Malpractice

flying cadeuciiThe Dallas/Fort Worth Healthcare Daily ran a fascinating excerpt from the Steve Jacob’s book So Long, Marcus Welby, M.D.* The excerpt contained some very interesting assertions and statistics. For example:

  • Consultant PwC, relying on that Congressional Budget Office (CBO) report, estimated that malpractice insurance and defensive medicine accounted for 10 percent of total health-care costs. A 2010 Health Affairs article more conservatively pegged those costs at 2.4 percent of healthcare spending.
  • In a 2010 survey, U.S. orthopedic surgeons bluntly admitted that about 30 percent of tests and referrals were medically unnecessary and done to reduce physician vulnerability to lawsuits.
  • A 2011 analysis by the American Medical Association found that the average amount to defend a lawsuit in 2010 was $47,158, compared with $28,981 in 2001. The average cost to pay a medical liability claim—whether it was a settlement, jury award or some other disposition—was $331,947, compared with $297,682 in 2001.
  • Doctors spend significant time fighting lawsuits, regardless of outcome. The average litigated claim lingered for 25 months. Doctors spent 20 months defending cases that were ultimately dismissed, while claims going to trial took 39 months. Doctors who were victorious in court spent an average of 44 months in litigation.
  • A study in The New England Journal of Medicine estimated that by age 65 about 75 percent of physicians in low-risk specialties have been the target of at least one lawsuit, compared with about 99 percent of those in high-risk specialties.
  • According to Brian Atchinson, president of the Physician Insurers Association of America (PIAA), 70 percent of legal claims do not result in payments to patients, and physician defendants prevail 80 percent of time in claims resolved by verdict. Continue reading “A Culture of Overtreatment”
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Jaan SidorovFor more than a decade, a running joke among electronic health (EHR) record skeptics has been that its clunky “decision support” functions, defined as the on-screen provision of clinical knowledge and patient information that helps physicians enhance patient care , is condemned to always remain an innovation of the future.  Yet, while published studies like this continue to fuel doubt about the prime-time readiness of this EHR-based technology, a growing body of clinical research suggests that the science is getting better.  Jonathan Cohn, writing in The Atlantic, points out that IBM’s Watson has achieved enough of a level of sophistication to warrant clinical trials at prestigious institutions such as the Cleveland Clinic and Memorial Sloan-Kettering.

Unfortunately, there is an under-recognized threat to EHR-based decision support: the dysfunctional U.S. tort system.

The experience of Google’s “driverless car” may be instructive. According to National Public Radio, years of testing is putting this technology within reach of consumers.  Thanks to the prospect of fewer accidents, better transportation options for the disabled, reduced traffic congestion and lower hydrocarbon consumption, some states have responded by attempting to support this promising technology with “enabling legislation.”

Unfortunately, the legislation in some state jurisdictions is being hindered by the prospect of complicated lawsuits.  As physicians know all too well, when a single mishap lands in court, adroit attorneys can use the legal doctrine of joint and several liability  to tap multiple deep pockets to increase the potential size of the award. In the case of driverless cars – in which the owner is more of a passenger than a driver – the accidents that are bound to happen could metastasize upstream from the owner and tie up the driverless automobile manufacturers and all of their business partners in time-consuming and expensive litigation.

Ditto the EHR’s decision support technology. Even with Watson’s intelligence, medicine will remain imperfect and allegations of medical mistakes will be inevitable. When lawsuits arise, the defendant medical providers will likely argue that their judgment was clouded by the very technology that otherwise helped them better serve their other patients. Personal injury lawyers are unlikely to let that theory of liability go unused. Tapping the same kind of lucrative joint-and-several legal theories that have served them so well in decades of standard malpractice litigation, they’ll undoubtedly be happy to name the EHR manufacturer and all of its decision-support business partners in these lawsuits.

Continue reading “Coming To a Decision On Decision-Support Technology”

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Unecessary Roughness

Concussions are the talk of sports these days.  Ex-NFLers are filing suits against the league saying it is clear that the league knew about the dangers of head trauma, knew them a long time ago but, did nothing.  Parents in the U.S. and Canada are starting to pull their elementary and junior high kids out of tackle football and hockey leagues that permit body-checking.  Even the President has talked about his own experience with concussions (mild he was quick to note!) and convened a high level summit at the White House of all the movers and shakers in the field to discuss the problem.

The NFL is so freaked out about the threat concussions pose to the long-term profitability of the sport that they are trying to calm worried moms with ad campaigns that tout the certification of coaches who teach the ‘safe’ way to play (good luck with that).  And arguments are breaking out about whether there is too much emphasis on football and men’s hockey when wrestling, lacrosse, soccer, martial arts, and women’s basketball have their own problems with keeping player’s heads intact (kind of an odd form of anti-discrimination).  Some sports experts are even bemoaning the fact that the emerging obsession with preventing, diagnosing and treating concussions is diverting too much attention and resources away from other serious health issues that athletes face including bullying, eating disorders, orthopedic injuries and the abuse of legal and illegal drugs.

Continue reading “Head Games”

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Walgreens has been ordered to pay $1.44 million in a lawsuit brought against it for a violation of the Health Insurance Portability and Accountability Act (HIPAA) by one of its pharmacist employees.  While this may not sound like a big deal, this case represents only the second time HIPAA has been successfully used this way in court and it could have serious repercussions on the health care system.

The story begins when a Walgreens pharmacist looked up the medical records of her husband’s ex-girlfriend, whom she suspected gave her husband an STD. Apparently she found what she was looking for and told her husband about it, who then sent a text message to his ex and informed her that he knew all about her results.

The ex did not appreciate this, and told the Walgreens pharmacy about what happened.  At some point after that, the pharmacist accessed the ex’s medical records again, and eventually the ex filed a lawsuit against Walgreens, claiming it was responsible for the HIPAA violation because it failed to properly educate and supervise its employee.

Walgreens argued what the pharmacist did fell outside of her job duties and therefore it was not responsible for the breach.  The judge and jury disagreed, and the jury decided Walgreens was responsible for 80% of the damages owed the plaintiff (so I guess that means the total judgement for the plaintiff was $1.8 million). Walgreens has already said it will appeal.

As I said above, it may not sound like a big deal, but it potentially is.

Although HIPAA has a mechanism by which health care providers can be subject to federal civil and criminal penalties for violations, conventional legal wisdom says HIPAA does not allow for a “private cause of action”, meaning a private individual cannot sue a health care provider for breaching their medical privacy.

Or at least that’s how HIPAA used to be interpreted, before Neal Eggeson, the enterprising young attorney who successfully argued the only two cases in which HIPAA has been used in this fashion, came along.

Continue reading “A New Way to Sue Health Care Professionals Using HIPAA?”

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One of US President Barack Obama’s key health advisers has just published a review in the aftermath of the Mid Staffordshire hospital scandal. Don Berwick’s review is both thoughtful and reflective but one of his key recommendations – to create criminal sanctions against health staff – will not make the NHS safer for patients.

Many patients, particularly elderly ones, suffered unnecessary indignities and avoidable harm at Mid Staffordshire.

The Francis report into the crisis concluded that patients were routinely neglected by a health trust more preoccupied with cutting costs and meeting targets rather than its responsibility to provide safe care. Patients’ calls for help to use the bathroom were ignored and some were left lying in soiled sheeting or sitting on commodes for hours. Events and failings there will probably go down in history as the blackest and bleakest moment for the NHS.

When the report was published in February, the government committed to appointing a advisory group of patients to consider the various accounts of what happened and the recommendations made by Robert Francis and others. The idea was that they would distill for the government and the NHS what lessons should be learned and what changes needed to be made.

Don Berwick, who worked on the long fought for Obamacare provisions in the US, is director and co-founder of the Institute for Healthcare Improvement in Boston. He was called in by the government to reflect on the Francis report and on patient safety.

Berwick’s review makes ten recommendations including that sufficient staff are available to meet the NHS’s needs now and in the future – staff should be well-supported and able to ensure safe care at all times; quality and safety sciences and practices should be a part of the initial preparation and lifelong education of all health care professionals, including managers and executives; and leaders should create and support learning and subsequently change, at scale, within the NHS.

But most controversial is his final recommendation:

We support responsive regulation of organizations, with a hierarchy of responses. Recourse to criminal sanctions should be extremely rare, and should function primarily as a deterrent to willful or reckless neglect or mistreatment.

Berwick proposes the government creates a new general offence of “willful or reckless neglect”, applicable both to organisations and individuals. Organizational sanctions might involve removing leaders and disqualifying them from future leadership roles, public reprimand of the organization and, in extreme cases, financial sanctions – but only where that will not compromise patient care.

Continue reading “Criminal Charges for Providers Won’t Fix the NHS, Dr. Berwick”

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Similar to many other states, Oklahoma has a statute prescribing that suits alleging medical malpractice must be verified by an affidavit from a qualified medical expert. Suits unaccompanied by a proper affidavit must be stricken out. This statute is part of what I call – and commend – as a procedural tort reform: it allows courts to get rid of unmeritorious suits against doctors and hospitals early in the process.

The statute, however, recently became a dead letter after being pronounced unconstitutional by Oklahoma’s Supreme Court for the second time in a row (Wall v. Marouk, — P.3d —-, 2013 WL 2407160 (Okla. 2013)). Evidently, this Court does not view merit affidavits as favorably as I do.  Let’s see why.

The previous version of Oklahoma’s affidavit-of-merit requirement, limited to medical malpractice suits, was found unconstitutional as a “special law” and “monetary barrier to the access to courts” (Zeier v. Zimmer, Inc., 152 P. 3d 861 (Okla. 2006)). The current version extended to all suits asserting professional negligence, which makes it less “special.” This version was nonetheless challenged by a patient whose suit against a physician was not accompanied by a merit affidavit from a qualified expert.

The plaintiff alleged that the physician caused him permanent injury during surgery (loss of feeling in right fingers) by negligently cutting the median nerve in his right arm.  The trial court ruled that the plaintiff must submit the required affidavit within twenty days or face dismissal.

The Oklahoma Supreme Court voided this requirement for being as unconstitutional as the previous one.  The Court ruled that the requirement arbitrarily separates suits that allege professional negligence from other civil actions, in which plaintiffs do not bear the costly burden of obtaining expert review prior to proceeding. This disparate treatment, explained the Court, discriminates against victims of professional misconduct.

Continue reading “The Merit of Merit Affidavits in Malpractice Lawsuits”

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Connecticut’s Appellate Court recently ruled that hospitals and doctors can successfully sue their patients’ attorneys for filing a vexatious malpractice suit. The Court also ruled that the trial judge’s decision that the patient’s suit was vexatious will often create an estoppel against the attorney. The attorney will consequently be precluded from contesting that decision. The only issue will then be the amount of damages—double or treble—that the attorney and her firm will be obligated to pay the hospital or the doctor.  See Charlotte Hungerford Hospital v. Creed — A.3d —-, 2013 WL 3378824 (Conn. App. 2013).

Whether this is going to be a trend in our medical malpractice law remains to be seen. In the meantime, I provide the details of that important decision.

Attorneys representing the family of a psychiatric patient, who committed suicide, filed a malpractice suit against a hospital and some of its doctors. They alleged that the defendants prematurely discharged the patient from the hospital’s emergency room while she was still experiencing a severe mental health crisis. Allegedly, this untreated crisis was the cause of the suicide that the patient committed four days later.

The suit was supported by an opinion letter from a registered nurse (!!). Under Connecticut law, as in many other states, the supporting opinion letter must come from “a similar health care provider.” The attorneys thus should have retained a psychiatrist, rather than a nurse, as an expert supporting the suit. Their failure to do so rendered the suit defective and the trial judge properly struck it out.

Continue reading “A New Trend? Hospital Successfully Sues its Patient’s Attorneys for Filing a Vexatious Malpractice Suit”

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I am very fortunate to have never been sued. That is not necessarily because of my amazing ability as a physician. I always practiced in Veterans Affairs medical centers, where my status as a federal employee meant I would not get sued by my patients. I also had an incredibly appreciative patient population.

But I know that most of my physician peers have been sued, successfully or unsuccessfully, at least once in their careers. And I know that these lawsuits take an emotional toll upon them. To make matters worse, malpractice lawsuits have a nagging tendency to drag themselves out for months upon months. Consider this figure, from a study led by an economist at the RAND Corporation. It shows that malpractice claims related to temporary injuries take a median of a year to resolve, while those dealing with fatalities or permanent injuries take a median of 18 months.

Continue reading “Malpractice Claims Feel Endless Because…They Are.”

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In his new book, Unaccountable: What Hospitals Won’t Tell You and How Transparency Can Revolutionize Health Care, Johns Hopkins surgeon Marty Makary promises a “powerful, no-nonsense, nonpartisan prescription for reforming our broken health care system.” And he partly delivers, with an insider’s and relatively unvarnished view of many of the flaws in modern hospitals. Underlying these problems, he believes, is an utter lack of transparency, the sunshine that could disinfect the stink.

The thesis is important, the honesty is admirable, and the timing seems right. Yet I found the book disappointing, sometimes maddeningly so. My hopes were high, and my letdown was large. If your political leanings are like mine, think Obama and the first debate.

Makary hits the ground running, with the memorable tales of two surgeons he encountered during his training: the charming but utterly incompetent Dr. Westchester (known as HODAD, for “Hands of Death and Destruction”) and the misanthropic “Raptor,” a technical virtuoso who was a horse’s ass. Of course, all the clinicians at their hospital knew which of these doctors they would see if they needed surgery, but none of the patients did. (Of HODAD, Makary writes, “His patients absolutely worshipped him… They had no way of connecting their extended hospitalizations, excessive surgery time, or preventable complications with the bungling, amateurish, borderline malpractice moves we on the staff all witnessed.”)

This is compelling stuff, and through stories like these Makary introduces several themes that echo throughout the book:

1) There are lots of bad apples out there.

2) Patients have no way of knowing who these bad apples are.

3) Clinicians do know, but are too intimidated to speak up.

4) If patients simply had more data, particularly the results of patient safety culture surveys, things would get much better.

Continue reading ““Unaccountable” An Important, Courageous and Deeply Flawed Book”

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Medical malpractice in America remains a thorny and contentious issue, made no less so by its virtual exclusion from the Affordable Care Act (ACA, or Obamacare) governing healthcare reform in America.

Which is why I was glad to see the former head of President Obama’s Office of Management and Budget, Peter Orszag, now with the liberal Center for American Progress,  cite it as his second top priority for gaining control of our out-sized medical spending – an implicit criticism of its omission from Obamacare.

Although  speaking in the context of criticizing Rep. Paul Ryan’s (R-WI) plan to offer vouchers so Medicare enrollees could purchase private health insurance, his comments about the need to address malpractice reform are a departure from the liberal talking points on Obamacare. Here’s what he had to say…

Former Obama Budget Head Challenges Paul Ryan To Demonstrate How His Budget Would Lower Health Costs

“Rep. Paul Ryan’s (R-WI) proposals to control health care spending by slashing the federal government’s contribution to Medicare and Medicaid and shifting that spending on to future retirees or the states, has dominated Washington’s conversation about entitlement reform. But…a group of health care economists and former Obama administration officials laid out an alternative approach that could achieve health savings by encouraging providers to deliver care more efficiently…

“‘Mr. Ryan has had too much running room to go out with proposals that neither will reduce overall health care costs nor will help individual beneficiaries simply because there has not been enough of an alternative put forward by those who believe that we really need to focus on the incentives and information for providers…If I had to pick out two or three things to do immediately, I would pick the accelerated (trend) towards bundled payments and non fee-for-service payment…

Continue reading “Medical Malpractice – What Obamacare Misses”

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