An interesting editorial in the Wall Street Journal by Law Professor Richard Epstein looks at how courts in other countries with universal health care coverage handle claims of medical malpractice. The differences identified may help explain some of the costs associated with the current U.S. system. Profesor Epstein notes that medical malpractice premiums constitute < 1% of the total U.S. health-care bill, but the costs associated with "defensive medicine" may add as much as 10%. He advocates for reforms that would allow physicians, hospitals and patients to contract out of the0 "liability mess " by letting the parties reject state-imposed malpractice rules. "They could, for example, choose to arbitrate, to waive jury trials, or to limit damage recovery. Stiff competition and the need to maintain reputation should keep medical providers in line in such a system. Market-based solutions that make the private sector more responsive should in turn undermine the case for moving head-first into a government-run health-care system with vast, unintended inefficiencies of its own."
On Monday the Supreme Court refused to hear an appeal of the decision in IMS Health Inc. of Norwalk, Conn and Verispan LLC, which upheld N.H’s law that prohibits data mining, the practice of analyzing and selling data about individual doctor’s prescription-writing habits. The companies who challenged the law wanted to argue it violates their First Amendment right to free speech in pursuit of their business. The New Hampshire law is aimed at thwarting aggressive sales tactics by drug companies to doctors by criminalizing the transfer of information disclosing a doctor’s prescribing history if the information could be used for marketing of prescription drugs in New Hampshire.
The 1st U.S. Circuit Court of Appeals in Boston reversed a decision of the District of New Hampshire which originally struck down the law, calling it a violation of the data mining defendants’ free speech rights. The First Circuit disagreed, finding that N.H.’s law was a valid step to promote the delivery of cost-effective health care. Bolstered by N.H.’s success in passing such a law and having it upheld, Vermont passed a similar law which has recently been upheld despite challenges in federal court. The 2nd U.S. Circuit Court of Appeals is allowing Vermont to enforce a law similar to the New Hampshire ban on data-mining prescription information.
Beth Israel Deaconess Medical Center is starting a pilot program called “Open Notes” that will allow patients to have access to their physicians’ progress notes. The program is intended to increase and improve communication between patients and doctors, but some doctors have expressed concerns that it will increase their workload (when patients contact them for clarification about abbreviations or statements patients don’t understand) and upset patients (if the notes contain statements that the patient finds insulting).
In February a federal jury in Boston awarded $1.6 million to a neurosurgeon who claimed a senior surgeon at Brigham and Women’s Hospital subjected her to sexist and racist comments, and retaliated against her for complaiing. Dr. Sagun Tuli claimed Dr. Arthur Day trivialized female doctors, and during one surgery he allegedly said, “You are just a girl. Are you sure you can do that?” The facts of the case are set forth in an earlier order issued by the court. The jury found in favor of Tuli against the hospital for creating a hostile work environment, and for retaliating against her by requiring her to be evaluated by outside physicians after she complained. She also alleged slander against Day, and the jury found him liable. However, it only awarded her $1 on that claim.
An interesting Op-Ed piece in yesterday’s New York Times describes the rise in the number of Americans who are having surgical procedures performed overseas. While many surgeries can be done less expensively overseas, the authors stress the need for further investigation about the long term costs associated with off-shore procedures, and call for increased participation by foreign hospitals in comparative performance monitoring.
A Naples, Florida physician who prescribed pain medication to undercover agents has been sentenced to prison for 30 months for violating the federal Controlled Substances Act. As reported Monday, her appeal to the Supreme Court was declined.
Her basis of appeal was that “the federal government overstepped states’ Tenth Amendment right to regulate the practice of medicine.” She found support from the Pain Relief Network, a national group that advocates for the rights of pain patients and doctors. That group’s general counsel, Laura Cooper, noted that
Essentially the issue is the judge instructed the jury to apply a national standard of care that does not exist… States define acceptable standards of care.
While the state’s Board of Medicine does regulate the practice of medicine, it does not define a local, state-based standard of care for particular treatment decisions. Rather, when NH courts talk about the standard of care for medical care providers, they follow the statute (NH RSA 507:E-2), which discusses the standard of care
in the medical care provider’s profession or specialty thereof, if any, at the time the medical care in question was rendered[.]
In other words, the scope is within the practice specialty or subspecialty at issue, rather than within some political/geographic boundary.
According to a story in the Providence Journal the Rhode Island Supreme Court upheld a $500,000 plaintiff’s verdict against an 82 year old urologist. Dr. Jacques Susset. The suit was brought by a 57 year old patient with severe kidney problems who ultimatley required a kidney transplant. At trial the Dr. Susset offered conflicting testimony about why records maintained by his office and produced during discovery did not include certain diagnostic test results, or notes of an office visit just prior to the patient’s PCP admiting her to the hospital. Superior Court Judge Alice B. Gibney instructed jurors that in their deliberations, they could consider whether relevant evidence had been destroyed. “Under certain circumstances, spoliation of evidence may give rise to an adverse inference that the missing or spoliated evidence would have been unfavorable to the position of the party unable to produce it. A showing of bad faith is not required before the jury will be permitted to draw this inference. . . .Spoliation of evidence may be innocent or intentional or somewhere in between.”
In a unanimous opinion the R.I. Supreme Court affirmed the verdict and rejected Dr. Susset’s argument that the jury instructions on spoilation of evidence were improper and unfairly prejudicical. Taken as a whole the Court concluded the instructions “did not so prejudice the jury as to warrant reversal.” See
Dr. Susset has also recently been disciplined by the R.I. Board of Medical Licensure and Discipline for using the Blue Cross member number of his sister-in-law to fill prescription medications for another relative.
A Frederick County jury Friday awarded nearly $4 million to a boy whose family claimed his cerebral palsy was caused by the defendants’ negligence. Two defendant doctors, an emergency room physician and an obstetrician were held responsible for Ryan Dineen’s condition. Three nurses, a third doctor and the hospital were not held responsible.
According to the complaint Suzette Dineen sought treatment at Frederick Memorial Hospital at 5:00 a.m. on May 7, 2000 with complaints of abdominal pain, vomiting and diahrrhea. An attempted fetal heart tracing showed a fetal heart rate of 128 beats per minute when she was first admitted. The defendant emergency room doctor was advised of her condition at around 5:45 a.m., and the defendant obstetrician was advised of her condition at 7:00 a.m. Neither doctor evaluated her and no further fetal tests were performed until after 8:00 a.m. when the fetal heart rate was found to be 30 beats per minute, at which point L&D was contacted. The award includes $71,000 in past medical expenses; $870,000 for medical expenses until age 18 and $2 million after age 18; $750,000 for lost wages; and $300,000 for pain and suffering.
The Massachusetts Legislature is considering SB 574 which would establish a Health Apology Pilot Program and encourage medical professionals to apologize for medical mistakes by making such apologies inadmissible in judicial proceedings. Even without the legislation some area hospitals have already implemented such programs. Recently, the Boston Medical Center apologized to the parents of a newborn who was given an excessive dose of morphine by a nurse. After the mistake was discovered the nurse and a doctor met with the family and offered to bring in a crisis team. The hospital released a statement to the media acknowledging the medication error, and promising an internal review and steps to prevent a recurrence.
The need for, and impact of such “sorry works” legislation is the subject of an interesting post on RangelMD.com in which Dr. Rangel acknowledges what data from states which have adopted measures to encourage apologies shows; apologies lead to prompt resolution of potential claims and lower litigation costs.
Since implementing a “sorry works” program six years ago the University of Michigan Health System has cut the amount it reserves for medical malpractice claims by 65%, reduced the number of open claims from 262 to 63, and cut the average time to resolve a claim in half. As a result, annual attorney fees for medical malpractice cases have dropped from $2.2 million in 2001 to less than $1 million in 2008. Similar successes are reported by the Henry Ford Hospital, which has reduced its medical malpractice expenses by 62% from 2001-2008, despite a 25% increase in patient volume during the same time frame.
On the eve of trial a West Viriginal Hospital agreed to pay $2 million to settle a wrongful death lawsuit that included claims of negligent credentialing. The suit was brought by the family of a patient who died in 2005 after her stomach was perforated during a transabdominal lapraroscopic cryoablation to remove a potentially cancerous lesion on her kidney. The patient subsequently developed an infection that led to her death. The suit initially included claims against the surgeon and his assistant, who the plaintiff alleged had no experience performing this type of procedure. The doctors settled prior to trial, leaving the hospital as the sole defendant. During discovery the individual defendants made inconsistent statements about their level of experience performing the surgery, whether the surgeon controlled the assistant’s actions during the procedure, and whose idea it was to perform the procedure.
Doctor/Author Atul Gwande has written another interesting article. The “Cost Conundrum", published in the New Yorker on June 1, 2009 examines the causes of excessive medical costs in McAllen Texas, one of the most expensive markets for medical care in the U.S. Dr. Gwande’s article considers the role that the threat of malpractice claims and defensive medicine has on costs, but questions whether litigation is to blame, since Texas has statutory caps on non-economic damages. His investigation revealed a fragmented, quantity-driven systems of health care that did not adequately focus on collaboration among providers, prevention, and quality of care.
A six person Superior Court jury in Providence, R.I. returned a $4 million plaintiff’s verdict after a three week trial against an orthopedic surgeon. The plaintiff was a former truck driver for the Providence Journal,. He alleged the defendant was negligent during surgery in 1999 to remove a benign tumor and improve the mobility of his arm. During the surgery, a nerve in the plaintiff’s arm was inadvertently cut, which led to permanent nerve damage, disfigurement, and mental pain and suffering. The award included $1.5 million for physical pain, $1.5 million for mental suffering, $500,000 for disfigurement and $500,000 for lost wages.
A New Hampshire federal district judge has ruled that a personal injury plaintiff may recover the full amount of a provider’s charges for medical services to treat injuries caused by a defendant’s negligence, even where the provider has accepted less than the that amount in full satisfaction of the charges pursuant to its contract with Medicare or Medicaid. In a recently issued decision in Aumand v. Dartmouth Hitchcock Medical Center, Judge Joseph LaPlante rejected the defendant’s pretrial motion for a ruling that the reasonable value of the medical services at issue was the amount actually accepted by the provider. The judge opined that such a ruling would undermine the collateral source rule, which holds that a plaintiff’s recovery may not be reduced by amounts paid by insurance. The judge also precluded the defendant from introducing evidence of the “write-downs” to show the actual, reasonable value of the services provided, holding that to allow such evidence would constitute an “end-run” around the collateral source rule. The court acknowledged that the issue was controlled by New Hampshire state law. In the absence of controlling precedent from the New Hampshire Supreme Court, the federal judge relied upon other federal decisions and case law from other jurisdictions, reasoning that New Hampshire would adhere to the same policies. There is no indication whether the ruling will be appealed.
Last week a federal jury returned a plaintiff’s verdict in a malpractice and wrongful death suit against a N.H. hospital. The decedent, a 79 year old woman, developed fluid in her lungs after open heart surgery in 2005. While being treated an IV line leaked fluid into the tissue of her hand, requiring surgery to amputate several fingers, and ultimately to an infection. The jury awarded $598,000 to the estate and $385,000 to the surviving husband. According to a story published in
Today’s New York Times has an interesting piece about a trend in the delivery of healthcare: hospitals are trying to compete with the walk-in clinics CVS and Wal-Mart have been developing.
The trend has some good and some potentially harmful side effects:
•“The walk-in centers help clear hospital emergency rooms of people seeking only basic medical care, like antibiotics for strep throat.” Crowded emergency departments complicate accurate and timely triage.
•“But in contrast to E.R.’s, which in many states cannot legally turn away those unable to pay, the retail clinics typically serve only patients with insurance or money.” Economically healthy hospitals can offer more services; this trend would siphon off a portion of higher-yield, paying patients.
•“[These clinics are] typically staffed by physician assistants or nurse practitioners, often supervised remotely by doctors….” Remote supervision, like remote consultations, is a concept which will only grow as hi-tech communications modalities (like video teleconferencing from a laptop, or even a mobile phone) become more effective, cheap, and ubiquitous. This trend extends the reach of experts, but can in some situations compromise the level or quality of interaction.
As the projected shortage of primary care providers continues (and grows worse), and economic competition applies its force, we can expect the trend towards this “retail” care in accessible, low cost locations to expand.
Likewise, the use of so-called “physician extenders” – and technology to further extend range, will continue to expand. Negligent supervision and novel agency claims may not be far behind….
NH House Bill 40 passed in the House and is now in committee at the Senate (and due for hearing next week). The proposed law addresses the requirement that hospitals regularly report the infection rates at their institution. (We’ve noted the law in prior postings.)
The proposal says:
In addition to other fines and penalties imposed under this chapter, the [NH] commissioner [of health and human services], after notice and the opportunity for hearing, pursuant to rules adopted under RSA 541-A, may impose an administrative fine of up to $1,000 for each day of noncompliance upon any hospital required to report infection rates under this section.
If passed and signed into law in its current form, the act will take effect January 1, 2010.
The Connecticut Medical Examining Board is holding disciplinary hearings relating to a family practitioner who was performing liposuction procedures at his office. Two of his patients developed complications and needed to be rushed to nearby Stamford Hospital for treatment. According to an expert who testified at the hearings, the doctor was practicing as nurse, anesthesiologist, and surgeon, without having adequate life support equipment to deal with complications that might arise. There are also questions of whether the doctor’s advertisements about his qualifications to perform plastic surgery, were false and misleading. The hearings will resume in June.
According to a story in the Reading Eagle changes mandated by the Pennsylvania Supreme Court in 2003 have reduced the number of medical malpractie cases filed in the state. Specifically, a requirement that plaintiffs bring suit in the county where the alleged negligence occurred (rather than in Philadelphia where verdicts tend to be larger), and a requirement that an expert certify the defendant’s care was negligent before a plaintiff is allowed to file suit have caused a decline in the number of malpractice suits being filed. The Pa. Medical Society is continuing to lobby for additional reforms, including a cap on non-economic damages.
An interesting article in the on-line journal, TodaysHospitalist discusses a shortage of Intensivists to staff ICUs, and whether Hospitalists cam be traimed tp pick up the slack to care for some of the most critically ill patients in ICUs.
According to a story in the AMA’s on-line newsletter, a Massachusetts trial court has refused to dismiss a lawsuit filed by doctors complaining about a tiering program mandated in 2006 by the Group Insurance Commission, a state agency that oversees health insurance for public employees which they claim has misled patients while besmirching doctors’ reputations.
