You are currently browsing the monthly archive for August 2007.
The Wall Street Journal health blog has an interesting entry today (“Doctors to Patients: Don’t Slam Us Online Without Permission“) that, while not directly about medmal law issues, seems related.
Next time you go to the doctor, look for a new form buried in the stack of insurance and health-history paperwork you’re asked to complete. You might find a contract that would require you ask your doctor for permission to grade him or her online.
The WSJ blogger questions one of the founders of RateMDs.com to get his opinion.
It sounds like a good strategy. The only problem I can see (purely guessing either way) is that it scare away patients, as the first comment shows.
One might respond that it will probably only deter patients who are looking for trouble. But another question might be whether patients would be more likely to go to a medical malpractice lawyer over an imagined problem because they have been told they must not communicate online.
I’d love to hear from doctors who have used this contract whether they think it has helped them.
If this doesn’t seem like a good idea for you and your patients at this point in time, remember that we have reported on other ways to deal with your online reputation.
Overlawyered recently linked a medmal-related article in The American, “Give Health Courts a Fair Shake” by Mark Crane. Crane writes,
Juries of ordinary citizens generally aren’t asked to decide complex legal disputes about maritime cases, tax law, bankruptcy, workers’ compensation, divorce and child custody matters. And for good reason. While the principle of trial by jury is sacrosanct in America, basic fairness and common sense demand that such highly technical issues require expertise from witnesses and judges experienced in dealing with them.
That’s not so for cases involving allegations of medical malpractice, which are no less complicated but still left in the hands of lay jurors with little knowledge of medicine. Trials often amount to a game of roulette. Jurors hear testimony from dueling expert witnesses—hired guns who favor one party’s interpretation of events. The most personable witness may sway a jury no matter how fanciful his theories are. Jurors receive little guidance from judges as to how to evaluate that testimony or how much to compensate deserving plaintiffs.
Crane proposes “specialized health courts, where judges experienced in medicine would try cases without juries” in medical malpractice cases.
He makes a great case, in my opinion–pointing out (as you can see in the pull quote) that the difference between countries that have medical tribunals (such as in New Zealand, Sweden and Denmark) and the US is that they take months to settle a case whereas here it takes half a decade.
He also brings up the issue of predictability and precedent. Juries simply vote what they want without having to explain themselves. Judges, on the other hand, would write documents explaining their decisions and establishing standards. This is, by no means, his only argument, but it looks to me like a weighty one to consider.
There is a lot more to the piece and I recommend you read it for yourself. Frankly, I’m surprised the idea is not more popular.
Hat tip: Kevin MD
I don’t think I’ve ever seen as much blogosphere reaction to a single medmal issue. It was just announced that Medicare will no longer cover certain medical expenses–expenses they assume are caused by hospitals and doctors.
So far I’ve found reactions from
I would not be surprised if there aren’t more people commenting out there (actually, Kevin MD links to some I hadn’t seen), but these are the ones from blogs I track at this point in time. Here is the issues, as reported in the New York Times story, “Medicade Says It Won’t Cover Hospital Errors.”
WASHINGTON, Aug. 18 — In a significant policy change, Bush administration officials say that Medicare will no longer pay the extra costs of treating preventable errors, injuries and infections that occur in hospitals, a move they say could save lives and millions of dollars.
Private insurers are considering similar changes, which they said could multiply the savings and benefits for patients.
Under the new rules, to be published next week, Medicare will not pay hospitals for the costs of treating certain “conditions that could reasonably have been prevented.”
Among the conditions that will be affected are bedsores, or pressure ulcers; injuries caused by falls; and infections resulting from the prolonged use of catheters in blood vessels or the bladder.
In addition, Medicare says it will not pay for the treatment of “serious preventable events” like leaving a sponge or other object in a patient during surgery and providing a patient with incompatible blood or blood products.
“If a patient goes into the hospital with pneumonia, we don’t want them to leave with a broken arm,” said Herb B. Kuhn, acting deputy administrator of the Centers for Medicare and Medicaid Services.
The new policy — one of several federal initiatives to improve care purchased by Medicare, at a cost of more than $400 billion a year — is sending ripples through the health industry.
It also raises the possibility of changes in medical practice as doctors hew more closely to clinical guidelines and hospitals perform more tests to assess the condition of patients at the time of admission.
Hospital executives worry that they will have to absorb the costs of these extra tests because Medicare generally pays a flat amount for each case.
Doctors do not think that this policy shows much wisdom. As the Medpunit headlines, “You Broke It, You Bought It: The new Medicare denial model.” He writes,
It’s probably reasonable to expect a hospital and surgeon to remove a left behind sponge at now added charge, but some of these conditions are difficult to avoid. Patients who require chronic urinary catheters, for instance, are notoriously prone to infection despite the best efforts to avoid them. And dying, chronically ill patients are prone to bed sores despite the best efforts to prevent them.
It seems likely to me (and to all the medical bloggers I’ve read) that hospitals are going to be pressured to avoid treatments that are likely to lead to these complications. Unless they resist this pressure, the Medicare rules will mean that patients will be creatively refused access or that needed medical procedures will be denied because of the possible complications.
But, as a medical malpractice blogger, the first thought that came to me is that this will have consequences in tort cases. Effectively, the government has just issued a list of things they claim are always the fault of doctors and/or hospitals. If this list is upheld we can expect to see more medmal lawsuits on the basis of this list.
So far, the only medical blogger I’ve seen mention this problem is the Medinnovationblog. It will be interesting to see if attorneys appeal to the list in future lawsuits.
This newspaper article on the medmal situation in Texas is obviously written mainly from the standpoint of what is good for attorney’s (not the heading, “legal trade”). Since the whole point was to reduce the amount of legal trade going on, the law is naturally perceived as bad news.
Still, it is noteworthy that the story reports there are still medical malpractice cases being filed, just not as many as before. This should count as evidence, I think, that it is not impossible to go to court in the case of malpractice. Rather, it indicates (hopefully) that only those cases that are worth hearing should go to court.
Nevertheless, we should keep our eye on Texas and see what happens. But we should also be careful who tells us what is going on. Notice that one lawyer claims, “they didn’t just close the courthouse doors to frivolous cases, but to most all cases.” But the next paragraph says the number of suits is half what it was. That doesn’t sound like “almost all cases.”
The attitude for some seems to be that the sudden influx of new doctors to Texas represents a threat rather than a blessing. I’ve already put on my amateur economist hat on this issue. Again, the only thing we can do is wait and see if prices drop and people have more affordable medicine or if the quality of care deteriorates.
The story is well worth reading for its verson of the good and the bad. Hopefully, the benefits will continue–like reduced costs and the availability of certain specialties that had been driven entirely out of the state–while liabilities such as an underfunded state Medical Board will be addressed.
Kevin MD blogged about a new sponsor called Medical Justice, which may be a new way of dealing with the medmal problem of frivolous lawsuits. He writes,
Not all tort-reform strategies are created equal. However, there are two effective ways to control the frequency of frivolous lawsuits: By countersuing proponents of meritless lawsuits and policing frivolous expert witness testimony.
These D-I-Y tort reform strategies have reduced lawsuit rates among Medical Justice doctors from about 10 percent a year to less than 2 percent and have helped countless physicians be dropped from their existing frivolous cases.
Medical Justice can supplement medical malpractice insurance and provide, in cases where necessary, the resources to countersue. They also claim to have a good record in deterring frivolous lawsuits. They write
During a case, the company works in partnership with your malpractice carrier’s appointed attorney to insure that, if a claim proceeds, you receive the best possible defense: a defense with a united, strong voice.
Some of the largest carriers in the country have met with Medical Justice and agree that our program complements their primary offering.
While this won’t cover doctors’ losses when they have made real mistakes or cap the amount in a verdict, it still sounds like it might be a great benefit to both doctors and patients if it deterred the expense of frivolous cases.
A couple of other kinds of liability (as in other than the medmal that this blog is usually about) were mentioned in the blogosphere recently. First of all, Kevin MD writes in California: Home of the Nanny State, “Don’t worry parents, you don’t need to be personally responsible for your children, Uncle Sam will do it for you.” I usually am completely on board with Kevin’s perspective, and I certainly understand his reaction, but after reading the story, I wonder if he isn’t overreacting in this case. After all, with truancy laws and all, parents are pretty much pressured to put their kids in the care of other people and not be available to deal personally with emergencies.
I’d be interested in anyone’s opinion. Please leave a comment.
The other case is from the medical quack, which linked the American Medical News site’s story, “Judge rules criminal fraud case against Idaho is frivolous.” The judge awarded the doctor $300,000, though the government is appealing the decision. It seems that the government’s method for finding fraud, is to simply find those doctor’s whose numbers are not average and assume it is because of wrongdoing. In bringing the case to trial the Judge found that the government both ignored expert testimony that went against their desire to prosecute and also neglected to inform the defense attorney of this expert testimony.
If the ruling sticks, it could offer some hope for physicians who are caught in similar circumstances and shine the light on the government’s often aggressive tactics in health care fraud cases, some experts said.
Doctors often are forced to settle such cases, even when they did nothing wrong, because the financial stakes are so high, said Robert S. Salcido, a Washington, D.C.-based attorney for Akin Gump Strauss Hauer & Feld LLP and a former Justice Dept. civil fraud lawyer. Sometimes doctors also face significant jail time.
The only reason we have hope in this case is because one doctor refused to be intimidated and fought for his vindication from false accusations. According to the story, he has spent over a million dollars, far more than he was granted in response to the government’s frivolous prosecution.
Now that I think of it, this story comes pretty close to a conventional medical malpractice tort issue. What it indicates is that the government itself might be another patient-attorney team who are driving up the cost of practicing medicine by unwarranted litigation–a cost that gets shared by all patients.
Dr. Wes posted a really interesting entry today pointing to a Chicago Sun-Times article, “Used pacemaker could keep someone else ticking: But most aren’t removed from patients who die.” He writes of the article:
I looked and saw my colleague at University of Chicago, Brad Knight, MD who researched the fact that most people would want their loved one’s device donated, if it could be, and realized this is in opposition to the new Heart Rhythm Society’s mandate to return all defibrillators to the manufacturer for “analysis” to assure “quality” devices are manufactured. This new mandate must make it tough for groups like Heart to Heart, a nonprofit group in Billings, Montana that collects pacemakers and defibrillators from funeral homes and families to gives them to Solidarity Bridge and other groups for use in Third World countries.
It turns out that many such devices are simply buried with the deceased who first used them. Only in the case of cremations are they removed to avoid an explosion. But whether buried or returned, better things can be done with these devices. According to the Chicago Sun-Times report:
An organization affiliated with the Archdiocese of Chicago has donated several hundred recycled pacemakers to poor patients in Bolivia.
The patients have Chagas disease, which can cause slow heart rate and other cardiac problems. Patients typically are 30 to 60 years old, and many become bedridden.
The devices are tested, sterilized and recalibrated before they are donated to Bolivian clinics.
“It’s a wonderful high-tech instrument that makes a lot of difference in people’s lives,” said Juan Hinojosa of Solidarity Bridge, which distributes the devices in Bolivia.
Heart to Heart, a nonprofit group in Billings, Mont., collects pacemakers and defibrillators from funeral homes and families, and gives them to Solidarity Bridge and other groups for use in Third World countries. Only devices that retain at least 80 percent of their original battery life are used.
Recycled devices have been implanted in about 1,400 people and have worked well, said Heart to Heart founder Bill Daem.
Why is this not done and encouraged more often? It seems there is a medmal issue standing in the way.
But Medtronic, a leading manufacturer, opposes reusing the devices in people. A spokeswoman said the company cannot ensure recycled devices are as safe and reliable as new devices. The complex devices might be hard to sterilize, and cleaning and reprocessing could have a “debilitating effect on the durability of the materials.”
Dr. Wes says this statement “fell flat to me,” and asks,
What if Medtronic could be absolved of the liability, in such a case? There’s a lawyer somewhere who could make that happen, isn’t there? Also, consider that re-sterilization could use a variant of a cleansing agent and water, followed by exposure to ethylene oxide, the same technique used to sterilize the original device. Perhaps Medtronic could add this to their philanthropic efforts already under way?
In fact, Medtronic has given devices away, though not used ones. That is too bad because there are probably many more people, here and abroad, that would prefer an affordable means of treatment to none at all due to medical malpractice concerns.
I was pointed to this horror story, “Death Points to Risks in Research,” by the Wall Street Journal Health Blog’s post, “Hope trumped Skepticism as Patient Mulled Study Risk.” The problem was that there was not much time for mulling. The result is a controversy over whether or not what happened was a form of medical malpractice.
Breaches of clinical research standards and a federal oversight system that allowed key decisions to be made behind closed doors may have helped draw Mohr into an experiment that was not, her husband says, what she thought it was.
“It was presented to her like this is going to make her knee better,” said Robb Mohr, an agronomist who lived with his wife of nine years in a modest vinyl-sided ranch home near Springfield, Ill. “It was supposed to be just a simple thing.”
Company officials vigorously defend the study, saying they were upfront about risks, adhered to all regulations and were terribly saddened by the loss. “We’re human,” said H. Stewart Parker, Targeted Genetics’ chief executive. “This is not just a patient. This is a person, and this is a horrible tragedy.”
A two-sentence paragraph halfway through a 15-page consent document that Jolee Mohr signed warns of the possibility of “unknown side effects,” including, “in rare circumstances, death.”
Further in, after long descriptions of how the product may help, a single sentence states: “We do not expect you to receive any direct medical benefits from participation in this study.”
I have no way of knowing if the company’s response is accurate or if the grieving family has a valid complaint. The truth will have to be sorted out by the authorities. But this does demonstrate that clear communication and doing all one can to create realistic expectations is quite important if doctors want to avoid being pulled into medmal litigation. Medmal insurance providers themselves are providing training for doctors in how to ensure they have informed their patients of the risks and real possible benefits as fully as possible. Communication is an essential component to good medical practice.
And it is very good advice.Still there is something ironic about it.
The occasion for the post was that “‘Good Morning America‘ host Robin Roberts recently announced that she has breast cancer, and will begin treatment with surgery.” The blog points out that,
Though Roberts detected a suspicious lump during a self breast exam, a follow-up mammogram reportedly failed to detect it. An eventual biopsy revealed the need for surgery.
The post relays tips from the American Cancer Society that will help ensure “that you receive a quality mammogram.” The tips are fine and you can go read them at the post, or at the much longer article on the American Cancer Society’s website.
But what I find ironic is that these come from the Washington DC Metro Area Medical Malpractice Law Blog. I’m glad they are passing on helpful information, of course, but I think it would be good to remind readers that medical malpractice costs seem to be causing a shortage of mammogram readers. Just last week another story was published, “Women Furious Over Long Lines For Breast Cancer Screenings.”
Around the nation, wait times for women trying to schedule a mammogram can be even longer because fewer clinics are doing mammograms.
Officials said the main problem is a shortage of radiologists — the experts who read and interpret the mammograms.”No one wants to go into radiology. Malpractice is huge for mammography out there,” Vicki Belmont said.
The story claims that the other issue is that more women are supposed to get mammograms, but that really doesn’t explain anything. Normally, when the customer base for a business grows then so does the business. More customers cannot explain the decline in a service. Something else has to be going on. The medmal component is crucial.
It is no secret that health care reform is going to be a major issue in the coming US presidential race. Republican runner, Rudolph Giuliani, has made medmal issues a part of his plan, including statements about medical melpractice tort reform in his speeches. As one of several sources recently reported:
Giuliani also spoke in favor of tort reform, saying those who are legitimately injured by doctors should be compensated, but damages should be capped and those who file frivolous lawsuits should have to pay the physician’s legal fees.
“If a person gets injured, he should be compensated, but he shouldn’t get the brass ring or win the lottery,” Giuliani said.
As you will see if you follow the link to the story, I got this from the UK’s Guardian. It seems ironic to me that I also found a report from Law.com involving a medmal case and the UK.
A New Jersey appeals panel has handed Merck & Co. a victory in the mass litigation over its painkiller Vioxx by barring 98 English and Welsh users of the drug from suing in the state’s courts.
The plaintiffs wanted to take advantage of New Jersey’s plaintiff-friendly laws and fee-switching rules that do not exist in the United Kingdom, the other possible forum (read the rest).
I’m not interested in making any claims about which court system is superior. I don’t know enough to have an opinion. But it at least shows how much tort law is not some sort of self-evident timeless principle, but can change from place to place and, therefore, from time to time. There is nothing at all strange about at least considering whether the current tort system somewhere is doing more harm than good.
