Medical Malpractice News and Views

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

Beware The Cosmetic Surgeon

June 01, 2020

We all want to look like we are young and healthy, even those of us in our later years.  Beauty is big business and, wherever there is big business, you can be sure charlatans will follow.  This is true in medicine and particularly true in cosmetic surgery.

Image result for cosmetic surgery

Unlike many other areas of medicine in which a doctor’s compensation depends on insurance company reimbursement rates, most cosmetic surgery is paid for by the patient.  Most often cosmetic surgery is not covered by medical insurance so the cosmetic surgeon is free to charge what the market will bear.  In the case of cosmetic surgery, the market will often bear a pretty high price.  After all, what would you pay to look young and beautiful forever?

The Arizona Medical Board does not require that a doctor doing cosmetic surgery be formally trained in it or be the graduate of a plastic surgery residency program.  It does require that doctors be competent to perform the procedures they do but leaves it up to them how they get training, how long the training is and how detailed it is.  Perhaps unsurprisingly, some doctors take a very liberal view of the amount of training they need before they begin cutting on your face or body.  I have seen cases where an eye doctor went for a weekend training course in botox or liposuction and then began to treat the public.  With all due respect, even the greatest and most talented doctors aren’t going to learn all they need to know in a weekend training course.

It doesn’t take a very lengthy Google search to find horror stories about cosmetic surgery gone wrong.  Often it was performed by someone not formally trained in it.  Often it was performed in the doctor’s office or surgical suite.  Sometimes it wasn’t even performed by a doctor.  Performing these procedures away from hospitals solves the messy problem of proving to the hospital that you are qualified to do the procedure.  Unfortunately, it exposes the patient to much higher risk, if anything goes wrong during or after the surgery.

For many cosmetic surgeons today, their web page designer is more important to their financial success than their training and competence.  If you look at the web sites for these surgeons, you see pictures of beautiful people with flawless skin and shapely bodies.  You may see testimonials from former patients to the skill and results of the surgeon.  If you are in the market for cosmetic surgery, don’t let the web site be the end of your search for a good surgeon.  Anyone can hire models to pose for supposedly “after” pictures.  Anyone can curate a list of testimonials from among their patients.  Dig deeper.

I personally believe it is very foolish to go to any cosmetic surgeon who is not board certified in plastic surgery.  Board certification does not guarantee you a good outcome but does guarantee that the surgeon has spent a couple of years being trained what to do.

Watch out for overpromising surgeons.  Not all patients are created equal.  Not all skin is created equal.  Not all patients will heal the same way.  If this is not your first time around for this type of surgery, the surgeon may have to deal with scars and tissue that is not as likely to heal as well as it did the first time.

Check the Arizona Medical Board, or your local board if you are not seeing an Arizona surgeon.  Has this surgeon been the subject of complaints?  Has this surgeon been the subject of discipline by the board?

In short, do your homework so you don’t end up the subject of one of the cosmetic surgery horror stories on the evening news.

Posted in Arizona Medical Board, Board Certification, Doctors, Fee for Service, Fraud, Health Insurers, Hospitals, medical errors, medical ethics, Medical Malpractice, medical mistakes, Medical Negligence, Plastic Surgery |

Sugar And The Brain

May 25, 2020

Recently, I was reading some articles about added sugar in our diets.  Most added sugar comes from processed foods and is already in the box or the jar before we bring it home from the store.  Dieticians and nutritionists recommend we review product labels before purchase as an aid to reducing sugar intake.  When I actually read some of the nutrition labels, I was surprised to see how many showed sugar was a substantial addition to the product.

New 'added sugars' labeling could save money and improve health ...

I also discovered that fruit juices and even some fruits were significant sources of added sugar in the diet.  Grapes were a good example of what the nutritionists say are little packets of almost pure sugar.

Glucose, a form of sugar, is the fuel on which our brains depend.  Not enough glucose, also known as hypoglycemia, causes loss of attention and cognitive function.  If glucose levels become critically low, it can cause death.  We have to have glucose for the brain to operate properly but too much of a good thing is usually a bad thing.

So what is the problem with sugar?  Actually, there are lots of them.  The first is that sugar can be almost addictive.  Our bodies are hard-wired to seek out sources of energy.  For millions of years of our development, finding energy was the most important thing in life.  It was a constant struggle.  It was not as easy as just walking into the supermarket.  Our ancestors had to work hard to find energy and our bodies developed a reward mechanism to encourage us to find energy and recognize it when we did.  One element of that was the development of a “sweet tooth.”  If it tasted sweet, that usually meant it was a source of energy.  Our ancient brains therefore associated sweetness with goodness and developed a reinforcement mechanism to keep us coming back for more.

Recent research with pigs has shown that even a little exposure to high sucrose levels causes changes in the brain’s circuitry.  The changes were in the dopamine receptor areas of the brain.  These are the pleasure sensing receptors.  Narcotic pain killers operate on these areas.  It is what causes addiction to them.  It is significant that sugar operates in the same way on the same receptors.  No wonder some people can’t say no to ice cream or other high sugar foods.

Other studies have shown that elevated levels of glucose in the brain are associated with cell death and with a decrease in cognitive functions and memory.

A second problem with sugar is that higher levels of sugar intake are linked to an increased risk for Type II diabetes.  The link may be both direct and indirect.  It may be direct in that high sugar intake makes the liver fatty and decreases its ability to regulate glucose levels in the blood.  It may be indirect in that it leads to obesity, which is also linked to Type II diabetes.  Studies have shown that for every additional 150 calories of sugar intake, there is a 1% increase in the incidence of Type II diabetes.

Diabetes, whether it is Type I or Type II, causes elevated levels of glucose in the brain.  Over time, these elevated levels lead to a loss of brain function, loss of functional connectivity between neurons in the brain, atrophy and small vessel disease.  Small vessel disease can cause vascular dementia due to lack of blood flow.

In addition to its effects on the brain, there are also strong links between elevated sugar intake and the likelihood of death from heart disease and other illnesses.  People who received more than 25% of their daily calories from sugar were twice as likely to die of heart disease than those who received less than 10% of their calories from sugar.  High sugar intake is also associated with high cholesterol, fatty liver, chronic inflammation and some cancers.

It makes sense for us to be moderate in our sugar intake.  Watch out for and avoid added sugars and you have taken another step in assuring a long and healthy life.

Posted in Cancer, General Health, health, healthy living, heart attack, Obesity, science news |

An Unethical Outrage.

May 18, 2020

How would you like to be kept alive in a permanent vegetative state for a year just so your hospital can continue to make money?  That is what happened to at least one patient at a hospital in New Jersey and probably to others as well.  Their stories are horrible examples of doctors and hospitals gaming the system to keep the dollars flowing.  If you think this hospital and these doctors are the only ones doing this, you are incredibly naive.

Image result for heart transplant surgery

Darryl Young, 61, a veteran and former truck driver, needed a heart transplant.  After four years with a mechanical heart assist device, a heart finally became available and Mr. Young was scheduled for a transplant.  The operation was performed on September 21, 2018.  Although the surgery appeared to be a success, Mr. Young never woke up afterward.  No one knows why he never woke up.

Medical ethics require the doctors caring for a patient like Mr. Young to be candid with family members about the patient’s condition and what the future likely holds for him.  Mr. Young’s sister, who had his medical power of attorney and was his medical decision maker, says no one ever had this discussion with her.  Instead, when she asked why her brother had not awakened and whether he was going to awaken, the doctors told her they had seen patients like her brother wake up and be completely fine.  They never told her that he was unlikely to awaken and, if he did, that he would be profoundly impaired.

So what was going on here?  Why weren’t the doctors having a frank and candid discussion with Mr. Young’s sister about what the future held for him?  The answer, as it often is, is money.

Medicare pays for heart transplants like the one Mr. Young had.  It insists, however, that transplant programs meet certain standards.  One of the most important standards is whether the transplant patient lives for a year after the surgery.  If he or she lives to the one-year anniversary, their surgery is deemed a success.  If they don’t make it to a year, the surgery is deemed unsuccessful.  Too many unsuccessful transplants and Medicare can pull the hospital’s certification as a transplant center.  No certification, no reimbursement by Medicare.  This can be a double whammy as many health insurers will not pay for transplants performed at hospitals that do not have Medicare certification.  In the past decade, 20 hospitals have lost their Medicare certification of their transplant program.  Most have been forced to shut the program down.  This involves a huge financial hit for the hospital and the transplant team at the hospital.  Small wonder that some give in to temptation and game the system to keep their transplant program going.

The hospital where Mr. Young had his transplant, Newark Beth Israel, had some unexplained problems with patient survival in 2018.  Its survival rate was already around 85% at the time of Mr. Young’s surgery.  Were he to die, the rate would dip to around 81%, far below the national survival rate of 91%.  To put it bluntly, the doctors and the hospital could not let Mr. Young die.

To that end, they kept him in the hospital in the ICU.  They fought off all the infections, pneumonias and other problems that typically end the lives of patients in persistent vegetative states who are on ventilators.  They did not transfer him to a long-term care facility as they would normally have done.  He might die there.  They did not tell his sister what was going on with him or that he was unlikely ever to awaken or to function again.

ProPublica, an independent journalism site that investigates abuses of power, investigated the case of Mr. Young and that of other similarly situated patients at Newark Beth Israel.   It obtained tape recordings of doctors openly discussing the importance of keeping Mr. Young in the hospital and alive until his anniversary date.

This story has no happy ending.  At the time of the ProPublica report, Mr. Young was still alive.  As he reached the one-year anniversary of his transplant, the doctors at Newark Beth Israel decided that Mr. Young was finally well enough to be transferred to a long-term care facility.  A miracle, no doubt.  In the meantime, someone is going to have to pay for the transplant surgery and the year-long stay in the ICU.  This adds up to many millions of dollars that will likely be billed to Medicare so you and I will be the “someone” who gets to pay for this scam.


Posted in disclosure of medical mistakes, Doctors, Fee for Service, Fraud, Health Care Costs, Hospitals, Informed Consent, Medical Costs, medical ethics, Medicare, never events, Secrecy |

Not All Carbs Are Created Equal

May 11, 2020

Pity the poor carbohydrate.  Carbohydrates, also known as saccharides or carbs, are sugars or starches. They are a major food source and a key form of energy for most organisms.  We need them to survive.  Unfortunately, like people, there are good carbs and bad carbs.  Also, just like hanging out with bad people can land you in jail, running with a bad crowd of carbs can cause you lots of trouble.

Carb Timing for Muscle Growth — Nutrex Research

Most of the foods pictured above are examples of good carbohydrates.  They are complex carbohydrates and have a low glycemic index.  That means that they slowly release their energy into the blood stream.  When you eat them, they take longer to digest and you feel full for a longer period of time.  Simple carbohydrates, on the other hand, have more sugars in them.  They provide quick energy but are gone soon and you are once again hungry.

While we rarely think about it, we are the product of millions of years of evolution.  Our digestive systems have a long history and evolved to meet far different challenges than we face today.  For our distant ancestors, finding enough to eat was a daily struggle.  Energy was hard to come by.  Quick energy sources were valuable and our brains developed a pleasure response when we encountered them so we would recognize them as “good” and keep coming back for more.  On the other hand, more complex carbohydrates took longer to give up their energy during the digestion process.  Our bodies developed a long intestine to get every last drop of energy out of our food before passing it on.  When food got to the bottom of the intestine, it triggered a sensation of being full, so we would know to stop eating.

Fast forward to today.  Not only are many foods we eat today processed, they are ultraprocessed.  Think of our favorite junk foods:  Chips, candy, ice cream, cookies, pizza, surgary drinks, doughnuts and breakfast cereals.  Almost as soon as they enter our bodies, they give up their energy.  They make the lower part of the intestines useless.  All the energy is gone long before they get to the lower intestine.  We never get to feel full.  We never stop wanting to eat.  You know where this goes.

Dr. David Kessler, a former Director of the Food and Drug Administration, has written on the subject.  Here is a link to a New York Times article on his book.  For the sake of simplicity, Dr. Kessler divides carbohydrates into “fast carbs” and “slow carbs.”  The fast carbs are the ones which give up their energy supply quickly.  The slow carbs nourish us over a longer time frame.  We were built to thrive on slow carbs.  Fast carbs hijack our digestive system and lead to a number of adverse health outcomes.  Unfortunately, fast carbs are what we tend to stock up on in times like these when we may be confined to our houses for long periods.

Fast carbs cause a spike in blood sugar levels and in insulin production.  Over time, repeated spikes lead to obesity, cardiovascular disease, lipid disorders and Type II diabetes.  Dr. Kessler does not suggest we never eat these foods, only that we should know what we are doing, be careful about it, and give preference to slow carbs, which are far healthier for us.

Many years ago, there was an advertising campaign for a brand of margarine that had the tag line, “It isn’t nice to fool Mother Nature.”  That line applies here as well.  We should not be fooling Mother Nature by eating too many foods that our bodies were not designed to handle.  Eat sensibly, exercise and stay out of harm’s way and you will have the best chance for a long and healthy life.


Posted in health, healthy living, Obesity, obesity epidemic, science news |

Recognizing a Heart Attack

May 04, 2020

One of the cases we see over and over again is that of a patient, usually a man, who presents to the emergency department or to an urgent care facility with what turns out to be a myocardial infarction (“MI”) but who is sent home without treatment.  Myocardial infarction is the medical name for a heart attack.  The cases we see almost always have a bad outcome.  Either the patient goes home and dies or goes home and suffers further heart damage due to inadequate flow of blood to the heart.  How does this happen over and over again, especially when MI is so high on the list of things the health care providers at these facilities are looking for?  The answer is found in the human body.

An MI occurs when the heart muscle does not get enough oxygen to meet its needs.  The heart receives its oxygen from the blood flowing to it through the coronary arteries.  Any significant blockage or reduction in that flow will produce a pain response by the heart.  If the flow is diminished but the heart still has enough oxygen to stay alive, the heart can usually be restored to full function by restoring the flow of blood.  On the other hand, if the flow is too low, heart tissue will begin to die from lack of oxygen.  That dead tissue never comes back to life.  If the amount of dead tissue is large enough, the heart can’t pump enough blood to sustain life and the patient dies.  If it is not so large that it is incompatible with life, the patient will survive but the pumping function of the heart will be diminished.  The amount by which the pumping capacity is diminished depends upon how much heart tissue died.

Image result for heart attack

The image above is what most of us think of when we think of an MI.  There is a sudden onset of crushing chest pain.  The image above can be misleading.  It shows a classic presentation of an MI.  Not all MI’s have a classic presentation.  People who experience a sudden onset of crushing chest pain and go the the emergency department are almost never sent home without treatment.  Those patients with classic signs of an MI are tested.  They are given an EKG, which looks at the electrical waves in the heart.  It often shows a heart attack, if one is in progress.  These patients also have blood drawn to see if there are any markers in the blood due to heart muscle injury.  If either of these tests is positive, it usually proves the existence of an MI and the patient is admitted and treatment is begun immediately.  Even if these two tests are negative or inconclusive, these patients are usually admitted to the hospital for observation.  These are not the cases we see over and over in our office.

The cases we see are the ones in which there is an MI but the presentation is unclear.  The pain response by the heart to diminished flow of blood through the coronary arteries is quite variable.  Sometimes, it is crushing chest pain.  Sometimes it is felt as pain running down the left arm or up into the jaw.  Sometimes it feels like indigestion.  There may be vomiting.  Sometimes the patient just doesn’t feel well and is not sure what is going on.  To make matters even more complicated, there are many causes of chest pain that have nothing to do with the heart.  They may be the result of a cold, the flu, a pulled muscle or GERD.

Distinguishing these non-cardiac causes of chest pain or discomfort from those which are cardiac related is a real problem for emergency departments and especially for urgent care facilities.  Usually, urgent care providers are instructed to send anyone with what may even possibly be chest pain to a hospital emergency room where they are far better equipped to test for an MI and to treat one, if it is found to exist.  In spite of this, we see patients who presented to an urgent care facility with chest pain who are diagnosed with some benign, non-cardiac cause and sent home.  We also see the same thing, although it is a little less common, with chest pain patients who go to the emergency department.

EKG’s are not foolproof.  Six to seven percent of patients having an MI will have a normal EKG.  Around 1% will have an abnormal EKG, even though they are not having an MI.  The blood tests for markers of muscle damage need time to become positive.  If the patient arrives at the emergency department too soon after the start of an MI, the blood test may be normal or only slightly elevated.  All of this coupled with the vagaries of human nature mean that some patients who are having an MI will be sent home without treatment.

Here are some practical suggestions.  First, any chest pain should be taken seriously.  This is especially true, if you are older, male or have risk factors for coronary artery disease.  Ladies, don’t assume because you are female that you are immune from an MI.  More and more women are developing coronary artery disease.  Don’t delay waiting to see if your chest pain/discomfort is going to go away.  Don’t drive yourself anywhere.  Call 911.  Patients who arrive at the emergency department by ambulance with chest pain complaints get priority treatment that you may not get, if you arrive by private car.  Don’t go to an urgent care facility.  At best, you will be wasting time as they will send you to the emergency department anyway.  At worst, they won’t recognize a developing MI and may send you home.

I hope you never need this information but, if you do, I hope it is helpful.


Posted in Heart Attacks, medical errors, medical mistakes, Medical Negligence, Misdiagnosis |

Another Sad Result of the Coronavirus

April 27, 2020

Given the terrible effects of the Coronavirus on patients and their families throughout the world and the damage done to our economy and that of the rest of the world, it is hard to imagine how much more damage it can cause.  But there is one additional damage that will become clear as we go forward in time.  The coronavirus is going to indirectly damage those who have been the victims of medical malpractice.

Italy's doctors and nurses 'performing miracles' says WHO

You must live under a rock, if you don’t know what heroic work doctors and nurses on the front lines of treating coronavirus patients have been doing.  They have literally been putting their lives on the line to protect us from the virus and to help those who are sick.  Those who work in emergency rooms and ICU’s are appearing on television and are rightly being hailed as heroes by the media.  They are going above and beyond what we normally think of when we think of doctors and nurses.  Thank you to all of them.

So how does this relate to those who have been injured by medical malpractice?  As I have observed before, it is difficult for an injured person to obtain a verdict against a doctor or hospital.  Over the last decade or so, doctors and hospitals have won about 85% to 90% of all malpractice cases that went to trial throughout the United States.  That figure applies to Arizona cases as well.  This is true even when the evidence of malpractice is clear.  In other posts, I have talked about some of the reasons for this.  This problem is about to get monumentally worse for people injured by medical malpractice.

Jurors are people who are trying to do the right thing.  Being human beings, they are subject to the same subconscious biases we all are.  These subconscious biases affect the way they receive evidence in medical malpractice cases.  One of the most significant of these biases is the confirmation bias.

Wikipedia describes it in this way, “Confirmation bias is the tendency to search for, interpret, favor, and recall information in a way that confirms or strengthens one’s prior personal beliefs or hypotheses. It is a type of cognitive bias. People display this bias when they gather or remember information selectively, or when they interpret it in a biased way. The effect is stronger for desired outcomes, or emotionally charged issues, and for deeply entrenched beliefs.”

When jurors sit in malpractice cases, they don’t give the same weight to all the evidence they receive.  Their prior beliefs act as filters to the evidence being presented by the two sides.  If evidence supports a belief the juror holds, that evidence is accepted and given substantial weight.  On the other hand, if the evidence goes against a belief, the evidence is either ignored or given only slight weight.  When jurors believe, as they will certainly do now, that doctors and nurses are “good guys” who are saving us from danger, they will be very reluctant to accept evidence showing that the doctor or nurse carelessly caused an injury to a patient.  It will be much easier for them to conclude that the injury was just one of those things for which no one was at fault or that there was some other explanation besides fault on the part of the doctor or nurse.   They may even resent the patient who comes in and seeks to show negligence on the part of someone who does so much for society.

I expect that this favorable view of doctors and nurses will extend, not just to those who have served so heroically in this crisis, but to all doctors and nurses, no matter how far removed they were from the front lines.

It has been difficult for many years for victims of medical malpractice to obtain fair compensation for their injuries.  It is not going to get any easier for the foreseeable future.


Posted in Doctors, Hospital Negligence, Hospitals, medical errors, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice lawsuits, medical mistakes, Nurses, plaintiff, trial, Verdicts |

Medical Malpractice Claims Are Unfairly Blamed for Rising Medical Costs.

April 20, 2020

Last month, I blogged on the alarmingly high rate of preventable medical injuries occurring in hospitals.  The blog post was based on a well-designed study of randomly-selected Medicare patients discharged from hospitals over a one month period of time.  The study was done by the Inspector General of the Department of Health and Human Services at the request of Congress.  The study used a team of doctors and nurses to identify injuries which were preventable.  The doctors found that almost 12% of all of the Medicare patients experienced a preventable medical injury.  Most of those injuries were serious and some resulted in the death of the patient.  Based on this study, and others, there can be no question that we have a significant medical malpractice problem in this country and that many people are hurt by medical malpractice each year.

So what is the response of the healthcare industry to the fact of widespread malpractice which injures and kills patients?  “Malpractice claims and the fear of these claims are responsible for the dramatic rise in health care costs. We need more laws to prevent patients from suing when they are hurt or to keep down the amount they can recover.”

Image result for public citizen logo

Last year, the group Public Citizen, a respected non-profit representing the interests of consumers looked at the role medical malpractice plays in health care costs.  It found that, as usual hospitals, doctors and their insurance companies were misrepresenting the role of malpractice claims in rising medical costs.

Among the significant findings of the Public Citizen investigation were that malpractice claims and malpractice insurance premiums are at the lowest levels in history.  The amount paid for malpractice claims and the cost of buying malpractice insurance represent the most obvious cost of malpractice liability.  For years, these numbers have been going down, even as our population increases and the number of patients injured by malpractice increases as well.

There are a number of reasons why claims are going down.  In the first place, the reason most people who are injured by medical malpractice or who lose loved ones to malpractice do not make claims is that they were never informed of the malpractice.  They were either led to believe that the injury or death was just one of those things or they were deliberately lied to about what happened.  They never pursued a claim because they never knew they had a claim to pursue.

A second reason relates to the great job the health care industry has done in perpetuating the myth of frivolous malpractice cases.  Doctors and hospitals win 9 out of 10 of the malpractice cases that get tried across the country, at least in part because juries believe these claims are usually frivolous.  Experienced malpractice lawyers know these figures.  The high loss rate forces them to screen the cases they take very carefully.  In my practice, for example, we turn down over 100 cases for every one we are able to take.  I am not alone in being careful to select only meritorious cases with strong damages.  This means that even when injured patients and their families try to bring a claim, only a small percentage of them can find a lawyer to represent them.  Given the expense and complexity of these claims, it is almost impossible to pursue a contested claim without an experienced lawyer.  The system forces qualified lawyers to involuntarily assist the health care industry by refusing to represent many patients who have been the victims of malpractice.

According to the health care industry, even if actual claims are down, doctors are so afraid of being sued that they practice “defensive medicine,” which drives up the cost of medical care.  I have blogged about defensive medicine in the past.  It is unethical and exaggerated.  According to the Public Citizen review, its costs are relatively small, amounting to no more than 2% of our national spending on health care.

The idea that limiting patient rights will reduce health care spending or at least slow its growth has been rejected by actual experience.  For example, in Texas, which has enacted strict limits on malpractice claims, the number of claims and the amounts paid on those claims has predictably gone down.  What has not gone down, however, is the rate at which Texans are paying higher and higher medical bills.  The rate of increase in medical spending in Texas exceeds the national average.  If the arguments of the health care industry were valid, we would expect to see just the opposite.

Just as the sun rises everyday, we can count on seeing these discredited arguments made by the health care industry and its insurers in the coming months.  The money they can make, if they are successful, is staggering.  They find a ready audience in legislators eager to accept their sizable campaign contributions.  The people left behind in all this are the patients whose rights are curtailed in the name of holding down health care costs.  Who is going to look out for them?


Posted in arizona certified medical malpractice lawyers, Defensive Medicine, disclosure of medical mistakes, Doctors, Finding a Medical Malpractice Lawyer, Health Care Costs, Hospital Negligence, Hospitals, Lawsuits, Malpractice caps, Malpractice costs, Medical Costs, medical ethics, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice damages caps, medical malpractice lawsuits, medical malpractice lawyers, medical mistakes, Medical Negligence, Medicare, Secrecy, tort reform, trial |

Why Your Local Non-Profit Hospital Makes So Much Money.

April 13, 2020

We are all familiar with non-profit hospitals.  They are pillars of the community.  They may provide free or nearly free care to the needy or they may do free medical research for the public good.  The one thing they don’t do is make money for themselves.  That is why they are called non-profit.  Sadly, very little of what we think we know about non-profit hospitals is true.

Image result for hospitals money

Banner Health is a large non-profit hospital chain with its headquarters in Phoenix.  It operates 28 hospitals, urgent care facilities, clinics, and other health care facilities in six states.  In 2017, it had total revenues of $7.8 billion.  It is the largest employer in Arizona.  According to the Arizona Republic, Banner’s CEO earned $25.5 million in gross pay in 2017.  The year before he earned only $8.7 million.  How can a non-profit hospital chain spend so much on executive pay?  The answer is that the “non-profit” in non-profit hospital only means that it is tax exempt.  It does not mean that the hospital or hospital chain does not do everything it can to make a profit.  Almost half of the hospitals in the United States are non-profit.  According to a recent study, seven of the ten most profitable hospitals in this country are non-profit hospitals.  Somebody is making a lot of money from these non-profit hospitals.

The New York Times recently had a good piece on the reason for non-profit hospitals and the way in which they are failing to hold up their end of the bargain in return for being allowed to skip paying taxes.

When the concept of non-profit hospitals first came into being, there was a trade off.  In return for providing charity care to the neediest among us, these hospitals would be excused from the obligation to pay taxes.  At the time, it was a fair trade.  The community benefited from the free care to the needy and the hospital benefited from not having to pay taxes.  Over time, however, the charitable, community benefit obligation has become less and less important to the hospitals and the community has received less and less in return for the tax breaks it gives to the hospitals.

As we have seen in the news, supposedly non-profit hospitals are not only refusing to provide free care to the needy, they are hiring debt collectors to hound them and, in some instances, having them jailed, if they miss a court date.  Prior to a 1969 revision to the tax code, non-profit hospitals were required to provide free or reduced cost care to the needy to the extent of their ability to do so.  An amendment that year to the tax code opened up new avenues (also known as loopholes) for non-profit hospitals to earn their tax exemption.  After the revision, any spending that provided a community health benefit was enough.  Hospitals have been very creative in finding ways to claim they are meeting this requirement.

Hosting health fairs, contributing to community groups, having blood drives all qualify as community health benefits and seem appropriate.  Less understandable are those hospitals that claim the difference between what they would like to charge and what they are forced to accept from health care programs for the poor, such as Medicaid, or in Arizona AHCCCS, as part of their contribution to community health.  This is true notwithstanding the fact that the hospitals make substantial money from Medicaid patients.  Hospitals also use creative accounting to pad their alleged contributions to community health.

In spite of tax regulations that prohibit net earnings from being used for the benefit of any individual, executive pay at non-profit hospitals has been climbing at a startling rate over the last 15 years, while the pay of actual health care workers has climbed only by a few percent.  For example, executive pay at non-profit hospitals rose by 93% from 2005 to 2015.  During the same time frame, the pay of nurses at those hospitals rose only 3%.

When I represent a patient against one of these big hospital chains at trial, the hospital attorneys always find a way to remind the jury that their client is a non-profit hospital just out for the good of the community.  It is about time we hold these hospitals to that very standard and require them to fairly earn their tax exemption with real community benefits.

Posted in Fee for Service, Health Care Costs, Hospitals, Medical Costs, medical ethics, medical research, Medicare, Nurses, Secrecy |

Hygiene and You

April 06, 2020

Here we are, in the midst of the coronavirus pandemic. If there is one thing we hear over and over again, it is the importance of washing our hands. While this is undoubtedly important in the current situation, it obscures the fact that personal hygiene among medical providers has long been honored more in the breach than in the observance.

Hand Washing for Health Care Workers | Michigan Health Lab

It hasn’t been that long since medicine discovered what is called germ theory: that bacteria exist and cause infections.  In 1846, germ theory was still unknown and an obscure Hungarian doctor, Ignaz Semmelweis, was puzzled. His hospital had two maternity wards. The first was staffed by midwives and the second by young doctors and medical students. Why were the women on the men’s side dying many times more often of fevers after childbirth? He studied every difference he could between the men’s side and the midwife side. Finally, he noticed that often the men were coming directly from autopsies and delivering babies. Perhaps there was something on the dead bodies that was causing the fevers among the women. He required all the male doctors to dip their hands in a lye solution before delivering babies. Remarkably, or perhaps unremarkably, the death rate fell to the same rate as the midwife side. He was ridiculed for his ideas and died in an insane asylum. It was not until decades later that Pasteur and others validated his theories.

In spite of the fact that for over 150 years, medicine has understood the need for washing hands and good hygiene practices, patients continue to be infected by doctors and nurses in hospitals and in offices throughout the United States. It is sometimes said that a doctor‘s tie has more infectious microbes on it than the floor of a public bathroom. At least the bathroom floor occasionally gets washed with an antiseptic solution. The doctor wears the same tie over and over again while he goes from patient to patient. 

Nurses don’t wear ties but still transmit infections. They see many patients in hospitals and many are not as diligent about washing their hands as they should be. The World Health Organization has started a “Clean care is safe care” initiative to remind healthcare professionals of the importance of washing their hands. According to data from the Centers for Disease Control, one in 25 patients acquires a medical care-related infection during a hospitalization. In 2014, this added up to 722,000 infections. While all hospitals have programs to require handwashing between patient contacts, it obviously doesn’t always happen.

Don’t let a doctor or nurse pass an infection along to you because they didn’t wash their hands. Oftentimes, the sink is in the room and you can watch to see if the nurse or doctor uses it. Be polite but firm and ask them to wash their hands. It is your body and your life. You deserve the basic protections of handwashing.


Posted in Uncategorized |

Medical Malpractice Secrecy.

March 30, 2020

Doctors and hospitals win 85% to 90% of the medical malpractice cases tried across this country.  This percentage holds true even when the facts strongly favor the patient.  Why can’t patients get a favorable verdict from their fellow citizens?  There are a number of likely explanations.

Image result for jury verdict

One of the likely explanations is the successful campaign by the health care industry and its insurers to persuade the public that most medical malpractice cases are frivolous.  National and state legislators believe this, especially if they are Republicans.  They pass restrictive laws to take away patients’ rights in the name of saving the medical profession from frivolous suits.  Over and over again the public hears that medical malpractice suits are frivolous, even though, when the medical profession itself examines the issue, it finds that most of the suits have merit.

Every large verdict in favor of a patient is held up by the industry as further evidence of the unfairness of the system, even though almost all large verdicts get reduced later.  The reductions are never mentioned by the industry so as to leave the public with the impression of a runaway system.

Perhaps one of the most significant reasons the public believes these claims are frivolous is that the medical profession insists on secrecy whenever it settles a malpractice case.  Last week I wrote about a Florida case which was suddenly dropped by the plaintiffs with no reason given.  The most probable explanation was that the insurance company for the doctors had paid them off and insisted that they keep the payment secret.

Doctors and hospitals settle cases where their malpractice is clear and they are at risk of a large verdict, if they go to trial.  Of course, in the settlement paperwork they deny that they were at fault but, as the old saying goes, money talks.  They would not be paying hundreds of thousands of dollars, if they had done nothing wrong.

These are not cases where a runaway jury holds a doctor responsible where the doctor did nothing wrong.  These are cases in which the doctor has consented to a settlement and his insurance company has agreed to pay money to make the case go away.

Maybe if the public knew of these settlements, things would be different.  Maybe if the public knew that doctors, hospitals and their insurers were paying money for malpractice claims, they would be more inclined to believe that malpractice does happen and that many of these claims have merit.  It could not hurt to make these settlements public and at least the public would know who the doctors and hospitals are who are paying money to settle malpractice claims.  Making these settlements public won’t happen, however, without legislative action.  The doctors, hospitals and their insurers want to keep up the appearance that  no patients are being harmed by medical negligence and that claims to the contrary are frivolous.

Posted in disclosure of medical mistakes, Doctors, Hospital Negligence, Hospitals, Lawsuits, Malpractice caps, medical errors, medical ethics, Medical Malpractice, medical malpractice claims, medical malpractice damages caps, medical malpractice lawsuits, medical mistakes, Medical Negligence, plaintiff, Secrecy, tort reform, trial |