Medical Malpractice News and Views

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

Electronic Medical Records Are A Problem.

Posted by Bill Sandweg.

January 09, 2023

One thing you can say about Electronic Medical Records:  They are a mixed blessing.  In my practice, I read a lot of medical records.  In the old days, they were all written by hand and I had to struggle with illegible handwriting.  I still struggle with handwriting when I review office records but all the hospital records are electronic now.  The good news is that I no longer struggle with poor handwriting when reviewing hospital records.  The bad news is that the records are ridiculously voluminous and do not do a good job of conveying information about the patient.  Sometimes it seems as though electronic medical records (EMR’s) are the hospital’s attempt to make my job more difficult.  Turns out doctors and nurses are having lots of problems with EMR’s as well.

Electronic Medical Records implementation in hospitals - Smart Clinix

EMR’s were intended to solve problems.  One of the problems they were intended to solve was the portability of patient records.  When records were on paper, it was difficult to print them out and ship them to another facility when the patient showed up there for care.  With EMR’s, records can be transmitted electronically in the blink of an eye.  The patient can be given a disc or a thumb drive with her records on them and can take them to her new doctor or hospital.  The old problem of bad handwriting, which sometimes led to mistakes in care, has been eliminated with the advent of EMR’s.  Unfortunately, new problems have taken its place.

Most EMR systems start with a template and have the person caring for the patient fill in the blanks, usually by selecting a word or term from a drop down list.  This unnaturally constrains the care provider because the provider is no longer able to use her own words to describe what is going on.  For example, “The problem came on ________.”  The care provider clicks on the blank and a drop down list offers a choice of words with which to fill in the blank.  Usually, “suddenly,” “slowly,” or “gradually.”  If the word the provider would like to use is not on the list, too bad.  “The pain is ________.”  Choose from “sharp,” or “dull.”  The inability to use one’s own words to describe the patient’s problems and care frustrates the doctors and nurses who must use the system.

There are two main providers of EMR systems in the United States.  They are Epic and Cerner and, according to many doctors and nurses, they are both terrible.  Doctors and nurses spend way more time than they should making entries into the EMR.  They have to log in, open the program, find the right spot by selecting from a number of tabs and work with the template built into the system.  They complain the software is slow and clunky.

Here is an article by a physician who complains of excessive costs and time lost because of EMR systems that are not at all user friendly.  He calls the current EMR products “hopelessly broken.”  As he correctly points out there is no reason for this in this day and age.  Software developers know how to create computer programs that are intuitive and easy to use.  We encounter these programs on line every day where a slow user experience is unacceptable and Google brags about results being returned in thousandths of a second.  But the big two providers of EMR programs have a corner on the market and little incentive to spend millions making major changes to their current software.  In one study of a North Carolina orthopedic clinic, the adoption of an electronic medical record increased the amount of time the doctors spent documenting their care by 230%.  Labor costs increased by 25% per patient visit due to the adoption of EMR’s.  This is unacceptable.

While, as we have seen over and over, it is never easy to make changes when there is a well-financed business that will be hurt by change, it is a change we must make.  The result of a successful change will be better patient care at lower cost.  That sounds like a winning combination to me.

 

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

Cancer Malpractice Litigation.

Posted by Bill Sandweg.

January 02, 2023

Cancer is a terrible set of diseases.  Some are relatively treatable, if detected in time, while others are aggressive and nearly always fatal.  Medical malpractice does not cause cancer but medical malpractice can turn a treatable cancer into a death sentence.

Cancer

The cancer cases that I see almost always involve the same issue:  delay.  There was a delay in discovering the cancer or a delay in recognizing the cancer, or a delay in beginning treatment.  It is why people come to see me.  In order for the delay to be the basis for a case that I can take and win for my client, the delay needs to have caused some demonstrable damage.

There is no question that the sooner a cancer is detected and treatment is begun, the better.  Even the most aggressive defense expert will have to admit that.  For that reason, the longer the delay, the harder it is for the defense to argue that it made no difference to the patient.  You never want to see a long delay in diagnosing cancer or beginning treatment, but it clearly makes for a stronger case.

Sometimes, the delay was brief.  Even a brief delay can cause damage, but it is much more difficult to prove.   When the cancer was not detected, it is especially difficult to prove how advanced it was at the time the doctor negligently failed to detect it.  We can and do try to work backwards from the status of the cancer when it was discovered to determine its stage at the time of the missed diagnosis, but this is always subject to dispute by the defendants, who argue that the cancer was highly advanced at the time of the alleged failure to diagnose.

In addition to the difficulties of proving how advanced the cancer was at the time of the failure to detect it, there are always differences of opinion about how aggressive it was and whether the delay made a difference in the patient’s outcome or not.  If there was a death due to the cancer, defense lawyers almost always argue that the cancer was highly aggressive and that the patient was therefore not likely to survive anyway.  If the patient is still alive and in remission at the time of the lawsuit, the defense attorneys may argue that they have been cured and that little damage has occurred.  The worst case for malpractice defense lawyers is when the patient is still alive at the time of trial but is clearly nearing the end of her or his struggle with cancer.  Other than arguing the doctor did nothing wrong, there are few arguments available to them that don’t sound heartless.  Defense lawyers and insurance companies usually try to settle these cases.  Cancer cases are never more valuable than just before trial with a patient who is near the end of life.

The doctors who are most likely to fail to detect cancer are not usually specialists in cancer.  Those doctors are usually right on top of the problem and are highly skilled in recognizing the signs of cancer and in treating it.  The doctors most likely to get into trouble with cancer diagnoses are the doctors who are not very experienced with cancer and who are not looking for it.  They see signs and symptoms that may be cancer but they don’t recognize them as such.  They reassure their patients that it is nothing and they fail to send them to doctors who are more familiar with cancers and who can recognize and diagnose cancers.

I have seen many different failings by doctors in the cancer cases I have handled over the years.  I had one in which a doctor misidentified a melanoma on the sole of the foot as a wart and tried to burn it off.  It, of course, came back later with fatal results for the young patient.  I have had a number of cases in which radiologists failed to notice the presence of lung tumors on chest x-rays being performed for reasons other than cancer screening.  When you are looking to see if there are any fractured ribs, it is a lot easier to miss a small tumor than when you are looking for possible tumors.  I have had cases in which the pathologist failed to properly identify cancer in a biopsy specimen.  The patient was told that the biopsy was negative.  Only when the cancer spread and the biopsy was re-examined years later was the mistake discovered.  Finally, I had a case in which the doctor received the report of the pathologist that the biopsy specimen was cancerous, but became confused and thought that the patient had already been notified, so he did nothing.  If you can think of a way for human nature to mess things up, it has probably happened when it comes to cancer diagnosis.

There are a few takeaways here.  First, if you have a concerning symptom, be polite but firm in asking the doctor to confirm that it is not a problem.  Human nature being what it is, we are usually so happy to have the doctor reassure us that we fail to ask her to confirm it or to get a second opinion.  Second, don’t assume that no news is good news when it comes to a biopsy.  Just because the doctor’s office did not call to tell you the biopsy was negative, do not assume that it was negative.  It may have simply gotten lost in the shuffle.  It is your health.  Follow up on all biopsies and make sure you know the result.  I hope you  never need to see me about a missed diagnosis of cancer, but, if you do, my address is at the bottom of the page.

 

Posted in Breast Cancer, Cancer, Doctors, Lawsuits, Lung Cancer, Mammogram, medical errors, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice lawyers, medical mistakes, Medical Negligence, Melanoma, Misdiagnosis, plaintiff |

Going To The Emergency Department Can Be Hazardous To Your Health

Posted by Bill Sandweg.

December 26, 2022

This may come as a shock to you but there are a lot of mistakes made in the emergency department that kill and seriously injure people.  If you do what I do for a living, you already know this.  If you are just a regular member of the public, this may be big news to you.  Importantly, this is not just me saying there is a lot of medical malpractice in the emergency department.  This is the federal government talking after a review of what has happened in ER’s over the last twenty years.

Emergency Department - Alamance Regional | Cone Health

The Agency for Healthcare Research and Quality is the division of the Department of Health and Human Services which is charged with monitoring the quality of health care in the United States.  It conducted a study of twenty years of reports concerning care in the emergency department and made some important findings.  Here are some of the most important points.

About one in every 18 emergency department patients will be misdiagnosed.  Fortunately, most of those misdiagnoses will not cause a serious injury but some will.  One in every 50 emergency department patients will be harmed by the misdiagnosis and one in every 350 patients will suffer either permanent disability or death.  Given that there are over 130 million emergency department visits each year, there are over 7 million people who are misdiagnosed, 2.6 million injured and 370,000 each year who are either permanently disabled or killed.

Some medical conditions are more commonly misdiagnosed than others.  The top five most commonly misdiagnosed conditions are strokes, myocardial infarctions (heart attacks), aortic aneurysm/dissection, spinal cord compression/injury, and venous thromboembolism.  These five account for about 40% of the most serious harms caused by misdiagnosis.

If you have classic signs for a condition, you are less likely to be misdiagnosed.  The correct diagnosis is as clear as the nose on your face.  On the other hand, if you have something less than a classic presentation or if your symptoms are coming and going, your chances for a misdiagnosis go up substantially.  In malpractice trials involving misdiagnosis of an unusual problem, the defense lawyer will tell the jury that when a doctor hears hoofbeats, the doctor thinks about horses and not zebras.  If your medical condition is an uncommon zebra condition, you are much more likely to be misdiagnosed.

The most common reason for a misdiagnosis was cognitive error by the health care provider.  As in many other areas of life, once someone gets a thought in their head about what the problem might be, they begin looking for reasons which support their conclusion instead of keeping an open mind and considering all of the available evidence.  This is where the emergency department doctor hears hoofbeats and starts thinking about horses instead of waiting till all the results are in to see if this time it just might be something other than a horse.

As usual, women and people of color can’t catch a break.  Women and people of color are more frequently misdiagnosed than white males.

The rate of misdiagnosis varied greatly among hospitals.  Teaching hospitals had the lowest rates of misdiagnosis, although the reason for that was not entirely clear.  Some hospitals, on the other hand, were virtual malpractice factories with rates of misdiagnosis 100 times as high as the best hospitals in the study.  It makes a difference where you go and information about hospital health care quality is available on line from the federal government.

If you go to the emergency department, are misdiagnosed, and suffer a serious injury,  Don’t expect anyone to tell you that you have been the victim of malpractice.  Don’t sleep on your rights.  Get your case evaluated by an experienced and competent medical malpractice attorney.  Most people who are injured in hospitals, never make a claim.  They bear the burden of their injury by themselves instead of letting it be borne by the person responsible for causing it.  Don’t be one of these people.

 

Posted in arizona certified personal injury lawyers, disclosure of medical mistakes, Doctors, Finding a Medical Malpractice Lawyer, Heart Attacks, Hospital Negligence, Hospitals, Lawsuits, medical errors, Medical Malpractice, medical malpractice lawyers, medical mistakes, Medical Negligence, Medicare, Misdiagnosis, Stroke |

Health Care Professionals Are Not Immune to Greed

Posted by Bill Sandweg.

December 19, 2022

Willie Sutton, the Depression era bankrobber, when asked why he robbed banks, famously responded, “That’s where the money is.”  Today, the money is in illegal drugs and the Medicare program.  Foreign drug cartels make huge profits smuggling illegal drugs into the United States.  Even larger amounts of money flow through the Medicare program.  Health care professionals see these money flows and often cannot resist the urge to cash in.  Here are some recent examples.

Are Your Illegal Drugs Pure? New Zealand Will Check Them for You. - The New York Times

A long-time Philadelphia pharmacist has admitted committing a whole range of crimes relating to the distribution of oxycodone and fraud.  In addition to filling prescriptions that were obviously altered or were suspicious for other reasons, the pharmacy had a range of patients on whose records it noted “BBDF,” which meant Bill But Don’t Fill.  For these patients, the pharmacy regularly billed their insurers and Medicare for prescriptions that were never filled.  The pharmacy and the pharmacist, in addition to jail time for the pharmacist, have agreed to pay over $4M in civil fines, restitution, and forfeiture.

A Certified Nurse Practitioner pleaded guilty to charges of drug diversion and health care fraud.  He wrote phony prescriptions for Adderall, which he sold, and fraudulently billed insurers and Medicare for the medications.  He faces up to 30 years in prison.

A Texas family practice doctor ran what can only be charitably described as a pill mill.  He would pre-sign prescriptions for hydrocodone and give them to his nurses.  The nurses would see the patients who came to the office with complaints of “pain” and who would leave with prescriptions for the strongest possible doses of hydrocodone.  The nurses would be paid on the basis of how many pills they prescribed.  Medicare was billed for the office visits as though the doctor had seen the patients, even when he did not.  The doctor pleaded guilty and is awaiting sentencing.

Of course, pills aren’t the only way to defraud Medicare or health insurance companies.  Kickbacks, phony bills for services never performed, and unnecessary surgery are time-honored methods as well.

A Florida hematology and oncology practice has agreed to reimburse the federal government and the State of Florida $130,000 in response to charges that it received impermissible kickbacks from a drug distributor for cancer drugs it administered to its patients.  The drug distributor reached its own settlement with authorities and agreed to pay over $13M.

A doctor in the State of Washington has admitted guilt in connection with a scheme in which he ordered medically unnecessary genetic tests for elderly Medicare patients, whom he had never met.  Telemarketers would contact these elderly patients and persuade them to speak to the doctor over the phone.  Following the phone call, which was billed to Medicare as telemedicine, the doctor would order the test and receive a fee.  Medicare would also be billed for the tests.  The scheme cost Medicare over $18M before it was uncovered.

A Massachusetts nurse has pleaded guilty to participating in a conspiracy that resulted in over $100M of fraudulent charges to Medicare and a companion Massachusetts program for home health care services that were unnecessary or not ever performed.  The conspirators also paid kickbacks for patient referrals and “hired” family members of the patient to be home health caregivers.

According to a lengthy investigation by the Arizona Republic, a local vascular surgeon collects more money from the Medicare program than almost anyone else in the country.  He has been sued multiple times with allegations that many of his patients do not need the expensive surgeries he performs and that his malpractice has caused many of them to lose their lower legs.

As long as America has an unquenchable thirst for drugs they can use to get high, there will be unscrupulous people willing to supply those drugs.  Similarly, whenever there is a program that handles billions of dollars each year, fraudsters and dishonest people will be looking for a way to divert some of that money to themselves.  We just have to hope that those charged with safeguarding those funds and those programs are alert and doing their jobs watching for fraud and drug conspiracies.

 

Posted in Doctors, drug companies, Fee for Service, Fraud, Health Care Costs, Health Insurers, medical ethics, Medicare |

“I Made A Mistake Which Injured You.”

Posted by Bill Sandweg.

December 12, 2022

This is not a statement a doctor is very likely to make, even though there is an ethical obligation to be honest with patients and to make sure medical records are accurate.  Sadly, the way our system operates, there are strong incentives for doctors to keep quiet and strong disincentives for doctors to speak up.  The fact that most malpractice is deliberately hidden has profound consequences for the health care system as a whole and for the patients who are the victims of malpractice.

What Doctors Don't Tell You (@wddty) / Twitter

There are very few good reasons for a doctor to admit to a mistake.  There are no gold stars given out at the hospital or at the medical board for honesty.  Although both medical ethics and hospital rules call for mistakes to be reported, almost no one does unless forced to do so.  On the other hand, there are lots of reasons to keep your mouth shut and hope no one discovers what really happened.

Here is a great example of this principle in action.  Patient undergoing cataract surgery wakes up with a cut on his forehead.  He asks what happened.  At first no one will answer.  Finally, when pushed, the surgeon tells him that there was a “little incident” and that he had a reaction to the anesthesia.  He gets his medical records and everything is recorded as having gone well.  No problems with the anesthesia or the surgery either.  Of course, a reaction to the anesthesia is not going to cut your forehead.  The curtain of silence was drawn and no one would admit anything more.

Doctors who admit mistakes get sued by their patients.  Doctors who admit mistakes get reported to the medical board, which then undertakes an investigation which can result in discipline up to and including loss of the doctor’s license to practice.  Doctors who admit mistakes get called before the hospital’s board and may lose their privileges to practice at the hospital.  Doctors who admit mistakes may find that malpractice insurance companies no longer wish to insure them.  Doctors who admit mistakes have to explain things to their colleagues and partners and may find themselves looking for a new place to practice.  In a worst case scenario, doctors who admit mistakes may be charged with criminal conduct.  I expect by now you begin to get the picture.

I recently read a story about a surgeon, who reported concerns he had about the way the anesthesiologists at his hospital were delivering care.  The hospital forced him out and it took him four years of fighting to get his hospital privileges back.  A doctor, who did the right thing, who put patient safety first, who fulfilled his ethical responsibilities, who brought problems to  light, and who should have been congratulated instead lost much of his livelihood, was embarrassed and had to spend a lot of money and time getting his privileges back.

A nurse in Tennessee who admitted that she had given the wrong medication to a patient, which resulted in the patient’s death, was charged with manslaughter and convicted.  Her own admissions were used to convict her.  Had she kept her mouth shut, she probably would not have been prosecuted.  She worries that what happened to her will discourage others from admitting mistakes and that no one will learn from her error.  Given what happened to her and the wide publicity her case was given, I expect that a lot of people in medicine learned one very valuable lesson:  Never admit anything.

In almost every medical malpractice case I have ever filed, the doctor always says the same two things:  (1) “I didn’t do anything wrong.” and (2) “Whatever I did or didn’t do made no difference to your health.”  Doctors say this even when what they did wrong is so clear they cannot find another doctor willing to testify on their behalf.  And let me assure you that there are doctors out there who will bless almost anything.  You have to have really screwed up when you can’t find another doctor to go to bat for you.

It is sad that our system encourages doctors to lie about what they did and to shirk responsibility for their conduct.  It is sad that the doctors who admit their mistakes are considered to be suckers.  Juries favor doctors so much in these suits that, even when the evidence of error is strong, the jury usually finds in favor of the doctor.  Juries don’t want to believe doctors make mistakes that kill and injure people.  It is easier to believe that sometimes bad things happen through no fault of the doctor.

Maybe some day doctors can live up to the ethics they all claim to believe in.  Until that day arrives, however, I will be forced to continue to listen to doctors try to evade responsibility for their actions and patients who have been the victims of doctor’s mistakes will continue to be sent home with nothing by juries who want to believe in doctors.

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

Our Health Care Spending Subsidizes the Rest of the World

Posted by Bill Sandweg.

December 05, 2022

If you follow this blog or read much about health care spending, you know that we in the United States spend twice as much per person on health care as any other nation on earth.  We pay way more for medicines than anyone else.  Our doctors and hospitals make more than doctors and hospitals anywhere else in the world.  Why can’t we get the same deals as the rest of the world when it comes to health care spending?  It turns out that everyone else uses our high prices to save themselves money.  Without our sky high spending, health care in other countries would cost much more.

How to Stop Wasting Money and Save on Common Everyday Expenses

Here is an excellent piece that recently appeared in the Washington Post.  The author, who makes his living dealing with health care spending, believes two factors in our system enable the rest of the world to leverage off our actions.  In the first place, we have no price controls so everyone in the system can charge whatever the traffic will bear.  This lack of price controls rewards the world with life saving drugs and fantastic innovations in health care at essentially no cost to them.  We pay for it and they get to enjoy the benefits.

The second factor is the profit drive of doctors and hospitals.  Since they are not competing on price, they compete through offering innovative treatments.  This serves to drive medical advances but also makes our care more expensive since every hospital and doctor feels compelled to offer the latest new MRI machine or the newest form of therapy.

Every time there is a movement to put a lid on drug prices or to allow Medicare to negotiate prices with the drug companies, we are warned that to do so would risk the drug research and innovation that has made such a difference in the lives of so many.  According to the author, that may be true.  The reason is that the drug companies make almost all their money off the extremely high prices they charge in the United States and just take whatever scraps they can get from the rest of the world.  If we stop supporting drug research funded by our high prices, there is no one else left to take up the slack.

The author believes that the only path truly open to us is to rearrange the system to encourage price competition.  As matters stand now, consumers with some form of health insurance make up the bulk of those paying for health care.  Insurance, to a certain extent, insulates consumers from the prices being charged by hospitals and doctors.  Insurance companies pay the most of the health care bill.  Consumers pay their deductible and perhaps a co-pay, which may be fixed.  Most of the time, the consumer never knows how much the actual charge is.  She or he is focused only on the part they have to pay.  If, the theory goes, health insurance only covered unexpected and large health care bills and consumers had to pay for the routine care, competition would force prices down as it does in other areas of the economy.  Doctors and hospitals would have a strong motivation to become more efficient and to compete on price.  A win for consumers and the taxpayers who have to fund Medicare but a threat to the profits of doctors, hospitals and health insurers, all of whom would fight tooth and nail to maintain the current, inefficient system, which showers money on them.

Next time you are sizing up a candidate for political office, ask what her or his stance is on reforming health care spending.  It can’t hurt to ask.

Posted in Doctors, drug companies, Fee for Service, Health Care Costs, Health Insurers, Hospitals, Medical Costs, Medical Devices, medical research, Medicare |

Just Fill Out These Forms – Hospital Edition.

Posted by Bill Sandweg.

November 28, 2022

If there was ever a situation of more uneven bargaining power than being asked to fill out hospital forms while lying on a gurney in the emergency department, I cannot think what it could be.  And yet that is precisely when the hospital asks you to fill out pages and pages of forms with closely spaced legal mumbo jumbo that can have huge legal and economic consequences down the road.  You are in no position to get up and leave.  You are in no position to refuse to sign.  So you do what you must; you sign, usually without even reading the forms.

Reduced hospital admissions for ACS — more collateral damage from COVID-19 | Nature Reviews Cardiology

The hospital knows you are coming.  It may not expect you personally, but it knows patients will be arriving every day needing vital medical treatment.  The hospital wants to be ready for you.  It wants to be ready to deliver good medical care to you, but it also wants to place itself in the strongest possible position to get paid and to defend itself in the event someone makes a mistake and it gets sued.  That is why it has had lawyers prepare detailed forms and why it insists you sign them before it will admit you to the hospital.

The hospital forms are often pretty much alike from hospital to hospital.  Hospitals compare notes.  Their attorneys compare notes.  They read the court cases and change their forms to take advantage of whatever the law allows them.

One of the things the hospital has thought of that you probably have not is who is this person who is providing care to you?  He or she is wearing a name tag.  It may or may not have the hospital’s name on it.  While it may be news to you, the person may not be a hospital employee at all, even though the person is dressed like all the other hospital employees.  If all goes well, you never have to care about whether the person was employed by the hospital or not.  However, if things go wrong and the person injures you, the hospital may inform you that it is not legally responsible for the person it sent to care for you.  Depending on how badly you have been hurt, this may make a big difference in how much money you can recover to compensate you for your injury.

There are lots of people in a hospital who are not actually employed by the hospital.  In the emergency department, the doctors very often work for an outside company that the hospital has hired to work in its emergency department.  Their name tags may or may not alert you to that fact, although there are good reasons why you don’t spend much time examining those name tags while you are lying on your back in pain.  Depending on the hospital, it may hire doctors to see you during the time you are admitted.  These people are called hospitalists.  They don’t do anything other than see patients in the hospital.  The radiologists who review the x-rays, CT’s and MRI’s performed in the hospital are usually not hospital employees.

The hospital may call the emergency department doctors, hospitalists, and radiologists “independent contractors” and take the position that they are not hospital employees.  Were you to walk into any other business in town and be waited on by someone who gives every appearance of being an employee of the business, the law will usually treat that person as an employee, even if the business claims that it was just someone it hired but who wasn’t technically an employee.  The law will hold the business responsible for any mistakes the person makes that cause you injury.  Here is where the hospital’s forms come into play.

Buried deep in the fine print in the admission forms, the hospital will inform you that not everyone who provides you care is a hospital employee and that you should not assume that they are.  Even if you are able to find that sentence, you may not understand it, but the courts will enforce it against you anyway.  The courts also won’t care that you didn’t have much choice when presented with these forms.  This means that the hospital is not legally liable for the mistakes of these people and doesn’t have to pay for them.  Since the hospital usually has many millions of dollars of insurance coverage and the “independent contractor” does not, this can make a big difference, if you are badly injured.

There are lots of other hospital-favorable provisions in these forms.  Among other things they make you promise to pay, in the event your insurance company does not.  They may make you agree to arbitrate certain disputes, instead of going to court over them.  You agree that the hospital may take pictures of you and that the pictures will belong to the hospital and not you.  You agree to have certain information shared.  You give your consent to the treatment you are going to receive, and, if you are in the hospital to deliver a baby, you give consent for the baby to be treated as well.

There is not much you can do about these forms.  The best you can do is read them and ask questions, but you are going to have to agree to what the hospital wants or leave and go on down the street.  Under the best of circumstances, that is a problem and, even then, the next hospital will hand you similar forms to sign.  Just be aware that these are important forms and will be binding on you, even though you never really had a chance to refuse to sign them.

 

Posted in Doctors, Hospital Negligence, Hospitals, Informed Consent, Lawsuits, medical errors, Medical Malpractice, medical mistakes, Nurses |

Our Broken Health Care Delivery System.

Posted by Bill Sandweg.

November 21, 2022

Next time you are visiting someone at the hospital and have a few minutes to spare, take a drive through the doctor’s parking lot.  If you live in a major metropolitan area, you will see luxury car after luxury car.  In areas more remote from the big cities, there will be nice cars, but probably not as many really expensive ones.  What does this have to do with our broken health care delivery system?  Well, pretty much everything.

Flying Money PNG, Transparent Flying Money PNG Image Free Download - PNGkey

In order to afford those fancy cars, doctors must make a lot of money and many of them do, particularly the specialists.  Not so much for the family care doctors or the pediatricians.  So chalk up part of the problem to high fees charged by segments of the doctor population.  Not to be outdone, hospitals have very high “sticker prices” for their services, off which they offer discounts to some people and some insurance companies.  Tough luck, however, if you are forced to go to a hospital that is not “in network.”  You are likely going to get soaked.

Another part of the problem, and there are many parts, is how we pay for our health care.  In most cases, we pay for our health care by the service performed.  This is the “fee for service” model.  The more a doctor or hospital does for you, the more you are charged.  There is a built-in incentive to do more to get paid more.  There is also an incentive to divide a service up into as many parts as you can and to bill separately for each of them.  This may be where the airlines learned to charge separately for food, drink, bags and leg room.  In the fee for service model, the emphasis is on the service performed as opposed to the result achieved.  Under the current system, no one really cares if the service results in a cure or not.  There should be an incentive for getting your patient healthy and keeping her healthy.

Hospitals are also extremely secretive about how much they charge.  Probably no business in America has as many different charges for the same service as do our hospitals.  Not only do they have different charges for the same service depending on who is doing the paying but the differences can be huge.  In a recent blog post, I discussed the case of a woman who had a breast biopsy for which the hospital charged $18,000.  For patients with no insurance, the hospital charges only $1,400 for the same biopsy.  Hospitals don’t want you to know what they charge.  They consider their price list to be a trade secret.  However, without knowing what the hospital charges, consumers cannot make rational decisions about where to go for hospital care.  Our capitalist system relies on rational decision making to keep prices down and to encourage efficiency.  Hospitals gum up the works on purpose.

Drug companies play a big role in our broken system.  They have enormous financial power and have been very effective lobbyists.  For decades, Big Pharma has prevented Medicare from negotiating the price of drugs that it covers for seniors.  That changed recently but only for some drugs and the change is to take place over a period of years.  The drug companies also game the patent system to keep prices high.  They virtually conspire with the insurance companies to keep prices high, which allows the insurance companies to charge higher premiums.  We have, and will for the foreseeable future, pay more for the same drugs than anyone else in the world.

The health insurance industry makes big profits from the current broken system and has no interest in seeing it change.  Every time reform is suggested, the health insurance companies start the scare tactics to convince Americans that the health care apocalypse is just around the corner and they can kiss their doctor goodbye, if any changes are made.  It has been a quite successful tactic for them.

In spite of the success of the Affordable Care Act, there are still many living in this country who have no health insurance or whose insurance is terrible.  For obvious reasons, these people don’t go to the doctor very often.  By the time they show up at the hospital, they are often very sick.  Under federal law, the hospitals are required to accept them as patients and to provide to them the care they need.  When they cannot pay the bill, the amount of their bill is added to the bills of all of us who do have health insurance so as to keep the hospital from going broke.  Those who think that having people without health insurance is no concern of theirs don’t understand the situation.  They are paying for the uninsureds, whether they realize it or not.

As regular readers of this blog know, we pay more for health care in the United States on a per person basis than any other country in the world.  Do we get the best health care in the world for all that we spend?  Not by a long shot.  By any objective measure of health care outcomes, such as infant mortality, life span, obesity, etc., we are way down on the list of successful countries.  We are not just way down on the list, we are dead last.  It is no coincidence that we are also the only industrialized country that does not have universal health care.

Our broken health care delivery system traces its roots to price and wage controls put in place during World War II.  Health insurance became a fringe benefit that could be used to attract workers when wages were frozen.  From there the system just kept on moving forward and creating companies with huge financial stakes in preserving the status quo.

Only Congress has the power to wipe the slate clean and to create an efficient system of delivering health care to our citizens.  Sadly, with the degree of partisanship we are currently experiencing, we are unlikely to have the bipartisan majorities needed to make the necessary changes any time soon.  Even if bipartisanship were to suddenly spring up, the lobbying power of the doctors, insurers, drug companies, and hospitals would make real change hard to come by.  Guess we are just going to have to live with it for a few more decades.  Maybe our grandchildren will do better.

Posted in Doctors, drug companies, Fee for Service, General Health, health, Health Care Costs, Health Insurers, Hospitals, Medical Costs, medical ethics, Medicare, Obesity, Secrecy |

Medical Malpractice and Quadriplegia.

Posted by Bill Sandweg.

November 14, 2022

Over the years, I have handled a number of cases in which the patient successfully underwent surgery only to become paralyzed in the hours and days after leaving the operating room.  In each of these cases, the patient should not have been paralyzed.  In each of these cases, the nurses or the surgeons, or sometimes both of them, failed to do their jobs and the patient was left with a lifetime of paraplegia or quadriplegia.

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The spinal cord is like a superhighway through the body.  Like a superhighway, it is a critical piece of infrastructure.  It carries messages from the nerves to the brain and messages and instructions from the brain to the nerves and muscles.  It is protected from trauma by the bones of the spine and by a tough, fibrous sheath.  Medical errors can overcome that protection and damage the spinal cord.  The closer to the head the damage occurs, the more messaging to and from the brain is lost.  Damage to the spinal cord in the lower back can cause paraplegia, the loss of the use of the legs.  Damage in the neck can cause quadriplegia, loss of the use of both the arms and legs.

The two main ways the spinal cord can be damaged by malpractice are through direct trauma during a surgery on or in the vicinity of the spinal cord and compression of the spinal cord after surgery due to the formation of a blood clot.  Malpractice during surgery is almost always the exclusive responsibility of the surgeon.  Post-operative compression due to the formation of a blood clot involves the nurses and may or may not involve the surgeon as well.

Time and space do not permit me to detail all the ways in which a surgeon can directly damage the spinal cord during a surgery.  It depends on the nature of the surgery, its location, whether or not hardware is being used as well as a number of other factors.  Suffice it to say that some cases of spinal cord damage during surgery are unavoidable while others are completely avoidable.  Each case must be examined on its own merits.  While paralysis may be a risk for all surgeries in and around the spinal cord, the fact that paralysis occurs during such a surgery does not mean that the paralysis was not the result of negligence.

Post-operative paralysis is a much easier case to make.  It should not happen.  While post-operative bleeding may cause the formation of a blood clot (hematoma), which compresses the spinal cord, any resulting paralysis will develop over a period of hours and will cause signs and symptoms, which an observant nurse will see and report to the surgeon.  If the nurse is doing her job, the developing problem will be recognized early enough for surgical intervention to preserve spinal cord function.

You would think that the nurses assigned to care for patients who are recovering from surgery on or near the spinal cord and who are at risk of developing paralysis would be among the best the hospital has on staff.  You would be wrong.  In many of the cases I have handled of post-operative paralysis, the nurses were inexperienced and poorly trained.  Why are these nurses entrusted with such important care?  In one of my cases, the nurses saw the developing evidence of paraplegia and deliberately ignored the order of the doctor to call her immediately, if they saw any of the signs they were seeing.  These night shift nurses testified that they discussed it among themselves and decided that the loss of sensation, motion, and strength was not really due to developing paralysis and that there was no reason to call the doctor.  By the time the surgeon arrived in the morning and discovered his patient was paralyzed, it was too late to fix the problem.

Any time a patient is paralyzed while in the hospital, an experienced malpractice lawyer should be asked to review the records.  If there was no malpractice, the lawyer can reassure the patient and life can go on to the best extent possible.  If, on the other hand, malpractice was a cause of the paralysis, the lawyer can advise the patient about the options that are available.

Posted in Blood Clots, Doctors, Hospital Negligence, Hospitals, Lawsuits, medical charts, medical errors, Medical Malpractice, medical malpractice cases, medical mistakes, Medical Negligence, medical negligence lawyers, Nurses, Surgical Errors |

Some Helpful Medicare Enrollment Information.

Posted by Bill Sandweg.

November 07, 2022

It is only early November and I am already sick to death of the advertisements trying to get me to enroll in a Medicare Advantage plan and I still have a month go before the open enrollment period ends.  Every celebrity in an advertisement these days tells me I need to get what I deserve.  Grumpy Marge needs to be persuaded to call the number on the screen.  These ad campaigns must be working as the number of Medicare eligible Americans enrolled in Medicare Advantage plans keeps increasing every year.  As of 2022, almost half of the eligible Medicare beneficiaries are enrolled in a Medicare Advantage plan.

If you remember nothing else, remember that there is no free lunch and that the extra benefits you are being offered in an advantage plan are going to be offset by savings somewhere else so that the insurance company running the advantage plan can make its profit.

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The puzzle image here is a good one for our purposes because Medicare can be very confusing, even for the sophisticated shopper trying to figure out what is the best coverage for her.  There is an alphabet soup of Parts A, B, D, F, G and so on.  What are they and what do they do?  If I want to enroll in an advantage plan, what are the trade offs?  What must I give up?

I recently received a link from a private company that brokers health insurance.  Their web site explained all of the different types of Medicare coverages available in Arizona and provided some data for the largest companies offering Medicare Advantage plans here.  They also provided links to other sites with helpful information.  Here is the link I received.  It is definitely worth a look.

On the subject of Medicare Advantage plans, the site for which I gave you the link says there are four main types offered in Arizona.  The first and most common is the HMO model, in which, in return for extra benefits, you give up the right to choose any doctor who accepts Medicare.  You must have a primary care physician (PCP) in the HMO network and cannot see a specialist without a referral from your PCP.  If your PCP decides you can see a specialist, it will usually be someone in the HMO network.

Next are the Preferred Physician Networks.  Under this model, the care you receive from a physician in the network will cost less than care from a doctor outside the network.  There are other types of Medicare Advantage plans offered in Arizona as well.

As the site points out, the best Medicare Advantage plan for you depends on what is most important to you in terms of costs, availability of providers, and ease of access.  Arizona had 122 Medicare Advantage plans for sale in 2022, however, not all of them are available in all parts of the state.  When comparing plans, you should consider cost, availability of physicians and hospitals, deductibles, co-pays and coinsurance, coverage area, out-of-pocket costs, and benefits.  It can be quite a daunting task but can have a big effect on your pocketbook and on your access to health care.  Good luck.

 

Posted in Doctors, Fee for Service, health, Health Care Costs, Health Insurers, Medical Costs, Medicare |