Medical Malpractice News and Views

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

Hospital Pricing is Crazy and Unfair

February 17, 2021

If you want an example of why we in the United States pay more per capita for health care than anyone else but don’t get much for our money, look no further than the data being reluctantly released by hospitals about the different prices they charge for the same medical procedure.  You can find a good analysis in last week’s Wall Street Journal.  Here is an on line link.  Here are some important takeaways from the story, all of which I have seen before and many of which I have written about before.

Image result for greedy hospitals

Hospitals charge wildly different rates for the same procedure.  In response to a rule, which they opposed bitterly, hospitals have begun to disclose the prices they charge Medicare, Medicaid, various health insurance plans and uninsured cash payers for a laundry list of procedures.  Once you take a look at the data, you can see why the hospitals fought so hard to keep you from seeing it.

The Wall Street Journal article looked at the charges for four different procedures at a large, Northern California, chain.  Medicare and Medicaid plans paid the lowest rates.  Next came private insurance companies, almost all of which had negotiated a rate with the chain.  The highest charges were for insured patients whose plans did not include the hospital chain, the dreaded “out of network” charge.  Uninsured cash payers had to pay about 60-70% of the “out of network” charge.

One of the procedures studied by the Journal was the caesarian section.  Medicare and Medicaid patients were charged $6,241.  The cheapest charge to insured patients was $15,753.  The “out of network” insured patient paid the most, $60,584.  Uninsured  cash payers were charged $38,264.  This is a spread of over $37,000.  Out-of-network insured patients were charged almost 10 times as much as Medicare and Medicaid patients for the same procedure.  The spreads were similar for the other procedures studied by the Journal.

The hospital pricing system is inefficient and anti-competitive.  The Journal study and many others have found that hospitals do not set their prices on the basis of what it costs to perform a procedure.  They don’t do that because, in almost all cases, they don’t even know how much it costs to perform the procedure.  They set prices on the basis of how much profit they want to make at the end of the year and what the market will bear.  When they want to increase profits, they don’t reduce costs like every other industry; they just jack up the prices.  Almost no other American industry has so little clue about its costs or could get away with just raising prices whenever it chose.  Because hospital rates have been secret, the industry has been able to get away with this practice for years.

Market consolidation leads to higher charges.  Hospital chains have been buying up other chains and buying doctor’s practices as well.  They claim to be doing this in the name of efficiency.  In truth, there has been very little sign that these larger chains are any more efficient but they are able to use their larger size to force higher charges on the insurance companies in their area.  If there is nowhere else for an insurance company to send its patients, it has to pay what the hospital chain demands.

We need something new.  The problems with pricing arise in part from secrecy, which affects the ability of payers to negotiate fairly, and market share, which gives the large hospital chains too much leverage.  As you can see from the numbers, when the payer has power, as does the United States when it sets Medicare and Medicaid rates, the price charged is far less than when the hospitals can push the other side around.  We all pay by way of increased health insurance premiums for the vast sums flowing into hospital bank accounts.  According to federal figures, our spending on private health insurance premiums rose 50% over the last 10 years.  This is crazy and unsustainable.  The requirement that hospitals disclose their rates is a good, but small, first step toward fixing our broken system.  We need to do more.  We need to keep moving toward universal health coverage for all Americans.

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

Many Hospitals Prey On Their Patients

February 08, 2021

Last week’s New York Times ran an article about how rich hospitals profit from their patient’s car accidents.  The article showed how hospitals take advantage of old lien laws enacted to ensure patients received treatment in the days before widespread health insurance coverage to seize all or a part of the patient’s recovery from the person who injured them.

Critical analysis of the Importance of Lien and its kinds

The law of many states, including that of Arizona, allows a medical care provider to have a lien against the property of its patient.  The idea in passing those laws was to give hospitals and other medical providers assurance that they would be paid and thus give them an incentive to care for patients who may not be insured or have the money to pay the bill immediately.  The liens are usually permitted in a reasonable and customary amount for the care provided.

The point of the Times article is that many wealthy hospitals are refusing to bill Medicare or Medicaid or sometimes even the patient’s private health insurance and, instead, filing liens against any lawsuit recovery the patient may be entitled to make because of the injury that led to the need for medical treatment.  The reason for the refusal to bill available governmental or private health insurance is that what the hospital can collect from these sources is usually far less than what the hospital actually writes down on the hospital bill.  The amount it writes down is the “sticker price.”  Medicare and Medicaid specifically limit the amounts a hospital can charge for certain procedures.  Private insurers, on the other hand, usually negotiate a discount schedule with hospitals which results in them also paying substantially less than the “sticker price.”  If allowed to get away with it, the hospitals can collect much more through lien enforcement than they could get from Medicare, Medicaid or the patient’s private insurance.

In Arizona, our situation is a little different.  The hospitals have tried to avoid collecting from Medicare and AHCCCS, Arizona’s version of Medicaid, but lawsuits from patients have put an end to that.  If they collect from Medicare or AHCCCS, they cannot file a lien against any recovery the patient might make.  The rule is different, however, if the patient has private insurance.

If a patient in Arizona is injured through the fault of someone else and has private insurance, the hospital will collect the amount it agreed to accept from the insurance company.  It will then file a lien against any recovery the patient might make from the person responsible for the injury which sent the patient to the hospital in the first place.  The lien will be for the difference between the “sticker price” on the hospital bill and the amount the hospital agreed to accept from the patient’s health insurance company.  The hospital sends the lien to the patient along with a form stating, “This is not a bill.”  And it isn’t, because the patient doesn’t owe the hospital anything, unless there is a co-pay or deductible which has yet to be satisfied.  Once the patient’s insurance company pays the hospital, the patient is off the hook.

So how does the hospital justify it lien?  It does so by taking the position that the lien is not a charge on the patient but is a way of collecting the “reasonable” amount of the bill which was not paid by insurance from the person who caused the injury which led to the hospitalization.  Of course, this is a fraud as the money to pay the lien comes directly out of the patient’s recovery.  If the hospital did not seize it through the lien, the patient would get the money.  It is doubly a fraud because the hospital takes the position that the “sticker price” on the hospital bill, which the hospital never collects from anyone, is the reasonable cost of the care it provided.  In actual fact, the reasonable cost of the care is the amount the hospital agrees to accept from health insurance companies.  If it was not reasonable, the hospitals would never agree to it in the first place.  The money the hospitals collect through these liens is pure profit, which goes directly to their bottom lines.

Why does the legislature permit this charade to continue?  If you have to ask that question, you have not been paying attention or following this blog over the years.  Money talks.  The hospital chains, which use these liens to pad their bottom lines, spend lots of money at the legislature to make sure this gravy train does not stop any time soon.  In Arizona, when it is a question of regular citizens against the hospitals or other big business operations, the regular citizen does not stand a chance.

Posted in Fee for Service, Fraud, Health Care Costs, Health Insurers, Hospitals, Insurance Law, Lawsuits, Medical Costs, medical ethics, Medicare, plaintiff |

Understanding Medical Terminology.

February 01, 2021

In my job as an attorney representing victims of medical malpractice, it is critically important to be able to read and understand medical records and to be able to examine and cross-examine doctors, who appear as defendants or witnesses.  Both of these tasks require familiarity with medical terminology.

Medical terminology (prefixes and suffixes) to describe things related to different organs : interestingasfuck

When I first began doing medical malpractice work, I was intimidated by medical terminology.  How was I ever going to understand all these terms?  Turns out my concerns were unwarranted.  It is easy to understand the terms when you realize they are all put together pretty much the same way.

Most medical terms consist of a prefix, a root and a suffix or some combination of them.  For example, hyponatremia consists of a prefix, “hypo,” meaning not enough, a root, “na,” the abbreviation for sodium, and a suffix, “emia,” meaning in the blood.  Hyponatremia, therefore, means there is not enough sodium in the patient’s blood.  What if there is too much sodium in the blood?  Easy.  All we do is substitute “hyper,” meaning too much for “hypo” and we get hypernatremia, too much sodium in the blood.

“Hypo” and “hyper” are very common medical prefixes.  You have probably seen them often.  Hypotension and hypertension for low and high blood pressure.  Hypoglycemia and hyperglycemia for too little and too much sugar in the blood.  Hypoxemia for too little oxygen in the blood.  Hyperlipidemia for too much cholesterol in the blood.

Other common prefixes are “hemi,” meaning half, “hemo,” meaning blood, “inter,” meaning between, “intra,” meaning inside, “retro,” behind and “post,” meaning after.  “Brady” is too slow and “tachy” is too fast as in bradycardia, slow heartbeat, and tachycardia, fast hearbeat.  Here is a link to a good listing of various medical terms.  There is an even better one here from Wikipedia.

You have probably seen many of the most common medical suffixes as well.  “Ectomy” means to remove something.  For example, hysterectomy means the removal of the uterus and appendectomy means the removal of the appendix.  “Otomy” means to create an opening.  A laparotomy is an incision in the abdomen and phlebotomy is opening a blood vessel to take blood.  “Itis” means inflammation.  Vasculitis is inflammation of the blood vessels while myocarditis is inflammation of the heart muscle.  “Edema” is swelling.  Lymphadema is swelling of the lymph glands.  “Plasty” is the molding or shaping of something due to surgery.  Arthroplasty is a form of joint repair.  “Pathy” is usually some sort of a disease process.  Cardiomyopathy means something wrong with the heart muscle.  Retinopathy is something wrong with the retina in the eye.

The root words, some of which appear in the picture above, generally identify body parts to which the prefixes and suffixes will apply.  “Cardio” is heart, “remal” is kidney, “hepato” is liver, “myo” is muscle, “hemo” is blood and “derma” is skin.

A list of all or even most of the common medical terms is well beyond the scope of this post.  The point I want to make is that these are pretty simple constructs that should not be intimidating.  Just take your time and break the terms down into their constituent parts.  You will find them easy to grasp.  Then you need to work on your pronounciation.

Posted in Doctors, General Health, Lawsuits, medical charts, Medical Malpractice |

Sometimes Doctors Bite Off More Than They Can Chew.

January 25, 2021

I recently read an interesting summary of a medical malpractice case in which the doctor overextended himself and one of his patients died.  The lesson for doctors, which should apply to all the rest of us as well, is don’t let yourself get backed into a corner where you won’t have the ability to respond to developing problems.

Innovate on Purpose: Innovators paint themselves into corners

The doctor in question was an anesthesiologist practicing at a smaller hospital.  It was the weekend and he was scheduled to participate in the care of an older patient who had a lot of complicating medical conditions.  After examining the patient and reviewing his many medical conditions, the anesthesiologist expected a difficult intubation.  Upon arriving at the hospital that morning, the anesthesiologist discovered that he was also scheduled to give anesthesia for a caesarian section, which was scheduled to begin after the first surgery was complete.  There were no other anesthesiologists available at the hospital that morning.

Our anesthesiologist was smart enough to recognize the potential for a problem.  If something went wrong with the older patient after the anesthesiologist was in the caesarian section, there would be no one to respond.  He asked about moving the surgeries so the section would go first but did not follow up and the surgery on the older patient went first.

The intubation was difficult as anticipated but the anesthesiologist was able to accomplish it.  The surgery lasted about an hour but when the patient arrived in the recovery room, he was unresponsive.  The anesthesiologist ordered some medications and attempted to reintubate the patient.  This time he could not complete the intubation and placed a laryngeal mask airway (LMA) and hooked it up to a ventilator.  An LMA is not as effective at delivering oxygen to the lungs as an endotracheal tube.  After placing the LMA, the anesthesiologist left the patient in the care of the nurses in the recovery room and went to do the caesarian section.

The older patient in the recovery room deteriorated and stopped breathing.  The nurses called for an ER physician, who came and tried unsuccessfully to intubate the patient.  He also called for the anesthesiologist to return and intubate the patient.  The anesthesiologist came out of the c-section but said he was not able to intubate the patient and that he had to return to the c-section.  He left and the patient coded and died.

The older patient’s family sued the anesthesiologist for abandoning his patient and the case settled.

The moral of the story is not to let yourself be painted into a corner.  Even though the surgery on the older patient was over, the anesthesiologist had a continuing duty to his patient to care for him until he was out of trouble.  Once the anesthesiologist left the older patient to begin another surgery, he created a situation in which he would not be able to care for his patient, if he deteriorated further.  He knew when he started the c-section that there was no one else available to take over the care of his patient or to replace him in the c-section so he could return to his patient.  He also knew there was a risk that his older patient would deteriorate and need his assistance.

This type of sequential surgery is not all that uncommon and most often doctors are able to get away with it.  When the inevitable catastrophe occurs, however, patients sometimes die.  Whether this conduct on the part of the anesthesiologist was driven by money or was just the product of poor judgment, he failed his patient and deserved to be sued.



Posted in Cesarean Section, Doctors, Hospitals, Lawsuits, medical errors, medical ethics, Medical Malpractice, medical malpractice claims, medical mistakes, Nurses |

Big Malpractice Verdicts Rarely Last.

January 18, 2021

If you read the news reports about medical malpractice trials, you would be forgiven for believing that the sky is falling, that the inmates are running the asylum and that juries are going crazy making multi-million dollar awards in every malpractice case that goes to trial.  Notwithstanding the barrage of news stories, nothing could be further from the truth.

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The news media thrives on sensationalism.  “Man bites dog!!!,” screams the headline.  The media has little interest in trials in which patients are sent home with nothing, which is the case over 85% of the time.  Study after study, many conducted by the medical profession itself, have shown that doctors and hospitals almost always win at trial, even when the evidence of malpractice is strong.  Juries like doctors and hospitals and don’t like to believe they make mistakes that kill and injure patients.  It is easier to believe that the patient’s injury was just one of those things.  In my experience, it takes a catastrophic injury for the jury to be willing to make an award to a patient and to find a doctor or hospital at fault.

It is those rare occasions when a very large verdict is returned that the trial result is reported in the press.  The attorneys who recovered the large amount for their client are happy to have their names in the paper associated with a large award.  The attorneys for the doctors or hospitals breathlessly denounce the sham of a trial that resulted in such a miscarriage of justice.  They promise an appeal.  This is usually the last the public hears about the case.  The press does not usually report on the appeal or the post-trial motions or, if it does, these matters never seem to get the attention that the large verdict did.  The public is left with the impression that juries award big amounts and that the patients get to keep those large awards.

In fact, these large awards rarely stand.  The first thing that happens is that the defense files a number of motions for post-trial relief.  The first thing they ask for is a new trial on all issues based on claimed errors by the trial judge, the patient’s attorney, the jury or all three.  Alternatively, the defense asks for what is called a “remittitur.”  The judge is asked to reduce the award as excessive, to substitute his or her judgment as to damages for that of the jury.  If the judge grants the motion for a remittitur, the plaintiff is given the choice of accepting the reduction set by the judge or a new trial for the defense on some or all of the issues.

If the trial judge won’t give the defense relief, and sometimes even if they get a favorable ruling from the trial judge, the defense can appeal the case to a higher court.  The appeal is based on the same arguments made to the trial judge.  If the appeals court finds merit to the arguments of the defense, it has a number of options open to it.  It may reverse the entire judgment and order the trial court to enter judgment in favor of the defense.  It may order a new trial on some or all of the issues.  It may take it upon itself to reduce the verdict or send it back to the trial judge to decide on the amount of the reduction.

By way of example, here is a link to a story about the family of a woman who died after being sent home following spinal surgery.  The jury accepted the arguments of the family that she had been overdosed with narcotics during the procedure and should never have been sent home by the surgicenter and the doctors.  The jury awarded the family $20 million for the death of their loved one.  The trial judge granted one of the post-trial motions by the defense and had already cut $10 million from the verdict before the case was appealed.  The appeals court looked at other verdicts in other malpractice death cases and decided that the remaining $10 million was still too much.  It vacated the jury’s verdict and returned the case to the trial court for a new trial on the issue of damages alone.  The decision by the appellate court was 2-1.

This case out of Pennsylvania is typical of what usually happens to  large verdicts.  There is a big splash at the time of the verdict and then the verdict gets carved up.  By the time the process is over, the patient is lucky to go home with anything.  The final result never gets the publicity given the verdict.


Posted in Doctors, Hospitals, Lawsuits, medical errors, Medical Malpractice, medical malpractice lawsuits, medical mistakes, Medical Negligence, plaintiff, Surgical Errors, Verdicts |

State Medical Boards Continue To Fail The Public.

January 11, 2021

Every state has a medical board.  While there are some differences from state to state, they are all alike in that their primary job is to protect the public from bad doctors.  They have been failing at this job for many years and continue to fail today.  Although it is not alone, I am going to focus today on the Arizona Medical Board.  It is emblematic of boards across the country.

Is AZ Medical Board protecting doctors or patients? | |

The Arizona Medical Board describes its mission as “To protect public safety through the judicious licensing, regulation and education of all allopathic physicians.”  Allopathic physicians are M.D.’s.  There are similar boards for osteopaths, chiropractors, naturopaths and podiatrists.  All of them profess essentially the same mission of protecting public safety.  All of them have the same failings.

Generally, medical boards do a good job of evaluating brand new doctors and issuing licenses to them.  They also do a good job of requiring that doctors take courses intended to keep their skills up-to-date.  These courses are called CME for Continuing Medical Education.

We have now exhausted the areas in which the medical boards to a good job.

Perhaps the most important area of failure for state medical boards has to do with licensure.  While some are better at it than others, you can find repeated instances of doctors credibly accused of wrongdoing in one state just pulling up stakes and moving on to another state and getting licensed there.  Nothing like a nice, fresh start somewhere where no one knows about your past problems.

Sometimes this is the result of the new state failing to investigate the conduct of the doctor in her former state.  Sometimes this happens because the doctor cut a deal with the old state to leave quietly in return for the old state’s medical board not publicizing his wrongdoing.  Sometimes it is the doctor’s old hospital or practice that agrees to keep things quiet in return for the doctor leaving the state and not contesting the allegations of wrongdoing.  After all, who needs bad publicity?  Better to let this doctor go hurt people in another state than to see your name in the newspaper or on TV associated with physician misconduct.

Once a doctor has a license in a state, it is pretty hard to lose it, although there are some ways.  One good way is to be convicted of a crime.  The medical board can’t very well ignore that.  Another good way is to be discovered to have a drug or alcohol abuse problem.  Medical boards are very aggressive with these doctors.

What about other actions that endanger the public?  Allegations from the public of poor medical care?  Not much of a concern to the medical board.  Allegations of medical malpractice, even when proved in court?  Not so much either.  There are some doctors in Arizona who have been sued repeatedly for malpractice and who are still allowed to practice.  This is even more disturbing when you consider that very few instances of malpractice end up being the subject of a lawsuit.  Doctors who are sued frequently for malpractice have usually left behind a trail of damaged patients.

So why are these doctors allowed to continue to practice?  In addition to patient complaints of malpractice made directly to the board, all malpractice lawsuits are reported to the medical board.  They know who these people are and what they are doing.  The answer, in my experience, is twofold.  In the first place, the medical board is controlled by doctors.  They have a lot of sympathy for their fellow doctors.  They know how hard it is to be a doctor and how difficult it is to please all patients.  There is a sense of “There but for the grace of God go I,” which appears to affect their review of the conduct of other doctors.  There is no such sympathy for the injured patients.

The second reason bad doctors are allowed to continue to practice is that medicine is a lucrative profession.  Faced with the possible loss of position, prestige and income, doctors hire smart, experienced, capable counsel to represent them before the medical board.  These lawyers know the ins and outs of the medical board.  They know what plays well before the board.  They know how to go about finding expert witnesses to testify in front of the board about how what the doctor in question did was not malpractice or, if it was, was just a little thing which should not affect the doctor’s license.  These lawyers frequently send their clients off to take additional training about the area of malpractice so, when the hearing comes, they can show how proactive the doctor has been in correcting the problem.  “See what the doctor has done to improve herself?  She knows better now.  You can be assured this won’t happen again.”

Surely, there is a better way to protect the public from malpracticing doctors.  The Arizona Medical Board has shown it is not up to the task.

Posted in Arizona Medical Board, Doctors, Hospitals, Lawsuits, medical errors, medical ethics, Medical Malpractice, medical malpractice lawsuits, medical malpractice lawyers, medical mistakes, Medical Negligence, Secrecy |

Hospital Pricing Is Broken.

January 04, 2021

A recent study by the RAND Corporation discovered that hospitals across the United States charge private health insurers far more than they charge Medicare for the same services.  The amount by which hospital bills exceed what they are paid by Medicare varies widely by location but one fact is consistent:  prices are highest where there has been hospital consolidation.

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The basis of our economic system is the free market.  Goods and services, and hospitals offer both goods and services, are bargained for in the marketplace.  Good products and services are more highly sought after and can command a higher price.  Bad products and services have to charge less.  Sometimes, even with lower prices, they cannot find a buyer and are pushed out of the market.  The consumer is rewarded with good products and services at fair prices.  The free market no longer works when it comes to hospital prices.

There is a lot wrong with our health care delivery system.  We spend more money per person on health care than any other country in the world and yet our outcomes are well down the list of the best countries.  Not only do we get so little for our money, we don’t even provide health care to all our citizens.  By virtue of a historical accident during and soon after WWII, we developed a system in which health insurance was provided by employers.  No job, no health insurance.  As health care has become more expensive, many employers have either dropped health insurance as a benefit or required employees to bear a greater share of the costs.  So now, even among people who have jobs, many don’t have health insurance.

The high cost of health care is creating an unsustainable burden on our system of employer-provided health insurance.  The high cost of hospital care is a main driver of the ever-increasing cost of health care.  Why is hospital care so expensive?  Why doesn’t the free market deliver us good care at reasonable prices?

There are two main reasons the system is broken.  The first is the pattern of consolidation among hospitals.  In Arizona, our largest employer is Banner Health.  It also operates about half of the hospitals in the state.  The ones that are not Banner hospitals are usually operated by some other system that has multiple hospitals.  The more consolidation that takes place, the fewer hospital competitors there are in the market.  Basic economic theory applies here.  The fewer competitors in the marketplace, the less competition and less competition means prices will be higher.  The RAND study, and every other study of the subject, has found that the more hospital consolidation there is in a given market, the higher are the prices charged by hospitals there.

Health insurers that negotiate with hospital chains find them less willing to negotiate prices.  They can and do adopt a “take it or leave it” approach.  If there is nowhere else the health insurer can send its insureds for hospital care, it has no leverage and must accept whatever rates the hospital chain wants to charge.

The second main reason the system is broken is secrecy.  For a free market to function, buyers must be able to compare prices.  If a buyer does not know what sellers are charging for a particular product, there is no way the buyer can choose the best price.  Hospitals, and especially hospital chains, treat their negotiations with health insurers as trade secrets.  Once a deal is reached between a health insurer and a hospital, the hospital insists that the deal be kept confidential.  Health insurers do not know what prices are available in the market and, therefore, cannot choose the best option.  They are forced to negotiate in the dark.

Medicare, on the other hand, is the elephant in the room.  Given the number of people covered by Medicare, even large hospital chains cannot afford to refuse Medicare patients.  They are too large a portion of the population.  Medicare studies the cost of hospital goods and services and sets what it considers to be a fair price.  Now the shoe is on the other foot and the hospital must take what Medicare offers or refuse Medicare patients.  Of course, hospitals claim that the prices set by Medicare are too low and explain that is why they charge private health insurers so much more.

The inability of private health insurers to get anywhere near the deal Medicare gets is creating pressure for some sort of change in the way we as a society deliver and price health care.  Some proposed changes are relatively minor.  Other changes are more radical.  “Medicare for All” is an example of the far end of the spectrum.  However it happens, the current system is broken and unsustainable and has to change.  It will be up to Congress to pass legislation to force change.  Legislation, of course, means lobbying and the hospital chains are very effective at it.  Hopefully, good change is coming.

Posted in health, Health Care Costs, Health Insurers, Hospitals, Medical Costs, Medicare, Secrecy |

The Electronic Medical Record.

December 28, 2020

One of the requirements of federal law is that hospital records be recorded electronically.  The requirement for electronic medical records (“EMR”) has a number of justifications, including portability.  Patients are entitled to have a copy of their medical records.  When the record was paper, that meant someone had to copy all the paper.  The patient had to pay for the time of the person copying the chart and for the cost of the copies.   A chart of almost any length could get quite expensive.  With electronic records, the patient, who asks for a copy, is given a computer disc onto which the records have been transferred.  It takes only a few minutes to make the disc and the cost, if any, is minimal.

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Another reason for mandating EMR’s is that, much like the patient copy, the records are now easily transferred from institution to institution.  When patients are transferred to a new hospital with a higher level of care, their chart can be put on a disc and sent in the ambulance or helicopter with them.

Other reasons offered for requiring EMR’s are cost savings, better communication, the ability of multiple practitioners to have access to the chart at the same time, ease of making entries, reduction in prescription errors, and reduction in adverse drug interactions (because the computer can flag the potential interactions).  With all these wonderful things going for them, I almost feel guilty complaining about EMR’s.

EMR’s make my job as an attorney for patients injured by medical malpractice more difficult.  They make the chart harder for me to read.  Because information can be entered with just a quick keystroke, more information gets entered than if the nurse or doctor had to enter the information by hand.  The EMR is much larger than a comparable paper chart would be.

One of the biggest failings of EMR’s, in my opinion, is that they pretty much force the person entering the information to choose from “drop down boxes.”  Nurses are the providers most often faced with this problem and it makes it more difficult for them to accurately convey the condition of the patient.  For example, when I review the EMR from an emergency room visit, I see the following, “The onset of the problem was ______.”  The nurse has to click a box over the blank space and a number of choices will drop down.  These choices are something like “slow,” “rapid,” “insidious,” or “progressive.”  The nurse must choose one of these to fill in the blank, even if there are far better ways to describe how the condition began.

EMR’s naturally assume a cookie cutter appearance.  The level of detail is limited by the imagination of the person who establishes the template that the nurses have to fill out for each visit.  Each visit appears very similar to every other visit.  If the person creating the template does not offer many choices to the nurses, they cannot do a good job charting.  And because one of the goals of the charting from the point of view of the person creating the template is to encourage easy and quick charting, the tendency is to offer few choices so as not to slow down the process.

Another problem for lawyers like me is that we are at the mercy of the hospital computer people.  With a paper chart, the chart is what the chart is, although there have always been a few loopholes.  With the EMR, the data is in the computer and the hospital and their computer people decide what I get when I request a copy of the patient’s chart.  For example, Hospital A may decide that hourly temperature checks, which are in the computer, need not be a part of the patient chart and does not include them when I ask for the chart.  Hospital B may decide to include hourly temperature checks but to exclude something else.  While I can see what they put in, I cannot know what they decided to leave out.  I may never see information which is critically important to my client’s case and may never know that it was in the computer all the time but never produced by the hospital.

There are a number of companies that produce templates for EMR’s.  Much like the old wars between videotape players, their systems are not compatible.  Things will be a lot better for everyone when hospitals settle on a single format for EMR’s.

The final problem for me is one of overwhelming quantity.  If the hourly temperature checks are included, they may appear in two or three different parts of the chart.  It is hard to find things because the record is cluttered with information I have seen ten times before in other places.  It is like trying to get a sip of water from a fire hose.  Written charts that would have fit in one three ring binder, now occupy three binders.  This may be good for the people that manufacture paper but not so hot for me.

Electronic Medical Records are here to stay but they can certainly be improved.  I am not holding my breath.  Nor should you.

Posted in Doctors, electronic medical records, Health Care Costs, Hospitals, Lawsuits, medical charts, Medical Costs, medical errors, Medical Malpractice, medical malpractice lawyers, medical mistakes, Medication Errors, Nurses, Prescription Errors |

Informed Consent.

December 21, 2020

The requirement for informed consent means that a doctor may not perform a procedure on you without first explaining the risks and benefits of the procedure and getting your approval to go forward.  Informed consent is a critical part of any procedure but, in my experience, it is most often done in a rush and without adequate explanation of the risks.

Informed Consent for COVID-19 Risks: Frequently Asked Questions | The Doctors Company

I frequently meet prospective clients who have suffered an injury during a procedure who tell me the doctor never mentioned their injury as a possible outcome of the procedure.  To the contrary, they usually tell me that the doctor hardly discussed risks at all and assured them this was a low risk procedure that was going to go smoothly.

As is reflected in the drawing above, there is always a written consent form.  It is usually mostly “boilerplate” that is presented to every patient.  It names the patient and the doctor performing the procedure “and his assistants.”  It states that the patient has had all risks fully explained.  It then specifically lists many bad things that can happen and says these are just a few examples of the risks that have been explained.  Finally it states that all of the patient’s questions have been answered and that the patient consents to the doctor and his assistants performing the procedure.  I am not sure I have ever seen a situation in which the actual events matched the pretend events set forth in the written informed consent.

The written consent form is often presented to the patient by nurses at the hospital or at the surgicenter, wherever the procedure is to be done.  It is often presented just before the procedure.  It is presented as though it is nothing more than a written confirmation that informed consent has already been obtained by the doctor.  The doctor is not usually present when the consent form is presented.  The patient is not encouraged to read the consent form or to ask questions.  Even if the patient has questions at this point, in the absence of the doctor, the nurses are not going to be able to answer them, nor should they.

Although the written consent form is usually different than the consent that was actually discussed with the doctor and given by the patient, it is a part of the patient’s medical record, bears the patient’s signature and is considered by juries to be the holy word of God.  Good luck in getting a jury to believe that no one told you about a possible risk when it is listed, along with many others, on the written consent form.  Good luck in getting a jury to believe that the doctor never really discussed the risks of the procedure when the written consent says she did and that all questions were answered.

Given the critical importance of informed consent, it is just wrong that it is treated so cavalierly by doctors.  Most doctors view informed consent as a nuisance.  In their view, it is just another box that must be checked before they can do the procedure and get paid.  They don’t take it seriously and do not engage in a meaningful discussion with their patient about the risks and benefits of the procedure.  They just want the patient to trust their good judgment and be assured that the doctor would not have recommended the procedure, if the risks were not clearly outweighed by the benefits.  Don’t let this happen to you.

Much to the consternation of some doctors, their patients now often do research on the internet before coming to see the doctor to discuss treatment options.  You should be one of these annoying patients.  Do not rely on the doctor to explain all of the risks and benefits of the potential treatments or how one treatment may be better for you than another.  Do your homework before you go see the doctor and be prepared to ask questions.  You may even want to write your questions down and also write down the doctor’s answers.  Any doctor who objects to having a knowledgeable patient or to answering patient questions, is probably not a doctor that you want performing procedures on you.


Posted in Doctors, Fee for Service, Hospitals, Informed Consent, medical ethics, Medical Malpractice, medical malpractice lawsuits, Nurses |

They Did WHAT To Me?

December 14, 2020

If you have ever been the victim of medical malpractice during a hospital stay, it is unlikely that the hospital or the doctors taking care of you told you about it.  On those occasions when they do, it is usually because what happened to you is so obvious that they can’t just ignore it or sweep it under the rug the way they usually do.

Secrets doctors don't want you to know

I have been representing people injured by medical negligence for many, many years now.  It is a rare case in which the hospital or doctor admits that they made a mistake that injured a patient.  It happens, but not very often and, when it does, it is more often the result of a doctor wanting to do the right thing by the patient than it is a hospital voluntarily admitting a mistake.  Sadly, even when the doctor admits to a mistake, the doctor’s insurance company may still aggressively try to prevent the patient from making a recovery or may try to keep down the amount of any recovery.  The doctor may want to do the right thing, but the doctor cannot control what the insurance company does.

What most often happens when there is malpractice that injures a patient is that no one says a word to the patient.  She or he may be left to guess whether something went wrong or whether they just got a bad result.  After all, there are no guarantees in medicine.  Sometimes, the hospital or the doctor suggests to the patient that what happened was just one of those things that no one could have anticipated or prevented.  Sometimes the doctors or the hospital flat out lie to the patient about what happened.

There are many reasons why doctors and hospitals refuse to own up to their mistakes, but the main one is our old friend: money.  Admitting a mistake is an invitation to the patient to make a claim.  Claims mean possible payouts.  Claims mean possible bad publicity.  Claims mean legal costs.  Hospitals are in it to make money.  While they have insurance, most are self-insured for at least the first couple of million dollars of any claim.  This means that for any successful claim on which the hospital has to pay, the money comes directly out of the hospital’s pocket.

Doctors, who have insurance, are not going to be paying claims out of their own pockets but successful claims may result in higher malpractice premiums on down the road.  Successful claims are also reported to the Medical Board, which may open an investigation.  A Medical Board investigation costs money and can result in discipline against the doctor, which can also cost money.  Successful malpractice claims may cause the hospital to restrict or refuse hospital privileges to the doctor.  If a doctor cannot admit her or his patients to the hospital or cannot perform surgery at the hospital, that can cause huge financial problems for the doctor.  Why invite all this by admitting to the patient that you made a mistake?

Another reason doctors and hospitals don’t tell patients they made a mistake is that they can get away with it.  If a patient figures out that they have been injured by malpractice and makes a claim, doctors and hospitals will deny that they did anything wrong.  If the case goes to trial, doctors and hospitals win 85% to 90% of the time, even when the evidence of malpractice is strong.  Juries just don’t want to believe that doctors and hospitals kill and injure patients.  Too hard to sleep at night, if you believe that.

There is no incentive to tell the patient the truth about what happened.  If the doctor and hospital deny any fault but the patient ultimately prevails, either by way of settlement or at trial, there is no adverse consequence for the doctor or hospital having first denied any responsibility.  It never hurts to deny your mistakes and to force the patient to try to prove their case.  Making it as hard a slog as possible also discourages the next patient from even trying.

Despite the vaunted ethics of the medical profession, if you are injured by medical malpractice while you are in the hospital, no one is likely going to come to your rescue and admit the truth.  Don’t believe everything you are told by the people taking care of you.  If you get a bad result, ask yourself whether you might be the victim of malpractice.  Ask the nurses.  In my experience, nurses are sometimes willing to spill the beans, as long as you promise not to quote them.  They see the cover ups and are often offended by them.  Get your medical records.  You are entitled to them.  See if you can figure out what happened.  Consider taking the records to an experienced medical malpractice lawyer for review.  Until human nature changes, you are on your own.  Good luck.


Posted in arizona certified medical malpractice lawyers, arizona certified personal injury lawyers, Arizona Medical Board, disclosure of medical mistakes, Doctors, Hospital Negligence, Hospitals, Lawsuits, medical charts, medical errors, medical ethics, Medical Malpractice, medical malpractice claims, Medical Negligence, medical negligence lawyers, Nurses, plaintiff, Secrecy |