NKMS: Differential Diagnosis

As noted here previously, New Hampshire recently considered the question of whether a plaintiff could state a claim for “loss of a chance”. “Lost Chance Doctrine” allows a plaintiff to claim damages for a lost “chance” at survival, even if s/he cannot demonstrate that he would have survived if an alternative treatment had been rendered. The New Hampshire Supreme Court recently ruled that a plaintiff could state such a claim and proceed to trial, even if her pre-trial “chance” of a better outcome was less than 50%. The New Hampshire legislature promptly amended the applicable statute: the law in New Hampshire is now that “loss of chance” is a cognizable claim only when the plaintiff can demonstrate that her initial chance for survival was greater than 50%, meaning that more likely than not the alleged negligence was the cause of her adverse outcome.

Massachusetts reached a different outcome. In the Commonwealth, a plaintiff may state a claim for loss of chance even if his chances of survival were less than 50%. However, his damages are tailored to reflect the magnitude of the “chance” lost. See Holt, Brad, Two Roads Diverge: Comparing Loss of Chance, New Hampshire Bar Association News, October 16, 2009.

Now, Ohio has joined the fray. In a recent decision, an Ohio appeals court ruled that a plaintiff was entitled to a jury instruction on loss of chance, even when his chances of survival were less than 50%. Interestingly, in that case (Geesaman v. St. Rita’s Medical Center), the court found the plaintiff was entitled to the instruction even when he had proceeded to trial on a traditional negligence theory, and loss of chance had not been raised until expert testimony at trial.

Although there are many different approaches to lost chance doctrine, and states vary, this is an area of activity that bears watching.

The Massachusetts Board of Medicine (“Board”) has been without one public member and one physician member for over a year. The Board has also been functioning without an appointed Exceutive Director – the Chair of the Board, John Herman, MD, has been serving as an interim director. However, the Board’s public listing of appointed members is now under revision, implying that new members will be announced. As you may recall from previous posts, the Board delayed promulgating new regulations until a full panel of new Board members had been appointed and an executive director named. The Board’s proposed regulations, which dramatically expanded the Board’s investiture in certain aspects of enforcement, were removed from the Board’s web site after the Notice and Comment period. The filling of Board vacancies and the appointment of a new Executive Director could reactivate the promulgation of new regulations. Stay tuned.

On 2/4/10 the Supreme Court of the State of Illinois overturned the State’s cap on non-economic damages in medical malpractice cases, finding the cap to be unconstitutional. In Lebron v. Gottlieb Memorial Hospital , the court declared the health care reform statute constitutionally unenforceable since its limitation on non-economic damages in medical malpractice actions ($500,000 for doctors and $1,000,000 for hospitals) violated the separation of powers doctrine by limiting courts’ ability to correct jury verdicts.

LANDYA BOYER McCAFFERTY SELECTED AS
NEW UNITED STATES MAGISTRATE JUDGE

Chief Judge Steven J. McAuliffe announced today that Landya Boyer McCafferty, Esq., has been unanimously selected by the judges of the court as the next United States Magistrate Judge for the District of New Hampshire. Attorney McCafferty will replace retiring Magistrate Judge James R. Muirhead in the late spring of 2010.

Attorney McCafferty performed her undergraduate studies at Harvard University and received her law degree from Northeastern University in 1991. Upon graduation she served as a law clerk to the Honorable Norman H. Stahl, both in the District of New Hampshire and in the United States Court of Appeals for the First Circuit, and later to the Honorable A. David Mazzone in the District of Massachusetts. She practiced law at McLane, Graf, Raulerson & Middleton, PA and then served as a staff attorney and assistant appellate defender with the New Hampshire Public Defender Program for over 8 years. Attorney McCafferty currently serves as Disciplinary Counsel to the New Hampshire Supreme Court’s Committee on Professional Conduct.

Chief Judge McAuliffe commented on her appointment: “Attorney McCafferty’s good judgment, legal acumen, litigation experience, and temperament all qualify her for this critical federal judicial office. The judges of this court are very confident that she will be well received and respected by both the public and the bar, and will serve the nation with distinction. We all very much look forward to her arrival.”

New Hampshire’s House defeated a bill on Wednesday that would have allowed the legalization of assisted suicide for terminally ill patients.

The House voted 242-113 against the bill, which would have allowed the terminally ill to obtain lethal prescriptions, with safeguards to prevent abuses. Supporters argued the bill would give people the dignity they deserve in their final days. Opponents argued was a prescription for abuse for the elderly and disabled. Among the unresolved areas were who would be covered by the bill and who would gain immunity from prosecution for assisting in the death.

The Associated Press had an interesting report this week on Norway’s national effort to reduce infection rates in the medical care context. (Hat Tip: Yahoo, by way of Instapundit)

Forty years ago, a new spectrum of antibiotics enchanted public health officials, quickly quelling one infection after another. In wealthier countries that could afford them, patients and providers came to depend on antibiotics. Trouble was, the more antibiotics are consumed, the more resistant bacteria develop.

Twenty-five years ago, Norwegians were [...] losing their lives to this bacteria. But Norway’s public health system fought back with an aggressive program that made it the most infection-free country in the world. A key part of that program was cutting back severely on the use of antibiotics.

Now a spate of new studies from around the world prove that Norway’s model can be replicated with extraordinary success, and public health experts are saying these deaths — 19,000 in the U.S. each year alone, more than from AIDS — are unnecessary.

The results are pretty dramatic: in Norway, MRSA has accounted for less than 1 percent of staph infections for years. That compares to 80 percent in Japan, the world leader in MRSA; 44 percent in Israel; and 38 percent in Greece. In the U.S., rates have gone up from 2 percent in 1974 to 63 percent in 2004. And in the United Kingdom, they rose from about 2 percent in the early 1990s to about 45 percent, although an aggressive control program is now starting to work.

In addition to an impact on health, the program can save money. Medication costs money, and treating an increasing load of infection cases with more medication makes it worse. According to the article, MRSA cost $6 billion last year in the U.S.

Doctors who feel pressured to “do something!” (i.e. prescribe an antibiotic to patients with various symptoms) may take courage from these results.

As you may recall from previous postings here on our web log, the Massachusetts Board of Registration in Medicine is transitioning to an on line license renewal system . It was initially unclear how this system would allow (or require) physicians to report investigations, lawsuits, and disciplinary actions – each of which requires the production of supporting documentation. Experience in the last quarter of 2009 suggests no documents can be electronically attached using the system. Instead, disclosures prompt a written request by the licensing unit for additional information. How this will intersect with the Board’s existing stance on alleged failure to provide “complete” renewal application information remains unknown. Stay tuned!

The 2008 Medical Liability Monitor Annual Rate Survey shows that 43% of the respondent insurers had lowered rates during 2008. 50% reported no change in rates. Only 7% of rates increased, and of those, 76% increased less than 10%. Details of the Report are available online.

A former Lancaster, PA orthopedic surgeon who has been sued for alleged medical malpractice more than two dozen times settled one of the last remaining complaints against him. According to a story posted on LancasterOnline.com Dr. Anthony Mauriello, his former employer and a hospital where he performed hip replacement surgery have agreed to pay $650,000 to the widow of a 54-year-old who died two days after surgery in 2003. The decedent lost more than four quarts of blood — “an excessive amount of blood for this procedure” — according to the lawsuit’s complaint. Following surgery, the patient continued to bleed and subsequently died. The suit further charges that neither Mauriello nor other health care providers at the hospital “intervened to identify the cause of the blood loss and correct it until too late.” In his response to the suit, Dr. Mauriello claimed the patient “died of a known complication of any orthopedic surgery, a fat embolism” (fat droplets moving in blood vessels) and, therefore, the plaintiffs had no basis for the lawsuit. Court papers reveal that $325,000 will be paid to the widow on behalf of Mauriello, MidState Orthopaedics and/or Physicians Alliance Ltd. Another $325,000 will be paid to her on behalf of Lancaster Regional Medical Center.

The settlement, reached in November, specifies that none of the defendants had admitted liability or fault in the case.

 A resident of the Summit Park nursing home in Ramapo, NY suffered burns on his face after his bed caught fire while he was smoking, officials said. The man, who was hooked up to a nasal oxygen line, was smoking in his bed last Monday night. Nurses and other staff members quickly extinguished the fire. The man’s injuries were not life-threatening. The facility had a policy that prevented residents from smoking in their rooms.

Grand Rounds is a regular blog on a wide-ranging index of medical topics. This month’s installment is aggregated by the author of the blog “Healthcare Technology News,” but this responsibility is passed along to a wide variety of medical, healthcare, and medico-legal bloggers. Enjoy! Better yet, sign up for the RSS feed!

The husband and estate of a woman who developed blood clots and died after outpatient knee surgery was awarded more than $6 million. Ruby Nicole Quarles, 42, was referred by PCP to an orthopedic surgeon for complaints of worsening pain in her left knee. The surgeon gave Quarles an injection for the pain and ordered PT. A MRI indicated a “cartilaginous loose body” behind Quarles’ knee, and on Jan. 29 she underwent arthroscopic surgery. Ms. Quarles was found dead by her daughter the next day. An autopsy showed that deep venous thromboids had formed at the site of the surgery and traveled to the lung causing a pulmonary embolism. In trial documents and an interview the plaintiff’s counsel said that McKenzie ignored several risk factors that should have indicated that blood clotting could be a problem: the patient was somewhat obese and was taking birth control pills; she also had a personal history of asthma and hypertension and a family history of heart disease and stroke.

“The doctor did not appreciate those risk factors as risk factors,” plaintiff’s counsel said. “He treated her like a 25-year-old athlete.”

“The risk of a fatal pulmonary embolism in connection with an arthroscopy is extremely low,” reads a defense pleading in the pre-trial order. “While there are procedures that, when performed, must be accompanied by measures to prevent clot formation, a routine arthroscopy is not one of them.”

On Oct. 20, after three-and-a-half hours of deliberations, the jury awarded Quarles $6,000,001. Per O.C.G.A. §51-12-14, the judge added $471,575 as interest on the plaintiffs’ settlement demand of $2 million, which was rejected by the defense.

There will likely be an appeal or some other form of challenge to the verdict.

The case is Quarles v. McKenzie, No. SU06CV264-8.

In a letter to New York’s senators, The President of the N.Y. Bar Association cautions against including tort reform as part of health care overhaul legislation. The New York Bar association objects to tort and medical malpractice reform proposals including caps on pain and suffering compensation for victims of medical malpractice. The letter praised the House of Representatives for not including tort reform measures in its plan.

A thoughful article by Dr. Rahul Parikh published by Slate discusses factors that have motivated more doctors and hospitals to consider apologizing for medical errors, and how full disclosure has impacted litigation costs. Dr. Parikh’s article cites a study by Dr. Albert Wu of Johns Hopkins and his colleagues who showed 200 volunteers randomly selected videos simulating doctors disclosing an error to a patient. Wu and his team varied the extent of the apology (full, nonspecific, none at all) and acceptance of responsibility (full, none). Patients responded more favorably to physicians who apologized and took responsibility for a mistake. But even subjects whose scenarios came with a full apology and disclosure didn’t reconsider their desire to seek legal advice

A recent post by KevinMD says YES in no uncertain terms. Fighting misinformation that runs rampant on the internet can effectively be combatted by doctors using social media sites.