Medical Malpractice News and Views

Welcome to our blog where we discuss current issues in medicine and law. We welcome your comments.

The Walmarting of American Medicine.

April 16, 2018

Where do you go when you need to see a doctor?  For many Americans, the answer is no longer “to my family doctor.”  Patient visits to family practice doctors have been declining for years.  Many of these patients now take their medical problems to an urgent care center.  This is not always a good thing.

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Urgent care centers offer convenience.  Why make an appointment with your doctor?   Why take time off from work?  Why not just drive over to the urgent care center after work?

Convenience comes with a price.  The doctor or physician’s assistant or nurse practitioner at the urgent care center does not know you.  They may never have seen you before.  He or she does not have your medical records.  He or she may not be as well trained as your personal doctor.  Increasingly, he or she may be working for a large corporation which sees you as a cash cow and only incidentally as a patient.

It is no coincidence that Walgreen’s, Walmart, and CVS, all of which sell medical supplies and fill prescriptions, are either buying or looking to buy urgent care or similar practices.  These clinics bring customers to the store.  The customers/patients may need to buy medical supplies ordered or suggested by the store’s health care employee.  The customers/patients may need to fill prescriptions ordered by the store’s health care employee.  Where better to have all these needs met than the local big chain store?  Are you sure the store’s health care employee has your best interests at heart in making these suggestions or ordering these prescriptions?

Most troubling of all, from my perspective, is the lack of specialized training of these health care employees.  I have had a number of malpractice cases in which the urgent care practitioner misdiagnosed a problem or misunderstood the medicine and failed to recognize a medical situation for the dire emergency it was.  Serious injuries and death have resulted.

Physicians who work in emergency departments are almost always specifically trained for the demands of an emergency medicine practice.  They are trained to identify emergencies.  They usually have available to them the resources of the hospital in which the emergency department is located.  This can mean radiology and laboratory services, the ability to call a specialist, if one is needed, and the ability to have a patient admitted to the hospital, if warranted.  On the other hand, pretty much anyone with a medical license can work in an urgent care center.  They may or may not recognize a true emergency when one presents itself.  They rely greatly on the customer/patient to decide if they are really sick and to go to the emergency department, if they are.

There is not much we can do as customer/patients to reverse these trends.  Big business will do what it wants, as usual.  What we can do is be aware of what is going on.  Don’t trade the value of a personal relationship with your physician and your ability to choose a well-qualified physician for the convenience of an urgent care center without at least giving the matter some thought.  Be careful what conditions you bring to the urgent care center.  Be aware of the limitations inherent in an urgent care center.  Last of all, if it is a big box store with an urgent care center in it, remember that they are trying to sell you something at the same time as they are trying to meet your medical needs.





Posted in Doctors, health, healthy living, Hospitals, medical charts, Medical Costs, medical errors, Medical Malpractice, medical mistakes, Medical Negligence, Misdiagnosis, Pharmacies |

Genomic Testing in Prostate Cancer

April 11, 2018

There were approximately 165,000 new prostate cancers diagnosed last year in the United States.  During the same time period, there were 29,000 deaths from prostate cancer.  The deaths were almost entirely due to highly aggressive forms of the disease.  Most of the patients with less aggressive forms of the disease will die of other causes before the prostate cancer can kill them.

Image result for prostate cancer

One of the great dilemmas in prostate cancer medicine is whether and when to test and, if testing is positive, whether to treat or to watch and wait.  Of the 165,000 new prostate cancer patients, most will choose to have one of the three definitive treatments: removal of the prostate (prostatectomy), direct radiation, or insertion of radioactive pellets into the area of the prostate (brachytherapy).  Not only are these treatments expensive, men who have had any one of the three have a less than 50% chance of being able to have a functional erection in the future.  They are also at significant risk for urinary problems such as having to urinate frequently (frequency), having to urinate right now (urgency), and not being able to control their urine (urinary incontinence).  When these side effects are present, most men will say they do not have a good quality of life.  Since aggressive fatal prostate cancers are only about 20% of the total, many of the remaining 80% are being overtreated – to their great detriment.

Fortunately, medicine is getting better and better at identifying the aggressive cancers and differentiating them from the less aggressive ones, which can be safely monitored.  Genomics tests, which have been used with great success in identifying aggressive breast cancer tumors, are being used to identify aggressive prostate cancers, but their success rate is not quite as good as it is in breast cancer.  Even with these limitations, the use of genomics testing has reduced the number of patients with low or intermediate grades of prostate cancer who choose to undergo one of the three definitive treatments.

While it is important for men at risk to be tested for prostate cancer, a positive result alone should not mean treatment, much less one of the three definitive treatments.  For most men, active surveillance will be the appropriate course.  Should the cancer turn aggressive, the option for definitive treatment can be exercised.  In the meantime, the patient’s quality of life can remain good.  As always, talk to your doctor but be a knowledgeable consumer of the health care they are selling.

Posted in Doctors, General Health, genetic testing, healthy living, Prostate Cancer, prostate cancer testing, science news |

Doctors on the Take – Part Two

April 09, 2018

It’s hard to keep patients safe when the fox is in the chicken coop.  That’s what happens when unscrupulous doctors and drug manufacturers are permitted to influence patient care in order to line their pockets.  That’s the ultimate medical malpractice.

My partner recently commented about a CNN story which reported that doctors prescribing opioid medication most frequently seem to be taking the most amount of money from drug companies.  While that may not come as a surprise, it’s not always easy to spot because the doctors and the drug companies take steps to cover their tracks and look legit.

Image result for fox in chicken coop

Case in point.  Five doctors, some of whom were affiliated with prestigious hospitals, were recently indicted on charges of conspiracy to prescribe a spray version of fentanyl, a powerful and addictive opioid, whether the patients needed it or not.  The indictment charges that they were encouraged to do so by the drug’s manufacturer Insys in exchange for payments disguised as “speaking fees” for educational lectures on the drug.  In reality, the lectures were  cocktail parties paid for by the manufacturer and the “speaking fees” were kickbacks for prescribing.  The more prescriptions, the more money Insys paid the doctors.  Again, and not surprisingly, one of the highest paid doctors of those who were indicted was also the fourth highest prescriber of the drug in the nation.  In addition to money, the manufacturer provided the doctors with trips to casinos, nightclubs, sporting events and strip clubs.  All in exchange for potentially addicting patients and possibly killing them with a drug many did not even need.

Whenever I depose a doctor, he or she always admits that patient safety is the number one concern.  Most doctors care deeply about their patients.  Most of the time, those doctors that harm patients are the victims of their own human error caused by a complacency, although that’s no excuse.  Unfortunately, under our current system, powerful companies whose only goal is to make as much money as they can whatever the cost can that power influence doctors to harm patients out of avarice and greed.  One might legitimately ask how there can ever be absolution for these age-old sins .


Posted in Doctors, drug companies, Fraud, Uncategorized |

Doctors On The Take?

April 02, 2018

You don’t need me to tell you we have an opioid crisis in this country.  Men and women of all ages, income levels and education levels are dying from overdoses.  Not only are there illegal opiates, such as heroin, entering the country, we are awash in legally manufactured pills.  Drug companies produce far more pills than can be justified by reasonable pain prescriptions.  Many of these pills end up in the hands of addicts.

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Until recently, many well-meaning doctors prescribed opioids for pain relief, even when the pain was not terribly severe.  They had been told by the drug manufactures that people in pain needed opioids, that they were safe to prescribe and that there was little risk of addiction.  Now we know that none of that is true.  People can and should get by on non-narcotic pain medications or on the lowest effective dose of an opiate.  Prescribing narcotic pain medications either in large doses or over a long period of time is an almost sure ticket to addiction.

Now we find that not all those doctors prescribing opiates are well-meaning.  First, there are the doctors who run what are called “pill mills.”  These doctors will write a prescription for anyone who comes in the door and says that their back hurts.  Sometimes, they get a kickback from the pharmacy.  Sometimes they get a kickback from the patient.  Sometimes, they take some of the pills they have prescribed and sell them on the black market.  Sometimes, they are just cheating Medicare through unnecessary billings.

Second, are the doctors who accept money from the drug manufacturers.  CNN recently reported on an investigation into payments to doctors by the companies that manufacture opiates.  In what may be just a giant coincidence, the doctors who prescribe the most narcotic pain pills get paid the most by the companies that make the pills.  Some of those who are heavy prescribers receive very large amounts of money from the manufacturers.  The more you prescribe, the more you receive from the drug manufacturers.

To be sure, drug manufacturers pay doctors for a variety of services, including consulting and speaking.  The money being paid to those who prescribe pain pills may have nothing to do with how much they prescribe but it sure looks like it does.  In general, there is a lot of truth to the adage that if it walks like a duck and quacks like a duck, it is probably a duck.

We as patients want to believe that our doctor has our best interests at heart when making medical decisions, including prescription decisions.  The figures uncovered by CNN show that, while we may want to believe that, we cannot forget to protect ourselves.  We need to be vigilant not to let a doctor accidentally addict us to painkillers.  We need to try and get by without narcotic painkillers, if possible.  If we need them, we need to take the smallest dose which addresses our pain issues.  We need to stop taking the pain pills as soon as we no longer need them.  Lastly, we need to dispose of the remaining pills in a responsible manner so that they do not end up in the hands of someone who is addicted.  If we do our part, we can help by protecting ourselves and keeping at least some pain pills out of circulation.


Posted in Doctors, drug companies, Fraud, Health Care Costs, medical ethics, Medicare, Medication Errors, Pharmacies, Secrecy |

Sepsis: The Waiting Killer

March 26, 2018

From time to time people ask me what is the most common form of medical malpractice I see.  I usually answer that there is no most common form and that there are many ways in which mistakes can be made.  While that is true, many of the mistakes I see lead to the development of sepsis, which I refer to as the waiting killer.

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Sepsis is part of the body’s response to an infection.  It often begins slowly and innocuously and then becomes more and more serious until it takes the life of the patient.  I see sepsis in connection with many medical mistakes.

Recently, I settled a case in which a young woman died as the result of sepsis following a laparoscopic surgery in which her bowel was inadvertently pierced.  Injury to the bowel is one of the recognized risks of laparoscopic surgery where the surgeon is using a small camera inserted into the body to guide surgical instruments.  The bowel injury may not be noticed and the patient is sent home with bowel contents spilling into the abdominal cavity.  These bowel contents are full of bacteria and release toxins into the bloodstream.  The result is sepsis.  Unrecognized bowel injuries are a leading cause of the development of sepsis.

Sepsis usually follows a pattern.  The first signs are a fever, a slightly rapid heartbeat and slightly rapid breathing.  If not corrected, sepsis becomes severe.  The patient’s kidneys stop working properly and urine production drops.  Breathing becomes difficult.  There may be an abrupt change in mental status and there may also be abdominal pain.  The final stage is septic shock in which the blood pressure drops to very low levels.  Septic shock is resistant to the usual treatment of fluid replacement.  The very low blood pressure prevents the organs of the body from being properly nourished with oxygen.  They shut down and the patient dies.

In addition to injuries such as bowel perforation, infections are often a cause of sepsis.  Any infection can cause sepsis but pneumonias, abdominal infections, kidney infections and infections of the bloodstream are infections which are more likely to cause sepsis.

Sepsis is always waiting in the wings to take advantage of an infection or a weakness of the body.  As the little drawing above warns, sepsis kills.  Health care providers must recognize sepsis when it presents itself, resuscitate the patient and refer the patient to a hospital where he or she can receive the treatment necessary for survival.  If you have been sent home after a surgery or hospitalization, you also should be aware of the signs of developing sepsis and return for the prompt medical care that may save your life.

Posted in blood infections, Doctors, Hospitals, Infection, Medical Malpractice, Nurses, Sepsis, Surgical Errors |

Wrong Site Surgery – A Never Event

March 19, 2018

You may have heard about outrage over the recent report of a Kenyan physician performing brain surgery on the wrong patient.  You can read more about it here.   This is a pretty extreme example of a wrong site/wrong patient surgical error, and one of the types of “never events” my partner wrote about last week.  Unfortunately, wrong site/wrong patient surgery events like this occur everywhere, not just in the third world.

The incidence of wrong site/wrong patient surgeries in the United States is difficult to pin down because there are no mandatory reporting requirements.  Fear of litigation and of poor rankings among health care providers, as well as the refusal of insurers to pay for harm caused by wrong site/wrong patient surgery, actually provide a reporting disincentive.

Current studies estimate wrong site surgery occurs between about 1 in 27,000  and 1 in 110,000 procedures.  On the bright side, since the Joint Commission on Accreditation of Healthcare Organizations began to shine light on the problem in 1998, reports of wrong site surgery incidents have increased from 15 in 1998 to over 1500 in 2015.  During this time, several groups have devised systems and procedures which have built upon one another to address the problem.

For example the American Academy of Orthopedic Surgeons encourages surgeons to “sign” the correct surgical site, while also marking the incorrect site (i.e. “Not This Leg”).  The Joint Commission developed a three-step Universal Protocol involving (1) preoperative verification, (2) marking the operative site and (3) then taking a time out to verify the correct site again.  The American Association of periOperative Nurses developed a Correct Surgery Tool Kit, including an education program, pocket reference guides for ensuring the identification of the correct surgery site, a copy of the Joint Commission’s Universal Protocol, and guidelines for developing additional protocols to address and prevent wrong site surgical procedures.

Surprisingly, there may not be much patients themselves can do to prevent wrong site surgery occurrences.   One group of experimenters for example found that among patients asked to identify a foot or ankle on which surgery was to be performed, 40% marked the wrong one.  You can take some steps to avoid wrong patient surgery by telling everyone who will listen who you are and what surgery you are to have.

Ultimately, the surgeon is responsible for operating on the correct body part in the correct patient.  But, he or she needs systems in place to make sure that happens.  While those systems continue to be developed here in the U.S., until universal reporting of never events like wrong site/wrong patient surgeries is implemented, it will be difficult to gauge their effectiveness.



Posted in Doctors, Medical Malpractice, medical mistakes, Medical Negligence, never events, Secrecy |

Never Events Just Keep On Happening.

March 12, 2018

The term “Never Event” was created in the early 2000’s to denote an event that should never occur in the presence of good medical care.  It is now used to describe events which are clear, which cause serious injury or death, and which are usually preventable.  There are now 29 listed never events.  Every one constitutes what any reasonable person would call medical malpractice.

This is a picture of a never event.

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Some surgeon left a hemostat inside a patient.  This will not happen if everyone is doing their job.  Other examples of never events are wrong site surgery, wrong patient surgery, wrong surgery, administration of contaminated drugs, development of an air embolism, patient suicide, death of a mother following childbirth in a low risk pregnancy, death or serious injury after patient disappearance, development of Stage 4 pressure ulcers, death or serious injury due to electric shock, and death or serious injury due to a burn.  If you have been counting, you know there are still more never events but you get the idea.

I wish I could tell you that never events never happen or even that they happen infrequently.  Neither statement is true, however.  In 2013, a study concluded that there were 4,000 surgical never events alone in the United States.  A study by physicians at Johns Hopkins Medicine in Baltimore found that major lapses in patient safety were responsible for more than 200,000 patient deaths, more than 2.4 billion extra days in the hospital and between $17 and $29 billion in extra medical spending in the United States each year.  The authors did not limit their definition of “major lapse” to only never events but there is a strong correlation.

More than 25 states require that never events be reported to them but only a few make the reports public.  This is just another example of the secrecy with which the medical profession surrounds its mistakes.  Consumers and prospective patients deserve to know who provides bad care and who does not.  There is also no requirement in most places that the patient ever be told that he or she was the victim of a never event.  In fact, my experience has been that patients are often misled about what happened to them.  They are led to believe that no one was at fault for their injury.  They are led to believe it was just one of those things that could not be avoided.

Many who are advocates for quality in medical care have urged sharing of information about never events in an attempt to reduce or eliminate them.  Only by sharing information about mistakes can health care providers learn from each other’s experience.  For its part, The Centers for Medicare and Medicaid Services refuses to pay for medical care resulting from a never event.  The hope is that health care providers will act to preserve their income stream by improving the quality of care and preventing never events.  This approach has not eliminated never events, but it is a step in the right direction.

Other advocates for health care reform have called for the creation of “always events.”  These are safety measures designed to improve patient outcomes and reduce the occurrence of accidents.  They range from improved communication procedures to the use of checklists.  These advocates also urge that there be transparency when a patient is injured by medical error.

Be an informed consumer of medical services.  There is some information out there and before you choose a doctor or go to a hospital, you should review what information is available.  You can’t guarantee a good outcome but you can improve your chances.





Posted in Arizona Medical Board, disclosure of medical mistakes, Doctors, Health Care Costs, Hospital Negligence, Hospitals, Lawsuits, Medical Costs, medical errors, medical ethics, Medical Malpractice, medical mistakes, Medicare, never events, Nurses, Prescription Errors, retained surgical instruments, Secrecy, Surgical Errors |

Being Sued for Malpractice? Blame the Patient.

March 05, 2018

One of the favorite defenses in the Medical Malpractice Defense Playbook is to blame the patient.  I see it in almost every case I bring on behalf of an injured patient.  It is a favorite defense because it works so well.

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Sitting on a jury for a medical malpractice trial can be quite stressful.  After all, here is a person who says that he or she was badly injured by a doctor or a hospital.  Someone who went to the doctor or hospital for help ended up badly damaged.  Juries do not want to believe that doctors and hospitals kill and injure people.  Understandably, it makes them uncomfortable.

When we go to the hospital or to see the doctor, we want to believe them when they tell us there is no problem and that everything will be fine.  We don’t want to believe that we can be the victims of medical negligence.  This usually means that jurors must find some reason to explain what happened to the patient and how it could not happen to them.  This is where blaming the patient comes in.  It fills this basic human need to explain how this could not happen to the juror.

It is easier to conclude that the reason the patient was injured was because he or she did act like the juror is sure he or she would have acted.  A common scenario is the patient who is sent home when they should not be sent home.  They complain at the time that they are too sick to go home but are reassured by the doctor or the hospital that it is safe.  When something bad happens because they were too sick to go home, the malpractice defendant claims they should have made it clear that they were really sick in the first place.  Or the defendant says that even after they went home, they should have turned around and come right back.  Or that the patient did not explain it well to the doctor or nurse and that is the reason they were injured.

Juries like these arguments because it allows them to say that they would have come right back or that they would never have left the hospital or doctor’s office in the first place.  Jurors believe they would have been more insistent on getting the care they needed.  They believe they would not have relied on the doctor or the nurse saying there was nothing wrong.

While accepting the blame the patient argument eases the minds of the jurors, research shows that they likely would have done just what the patient did.  We like our doctors.  We believe our doctors.  We trust our hospitals.  When we are told it is safe to go home, we figure the doctor must know more than we do and we go.  We are reluctant to call back and complain that we still don’t feel well.  We don’t want to be a burden.  We don’t want to be seen as a whiner.  We hesitate to go to the emergency room because we are afraid it will annoy the doctor who just sent us home.

Human nature gets us coming and going.  Human nature prompts us to do what the doctor tells us to do and human nature prompts the jurors to say that we should have known better than to rely on the doctor.   The moral of the story is to be vigilant and complain to anyone who will listen.


Posted in Doctors, Hospital Negligence, Hospitals, Lawsuits, Medical Malpractice, medical malpractice cases, medical malpractice lawsuits, medical mistakes, Medical Negligence, plaintiff |

It’s The Money, Stupid.

February 26, 2018

I recently wrote about the loopholes in the FDA’s medical device approval process and how very few medical devices are subjected to rigorous scrutiny before being approved for use in patients.  Here is another example of the price we pay, both figuratively and literally, for this lax oversight.

Image result for cost heart stents annually united states

In 1986, heart surgeons placed the first coronary artery stent.  The stent is a cage which is expanded in the coronary artery to assure good flow through an area of narrowing.  In theory, it improves the blood flow, reduces the likelihood of a heart attack caused by restricted flow through the coronary artery, and reduces the pain associated with angina, the name given to pain due to inadequate blood flow to the heart.  The typical cost of a stent is between $10,000 and $40,000 depending on the location of the patient, the type of stent placed and the length of hospital stay following the procedure.  Somewhere around a million stents are placed each year in the United States.

Clearly, doctors, hospitals, and stent manufacturers make a lot of money from the million stents placed each year.  They divide up somewhere around $25 billion every year.  In addition to the financial cost of the stent, there are risks associated with its placement.  To place the stent, an incision is made in the groin and the carrier is threaded up the artery to the heart where the stent is ejected into position and expanded.  There may be bleeding at the site where the artery was cut open.  There may be damage to the wall of the artery as the catheter is threaded through it.  There may be a reaction to the dye used in the procedure.  The heart may develop an irregular beat.

While stents were at first thought to be a great advance in the treatment of coronary artery disease, further study has shown that they are no better than medical treatment alone in preventing future heart attacks and in keeping patients alive.  Studies have even shown that the pain relief stent patients report is largely due to the placebo effect.  Heart stents are unnecessary.  They don’t do any better than less expensive, less risky medical therapy.  So why are we spending $25 billion dollars a year on a procedure that offers no benefit?  It’s the money, stupid.

History is replete with examples of discoveries which threatened someone’s money flow and which were ignored or attacked by those who were on the receiving end of the money flow.  This is another example.  Study after study has shown that stents are of little or no value but doctors keep putting them in and hospitals keep charging patients thousands of dollars to stay there during and after the procedure.  Stent placement in the catheterization lab is the only thing some doctors do and they get paid a lot of money to do it.  When there are billions at stake, when there are livelihoods at stake, people will fight tooth and nail to protect what they have.  It is not surprising that those who benefit from the current practice of stent placement, dispute or ignore the clear findings of the studies which show no benefit from coronary artery stents.

Medical ethics should force these physicians to stop doing an expensive procedure which places their patients at risk for no demonstrable benefit.  Since that is apparently not going to happen, we must rely, God help us, on the federal government and health insurers to stop paying for placement of coronary artery stents.  From the patient perspective, if someone tells you you need a coronary artery stent, remember they are trying to sell you something you may not need.  You should be skeptical and ask a lot of questions.

Posted in Doctors, Fee for Service, Health Care Costs, Health Insurers, heart attack, Heart Attacks, Hospitals, Informed Consent, Medical Costs, Medical Devices, medical ethics, Medicare, placebo |

Superbugs Are Still Hiding in Hospitals

February 19, 2018

Superbugs is a name given to drug-resistant bacteria.  While no illness is a good one, an infection with superbugs is really bad because regular antibiotics are ineffective.  Drug resistance develops through the process of natural selection.  Normal bugs are exposed to antibiotics.  If the antibiotics are not strong enough or are not administered for long enough, some of the bugs will survive and pass their resistant genes on to their offspring.  Maybe the first set of survivors may not be truly antibiotic resistant but after a few more generations of exposure, the resulting descendants are.  One of the most common places for bugs to be exposed to drugs and to develop resistance is the hospital.

Image result for bacteria images

Hospitals know this and have been trying to rid themselves of superbugs but the bugs are built to last.  While hospitals have not been successful in eliminating the bugs, at least they know where they are hiding:  they are in the drains and housekeeping storage closets.  In fact the greatest concentration of superbugs is found in the drains of the ICU.  The bugs thrive in the warm, moist atmosphere of the drain pipes and the waste water of the housekeeping closet.  They coat themselves with a film which separates them from the fluids flowing through the drainpipes.  The film protects them from whatever the hospitals put in the drains to kill the bugs.

The good news is that the superbugs have not been found on surfaces that patients touch.  They are not on the doorknobs, the bed rails or on wheelchairs.  The bad news is that sometimes liquids splash back from the drain when a sink is being used and land on a nurse or doctor, who then carries the superbugs to the patient.  The other bad news is that those patients who are most susceptible to superbug infections are to be found in the ICU or the NICU, where the superbugs are most common.

Hospitals are continuing to study the problem and do what they can but superbugs are with us and are not likely going anywhere soon, except maybe home with us when we leave the hospital.  All you can do is practice good hygiene and insist that anyone who is going to touch you has thoroughly washed their hands.  You can also look to see what sort of infection rates your hospital has and, if they are high and another hospital is available to you, think about receiving your care there.


Posted in antibiotic resistant bacteria, health, Hospitals, Infection, Nurses, science news |