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Texas Lawsuit Damage Caps Must Cause Cancer

Never put it past a plaintiff’s attorney to twist an argument to the benefit of other plaintiff attorneys. The last post I wrote was about (former) neurosurgeon Christopher Duntsch, who was recently convicted of a first degree felony related to his medically negligent treatment of an elderly patient’s back pain. There were extenuating circumstances in this case. Dr. Duntsch had established a pattern of egregious medical mistakes. When patients developed complications after surgery, Dr. Duntsch also had apparently tried to cover up his mistakes instead of seeking help. Then there was an e-mail that Dr. Duntsch purportedly sent to a friend in which Dr. Duntsch referred to himself as a “stone cold killer.” Earlier this week, Dr. Duntsch was sentenced to life in prison for his actions. Dr. Duntsch’s case is an outlier. In general, I have a lot of concerns about charging physicians criminally for the medical care they provide. In the past, I’ve discussed how increasing liability for medical malpractice and “suing our way to better health care” just doesn’t work. Increasing the risk of practicing medicine has a few effects. First of all, it decreases availability of medical care. Physicians who don’t like risk will leave risky specialties or will leave risky states. Here’s an article about how a Florida (which is a high-risk state for medical practice) legislator was whining because there was a physician shortage. Think about it. Suppose that several of the houses in your neighborhood were purchased by families who stay up late at night using drugs, who have shootouts in the streets, and who try to get kids in the neighborhood to join gangs. How would you respond to that increased risk to your family? Second, increasing risk in medicine will increase the practice of defensive medicine. Physicians who are risk adverse will engage in more testing and more referrals, which may minimally improve outcomes but at a tremendous cost to patients and to the medical system. There are other effects of increasing liability for physicians such as eroding the physician-patient relationship, increasing physician burnout, and increasing insurance costs, but I’m getting off on a tangent. If you accept the premise that increasing civil liability for medical mistakes has an adverse effect on availability and cost of medical care, can you imagine what a chilling effect that criminal prosecution for medical mistakes would have on the practice of medicine in this country? Enter attorney Christopher Hamilton, Esq. from Standly Hamilton LLC in Dallas. Mr. Hamilton told reporters for ABC News that Texas’ cap on some lawsuit damages may cause more criminal prosecutions of physicians in Texas in the future. Mr. Hamilton also asserted that if it weren’t for Texas’ malpractice caps, hospitals would have caught on to Dr. Duntsch’s egregious medical practices and would have “kicked out a doctor like this much sooner.” He continues by stating that “A lot of times, hospitals only find out about poor outcomes when a lawsuit is brought.” Finally, Mr. Hamilton goes on record as stating that the Duntsch case is “a circumstance where the civil system was not able to weed out a bad apple because of the damage caps.” Let me see if I get this straight … Caps on pain and suffering may increase criminal prosecution of physicians for malpractice. Caps on pain and suffering prevent lawyers from “weeding out” poor physicians. Filing a lawsuit alerts hospitals to the fact that a physician’s practice may have caused poor outcomes But … even though hospitals may be alerted to a physician’s poor practice patterns by a lawsuit being filed, damage caps render hospitals powerless to take action against the physicians. Makes ...

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Press Ganey and HealthGrades.com Are Medicine’s Fake News

Whether you agree with the Trump administration assertions about “fake news” or not, the term has gained legs and has at least put the American public on notice that you can’t trust everything that you read in the media or on the internet. Fake News Definition As the term “fake news” has become more commonplace, it remains loosely defined, often being used as a blanket pejorative against information that counters the interests of those using the term. This article from the Daily Caller describing how journalists are declaring war on fake news without knowing how to define it conjures ideas of the old Keystone Cops movies. I’m going define “fake news” as information that is reported as fact but is without foundation, is demonstrably false, or is presented in a manner that is intended to deceive the reader. To differentiate “fake news” from opinion pieces, we sometimes need to look at the actual or apparent intent of the report, since arguments may be intended to sway opinion, but shouldn’t necessarily be considered “fake news” if they are well-reasoned and supported by evidence. In some instances my definition may fall short, but then again, “fake news” may be one of those terms that is difficult to define but that “everyone knows it when they see it.” Compare that “recognition” definition with concepts such as “justice”, “due process,” and “pornography” which even courts have had some difficulty consistently defining. The internet realm of “fake news” includes such things as “clickbait” and sponsored posts. While I would initially fall for links to posts with phrases such as “this will make your jaw drop” or “you wouldn’t believe”, seldom was I incredulous or left with my mouth agape. Yet the clicks that those links created benefited the publisher by improving site stats and advertising revenue. Similarly, sponsored posts may seem like they’re intended solely for the information and benefit of the readers, but may also be created for compensation at the request of another interested party. These types of “fake news” are more difficult to detect, but the federal government was so concerned about the issue that the Federal Trade Commission created rules requiring disclosure of any sponsorship in posts endorsing a product. Applying Fake News to Healthcare Reports The event that prompted this post and bumped others that I was working on was the news story about former prominent Texas neurosurgeon Christopher Duntsch. I wrote about the story several years ago over at EPMonthly.com. My prior post was, in turn, prompted by an excellent article in the Texas Observer by Saul Elbein. The gist of Saul Elbein’s article was that Dr. Duntsch had multiple egregious medical misadventures while operating on patients and that those misadventures caused multiple serious patient injuries and one patient death. Dr. Duntsch would bounce from hospital to hospital after he started feeling heat from his malpractice, so it took some of the hospitals a while to figure out the problems. However, the Texas Medical Board was reportedly notified of these misadventures on multiple occasions by multiple physicians from multiple different hospitals, but Dr. Duntsch reportedly kept maiming patients in surgery while the Board “investigated” for more than a year before suspending his license. See Order of Temporary Suspension from the Texas Medical Board here (.pdf file). The recent articles on Dr. Duntsch provide some closure. He was tried criminally for his botched surgeries – an extremely difficult allegation to prove. However, after only four hours of deliberation, a jury convicted Dr. Duntsch of the first degree felony of “harming an elderly person” with regard to the care of one of his patients. Dr. Duntsch now faces life in prison. See more information on the trial in the ...

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The $500 Emergency Popsicle

Natalie Fuelner created a well-written article in the Bangor Daily News describing some of the tribulations many new parents go through with young children. One weekend, her toddler fell face first onto a metal patio table. Immediately, the toddler’s face is full of blood. The dad panicked. Natalie was a “trembling mess” on the inside. Their physician neighbor wasn’t available to look at the child. They didn’t want to wait two and a half hours at the urgent care center. They were both still panicking, so they went to the emergency department where they were evaluated immediately by an emergency nurse and then 10 minutes later by an emergency physician. The emergency physician evaluated the child, determined that putting stitches into the laceration on the child’s lip would be more traumatizing than letting the laceration close on its own, then gave the child a popsicle. Wait? That’s it? Suddenly their panic was gone. Then they felt embarrassment. A couple of weeks later they received a $514 bill for the services and Ms. Fuelner quipped “That was one pricey popsicle.” One innuendo from the article seems to be along the lines of a comic I once saw from Bob Vojtko. An elderly woman was pointing her finger at a doctor saying “I spent $4 in cab fare to get here, so you better find something wrong with me.” Another underlying theme in the article is that many people don’t realize the costs of providing medical care in this country. I absolutely agree that $500 is a lot of money. And based on Ms. Fuelner’s perceptions, some people may think that she got “ripped off” for the services she received. Unfortunately, in the world of $20 copays and government-mandated free birth control pills, there seems to be a pervasive belief that medical care should cost less than an appointment at a hairstylist and should definitely cost less than the newest iPhone. See a prior article on this topic from Birdstrike here. As many communities are finding, the less you pay for medical care, the less medical care you have available. A few examples are here, here, here, and here, but an internet search will undoubtedly reveal many more articles about hospitals or departments that have closed because of insufficient funding. Let’s look at what Ms. Fuelner got for her $500 … She got the convenience of immediate access to a large business providing services to the public that is open every minute of every day. That business has millions of dollars of overhead costs every year that it must pay just so that it can keep its doors open. She got immediate access to expertise from a nurse who spent tens of thousands of dollars to go through years of post graduate training and who gave up her weekend so that she could be there to care for sick and injured patients. She also got immediate access to a physician who spent hundreds of thousands of dollars and went through even more post graduate training, and who also gave up his weekend so that he could be there to help sick and injured patients. Those are just the two medical professionals who cared for her child. I’m sure there were many more available in the department. I could go on and on about all of the hard-working personnel in the hospital whose services are available and who contribute behind the scenes to many patient visits – radiology, lab, surgical personnel, registration clerks, billing department, housekeeping, maintenance, cafeteria, security, IT, and many others – even administration, but hopefully you get the point. The hospital also has advanced diagnostic equipment costing millions of ...

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Louis Caplan, Maureen Dowd, and Lack of Professional Ethics

With the flurry of Twitter posts about Maureen Dowd’s article “Stroke of Fate” in the New York Times, it almost seems as if the subject is already stale. Maureen Dowd is the Pulitzer prize-winning op-ed columnist for the New York Times who tells a compelling story about a young patient who suffered from a stroke. The patient was a healthy triathlete and she initially attributed the symptoms of her stroke to a migraine headache. Ms. Dowd’s article also touched upon the frustration and fear that patients feel after the diagnosis of a stroke which was an important part of the article. However, somewhere in the middle of the article, Ms. Dowd does a journalistic faceplant that probably had Joseph Pulitzer doing a few backflips in his grave. Ms. Dowd accompanied the subject of her story – her niece – to Boston in order to be evaluated by a national stroke expert. There they met 78-year-old Dr. Louis Caplan, a Harvard professor of neurology. Dr. Caplan made several inflammatory quotes regarding emergency departments which Ms. Dowd was only too happy to publish. She doesn’t appear to have fact checked the statements, she doesn’t appear to have asked the professor for the basis behind his statements, nor does she appear to have asked other experts in the field for their comments on the topic. Of course, Ms. Dowd may argue that her failure to check her sources was an innocent mistake or that was part of her journalistic expression, but in either case, she was irresponsible and unethical. She used one of the largest forums in the United States to provide misinformation about emergency medical care. As I read through Dr. Caplan’s quotes and the comments to the article, I can’t help but wonder whether or not Ms. Dowd’s actions were intentional. It doesn’t take much insight to realize that comments from a medical “expert” who denigrated another medical specialty would result in an avalanche of clicks to the New York Times web site. The problem is, Ms. Dowd, your article generated interest not because it was good journalism, but rather because it was hack reporting. You could have used your niece’s misfortune to provide information to your readers about the signs and symptoms of vertebral artery dissection, the treatment, and the outcomes. Instead you threw your integrity out the window to create just another piece of clickbait. Shame on you. It isn’t just Ms. Dowd who failed at the New York Times. The New York Times editors failed. Again. Ms. Dowd’s article is eerily similar to a sepsis article written by Jim Dwyer in the New York Times several years ago. Mr. Dwyer told the story of his nephew, Rory Staunton, who, in the midst of influenza season, went to the emergency department with fever and vomiting. Rory received treatment in the emergency department, his symptoms improved, and he was discharged, but he later died from sepsis. Mr. Dwyer went on a crusade against the hospital and the emergency medical providers. In the process, Mr. Dwyer failed to note many of the circumstances regarding Rory’s care, made many inappropriate comments, misapplied sepsis guidelines that were not designed for children, and then tried to hide the fact that those guidelines were not designed for use in children. When called out on his selective reporting of the facts, Mr. Dwyer made excuses such as Rory may have been a child, but he “was the size of an adult.” That episode of drive-by journalism didn’t work so well, either. So the New York Times editors allowed yet another poorly researched and inflammatory article to be published in ...

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Press Ganey CEO Patrick Ryan’s Hidden Relationships

Remember the expose about Press Ganey titled Why Rating Your Doctor is Bad For Your Health by Kai Falkenberg published in Forbes this past January? Turns out that Press Ganey and its CEO don’t like playing by their own rules. And they may just be trying to hide some interesting relationships from the public to boot. Let’s first look at one of the documents mentioned in the Forbes article. A July 2002 letter (.pdf) from The Gallup Organization’s Managing Partner Robert Nielsen to Thomas Scully, the administrator of the Centers for Medicare and Medicaid Services (otherwise known by the acronym “CMS”) specifically stated that response rates for mail questionnaires (which Press Ganey uses) are too low. With response rates of 20-40%, Mr. Nielsen admitted that “the standard rules of probability don’t exist.” Mr. Nielsen then noted that “This is a dirty little secret in our industry” and that such a non-response rate “produces bias and produces unreliable metrics.” In other words, the managing partner of an organization specializing in data collection acknowledged that the same data collection methods Press Ganey uses are biased, do not follow rules of probability, and produce unreliable results. He also acknowledged that the industry knows about these facts, but keeps it “secret” from the public. When commenting on Ms. Falkenberg’s article, Press Ganey’s CEO, Patrick Ryan’s response was basically that doctors need to “suck it up” – kind of like Press Ganey is doing with its business model, but that was the subject of another post. It shouldn’t matter that the statistics are unreliable and that the methods are biased. Press Ganey customers need to rely on those statistics, anyway. Think about what a dangerous precedent that sets. Imagine how many people would die in car crashes if car safety study statistics were unreliable. Imagine how many people would die from side effects if drug study statistics were unreliable and kept as a “dirty little secret in our industry”. That “dirty little secret” is just the industry’s way of saying “we don’t give a rat’s tail about the effects of our product, we just want to make money.” It doesn’t stop there, though. After the Forbes article was published, there was a plethora of comments made to Ms. Falkenberg’s investigation. Forbes highlighted several of them in a subsequent issue. (.pdf) Dr. Patrick Burnside noted that it was “Such a needed article.” Dr. Robert Solomon remarked that “Many physicians have written about this but are handicapped by Press Ganey’s ad hominem implication that they are just whiners because they don’t like being judged.” Cleveland Clinic’s Rafid Fadul called the surveys “a meaningless tool used essentially to ratchet down payments to physicians.” But according to Forbes, the “most heated response” came from Eugene D. Hill III, a managing partner at venture capital firm SV Life Sciences. His response to the article, as published in Forbes, is contained below. [The] article departed from FORBES’ usual high standard of investigative journalism. One of the principle [sic] unsupported assertions, that patient satisfaction is not correlated with clinical outcome, is refuted by common sense as well as a long history of patient satisfaction research, and most recently by a peer reviewed formal assessment that was published in the Jan. 17, 2013 issue of The New England Journal of Medicine.  It is not surprising that physicians, the understandably biased subjects of evaluation, some of whom have historically resisted both formal quality assessment as well as patient feedback (‘the doctor knows best syndrome’) and some of whom are lacking in interpersonal skills/bedside manner, might be less than willing to accept negative feedback.  To  criticize the evaluation service ...

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Best and Worst States to Practice Medicine

Medscape did a survey and some research and came up with a list of the best and worst states in which to practice medicine. You can find the entire presentation at this link, but if you don’t want to create an account at Medscape to view the information, a summary of what they came up with was below. Doctors by far most valued a comfortable living environment in making their decisions where to practice. Other important factors in the decision included proximity of family and friends, climate, job opportunities, and malpractice climate, insurance mix, physician density, medical board activity, and tax burden. Best States to Practice Medicine In the Southwest and South Central regions, Texas was recommended as having low physician density, low cost of living, and few malpractice claims per capita, but these positives were offset by the increased health system burden of the uninsured patients and by the hot weather in Texas. In the West and Northwest regions, Idaho was recommended for its low cost of living, nonlitigious climate and good housing market. Downsides to Idaho included the dominance of two main health systems in the state and the lower than average number of registered nurses. In the Southeast, Tennessee got the nod for higher than average compensation, no state income tax and a mild climate. However, there was a high density of physicians in Tennessee and its school systems are ranked 42 out of 59 in the country. In the Mid-Atlantic, Virginia came out on top for its moderate cost of living, moderate physician density, favorable malpractice climate, low tax burden, and good quality of life. However, the compensation was the second lowest in any region. In the Midwest, Indiana was rated tops for its excellent compensation, low cost of living, low malpractice payouts and balanced lifestyles. On the down side, there isn’t as much nearby access to urban centers if that is important to you. In the Northeast, New Hampshire has great schools, comparably low cost of living for the region, a relatively low tax burden, and good nursing/PA support. However, the compensation in the Northeast is lowest in the country and the climate is cold. Worst States to Practice Medicine Worst states to practice medicine included Nevada, Hawaii, Maryland, Illinois, Connecticut, and … FLORIDA. Big surprise there.

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