Medical Malpractice News and Views


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

A Second Opinion Is Smart.

December 11, 2017

A second opinion can save your life and these days there is very little excuse not to get one no matter where you live.  I have written about the importance of second opinions from time to time in the past.  You can find some posts here and here.  Second opinions came to mind again when I read a recent story about them in the Washington Post.

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The story raises some points I have discussed in the past.  Rigorous studies have shown that second opinions very often either change the original diagnosis or refine it significantly in ways that make a difference in the treatment options available to the patient.  Since a diagnosis and the treatment it suggests can sometimes be life saving, you want to be sure that it is a correct diagnosis.  Sometimes the diagnosis is a bad one and you want to be sure it is correct.  Good for you.  Sometimes, however, the diagnosis is that you do not have the bad disease you were worried about.  A note of caution:  Just because the diagnosis is a negative one does not mean that you should not get a second opinion.  What if the doctor was wrong and you do have the bad disease and it is treatable?  You both want to know that and need to know that so don’t stick you head in the sand and say everything must be fine.  Similarly, if you have an important test and you do not hear back from the doctor, do not assume that no news is good news.  Call and get your test result.

The Post article also gives some good advice about where to go for your second opinion.  The first good piece of advice is not to go to a partner or friend of the doctor who gave you the first diagnosis.  Going to one of these people greatly increases the likelihood that the diagnosis will be confirmed and unchanged.  Better to go to someone who won’t be afraid to reach a different conclusion.

You should also be looking for a practice associated with a teaching institution or one that specializes in diagnosis such as the Mayo Clinic or the Cleveland Clinic, both of which have excellent reputations which are well-deserved.  You will likely be spending your own money for this and want the best opinion you can get.  Be sure that the physician offering the second opinion is well-qualified to provide it.  A doctor’s qualifications are usually pretty easy to find on the internet.

Second opinions are much easier to get now because of the internet and usually don’t even require you to go to the location where the second opinion doctor practices.  All you need to do is send your complete medical records for the diagnosis.

Your doctor should want the best for you and should not be offended by your decision to get a second opinion.  Don’t let your doctor be a roadblock to the second opinion you deserve.

Posted in Doctors, General Health, health, healthy living, medical errors, medical ethics, medical mistakes, Misdiagnosis, science news |

Computers and Patient Safety

December 04, 2017

While there is no question that computers have been of great value in improving the ability to deliver medical care, they are anything but an unalloyed blessing.  Among the problems they bring computer systems and automated devices are expensive and add to the spiraling cost of healthcare.  Hospitals are struggling to adopt and efficiently use Electronic Medical Records (“EMR’s”).  Small errors in data entry can cause big problems.  Computer use at the hospital is also tied to increases in the incidence of carpal tunnel syndrome, computer vision syndrome and musculoskeletal problems.  Now we learn of another downside which may lead to medical malpractice: Alert Fatigue.

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Like me you may never have heard of alert fatigue before.  It describes the effect on nurses, doctors and other healthcare providers of a constant barrage of electronic warnings and alerts.  As in the story of the boy who cried “Wolf,” repeated warnings tend to dull the senses and over time become far less effective.  For many years, the ability of computers to monitor patient well-being and warn of developing problems has been promoted as a great advance in patient safety.  The irony appears to be that too many warnings have made patients less safe.

Today, computers in the hospital do more and more.  There are heart monitors, blood pressure monitors, IV monitors, pump monitors, oxygen saturation monitors, respiration monitors, systems that monitor doctor orders and so on and so on.  A study conducted in 2014 found that in an academic hospital with 66 ICU beds, there were more than 2,000,000 alerts generated in a month.  This worked out to about 187 warnings per patient per day.  The problem is compounded by the fact that the majority of these warnings are not related to significant problems.  The flood of insignificant warnings drowns out the warnings that signal the presence of a true emergency.  Anyone who has spent any time in a hospital has heard an alarm sound and seen a nurse come in, turn off the alarm, and immediately leave the room.

Alert fatigue presents a significant patient safety problem.  Studies have shown that alerts themselves are only modestly effective in preventing harm.  Doctors and nurses tend to discount them or override them because of their frequency and the frequency with which they are calling attention to insignificant problems.  And the problem is only getting worse as more and more computerized systems with more and more alarm features come on line.  While medical device manufacturers, hospital administrators, physicians and government agencies all recognize the problem, there is little agreement about how to address it and reduce the threat it poses to patient safety.

The best you can do if you are a patient in the hospital or sitting with a loved one or friend is to ask about any alarms that sound and make sure that the alarm did not signal a significant problem.  Don’t let a nurse just come in and turn off the alarm without asking questions.  Hospitals can be a dangerous place so be alert and you have the best chance of a good recovery for you or your loved one.

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

Break Up The Doctor Cartel?

November 27, 2017

Medical professionals and their insurers frequently suggest that the high cost of medical care in this country is due to frivolous medical malpractice cases.  Former Congressman and former Secretary of Health and Human Services Tom Price claimed that limiting medical malpractice cases would save consumers “hundreds of billions of dollars” every year.  Needless to say, there is great disagreement about the role medical malpractice cases play in medical spending in this country.  A clearer culprit for the cost of medical care in the United States is, according to a recent Politico article, high doctor salaries.

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The author is a think tank director.  He points out that Americans pay twice as much for comparable medical care than citizens of any other industrialized country and don’t get as much for it in terms of patient outcomes.  He claims that we spend $100 billion more every year than we should because American doctors earn so much more than their counterparts in other modern, industrialized nations.

The much higher salaries are due to a couple of factors.  The first is that doctors control the supply of doctors.  Doctors have made sure that only those who have completed an accredited residency program in the United States may be licensed to practice medicine here.  By limiting the number of slots in residency programs, doctors have made sure that there will be a perennial shortage of doctors and no price competition to attract patients.

A second factor is that we produce far more specialists than we do general practitioners when it is general practitioners whom we need most desperately, especially in underserved rural areas.  This means that many procedures, which could and should be performed by a generalist, are instead performed by specialists, who charge substantially more for the procedure than would a generalist.  Fewer specialists would also be good for doctors, who often incur large amounts of debt while participating in specialty residency programs.

The author points to a number of trends which may make care more affordable and available in the future, including the use of nurse practitioners and laws which allow foreign-trained doctors to practice medicine under the supervision of licensed doctors.  He also suggests ways to increase the supply of doctors and thereby to lessen the economic clout which drives high physician salaries.

While we like our doctors and value the good care we receive from them, their salaries could be lower without being unfair to them and at the same time make things better for the rest of us.

Physicians, stop blaming high medical costs on the patients whom you injure.  You are a far greater driver of high medical costs than these injured patients.

Posted in Defensive Medicine, Doctors, Fee for Service, Health Care Costs, Malpractice caps, Malpractice costs, Medical Costs, Medical Malpractice, medical malpractice claims, tort reform |

Guess What Is The Biggest Problem in Health Care Today? It’s You.

November 20, 2017

There was a great essay in the Wall Street Journal recently that highlighted a big problem in health care.  In spite of the many advances in detecting and treating illnesses, patients just don’t want to change their lifestyles and that spells trouble.

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It seems that every day we read about some new device or discovery that has the potential to change our lives for the better.  Maybe it is wearable technology that allows us to keep track of our steps or our sleep.  Maybe it is pills that tell the doctor if we have taken them.  Maybe it is artificial intelligence that can read CT and MRI images.  The suggestion is that when doctors and patients can track changes in real time, a health care nirvana will be achieved.  Unfortunately, it seems that all the advances in the world are of no benefit if patients won’t take advantage of the information they provide.  Patients must cooperate in their own care in order to become or remain healthy.

The essay discusses various studies in which high tech methods of encouraging patients to take their medications or follow orders to increase exercise were tested against either lower tech methods or nothing more than encouragement to follow the doctor’s recommendations.  Both studies found very little difference between the high tech reminders and no reminders.  Patients, it seems, just don’t want to cooperate.

The only thing that seems to make people change is to pay them to change.  When patients are provided money incentives to change their behavior, they are much more likely to do so than when other methods are used to encourage change.  As in so many other areas of life, money talks.  In those studies which showed people responding to money incentives to increase exercise levels, when the money incentives were taken away, the study participants went back to their old, sedentary ways.

According to the Centers for Disease Control (the CDC), 86% of all health care spending in the United States is for the care and treatment of chronic illnesses.  The effective treatment of these illnesses requires that patients comply with the orders of their providers.  Right now, that is not happening.  In the long run, we need younger people to adopt healthier lifestyles that will make it less likely they develop these illnesses in the first place.  That means lowering smoking rates and better eating and exercise habits.  These changes alone would make a huge dent in chronic illness.  The most recent data on obesity shows that 1 in 3 Americans is obese and that 1 in 6 children and adolescents is obese.  Obesity predisposes people to heart disease, kidney disease, diabetes and high blood pressure as well as other nasty diseases.

I often say, “Physician, heal thyself.” when discussing problems in the medical profession.  Here it seems more appropriate to say, “Patient, heal thyself.”

 

Posted in Doctors, General Health, health, Health Care Costs, healthy living, Heart Attacks, Medical Costs, Obesity, obesity epidemic, science news |

What You Don’t Know Can Hurt You.

November 13, 2017

One of the persistent problems in medicine is that of bad doctors who are kicked out of one hospital or medical group but allowed to go to another hospital or group with no warning to the new hospital or to the general public.  These bad doctors are then allowed to harm patients at the new location until they screw up so badly there that they are found out again and the process repeats itself.

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By definition, this is a problem we don’t hear about until one of the bad doctors screws up so badly and so often that it becomes public knowledge.  Such a case occurred not too long ago at a VA hospital in Maine.  While this was an egregious case, it would be a mistake to think that it was an isolated one or that these things only happen at the VA.  It happens everywhere and for many reasons.  Among them are that doctors don’t like to tell on each other, they don’t want to air their dirty linen in public, they are afraid that revealing the harm done by the bad doctor will get them sued either by the bad doctor or by the patients he or she has harmed or they just want the problem of the bad doctor to go away quietly.

In the Maine VA Hospital case, the physician in question was a podiatrist and he was apparently a very poor one.  The VA found that he had botched surgery after surgery.  In one case, he used the wrong hardware.  In another, he severed a critical tendon.  In another, he botched ankle fusion surgery so badly on two occasions on the same patient that she elected to have her lower leg amputated rather than live with the pain caused by the failed fusion attempts.

Despite concluding that this doctor was a “dangerous surgeon” as one supervising physician admitted in a later deposition, the VA did not report him to the National Practitioner Data Bank, where such reports are supposed to be made, and did not disclose his many mistakes to either patients or to state regulators who continued to renew this doctor’s license.  As was the case with this podiatrist, the employer disciplines the bad doctor who sues and, as part of the settlement of the bad doctor’s suit, he or she is allowed to quietly resign and the employment record is wiped clean.  On some occasions, the settlement even requires the employer to give a recommendation to the bad doctor to help him get a new job.

Usually, this is the place where I offer suggestions for how to avoid the problem I have been discussing.  I can’t do that today.  The public has to rely on the medical profession to clean its own house, root out bad doctors, and get them out of circulation.  The profession acknowledges this is a problem and often mouths pious platitudes about assuring that only good doctors will be allowed to practice in the future.  Of course, nothing changes.  The bad doctors continue to harm patients.  The bad doctors continue to be sued for harming patients and the medical profession continues to whine about frivolous malpractice suits.  Physician, heal thyself!

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

Smile. You’re On Social Media Or Doctors Behaving Badly.

November 06, 2017

Apparently all is fair in social media postings by plastic surgeons seeking business.  A few years ago a South Florida plastic surgeon began posting videos on social media as a marketing tool and attracted a large number of followers.  Nothing succeeds like success and doctors across the country have begun to imitate him and do whatever they can to distinguish themselves from their competitors.

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Some of these activities seem extremely unprofessional and vulgar.  The rule among these doctors seems to be that the more outrageous the behavior, the better.  They include doctors and nurses breaking into dance routines in the operating room while the patient lies unconscious on the table, doctors cuddling belly fat removed during a tummy tuck and putting a baby face on it, doctors juggling breast implants, doctors wearing costumes in the operating room, and doctors offering booze and a DJ at a marketing event to take place while the doctor is operating on a patient.  I could go on but you get the idea.

It would certainly seem that some of these stunts put patients at risk for infection or other injuries.  Planning and interrupting a surgery to put on a performance cannot help the surgeon and staff to maintain their concentration on the job at hand.  At a minimum, these stunts show a lack of respect for the patient.  And best of all, some of the surgeons trolling for plastic surgery business are not trained plastic surgeons at all.  They are doctors from other specialties who are chasing the money performing plastic surgery can bring.  There is nothing to protect patients from these plastic surgeon wannabes other than the patient’s own good judgment in researching the credentials of any doctor who wants to operate on them.

At present, there are no rules or regulations which prohibit tasteless displays like these but that may be about to change.  Doctors and medical students at Northwestern have written a proposed code of ethics to apply to videos of plastic surgery.  The code was presented at a recent annual meeting of the American Society of Plastic Surgeons.  Among the principles of the ethical code are respect for the autonomy of the patient, promoting what is best for the patient, making sure to do no harm, disclosure and informed consent.

When you are shopping for something as important as a plastic surgeon, don’t fall for glitzy marketing schemes with photographs of beautiful models with perfect skin.  Your appearance and your health are too important for that.  Always review any potential surgeon’s credentials on the web site of your local medical board.  Look for board certified plastic surgeons with no disciplinary history.  Making sure your surgeon has these credentials won’t guarantee a good result; nothing and no one can do that but it will give you the best chance to get a good result.

 

 

Posted in Arizona Medical Board, Board Certification, Doctors, Fee for Service, Fraud, Informed Consent, medical ethics, medical mistakes, Plastic Surgery |

The Business of Medicine Marches On.

October 30, 2017

I wish I could stop talking about money but that is what drives the health care business in the United States and it affects every aspect of your health care.  Annual spending on health care ($3.2 trillion) constitutes almost 20% of our nation’s Gross Domestic Product.  That is a lot of money and where there is a lot of money, there are people determined to get what they consider to be their fair share.

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As spending on health care has increased, hospitals have become more profit-driven.  Fewer and fewer hospitals are led by doctors.  The business people and accountants have taken over and these changes are having a big effect on the way health care is delivered to patients.  Historically, doctors have had great independence in making treatment decisions.  If a patient needed to stay in the hospital longer, the doctor could order it, even if it made more financial sense for the hospital if the patient were discharged.  Today, hospitals subtlely or blatantly insist that doctors discharge the patient when Medicare, for example, won’t pay for a longer stay.  Hospitals are also encouraging doctors to perform the most lucrative procedures at their facilities because they make more money when that happens.

A recent opinion piece in the New York Times by a concerned doctor discusses the problem in the context of a small community hospital in California.  The business people running the hospital fired the medical staff and replaced the members with new members more likely to do things the way the business people wanted.  The fired staff members sued and the case in pending in the courts but it points out the degree to which business people are now controlling or attempting to control what happens in their hospitals to maximize their bottom line.

Another way in which hospitals are remaking the health care delivery system is by purchasing medical practice groups and making the doctors in the group employees of the hospital.  This is certainly what I am seeing on a large scale here in Phoenix where Banner Health has been buying up practices left and right.  While theoretically, the employee doctors are still required to exercise independent judgment and to act in the best interests of the patient, the hospital now has a far greater input into the physician’s decision making process.  Just by controlling the manner in which the physician’s compensation is computed, the hospital can influence the physician to act in a way that puts the most money into the hospital’s pocket.

There is not much the individual patient can do except to be aware of the problem, to continue to ask questions of his or her doctor and to continue to use the internet to monitor the quality of the health care being delivered by the hospital’s in the area.  As always, being an informed consumer gives you the best chance to receive quality health care and to avoid being the victim of malpractice.

Posted in Doctors, health, Health Care Costs, Hospitals, medical ethics, Medical Malpractice |

Alternative Facts Drive House Malpractice Bill

October 23, 2017

The justifications put forward by the House Republicans to justify their attack on the rights of patients injured by medical malpractice are based, as they must be, on lies and misinformation.  How else to get such a blatant attack past the citizens of this country?

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Money, of course, drives these attacks.  If the amounts patients can recover when they have been the victims of malpractice are limited, this means more money for malpractice insurers, for doctors and for hospitals and less for those pesky patients who have been injured.  The prospect of more money for these people and corporations is all the inducement they need to hire lobbyists to promote legislation that favors them.  But what to tell the public?  Politicians don’t want to tell the voters that they are following the money.  Better to tell them that these new laws save them from greedy patients and will lower their health care costs.  But what are the facts?

Dr. Tom Price, the disgraced former Secretary of Health and Human Services, was a big proponent of the House malpractice bill when he was serving in the House.  His support continued after he became Secretary.  He claimed that passing this law would save hundreds of billions of dollars every year.  It would do this by stopping the flood of frivolous medical malpractice lawsuits that “forced” doctors to practice defensive medicine by ordering tests they would never order if they were not frightened that they might be sued.  Setting aside the fact that it is unethical for a doctor to order a test that the patient doesn’t need and to do it for the benefit of the doctor, there is no way defensive medicine amounts to hundreds of billions of dollars every year.

The non-partisan Congressional Budget Office (CBO) estimates that there would be a reduction in health care spending, if doctors stopped ordering unnecessary tests.  Since doctors get paid for ordering and reviewing these tests, it is a stretch to believe they would give up that income.  The savings also are based upon the assumption that malpractice insurers will reduce premiums and that doctors will pass those savings on to their patients.  These are two more questionable assumptions.  Even with those assumptions, the CBO, in conjunction with a Republican controlled Joint Committee on Taxation, estimate that maybe $3 to $5 billion might be saved each year for the foreseeable future.  That is a far cry from hundreds of billions in savings every year.

As far as there being a flood of frivolous malpractice claims, the number of malpractice claims has been declining steadily for the last twenty years.  A study by a peer reviewed medical journal of the American Medical Association itself, JAMA Internal Medicine, found that between 1992 and 2014 paid malpractice claims had dropped by over 55%.  If there is a malpractice crisis, it is the patients who are suffering as fewer and fewer of them are being compensated for injuries they have suffered as the result of medical malpractice.  The decline in the number of paid claims is even more striking when one considers that the population of the United States has increased by 24% during the same time period.  More and more patients are making fewer and fewer claims.  Some crisis.  But inconvenient facts never stopped a politician of either party when there were donations to be had.

Don’t be a sucker.  Don’t let them take your rights away.  Let them know you are on to them.

Posted in Defensive Medicine, Doctors, Health Care Costs, Hospitals, Lawsuits, Malpractice caps, Malpractice costs, Medical Costs, medical ethics, Medical Malpractice, medical malpractice claims, medical malpractice damages caps, Medical Negligence, tort reform |

MRI With Contrast? Not So Fast.

October 16, 2017

Magnetic Resonance Imaging (MRI) is a wonderful tool for seeing what is going on inside the body.  Unlike CT scans, which use x-rays, MRI’s use magnetic fields and radio wave pulses to image the organs, joints, muscles, bones and soft tissues of the body.  About half of all MRI’s use a contrast material which contains gadolinium, a rare earth metal.  Many radiologists believe that MRI’s with gadolinium contrast allow them to see tumors, blood vessels and inflammation that would not be as clearly visible in the absence of contrast.

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Evidence has been mounting that some people have permanent problems as the result of the injection of this metal-based dye into their bodies.  Doctors recognize that the kidneys will be called upon to excrete the gadolinium and have cautioned against its use in patients with damaged or fragile kidneys.  In those patients it causes scarring of the kidneys and further reduces their function.  However, even some patients with perfectly healthy kidneys have reported suffering kidney damage due to the presence of the metal in their bodies.  Many of these people have been urging that patients be given specific warnings about these potential effects of gadolinium contrast and an opportunity to refuse them, if they are concerned about the extra risk.

Research on the subject has also identified a syndrome which is believed to result from the use of gadolinium.  The syndrome is called Gadolinium Deposition Disease (GDD).  It is believed to be an immune system response and can cause skin conditions, bone pain and brain or chemo “fog.”  Caucasian women of European descent are believed to be at highest risk for this response, which shows up within days of the administration of the contrast.

Earlier this month an FDA advisory committee voted almost unanimously to urge the agency to put additional warnings on the label cautioning that gadolinium may end up deposited in the brain and kidneys.  The committee also urged that more research be done into the problems presented by gadolinium contrasts.  Patient activists do not believe these recommendations go far enough as patients never see the label warnings, which are directed only to physicians.

As a careful patient, if you are going to have an MRI, have a conversation with the radiologist about whether contrast will be used and the risks and benefits of gadolinium contrast.  Don’t let the radiologist tell you that there is no risk, because there is.  That there is risk does not mean you should not get the contrast.  It only means that you should be able to have a frank talk with the radiologist about what benefits he or she expects from the use of contrast and whether the study can be as helpful or almost as helpful without the use of gadolinium contrast.

Posted in Defensive Medicine, Doctors, Informed Consent, science news |

Kudos Time Again.

October 09, 2017

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Every day I receive calls from patients who believe they have been the victims of malpractice and who would like me to bring a case on their behalf.  Many times I agree that they have been the victim of malpractice but am not able to take the case for reasons I have discussed in prior blog posts.  Sometimes I accept the representation and bring suit because the patient has gotten poor care and was injured by it.  I see a lot of medical malpractice.  Because of my work, I often write about malpractice issues and structural problems in the business of medicine.  It is important, however, for me and for all of us to keep in mind the many dedicated medical professionals who try every day to keep us safe and well.  Their readiness to help, their professionalism and their excellent training were on vivid display in response to the tragic events of Sunday evening in Las Vegas.

Las Vegas is not a large city.  It has only one Level I Trauma Center.  In fact that trauma center is the only Level I Trauma Center in the entire state of Nevada.  Arizona by contrast has 12 Level I Trauma Centers.  On Sunday night, Las Vegas was faced with a veritable tsunami of critically injured patients.  Over 500 patients needed care Sunday night, many of them in critical condition with ghastly wounds and in need of emergency surgery to save their lives.  Any city would be hard pressed to deal with such a crisis.  For a city its size and with its resources, it did an unbelievable job in saving lives and treating the injured.  To do the job it did required dedicated, well-trained personnel ready to respond at a moment’s notice and extensive advance planning by the health care community on how to respond to a mass disaster.  Without that planning and those dedicated medical professionals, a catastrophic situation would have been orders of magnitude worse.

For all its faults, and there are many, our medical system is made up of many caring professionals who stand ready to help us when we need them.  This is one of those times for us to especially recognize them and the entire health care community and say, “Thank you.” for a job well-done, for the many lives saved, for the many wounded who were healed and for the care and compassion with which you acted.

Posted in Doctors, Hospitals, Medical Malpractice, Medical Negligence, Nurses |