent in the jury's finding that there were no false statements but that the AAOS report about Dr. Graboff did cast him in a false light. As the court noted, a report about someone can include literally true statements but by leaving out the rest of the story can create a false impression.

You can read the appeals court decision here.

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January 6, 2014

The Economic Reality of Malpractice Lawsuits

Pro Publica, the excellent investigative reporting group which has an ongoing series about harm to patients in our health care system, has a new piece on why many victims of poor care cannot find an attorney to represent them in a malpractice lawsuit. Reporter Marshall Allen quotes me among others about the harsh economic reality of the legal system.

Here's the dilemma. We could make the system quicker and cheaper, but that likely would happen only by cutting down on the rights of injured patients to seek accountability in our jury trial system. And that's not a very good idea either.

Meantime, our website has extensive resources for patients and families who want to make complaints about quality of care, many of which are very valid even if they don't make for a viable lawsuit.

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November 17, 2013

How Should a Doctor Handle Disclosure When Another Doctor Hurts a Patient?

A thoughtful analysis published last month in the New England Journal of Medicine (NEJM) grapples with the difficult position a physician is in when he or she believes a colleague has committed a mistake that hurt a patient.

It's an urgent question, and a common issue for those of us who represent patients in malpractice lawsuits. We frequently find that, as a new Pro Publica report shows, doctors who see another doctor hurt a patient turn away in silence because they don't know how to handle it.

The New England Journal article was a joint effort by several medical, legal and academic professionals representing patient safety, medical malpractice insurance and litigation, bioethics, and health policy.

They set up their discussion with this scenario:

A young neurologist practicing in a small hospital admits a woman with high blood pressure and diabetes who has had a stroke at home. In reviewing the patient’s medical record, the doctor sees that, during two electrocardiogram (ECG) tests in her primary care doctor’s office, the patient appears to have experienced atrial fibrillation.

Afib, as it’s known, is an abnormal heart rhythm that presents a risk of stroke, chest pain and heart failure, from blood clots that develop in the non-working atrium of the heart.

The primary care doc is an internist who refers many patients to the neurologist. He read both ECGs as normal and attributed the odd rhythms to “probable mitral-valve prolapse and anxiety.” The neurologist shows the internist the ECGs and expresses concern about Afib. He suggests that she is confused by noise from the old ECG machine, but two cardiologists the neurologist consults both say it’s Afib. The internist requests the neurologist to transfer the patient to his care.

The essay, “Talking with Patients about Other Clinicians' Errors,” discusses how doctors continue to struggle with the obligation to disclose errors even though the medical community agrees that there’s an ethical duty to communicate openly with patients who have been harmed by them.

“Existing guidelines emphasize the overall importance of disclosing errors, but (with the exception of the case study of the American College of Physicians Ethics and Human Rights Committee) they offer little guidance on disclosing others' mistakes; this lack of guidance heightens clinicians' uncertainty about what to do,” the authors write. “Consequently, patients may be told little about these events, and opportunities to build trust, ensure that learning occurs after errors, and avoid litigation may be lost.”

Sometimes it’s assumed that the doctor who discloses an error committed it, but health care can be delivered by many different clinicians in many different settings. Systems, as well as people, fail, and can play a role in adverse events.

When someone is trying to determine what happened, but was not directly involved in the error, one strategy is to talk with the involved colleague or colleagues about what happened, whether it was a harmful error and what, if anything, to tell the patient. In reality, though, lots of factors make this difficult: fear of how a colleague will react; cultural norms of loyalty, solidarity and “tattling”; reluctance to risk an unfavorable reputation with colleagues; power differentials associated with seniority, gender and race; dependence on colleagues for referrals…

Using the patient's medical record to raise concerns about a potential error without initiating a direct conversation can avoid awkwardness and maintain the appearance of collegiality, but it can create evidence for a malpractice suit without allowing the colleague to dispel misconceptions.

Some health-care institutions could help determine what happened and plan for disclosure, but that can be problematic for some clinicians worried that reporting a concern to the hospital will result either in punitive retribution, or no action at all.

Clinicians and institutions might have different malpractice insurers that disagree about how to handle the event. And many clinicians work in small practices without access to institutional resources to help them figure out what happened and navigate the disclosure conversation.

Sometimes, the facts surrounding harmful errors seem clear, but doctors worry about destroying patients' trust in the colleague who erred. They worry about triggering litigation. It’s one thing to subject a colleague to difficult conversations with an angry patient or family, and quite another to expose him or her to a potential malpractice suit.

Most states protect some aspects of disclosure conversations from use in litigation, but this protection is incomplete and might not extend to protecting an unrelated third party to the disclosure. And although research suggests that good communication about adverse events may reduce lawsuits (see our blogs, “Acknowledging a Mistake Made Her a Better Doctor” and “Admitting Errors Is the Right Thing to Do”), data are lacking to indicate how to disclose others' errors while minimizing the risk that a patient will initiate a claim.

The writers suggest a scientific approach to figuring how to tell patients what they need to know for maximum benefit to all. They say the preferences of patients, clinicians and institutions about how to handle such situations should be solicited, and numbers should be crunched for what disclosure strategies result in what outcomes.

Patients and their families come first. “[A] patient's right to honest information shared with compassion about what happened to him or her is paramount,” they write. “Simply put, when disclosure is ethically required, the fact that it is difficult must not stand in the way. Patients and families should not bear the burden of digging for information about problems in their care.”

The writers acknowledge that many families will need financial help after a serious error and will have a hard time getting it if they don’t have information about what happened. “Clinicians rightly perceive the current medical liability system as flawed and understandably worry that they may not be treated fairly should a patient file a claim,” the writers say, “[b]ut these concerns do not obviate clinicians' duty to be truthful with patients; as professionals, clinicians are expected to put the patient's needs above their own.”

The essay goes on to discuss how to discern the facts of an error, and that hospitals must take the leadership role to facilitate this discovery and to ensure that high-quality disclosure conversations occur with patients, regardless of which clinicians were involved in the event.

And institutions also are responsible for cultivating “atmospheres of trust in which people are encouraged, even rewarded, for providing essential safety-related information — but in which they are also clear about where the line must be drawn between acceptable and unacceptable behavior.”

The writers call these “just cultures,” which encourage clinicians to report adverse events and help address hierarchy issues involving nurses and trainees that can obstruct the free flow of information to the patient.

They say insurers also must lead the effort to do right, especially for doctors who don’t have strong institutional connections. Support also should be provided by medical societies and professional organizations. Patient-safety organizations, backed by strong legal protections for the confidentiality of information reported to them, could help bridge the gap in cases that involve multiple institutions.

So, back to our neurologist in her disclosure pickle. What should she do?

Here’s the writers’ prescription: After being rebuffed by the internist, she should tell him that she plans to request a formal cardiology consultation and, with the diagnosis in hand, communicate the findings to the internist and try to formulate a joint disclosure strategy. If the internist declines or objects to the cardiology consult, she should seek assistance from the institution's medical director or other senior administrative leader, and hope that she gets support from a disclosure coach.

Well, yeah. It’s difficult, but isn’t it common decency?

The writers think so. They conclude: “… transparent disclosure of errors is a shared professional responsibility. Only a collective approach to accountability can fully meet the needs of patients and families after harmful medical errors.”

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November 16, 2013

Health Care Access Disasters, at Home and Abroad

Today's front page news features a Philippines typhoon victim who died from not getting an antibiotics shot; for five days he lay with a mangled leg, untreated on a hospital gurney, and by the time doctors got to him, the infection was too far advanced.

Here in the U.S., tens of thousands of Americans die each year from our own health care access disaster. Their stories rarely make the front page. Instead, we're consumed with the political wrestling match over the flawed rollout of Obamacare, and hardly anyone seems to notice the public health scandal that the Affordable Care Act aimed to fix: One in five adult Americans has no health insurance, and as many as 45,000 unnecessary deaths happen every year because of it.

In this week's New England Journal of Medicine, two Louisville, Ky., doctors at a public clinic tell the story of their patient who ended up with advanced, incurable colon cancer, who had no health insurance despite working full time, and who put off for a year seeing a doctor about his abdominal pain and constipation because he couldn't afford even the testing he needed. By the time he finally reported in agony to a clinic, and got a $10,000 workup that consumed his life savings, the patient aptly and ruefully called himself "dead man walking."

Drs. Michael Stillman and Monalisa Tailor tell of other patients at their clinic who suffer pain and indignity every week from lack of access to health care: the man with AIDS who couldn't get to a dermatologist for treatment of his whole-body rash because he didn't have the bus fare, the patients who can't fill prescriptions because they lack the copay, the woman with lung cancer whose surgeon wanted more testing than she could afford before he would operate.

Drs. Stillman and Tailor correctly call this a "public health catastrophe," and they call out their own professional organizations -- the American Medical Association, the American College of Physicians, and others -- who have sat on their hands during the political debate about whether and how we as a country will ever meaningfully recognize access to medical care as a fundamental human right.

What's the option to the Affordable Care Act? Republicans offer as a magic bullet "tort reform," which by limiting Americans' ability to sue their doctors for malpractice would allegedly cut all sorts of waste from the health care dollar. It's a dubious proposition even on its face, and we've regularly cited the many reports that show that tort reform would do nothing but give a big birthday cake to the malpractice insurance industry.

Can we come together as a country to fix the scandal of health care access? Part of the problem is figuring out who is this "we." Many of us with good jobs and regular access to doctors and hospitals find the "dead man walking" stories unimaginable, and we look for ways to blame and isolate the victim. We forget that our system gives reliable access to health care mainly to families with a healthy working bread winner; we're all one catastrophic illness away from losing a job and losing good health care.

Obamacare means to fix that. It's an urgent crisis. Let's never forget that.

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November 12, 2013

A Case Study of Tort Reform’s Misleading Claims

The essence of a long and fascinating examination of a lawsuit over a newborn’s brain damage by Steve Cohen on was distilled nicely on, the civil justice site of the Center for Justice & Democracy.

It concerned tort reform, which, as regular readers of this blog know, is the misguided movement to restrict damages people who have been harmed by the actions of others may receive.

It’s misguided because it has been proved not to reduce the incidence of “defensive medicine,” in which practitioners overtreat for fear of being sued if they don’t, nor does it reduce the costs of health care, among other bogus claims.

Here are some of PopTort’s take-home messages from the Forbes piece:

1. If we change statute of limitations laws, doctors will stop complaining about being sued.

As Cohen notes, closing the window of time someone may sue for malpractice has not resulted in fewer doctors being sued, but precisely the opposite. Such limitations are objectionable on many levels, not the least of which, Cohen wrote, is that ,“Very often the clock runs out before a patient even discovers he or she is the victim of malpractice.”

So where the limits have been shortened, plaintiffs often include every conceivably liable doctor. When they realize that many named parties did nothing wrong, they drop the suit. That hurts the innocent and wastes resources.

PopTort suggests changing state statute of limitations laws to “enterprise” notification—instead of requiring a patient to file a lawsuit against every potential defendant, “the law should toll the statute of limitations against all health-care providers for injuries and damages arising from the events referred to in a complaint, save for one defendant who is initially sued. If later it is discovered that one or more others are also responsible, they can be brought into the case at that time.”

2. The “cost of defending malpractice claims and compensating victims … is 0.3% of the $2.5 trillion spent on healthcare that year.”

As PopTort has demonstrated, courtesy of the state of Texas, there’s no evidence that health-care costs decreased after medical malpractice payouts were limited in 2003. In fact, there was evidence of increased physician spending in some counties. There also was evidence that Medicare payments to doctors in Texas rose faster than elsewhere in the country.

3. Compared to the epidemic of malpractice in the country, only a “shockingly small” percentage of legitimate cases end up as claims.

Business groups, PopTort has pointed out, like to say punitive damages pose a significant threat to an enterprise’s viability. Except that they demonstrably don’t. The rate of punitive damages has remained stable, and there’s no evidence to suggest such damages are awarded systematically or inappropriately.

4. So-called “defensive medicine” is one big myth.

So say the Kaiser Family Foundation (an independent outfit that provides health policy research and information), the Congressional Budget Office and the Government Accountability Office (GAO). As we’ve explained, doctors perform tests for legitimate diagnostic reasons, or to generate extra income, not to cover their … bases.

PopTort quotes one New York doctor on this point: “The more tests doctors order – even if they are marginally necessary – the more doctors earn. … Both Medicare and private insurance companies are reimbursing us less and less for every procedure we perform. These are not ‘unnecessary’ tests, and they are certainly not harmful. I have no compunctions about ordering them and billing for them. It is part of the business.”

We have taken issue with that glib “no harm” assessment. See our blog, “Overtested, Overtreated, Overcharged.”

5. State tort laws have no impact on where doctors decide to practice.

PopTort quotes Tom Baker of the University of Pennsylvania Law School, and the author of “The Medical Malpractice Myth” about the claim that doctors abandon the profession because of the burden of medical malpractice. “Not one of the five major studies designed to rigorously track and analyze this claim have found any evidence to support the claim.”

6. State tort laws have no impact on doctors’ insurance rates.

A couple of years ago, the Robert Wood Johnson Foundation, the nation’s largest philanthropy focused exclusively on health and health care, analyzed 11 major studies on the effect of tort reforms on malpractice insurance rates. It found that despite dramatic caps on pain-and-suffering awards, much lower fees for lawyers and obstacles to bringing cases to trial, insurance premiums still increased in states that had implemented tort reform.

7. Medical societies know exactly what to do to improve patient safety.

And the right-thinking ones have done it. The American College of Obstetrics and Gynecology (ACOG) isn’t one of those, as the Forbes story and PopTort demonstrated. Said Steve Pegalis, a professor at New York Law School:

ACOG is a political organization pretending to be an educational organization. Over 10 years they’ve appointed two major committees to address the related problems of sentinel events and costly lawsuits. And twice the committee has come back with recommendations that were purposefully ambiguous. They were designed to aid in the defense of lawsuits, not help doctors identify dangerous situations during childbirth.

Even one of their own, an ACOG committee member who was frustrated about ambiguous recommendations, told a reporter, “It is intended for litigation.”

ACOG was the centerpiece of the Forbes story, and PopTort concluded its analysis with this telling passage in which Cohen quoted Tom Moore, the attorney who represented the family in a case of negligence resulting in the birth of a girl with severe brain damage:

But the most infuriating part is that they knew they were in the wrong years ago. They knew it (A) when it first happened. They knew it (B) when they first offered $8 million to settle the case. And they knew it (C) between the first and third trials when they never offered this victim a dime. And they still won’t end it.” “… They won’t allow this poor child get the therapies she so desperately needs. She could have been getting help all this time, making even more progress.

Cohen concluded the story by asking, “What will it take to get ACOG to shift from a purposefully ambiguous mindset to one that is centered on patient safety? …Perhaps this article will be the first rumblings of an avalanche that will lead to greater patient safety in obstetrics.”

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October 20, 2013

Defensive Medicine and Increasing Health-Care Costs—A Phantom Association

Some policymakers spend so much time tilting at windmills you have to wonder if they do it just for exercise.

As noted on, the civil justice website sponsored by the Center for Justice & Democracy, yet another academic research report confirms that so-called “defensive medicine,” is not responsible for driving up health-care costs.

Defensive medicine, as we’ve explained, reflects a fear of being sued; it’s the practice of doctors performing unnecessary tests so that they can’t be accused of missing something. People pushing for “tort reform”—the imposition of capped amounts a harmed patient may recover in a malpractice lawsuit—want us to believe it does. Because if a correlation can’t be shown, limiting the money someone may receive for suffering medical malpractice isn’t the solution to a problem, it’s a pass for doctors who make serious mistakes and a deprivation of rights for their patients.

The Journal of Patient Safety examined the theory that the hidden cost of defensive medicine is a significant driving force in the increase of our nation's health-care costs. If it is, you’d expect that states with higher levels of tort reform would show decreased use of Medicare, decreased use generally of medical services and lower overall health-care costs.

The researchers analyzed state medical reimbursements from 1999 to 2010 and correlated the data with how each state used medical services. Data for three states—Mississippi, Nevada and Texas—were available to enable comparisons between this use before and after tort reform was enacted.

The number-crunching showed no significant correlation. In six categories of Medicare use—total Medicare, hospital and skilled nursing facility, physician, home-health agency, hospice and durable medical equipment—a negative trend was observed.

According to the report, it “does not support the hypothesis that defensive medicine is a major driver of health-care expenditures. Tracking expenditures in the states of Texas, Nevada, and Mississippi, before and after passage of comprehensive medical tort reform gave inconsistent results and did not demonstrate substantial or meaningful total Medicare savings. In Mississippi, there was a trend of decreased expenditures after medical tort reform was passed. However, in Texas, where 80% of the analyzed enrollees resided, there was a trend of progressive increasing expenditures after tort reform was passed.”

So cost increased in one state after it supposedly solve a problem that apparently didn’t exist. “[T] hese data,” according to the report, “indicate that medical tort reform seems to have little to no effect on overall Medicare cost savings.”

Will supporters of tort reform ever find another form of exercise?

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September 11, 2013

Suggested Reading—Weak Oversight in Texas Allowed People to Die

The incompetency and gross malpractice of Texas surgeon Dr. Christopher Duntsch raised so much attention that you wonder why his neurosurgery practice in Dallas wasn’t mistaken for a chop shop. By the time his license to practice was revoked in June, two of his patients were dead and four were left paralyzed.

People went on the record to call him out: One person told authorities that Duntsch was “the worst surgeon I’ve ever seen.” Another told a reporter that Duntsch seemed to learn things properly only in order to do the exact opposite. Another compared him to Hannibal Lecter. And these were his medical peers.

So why did it take more than a year after the Texas Medical Board was aware of Duntsch before this clearly out-of-control medical provider was stripped of his propensity to do harm? As the Texas Observer concludes, it’s “the weakness of Texas’ unregulated system of health care, a system built to protect doctors and hospitals. And a system in which there’s no way to know for sure if your doctor is dangerous.”

Read the whole sordid story here.

What adds insult to injury is that Texas "tort reform" has wiped out the ability of most victims to sue for malpractice in court. And that helps attract doctors like Duntsch to a state where they know there will be little accountability for any harm they cause.

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August 25, 2013

Hospital Staff Shortages Harm Patients

In some ways, nurses are like cops: They all have stories to tell that make you simultaneously grateful you do not have their job and relieved that someone competent does.

A commentary earlier this month in the New York Times written by Theresa Brown, an oncology nurse, warned about overtaxed nurses who have “too many cases, too many procedures to keep track of until one critical step, just one, slips through our frenetic fingers and someone gets hurt.”

She recounted a harrowing hospital tale when she was in nursing school. A nurse administered a higher dose of pain medication to a patient in need. It did ease the pain, but the patient’s breathing slowed and her oxygen level dropped. Brown advised the nurse that the patient might need Narcan, which reverses the effects of opioids.

But the nurse was in charge of eight patients on a medical surgery floor, and managing their care and all their paperwork was a huge time suck. She couldn’t administer the Narcan at that moment. Half an hour later, the patient had to be revived by an emergency team. “I held her hand while an anesthesiologist stuck a tube down her throat,” Brown wrote. “She ended up in intensive care.

“It would be easy to blame the nurse. How could she be too busy? But she was a good nurse, smart and committed. She simply had too much to do, too many acute needs to address. And then one, just one, got out of control.”

Nurses can’t be attuned to both critical care needs and clerical efficiency if they have too many patients. In addition, as Brown noted, even basic patient care is more complex than it used to be, “And as hospitals face increasing financial pressure,” she said, “nurse staffing often takes a hit, because nurses make up the biggest portion of any hospital’s labor costs.”

She referred to research conducted by Linda H. Aiken, a professor of nursing and sociology at the University of Pennsylvania, that showed how each additional patient under a nurse’s care over the established nurse-patient ratio made it 7% more likely that one of his or her patients would die. Aiken concluded that 20,000 people died a year because they were in hospitals with overworked nurses.

Brown also wrote that when hospitals are staffed adequately with bedside nurses, the number of patients injured by falls declines, as does the number of hospital-acquired infections, which kill 100,000 patients every year.

In acknowledgment of the problem and its consequences, two congressional representatives introduced the Registered Nurse Safe-Staffing Act of 2013. (See our blog, “Proposed D.C. Law Demands More Nurses in Hospitals.”)

Among other provisions, it requires hospitals to include their nurse staffing levels on Medicare’s Hospital Compare website and post their staffing levels in a visible place in every hospital.

The typical argument of tight hospital budgets makes passage of the legislation an uphill fight. Brown acknowledged that cost-benefit analyses are tricky to compute thanks to the confusing nature of health-care accounting systems, but she also said data suggests adequate staffing reduces hospital costs.

For example, how Medicare reimburses hospitals is based in part on their record of readmissions, and sufficient nurse staffing reduces the chance that hospital patients will have to be readmitted within 30 days of their initial discharge. Another Medicare measure is patient satisfaction scores; generally the more nurses, the more satisfied are the patients. And when overworked nurses burn out and are absent or quit, it costs money to hire and train their replacements.

“What [the] discussion of finances misses, though, is that having enough nurses is not just about dollars and cents,” Brown wrote. “It’s about limiting the suffering of human beings. When hospitals have insufficient nursing staffs, patients who would have gotten better can get hurt, or worse.”

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August 22, 2013

Report Debunks Many Ideas Blamed on Medical Malpractice Litigation

In a report issued this month by Public Citizen, the nonprofit that lobbies on behalf of consumer interests, the idea that medical malpractice lawsuits are responsible for a range of social and medical ills has been disproved. Again.

The clunkily titled report, “No Correlation—Continued Decrease in Medical Malpractice Payments Debunks Theory That Litigation Is to Blame for Soaring Medical Costs,” recalls how, 10 years ago, medical malpractice payments were the highest they’d been since tracking of that information started in 1990. Some people blamed malpractice lawsuits for the huge rise in health-care costs as well as for the large numbers of people who don’t have health insurance. That spawned a lot of legislative activity to limit the amounts injured patients could receive (known as capped damages) as a solution to the problems.

As we have regularly written, the problems weren’t caused by medical malpractice litigation, and the “solution” is a fantasy of ignorance, mean-spiritedness and political expedience that further victimizes people who suffered harm.

As the Public Citizen report notes, federal legislation imposing restrictions on medical malpractice litigation has not passed, although damages have been capped in most states. “But the chief objective,” according to the report, “of those seeking restrictions—namely reducing litigation and malpractice payments—has been realized.”

Since 2003, both the frequency of medical malpractice payments on behalf of doctors and the amount of awards made to patients have fallen every year. Last year, the number of payments fell to the lowest level on record, and it was the third consecutive year that the total value of malpractice payments fell to their lowest level on record.

But willful ignorance endures. Last week, a study published in Health Affairs that was discussed on concluded that physicians who reported a high level of concern about medical malpractice lawsuits were more likely to practice defensive medicine. That means they order lots of diagnostic tests that probably aren’t necessary simply to protect against charges that they overlooked something. As we’ve noted, that’s the cause of inflated costs and additional risk of medical harm, not litigation.

The authors of the Health Affairs study encouraged policymakers to enlighten clinicians about certain facts including:

  • Physicians greatly overestimate the risk of being sued.

  • Only about 1 in 50 injuries caused by negligence result in a claim.

  • Lawsuits are almost never settled for amounts in excess of a physician's insurance policy.

  • Malpractice plaintiffs lose 4 out of 5 trials.

And after noting these seven facts enumerated in the report, we are left speechless trying to explain why misinformation and bald-faced lies continue to proliferate and be embraced by people who should know better.

1. The number of malpractice payments on behalf of doctors in 2012 was the lowest on record.

2. The inflation-adjusted total value of payments made on behalf of doctors in 2012 was the lowest on record.

3. Medical malpractice payments’ share of the nation’s total health-care bill was the lowest on record in 2012.

4. Total costs for medical malpractice litigation, as measured by liability insurance premiums paid by doctors and hospitals, were the lowest in 2012 since 2003 (the earliest year for which Public Citizen as able to obtain the relevant data).

5. Four out of five medical malpractice decisions compensate for death, catastrophic harms or serious permanent injuries.

6. Declines in litigation do not translate into lower costs for consumers.

7. There is no evidence that the decline in medical malpractice payments is due to safer medical care.

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August 21, 2013

Surgical Errors -- When Technology Is the Problem

Surgical errors are a common cause of medical malpractice lawsuits. Sometimes it’s the result of an horrific human mistake such as operating on the wrong body part or leaving a tool inside the patient. A new study shows that a significant number of surgical mistakes are caused by problems with the equipment or technology used.

We love technology, whether it’s our mobile device, our car’s GPS or a medical tool that makes us better. But using the wrong tool in a medical setting, or using it improperly, can be deadly.

For example, we’ve discussed the ongoing problems with the Da Vinci robotics system that’s promoted for a wide range of surgeries including those for bladder, colorectal, gynecologic, kidney, prostate and throat cancers.

The new study, published in BMJ Quality and Safety, involved a review of more than 19,000 scientific studies that examined problems arising during a variety of surgeries.

As discussed on, nearly 1 in 4 of all surgical errors was associated with the failure of equipment or technology.

Additional analysis found that more than 4 in 10 errors had to do with how the machines were configured or calibrated; nearly 4 in 10 concerned the lack of availability of equipment, and more than 1 in 3 involved malfunctioning machines.

Sometimes, as we’ve written, mistakes are made because people aren’t trained properly in the use of the equipment.

Regarding the severity of operating room errors, 1 in 5 was classified as “major”; 13 in 100 of those were the result of technical failures, and 8 in 100 were about problems in communication.

Surgical errors are demonstrably reduced when hospitals implement certain procedures, including safety checklists, (see our blog, “Checklists for Surgery Safety Cut Death and Injuries.”) and the BMJ study bolstered this approach. In operating rooms where equipment safety checklists were followed before surgery, the number of errors was cut by half. When equipment-specific checklists were employed—that is, certain guidelines are followed for certain tools—errors dropped by nearly 61%.

As AboutLawsuits noted, medical mistakes affect as many as 16 in 100 inpatients, and nearly half of reported medical errors concern surgical procedures.

If you or a loved one is scheduled for surgery, make sure you understand the procedure—who is performing it, what are his or her credentials (how many similar procedures has he or she done; is he or she board-certified in the specialty) and whether a certain technology or tool is being employed.

If it is, investigate its safety record on the FDA’s website and ask if your caregiver has a financial stake in the equipment. Keep in mind that practitioners and hospitals that have invested heavily in new technology are especially keen to use—and charge for—it. Those financial interests might impair the providers’ objectivity when it comes to the appropriate use of technology in your situation. (See our blog, "Conflicted Care: Physicians with a Financial Stake in the Medical Devices They Use.")

Sometimes, device sales representatives are admitted to an OR to advise the surgical team on the proper use of their product. These situations are fraught with the potential for abuse. You have the right to know if this situation pertains to your case. If so, ensure that your caregivers follow guidelines for outsiders in the OR devised by the ECRI Institute, an independent, nonprofit organization that researches safety, quality and cost-effectiveness of patient care.

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August 4, 2013

Tracking Doctor Discipline Just Got Harder

Public Citizen, a nonprofit citizen/consumer safety advocate, publishes a report each year about doctors that have been disciplined by state medical boards. But the state medical boards just made its job a lot harder.

As reported by, the Federation of State Medical Boards (FSMB) “has quietly killed its Annual Summary of Board Actions report.” It was the resource Public Citizen used to spread the word, ranking state medical boards by how many disciplinary actions per capita they imposed on physicians.

The federation had been compiling reports since 1985 and, according to ModernHealthcare, promised to issue a new and improved version in the autumn. But it won’t necessarily include per-state statistics.

Public Citizen, which has been interpreting the data since 1999, claims that the federation shuttered the report to stop it from giving information that might be useful and interesting to patients, but that providers hated. The organization says it will continue to rank state boards by finding data elsewhere.

As we’ve noted, the adequacy of state medical boards, which grant professional licenses as well as conduct disciplinary actions, is inconsistent. There’s little uniformity in how they operate, how much authority they have and how effective they are in ensuring that health-care practitioners are responsible and accountable for safety lapses.

Until this year, each spring the FSMB noted the number of physician licenses revoked, suspended, modified and ordered to be surrendered or retired by each medical board.

The FSMB prefaced its report by saying, “Because states operate with different financial resources, levels of autonomy, legal constraints and staffing levels, the FSMB discourages using data from this report to compare or rank states.”

Public Citizen ignored that suggestion. As explained by ModernHealthcare, it calculated a three-year average of the number of licenses revoked, suspended or modified by the state board, dividing that figure by the number of doctors in a state to create a “serious actions per thousand physicians” standard. It usually got a lot of media play.

The federation, medical board officials and physician groups claimed Public Citizen’s report was misleading because the number of board disciplinary actions is driven by the number of bad doctors in a state, not by the effectiveness of the board that oversees them; that different boards have different missions—some are punitive, others rehabilitative. They say you shouldn’t compare apples to oranges, that you can manipulate data to prove anything you want to prove.

Dr. Sidney Wolfe, founder and a senior adviser of Public Citizen's health research group, told ModernHealthcare that it's likely that states have the same ratio of misbehaving doctors—about 1 in 100, he estimates—so differences in board activity are likely to reflect variables such as board leadership and resources. He believes FSMB yanked the report to avoid trouble within the ranks. Trouble that it created.

Public Citizen contends that by airing the data in an accessible way, positive change has occurred—state legislatures have boosted funding to medical boards, and that better monitoring improves patient safety.

Helen Haskell, a member of the National Patient Safety Foundation's board of governors and founder of Mothers Against Medical Error, told ModernHealthcare that even if medical boards are constrained by their state legislatures, “Public Citizen plays a vital role, and they're the only people taking on this issue. If doctors are licensed by the state, they need to be regulated by the state, and someone needs to keep an eye on (the state boards) to make sure that happens.”

The FSMB notes that because all state boards have websites, the federation can’t just track disciplinary actions; it must describe board structure, board staffing, budget, frequency of board meetings, etc. Officials say they’re working with the Department of Health and Human Services to establish a “minimum data set” for state boards to post information on individual licensees so consumers can see “who's practicing where.”

Kevin Bohnenblust, executive director of the Wyoming Board of Medicine, agreed that the annual report should change with the times; that it should reflect the realities of, for example, physician shortages in states such as Wyoming. “If we can make a physician better—with additional training or drug and alcohol treatment—then taking a license away doesn't ultimately serve the community if you can get a doctor to practice safely again,” he told ModernHealthcare.

It’s a fair point. But we remain skeptical that closing raw data to interpretation by agencies with patient interests in mind is a positive move. When it comes to the availability of information, less is seldom more.

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July 17, 2013

Lawmaker Who Wrote Legislation to Limit Malpractice Damages Now Says It’s Bad Law

In 1975, the California Legislature passed the Medical Injury Compensation Reform Act (MICRA). It was an effort to address what some people deemed a malpractice insurance “crisis” that was boosting insurance premiums and driving doctors out of the state.

The solution to the perceived—or even nonexistent—problem, as recounted by Los Angeles Times business columnist Michael Hiltzik last week, was to impose “draconian restrictions on patient lawsuits.”

Such measures, which deprive people of rightful redress of harms they suffered at the hands of medical professionals, have become fashionable. We have addressed the tsunami of misinformation about these mean-spirited, hurtful efforts to limit malpractice judgments many times—here and here, for example.

Hiltzik brings new perspective to the so-called “medical malpractice reform” movement courtesy of Barry Keene, the former California legislator who advocated for MICRA. The Act made malpractice cases more difficult to bring and less expensive to defend and, as Hiltzik writes, “has destroyed the ability of large segments of California patients to file malpractice lawsuits. It's not uncommon for those who sue their doctors and win to see their damage awards slashed by hundreds of thousands of dollars.”

Today, more than a generation later, the retired Keene says MICRA is grossly outdated.

Like so many other states, California’s MICRA capped all damages in malpractice cases except for the victim's medical bills and economic losses (typically lost earnings) at $250,000. That means that “pain and suffering,” mental anguish and loss of quality of life are all subject to the cap.

That sum from 1975 was not indexed to inflation; in 1975 dollars, Hiltzik says, $250,000 is worth less than $58,000 today. If it had been inflation-indexed in 1975, the cap today would be $1.1 million.

Keene is tormented by the failure to protect the $250,000 cap from inflation. He told Hiltzik that he proposed an inflation-indexed cap in an amendment to his original bill, and expected that it would pass routinely. Trial lawyers were actively opposed to the whole idea of MICRA, and they thought the bill would be so repugnant without the inflation index that it was a slam-dunk to be rejected. So they lobbied hard against it.

But even they underestimated the Legislature’s worst instincts: To their horror, MICRA passed without the inflation provision.

Hiltzik drew a stark picture of what has happened since. Because juries tend to assess proportionately more pain and suffering judgments to women than men, they typically get 33% less of what they used to. Verdicts for men, who generally have higher earning losses, have dropped by 25%.

And what about babies harmed by poor doctoring? Hiltzik refers to a Rand study that showed damages to injured plaintiffs younger than 1 year were slashed in 71% of cases.

Hiltzik writes that the real beneficiaries of MICRA are insurers. “Doctors would like to think that the insurers pass MICRA savings on to them,” he says, “but they're dreaming. Last year, [California] Insurance Commissioner Dave Jones ordered rollbacks of $52 million in ‘excessive’ malpractice premiums.”

As you might imagine, the medical and insurance industries love MICRA. They claim it prevents frivolous lawsuits, but as Hiltzik reminds, a 2006 study published in the New England Journal of Medicine showed that “the most frequent injustice in malpractice cases involved not undeserving patients collecting payments, but the opposite, deserving patients getting nothing.”

“Malpractice litigation has indeed failed to serve patients and their doctors,” he writes. “The cost of a lawsuit, which includes extensive expert witness fees, has become exorbitant for both sides, and the typical case takes five years to resolve.”

“… Simply padlocking the courthouse to whole categories of plaintiffs doesn't meet the fairness test. ... It's time to bring this 37-year-old law into the 21st century, and fix the malpractice system so that it actually works.”

Insurance and medical interests remain aggressively inaccurate in their defense of MICRA, but there are enlightened advocates motivated to correct its consumer ills: The consumer advocacy organization Consumer Watchdog is drafting a ballot initiative it hopes to place before the voters in November 2014 to raise the malpractice award cap to at least $500,000, and to index it to inflation.

Nobody familiar with the tonnage of campaign funding the rich insurance industry spends to misinform voters about proposals it doesn’t like is optimistic that this initiative will be successful. Neither is Hiltzik.

But it’s a start.

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July 10, 2013

VA Proves Fear of Malpractice Suits Isn’t Responsible for Overtesting

Malpractice lawsuits are routinely blamed for unnecessary medical practices, but a new study published in JAMA Internal Medicine supports the truth: Fear of lawsuits is just a noisy campaign to restrict patients’ rights and redress when they have been harmed.

Among the interpreters of the JAMA article was, which concluded that “The underlying culture of health-care providers in the United States, not greed or a fear of facing a medical malpractice lawsuit, appears to be the driving force behind … expensive and unnecessary medical testing, …”

The overuse of medical resources to protect against claims of negligent treatment often is referred to as practicing “defensive medicine.” We’ve discussed how this is a bogus idea that interests keen to limit malpractice awards continue to voice.

In the JAMA study, researchers analyzed the diagnosing and treating habits of doctors at a Veterans Health Administration hospital. Because such facilities are run by the government, their doctors generally are shielded from the effects of most malpractice lawsuits. Complaints against VA treatment are processed through a long, bureaucratic system that emphasizes resolution via mediation, not litigation.

Yet, the JAMA researchers learned, VA doctors request just as many unnecessary medical tests as private sector practitioners, who are far more vulnerable to lawsuits.

Specifically, researchers examined how often VA doctors used myocardial perfusion imaging (MPI) to test patients for coronary ischemia, or insufficient blood in the coronary arteries. MPI, also called myocardial perfusion stress testing, relies on injections of radioactive dye to highlight heart function. Risks to the patient include allergic reactions to the dye, increased risk of cancer from radiation and false positives that can mean patients undergo other unnecessary and often invasive medical procedures, such as heart stents.

Although MPI is a common test, many experts believe that it is overprescribed, as AboutLawsuits explains, either because doctors fear potential lawsuits or because they have a financial interest in the screening technology and will profit from self-referral.

The researchers had expected to find a much lower use of MPI at the VA hospital compared with private and public hospitals. But the rates were about the same—“VA doctors,” according to AboutLawsuits, “were just as likely to prescribe unnecessary MPI tests as other doctors.”

Based on guidelines devised by the American College of Cardiology Foundation and the American Heart Association, about 13 in 100 MPI tests are unnecessary.

The lead JAMA researcher concluded that neither potential profit from self-referrals nor fear of medical malpractice lawsuits was driving the unnecessary tests. And an editor of the publication commented that such overtesting reflects a certain culture within the medical community. We’ve written about this, about how much medicine loves technology, even when its use might not be best for the patient. That love affair, not malpractice claims, fuels overtreatesting.

A recent study at Johns Hopkins pegged the cost of malpractice payouts at less than 1% of U.S. health-care costs, as we wrote in May.

How long will it be before promoters of tort reform—measures to cap medical malpractice awards—finally are accepted as the purveyors of misleading information that they are?

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May 24, 2013

How Restrictions on Malpractice Lawsuits Hurt Patient Safety

The New York Times has a good readers' dialog in its letters to the editor, following up on a study published last week by law professor Joanna Schwartz about how malpractice lawsuits help hospitals correct patient safety lapses.

The dialog has the usual claims by the medical establishment that the malpractice lawsuit system is "broken," but no realistic proposals from that side about how reforms could be done that would be fair to injured patients. But the other side is also heard, and included is this from a doctor/lawyer who works in Texas, Brant Mittler from San Antonio:

As a physician, former county medical society president and litigator, I find Joanna C. Schwartz’s views very helpful. But they need some explanation in a state like Texas, which has had Gov. Rick Perry-inspired tort reform since 2003.

One aspect of that reform is a “willful and wanton” standard for emergency room negligence, which has led to virtually no E.R. malpractice cases in recent years. In San Antonio, the hospitals arrogantly maintain that they are untouchable. And physicians, on the rare occasions they do go to court, can actually admit negligence, but maintain they were not grossly negligent, and juries will give them a pass.

I regularly turn down E.R. death cases because such cases are not winnable in court even if they have clinical merit. In my experience in multiple lawsuits against hospitals in San Antonio, I have not seen one instance in which hospitals have admitted error, admitted any remedial measures or admitted that the physicians involved were subject to any peer review or quality assurance actions.

Tort reform in Texas has resulted in, as one appellate court put it, a “lower standard of care.”

If you have to go to an emergency room in Texas, watch out!

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May 17, 2013

Study FInds Malpractice Suits Can Make Hospitals Safer

A new survey of hospital risk managers finds that malpractice lawsuits can give them important clues to holes in their hospitals' patient safety nets that need patching.

The study by UCLA law professor Joanna Schwartz was excerpted in the New York Times op-ed page. Professor Schwartz writes:

New evidence ... contradicts the conventional wisdom that malpractice litigation compromises the patient safety movement’s call for transparency. In fact, the opposite appears to be occurring: the openness and transparency promoted by patient safety advocates appear to be influencing hospitals’ responses to litigation risk. ...

My study also shows that malpractice suits are playing an unexpected role in patient safety efforts, as a source of valuable information about medical error. Over 95 percent of the hospitals in my study integrate information from lawsuits into patient safety efforts. And risk managers and patient-safety personnel overwhelmingly report that lawsuit data have proved useful in efforts to identify and address error.

One might think that hospitals would have little to learn from lawsuits, given other requirements that hospitals report, investigate and analyze medical error. But participants in my study said that lawsuits can reveal previously unknown incidents of medical errors — particularly diagnostic and treatment errors with delayed manifestations that other reporting systems are not designed to collect.

Lawsuits can also reveal errors that should have been reported but were not — medical providers notoriously underreport errors (although studies have shown that the threat of litigation is not responsible for this underreporting) and lawsuits may fill these gaps.

Professor Schwartz's findings, which readers can also read about here, should help the pushback against misguided "reforms" that purport to make hospitals safer by making it harder for patients to sue for accountability when they have suffered serious harm from medical errors. As she reports, even hospital risk managers are finding that lawsuits are valuable sources of information about what really goes in inside hospitals. And is that any surprise?

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May 12, 2013

Malpractice Payouts Don’t Drain Health-Care Resources

For years now, medical professional organizations and insurers have waged war on the legal system for redressing medical malpractice that harms patients. They claim that too often payouts are so large and frivolous that they force clinicians to practice “defensive medicine” in order not to get sued and that they deplete health-care resources.


As reported on, medical malpractice reform, whose misguided, unfair and misleading campaign we regularly cover, is addressing phantom problems.

Researchers from Johns Hopkins University School of Medicine reviewed malpractice payouts of more than $1 million and concluded that they added up to approximately $1.4 billion a year. That’s much less than 1% of medical expenditures in the U.S.

"The notion that frivolous claims are routinely resulting in $100 million payouts is not true," said study leader Marty Makary, M.D., M.P.H., at Johns Hopkins. "The real problem is that far too many tests and procedures are being performed in the name of defensive medicine, as physicians fear they could be sued if they don't order them.

"That costs upwards of $60 billion a year. It is not the payouts that are bankrupting the system -- it's the fear of them."

The study was published in the Journal for Healthcare Quality.

Malpractice payouts of more than $1 million are more likely to occur if:

  • the injured or killed patient is an infant;

  • the patient develops quadriplegia, brain damage or the need for lifelong care as a result of the malpractice; or

  • the malpractice is related to anesthesia.

The review involved medical malpractice claims from 2004 to 2010 as recorded in the National Practitioner Data Bank. In 2004, data about the age and gender of patients and severity of injury became available for the first time. The payout information pertains only to individual providers, not hospitals or corporations, so it’s probably underestimated.

In that seven-year period, 77,621 claims were paid; catastrophic claims ($1 million or more) made up only 7.9%. The national total of catastrophic payouts was $9.8 billion, or 36.2% of the $27 billion of total claims.

We wrote recently about misdiagnosis as the most common medical mistake. It follows, then that in this analysis, the most common claims associated with catastrophic payouts were about misdiagnoses—more than 1 in 3. Obstetrics-related claims were slightly more than 1 in 5, and and surgery-related were about 18 in 100. As summarized by Science Daily, errors in diagnosis were twice as likely to result in a catastrophic payout as those related to equipment or products-related errors, and they had larger amounts.

About 37 in 100 catastrophic payouts involved physicians who had previous claims in the database.

Like other clear-eyed observers of what’s really—what’s provably--happening in medical malpractice, Makary concluded that the focus of legal reform should be reducing the practice of defensive medicine, which encourages overtesting and overtreating, not capping the amount that patients who have been harmed can recover from the people who caused it.

More research, Makary said, can determine what interventions might prevent the kind of errors that result in catastrophic payouts, the overall goal being to improve patient safety while cutting the cost of care.

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May 2, 2013

Misdiagnosis Is the Most Common and Most Dangerous Medical Mistake

After reviewing 25 years’ worth of payouts for malpractice claims in the U.S., researchers determined that diagnostic errors represented the largest proportion of claims, the most serious patient harm and the highest total of penalty payouts.

As reported by, the researchers from Johns Hopkins Hospital found that diagnostic errors accounted for 28.6% of the 350,706 paid claims they analyzed, and 35.2% of total payments. These mistakes resulted in death or disability nearly twice as often as other error categories, including surgical mistakes and medication errors.

"This is more evidence that diagnostic errors could easily be the biggest patient safety and medical malpractice problem in the United States," lead author David E. Newman-Toker, M.D., Ph.D., told ScienceDaily. “There's a lot more harm associated with diagnostic errors than we imagined."

By error category, death (as opposed to serious harm) percentages of malpractice claims were:

  • diagnosis: 40.9%

  • medication: 38.7%

  • treatment: 25.7%

  • obstetrics: 22.7%

  • surgery 13.8%.

The study examined only claims that resulted in a malpractice payout—most incidents of malpractice never see the light of litigation. Researchers estimate the number of patients suffering misdiagnosis-related, possibly preventable, significant permanent injury or death in the U.S. each year could be 80,000 to 160,000 people. Many routine diagnostic errors result in costly patient inconvenience and suffering; one estimate suggests an average diagnostic error rate of 15 in 100 when patients consult doctors for a new problem.

The study was published in BMJ Quality and Safety in Health Care. According to, the authors analyzed data from the National Practitioner Data Bank (NPDB), an electronic record of payments made on behalf of physicians with medical liability settlements or judgments. It also tracks adverse peer review actions against licenses, clinical privileges and professional society memberships.

A diagnostic error can involve a diagnosis that is missed, wrong or delayed. Harm can result from the delay or failure to treat a problem because the initial diagnosis was wrong or unknown, or from a treatment given to address a condition the patient didn’t have.

By category of diagnostic error, percentages of malpractice payouts were:

  • missed diagnosis: 54.2%

  • delayed diagnosis: 19.9%

  • misdiagnosis: 9.9%.

Much of the remaining percentage was unclassified.

The study authors said diagnostic errors are tricky to track and quantify because often there’s a big gap between when the error occurs and when it's detected. It’s easier to recognize other malpractice mistakes, such as operating on the wrong body part or giving someone the wrong dose of medicine—those harms present quickly.

Treatment errors were responsible for 27.2% of the study’s total, and surgery-related errors amounted to 24.2%.

As Newman-Toker said, the difficulty of identifying a diagnostic error is compounded by human errors of commission: Experts often minimize the scope of diagnostic errors not because they were unaware of them, but "because they were afraid to open up a can of worms they couldn't close.”

By more than double, diagnostic error claims were the result of outpatient rather than inpatient care, but inpatient errors were more likely to be lethal.

Between 1986 and 2010, diagnosis-related payments totaled $38.8 billion, and per-claim payments were highest for mistakes causing serious neurologic harm, such as quadriplegia and brain damage requiring lifelong care. Such payments were more than for errors resulting in death.

It’s difficult to pin down the complete cost of diagnostic errors. Newman-Toker told Science Daily that tens of billions are spent every year on "defensive medicine," which, as readers of this blog know, is when doctors order tests that might be unnecessary solely to protect themselves from being accused of neglecting to do something. "Yet diagnoses are still missed, with grave consequences," Newman-Toker said.

Which confirms the wealth of evidence that “defensive medicine” does nothing to immunize someone from making errors, large or small.

The public health effect of diagnostic errors, the authors said, probably is much greater than previously believed because earlier estimates were based on autopsy data. That information counts only deaths, not disability.

"Despite their significant impact, diagnostic errors have received relatively limited public and scientific attention, even from the patient safety community," the authors wrote.

As noted by MedPageToday, the diagnostic error scenario could be even bleaker than this study suggests: Practitioner data in the NPDB is incomplete, and it might grossly underestimate diagnostic errors because many lawsuits are dismissed before settlement.

"We found roughly equal numbers of lethal and nonlethal errors in our analysis, suggesting that the public health burden of diagnostic errors could be twice that previously estimated," the authors said. "Healthcare stakeholders should consider diagnostic safety a critical health policy issue."

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May 1, 2013

Hospitals Profit from Their Mistakes

If no good deed goes unpunished, does it follow that no bad deed goes punished?

It does, apparently, if you’re a hospital. As widely reported earlier this month, including by the New York Times, a new study published in the Journal of the American Medical Association [JAMA], says that errors committed by hospitals can be lucrative because insurers compensate them for patients who must remain hospitalized longer than they should as a result of preventable surgical mistakes.

According to The Times, “Changing the payment system, to stop rewarding poor care, may help to bring down surgical complication rates, the researchers say. If the system does not change, hospitals have little incentive to improve: in fact, some will wind up losing money if they take better care of patients.”

What is this, Opposite Day in Health Care?

Researchers analyzed records of 34,256 people who had surgery in 2010 at one of 12 hospitals run by Texas Health Resources, a large, nonprofit hospital system. Of those patients, 1,820 suffered at least one complication, such as blood clots, pneumonia or infected incisions that could have been prevented.

Without such complications, these patients would have been hospitalized three or four days; with them, they averaged 14 days in the hospital. The average tab was $30,500 more than for patients without complications ($49,400 versus $18,900). Private insurers paid far more for complications than did Medicare, Medicaid or patients who paid for their own care.

The researchers made clear to The Times that they weren’t suggesting that hospitals make deliberate errors in order to boost their bottom lines, nor were they refusing to address the problem. But they did say, the paper reported, “that the current payment system makes it difficult for hospitals to perform better because improvements can wind up costing them money.”

You’d think that insurers would be motivated to heal this sick financial scenario, and a spokeswoman for an insurance trade group said all the right things about moving American health care away from the fee-for-service model to one that emphasizes quality over quantity, one that rewards better care. She did note that Medicare and private insurers now use a “never list” of things they will not pay for, including leaving a sponge or instrument inside a patient, or operating on the wrong organ or wrong limb.

Still, given that, for example, Wellpoint, the corporate parent of Anthem Blue Cross Blue Shield and others, made a profit last year of more than $2.6 billion, how much farther will insurers go to fix a system that, for them, isn’t broken?

Reducing complications, said the researchers, means that insurers not only should not pay for substandard care, but should financially reward excellent care. Also, hospitals should be required to disclose their complication rates so that patients who have options can avoid those with high rates. Such facilities could either improve, or close.

To its credit, Texas Health Resources was trying to figure out how to reduce its hospitals’ surgical complication rates, which prompted the study. The outfit’s complication rate was 5.3%, about the same as those reported by similar hospitals. A Texas Health Resources consultant, according to The Times, said the they were stunned to learn that lowering the complication rates would cost the hospital money.

Dr. Mark C. Lester was one of the study’s authors and also is an executive with THR. He told The Times that its hospitals used a checklist system to help prevent complications. Harvard’s Dr. Atul A. Gawande is a pioneer of the checklist approach, and he also participated in the study. Surgical checklists, as we’ve described before, involve routine procedures, some of them quite simple, to ensure such things as the right patient is on the table, the right body part is being addressed, drug allergies are known and the right medications are being given in the right doses.

When asked if the hospital would lose money if more patients required less care, Lester said, “To us that doesn’t have an impact.”

“Reducing complications and increasing safety is why we’re there,” he told The Times. “If in doing that, some payments don’t come our way, it’s not of consequence. What’s of consequence is that people who come to us are in a safer environment.”

To learn more about hospital errors, read our backgrounder. For information about how to protect yourself and your loved ones while hospitalized, read our two-part newsletter, “Protecting a Loved One in the Hospital,” and “A Safer, Healthier Hospital Stay.”

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March 29, 2013

When "Peer Review" Has Ulterior Motives

A federal judge this week upheld a jury verdict against the American Academy of Orthopedic Surgeons, finding sufficient evidence for the jury's decision that the AAOS acted with "reckless disregard for the truth" in publicizing its discipline of an orthopedic surgeon who had testified that another surgeon had committed malpractice.

The decision was written by U.S. District Judge Joel Slomsky, who was nominated to the federal bench by George W. Bush and sits in Philadelphia. Read the judge's decision against the orthopedic surgeons' society here.

The surgeon who successfully sued the AAOS is Steven Graboff, MD, whom the AAOS suspended for two years after he testified against an AAOS member. The jury found that the AAOS report about its disciplinary action cast Dr. Graboff in a "false light" because of various errors. The AAOS report remains on its publicly accessible website.

The AAOS is one of a number of doctor organizations with "peer review" programs for reviewing expert testimony against members. The programs exercise vast economic power over the members' testifying activities, as the court found. Responding to an argument from the orthopedic surgeon group that the expert witness had not shown enough economic harm from its slam of him, the judge wrote:

The AAOS is well aware of its clout in the profession of orthopaedic surgeons and created its compliance program and standards to control the occupation of its members as experts.16 It is also aware that its enforcement program and standards would affect the income of doctors because the loss of AAOS accreditation has a substantial impact on the ability of an expert to work in that industry. Further, the presence of the standards alone, however noble they are as a mission statement, can have a chilling effect on orthopaedic surgeons who serve as expert witnesses against other orthopaedic surgeons.

The ostensible goal of these expert witness "review" programs is "truth" in testifying, but the judge's decision summarizes the evidence at trial supporting the jury's verdict that AAOS did not run an unbiased review system.

The bias started with the doctor the orthopedic surgeons picked to set up and run its testimony review program: Dr. Peter Mandell, an orthopedic surgeon who had stopped treating patients and focused his practice on testifying for insurance companies in workers' compensation cases (i.e., testifying against patients).

Dr. Mandell, as Judge Slomsky found, is the head of the AAOS Committee on Professionalism, the first body to hear charges that an orthopedic surgeon has testified in violation of the AAOS expert witness standards.

(By the way, only members of the AAOS are eligible to start complaint proceedings against an orthopedic witness; that means that any patient who feels aggrieved by a surgeon's testimony against the patient -- like Dr. Mandell's testimony against a worker's comp claimant -- has no recourse.)

Dr. Mandell is also head of the AAOS Council on Advocacy, which lobbies in Washington for "tort reform" to curb malpractice lawsuits.

Hmm. Coincidence?

The expert witness review program, Dr. Mandell testified (with admirable candor) in the Graboff lawsuit, came about because orthopedic surgeons were upset about high jury verdicts against orthopedists in malpractice cases.

Any scientist knows that biased decision makers produce biased outcomes. That's why medical research usually requires "double blinded" studies so that doctors studying a new drug or device don't subconsciously tilt the results one way or the other from knowing which way something should come out.

But in this case, the old doctors' joke may hold true. Q: What's the definition of a double-blind study? A: Two orthopedic surgeons examining the same patient.

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March 24, 2013

Surgeons Advise Against Robotic Surgery for Most Hysterectomies

Sometimes, reality is lost in the love for medical device technology. Just because something’s new doesn’t mean it’s better. A recent statement by the president of the American College of Obstetricians and Gynecologists advises caution when it comes to robotic surgery for hysterectomies.

Dr. James T. Breeden states, “Robotic surgery is not the only or the best minimally invasive approach for hysterectomy. Nor is it the most cost-efficient. It is important to separate the marketing hype from the reality when considering the best surgical approach for hysterectomies.”

As in other surgeries, patients are given general anesthesia for robotic surgery. The surgeon uses a computer to direct a robotic arm in the control of tiny instruments inserted through small surgical incisions. An endoscope—a thin tube with a camera at the end—enables the surgeon to see magnified, three-dimensional images on a monitor.

We’ve noted some of the harms of robotic surgery, including tearing internal tissue and burning internal organs, and that in some procedures, their outcomes are no better than those of traditional surgery.

Lawsuits are rising against surgeons who commit malpractice with robotic machines and against the manufacturers who make them.

As Breeden points out, outcomes are directly associated with a surgeon’s skill, not just the tools he or she uses. Skill comes with years of training and practice, and any new technology comes with increased complications while the learning curve is mastered.

“Expertise with robotic hysterectomy is limited and varies widely among both hospitals and surgeons,” Breeden says. “While there may be some advantages to the use of robotics in complex hysterectomies, especially for cancer operations that require extensive surgery and removal of lymph nodes, studies have shown that adding this expensive technology for routine surgical care does not improve patient outcomes.

Consequently, there is no good data proving that robotic hysterectomy is even as good as—let alone better—than existing, and far less costly, minimally invasive alternatives.”

Because the incisions are smaller and the procedure less invasive, robotic hysterectomy usually means shorter hospitalization, less discomfort and faster recovery compared with other approaches. But, often, a hysterectomy can be performed vaginally, without any abdominal incision. That’s the least invasive and least expensive option. “Based on its well-documented advantages and low complication rates, this is the procedure of choice whenever technically feasible,” Breeden says.

When vaginal hysterectomy isn’t possible, laparoscopic hysterectomy is the second least invasive and costly option for patients. That involves a smaller abdominal incision than total abdominal hysterectomy (TAH).

Both vaginal and laparoscopic procedures require fewer days of hospitalization and shorter recovery than TAH, and they have proven records for excellent outcomes and cost efficiencies.

But hospitals spend a lot of money on fancy robotic technology, and many surgeons are like kids with the latest Game Boy—as the saying goes, when you’re a hammer, everything looks like a nail.

Even if safety weren’t a consideration—and it always should be the primary concern—robotic hysterectomy should be scrutinized for its expense, Breeden says. Robots cost more than $1.7 million, and have $125,000 in annual maintenance costs.

Breeden refers to a recent study in the Journal of the American Medical Association (JAMA) finding that the percentage of hysterectomies performed robotically jumped in the last three years from less than 1 in 100 to 1 in 10. They were more than $2,000 more expensive for the patient and showed no demonstrable benefit.

“Aggressive direct-to-consumer marketing of the latest medical technologies may mislead the public into believing that [robotic hysterectomy is] the best choice,” Breeden says. “Our patients deserve and need factual information about all of their treatment options, including costs, so that they can make truly informed health-care decisions. Patients should be advised that robotic hysterectomy is best used for unusual and complex clinical conditions in which improved outcomes over standard minimally invasive approaches have been demonstrated.”

Cost concerns aside, patients must consider safety. As reported by, an increasing number of lawsuits have been filed resulting from the use specifically of the da Vinci robotic device.

Bloomberg News told the story of one patient. Uterine growths were removed with a da Vinci robot, described by her gynecologist as “the latest, greatest” technique available.

Five weeks later, she felt something pop while she was using the toilet, and glanced down to see her intestine protruding from her vagina. The vaginal wound had failed to heal properly. Four years later, Blooomberg reports, the 41-year-old has a hip-to-hip scar from corrective surgery, constipation from damaged rectal muscles and a diminished sex life.

“It didn’t help me one bit, the robot,” she told the news site. “It forever changed my life for the worse.”

Robot systems made by Intuitive Surgical Inc., including the da Vinci, are linked to at least 70 deaths since 2009, says Bloomberg.

“Many of the complaints allege that a potential cause of the da Vinci problems is a lack of training provided for doctors who use the device, particularly at smaller hospitals where there is not a large volume of procedures,” AboutLawsuits notes. “In addition, lawsuits indicate that many hospitals feel pressured by competition and marketing to buy a da Vinci, and then doctors are encouraged to use the machine as often as possible to help the hospital recoup costs.”

Those are not compelling reasons for patients to agree to undergo the robotic knife.

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March 17, 2013

Five Medical Malpractice Myths

Medical malpractice reform is a political football in a game that serves no one well. Not patients, not their legal representatives, not medical professionals, not insurance interests.

OK, we've said that before, but we'll keep saying it as long as the flat-earthers press their misguided "reforms." And here are some new facts:

A recent article by David A. Hyman, a doctor and a lawyer, and Charles Silver, a lawyer, in Chest Journal, (the publication of the American College of Chest Surgeons) identifies five myths of medical malpractice that persist in doctor circles. Hyman and Silver want to set the record straight.

Myth No. 1: Malpractice crises are caused by spikes in medical malpractice lawsuits.

This bogus belief spreads when juries give large awards to patients with claims that sound, in the media accounts, questionable or frivolous. But research indicates that such stories of “runaway” jury verdicts, when they're not completely apocryphal, do not represent the norm. And rarely are they paid in full.

“Because the overwhelming majority of payments to plaintiffs are the result of voluntary settlements,” the writers point out, “one must study closed claims (rather than jury verdicts) to get a full picture of what is going on.”

Closed claims databases show that both the frequency of malpractice claims and the payments per claim were either stable or declining at the beginning of this century. The writers conducted a study using the National Practitioner Databank. They found that the frequency of paid medical malpractice claims per physician has been dropping steadily since 1992, and is now less than half the level it was that year.

The decline is largest in states that recently capped damages awarded because of medical malpractice, but there are large declines in states with no damage caps as well.

An earlier study using the National Practitioner Databank data found that average payments grew by about half from 1991 to 2004, roughly in line with increases in health-care spending.

“The finding that the latest malpractice crisis was not caused by spikes in malpractice claims or payouts should not be surprising,” say Hyman and Silver. “Although hot spots can occur, the liability system primarily responds to (and lags) the frequency of serious medical injuries.

Because the frequency of serious medical injuries changes slowly, the litigation rate should not be prone to dramatic spikes in claiming.”

Even the big payouts in the rare, headline-grabbing jury verdicts often are slashed by judges. And more than 9 in 10 cases are resolved, and the overwhelming majority of payouts are made as a result of voluntary settlement.

Myth No. 2: The tort system delivers “jackpot justice.”

This charge means, basically, that the system doles out compensation randomly. Uninjured patients take home millions, and people who suffer grievously receive little or nothing at all.

This seems so especially if you’re focusing on patients who experience bad outcomes and can’t tell whether they’re victims of negligent treatment or bad luck. (See our blog “The Difference Between Medical Negligence and Complication.” ) Many patients who received appropriate care file claims.

But the larger problem, say the writers, “is that an enormous fraction of patients who are harmed by medical negligence either make no effort to recover damages or cannot find lawyers willing to take their cases. (See our blog, “How Tort Reform Continues to Victimize the Victims”.) These patients, who are entitled to compensation, never initiate claims. “So the liability system is simultaneously beset by overclaiming and underclaiming.”

If you focus on people who initiate claims, the liability system is pretty good at separating the worthy from the unworthy. Patients who were treated negligently recover damages far more often than patients who weren’t. And except for patients who die, payments increase with injury severity. “Unfortunately,” the writers say, “most patients are undercompensated, and those with the most severe injuries suffer the biggest gap between provable injuries and the amounts they recover.”

Objective data for this comes from the Texas Department of Insurance. Texas adopted tort reform in 2003. Before then, in a state with a population of almost 25 million, there were only 7,650 malpractice claims per year. After tort reform, the number of claims declined to 5,300 per year.

Both pre-reform and post-reform, more than 8 in 10 claims closed without payment. When there was a payment, it was almost always the result of a voluntary settlement—that is, trials were rare.

The average payout was $609,000 during the pre-reform period and $419,000 post-reform. Jury verdicts were substantially higher, but they typically got cut a lot before they were paid. And physicians rarely paid anything out of pocket.

Here’s how the severity of injury is quantified. Data from the Illinois Department of Insurance show that from 2005 to 2008, the average payout was $626,827, but the amount paid wasn’t as much for less-severe injuries. Patients got the most money only if they suffered at least significant permanent injury. Their average award was $1.25 million.

Myth No. 3: Physicians are one malpractice verdict away from bankruptcy.

Physicians’ fear that a malpractice verdict will wipe out their savings is proved unfounded, the writers say, when you consider that jury trials are uncommon and plaintiff victories even less common. Most malpractice cases are settled or dismissed; only about 2 in 100 claims go to trial, where providers win about 3 in 4 cases.

If you compare actual payments to jury awards, “many patients who win turn out to be losers as well,” the writers say. Awards often fail to cover patients’ actual losses. As we said, you hear about huge verdicts because they are so unusual.

“Any verdict, blockbuster or otherwise, that exceeds the limits of a provider’s insurance coverage is quite unlikely to be paid in full,” the writers note. In Texas, the larger the
verdict, the more likely it was to be reduced because policy limits served as a functional cap on patients’ recoveries.

And you might be surprised to learn that when payments above the policy limits were
made, whether the case had gone to trial or was settled, the money almost always came from insurers. Out-of-pocket payments by physicians were extraordinarily rare. “Most physicians have effectively no personal exposure on malpractice claims (other than the obvious and unavoidable side effects of litigation, e.g., the emotional and time-related costs of being deposed),” the writers say.

Generally, plaintiffs’ lawyers don’t go after physicians’ personal assets, as a study once documented. In other words, it’s not about vengeance; it’s about justice.

“The only physicians who should worry about personal exposure are those who grossly underinsure,” the writers conclude, “and even they should not worry too much.”

Myth No. 4: Physicians move to states that adopt malpractice damages caps.

“If physicians relocate because of liability risk,” the writers note, “damages caps are an obvious strategy for attracting more physicians, particularly in lawsuit-prone specialties.”

This strategy works only if some states do not have caps. But plenty of states lack caps, and researchers have found that damages caps may draw a small number of physicians especially to rural areas or particular specialties. But there’s not much evidence to suggest increases in statewide physician counts.

Before Texas capped damages in 2003, proponents of tort reform claimed that physicians were deserting the state in droves. After caps were imposed, proponents claimed that there had been a dramatic increase in physicians moving to Texas because of the improved liability climate. But Hyman and Silver’s study found no evidence to support either claim. Hyman and Silver write:

“Physician supply was not measurably stunted prior to reform, and it did not measurably improve after reform, whether one focused on all patient-care physicians in Texas, on high-malpractice-risk specialties or on rural physicians. Thus, although damages caps may play a small role in attracting and keeping physicians practicing in rural areas and in high-risk specialties, the evidence is mixed, and some studies have found no effect.”

Myth No. 5: Tort reform will lower health-care spending dramatically.

The writers ask how much the malpractice system costs, and how much tort reform will reduce the cost of the malpractice system, including its effect on health-care spending.

Direct costs include malpractice awards and settlements and all costs associated with defending against such claims, including the administrative costs of medical malpractice insurers. Indirect costs often are referred to as “defensive medicine,” which is when doctors overprescribe or overtest to avoid the claim of having been negligent—it’s the cover-your-hiney strategy.

“Because tort reforms make lawsuits less likely and less expensive, they may reduce defensive medicine,” the writers suggest, “and thereby reduce health-care spending.” The direct costs of the malpractice system are only about 2% of health-care spending. Still, proponents claim that tort reform can reduce indirect costs by $100 billion to $650 billion per year.

Uh…no. One study of the impact of tort reforms on health-care spending found that damages caps and other reforms that limited liability directly reduced post-treatment medical spending by 4% - 5%.

A Congressional Budget Office review “found no evidence that restrictions on tort liability reduce medical spending.” A follow-up Congressional Budget Office study estimated that a cap on noneconomic damages would reduce Medicare spending by a statistically insignificant 1.6%.

Several other studies showed similarly modest reductions.

Hyman and Silver’s analysis of Texas’ damages caps showed in a dramatic decline in claim frequency and payout per claim, reducing overall payouts by about 75%. But this dramatic change in the malpractice environment did not result in significant changes in health-care spending levels. After reforms were enacted, they even found evidence of increased physician spending in counties where medical malpractice risk was high. They concluded that there was no evidence that Texas’s tort reforms bent the cost curve downward.

In summary, although “tort reform” doesn’t do much for Hyman and Silver, they still acknowledge problems with the medical malpractice system.

For one, it’s slow. “On average,” they say, “it takes about two years from the date of injury to the date a lawsuit is filed and roughly the same amount of time for the case to be settled. But the time period required can be much longer, particularly if minors are involved or if the case goes to trial.

“It is unrealistic to expect the malpractice system to provide much in the way of useful
feedback if it takes at least four years to get an answer.”

They also call the malpractice system extremely expensive. The cost of defending paid medical malpractice claims has roughly doubled since 1988. “In part,” they say, “high costs are ‘baked into’ the third-party fault-based process for determining who gets paid by the malpractice can serve as an expert because decreased supply translates into higher prices.”

Also, the malpractice system is perceived by everyone as unpleasant, unjust and/or unfair. “Providers who were not negligent resent being dragged into lawsuits and having their competence questioned. Patients who were injured (whether negligently or not) are usually unable to find out what happened to them unless they find a plaintiffs’ lawyer willing to take their case, and then they must wait several years for the process to be completed.”

But none of the above is an argument for limiting awards. Although damages caps “can dramatically reduce claims frequency, payouts per claim and insurance premiums, they do not make health-care safer, reduce health-care spending, compensate those who are negligently injured or make the liability system work better.

“The best reforms are patient safety initiatives that reduce the frequency and severity of medical mistakes. Ideally, the liability system would encourage providers to adopt patient-protecting innovations. Its effect in that regard is limited, however, partly because tort reforms insulate providers from many of the costs of medical errors.”

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March 12, 2013

Longer Lives for Ovarian Cancer Patients: The Only Secret Is Experience

Two treatments are proven to lengthen the lives of women with ovarian cancer, but only 1 in 3 patients gets them, according to a new study. It's no mystery why. The old rule for better health care -- experience, experience, experience -- is proven out again.

Ovarian cancer is a bone-scary diagnosis because of its dismal prognosis. But the understandable fright causes many women to make illogical moves when they reach out for care: First, they often look to a familiar face for treatment, such as the obstetrician who birthed their children (who usually is qualified on paper to take out ovaries, but lacks big-time experience with ovarian cancer). Second, they think they have to get surgery in a matter of days, not weeks, and that leads them to grab onto whatever surgeon can see them first.

These are mistakes that can shorten lives. The two treatments that are shown to lengthen life of ovarian cancer patients are:

* Debulking surgery.

* Chemotherapy delivered directly to the inside of the abdomen, called intraperitoneal (IP) chemo.

The best advice for women with a new diagnosis of ovarian cancer is to get to a "center of excellence" for cancer treatment, and to make sure the surgery is done by a gynecologic oncologist. That's a gynecologist with extra training in women's cancers of the reproductive organs.

Also, make sure the surgeon does ovarian debulking surgeries at least about once a month, or a dozen times a year. The operation often takes six or more hours, and it's necessary to have a surgeon with the skill, experience and meticulous patience to take out all visible signs of the cancer from inside the lower abdomen.

The seeds of cancer are scattered like Rice Krispies, and the best result is for those women who get all visible cancer removed by the surgeon, and then get the pelvis washed out with IP chemo.

Read more about this in a takeout in the New York Times by Denise Grady.

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February 22, 2013

NC Mom Speaks Out Against Secret Settlements of Malpractice Suits

When Laurie Sanders lost her 6-year-old son Christopher to a malpractice incident at a North Carolina hospital, she refused the hospital's offer of settlement that would have required her to keep quiet about what happened.

"I didn't know how everything would end as far as the lawsuit, but I did know that it wouldn't end in this way. And that would be Christopher's mommy taking hush money and saying, 'I won't talk about what happened to my son,'" Sanders told Raleigh TV station WTVD. "I wanted to make a difference, to try to prevent people from ever experiencing preventable medical errors."

So Sanders spoke out. And now Steve Daniels, WTVD reporter, is taking up the issue of whether defendants in North Carolina should be legally allowed to demand secrecy when they pay to settle lawsuits out of court, even if that means covering up public health issues that could affect other consumers.

It's an important issue across the country. "Confidentiality" provisions in settlement agreements have saved defendants a lot of embarrassment over the years, but they have also let repeat offenders continue to harm people under the cloak of secrecy. Witness the Firestone tire failures that came to light many years after product liability suits were settled. Witness also the clergy sex abuse scandal.

At Patrick Malone & Associates, we take a stand against secrecy in settlements, agreeing only to keep the amount of money paid confidential, because that protects our clients.

I have written and lectured to lawyer groups around the country advocating a stand against secret settlements because they often violate the attorneys' ethics code. Read my article on the ethics of secret settlements here.

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February 10, 2013

How Tort Reform Continues to Victimize the Victims

Connie Spears has the bad luck to live in Texas. Her story, as recounted by the New York Times/Texas Tribune is another sad reminder of how the powerful forces behind so-called “tort reform” continue to deprive people harmed by medical mistakes of their rights. And Texas leads the way.

In 2010, Spears arrived at a Christus Santa Rosa hospital emergency room with severe leg pain. She told the medical staff about her history of blood clots. They diagnosed a less serious disorder and sent her home. Within days, Spears landed in another hospital with a severe clot and extensive tissue damage. To save her life, they amputated both of her legs.

But thanks to Texas’ tort reform laws, Spears is not only unable to be compensated for her damaged health, she’s liable for paying the legal bills of the defendants she sued for malpractice.

As The Times explains, Texas law caps noneconomic damages that a plaintiff—Spears, in this case—can receive for medical malpractice at $250,000. Of course, no amount can compensate for the loss of one’s legs, but at least it’s an acknowledgment of error.

But the law also establishes a “willful and wanton” negligence standard for emergency care, which means that the patient must prove that he or she was harmed almost intentionally.

The law also requires that medical witnesses for the plaintiff must practice or teach in the same specialty as the defendant. If plaintiffs don’t supply these expert reports within 120 days of filing their cases, they’re on the hook for defendants’ legal fees.

Many potential lawyers rejected Spears’ case because they were afraid they wouldn’t be able to meet the state’s negligence standard. It took her two years find someone.

Then, her lawyer couldn’t find an expert witness by the report deadline, so the judge ordered her to pay thousands of dollars to cover some defendants’ legal bills. Spears had exhausted her retirement savings, and now she might lose her home. And she’s the one who lost her legs because somebody else screwed up.

How is this justice, much less mercy?

Tort reform proponents sing the same off-key tune—they say it prevents “frivolous” lawsuits that clog the system and raise the costs for everybody. In Texas, they say such pro-business measures attract more medical professionals to a state that desperately needs them.

That’s bunk. As noted on Pop Tort, a civil justice website sponsored by the Center for Justice & Democracy, such laws protect “the ‘psychic’ damage to physicians (who have well-paid insurance lawyers defending them, by the way), than the horrifying actual damage caused by negligent care, killing 98,000 people every year (at least), plus brain injury, blindness, quadriplegia, misdiagnosed cancer, the death of a child, … How about the fact that the vast majority of preventable errors that physicians commit never result in a claim at all? … Shouldn't we be far more concerned about what happens to patients like Ms. Spears in states like Texas?”

As Pop Tort says, more than 8 in 10 doctors have never had a medical malpractice payment. So the vast majority of good doctors get lumped in with the few repeatedly poor practitioners in order to achieve an "average" that tort reformers suggest reflects the real world. Consumers—and lawmakers—are misled into believing that all doctors fear spending valuable time fighting claims.

“Nothing today prevents insurers from settling legitimate claims with patients before they file a court case or from paying valid claims expeditiously,” says Pop Tort. “Yet they do not. Insurers hold onto money as long as possible. They deny, delay and defend claims even when their clients are clearly at fault. And why shouldn’t they in states like Texas, where patients will never win?”

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January 28, 2013

Death of a Young Mother on Downton Abbey: An All-Too-Realistic Plotline

When Downton Abbey's Lady Sybil died of eclampsia seizures just after giving birth, many viewers wondered: Could it really happen? The answer is yes.

Lady Sybil had undiagnosed pre-eclampsia, a condition that affects as many as one in ten pregnant women. It causes high blood pressure (typically at or above 140/90) and protein in the urine from kidney malfunction. It's also called "Pregnancy-Induced Hypertension." That's why blood pressure and urine are checked at every prenatal visit. Symptoms include unrelenting headaches, vision disturbances, and swelling of the hands, face and feet (although some ankle swelling is very common in pregnancy anyway).

When pre-eclampsia is severe, the flow of blood from the mother's placenta to the baby can be impaired. That's why these babies can be growth-restricted, just as Lady Sybil's baby was. But even worse, if not taken seriously by obstetricians and midwives, pre-eclampsia can make a baby vulnerable to loss of oxygen during the birthing process, with brain damage as a final and terrible outcome.

Doctors still don't know what causes many women to get high blood pressure during pregnancy. The main treatment -- delivering the baby if not too premature -- is the same now as it was in the Downton Abbey era of post-World War One Britain. We also have drugs that can help control the high blood pressure, and more sophisticated monitors (ultrasound and heart monitors) to check the baby's status.

One heart-wrenching bit of Lady Sybil's agony that wasn't realistic is the way her doctors stood by helpless as she was having full-blown seizures from eclampsia after giving birth. Then as now, magnesium sulfate was available to help ease seizures.

But pre-eclampsia remains a scary condition that needs to be watched out for because it happens all too often, and can be devastating for mom and baby.

Here's more on pre-eclampsia from the NIH.

Here's a discussion on our firm's website about medical malpractice issues relating to pre-eclampsia and other aspects of prenatal care.

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December 27, 2012

A Federal Plan to Make It Easier to Report Medical Mistakes

Accountability for preventable mistakes has now been officially recognized as an important part of the effort to make medical care safer for everyone.

The Agency for Healthcare Research and Quality (AHRQ) is the lead agency in the federal HHS department charged with improving the quality, safety, efficiency and effectiveness of health care. It supports research that helps people make more informed decisions and develops partnerships among different groups to make such improvements happen.

Accountability is part of that effort. To that end, the AHRQ is seeking approval from the Obama administration for a prototype system for patients to report medical mistakes and unsafe practices by health-care providers.

The New York Times described the plan, and said that even hospitals were receptive to the idea, despite some concerns about malpractice liability and possible financial penalties for poor performance.

Consumers have several options for reporting medical errors; last year we blogged about how to complain about unsafe medical care. The FDA’s MedWatch program is another channel for reporting adverse event about drugs and devices, but not practitioners. Individual states’ medical licensing boards field complaints, but their effectiveness and responsiveness vary widely.

And mistakes often go unreported anyway.

The AHRQ director, Dr. Carolyn M. Clancy, told The Times, “Currently there is no mechanism for consumers to report information about patient safety events.”

“Patient reports could complement and enhance reports from providers and thus produce a more complete and accurate understanding of the prevalence and characteristics [of medical errors].”

Common errors are drug mix-ups (the wrong medicine is given, or the wrong dose), surgical mistakes (surgery on the wrong body part, for example,) radiation overdoses and procedures (or the lack of them) that cause infections.

The Times story referred to research suggesting that 1 in 4 patients experiences adverse events; some were not even recorded in their medical records.

The system proposed by the AHRQ enables patients and their family members to report medical errors and near errors via a Web site and telephone interviews. The information would include:

  1. details of the medical mistake;

  2. the date and location of the adverse event, and whether it resulted in harm;

  3. the type of harm;

  4. contributing factors; and

  5. whether the adverse event was reported and to whom.

The Web and phone questionnaires would ask patients why the mistake might have happened and offer a list of possible reasons. It also would ask for permission to share the adverse event information with health-care providers so they can take steps to improve patient safety.

The information submitted in the reports would be analyzed by researchers from the RAND Corporation and the ECRI Institute, a not-for-profit organization that investigates medical errors.

The feds would like to begin collecting data in May. Questionnaires would be available in hospitals and doctors’ offices. Information about the reporting program would be distributed to pharmacies and mailed to patients’ homes.

If the plan gets the go-ahead, and if patients volunteer to describe their adverse experiences with regularity, an important new data base should contribute mightily to recognizing how mistakes happen, and to a broad-based response to preventing them.

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December 26, 2012

Surgical Mistakes That Never Should Happen Regularly Do

A couple of months ago, we posted a blog about surgical errors, specifically when the operating teams leave tools inside the patient. That’s an example of what’s known in the medical biz as a “never event.” That means it’s a mistake, a malpractice event, for which there is never any excuse and that should never happen.

Researchers from John Hopkins University School of Medicine published a story this month in the journal Surgery that disclosed that never events occur with shocking regularity. Leaving tools inside a wound, operating on the wrong body part or even the wrong body happen about 500 times a year. The researchers estimated that 80,000 never events occurred in U.S. hospitals between 1990 and 2010.

They said their estimates probably are on the low side.

The study said that malpractice claims were paid for 9,744 never events; payments totaled $1.3 billion. More than 6 in 100 never-event patients died, more than 32 in 100 suffered permanent injury and nearly 60 in 100 were temporarily injured.

According to the Washington Post, about half of those cases involved objects left inside the patient (usually sponges, as our story earlier this year noted). The other half were cases of the wrong body part being operated on, and 17 were people who weren’t supposed to have that surgery at all.

And those were only the cases for which claims were paid; if a patient didn’t experience or didn’t report harm, they weren’t represented in the study.

The Post said the study indicates which doctors are more likely to be involved with a never event—those who had been the defendant in prior malpractice claims. The data also showed that younger doctors were more likely to settle malpractice claims for never events.

Our friends at Pop Tort, the unfiltered civil justice blog sponsored by the Center for Justice & Democracy, remind us that only a tiny percentage of people injured by malpractice in this country file lawsuits, and the Johns Hopkins study assumed that 12 in 100 errors result in indemnity payments. Some people say only 3 in 100 such patients file claims. (Pop Tort refers readers to the Center’s resource, “Briefing Book, Medical Malpractice: By the Numbers.”)

As Pop Tort points out, the $1.3 billion paid out doesn’t include the additional health-care costs for the affected patients, most whom never file suit.

Although fining hospitals more severely for never events is a popular notion, Pop Tort proffers its own solution: “What if hospitals and medical societies stopped spending millions of dollars a year lobbying to limit the recovery to malpractice victims [see our post about malpractice “reform,”] and devoted that money instead to patient care? And how about a law that would double every jury award when a ‘never event’ caused the injury--a meaningful penalty where the money goes to the person actually injured (instead of a fine, where the money goes who knows where?) And stop demonizing injured patients and their attorneys. That would be a start.”

We applaud that approach, but more immediate solutions to the problem of never events, as the Washington Post noted, involve better hospital leadership and communication. “Hospitals that have implemented checklists have seen success in increasing communication between health-care providers. Others have reviewed their policies to see where patients might be slipping between the cracks, and made improvements that way.”

As the researchers wrote in Surgery, “We trail behind other high-risk industries that have used systematic approaches to successfully identify and reduce sentinel errors. Strategies used in other complex systems such as aviation may help provide a blueprint to examine both the individual and the institutional factors that contribute to these preventable and costly events.”

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December 11, 2012

Malpractice Proposal Is Justice Denied

A proposal under discussion in the South to dispense with juries in favor of a government agency to rule on medical malpractice is just the latest in a series of wrongheaded efforts to deprive victims of medical errors of their rights.

As described on the civil justice website, the proposal is favored by Richard L. Jackson, chairman and CEO of Jackson Healthcare, a professional health-care staffing agency. Does anyone else see the irony in its website, which promotes the company’s charitable efforts but whose leader is considerably less than giving when it comes to fairly compensating patients who have been harmed? His idea is to dump jury trials for anybody injured by medical malpractice in Georgia and Florida and replace them with a government body composed of political appointees and bureaucrats representing the medical and business communities.

These deciders would be empowered to develop “compensation schedules” completely divorced from the facts of any given case. That might be convenient for Jackson, his cronies and government workers who would be excused from exercising any judgment or thought, but whatever happened to the fundamental U.S. notion of grievances being adjudicated by a jury of one’s peers?

Was Jackson absent from school the day the Georgia Supreme Court ruled unanimously that a simple cap on noneconomic damages was unconstitutional? Did he not get that the court confirmed that the determination of damages rests “peculiarly within the province of the jury"?

Who died and left him in charge?

We’re so tired of the yammering about “tort reform,” which, as readers of this blog know, is code for “capping the amount of damages someone who has suffered a medical error can recover,” or otherwise hassling patients who have the temerity to try to hold the medical industry accountable for injuries.

As Pop Tort wonders:

Who believes that instituting a state-imposed rigid, dictatorial system of compensation schedules and liability standards for doctors, replacing what is now a free-market approach to holding health care providers accountable, is a good idea?

Who believes that it makes sense in this fiscal climate to create an entirely new governmental agency to handle what are a relatively small percentage of medical malpractice cases in our court system?

Who believes that a system in which catastrophically harmed children likely will be compensated at well below their actual losses, forcing families onto taxpayer-funded Medicaid, is a good idea?”

A story posted last week on refers to a survey in which U.S. physicians said that traditional tort reform efforts such as caps on monetary damages for pain and suffering won’t address the higher costs associated with the practice of defensive medicine. That’s when doctors overtest, overprescribe and overtreat because, they say, they’re afraid of getting sued for malpractice if they don’t.

They’re right, of course, as we’ve noted in previous blogs, that malpractice caps don’t reduce costs or in any other way effect positive change.

The survey was conducted by Jackson Healthcare. In its summary, the company claimed that among the ideas floated about how to reform or replace the medical malpractice system, a no-fault, administrative patients’ compensation system would be most likely to curb the practice of defensive medicine.

Well, when you ask the inmates of the asylum if they’d like to have custody of the keys, what answer do you expect to receive?

The Center for Justice & Democracy, which sponsors Pop Tort, released its own study last week, “Georgia’s Patient Compensation System – A New State Agency That Will Harm Patients.” If you’re interested in a more analytical examination of what such a gross challenge to trial-by-jury would yield, we advise you read the one conducted by the experts instead of by the folks seeking not justice, but to cover their exposed backsides.

Remember, it’s the patients who wear the hospital gowns. It’s their exposure that deserves to be protected.

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December 5, 2012

Lawsuit Prompts DC Hospital to Change Policy to Improve Patient Safety

The Washington Hospital Center has agreed to change the way that patients are admitted for brain imaging procedures, in response to a lawsuit by a brain-injured patient whose family says she was left without a doctor for several hours while she was having an undetected stroke after a procedure in the hospital's radiology department.

The patient was represented by Patrick Malone & Associates in both a medical malpractice lawsuit for her brain injury and another lawsuit to enforce the policy change agreement .

When Lyn Gross underwent a procedure in June 2003 to treat an aneurysm in her brain, the radiologist who conducted the procedure listed her in the hospital record as being the patient of a neurosurgeon who had no idea who the patient was. When she showed signs of developing a stroke after the procedure, treatment for the stroke was delayed for several hours because of confusion over who was supposed to be her main doctor. Mrs. Gross ended up with severe brain damage. She lives with her husband at their home in Fairfax County, Virginia.

In settling the lawsuit brought on her behalf by her husband Paul Gross, the family asked the hospital as a condition of the settlement to agree that the interventional radiologists who do procedures on patients would not have authority to list another doctor as the "attending physician," unless that doctor knew about the patient in advance and consented to be the patient's doctor. The hospital agreed to implement a new policy.

Mr. Gross filed a new lawsuit against the hospital this year because the hospital had never confirmed its new policy, and he asked the Superior Court to enforce the settlement. That prompted confirmation from the hospital that the policy has been implemented.

Patrick Malone, the Gross family's attorney, said:

"This is good news for patients in the District of Columbia who undergo intricate and dangerous brain interventional procedures performed by radiologists. These radiologists aren't qualified to direct the care of patients after the procedure when something goes wrong. So it's important to have a clear understanding up front about who is going to be the treating doctor after the procedure."

More details about Mrs. Gross's lawsuit against Washington Hospital Center can be found on the Patrick Malone firm website, under the "True Stories" section.

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December 3, 2012

E-Record Shortcuts Threaten Integrity of Medical Records

Medical records are supposed to be a truthful repository in real time of everything that happened to a patient. Their integrity is vital to high-quality patient care and to the ability of a patient to hold providers accountable in court if things go wrong. So word of widespread abuse of shortcuts allowed by electronic record systems is important for patients, lawyers and safety advocates.

A recent op-ed piece in the New York Times by Dr. Leora Horwitz, an assistant medical professor at Yale, documented problems like copy-and-paste where one provider's error early in a patient's treatment gets replicated over and over by later providers who are supposed to be recording their own independent observations of the patient.

Another issue is the too-tempting way that an e-system can allow a single mouse click to populate every box of a fill-in-the-blank physical examination with completely normal, healthy results.

Now more doctors have weighed in with letters to the Times editor on e-record abuses. One, Madhura Pradhan, a pediatric kidney specialist in Philadelphia, wrote:

The ease of using built-in shortcuts for documentation in medical records is teaching younger physicians to be efficient at the expense of being thorough.

Time and again, I see notes in charts that have clearly been copied or have been entered from standardized templates with conflicting information cited elsewhere in the chart. This not only compromises the patient-physician interaction but also makes me question the level of engagement of the physician in that visit.

Another, an internist in New York named George Lombardi, wrote: "It is deeply disrespectful and against a physician’s canon of ethics to take shortcuts in evaluating and caring for patients."

Still another physician, Dr. Margo Cohen of New York, wrote about the errors she discovered in the records of doctors caring for her husband's cancer -- how she as the wife had supposedly had long conversations and agreed with the care plans of doctors whom she'd never met.

A patient, Lois Berkowitz, had an interesting suggestion. Before the doctor can save the e-record, the doctor should be required to get the patient's agreement that the record accurately represents their encounter.

Not practical for all patients or for all situations, still, such a practice would go a long way toward getting us back to the goal: records that are accurate enough that they can safely guide future care and provide a database for malpractice analysis if the patient gets hurt.

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December 2, 2012

Pencils Ready? Take the Tort Quiz

In culinary circles, a “torte” is a rich, multilayered cake. In legal circles, a “tort” is wrongdoing, either by negligence or intent, and someone gets hurt. So tortes are sweet and torts aren’t.

The interests behind limiting what victims can recover as a result of medical malpractice promote the idea that torts are out of control and unjust. But the Center for Justice and Democracy’s colorful website Pop Tort is sweet on the truth, which does not support that position.

How well do you score on Pop Tort’s civil justice pop quiz?

1. Tort case filings are what percentage of all civil cases in our courts?
a. more than 50 percent
b. between 25% and 50 percent
c. between 10% and 25 percent
d. under 10 percent

The correct answer is: d. According to the National Center for State Courts, tort cases represented only 6 percent of all civil caseloads in the reporting states.

2. From 1999 to 2008, the number of tort filings:
a. increased by more than 25 percent
b. increased by 10 percent
c. dropped by 10 percent
d. dropped by more than 10 percent

It's d once again! Tort filings fell by 25 percent in those states studied by the National Center for State Courts.

3. The median damage award in tort cases is:
a. $1 million
b. between $500,000 and $1 million
c. between $100,000 and $500,000
d. less than $100,000

Once again, horribly predictable. The answer is d. In fact, the median award in tort cases is just $24,000.

If you want to learn the facts, read the CJ&D’s new volume, “Briefing Book—Tort Litigation and Juries: By the Numbers.” If you want to learn the facts specifically about medical malpractice, link to the continuously updated “Medical Malpractice Briefing Book: By the Numbers.”

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November 28, 2012

The Difference Between Medical Negligence and Complication

Like any other endeavor involving judgment, the practice of medicine sometimes brings surprise. Sometimes the surprise is good, sometimes not.

In a thoughtful essay posted on, Dr. Michael Kirsch contemplates the difference between a medical complication and medical negligence. Sometimes the latter, of course, involves a legal remedy in court for medical malpractice; Kirsch’s piece separates and defines some boundaries.

Kirsch is a gastroenterologist, and just before one of his patients was to undergo a colonoscopy, he asked Kirsch if any of his previous patients had suffered a perforated colon as a result of the procedure. (A colonoscopy visually examines a sedated patient with a long, flexible tube inserted into the rectum to look for signs of colorectal cancer and other bowel problems.)

Kirsch replied that among the 20,000 or so colonoscopies he had performed that, yes, there were a few perforations. A perforated bowel is an unwelcome event—it means the intestinal wall has been breached, inviting bacterial infection and a host of other complications.

In an effort to inform and calm his curious patient, whose sense of timing left something to be desired, Kirsch soldiered on. “I continued the dialogue,” he writes, “in order to place the issue in context for him and his wife so he wouldn’t be spooked before his procedure. We didn’t want a panicked patient leaping off the gurney and high-tailing through our waiting room in a flapping opened-back gown to the parking lot. Fortunately, our discussion accomplished its purpose and his procedure proceeded calmly and uneventfully.”

What he explained to his patient, and now his readers, is that while complications occur and are important, knowing only their number without knowing their circumstances is useless, and possibly dangerous, data. Most highly skilled physicians, he says, probably have more complications in such procedures than others whose numbers are fewer but whose experience is also less.

As he points out, a complication of heart surgery is stroke. A heart surgeon who has attended thousands of patients might have 25 whose surgery was complicated by a stroke. A less experienced heart surgeon might have had only three or four stroke complications. His or her numbers look better, but not when you consider that that surgeon has seen thousands fewer sick people.

We’ve discussed the notion of naked numbers not being particularly helpful in assessing research results and, in more practical application, your medical options. (See my newsletter about NNT—number needed to treat and the blog post “Breast Cancer’s Scary But Fake Numbers.”)

As Kirsch writes, “[C]omplications matter, but numbers can deceive. … a doctor’s higher complication rate may reflect that he accepts more risky and challenging patients that other physicians have rejected.” Although he calls perforation “a terrible event,” Kirsch says, “If your gastroenterologist has never had one, he likely has very limited experience. If this is the case, don’t jump off the gurney. Recognize, however, that a perfect record doesn’t mean medical perfection.”

“Complications are blameless events. They are not negligent.”

We’d add here that a perforated bowel doesn’t mean the doctor wasn’t negligent; it just means that there might be causes other than negligence.

Kirsch illustrates the difference between complication and negligence using a hypothetical patient who’s allergic to penicillin. If the patient denies having an allergy or is unaware of being allergic, and the doctor prescribes penicillin and the patient develops a serious rash, that’s a complication. If the patient has a known penicillin allergy and the doctor prescribes penicillin without ever asking about medication allergies, the rash is a result of medical negligence.

Kirsch concludes with a broadside against the imposition of so-called “quality” measurements of health care, such as pay-for-performance programs, and physician ratings available to the public without context that can, he says, mislead and confuse rather than illuminate. (Rating hospitals on their readmission rates is another example of quality measurement, but for hospitals.)

Although we see merit in many efforts to measure the quality of health care, we do agree with Kirsch’s advice to patients interested in their doctors’ statistics: “Be skeptical that this data is a true measurement of medical quality. In medicine,” he writes, “what really counts can’t be easily counted. Conversely, what’s easy to measure rarely measures up.”

And we’d take it a step further. If you want to check out a doctor’s history and performance, consult your state’s medical licensing board to see if any complaints or judgments have been filed against him or her (some states are better at providing this information than others). These agencies, generally within the state health or consumer departments, are responsible for licensing medical practitioners, monitoring their behavior and imposing discipline. But be aware that a doctor's "clean" history for lawsuits and discipline means next to nothing in whether he or she practices high quality medicine. (But a practitioner with a long string of adverse actions is someone to avoid.)

For a directory of state medical boards, link here.

Check to see if your doctor is board-certified in the specialty he or she is practicing, and for which you are seeking expertise. (See our blog post, “Board Eligible and Board Certified.”)

And always seek a second opinion before a major procedure or if you’re unsure about the diagnosis or the provider. See my newsletter about second opinions.

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November 25, 2012

Copy and Paste Medical Records: A Tempting Shortcut with Perils for Patient Safety

Electronic medical records make it easy -- too easy -- to document that a doctor or nurse has performed a model examination of a patient. One click, and the empty slots fill in the results of a normal exam from head to toe. But was that thorough exam really done?

Copy and paste is another shortcut offered by electronic records that saves a lot of typing, but that can allow errors in a record to perpetuate from shift to shift and day to day. All it takes is a single mistake in, say, the past medical history taken of a patient when admitted to the hospital, and every other provider copies the error, with sometimes terrible results, as when the initial history taker, and then everyone else, misses an important disease that the patient has had.

An op-ed in the New York TImes highlights the downsides of electronic documentation. Leora Horwitz MD, a Yale medical professor and internist, says she wouldn't go back to the bad old days of handwritten medical records, but the new electronic records carry some dangerous temptations for busy providers and also make care more expensive. Dr. Horwitz writes:

Of course, you shouldn’t click those buttons unless you have done the work. And I have many compulsively honest colleagues who wouldn’t dream of doing so. But physicians are not saints.

Hospitals received $1 billion more from Medicare in 2010 than they did in 2005. They say this is largely because electronic medical records have made it easier for doctors to document and be reimbursed for the real work that they do. That’s probably true to an extent. But I bet a lot of doctors have succumbed to the temptation of the click. Medicare thinks so too. This fall, the attorney general and secretary of health and human services warned the five major hospital associations that this kind of abuse would not be tolerated.
In short, reading the electronic chart has become a game of looking for a small needle of new information in a haystack of falsely comprehensive documentation and outdated, copied text. Why do we doctors do this to ourselves? Largely, it turns out, for the same reason most people do most things: money.

Doctors are paid not by how much time they spend with patients, how well they listen or how hard they think about what could be wrong, but by how much they write down.

Of course, when you have an honor system for how much a doctor is paid, the documentation requirement is a natural check-and-balance to make sure the time really was spent with the patient. Now we need a way to make sure that point-and-click medicine and copy-and-paste medicine really serve the patients' interests.

This reinforces my advice to all patients: Read your own medical records. You may be surprised what you find there. You will always be educated, and sometimes you can catch flagrant errors, whether they are due to copy-and-paste issues or other problems. Last month's newsletter has more on how to get and read your own medical records.

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November 22, 2012

Take Justice Back Launches Consumer Website

The American Association for Justice has launched a website to support people against interests that would like to limit their legal right to hold corporate misconduct or negligence accountable.

Take Justice Back vigorously defends the Constitutional right “to pursue justice in court when you believe you’ve been harmed. But well-financed corporations circling in Congress are working every day to undermine your rights. They spend hundreds of millions of dollars scheming up ways to avoid accountability when they hurt someone.”

Take Justice Back isn’t anti-business, it’s anti-irresponsible. The site isn’t about making money (there is no advertising or solicitations), it’s about “the gift of democracy” that’s being undermined by such phony euphemisms as “tort reform,” the idea that if you limit damages for corporate negligence (see our post “A Factual Appraisal of Medical Malpractice and So-Called ‘Tort Reform’”) and force people out of the courtroom and into arbitration (see our post about arbitration) where the deck is stacked against them, democracy erodes.

Learn how and where your rights are being threatened. Share your stories of people denied justice. Engage with other consumers and learn how to make your voice heard in Congress. As the site reminds, “If no one is accountable, no one is safe.”

The American Association for Justice (AAJ) is the most prominent organization of trial lawyers in the country. Patrick Malone is a member of its board of governors.

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October 20, 2012

Starting a Dialog between Attorneys and Surgeons about Medical Malpractice (Part 2)

This is part 2 of my talk to the American College of Surgeons about medical malpractice and how attorneys for injured patients can work together with organized medicine to make for better, safer care (and fewer lawsuits as a result). (Click here for part 1.)

I want to tell some very short stories about clients of mine where we had to bring malpractice lawsuits against their surgeons. You see the view in these kinds of symposiums from 40,000 feet. Here is the view from sea level.

Mike Wood, backhoe operator:


Mike Wood lost the median nerve controlling his left hand when a surgeon talked him into doing a procedure to open a blocked subclavian artery (under the shoulder blade) that was causing absolutely no symptoms. Instead of the standard approach through the groin or elbow, for percutaneous balloon access, the surgeon chose his own technique through the brachial plexus, cutting down through the tissue in the armpit, retracting the nerves, putting a catheter in the brachial artery and going upstream to unblock the subclavian. Mike Wood woke up in intense pain in the hand and he couldn't use first three digits. Another surgeon six weeks later found the median nerve swollen and dead in brachial area – a few millimeters from the suture that marked where the artery had been penetrated, and the area of damage matched the width of the retractor that must have pulled too hard and too long on the nerve.

Two vascular surgeons testified in defense at trial. They could cite no literature advocating the brachial plexus cut-down for what was supposed to be a non-invasive percutaneous (through the skin) balloon procedure, and they could cite no one they knew who did it this way. Nor did they unblock subclavian arteries this way. But they told the jury it was still OK.

They also testified about the indications for surgery. Despite the lack of any symptoms, and the lack of any support in the surgical literature for doing this surgery when the patient has no symptoms of pain in the arm or dizziness from the arm trying to grab blood flow from one of the arteries going up the back of the neck to the brain, they also said surgery was absolutely okay to do because of the possibility of future symptoms.

To me, Mr. Wood's case shows hows how overwhelming the case must be to win. And how the defense even defends the indefensible.

Another case: Jaime Vargas, bus mechanic:


Gall bladder removal: The surgeon cut off the common bile duct (the connection from the liver to the intestines), failed to recognize what he had done for two days, and worse, he did his own roux-en-Y repair and made the arm going to the liver so short the patient got a series of infections in the new bile duct, eventually destroyed the liver and he died.

The surgeon had no explanation for the initial injury: Still, the case was defended by two surgeons, who said the operator had done nothing wrong in failing to convert to open surgery or failing to do x-ray of the bile ducts to make sure he was cutting in the right place. Eventually this case settled shortly before trial, but only after Mr. Vargas had died from liver failure.

One more quick example: Billy Boone, home builder:


An ENT did surgery to clean out a benign growth behind his ear from his mastoid cavity, called cholesteatoma. Seventeen years before, another surgeon had done the same surgery, and had left a small hole in the base of his skull, but no injury. In the new surgery, the surgeon stuck an instrument through that hole into the base of his brain's temporal lobe. The operative report was silent about this. Only evidence was a CT scan two days post-op, done after patient complained of trouble reading the newspaper and retrieving names of close friends. CT scan showed a pencil diameter tract of air going from the base of the skull into the brain parenchyma, surrounded by a pool of blood.

The defense strategy was deny and defend. They couldn’t really say what had happened, but it had nothing to do with the surgery.

We won the trial, but the case went all the way to the highest court of Maryland. [Blog readers can find the decision here.]

I'm proud to say we made new law in Maryland for patients: giving them a right to know up front if their surgeon lacks experience in the type of surgery he proposes to do.

The Wood, Vargas and Boone cases had this in common – lack of experience by the surgeons.

Dr. Goldberg was a general ENT, not a neuro-otologist, no experience in revision mastoidectomies.

Wood’s surgeon was a cardiothoracic surgeon, not vascular, and had done this procedure once or twice before.

Vargas’s surgeon had been trained in the era of open gall bladder surgeries and was doing this laparascopically, which he had done maybe half a dozen before. More important, on the bile duct repair, he had done one previous in his entire life. A forty-five minute drive from this hospital was Johns Hopkins in Baltimore, which has full-time biliary surgeons who would not have made the basic error of the too-short roux-en-y arm that killed the patient.

American medicine has financial incentives that encourage inexperienced surgeons to not refer patients to better qualified surgeons. In fee for service medicine, the surgeon loses any fee if he refers the case out.

One legal reform could go a long way toward fixing this. If surgeons were employees of their hospitals, and not independent contractors, the employer would have both the muscle and the financial incentives to better supervise individual practitioners. It’s called enterprise liability.

• Enterprise liability: make the hospital (clinic, HMO, etc.) liable for everyone practicing within their institution, even “independent contractors.” This provides an incentive for meaningful peer review, meaningful institutional guidelines and enforcement. Lowers litigation expenses – one defendant, one set of attorneys. It also allows for more equitable spreading of the costs of insurance: instead of high-risk specialists being personally on the line for insurance premiums, the hospital can decide how to fairly allocate the costs of its coverage for all members of the surgical staff.

• Enterprise liability is already the rule in military and veterans’ health care. In fact, individual surgeons are immune from lawsuit. The patient must sue the federal government as the sole defendant.

Outside the government, medical practice is becoming more corporatized. Here in Washington, D.C., Johns Hopkins now owns two of our major hospitals. George Washington University has been buying up doctors’ group practices. Enterprise liability fits into a trend that’s already happening.

• A related concept is enterprise notice. Avoid patients having to sue all providers by letting them put on notice everyone, stop the statute of limitations clock, and add defendants later if discovery shows them to be culpable.

Let me turn to some of the other legal reforms you have been talking about today.

Here is one program that trial lawyers like me have no problem with, as long as it’s done in an even-handed and fair way. That is: Early offer/apology programs, or what I call "be open and honest with the patient."

Here are the essential elements I see for fairness in an early offer/apology program:

• Mandatory participation of all hospital staff, including non-employee physicians, in any apology program. Why? If not, patient who knows this is an “early offer/apology” hospital might think that failure to be approached means whatever happened to them was not a preventable compensable error.

• Right to hire own attorney: Advise patient in writing before any meeting. Encourage lawyer presence. No signing away legal rights without consult from independent counsel. Why? This is not a “full employment for lawyers” program but simply an evening of the scales concept. The hospital will have its own legal counsel, whether present in the room with patient meetings, or just behind the scene. Patients need their own counsel. Period. Any counsel must be completely independent from the hospital, not on any ‘favored attorneys’ list. This will ultimately protect hospital from later accusations of undue influence or fraud.

• Protect apologies from use in court but not facts of what went wrong.

• Stop clock on legal deadline for filing suit till end of talks between hospital and patient.

• Offer fair compensation.

• No penalties for patients who decline early offers.

This follows my simple litmus test: what would you want for a family member hurt by another medical provider that you’re not connected to.

Bottom line on early offers: Your institutions can do all of this now. You don’t need any laws passed to be open, honest and fair with your patients.

Let me speak to a couple of other reforms you have talked about today:

First, clinical practice guidelines, which you are calling "safe harbor" provisions.

• What you may not know is: We already use these in court, and the current system works well: Practice guidelines can be admitted into evidence by either side, with a sponsoring expert to explain. This is the rule under Federal Rule of Evidence 803-18 and similar rules in all states I know of except Minnesota.

• Allowing practice guidelines as “evidence” but not conclusive lets both sides explain to the fact finder why the guideline should or should not be given weight, based on:
– Relevance to this patient.
– Bias and conflicts of interest in the formulation of the guideline.
– Scientific evidence for the guideline.
– Guidelines that are conflicting, vague or otherwise wrong for this patient.

• The proposal for "safe harbor" guidelines as a One-way street – guidelines can exonerate but never implicate a doctor’s liability – is obviously unfair. You wouldn’t want that for a family member injured by medical care.

• If medicine really requires customized attention to individual patients, then guidelines will never be conclusive. If guidelines were conclusive in actual medical practice, that would turn doctors from the thinking professionals that they are now, into mere technicians. So why would you want conclusive guidelines in law that you would not want in medical practice.

• Last point on practice guidelines: I challenge people to show me a case where a doctor proved adherence to a relevant clinical guideline and still lost the case. I would not prosecute the case against that doctor and doubt if any sane colleague would.

Finally, health courts. I’ve already mentioned that having schedules of injury payments is a bureaucratic style solution that does not fit the way we typically work in America. Other problems:

First, there is no evidence of any unfair tilt in the current system toward patients. Quite the opposite.

Why does it happen over and over that indefensible cases go all the way to trial and even appeal, as in the cases of Mr. Wood and Mr. Boone.

Are juries biased? Absolutely yes. But not the way some of you might think. I wrote a book a few years ago about how patients can get better medical care so they never need the services of lawyers like me. And towards the end of the book – after I detailed a lot of common sense ways that patients can better participate in their own health care and improve its quality – I had a short passage about jury trials that I’m going to boil down here:

Seven studies over the past three decades have compared the outcome of jury trials with the private evaluations by the insurance company of their own doctors’ performance. The studies have been remarkably consistent: Even where doctor reviewers have rated the medical care “indefensible” or “poor,” plaintiffs win at trial no more than 50 percent of the time. When the doctor reviewers have rated the care “defensible,” the juries overwhelmingly agree, and vote for the defendant doctors 80 to 90 percent of the time. When different reviewers disagree about the quality of the care, and so the case is rated “unclear” or “a tossup,” the defendants still win around 70 percent of the time. Note the logical pattern in the research: As the evidence of negligence becomes more clear, the victim win rate goes up. But it almost never gets higher than 50 percent, even in the “indefensible” cases. Juries have a very heavy thumb on the scales of justice favoring the doctor defendant.

How are “indefensible” cases defended? For starters, juries never hear about the “indefensible” evaluations. Those are tucked into a very private file back at the insurance company headquarters. A skilled lawyer is hired to defend the case and is set loose to find an expert witness willing to defend the care. … the jury never hears about the turn-downs. For all the jury can see, the plaintiff has an expert, and the defense has an expert, and they’re both pretty glib, and so the benefit of the doubt goes to the doctor, who, after all, was only trying to help his patient.

So those of you who want to do away with juries and have professional fact finders or even “health courts”– just a friendly word of advice – be careful what you wish for. Any reasonably neutral decision maker will return verdicts for patients far more often than happens in our current 50 state system. You might want to look at what happens in federal courts with life-appointed judges from both political parties, who decide malpractice cases without a jury in lawsuits against government hospitals like the Veterans hospitals and military hospitals. The plantiff’s win rate before judges is considerably higher than for malpractice cases tried to juries, according to the U.S. Bureau of Justice Statistics.

More problems with health courts:

• First: Shift from negligence to preventability as the legal standard solves no problems. Fault is embedded in the idea that the harm could have been avoided. If we compensate all harms in hospitals, even non-preventable ones, the system loses all connection to accountability for doing poor job.

• Second: Who are we trying to help? Shouldn’t it be the patients who suffered the worst harms? Why would we shift to a system that in essence reduces payments to worst injured in order to fund payments for lesser injured? Patients with minor injuries can take care of themselves. It’s the crippled, maimed, paralyzed, brain-damaged patients, and family members of those killed, who need a system that tries to bring some measure of justice to what’s happened to them.

Let me wrap up:

I started this talk with the idea that both the leadership of surgeons and patient advocate attorneys want the same thing: to improve safety, reduce medical errors and have fewer injured patients knocking on my door and other attorneys.

We know that concerted safety reform efforts can have a dramatic impact on lowering malpractice payouts. Look at this slide that shows what happened at New York Presbyterian Hospital when they had a multi-year effort to reform the safety of their baby deliveries.


This is from a study published in 2011 in the American Journal of Obstetrics and Gynecology.

They not only dramatically cut their payouts, more important, they had a lot fewer “sentinel events,” which means many more healthy babies.

This is just one program in one hospital. Safety reform is something you can do even without the cooperation of the plaintiff’s bar. If you don’t like lawyers, that could be your best revenge, by making medicine safer and cutting down on our business.

To me and attorneys who do the kind of work I do, the statistics are stunning, but numbers themselves are not really the point. (Here are a few more pictures of my clients. There are many more.)



The point is that these are real human beings.

There are many more patients and many more stories just like these.

Their lives were broken by preventable medical events.

They need to be treated honestly and fairly by our compensation system.

They want us to pay it forward. To help make sure the same thing doesn’t happen to other people.

That’s the challenge for your and my professions.

(Click here for part 1 of my talk to the surgeons.)

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October 20, 2012

Starting a Dialog between Attorneys and Surgeons about Medical Malpractice

I was honored to be invited to speak the other day to a leadership conference of the American College of Surgeons about medical malpractice. They assured me I could leave my bullet-proof vest at home, and true to their word, the assembled surgeons were cordial and asked excellent questions. Even better, they told me how helpful it was to hear from an attorney for injured patients and how they plan to do it again.

I spoke about how patient safety efforts could make for better care and greatly reduce the need for patients to come calling at my office. And I highlighted how the surgeons, mulling over possible "reforms" in the civil justice system in how malpractice cases are decided, ought to consider what I said should be the litmus test of fairness:

Is this reform something you would advocate if the tables were turned, and instead of speaking for doctors you were advocating for a family member injured by care at some medical institution other than your own?

Here are excerpts from my talk:

I feel honored to be here. You might see me as an adversary. After all, I have sued many of your member surgeons. In fact, I think we are natural allies. And I think the more we recognize how closely allied the leaders of the American surgeons are with attorneys who represent injured patients, the better we can make progress in our shared goals.

What do we both want? Your profession and mine both want high quality surgical care for all patients – where the right patient gets the right operation at the right time, done in the right way, by the right surgeon.

We both know that ideal cannot always be met. When things go wrong, when patients get hurt through no fault of their own, when looking back we can see the patient’s injury was entirely preventable, then I hope that we share two more goals:

First, to learn lessons so it doesn’t happen again – so the individuals involved in causing the harm are held accountable if they’ve done something wrong, and to hold the system accountable if it’s done something wrong, and to fix it. That means retraining, educating, coming up with new checklists and protocols. Malpractice cases can provide a powerful tool for re-education and reform. Injured patients know this already when they come see people like us. I hear so many of them say: “The money is not so important. I just don’t want the same thing to happen to somebody else.”

Second goal: to fix the harm to the individual patient. In the kinds of tragic injuries that I and other patient advocates work with – the patient’s health cannot be restored. So our civil justice system uses money as a poor but necessary substitute – to compensate the patient with money for what cannot be replaced in kind.

“Compensate” comes from a Latin word meaning: to weigh one thing against another – literally to balance things out. That’s what justice does.

Yours is an ancient and esteemed profession. Every day, surgeons across America cure disease, relieve pain, and make lives better.

I see what we attorneys for injured patients do as another form of healing – helping to restore broken lives to some measure of independence and dignity. Helping to balance things out.

Part of the legal healing process that health care providers should want to encourage is restoring the patient’s trust in their own doctors and nurses. Trust is a vital ingredient in health care. When injured patients are treated fairly in the legal system, it helps restore their trust.


About our American civil justice system, I feel the same way that Winston Churchill felt about the democratic form of government: Democracy, he said, is definitely the worst form of government … “except for all those other forms that have been tried from time to time.” Likewise, the civil justice system is easy to criticize. It’s too expensive, it takes too long to reach resolution, it can be emotionally difficult on all the participants.

But it’s not broken. And like other democratic institutions, nothing better has been invented for the fair resolution of disputes. Our system is fair to the participants, in several fundamental ways. I can think of at least three.

First, our justice system is even-handed. The same rules apply to both sides.

Second, our justice system respects the uniqueness of each human litigant. There are no pre-fab boxes that people are stuffed into. On the patient’s side, that means you get to try to prove the full dimensions of the injury, with no artificial barriers like one-size-fits-all damages caps, or set schedules of payments like so much for an eye, so much for a brain. On the health care provider’s side, it means proving what was unique to the care in your case that might justify the care and explain the injury.

Third, our justice system respects and maximizes the freedom of the litigants. Each side runs its own lawsuit. Each litigant hires whatever lawyer he wants, pays him whatever they negotiate, hires whatever expert witnesses they want, and then they present their cases in a courtroom presided over by a professional judge trained in neutrality, and usually decided by a jury drawn from a cross-section of the community.

[To be continued in my next blog post; click here to read it.]

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October 14, 2012

A Misinformed Doctor Misguides People About the Causes of Malpractice

We like the often informative, always entertaining medical blog Regular readers of this blog know that we often link to KevinMd because we want people to have good information.

Unfortunately, that’s not what one of its guest bloggers recently offered. A post called “Cause of death: Defensive medicine” promulgated tired and inaccurate information that serves only to mislead people seeking the truth about medical errors and how to pay for them. That the post was written anonymously, by “BirdStrike, MD,” makes us wonder why, if the information is true and verifiable, the writer doesn’t have the conviction to sign his /her real name.

“BirdStrike” describes four patients who died from different medical errors, but which “BirdStrike” ascribes to doctors practicing so-called “defensive medicine,” otherwise known as overtreating in order to prevent being sued for malpractice.

In the first case, a woman, 40, went to her family physician for heartburn relief after eating hot peppers she believed had given her burning chest pain. Her doctor didn’t believe she had a heart problem, but sent her to the ER anyway. The hospital cardiologist did not believe she was having a heart attack, but she was admitted to the hospital anyway for “nonspecific” EKG changes. Her stress test results were “equivocal.” The cardiologist, in a gross example of overtesting, performed a coronary catheterization, a risky, invasive procedure that perforated an artery in her heart. She died.

Case No. 2 involved a 33-year-old dentist who had fallen and bumped his head when he was 13. At the time, he never lost consciousness, had a normal neurologic exam and no confusion, nausea or vomiting. Still, in a gross example of overtesting, the ER doctor ordered a CT scan, which “BirdStrike” claimed caused brain radiation damage that, 20 years later, developed into an untreatable glioma (brain cancer). “BirdStrike” said the unnecessary, risky CT scan was the result of “a very rational fear of being sued.”

Twenty years later, the patient died in a hospice ward. The diagnosis was stage IV glioma, but “Birdstrike” called the true cause of death defensive medicine.

Case No. 3 was a 7-year-old boy with a sore throat. The screen and culture were negative for strep. His doctor, BirdStrike claimed, was spooked by a previous case in which a girl’s negative strep test had caused her doctor to conclude she didn’t need antibiotics. But, as sometimes happens, she did have strep, and when it went untreated, she developed rheumatic fever. Her rare and terrible complications led the boy’s doctor to prescribe antibiotics just in case. They did nothing for his throat problem, but they did kill off his healthy bacteria and promoted resistance to other microbes that infected his ingrown toe nail. That led to sepsis (bacterial infection in the bloodstream), and death.

The diagnosis was sepsis from multiple drug-resistant organisms, but “Birdstrike” called true cause of death defensive medicine.

Case No. 4 was a 16-year-old girl with abdominal pain. Although her symptoms were not those of appendicitis, and her doctor didn’t believe that was her problem, he prescribed a CT scan anyway because he thought a jury of lay people—who don’t understand the subtleties of the medical art—might conclude, in the event of a problem, that her symptoms should have been more thoroughly analyzed. The teenager had an anaphylactic (allergic) reaction to the dye used for contrast in the unnecessary CT scan, and she died.

“Like one of Pavlov’s dogs,” “BirdStrike wrote, “[the doctor] did what he was trained to do, not by his physician teachers, not by his medical textbooks, but by lawsuit verdicts.” The official cause of death was enteritis (inflammation of the intestine) and reaction to intravenous dye, but “BirdStrike” called the true cause of death was defensive medicine.

Even though the teenager in the last case was overtreated, her death probably would never have been the subject of a lawsuit—medical and legal professionals know that certain allergic responses can’t be known. But in each of these cases, “BirdStrike" said that the doctors’ rational fear of being sued had compromised their ability to practice good medicine.

“Defensive medicine doesn’t just cost our society a lot of money,” he/she wrote. “It can also cost our patients their lives.”

That part he/she got right. But defensive medicine patently isn’t the result of litigation, or the fear of it. As we recently reported in our post “A Factual Appraisal of Medical Malpractice,” a new medical malpractice briefing book published by the Center for Justice & Democracy (CJ&D) shows how wrong that argument is. Defensive medicine causes lawsuits, it isn’t practiced because of them.

As the CJ&D points out, a small number of doctors are responsible for most malpractice payouts; even the most incompetent physicians are rarely held accountable by state medical boards, and physicians greatly misperceive their risk of being sued. In addition, successful plaintiffs receive far less than most people think, high verdicts are almost always slashed and punitive damages are extremely rare.

The briefing book also describes how infrequently major errors are reported. Recent studies have supported this—see our post “Why Don’t Patients Report the Harm Caused by Medical Errors?” In fact, patient safety suffers because so few injured patients sue. According to the CJ&D, litigation improves patient safety, and fear of litigation is not primarily why doctors fail to report errors

If the fear of being sued were real, physicians would see that reflected in their malpractice insurance premiums. Guess what? They’ve declined since 2006, as the CJ&D showed. Even caps on medical malpractice verdicts—a terrible practice that deprives harmed patients of rightful redress and excuses the people who made the mistakes from paying for them—don’t lower insurance premiums; only strong regulatory laws can do that for doctors and hospitals.

As far as the financial cost of overtreating, several studies noted by the CJ&D have debunked the notion that health-care costs can be cut in big ways by depriving patients of their legal rights. The real reason most doctors order too many tests is because they profit from them, not because they’re afraid of being accused of missing something.

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October 5, 2012

A Surgeon Outs the Deficiencies in Health Care

If only Dr. Marty Makary could be everybody’s doctor. He’s a surgeon at Johns Hopkins Hospital and associate professor of Health Policy at the Johns Hopkins School of Public Health. Unlike many of his fellow professionals, he’s vocal about the deficiencies in the delivery of health care, and openly discusses the problems of medical malpractice.

Makary led the effort of the World Health Organization (WHO) to measure hospital complications and co-developed the life-saving checklist for surgeons that’s become best practice to reduce infection and mistakes and to improve patient outcomes. As author of “Unaccountable: What Hospitals Won’t Tell You and How Transparency Can Revolutionize Healthcare,” he’s often quoted about medical error, and his informed opinions widely reproduced.

We think highly of his work, and are sharing some excerpts from his book. Our selections come from a long story recently published on The Daily, but he’s been widely quoted in other media, including The Wall Street Journal.

On Overtesting and Overdiagnosing
“A host of new studies examining the current state of health care indicates that approximately one in every five medications, tests, and procedures is likely unnecessary. What other industry misses the mark that often? Others put that number even higher. Harvey Fineberg, M.D., president of the Institute of Medicine and former dean of the Harvard School of Public Health, has said that between 30 percent and 40 percent of our entire health-care expenditure is paying for fraud and unnecessary treatment.”

“Politicians debate different ways to pay for our broken system. But if we are going to get serious about reducing health-care costs—and improving health-care outcomes—we need to address the 20 percent of medical care that is unnecessary and dangerous. The public should demand disclosure of a hospital’s patient-outcome statistics. After all, we have information on a car’s safety record to inform our decision about which car to buy. But when it comes to choosing medical care, the consumer is left to walk in blind. While we currently have a free market for health care, the competition is at the wrong level. Many patients tell me they choose their medical care based on parking. For an industry that represents one sixth of the U.S. economy, we can do better than that.”

See our blog, “Overtested, Overtreated, Overcharged.”

On Hospital Competency
“While patients are encouraged to think that the health-care system is competent and wise, it’s actually more like the Wild West. The shocking truth is that some prestigious hospitals participating in a national collaborative to measure surgical complications have four to five times more complications as other hospitals. And even within good hospitals, there are pockets of poorly performing services.”

“The wide disparity in the quality of medical care is no secret among hospital staff. In a study I conducted in 2006, we asked hospital employees, ‘Would you feel comfortable receiving medical care in the unit in which you work?’ While there were hospitals where 99 percent said yes, at more than half of the hospitals we surveyed, the majority of health-care workers said no. And to the question of whether their hospital gives priority to what’s best for the patient, again, in more than half of the hospitals surveyed, the majority of health-care workers said no.

“In other words, everyone who works in medicine knows about this problem but few talk about it. A cardiovascular anesthesiologist once described to me a colleague who was one of four heart surgeons at his well-known heart hospital. This surgeon had six consecutive deaths during routine bypass surgery. Half the operations of his last 10 surviving patients took several hours longer than the norm, often requiring the patient to be put back on the heart-lung bypass machine after having come off it. I asked my friend if he ever thought about reporting this surgeon to someone. He laughed and asked, “Like who?” The hospital administration loved this young doctor and was making a mint off his work. The senior partners were very protective of him—he covered their holiday shifts and happily tended to whatever the senior surgeons did not like to do. Whenever one of his complications was discussed at a peer-review conference, they cut him tremendous slack, attributing the death to some extenuating patient circumstance.”

See our blog, “An Insider Dishes About Hospital Ratings.”

On Hospital Transparency
“A new generation of doctors has been developing fair and simple ways to measure how well patients do at individual hospitals. In hospital-speak, we call the information “sensitive data”—data that would tell you which hospitals have much worse outcomes than others.

“It’s the kind of data that, if you had access to it, would help you know just where to find the best care. But you don’t. And that is precisely the problem with the entire system: because a hospital’s outcomes are hidden from the public, neither consumers nor payers have any way of measuring whether the medicine they provide is good, adequate, or even safe. Much as the financial crisis was incubated when bank executives turned a blind eye to the ugly details about their mortgage-backed securities, so too does medicine’s lack of accountability create an institutional culture that results in overtreatment, increased risk, and runaway costs.”

See our blog, “Rating Hospitals by Readmission Is Not Simple.”

On Dangerous Doctors
“Years ago, one of my favorite public-health professors, Harvard surgeon Dr. Lucian Leape, opened the keynote speech at a national surgeons’ conference by asking the thousands of doctors there to ‘raise your hand if you know of a physician you work with who should not be practicing because he or she is too dangerous.’ Every hand went up. Doing the math, I figured that each one of these dangerous doctors probably sees hundreds of patients each year, which would put the total number of patients who encounter the dangerous doctors known to this audience alone in the hundreds of thousands. If, say, only 2 percent of the nation’s 1 million doctors are seriously impaired or fraudulent (and most experts agree that 2 percent is a low estimate), that would mean 20,000 impaired or fraudulent doctors are practicing medicine. If each one of these doctors typically sees 500 patients each year, then 10 million people are seeing impaired or fraudulent doctors annually. Incredulous at the numbers, I took to asking the same question whenever I spoke at conferences. And the response was always the same.”

“[T]he National Practitioner Data Bank collected by the U.S. Department of Health and Human Services … is also known as the national “blacklist” of doctors. The public has absolutely no access to it. When I requested the list, I was given a version with the doctors’ names deleted; the only groups that can query the list are state medical boards or human-resources departments doing background checks. Ironically, sex offenders’ names are broadcast to the community when they move into town, but doctors who lose their license in one state because of sexual misconduct with a patient are shielded by name in the database if their license is later restored or if they continue to practice medicine in another state.”

See our blog, “Minnesota Tells Dangerous Doctors: We Won’t Punish You.”

On Preventable Medical Errors
A 2010 New England Journal of Medicine study concluded that as many as 25 percent of all hospitalized patients will experience a preventable medical error of some kind, and 100,000 will die annually because of errors. If medical error were a disease, it would be the sixth-leading cause of death in the country. My research partner lost his father due to a medical error. My medical partner lost his younger sister due to a medication error. My best friend’s mom had her breast removed unnecessarily because she was mistakenly told she had stage-III breast cancer. My grandfather died at age 60 from a preventable infection following a surgery he didn’t need. Andy Warhol died prematurely of a mistreated gallstone at 54; “Saturday Night Live’s” Dana Carvey had open-heart bypass surgery on the wrong vessel; and the singer Kanye West’s mother recently went to a surgery center for a routine plastic surgery, developed a rare complication, and died.”

See our blog, “Medical Mistakes That Led to a Greater Good.”

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October 1, 2012

Arbitration Agreements: Bad for Consumers, Good for Nursing Homes

Last month, Kaiser Health News published a story about mandatory arbitration agreements in nursing home contracts. Such agreements are common when signing up for services such as credit cards and cell phones. Increasingly, medical consumers are asked to sign arbitration agreements at doctors’ appointments (see our post about binding arbitration ).

Essentially, agreeing to arbitrate disputes denies your right for a grievance to heard by a court of law. Arbitration agreements are promoted as saving the protracted time it can take to resolve a lawsuit, and, by saving legal fees, to reserve for the patient a larger percent of any award. Never mind that many people still retain counsel in arbitrated disputes, and are responsible for their share of the arbitrator fees.

Consumer advocates dislike arbitration agreements because although arbitrators are selected jointly by the parties involved, their objectivity can be suspect: Arbitrators with a reputation for patient awards might find their names lopped from the industry’s list of suitable candidates.

In the case of a dispute with a doctor, or as in the KHN story, a nursing home, consumers who sign arbitration agreements are not able to file a medical malpractice or wrongful death lawsuit.

Unlike court proceedings, which are public and whose public records inform industry practice and help develop case law, arbitration hearings are conducted in private. The proceedings and documents usually are protected by confidentiality rules.

And if there is an award, it’s often less if it’s determined by an arbitrator than it would be if the case went to trial. No wonder businesses want consumers to agree to arbitration in case they mess up.

According to KHN, Aon Global Risk Consulting analyzed 1,449 closed claims involving long-term care providers (such as nursing homes) between 2003 and 2011. No money was awarded in nearly 1 in 3 claims for which a valid arbitration agreement was in place. But no money was awarded in only 1 in 5 claims for which there was no arbitration agreement or the agreement was determined to be unenforceable.

Nearly 12 in 100 claims without arbitration agreements resulted in awards of $250,000 or more, versus 8.5 in 100 with arbitration agreements.

The study was conducted by the American Health Care Association, which represents long-term care facilities. Greg Crist, the association’s spokesman, said increasing liability costs for providing care has prompted the popularity of arbitration agreements, which help to reduce them.

The news story pointed out that consigning someone to a long-term care facility is an anxious ordeal; a mandatory arbitration agreement is often overlooked within the reams of admissions documents many nursing homes require to be signed.

Of course you should always read the fine print in any contract. Crist told KHN that if people don’t want to be forced into arbitration in the event of a future dispute, they shouldn’t sign the arbitration agreement. "It's not a condition of admission to the facility," he said.

The KHN article concluded that rather than invoking the 30-day "opt-out" provision that allows you to change your mind about arbitration and retain your rights to sue, “Better yet, experts agree, is not to sign in the first place.”

Whoa Nelly! “On what planet?” asked the Center for Justice & Democracy’s Pop Tort blog. “These folks have obviously never had to deal with the misfortune of trying to find a decent nursing home for a family member.”

“[Y] ou cannot ‘not sign’ what a nursing home is asking you to sign,” said Pop Tort. “Nursing homes aren’t things families leisurely shop around for like condos or summer vacation rentals. Usually, families are dealing with a situation where a family member is being thrown out of hospital after suffering some terrible illness or injury. If the family is lucky, they’ll quickly find a facility with a decent reputation, not too many state violations and hopefully accepts Medicaid. … If you refuse to submit to a nursing home's terms, good luck getting in.”

Pop Tort also called out the KHN story for suggesting that if an arbitration clause is buried in the paperwork you’ve unwittingly signed, and then something actionable happens to your loved one, you can sue the nursing home, the judge will find fault with the arbitration clause and throw it out, as one judge did in one case the story mentioned.

Hardly. “Even the U.S. Supreme Court has spoken on this topic,” said Pop Tort, “and how do I put it: They don’t care!” (Read about its ruling on arbitration clauses here.) In a further indictment of the objectivity of arbitration, Pop Tort noted, the court ruled that it was OK for arbitrators themselves to decide if their own system was fair.

Arbitration is stacked against people whose loved ones have been harmed. The U.S. has a perfectly good legal system to adjudicate medical disputes. What’s unconscionable is denying medical consumers its remedies before the process even starts.

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September 24, 2012

A Factual Appraisal of Medical Malpractice and So-Called ‘Tort Reform’

“Tort reform” is the call to arms for people who believe that medical malpractice litigation is responsible for a host of problems and inefficiencies in the medical industrial complex, and that monetary awards for medical mistakes should be limited as a way to right the listing ship of justice.

Baloney. As we’ve repeatedly covered, the myth of medical malpractice reform has been quantified and verified as hardly the way to make anything, much less the practice of medicine or legal rights, better. Now, a new primer from the Center for Justice & Democracy (CJ&D) at New York Law School presents an organized, thoughtful, accessible argument for malpractice lawsuits as the only way to protect your rights.

As reported on Pop Tort, the lively blog produced by the CJ&D, “It took 40 malpractice suits ‘by butchered patients’ … for the New York State Department of Health to finally strip the license of cosmetic surgeon Dr. Robert Cattani, finally finding him to be an “imminent threat to the health and safety” of New Yorkers. An imminent threat. That’s what it takes these days for a state to revoke the license of an incompetent, even dangerous physician.”

“Medical errors, especially those committed by a small number of really bad doctors, is a costly epidemic in this country. … The number of patients [Cattani] injured is exponentially higher than that because only a small number of injured patients ever file lawsuits. And states are doing little about it. Heck, hospitals and their insurers are doing little about it even though they’re the ones paying the malpractice claims. How do we know all this?”

The answer is found in “Briefing Book, Medical Malpractice: By the Numbers.” It’s 70 pages of statistics and quotes, fully sourced, that yield useful information for anyone concerned with medical malpractice and health-care issues.

Part 1 covers medical malpractice litigation. It notes that few injured patients ever file claims or lawsuits, so when cases are filed, they are not “frivolous.” The number and size of medical malpractice claims, lawsuits and inflation-adjusted payouts are low and dropping.

The section quantifies that a small number of doctors are responsible for most malpractice payouts; that even the most incompetent physicians are rarely held accountable by state medical boards; and that physicians greatly misperceive their risk of being sued.

It also points out that successful plaintiffs receive far less than most people think, that high verdicts are almost always slashed and punitive damages are extremely rare.

Another myth busted in this section is that medical malpractice cases are clogging the courts. They’re not, because strong cases settle. And even though lawsuits filed for medical negligence are not frivolous, it’s still difficult for patients to prevail.

The section concludes that the best way to reduce malpractice litigation is to reduce the amount of malpractice.

Part 2 covers costs of medical malpractice, health care and the practice of “defensive medicine,” or when a practitioner overtreats for fear of being sued for missing something.

Numerous studies, it says, have debunked the notion that health-care costs can be saved by depriving patients of their legal rights; “tort reform” has no impact on so-called defensive medicine, which it says, depends on untrustworthy physician surveys, often conceived by lobby groups pushing “tort reform.”

The real reason doctors order too many tests? Profit.

Part 3 covers the supply of physicians and access to health care. It shows how “tort reform” in one notable state—Texas—had no effect on its supply of practitioners, and that it has no effect on the national supply of doctors. Lifestyle and age are the most important factors for doctors deciding where to practice, and in what specialty.

Part 4 covers medical malpractice insurance. It’s a hugely profitable industry despite the fact that premiums have declined since 2006. Again, this is irrespective of whether “tort reform” has been enacted in any given state.

This section also shows how caps on medical malpractice verdicts don’t lower insurance premiums; only strong regulatory laws can do that for doctors and hospitals.

Part 5 covers patient safety. It delineates that medical errors occur in alarming numbers, and at high cost. It identifies hospital departments that are particularly unsafe, and explains that we might not even know how unsafe because, often, major errors are not reported.

It concludes that patient safety suffers because so few injured patients sue. Litigation improves patient safety, and fear of litigation is not primarily why doctors fail to report errors.

We commend CJ&D’s clear, concise appraisal of medical malpractice and litigation, and recommend it to anyone seeking to become informed about the facts, not the fantasy, of this intersection of medicine and law.

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August 26, 2012

Six Ways to Rate Your Ob/Gyn

Like reviews of restaurants and plumbers, these days doctors can be rated six Internet ways from Sunday. Some sites are fair, useful and worth your time; some provide more opportunities to vent than to advise. We looked at the doc-rating phenomenon in “The Ups and Downs of Patient Ratings of Doctors.”

When it comes to medical provider reviews, there’s an undeniable cred-boost if the info provider is a member of the class under scrutiny. Writing on, Dr. Jennifer Gunter, who practices obstetrics and gynecology, offers guidance on how to rate your ob/gyn and, if he or she is found wanting, to find a better provider.

In general, she looks for communication skills: “how a doctor discusses options if the care seems valid or if a second option is in order,” and the ability to explain a treatment plan as it relates to recommended guidelines. She also looks for board certification.

When patients come to her with tales of medical misadventure, sometimes, she writes, “they make me want to shout, ‘Your doctor did/said what?!’ These are red flags, because not only are these recommendations potentially harmful, but if your doctor recommends one thing that is so flagrantly bad, well, uh, um, how can you trust the rest of their care?”

Precisely. So here are her six red flags that should prompt you to seek ob/gyn care from someone else.

1. Giving you a prescription for estrogen-containing birth control (pills, patch or ring) without inquiring about migraines. Migraines with aura are an absolute contraindication to estrogen-containing birth control because of an increased risk of stroke. A doctor’s failure to inquire about migraines indicates unfamiliarity with guidelines from the Centers for Disease Control and Prevention (CDC).

2. Blaming pelvic pain on pelvic organ prolapse. Prolapse is not a cause of pelvic pain. It causes a bulge and a feeling that something is coming out of the vagina, but it does not cause pain. A doctor who thinks the two are related knows nothing about prolapse and even less about pain. Or just wants to operate.

3. Booking you for incontinence surgery without a bladder diary (a log that measures input and outgo for 48 hours) and a post-void residual (a test to ensure you empty your bladder correctly). This simple diary and test can distinguish people who can (and can’t) be helped by surgery, as well as indicate some people who could be even worse after surgery.

4. Dismissing your concerns about pain with sex. Painful sex, called dyspareunia, is not normal: Sex should not hurt. If it does, taking a complete history and conducting an appropriate exam are in order. Many medical conditions can cause painful intercourse and not one of them is “It’s all in your head.”

5. Giving you a prescription for fluconazole (Diflucan) if you also take a statin drug for high cholesterol. These two medications can interact with fatal results and should not be given together, especially for a routine yeast infection.

6. Blaming pelvic pain on pressure from fibroids. Fibroids are benign tumors of the uterine muscle that can cause irregular or heavy bleeding, but they do not cause chronic pain. Sometimes, when they outgrow their blood supply, they degenerate into an acutely painful condition, but that can be diagnosed with imaging studies, and is not chronic pain. A large fibroid uterus would weigh 1 pound, so if a 1-pound uterine resident caused severe daily pain, how could pregnancy ever be endured?

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July 29, 2012

The Enduring Myth of Medical Malpractice Reform

Sometimes it seems like the drive to control the amount of damages awarded for medical malpractice is on some kind of political message loop. Often called “tort reform,” it frequently is fodder in election campaigns, and is always a popular lawyer-bashing topic at cocktail parties. One state or another is always considering capping the amounts that can be paid as a consequence of somebody’s medical error with the justification that it will prevent frivolous lawsuits, hold medical malpractice insurance costs in check and reduce health-care costs for everyone. None of which is true, but when it gets said over and over, the false message gains some traction.

We’ve written about the constitutional protection that these efforts threaten, about the myths of malpractice caps and the irrational fears behind them. Now a new study by Public Citizen, a nonprofit consumer interest organization, puts the lie to all the folks who think limiting your damage recovery rights would enable the delivery of better and more cost-effective medical care.

“Medical malpractice payments were at their lowest level on record in 2011,” the report concludes. “But, contrary to the promises of policymakers and leaders of physician groups who have spent the past two decades championing efforts to restrict patients’ legal rights, there is no evidence that patients have received any benefits in exchange for ceding their legal remedies. Instead, the evidence suggests that litigation restrictions have suppressed meritorious claims, forcing malpractice victims and ordinary patients to absorb the costs of treating injuries caused by uncompensated medical errors.”

Tort reform measures such as overriding jury damage awards with legislative caps, did nothing to lower health-care costs. They have done absolutely nothing, the study says, to protect patients. As summarized on using figures from the National Practitioner Data Bank, the overall value of all medical malpractice payments made last year accounted for only 1/10 of one penny of the nation’s health-care costs. The payments fell for the eighth straight year, despite some claims that medical malpractice costs were on the rise.

From 2000 to 2011, the report said, health-care costs in the U.S. almost doubled. During that period, the value of medical malpractice payments fell by about 12 percent. Public Citizen found that 8 in 10 medical malpractice claims that ended in payment resulted from patients who suffered death, catastrophic harm or serious, permanent injury.

Texas is the poster child for tort reform and all the good its advocates promise. In Texas, medical malpractice reforms, including a $250,000 cap on noneconomic damages, were initiated in 2003. Since then, malpractice payments made by doctors have declined 65 percent. But what about what patients pay? Health insurance premiums have increased faster in Texas than the national average.

The Journal of Empirical Legal Studies supported Public Citizen’s analysis of the situation in Texas. It concluded that the “accumulation of recent evidence finding zero or small effects suggests that it is time for policymakers to abandon the hope that tort reform can be a major element in health-care cost control.”

So the next time you hear the clarion call of tort reform as a way to improve medical care and control costs, consider the source. Invariably, it’s someone whose interests are about patient care and safety the way a great white shark’s interest is baby seal conservation.

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July 23, 2012

Uninsured Hospitals Compound Potential Patient Malpractice Harm

Suppose you need gall bladder surgery. Suppose there’s a prestigious urban teaching hospital nearby with lots of famous doctors and researchers who get a lot of media attention for all the ground-breaking work they do. Suppose it’s in your insurance network and your surgeon has privileges in its OR.

Perfect, right?

Maybe. But suppose you undergo the operation and something goes wrong, as it sometimes does, and you suffer lasting harm because somebody made a mistake.

You retain an attorney, sue the hospital for damages and win the trial. Although you can’t undo the error, at least it was recognized and compensated, right?

Not necessarily. Or so it seems from a recent story in the New York Times. “Several of the city’s most troubled hospitals are partially or completely uninsured for malpractice…,” according to the story, “forgoing what is considered a standard safeguard across the country.”

The problem isn’t limited to New York, although certainly the Big Apple appears to have a serious problem, particularly in underserved, poorer neighborhoods. But it can happen anywhere.

You’d think any hospital would insure itself for what sometimes is the cost of doing business that has such great potential for causing terrible suffering. But as reported on Pop Tort, a consumer advocacy project of the Center for Justice & Democracy, a recent Consumer Reports survey revealed that 30 of the 50 lowest-rated U.S. hospitals in terms of quality of care were found in New York City. New York-Presbyterian, home of TV’s “NY Med,” for example, features open-heart surgery performed by star surgeon Mehmet Oz, and it performed 18 percent worse on the survey on than the national average.

Pop Tort referred to Time magazine’s article, “Why The ‘Best’ Hospitals Might Also Be The Most Dangerous," and commented, “Clearly, the days when New York hospitals were more well known for their rampant medical errors (and tiny percentage of harmed people who sue) than superstar miracles, seem a distant past.”

Although many are insured, some aren’t. Without malpractice insurance, facilities are playing with fire, and it’s the patients who will get burned. As The Times pointed out, although some of these hospitals have financial reserves to cover liabilities, others have exhausted them. That means awards or settlements are paid from funds otherwise used for patient care. Some have closed certain practices, such as obstetrics, to reduce their exposure.

Many hospital executives claim tight budgets and high insurance premiums make it impractical to pay millions of dollars a year for insurance. But that’s just penny-wise, pound-foolish behavior that isn’t in the best interest of patients, and can place hospitals and their bondholders, including state-backed bonds, at risk if large judgments force them into bankruptcy.

Insurance law professor Tom Baker, from the University of Pennsylvania, told The Times, “From a social perspective, it’s very irresponsible. They’re taking in these people knowing they’re not able to make good on the harm they caused. Even a really good hospital is going to have a certain amount of medical malpractice. It’s inevitable.”

And hospitals don’t have to tell consumers if they are going “naked” or “bare,” as they call it in when they don’t carry insurance. That information at least would give you the option to seek treatment somewhere else.

So if you or a loved one requires hospital care, contact the patient advocate at each facility you’re considering and ask about its medical malpractice coverage. Whether or not your request for information is granted, consult the hospital comparison website from the Department of Health and Human Services to see how well your options stack up against national norms for patient care.

In addition, read our articles about hospital errors, and hospital ratings to help narrow your choices for care and understand when you might need legal counsel if something goes wrong.

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July 15, 2012

"Lessons Learned in Blood:" Capt. Sullenberger on Preventing Medical Malpractice

Readers should check out a powerful NYT column by Maureen Dowd on the unnecessary death of a 12-year-old boy from an undiagnosed but easily treatable strep infection.

Rory Staunton's hero was Captain Sully Sullenberger, who safely landed the airliner in the Hudson. As Sullenberger told Ms. Dowd:

“If something good comes from Rory’s death, it will be that we realize we have a broken system. Patient care is so fragmented. For the most part, medical professionals aren’t taught these human skills that some deride as ‘soft skills.’ So there’s insufficient sharing of information and ineffective communication.

“Some in the medical field look upon these deaths as an unavoidable consequence of giving care. But they’re inexcusable and unthinkable.”

Our firm represented a family in a similar case a few years ago, where the doctor assumed his patient had a benign condition but she actually had a strep infection brewing that would have been easily treated with penicillin. I discuss lessons from that case about communicating with your doctor in my book, "The Life You Save."

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July 4, 2012

When a Medical Device Warning Was Ignored, the Patient Died

Last month, we wrote about the danger of drug and medical device warnings and recalls that go unnoticed by hospitals and doctors, much less patients. A recent story reported by CNN demonstrates the tragic consequences of such ignorance.

When Florinda Gotcher entered the hospital to donate one of her kidneys to her brother, recalled her daughter, Melinda Williams, "She was so happy. She was overwhelmed that she was able to save her brother's life."

Kidney donor surgery is relative safe: According to CNN, in 2010, the year before Gotcher's surgery, 6,276 people donated a kidney. Thirty days later, they were all still alive. Mere hours after her surgery, Gotcher was dead.

Williams said that surgeons from University Medical Center in Lubbock, Texas told her Gotcher experienced massive, sudden internal bleeding after her laparoscopic procedure, and that they’d done everything possible, but that nothing could save her.


Kidney donation surgery requires cutting the renal artery. If it’s not properly closed, patients bleed to death. Staples or clips typically are used to close the artery, and both methods are considered safe. Except for laparoscopic kidney donation.

Clips are not indicated for the arterial stump because they can slip off. Four people are known to have died from exactly this circumstance, and 12 others suffered injuries. When Gotcher was taken back into the operating room after her collapse, her clips were found floating in the pool of blood that had collected in her abdomen.

This should have surprised no one, as the clips’ manufacturer, Teleflex, in 2006 began sending warning letters to hospitals that the clips were unsafe for use in laparoscopic kidney donor surgeries. Hospitals received at least three and as many as six such letters.

In addition, the product package bears a warning symbol directing doctors to review the instructions accompanying a separate tool used to apply the clips, which make clear that the clips should not be used on kidney donors.

Officials at University Medical Center acknowledged receiving the letters in 2006, but said they hadn’t purchased those clips that year. By the time they did, the letters had been forgotten, simply one more of the dozens the hospital received every year concerning safety issues.

Many medical professionals believe warning letters don’t go far enough, and that warnings should be posted directly on the devices themselves. The FDA disagrees, stating that the letters are “effective,” never mind that only about half the hospitals mentioned in documents obtained by one researcher acknowledged receipt of the warning notifications.

And the agency appears to have undercut its initial analysis, given that after Gotcher’s death it issued another notice reminding surgeons of the clips’ unsuitability for kidney donor surgeries.

As the FDA told CNN, "despite repeated efforts to communicate this important safety information, some transplant surgeons continue to improperly use these clips. While the FDA can warn against the unsafe use of a medical device, doctors are not prohibited from using cleared or approved devices for an unapproved use within their practice of medicine."

University Medical Center settled a lawsuit over this tragedy, and acknowledged that its process to track warnings failed. Now it uses an outside contractor to document and track warnings and recalls.

But it’s too late for Florinda Gotcher.

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June 24, 2012

We Know More About Medical Error and the Harm It Creates … But Not Enough

Twelve years ago, Helen Haskell’s son died because of a series of medical errors. That sad episode prompted her to found Mothers Against Medical Error (MAME), which offers support and advice for people who share such tragedy.

Haskell’s ongoing effort to quantify medical errors and the harm they can cause are detailed in her story on Reporting on Health, an online community for people to share information that fosters better media coverage of health and medicine.

You can’t head off medical harm, Haskell contends, until you can identify its reach. Until 2010, she writes, the primary source cited for the frequency of medical harm in the U.S. was a 1999 report by the Institute of Medicine (IOM). As venerable an institution as it is, the IOM collected data for the report from the 1980s and 1990s--old numbers that didn’t fully offer even a sense of what was happening at the end of that decade, much less more than a decade later.

In addition, the IOM reported only on hospital admissions (see our article, “Hospital Errors” ); but medical harm, of course, occurs in outpatient clinics and surgery centers, in physicians’ offices and nursing home, in dialysis clinics and chemotherapy centers -- wherever medical care is rendered.

In short, while the IOM metrics were solid, they gave an incomplete picture of the impact of medical harm in the U.S.

In 2010 and 2011, Haskell says, new studies were published by the Health and Human Services Department in the New England Journal of Medicine (NEJM) and Health Affairs that advanced the body of harm knowledge.

Employing a system called the Global Trigger Tool developed by the IOM, the studies probe medical records for evidence of potential adverse events. To no one’s surprise, Haskell writes, the newer research found “exponentially greater levels of harm than had been reported earlier by the IOM.


  • more than 1 in 4 hospitalized Medicare patients had suffered an adverse medical event resulting in harm;

  • approximately 180,000 Medicare beneficiaries died every year from their medical care;

  • 1 in 3 patients admitted to three large teaching hospitals suffered medical harm, often more than once;

  • nearly 1 in 5 patients in 10 North Carolina hospitals experienced at least one adverse medical event;

  • a commonly used adverse event detection method—voluntary reporting and the Agency for Healthcare Research and Quality’s Patient Safety Indicators--was poor; it missed 9 in 10 of the events (Global Trigger Tool found at least 10 times as many confirmed, serious events).

The 1999 report, Haskell reminds, was considered a wake-up call for the health-care system to come to grips with the extent and repercussions of medical errors, but the newer studies showed that from 2002 to 2007 there was no significant change in the rate of harm.

The researchers concluded, “Though disappointing, the absence of apparent improvement is not entirely surprising. Despite substantial resource allocation and efforts to draw attention to the patient-safety epidemic on the part of government agencies, health-care regulators and private organizations, the penetration of evidence-based safety practices has been quite modest.”

This “modesty” was quantified:

  • only slightly more than 1 in 100 U.S. hospitals have implemented a comprehensive system of electronic medical records;

  • only 9 in 100 have even basic electronic record-keeping;

  • physicians-in-training and nurses routinely work hours in excess of what’s proved to be safe;

  • compliance with even simple interventions such as hand washing is poor in many centers.

That’s bad, but, as Haskell notes, we still don’t know how bad—or even if it’s less bad—because the most recent numbers crunched in the newest studies date from 2008; the least current numbers come from 2004. That’s better than numbers from the 1980s, but it’s not the most revealing information. Much has changed since the 1990s, but the tired data don’t tell us what changes increase estimates of harm, and what changes decrease them.

In the intervening years, medicine has become more corporate and more consolidated. Bottom-line pressure has intensified. The incidence of medical encounters has increased, but most occur outside of hospitals, where safety isn’t tracked.

In summary, our collective attention about medical errors and the harm they do has been piqued. But that’s only half the job of actually addressing and minimizing them.

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March 12, 2012

Medical Mistakes that Led to a Greater Good

In his article “Ten Medical Mistakes That Changed the Standard of Care,” Dr. Barry Bialek offered a lemons-to-lemonade account on In reviewing these sad tales, Bialek demonstrates how medical errors -- and the resolve to right a wrong -- can advance science and the notion of best practice.

Bialek provides some historical perspective as well. Western standards of care, he notes, date to Hippocrates more than 2,400 years ago. The origins of our contemporary understanding of best practices date only to 1910, with publication of the Flexner Report, a seminal document in which Abraham Flexner surveyed the state of medical education in the U.S. and Canada. At that time, only 16 of the 155 medical schools required more than a high school education for admission.

“The practice of medicine across the U.S.,” Bialek writes, “is much more standardized, thanks in large part to changes made by medical schools in response to the Flexner Report.” Among those changes are rigorous medical school admissions and clinician licensing. In addition, standards of care are (mostly) based on science.

Here are Bialek’s 10 tales of teachable mistakes.

1. In 1976, Dr. Jim Styner, an orthopedic surgeon, crashed his small plane into a Nebraska cornfield. His wife was killed and he sustained serious injuries, as did three of their children. The local hospital’s care was inadequate, even by the standards in those days. Later, Styner stated, "When I can provide better care in the field with limited resources than what my children and I received at the primary care facility, there is something wrong with the system, and the system has to be changed."

Their tragic adventure spawned Advanced Trauma Life Support (ATLS) and changed the standard of care in the first hour after trauma.

2. Judy, 39, underwent a supposedly routine hysterectomy. But she died on the operating table, and an autopsy revealed that the anesthesiologist had placed a breathing tube not in her trachea, but in her esophagus.

Such a grave, simple anatomical mistake today is avoided because an anesthesiologist measures the patient’s carbon dioxide levels, which are much higher from the trachea than from the esophagus, with a CO2 monitor.

3. Sally’s labor for her first child was long, so her obstetrician administered Pitocin, a synthetic version of the hormone oxytocin, to speed things up. Unfortunately for the baby, the Pitocin prompted fetal distress that went unrecognized, and she suffered severe brain injury and cerebral palsy.

Today, fetal monitoring to test both uterine contractions and fetal heart rate is the standard. If fetal distress registers, it takes only 30 minutes for the baby to be delivered.

4. Bill was driving when he suffered a seizure and crashed his car into a tree, crushing both legs. Arteriography, an X-ray mapping of the arteries depicting the progress of an injected fluid, revealed that his right leg was salvageable, but his left leg was not. But the X-ray technician mislabeled the films and the orthopedic surgeon amputated Bill’s right leg.

Today, the surgical site is marked and multiple health-care providers interview each patient before he or she undergoes surgery.

5. Tom was 12 when his appendix burst. Three days after his appendectomy at a local pediatric hospital, his fever spiked anew. After one week, the surgeon performed a second procedure and found the cause—a surgical sponge had been left inside the wound.

Today, post-operative sponge and instrument counts are routine. In addition, threads visible on X-ray are woven into surgical sponges, so that such tools are readily apparent in post-operative X-rays.

6. As a young child, Betty had been given penicillin, turned blue and was rushed to the hospital. At 15, she contracted Strep throat, was given penicillin and died. No one had asked her about medication allergies.

Today, medical questionnaires always include a high-profile space for allergies.

7. Linda was in her first trimester of pregnancy, and not doing well. Nausea and vomiting had left her severely dehydrated and low on potassium. She was seen in a busy emergency department where the nurse made a simple mistake in arithmetic and added too much potassium to her IV. Within an hour, Linda was dead.

Today, clinical personnel don’t compound this medicine on the fly—potassium is added to IVs by the manufacturer and labeled.

8. Frank, 72, broke his right leg in a car accident. He recovered for a few weeks in a rehab facility in which the nurses didn’t know they were supposed to move him periodically, and he developed deep pressure wounds. They became infected, and Frank’s leg had to be amputated.

Today, caregivers know that pressure wounds are mostly preventable by regularly repositioning at-risk patients every two hours to enable blood flow to the skin.

9. Lillian was 68 and weighed 250 pounds when she underwent surgery to remove her gall bladder. The second day after surgery, she needed help walking to the bathroom. Her nurse, Millie, couldn’t bear the load, and they both fell, breaking Millie’s right arm and Lillian’s left leg.

Today, clinical personnel are taught proper lifting techniques, and they practice them.

10. Christy was 42 when her doctor discovered a large lump in her left breast. It would have been evident during Christy’s two previous annual exams, had those physical exams been complete. By the time it was diagnosed, the cancer had progressed beyond cure.

Today, breast self-exams are taught widely, and are routine in physical examinations. Mammograms are also standard care.

Bialek concludes his malpractice roundup by noting that the federal government and medical schools, acknowledging that all of the mistakes he recounted could have been prevented, have developed guidelines for prevention and treatment of many diseases. Chief among them is the Agency for Healthcare Research and Quality (AHRQ) from the Department of Health and Human Services. The website offers guidance to medical consumers as well as practitioners, including how to locate good quality medical care and reduce medical errors; how to compare medical treatments; how to navigate the health-care system; and how to assess insurance coverage.

We’ve discussed several of these topics in our monthly newsletters. If you think you or a loved one might have been the victim of medical malpractice, link to our Medical Malpractice A-Z page for guidance how to proceed.

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February 13, 2012

Electronic Health Records Make Doctors Accountable -- and Some Don't Like That

Electronic health records (EHRs) hold much promise for reducing medical errors and improving quality of care, but the prospect that patient advocates can use EHRs to do an autopsy of where a patient's care went wrong has some in the medical industry sounding an alarm.

Last week a story (actually a press release, on closer scrutiny) in the Wall Street Journal's Market Watch talked about "Crippling Access to Physician's Actions" allowed by tattle-tale Electronic Health Records. Among the horrors described by IT consultant Dr. Sam Bierbock:

EHRs ... can also be audited to examine how long it took them to act after an abnormal lab result came in, if the doctor checked on on-line references before making a clinical decision, what was said in every email and how long the doctor took to respond, and even how long the doctor looked at a screen or scrolled down to read an entire document.

And this is a bad thing?

Fortunately there are patient advocates in the medical informatics industry. One is Scot Silverstein, MD, of Drexel University, who trained as a doctor in intensive care units, which have heavy demands for up-to-the-second monitoring information on the desperately ill patients they care for. Dr. Silverstein wrote a well-informed blog post on the real problems with EHRs and why it won't wash to make plaintiff attorneys and malpractice lawsuits the whipping boy for the industry's troubles.

Our firm represented a patient's family last year in a particularly tragic malpractice case where we used the hospital's "audit trial" of EHR records to show that a nurse was claiming to be in two places at one time. Her neglect led to the stillbirth of our family's child.

The alarm of IT consultants like Dr. Bierbock over the ease of auditing health care brought about by EHR's is really a false alarm. Yes, there will be closer scrutiny of medical decisions. But audit trails will lead to more accurate understanding of what happened in any tragic injury, and that should lead to better care for all.

First published on Technorati.

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February 12, 2012

Hospital Fraud Contributed to Doctor's Malpractice

A rare verdict for punitive damages and fraud against a Florida hospital opens a window on the big business aspects of weight loss surgery, which can be unsafe for patients especially when the surgeon lacks experience. The verdict also has lessons for how patients can protect themselves.

A jury in Jacksonville ordered Memorial Hospital to pay $10 million in punitive damages for what amounted to false advertising about its weight loss surgery "Center of Excellence" designation. The same jury said that Clay Chandler, a county deputy sheriff, should be paid $168 million in compensatory damages for brain damage that happened to him as a result of uncorrected leakage in his abdomen after a weight loss procedure in 2007 with surgeon John DePeri, MD.

DePeri, testimony revealed, had performed at most 21 bariatric surgeries before he operated on deputy Chandler. To meet the standards of the American Society Bariatric Surgery’s Center of Excellence seal, he was required to have performed 50 and to have completed at least 20 hours of bariatric education courses. He had taken one.

Memorial Hospital used that accreditation seal in pamphlets given to potential surgery patients of its Bariatric Surgery Center. The seal also was featured on documents DePeri used when speaking at informational forums at the hospital.

The jury found that use to be fraud. It said that the hospital knowingly allowed DePeri to perform paid surgeries for which he was not accredited.

The malpractice verdict was reported by the Florida Times Union.

Chandler is now brain damaged and confined to a wheelchair. The day after his surgery in 2007, Chandler was placed into critical care with respiratory failure and signs of fluid leakage into his abdomen. Eight days later DePeri operated to repair the leak. Even the hospital’s own expert witness testified that most doctors would have addressed the complication much earlier.

It was too late for Chandler, who suffered a stroke and was comatose for more than two weeks. He also suffered a permanent loss of eyesight from a burned retina because he was not given the basic care of lubricating eye drops while he was on the respirator.

The damage to Chandler, said his attorney, Tom Edwards, “occurred because you had a relatively inexperienced doctor doing this surgery and managing the patient.”

DePeri has since been accredited by the bariatric surgeons' program. But it's too late for patient Chandler.

What are the lessons for other patients who want to prevent this from happening to them?

In this case, deputy Chandler would have had to do a fair amount of research to find the 50-case minimum standard of the bariatric surgeons. If he did, of course, he could have asked Dr. DePeri up front how many he had done, and DePeri presumably would have told the truth.

But even without that level of research, here are the kinds of questions any patient can --and should-- ask any surgeon, as I explained in a recent issue of my firm's Better Health Care newsletter, on the topic: Talking to Your Surgeon: What You Need to Ask.

"Is there anyone at your institution (in your partnership, in my town, etc.) who does these procedures more than you do? If so, would you mind if I speak to him or her?" (A defensive response to this question is a red flag.)
Another question that gets at the experience issue:
"Who would you ask to do the operation on a close family member of yours if you couldn't?"

Surgical volume is important to hone a doctor's skills in the operating room. It's the old idea that practice makes perfect. But with bariatric surgery in particular, one of the key issues is being able to quickly recognize and correct surgical complications afterwards. That is where Dr. DePeri fell down, with the long delay in returning his patient to the OR. Leaks themselves happen sometimes with this surgery, even in the best of hands; it's the response that is key to a good outcome for the patient.

Surgical volume is also important for the hospital, because the more nurses and other caregivers have seen patients just like you, the more equipped they are to make sure the post-op recovery period goes smoothly.

See our newsletter for more important questions up front for your surgeon. I called this issue of the Patrick Malone patient newsletter: "When a Conversation Can Save a Life." The Florida story shows how true that is.

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February 6, 2012

Minnesota Tells Dangerous Doctors: We Won't Punish You

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.

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January 4, 2012

Robot Surgery of the Prostate: No Evidence of Better Outcomes for Patients

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.

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December 26, 2011

Our Nation's Hidden Elderly Deaths Scandal

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.

The ProPublica/Frontline story reports about one death a doctor attributed to clogged arteries and heart failure, but which, thanks to a tip by a nursing home worker, prompted state officials to re-examine. They concluded that the death was due to a combination of ailments often related to poor care—an infected ulcer, pneumonia, dehydration and sepsis. They said the patient’s demise was hastened by the inappropriate administration of powerful antipsychotic drugs, which can have potentially lethal side effects for seniors.

Prosecutors ended up charging the physician and two former colleagues with killing the patient and two other elderly residents.

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.

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November 12, 2011

How a Dangerous Doctor Can Keep Harming Patients

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.

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November 7, 2011

Doctor's Conviction Goes Far Beyond Mere Malpractice

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.

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November 6, 2011

How to Complain Effectively about Unsafe Medical Care

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 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 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.

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November 4, 2011

Federal Health Agency Takes Side of Multi-Sued Surgeon

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.

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October 20, 2011

Conservative Group Says Capping Patients' Malpractice Damages Could Encourage Unsafe Medical Care

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.

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October 4, 2011

Doctors Say Patients Receive Too Much Care

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.

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September 24, 2011

Database of Dangerous Doctors Gets Yanked from Public Eye

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.

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September 14, 2011

Doctors' Histories of Malpractice Lawsuits Are Withheld from Patients

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.

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September 1, 2011

Hospital Safety: Hazards to Patients Spelled Out in Pictures

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.

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August 24, 2011

"What's It Worth?" -- the Impossible but Necessary Calculus of Suffering in Medical Malpractice Suits

When a previously healthy unborn 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, even when no malpractice has occurred and there is no one to blame but fate. A recent letter writer in the New York Times 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.

On top of the hurt of losing a baby is the pain of being let down by health care providers whom the patient has trusted with her own health and the health of her baby. Many patients need therapy to get past the sense of betrayal they feel about their doctors and nurses.

Another issue in stillbirth malpractice is the desire to see that this kind of problem doesn't happen to other patients. Our firm worked on a recent case on behalf of a couple in northern Virginia. The core issue was the hospital's failure to adequately staff its labor and delivery unit, leading the nurse who was supposed to be working one-on-one with our mother to over-extend herself with other patients. You can read more about this case on our firm's website, at this link.

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August 15, 2011

State Medical Boards Are Letting Patients Down

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).

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July 22, 2011

Malpractice Insurance Companies Fight Over Every Dollar

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.

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July 22, 2011

Malpractice in the Operating Room: Who Is Responsible?

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.

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July 12, 2011

Testing for Life-Saving Communications Skills in Young Doctors

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.

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July 10, 2011

Study Examines High Percentage of Dropped Medical Malpractice Claims

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.

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June 27, 2011

The Too-Slow Evolution of Electronic Medical Records

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.

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June 26, 2011

Finally, the True Story of "Tort Reform" on HBO

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.

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June 14, 2011

Tort reform won’t address huge regional disparities in malpractice insurance fees

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.

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June 13, 2011

Georgia physicians must reveal if they don't have malpractice insurance

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

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May 30, 2011

Physician learns about hospital errors the hard way

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.

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May 25, 2011

Malpractice lawsuits are down while injuries are up

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.

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May 17, 2011

Doctor Superiority Is Dangerous to Patient Health

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.

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May 5, 2011

Laser Spine Surgery: Promises Too Good to Be True

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.

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May 2, 2011

New York creates fund for infants with neurologic damage due to medical errors

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

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April 29, 2011

Plugging the "Black Hole" in Medical Licensing Boards

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

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

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

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

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

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


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

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

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

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

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

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

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April 28, 2011

Two malpractice verdicts in two days in Pennsylvania town

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

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

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

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

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

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

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April 18, 2011

Philadelphia physicians failed to report dangerous peer

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

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

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

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

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

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

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

Source: Associated Press

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April 13, 2011

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

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

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

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

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

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

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

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

Source: Manchester Union Leader

You can read the complete Union Leader article here.

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April 12, 2011

Government Gets Serious about Patient Safety

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

The official government announcement with details is here.

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April 5, 2011

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

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

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

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

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

Source: Salem Statesman Journal

You can read the draft legislation here.

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April 4, 2011

Savings from malpractice reform are a myth, study shows

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

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

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

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

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

The AIR study also found that:

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

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

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

Source: Americans for Insurance Reform

The complete study can be found here.

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March 28, 2011

States fail to discipline rogue doctors whose own hospitals find them guilty of serial malpractice

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.

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March 24, 2011

Time cushion sought in Nevada malpractice cases

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

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March 23, 2011

“Alarm fatigue” endangers hospital patients

“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

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March 19, 2011

George Orwell Comes to Washington: The "Protect Patients Now" Lobbying Group

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.

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March 16, 2011

'Apology' legislation could inhibit medical malpractice suits

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

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March 10, 2011

Hospital’s comprehensive obstetrics program cuts malpractice claims by 99%

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

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

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March 8, 2011

The Coming Cancer Epidemic from Overuse of CT Scans

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.

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February 24, 2011

Maryland's Hospital Infection Effort Includes Financial Penalties

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.

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February 23, 2011

Arizona bill would shield medical students from malpractice lawsuits

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

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February 19, 2011

Medical Malpractice in Breast Biopsies

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.”

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February 8, 2011

Physicians wouldn’t order fewer tests under malpractice reform, study finds

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.

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February 3, 2011

Hospitals Ban Childbirth Videos for Fear of Malpractice Lawsuits

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.

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January 29, 2011

Malpractice Victims Respond to Myth of "Frivolous Lawsuits"

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.


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

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January 27, 2011

Jury awards $250,000 for erroneous cutting of hepatic duct

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.

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January 18, 2011

Patients ask judge to bar equipment maker from selling to back surgeon

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

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January 18, 2011

"Awake" Liposuction: Malpractice Tragedy Just Waiting to Happen

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.

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January 12, 2011

Couple challenges West Virginia malpractice award caps

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

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January 11, 2011

Vancouver pain clinic accused of medical malpractice for excessive opiate prescribing

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

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January 10, 2011

Surgeons' Sleep Deprivation and Patient Safety

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.

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January 7, 2011

One hospital: Three wrong-site surgeries in four months

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

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

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January 6, 2011

The "Defensive Medicine" Fraud

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.

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December 30, 2010

State Licensing Boards Fail to Protect the Public from Dangerous Health Care Providers

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.

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December 29, 2010

Mistrial ruled after physician accused of malpractice treats juror in court

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

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December 29, 2010

Radiation Therapy Malpractice: A Deadly Combination of Errors

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.

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December 28, 2010

Oregon appeals court limits comparative fault defense in malpractice suits

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.

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December 26, 2010

Texas tort “reform” immunizes ER docs against most malpractice claims

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

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December 22, 2010

Why Malpractice Still Hurts and Kills So Many Patients

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.

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December 17, 2010

New Study Finds Doctors' Fear of Lawsuits Is Often Irrational and Misplaced

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.

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December 15, 2010

Louisiana appeals court rejects malpractice cap in tragic case of child cancer victim

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.

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December 13, 2010

Error Rates in Medicine Continue High, but Lawsuits Are Down

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.

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December 7, 2010

Virginia cap on malpractice awards to increase starting in 2012

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.

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December 6, 2010

Another Perspective on the Cardiac Malpractice Crisis in Maryland

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.

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December 6, 2010

Baltimore Malpractice Cases Raise Broad Questions about Heart Stents

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.

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December 5, 2010

Critical reception for study claiming malpractice laws chase docs from Illinois

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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December 2, 2010

Malpractice Victims Speak Out Against Balancing Fed Budget on Their Backs

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:

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


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.

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November 26, 2010

Louisiana malpractice fund may not cover claims against neurosurgeon

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

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November 25, 2010

Malpractice and preventable harm still common in hospitals, new study finds

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.

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November 17, 2010

Wrong operation teaches surgeon the value of pre-procedure protocols

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.

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November 17, 2010

Malpractice and other adverse events affect one in seven Medicare patients

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.

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November 11, 2010

Rampant Malpractice and Safety Hazards Found in Kidney Dialysis Centers

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.

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November 10, 2010

Maryland Hospital Pays Feds in Cardiac Malpractice Scandal

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.

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November 10, 2010

Fatigue Wears at Doctors' Work Performance Too

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.

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November 4, 2010

Hospital Malpractice: Saying They're Sorry and Showing They Mean It

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.

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November 2, 2010

Medical malpractice looms large in Illinois Supreme Court judge's retention campaign

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.

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November 1, 2010

Surgeon Leaves Trail of Malpractice Victims from Oregon to Australia

"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.

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October 27, 2010

Chamber of Commerce: Lawsuits Are for Us, Not for Regular People

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

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

• 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

• 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.

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October 26, 2010

Fewer malpractice claims are being brought against hospitals

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."


You'll find the complete Zurich report here.

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October 15, 2010

Malpractice Questions Raised in Kansas High School Football Player's Leg Amputation

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.

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October 5, 2010

Open and Honest: New York Hospitals Test Malpractice Pilot Program

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

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September 30, 2010

Some good resources for patient safety advocates

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.

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September 15, 2010

Detailed heart surgery ratings now available

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.

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August 31, 2010

Texas Nurses Vindicated in Fight for Patient Safety -- Almost

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.

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August 30, 2010

Colon Cancer: The Best, Safest Way to Get Checked Out -- and to Prevent Malpractice

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.

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August 29, 2010

Pediatric Malpractice: Real-Life Testimony

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?

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August 27, 2010

The Price Tag of Medical Errors: $19.5 Billion per Year in the U.S.

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.

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August 18, 2010

Patient advocates dispute AMA conclusions on malpractice study

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.

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August 17, 2010

Patients sue less often when hospitals honestly admit errors

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.

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August 1, 2010

Radiation Overdoses and Regulatory Ineptness

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.

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July 20, 2010

Malpractice in Over-Diagnosis of Breast Cancer

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