DC Medical Malpractice & Patient Safety Blog

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.

Kathleen Sharp tells a good, if scary, story. In “Blood Feud: The Man Who Blew the Whistle on One of the Deadliest Prescription Drugs Ever,” she describes how two Big Pharma companies conspired to develop and market an anti-anemia drug despite evidence of devastating side effects.

In a recent op-ed in the New York Times, she argues that scarily rampant fraud in health care is partly the fault of the feds.

The Obama administration announced plans to cut $320 billion over 10 years from the projected growth of Medicare and Medicaid by raising premiums and deductibles, lowering payments to providers and requiring recipients of home health care to make co-payments.

But, Sharp asks, what if instead of charging consumers more and eliminating services, the focus was on diminishing the estimated $100 billion that’s lost every year from these programs in the form of fraud? And the additional 150 billion fraudulent dollars collected in the rest of the health-care industry?

Here’s how taxpayers are defrauded:

• hospital chains buy drugs at steep discounts, then bill Medicare the retail cost;


• doctors bill for procedures never performed and drugs they receive free from pharmaceutical companies;


• pharmaceutical companies promote drugs for uses not approved by the FDA;


• laboratories pay kickbacks and/or offer discounts to doctors and hospitals that refer patients.

Individual cases of fraud would have more muscle, Sharp says, if the Justice Department moved front and center, rather than allowing individual state attorneys general to prosecute them. Although chronically understaffed, the department had more than 1,300 whistle-blower cases under investigation in the beginning of 2011; can anyone but the most dogged reporter track their progress? Two years ago, an additional $198 million was appropriated to fight health-care fraud, and where did that go?

“The only way to tell if taxpayers are getting their money’s worth of farud-fughting,” Sharp writes, “is for the Department of Justice to routinely publish, among other statistics on corporate fraud, a breakdown of the number of cases it opens and the number originating from whistle-blowers.”

So how would a more actuarial accounting of federal investigations boost successful prosecutions and fight fraud? The $2.5 million recovered in health-care fraud cases in 2010 is peanuts, Sharp says, because even if cases are settled, Big Pharma writes it off as a cost of doing business: If it costs $1 million to sell $10 million in drugs, that’s a good return.

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

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.

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.

Nurses are the front-line protectors of patient safety in hospitals, nursing homes and anywhere patients are treated. So to avoid patients being hurt by medical malpractice, it's important to protect nurses from being fired if they speak up when they see dangerous care. The Maryland Court of Appeals has just recognized this important principle of public policy in a decision reinstating a nurse's wrongful termination lawsuit against Montgomery Hospice Inc.

The case of the nurse, Susan Lark, was thrown out by a trial judge in Montgomery County, Maryland, because Ms. Lark had only complained to her supervisor about the dangerous practices she saw at the hospice. The trial judge said that to be protected by Maryland's health care whistleblower statute, Ms. Lark should have also complained to an outside agency like the State Board of Nursing.

The Court of Appeals, Maryland's highest court, said the trial judge was wrong. As long as the employee has reported in writing the dangerous practices to a supervisor or administrator at her workplace, that employee is protected from being fired.

Susan Lark's lawsuit contended she was discharged for making complaints about serious errors in handling narcotic drugs, such as giving narcotic "starter packets" to numerous patients, including children, without a written doctor's order.

You can read the Maryland court's decision on its website by clicking here.

In other nurse whistleblower news: A lawsuit on behalf of two nurses in Winkler County, Texas, who were fired for reporting a dangerous doctor to the state medical board, is proceeding. The nurses were vindicated in criminal court earlier this year. Now their case against the hospital that fired them and the authorities who wrongly prosecuted them criminally is set for trial in November 2010. Read more on the Texas Nurses Association website.