Medical Malpractice News and Views

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

Don’t Expect Too Much From The Medical Profession.

January 17, 2022

I like doctors.  I really do.  Most of them are caring professionals who try to do the right thing.  Unfortunately, there are some who are only in it for the money and who are selfish jerks.  There are also some who either never should have made it out of medical school or who just let their skills erode to the point that they often deliver substandard care.  The problem I want to talk about today is the tolerance the medical profession has for jerks and incompetents.

American College of Physicians Releases 7th Edition of Ethics Manual - Neurology Advisor

Physicians pride themselves on having high ethical standards and living up to those standards.  Most do but almost all have a blind spot.  They don’t want to report other physicians who are rude, insensitive, disrespectful of patients or who are just plain incompetent.  As a result, the public is repeatedly exposed to these terrible people.  Why does the medical profession fail to police itself?  The answers are subtly different for the rude, disrespectful doctor and the incompetent one.

When it comes to the rude, disrespectful doctor, and it can be either a man or a woman but it seems to more often be a man, there may be a legitimate fear of retaliation, if that person’s misconduct is reported.  After all, this person is a jerk and has no respect for others.  He or she probably believes that it is their right to be rude and disrespectful and that other doctors have no right to interfere or to harm their medical practices.  These people may even be blind to their own rudeness and lack of respect.  Anyone who crosses them can expect all-out war.  Is it any wonder that many good doctors will just decide that it is not worth it to report this person?  Of course, this leaves the rude doctor to continue his offensive and disrespectful behavior.

When it comes to the incompetent doctor, the reluctance to report may stem from a concern that “There but for the grace of God, go I.”  Maybe the incompetence gets chalked up to the incompetent doctor just having a bad day.  Maybe it is excused because the incompetent doctor is a friend or is well-liked in the community.  Maybe the doctor who sees the incompetent behavior tells herself that she doesn’t have all of the facts and therefore can’t be sure this was incompetence.  Maybe she says it can be overlooked because no one was harmed.  Regardless of why it is not reported, it often is not reported and the incompetent doctor goes on to make more mistakes and to probably harm patients as a result.

My point is that the public cannot count on the medical profession to police itself.  It just is not going to happen consistently.  In most cases, reports will not be made.  When they are made, medical boards and hospital disciplinary committees do not consistently weed out the bad apples.  As a result, my in box fills up with messages from patients who have encountered these people, sometimes with catastrophic consequences.  We deserve better.



Posted in Arizona Medical Board, disclosure of medical mistakes, Doctors, Hospitals, medical ethics, Medical Malpractice, medical mistakes, Secrecy, Surgical Errors |

The “Just World” Phenomenon and the Malpractice Jury.

January 10, 2022

The “just world” phenomenon is the name given to the tendency of human beings to believe that the world is just and that people get what they deserve.  It is a form of cognitive bias.  We all have this tendency to a certain extent, with some believing it more strongly than others.  We want to believe the world is fair.  We want to believe that if we work hard and follow the rules, we will be rewarded, or at least not punished.  It doesn’t always work out that way, of course.  Bad things sometimes happen to good people.  Bad people sometimes seem to be the big winners in life.  Confronting the unfairness of life presents us with hard-to-resolve emotional conflicts.

A radical approach to creating fairness | Dhaka Tribune

Malpractice jurors are almost always called upon to confront an unjust world in which an innocent patient has been seriously injured.  Jurors who believe in a just world have a hard time finding in favor of such patients.  The stronger their belief in the fairness of the world, the more difficult it is for them to return a verdict for the patient.  If bad things can happen to good people, then bad things can happen to them or their families, even if they follow all the rules and live good lives.  It is hard to be optimistic about life, if you believe that everything is just a matter of chance.  It is much more reassuring to believe the world is fair.

Here is where the cognitive bias comes in.  If the world is fair, then there must be a reason this patient suffered a serious injury.  There must have been something the patient did or didn’t do, which brought this injury on her.  In a malpractice trial, there will be no shortage of suggestions by the attorneys representing the doctor about what the patient did or didn’t do that helped cause the injury.  Malpractice defense attorneys are some of the best trial lawyers around.  They know all about cognitive bias.  They know how successful blaming the patient can be as a trial strategy for a doctor who has committed malpractice.  They spend a lot of time before trial thinking up ways to blame the patient.

Sometimes the suggestions by the defense attorneys are well-reasoned and sound.  Sometimes they are ridiculous.  However, regardless of whether they are sound or ridiculous, they are still attractive to a juror trying to reconcile the need for the world to be fair with the injury to the patient.  If the terrible injury was somehow the patient’s fault, then the world is working in a fair way and you can’t blame the doctor for the patient’s injury.  Now the juror can go home and sleep peacefully, secure in the knowledge that the world is a fair place and nothing terrible is going to happen to his family.

Looking at it another way, no juror wants to believe that doctors make mistakes that kill and injure innocent patients.  Jurors want to be able to trust their doctors.  It is far more reassuring to conclude that the patient is somehow at fault for her injury.

There are many other cognitive biases out there that affect the way jurors hear the evidence and how they decide cases.  You need a lawyer who understands these things.  The deck is already stacked against patients who have been injured by doctor or hospital malpractice.  Don’t trust your case to someone who hasn’t proved their ability in trial.  If you have an experienced trial lawyer, the deck will still be stacked against you, but you will have given yourself the best chance to win.

Posted in Doctors, Finding a Medical Malpractice Lawyer, Hospital Negligence, Hospitals, Lawsuits, medical errors, Medical Malpractice, medical malpractice cases, medical malpractice lawyers, medical mistakes, Medical Negligence, plaintiff, trial, Verdicts |

Why You Need Uninsured and Underinsured Motorist Coverage.

January 03, 2022

Not all my practice is devoted to the representation of victims of medical malpractice.  I also represent people who suffer serious injuries in automobile accidents.  These cases often involve uninsured or underinsured motorist issues.  Of course, by the time I see the client and we discuss insurance issues, they either had uninsured and underinsured motorist coverage at the time of the accident or they did not.  It is too late to get it by the time they are sitting in my office.


Crash being investigated in Phoenix that injured 2 people | Arizona News |

Let’s get some of the basics out of the way.

Uninsured motorist coverage (UM) and underinsured motorist coverage (UIM) are different but similar.  Uninsured motorist coverage (UM) applies if you are in an accident and the other driver does not have an automobile liability policy in the minimum limits required by the State of Arizona.  It also applies if you are in an accident with a hit and run driver.  For policies issued before June 30, 2020 Arizona’s minimum limits are $15,000 per person and $30,000 per accident for bodily injury.  For policies issued after June 30, 2020, the minimum limits are $25,000 per person and $50,000 per accident for bodily injury.  If the other driver has such a policy, he is not an uninsured motorist even if the policy limits are not enough to pay for all the damages he caused.

By contrast, an underinsured motorist is a person who has automobile liability insurance with at least the limits required by the State of Arizona but whose limits are not sufficient to pay for all the injuries he caused.  It does not matter how big his policy is.  If it is not big enough to pay for all the damages, he is an underinsured motorist.  Underinsurance is measured by comparing the amount of the damages to the amount of the policy.  For example, if a motorist has a $1,000,000 liability policy limit but causes damages to you in the amount of $1,050,000, he is an underinsured motorist for the amount by which your injuries exceed his liability limits.  In my little example here, you can collect his million dollar limit and then recover your additional $50,000 in damages from your UIM coverage, if your UIM limits are that high.

A person cannot be both an uninsured motorist and an underinsured motorist.  He can be one or the other but not both.

A.R.S. Section 20-259.01 requires an insurer writing an automobile liability policy to make a written offer to the customer of both uninsured motorist coverage and underinsured motorist coverage for limits at least as much as the policy’s liability limits.  This means that, if you buy a policy with a $500,000 single limit of liability coverage, the insurance company must offer you $500,000 worth of uninsured and underinsured motorist coverage.  You don’t have to buy it in that amount, or at all, but the insurance company must offer it to you in writing.  There is no requirement to offer uninsured or underinsured motorist coverage when selling an umbrella policy.

So why buy these coverages at all?  If you decide to buy, how much should you get?

When I talk to a new client about their automobile accident case, one of the questions I always ask is whether they had UM and UIM coverage at the time of the accident, and, if so, in what amount.  I often find that the client has either refused the coverage or purchased it in an amount less than his or her automobile liability limits.  In my opinion, this is foolish.

UM and UIM are the only coverages that pay you and your passengers, if you are in an automobile accident.  If the accident is your fault, the liability portion of your policy pays the other people in the accident.  While that helps you by protecting your assets, if the accident was your fault, it does not put any money in your pocket.  On the other hand, if the accident was not your fault and you do not have either UM or UIM coverage, you are at the mercy of the other driver.  If the other driver has no insurance or only a small policy, you and your passengers may be out of luck.  On the other hand, if you have UM and UIM coverages, you will be able to make a claim under those coverages for the amount of your injuries up to the UM or UIM policy limits.

It is estimated that almost 12% of the drivers on the road in Arizona are uninsured.  Many, many of the rest will have only small policies.

For all these reasons, I recommend buying UM and UIM coverages in the biggest amount the insurance company will sell you.  The coverages are less expensive than liability coverage and are well-worth the money you spend to buy them.  In fact, I recommend buying the largest liability policy you can afford just so you can force the insurance company to offer you more UM and UIM coverage.

If you are in an accident in which you or a passenger suffer any serious injury as a result of the fault of another driver, I can virtually guarantee you that the other driver will be either uninsured or will meet Arizona’s definition of underinsured.  You need to protect yourself and your passengers and family from these people.  Buy that uninsured and underinsured coverage when it is offered to you and buy as much of it as you are allowed.




Posted in Insurance Law, Lawsuits, plaintiff |

“Get That Money.”

December 27, 2021

That was the message to employees of a dermatology practice in the Midwest that had been purchased by a hedge fund.  The bosses at the hedge fund were encouraging the employees of the dermatology practice to get more patients scheduled before the end of the month to qualify for some performance bonuses.  It didn’t matter to the bosses at the hedge fund whether good medicine required the appointments or whether the appointments were necessary or whether the appointments were in the best interests of the patients.  All that mattered to the bosses were that the appointments were scheduled so that more money could be billed that month.

Money matters to happiness—perhaps more than previously thought | Penn Today

The practices of the hedge fund were exposed by a doctor at one of the dermatology practices purchased by the hedge fund.  The dermatologist, who had employed her, passed away and his family sold the practice.  She went along with the practice to the new owners, at least until she started complaining about their business practices.  When she did that, she was shown the door.  Here is a link to a news article about her story.

Apparently, hedge funds have been buying up privately owned medical practices across the country.  They see the opportunity to generate income from these purchases.  Often, however, this requires them to ignore medical ethics, or at least to cut some corners.  The detrimental effects on medicine and on patients have been the subject of many articles in scholarly publications and even in the general news.

Medical ethics require physicians to put the interests of the patient first.  There is no such requirement for a hedge fund and they have been roundly criticized for doing whatever it takes to make money and leaving behind the wreckage of the businesses they buy.  Their approach to the practice of medicine is no different.

In the dermatology clinics, the hedge funds hired “practice extenders.”  These are non-physicians who see patients.  They are usually Physician Assistants.  They are less well-trained than a physician and can be paid much less than a physician.  In spite of the fact that they are not doctors, they can often be billed at the same rate for seeing a patient, conducting a dermatology examination and evaluating abnormal conditions.  To make up for the fact that they are less well-trained than a doctor, they are supposed to be supervised by a licensed physician.  According to the article I linked to, sometimes the “supervising” dermatologist is located in another city, which, as you can imagine, cuts down on the effectiveness of the supervision.

According to the dermatologist who complained about the hedge funds, they also pressure the doctors and non-physician staff to see as many patients as possible each day.  While this increases the income of the practice, it may result in tired, stressed-out practitioners, who are more likely to make a mistake.

Another way to make money is for the dermatology practice to buy or establish its own pathology laboratory.  If you have ever been to a dermatologist and had a biopsy performed, you know that the tissue sample is sent to a pathology laboratory, where a pathologist examines the specimen and gives an opinion as to what it is and whether it is cancerous or not.  If the dermatology practice owns its own lab, it makes extra money every time it sends a specimen for review.  According to studies of this situation, when a dermatology practice owns its own lab, it tends to send more specimens to the lab for examination than do practices that do not own their own labs.  I am sure that is just a coincidence.

The dermatologist also complained that the hedge fund did not provide enough instruments for the practice and that some of the instruments it did provide were not of good quality.  There are lots of corners that can be cut, if you are truly dedicated to making money.

When the primary focus of a medical practice is making money, medical ethics must, of necessity, take a back seat.  There is no way to reconcile the welfare of the patient with trying to squeeze the maximum amount of money out of a medical practice.

It is not easy for a patient to know whether the doctor the patient is seeing is being driven by the profit motive or is being driven by the desire to do what is best for the patient.  The best way to protect yourself is to recognize that medicine is being seen as a business by more and more doctors and to consider their advice the same way you would the advice of anyone else who is trying to sell you something.  Be careful.  Just because a doctor says it does not make it true.

Posted in Cancer, Doctors, Fee for Service, Health Care Costs, Medical Costs, medical ethics, Melanoma, science news |

Are We Headed Back to the Bad Old Days?

December 20, 2021

My granddaughter and I were looking at songs in a folk singing book the other day and one of them was “Sweet Molly Malone.”  If you know the song, you know Molly was a fishmonger in old Dublin, who died of a “faver” and no one could save her.  I had to stop and explain to my granddaughter that only 100 years ago, people died young of fevers and illnesses because they did not have the antibiotics we take for granted today.

What's the difference between bacteria and viruses? - Institute for  Molecular Bioscience - University of Queensland

A child born in the United States in 1920 had a life expectancy of around 55 years.  If that child could make it through infancy and into young adulthood, she or he could expect to live into their 70’s.  Childhood death and disease was a real thing back then.  Today’s child has a much better chance of living to adulthood and, accordingly, has a life expectancy of 81 years.

Of course, not all of that increase in life expectancy is due to the development of antibiotics.  Chlorination of drinking water made it safe to drink.  Municipal sewer systems kept human waste out of the streets.  Vaccinations kept lethal childhood illnesses at bay.  But antibiotics played and still play a huge role in stopping bacterial illnesses in their tracks.  That may all be going away and, if it does, it will be our own fault.

Today, we use antibiotics as if they were candy.  Got the sniffles?  Go to the doctor and get some antibiotics.  What could be the harm?  When you get your antibiotics, be sure not to take all of the pills the doctor gives you so that some of the bugs that gave you the sniffles can survive and develop resistance to the antibiotics.  Take those unused pills and either save them to take when you get the sniffles again or dump them down the toilet, where they can enter the water system.

As much as we abuse antibiotics, we cannot hold a candle to agribusiness where pigs, cattle and chickens are routinely given antibiotics.  They are not given antibiotics because they are sick.  On the contrary, they are given them to  keep them from becoming sick, even though few of them would become sick and die in the absence of antibiotics.  The antibiotics given those animals enter the food chain and end up on our dinner plates.

All along the way, the antibiotics kill most of the bacteria they encounter but some will survive and pass their immunity to their offspring, who will in turn pass it on to their offspring.

Bacteria are some of the hardiest creatures on the earth.  They have been around since before our ancestors came out of the sea onto dry land.  There are thousands of trillions of them alive today and they form a vast reservoir that is just waiting for its chance to live out its life cycle and successfully reproduce.  Often that life cycle involves a human host and inflicts illness and misery on that host.

My granddaughter is like most of the rest of the public.  She never thinks about antibiotics and whether they are going to continue to be effective in keeping her from serious bacterial illnesses.  Of course, she has the excuse of only being eight years old.  The rest of us just blindly assume that science will somehow save us from our follies, whether they arise from the overuse of antibiotics or climate change.  It is time we took some personal responsibility.  It is time we stopped overusing and abusing antibiotics.  Every year more and more antibiotics have to be retired because they are no longer effective against the diseases they once treated so successfully.  Antibiotic resistant tuberculosis is becoming widespread.  Pray you never get it.  For many illnesses, we are down to only one effective antibiotic and it probably won’t be long before that medication is no longer effective either.

It is truly amazing all of the progress we made in the last 100 years in treating bacterial illnesses and how quickly we can ruin it completely through selfishness and carelessness.  Here is a good article from the folks at Cedars Sinai about antibiotic resistance and the things we can do to prevent its development and protect ourselves from bacterial infections.  Read it and heed it.

Posted in antibiotic resistant bacteria, General Health, health, healthy living, Infection, medical research, science news |

Changes Are Coming To Malpractice Trials.

December 13, 2021

Recently, the Arizona Supreme Court changed the rules relating to jury selection in both civil and criminal cases.  The rule changes will take effect next month.  They may have a big effect on medical malpractice trials.

Rules of Civil Procedure for the Superiors Courts of Arizona 2019: Government, Arizona, Lee, Jason: 9781695964129: Books

Under the old rules, when lawyers were picking a jury, there were two kinds of challenges the lawyers could use to strike potential jurors from the panel.  The first kind of challenge is one for cause.  If a juror was biased in favor of or against one of the parties or could not be fair to both parties, the trial lawyer could ask the judge to strike the juror “for cause.”

The second kind of challenge was called a “peremptory challenge.”  After all of the jurors had been questioned and the judge had ruled on all of the challenges for cause, the lawyers could each strike four or five of the remaining people called for jury duty that day.  They could strike them for any reason or no reason.  They could strike them because their hair was too long or too short.  They could strike them because they used to work in the medical profession or because they had no medical background at all.  The only limitation on peremptory challenges was that they not be used for a bad reason, such as striking someone because of their race.

If one of the lawyers believed that the other lawyer had used a peremptory challenge for an improper purpose, she could bring the issue to the attention of the trial judge, who would consider the matter and decide whether to allow the peremptory challenge or not.

This did not happen very often in civil cases but did happen with some frequency in criminal cases where prosecutors preferred not to have minorities on the jury, especially if a minority person was the defendant.  The United States Supreme Court famously reversed a number of death sentence convictions in cases where it found that prosecutors had systematically used peremptory challenges to get rid of minority jurors.

The petition to change the jury selection rules that was submitted to the Arizona Supreme Court claimed that racial discrimination was being practiced through the use of peremptory challenges and that the best way to prevent it was to abolish peremptory challenges completely.  Despite near unanimous opposition by trial lawyers, the Supreme Court granted the petition and abolished peremptory challenges effective January of 2022.

So how might this affect medical malpractice trials?

If you are a regular reader of this blog, you know that doctors and hospitals win around 85% of the medical malpractice cases that go to trial in Arizona.  This is true even though many of the cases which health care providers win have strong evidence of malpractice that caused injury to the patient.  Most of the prospective jurors in the state of Arizona have had good experiences with doctors and do not believe that they make mistakes that kill or injure patients and, even if they do, are willing to cut them a break and send the injured patient home with nothing.  Only a few of the jurors who get summoned to show up for a malpractice trial will be likely to find in favor of the patient.  Up until now, the malpractice defense attorneys could use a peremptory challenge to get rid of these jurors who might find in favor of the patient.  Not any more.

Once the rule amendment becomes effective, the malpractice defense lawyer will only be able to get rid of those jurors who might favor the patient if the defense lawyer can convince the judge that the juror cannot be fair.  If the juror says that she or he can be fair, despite having a bad experience with the medical profession, for example, that juror will sit for the trial and decide the case.  The rule change will be less damaging to the attorney representing the patient as there were always too many jurors who favor the doctors for the patient’s attorney to strike anyway.

Of course, we will have to see how this plays out, but there is reason for injured patients to be encouraged for a change.

Posted in Arizona Supreme Court, Doctors, Hospitals, Lawsuits, Medical Malpractice, medical malpractice cases, medical malpractice lawsuits, medical malpractice lawyers, medical mistakes, Medical Negligence, plaintiff, trial, Verdicts |

Wrong Site Surgeries.

December 06, 2021

Wrong site surgeries are in the news again.  Wrong site surgery occurs when a surgeon operates on a part of the body that was not intended to be the target of the surgery.  While most cases of wrong site surgery involve operating on the wrong side of the body – think left knee instead of right knee or right eye instead of left eye – there are other forms, such as where a spine surgeon operates on the wrong level of the spine.  Whether they are in the news or not, wrong site surgeries are a vexing and continuing problem that just keeps happening over and over again.

Covid: Disruption to surgery 'will affect millions' - BBC News

Wrong site surgeries don’t happen very often.  It is estimated that perhaps only one in 100,000 surgeries is performed on the wrong site.  While that is not a very high rate, when coupled with the fact that there are millions of surgeries performed each year in the United States, that means there are hundreds of wrong site surgeries every year.

Wrong site surgeries are never good but many are devastating.  They are particularly bad when the surgery is being done to remove a cancerous organ and leave behind its non-cancerous match.  For example, there is a cancer in the left eye and the surgeon removes the good right eye.  When the surgeon goes back and removes the cancerous left eye, as he must, the patient will be blind.  Pretty much the same thing happens when the wrong kidney is removed.  After the second operation removes the bad kidney that should have been taken in the first place, the patient will need lifelong dialysis.  Under the best of circumstances, the result of an operation on the wrong site is an unnecessary surgery in which the surgeon recognizes the mistake before any irreversible damage is done.

Hospitals have developed procedures intended to stop wrong site surgeries.  They usually involve some sort of “time out” to be taken by the operating room staff.  During the time out, the staff, including the surgeon, is to make sure they have the correct patient, that they are doing the correct surgery on the patient and that the surgery is being done on the correct body part.  The time out is a good idea that just doesn’t seem to be working as intended.  One of the reasons it doesn’t work as well as it should is that surgeons sometimes refuse to participate in the time out.

In addition to hospitals establishing procedures intended to prevent wrong site surgeries, the Joint Commission, a non-profit organization that accredits health care institutions and sets standards, has recommended labeling the correct site for the intended surgery, when there is a possibility of left-right confusion.  In a recent article in the Washington Post, Dr. David Perlow, an Atlanta urologist, has suggested that this recommendation is faulty and misguided.  Dr. Perlow makes a lot of sense.  He says that, rather than labeling the correct site, the surgical team should label the wrong site.  If the surgeon is distracted, she or he may fail to notice that there is no “correct” label on the operative site.  If the wrong site has been prepared for the surgery, the “correct” label may be covered by the surgical drapes that expose only the operative site.  On the other hand, the “wrong” label will be exposed after draping and is much less likely to be missed or ignored.

Regardless of what the hospital decides to do about labeling, you can do your own labeling.  You can take a marker and mark “wrong” or “no” or “stop” on the incorrect site.  I did that when I had my left hip replaced about ten years ago.  I don’t know that it made any difference, but the doctor operated on the correct hip.  Nothing is guaranteed in life but this precaution may save you a lot of pain and grief.


Posted in Doctors, Hip Replacement, Hospital Negligence, Hospitals, joint replacement, medical errors, Medical Malpractice, medical mistakes, Medical Negligence, never events, Nurses, Surgical Errors |

The Type 2 Diabetes Epidemic.

November 29, 2021

America, we are letting ourselves go and it is costing us.  It is costing us in terms of rising health care costs, loss of quality of life and shortening of life expectancy itself.  We are getting fat and flabby.  We are smoking less, thank goodness, but eating more and eating the wrong foods to boot.  All this is causing a huge rise in obesity, even among children.  With obesity comes Type 2 diabetes.  It is a bad customer and we should all do what we can to avoid it.  This is a self-inflicted injury, if there ever was one.

Tips for Treating and Reversing Type 2 Diabetes - SignatureCare ER

Diabetes refers to a condition in which the body is not able to effectively utilize the glucose that our cells require for energy.  We eat food, which our bodies properly convert to glucose and deliver to the bloodstream.  When things are going as they should, our bodies also produce insulin, which allows the cells to take the circulating glucose and turn it into energy.  The more glucose the body produces in response to food or other things, the more insulin is produced to keep the blood glucose levels from rising too much.  It is a finely balanced system in which many bodily organs play a part in keeping blood sugars in a narrow range.  Insulin is the key to this system.

Unlike Type 1 diabetes, which is an autoimmune disease in which the body destroys the cells that make insulin, the bodies of Type 2 diabetics still make insulin.  They may not make as much insulin as before, but they make it nonetheless.  Even when they do make insulin, however, their bodies may develop a resistance to it, so they need more.  The bottom line for Type 2 diabetics is that the finely balanced system is out of balance and the amount of sugar in their blood goes up as a result.

High blood sugars don’t usually cause any immediate problems, so long as they don’t get crazy high.  They do cause long-term damage to the body, however.  One of the biggest effects is that they create inflammation in the blood vessels, which causes them to narrow so that oxygen rich blood does not flow through them as well as before.  This is a big problem with the small, but critically important vessels, in the eyes, kidneys and heart.  It also interferes with blood flow to the lower extrmities resulting in ulcers, nerve damage and sometimes even amputation.

Not all Type 2 diabetics have the same degree of the disease.  Some are able to control their blood sugars through diet or exercise.  Some need only a little help through one of a number of medications that treat Type 2 diabetes.  Some need regular insulin and need to check their blood sugars multiple times a day.

Don’t be one of these people.  Unlike Type 1 diabetes, for which there is no known cause and no way to prevent it from occurring, Type 2 diabetes can be avoided or at least delayed by living a healthy lifestyle.  Keep your weight down.  That means a responsible diet and moderate exercise.  Do these things and your body will reward you with better health and maybe even a longer lifespan.  It’s up to you.

Posted in General Health, health, Health Care Costs, Medical Costs, Type 1 Diabetes, Type 2 Diabetes |

Hey, Medicare Beneficiaries, There Is No Free Lunch!

November 22, 2021

Recently, I was stuck in front of a television that was showing a nature program.  Every few minutes, it was advertisement time.  Because this was early November and Medicare beneficiaries can change their Medicare plans at this time of year, almost all of the ads were devoted to that subject.  Each featured some well-known performer who urged me to call immediately to see if I was eligible for a Medicare Advantage plan that offered more benefits than traditional Medicare and might even pay me to join.  For those keeping score, this sounds almost too good to be true.  As usual, it is too good to be true.

Medicare cards - Medicare Interactive

Medicare is a health care program created by Congress and operated by the federal government.  It has a set of clearly defined benefits and a clearly defined appeal process, if a beneficiary believes that he or she has been improperly denied a benefit to which they are entitled.  Beneficiaries have a lot of freedom under traditional Medicare, including the freedom to pick any doctor they choose, who is willing to accept Medicare patients, and the freedom to visit a specialist whenever they believe it is necessary.

By contrast, Medicare Advantage programs are run by private companies looking to make a profit.  These private companies are paid by Medicare for each beneficiary they sign up.  The amounts the companies receive is based on a bidding process and depends on where the beneficiary lives.  The companies provide certain medical care for the beneficiaries they sign up and keep any money left over after paying for the care.  As an inducement to Medicare beneficiaries to sign up, the companies usually offer more benefits than regular Medicare.  The benefits offered also may be affected by where the beneficiary lives.

So how can a Medicare Advantage company make any money, if it has to pay for the care its beneficiaries need?  The answer is that the Medicare Advantage company provides “managed care.”  This means that, unlike regular Medicare, a beneficiary cannot just choose any doctor he or she wants.  The Medicare Advantage company will usually have contracted with certain doctors and hospitals to be in a network and will require its beneficiaries to go to the network doctors and hospitals or pay out of their own pockets.  The Medicare Advantage company will usually limit access to specialists by requiring that a primary care physician in its network refer beneficiaries to specialists before the beneficiary can visit the specialist.

These are just some of the ways in which a Medicare Advantage plan keeps down the medical expenses of its beneficiaries.  Its actuaries have carefully determined how much it is going to cost the company to offer the benefits it does.  The company then spells out what it will and won’t cover in a contract with the beneficiary called the plan document.  The company then rigorously follows that plan language.  If it is not covered, you don’t get it, regardless of how badly you need it or think you need it.  The company also controls the appeal process for beneficiaries, who think the company was wrong to deny them a certain procedure or a certain benefit.  There is no outside appeal.  The company may review its decision, but it is the company that is doing the review and not some independent reviewer.  The more care the company pays for, the less money it makes, so the company has to keep the care provided to the minimum required by the plan document.

After over 45 years of practicing law, I have read a lot of contracts.  The Medicare Advantage plan documents are complicated, even for me.  As a practicing lawyer, I understand how important it is to know what you are agreeing to when you sign up for a Medicare Advantage plan.  You are giving up some rights in order to get some additional benefits.  Maybe it is a good deal for you, but maybe it isn’t.  As in every other aspect of life, there is no free lunch.  No one is going to give you extra benefits without exacting a price.  However, after 45 years of practicing law, I also know how few people will actually read the long and complicated plan document detailing what they will get from the Medicare Advantage plan and what they will not.  The vast majority of people will not read the plan document until they have been denied some care and by then it is too late.

This is by no means a criticism of Medicare Advantage plans in general.  Instead, this is is a warning to Medicare beneficiaries to look before you leap.  Read the plan documents before you sign up, not after you have been denied a benefit you thought you were going to receive.  A Medicare Advantage plan may be just right for you or it may be a nightmare.  Only you can decide.

Posted in Doctors, Fee for Service, Health Care Costs, Health Insurers, Hospitals, Medicare, Rationing, Uncategorized |

Practice Makes Perfect

November 15, 2021

“Practice makes perfect.”  How often have we heard that old bromide?  Perhaps the main reason it has lasted so long is that there is a lot of truth to it.  There certainly is when the subject is medical procedures.

The Vineyard Gazette - Martha's Vineyard News | Its Emergency Room Jammed, Hospital Feels Impact of Case Spike

When it comes to quality medical care, I am fortunate to live in a big city with a number of excellent hospitals within a short drive.  While there are a lot of good things to be said about living in a small town, outstanding surgical care is not one of them.  Many surgeries are complex, even the ones we often think of as routine, such as hip or knee replacements.  In small hospitals, the surgeon may only do a few of these procedures each year.  If that is the case, statistics show that the complication rates go way up, as does the risk of death.  Here is an excellent post by U.S. News & World Report on the issue.

All other things being equal, and they rarely are, the more often a surgeon and her operating room team perform a surgical procedure, the better they get at it.  This should come as no surprise.  We see the same thing across many areas of life.  If you have a favorite recipe that you prepare at least a couple of times a month, you can prepare it in your sleep.  Not so with the meal that you only prepare once or twice a year.  For that one, you have to keep going back to the recipe and even then may get something wrong.  You don’t have the same feel for the dish.  In team sports, the play you practiced over and over usually comes off more smoothly than the trick play you only practiced once.

Small hospitals in small towns face many challenges.  It is hard to make ends meet.  They need the big ticket surgeries for which Medicare or a health insurer will pay big dollars.  It is a problem for the hospital’s bottom line, if the local patients go off to the big city for their complex surgeries.  But the statistics show that going off to the big city where the surgeon does your operation at least 3 or 4 times a week may save your life and, at the least, will reduce the risk of post-operative complications.  Try as it might, there is no way the small hospital can give even the world’s greatest surgeon enough surgeries to keep her skills sharp.  There just aren’t enough patients or surgeries to do that.

Based on the available data, even a surgeon of average talent will probably over time have better outcomes than a more talented surgeon, who just does not get to do the procedure very often.  And, of course, the success of an operation is not solely dependent on the expertise of the surgeon.  There is an entire team in the operating room working together to make the surgery a success.  There is also the post-operative care team, which is responsible for taking care of the patient and helping her recover safely from the procedure.  In my own practice, I have seen a number of cases in which a patient who came through an operation with flying colors, died or was seriously injured as the result of mistakes made during the first 12 hours after the surgery.  There are lots of ways to screw up an operation or a patient’s post-operative recovery.  As a patient, you want the practiced, well-oiled team that can do its job in its sleep.

To put an even finer point on it, the statistics show that surgeries done mid-week have lower complication rates than those done in the early part of the week when the operating room team and the surgeon are just getting back in the groove.  If you can avoid it, you do not want to be in the hospital over the weekend, especially if it is a three day weekend.  Bad things tend to happen when the usual crews are off on holiday.

For a lot of people, having the surgery at the local hospital, even with a higher risk of complications or death, is still preferable to driving for hours to the city to get the surgery.  That is fine and there are many reasons for making that choice.  Just be sure you understand that having your surgery at the local hospital places you at higher risk.


Posted in Doctors, Hip Replacement, Hospital Negligence, Hospitals, Informed Consent, medical errors, Nurses, Surgical Errors |