Archive for the ‘Medical-Legal’ Category
Sunday, August 7th, 2011
When I first heard about the lawsuit in which Louisiana attorneys sued a hospital system because it didn’t prepare well enough for Hurricane Katrina, I thought they were kidding. Really? Hospitals have to be built to withstand hurricanes and flooding from one of the deadliest and costliest storms in American history?
Now I see the absolute futility in trying to use logic to defend against lawsuits.
Tenet Healthcare has decided to settle the class action lawsuit against it for $25 million.
When the nation’s resources couldn’t even rescue many hurricane survivors, the hospital corporation was sued because of “insufficiencies in [its] backup electrical system” and because it did not have sufficient “plans for patient care and evacuation” during one of the worst hurricanes in the country’s history. The failed levees and the government’s lackluster response are not at issue, though. Plaintiff attorneys called those factors “irrelevant” to the responsibility that the hospital had in the face of the hurricane.
That leaves me wondering. What is a hospital’s duty to patients in the face of a disaster?
I’d ask the lawyers, but I’m sure that no one would answer. And the legal community apparently didn’t set the bar very high for itself during the same disaster. After all, courthouses and law offices in New Orleans were closed after Hurricane Katrina. For heck’s sake, the MAIL wasn’t even being delivered.
The problem is that the civil legal system works retrospectively, saying that “if only you took these measures, the injury would not have occurred” or “if only you hadn’t done this, the injury wouldn’t have occurred.” Of course, it is easy to determine what should or should not be done after the fact. Law is the ultimate Monday Morning Quarterback. I have never seen an attorney issue a press release stating that liability should never ensue if a person or corporation takes or avoids certain measures.
So what can we do prospectively to prevent similar lawsuits against hospitals in the future?
Not defensive medicine … defensive corporate action plans, of course.
I’ve come to the conclusion that everyone really needs to pay hospitals a lot more for providing health care.
After all, in the event of an invasion from outer space, it’s going to cost a heck of a lot of money to have laser canons mounted on top of every hospital in the United States to defend patients from aliens who are hell bent on sucking out the brains of infirm humans with extra-terrestrial soda straws.
Tuesday, July 12th, 2011
Walter Olson at Overlawyered.com forwarded me a case to comment upon.
The opinion was King v. St. Barnabas Hospital.
The facts of the case are that a 38 year old off-duty prison guard was playing basketball in the prison gym when he collapsed. Seven minutes later, medical clinic staff arrived to find the patient unresponsive and not breathing. CPR was started. A defibrillator was used to check the heart rhythm and the patient’s heart was in asystole, or “flat line.” The patient was defibrillated once – after one first responder thought the patient may have had episodes of ventricular fibrillation. The patient remained in asystole. No IV line was started and the patient was not intubated, even though the first responders had the equipment available. Six minutes later, a doctor arrived and inserted an IV. Epinephrine was given, but the patient remained in asystole and was pronounced dead.
The plaintiff’s expert – unnamed in the appellate opinion – testified that to a reasonable degree of medical certainty that defibrillating someone in asystole “eliminate[s] any chance of recovery for the patient” and that “securing the patient’s airway and administering oxygen is ‘vital’ to avoid hypoxemia.” The failure to provide IV medications “contributed to [the patient's] failed resuscitation and death and diminished his chances of survival.”
The trial court threw the case out, noting that the expert failed to show any studies showing survival rates of patients in asystole or whether medications given post-arrest improves a patient’s chances of survival.
The appellate court reversed the decision of the trial court, stating that the patient was “found in a life-threatening, nonresponsive state” and that ACLS protocols wouldn’t exist if there wasn’t evidence that the protocols improve survival.
I have so many issues with the case and the testimony that I don’t know where to begin.
Let’s start with the appellate court opinion. Dear justices: This patient wasn’t in a “life-threatening” state. He was dead … for seven minutes. Asystole without respirations equals death. If the medical personnel are able to revive a patient, they have brought the patient back from death. Failure to snatch someone out of the Grim Reaper’s hands should not be a compensable harm.
The expert’s opinions also bother me.
Yes, technically defibrillation causes “damage” to heart muscle. There is no evidence that defibrillation decreases survival or recovery for patients in asystole.
While it wasn’t known at the time the incident occurred, Dr. Gordon Ewy showed that delaying resuscitation for intubation actually decreases survival as well.
Failure to provide IV medications similarly has little effect on survival. Epinephrine doesn’t improve immediate survival or hospital discharge in cardiac arrest when AHA guidelines are followed. This paper (.pdf) shows that epinephrine actually tends to cause a trend toward less survival in cardiac arrest.
UPDATE: I forgot to check David Neuman, Graham Walker et al’s incredibly useful site “The Number Needed to Treat” regarding the utility of ACLS medications in cardiac arrest. Evidence-based opinion: 100% of patients receiving the medications “saw no benefit.”
A plethora of case law requires that expert opinions have some basis in fact. There was no basis for causation and there was little if any basis for the expert’s other opinions. A plaintiff should not be able to proceed with a case based on an unsubstantiated expert’s opinion about standards of care and causation. The circuit court was right to throw out the case. If the expert had some studies supporting his theories, he needed to put up or shut up.
I also thought it was … interesting … that the appellate court’s opinion identified the defense expert by name, but did not identify the plaintiff’s expert. Why was that? Afraid that the expert may take heat for his opinions if his name was published?
The appellate court took almost 2 years to come up with this opinion and then blew it.
Hopefully the New York Court of Appeals has better sense.
Tuesday, June 14th, 2011
Who (if anyone) is to blame?
Man and squirrel fight it out in man’s driveway. Squirrel scratches him twice, man runs inside grabs BB gun and plugs squirrel ala Elmer J Fudd. Man then calls health department for advice about what to do. Health department tells him to go to ED for rabies shots. After waiting for 2 hours the following day in the ED, the patient is told that squirrels don’t carry rabies in the United States and he doesn’t need the rabies shots. Later he is billed $692 for the emergency department visit and doesn’t want to pay the $382 deductible.
The patient stated that “the health department and the hospital should get together and straighten it out.”
Should a hospital and physician be responsible for getting payment from third parties when patients don’t like the medical advice they have received? Isn’t that kind of like someone in a restaurant telling the owner to get payment from the noodle maker because the patron didn’t like the spaghetti?
Wednesday, June 8th, 2011
I occasionally get asked to review charts from other emergency departments in order to determine whether the care provided was appropriate. One of the cases from a visit to a competitor emergency department is below.
A patient with a longstanding history of migraine headaches comes to the hospital for another one of her typical migraine headaches. Light aversion, noise aversion, nausea – all her usual symptoms. She ran out of her Imitrex and when she called her doctor for a refill, she was told to go to the emergency department instead. Her exam showed no physical abnormalities. She got a shot of Imitrex and a shot of morphine. Her headache improved and she was discharged home with her usual headache medications.
Two days later, her headache returned. She happened to be visiting family in a large city and went to the emergency department in a hospital where we often refer patients. This time she was having visual changes. The emergency department physician there gave her more Imitrex and morphine and called neurology to come see the patient. The neurologist evaluated the patient and discovered papilledema on her funduscopic exam. A lumbar puncture confirmed the diagnosis of pseudotumor cerebri.
Fine. The diagnosis may or not have been missed on the first visit. Assume it was.
I got asked to review the chart because the patient complained to the hospital administration. The patient was upset because two of the doctors at the tertiary care hospital told the patient words to the effect of “You’re lucky. If we hadn’t have caught this, you’d be blind in a couple of days.”
Are their self worth that low that they have to make inflammatory statements like this in an effort to aggrandize themselves? You didn’t call the docs involved. I checked. You didn’t request a copy of the chart from her emergency department visit. I checked that, too.
Statements like this, even if they are true, serve little purpose. The patient didn’t lose her vision. Her vision was normal. Woo hoo. You saved her. Don’t dislocate your shoulder patting yourself on the back.
Actually, statements like that do serve one purpose. They make it a pretty good bet that none of the doctors in our department will ever refer another patient to you or your your hospital.
And if a patient tells any of our docs about any of your screw ups, chances are pretty good that the rest of us will hear about it. Chances are also pretty good that our docs will let any other patients who might need your services in the future know about your mistakes and how you aren’t perfect, either.
picture credit here
Thursday, April 28th, 2011
The news feed that I read each day came up with a link to an interesting legal opinion in a Georgia district court relating to care in the emergency department.
The case involved federal agents who went to a trauma center to question a patient in the emergency department who was being treated for a gunshot wound. During the questioning, another patient was brought in by ambulance for a gunshot wound. The detective watched as doctors “stuck their fingers into defendant’s chest wounds.” After the patient had been wheeled off to surgery, detectives confiscated the clothing that had been left in the room as evidence. The patient was later indicted for shooting the first gunshot victim. The patient-defendant then sought to suppress the evidence against him that was obtained in the emergency department, alleging that detectives were not lawfully present in the emergency department and that the incriminating nature of the confiscated clothing was not readily apparent.
The district court denied the defendant’s motion.
However, it was the reason for the denial that raised my interest.
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?
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.
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?
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 …
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?
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?