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Tag: Malpractice

Could Artificial Intelligence Destroy Radiology by Litigation Claims?

We’ve all heard the big philosophical arguments and debate between rockstar entrepreneurs and genius academics – but have we stopped to think exactly how the AI revolution will play out on our own turf?

At RSNA this year I posed the same question to everyone I spoke to: What if radiology AI gets into the wrong hands? Judging by the way the crowds voted with their feet by packing out every lecture on AI, radiologists would certainly seem to be very aware of the looming seismic shift in the profession – but I wanted to know if anyone was considering the potential side effects, the unintended consequences of unleashing such a disruptive technology into the clinical realm?

While I’m very excited about the prospect and potential of algorithmic augmentation in radiological practice, I’m also a little nervous about more malevolent parties using it for predatory financial gains.

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The Return of the Angry Granny State

Texas should call itself The Granny State. That’s because it’s a nanny state in which the public officials who run the place have the values of a tea-totaling, Bible-thumping biddy who knows how God wants everyone to live and can’t resist telling them. No buying liquor on Sundays when people are supposed to be at church. No gambling ever. No whacky-weed for medicinal uses or recreation, even in the privacy of one’s home. No gay marriage, preferably no gays, and no transgender folk deciding which restrooms to use. And, of course, no sex, sex education, birth control, or abortions. Women should have sex only in marriage and then only to reproduce, and those who get pregnant must carry their babies to term, regardless of the consequences for themselves or anyone else.

These religion-inspired policies have served Texans poorly. The state’s maternal mortality rate nearly doubled in just two years after Texas cut its budget for family planning by two-thirds and eliminated funding for Planned Parenthood clinics. It’s now the worst in the developed world, not just in the US. Texas ranks 8th from the bottom in the frequency of STDs and has the 5th highest teen pregnancy rate too. Its 35 births per 1,000 girls aged 15-19 are nearly double the national average. Meanwhile, Colorado and other states have achieved miraculous reductions in teen pregnancy rates and abortion rates by providing young women with long-acting contraceptives, like implants and IUDs. If Texas is following God’s plan, then God’s plan is a bust.

Now Granny is once again sticking her nose where it doesn’t belong. Currently before the Texas legislature is Senate Bill 25, which would eliminate the wrongful birth cause of action that the Texas Supreme Court recognized four decades ago in Jacobs v. Theimer. The facts were as follows. While traveling, Dortha Jacobs became ill. Upon returning home, she consulted a physician, Dr. Louis Theimer, who discovered that she was newly pregnant. Fearing that the illness was rubella—also known as the German measles—Jacobs asked Dr. Theimer if there was reason for concern. Rubella can injure a gestating fetus severely. Dr. Theimer told her not to worry, but he did so without performing an available diagnostic test. In fact, the disease was rubella and the child “was born with defects of brain, speech, sight, hearing, kidneys, and urinary tract,” among others. The medical expenses were extraordinary.

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A Culture of Overtreatment

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…

Coming To a Decision On Decision-Support Technology

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.

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Head Games

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.

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A New Way to Sue Health Care Professionals Using HIPAA?

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.

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Criminal Charges for Providers Won’t Fix the NHS, Dr. Berwick

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.

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The Merit of Merit Affidavits in Malpractice Lawsuits

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.

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

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.

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Malpractice Claims Feel Endless Because…They Are.


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.

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