PHYSICIANS: A “black box” for docs by John Irvine

OB-GYN Dr. Gil Mileikowsky was forced from his position at Encino Medical Center in Los Angeles after he testified in a 2003 case involving a medical mistake at the hospital. A day after confirming in court that doctors in his department mistakenly removed both of a woman’s fallopian tubes in error, he found himself being escorted from the building by security on the orders of administrators. Tenet Health Systems, the company that operates the hospital, likely rues that day.

Enraged by his treatment,  Dr. Mileikowsky went to war, becoming an outspoken advocate of changes to the federal whistle blower laws
protecting doctors, arguing that administrators use dirty tricks to destroy
the reputations of doctors who speak out when mistakes are made — labeling them as "disruptive" and organizing "sham peer review" proceedings.  His passionate arguments won the support of the Association of American Physicians and Surgeons. He would be represented in court  by star attorney Alan Derschowitz. A California court threw out Mileikowsky’s subsequent case against Tenet.  Earlier this month, however, that decision was reversed, in a ruling that likely foreshadows serious problems ahead for hospital operators who want to avoid scrutiny of safety conditions at their facilities.  Last week, Dr. Mileikowsky testified to a hearing held by the Small Business Administration on the need for added protections in the system. His solution: a metaphorical "black box" at hospitals and an "FAA" to monitor safety conditions in the healthcare system. In this YouTube segment he talks about the issues involved and the current state of safety reporting. — John Irvine

UPDATE: You can learn more about Dr. Mileikowsky’s campaign against medical errors at the web site of the organization he founded, the Alliance for Patient Safety.

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4 replies »

  1. It is unfortunate that we largely view medical mistakes as an opportunity to blame instead of an opportunity to learn. Unless we embrace a more systems-oriented mindset (wherein physicians and their patients recognize errors are at least in part the product of a system breakdown), doctors will continue to be fearful of admitting mistakes when they occur, or owning up to near-misses that could help prevent future errors.
    EMR Software Guy

  2. John Irvine’s note is most welcome. We represented Dr. Mileikowsky; Charly Kagay of this office handled the appeal. See
    Dr. Mileikowsky’s Black Box idea is a system of anonymous and objective review. See
    Presently “Peer Review” as discipline is all too often biased. These biases go largely uncorrected because of the immunity provisions of the Health Care Quality Improvement Act, which has not improved the quality of health care.
    There is a sword available, by a simple amendment, to untie this Gordian Knot: My suggestion, which follows, as to the best and quickest way to fix HCQIA’s immunity problem, is:
    “The Health Care Quality Improvement Act, 42 U.S.C. ยง 11112(b)(3) provides the loophole [retaliating] hospitals and their lawyers work their way through: “A professional review body’s failure to meet the [peer review] conditions described in this subsection shall not, in itself, constitute failure to meet the standards of subsection (a)(3) of this section.” [providing wide immunity] ”
    “The way to fix the problem this causes is to amend this section:”
    “”A professional review body’s failure to meet the conditions described in this subsection shall, in itself, constitute failure to meet the standards of subsection (a)(3) of this section.” ”
    “That is, take out the “not.” A hospital that that runs a kangaroo court should not get to take advantage of its own wrongdoing. Each and every National Practitioner Data Bank report that results from a peer review body that fails to meet the specified conditions should not be privileged, should be enjoin-able in equity in state or federal court, and should give rise to a damages action including attorneys’ fees. Each and every kangaroo court “peer review” should not enjoy immunity from any damages causes of action.”
    “All of this may well drive some physicians out of the business of judging other physicians, as do many other factors. The hospitals have pretty much taken that over anyway, once the process gets out of departmental whitewashes and into “discipline.” If it’s going to be a legal rather than a medical process, it must be fair, afford due process of law and implement adequate legal remedies for those who are injured by wrongdoing, including attorneys’ fees for intentionally or negligently injured or wronged physicians.”
    Dr. Mileikowsky’s difficulties started in the year 2000. The present appeal victory involved HCA. Tenet and HCA sometimes joint-venture.
    Dr. Mileikowski’s SBA testimony before the Small Business Administration 14 June 2007 is available at:
    Appendix to testimony (includes Horty-Springer materials):
    > YouTube videos of Dr.Mileikowsky’s SBA testimony 14 June 2007:
    > Part 1- “Killing the Messenger”
    > Part 2- “How to get rid of a “Disruptive” physician”
    > Part 3- “FEAR -Code of silence”
    > Part 4- “Suggested Remedies”
    > Part 5- “American solution- the black box”
    Alan Dershowitz represented a coalition of Amicus Curiae in an earlier proceeding in the Supreme Court.
    We can be reached at blee@slksf.com.
    Respectfully, Bart Lee, member California Bar (57592) and American Health Lawyers Assn.##

  3. This is the same Tenet that operated Redding Medical Center, where Dr’s Moon, Realyvasquez, and others were doing invasive procedures and open heart surgery on patients who didn’t need them…in order to drive revenue. There was little or no peer review or oversight, even though RMC was performing angioplasty and surgery at rates many times the national average.
    And the same Tenet that was found to be involuntarily admitting psych patients a decade earlier…in order to drive revenue.
    The whole affair is detailed in Stephen Klaidman’s book “Coronary: A True Story of Medicine Gone Awry”: http://www.amazon.com/Coronary-True-Story-Medicine-Gone/dp/0743267540

  4. It is really disappointing how the medical establishment acts as if doctors are superhuman– 36 hour shifts, inability to make mistakes, using licensing as a shield to competition….
    In this case, as any process improvement guru (incl. Brent James) would believe, every mistake is a treasure. Analyzing and fixing the system for every significant failure makes the system more robust. Denying that it happened makes it more likely it will happen again.
    These types of decisions reflect organizations who forget that their role is service, not omniscience.