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Tag Archives: Medical-Legal

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’s Latest Business Model: Eavesdropping

A reader provided me with a report showing that in addition to the “let’s get hospital administrators to rely on invalid patient satisfaction statistics” business, Press Ganey is also in the “let’s eavesdrop on what are supposed to be private physician patient conversations” business. People acting on Press Ganey’s behalf are supposedly showing up in hospitals to evaluate the hospital settings … and snoop through patient’s protected health information in the hospital … and even eavesdrop on what are supposed to be private conversations between patients and their physicians in restricted areas. Below are some excerpts from the report I received which are transcribed for web searching purposes. Press Ganey apparently printed its report on dark paper in an attempt to make the report difficult to copy. Transcription: Sitting against the wall by the printer there is a sheet of patient labels with PHI that anyone can see when walking down the hallway. ED was very busy with all days [sic] occupied. The ED received three ambulance patients almost simultaneously while I was there. A new patient arrived via EMS. Initially, when the doctor and nurse went into the room, no one pulled the curtain for privacy. After the doctor exited the room, the nurse then pulled the curtain. During this interaction, the doctor explained what he was doing throughout the process and asked the patient’s permission, saying for example “can I listen to your heart and lungs?” A patient who was brought in via ambulance for alcohol abuse was very belligerent with the nurse. The patient told the nurse “don’t put one of those gowns on me.” The nurse said he wouldn’t put one on now, but would need to later. Then the nurse tried to put the patient in a gown again. The patient stated it was too cold to get undressed. The nurse offered warm blanket. Patient cursed and said to call administration down to the emergency department. The patient told the nurse to f*** you.” The nurse addressed the patient’s comments but in doing so also said the word “f***.” The nurse was doing a decent job of handling a very difficult patient but I did not think was appropriate occurs even if in addressing the patient comments. The patients who had arrived in the waiting room during my observations starting at 1703 were all still sitting in the waiting room I exited the emergency department. This included a teenage boy who was triaged at 1714, an infant boy, and another woman. Were these patients ever rounded on? I observed the patient being called back to a treatment room. The patient was called be a very loud overhead paid for number 4621 to come to the front desk. “Number 4621 to the front desk please.” You could hear the phone tone after the message until the receiver was hung up. The patient assigned number 4621 went to the front desk. The patient family waited to be addressed, and while they were standing at the desk, they paged the patient again. This process was very impersonal. How are patients who have disabilities assisted? The person creating this report appears to have little knowledge about hospital procedures, about emergency department flow, or about legal issues. Your correct response to a patient who is repeatedly verbally abusive to you and for whom you have no choice but to stabilize and treat should be … And when an emergency department is full and gets three ambulance runs in a row, the first thing on the overworked staff’s mind should be to go out in the emergency department waiting room and ...

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Healthcare Update — 11-14-2013

See more updates over at my other blog at EPMonthly.com Jury finds cardiologist and hospital liable for performing unnecessary cardiac stenting in patient. Patient wanted $50 million in damages, jury can’t agree on damage award. Judge throws out case against cardiologist during jury deliberations leaving hospital as only defendant. Veteran’s hospitals paying out record amounts in settlements and court judgments for medical malpractice claims. Some of the claims include – a 20-year Marine Corps veteran paralyzed after a routine tooth extraction – an Air Force veteran who died after a surgeon burned a hole in his heart with a laser – an Army veteran who died after doctors repeatedly failed to diagnose and treat a cancerous growth that was present on the patient’s chest x-rays for more than three years – another veteran who bled to death after being left in a room after a liver biopsy and never re-evaluated The payments for VA negligence come from the Treasury budget … meaning from our pockets. One State rep notes “We focus so much on sending our soldiers to war. But when they’re coming back, we don’t have the same focus on taking care of them.” Another article in the Dayton Daily News gives more details about several of the cases. Association or causation? After drug companies voluntarily withdrew many pediatric cold medications and recommended against using others until patients reach 4 years of age, the percentage of ED visits for adverse events from such medications decreased from 4% to 2.5%. Dr. Melvyn Flye arrested for perjury when he made untrue statements as an expert witness at trial. How often do you see that happen? Actually, I think it should happen more. Arrest incidentally occurred in July, but the article just came across my newsfeed this week. Patients gone wild. Patient upset because emergency physician won’t refill his Norco prescription leaves hospital emergency department and stabs emergency department greeter in the neck on his way out the door. The greeter is in serious condition. Godspeed to her. The patient is in the Greybar Motel. Hope he doesn’t even get Tylenol. Another article on the incident courtesy of Scott DuCharme – thanks! Popular Science calls this a “rare new bacterium.” Tersicoccus phoenicis is found in NASA “cleanrooms” and is resistant to chemical cleaning, ultraviolet rays, and other sterilization procedures. Interesting questions develop in my mind. First, I doubt that the bacterium is “new,” but suspect that it is just that no one has ever looked for or found it yet. Perhaps “newly discovered” would be a better term. Second, if chemicals and sterilization don’t kill it, then what does? If the only thing absent from clean rooms is bacteria, then likely the growth of other bacteria somehow hold the growth of this bacterium in check. Hat tip to Instapundit for the link. Will the Unaffordable Insurance Act (if you were wondering, I refuse to call it the “Affordable Care Act” because it isn’t “affordable” and it doesn’t provide medical “care”) provide more reimbursement for emergency department patients? If Medicaid payments stay the same (which they won’t), then this study suggests that receipts for previously uninsured patients will increase by 17-39%. Great save. Orlando emergency physicians perform needle cricothyrotomy on an infant with a pacifier tightly lodged in his throat. Patient went to surgery and an ENT surgeon had to remove the pacifier in pieces. Why don’t newspapers ever publish the names of the doctors that do great things like this? Seems like almost all of the publicity is for malpractice and other allegations of badness. Alicia Gallegos, former medical legal reporter extraordinaire for the ...

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Healthcare Update — 06-26-2013

See more updates at EP Monthly.com In cats they are called hair balls and are considered a bad thing … New fad has fashion models dipping cotton balls in orange juice and eating them in an attempt to suppress their appetites and lose weight. I can’t even come up with a pithy comment for that one. $4 million settlement in New York after mother seeks care for UTI symptoms at 26 weeks gestation, doesn’t receive antibiotics, and child is born 11 days later with neonatal sepsis. Florida Governor Rick Scott is now backing legislation to crack down even further on expert witnesses in medical malpractice cases. The legislation was sparked by one doctor who misrepresented his credentials under oath when testifying as an expert witness. Now plaintiff attorneys are crying foul because the restrictions will “benefit doctors and corporations at the expense of injured patients and consumers.” In other words, “bwwwwaaaaaaaaaah, our contingency fees are going to dry up.” Could Governor Scott’s interest in improving expert witness standards possibly be because Florida is one of the suckiest states in which to practice medicine and he’s trying to make a turd smell a little more like a rose? Chicago-area hospital adding a “Telestroke Program” to its facilities. Now neurologists can view patients over computer cameras to determine whether they need to be transferred to a higher level of care. Will be interesting to see how much benefit the web cams will have. Not like you can do strength testing over the internets. Anyone out there use a video link to neurologists? Not to be outdone, the University of California at San Diego is instituting a study on use of telemedicine for emergency department patients. The principal investigator for the study, Dr. David Guss, states that “underutilized physicians” during lulls in patient volumes are an “unneeded expense.” Ahhhhh, the emergency department of the future … one doctor running around frantically performing procedures on critical patients while a bunch of other doctors write work notes and Norco prescriptions from the comfort of their home offices. New York’s Long Island College Hospital blocks ambulances from bringing patients to emergency department. One neonatologist threatens to “call the cops” if the hospital attempted to move her patients out. Tough to run incubators without electricity. The hospital is losing $1 million per week, but a judge ordered the hospital to maintain staffing levels anyway. Maybe they can use Monopoly money to pay the staff.. One less hospital to care for Brooklyn patients in an emergency. New York isn’t the only place where judges make idiotic rulings. Ontario Court of Appeal rules that obstetrician was negligent for relying on the treatment plan of a consultant specialist who misdiagnosed a patient’s aortic rupture as a pulmonary embolism. Obviously, the obstetrician should know more about medicine than every other specialist. If he agrees with the specialist and there is a bad outcome, he’s liable. If he disagrees with a specialist and there’s a bad outcome, he’s still liable. Ultimate effect of Ontario Court of Appeal’s ruling: Physicians are responsible for knowing everything about medicine and will be liable for misdiagnosis regardless of what a consultant says. Does Canada have a problem with defensive medicine yet? According to a Mayo Clinic study, we are officially The United States of Pill Poppers. Seven in ten people in this country are on at least one prescription medication. Half are on at least two prescription medications. Twenty percent are on 5 or more medications — most of those patients come to my emergency department. Antidepressants and opioids were tied for second place on the ...

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Should Refusing Medical Care Be A Crime?

Doctor threatens to call police on patient if she does not consent to immediate Caesarian section. The mother was a high-risk pregnancy (due to VBAC), was post-dates and had gestational diabetes. The fetus wasn’t in a good position to facilitate vaginal delivery, and an ultrasound showed the fetus in possible distress. The patient was sent to Tampa General hospital for immediate C-section, but refused to have the surgery done that day. She wanted the baby delivered on Friday, not Tuesday. So the obstetrician sent her an e-mail which stated, in part I am deeply concerned that you are contributing to a very high probability that your fetus will die or your child will incur brain damage if born alive. At this time, you must come in for delivery. I would hate to move to the most extreme option, which is having law enforcement pick you up at your home and bring you in, but you are leaving the providers of USF/TGH no choice The doctor was promptly contacted by the National Advocates for Pregnant Women, whose New York attorneys advised him (apparently applying their vast knowledge of Florida law to the case) that he was making “legally and ethically unjustifiable” threats and demanded he cease taking further action against the patient. The NAPW even put up a post about the incident on their web site. Hopefully, the attorneys at NAPW have licenses in Florida, otherwise some might consider them to be practicing law in Florida without a license – which I think might be illegal. Now the patient is having her baby delivered on Friday as she wanted. When I initially read this article, I was upset with the doctor. The more I thought about it, though, the fetus has as many rights as the mother does. If the mother was doing things to endanger the life of the fetus the day after it was born, a call to the police would be expected, not ridiculed. States mandate reporting of suspected child abuse and impose liability on providers if suspected abuse is not reported. In this case, it is questionable whether a failure to deliver a child that is possibly in distress would be considered “child abuse,” but usually if there is a suspicion, a report is mandated. I side with the doctor on this one. And I probably would have called the state child welfare agency on the woman just to cover myself. This case will get ugly real quick if there are complications during the pregnancy or if the child isn’t born healthy. If the baby is stillborn, should the mother be charged with a crime?

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Suing Doctors For Patient Addictions

Nevada Senator Tick Segerblom proposes bill that would allow patients addicted to prescription drugs to sue doctors for prescribing the addictive medications and manufacturers for creating the medications. Patients can already sue doctors for prescribing medications if they can prove that writing the prescriptions violated the standard of care and that they have suffered damages as a result. But Tick wants to take the concept a step further. If the patient sues a doctor and wins, the patient should receive payment for rehabilitation, possible punitive damages, and attorney’s fees. It doesn’t matter that “addiction” can be either physical or psychologic and that there is no reliable way to determine when addiction occurs. Tick’s bill doesn’t define addiction. It also doesn’t matter that people can get addicted to pretty much anything … alcohol, illegal drugs, porn, gambling, even collecting Cabbage Patch Kids. Tick’s bill only cares about those evil doctors. Beware internet service providers, you could be next on the list if your subscribers get addicted to the internet. But Tick has good reasons for proposing his bill. Since people lived without drugs before, Pharmacologist Tick doesn’t believe that drugs are the only way to treat pain now. That’s true. Patients in cancer pain could always try incantations and faith healing instead of popping pills. Or patients in pain could bust out some whiskey and a bunch of bullets to bite on … after they take anger management classes so they can purchase the bullets. Oops. That’s Florida. Sorry. Wrong state. Double oops. Alcohol could be addictive. Bad example. Besides, since children are allegedly taught from an early age to do whatever the doctor says, Neuropsychologist Tick says no one has the free choice whether or not to take addictive pain medicines. It’s not so much that, at least according to his Twitter feed, Tick seems just all … well … tickled … about seeing his proposal published in newspapers. The scary thing is that people like Tick Segerblom are elected to public office and may be able to regulate our lives. More comments at Overlawyered.com

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