53 posts categorized "Medical Malpractice"

Dr. Wachter discusses a major cause of medical malpractice

It's actually a variation of the "safety is too expensive" business model often discussed at TortDeform:

When my kids were little, they loved going to the International House of Pancakes (IHOP), particularly the one about 15 minutes from my house and a few minutes from San Francisco International Airport (SFO). I personally find the food at IHOP a bit gross, but being a dutiful dad, we would trudge to the IHOP nearly every weekend.
Unfortunately, on most weekend mornings, the line extended 50 feet into the parking lot. Seeing that, I’d push the kids to move on to a decent place for a civilized breakfast. “No, dad, we wanna stay. And the line really moves fast!”
They were right. No matter how long the line, it seemed like we were seated in a matter of minutes, barely enough time to watch more than a couple of 747s fly overhead on their way to Hawaii. How did they manage this kind of throughput?
Once we sat down in the booth, the answer became clear. We were handed our menus within a few seconds. Less than a minute later, a waitress asked for our order. The food was delivered within 6 or 7 minutes. When I paused to catch my breath, the waitress was there. “Is there anything else I can get you this morning?", she asked helpfully. Any hesitation... and the check instantly appeared, to be settled at the front register. Another family was seated the nanosecond we rose from our seats.

The point is that a business like IHOP – with its relatively low profit margin per customer – is all about production: everything is designed to get you in and out promptly. But production carries a cost: with haste sometimes come mistakes. I remember many times when our cute little syrup well was filled with four boysenberry syrups, rather than the appropriate assortment (maple, strawberry, blueberry, and boysenberry). But that seemed a small price to pay for speed.
In other words, in the ever-present battle between production and reliably getting it right, production wins at the IHOP.
As I mentioned, the South San Francisco IHOP is on the flight path of San Francisco International Airport. The tension between production and safety is particularly acute at SFO, since its two main runways are 738 feet apart (the picture at left is an actual SFO landing, with a bit of an optical illusion. But not much of one – the runways are really close).

The FAA has inviolable rules about throughput, designed to ensure that safety is defended at all costs. For example, when the fog rolls in and the cloud cover falls to 3000 feet (which happens all the time during the summer), one of the two runways is closed, not only gumming up SFO's works but those of the entire US air traffic control system. And, whatever the weather, planes cannot land more often than one per minute.

In other words, in the aviation industry, in the battle between production and safety, safety wins. And aviation's remarkable safety record is the result.

I’ve used this IHOP/SFO metaphor many times in speeches to hospital staff and leaders over the past few years, and usually end it by asking audiences: “In its approach to production and safety, does your hospital look more like the IHOP or SFO?” Although things have gotten a bit better over the last couple of years, the answers still run about 10:1 in favor of the IHOP. (Emphasis added.)

Source: Wachter's World : Another Case of Wrong Site Surgery: Are We Averting Our Eyes From Some of the Root Causes?

Too often, the debate over medical malpractice is over how to hold doctors accountable.  Wouldn't it be nice if we all worked together to figure out how to reduce errors?

Of course members of the public shouldn't be able to file grievances against surgeons! Duh!

Because that might mean doctors would have to discipline themselves!  Check out this guy's story:

I submitted a request to the American Academy of Orthopedic Surgeons that a member or fellow file a grievance against Chris Dangles, M.D. As a member of the public, I cannot file a grievance.

Source: Advocate Yourself: My request to the AAOS

Did "reform" rhetoric result in an improper jury verdict?

Or maybe the plaintiffs' attorneys didn't explain that money is the only punishment the jury can dole out:

Pittsburgh attorneys are seeking a new trial in a medical malpractice case in which a jury found a hospital negligent in a patient's death but awarded $0 survival damages because the jury said "no amount of damages will adequately punish" the hospital.

The case was tried in Allegheny County Common Pleas Court before a 12-member jury in May.

Michael Rettger, 24, died after his brain abscess allegedly was not treated in time by the staff at the Pittsburgh hospital he was admitted to, according to the plaintiffs' pretrial statement.

The jury found in its May 23 verdict that the University of Pittsburgh Medical Center at Shadyside's care of Rettger fell below the standard of medical care and was a factual cause of harm to Rettger, according to the jury statement attached to the verdict form. The jury awarded $2.5 million in Wrongful Death Act damages, but awarded zero dollars in Survival Act damages.

"After eight days of testimony in the case of Rettger v. UPMC Shadyside, it is the unanimous opinion of the jury that no amount of damages will adequately punish UPMC," the jury statement said. "It is our belief that UPMC Shadyside's policies, culture, and lack of competent supervision resulted in the death of Michael Rettger."

Source: Law.com - Med-Mal Jury Says 'No Amount' Will Adequately Punish Hospital

Imagine this in a criminal context: "No amount of jail time will adequately punish the defendant, so he gets none."  Doesn't work, does it?

Temporary Tattoo Medmal Lawsuit

She may be overreacting a bit, depending upon how far below the panty line we're talking about... anyone got a copy of the lawsuit?  

In a lawsuit filed yesterday, a Camden County woman accused her orthopedic surgeon of "rubbing a temporary tattoo of a red rose" on her belly while she was under anesthesia.

The patient discovered the tattoo below the panty line the next morning, when her husband was helping her get dressed to go home after the operation for a herniated disc, her attorney, Gregg A. Shivers, said in a phone interview yesterday.

"She was extremely emotionally upset by it," said Shivers. The suit, filed on behalf of Elizabeth Mateo in Camden County Superior Court, seeks punitive and compensatory damages from Steven Kirshner, a board-certified orthopedic surgeon with offices in Marlton and Lumberton, both in Burlington County.

Kirshner does not deny placing the tattoo - and has left washable marks on patients before to improve their spirits, his lawyer, Robert Agre of Haddonfield, said last night. He said none has complained.

"What's offensive about this complaint is that it suggests something he did was intended to be prurient, and nothing could be further from the truth," said Agre. "It was intended just to make the patient feel better."

Source: Surgeon sued for giving anesthetized patient temporary tattoo | Philadelphia Inquirer | 07/16/2008

But the important thing is that I beat Overlawyered to the punch on this one. 

Defensive Medicine: Euphemism for Insurance Fraud

I read this article below and thought that the doctors should have just claimed they were practicing defensive medicine:

LOS ANGELES (AP) ― A Southern California doctor was sentenced to 10 years in federal prison Monday for billing health insurance companies more than $9 million in unnecessary surgical procedures, prosecutors said.

William Hampton, 53, of Cypress was also ordered to pay nearly $2.5 million in restitution to defrauded health insurance companies by U.S. District Judge Audrey Collins, who called his actions a "crime of greed."
Hampton was convicted last November of health care fraud. He performed more than 400 unnecessary procedures at several medical clinics and submitted fraudulent bills to insurance companies, said U.S. attorney's spokesman Thom Mrozek.

Source: cbs13.com - Doctor gets 10 years in 'rent-a-patient' scam

"Defensive medicine" is the phrase coined to describe when a doctor orders unnecessary medical tests or procedures out of fear of malpractice litigation.  By demonizing trial lawyers, doctors have managed to make portray themselves as victims when they're actually committing insurance fraud.   Is it OK to rip off insurance companies and break the law because you're afraid of being sued?  I don't think so.  And I suspect many doctors don't think so, either.  Perhaps that's why the "reformers" can't give us a good figure on how much is actually spent on defensive medicine; doctors don't want to just come out and admit they've committed fraud. 

Med Mal Lawyers: You might want to check to see if the doctor used this program to figure out your client’s prescription

On the one hand, this sounds like a really cool product: Figure out dosing/interactions/etc. from your BlackBerry or other mobile device:

Physicians across the country can now receive more than emails and calls on their BlackBerry® smartphone; they can access important clinical information that can help reduce medical errors and improve quality of care. Epocrates, Inc. announced today the availability of the Epocrates Rx free drug and formulary reference guide for BlackBerry smartphones from Research In Motion (RIM) (Nasdaq: RIMM; TSX:RIM).

“BlackBerry devices are issued to many physicians, managers and clinical pharmacists at MedStar Health. This provided a resource challenge since we also encourage Epocrates usage for all clinicians, causing several physicians to carry two devices, myself included,” said Dr. Peter Basch, MedStar medical director of ambulatory clinical systems. “I am delighted I can now have the drug reference on my BlackBerry, which will definitely lighten my load and help productivity.”

In research studies, physicians have reported that Epocrates’ medical software reduces medical errors and saves time by enabling clinicians to look-up important drug information. The Epocrates Rx guide enables clinicians to access drug information for checking drug dosing, interactions, pricing or insurance coverage. The free drug reference guide can be conveniently installed over-the-air on to a BlackBerry smartphone, giving medical professionals the ability to receive clinical updates.

Source: Prescription for Success: Epocrates for BlackBerry | Epocrates

On the other hand, the service could lead to some scary prescription errors if Epocrates doesn’t keep their stuff updated.

The Defensive CT Scan Hoax

A very common claim by the "reform" movement is that doctors often run unnecessary tests because they're afraid of being sued.  CT Scans are one of the tests "reformers" often claim are abused.  The New York Times ran an article explaining that yes, CT Scans often are abused, but not because of "defensive medicine."  

A group of cardiologists recently had a proposition for Dr. Andrew Rosenblatt, who runs a busy heart clinic in San Francisco: Would he join them in buying a CT scanner, a $1 million machine that produces detailed images of the heart

...

Dr. Rosenblatt worried that he and other doctors in his clinic would feel pressure to give scans to people who might not need them in order to pay for the equipment, which uses a series of X-rays to produce a composite picture of a beating heart.

“If you have ownership of the machine,” he later recalled, “you’re going to want to utilize the machine.” He said no to the offer.

Already, more than 1,000 hospitals and an estimated 100 private cardiology practices own or lease the $1 million CT scanners, which can be used for the angiograms and for other imaging procedures. Once they have made that investment, doctors and hospitals have every incentive to use the machines as often as feasible. To pay off a scanner, doctors need to conduct about 3,000 tests, industry consultants say.

Fees from imaging have become a significant part of cardiologists’ income — accounting for half or more of the $400,000 or so that cardiologists typically make in this country, said Jean M. Mitchell, an economist at Georgetown University who studies the way financial incentives influence doctors.

...

CareCore National, a Bluffton, S.C., company that reviews treatment and test requests for health insurers, has found that when doctors request a CT angiogram for a patient, they also frequently ask for a nuclear stress test.

“We’re seeing layering of tests on top of each other,” said Dr. Russell Amico, a CareCore executive. His company denies as many as 70 percent of the CT scans requested, a much higher rate of rejection than for other kinds of tests his company reviews.

Source: The Evidence Gap - Weighing the Costs of a CT Scan’s Look Inside the Heart - Series - NYTimes.com

"Reformers" are constantly accusing lawyers of filing frivolous lawsuits just to make a buck.  Is it such a stretch to think that some doctors are running frivolous tests for exactly the same reason?  Or are doctors immune from the desire to make money?

Cross Posted to Tort Deform

Why Should Taxpayers Have to Pay for the Las Vegas Hepatitis Mess?

Something needs to be done to sort this situation out and make sure that everyone is getting the tests and treatments they need.  But why should *I* have to pay for it?

WASHINGTON -- Southern Nevada health officials may face a financial squeeze after Congress failed to come through with $5 million to defray costs of responding to the hepatitis C health crisis in Las Vegas, officials said Friday.

Money that had been earmarked for the Southern Nevada Health District was stripped from an emergency spending bill before federal lawmakers completed their work on Thursday and sent the bill to the White House.

Source: ReviewJournal.com - News - HEALTH CRISIS: Aid from Congress isn't coming

Shouldn't the "doctors" and their insurers have to pay these costs? 

Texas: No better place to abuse the mentally disabled.

You know those great malpractice reforms that Texas enacted to protect doctors?  

When I talk with personal injury lawyers who practice outside Texas, they sometimes think I'm exaggerating when I tell them how hard it is for injured claimants to win a case here. No, I'm not exaggerating. My evidence is a decision rendered today by the Court of Appeals, Fifth District of Texas at Dallas.

....

So we have a situation where a severely retarded person is scalded and beaten by an employee who is not a nurse or doctor, the employee pleads guilty to a crime and admits scalding and beating the retarded plaintiff, but the court holds that a doctor's testimony is still required to prove that nursing home employees should not in the normal course of business scald and beat residents, and that scalding and beating will indeed hurt. Incredible.

Source: Personal Injury and Social Security Disability Blog: Yes, It Really IS This Bad In Texas

As I've said before, tort reform is a scam that punishes people to protect profits.  There's no reason whatsoever that a medical expert should be required to testify in a case such as this.  

Cross-posted to TortDeform 

But that still doesn't explain Texas

Walter over at Point of Law mentioned a paper by Professor Martin Grace about why insurance rates don't drop when tort reform is enacted.  From Professor Grace's own site:

How Tort Reform Affects Insurance Markets by Martin F. Grace, Robinson College of Business, Georgia State University & J. Tyler Leverty, Henry B. Tippie College of Business-University of Iowa


Consumer advocates are always saying things like tort reform just benefits insurance companies and we know this because premiums never fall after tort reform (see here for example). The paper notes that since 1985 some 40 out of 148 tort reforms are judicially overturned. Rational insurers should price liability insurance based on the likelihood that tort reform will "stick" rather than merely on the presence of a law which has some probability of being declared unconstitutional. The paper replicates earlier work which suggests premiums do not fall and then shows that if one controls for the likelihood of the reforms' survival, that for the most part loss are lower, premiums, are lower, loss volatility is lower, and more firms enter the liability insurance lines when the reform is expected to stick. Also, some guy in the audience accused us of reverse engineering the result. I didn't get mad about it until about two hours later. So there were no snippy ripostes to report.

RiskProf : Intersesting Papers

I haven't read the paper yet, so this is more of a rhetorical question that the paper may or may not address.  Texas wrote its 2004 tort reform into the constitution - there's no chance it won't stick.  So why is this the case:

Medical Malpractice Payouts dropped from the 37th lowest in the country in 2003 to 47th place in 2006 . According to the National Practitioner Data Bank, the average Texas medical malpractice payout was $169,884 in 2006. The national average payout that year was $308,706.

Insurance premiums did drop for Texas doctors. According to TDI, the state’s largest insurer of doctors, The Texas Medical Liability Trust, dropped its rates 31% between 2004 and 2008, but that's after the rates had jumped up 148 percent between 1999 and 2003.  Insurance rates have come down, but not by nearly as much as they had previously increased.

MyFox Dallas | News Station Investigation: Tort Reform Benefits Questioned

Could it be that insurers aren't passing on all the savings from tort reform to doctors, but are instead keeping some of the savings as profits?  Or could it be that other factors, unrelated to the tort system but blamed on it have been increasing insurer overhead?  I suspect a bit of both.

Necessary Evil

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