Medical Malpractice News and Views


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

Cancer and Medical Malpractice

January 27, 2020

I see lots of potential clients with cancer diagnoses who wonder if they have a malpractice case or not.  These are among the most difficult cases to win so the answer is not usually what the prospective client wants to hear.  An unwelcome answer from me is added to the sadness of the cancer diagnosis.  Not a good combination ever.

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The first problem I face as a medical malpractice lawyer is that the cancer my client has was not caused by a doctor.  The usual claim in a cancer case is that the doctor failed to recognize the presence of cancer and to treat it in a timely manner.  Sometimes, but not often, this is a strong claim.  The x-ray, CT, MRI or pathology test clearly shows the presence of cancer and someone just missed it.

More commonly, however, the mistake is not so clear cut.  The test can be interpreted in more than one way.  The shadow on the x-ray of the lung may be a cancer or it may just be a meaningless shadow.   The pathology slide may show a very unusual presentation, which makes it difficult to correctly interpret the slide.  The doctor defendant will be able to bring in colleagues who will tell the jury that the x-ray/slide does not show the presence of cancer.  Our expert will say just the opposite and often the jury is left scratching their collective heads.

The defense in a missed cancer diagnosis case almost always argues that the patient’s experts are guilty of hindsight bias.  That means that they have an advantage over the defendant doctor because they know the patient has cancer and where it is.  They can go to the x-ray or slide and point out exactly where the cancer is.  The defendant doctor didn’t know whether there was cancer there or not when he or she read the x-ray or reviewed the pathology slide.  Juries tend to give a lot of credence to arguments about hindsight bias.

Lastly, and perhaps most importantly, my client has cancer.  In order to prevail, I must prove that, had the doctor diagnosed the cancer when the doctor saw my client, things would have been different.  That difference may be that my client would have been cured.  That is rarely the case.  More often than not, the most I can prove is that my client would have had a better chance for a cure or for a longer life than they do now.  The defendant doctor, on the other hand, always argues that my client’s cancer was such that he or she had only a short time to live no matter when the cancer was diagnosed and treatment begun.

When evaluating a case, I must also keep in mind that my client has cancer and that his or her life may end soon.  If my client dies before I can get the case to trial or before I can get the case settled, the value of the case changes, often dramatically.  Some of the largest verdicts in malpractice cases have come when a dying patient gets on the witness stand and asks the jury for justice.  It is powerful to see a dying person testify.  On the other hand, more often the patient loses his or her race with death before the trial or settlement.  When that happens, the patient’s pain and suffering claim dies with them.  What is left is a wrongful death claim to be brought by their spouse or parents or children.  While wrongful death claims can be valuable, they are not going to be as valuable as the claim of the patient who is still alive at the time of trial.

All of this means that I must push these cases as hard as I can to get them to trial as soon as I can.   The defense pushes back as hard as it can and argues that it needs time to evaluate the case and to take the necessary depositions.  The courts are sympathetic to the plight of the patient but wary of depriving the defendant doctor of the time necessary to prepare a defense.  It is hard to get a priority for these cases.

Failure to timely diagnose cancer cases are hard but important and can be valuable in the right circumstances.  If you have a diagnosis of cancer and think there may have been a delay, contact an attorney as soon as possible.  The more time an attorney has, the more likely it is that the case can be tried or settled while you are still alive to see justice done.

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

Another Malpractice Death Ignored by the System

January 20, 2020

Here is a touching story of another death caused by medical malpractice that our current laws swept under the carpet.

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The author is a former federal prosecutor in Los Angeles.  His younger brother was morbidly obese and had many health challenges.  He could never seem to get a handle on his weight.  The author tried to help his brother lose weight to no avail.

The brother lived in a studio apartment behind the home of the author.  The author often took his brother to the hospital when he became seriously ill.

On the last occasion he took his brother to the hospital, it was because of leg swelling that sounds like cellulitis.  The attending physician said that a few days in the hospital on antibiotics would have the brother up and around again.  Instead, the author received a call that his brother’s heart had suddenly stopped and he had died.

An autopsy was performed that showed the death was due to cardiac arrhythmia, a disturbance in the normal beating of the heart that causes the heart to flutter ineffectively.  If not immediately reversed, it causes death in minutes.  The autopsy also found that the brother had in the past suffered a massive heart attack.  A massive heart attack puts the patient at much higher risk of a fatal cardiac arrhythmia in the future.  The author was surprised because he didn’t know about the heart attack and was sure his brother had not known either.

The author obtained his brother’s medical records and reviewed them.  He found a record of an EKG performed two years before that stated the tracing showed there had been a prior heart attack and that it had disturbed the heart’s rhythm.  No one told the brother about this and he never got the treatment that would have helped reduce the risk that he would suffer a fatal dysrhythmia.  The failure to tell the patient this critical information was absolutely medical malpractice.

When the author began contacting medical malpractice lawyers, he found no one was able to take the case despite the clear evidence of malpractice.  The brother was unmarried and had no children.  Under the law of California (and Arizona too, for that matter), only a spouse or parents or children can bring a claim for the death of a person.  Negligently killing a person who has no spouse or children and only elderly parents creates almost no legal damages in the eyes of the law and gives the malpracticing doctor a free pass.

The author is both heartbroken and angry.  The needless death of his brother, who lost his chance to avoid a fatal arrhythmia, is considered a non-event because of doctor-friendly laws.  This is no way to run a legal system.  While doctors should not be subject to frivolous malpractice suits, they should be called to task when they make mistakes that kill their patients.

Posted in Autopsy, disclosure of medical mistakes, Doctors, Finding a Medical Malpractice Lawyer, heart attack, Lawsuits, medical errors, Medical Malpractice, medical malpractice claims, medical mistakes, Medical Negligence, tort reform |

Your Health Care Costs Too Much

January 13, 2020

If you live in the United States, chances are you pay more for your health care and medications than anyone else in the world.  This would be bad enough if we were getting the best health care in the world but we are not.  We are just getting fleeced by the health care industry and the health insurance companies.

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Every couple of years, the International Federation of Health Plans looks at the prices private insurance companies pay for common medical procedures in various countries in the world.  They then report on their findings.  The most recent report covers costs in 2015.  Here is a link to a New York Times story on the report and on health care costs in the United States in general.

The chief takeaway is that, no matter what the procedure, it almost always costs the most in the United States.  Not only are we almost always the most expensive, we are the most expensive by a long way.  The reasons for this disparity are many but there is a common theme:  the health care industry is rich and powerful and our politicians are unwilling/afraid to do anything to reduce their profits.  When I talk about the health care industry, I am talking about doctors, hospitals and big pharma.  They and the many companies that supply them are responsible for our excessive prices.

As disappointing as these figures are, they are even worse than they seem as the study focuses on prices paid by private insurance companies only.  In those countries in which there is government insurance or in which the government provides health care, the disparity between what we pay and what the rest of the world pays is even greater.

The comparisons are even more dismal when you take into account the fact that, unlike the rest of the developed world, we in the United States have a large number of people with either no health insurance or bad insurance with high deductibles and large co-pays.  This means that many of our citizens are stuck with directly paying the excessive charges imposed by our health care industry.

Don’t get to comfortable if you have insurance and think this isn’t really your problem.  It is.  The excessive charges imposed by our health care industry drive up the cost of health insurance for everyone.  It is a fact that across the board, insureds are being asked to bear an increasing portion of the cost of health care either in the form of being required to pay a larger portion of the premium or in the form of increased deductibles and co-pays or both.

I have said this over and over:  This is the richest country in the world.  No one living here should die because they cannot afford health care.  As hard as it will be, it is time to replace our current legislators and representatives in Washington with men and women who will pass the laws necessary to make health care affordable and available to all citizens.  Vote early and vote often.

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

The Sad State of Our Medical Malpractice Laws

January 06, 2020

The other day I spoke to another person who was devastated by the death of a loved one due to medical malpractice.  The woman to whom I spoke was a nurse herself and very knowledgeable about the medical care her mother received and how it differed from the care she should have received.  She was understandably disappointed when I told her that I would not be able to bring a medical malpractice suit for her mother’s death.  She knew her mother was the victim of malpractice and could not understand how the hospital was going to be able to get away with causing her mother’s death.  Sadly, this is not an uncommon story.

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Despite the claims made in the publicity campaigns waged by the doctors and their insurers, the courts are not flooded with frivolous medical malpractice claims.  To the contrary, many victims of clear medical malpractice are not able to get justice.  They either cannot find a lawyer to represent them or, when they do, cannot persuade a jury to find in their favor.  Accordingly, the number of malpractice filings have been dropping nationwide for decades.  Why is this the case?  The answer is complicated.

In the first place, the doctors and their insurers have been very successful with their publicity campaigns.  People admire and respect doctors.  They are often civic leaders.  They do a lot of good and most are caring people trying to do the right thing.  So when doctors say that they are the victims of frivolous claims and are being driven out of business by those claims, people listen and believe.  It affects their decision making when they are called to jury duty.

Not content just to try and influence public opinion, doctors and their insurers have spent a lot of money lobbying Congress and state legislatures to enact laws limiting the ability of patients and their families to bring lawsuits.  They call their efforts “tort reform,” as though there is a problem that they are trying to fix.  While they have not been successful in getting national laws limiting malpractice suits, they have been much more successful on the local level.

In many states, the legislatures have imposed caps on non-economic damages.  This means that if a young mother, who was not employed outside the home, is killed by medical malpractice, the amount of money her husband and minor children can recover is limited to the amount of the state cap.  These caps were never generous to begin with and, to make matters worse, have usually not been raised since they were initially imposed, despite the effects of inflation.

In some states, like Arizona, the state constitution prevents the imposition of caps or, as in some other states, the state Supreme Court has found them to be unconstitutional.  Even in those states, however, the legislatures have found ways to make it difficult for those injured by medical malpractice to be successful in court.  In Arizona, for example, the legislature has passed a number of laws that apply only to medical malpractice cases.  Each of them has had its desired effect of either making it more expensive for a patient to bring suit or reducing the amount the patient can recover, if they do bring suit and win.

So when I speak to bereaved family members like the nurse who lost her mother, I know that any case I file on her behalf will be expensive.  I will have to locate and retain expert witnesses, often physicians themselves, to testify prior to trial and at trial.  I will have to pay these experts out of my own pocket and only get reimbursed, if I am successful in getting either a settlement or a verdict at trial.  The total of the checks I write is almost never less than $50,000 and can be substantially more than that.

In addition to reimbursing myself, if I am successful, I have to charge a fee.  When you add the fee to the reimbursement for the checks I have written, you can see that a case in which the jury is not likely to award more than $300,000 just doesn’t make economic sense.  Patients whose injuries are not tragic and permanent are pretty much excluded from participation in the system.  That is wrong.

There is nothing more tragic or permanent than death but I was still not able to take this nurse’s case.  Why not?  The answer is that juries do not want to believe that doctors and hospitals kill and injure people.  Even when the malpractice is clear, juries often turn away.  For that reason, defendants in medical malpractice cases win 85% to 90% of all cases that go to trial across the country.  Only in those cases in which the evidence of malpractice is crystal clear and the injuries tragic, is there even a remote chance the patient will win.  In the case of the nurse who lost her mother, the evidence of malpractice was not clear enough and her mother was an older person.  Juries just expect older Americans to have lots of health problems and further expect that many of them will die from those problems.  Juries are reluctant to hold doctors and hospitals responsible when older patients with lots of health care problems die.

There has to be a better way.  There should be a system in place that fairly assesses the facts and compensates those who have been the victims of medical malpractice.  As it is now, the system works for pretty much everyone but the patient.  If there is anything more backwards than that, I don’t know what it is.

 

Posted in Arizona Supreme Court, Doctors, Hospital Negligence, Hospitals, Lawsuits, Malpractice caps, Malpractice costs, medical errors, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice damages caps, medical malpractice lawsuits, medical malpractice lawyers, medical mistakes, Medical Negligence, medical negligence lawyers, Nurses, plaintiff, tort reform, trial, Verdicts |

Hospital Secrecy

December 30, 2019

Hospitals are big business.  While many may be non-profit corporations, they make lots and lots of money and they definitely do not want you to know how they do it or how to protect yourself from being overcharged.

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Hospitals chains, especially in urban areas, are getting bigger and bigger.  They are not just adding new hospitals.  Often, they are buying the practices of local doctors and making the doctors employees of the hospital chain.  As I have written recently, that relationship encourages/requires doctors to send their patients to the hospital chain that employs them and creates conflicts of interest for the doctors.

Here in Arizona, Banner Health System is the largest employer in the state and one of the largest in the nation with over 55,000 employees.  It operates 28 hospitals in 6 states.  In 2017, it reported revenues of $7.8 billion.  That is a lot of money.

Research has shown that in a locality where there have been hospital mergers, the cost of hospital care increases between 6 and 18%.  These mergers usually reduce operating costs for the hospitals involved, but they pocket those savings and increase charges to boot.  If your city, like Phoenix, has only a few hospital chains providing care, your costs are likely to be higher than they would be if there were more competition.

Unsurprisingly, hospitals don’t want the public to know how they price their services or even what those charges are.  Without information about what charges are or how they are computed, patients can’t make informed choices about where to get their care.  To make matters worse, hospitals usually enter into secret agreements with health insurance companies which provide discounts to patients insured by those companies.  So even if you know what the published price is for a procedure, unless you know what is the discount given to your insurer, you can’t know how much you will have to pay to satisfy your deductible or as a co-pay.

Prices for almost identical services vary widely, not just between cities but between hospitals within the same area.  Not only do they vary widely between hospitals, some hospitals charge different amounts for the same procedure depending on who the patient is and what insurance he or she has.  Here is a link to an NPR story on the subject.

The Federal government has been trying to some time to bring more transparency to hospital pricing but the industry has fought tooth and nail to keep its profit making deals hidden from the public.  According to a recent article in the Wall Street Journal, the American Hospital Association, the trade group representing hospital chains across the United States, has filed suit to prevent enforcement of rules requiring hospitals to make public the secret prices they negotiate with health insurance companies.  This suit comes after the hospital industry spent close to $20 million on lobbying Congress and the administration to prevent the the rules from being enacted in the first place.  Make no mistake; there is big money involved here.

The hospital sector had annual revenues in excess of $1 trillion last year.  As the Wall Street Journal reports, it is a major cause of soaring health care costs in the United States.  It is at least time patients were allowed to know what hospitals charge for their services.  You would never allow a car dealer to get away with refusing to tell you what the car you are buying costs.  Why would you let the hospital get away with it?  Insist on transparency.  It is a first step, but only a first step, in getting our runaway health care spending under control.

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

Physician Conflicts of Interest

December 23, 2019

One of the very first of the ethical rules promulgated by the American Medical Association requires doctors to place the welfare of the patient ahead of the doctor’s own self-interest or obligations to others.  As life grows ever more complicated, doctors are under greater and greater pressure to violate this most important of rules.

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Physician conflicts of interest can arise in many ways.  The cartoon above illustrates just one of the conflicts that can arise based on a doctor’s relationship with a pharmaceutical company.  Pharmaceutical companies employ virtual armies of representatives whose sole job it is to develop relationships with doctors who might prescribe their company’s drugs.  These representatives regularly visit doctors’ offices.  They leave behind product samples, knik-knaks and gifts of value.  They sponsor lunches, brunches, and breakfasts.  They take doctors out to dinner.  They don’t do these things out of the goodness of their hearts.  They expect and hope that these things will cause the doctor to look favorably on their company and its products.

Sometimes, the transaction is even more rewarding for the doctor.  Pharmaceutical and device companies sometimes hire doctors to give talks at conferences in an attempt to sway other doctors.  They hire doctors to give them advice about their products.  They commission doctors to participate in studies funded by the drug or device company.  Although doctors who write articles following such studies are supposed to disclose any conflicts of interest, not all do so.  Drug and device companies spend big money on these activities in the hope that they will affect the way doctors treat their patients and improve their bottom line.

Doctors may own laboratories and send their patients to those labs for testing.  Or they may do some of the testing in their own offices and charge the patients for it.  Or the doctor may own a company that supplies surgical parts and supplies he or she will use on their patients.   When a doctor can make money by ordering a test or using a product, there is an incentive to put the doctor’s self-interest ahead of the welfare of the patient.

More and more doctors are becoming employees of hospital systems.  While their contracts of employment may not specifically require them to send their patients to the hospital that employs them or to refer their patients to other doctors who work for the same hospital system, everyone understands that is what is expected of them.  Sometimes the doctor’s compensation is based upon how much revenue the doctor generates for the hospital system.  Sometimes the doctor is given a review of his or her economic value to the hospital system and it is clear to the doctor that continued employment and raises are dependent upon generating more revenue for the hospital.

Whether or not it is in the best interest of the patient to be admitted to the hospital that employs the doctor or to be referred to other hospital system doctors, there is a strong incentive for the doctor to do these things.  This is the very definition of a conflict of interest.

The medical profession talks a good game.  It reverently states that the interests of the patient come first while turning a blind eye to all of the ways in which doctors violate that rule on a daily basis.  Don’t expect that your doctor is going to put your interests first.  She may but she may not.  You can’t count on the medical profession living up to its self-proclaimed ethical standards.  Often, these are just window dressing.  No one is going to protect you out there.  It is up to you to be informed about your condition and the alternatives available to you.  It is up to you to ask questions.  It is up to you, if you want the best care.

Posted in Doctors, drug companies, Health Care Costs, Hospitals, Informed Consent, Medical Devices, medical ethics, medical research, PODS, Secrecy |

The Malpracticing Surgeon

December 16, 2019

While it often takes a while, state medical boards usually catch up with surgeons who are so incompetent they keep killing and seriously injuring their patients.  Unfortunately, it takes a pretty bad record to get a doctor suspended or to get his or her license revoked for repeated instances of malpractice.  When that does finally happen, many of the doctors want to continue to do surgery.  They need a place to go.  When they can’t find another job or state that will take them, the Indian Health Service often accommodates them.

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The Wall Street Journal does a wonderful job with its coverage of health issues.  Recently, it published a thorough and well-researched piece on the frequency with which the Indian Health Service (“IHS”) hires surgeons and other physicians with questionable disciplinary records.  Many of the doctors and surgeons with bad records who were hired lived up to their reputations and continued to malpractice, much to the detriment of the native peoples they were hired to care for.

There is no question that the IHS faces challenges when it comes to hiring doctors.  In the first place, it does not pay well.  As an agency of the federal government, it is limited in what it can offer and will not often be able to match the market rates of the big cities.  Second, its patients often live on reservations which are located in isolated areas.  When the government set up the reservations, it was not with the idea of giving the native peoples valuable land in good locations.  Poverty, disease, alcoholism and diabetes are only a few of the conditions which regularly exist on the reservations and which make life there even more problematic.

As almost any small town hospital director will tell you, it is difficult to get good doctors to come live and work in small towns.  While there are some who love to live in small towns, many more love the big city with its many cultural offerings.  Life on an Indian reservation can be even more isolated than that in many small towns.  The bottom line is that it is difficult for the IHS to find qualified, competent doctors to fill its many openings.  While the IHS itself will admit that it should never take an incompetent surgeon, no matter how grave the need, many of these doctors end up being hired due to IHS employees ignoring their records or just plain sloppiness in failing to do even the most basic check on their records and licenses.

The Journal article recounts the cases of just a few of the troubled surgeons hired by the IHS.  In most cases, they continued to practice on the reservations for years before even the IHS couldn’t keep them any longer.  While they were practicing, however, patients were injured, patients died and lives were ruined due to medical malpractice.

Native peoples deserve better.  Just because a person is poor, whether Native American or not, that person deserves to receive competent health care.  We are the richest nation in the world but there is a huge gap between the quality of the health care enjoyed by the wealthy and that “enjoyed” by those in economic distress.  It shouldn’t be that way.

Posted in Doctors, Lawsuits, medical errors, medical mistakes, Medical Negligence, Secrecy, Surgical Errors |

Misdiagnosis News.

December 09, 2019

I have written often about misdiagnosis.  See here and here, for example.  It is a frequent subject because it is the most common form of medical malpractice.  Some new research suggests that the most damaging misdiagnoses occur in a relatively small number of settings and disproportionately involve only a few disease types.

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While almost everyone agrees misdiagnosis is a huge problem that causes many injuries and deaths, they disagree over the magnitude of the problem.  Estimates vary from 40,000 injuries and deaths per year due to misdiagnosis to 4,000,000.  That is a pretty big range.  Research and statistics suggest the actual number of injuries and deaths is much closer to 4,000,000 than 40,000.

The new research into misdiagnosis appears in a recent issue of the peer-reviewed medical journal Diagnosis.  The authors are teams out of Johns Hopkins University School of Medicine and CRICO, a major national medical malpractice insurance company.  The researchers used 10 years of closed malpractice claims files for their source material.  They hope the results will lead to better training in how to avoid the most common diagnostic errors.

The leading cause by far of serious injuries and death due to misdiagnosis was what are called clinical judgment failures.  These accounted for almost 85% of all of the misdiagnosis claims.  Clinical judgment failure is what doctors call it when a doctor makes a mistake in doing things like failing or delaying in ordering tests, failing to put everything together to make sure all important information has been considered, misinterpreting test results, failing to consider all possible causes for the patient’s problems, and failing to get a timely consultation.

The researchers also discovered that most serious injuries and deaths due to misdiagnosis were almost all in what are called “The Big Three”: (1) vascular events, such as stroke; (2) infections, such as sepsis; and (3) cancer.

The diagnostic errors involving vascular events and infections almost always occurred in an emergency department or urgent care setting or during an inpatient hospital admission.  By contrast, the errors in cancer diagnosis almost always occurred over the course of a number of office or outpatient visits, where there was lots of opportunity for the doctor or staff to miss things.

All of this leads the researchers to conclude that many lives could be saved by improving decision making in just a few relatively high-risk conditions in just a few clinical settings.

The bottom line here is that doctors don’t know as much as you might think.  Even when they are very knowledgeable, which is often, they are subject to the same type of mistakes in thinking as the rest of us.  They often fixate on the first condition that comes to their mind, instead of making a mental list of all the possible illnesses or conditions that match the given information.  As I have heard malpractice defense lawyers tell juries many times, “When you hear hoofbeats, you think horses, not zebras.”  The problem, of course, is that sometimes the patient has that unusual “zebra” illness or condition and reasonably expects the doctor to figure it out.  Your chance of being misdiagnosed goes way up, if you have an unusual presentation or an unusual condition.

Ask for second opinions.  Use the internet to educate yourself so you can have a better idea of what questions to ask your doctor.  If the doctor orders medication and it does not appear to be working, don’t assume that it is the fault of the medication.  It may be the doctor was mistaken about what is wrong with you.  Be polite but aggressive in pushing to get the best diagnosis.  Ask whether this could be anything else.  Ask whether the diagnosis accounts for all of your symptoms and test results.  Ask whether there are any other tests which might be useful.  Be especially careful, if you think your condition may be one of the Big Three.

Do all these things and you will have improved your chances of getting an accurate diagnosis.

 

Posted in blood infections, Cancer, Doctors, health, Infection, Lung Cancer, medical errors, Medical Malpractice, medical malpractice claims, medical mistakes, Medical Negligence, Misdiagnosis, Sepsis, Stroke |

Defensive Medicine Hurts Patients in Many Ways

December 02, 2019

Defensive medicine is the name given to actions taken by doctors, not for the primary benefit of their patients, but to reduce the chance they will be sued for medical malpractice.  It is unethical and almost always detrimental to the patient.

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The Hippocratic Oath originated in ancient Greece.  Modern versions of it are still used by today’s doctors.  One of its main tenets, subscribed to by all, is that the doctor will not put his or her interests ahead of those of the patient.  To do otherwise is to act unethically but that is exactly what defensive medicine does and many doctors admit they practice it.

Defensive medicine arises out of what doctors who practice it claim is a legitimate fear of being sued.  This is a fear they have largely manufactured for themselves.  They have been drinking their own Kool-Aid.

For many years, doctors, hospitals and their insurance companies have been trying to get laws passed to give themselves special benefits not available to you or me.  They want laws that prevent or limit suits against them when they make mistakes and injure patients.  To justify this special treatment, they claim that they are special and deserving of special treatment.  They also claim, however, that they are the victims of a flood of frivolous lawsuits.  This is the Kool-Aid they sell to gullible state and national legislators.

It is not true that doctors are subject to a barrage of frivolous lawsuits.  Very few doctors ever get sued.  When they do get sued, juries are very protective of them.  Doctors win about 85% of all cases that go to trial throughout the United States.  Furthermore, the number of medical malpractice claims has been dropping for years.  Despite the increase in the population in the United States over the last 30 years, the number of paid malpractice claims has been declining over that time.  Today the annual number of paid malpractice claims is just over half of what is was in 1990.  There is no tsunami of malpractice cases and, when sued, doctors do very, very well in the courtroom.  They don’t need to act unethically to avoid being successfully sued.

Defensive medicine takes two forms.  In the first, the doctor orders tests the doctor does not believe the patient needs.  He or she says they order these tests so, if things go badly, no one will be able to accuse them of not ordering all possible tests.  Unnecessary testing is bad for patients.  In the first place, some tests are dangerous or at least pose risks to patients.   X-rays expose patients to radiation.  Blood tests have a risk of infection.  All tests have what are called “false positives,” which are positive results even when the patient does not have the condition being tested for.  False positives usually result in even more testing or in actual treatment for a condition the patient does not have.  In the second place, someone has to pay for these unnecessary tests.  Depending on the patient’s insurance status, that may be an insurance company or the patient or some combination of the two of them.  Regardless of who pays, this is health care money that should have gone to necessary testing and treatment and not be wasted protecting the doctor.

The second form of defensive medicine is more harmful to patients than the first.  In the second form, doctors avoid patients with complicated or advanced diseases so they won’t get sued if the patient dies or does not do well.  I have seen this often in my practice.  When a patient has been the victim of malpractice but needs additional treatment, it can be very difficult to find a doctor who will be willing to treat the patient. They see the malpractice and can see the likelihood of a suit and don’t want any part of the care of the patient.  Some of my clients have had to go out of state to get necessary treatment because no Arizona doctor would touch them.

Patients deserve doctors who think of the patient first and themselves second.  When you go to the doctor, say a prayer that you get an ethical doctor who places the interests of the patient first.

Posted in Defensive Medicine, Doctors, Health Care Costs, Health Insurers, Hospitals, Lawsuits, Malpractice caps, Medical Costs, medical ethics, Medical Malpractice, medical mistakes, tort reform, trial |

A New Problem For Hospitals – And Patients

November 25, 2019

When you go to the hospital for an operation, you expect that the hospital will have the surgical instruments and medical devices the surgeon will need to perform the procedure.  With rare exceptions, that has not been a problem in the past.  That is about to change.

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We all know what surgical instruments are.  We often forget, however, how many medical devices are needed for even the simplest of surgeries.  Think of breathing tubes, IV sets, disposable catheters, pads, sponges, needles, prosthetic implants, trays and the like.  The list goes on and on.

Before they can be used on a patient, a surgical instrument or device must be sterilized.  Fully half of all surgical instruments and devices sold in the United States are sterilized through the use of a gas called ethylene oxide.  The gas is a dangerous one to people as well as to the kinds of microbes and germs which can cause illness if left on surgical instruments or devices.  There are only a few factories that use the gas to sterilize instruments and devices before they are sold to hospitals.  Due to environmental concerns arising out of high levels of the gas being released into the atmosphere, the Illinois EPA has closed one plant already.  That plant has announced that it will not reopen.  Another plant, this one in Georgia, is temporarily closed while it remodels to reduce the risk of gas escaping into the environment.  These two plants processed a substantial percentage of all the sterile instruments, devices and supplies sold in the United States.

There has already been a temporary shortage of pediatric breathing tubes.  The FDA has been monitoring the situation and working with manufacturers and suppliers.  Now it is warning hospitals and the public of possible shortages of a wide range of instruments, devices and supplies.  It is looking at alternative methods of sterilization and even the possibility of importing sterile instruments and devices into the United States if manufacturers are not able to meet demand.

Keep your fingers crossed that when you need surgery, the instruments and devices will be available.  If you are facing an elective surgery, it is probably a good idea to inquire about any existing or expected shortages.  You may even have to consider going to another hospital, if it has the equipment your surgeon needs.

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