NK+M: Differential Diagnosis

We recently posted about New Hampshire’s proposed “early offer” bill pending in the Senate. The bill has become a topic of heated discussion among state legislators.

An article today in the Concord Monitor showcased differing opinions regarding, in particular, a provision that would require a medical malpractice claimant to prove “by clear and convincing evidence that the medical care provider acted with gross negligence in causing the injury” if he or she refused an early offer of compensation.

Opponents of the bill warn uninformed patients may request an early settlement under the proposed system only to receive a low offer and then face the heightened legal threshold in court.

Those in favor of the bill note patients would retain the choice of whether to request an early offer or proceed with litigation.

The Concord Monitor quoted Rep. Kathleen Souza, a Manchester Republican, as saying, “There are amendments coming from every direction… I’ve never seen a bill that’s got so many opinions.”

A recent opinion piece in General Surgery News has an interesting take on physician attitudes toward medical malpractice claims as more and more of their practice groups are being acquired by large healthcare systems:

A politician recently complained to me she couldn’t get doctors riled up about tort reform anymore. It used to be the one issue she could count on to get the MDs agitated across almost all gender, age, ethnic and specialty lines. I explained to her the answer is simple: The doctors are not paying their premiums anymore, their bosses are. The days of opening the envelope from the insurance company and gagging while you converted the premium to surgical units are over (how many carotids am I going to have to do to pay this monster with premiums going up and fees going down!). I doubt the majority of surgeons even see their premium notices anymore.

As an employee, the economic imposition of discovery and trial is also eliminated. To a small-business owner, sitting in court for three weeks as a defendant with no income while bills pile up on your desk is almost worse than the indignity of being sued. When you’re drawing a salary and someone else is paying the practice expenses, three weeks in trial that starts at 10 a.m. and ends at 4 p.m. with 90 minutes for lunch Monday through Thursday, unless the judge has a dental appointment, can be a relief from the daily grind. Working in a system also depersonalizes malpractice actions because the entity is the defendant. In the Kaiser system, the plaintiff’s case is brought against Kaiser and its employees. It is not necessary to single out the emergency room doctor, nurse, hospitalist, internist, anesthesiologist or surgeon. Nasty finger pointing among co-defendants who are colleagues has no strategic value and is eliminated. With all the defendants lined up like fish in a barrel, the job of the plaintiff’s lawyer is easier and cheaper.

Are you surprised the plaintiff’s lawyer winds up being the main beneficiary from the shifting attitudes among surgeons concerning the litigation crisis? Intractable problems rarely get solved. Problems cease when those affected have a change in circumstances or perception. Replace surgeons in private practice with surgeons who don’t pay their own insurance premiums and the malpractice crisis for doctors becomes a line item expense for ownership. You can argue about the wisdom of replacing the court system with medical tribunals, limiting damages for noneconomic awards and the ultimate cost of defensive medicine, but it all becomes academic to the surgeon when the boss starts paying the bills.

The editorial, entitled “Spam in a Can,” was written by Dr. David Cossman, a vascular surgeon in Los Angeles.

Yesterday, seven Massachusetts hospitals, and coalition of physicians and patient groups detailed an initiative – “The Road to Reform” which they hoped would increase the reporting of medical mistakes and curtail lengthy malpractice litigation. Three insurers and a medical group have donated approximately $1 million for a pilot program, the Boston Globe reported. Any suspected medical error can be reported to the hospital, which will determine whether the caregivers or hospital policy or practice were at fault. If fault is determined, the caregivers will apologize and the hospital and insurers will determine what compensation to be offered to the patient. Hospitals will encourage patients to hire lawyers to evaluate the offer’s fairness; and if the proposed settlement is insufficient, the patient can sue the hospital and care providers. The results of the pilot program will be evaluated. The coalition is also seeking legislation providing a six month cooling period after an error occurs before a patient can sue; and to prohibit the admissibility of caregiver apologies in subsequent lawsuits.

Meanwhile, in New Hampshire, the Concord Monitor reported on the first day of hearings on Senate Bill 406 which would give patients the option of accepting an early money offer from a medical provider after a botched procedure or other medical injury. The legislation’s purpose is to “cut down” costs and protracted disputes with uncertain results. A leading advocate for the program, Jeffrey O’Connell, a University of Virginia law professor, testified the bill allows both sides to “bypass the lawyer’s game.” If the patient rejects the offer and subsequently sues, they must meet a higher burden of proof to be compensated for their medical injury claim. Opponents call the bill a “Trojan Horse” that will lure patients into accepting a low ball offers or fighting an uphill court battle. Further testimony is planned for next week.

The Board has long been an administrative model for other licensing boards across the country, as well as other administrative boards. However, the Board’s practice in maintaining physician profile information has now come under scrutiny by a Northeastern University Initiative (a journalism project). http://articles.boston.com/2012-03-18/lifestyle/31208155_1_state-medical-board-public-database-three-female-patients . The Initiative compared records published in the profile section of the Board’s web site (available to the public) with those filed in the National Practitioner Data Bank (“NPDB”) (available only to health care facilities), and found reported discrepancies.

The discrepancies may arise from differences in reporting standards between the two agencies. For example, if a physician in Massachusetts loses or fails to renew their license, their profile is removed. Physicians who are in voluntary agreements not to practice (“VANP”) pending a criminal matter are listed only as and under a VANP – the criminal matter is not listed. Any action over ten years old is automatically removed from a physician profile, and only hospital discipline is listed – not discipline by health care facilities such as clinics and nursing homes. Out of state disciplinary actions are never posted.

Although many of these reporting standards are a product of state law, the published article regarding the initiative has gotten wide distribution and has been quoted bypatient’s rights advocates. The Board may react to this media exposure with an increased focus on certain categories of physician investigation and discipline.

The Massachusetts Appeals Court reversed a defense verdict, determining failure to issue a jury instruction regarding a regulation admitted into evidence was prejudicial error. The plaintiff had multiple blood draws over a three-hour glucose tolerance test at the defendant clinic. Moments after leaving the clinic, he struck a telephone pole while in a hypoglycemic (low blood sugar) condition. He then filed suit for damages arising from the accident.

At trial, the judge admitted 105 CMR 180.042 into evidence. The Massachusetts regulation requires, in pertinent part, that blood collection stations have a physician available for consultation, and that personnel are trained to handle emergency situations and aid a distressed patient.

The plaintiff requested a jury instruction as to the significance of a jury finding that the clinic failed to comply with the regulation. The judge declined to do so, and the jury returned a verdict finding the clinic was not negligent. The Appeals Court explained violation of a regulation in Massachusetts is evidence of negligence as to all consequences the regulation was intended to prevent. Given proper instruction, the jury could have determined the clinic’s violation of 105 CMR  180.042 was evidence of negligence.

The Court rejected a defense argument that a witness must testify the regulation was violated in order to justify such an instruction. Further, the Court identified multiple trial witnesses offering evidence of a violation. A physician testified hypoglycemia is the most dangerous and most common problem that can arise during a glucose test, and the plaintiff was hypoglycemic upon leaving the clinic. A phlebotomist at the clinic testified she did not know the signs and symptoms of hypoglycemia, and no doctor was present during the time she worked at the clinic.

The Appeals Court ruled the trial judge had a duty to inform the jury as to the legal significance of the regulation. The case, Campbell v. Cape & Islands Healthcare Services, Inc., is a reminder that violation of a safety regulation governing health care facilities, while not conclusive, is evidence of negligence.

The Massachusetts Supreme Judicial Court held a plaintiff petitioning to stay the indefinite suspension of her medical license may obtain review before a single justice under the certiorari statute, G.L. c. 249, § 4.

In August 1992 the Massachusetts Board of Registration in Medicine (Board) issued a statement alleging the plaintiff’s ability to practice medicine had become impaired by her “mental instability.” The Board temporarily suspended the plaintiff’s license the same day. The plaintiff entered into negotiations with the Board and, in 1996, agreed to the suspension of her license. Pursuant to the agreement, her suspension would be “stayed” if she complied with certain conditions requiring her to seek psychiatric treatment and submit to monitoring by the Board.

In 2001, the plaintiff entered into a “probation agreement” with the Board and was able to return to the practice of medicine. Three years later, the Board was notified the plaintiff has ceased treatment with her psychiatrist. The Board “vacated the stay” on her suspension.

The plaintiff brought suit, arguing that she could challenge the Board’s decision under the Massachusetts Administrative Procedure Act or the Professional Licensing Act. The Court determined neither statute applied because her license had already been suspended and the Board retained discretion to deny her petition to stay the suspension.

However, the Court held the plaintiff could seek judicial remedy under the certiorari statute, which allows aggrieved parties to “correct errors in quasi-judicial administrative proceedings… which are not otherwise reviewable by motion or appeal.” The Court then set forth standards for determining whether an agency proceeding is “quasi-judicial,” and whether a plaintiff has no other reasonably available remedy.

The decision, Hoffer v. Board of Registration in Medicine, establishes an opportunity for physicians to seek review or correction of a Board procedure after all administrative remedies have been exhausted.

On January 19, 2012 the Arkansas Supreme Court issued an opinion in the case of Broussard v. St. Edward Mercy Health System striking down a key provision of the state’s Civil Justice Reform Act of 2003 which required that expert testimony in a medical malpractice case be given by a health care provider of the same specialty as the defendant.   The court concluded the legislature exceeded its authority by drafting a provision that dictated court procedures. The court previously struck down provisions of the law regarding evidence, damages, and permissible defenses.

A recent report by the Committee on Patient Safety and Health Information Technology of the Institute of Medicine of the National Academies stresses the importance of evaluating new technologies to ensure that are having their intended benefit of increasing patient safety: “Advanced technology can create some new paths to failure at the same time that it blocks others.”  One way in which new technologies may be increasing rather than decreasing the risk of adverse outcomes is by is by distracting care providers from the immediate task at hand – the patient.    Hospitals can expect increased scrutiny following a report in the New York Times (December 14, 2011) about the risk of “distracted doctoring” which can occur when doctors and nurses pay too much attention to the ubiquitous electronic devices at their disposal, particularly when those devices are being used for surfing the web or communicating on social media.  A study presented at the 2011 annual meeting of the American Society of Anesthesiologists found that nurse anesthetists and residents were distracted by something other than patient care in 54% of cases – mostly by surfing the internet (Abstract 1726).  A peer reviewed survey of 439 medical technicians published in the journal, Perfusion found that 55% of technicians who monitor bypass machines during open heart surgeries acknowledged talking on phones or texting during surgeries.   From a risk management and litigation perspective, doctors and nurses should assume that whatever they are doing on their handheld devices and tablets may be discoverable.   The best way to avoid having to answer questions at a deposition about why you were trying to beat your high score on Angry Birds while your attention should have been focused on a patient is to turn the device off, or ensure you are using it to obtain information about the patient.

A recent story in the Boston Globe stressed the importance of CPR training for runners so that they can lend assistance to other runners who suffer a cardiac arrest during a race.  The Globe article cited a recent study in the New England Journal of Medicine that examined 59 runners whose hearts had stopped over the past decade in the United States.  Of the 31 cases where complete data was available, researchers found that all 8 of the runners who survived their heart attacks had received CPR from a bystander.   Only 10 of the 23 who died received CPR.   The study’s author, Dr. Aaron Baggish, who is the  associate director of the Cardiovascular Performance Program at MGH notes that “the number one predictor of survival of cardiac arrest during a race was whether a runner had access to bystander CPR.”    To try to improve the chances that a runner who suffers a heart attack during the Boston Marathon this year receives prompt CPR, the Boston Athletic Association, in cooperation with the American Red Cross and the American Heart Association, will hold 30 minute training sessions for marathon participants and their families the weekend before the race.

A patient filed a class action in federal court in New York last week against his dentist over the issue of whether patients can be prevented from posting a poor review regarding the dentist’s services on any of several websites that track such reviews (e.g. Yelp!, which carries the tag line “real people, real reviews.”)

The patient had been suffering from an emergent toothache, arrived for treatment, and was required to sign a “Mutual Agreement to Maintain Privacy” form before he could receive treatment.   The patient admits he understood it, but reasoned he couldn’t see how or why the dentist would apply it to him, and in any case he was in great pain, so he signed.  After that initial visit and a follow up to place a filling, he was charged $4800; he claimed this was excessive, and further that the dental office failed to follow through as promised on submission of documentation to the patient’s insurance carrier for reimbursement.

In frustration, the patient posted reviews on websites that track consumer feedback, complaining the dentist overcharged him and failed to file reimbursement documentation.  The dentist responded (invoking the “privacy agreement”) by demanding the patient remove the critical comments, and by sending invoices purporting to charge $100/day while the reviews remained up on the websites.  The patient finally filed the lawsuit, seeking class status for all patients who had been forced to sign the form “agreement.”  The suit argues the “agreement” should be declared void, as unconscionable.

The case raises several interesting issues: the patient’s information is already protected by the Health Insurance Portability and Accountability Act (HIPAA), so the form is one-sided. Likewise, it purports to abrogate First Amendment rights; meanwhile, the feedback poster could bear liability for inaccurate postings, if libelous.  The suit is pending, but according to “Ars Technica,” a technology news and information website that covered the story,  the form was prepared and widely distributed (2000+ doctors) by a North Carolina-based company called “Medical Justice,” which has now decided to “retire” the use of the form in the wake of this lawsuit.

Massachusetts’ Supreme Judicial Court (“SJC”) concluded yesterday that Federal law preempts a State licensing board from interpreting, applying and enforcing OSHA standards when disciplining a professional, in its review of an order from the Massachusetts Board of Registration in Dentistry (“Board”).

Following two patient complaints, the Board investigated Dr. Stephen Chadwick’s office and found multiple deficiencies. First, the Board found Dr. Chadwick failed to provide training for his employees before offering Hepatitis B vaccination, and did not maintain records of employee vaccinations. Second, the Board determined Dr. Chadwick’s monthly office trainings on infection control did not comport with OSHA standards or CDC guidelines. The Board also interpreted Dr. Chadwick’s practices of disposing of glass tubes and blood-spotted cotton balls in a manner that violated OSHA standards.

The SJC held that the Board could mandate compliance with OSHA standards in dental practices, and could sanction dentists for professional misconduct after OSHA has determined a violation has occurred, but the Board “may not interpret, apply, and enforce OSHA standards regarding workplace safety on its own accord.”  (The decision is Chadwick v. Board of Registration in Dentistry, SJC-10831 (December 8, 2011).

Because Federal OSHA standards preempt control in Massachusetts, the SJC found that the Board’s decision regarded Dr. Chadwick violated the Supremacy Clause of the U.S. Constitution, citing Gade v. National Solid Wastes Mgt. Ass’n, 505 U.S. 88 (1992).  The Board’s interpretation, application and enforcement of OSHA standards constituted improper assertion of concurrent jurisdiction by the State. Also, it represented direct and substantial State regulation of occupational safety and health issues that are covered by Federal standards.

The Court remanded Dr. Chadwick’s case for the Board to reassess his penalty of a six month license suspension followed by five years of probation. A finding that Dr. Chadwick failed to conduct required weekly spore testing for sterilization equipment was affirmed, as it was not based on OSHA standards.

The Massachusetts Supreme Judicial Court upheld a decision and order of the Board of Registration in Medicine (BOM) that revoked a physician’s license to practice medicine because of his failure to maintain insurance and improperly dispensing a controlled substance. The BOM found that Vernon Kellogg had falsified his expired malpractice insurance certificate from 2004 to reflect coverage through 2007 and dispensed controlled substances out of a free clinic at his home.

Kellogg challenged the BOM’s decision — Kellogg v. Board of Registration in Medicine, SJC-10931 (December 6, 2011) — on the grounds that board proceedings violated his constitutional rights. Mr. Kellogg also argued the requirement that he maintain malpractice insurance violates the contracts clause of the U.S. Constitution.

The Court cited Massachusetts Rules of Appellate Procedure in declining to consider Kellogg’s claim because he failed to provide legal and factual support for his arguments. For example, he did not provide a record of the BOM procedures followed, or provide an explanation of which BOM actions violated his rights.

A woman who sued Tufts Medical Center for allegedly violating her privacy by faxing four pages of medical records to her workplace has dropped her lawsuit.   The plaintiff alleged that her co-workers read the records (which related to her recent hysterectomy), causing her embarrassment, exacerbating her other medical issues, and stalling her career.  The defendants denied any wrongdoing and contended that the plaintiff had requested the information to be sent to her workplace.  The case, filed in Plymouth County Superior Court, has now been dismissed with prejudice by agreement of the parties.  The hospital made no offer to settle the case.

The Massachusetts Supreme Judicial Court has ruled that a plaintiff may amend his malpractice complaint to add a claim for wrongful death after the seven year repose period for medical malpractice actions has expired.

The plaintiffs in Sisson v. Lhowe  filed their original malpractice action against the defendant physicians in February 2006, alleging a course of substandard medical care from January to November of 1999.  The complaint alleged that the defendants’ negligence had caused the plaintiff patient to suffer injuries “including, but not limited to, expected premature death.”

The patient died in March 2007 while the action was pending. In March 2008, the plaintiffs amended their complaint to add claims for wrongful death. Prior to trial, the defendants moved to dismiss the wrongful death claims, arguing that the statutory repose period had expired in November 2006, seven years after the last alleged negligent conduct. The Superior Court granted the motion and dismissed the wrongful death claims.

The Supreme Judicial Court vacated the dismissal and remanded the case. The Court agreed with the plaintiffs that the repose period applies to any “action” for malpractice, and the personal injury and wrongful death claims were parts of the single action for malpractice filed in 2006. It rejected the defendants’ argument that personal injury and wrongful death are distinct “causes of action” because each claim is covered by a different statute, each is treated differently in regard to damages, and a wrongful death action does not accrue until the time of death.

The Court concluded “that a wrongful death claim may be substituted for a personal injury claim only where (1) trial has not commenced; (2) the original complaint alleging malpractice was filed within the statutes of limitation and repose; and (3) the allegations of liability supporting the personal injury claim are the same as those supporting the wrongful death claim.”

In a dissenting opinion, Justice Spina argued that the Court was inappropriately employing a “relation back” analysis, and amendment of the complaint should be denied because the clear intent of the repose statute is to extinguish malpractice claims seven years after negligent acts or omissions.

A Connecticut trial court judge has ordered Greenwich Hospital to disclose about 200 documents from the credentialing file of a plastic surgeon who performed surgery despite known drug problems. 

The surgeon, Ian Rubins, died in 2008 at age 46 of a heroin overdose.  The plaintiff, who underwent surgery in 2006, has sued the hospital for allowing Dr. Rubins to perform the surgery despite being aware of his substance-abuse problems.  Hospital officials say they were aware of Rubins’ drug problems but that he completed rehabilitation programs.

The Greenwich Times reports that the Court’s order also allows the plaintiff’s counsel to question hospital officials and others who administered drug tests to Rubins.

State investigators have cited “alarm fatigue” as a factor in the August 2010 death of an ICU patient at UMass Memorial Medical Center in Worcester.  The 60 year-old patient died when alarms signaling a rapid heart rate and low blood oxygen level went unanswered for nearly an hour.  According to an article in The Boston Globe, this was the second such death at UMass Memorial in the last four years. 

The 2010 death was investigated by the Massachusetts Department of Public Health, whose report was obtained by the Globe.  The report cited various violations by the hospital, including failure to respond to alarms “in a timely manner.” 

“Alarm fatigue” occurs when audible signals from monitoring devices are so numerous and frequent that clinicians become overwhelmed or desensitized to them, possibly leading them to disable, silence, or ignore the alarms.  One study documented an average of 942 “serious” alarms per day on a 15-bed unit (about one alarm every 90 seconds).  Other studies have found that more than 85 percent of alarms are false.  In the UMass Memorial case, for example, the patient was restless and agitated and kept removing his blood oxygen monitor, causing an alarm to sound much of the day. 

Officials at UMass Memorial say they are intensifying their efforts to address the problem of alarm fatigue following the death.  Experts contacted by the Globe, however, said the problem is widespread and has not been fully solved at any hospital.  These experts say the key to a solution is in better machines that will more accurately gauge whether a patient is in crisis before an alarm sounds.

In Fitzsimmons v. Fradella (N.Y. Supreme Court, Nassau County, March 30, 2011), an attending gynecologist encountered difficulty with abdominal adhesions during a laparoscopic cystectomy.  A surgical consult was requested and the responding surgeon assisted in the operation which included removing an infected cystic mass.  After the patient was diagnosed with a perforation she claimed the surgeon negligently failed to obtain informed consent, failed to review the her medical history prior to participating, and failed to provide post-operative follow up.  The surgeon’s motion to dismiss was granted, with the court ruling the surgeon’s limited role did not form a basis for these liability claims. It was the gynecologist’s duty to obtain informed consent and the surgeon could rely on the information provided to him by the gynecologist about the patient’s history.

In Odei v. St. Mary’s Hospital the Connecticut Superior Court ruled a joint venture claim against an independent anesthesiologist and the hospital will proceed to trial.  The patient claimed the anesthesiologist failed to properly interpret a transesophageal echocardiogram resulting in a surgical injury.  Suit was brought against both the hospital and anesthesiologist, with the plaintiff alleging the anesthesiologist was the hospital’s agent because the hospital and anesthesiologist had entered into a joint venture to provide anesthesiology services to the hospital’s patients.  The hospital’s motion to dismiss was denied.  The court cited to the agreement whereby the hospital would provide patients and examination space to the practice and the anesthesiology group would provide physicians and equipment.  The hospital unsuccessfully argued it did not control patient treatment.  The court ruled that issue was to be determined by the jury.