Archive for the ‘Medical-Legal’ Category

Criminal Charges for Taking Newborn Outside

Friday, October 26th, 2012

This story came across my news feed this morning.

The father of a 2 day old infant is being criminally charged by New York prosecutors with child endangerment and harassment because he attempted to take his son outside for “fresh air” and to “look at the moon.”

The story only showed up on my news feed because an emergency physician testified on behalf of the defendant in the case and the term “emergency physician” is one of the keywords on my news feed, but the case also illustrates the point I was trying to make in the post a couple of days ago.

The emergency physician was a family friend and was visiting the family in the hospital when the incident occurred. He testified that he believed it was “fine” that the dad took the infant outside. The incident occurred during January, but according to the emergency physician’s account, the child was “dressed pretty warmly.” Prosecutors alleged that the emergency physician didn’t have the professional experience to know what is in the best interests of a newborn infant.

According to the article, a charge of child endangerment requires that prosecutors prove beyond a reasonable doubt that the father knowingly put his child in a situation where the child was likely to be injured.

The rule appears to be that intentionally taking newborns outside in cold weather – even if warmly dressed – is a crime in New York State.




Criminalizing Society

Wednesday, October 24th, 2012

Attribution: http://www.everystockphoto.com/photographer.php?photographer_id=14097

The criminalization of society continues.

Regular readers know that I strongly disagree with state efforts to criminalize the practice of medicine. See previous posts here, here, and here for a few. Two days ago I posted an article about a doctor who was criminally charged with providing excessive pain medications to patients who died (as I expressed concern about back in 2009). Now federal agents are arresting physicians for providing fraudulent or “unnecessary” care.

This isn’t concerning to anyone?

I have no problem with taking professional action against any medical practitioner who is a danger to the public. Well, I have a little problem. Some of the assertions of “dangerous” activities I have seen made by state licensing boards make me wonder whether the board members should be charged with a crime for incompetency. In one instance, a board was prepared to file a letter of reprimand against a physician because he didn’t order a CT scan on a patient with a headache. The reason? “This patient came to the hospital by AMBULANCE and you didn’t do enough.”  Action taken against license because a patient dialed 911.

I also don’t have a problem filing criminal charges against medical practitioners that break laws. Intentionally engage in fraud? You deserve what’s coming to you. Steal from patients? Go to jail.

However, throwing someone in jail for doing their job – even if they do their jobs poorly – just sends the wrong message and will lead to unintended consequences.

I’m not going to go on a long rant about this, but I wanted to illustrate how more and more professions are coming under a government attack because they allegedly don’t do their jobs appropriately.

Tarl commented about the case of the Italian scientists who were charged with manslaughter and sentenced to six years in jail because they failed to predict an earthquake that killed more than 300 Italian citizens. Prosecutors argued that the scientists offered “incomplete, imprecise and contradictory information” to the Italian citizens. As Tarl noted, scientists from around the world denounced the trial, noting that predicting earthquakes is impossible.
Think about the implications for Italian scientists in the future. Doing everything in their power to avoid a six year prison term in the future, the seismologists will now be encouraged to report to the media that an earthquake may occur and that things may not be safe every time that a truck without a muffler drives past the seismologists’ offices and shakes their equipment. Chicken Little, baby. If someone drops a cup of coffee, the sky must be falling. Run for the hills. In a few years, the population will be so sick of the false alarms that when the real earthquake does hit, they will have ignored the warning anyway.
But by criminalizing an inexact science, the buffoon Italian prosecutors have made Italy a safer place, right?

Then consider the case of attorneys for GlaxoSmithKline who were indicted for making false statements to the FDA when Glaxo was being investigated for promoting Wellbutrin for an off-label use. The in-house counsel hired a national law firm to help Glaxo respond to the FDA’s allegations. A year later, the government came after the attorney for obstruction of justice … for representing her client … alleging that the attorney had assisted Glaxo in furthering a cover-up or a crime. Even documents that are protected from discovery by the attorney-client privilege were forced to be turned over to the government.
How will the threat of criminal charges affect an attorney’s practice of criminal law? Go to jail if you defend your client too zealously? Be concerned about this, people. With the threat of criminal charges looming over attorneys who defend criminal clients, will clients really get the zealous representation to which they are entitled?

Finally, although not about employment, there is this Wall Street Journal story about how the North Carolina legislature has now made it a Class 2 misdemeanor (.pdf file) for a student to, “with the intent to intimidate or torment a school employee,” do such things as encourage others to post private, personal, or sexual information pertaining to the school employee; post an image of the school employee on the internet; repeatedly engage in e-mail or other transmissions to the school employee; or sign the school employee up for electronic mailing lists.
Take a picture of the teacher in public who is fondling a sixth-grader’s breasts? Even though the teacher is breaking the law and has no expectation of privacy, students may go to jail if they post the picture online or if they encourage others to do so. If the paparazzi hounds the same teacher for doing the same thing … that’s OK … I think.

Anyone every wonder why criminalization isn’t applied to the government officials when they allegedly don’t do their jobs appropriately? I was going to write someone in the North Carolina legislature an e-mail asking them about it, but I didn’t want to be breaking some other inane law they created.

What is happening to this country?

No Fingers Allowed

Saturday, August 4th, 2012

Sent from a reader …

Because stool obviously transmogrifies as it exits the rectum.

Stool contained on the end of one’s finger after performing a rectal exam and then transferred to a hemoccult card causes hemoccult cards to give wrong readings and therefore the results “may not be accurate.”

However, stool that is plopped in the toilet, mixed with water, possibly urine, and whatever else is growing in the toilet bowl … no problemo. Definitely accurate.

This “results may not be accurate” disclaimer is reportedly added to every stool sample the hospital reports because the hemoccult card manufacturer said that the cards are only to be used for “formed stool”. Not sure how the lab tests to determine whether the sample is “formed” or is “diarrhea,” but I’m not a lab technician. Perhaps they test the moisture content of the sample prior to actually applying the requisite number of drops of hemoccult developer.

The hospital also reportedly had an entire committee meeting where multiple educated professionals and administrators thought it was appropriate to include the “results may not be accurate” disclaimer given the manufacturer’s guidelines.

That then begs the question that if the stool results “may not be accurate,” then why is the hospital reporting on the results at all?

I’m sure that a fear of liability for not following the manufacturer guidelines in using the product had nothing to do with the committee decision, either.

Diet Blogging is a Crime in North Carolina

Wednesday, April 25th, 2012

North Carolina Board of Dietetics and Nutrition threatens to sue a diabetes blogger and potentially subject him to 120 days in jail for recommending the “Paleo diet“, alleging that the blogger is practicing “nutrition” without a license (which is a misdemeanor [.pdf file]).

The NC Dietetics Nutrition Practice Act really doesn’t state what is permissible, though. Section 90-368 states what practices are not affected under the Act. What can people do without a nutrition license, though?

Charla Burill, the board’s director, states that bloggers have “a First Amendment right to blog about his diet, but he can’t encourage others to adopt it unless the state has certified him as a dietitian or nutritionist.”

To be fair, on some of the blogger’s pages, he offers to sell individual “support packages” for one on one counseling with blog readers which does cross the line. But there are many other issues that show how expansive this North Carolina law really is.

Is Michelle Obama breaking the law when she recommends that people eat broccoli? Oh, wait, the government can tell you what products to buy and can even fine you for not buying them. That’s what the whole Affordable Care Act is about.

Are North Carolina moms going to jail for advising their kids on what to eat at dinner?

Have the publishers of the South Beach Diet book been hit with an injunction in North Carolina?

What happens when a sponsor at Alcoholics Anonymous personally advises another member on how to limit alcohol intake? Watch it, buddy. You’re going to find yourself in the Greybar Motel for doing that.

Another hat tip to Glenn Reynolds at Instapundit for the link.

Oh, and by the way, everyone in North Carolina who has diabetes should eat less refined carbohydrates and eat more sushi and broccoli like I do. It’s the bomb! I’ll just call it the “modified Paleo diet.”

Anna Brown And Appropriate Emergency Medical Care

Tuesday, April 10th, 2012

I’m surprised that this case hasn’t gotten more press.

A patient named Anna Brown was unhappy with the care she received at several hospital emergency departments. When she was discharged from the last emergency department, she refused to leave. Police were called and the patient was carried to a police car. She said that she couldn’t walk. Police took her to jail, carried her into the cell and left her laying on the floor. About an hour later, she was still laying there … dead.

From the public’s point of view, the case appears outrageous. But as I read through the description of what happened and thought about what could have been done different, from a physician’s point of view, I’m not sure what else could have been done.

Christine Byers wrote an excellent article describing events that took place, and then wrote a follow up article in which the hospital defended its care. I’m hoping that the St. Louis Post-Dispatch commends her for her work. She did a great job with the stories.

A summary taken from Ms. Byers’ article shows that Anna Brown was admitted to the hospital for spraining her ankle while walking near a ditch. EKGs, blood tests, and lab work were performed. Ms. Brown was in the hospital from Sept 13 to Sept 15 and then discharged. She walked on crutches after her discharge.


Joanne Doroshow At It Again

Tuesday, March 20th, 2012

Why does the Huffington Post allow Joanne Doroshow to keep posting misinformation?

For those of you who didn’t know, Ms. Doroshow is an attorney who is the executive director for New York Law School’s Center for Justice and Democracy.

Attorney Doroshow’s latest blog post on HuffPo alleges that medical malpractice caps are an “attack on women” and therefore any Republican who votes for medical malpractice caps is risks alienating himself (or herself) from half of all the voters in the United States.


Half of Attorney Doroshow’s post cites opinions from others that the Republican party is engaging in “mass misogyny.”

When she finally tries to justify her kindergarten logic, Attorney Doroshow quotes University of Buffalo law professor Lucinda Finley, stating that

“[C]ertain injuries that happen primarily to women are compensated predominantly or almost exclusively through non-economic loss damages. These injuries include sexual or reproductive harm, pregnancy loss, and sexual assault injuries.”

Let’s look at the legal arguments that Attorney Doroshow has adopted.

Sexual or reproductive harm happens primarily to women.
Is Attorney Doroshow attempting to argue that there are so many fewer lawsuits relating to testicular/prostate cancer, male urologic injuries, testicular torsion, and hernia-related injuries such that malpractice caps would be de facto misogynistic? I notice a deafening lack of statistics to support her assertions. Professor Finley’s article didn’t address the issue, either, but Professor Finley’s article wasn’t limited to medical malpractice caps — it discussed general caps on noneconomic damages.

Pregnancy loss happens primarily to women.
True. Women are the ones who get pregnant. But is Attorney Doroshow attempting to argue that only one parent is allowed to file a lawsuit on behalf of the child when there is a pregnancy-related loss? As an attorney, what is her legal basis for such a claim? How are malpractice caps on a “pregnancy loss” lawsuit discriminatory toward women?

Sexual assault injuries happen primarily to women and are compensated predominantly or almost exclusively through non-economic loss damages.
I agree that sexual assault injuries primarily happen to women. However, sexual assault injuries have little to do with medical malpractice caps. Sexual assault is a criminal issue. Often, victims of crimes receive compensation from a Crime Victims Compensation Fund. Caps on medical malpractice have nothing to do with sexual assault injuries – unless the physician is the one assaulting the patient. And even if a physician did sexually assault a patient, the litigation wouldn’t be a “medical malpractice” issue subject to malpractice caps, it would be a civil tort issue where malpractice caps do not apply.

As further justification for how noneconomic medical malpractice damage caps are discriminatory toward women, Ms. Doroshow again cites Professor Finley, stating

“[J]uries consistently award women more in noneconomic loss damages than men … [A]ny cap on noneconomic loss damages will deprive women of a much greater proportion and amount of a jury award than men.”

There is no comment from Attorney Doroshow on why it is acceptable for juries to discriminate against men in awarding noneconomic damages. However, if legislatures take some action that would potentially neutralize the “discrimination,” Attorney Dorshow alleges the action would constitutes a sleight so severe to the female gender as to amount to instant political suicide. That is simple pig pen effluent.

I agree that $250,000 caps on noneconomic damages are not fair to patients. I also think that we need to find some middle ground where patients can be fairly compensated for their injuries but where medical providers are not subject to bankruptcy from “super losses“.

Joanne Doroshow’s attempts to scare people into opposing H.R. 5 through a campaign of misinformation is wholly inappropriate. Based on her writings, I can only come to one conclusion:

Attorney Joanne Doroshow’s writings demonstrate misandry more than medical malpractice caps demonstrate misogyny.

Tsk. Tsk. Tsk.

More on Perfect Medicine

Thursday, March 8th, 2012

Someone forwarded my the link to this story about a Connecticut woman who filed a multi-million-dollar lawsuit against a hospital and emergency physician for failing to diagnose pulmonary emboli which ultimately killed her husband.

According to the article, the patient went to Stamford’s Tully Hospital emergency department complaining of flank pain. The emergency physician performed a CT scan on the patient’s abdomen “without performing further testing” and then discharged the patient home.

Nine days later, the patient returned to the emergency department in critical condition with blood clots in both lungs. He died the following day.

It is hard to comment specifically about the case without knowing more facts. However, in general, pulmonary emboli are notoriously difficult to diagnose. We do a lot of chest CT scans looking for them, and a vast majority of the time the chest CT scans come back normal. Of course, after the negative result is known, then everyone accuses you of ordering an “unnecessary test” to look for a pulmonary embolism, but that’s another topic for later discussion. So in a patient who comes to the emergency department complaining of flank pain, a blood clot in the lungs is probably not going to be near the top of any reasonable physician’s differential diagnosis list. Flank pain is usually due to kidney problems and the kidneys are in your abdomen at about the level of your belly button. The pulmonary emboli that kill people lodge in the central parts of the lungs, in the center of the chest just to the sides of the heart. See the diagram.

The thing that really bothered me about the article was that the plaintiff’s attorney, Craig Yankwitt, from the Stamford law firm of Silver Golub & Teitell, was quoted as saying:

“They were simply not permitted to discharge without ruling out whether he was suffering from a life-threatening condition.”

This is ridiculous confabulated unsubstantiated calumny. And the purpose of this calumny is to try to bolster the retrospective claim that Mr. Yankwitt will try to use to make millions of dollars:

“Had they performed the additional testing, Mr. Hermann would still be alive.”

There is no rule that a physician or hospital is “not permitted to discharge” a patient without ruling out whether the patient is suffering from a life-threatening condition. To require so would demand perfection in medicine: Doctors are not allowed to miss any life threatening conditions ever, regardless of how obscure or tangential the complaint. Think about if this really were the case.
You come to the emergency department with pain when you urinate and a little bit of blood in your urine. Sounds like a simple UTI … but wait, we are “simply not permitted to discharge you without ruling out whether you are suffering from a life-threatening condition.”
Your could have a pulmonary embolism. That is a life-threatening condition. According to Mr. Yankwitt, you can’t be discharged until a pulmonary embolism has been ruled out. We’ll have to do a CT scan of your chest before you can be discharged.
Kidney cancer is also a life-threatening condition. Add a CT scan of the abdomen and pelvis to the list of tests.
And you *could* be suffering from brain cancer. That’s a life-threatening condition. According to Mr. Yankwitt, you can’t be discharged until that potential life-threat is ruled out. May as well do a whole body CT scan and get it over with.
But wait, you *could* also be suffering from leukemia. That’s a life-threatening condition. We’ll need to get an oncology consult for a stat bone marrow biopsy just to “rule out” that life threat.
You could also have been poisoned by some unknown chemical. We should probably draw a few dozen tubes of blood and send them to the Mayo Clinic to rule out every possible poisoning “life threat.” Been exposed to any strychnine lately? We’ll have to test for that before we’re “permitted” to discharge you. Looks like you’ll be in the emergency department for a while until the tests come back.
Oh, and you *could* be suffering from a Naegleria fowleri infection. That’s verylife-threatening and it doesn’t show up on CT scan. We’ll call the neurosurgeons for a stat brain biopsy as soon as the oncologists are done with you.

By this time, we’ve increased your risks of cancer from all the extra radiation, have increased the risk of a bad outcome from performing surgical procedures, have left a hole in your brain, and have caused you to incur tens of thousands of dollars in extra testing … and we haven’t even scraped the surface of all the “life-threatening conditions” that we allegedly must rule out before we are “permitted” to discharge you.

According to plaintiff attorney Craig Yankwitt’s logic, we’d have to do this testing on every person who comes to the emergency department – even if it was for a hangnail – because we are “simply not permitted to discharge without ruling out whether [patients are] suffering from a life-threatening condition.”

When you wonder why physicians perform low yield testing and why defensive medicine abounds, think of plaintiff attorneys like Craig Yankwitt who perpetuate medically unjustified myths and who use hindsight bias as a means to become wealthy.

Demanding Perfection?

Wednesday, January 25th, 2012

Want more evidence about how many people expect perfect outcomes in medical practice?

Look no further than the Wall Street Journal: “What if the Doctor is Wrong?” by Laura Landro.

As a substantive basis for the conclusion that initial treating physicians are “wrong” when they haven’t yet reached a diagnosis, Ms. Landro interviewed two patients who, in the midst of a workup, left the doctor who was trying to diagnose and treat their problems. Said patients then went to a “mecca” to have their workup completed where … amazingly … the problem is “discovered” and “properly” treated. Even though the initial provider in all likelihood would have done the same testing that the “mecca” performed after reviewing the results of the initial testing – had the patient stuck around long enough to have the testing performed. Even though the “standard of care” may have been to do things exactly the way that the initial provider was doing them. Nope, they’re wrong because they didn’t get to the answer sooner.

When reading about all these “errors” I couldn’t help wondering: Did Ms. Landro have a neutral physician review the patients’ medical records to see whether the care provided to the patients was appropriate? Did Ms. Landro interview the initial treating physicians to determine what the next step in their treatment plans would have been? If so, she kind of left those points out of her article.

I understand the idea that second opinions can be useful and I agree that misdiagnoses are sometimes made. Until we find a single test that is 100% sensitive and 100% specific for diseases such as cancer or complaints such as abdominal pain, there will always be misdiagnoses made. Even once a diagnosis has been made, there are disagreements about how to proceed with treatment. Some prefer one medication for treating certain types of cancer, some prefer another medication. Does that make one side “wrong” and the other side “right”? Hardly.

The title of this article and the slant of this reporting make it appear as if doctors are “wrong” just because they don’t make a diagnosis after the first round of testing. Did Ms. Landro even explore how often the “meccas” get their diagnosis “wrong” on the first visit? Are the “meccas” that much better?

If patients want to mortgage their house to get the tens or hundreds of thousands of dollars necessary for a “down payment” at MD Anderson (original link to WSJ article here) or some other “mecca” when they likely would have gotten similar testing done had they stuck with their initial providers, that’s free market medicine at work.

When journalists imply that excluding diseases on a list of differential diagnoses in the midst of a workup or coming up with “inconclusive” results during testing is “wrong”, shouldn’t we start looking into journalistic malpractice?

What if the Journalist is Wrong?

Worst States For Medical Malpractice Risk

Friday, October 28th, 2011

I just read an article in American Medical News about medical malpractice insurance costs. Included in the article was a small graphic about how much internists pay for medical malpractice insurance.

Internists in Dade County, Florida paid medical malpractice insurance premiums that were 1400% higher than internists in the state of Minnesota. Illinois internists in Chicago paid more than 12 times as much in malpractice insurance premiums as their Minnesota counterparts. In other words, internists in select Florida and Illinois counties pay more for malpractice insurance in one month than internists in the state of Minnesota pay for an entire year.

There are similar premium disparities for general surgeons and obstetricians, with Long Island, NY and Las Vegas NV also consistently being on the list for high malpractice premiums

Does that mean that the Florida and Illinois physicians were 1200% to 1400% more negligent than doctors in Minnesota? Doubtful. It just means that Miami, FL; Chicago, IL; Las Vegas, NV; and Long Island, NY are places where insurance companies have determined that it is much more risky to practice medicine.

When doctors search for the best states in which to practice medicine, they should consider the medical malpractice environment when making that decision. Given these statistics, doctors should not practice in Miami, Chicago, Las Vegas, or Long Island if they want to reduce their medical malpractice risk.

Yet Florida lawmakers reach out to news stations and claim that the state “desperately needs more doctors.”

Suing your way to better health care doesn’t work very well, does it, Senator Nelson?

Healthcare Update — 10-03-2011

Monday, October 3rd, 2011

More medical news from around the web at the Satellite Edition of this week’s update on ER Stories

Australian emergency physician punches and slaps restrained patient who spat in his face. He was terminated from his position. A court held that the termination was unfair. Australian doctors considered going on strike after learning how the doctor was treated after the incident.
When you read the comments section of articles describing patients who assault emergency department staff, many people seem to think that staff should accept abusive behavior due as being “part of the job.” Shouldn’t patients therefore accept abusive behavior from medical staff as being “part of the visit”?

A view of medical malpractice reform misconceptions from physician-attorney William Sage. I disagree with several of his premises. For example, one question Dr. Sage asks “How likely is it, really, that ‘sinister forces’ outside [of medicine] are the reason why tens of millions of Americans lack access to services, or why even those who can afford it often get mediocre care at inflated prices?”
Ask physicians who don’t provide care to patients with certain government insurance plans and who stop taking emergency call or stop performing certain procedures (such as brain neurosurgery) due to liability concerns. Ask doctors who won’t or can’t prescribe medications that are safe through billions of prescriptions because the FDA issues a black box warning that the drugs might have caused adverse reaction in one millionth of a percent of the people receiving them. Then ask patients who can’t afford to purchase certain drugs such as albuterol, colchicine, or (soon to be) Primatene Mist because drug companies jacked up their prices based upon a governmental technicality in approving the medications.
Nah. No “sinister forces” here.

Recent Massachusetts Medical Society survey shows many interesting findings. Specialties in critical short supply included internal medicine, urology and psychiatry. Primary care specialties had severe shortages for 6 straight years. More than half of physicians would be unwilling to participate voluntarily in either global payment programs or accountable care organizations. Oh – and “the fear of being sued continues to be a substantial negative influence on the practice of medicine, affecting access to and availability of physician services.”
Nah. No “sinister forces” here, either.

Another timely rebuttal to some assertions in Dr. Sage’s article. Study in Archives of Internal Medicine shows that 42% of physicians believe that their patients are receiving too much care. Guess what factor contributed to more aggressive care in 76% of cases. Click this link to find out. Hint: “Sinister force” alert.

CMS coming out with bundled payment plans for 2012. Look for the pendulum of clinical care and testing to swing the other way. And look for more people to accuse “greedy doctors and hospitals” of limiting care in order to make more money when, in reality, the government is limiting care through underpayments to providers.

Another reason that getting a ZeePack for your cough might not be a good idea (aside from the fact that it won’t work) … it might cause you to get Crohns disease or ulcerative colitis. Twelve percent of patients diagnosed with Crohns or UC had been prescribed three or more doses of antibiotics in the two years prior to their diagnosis. Only 7% of patients who had developed Crohns or UC had not been prescribed antibiotics. In other words, people prescribed frequent antibiotics were up to 50 percent more likely to get Crohn’s disease or ulcerative colitis within next two to five years. My guess is that they were more likely to get MRSA and C. difficile as well. Study abstract here.

More Florida shenanigans. Physicians Regional Medical Center in Naples, FL has tells specialists that they have to take call for the emergency department in both the system’s hospitals or resign. Many doctors call the hospital’s bluff and resign or change to inactive status. Now emergency patients have less access to specialist care. The comments section has many people blaming “greedy doctors” for the problem.

This case was from last year, but still surprised me. A physician was sued and settled for $500,000 after failing to recommend a pneumococcal vaccination.

Excellent post over at ACP Internist about the costs of medical malpractice.

LA Times reporter gets a glimpse of an evening in one of the busiest emergency departments in the country. Read her story here. Then read the comments section for insight into how “illegal aliens” are causing the problem. The multimedia presentation also has some great pictures.

$4.9 million awarded to patient who suffered brain injury in hospital.

$4 million verdict against emergency physician who diagnosed a 42-year-old patient with “chest pain of unclear cause and bronchitis.” Patient found unresponsive at home 11 days later. Jury decided that a more thorough examination in the emergency department “would have revealed warning signs of an impending heart attack.”

Finally, if you want to learn a more about evidence based medicine, go check out Graham Walker and company’s site at TheNNT.com (the number needed to treat). Lots of new studies and interesting information that is in an easy to understand format for physicians and patients.

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