In medical malpractice cases, parties usually spend a lot of time and money selecting, preparing and producing expert witnesses to explain key technical points to the jury. In New Hampshire, this is a statutory requirement for the plaintiff (see NH RSA 507-E:2, “Burden of Proof”: “In any action for medical injury, the plaintiff shall have the burden of proving by affirmative evidence which must include expert testimony….”), and naturally defendants follow suit with their own experts, to rebut or clarify plaintiff’s experts’ testimony. This conventional “battle of the experts” can lead to stalemate.
The New York Times reported recently on a novel approach by Australian courts to thwart the problem: a new way of hearing expert testimony called “hot tubbing.” With this approach, each side still produces its own experts, but they testify together, asking and answering questions of each other (as well as questions from the judge and lawyers.) This is supposed to allow them to find “common ground,” and “sharpen the open issues,” rather than talk past each other.
In some respects it might put teeth – i.e. real-time accountability to a peer – to the trend some medical specialties have been promoting to police expert testimony within their field (see, e.g., the “Standards of Professionalism” propounded by the American Association of Orthopedic Surgeons for expert testimony).
In theory the “hot tubbing” approach has some appeal, but in practice it may simply add a new characteristic to seek (and associated cost!) when selecting experts: who’s knowledgeable in their field and good at “hot tubbing!”
The New York Times recently reported on a University of Chicago study of “mistakes” in primary care groups, with a focus on errors or omissions in ordering, reviewing, and recording lab results. The article identified the largest error percentage as being related to lab reporting, including delayed or lost reports never forwarded by the lab. Malpractice claims for unreported or misreported lab results are common. However, one of the most interesting comments came from a primary care provider who indicated that patients should always assume responsibility for following-up directly with their primary care provider if they are not notified of the results of pending lab tests.
Health care economists are predicting greater scrutiny of physicians’ clinical decision making and more accountability under the competing plans of Senators McCain and Obama for health care reform. A story posted on MedPage Today compares the McCain plan, which would require transparency about medical outcomes, quality of care, costs and prices and calls for a national standard for measuring outcomes, with Obama’s plan which would require doctors and hospitals to collect and report cost and quality measures, including data on preventable medical errors, nurse staffing ratios, hospital-acquired infections, and care disparities.
An article in the Wall Street Journal last week points out troubling data about the consistency of hand washing by health care providers and urges renewed carrot and stick approaches to increase incentives to wash and disinfect hands more frequently. The article cites research indicating nearly 60 percent of health-care workers do not wash hands while on duty. Despite the widespread installation of alcohol based hand disinfectant dispensers, Nearly a quarter of health-care workers do not regularly disinfect their hands. The author recommends that observers need to be stationed in ICUs and hospital wards, much like traffic cops at the bottom of a hill. Repeated failures to comply, as in the case of my physician colleague, would result in a letter to the offender and a note in his credentialing file or employment record.
The article points out that starting in October, hospitals will be penalized for the consequences of unwashed hands: Medicare will no longer pay for complications arising from certain hospital-acquired infections, which in many cases result from poor hand hygiene. Whether this will be an adequate incentive for health executives to improve hand-washing compliance remains to be seen.
Mark D. Attorri and Jonathan Lax are the authors of the “Guest Commentary” in the August/September 2008 edition of Respiratory Therapy, The Joural of Pulmonary Technique. Their article, entitled, Anesthesia Awareness: There is Room for Skepticism, describes how a trial in which they obtained a defense verdict last year highlighted some of the common misperceptions about the phenomenon of anesthesia awareness, and whether it can be prevented.
This week, the Massachusetts Supreme Judicial Court (SJC) in companion cases recognized what is known as the loss of chance doctrine in medical negligence actions. Under the doctrine, which has come into favor in a significant number of states, the representatives of a deceased patient can recover when the medical negligence of the defendant(s) results in a reduced chance of survival. The SJC contrasted this with the current “all-or-nothing” effect of causation in wrongful death actions, where the plaintiff must show that the defendant’s negligence more likely than not caused the plaintiff’s death, meaning that if the patient began with only a 49% chance of survival, recovery is not possible.
In the first of the cases, Matsuyama v. Birnbaum, the SJC applied the doctrine to a patient who had a less than 50 percent chance to live at the time of the negligence. In this case, the jury found that the failure to diagnose Mr. Matsuyama’s gastric cancer over a five year period reduced his probability of cure from 37.5% in 1994 to 5% or less in 1999. In the companion case of Renzi v. Padres, the SJC held that the loss of chance doctrine also applied in cases where the patient’s chances of survival were greater than 50% when the negligence occurred. In Renzi, which involved the delayed diagnosis of breast cancer, the SJC held that it would be unjust to allow the doctrine to operate where a patient begins with a 49% chance of survival, but not where she initially has a 51% chance of survival.
On July 9th, the Joint Commission issued a Sentinel Event Alert to remind hospitals that as of January 1, 2009, they must have a Code of Conduct that defines acceptable and disruptive and inappropriate behaviors. Hospitals must also have their leaders create and implement a process to manage disruptive and inappropriate behaviors.
In a recent decision, the Massachusetts Supreme Judicial Court upheld the Massachusetts Board of Registration in Dentistry in entering “reciprocal discipline” against a dentist. “Reciprocal discipline” is the term for the imposition of discipline (up to and including revocation of license) against a provider on the basis of other discipline already imposed in another state – often without additional investigation in Massachusetts. In its ruling, the court noted that the legal doctrine of “issue preclusion”, which might ordinarily prevent similar action by a court, did not apply in this case due to 1) the Board’s special regulatory function, and 2) the fact that the basis of the discipline was not the conduct alleged, but the discipline already imposed by another state – which was ascertainable as fact.
A study performed at the University of Michigan reveals that more than three-fourths of patients treated in emergency departments do not understand at least one element of the care they received or their discharge instructions. What may be worse, is that many of these patients are not aware of their own lack of understanding. The study, by Kirsten Engel, M.D. and her colleagues is reported in the July issue of Annals of Emergency Medicine.
The study involved 140 English-speaking patients or their primary caregivers and were interviewed after discharge from an emergency department. The authors examined patient comprehension of four domains of emergency department care – diagnosis and cause, care given in the ED, instructions about Post-ED care, and return instructions. Patient comprehension was assessed by the concordance between their recall of the four domains and entries in the patients’ medical charts.
Overall, 78% of the patients demonstrated inadequate understanding of at least one domain, and 51% had deficient comprehension in two or more domains. Post-ED care was the most common domain associated with deficient comprehension, accounting for 34% of all deficiencies. Next came the actual ED care received (29%), followed by return instructions (22%) and diagnosis and cause (15%).
In a story posted today on Medage Today” Dr. Engel stated “It is disturbing that so many patients do not understand their post-emergency department care and that they do not even recognize where the gaps in knowledge are” and that “patients who fail to follow discharge instructions may have a greater likelihood of complications after leaving the emergency department.”
The University of Michigan Health System has implemented a program to address some of the issues raised by the study’s findings which includes follow-up telephone calls within 24 hours after discharge from the emergency department to discuss the need for return visits or referral to a specialist. Since the program went into effect in February 2007, compliance with scheduled appointments has increased from 59% to 81%.
A disabled patient arrives at a doctor’s office for an appointment. He has a guide dog with him. Your receptionist tells the patient that he cannot bring the service animal into the office. What is the patient to do?
Apparently, sue you – and win. In Dunn v. El Dorado County Comm. Health Cntr., a disabled patient was told that he could not bring his service animal into his appointment. He suffered a panic attack, and EMS was called. The court found that because of his vulnerability, and the health center’s “special relationship” to him as a patient, their conduct was “extreme and outrageous” enough to support his claim for intentional infliction of emotional distress.
In Pages-Ramirez v. Hosp. Espanol Auxilio Mutuo de P.R., No. 07-1407 (D.P.R. Apr. 7, 2008), the plaintiff sued a hospital and treating physician for medical malpractice alleging negligence during labor and post-delivery. The hospital unsuccessfully moved for summary judgment, alleging in part its nurses could not be liable for negligence because they followed the physician’s orders. In denying the motion the federal district court ruled the nurses were held to an independent standard of care.
While attending the 2008 Defense Counsel Seminar sponsered by the Oral and Maxillofacial Surgeons National Insurance Company ("OMSNIC"), our colleague, Judith Feinberg, received a Defense Star award recognizing the work she has performed representing oral and maxillofacial surgeons in litigated matters and administrative proceedings.
Plaintiff’s child was born at St. Anthony’s Hospital with severe neurological injuries. Following delivery the hospital did not conduct a routine factual investigation; however, it’s counsel did. In Cardenas v. Jerath, No. 07-150 (Colo. Mar. 17, 2008) the Colorado Supreme Court ordered the factual portions of the attorney’s notes be produced to the plaintiff because they represented the only report concerning what had happened before, during, and after the birth. The work product doctrine did not shield this information because the plaintiff was unable to obtain the substantial equivalent of this information by other means.
Today’s NEJM has an interesting editorial by a hospital CEO who has recently been making late night rounds to get a firsthand look at discrepancies between the services and staffing available at his hospital between 7:00 a.m. and 7:00 p.m., and during the overnight shift. He cites literature suggesting the consequences of service deficiencies during off-hours include higher mortality and readmission rates, more surgical complications, and more medical errors. he recommends directly involving physicians, nurses, and ancillary staff members in improving nighttime and weekend clinical services by considering pay-for-performance strategies. Since competition among facilities may improve quality of care he suggests quantifying improvements and publicizing the data in consumer friendly ways to help patients make informed decisions. He provides a link to data that eighty Massachusetts hospitals have made available online relating to staffing numbers for every shift of the day: www.patientsfirstma.org.
A story in the Concord Monitor yesterday” reported on testimony of members of the Board of Medicine who testified before a joint hearing of the House Executive Departments and Administration and Health, Human Services and Elderly Affairs committees which was chiared by Rep. Ann-Marie Irwin, the executive department chairwoman. Board Member Brian Stern testified the audit was designed to find problems and was entirely silent on 90 percent of the Board’s work. Board members complained that the audit and the media coverage of the audit’s findings was unfair, and disputed a number of its findings, including the allegation that the Board had failed to investigate 21 percent of complaints made about doctors during the audit period. The Board of Medicine’s chairman testified that his review of records showed only two cases where board members had failed to act on a valid complaint, and the other instances that auditors counted were not investigated because they were outside of the board’s jurisdiction.
After the hearing, Health Committe Chairwoman Rosenwald said the audit has raised several areas that are ripe for policy discussions but also said that the presence of independent controls should allay concerns about the professionalism of the state’s doctors.
The New Hampshire Executive Council will vote on Gov. John Lynch’s nomination of Insurance Commissioner Roger Sevigny for a second term when it meets on May 21.
The Missouri Tort Reform Act, enacted in 2005, is achieving its intended purpose of lowering the number of frivolous medical malpractice lawsuits and lowering doctors’ malpractice insurance premiums, according to the state’s governor, Matt Blunt. In the first full year following the Act’s passage, medical malpractice lawsuits dropped 61 percent when compared with the prior year. Suits against general surgeons, emergency room doctors, and Ob/Gyns dropped by 70 percent. There is anecdotal evidence that Missouri doctors are now seeing their malpractice premiums decline slightly, after years of near 100 % increases.
The Act places a cap on non-economic damages at $350,000 in medical malpractice cases, and limits punitive damages in all tort cases to $500,000 or five times the amount of actual damages, whichever is greater.
Not surprisingly, some are unhappy with the Act’s effects. A member of the Missouri Association of Trial Attorneys’ executive committee told the Missourian newspaper that “You’re lucky if you get $100,000 for losing a leg or being blinded for life. What the governor trumpets as great success we think is a travesty of justice to the people of Missouri.”
4/21/2008
3:52 pm
Last week the health insurer, CIGNA, announced it will no longer reimburse hospitals for a number of costs attributable to medical mistakes. The list of mistakes for which claims for reimbursement may be denied includes:
- objects left inside a patient during surgery;
- air embolism, or sudden artery blockage from air bubbles introduced during surgery;
- use of the wrong blood type during transfusions;
- infections from urinary catheters;
- bed sores;
- infections from central vein catheters;
- mediastinitis, an often fatal inflammation in lung tissue; and
- hospital-acquired injuries such as fractures, dislocations and burns
The Wall Street Journal’s health blog began posting comments in favor of and in opposition to this policy, and which attempt to flesh out what this policy might mean for patients.
Illinois’ largest malpractice insurer, Illinois State Medical Insurance Exchange, has announced that reduced claim frequency for the last two policy years has resulted in $11 million worth of dividends that will be returned to physician policyholders according to a story today in the State Journal Register and posted on www.kevinmd.com . There is disagreement about whether the reduction in claim volume is attributable to legislative damages caps enacted in 2005. The medical society (which pushed for the caps) says yes, the state’s trial lawyers (who opposed the caps) say no. Meanwhile, the constitutionality of those damages caps is under review by the state’s high court.
