Medical Malpractice News and Views


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

Covid and the Bad Doctor

January 30, 2023

A Utah plastic surgeon has been charged by the United States with health care fraud and conspiracy arising out of a year-long scheme to sell fake Covid vaccination cards.  The cards were sold for $50 each.  It is unclear exactly how many cards were sold.

Did you lose or misplace your Covid-19 Card? | Punxsutawney Area Hospital

In addition to selling the fake cards, the doctor and members of his office staff also destroyed over doses of vaccine that they received that were worth over $28,000.  They pretended to administer these destroyed doses, but did not.  In some cases, children were injected with saline rather than actual vaccine.  The saline injections were at the request of the children’s parents.

The scheme was apparently part of the anti-government, anti-vax movement to stop vaccine administration as well as to defraud the government and “get the government out of health care.”

The fake vaccine cards allowed people who purchased them to enter places that required vaccination where they would be able to mix with and infect unsuspecting citizens, some of whom may have been immunocompromised.

These people are not alone in selling fake or forged vaccination cards.  According to an article in the New York Times, two nurses on Long Island made over $1.5 million selling forged vaccination cards.

It is one thing to be skeptical of the benefits of vaccines and to refuse to take them.  It is quite another to pretend that you have been vaccinated and to enjoy the benefits of vaccination while exposing others to disease.

Posted in Fraud, General Health, medical ethics, Vaccines |

A Case of Hospital Malpractice

January 23, 2023

Hospitals are where the germs are.  Hospitals are also where the worst germs are.  Sick people are constantly coming to the hospital and bringing their viruses and bacteria with them.  In spite of the best efforts, and sometimes less than the best efforts, of the nurses and staff, bacteria and viruses get passed from one patient to another.  This is the story of one of those less than best efforts that left three newborns dead and one badly brain damaged.

The NICU & your baby: what to expect | Raising Children Network

The deaths and injuries occurred in a good-sized hospital in central Pennsylvania.  It had an excellent reputation in the community and had received national recognition as one of top hospitals in the country.  Of course, none of that matters when a tragedy such as this occurs.

The deaths and injuries happened in the Neonatal Intensive Care Unit (NICU).  Premature babies and babies who are very sick are sent to the NICU, where they are expected to receive care from highly experienced and highly trained nurses and doctors.

Medical professionals who care for newborns recognize that breast milk is the best form of nutrition.  If the mother can nurse her baby while the baby is in the NICU, that is wonderful.  Sometimes, however, that is not possible for a number of reasons.  When actual breastfeeding is not possible, mothers may pump their breasts to get milk to be fed to their babies.  Alternatively, someone may donate breast milk to a milk bank, which will assure it is disease-free and then deliver it to the NICU.  The deaths and tragic injuries arose out of the handling of this donated breast milk.

One of the bad bacteria that is often found in hospitals is pseudomonas aeruginosa.  Although it is common in the soil and environment outside of the hospital, the version that is found in hospitals has often developed resistance to many of the drugs that are used to kill off other bacteria.  It can cause pneumonia, among other infections.  Thousands of deaths occur in hospitals in this country each year due to infections by multi-drug resistant pseudomonas.  It is spread from person to person through incomplete handwashing, incomplete cleaning of contaminated surfaces and contaminated equipment.

At the Pennsylvania hospital, pseudomonas contaminated some of the containers and equipment used to prepare the donated breast milk to be given to the newborns in the NICU.   While it should not happen, contamination is a fact of life in hospitals and nurses and other staff should assume that all surfaces and objects are contaminated and take the necessary steps to be sure they are clean and bacteria free before they are used for patient care.

The contamination at this hospital was not a one time thing due to a single mistake.  Later investigation found that for a period of three months, hospital staff failed to properly disinfect the equipment used to prepare the donated breast milk.  For those three months, pseudomonas bacteria infected the equipment and the babies who received the breast milk.

It is surprising that the problem was not recognized sooner than it was.  Eight babies suffered serious pseudomonas infections, with three deaths and one case of severe brain damage.  Patterns like this are highly unusual and are very likely to be related.  In any event, at the end the hospital did the right thing.  It admitted responsibility, apologized to the parents and to the public and settled the malpractice claims arising out of the infections.  It also instituted changes to the way in which it sterilized equipment so that similar infections could not occur.

While it is always good to see a hospital publicly accept responsibility (they almost never do) and make positive changes, it would be even better for good practices to prevail from the outset so that apologies and settlement payments don’t need to be made.

If you have a child who suffered a serious injury in the NICU, give us a chance to review the records and make sure the care your child received was appropriate.  If your child was the victim of malpractice, you can count on the fact that no one at the hospital is going to tell you about it.  You are going to have to discover it for yourself.  If your child is going to need a lifetime of care, it is only fair that the persons responsible should be the ones to pay for that care.

Posted in antibiotic resistant bacteria, blood infections, disclosure of medical mistakes, Doctors, Finding a Medical Malpractice Lawyer, Health Care Costs, Hospital Negligence, Hospitals, Infection, Medical Malpractice, medical malpractice claims, never events, Nurses, Sepsis |

When Thinking About Hospital Bills, Remember Your Old Monopoly Game.

January 16, 2023

It is no secret that the cost of medical care is rising and rising at a rate faster than inflation.  This wave of rising costs is being led by an even larger rise in the cost of hospital care.  Hospitals receive $1 out of every $3 spent on health care in this country.  How can hospitals get away with this?  The answer is found in our old Monopoly game.  Remember how the more of a property you owned, the higher the rent you charged?  As hospital chains grow larger, they reduce competition in their areas and reduced competition almost invariably leads to increased prices.

Monopoly board game

In the United States, we pride ourselves on having a free market.  Those of you who have taken Economics are familiar with the push and pull of supply and demand and their roles in setting prices.  Buyers survey the supply of goods and decide if they want to buy at the price at which the goods are being offered.  If buyers are reluctant to buy, suppliers respond with reduced prices.  If demand is high, sellers may raise prices or produce more goods.  Our system works best when buyers can see and compare prices and the goods are substantially the same.  It also works best when sellers are independent of each other and cannot control prices.  Hospitals are run by smart people who understand these economic principles and actively work to thwart them.

One of the ways in which hospitals actively thwart the free market is through consolidation.  Instead of 20 independent hospitals in a metropolitan area offering their services, there may be only three or four chains which control all of the 20 hospitals.  Banner Health is the largest private employer in the state of Arizona.  While hospital chains may not secretly consult with one another to set prices, which is illegal, they each know pretty much what the others are doing and use that information to keep their prices high.  As the Director of Public Affairs for the Federal Trade Commission has stated, “Too many hospitals mergers lead to jacked up prices and diminished care for patients most in need.”  If no other hospital is undercutting your price, you can keep the price high and still sell your services.

Another tactic by which hospitals thwart the free market is by keeping their prices as hidden as possible.  New government regulations require hospitals to post the prices of their most common services in a way that the public can see them but some hospitals ignore the requirement and some that do post their prices do so in a way that makes it very difficult to find them.  If a patient does not know the prices, she or he cannot make an informed choice between providers.

Still another tactic used by hospitals is related to consolidation.  Hospitals are buying the practices of doctors in their areas and, sometimes gently and sometimes not, requiring the doctors to send their patients to the hospital which owns the practice.  After a doctor’s practice is purchased by the hospital, she may find that her compensation is at least in part dependent upon how often her patients use the hospital.  Also, the purchase of doctor practices allows the hospital chains to begin to monopolize outpatient care as a companion to their inpatient care.  Hospitals with doctor practices compete with independent doctors and benefit from federal subsidies and assistance given to hospitals but not to individual doctors.

Given the outsize role that hospital spending plays in overall health care spending, there is no shortage of solutions recommended to reduce hospital billings and force hospitals to become more efficient.  Among the suggested solutions are enforcing anti-trust laws to reduce consolidation, forcing hospitals to actually disclose prices, cap amounts hospitals can charge for particular procedures, and create networks of hospitals that agree to keep prices down to name but a few.

As with most other areas of health care spending, hospitals make big money and are willing to spend a lot of it to keep things the way they are.  Armies of lobbyists supported by large campaign contributions are very effective tools in keeping reform at bay.  We just have to keep trying.

 

Posted in Doctors, Fee for Service, Health Care Costs, Hospitals, Medical Costs, Medicare |

Electronic Medical Records Are A Problem.

January 09, 2023

One thing you can say about Electronic Medical Records:  They are a mixed blessing.  In my practice, I read a lot of medical records.  In the old days, they were all written by hand and I had to struggle with illegible handwriting.  I still struggle with handwriting when I review office records but all the hospital records are electronic now.  The good news is that I no longer struggle with poor handwriting when reviewing hospital records.  The bad news is that the records are ridiculously voluminous and do not do a good job of conveying information about the patient.  Sometimes it seems as though electronic medical records (EMR’s) are the hospital’s attempt to make my job more difficult.  Turns out doctors and nurses are having lots of problems with EMR’s as well.

Electronic Medical Records implementation in hospitals - Smart Clinix

EMR’s were intended to solve problems.  One of the problems they were intended to solve was the portability of patient records.  When records were on paper, it was difficult to print them out and ship them to another facility when the patient showed up there for care.  With EMR’s, records can be transmitted electronically in the blink of an eye.  The patient can be given a disc or a thumb drive with her records on them and can take them to her new doctor or hospital.  The old problem of bad handwriting, which sometimes led to mistakes in care, has been eliminated with the advent of EMR’s.  Unfortunately, new problems have taken its place.

Most EMR systems start with a template and have the person caring for the patient fill in the blanks, usually by selecting a word or term from a drop down list.  This unnaturally constrains the care provider because the provider is no longer able to use her own words to describe what is going on.  For example, “The problem came on ________.”  The care provider clicks on the blank and a drop down list offers a choice of words with which to fill in the blank.  Usually, “suddenly,” “slowly,” or “gradually.”  If the word the provider would like to use is not on the list, too bad.  “The pain is ________.”  Choose from “sharp,” or “dull.”  The inability to use one’s own words to describe the patient’s problems and care frustrates the doctors and nurses who must use the system.

There are two main providers of EMR systems in the United States.  They are Epic and Cerner and, according to many doctors and nurses, they are both terrible.  Doctors and nurses spend way more time than they should making entries into the EMR.  They have to log in, open the program, find the right spot by selecting from a number of tabs and work with the template built into the system.  They complain the software is slow and clunky.

Here is an article by a physician who complains of excessive costs and time lost because of EMR systems that are not at all user friendly.  He calls the current EMR products “hopelessly broken.”  As he correctly points out there is no reason for this in this day and age.  Software developers know how to create computer programs that are intuitive and easy to use.  We encounter these programs on line every day where a slow user experience is unacceptable and Google brags about results being returned in thousandths of a second.  But the big two providers of EMR programs have a corner on the market and little incentive to spend millions making major changes to their current software.  In one study of a North Carolina orthopedic clinic, the adoption of an electronic medical record increased the amount of time the doctors spent documenting their care by 230%.  Labor costs increased by 25% per patient visit due to the adoption of EMR’s.  This is unacceptable.

While, as we have seen over and over, it is never easy to make changes when there is a well-financed business that will be hurt by change, it is a change we must make.  The result of a successful change will be better patient care at lower cost.  That sounds like a winning combination to me.

 

Posted in Doctors, electronic medical records, Health Care Costs, Hospitals, medical charts, Medical Costs, medical mistakes, Nurses |

Cancer Malpractice Litigation.

January 02, 2023

Cancer is a terrible set of diseases.  Some are relatively treatable, if detected in time, while others are aggressive and nearly always fatal.  Medical malpractice does not cause cancer but medical malpractice can turn a treatable cancer into a death sentence.

Cancer

The cancer cases that I see almost always involve the same issue:  delay.  There was a delay in discovering the cancer or a delay in recognizing the cancer, or a delay in beginning treatment.  It is why people come to see me.  In order for the delay to be the basis for a case that I can take and win for my client, the delay needs to have caused some demonstrable damage.

There is no question that the sooner a cancer is detected and treatment is begun, the better.  Even the most aggressive defense expert will have to admit that.  For that reason, the longer the delay, the harder it is for the defense to argue that it made no difference to the patient.  You never want to see a long delay in diagnosing cancer or beginning treatment, but it clearly makes for a stronger case.

Sometimes, the delay was brief.  Even a brief delay can cause damage, but it is much more difficult to prove.   When the cancer was not detected, it is especially difficult to prove how advanced it was at the time the doctor negligently failed to detect it.  We can and do try to work backwards from the status of the cancer when it was discovered to determine its stage at the time of the missed diagnosis, but this is always subject to dispute by the defendants, who argue that the cancer was highly advanced at the time of the alleged failure to diagnose.

In addition to the difficulties of proving how advanced the cancer was at the time of the failure to detect it, there are always differences of opinion about how aggressive it was and whether the delay made a difference in the patient’s outcome or not.  If there was a death due to the cancer, defense lawyers almost always argue that the cancer was highly aggressive and that the patient was therefore not likely to survive anyway.  If the patient is still alive and in remission at the time of the lawsuit, the defense attorneys may argue that they have been cured and that little damage has occurred.  The worst case for malpractice defense lawyers is when the patient is still alive at the time of trial but is clearly nearing the end of her or his struggle with cancer.  Other than arguing the doctor did nothing wrong, there are few arguments available to them that don’t sound heartless.  Defense lawyers and insurance companies usually try to settle these cases.  Cancer cases are never more valuable than just before trial with a patient who is near the end of life.

The doctors who are most likely to fail to detect cancer are not usually specialists in cancer.  Those doctors are usually right on top of the problem and are highly skilled in recognizing the signs of cancer and in treating it.  The doctors most likely to get into trouble with cancer diagnoses are the doctors who are not very experienced with cancer and who are not looking for it.  They see signs and symptoms that may be cancer but they don’t recognize them as such.  They reassure their patients that it is nothing and they fail to send them to doctors who are more familiar with cancers and who can recognize and diagnose cancers.

I have seen many different failings by doctors in the cancer cases I have handled over the years.  I had one in which a doctor misidentified a melanoma on the sole of the foot as a wart and tried to burn it off.  It, of course, came back later with fatal results for the young patient.  I have had a number of cases in which radiologists failed to notice the presence of lung tumors on chest x-rays being performed for reasons other than cancer screening.  When you are looking to see if there are any fractured ribs, it is a lot easier to miss a small tumor than when you are looking for possible tumors.  I have had cases in which the pathologist failed to properly identify cancer in a biopsy specimen.  The patient was told that the biopsy was negative.  Only when the cancer spread and the biopsy was re-examined years later was the mistake discovered.  Finally, I had a case in which the doctor received the report of the pathologist that the biopsy specimen was cancerous, but became confused and thought that the patient had already been notified, so he did nothing.  If you can think of a way for human nature to mess things up, it has probably happened when it comes to cancer diagnosis.

There are a few takeaways here.  First, if you have a concerning symptom, be polite but firm in asking the doctor to confirm that it is not a problem.  Human nature being what it is, we are usually so happy to have the doctor reassure us that we fail to ask her to confirm it or to get a second opinion.  Second, don’t assume that no news is good news when it comes to a biopsy.  Just because the doctor’s office did not call to tell you the biopsy was negative, do not assume that it was negative.  It may have simply gotten lost in the shuffle.  It is your health.  Follow up on all biopsies and make sure you know the result.  I hope you  never need to see me about a missed diagnosis of cancer, but, if you do, my address is at the bottom of the page.

 

Posted in Breast Cancer, Cancer, Doctors, Lawsuits, Lung Cancer, Mammogram, medical errors, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice lawyers, medical mistakes, Medical Negligence, Melanoma, Misdiagnosis, plaintiff |

Going To The Emergency Department Can Be Hazardous To Your Health

December 26, 2022

This may come as a shock to you but there are a lot of mistakes made in the emergency department that kill and seriously injure people.  If you do what I do for a living, you already know this.  If you are just a regular member of the public, this may be big news to you.  Importantly, this is not just me saying there is a lot of medical malpractice in the emergency department.  This is the federal government talking after a review of what has happened in ER’s over the last twenty years.

Emergency Department - Alamance Regional | Cone Health

The Agency for Healthcare Research and Quality is the division of the Department of Health and Human Services which is charged with monitoring the quality of health care in the United States.  It conducted a study of twenty years of reports concerning care in the emergency department and made some important findings.  Here are some of the most important points.

About one in every 18 emergency department patients will be misdiagnosed.  Fortunately, most of those misdiagnoses will not cause a serious injury but some will.  One in every 50 emergency department patients will be harmed by the misdiagnosis and one in every 350 patients will suffer either permanent disability or death.  Given that there are over 130 million emergency department visits each year, there are over 7 million people who are misdiagnosed, 2.6 million injured and 370,000 each year who are either permanently disabled or killed.

Some medical conditions are more commonly misdiagnosed than others.  The top five most commonly misdiagnosed conditions are strokes, myocardial infarctions (heart attacks), aortic aneurysm/dissection, spinal cord compression/injury, and venous thromboembolism.  These five account for about 40% of the most serious harms caused by misdiagnosis.

If you have classic signs for a condition, you are less likely to be misdiagnosed.  The correct diagnosis is as clear as the nose on your face.  On the other hand, if you have something less than a classic presentation or if your symptoms are coming and going, your chances for a misdiagnosis go up substantially.  In malpractice trials involving misdiagnosis of an unusual problem, the defense lawyer will tell the jury that when a doctor hears hoofbeats, the doctor thinks about horses and not zebras.  If your medical condition is an uncommon zebra condition, you are much more likely to be misdiagnosed.

The most common reason for a misdiagnosis was cognitive error by the health care provider.  As in many other areas of life, once someone gets a thought in their head about what the problem might be, they begin looking for reasons which support their conclusion instead of keeping an open mind and considering all of the available evidence.  This is where the emergency department doctor hears hoofbeats and starts thinking about horses instead of waiting till all the results are in to see if this time it just might be something other than a horse.

As usual, women and people of color can’t catch a break.  Women and people of color are more frequently misdiagnosed than white males.

The rate of misdiagnosis varied greatly among hospitals.  Teaching hospitals had the lowest rates of misdiagnosis, although the reason for that was not entirely clear.  Some hospitals, on the other hand, were virtual malpractice factories with rates of misdiagnosis 100 times as high as the best hospitals in the study.  It makes a difference where you go and information about hospital health care quality is available on line from the federal government.

If you go to the emergency department, are misdiagnosed, and suffer a serious injury,  Don’t expect anyone to tell you that you have been the victim of malpractice.  Don’t sleep on your rights.  Get your case evaluated by an experienced and competent medical malpractice attorney.  Most people who are injured in hospitals, never make a claim.  They bear the burden of their injury by themselves instead of letting it be borne by the person responsible for causing it.  Don’t be one of these people.

 

Posted in arizona certified personal injury lawyers, disclosure of medical mistakes, Doctors, Finding a Medical Malpractice Lawyer, Heart Attacks, Hospital Negligence, Hospitals, Lawsuits, medical errors, Medical Malpractice, medical malpractice lawyers, medical mistakes, Medical Negligence, Medicare, Misdiagnosis, Stroke |

Health Care Professionals Are Not Immune to Greed

December 19, 2022

Willie Sutton, the Depression era bankrobber, when asked why he robbed banks, famously responded, “That’s where the money is.”  Today, the money is in illegal drugs and the Medicare program.  Foreign drug cartels make huge profits smuggling illegal drugs into the United States.  Even larger amounts of money flow through the Medicare program.  Health care professionals see these money flows and often cannot resist the urge to cash in.  Here are some recent examples.

Are Your Illegal Drugs Pure? New Zealand Will Check Them for You. - The New York Times

A long-time Philadelphia pharmacist has admitted committing a whole range of crimes relating to the distribution of oxycodone and fraud.  In addition to filling prescriptions that were obviously altered or were suspicious for other reasons, the pharmacy had a range of patients on whose records it noted “BBDF,” which meant Bill But Don’t Fill.  For these patients, the pharmacy regularly billed their insurers and Medicare for prescriptions that were never filled.  The pharmacy and the pharmacist, in addition to jail time for the pharmacist, have agreed to pay over $4M in civil fines, restitution, and forfeiture.

A Certified Nurse Practitioner pleaded guilty to charges of drug diversion and health care fraud.  He wrote phony prescriptions for Adderall, which he sold, and fraudulently billed insurers and Medicare for the medications.  He faces up to 30 years in prison.

A Texas family practice doctor ran what can only be charitably described as a pill mill.  He would pre-sign prescriptions for hydrocodone and give them to his nurses.  The nurses would see the patients who came to the office with complaints of “pain” and who would leave with prescriptions for the strongest possible doses of hydrocodone.  The nurses would be paid on the basis of how many pills they prescribed.  Medicare was billed for the office visits as though the doctor had seen the patients, even when he did not.  The doctor pleaded guilty and is awaiting sentencing.

Of course, pills aren’t the only way to defraud Medicare or health insurance companies.  Kickbacks, phony bills for services never performed, and unnecessary surgery are time-honored methods as well.

A Florida hematology and oncology practice has agreed to reimburse the federal government and the State of Florida $130,000 in response to charges that it received impermissible kickbacks from a drug distributor for cancer drugs it administered to its patients.  The drug distributor reached its own settlement with authorities and agreed to pay over $13M.

A doctor in the State of Washington has admitted guilt in connection with a scheme in which he ordered medically unnecessary genetic tests for elderly Medicare patients, whom he had never met.  Telemarketers would contact these elderly patients and persuade them to speak to the doctor over the phone.  Following the phone call, which was billed to Medicare as telemedicine, the doctor would order the test and receive a fee.  Medicare would also be billed for the tests.  The scheme cost Medicare over $18M before it was uncovered.

A Massachusetts nurse has pleaded guilty to participating in a conspiracy that resulted in over $100M of fraudulent charges to Medicare and a companion Massachusetts program for home health care services that were unnecessary or not ever performed.  The conspirators also paid kickbacks for patient referrals and “hired” family members of the patient to be home health caregivers.

According to a lengthy investigation by the Arizona Republic, a local vascular surgeon collects more money from the Medicare program than almost anyone else in the country.  He has been sued multiple times with allegations that many of his patients do not need the expensive surgeries he performs and that his malpractice has caused many of them to lose their lower legs.

As long as America has an unquenchable thirst for drugs they can use to get high, there will be unscrupulous people willing to supply those drugs.  Similarly, whenever there is a program that handles billions of dollars each year, fraudsters and dishonest people will be looking for a way to divert some of that money to themselves.  We just have to hope that those charged with safeguarding those funds and those programs are alert and doing their jobs watching for fraud and drug conspiracies.

 

Posted in Doctors, drug companies, Fee for Service, Fraud, Health Care Costs, Health Insurers, medical ethics, Medicare |

“I Made A Mistake Which Injured You.”

December 12, 2022

This is not a statement a doctor is very likely to make, even though there is an ethical obligation to be honest with patients and to make sure medical records are accurate.  Sadly, the way our system operates, there are strong incentives for doctors to keep quiet and strong disincentives for doctors to speak up.  The fact that most malpractice is deliberately hidden has profound consequences for the health care system as a whole and for the patients who are the victims of malpractice.

What Doctors Don't Tell You (@wddty) / Twitter

There are very few good reasons for a doctor to admit to a mistake.  There are no gold stars given out at the hospital or at the medical board for honesty.  Although both medical ethics and hospital rules call for mistakes to be reported, almost no one does unless forced to do so.  On the other hand, there are lots of reasons to keep your mouth shut and hope no one discovers what really happened.

Here is a great example of this principle in action.  Patient undergoing cataract surgery wakes up with a cut on his forehead.  He asks what happened.  At first no one will answer.  Finally, when pushed, the surgeon tells him that there was a “little incident” and that he had a reaction to the anesthesia.  He gets his medical records and everything is recorded as having gone well.  No problems with the anesthesia or the surgery either.  Of course, a reaction to the anesthesia is not going to cut your forehead.  The curtain of silence was drawn and no one would admit anything more.

Doctors who admit mistakes get sued by their patients.  Doctors who admit mistakes get reported to the medical board, which then undertakes an investigation which can result in discipline up to and including loss of the doctor’s license to practice.  Doctors who admit mistakes get called before the hospital’s board and may lose their privileges to practice at the hospital.  Doctors who admit mistakes may find that malpractice insurance companies no longer wish to insure them.  Doctors who admit mistakes have to explain things to their colleagues and partners and may find themselves looking for a new place to practice.  In a worst case scenario, doctors who admit mistakes may be charged with criminal conduct.  I expect by now you begin to get the picture.

I recently read a story about a surgeon, who reported concerns he had about the way the anesthesiologists at his hospital were delivering care.  The hospital forced him out and it took him four years of fighting to get his hospital privileges back.  A doctor, who did the right thing, who put patient safety first, who fulfilled his ethical responsibilities, who brought problems to  light, and who should have been congratulated instead lost much of his livelihood, was embarrassed and had to spend a lot of money and time getting his privileges back.

A nurse in Tennessee who admitted that she had given the wrong medication to a patient, which resulted in the patient’s death, was charged with manslaughter and convicted.  Her own admissions were used to convict her.  Had she kept her mouth shut, she probably would not have been prosecuted.  She worries that what happened to her will discourage others from admitting mistakes and that no one will learn from her error.  Given what happened to her and the wide publicity her case was given, I expect that a lot of people in medicine learned one very valuable lesson:  Never admit anything.

In almost every medical malpractice case I have ever filed, the doctor always says the same two things:  (1) “I didn’t do anything wrong.” and (2) “Whatever I did or didn’t do made no difference to your health.”  Doctors say this even when what they did wrong is so clear they cannot find another doctor willing to testify on their behalf.  And let me assure you that there are doctors out there who will bless almost anything.  You have to have really screwed up when you can’t find another doctor to go to bat for you.

It is sad that our system encourages doctors to lie about what they did and to shirk responsibility for their conduct.  It is sad that the doctors who admit their mistakes are considered to be suckers.  Juries favor doctors so much in these suits that, even when the evidence of error is strong, the jury usually finds in favor of the doctor.  Juries don’t want to believe doctors make mistakes that kill and injure people.  It is easier to believe that sometimes bad things happen through no fault of the doctor.

Maybe some day doctors can live up to the ethics they all claim to believe in.  Until that day arrives, however, I will be forced to continue to listen to doctors try to evade responsibility for their actions and patients who have been the victims of doctor’s mistakes will continue to be sent home with nothing by juries who want to believe in doctors.

Posted in Arizona Medical Board, disclosure of medical mistakes, Doctors, Fraud, Hospitals, Lawsuits, medical errors, medical ethics, Medical Malpractice, medical malpractice cases, medical mistakes, Medical Negligence, plaintiff, Secrecy, Surgical Errors, trial |

Our Health Care Spending Subsidizes the Rest of the World

December 05, 2022

If you follow this blog or read much about health care spending, you know that we in the United States spend twice as much per person on health care as any other nation on earth.  We pay way more for medicines than anyone else.  Our doctors and hospitals make more than doctors and hospitals anywhere else in the world.  Why can’t we get the same deals as the rest of the world when it comes to health care spending?  It turns out that everyone else uses our high prices to save themselves money.  Without our sky high spending, health care in other countries would cost much more.

How to Stop Wasting Money and Save on Common Everyday Expenses

Here is an excellent piece that recently appeared in the Washington Post.  The author, who makes his living dealing with health care spending, believes two factors in our system enable the rest of the world to leverage off our actions.  In the first place, we have no price controls so everyone in the system can charge whatever the traffic will bear.  This lack of price controls rewards the world with life saving drugs and fantastic innovations in health care at essentially no cost to them.  We pay for it and they get to enjoy the benefits.

The second factor is the profit drive of doctors and hospitals.  Since they are not competing on price, they compete through offering innovative treatments.  This serves to drive medical advances but also makes our care more expensive since every hospital and doctor feels compelled to offer the latest new MRI machine or the newest form of therapy.

Every time there is a movement to put a lid on drug prices or to allow Medicare to negotiate prices with the drug companies, we are warned that to do so would risk the drug research and innovation that has made such a difference in the lives of so many.  According to the author, that may be true.  The reason is that the drug companies make almost all their money off the extremely high prices they charge in the United States and just take whatever scraps they can get from the rest of the world.  If we stop supporting drug research funded by our high prices, there is no one else left to take up the slack.

The author believes that the only path truly open to us is to rearrange the system to encourage price competition.  As matters stand now, consumers with some form of health insurance make up the bulk of those paying for health care.  Insurance, to a certain extent, insulates consumers from the prices being charged by hospitals and doctors.  Insurance companies pay the most of the health care bill.  Consumers pay their deductible and perhaps a co-pay, which may be fixed.  Most of the time, the consumer never knows how much the actual charge is.  She or he is focused only on the part they have to pay.  If, the theory goes, health insurance only covered unexpected and large health care bills and consumers had to pay for the routine care, competition would force prices down as it does in other areas of the economy.  Doctors and hospitals would have a strong motivation to become more efficient and to compete on price.  A win for consumers and the taxpayers who have to fund Medicare but a threat to the profits of doctors, hospitals and health insurers, all of whom would fight tooth and nail to maintain the current, inefficient system, which showers money on them.

Next time you are sizing up a candidate for political office, ask what her or his stance is on reforming health care spending.  It can’t hurt to ask.

Posted in Doctors, drug companies, Fee for Service, Health Care Costs, Health Insurers, Hospitals, Medical Costs, Medical Devices, medical research, Medicare |

Just Fill Out These Forms – Hospital Edition.

November 28, 2022

If there was ever a situation of more uneven bargaining power than being asked to fill out hospital forms while lying on a gurney in the emergency department, I cannot think what it could be.  And yet that is precisely when the hospital asks you to fill out pages and pages of forms with closely spaced legal mumbo jumbo that can have huge legal and economic consequences down the road.  You are in no position to get up and leave.  You are in no position to refuse to sign.  So you do what you must; you sign, usually without even reading the forms.

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The hospital knows you are coming.  It may not expect you personally, but it knows patients will be arriving every day needing vital medical treatment.  The hospital wants to be ready for you.  It wants to be ready to deliver good medical care to you, but it also wants to place itself in the strongest possible position to get paid and to defend itself in the event someone makes a mistake and it gets sued.  That is why it has had lawyers prepare detailed forms and why it insists you sign them before it will admit you to the hospital.

The hospital forms are often pretty much alike from hospital to hospital.  Hospitals compare notes.  Their attorneys compare notes.  They read the court cases and change their forms to take advantage of whatever the law allows them.

One of the things the hospital has thought of that you probably have not is who is this person who is providing care to you?  He or she is wearing a name tag.  It may or may not have the hospital’s name on it.  While it may be news to you, the person may not be a hospital employee at all, even though the person is dressed like all the other hospital employees.  If all goes well, you never have to care about whether the person was employed by the hospital or not.  However, if things go wrong and the person injures you, the hospital may inform you that it is not legally responsible for the person it sent to care for you.  Depending on how badly you have been hurt, this may make a big difference in how much money you can recover to compensate you for your injury.

There are lots of people in a hospital who are not actually employed by the hospital.  In the emergency department, the doctors very often work for an outside company that the hospital has hired to work in its emergency department.  Their name tags may or may not alert you to that fact, although there are good reasons why you don’t spend much time examining those name tags while you are lying on your back in pain.  Depending on the hospital, it may hire doctors to see you during the time you are admitted.  These people are called hospitalists.  They don’t do anything other than see patients in the hospital.  The radiologists who review the x-rays, CT’s and MRI’s performed in the hospital are usually not hospital employees.

The hospital may call the emergency department doctors, hospitalists, and radiologists “independent contractors” and take the position that they are not hospital employees.  Were you to walk into any other business in town and be waited on by someone who gives every appearance of being an employee of the business, the law will usually treat that person as an employee, even if the business claims that it was just someone it hired but who wasn’t technically an employee.  The law will hold the business responsible for any mistakes the person makes that cause you injury.  Here is where the hospital’s forms come into play.

Buried deep in the fine print in the admission forms, the hospital will inform you that not everyone who provides you care is a hospital employee and that you should not assume that they are.  Even if you are able to find that sentence, you may not understand it, but the courts will enforce it against you anyway.  The courts also won’t care that you didn’t have much choice when presented with these forms.  This means that the hospital is not legally liable for the mistakes of these people and doesn’t have to pay for them.  Since the hospital usually has many millions of dollars of insurance coverage and the “independent contractor” does not, this can make a big difference, if you are badly injured.

There are lots of other hospital-favorable provisions in these forms.  Among other things they make you promise to pay, in the event your insurance company does not.  They may make you agree to arbitrate certain disputes, instead of going to court over them.  You agree that the hospital may take pictures of you and that the pictures will belong to the hospital and not you.  You agree to have certain information shared.  You give your consent to the treatment you are going to receive, and, if you are in the hospital to deliver a baby, you give consent for the baby to be treated as well.

There is not much you can do about these forms.  The best you can do is read them and ask questions, but you are going to have to agree to what the hospital wants or leave and go on down the street.  Under the best of circumstances, that is a problem and, even then, the next hospital will hand you similar forms to sign.  Just be aware that these are important forms and will be binding on you, even though you never really had a chance to refuse to sign them.

 

Posted in Doctors, Hospital Negligence, Hospitals, Informed Consent, Lawsuits, medical errors, Medical Malpractice, medical mistakes, Nurses |