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Tag Archives: Medical-Legal

Should AEDs be required?

Interesting question posed in a California court case. There’s that state acting up again. In Verdugo v. Target Corp (.pdf file) a 49 year old woman collapsed in a Target store. Paramedics were called, but it took them several minutes to arrive and several more minutes for them to find the patient. They were unable to resuscitate her and she died. The family sued Target for failing to have an automatic external defibrillator (“AED”) in its store, apparently alleging that their mother would (might?) have been saved had an AED been available (there are those thingees called “damages” again, Matt). In its opinion, the US Court of Appeals noted that “defibrillation is the only definitive treatment for cardiac arrest.” That isn’t true. Defibrillation only works on the patients who have ventricular fibrillation or pulseless ventricular tachycardia as the cause of their cardiac arrest. Defibrillation does not work on asystole, PEA, or agonal rhythms. While there may be an increase in survival to admission rates when care is received sooner, there was no statistical difference in survival to discharge rates in some studies, while other studies did show an improvement in survival to discharge. Also note that in this study, the number of patients with out of hospital cardiac arrest who were in asystole (and who therefore would not benefit from an AED) was between 72 and 84%. Now the California Supreme Court will decide whether every commercial business should be required by law to have an AED on premises. This case troubles me. If we start down the path that an AED must be available at every business, then it becomes a “slippery slope” argument. How close do the AEDs have to be? If a building has multiple floors, does there have to be an AED on every floor? For large businesses, how close do the AEDs have to be to each other? What about shopping malls? Will every store in the mall be required to purchase one? Even the kiosks? What will be the requirements for maintaining them? How many people will need to be trained how to use them? It isn’t just about the AEDs, either. What other medical care will be required the next time someone dies from low blood sugar, an allergic reaction, or a choking episode. What about for people who fall and could die from a head injury? On site CT scanners and drill bits to relieve deadly subdural hematomas? Where would the requirements for medical care to business invitees logically stop? I’m having a difficult time coming up with a rule that requires AEDs but that doesn’t require additional medical equipment and training of employees. And if the laws require that business owners afford special medical care to business invitees, wouldn’t invitees to one’s home – to attend a party, for example – fall under the same legal rule? Another example of fearing the bad outcome. Say – if California rules that AEDs are required, anyone want to join in funding a startup AED manufacturing company? There will suddenly be a lot of AEDs that need to be purchased. Hat tip to Walter Olson at Overlawyered.com

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Too Heavy to Fly

Medical care for the morbidly obese is back on the radar. Today this blog got several inbound clicks from a site where a bunch of apparent doctor haters have used one of my blog posts and the comments to the post as an example of how much the medical profession allegedly likes to bestow shame upon others. It seems that the discussion we had regarding whether it is ever acceptable to refuse medical care to morbidly obese patients was something that Ms. Marianne’s readers were cautioned that they may not be able to “stomach.” The author and most of the people who commented to her article seem to believe that they have the right to demand that any doctor at any time must provide any type of services to them that they demand. Whether or not the doctor is comfortable providing those services or whether the doctor even has the knowledge and training to provide those services is irrelevant. Any doctor who doesn’t agree to their demands is hated and publicly shamed. This doctor who chose not to treat patients weighing more than 200 pounds was one example of their wrath. I left a comment to Marianne’s rant back when she first posted it. I don’t remember the comment verbatim, but the gist of my comment was that there are specialists for a plethora of conditions who provide care to patients when other providers are uncomfortable caring for those conditions – HIV, diabetes, organ transplants, ophthalmology, etc. Why shouldn’t doctors be able to refer obese patients to other physicians more experienced in caring for obese patients? In addition, there is no “right” to force any person to provide you with any services against their will. The Thirteenth Amendment to the Constitution addressed that. Finally, I noted that when there is a bad outcome related to a patient’s obesity, one of the first things that a plaintiff’s attorney will allege is that the patient should have been referred somewhere else. My comment was never approved. Non-conforming, I suppose. Today there also happened to be an article in the NY Post – linked by the Drudge Report – about how a morbidly obese woman with multiple health problems traveled to Hungary for a month-long stay in their family vacation home. When she tried to board a flight back to New York to resume her medical treatment, the airline refused her because she had gained water weight and could not be safely strapped into three seats. The airline tried to make alternate arrangements for the patient’s travel back to the US, but those plans also fell through due to the patient’s size. There was no mention that the woman ever went to a hospital for care of her medical problems while trying to secure travel back to the US. Both the patient and her husband were quoted as saying that they “didn’t trust” doctors in Hungary. Nine days after first attempting to return to the US, the woman died. Difficult situation. Comments to the article were mixed. Some people blamed the patient for allowing herself to become so obese. Others blamed the airline because it was able to get the patient to Hungary and then left her stranded there. This case illustrates the point that I was trying to make in my previous post about providing medical care to morbidly obese patients. At some point, the safety and well-being of the patient and of others must be taken into account when deciding whether to provide care. These decisions are made all the time in medicine. A patient with severe lung disease may be ...

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Criminal Charges for Taking Newborn Outside

This story came across my news feed this morning. The father of a 2 day old infant is being criminally charged by New York prosecutors with child endangerment and harassment because he attempted to take his son outside for “fresh air” and to “look at the moon.” The story only showed up on my news feed because an emergency physician testified on behalf of the defendant in the case and the term “emergency physician” is one of the keywords on my news feed, but the case also illustrates the point I was trying to make in the post a couple of days ago. The emergency physician was a family friend and was visiting the family in the hospital when the incident occurred. He testified that he believed it was “fine” that the dad took the infant outside. The incident occurred during January, but according to the emergency physician’s account, the child was “dressed pretty warmly.” Prosecutors alleged that the emergency physician didn’t have the professional experience to know what is in the best interests of a newborn infant. According to the article, a charge of child endangerment requires that prosecutors prove beyond a reasonable doubt that the father knowingly put his child in a situation where the child was likely to be injured. The rule appears to be that intentionally taking newborns outside in cold weather – even if warmly dressed – is a crime in New York State. Appropriate?    

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Criminalizing Society

The criminalization of society continues. Regular readers know that I strongly disagree with state efforts to criminalize the practice of medicine. See previous posts here, here, and here for a few. Two days ago I posted an article about a doctor who was criminally charged with providing excessive pain medications to patients who died (as I expressed concern about back in 2009). Now federal agents are arresting physicians for providing fraudulent or “unnecessary” care. This isn’t concerning to anyone? I have no problem with taking professional action against any medical practitioner who is a danger to the public. Well, I have a little problem. Some of the assertions of “dangerous” activities I have seen made by state licensing boards make me wonder whether the board members should be charged with a crime for incompetency. In one instance, a board was prepared to file a letter of reprimand against a physician because he didn’t order a CT scan on a patient with a headache. The reason? “This patient came to the hospital by AMBULANCE and you didn’t do enough.”  Action taken against license because a patient dialed 911. I also don’t have a problem filing criminal charges against medical practitioners that break laws. Intentionally engage in fraud? You deserve what’s coming to you. Steal from patients? Go to jail. However, throwing someone in jail for doing their job – even if they do their jobs poorly – just sends the wrong message and will lead to unintended consequences. I’m not going to go on a long rant about this, but I wanted to illustrate how more and more professions are coming under a government attack because they allegedly don’t do their jobs appropriately. Tarl commented about the case of the Italian scientists who were charged with manslaughter and sentenced to six years in jail because they failed to predict an earthquake that killed more than 300 Italian citizens. Prosecutors argued that the scientists offered “incomplete, imprecise and contradictory information” to the Italian citizens. As Tarl noted, scientists from around the world denounced the trial, noting that predicting earthquakes is impossible. Think about the implications for Italian scientists in the future. Doing everything in their power to avoid a six year prison term in the future, the seismologists will now be encouraged to report to the media that an earthquake may occur and that things may not be safe every time that a truck without a muffler drives past the seismologists’ offices and shakes their equipment. Chicken Little, baby. If someone drops a cup of coffee, the sky must be falling. Run for the hills. In a few years, the population will be so sick of the false alarms that when the real earthquake does hit, they will have ignored the warning anyway. But by criminalizing an inexact science, the buffoon Italian prosecutors have made Italy a safer place, right? Then consider the case of attorneys for GlaxoSmithKline who were indicted for making false statements to the FDA when Glaxo was being investigated for promoting Wellbutrin for an off-label use. The in-house counsel hired a national law firm to help Glaxo respond to the FDA’s allegations. A year later, the government came after the attorney for obstruction of justice … for representing her client … alleging that the attorney had assisted Glaxo in furthering a cover-up or a crime. Even documents that are protected from discovery by the attorney-client privilege were forced to be turned over to the government. How will the threat of criminal charges affect an attorney’s practice of criminal law? Go to jail if you defend your client too ...

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No Fingers Allowed

Sent from a reader … Because stool obviously transmogrifies as it exits the rectum. Stool contained on the end of one’s finger after performing a rectal exam and then transferred to a hemoccult card causes hemoccult cards to give wrong readings and therefore the results “may not be accurate.” However, stool that is plopped in the toilet, mixed with water, possibly urine, and whatever else is growing in the toilet bowl … no problemo. Definitely accurate. This “results may not be accurate” disclaimer is reportedly added to every stool sample the hospital reports because the hemoccult card manufacturer said that the cards are only to be used for “formed stool”. Not sure how the lab tests to determine whether the sample is “formed” or is “diarrhea,” but I’m not a lab technician. Perhaps they test the moisture content of the sample prior to actually applying the requisite number of drops of hemoccult developer. The hospital also reportedly had an entire committee meeting where multiple educated professionals and administrators thought it was appropriate to include the “results may not be accurate” disclaimer given the manufacturer’s guidelines. That then begs the question that if the stool results “may not be accurate,” then why is the hospital reporting on the results at all? I’m sure that a fear of liability for not following the manufacturer guidelines in using the product had nothing to do with the committee decision, either.

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Diet Blogging is a Crime in North Carolina

North Carolina Board of Dietetics and Nutrition threatens to sue a diabetes blogger and potentially subject him to 120 days in jail for recommending the “Paleo diet“, alleging that the blogger is practicing “nutrition” without a license (which is a misdemeanor [.pdf file]). The NC Dietetics Nutrition Practice Act really doesn’t state what is permissible, though. Section 90-368 states what practices are not affected under the Act. What can people do without a nutrition license, though? Charla Burill, the board’s director, states that bloggers have “a First Amendment right to blog about his diet, but he can’t encourage others to adopt it unless the state has certified him as a dietitian or nutritionist.” To be fair, on some of the blogger’s pages, he offers to sell individual “support packages” for one on one counseling with blog readers which does cross the line. But there are many other issues that show how expansive this North Carolina law really is. Is Michelle Obama breaking the law when she recommends that people eat broccoli? Oh, wait, the government can tell you what products to buy and can even fine you for not buying them. That’s what the whole Affordable Care Act is about. Are North Carolina moms going to jail for advising their kids on what to eat at dinner? Have the publishers of the South Beach Diet book been hit with an injunction in North Carolina? What happens when a sponsor at Alcoholics Anonymous personally advises another member on how to limit alcohol intake? Watch it, buddy. You’re going to find yourself in the Greybar Motel for doing that. — Another hat tip to Glenn Reynolds at Instapundit for the link. Oh, and by the way, everyone in North Carolina who has diabetes should eat less refined carbohydrates and eat more sushi and broccoli like I do. It’s the bomb! I’ll just call it the “modified Paleo diet.”

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