Medical Malpractice News and Views


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

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.

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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 |

Medical Devices Continue To Harm Patients

February 12, 2018

Medical devices cause a lot of harm to patients.  I have written about the problems with power morcellators that spread cancer and with endoscopes, which were designed in such a way that they could not be properly cleaned and as a result transmitted deadly bacterial disease.  Unfortunately, these are but a few of the medical devices that were marketed in this country without proper testing and which ended up harming or killing patients.  Two new stories discuss the loopholes in the FDA’s current approval process and the Trump administration plans to expand those loopholes.

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A story from the New York Times discusses how an orthopedic surgeon, who knows far more than any of us lay people, specifically requested a hip prosthesis for himself that ended up being defective.  When they finally took the defective hip out of him, it looked like his hip socket was full of dirty motor oil.  Cobalt had leaked from inside the prosthesis and created a condition called “metallosis,” which damaged not only the hip joint and surrounding structures but the doctor’s brain and heart as well.

The FDA is supposed to approve medical devices as safe before they are used in patients but, according to the Times story, most high-risk medical devices have undergone no clinical testing at all.  This is where the loopholes come in.  In 1976 when the FDA assumed responsibility for medical devices, it decided to just “grandfather in” all of the existing devices being sold in the United States.  Since that time, a device manufacturer can avoid testing by simply certifying that a new device is “substantially equivalent” to an existing device which was either previously approved or one of the grandfathered devices.  Manufacturers can also avoid the testing process by certifying that they have made only a minor modification to a previously approved device.  Very few medical devices are not approved through one of these two loopholes.  Even this “Wild West” environment is apparently too much regulation for our friends in the Trump administration, who never met a consumer protection that they didn’t hate.

The Wall Street Journal recently ran an article describing the changes the FDA wants to make to get devices to market sooner and leave the testing for safety to some later date.  The problem, of course, is that testing may show problems after many defective devices have been permanently placed in patients.  According to respected physicians and researchers, the FDA’s track record on post-approval testing is already a poor one.  Tests are either not undertaken or not completed and, even when they are completed, the data is not available to the physicians who are ordering the devices for their patients.

While it may do no good, write your member of Congress and your Senators and ask them to protect patients.  The Wild West may have been a romantic place but it is not where I would like to go to get a medical device implanted.

 

Posted in antibiotic resistant bacteria, General Health, health, Health Care Costs, Hip Replacement, Medical Devices, Power Morcellators, Secrecy |

Medical Ethics? Many Doctors Don’t Care.

February 05, 2018

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Many professions strive to meet lofty ethical goals and the medical profession is no different.  The American Medical Association has long promulgated a set of Principles of Medical Ethics.  The problem is that many doctors, while mouthing the platitudes contained in the AMA principles, don’t live up to them in practice.

One of the first ethical principles requires a physician to be “honest in all interactions . . . .”  This means that a doctor who has injured you through medical malpractice should admit that fact to you.  Good luck with that.  It is a rare patient who is ever told that he or she has been injured through a medical mistake.  Instead, records are fudged or left vague.  The code of silence takes over and the patient is led to believe that the injury was no one’s fault or was just one of those things.  Well-meaning nurses may whisper to a patient’s family that they should see a lawyer but no one is likely to come forward and admit the error, except a few brave, honest physicians.  This is in spite of a law in Arizona which makes such admissions inadmissible in a subsequent malpractice suit.

The same principle that requires “honesty in all interactions” requires the reporting of physicians “deficient in character or competence” to appropriate authorities.  This is one that even many honest and caring physicians fail to follow.

In any profession as large as the medical profession, there will be incompetent physicians.  Very often other doctors know who these people are but do nothing.  The reasons for turning a blind eye are many.  The doctor who knows about a colleague may not want to offend the colleague, especially if they practice in a small community.  There may be resentment in the medical community toward a doctor who is considered a “snitch.”  The doctor who knows may legitimately fear retaliation from the incompetent doctor or her partners.  The doctor who knows may fear a defamation suit.  None of these reasons makes it any better for the public, which is left to suffer continued malpractice at the hands of the incompetent physician, but the reasons for not reporting are at least understandable.

The last principle which I will mention requires physicians to seek changes in laws which are contrary to the best interests of the patient.  Given the unrelenting efforts of the medical profession to strip away or limit the rights of injured patients to sue when they have been the victim of malpractice, to hold this out as an ethical principle is a joke.  Why does the AMA bother to even pretend that doctors should be looking out for the rights of patients?  Take one look at the House Republican malpractice bill if you want to see how doctors stick it to patients.  It’s all about the Benjamins and not about the patients.

Doctors, stop complaining about patients standing up for their rights when they have been injured by medical malpractice.  Get your own house in order and, perhaps, there would be fewer malpractice suits to complain about.

 

Posted in Arizona Medical Board, disclosure of medical mistakes, Doctors, Lawsuits, medical errors, medical ethics, Medical Malpractice, medical mistakes, Medical Negligence, plaintiff, Secrecy, Surgical Errors, tort reform |

Bean Counting Hospital Administrators Are Hurting Patients.

January 29, 2018

It is a well-recognized fact that medical malpractice injures many patients.  When that happens, patients have legal remedies.  What is less well-recognized is the damage done to patients by hospital administrators chasing the almighty dollar.  Unfortunately, for patients injured by the actions of hospital administrators, there is often no plain, legal remedy.

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I have written about the rise of hospital administrators and the ways in which their pursuit of profits conflict with the needs of patients and the concerns of the doctors caring for them.  You can find some examples here and here.  As hospitals become more profit driven, there is a greater temptation to game the system to make sure those profits keep on coming.  A recent story in the New York Times discusses how this works at a VA hospital in Oregon.  While VA hospitals have a different business model than hospitals in civilian life, many of the problems and behaviors are the same.

The Times story focuses on a VA hospital in rural Oregon which had poor ratings for important things such as good patient outcomes and patient deaths.  The hospital administration was determined to change this.  Of course, the obvious way to change it is to improve patient care.  This would both reduce deaths and improve patient outcomes.  There were a number of barriers to this approach, however, including budgetary issues and difficulty in attracting and keeping medical staff.  In spite of these barriers, the hospitals ratings, which were based on a number of metrics established by the VA, improved substantially.  The investigation by the Times suggests that they improved because the administrators were gaming the system.

One of the charges leveled against the hospital is that it improved its outcomes by cherry picking patients.  When a really sick patient who might very well die presented at the hospital, it would refuse to admit the patient on the grounds that it could not provide the level of care needed by the patient.  While it is never good to admit a patient whom the hospital does not have the facilities to treat, members of the medical staff claim that the refusals to admit were based, not on inability to provide needed care, but on the concern that the patient might die and thereby harm the hospital’s statistics.  Staff members claimed that other patients were discharged or transferred either over the objections of the treating physician or without his or her knowledge.

Much the same thing happens in civilian hospitals.  Once metrics are established for rating hospitals or for paying them, administrators begin looking for ways to game the system.  Health care may not improve but the things being measured do.  For example, Medicare stops paying after so many days in the hospital.  There is therefore great pressure to transfer the patient to another facility before the money runs out whether it is in the patient’s best interest to be transferred or not.  Another example is the practice of keeping the patients in the hospital for observation rather than admitting them.  This avoids running afoul of the strict Medicare admission standards.  Patients held for days of observation may incur co-pays that would not apply had they been admitted to the hospital.  Observation may also be used to avoid a readmission which might make the hospital look bad for having improperly discharged the patient in the first place.

Patients are always at a disadvantage in these situations.  They are usually sick, may be elderly, and certainly don’t understand the financial implications of the decisions being made by the hospital about their care.  They may end up where they don’t belong, where they won’t get the care they need and where they may have to pay far more than they should.  As usual, the best thing you can do is ask questions and have family or friends with you to watch what happens and to also ask questions.

 

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

Putting You Second.

January 22, 2018

Let’s get this out of the way first.  Most doctors are good, caring people who place the interests of their patients first.  You want your doctor to be that person.  In my practice, however, I see many patients who had the other kind of doctor: the one who puts his or her interests ahead of yours.  The reason is almost always the usual one:  It’s the money, stupid.  When it’s the money that comes first for a doctor, malpractice often follows.

 

The first of today’s examples is a Pennsylvania doctor who is charged with five patient deaths as a result of his illegal prescription of opioids.  In the first seven months of 2016, this doctor wrote prescriptions for nearly 3,000,000 doses of opioids. Image result for doctors money Unsurprisingly, during this period, he was the top prescriber of opioids in the state.  It appears that pretty much all you had to do was show up at his office and say you had pain and you could walk out with a prescription.  Undoubtedly, this doctor’s greed ruined the lives of many patients who got drugs from him but did not die, at least not yet.  He has surrendered his medical license and now awaits trial.  Good riddance.

The second example is a little closer to home.  Emcare, Inc. is a nationwide company that hires emergency department doctors and then contracts with hospitals to staff their emergency departments.  Emcare doctors staff a number of emergency departments in the Phoenix area.  Emcare was charged by the federal government with taking kickbacks from a company that owned a number of hospitals in return for having its ED physicians order patients be admitted to the hospital instead of having them receive further care as outpatients.  The hospital would then make money off the patient admission.  The scheme allegedly ran from 2008 to 2012.  The federal government was involved because many of these patients were Medicare beneficiaries who could have received the treatment they needed much less expensively had they not been admitted to the hospital.  There is no way to tell just how much this fraud cost the government but Emcare has agreed to pay almost $30 million to resolve the charges against it.  It is not just the taxpayers who are damaged when doctors order patients into the hospital when they do not need to be there.  Patients face many risks in the hospital that they do not face at home.  Among them are exposure to infection and illness and an increased risk of medical mistake.

While the Pennsylvania doctor won’t be harming patients any longer, Emcare continues to do big business in Arizona and elsewhere.  No one at Emcare is under arrest or facing criminal charges for its scheme.  Guess the old adage has some truth, “Steal $100 and you go to jail but steal $10,000,000 and you may only have to pay a fine.”

Posted in Doctors, Fraud, Health Care Costs, Hospitals, Medical Costs, Medical Malpractice, Medicare |

Medical Malpractice Hit Parade

January 15, 2018

Today I am writing about an old malpractice case but one which epitomizes problems that I have often blogged about and which persist today.  In 2003 a spine surgeon on the Big Island of Hawaii operated on a 73 year old patient who had degenerative spine disease and who was experiencing progressive weakness and bladder dysfunction due to compression of spinal nerves.  He was scheduled for a procedure to stabilize the spine and take the pressure off the spinal nerves.  So far, so good.

When the time came during the surgery to implant the two titanium rods that would keep the pieces of the spine in position, the nurse announced that the rods were missing from the hardware package.  Needless to say, it is both common sense and required by the standard of care that the presence of all necessary equipment be verified before the start of the operation.  The doctor blamed the nurse while the nurse blamed the doctor.

Arturo Iturralde and a Screwdr is listed (or ranked) 7 on the list The Worst Medical Malpractice Stories in History

Many of you have probably had something similar happen to you while cooking dinner.  You discover that an essential ingredient is missing.  If you are fortunate enough to be close to the store or if your neighbor has what you need, you can get it and go on with the meal.  With titanium surgical rods, not so much.  The hospital and surgeon called the manufacturer’s representative in Honolulu on the island of Oahu.  The representative had two rods but it would take hours to get them to the hospital on the Big Island.  The surgeon decided to innovate.  He got a stainless steel screwdriver and a hacksaw and cut the handle off the screwdriver.  He then substituted the screwdriver for the titanium rods and finished up the surgery.  Two days later the screwdriver broke and the patient became a paraplegic.  A few years later, after still more spinal surgeries to fix the damage, the patient died.

To top it all off, the surgeon had come to Hawaii after having his medical license suspended in Oklahoma and Texas.  This was the last straw apparently and the surgeon no longer practices medicine.

The case went to trial and the jury awarded the family of the patient $5.6 million in compensatory and punitive damages against the surgeon and the hospital that had allowed him to do the surgery.

The case highlights the problem of doctors moving from state to state and staying one step ahead of the medical board.  With his disciplinary history, this doctor should have been denied a license in Hawaii.  Even if he were fortunate enough to receive a license, the hospital should have investigated his background and refused to allow him to do spine surgery there.

At the same time, we must recognize the problems facing hospitals in small towns like Hilo, Hawaii, where this hospital is located.  Often they do not have the luxury of having many qualified doctors in the neighborhood who are anxious to practice at their hospital.  As a result, they end up taking what they can get and crossing their fingers.  Of course, if something goes wrong, and it frequently does with problem doctors, it is the poor patient who pays the biggest price.

Many small hospitals in small towns and cities in Arizona face similar problems and have similar disasters from time to time.  The plain truth of the matter is that if you live in a rural area, it is difficult to find quality health care.  As usual, this puts the burden on you to look into the safety record of your local hospital and the qualifications of the doctor who is going to perform an operation on you.  If you don’t like what you find, you may be better off going to Phoenix or Tucson for medical care.  Going to the big city is no guarantee that you will not be the victim of malpractice, but at least you will have a wider choice of qualified doctors from which to choose.

 

Posted in Doctors, Hospital Negligence, Hospitals, Lawsuits, medical errors, medical ethics, Medical Malpractice, Medical Malpractice Case Value, medical malpractice cases, medical malpractice lawsuits, medical mistakes, Medical Negligence, never events, Orthopedics, Secrecy, Surgical Errors, Valuing Damages in Medical Malpractice Cases, Verdicts |

Medical Secrecy Harms Patients – Part Two

January 08, 2018

I have written in the past about the harm caused by the medical profession keeping secret the identities of incompetent physicians and allowing them to continue to malpractice on patients.  While this is a significant problem, there are many other ways in which healthcare secrecy harms all of us.

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Hospitals and doctors hide what they charge for procedures.  If you thought airline companies made airfares difficult to compare, they have nothing on the medical profession.  Hospitals and doctors negotiate different charges for different payors.  A big insurer may negotiate very favorable rates for its customers.  A small insurer may not be able to get the same deal.  If you end up at a hospital that is out of your plan because you are traveling or because the ambulance took you to the closest hospital, you may end up paying a different and higher number than is charged anyone else.  It is very difficult to compare prices between two comparable hospitals or two equally qualified physicians.  Without the ability to compare prices, there is little or no competition.  Little or no competition means that prices stay high.

Except in cases involving Medicare, hospitals refuse to provide information about quality or outcomes.  How many people in a particular hospital get infections?  How many die?  Even if they live, how many have a bad outcome?  How many complain about their care?  How many make claims for bad care?  How many claims for bad care has the hospital settled and for how much money?  How many incidents of bad care did the hospital itself recognize and investigate?  How many doctors lost privileges at the hospital and why?  These are only a few of the areas in which hospitals, with the approval of state and federal government, keep critically important information from the public.  I don’t believe I am alone in saying I would like answers to all of these questions and more when I am deciding whether to have my operation at hospital A or hospital B.

How about my doctor?  How many times has she had a patient die during the same operation she is going to perform on me?  How often has she had an emergency during the surgery she is going to perform on me?  How often has she been disciplined by the medical board or by a hospital?  Has she ever had her privileges limited by a hospital and why?  How much experience does she have with the operation she is doing on me?  When was the last time she performed the same surgery?  How often has she done this surgery in the last month.  If ever there was a place where “practice makes perfect,” it is the operating room.  The statistical evidence is overwhelming that the more often a surgeon performs a procedure, the better he or she does it.  For doctors with only an office practice, how often do their patients complain?  How often do they have claims made against them.  Most importantly, how do their patients fare under their care?  How many end up in the hospital?  This kind of information should be readily available and used by patients to decide to whom they want to entrust their health.

All the recent uproar about sexual harassment suits has drawn attention to the problems arising from the use of confidential settlements.  Bad practices and bad actors which should be brought to the attention of the public are hidden from view and the victims are effectively muzzled.  Following every payment made on behalf of a physician arising out of a claim of medical malpractice, a report is made to the National Practitioners Data Bank.  Those reports are available to medical boards, to malpractice insurance companies, to the government, and to hospitals making credentialing decisions.  Pretty much the only people to whom this information is not available is the public.  All malpractice settlements ought to be matters of public record.

Transparency won’t come to the healthcare industry on its own.  There is too much money to be made under the current secrecy rules.  Only if the public demands an end to secrecy will we see the transparency we deserve.

Posted in disclosure of medical mistakes, Doctors, Health Care Costs, Health Insurers, Hospital Negligence, Hospitals, Infection, Lawsuits, Medical Costs, medical errors, medical ethics, Medical Malpractice, medical malpractice claims, medical mistakes, Medicare, Secrecy, Surgical Errors |

More Secrecy for Misbehaving Doctors

January 05, 2018

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Here we go again.  In a story which has appeared in a number of outlets, it is reported that a surgeon with the respected Cleveland Clinic was allowed to remain on staff and continue to treat patients after two patients charged that he raped them during medical procedures.  The surgeon was never prosecuted by authorities and at least one of the women complained that the Cleveland Clinic did nothing about her complaints concerning the surgeon.  Here is a link to the story as it appeared in the Washington Post.  The surgeon denies everything.

One of the women sued the surgeon and entered into a (surprise) “confidential settlement agreement.”  After that the surgeon left the Cleveland Clinic and went to work for Ohio State University.  University officials claim they had no idea about the allegations when they hired the surgeon over the summer.

If true, this is another example of a doctor who behaved badly, who was allowed to continue to practice without supervision and without the public being warned of his misbehavior and who was then allowed to move to another hospital without his new employer or the public being informed that an accused rapist was now on staff.  When will this pattern end?  When will the public be able to rely on hospitals and medical boards to protect them from misbehaving doctors instead of just enabling them to go on abusing patients?

Posted in Arizona Medical Board, disclosure of medical mistakes, Doctors, Hospitals, Lawsuits, Medical Malpractice, medical mistakes, Secrecy |

End The Drug Price Disgrace

January 02, 2018

Happy New Year.  As I have mentioned before, my grandson was diagnosed with Type 1 diabetes when he was only 3.  He is now 7 and doing well.  I am hoping that the new year brings more advances in the treatment of Type 1 diabetes.  The patients with Type 1 need a cure and we as a nation who pay for health care need it as well.  An article last year in the New York Times stated that it takes about $25,000.00 each year to keep a Type 1 diabetic alive and healthy in this country.  This is an outrage.

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When insulin was discovered, the scientist who discovered it sold the patent for $1 so that all who needed it would have access to this life-saving drug.  In 2016, a vial of Humalog, a fast acting insulin, sold for $255.  This represents a 700% increase from its price of $21 per vial only 20 years earlier.  Neither the medication nor the cost of manufacture had changed.  What had changed was the participation of more profit chasing entities in the health care business.  Many Type 1 patients have been forced to choose between food and insulin and have taken to reducing the amount of insulin they take.  This will make them sicker in the future and increase the amount of money we taxpayers will have to spend on them when they become too sick to care for themselves any longer.

Of course, insulin is not the only life-saving drug whose price has skyrocketed in recent years as investors have demanded and received unconscionable profits from their sales.  This is not allowed to happen in Canada or Europe.  Why should it be allowed to continue to happen here?  Call your Senator and Congressman and tell him or her to end this national disgrace.

Posted in drug companies, Health Care Costs, Health Insurers, Medical Costs, Medicare, science news, Type 1 Diabetes |

What is Holding Up Virtual Medicine?

January 01, 2018

Last month I wrote about what many health care professionals believe to be the biggest problem in medicine: lack of patient compliance.  This has been offered as the reason the many new technical advances in medicine are failing to produce the improved outcomes they promised.

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Other health care professionals have pushed back on this argument.  Their view is that technical advances are not living up to the hype because they are delivering more information than doctors can use and delivering it in a way that is not helpful.  These critics see the problem as a medical information version of trying to get a sip of water from a fire hose.  Doctors are flooded with too much information.  They do not have the time to sift through it to detect patterns.

The problem with these advances, write the critics, is that they were created to meet the needs of the software developers instead of the needs of the medical profession.  What doctors need, they argue, is a specific alert when something is going wrong with a patient.  These critics correctly point out that we have the computing power today to create algorithms that can spot developing trouble and warn the treating doctor before the problem gets out of hand.  Instead of routinely directing the patient to return in two weeks so the doctor can see and evaluate the patient again, the doctor can wait for an alert from the monitoring equipment and only see the patient when there has been a change in the patient’s condition.

So, if developers have the ability to give the medical profession what it wants, what is the hold up?  As with self-driving cars, they are worried about being sued when the inevitable accident occurs.  Just as today’s physical medicine is not perfect and 100% accurate, algorithms are not perfect and are going to miss some problems.  It is the fear of medical malpractice suits that is holding back developers, claim the critics.  If this is true, we need a solution just as we need one for self-driving cars.  I don’t know what that solution might look like but the opportunity to greatly advance medicine demands one.  Any proposed solution should address the failings of the current medical malpractice suit model, which greatly favors health care providers over injured patients and allows only the most seriously injured patients to participate.  There has got to be a better way to identify and compensate those injured by medical negligence and this is a wonderful opportunity to explore those possible alternatives.

Posted in Defensive Medicine, Doctors, General Health, health, Health Care Costs, Lawsuits, medical errors, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice lawsuits, Medical Negligence, medical research, Misdiagnosis, science news, tort reform |