Archive for the ‘Medical-Legal’ Category

14.5 Million Reasons Physicians Practice Defensive Medicine

Monday, June 16th, 2014

Fetal Tracing

Cleveland’s MetroHealth Medical Center and a staff physician were recently found liable for a $14.5 million medical malpractice verdict in what is commonly termed a “bad baby” case.

The case as described in the article involved 36 year old Stephanie Stewart who was pregnant with her second child. She went to MetroHealth several times for premature labor when the child was 22-23 weeks gestational age (a full term infant is 40 weeks) and was admitted twice, with labor being stopped using medication and bedrest. There were apparently discussions about her requiring a C-section since her first child was delivered by C-section.
Six days after being discharged from her second hospital admission, she returned for evaluation after her water broke. At that time, she reportedly asked physicians to give her an immediate C-section to deliver her 24 week old baby, but they do not do so. The attending physician arrived later that afternoon and she again requested a C-section, but the attending doctor noted that the baby appeared “healthy” on the monitor. Three and a half hours later, the baby showed signs of distress. Doctors performed an emergency C-section, but the child was unfortunately born with a brain hemorrhage, cerebral palsy, cognitive delays, visual impairments, and “other issues that will require lifelong care.”

The doctor and hospital were sued and after a trial, according to the plaintiff’s attorney, the “jury determined there was medical negligence and Stewart was not informed that there was a significant risk of a brain hemorrhage if a baby goes into fetal distress … [in addition, the mother] was not given any options, and her request for a Caesarian was not granted.”

What would have prevented all of the patient’s medical injuries and what the hospital and physicians should have done, according to the attorney, is to have kept the mother in the hospital after her third admission for three months until she delivered a healthy baby, or alternatively, the doctors should have performed a Caesarian section on the mother when she requested it.

Comments to the article alleged that this “malpractice” isn’t an isolated incident.

However, when you look at the allegations in the case within context, you have to wonder.

20% of premature infants suffer from bleeding in the brain.
In infants born between 22 and 25 weeks of gestation, 73% either die or have some type of neurodevelopmental impairment and 61% die or have “profound impairment.” The risks of adverse outcomes are decreased by increasing gestational age (i.e. allowing the baby to remain in the uterus longer), in addition to administering steroids.
A 2000 study showed that “survival at 23 weeks’ gestation ranges from 2 to 35%, at 24 weeks’ gestation 17 to 62% and at 25 weeks’ gestation 35 to 72%.” Those survival rates have probably improved over the past 14 years, but the data show that even an extra week of keeping a developing fetus inside the uterus has a significant effect on the child’s survival. 

Now a woman who is 24 weeks pregnant – at which time, if delivered, her fetus has a 38% to 83% chance of dying – comes to the hospital and demands to have a C-section.
If the doctors perform the C-section without a proper reason for doing so, more likely than not, the child is going to die. Then the mother will allege that the doctors should never have performed the C-section and will sue the doctors and hospital for performing the C-section. In addition, the state will go after them for causing patient harm without following medical protocols.
If the doctors don’t perform the C-section, the patient has a 60% chance of having some type of neurodevelopmental impairment and a 20% chance of bleeding in the brain. If the child is born with any of those problems that are likely to occur in any premature infant, it creates the appealing plaintiff lawyer argument that if the doctors just listened to the mother’s requests for a C-section none of this would have ever happened. After all, how dumb can the doctors be if a mother knows more about premature pregnancy than they do?

The rule that the plaintiff attorney apparently thinks all physicians should follow is that doctors should always perform all testing or treatment that patients request, even if that testing or treatment is potentially harmful or medically unfounded.

Unless the mother was skilled in evaluating premature labor, the judge should never have let the jury hear that the mother demanded a Caesarian section. Had a C-section been performed and a bad outcome occurred, the fact that the mother demanded the procedure be performed wouldn’t be admissible.
If the defense attorney did not move to have that highly inflammatory testimony excluded, the defense attorney likely committed legal malpractice.

In either case, this scenario reinforces the notion that doctors should fear the bad outcome. Regardless of what actions we take, if a bad outcome occurs, someone will find something that should have been done differently.

Until we address no-win situations involving multimillion dollar liability such as this, defensive medicine, overtesting, and overtreatment will never go away.

Unprofessional Act or Political Mudslinging?

Wednesday, February 26th, 2014

Milton Wolf Facebook

US Senate candidate Milton Wolf (@miltonwolfmd), who also happens to be a radiologist, is catching heat because he had previously posted patient x-rays on his Facebook account … and then made what some people would consider as inappropriate comments about the patients who were depicted in the x-rays.

Articles in the Topeka Capital Journal are here, here, and here. Note the repeatedly recycled content.
The story was also picked up in Talking Points Memo and on Breitbart.com

For example, in the comments to the right, he commented that the positioning of a dead patient’s head on CT scan wasn’t going to cause the patient to complain.

A spokesman for the doctor’s opponent, Senator Pat Roberts, said that Dr. Wolf’s posts raised “legal and professional responsibilities to maintain privacy of patient medical information.”

It appears that Dr. Wolf anonymized the pictures before posting them. If that was the case, HIPAA doesn’t apply to deidentified health information, so there was no “legal responsibility” to maintain privacy of medical information that could not be traced back to the patient. Professional responsibility is a separate issue.

John Carney, president of the Center for Practical Bioethics, reportedly stated that Dr. Wolf’s posts would be “beyond alarming for a professional in the field of medicine.” An “array” of other medical ethicists who viewed the images or were provided a description of Dr. Wolf’s materials also reportedly “condemned” Dr. Wolf’s publication of this information “outside confines of a doctor-to-doctor consultation or for the purpose of formal medical research or textbook instruction.”

This last point is an important one. If a picture is used for teaching purposes, why is publishing it “beyond alarming” or worthy of condemnation?

Milton Wolf Ankle Post

Look at the post above. There are two fractures present. Dr. Wolf makes the comments “Sledding accident. Look closely. It’s kinda subtle.” How is such a post “beyond alarming”? Aside from the fact that people can comment in real-time on the content of the picture (which would seem to enhance learning), how is an anonymized Facebook post of this picture ethically any different from the same picture contained in a textbook? And why are unnamed ethicists judging the appropriateness of published material based solely on the medium in which that material is published?

There is a spectrum of online activity in which medical providers can engage. At one extreme is a hospital employee from a “staffing agency” who posted a patient’s name on Facebook and commented “Funny but this patient came in to cure her VD and get birth control.” At the other extreme are the many educational medical sites such as Dermatlas. In the middle is a large grey area. Overreaching “ethical expert opinions” condemning any online medical posts outside the extreme of “formal medical research or textbook instruction” should be carefully questioned. Unfortunately, the Topeka Capital Journal and reporter Tim Carpenter don’t really mention the names of the “array” of other ethicists with whom they presented this information, so it’s difficult to determine how much weight to give Mr. Carpenter’s assertions. Good job on the editorial work, there Capital-Journal. The array of writers involved in editing articles who reviewed this article condemned your work.

The responsibilities of a medical provider who posts patient information online depend on how the information is presented. If we prevented any posting of x-rays or patient pictures, then medical knowledge would advance at a much slower rate – regardless of the medium. I know for a fact that many x-rays and EKGs in medical textbooks are reprinted without the permission of the patient. I see pictures of patient body parts, x-rays, CT scans, and EKGs used in lectures without patient permission. These actions are hardly worthy of condemnation or “beyond alarming.” Conversely, using pictures to belittle patients who have little control over their conditions may be pushing the envelope on professionalism. Remarking that a patient who died from a gunshot wound “got what he deserved” may initially seem harsh, but would it be as inflammatory if the patient was in the process of brutally raping a young child?

Dr. Wolf’s humor may have been a little off-color. Off-color humor may be offensive to some. Should a doctor be labeled as “unprofessional” because that off-color humor offends a minority of people who read it … along with the president of the Center for Practical Bioethics (who probably wouldn’t have been quoted in the news had he not derided Dr. Wolf’s comments), a few unnamed “ethicists”, and a political opponent behind in the polls who stands to gain if the campaign of “unprofessionalism” gains steam?

I’m not condoning Dr. Wolf’s comments, but I think we need to look at the motivations of those publishing information and at the implications of whatever societal rule we want to create. Should off-color commentary render someone unfit for political office?

And by the way, has anyone looked into Tim Carpenter‘s background lately?

Hat tip to a @movinmeat tweet for the initial story. If you want to read his blog, you can go here, but he’s turned into a Twitter bug for the past year or so.


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Should Refusing Medical Care Be A Crime?

Friday, March 8th, 2013

Doctor threatens to call police on patient if she does not consent to immediate Caesarian section.

The mother was a high-risk pregnancy (due to VBAC), was post-dates and had gestational diabetes. The fetus wasn’t in a good position to facilitate vaginal delivery, and an ultrasound showed the fetus in possible distress.

The patient was sent to Tampa General hospital for immediate C-section, but refused to have the surgery done that day. She wanted the baby delivered on Friday, not Tuesday. So the obstetrician sent her an e-mail which stated, in part

I am deeply concerned that you are contributing to a very high probability that your fetus will die or your child will incur brain damage if born alive. At this time, you must come in for delivery.
I would hate to move to the most extreme option, which is having law enforcement pick you up at your home and bring you in, but you are leaving the providers of USF/TGH no choice

The doctor was promptly contacted by the National Advocates for Pregnant Women, whose New York attorneys advised him (apparently applying their vast knowledge of Florida law to the case) that he was making “legally and ethically unjustifiable” threats and demanded he cease taking further action against the patient. The NAPW even put up a post about the incident on their web site. Hopefully, the attorneys at NAPW have licenses in Florida, otherwise some might consider them to be practicing law in Florida without a license – which I think might be illegal.

Now the patient is having her baby delivered on Friday as she wanted.

When I initially read this article, I was upset with the doctor.

The more I thought about it, though, the fetus has as many rights as the mother does. If the mother was doing things to endanger the life of the fetus the day after it was born, a call to the police would be expected, not ridiculed. States mandate reporting of suspected child abuse and impose liability on providers if suspected abuse is not reported.

In this case, it is questionable whether a failure to deliver a child that is possibly in distress would be considered “child abuse,” but usually if there is a suspicion, a report is mandated.

I side with the doctor on this one. And I probably would have called the state child welfare agency on the woman just to cover myself.

This case will get ugly real quick if there are complications during the pregnancy or if the child isn’t born healthy.

If the baby is stillborn, should the mother be charged with a crime?

Suing Doctors For Patient Addictions

Thursday, March 7th, 2013

Nevada Senator Tick Segerblom proposes bill that would allow patients addicted to prescription drugs to sue doctors for prescribing the addictive medications and manufacturers for creating the medications.

Patients can already sue doctors for prescribing medications if they can prove that writing the prescriptions violated the standard of care and that they have suffered damages as a result. But Tick wants to take the concept a step further. If the patient sues a doctor and wins, the patient should receive payment for rehabilitation, possible punitive damages, and attorney’s fees.

It doesn’t matter that “addiction” can be either physical or psychologic and that there is no reliable way to determine when addiction occurs. Tick’s bill doesn’t define addiction. It also doesn’t matter that people can get addicted to pretty much anything … alcohol, illegal drugs, porn, gambling, even collecting Cabbage Patch Kids. Tick’s bill only cares about those evil doctors. Beware internet service providers, you could be next on the list if your subscribers get addicted to the internet.

But Tick has good reasons for proposing his bill. Since people lived without drugs before, Pharmacologist Tick doesn’t believe that drugs are the only way to treat pain now. That’s true. Patients in cancer pain could always try incantations and faith healing instead of popping pills. Or patients in pain could bust out some whiskey and a bunch of bullets to bite on … after they take anger management classes so they can purchase the bullets. Oops. That’s Florida. Sorry. Wrong state. Double oops. Alcohol could be addictive. Bad example.
Besides, since children are allegedly taught from an early age to do whatever the doctor says, Neuropsychologist Tick says no one has the free choice whether or not to take addictive pain medicines.

It’s not so much that, at least according to his Twitter feed, Tick seems just all … well … tickled … about seeing his proposal published in newspapers. The scary thing is that people like Tick Segerblom are elected to public office and may be able to regulate our lives.

More comments at Overlawyered.com

The Nurse Who Denied CPR

Thursday, March 7th, 2013

I’m in shock about the case where a nurse refused to give CPR to 87 year old Lorraine Bayless in a California senior living facility – a housing setup akin to an apartment complex.

Ms. Bayless fell unconscious in the dining room of a senior living facility. Facility members called 911. Ms. Bayless wasn’t breathing and the 911 operator recommended that the facility member perform CPR. The person at the facility would not perform CPR.

It took EMTs about 7 minutes to arrive on scene. Ms. Bayless later died from a “massive stroke.”

The 7 minute call can be heard HERE in its entirety.

A couple of other things made known in the case were that the senior living community did not have any trained medical staff. Remember – the facility was similar to an apartment house. In addition, Ms. Bayless had made known her intentions to “die naturally…without any kind of life-prolonging intervention.” According to the family, Ms. Bayless knew that there were no medical staff when she decided to live at the facility.

So why am I in shock?

Look at all the whacked out opinions that are being generated from this case.

Some people demand criminal charges be filed against the people who wouldn’t help.
One person recommends “Depraved Indifference Homicide
Another person notes that if a law says that “you cannot deliberately withhold medical care from a dying person” then ignorance of the law is no excuse for failing to act – applying that hypothetical to this case, of course.
Bakersfield California police are looking into whether there was anything criminal and the county Aging and Adult Services Department is determining whether “elder abuse” may have taken place because of the incident.
The thing is that if criminal charges were appropriate, then everyone in the dining room of the senior living facility who saw Ms. Bayless collapse would have to be thrown in jail. No one helped her. Let’s just charge everybody with a crime.
California can’t pay its bills as it is, so it is unlikely that they will criminally charge a group of elderly patients requiring nursing care and then be required to provide continuing medical care to them. Maybe they’ll all get electronic monitoring bracelets and weekly visits via the wheelchair van to a parole officer, instead.

Then the “experts” across the news stations pile on.
Virginia Commonwealth professor of geriatrics Dr. Peter Boling stated that without advance directives, patients “wind up sometimes in a very painful and trying situation.” This quote seems to acknowledge that patients may receive unwanted CPR if  there is any question about a patient’s wishes.
CBS legal analyst Jack Ford calls the actions “morally reprehensible” but also notes that our society has become much too litigious.
Ah, but what about California’s Good Samaritan statute? It exempts people who provide emergency care from liability for civil damages, but it also contains exceptions. Providers have to act in “good faith”. It doesn’t apply to those who are grossly negligent. And it doesn’t apply if the provider is being compensated. Employees of the senior living facility are, by definition, being compensated. So a plaintiff’s attorney may have the ability to circumvent the protections afforded in the Good Samaritan statute just through the “compensation” angle.
Other people argued that the 911 operator took all liability for the actions of the nurse. How does such a promise, which is essentially a verbal contract, absolve the nurse from liability when the nurse is the one performing the actions? If a lawsuit was filed, the nurse would still be named regardless of the 911 operator’s promises.

Then there’s the question of a DNR order. According to the Bakersfield Fire Department there wasn’t such an order on hand when paramedics arrived. Not that people carry DNR orders around with them in their pockets or anything. After all, this was a dining room in an apartment complex, not an ICU bed. But even if that was the case, does there have to be a readily producible advance directive available to prevent unwanted care?

A sweet old lady entered a senior living facility knowing that there were no trained medical staff and not wanting any life-prolonging treatment.

Now a firestorm has come down on the living facility for abiding by the patient’s wishes and pundits all over the internet are basically demanding that we perform medical procedures on patients who don’t want them. Don’t agree? It’s off to jail with you. You’re a criminal.

Ms. Bayless’ family issued a statement saying in part

We regret that this private and most personal time has been escalated by the media. Caregivers, nurses and other medical professionals have very difficult waters to tread in the legal and medical landscape of our country today.

About the only thing potentially criminal about this case was the unauthorized dissemination of Ms. Bayless’ private health information to the media.

Are state and local authorities investigating that?

Who Should Sign Death Certificates?

Thursday, February 28th, 2013

PaperworkI happened to read an article in the Columbus (Ohio) Dispatch where Ohio coroners are complaining because some doctors, including emergency physicians, are refusing to sign death certificates listing a patient’s cause of death. The coroners are concerned because they are being “burdened” with hundreds of extra cases every year that they must handle. And if other doctors don’t sign off on the cause of death, sometimes it takes two months for them to examine records, wait for test results, and make a final ruling on a patient’s death.

The treating physicians reportedly use the excuses that they haven’t seen the patients in several months or they weren’t there when the person died. Some emergency physicians expressed concern about liability if the wrong cause of death was listed.

The coroners used the article to try to add a guilt trip on doctors who won’t sign a death certificate by stating that the reluctant doctors aren’t inconveniencing the coroner, they’re inconveniencing a family.


If, according to the article, it takes coroners sometimes TWO MONTHS to determine a cause of death, then how can coroners reasonably expect other physicians to determine the cause of death on the spot? How can an emergency physician determine the cause of a patient’s death just by performing CPR on a patient for 20-30 minutes?

As far as death certificates apply to emergency medicine, if a patient comes in and has a heart attack or has a bullet wound through their chest then the cause of death is rather clear and the death certificates shouldn’t be a problem for the coroners to complete. If the cause of death isn’t so clear, then why would the coroners want to rush the completion of the death certificate? Either way you argue the point, it doesn’t make sense. If the amount of time required to complete a death certificate is marginal, then it isn’t as much of a burden as the coroners are making it out to be. If the amount of time required to complete a death certificate is substantial, then is the time spent performing non-patient care tasks really the best use of an emergency physician’s limited time?

In addition, improperly completed death certificates are a problem. In a recent article in American Medical News, one Pennsylvania coroner was quoted as saying that many physicians “don’t realize that what they put down has some real, long-term ramifications.” The article also notes that “filling out certificates inaccurately can have widespread consequences,” although in the latter case, the speaker was referring to underreporting of some diseases to federal agencies. Another vignette in the article noted how a murderer almost went free because the cause of a patient’s death was misclassified by a treating physician. I am aware of another well-publicized case in which a personal friend of mine was involved in a medical malpractice action where a coroner determined that a patient’s cause of death was “murder” without knowing all the facts of the case. Later, the coroner was involved in litigation over that determination and ultimately resigned her position due to this and other similar errors.

Requiring that people other than coroners sign death certificates is just another example of medical mission creep and it needs to stop.

It is the coroner’s job to determine the cause of a person’s death. Stop pushing that job off on other people.

It Didn’t Feel Like A “Win”

Saturday, February 16th, 2013

By Birdstrike M.D.


My kid and I are outside in the front yard blowing bubbles, enjoying the blue skies and 70 degree weather when she says, “Cool Daddy! Look, there’s a police car coming down the street. Oh, cool! I think he’s coming to see us!”

Uh, oh, I think to myself. Despite my kid’s excitement, I know that rarely does anything good come delivered by a policeman. My wife is inside, my one kid is with me and my other is inside, so they’re not coming to give me some tragic news. Or are they? My parents….my siblings….is everyone okay? Why is a sheriff pulling into my driveway?

I exhale for a minute. Maybe it’s Jim, the officer that lives in the neighborhood, I think to myself. He’s probably just stopping by to chat or say, “Hi.” As the car rolls closer, squinting to look beyond the window glare I see that it’s not Jim. It’s an officer I’ve never seen before. Clearly none of us has done anything to get arrested….

“Daddy! I wanna go see inside the police car! Daddy, will he give us a ride? Ooh, ooh, can I see his gun? Cool!” says my kid, jumping up and down with excitement.

“Let’s see what he wants,” I answer.

The driver door opens. A huge officer gets out, in grey uniform, bulletproof vest bulging underneath, with black wrap-around sunglasses, and a toothpick in his mouth.

“Are you Dr. Bird?” he asks, as serious as a heart attack.

“Yes, sir,” I answer.

“I got a present for ya,” he says, as he pulls a thick rolled up stack of paper from under his arm and hands it to me.  “Here’s your subpoena,” he says.

“My what?” I stammer. “What’s this all about?”

“You’re getting….” he starts before,

“Daddy! Daddy! I wanna ride in the police car. I wanna see the lights go on! Yay!” says my little one.

“…sued,” I finish the sentence for him.

“Yes, sir. You and every other doctor in this county it seems like. I’ve got about a dozen more to go serve. These lawyers are unbelievable. (laugh) I happen to know this one will sue you for breathin’ and win, too. You know, the one on the back of the yellow pages? You ever run into any trouble, though, you call him. Trust me, he got me out of a jam one time,” he says with another grunt-laugh.

“Wow. Thanks for that wonderful advice. You’ve really brightened my day,” I snark back at this guy, who apparently thinks it’s hilarious to be part-time process server and part-time comedian.

“Oh, don’t take it personally. It’s just business,” he says chuckling, as he spits out the same old lie and cliché I’ve heard a thousand times from doctors who’ve been sued.

“That’s great. Thanks. Anything else I can do for you today, officer?” I ask, dejected.

“Oh, yeah, I’m gonna have to give you a ticket for parking your car on the street overnight….Just kidding!” he says, and give’s a snort-laugh.

This guy’s unbelievable, I think to myself as I turn to walk away.

“Don’t worry, Doc. You’ll win that case. That lawyer will sue a dead dog if he could get it to settle for a bone and a biscuit,” he says.

“Uh, thanks for your…uh, support,” I say, shaking my head in disbelief.

Yep, it happened. After about 30,000 lawsuit-free patient encounters I finally got hit with a lawsuit. I guess 29,999 out of 30,000 isn’t bad, I think to myself. What’s that, 99.99% accurate? Well, it’s still not perfect; still not 100%.

I walked inside and ripped through the pages and start reading about the case of which I have zero recollection. What? This? This is nothing. This is ridiculous, I think to myself. Where’s the malpractice? Where the h—l did I not do everything as I was taught, as I should have and as I would do again?

I can’t find the malpractice, because it’s not there.

Almost every day in my training, it was either implied to me, or I was explicitly told that someday, no matter how perfectly I practiced, no matter whether I met or exceeded the standard of care, that I would be falsely accused of malpractice someday and be sued. In each of those teaching moments, I was told how to practice so as to decrease the chances of such a false accusation and how to document, so as to be able to fight the inevitable false accusation in court. Never once was I told, or was it implied that it wouldn’t happen.

Though these words were never spoken, the unspoken lesson was: You are getting excellent training. You are going to be an excellent doctor. You will be prepared to handle any situation thrown at you. You will go out into the real world and do your best with every patient you see, and one day you will be sued for it, and possibly put on trial. I trained at a top notch institution. My teachers were right.

Over the next week, I obsessed about the case. Over and over and over again, it ran through my head, what would I have done different? I can think of all kinds of things I could have done differently, but none of them seemed better, or even equally as appropriate as what I did. In my head I kept hearing the mantras of physicians that have walked the plank of false medical malpractice allegations before me, “It’s the cost of doing business,” “It’s not about you, it’s about money,” “It’s not personal,” “Every doctor gets sued.” Yeah, bulls—t, I thought to myself. The more I thought about it the more it infuriated me.

Also, reading through the record, I couldn’t help but think, of all the patients I’ve seen, why this one? There’s nothing here, nothing at all. Not only did I not commit malpractice, I cannot see where any of the other providers even might have or possibly committed malpractice.

As the months went on, I went through the “process.” I met with my lawyer. I reviewed the record ad nauseum. I read every bit of literature about this case I could find. The more I read, the more I was certain I did nothing wrong. The more I thought about it, the more I realized that didn’t matter. Also, the more I was told and the more I told myself it “wasn’t personal” and “was just the cost of doing business” the more I took it personally. It is personal. When you dedicate your life to helping people, often times without payment, often times at 3 a.m. dog tired, on your kids birthday or your third holiday in a row, and it’s routine business that you’ll be extorted for money just for doing your job and doing it well, you’re damn right it’s personal.

Along came the depositions. The plaintiff deposed their “expert” who plainly put, was not an expert. He was a hired gun, paid thousands of easy dollars, to testify that everything I and my co-defendants did was absolutely wrong. Also, he was of a completely different specialty than my own. His testimony was laughable. His answers seemed to indicate he hadn’t even read the evidence closely or at all. Regardless of how bogus his testimony was, my attorney tells me, he made enough (false) accusations to get the case to trial.

One by one, our experts line up drooling to testify that their expert was absolutely wrong. They had the truth on their side and they were actual experts. But would the jury understand? Whose “experts” would they believe? As strong as my case was, I resigned myself to the fact that that’s what the case would come down to. Not what was right, or what was wrong, but whom the jury chose to believe, for whatever reason they chose to believe him. As difficult as it can be to judge another physician in a different specialty I can only imagine how difficult of a task it is for a jury with no medical background to judge the decision making process of a physician, in a complex medical case. How many times have you gone to an M&M conference and a dozen experts argue over a case with a bad outcome and even those highly trained experts couldn’t agree on what the “standard of care is” let alone whether or not it was met?

Over months, the trial draws closer. My tension waxes and wanes, fades and returns with each deposition, each email from my attorney and with any patient encounter that reminds me of the case. Ultimately as the trial closes in on me, the tension builds. All the while, I know I met…No, I exceeded the standard of care. As the trial date gets closer, the more I realize how little that may matter. How would I come across to a jury? I’ve never been on trial. I know I’ll be very nervous on the stand. Will that be seen as appearing “guilty” or will the jury understand and see my side of things?

I get an email from my lawyer. “Just to let you know, the trial is set for –/–/—-. There will be a routine mediation meeting tomorrow. You do not need to attend. We are taking this to trial. You did nothing wrong. We will fight this every step of the way.” Deep breathe, exhale.

The next day, breaking the silence comes a “ding.” It’s an email on my phone. I open the inbox, and I see two words that shock me:


“The charges against you have been dropped. No money will be paid on your behalf. There will be no trial. Congratulations. You are dismissed with prejudice”

I could hear and feel the air start to leak out of the balloon of pressure hanging over my head: “Dismissed with prejudice.” I ask my lawyer to translate: that means “Over. Permanently. Done. You are innocent. You won.”

Well, it didn’t feel like a “win,” but it was over.  I was relieved not to have to roll the dice.  Even though I was vindicated, there was no “win” in being falsely accused of committing malpractice considering all the time spent reviewing charts, attending legal meetings and depositions, and all the mental stress and sleepless nights.  Others have said that although a dropped lawsuit is a win in a literal sense, it is a great loss for patients and doctors because it drives a harmful and dangerous wedge in the physician/patient relationship.  As I progressed forward from this point on, I truly understood how true this is. I couldn’t help but feel that from then on, memories of this lawsuit and the process would be irreversibly intertwined with each patient interaction, each handshake, each differential diagnosis and treatment plan, as much if not more than the science, pathophysiology and the text books I read.



This author does not divulge protected patient information or information from real life court cases.  Any post that appears to resemble a real patient or trial can only be by coincidence. This author does not post, has not posted and will not post factual identifying information about real patients.  To the extent that any post is based on the real life experiences of the author, names, dates, ages, sexes, locations, diagnoses, and all other factual information are routinely changed to the extent that it should be considered fictional.  Any opinions expressed here are of the author alone and not those of epmontly, WhiteCoat, my employer or any of the hospitals with which I am affiliated.

Post Online, Get Investigated By State Medical Board

Tuesday, January 29th, 2013

12754_hand_cuffsEarlier this month, a survey of state medical boards published in the Annals of Internal Medicine showed that many state medical boards were willing to investigate physicians for lack of online “professionalism.”

The authors of this study created 10 vignettes regarding online physician behavior and then queried state medical boards regarding their likelihood of “investigating” physicians based upon the scenarios. Percentages of state medical boards that were “likely” or “very likely” to investigate a physicians for behaviors were as follows:

Citing misleading information about clinical outcomes — 81%
Using patient images without consent — 79%
Misrepresenting credentials — 77%
Inappropriately contacting patients — 77%
Online posts depicting alcohol intoxication — 73%
Violating patient confidentiality — 65%
Using discriminatory speech — 60%
Using derogatory speech toward patients — 46%
Online posts depicting alcohol use without intoxication — 40%
Providing clinical narratives without violation of confidentiality — 16%

Think about the implication of some of these circumstances.
It takes 4 years of college, 4 years of medical school, 2-6 years of residency, and hundreds of thousands of dollars in expenses in order to obtain a medical license.

Based on this article, there is theoretically the potential for a medical board to take away 10-16 years of work because a physician makes a post about drinking alcohol or because a physician writes about a patient’s case — even without violating a patient’s confidentiality. Even if a license is not revoked, an investigation could be initiated based on vague and sometimes anonymous complaints about “discriminatory” or “derogatory” speech or citing “misleading” information. Such complaints would require that a physician retain legal counsel in order to proceed through a drawn-out investigation. The expenses involved in the investigation may not be covered by malpractice insurance.

For those who have never had the experience of being “investigated” by a state medical board, the process do not have to follow the rules of court, may involve threats from investigators or pressure to immediately sign “confessions,” and it is not uncommon for investigations to quickly become witch hunts. Here are some of one lawyer’s experiences in dealing with Licensing Boards.
Remember the issue with Amanda Trujillo, RN who was investigated by the Arizona State Nursing Board for informing a patient about her surgical options? That case turned into an 8 month inquiry into every complaint alleged against Amanda for the prior 3+ years at multiple hospitals in multiple states. The Nursing Board also reportedly informed her that they would further discipline her if she continued publishing their communications with her.

A couple of things work in a physician’s favor if being investigated by a medical board. A medical license is usually considered “property”, which may allow a physician to pursue a due process claim if a medical board takes inappropriate actions against a physician’s license or does not follow proper procedure in pursuing those actions. This Washington Supreme Court case contains a very good discussion about the problems involved in actions taken against a physician’s license. Also, in many states, attorney’s fees are awarded for successful due process violation actions.

Don’t be afraid to fight back against inappropriate state medical board claims. As Glenn Reynolds likes to say on Instapundit … punch back twice as hard.

More Joys of Electronic Medical Records

Tuesday, January 22nd, 2013

HistoryGo up to your favorite emergency department staff member and ask them what they think of “twofers.”

Depending on that person’s mood, chances are that you’ll get anything from a scowl to a punch in the gut in response. Two patients from the same family both needing emergent medical care at the exact same time? It still happens … car accidents, fires, maybe a stomach bug. But it can be frustrating. There’s a saying in emergency medicine that the likelihood of a true emergency is inversely proportional to the number of patients in the family registering to be seen.

That being said, a “fivefer” will raise the hairs on the back of the neck of pretty much any emergency department personnel. When the complaint is that everyone in the family has a cough, three of the five family members smoke, and none of them got their flu shots … well … you get the picture.

One of the frustrations with scenarios like this is the charting involved. The nurse and the doctor are literally stuck at the computer for 30 minutes each, both entering useless information about different patients over and over again – instead of taking care of other patients. The medical records won’t let you proceed without entering the information.
Is there a fall risk?
Is there a risk for tuberculosis?
Does the patient smoke? Nurses have to enter this information even on infants to satisfy government regulations.
Is there a risk of danger in the home?
Is there evidence of abuse?
When entering an order for IV fluid, if the patient has a sulfa allergy, doctors have to acknowledge that there is some potential interaction between saline and the patient’s allergy and describe why we would dare to give salt water to a patient with an allergy to sulfa.
And on and on and on.

So I tried something that sounded easy when I thought of it, but was technically quite difficult when I tried to actually do it. I tried to log the number of times I clicked on different check boxes and the number of different screens I had to navigate in order to document on and discharge/admit a patient.
This is easier said than done.

I never realized how quickly I am able to navigate a byzantine array of computer screens. After clicking on one button to order a medication, I found myself subconsciously moving the mouse to the area of the screen where the next “OK” button would pop up. I had to literally slow myself down to count the clicks and the screens. I’m sure I missed a few in the process.
The number of data points in each aspect of a patient’s history is quite large. There are 144 data potential points to click on just for a patient’s physical exam. The screen to the right is what must be navigated for each and every patient’s history. Each line in the white fields is a data point that must potentially be either right- or left-clicked depending on whether it is positive or negative. I didn’t even bother counting up how many potential data points could be clicked upon, but it numbers in the several hundreds – depending on the presenting complaint.

So I set out to log the clicks and screens. The first few times I tried, I wasn’t able to do it. Finally, when it wasn’t so busy, I made a conscious effort to stop on every screen and mark down clicks and screens. I use some basic templates, so the amount of clicking that I do is actually less than someone who doesn’t use templates.


Should AEDs be required?

Wednesday, December 19th, 2012

AsystoleInteresting question posed in a California court case. There’s that state acting up again.

In Verdugo v. Target Corp (.pdf file) a 49 year old woman collapsed in a Target store. Paramedics were called, but it took them several minutes to arrive and several more minutes for them to find the patient. They were unable to resuscitate her and she died.
The family sued Target for failing to have an automatic external defibrillator (“AED”) in its store, apparently alleging that their mother would (might?) have been saved had an AED been available (there are those thingees called “damages” again, Matt).

In its opinion, the US Court of Appeals noted that “defibrillation is the only definitive treatment for cardiac arrest.” That isn’t true. Defibrillation only works on the patients who have ventricular fibrillation or pulseless ventricular tachycardia as the cause of their cardiac arrest. Defibrillation does not work on asystole, PEA, or agonal rhythms. While there may be an increase in survival to admission rates when care is received sooner, there was no statistical difference in survival to discharge rates in some studies, while other studies did show an improvement in survival to discharge. Also note that in this study, the number of patients with out of hospital cardiac arrest who were in asystole (and who therefore would not benefit from an AED) was between 72 and 84%.

Now the California Supreme Court will decide whether every commercial business should be required by law to have an AED on premises.

This case troubles me. If we start down the path that an AED must be available at every business, then it becomes a “slippery slope” argument. How close do the AEDs have to be? If a building has multiple floors, does there have to be an AED on every floor? For large businesses, how close do the AEDs have to be to each other? What about shopping malls? Will every store in the mall be required to purchase one? Even the kiosks? What will be the requirements for maintaining them? How many people will need to be trained how to use them?
It isn’t just about the AEDs, either. What other medical care will be required the next time someone dies from low blood sugar, an allergic reaction, or a choking episode. What about for people who fall and could die from a head injury? On site CT scanners and drill bits to relieve deadly subdural hematomas?
Where would the requirements for medical care to business invitees logically stop? I’m having a difficult time coming up with a rule that requires AEDs but that doesn’t require additional medical equipment and training of employees. And if the laws require that business owners afford special medical care to business invitees, wouldn’t invitees to one’s home – to attend a party, for example – fall under the same legal rule?

Another example of fearing the bad outcome.

Say – if California rules that AEDs are required, anyone want to join in funding a startup AED manufacturing company? There will suddenly be a lot of AEDs that need to be purchased.

Hat tip to Walter Olson at Overlawyered.com

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