DC Medical Malpractice & Patient Safety Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

First, ask the doctor:

What is your detection rate of precancerous polyps?

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

The second question for the doctor:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The study also found that:

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

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

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

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

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

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

Source: Fierce Healthcare

To view the complete report, click here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Doctors repeatedly blame patients for the high rate of Cesarean sections in this country. As one claimed in today's New York Times letters column, parents demand "nothing short of a perfect outcome" from childbirth and sue when they don't get it.

The reality is quite different.

Here's what I wrote in a letter published in the same New York Times issue:

A fundamental patient safety issue is at the heart of our high C-section rate. The reason that hospitals must have staff “immediately available” for an emergency C-section is that when a mother’s uterus ruptures, the baby’s lifeline is cut off and brain damage begins in around 17 to 18 minutes, according to the best studies.

Rupture occurs in about 1 percent of vaginal birth after Caesarean (VBAC) attempts. That’s a high enough risk — with lifelong consequences to the child and his or her family — that only the reckless or the ill informed would tempt fate by trying delivery in a facility without an obstetrician immediately available to do an emergency C-section.

According to your article, hospitals complain of the risk of being sued for a bad outcome if they follow the old guideline of having the surgical team “readily available,” which allows calling in a team from outside the hospital, as opposed to “immediately available.”

We should not let semantics obscure safety. Instead of blaming lawsuits for the high C-section rate, the focus should be on hospitals that don’t want to invest the resources necessary to make VBAC safe for mothers and families.

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

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

What can patients do to protect themselves?

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

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

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

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

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

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

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

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

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

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

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

This has always struck me as a strange admission.

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

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

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

* Gerald wrote:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read more here.

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

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

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

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

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

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

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

Dr. Wachter writes:

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

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

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

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

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

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

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

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

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

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

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

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

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

Read more in the Albany Times Union here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read more comments on the Well blog here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Patient Safety And Sexism In Medicine

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read more from the nurses association here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So what does this have to do with judicial elections?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Time and again in U.S. health care, new technologies are hurried into wide use with little testing, scant training of their human operators, and lack of solid evidence that newer really is better. After the flush of optimism has faded, billions of dollars later, we learn how to judiciously use the new equipment, but only after patients have been hurt or killed by the rush to the new.

The latest example is the deployment of new radiation therapy machines on cancer patients with operators who are not properly trained or credentialed and equipment that has not been tested or calibrated. The New York Times' recent investigative series on the subject prompted one knowledgeable reader, Dr. Joseph Imperato, medical director of the Center for Advanced Radiation Medicine at Lake Forest (Ill.) Hospital. to write this:

To the Editor:

As a radiation oncologist practicing for 25 years, I believe that there is a crucial part of the story of radiation mishaps that has not been mentioned: the “nuclear arms race,” in which people want the newest technologies, without stopping to think about who is operating them.

In the past, academic medical centers were typically the first to obtain and use new technologies. The equipment would be thoroughly vetted and reported on in peer review articles before being accepted and used by the smaller community hospitals.

Now the reverse is true. Small community hospitals often far outpace academic medical centers. One example is the proliferation of proton centers run by for-profit companies. Often the staff has limited knowledge and experience with this extraordinarily complex equipment. And new technologies are often assumed by the public to be better, even though there is often little firm clinical data to support that.

As we struggle as a country to come to grips with health care costs, this is one area where there is great opportunity for savings. Clinical reviews can prevent the proliferation of needlessly expensive technology. What the public must come to grips with is that “new” is not automatically “better.”

See the Times' letters section for more.

In my book, "The Life You Save," I have several chapters that speak to this issue, particularly with new drugs. What patients need to understand is that whatever the technology, the early years of use are in essence a continuation of the testing phase. If you are comfortable with being a guinea pig, that's fine, but very often you can get better, safer care with the tried and true. And if the new technology looks enticing, go with an operator who has the most experience using it, because practice does make perfect.

Measured by results -- preventable deaths and injuries due to malpractice, medical errors, preventable infections, misdiagnosis and other events that shouldn't happen -- American health care has a lot of problems. Millions of patients are injured every year, and upwards of 200,000 patients die annually from preventable errors and hospital-acquired infections. The United States also lags far behind other developed countries in basic health outcome measures like life expectancy and infant death rates.

But when U.S. hospitals measure themselves with a different yardstick -- the "process" measures of how often certain important things get done for commonly treated diseases -- the results are astoundingly good. An annual report from the Joint Commission, the agency that inspects and accredits hospitals, finds steady improvement in the "process" quality measures that it looks at -- with most hospitals now performing in the 99% range on things like how often heart attack patients get standard treatments in the ER like aspirin and beta-blocker drugs.

The Joint Commission now measures 31 quality indicators. They cover the most common hospitalizable conditions: heart attack, heart failure (when the pump isn't pumping effectively), pneumonia, surgical care, and children's asthma. You can go to this website to look up information about a particular hospital.

The problems with the report are:

* Data is reported voluntarily by the hospitals, with no independent audit from anyone other than the Joint Commission. The Joint Commission says it's independent from the hospital industry but is often seen by critics as a cheerleader.

* Outcome measures -- deaths and injuries -- are not included in the report. Even infection rates, which could have required reports if Congress ever passes health care reform, are not yet reported.

Consumers Union has a Safe Patients Project. CU says it's high time for the U.S. health care industry to be required to report its results. Patient advocates like me agree wholeheartedly.

What can cancer patients do to protect themselves from malpractice in radiation therapy? This urgent question arises from a lengthy series of investigative reports in the New York Times. The articles exposed serious patient injuries that stem from therapists who are overwhelmed and inexperienced, lax regulation and indifference by hospital administrators.

A key part of the problem is that technological sophistication has outrun the ability of the humans running the radiation machines to monitor the safety of the radiation beams they train on patients' bodies.

Another issue is that no central agency is responsible for inspecting the machines and credentialing the people who run them. Depending on the type of radiation involved, the Food and Drug Administration, the Nuclear Regulatory Commission and various state health agencies could have jurisdiction. Or worse, each could claim that someone else has the jurisdiction, and the patient can slip through the cracks.

There is one simple way that patients can take some measure of self-protection. That is to make sure that the radiation therapy center treating you has significant experience, in years not months, with the specific machine being used on you. Too often, hospital administrators buy a fancy new machine, advertise it heavily in glossy brochures, but don't take the time to make sure the machine is properly calibrated and that the medical physicists who operate the machine are fully trained.

You should also ask if the machine treating you has been inspected recently by an independent agency. One federally funded inspection and testing service is the Radiological Physics Center, operated out of MD Anderson Hospital in Houston. It does inspections for any radiation center that wants to receive federal funding for clinical trials. The Center found in 2008 that nearly three in ten hospitals it inspected failed to accurately irradiate a test dummy using IMRT technology.

The Times also found rampant problems with fake credentials among medical physicists, who are in charge of making sure patients get the right dose of radiation. The American Board of Radiology certifies medical physicists in one of three sub-specialties. You can check if a physicist is certified at the umbrella website for all medical board certifications, the American Board of Medical Specialties. Click here to go to the login page to search for a medical physicist's certification. The same page will let you search for whether a doctor is board-certified in any of the ABMS specialties or sub-specialties.

Also, the American Board of Medical Physics runs some certification programs. Its website has lists of diplomates but lacks any searchable database of qualified physicists. So the ABMS website is a better choice.

I recommend that patients ask questions to find out the qualifications of the persons running your radiation treatment program. If they lack certification, why take a chance?

I discuss the certification issue in detail in my book, "The Life You Save: Nine Steps to Finding the Best Medical Care -- and Avoiding the Worst." Many of the most egregious cases of malpractice that I have prosecuted for victims' families have involved doctors who lacked basic board certifications. Click here for more information on the kinds of malpractice cases we work on.

More evidence of the urgent need for "checklists" to protect patient safety in complex medical treatments comes with a long article in the New York Times about terrible injuries from malpractice episodes during radiation therapy. Yet readers have to dive deep into the article to find this key point.

Scott Jerome-Parks suffered terrible radiation burns to his neck, and lingered for two years in agony before dying, because he received a seven-fold overdose in the radiation that was supposed to treat his tongue cancer, on three separate occasions. Why did it happen? The hospital, St. Vincent's in New York, blamed a confluence of tragic coincidences. But I reached a different conclusion, as I wrote in a blog post to the Times' "Well" blog:

Deep in this tragic article is the following paragraph that exposes the reforms that are needed before medical care can become safe for all patients:

"It was customary — though not mandatory — that the physicist would run a test before the first treatment to make sure that the computer had been programmed correctly. Yet that was not done until after the third overdose."

So there you have it. If the physicist had been required to run the test -- better yet, if the equipment had been set so that it wouldn't work until the final test had been run -- Scott Jerome-Parks would not have suffered the hideous injuries so eloquently described in the article.

Medicine needs to adopt standard and mandatory - not merely "customary" -- checklist routines to ensure the safety of patients. This is the thesis of Atul Gawande's new book, "The Checklist Manifesto," and I have a chapter on how patients can enforce checklist protocols before surgery in my own book, "The Life You Save: Nine Steps to Finding the Best Medical Care -- and Avoiding the Worst."

Many medical commenters on the New York Times "Well" blog defensively say, "We're only human," to excuse these kinds of errors. Yes! That's exactly the point of the checklist. It recognizes that we're all only human and that when we are deploying potentially deadly treatments, a final check and double-check is needed, every time, before pressing the button.

The Times also found that the manufacturer of the software that ran the linear accelerator, which delivered the radiation, did not have in place until after the injury a simple "fail-safe" mechanism to prevent the kind of error that occurred.

The entire article by the brilliant reporter, Walt Bogdanich, is worth reading. Here is the Times' own summary of the article:

The Times found that while this new technology allows doctors to more accurately attack tumors and reduce certain mistakes, its complexity has created new avenues for error — through software flaws, faulty programming, poor safety procedures or inadequate staffing and training. When those errors occur, they can be crippling.

I also recommend that readers interested in patient safety issues go through some of the NYT "Well" blog posts on this article.

An effort to overturn Maryland's unfair malpractice damages "cap" has been scotched by Maryland's highest court. The case involved Richard Semsker, a deceased Rockville attorney whose family was represented in a wrongful death lawsuit by Patrick Malone & Associates. The Maryland Court of Appeals has ruled that the jury's verdict must be reduced to account for the damages ceiling imposed by the state legislature.

An article in the Montgomery County Gazette discusses the decision and quotes the Semskers' attorney, Patrick Malone, who said:

"We had the entire Maryland medical establishment against us. While we have the better of the issue on the moral ground — damage caps are a terrible imposition upon victims of proven malpractice — on the other hand the establishment was against us on that."

While little understood by the general public, which often responds to vaguely worded public opinion polls by favoring some forms of "tort reform," including damage "caps," these arbitrary limits on damage awards impose a tax on the most severely injured victims of provable malpractice. Victims who have lesser injuries are not affected by the damage caps.

In the Semsker case, for example, no one challenged as unreasonable the jury's decision to pay Mr. Semsker's widow $1 million for loss of the husband to whom she had been married 21 years, and to pay each of his twin teenaged daughters $500,000 for the loss of their father. The jury heard evidence about how close the Semsker family was and how devoted Mr. Semsker was to his daughters and wife. The jury also ruled that the defendants should have to pay $1 million for Mr. Semsker's suffering in the last year of his life, which included multiple surgeries, radiation, and highly toxic chemotherapy -- all to treat a skin cancer that, according to the undisputed testimony, would have been 100% curable if his dermatologists had caught it in time.

But while the jury acted reasonably based on the evidence, the statutory damage cap required a rollback of the verdict for these "non-economic" damages from a total of $3 million to a total of $812,500. That is the "one size fits all" number that the legislature came up with in 2005 as a limit on all non-economic damages in all wrongful death lawsuits for malpractice.

Even worse, the damage cap discriminates against malpractice victims specifically, as compared to victims of other types of injuries. If the same physicians had run over Mr. Semsker with their car, that would have been a non-malpractice case and the damage cap would have been around $1.6 million instead of $812,500.

The Semsker case is also discussed in Mr. Malone's book, The Life You Save: Nine Steps to Finding the Best Medical Care -- and Avoiding the Worst, an excerpt of which can be read here.

The Semskers had persuaded the judge who presided over the trial that the damage cap statute was written in such a way that its language excluded their case from imposition of the cap. But this week, the Court of Appeals reversed that decision and imposed the cap.