Archive for the ‘Medical-Legal’ Category
Friday, April 1st, 2011
 Remember Charles Cullen? The Angel of Death nurse who killed at least 29 patients in various hospitals throughout New Jersey and Pennsylvania? He admitted sneaking into the patients’ rooms at night and injecting them with overdoses of medications – usually either insulin, digoxin, or epinephrine.
Many law firms sued Cullen and the hospitals at which he worked for the patient deaths and won substantial judgments. But several of the law firms took things a little too far.
Charles Cullen obviously didn’t kill every patient that he cared for during his 16 year career. But some law firms sued the hospitals that Cullen worked at solely because Cullen cared for patients who later died. Their lawsuits alleged that Cullen killed patients even though there was a “complete lack of evidence” to support those claims. The cases were dismissed by the trial judge and the dismissals were affirmed on appeal. During depositions in the cases, family members admitted that they had no evidence linking Cullen to the death of the patients, only a “hunch” that the nurse “might” have been responsible.
Now one of the hospitals is suing the law firms for filing these frivolous cases.
St. Luke’s Hospital in Lehigh Valley, PA is suing Cohen & Feeley in Bethlehem, PA and John R Vivian of Easton, PA for proceeding with cases that the attorneys knew were “baseless and lacking in evidence.” In addition, St. Luke’s sued the medical expert who certified the cases, Dr. John J. Shane, alleging that he used a “boilerplate” certificate of merit to allow the cases to proceed and did not even review the medical records of the victims before certifying the cases. Dr. Shane has been in trouble with the law before. In 2008, he was indicted by the Department of Justice for conspiracy and wire fraud (.pdf file) when he and two attorneys allegedly forged the will of a deceased person in an attempt to become beneficiaries of a multimillion dollar estate. Sounds like St. Luke’s Hospital needs to add a cause of action for “negligent hiring” to its lawsuit against the law firms.
The hospital seeks more than $500,000 in legal fees that it paid to defend the baseless lawsuits in addition to punitive damages.
A “loser pays” system in this country would probably have prevented the lawsuits from even being filed. Instead, now the hospital has to spend even more money on attorneys’ fees and file a counterclaim in order to obtain justice.
The hospital should get at least $30 million for noneconomic damages in this case. Maybe more. After all, who can put a value on how much distress the hospital administrators and the hospital staff went through based on the unprofessional actions of these attorneys?
Posted in Medical-Legal, News Commentary | 44 Comments »
Thursday, February 24th, 2011
 I wrote the story below before all of the Wisconsin issues popped up, but the “doctor fraud” scandal segues nicely with the issues in the patient encounter I wrote about.
Kevin, MD had a post yesterday linking to an article in The Atlantic about how physicians in Wisconsin were standing on street corners and writing work excuses for protesting teachers. Videos in the Atlantic article showed the the doctors were writing notes for “stress” based solely on a patient’s history without performing physical examinations. The Atlantic article questions the physicians’ integrity and states that the “profession of medicine has a black eye in this case.”
The author of the Atlantic article is a physician who also writes on health care policy. He calls doctor’s work notes “an employer’s desire to verify through a respected, independent, medically qualified third party the fact of an illness and the true need for convalescence.” I respectfully disagree.
In many of the cases that I see from my practice and those discussed with me regarding other physicians’ private practices, doctor’s work notes have become little more than a legal CYA document for employers and a hoop that employees have to jump through in order to take time off of work.
Can people with a cold go to work? Sure. But if everyone else at work gets sick, then the employer complains to the hospital about why the employee was allowed to return to work. If the employee is given a note not to return to work until symptoms resolve, then the employer complains to the hospital that the doctors are giving the patients too long off of work.
If doctors write for prescription medications for a work injury, or write a patient off of work for more than one day, then employers complain because the care the patient received makes the injury reportable to OSHA.
Employers also put physicians in an ethical bind when they require a doctor’s note for patients who took off time for an illness and are then feeling better and want to go back to work. I can write a note stating that patients are cleared to go back to work, but then patients return and state that the employer needs a doctor to certify that the patients needed to be off of work for the prior “illness” which is now gone and for which the patient never sought medical care.
Commenters to Kevin’s article stated that the doctors were creating inappropriate “legal documents,” were being unethical and were “disgracing the medical profession.”
I think that these statements smack of hypocrisy. Physicians in private practice are monetarily pressured to keep patients happy by doing what the patients want. Hospital based physicians are pressured by the hospitals and by Press Ganey’s patient satisfaction scores to provide sometimes inappropriate care to patients to make the patients happy. In case you had any doubts, refusing to write a note required by a patient’s employer will not make the patients happy. Here’s another example of a patient upset at not getting a 9 month work note from Serenity Now Hospital.
If a physician writes a note off work for a patient because that patient had vomiting “last week” and can’t go back to work without a doctor’s excuse, I don’t think that “legal document” is any less fraudulent than the notes being written on Wisconsin street corners. Yet there is a public outcry in one instance and the other instance is considered “business as usual.”
Just like in medicine, employers are going to get what they pay for. If you require a doctor’s note for an employee to return to work, patients will always be able to find a physician to write them a “note” for work. A work note doesn’t necessarily mean that the employees were really sick. Sometimes it only means that some physicians bow to societal pressures more than others.
The fact that physicians have to be put in that position gives society just as big of a “black eye” as the physicians.
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A patient comes into the emergency department with a harsh cough for several days. Little bit of a runny nose. No fever. Might be influenza, might be some other upper respiratory tract virus. Upset over not getting antibiotics. Given some cough medication and discharged.
Then comes the money question: “What about work?”
“What do you mean?”
“Aren’t I contagious?”
“Probably. But you could technically be contagious for another week or two. Do you think you need to stay off of work that long because you have a cough?”
Wrong thing to say.
“I work around people, though.”
“If you cover your mouth when you cough and you wash your hands regularly, you shouldn’t have a problem.”
“I work in a fast food restaurant, so I’m around food that customers will eat.”
“So you can’t avoid coughing on their food? I guess you could wear a mask … you know what, sir … what else is there that you need for me to do for you today?”
“I need a note for work. My boss won’t let me back until I’m not contagious.”
“I can’t predict when you won’t be contagious any more.”
“Before, you said it could be up to two weeks.”
“So you want a note for two weeks off of work because you have a cold?”
“My boss won’t let me work if I’m contagious. What if I get other people sick?”
This ended up being another one of those no-win situations. If I say “I’m not giving you a work note for your cough,” then the person goes and gets people sick at work and the business complains to the hospital administration. Don’t roll your eyes, it’s happened before. If I write a note like the patient wants, then I look like a dimwit for giving someone off of work for a cold … and the employer complains to administration because the patient was given an extended absence.
So I wrote the following note:
This patient is suffering from a viral upper respiratory infection. This disease can last for up to several weeks and can be spread from one person to another by direct inhalation of viral particles or by coming into contact with contaminated surfaces, including hands. The spread of disease can be reduced by covering one’s mouth when coughing, by washing hands frequently, and by wearing a mask. You, the employer should consider these factors in deciding whether this patient is able to continue working at your facility.
What would you do?
Posted in Medical-Legal, News Commentary, Patient Encounters, Policy | 31 Comments »
Sunday, February 6th, 2011
 Do parents have a “right” to videotape doctors and hospital staff while they deliver their babies in the hospital?
Many hospital delivery rooms are banning cameras or recording devices due to threat of medical malpractice and “litigious atmosphere.”
Judges do it. Try walking into a courtroom with a video camera and videotaping a judge doing his or her job. Your camera would get confiscated before you got through the entryway to the court house. Judges even have immunity from prosecution for negligent actions while on the bench. Doesn’t matter. Can’t videotape them.
Police do it. In some states, it is illegal to videotape a police officer. One Maryland citizen is facing 16 years in prison for videotaping a state trooper that pulled him over for speeding.
Why is there a “stir” if doctors want to do it?
Another story about the issue from the LA Times is here. Money quote in the Times article: “The sue-happy mentality undermining quality medicine, and discouraging quality health care professionals, is a fundamental part of our broken health care system that must be fixed.”
See also this article in the Seattle Times.
Personally, I wouldn’t care if a patient wanted to videotape me and our interaction … as long as I got a copy of the video as well. I don’t have anything to hide. However, I also think society has to respect the wishes of people who don’t wish to be videotaped.
If patients want to make it a “right” to videotape doctors and hospital staff taking care of them or their family members without the staff’s consent, shouldn’t it also be a “right” for doctors or hospital staff to videotape patients without their consent?
Be careful what you ask for …
Posted in Medical-Legal, Policy, Random Thoughts | 38 Comments »
Tuesday, December 7th, 2010
 I’ll preface this post by saying that, as I usually do when discussing specific patient presentations, I made multiple factual changes in the factual information regarding the patient.
An 87 year old lady who is in excellent health comes into the department because she couldn’t move her leg. When she woke up and was fine. Her family helped her get dressed. She read the newspaper at breakfast. Then she went to the bathroom, was in there about 15 minutes, and began yelling for help because her leg hurt and she couldn’t get off the toilet. The family thought that she was sitting too long on the toilet, irritating her sciatic nerve, and thought she just needed to let her leg relax for a little while. A couple of hours later, her leg was hurting her more and she still couldn’t move it, so they called the ambulance.
This was a wonderful little lady who looked like she was 60. She was well-dressed. She carried on a normal conversation and was completely coherent. She joked back and forth with us. Her hair was done up perfectly and she had a fresh manicure. She took a blood pressure pill each day and that was about it. Unfortunately, when you looked at her leg, it was mottled and cold from the mid-thigh to her toes. It was obvious that she had an acute arterial occlusion of her leg. See an example on the right side of the picture above where there is no dye advancing in the femoral artery past the mid-thigh.
I called our vascular surgeon who came immediately and evaluated the patient. He recommended that she be transferred to the tertiary care center in our area where they had “more experience” dealing with these issues and could perhaps do intra-arterial thrombolytics. I called the vascular surgeon at the tertiary care center and he gave a lot of push back. Why were we transferring the patient when we had a vascular surgeon on staff? He demanded to talk to the patient and the family on the phone. While he was talking to the family, the patient had an episode of pulseless ventricular tachycardia.
 .
The patient was a DNR, so we abided by her wishes and did not resuscitate her. About 30 seconds later, she had a pause in her rhythm and spontaneously converted back to normal sinus rhythm. She woke up asking “what happened?”
Upon hearing that the patient had an episode of ventricular tachycardia, the vascular surgeon at the tertiary care center told the family that he would not accept an unstable patient and hung up the phone. The ambulance company refused the transfer.
Our vascular surgeon was faced with a Morton’s Fork. If the patient didn’t have surgery, she would lose her leg and would likely die from the ensuing complications. However, the patient was also a high risk for having surgery. She just demonstrated an unstable cardiac rhythm and her cardiac enzymes were abnormal. Surgery would likely kill her.
The patient and family both wanted the surgery done. “Life wouldn’t be worth living without her leg,” they said. The anesthesiologist at the hospital was having a cow. “Let me get this straight. You want me to justify providing general anesthesia to a patient with an active heart attack so she can have a major surgery?” Time was running short. The artery must be opened within 6 hours of the event. We were at about 5 hours and 15 minutes from the estimated onset of symptoms.
So the patient was taken to surgery to try to re-establish blood flow to her leg. She survived surgery and her leg was warm again.
But for the sake of argument, let’s say that the patient either died or she lost her leg. Let’s also say that the family is very upset about how the patient’s care ended up. Let’s look at the possible outcomes.
If the patient didn’t go to surgery, she loses her leg. The hospital fails to stabilize an emergency medical condition. It gets fined for an EMTALA violation. A shotgun lawsuit against me, the vascular surgeon, the anesthesiologist, and anyone else whose name appears on the chart alleges that we failed to provide limb-saving treatment to the patient. Maybe the patient dies from complications from the amputation. “None of this would have happened if the negligent doctors appropriately treated the patient,” the plaintiff attorney argues.
If the patient goes to surgery, she stands a high likelihood of dying. A shotgun lawsuit alleges that there was a lack of informed consent, that we didn’t give intra-arterial thrombolytics (or get her somewhere that could give them), that we exaggerated the likelihood of a bad outcome if we used conservative treatment, and a litany of other negligent acts. “These negligent doctors knew that there was a high likelihood that the patient would die in surgery, but they chose to risk her life anyway,” argues the plaintiff attorney. “That’s not just negligence, that’s gross negligence. This family deserves punitive damages to keep doctors from making reckless decisions like this in the future.”
If the patient actually went to the tertiary care center and the intra-arterial thrombolytics didn’t work, then everyone is liable because in a time-sensitive situation like this, we chose to waste time attempting a less effective therapy rather than going to surgery and manually removing the clot. “These negligent physicians just let the clock run out on this poor woman’s chances at having a normal leg.”
These scenarios just illustrate the difference between prospective and retrospective medicine. Doctors have to make decisions in five minutes and lawyers have 5 years to tell you why those decisions were wrong.
When patients wonder why medical costs are so high, why fewer and fewer specialists want to take call for emergency departments, and why doctors practice defensive medicine, think about cases like this and decisions similar to this that occur throughout hospitals all over the country every single day.
What would you do if you were the surgeon?
Posted in Medical-Legal, Patient Encounters | 34 Comments »
Wednesday, September 22nd, 2010
Several medical schools and universities sued the IRS for taking FICA taxes out of resident paychecks. The theory was that a “student exception” to tax laws also applied to residents and interns. As of 2005, the IRS changed the tax laws to close this loophole.
The IRS recently accepted the position that FICA taxes should not have been taken from intern and resident paychecks prior to 2005 and is now in the process of submitting refunds to the hospitals and residents who made claims.
If you were a resident before 2005, you may be entitled to a refund of any FICA taxes that you paid, in addition to statutory interest. Check with your training program to see whether it filed a claim on your behalf. I have heard through other docs that training programs will need to submit finalized claims in the near future, so act sooner rather than later if this situation may apply to you.
If your training program did not file a claim on your behalf, you may be out of luck since the statute of limitations has passed for filing such claims. Talk with your tax professional.
More answers to questions about this refund are here: http://www.irs.gov/charities/article/0,,id=219547,00.html
Any tax gurus out there? Since the statute of limitations has passed on the ability for an individual to claim these refunds and interest, can that money now be written off by individual taxpayers as an uncollectable debt?
Posted in Medical-Legal | 6 Comments »
Tuesday, September 21st, 2010
EP Monthly has taken a new twist on its Standard of Care Project.
This month, the editors published a statement regarding whether use of thrombolytics is the standard of care for a stroke. They’re asking emergency physicians who agree with the statement to log in and cast their vote.
The theory behind the project is that if several thousand emergency physicians agree that the standard of care does not require that thrombolytics be given for an acute stroke, those statistics can be published and used as evidence at a trial.
The whole concept is in its early stages, but if you’re interested, go to the home page for the project:
http://www.epmonthly.com/soc/
Posted in Medical-Legal | 5 Comments »
Wednesday, July 14th, 2010
 OK, I’m thinking we need a STAT consult from Walter Olsen at Overlawyered.com. If his blog isn’t on your list of daily reads, it should be.
A Muslim woman named Rona Mohammedi comes to the Somerset Medical Center emergency department with “severe chest pain.” She refuses to get undressed in front of a strange man so that EKG leads could be applied to her body in order to see whether she was having a heart attack. Already JCAHO is going to have a field day with this case.
Apparently the patient demanded that a woman perform the EKG and no women technicians were available. The patient waited in the emergency department for five hours before leaving against medical advice and going to another hospital. Now she is suing the first hospital for discrimination and for violating the patient’s bill of rights.
In the linked article, the author of a book on Muslim women’s civil rights says that “a number” of such lawsuits have been filed and some settlements and compromises have been reached.
If you undress the patient against her will, you’re sued for assault and for violating her religious rights.
If you don’t undress the patient, you’re sued for discrimination.
If you don’t undress the patient and you miss a medical problem, you’re sued for malpractice.
Kind of like bringing your car to a mechanic and threatening to sue him if he opens the hood, but also threatening to sue him if he doesn’t fix your car.
Yes, the patient’s initial request was only for a female EKG technician. But what if there were no female nurses? Or no female doctors? Or no female radiology technicians? Is the patient going to dress back up after her EKG and refuse further examination?
What if the EKG showed an acute MI? Thrombolytics and cath lab on hold until we can find an all-female staff?
If Jehovah’s Witnesses can refuse blood transfusions and then accept the responsibility for their actions, Muslim women who refuse to disrobe in the emergency department should do the same. This woman and her lawyer should be forced to reimburse the hospital for having to defend this frivolous lawsuit.
This case is another example of why we need to begin using video cameras to capture interactions in emergency department examination rooms.
By the way, does anyone know whether or not Muslim women are allowed to wear hijabs in prision? Or in court?
UPDATE JULY 15, 2010
First, thanks to Jenn and Muhammad for answering my questions in the comments section. Their answers and a comment on the New Jersey newspaper’s web site raise another important issue.
A commenter on the newspaper’s web site stated that “Rona’s husband is a NY Attorney, and the attorney covering the case is a partner in his law firm. This is probably more a case of entitlement and arrogance as opposed to the Hospital not respecting their religious rights.”
I checked for attorneys with the last name of “Mohammedi” on Martindale.com and wasn’t able to find an attorney in NY or in NJ with that last name. However, using Google, I did find an attorney named Omar Mohammedi who works in the NYC Commission on Human Rights who is the president of the New York Area Muslim Bar Association.
If what Jenn and Muhammad are saying is true regarding Muslim religious requirements, then it raises a question in my mind whether this patient may have purposely misstated the requirements of her religion so that she could get preferential treatment or possibly even as a pretense so that she could file a lawsuit.
If the patient really did overstate the requirements of her religion, Somerset Medical Center and any doctors named in the lawsuit should be filing their own lawsuit against the patient for fraud and filing ethics charges against her attorney and her attorney’s law firm for perpetuating the fraud.
Come to think of it, maybe they should file the lawsuit anyway and let a jury decide what really happened. That’s what lawsuits are for, right? Resolving disputes?
Posted in Medical-Legal, News Commentary | 33 Comments »
Friday, June 4th, 2010
I was going to include this article in the rest of the Healthcare Update, but pulled it out and made it a separate post after reading this related article in the Christian Science Monitor – “Justice Department declares war on doctors”
Five orthopedists sued for antitrust violations and settle case.
Workers compensation in Idaho wasn’t paying enough, so these orthopedists allegedly colluded to refuse to treat any workers compensation patients until the state raised the rates that were being paid. In addition, several of the physicians allegedly threatened to stop seeing Blue Cross Blue Shield patients because Blue Cross payments were insufficient. Orthopedists across Idaho even published articles in the newspapers regarding the Blue Cross dispute. Now, as a result of the settlement, the orthopedists won’t be able do this same thing in the future.
Other documents from the antitrust case are contained here.
The assistant attorney general stated that “The orthopedists who participated in these group boycotts denied medical care to Idaho workers and caused higher prices for orthopedic services.” No word on when this brainiac is going to file suit against all the state and government hospitals that deny care and cause higher medical prices. Oh. Forgot. States and insurance companies are exempt from antitrust actions, so no one can sue them for colluding to deny care.
I think I’ve discovered how patients will be guaranteed care under the new health care proposal. If too many doctors stop seeing Medicare and/or Medicaid patients because the reimbursement is too low, the Justice Department will just step up its antitrust enforcements.
Watch what happens to speed and quality of care then …
Posted in Access to Care, Insurance, Medical-Legal | 24 Comments »
Friday, May 21st, 2010
 Ambulance service held liable for failing to “do what was necessary” before accepting emergency transport of pregnant patient.
I mentioned this case in a previous Healthcare Update.
A child was born at 25 weeks gestation – 15 weeks premature – and was not breathing. Babies born at this age have a viability of 50-70%. In other words, up to half of children born at this age of gestation die. The family called 911. The paramedics arrived, performed CPR on the child, and brought the child back to life. I know a lot of physicians who would have difficulty resuscitating such a premature infant.
These paramedics should have been commended as heroes for saving this child’s life.
Instead, they were sued and found liable for $10 million.
The plaintiff attorney stated that “the paramedic should have evaluated her before they transported her.”
In its verdict, the jury found that the ambulance company “was negligent by accepting the transport task” and the company showed “reckless disregard” in rendering its services.
So instead of getting to the mother as soon as possible, getting the baby out, performing CPR, and saving his life, the attorney apparently believes that the paramedics were supposed to diddle around arguing about whether or not to transport the mother to a hospital. Good idea. Let’s write that requirement into all future Florida EMS protocols. We can call it the “Kelley Amendment” – named after Bob Kelley, the plaintiff’s attorney in the case.
After the verdict, the ambulance company may soon have to determine whether it can stay in business.
A past-president of the American Ambulance Association is quoted as saying “EMTs and paramedics will go on the call until lawsuits like this break the bank and they can’t go anymore. That is $10 million that comes out of the ability to provide care, and the community will suffer because of that cost.”
As I’ve asked in the past … which is more important – perfect care or available care?
Jurors in Florida’s Volusia County seem to have made their decision.
It will be interesting to see whether the jurors’ decision to award an additional $10 million to someone who had the benefit of excellent care yet who experienced a bad outcome will affect the future availability of emergency transport in Volusia County and other Florida counties.
My guess is that few EMTs will want to work in Volusia County any more.
Regardless of the verdict, you EMTs are still heroes in my book.
UPDATE May 23, 2010
Additional facts about the case (and commentary) from the Editor in Chief of JEMS
Posted in Access to Care, Medical-Legal | 128 Comments »
Friday, May 7th, 2010
Nice article from the AMA comparing medical malpractice systems in other countries to that in the US.
Highlights:
Litigation costs in the US are twice those in other countries, with half of US payments going to legal costs rather than compensating patients.
Few other countries allow cases to be decided by jurors. Most use judges or administrative procedures to determine liability.
Canada and the United Kingdom impose caps on pain and suffering awards to “screw the injured” (a “Mattism” – not actually quoted that way in the article).
Most European countries prohibit contingency fees which are almost exclusively used in the United States.
Canada, Europe and Australia all have loser-pays provisions in their medical malpractice systems. The US does not.
Sweden’s average award for 2004: $22,000. US median award for 2005: $400,000 with 21% of awards being more than $1 million.
Internists in Canada pay between $1800 and $3200 per year for malpractice insurance. Internists in Cook County and Madison County, Illinois pay more than $41,000 per year. Obstetricians in Cook County pay nearly $180,000 per year in malpractice insurance.
Unfortunately, the article quotes Common Good’s Phil Howard, so according to certain people who read this blog, none of it can be believed.
Posted in Medical-Legal | 77 Comments »
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Medical Malpractice Firms Get Taste of Their Own Medcine
Friday, April 1st, 2011Many law firms sued Cullen and the hospitals at which he worked for the patient deaths and won substantial judgments. But several of the law firms took things a little too far.
Charles Cullen obviously didn’t kill every patient that he cared for during his 16 year career. But some law firms sued the hospitals that Cullen worked at solely because Cullen cared for patients who later died. Their lawsuits alleged that Cullen killed patients even though there was a “complete lack of evidence” to support those claims. The cases were dismissed by the trial judge and the dismissals were affirmed on appeal. During depositions in the cases, family members admitted that they had no evidence linking Cullen to the death of the patients, only a “hunch” that the nurse “might” have been responsible.
Now one of the hospitals is suing the law firms for filing these frivolous cases.
St. Luke’s Hospital in Lehigh Valley, PA is suing Cohen & Feeley in Bethlehem, PA and John R Vivian of Easton, PA for proceeding with cases that the attorneys knew were “baseless and lacking in evidence.” In addition, St. Luke’s sued the medical expert who certified the cases, Dr. John J. Shane, alleging that he used a “boilerplate” certificate of merit to allow the cases to proceed and did not even review the medical records of the victims before certifying the cases. Dr. Shane has been in trouble with the law before. In 2008, he was indicted by the Department of Justice for conspiracy and wire fraud (.pdf file) when he and two attorneys allegedly forged the will of a deceased person in an attempt to become beneficiaries of a multimillion dollar estate. Sounds like St. Luke’s Hospital needs to add a cause of action for “negligent hiring” to its lawsuit against the law firms.
The hospital seeks more than $500,000 in legal fees that it paid to defend the baseless lawsuits in addition to punitive damages.
A “loser pays” system in this country would probably have prevented the lawsuits from even being filed. Instead, now the hospital has to spend even more money on attorneys’ fees and file a counterclaim in order to obtain justice.
The hospital should get at least $30 million for noneconomic damages in this case. Maybe more. After all, who can put a value on how much distress the hospital administrators and the hospital staff went through based on the unprofessional actions of these attorneys?
Posted in Medical-Legal, News Commentary | 44 Comments »