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Kevin MD pointed out this medmal story, and it deserves some scrutiny. The Fayetteville Observer ran as story available now online entitled, “Neurosurgeon shortage critical.”
As of Monday, Fayetteville will only have a neurosurgeon on emergency call three days a week. The rest of the time, patients who may need emergency brain surgery will be sent to UNC Hospitals at Chapel Hill.
Cape Fear Valley Health System previously had neurosurgeons on call 24 hours a day, seven days a week through an exclusive agreement with Carolina Neurosurgical Services, a group of four brain surgeons — the only ones in town.
Earlier this month, however, one of the group’s surgeons, Dr. Rene Kotzen, voluntarily gave up privileges at the hospital to lower his high malpractice insurance costs, said one of the group’s leaders, Dr. Carol Wadon.
As a result, the group told the health system it could no longer provide around-the-clock coverage of the emergency room.
A lot could be said about this amazing story, but I want to single out one quotation from Dick Taylor, CEO of the North Carolina Academy of Trial Lawyers:
“We recognize that there really are issues with malpractice insurance rates, and that it is unregulated,” Taylor said. “But we also need to make medicine safer. To take away the incentive to make it safer is the wrong way to go.”
But what does this incentive produce? Reasonable medical decisions? I’m not going to google “defensive medicine” right now. Do that at your leisure (and be sure to scan the Google blog search engine as well). Ask yourself, Is this response to the fear of medical malpractice lawsuits really making medicine safer?
I just found this entry, “More on liability reform and the medically underinsured” (actually, I found it a couple of days ago and just had time to read it!). Apparently, scholars are doing empirical studies on any relationship tort reform might have to the number of uninsured.
Just to be clear, if I’m reading this right, the issue here is not about medical malpractice insurance for physicians, but about general health insurance. The issue, as summarized here is:
Ronen Avraham & Max Schanzenbach, “An Empirical Study of the Impact of Tort Reforms on Health Insurance Coverage,” which was a very clever time-series analysis that showed a relation between tort reform legislation and higher rates of insurance coverage (i.e. fewer uninsured). Although the effect is not large, it does corroborate the idea that fewer successful lawsuits = less defensive medicine = lower insurance costs = more people with insurance.
That quotation is from a paper the Point of Law blog discovered over a year ago. More recently he stumbled up this one: “How Do the State Medical Malpractice Laws Affect the Access to Health Care?” It found, “caps on non-economic damages are associated with decreasing rates of uninsured.”
So it is not just about medmal rates, it is about making health coverage more widely available.
The RangelMD has a pretty upsetting post entitled, “Medical Ethics: You can’t force a patient to stay alive.” I realize, this post may get more complicated than I mean it to because it raises, in addition to medical malpractice, “right-to-die” and euthanasia issues, which I would like to avoid.
Putting those things to the side, it shouldn’t be arguable that a patient can refuse treatment without being sedated and having it forced into him. There are patients who have lost their authority to make their own medical decisions, but there is an understood court procedure required for that to happen.
But, in this case, the doctors removed the patients authority to make his own decisions without any legal right to do so.
This was witnessed by the family, the nursing staff, and myself and was well documented. But the pulmonologists felt that the patient may not be capable of making his own decisions because the carbon dioxide level in his blood was rising as a result of his ventilatory failure. However, it was obvious that he remained clear headed and able to determine his own fate.
Then one of the lung specialists ordered that the patient be sedated and placed back on the ventilator. Hold on a sec! Isn’t that assault? Yes it is. But the specialists felt that from a liability standpoint, they could not be 100% sure that the patient is fully competent since he could not speak and he had a relatively high carbon dioxide blood level. They felt that this uncertainty could be brought up in court and used against them should the case ever go to trial.
Wait a minute! The family witnessed the patient communicating with the staff and they agree that he is competent and free to make his own decisions. All of this has been witnessed and properly documented. And nobody is talking about a lawsuit. As far as I know there are no issues of potential malpractice in this case. But the specialists felt that they should err on the side of keeping the patient alive since some uncertainty remains.
While I suppose the wisdom of all this is debatable for some readers, I don’t think anything really positive can be said about sedating and forcing treatment on a patien against his will. Basically, our medmal environment makes it impossible to trust patients. If they later regret what they were allowed to decide (or their family regrets it), they have the option of suing.
On one level this medmal story in the Ann Arbor News has an OK ending, “Doctor admits to false testimony in Ann Arbor VA case.”
Dr. Alex Zakharia, 69, of the Miami area, pleaded guilty to contempt of court, according to the U.S. Attorney’s Office. Authorities said he testified as an expert witness in 2002 on behalf of a plaintiff charging a doctor at the VA with medical malpractice in connection with a coronary artery bypass graft.
He admitted that during the deposition, he falsely bolstered his credibility as an expert by creating the impression that he was the lead surgeon for numerous coronary artery bypass grafts – when he never conducted such surgeries, officials said.
Under a plea agreement, Zakharia faces up to one year in custody, must make restitution with affected parties, and will retire from medical practice by the end of the year.
In exchange, felony charges pending against him for perjury, mail fraud and wire fraud will be dismissed. He will be sentenced Dec. 11.
The lawbreaker was caught. He is making restitution, etc. Good enough? At least one doctor thinks it is not enough:
Instead, they should throw the book at him and show others that this crap should not be tolerated from anyone. I don’t care whether you’re a doctor, a cop, a scientist, or a street bum. You’re lying in order to persuade 12 people who are trying to make an honest decision that will affect someone’s career, life, finances, freedom, etc. — all to make a quick buck from some unsuspecting attorney.
Dishonesty of any sort under these circumstances is just wrong on so many levels.
He’s right about how wrong it is. And I can’t help noticing how long it took to get the guy to a guilty plea. What I would like to know is, have we caught all the perjurers from 2002? How often does this go on in medical malpractice court cases?
Sometimes, you just can’t catch everyone. One way to keep society from being destroyed by the crime is to make sure the people who you do catch are prosecuted to the full extent of the law. I would love some way to find out (1) how often perjury takes place–especially in medmal cases, (2) how often it is likely that they get caught, and (3) what the average penalty amounts to.
I suppose there is no way to find out.
I was tempted yesterday to blog that it was a “slow day in the blogosphere” for medmal issues because I didn’t find much in either recent blogs or recent news having to do with medical malpractice.
But then I noticed that apparently things have been slow in Maryland. So slow, in fact, that Maryland’s largest medmal insurer is asking to be released from the state subsidy program and offering to return $32.5 million. It seems that in 2003 and 2004, insurers raised rates 28 percent and 33 percent back to back. Doctors made it clear to the Maryland government that their practices would come to a halt, and so the state started a subsidy program.
So what has changed. What is different now in Maryland than the way it was in 2004? According to the story, “Malpractice insurer plans to exit subsidy program early,” not much.
Dr. Martin Wasserman, executive director of MedChi, the professional society for the state’s doctors, cautioned yesterday that malpractice issues remained.
“While we have a current reprieve from the crises of 2003-2004, the need to address all of the problems associated with medical liability costs has not gone away,” he said.
“There will be another crisis,” he said. “The concerns I have are that this can lead people into complacency and to the arguments that there never was a crisis.”
He said the state’s doctors still favor tort reform, changes in the laws governing how medical liability claims are judged and paid out, to avoid cyclical crises in the future. But he conceded that this year, with Med Mutual returning money to the state, “It’s awfully hard for people to build that case.”
The story follows this up with some comments from state Senator Brian E. Frosh, chairman of the Judicial Proceedings Committee. He articulates the hypothesis (stated as fact) that what happened was simply a part of the alleged “cyclical” nature of the business.
Cyclical? What does that mean? It “just happens”?
I would suggest is is more like hurricane season, only not as cyclical. A couple of years of no storm hitting your property doesn’t mean you don’t need to worry about the large glass window facing the ocean of your beach front home. What has happened since 2003 demonstrates that the entire medical malpractice industry (and thus really the entire medical system) is only a few lawsuit losses away from being forced into political protection.
Is that stable? Does it seem at all reasonable that doctors can be pushed to the brink of needing to leave their practices in a state because of how medmal works out that year?
I would say that, instead of demonstrating the wisdom of the Maryland government in refusing to institute tort reform, that the entire story since 2003 makes a case for reforming the system.
Mississippi has a testimony too! According to the story from WTOK-TV in Meridian, MS, Governor, Doctors Praise Tort Reform, up until 2003 when Tort reform was passed doctors were leaving the state. Since it passed they have begun to return: “Barbour announced the fifth decrease in medical liability rates in three years. Overall, that’s a 45 percent decrease.”
What amazes me though is the domino effect this has in the regional economy:
But tort reform hasn’t just benefited the state medically. It’s keeping jobs here in Mississippi. Tort reform means fewer lawsuits against business owners as well, whether it’s Toyota or a mom and pop operation.
“One lawsuit could put a small business out of business, and in fact, small businesses could go broke winning a lawsuit,” said the governor.
But Dr. Randy Easterling says more doctors means more medical professionals like pharmacists and nurses stay in Mississippi.
“Every physician represents 52 jobs in a community,” said Easterling. “So if you lose ten physicians, you lose 520 jobs. If you lost twenty, you’ve lost a Nissan plant.”
Now returning doctors mean the Nissans and Toyotas will stay and more like them will follow [READ THE REST].
Now they have more doctors, and hospitals report a much easier time recruiting doctors.
Hat Tip: Kevin MD
Since we’re coming up on the campaign season let’s cover a related medmal issue. The Medpundit blogged today:
A Study in Contrasts: Medical professional organization political donations in 1990 and in 2006. The reason? Surely it must be tort reform.
The contrast is that, in 1990, giving to Democrats and Republican causes was split almost 50/50 among doctors. That has changed. Now the ratio is 63 to 37 in favor of Republicans.
So is the Medpundit right? Is tort reform the key issue in which Republicans have attracted doctors and Democrats have alienated them?
It’s hard for me to think of any other possible explanation. Maybe healthcare is a factor, but it is easy to find doctors on both sides of that issue. If the issue was taxation or some other economic issue relted to a doctor’s income level, then you would expect the difference to be detectable in the nineties. Medical malpractice insurance rates seem like the most likely reason for the shift.
What do you think?
Since we have been tracking the goings-on in Texas for awhile on this blog, I have to let you know the latest:
The Texas Medical Liability Trust’s governing board voted to reduce rates for Texas policyholders and pay out a dividend once policies are renewed in 2008.
TMLT is the largest writer of medical malpractice insurance in Texas.
The board approved a 6.5 percent rate reduction on all medical specialities and classes, effective Jan. 1, 2008. In addition, all current TMLT policyholders renewing their policies in 2008 will receive a dividend equal to 22 percent of their expiring premium. This dividend is worth $35 million [READ THE REST].
This is the fifth consecutive year that rates have been lowered since medical malpractice Reform was instituted in Texas. Of course, insurance companies are vastly better off with many more clients rather than charging higher rates to a shrinking number of doctors. And, as we have reported, Texas is experiencing a rapid increase in doctors who want to be able to practice their craft without the fear of sudden, unpredictable, staggering losses that ruin them.
And this is better for all Texans who, as they suddenly have more medical options, will be able to choose the right doctor and find him or her vastly more affordable.
Hat tip to Kevin MD for the story. As a salute to the first blog entry that led us to the ongoing Texas story (if we can agree that imitation is flattery) here is a video for celebrating this five year record.
An ER doctor in the Pacific NW blogged about a recent medical malpractice verdict that went against a doctor for not preventing a heart attack death, and then followed up with some more thoughts. The posts are well worth reading for anyone interested in the medmal situation.
This unfortunate man had a very rare and highly lethal disease; he also had a very common complaint. I see 30-year-olds with chest pain every single day. Like the ER doc in this case, most go home with a reassuring diagnosis and some supportive medication. And I have been lucky — none of them unexpectly dropped dead. And I know, as all ER docs working in the pits know, that if and when one does drop dead, the ER doc (or whomever last touched the hot potato) is going to be blamed. So I test like crazy and just hope that I happen to be ordering the right test on the right patient. Some of what I do is cookbook medicine, but a lot of time the patients don’t read the textbook before coming in, so I have to cast a wide net — what we call using the “shotgun approach.”
So when you come in to the ER and you have to wait hours to be seen, maybe you have to endure multiple semi-necessary tests, maybe you get admitted or get an invasive procedure “just to be safe,” this is why. Because I do not wish to suffer the same fate as the poor Dr Dy. Whose name, I note, is no longer listed on the medical staff of the hospital where the event took place — a hospital which is very prestigious and well-compensated. Maybe she just moved on. More likely she was shown the door.
And the state Physician Quality Assurance Commission did review the case and found Dr Dy’s care to be within the standard of care. (pity that’s not admissable at trial.)
He stresses that he doesn’t have any knowledge beyond a newspaper report, and that there may have been some sort of negligence. But as far as he could tell from what he read, this was a case of “chest pain” like many others.
His second post has an interesting discussion of how little families get from these legal victories. “I’ve said for a long time that one major deficiency of the medical liability system is that it delays and denies justice to those who truly have been injured by medical negligence.”
Among many other valuable thoughts, he points out how one simply cannot get guidance for medical care from these trials:
A jury just made a strong statement as to the standard of care for diagnosing Aortic Dissections. Unless the case gets published, as a practicing ER doc, I have no clue how I am to incorporate this standard into my practice. What was the error that Dr Dy made that I must now avoid? How does this verdict improve American healthcare? As far as I can tell, it does not.
Thus, all we get is an increase in paranoia and more “shotgun” approaches to expensive testing.
Sometimes I wonder if medmal blogging and the medical malpractice issue in general is making me too cynical.
A case in point would be a recent blog entry about the problem patients not taking their meds or not taking the proper dosage:
Millions of Americans do not take the drugs they are prescribed, or do not take them correctly, according to a new report by the National Council on Patient Information and Education. The report sheds light on a lesser-acknowledged aspect of the nation’s health care conundrum: even when Americans have access health care services, they may not get the treatment they need to actually improve their health.
The report identifies several factors that contribute to this problem, including the patient’s “denial of illness and the need to take medicines,” and “the assumption that once the symptoms improve or the person ‘feels better,’ he or she can discontinue use of the medication.”
The blog also relates the reports “six strategies” for getting patients to comply with their prescription. These include,
Offering verbal counseling from both the prescribing health care provider and the pharmacist that the prescription should be filled and taken as prescribed. While written instruction sheets can reinforce these instructions, they should never be used as a substitute for counseling;
and
Providing useful written information in “patient language” that clearly explains how the patient can correctly manage his / her medications. This information includes details on how to administer the medication, the exact time the medicine should be taken and why, how long to take the medicine, recognition and management steps for common side effects, special precautions, and how to monitor the progress of the therapy;
All these suggestions sound great, and the whole blog entry may be helpful. Sadly, the first thought that occurs to me is that these recommendations may soon be used to hold doctors and health care institutions liable for patient noncompliance.
Am I being paranoid?
Partly the reason for my discouraging reaction is that the entry comes from the DC Metro Area Medical Malpractice Law Blog (though, in their defense, the blog publishes generally helpful information without directly tying it to medical malpractice). But even apart from that, in our current environment, it is difficult not to interpret “helpful advice” as an implied threat or at least a future threat that you will be held responsible for things beyond your control.
It is not hard to imagine, for example, a tendency in the future to increasingly mandate hospitalization, since staff can then actually carefully watch a patient to make sure he takes his meds.
Am I overreacting? What do you thing?
