WhiteCoat

Healthcare Update — 03-10-2010

If you like this, you’ll also like the satellite edition of this week’s Healthcare Update with more links over at ER Stories.
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Dirtbag emergency department technician steals credit cards from plane crash victim’s wallet while other personnel try to save the man’s life. Then he buys himself some Armani clothes using the patient’s credit cards while the patient is dying in the hospital.
HIPAA violations that occur for personal gain are punishable by up to $250,000 in fines and 10 years in prison. You’ll have to make an awful lot of license plates to buy an Armani shirt in the Big House, there dimwit.

Emergency nurses: They’re overworked, underpaid, they get spit on, kicked, threatened with scissors, and are the front line for disasters. You’re paying them less than surrounding hospitals. Now their benefits are getting cut. It’s a tough economy.

When there aren’t enough specialists willing to provide on-call services, patients often have to be transferred to other facilities for specialty care. In some cases, finding a hospital with a proper specialist that is willing to accept a patient in transfer can take a long time. This patient with aortic dissection wasn’t able to get timely transfer for surgical repair and a suffered cardiac arrest before the dissection was fixed. An emergency nurse noted that the receiving hospital refused to accept the patient because he had no insurance. Now the patient is blind and disabled. Who’s to blame? The system? The hospital? The physician? The patient? (thanks to Max Kennerly for the link)

Down side of going to help Hatian earthquake victims: If you get sick, you may not be able to get the health care you need. Condolences to the family of this 38 year old Seattle nurse who suffered a heart attack and died while helping Haiti’s injured.

You hospitals want to save money? Stop treating low income patients in your emergency department. After implementing its Urban Health Initiative, the University of Chicago doubles it operating profits for the year. During that same time period, ED visits dropped 22% and admits dropped 8.5%.
One problem, though. If more hospitals take this approach, where are the poor patients going to get the more “mundane” medical care?

Minnesota Governor Tim Pawlenty suggests that one way to cut health care costs is to change federal EMTALA laws so that “not every ER is required to treat everybody who comes in the door, even if they have a minor condition.”
He’s now getting flamed all over the internet. See here, here, and here for examples.
The thing is, EMTALA laws don’t require every “ER” to treat every patient. Hospital emergency departments are only required to provide a screening exam to everyone and to treat emergency medical conditions. Pawlenty already has his wish, and it’s not so radical, folks. To wit: (I saw that phrase in a lawsuit brief and am getting a kick out of using it, so leave me alone)

More hospital emergency departments are jumping on the “pay before you see the doctor” bandwagon. Burke Medical Center in Georgia stated that it was “following the trend of other facilities” when it implemented a policy of paying your insurance co-pay or $100 before receiving treatment. If you don’t pay and don’t have an emergency condition, you’ll be given a list of outpatient clinics where you can go for care.

In the same vein, do doctors in America turn away the uninsured? Absolutely. Read this HuffPo article to get a good idea of how and why. Good insights.

Nebraska physician advocates personal responsibility as one way to improve this country’s health care problems. I agree.

Do you know where your son spent the night?” College students go to emergency departments for intoxication and college calls parents to narc on them. “Sent to the hospital.” “Alcohol poisoning.” “Not the first violation.” The schools also call home every time a student is caught with alcohol. Some schools allege that “telling mommy” decreases the amount of binge drinking on campus, but isn’t there some type of privacy issue going on there, though? What’s next, a voice mail message at mom’s work if you don’t finish your carrots in the cafeteria?
If an administrator did this to me when I was in college, I would have followed him all over campus and followed him home, calling his mommy and his wife every time he rolled through a stop sign or looked at me crosseyed. Then I would have written an article to the school newspaper chronicling all of his transgressions. Then I would just randomly go to his office with a notebook, wait in the waiting area, sit there writing for 30 minutes at a time, then get up and leave. Can’t be too careful about those college administrators, you know.

Reserved parking for the four pronged canes to the left, leave your brown paper bags of medicine on the counter. A geriatric emergency department – the wave of the future or a flash in the pan? Will they remain viable with Medicare cuts to physician payments or will hospitals use them as a loss leader to draw in patients for more profitable procedures?

58 Responses to “Healthcare Update — 03-10-2010”

  1. Guiac says:

    I have to say I find it quite heartwarming that the ED physician who took care of Mr. Murray, made the diagnosis of aortic dissection(not a common one), and spent hours trying to transfer the patient to a hospital that could take care of him is being sued. Clearly he should have just clam-shelled him on a gurney and fixed the problem himself.

    • Max Kennerly says:

      Though I can’t speak to what the plaintiffs attorney was thinking, it does bear repeating here that, unless you filed suit within the statute of limitations, you are precluded from suit at all.

      I can almost guarantee you that, if they had not sued the ED physician, then the hospital which refused the transfer would claim that ED physician was responsibility for everything that happened. Thus, the plaintiff is essentially forced to bring everyone who could be liable into the case to prevent the defendant from “banging the empty chair,” i.e. arguing that all the damages are the fault of someone who is not present in the case to defend themselves.

  2. Big Bob says:

    That makes me feel much better about it Max… sue someone innocent just because thats how the system works, yah

    • Max Kennerly says:

      It’s unfortunate, but it’s what the hospitals and doctors demand: sue the other doctor, or we’ll blame them.

      Sometimes, the hospitals / doctors at fault stipulate to letting the other doctor out. Sometimes not.

    • Matt says:

      According to the hospital, they weren’t innocent. The hospital says they are at fault. If the person you think is responsible swears someone else is, and intends to put on evidence that person is at fault, would you be doing your duty not to make a claim against them as well?

      • Big Bob says:

        umm, where does it say that the hospital thinks the EM doctor is at fault?

        Max said that but that is speculation.

      • Matt says:

        It doesn’t. I was following the speculation that we’re all doing on the case. All we have is one short newspaper article.

  3. Big Bob says:

    sounds like the system is broken

    • Matt says:

      How so? It brings all the parties potentially responsible for an injury into the dispute, determine if they were at fault, and then apportions damages pursuant to the degree of fault, if any. That’s exactly what it’s designed to do.

      Now, if physicians want to lengthen the statute of limitations or modify it so that if they are subsequently blamed they can be brought into the case, we can do that and then not have to bring everyone in before it runs. Anyone up for extending the med mal statute of limitations to 4 years?

      Didn’t think so.

      • Big Bob says:

        “potentially” is nice vague word. Potentially I am going to marry a supermodel and vacation in France thirty weeks per year…but the reality may be very different. I know and you know that pan-suing the hospital and every doctor in the hospital when the cardiologist ruptures a vessel during a cath is not exactly just and was probably not how the system wa designed to run. Although maybe Jefferson was thinking, if something goes wrong just sue everyone.

      • Matt says:

        Any filed lawsuit is based on potential. It states X facts occurred and that the person bringing the claim BELIEVES that this person is responsible or may be responsible. The defendant is POTENTIALLY responsible. As you say, once all facts are in, the reality may be different.

        That’s the point of the case. To figure out if they are ACTUALLY responsible.

        And our system predates Jefferson by a good bit.

      • Big Bob says:

        Matt,

        You are one literal dude. There is no human feeling or moral component to your arguments. You are like a dictionary. “According to Websters, the definition of a trial is blah blah and therefore all other viewpoints must be false.” Stop repeating elementary school definitions and put some actual substance into what you say.

      • Matt says:

        Bob, I’m sorry you don’t like the answer. It’s a fact though. If you came to me and said something bad happened to you, you’d be hiring to do all I could to help you as best I could. And you wouldn’t want me to leave a stone unturned that cost you later. So unless I knew all the facts up front, you’d expect me to take care of you and be cautious enough not to leave things on the table.

        That doesn’t make me literal. Helping you is the job I’m hired to do, and I have to approach it someone dispassionately. Just like a physician has to approach a patient to an extent. Not that you don’t care, but you have to maintain some distance.

        And to be honest, no one comes to a lawyer when things are going well. You almost always see people at one of the worst times in their lives, and you see a lot of ugliness. So I may be a little more cynical than I need to be, I admit.

      • Fyrdoc says:

        Hey Matt,

        How many people come to the emergency room because they are having a good day? Like you, we only see people when things are going poorly. Like you, we do our level best to help the person. Unlike you, if a bad outcome occurs and the person or their family can find another provider to say they might have been able to produce a different outcome, we will be sued and our professional lives destroyed (or severely hampered). How about if we apply the same malpractice standards to lawyers that exist for physicians…?

      • Matt says:

        “Unlike you, if a bad outcome occurs and the person or their family can find another provider to say they might have been able to produce a different outcome, we will be sued and our professional lives destroyed (or severely hampered). How about if we apply the same malpractice standards to lawyers that exist for physicians…?”

        Fyr, we do have the same standards. You should look at the elements for legal malpractice. As for “lives destroyed or severely hampered” merely by filing, well, given how physicians are still doing quite well despite being named, or even making payouts, or for that matter even after drug convictions, I think you’re being dramatic.

        But putting that aside, you’re exactly right that you only seen people at their worst as well. It just reminds me how sad it is that physicians have been trained and conditioned to hate all attorneys regardless, when you consider how much in common the two professions have.

        We both are typically the last resort for people. We both are governed by rules of conduct beyond that of an ordinary job. Most of us are small businesspeople with similar concerns about overhead, staff, taxes, etc. And we both, if we do our jobs well, can make people’s lives a lot easier.

        However, instead of focusing on the vast majority that we have in common, you prefer to focus on the vast minority of claims in which an attorney is hired by a patient to assist them. And not only do you choose to focus on those, you choose to ignore the many meritorious ones and focus solely on the even smaller minority of ones that you don’t think are meritorious. And thus you hate a whole profession, even those 95% or more of the practitioners will never lay eyes on a malpractice file. Especially for the plaintiff.

        Like I said, it makes me kind of sad that the insurers have done that to you.

      • Guiac says:

        Matt,

        I’m pretty sure its not only physicians who have low opinions of lawyers, particularly the personal injury sort.

        That said you are right in some respects the two professions are similar. However keep in mind that when someone files suit against you for legal malpractice you at least have a good familiarity with the system. I think a lot of physician anxiety has to do with a lack of familiarity with the legal system – particularly given the potentially damaging consequences of such lack of knowledge.

        I am surprised that you suggest only a small minority of claims lack merit. Given that most cases do not result in verdicts against the physician defendant that suggest that many do lack merit.

        Personally I think that the current torts system is what is at issue. I am in favor of health care courts. While I see jury trials as essential to protecting liberties in terms of criminal conducts(i.e. to limit state power), their role in civil litigation has significant cons along with the pluses.

      • Matt says:

        “I’m pretty sure its not only physicians who have low opinions of lawyers, particularly the personal injury sort.”

        Not what I was talking about. I was talking about the commonalities of the profession. As to disliking lawyers in general, that’s true. Although most people like THEIR lawyer, which is to be expected. In every case you’re going to hate one lawyer (the other side) and generally like yours. Whether the other side likes me is irrelevant to me.

        “I think a lot of physician anxiety has to do with a lack of familiarity with the legal system – particularly given the potentially damaging consequences of such lack of knowledge.”

        I agree. Although not knowing isn’t that big of a worry, since that’s why you have your own attorney. To educate/guide you.

        “I am surprised that you suggest only a small minority of claims lack merit. Given that most cases do not result in verdicts against the physician defendant that suggest that many do lack merit.”

        The reason most cases don’t result in verdicts is because most cases settle pretrial. And I’m including claims resolved pre-suit as well.

        “. I am in favor of health care courts. While I see jury trials as essential to protecting liberties in terms of criminal conducts(i.e. to limit state power), their role in civil litigation has significant cons along with the pluses.”

        I would disagree as to any current health court proposal. But perhaps you’re thinking about something else. From a broad proposal though, I don’t know why we would go to the expense of any version of health courts for such a small number of cases. Any system will have its pros and cons, but it’s almost impossible to design a system as free of bias as our jury system. Not that the individuals themselves don’t have their own bias and desires and such, but it’s pretty hard to “buy” a jury.

      • Fyrdoc says:

        “Fyr, we do have the same standards. You should look at the elements for legal malpractice.”

        Well, I guess wikipedia is wrong (which it may be). From there: “Legal malpractice is the term for negligence, breach of fiduciary duty, or breach of contract by an attorney that causes harm to his or her client. In order to rise to an actionable level of negligence, the injured party must show that the attorney’s acts were not merely the result of poor strategy, but that they were the result of errors that no reasonable attorney would make. Furthermore, legal malpractice requires the showing of an injury that would not have happened had the attorney not been negligent. If the injury would have occurred despite different (non-negligent) actions by the attorney, no cause of action will be permitted.”

        First of all, physicians do not get the privilege of defining their own “strategy” or approach to a patient. If I try to claim that based on my experience and judgment that a particular test isn’t needed or diagnosis is unlikely, I don’t get to beg off from a bad outcome claiming it was my “strategy” as long as the plaintiff can find any other physician to string together a coherent sentence claiming they (and thus any other reasonable physician) would have done the test or otherwise discovered the diagnosis. I can name suit after suit, including WCs, where the overwhelming consensus among physicians is that the plaintiff’s expert was wrong. That dissent alone suggests that these issues are akin to that of professional “strategy” or judgment, not some fiction construct of a “standard” that varies from jury to jury. Now I do agree, some clear cut cases of medical malpractice do happen (e.g., the surgeon who operates intoxicated and horribly botches the procedure). I believe those cases are more akin to the clear cut cases of legal malpractice, such a missing filing deadlines, etc.

        Further, legal malpractice seems (by the definition provided) to exclude claims of “loss of chance”. As you know, in medical malpractice, there is quite often the presumption that another physician would have been able to secure a different outcome. Given the fact that to land in a medical malpractice court, the outcome has to be severely debilitating or deadly, most medical malpractice plaintiffs has significant pathology to start with. Take the famous John Edwards case of the “distressed fetus”. Mr. Edwards claimed, while “channeling” the infant, that it was “crying out for help”. He opined that had the physician performed a c-section, all would have been o.k. There is simply no way to know that. Obviously, to end up as debilitated as the infant was, there was significant pathology in play. In WCs case, the plaintiff’s expert stated that the patient had a critical emergency, requiring the immediate intervention of a surgeon. While I do not know the exact pathology of that case, if the supposition by the plaintiff is that a delay of even a few hours led to the patient’s death, then the disease process itself was extreme. Any surgery would be difficult, and likely complication filled. Simply put, short of choking, there are very few disease entities capable of rapidly killing a patient (or severely injuring them) where the treatment is certain to cure and easy to perform.

        “As for “lives destroyed or severely hampered” merely by filing, well, given how physicians are still doing quite well despite being named, or even making payouts, or for that matter even after drug convictions, I think you’re being dramatic.”

        Cool. I’ll tell you what, let’s go ahead and set up a “National Legal Practitioner’s Database”. Lets further allow that any complaint against a lawyer, founded or not, be reported to it. Of course, we will include any formal actions of state bar associations, etc. Lets further require that the attorney provide their “file” from this database to any court in which they have not tried a case previously, to any potential employer, and (state dependent) to post it on a publicly available website. Lets also use it to set the rates for their now mandatory legal malpractice insurance. And just for fun, we will also require them to meet with any client who asks, and if that client feels that the lawyer refusing to move forward on their case is actionable, we’ll report that on the database too. I mean according to the AAJ everyone has the right to be heard!

        There are no comparisons to be made here. The system is set up so that clinical judgment and acumen are removed from medicine in favor of the idea that the approach to a patient can, and should, be standardized. This “standard” is not printed anywhere, or even generally agreed to. It is set by an individual jury hearing the facts of an individual case, and as such, may vary so wildly as to lack “standardization” at all (e.g., lawsuit regard the use of TPA in stroke – give the drug and have a bad outcome and the “standard” is not to give it. Fail to give it and have the patient debilitated and the standard is to use it). Lawyers on the other hand get to use their professional judgment on the approach to any case and if things don’t turn out the way their client wants, well hey, that was just my trial strategy. I met all of the filing deadlines, showed up to court and did the best I could. Too bad, so sad. And the plaintiff doesn’t have an actionable claim.

        I agree, insurance companies stand much to gain from reform, and I also agree quantifying defensive medicine is difficult. But if physicians were allowed the “strategy” defense that attorneys are, costs would go down. That is why I have argued that the needed change is a willful and wonton standard. Leave the plaintiffs who are truly victims of the drunken surgeon to recover all they can, but leave the physician who despite their best efforts failed to find a complicated diagnosis alone.

      • Matt says:

        ” As you know, in medical malpractice, there is quite often the presumption that another physician would have been able to secure a different outcome.”

        I’m not sure I follow you. The basis for the claim in both types is that had the actions of the defendant met the standard of care, the damage would not have resulted.

        ” I can name suit after suit, including WCs, where the overwhelming consensus among physicians is that the plaintiff’s expert was wrong.”

        In WCs, two out of three of the experts who reviewed the case disagreed with WC, if you’ll recall. However, if you think the plaintiff’s expert was wrong, and that’s the consensus, then perhaps you guys should put out some more bright line rules.

        ” While I do not know the exact pathology of that case,”

        Then you should probably stop there.

        ” I’ll tell you what, let’s go ahead and set up a “National Legal Practitioner’s Database”. Lets further allow that any complaint against a lawyer, founded or not, be reported to it.”

        You can already get this information from the state bar. It’s public record. I think the reason physicians have a national database is because they rely so heavily on government largesse, and are always asking the government for help. But if you want to get that information on attorneys, you can call the state bar, and it might be on their website, depending on the state. If your state doesn’t have that info online, you can access it via FOI I’m sure.

        “Lets also use it to set the rates for their now mandatory legal malpractice insurance.”

        Claims are considered in our rates. Just like yours.

        “And just for fun, we will also require them to meet with any client who asks, and if that client feels that the lawyer refusing to move forward on their case is actionable, we’ll report that on the database too.”

        If they sign a contract that exchanges that “requirement” for them to meet with anyone who asks for a significant amount of money like physicians do, then by all means we should.

        “. The system is set up so that clinical judgment and acumen are removed from medicine in favor of the idea that the approach to a patient can, and should, be standardized.”

        Again, nothing is stopping physicians from establishing the standards. You constantly complain about this, but the solution is in the hands of your profession. No med mal case goes forward without another physician.

        The problem, as we both know, is the minute you establish standards, when a physician doesn’t meet them, he’ll start explaining why his case is unique and the standard doesn’t apply. Which results in each case being unique and judged uniquely, the very thing you’re complaining of.

        You want to blame others for these problems you believe exist, rather than looking in the mirror. That seems to be a common thing in your profession, whether we’re talking about changing your payment method, lawsuits, whatever.

        ” Leave the plaintiffs who are truly victims of the drunken surgeon to recover all they can, but leave the physician who despite their best efforts failed to find a complicated diagnosis alone.”

        You keep acting like that the complexity of that diagnosis is not considered when in fact it is. The results of physicians at trial show that fact. But if you want to go to willful and wanton, let’s let every defendant claim that. Let’s get rid of simple negligent across the board for all professionals. I don’t know why physicians need to be treated any different than anyone else.

      • little BOB says:

        Matt, you still don’t understand that “the standard of care” for a medical malpractice case is what 12 juror’s decide.

        The way the legal system is current legal system is set up “standards” don’t really protect you…..they really just damn you if someone can point out that you didn’t follow some minute unimportant aspect of the “standard”

      • Matt says:

        “Matt, you still don’t understand that “the standard of care” for a medical malpractice case is what 12 juror’s decide.”

        Actually, that’s incorrect. If physicians get together and say “the standard of care is X” in a certain situation, then the case never sees a jury. It’s also incorrect if there is no dispute about the standard but they are just deciding if the physician’s actions met the standard.

        “The way the legal system is current legal system is set up “standards” don’t really protect you…..they really just damn you if someone can point out that you didn’t follow some minute unimportant aspect of the “standard”””

        Again, the legal system doesn’t set the standard. In professional negligence cases the profession does. In other negligence cases the public sets the standard. Nor sure I follow your last clause there. Perhaps if you can give an example we can discuss it?

      • little Bob says:

        I have been sued for following “standards”….one of them made it to the courtroom. Bottom line, standard of care is defined one case at a time in courtroom

        One example would be sepsis. Academics have made very complicated algorhithms that in additon to fluids and antibiotics require measuring and normalizing lactate, svco2 with invasive lines, transfusion. It is great theory…however impossible to follow to the letter in a busy community ED with limited staff and resources. Individual details are not proven, yet a plainif attorney could come up with nonsense that some portion of the “guideline” was not followed. Would it make a difference? No!

        Many medical cases have no such evidenced based guidelines to follow. What is the guideline to follow for a super obese cocaine addict unable to fit in a CT scanner with history of lupus anticoagulant who overdoses on GHB and adderal presenting with agitation and abdominal pain with unknown family history of Marfans and aortic dissection??? Many malpractice cases involve rare diseases or very atypical presentations of common disease. Guidelines will never be adequately developed for these things. That is why standard of care is defined in the courtroom.

  4. Pattie, RN says:

    The “comments” on some of these articles are quite telling of the misconceptions many lay people seem to have of doctors.

    All those rich, greedy, Porsche driving surgeons do exist, but they are dwarfed by the number of primary care physicians doing their utmost to provide for patients despite cuts in reimbursement, lawsuits, and the deluge of patients who want someone else to “fix” their chronic health problems. Give ‘em a pill, a procedure, or a magic elixer, but don’t expect ‘em to quit smoking, lose 50 lbs, eat a salad instead of a Big Mac, take a walk, or quit having random sexual encounters.

    I am a nursing instructor and my students are currently on an OB rotation. About 75% of the new mothers in our small southern city are on Medicaid and unmarried, bottle feeding and complaining about the limited hours at our WIC office before they are discharged. And 100% of these women state that they “fell pregnant” (like it was a passive, random act!) not because of birth control failure, but because using birth control never crossed their minds.

    And in 10 years, these children will be in my husband’s fifth grade classroom, functionally illiterate, with behavior problems outnumbered only by their vouchers for free breakfast, free lunch, free after-school care, and appointment slips for their visits to the clinic for Adderal and scabies treatment.

  5. CholeraJoe says:

    The article about the 38 year old nurse dying must have more to it. He looks fit in the picture. One wonders if he had hypertrophic cardiomyopathy, or if this is really a case of heatstroke?

  6. Dave says:

    To lighten this up a bit, an author who writes books about fly fishing made a statement in one of his books, “Lawyers are like nuclear weapons. The world would be better off without them, but if the other guy’s got one, you have to have one, too.” To which I would add, when they go off they take out the entire neighborhood, not just the target.

    Also to lighten this up, WC made a comment about medicare often denying payment the first time a claim is submitted. This was 20 years ago, but a GP in my community was denied payment for the last 5 days of a patient’s hospitalization because the reviewer “could not find evidence from the medical record that the patient was ill enough to be in the hospital”. In fact the patient was in the ICU, where he finally died. The GP answered that by copying the death certificate and writing on it in bold red ink, “Just how damn sick do you have to be??” He did eventually get paid.

    Matt, would you feel better about the medical profession if we all refused “the government largess” – that is, refused to take care of patients on medicaid and medicare? Some doctors are making that decision already because it is better from a business standpoint to do so – witness the Mayo clinic in Arizona.

    • Matt says:

      I don’t feel bad about the medical profession. I admire it greatly. I just don’t care for the politics of any group which seeks to make it harder on people to get justice who are often nearly helpless already.

      As to your payment model and the government largesse, I wish you guys would do ANYTHING to change it. If even 1/2 of the effort you spend on trying to screw the injured on behalf of your insurers was spent on payment model reform, we might have some progress. Because you’re going to get nationalized if you don’t, and I don’t believe that’s good for America. Although I appreciate that many disagree with that.

      Question for you – prior to hopping on the government train 40 years ago, were people still getting the services of physicians? How did physicians survive financially? (this is not a facetious question)

  7. Matt says:

    ” To which I would add, when they go off they take out the entire neighborhood, not just the target.”

    By the way, that seems a silly thing to say. The vast majority of civil lawsuits are between two individual entities arguing over a sum of money. There is little impact on anyone else.

    I agree though, it would be a better world if people could resolve their disputes without going to court. If they could count on each other to abide by their contracts, pay their debts, and take responsibility for their actions. Such a world doesn’t exist, at least among humans, though. So we have to have a system to peaceably resolve those things. And you don’t have to use a lawyer – you’re welcome to do it yourself. I fully support you in resolving your own disputes!

  8. Guiac says:

    Matt,

    The reason that physicians don’t get together to put out a standard of care across the board is because such a consensus doesn’t exist. As the WC case proves a panel of “Experts” can disagree about the merits of the same facts. Even guidelines from different professional organizations which are the closest to a pre-peremptory standard are often conflicting. Whose guidelines are correct- the cardiologists or the pediatricians? Or does it just depend on your specialty? If that weer the case then no ED physician should worry about giving or not giving tPA in stroke because according to ACEP there is no consensus or standard of care on this issue. Hence all such claims should be summarily dismissed.

    The problem with the above is that its not the real world which is why we need health care courts. As your assertion why have courts for a small minority of cases i would make it somewhat akin to mandatory arbitration in other areas, vaccine courts(which handle a small percentage of cases), or other systems relying on special masters. These already exists and are not somehow cost prohibitive to set up.

    Medicine is an unusual case because of the broader societal impacts of medical malpractice in an era where cost control is becoming an imperative. Rightly or wrongly we’ve decided that 16% of GDP is too much; but nobody wants to sacrifice their own care. In an era of malpractice suits it is foolish to think physicians will willingly implement any sort of rationing.

    • Big Bob says:

      Matt,

      Check the 3/3/10 headlines comments for a discussion of clinical epidemiology. The problem with standards (aside from the fact that there is often disagreement in the medical community about what is an appropriate treatment) is that the utility of all tests depends on the pretest probability. The pretest probability is determined by incidence, the nature of the population being treated, subtle clinical characteristics such as facial expression when the abdomen is pressed, etc. It is basically the doctor’s best estimate of how likely the patient has the disease. This cannot be standardized and it is also hard to go back in retrospect and assess (was the abdomen really soft?, how distressed exactly did the patient look?). How exactly do you quantify this in a “standard of care” way” If the patient presents with acute onset headache and looks miserable you should ct the head but if the patient presents with acute onset headache but is eating a sandwich and laughing at the TV you don’t need to ct? The bottom line is that doctors have to make decisions and that is how medicine works best. If you could create a standard for every little thing, you wouldn’t need 7+ years of training to do it and you could just hire anyone to flip through a 5000 page cookbook of medicine and say “headache, let me flip to page 2,137 and see what the guidelines say.” The reality is that medicine is too complex for that in most cases. Patients present with complex and often atytpical symptoms and a good doctor is evaluating the patient for multiple possible disorders. I really would encourage to get a simple book on clinical epidemiology as you are evidently interested in the medical system. Clinical epidimiology is the very essence of medicine and you cannot understand the challenges of medicine and speak intellegently about the medical field unless you have some understanding of clinical epidimiology.

      • Matt says:

        “The bottom line is that doctors have to make decisions and that is how medicine works best. If you could create a standard for every little thing,”

        I wish you would get your stories straight. On one hand, you say if X, Y, and Z are done we should get immunity. Then on the other you say “how can we say X, Y, and Z are appropriate”?

        Again, I’m not trying to practice medicine. I don’t have any more understanding of clinical epidimiology than you do of the rules of evidence. So I’m not arguing that point with you. We agree there.

      • Big Bob says:

        Matt,

        You always dodge any actual discussion. Your response is a joke. You put words in my mouth about the X,Y,Z and immunity thing (which I have never said) in order to avoid any real discussion. Then despite often and repeatedly making statements about doctors clearly being able to make standards of care, you now (when presented with what I believe is a reasonable and well-intentioned discussion of why that is often impossible) feign that it is not something that is relevent to you. The bottom line is that you have a very poor understanding of the medical profession yet claim to be able to understand precisely how malpractice relates to medicine. Your arguments are always the most superficial. You argue by giving definitions (a terrible way to debate) and whenever presented with an actual discussion you attempt to put words in peoples mouths and pretend that it is not relevent. I think you like to argue for arguments sake and care absolutely nothing about the substance of what is said.

      • Matt says:

        Bob,

        It’s clear you’re angry, so perhaps we should end this discussion. It appears we’ve reached an impasse.

        If you don’t think physicians can testify as to what the standard of care in a given situation is, then we just have to agree to disagree. If you’re wanting to discuss particular facts from particular cases, I guess we’d both have to have the trial transcript and see the evidence to get TOO far. You could probably generalize on the medicine, and I could probably generalize on the law based on a summary, but I don’t know how far that gets us.

        I don’t claim to have any understanding of the ins and outs of a particular medical procedure – not that I couldn’t learn, but at this point I don’t. I don’t know why you think I said that, but you’re mistaken. I have no doubt that your goal is a reasoned and well intentioned discussion – but again, for me to say X or Y is the standard in this situation would be foolish. It’s like when most physicians try and diagnose problems in the law. The knowledge background isn’t there.

        I will happily discuss medical malpractice in the legal sense with you in terms of the application of the law to the facts, or the steps at trial, or the politics of it. But to just pick an individual procedure out of a hat, I don’t have the background for it. And I think given the nature of the forum, even if I did spend the time to get educated, the room for answers here is probably too limited to get too deep into it.

        As for the use of definitions – if you can’t define something, how can you discuss it?

      • Big Bob says:

        Matt,

        I guess my feeling is that is absurd to believe that law and medicine are just completely seperate things that have no bearing on each other. I have hard time seeing how it is possible to argue for a certain type of malpractice system when one doesn’t understand medicine at all.

      • Matt says:

        They are completely separate things. They interact at times, definitely. But again, if you’re seeking to discuss just the medicine side of a particular case, unless we both take the time to read the evidence, and I take a lot more time to develop some background, I really don’t know how we can discuss it. Just like if you want to discuss a particular evidentiary point, without us getting the transcript, and you getting the background in the Rules of Evidence, we can’t get much beyond generalities.

        ” I have hard time seeing how it is possible to argue for a certain type of malpractice system when one doesn’t understand medicine at all.”

        Well, we’re not really arguing for a certain type, since you haven’t really presented an alternative. We’re talking about the existing civil justice system, of which malpractice cases are a pretty tiny part. Unless I’ve missed it, you’ve not laid out another system that you think is better or explained why, or even more importantly, explained how we get around the US Constitution to move medical malpractice claims out of the civil justice system we have.

  9. Dave says:

    Prior to medicare of course people got care. They were responsible for paying the doctor directly. If they had insurance they were reimbursed by the insurance company. One problem for doctors with this was that sometimes a patient would pocket the insurance check and stiff the doctor for the bill. I was in private practice in an era when this happened, and it wasn’t infrequent – frequent enough so that the situation now is the insurance companies pay directly to the provider. However, if you get paid directly by the insurance company, they set the rules and call the tune so it was definitely a trade-off, increasing the hassle factor of practice a lot. This is why some doctors have gone to concierge medicine.
    Things were also much simpler back then. My GP when I was a kid ran his office with one nurse – period. No receptionist, no office manager, no billing clerk, no hassles with insurance companies about delivering care. His notes were extremely brief because he didn’t get paid based on his documentation, so he put in them only what was pertinent. The office visit was cheap and he had almost no overhead. He didn’t need a coding expert because he wouldn’t wind up in court facing charges of medicare fraud if his notes didn’t support the level of office visit he billed for. He didn’t spend any time arguing with insurance companies. He didn’t have to do internal audits of his billing either. There weren’t many drugs he could use and they weren’t very expensive. He made a good living but wasn’t rich- there’s no question doctors make more now but the hassle factor is also exponentially higher. (The worst hassle I ever had was to get oxygen for one of my patients. I had to provide the following material to the insurer, and I’m not making this up – the lab slip the blood gas was reported on, the name of the respiratory tech drawing the blood gas, the time the blood gas machine was last calibrated before the gas was run, a copy of the calibration manual of the blood gas machine, the height above sea level of the machine, the barometric pressure at the time the gas was run, and the signature of the pathologist running the lab at the time.) My old GP was also highly respected in the community. He didn’t have to hear thirty times a day how lousy the health care system is or how doctors are greedy or uncaring. I suspect he had more professional satisfaction – although I did read a memoir of a doc in the 1930’s who said that he quit going to church because after practicing medicine for a lifetime, hell would be restful.
    This system is no longer possible. It’s a lot more expensive to get sick. As an example, if you got rheumatoid arthritis back then you took aspirin and did poorly. Now you’re on methotrexate plus something like infliximab, which is incredibly more effective than aspirin but in my community costs $7,000 an infusion, which occurs every 6 to 8 weeks (none of that goes to the doctor, by the way). It’s also more dangerous and requires monitoring during the infusion, blood work, and carries significant risks of unmasking latent infections. BUT, it WORKS!
    You could probably find consensus among most trial lawyers to keep the current tort system going, and thereby get an effective lobby. Most doctors dont like the hodgepodge of health care systems we have now but disagree a lot on how to change it, which is a reflection of the American public as a whole.
    We don’t spend a lot of time trying to “screw the injured”. I would bet that in most cases that go to trial, the physician thinks he acted appropriately and is defending himself. If you screw up obviously you’re better off settling. In any case, if we had health courts the resolution would be much fairer and less stressful on both sides. We DO spend a lot of time trying to keep from winding up in court in the first place.
    On a local level doctors can’t very well act as a group. In my community there were 2 orthopedic groups, and they independently decided to drop medicaid. They ended up spending a lot of time in court trying to prove that that didn’t act as a conspiracy in this. God forbid if you were to discuss this action in a doctor’s lounge.
    As far as medicare, everyone over 65 is on it. These people are the most fun to care for – give me an 85 year old with complicated problems or a 35 year old with a strong sense of entitlement and I’ll go for the old person every time. None of us really want to quit taking care of these people, but to do so we have to deal with medicare. What’s the alternative?

    • Matt says:

      “What’s the alternative?”

      It would seem that I’m not the one you should be asking. It’s your colleagues.

      “We don’t spend a lot of time trying to “screw the injured””

      That’s what you spend most of your political efforts on. Damage caps. Which screw the injured.

      ” In any case, if we had health courts the resolution would be much fairer and less stressful on both sides.”

      Don’t know how you reached that conclusion, but since you haven’t defined your health courts version I guess you could be right. Battling your insurer isn’t likely to be less stressful for the injured patient regardless, though.

      • VA Hopeful says:

        You’ll have to forgive my potential ignorance, but I thought most efforts were directed more at non-economic damages – pain and suffering being the main one.

        I don’t think anyone disagrees that patients who have been left disabled from an intervention don’t need some form of compensation, if nothing else because they just can’t work anymore.

      • Matt says:

        You’re correct. Most are directed at non-economic damages. There’s also some occasional very obnoxious provisions about allowing for periodic payments by the insurer.

      • VA Hopeful says:

        So, ignoring the “occasional very obnoxious provision”, how are we “screwing the injured”? If economic damages, including lost wages, are paid out, what exactly is wrong with capping non-economic damages? I’d also like to point out that everywhere I’ve read about those particular caps, the non-economic damages caps are still pretty high – usually in the middle-ish hundred thousands.

      • Matt says:

        Because you are making it impossible for those without wage loss (kids, stay at home moms, elderly) to pursue a claim. Why would they?

        Sure they get money for their past and future medical bills – money which goes to a health insurer or another medical provider. Other than that, no matter how grievous the injury, you’re capping their lost quality of life, no matter how devastated they are, or how long they may live in this new state, at about what the average surgeon makes in a year.

        And why? So your insurer can save some money. Is the cap based on the facts of the case? No, it’s based on what some insurance lobbyists think all cases should be worth. How is that “fair” in any stretch of the imagination? That people who don’t know the case decide its value?

        And, if they don’t pursue their case – guess who pays for their future care? Me and you, the taxpayer. Again, how is that fair that you and I pay for damages caused by someone else?

      • VA Hopeful says:

        Here is where we reach an interesting point. How do you decide what a particular injury is worth? Taking that further, is there any amount of money that can make a person forget about the injury and be able to live a normal life?

        I recently read about the case in NYC where a woman won $60 million because a plastic surgeon screwed up and now her labia looks strange. How on Earth is that a reasonable pain and suffering settlement?

        It sounds like we need a list of injuries and appropriate non-economic damages. A doctor does this, you get this much. I doctor does that, you get that much.

      • Matt says:

        That is an interesting question. Although I think perhaps we can look at it a different way. Should it be worth nothing? You’re absolutely right money can’t make you forget, but simply because money is an imperfect medium, should we throw it out altogether.

        As to your idea of a schedule, if we can decide that it is worth something, I don’t believe a schedule is fairness. Is the same injury to an athlete in their prime as valuable to a 75 year old at the end of their life expectancy who is largely immobile? I think not.

        This is why we have a jury, I believe. To take twelve members of society and let them make an assessment based on the facts. I don’t view a schedule promulgated by lobbyists is a better solution. Will there be verdicts on the high end? Of course. At the same time, there will be verdicts on the low end, although physicians don’t usually want to talk about those. There will be no truly perfect system where all of society says ah, yes, that’s the perfect number. There will always be someone who disagrees with the jury’s finding. Or for that matter a legislative schedule. But I would favor letting the facts of the case dictate the value, rather than whatever pressure lobbyists can bring to bear regardless of the facts.

      • VA Hopeful says:

        You make some good points, and I guess I’m just for something that would both decrease the absurd awards and find something for people who are injured but nothing really comes of it.

      • Matt says:

        Well, for the most part, those outlier awards are never paid. They’re typically settled or reduced on appeal, or knocked down on remittur. There are safeguards even after verdict, you know.

      • VA Hopeful says:

        I did not know that. Makes me feel some better about the whole mess.

  10. little BOB RN says:

    Folks,

    Since Matt has no understanding of medicine, clinical epidemiology, medical decision making and no desire to learn…..

    Since he cannot understand a difference between injury and unavoidable bad outcome…..

    Since he really has nothing much to offer other than snarky comments……

    I suggest that you all just ignore him unless he has something worthwhile to add to a discussion. I have seen him vanish from many other blogs when he no longer gets the reaction he wants.

    • VA Hopeful says:

      Actually, I think his points make some sense given the way we approach standards of care.

      For example: in the outpatient setting, the JNC-7 has fairly specific guidelines for the treatment of essential hypertension. If you follow those, and document counseling for non-compliant patients, then I think you should be exempt from lawsuit should the patient suffer an acute complication of uncontrolled hypertension. This is fairly straight forward since the guidelines are fairly universally agreed upon. Likewise, given the guidelines from the JNC-7, you aren’t likely to miss a diagnosis of hypertension since those guidelines are also very universal and exact.

      This becomes a bigger issue for pathology that presents in a rare way or where different treatment options are available.

      For example: We know that most patients who end up with gastric ulcers test positive for H. pylori. We also now that most people who test positive for H. pylori won’t ever get any ulcers. Do we treat everyone, knowing the expense, side effects of the drugs, and potential for antibiotic resistance? Or, do we only treat the colonization after an ulcer has been found? You can find “experts” and papers that go with either treatment course. Now, we know that gastric ulcers can be life threatening. Does that mean that, if a patient presents to the ED and dies of complications resulting from the ulcer, his family deserves compensation from his primary care physician who didn’t eradicate the H. pylori colonization even though there is good evidence against doing that in every patient?

      I think this case is what our legal friends have trouble with, and why we get so upset. Both sides of this argument have articles and experts to back up on whichever side they find themselves in. The lawyers see this as a mistake since there is evidence suggesting a course of action that the PCP could have taken to prevent this. The medical community sees this as simply being bad luck for the patient since he was the one of the unlucky few percent who develop complications from said colonization. The PCP would then not understand why he was being sued since he was following accepted literature.

      Basically, very few things in medicine are cut and dry with iron clad guidelines we can use. The legal community doesn’t accept the more nebulous actions of medicine that are a result of this.

      • Matt says:

        ” The lawyers see this as a mistake since there is evidence suggesting a course of action that the PCP could have taken to prevent this.”

        “The legal community doesn’t accept the more nebulous actions of medicine that are a result of this.”

        These statements do not comport with the reality. First, no med mal lawsuit moves forward without someone in the “medical community”, and usually a couple of people in the particular area, telling the attorney they believe there is negligence.

        Second, given the vast number of cases medical malpractice attorneys turn down, it would seem the legal community (and really we’re talking med mal plaintiff’s lawyers which are a tiny, tiny, subset of that community), has quite a high tolerance for nebulous actions.

        Third, it doesn’t make business sense for the plaintiff’s lawyer to spend tens of thousands on “nebulous” cases. The FIRST thing most med mal lawyers do when they think they have a case that even might be worth pursuing, is send it off to a consulting expert who will never testify at trial to see if the claim has legs. This person is typically paid a flat fee of a few thousand dollars for their preliminary opinion. The attorney is not looking for the green light, they’re looking for an unbiased opinion. They don’t want to pour their own money into a questionable case.

        The economics of handling medical malpractice cases require the acceptance of “nebulous” actions of medicine.

      • VA Hopeful says:

        I’ll address you points in order.

        First, you’ve proved my point for me. There are areas in medicine where people disagree. There can be good evidence for 2 different ways of doing this and thus you’ll have doctors who are willing to say “Nope, that other way is pure garbage and should never be done ever”. Don’t you see the inherent problem here? Both ways might have good evidence for doing them, but at the same time you can get others swearing that one way is quackery. Now, part of that is admittedly the huge egos that abound in medicine. But then again, part of that is inherent in what we do.

        Second, I would be very curious to see some of the cases that med mal folks (I’ll try to be specific from here on) turn down.

        Your third point is similar enough to the first that I don’t think it bears rehashing.

      • Matt says:

        “Don’t you see the inherent problem here? Both ways might have good evidence for doing them, but at the same time you can get others swearing that one way is quackery.”

        I don’t see that as a problem, I see that as the need for the dispute resolution system.

        “Second, I would be very curious to see some of the cases that med mal folks (I’ll try to be specific from here on) turn down.”

        You’d probably never see them unless the client released the paperwork to you, because of attorney client privilege. The attorney can’t.

        “Your third point is similar enough to the first that I don’t think it bears rehashing.”

        The third point isn’t similar at all. It goes to the law firm economics, not the necessity of a physician being involved. Simply put, taking a bunch of questionable med mal cases is bad business because of the cost to pursue them.

      • VA Hopeful says:

        I think you might be missing my point. Let me try to clarify. You have two treatment options that have research showing that both are good choices. You go with one and the patient is injured. You followed the literature and half of medicine thinks you did the right thing. The prosecution talks to the other 50% that thinks you screwed up. They have good research on their side too. How is the legal system supposed to solve this problem when the people who actually know what’s going on can’t come to a consensus?

      • Matt says:

        Good point. Can you give me a more specific example of a case you’re thinking of?

  11. Matt says:

    “Since Matt has no understanding of medicine, clinical epidemiology, medical decision making and no desire to learn…..”

    I’m wondering if you read what I wrote? Because I said nothing of the sort. Although this seems an odd complaint, as usually when lawyers discuss medicine, a cry from physicians arises that they can’t possibly hope to understand it. Now, when I tell you that without some reference to specific evidence and some time to study it that it would be dangerous for me to comment, you’re upset. That doesn’t make much sense.

    ” I have seen him vanish from many other blogs when he no longer gets the reaction he wants.”

    As long as you’re just talking about medicine, you’ll get little reaction from me other than curiousity. I enjoy learning about it. When you talk about the law and your proposals to “fix” it, or the healthcare bills, that’s probably when I’ll comment, since I actually do know quite a bit about those subjects. I’m sorry if you don’t find my input useful.

    “Since he cannot understand a difference between injury and unavoidable bad outcome…..”

    Again, I’ve not said that. Although it would seem that an unavoidable bad outcome would be a type of injury, wouldn’t it?

    “Since he really has nothing much to offer other than snarky comments…”

    I’m sorry you find my comments on the law just snarky. I’ll try and tone them down.

    • Guiac says:

      “Again, I’ve not said that. Although it would seem that an unavoidable bad outcome would be a type of injury, wouldn’t it?”

      On this you are correct – but of course should physicians or other bear liability for unavoidable bad outcomes? This is what frightens physicians the most since most cases of malpractice are brought about because of significant bad outcomes many of which may be unavoidable.

      • Matt says:

        “This is what frightens physicians the most since most cases of malpractice are brought about because of significant bad outcomes many of which may be unavoidable.”

        Of course they shouldn’t if there was no malpractice. That’s what the trial is there for. To determine the unavoidability.

        And there’s no doubt that most cases of malpractice involve a significant injury or death. They are economically unfeasible to pursue without large damages.

      • Guiac says:

        Yet that hasn’t always been borne out in practice.

        In particular the case of OB-Gyn’s delivering children with brain injuries. Most of the data suggests that these injuries are unavoidable and happen in utero, however, sympathetic juries have been known to be swayed by the sight of a substantially injured baby in the courtroom and a charismatic plaintiff’s attorney.

      • Matt says:

        ” Most of the data suggests that these injuries are unavoidable and happen in utero, however, sympathetic juries have been known to be swayed by the sight of a substantially injured baby in the courtroom and a charismatic plaintiff’s attorney.”

        This seems to me to be quite an assumption on your part, as you don’t know the jury, the evidence, or really any of the details of the cases you reference. Or have you read the trial transcripts?

        Physicians seem to believe that jurors are all weak minded sob sisters waiting to be misled by plaintiff’s lawyers while the defense sits there like a potted plant. Yet somehow physicians win far more often at trial than they lose, even sometimes in the face of devastating injuries.

        You’re right in most cases it’s unlikely to be caused by the OB-GYN’s actions. But I doubt you would say it is NEVER caused by the physician’s actions, would you? And since we don’t know the ratio of brain injury children to brain injury cases, it’s entirely possible that there are far fewer lawsuits on those cases than you’d expect. You just don’t hear about the ones that aren’t filed.

        Unless you’ve got more data, I’m not sure how you can conclude that my statement isn’t borne out by the facts.

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