Archive for the ‘Medical-Legal’ Category

Inevitable Malpractice

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?

The IRS May Owe You Money

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?

What’s The Standard of Care for Strokes?

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:


Don’t Eyeball Me

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?

Government Declares War on Doctors

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 …

Florida Verdict May Threaten EMS Availability

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

Malpractice Systems in Other Countries

Friday, May 7th, 2010

Nice article from the AMA comparing medical malpractice systems in other countries to that in the US.

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.

More on Criminalizing Medicine

Tuesday, April 6th, 2010

Just read about a case involving the next step down the slippery slope of criminal prosecution of physicians.

First Michael Jackson’s physician gets prosecuted when his physician gives him an unintentional overdose of an anesthetic medication when trying to help him sleep. According to a previous discussion on this topic, most people seemed to think that prosecutors were justified in those charges.

Now, Dr. Mathew Wallack is being criminally investigated for illegally prescribing excessive doses of narcotics.

Who should be responsible when a patient dies from an overdose of medication and a physician allegedly prescribes “too much” of that medication? Oh, and how do we define “too much”?
Then who should be responsible for making sure that patients aren’t getting multiple prescriptions from multiple physicians – which could result in an overdose and death?
Then who should be responsible if physicians don’t have access to that information – preventing them from determining whether their prescription, combined with the patient’s other prescriptions, may lead to overdose and death?
Then who should be responsible if physicians prescribe a one-month supply of medications and the patients take them all within a week and die?

This is why I think criminal prosecution of physicians who make mistakes is a bad idea. We may be able to pick out the “outlier” cases that might warrant criminal prosecution, but should we subject those practicing medicine to criminal prosecution by using vague definitions? Take their licenses away. File civil actions against them. Jail time shouldn’t be part of the paradigm.

The further we travel down the road of criminalizing medicine, the more difficult it will become to draw a line between what is and is not considered “criminal” behavior … and the fewer physicians that will want to practice medicine.

Got Breast Milk?

Saturday, February 13th, 2010

pouring milkA mom is given a newborn baby to nurse during middle of night in the hospital (one of Dr. Wes’ hospitals of all places, too). Only problem was that the mom was accidentally given another family’s infant. The mom then nursed another family’s baby. A nurse walked in the room and was surprised to see mom nursing the wrong child. After learning about the mistake, now mom and her personal injury attorney husband are suing the hospital for more than $30,000.

Hmmm. If they’re suing for the value of lost milk, a couple of ounces for $30,000 amounts to about a quarter million dollars a gallon.
Comparing breast milk to oil, according to the lawsuit, this mom’s milk would cost $10 million per barrel. OPEC is lucky if it makes $150 a barrel — those guys really need to hire her husband’s law firm.
If they’re suing for her lost time, then 10 minutes to nurse the kid amounts to $180,000 an hour for wetnursing. That’s not bad coin, either.
Although you do have to consider that her husband’s law firm stands to make about one-third of any judgment, so her potential take home is considerably less.

Just another example of why we need a loser pays tort system in this country.

In the comments below, Max Kennerly made an interesting claim. The parents’ lawsuit against the hospital might be able to proceed on a theory of battery.
If it is a battery claim, then these poor injured plaintiffs should really be suing the newborn infant for negligent suckling. Why are they suing the hospital?
The hospital can’t batter anyone – unless one of its lights falls off the ceiling and konks someone on the noggin. And I’m sure the aide who handed the baby to the mom didn’t offensively touch the mother.
Oops. I almost forgot. Battery claims require intent – they’re intentional torts. So the lawsuit still has no business being filed.

Come to think of it, I think that the infant’s family should sue the mother. After all, Jennifer Spiegel intentionally shoved her boob in this poor infant’s face, probably scared the hell out of the kid, and could have nearly suffocated him. And she did all this without even checking to see whether or not it was her kid.
In fact, the hospital should probably call the Department of Child Protective Services on that lady.
Battery. Indecent exposure to a minor.
Jail time isn’t good enough for her. Bring back the stockades.

Nurse Acquitted

Thursday, February 11th, 2010

Anne E. Mitchell, the Texas nurse who had been charged with a felony for reporting the actions of a doctor to the state medical board, was acquitted after a jury deliberated for less than an hour about the case.

Her attorney focused everyone on the pending litigation that Ms. Mitchell and the other accused nurse have against the county, the hospital, the doctor, and other officials.

“We are glad that this phase of this ordeal has ended and that Anne has been restored to her liberty … but there was great damage done in this case, and this does not make them whole.”

Go get ’em.

Popular Authors

  • Greg Henry
  • Rick Bukata
  • Mark Plaster
  • Kevin Klauer
  • Jesse Pines
  • David Newman
  • Rich Levitan
  • Ghazala Sharieff
  • Nicholas Genes
  • Jeannette Wolfe
  • William Sullivan
  • Michael Silverman

Subscribe to EPM