Medical-Legal News

Hospital incident reporting systems captured only an estimated 14 percent of the patient harm events experienced by Medicare beneficiaries. Hospitals investigated those reported events that they considered most likely to lead to quality and safety improvements and made few policy or practice changes as a result of reported events. Hospital administrators classified the remaining events (86 percent) as either events that staff did not perceive as reportable (61 percent) or as events that staff commonly report but did not report in this case (25 percent).

Doctors practicing outside of their specialties may result in patients dying, according to The USA Today.  All over the US, medical boards are suspending the licenses of doctors and publishing guidelines on what it takes to be a competent doctor.  State medical boards warn doctors who “practice drift” (working outside of the areas in which physicians are trained and board certified) they will be held to the same standards as trained physicians in the specialty.

In early 2008, the Arizona board of medicine published guidelines on the training doctors needed to be competent after three patients of a former Phoenix emergency room physician died after cosmetic surgery. In September 2011, the physician was sentenced to 25 years in prison after being convicted of two counts of second-degree murder and one count of manslaughter. 

North Carolina's medical board suspended the license of an ear, nose and throat surgeon after receiving complaints from women who received substandard cosmetic surgery procedures. The board temporarily suspended the license of a general practitioner performing cosmetic surgery after finding evidence he operated on family members and prescribed drugs to himself.

In Florida, the Senate's health regulation committee unanimously approved in early December 2011 a bill requiring spas that provide beauty treatments and liposuction to comply with existing laws and safety rules governing surgery centers. According to the bill’s Committee Vice Chair, the bill:  "fixes a problem that allowed facilities to avoid safety protections and inspections by declining to offer anesthesia and instead using pills or injections."

According to a Colorado personal injury attorney interviewed for the news article:  "Laws need to be passed which regulate outpatient procedures requiring appropriate training to perform the procedure and appropriate training and equipment to respond immediately should a patient need emergency care."  According to a lawsuit filed against a Denver, CO oncologist who practiced pain management, a furniture chain owner was treated for back pain by the doctor, and died of a heart attack after 30 injections of the anesthetic Marcaine.

There is temptation for physicians to branch out into procedures, such as cosmetic surgery, radiology, or obstetrics, as the procedures gain popularity and insurance payouts in the doctors’ trained areas decline.  According to the news article, a physician and CEO of the Federation of State Medical Boards stated: "What doctors should or shouldn't do when they change their area of focus is a concern for everyone."  Insurance companies and hospitals usually do not let doctors practice outside of their specialties, but just 21 states regulate office surgery facilities.

We recently discussed in “Two-thirds Doctors Face Malpractice” on 11/11/2011, that over two-thirds of doctors faced at least one malpractice claim during their career.  Yet, most claims do not end up in actual payments.  Surgeons faced more allegations than other medical specialties, with neurosurgery at 19.1%, thoracic and cardiovascular surgery at 18.9%, and general surgery at 15.3%.

An article in General Surgery News seconded these observations, reporting that lawsuits among surgeons were common, but many times, they were not found negligent.  According to the article, 15.3% of general surgeons faced at least one claim in an average year (N Engl J Med 2011; 365:  629-636).  This rate was twice the average for physicians overall.

Though a lawsuit strained a person’s emotional well-being, business, and patients who underwent unnecessary tests stemming from a doctor’s fear of further lawsuits, medical-legal experts (e.g. trial attorneys and doctors) advised physicians not to settle. Sometimes people just wanted to settle and move on with life, but settlement can be construed as an admission of fault and ruin a physician’s reputation in the long run with reports to a state’s board of medicine and national databases that track malpractice claims.

Often a physicians’ liability insurer influenced whether a suit will be defended, and usually that decision was made after pretrial discovery and deposition.  According to a doctor interviewed for the news article:  “Both sides have an obligation to go through the discovery phase to find out what the facts are from the experts before making a final decision as to how much the case is worth.”

For personal injury lawyers, they saw lawsuits as just another day at the office:  “Lawyers look at a lawsuit the way the medical profession looks at a case of the chicken pox. It’s unpleasant, perhaps, but no cause for shame and certainly not the end of the world.”

Since malpractice lawsuits are common, surgeons are becoming more familiar with the litigation process, and learning how to prevent lawsuits. According to a doctor interviewed for the news article, a lawsuit begins when a plaintiff files a complaint against a defendant with the court, but “it really begins when you first meet your patient.” Malpractice data from New York indicated no absolute correlation between the severity of a complication and the risk for a malpractice complaint.  Rather, patient–surgeon communication and doctor relations with immediate family members played a significant role on whether a doctor got sued. 

The Joint Commission drew attention to how long work hours could affect medical care in a recent Sentinel Event Alert.  The Joint Commission is an independent, not-for-profit organization that accredits and certifies over 19,000 health care organizations and programs in the United States.

Extended work hours or excessive workloads can result in lack of quality sleep or sleep deprivation to medical staff.  This may lead to low productivity and adverse events.  Confusion, irritability, memory lapses, loss of empathy, and compromised problem-solving, are among the dangers that stem from health care staff fatigue.

The Joint Commission suggested hospitals assess their fatigue-related risks:  “An overwhelming number of studies keep saying the same thing--once you pass a certain point, the risk of mistakes increases significantly," Ann Rogers, a sleep expert at Emory University's School of Nursing, said in the report. That point was over 12 hours of work. For instance, a 2004 study found nurses who worked 12.5-hour or longer shifts were three times more likely to make an error in patient care.

In July 2003, the Accreditation Council for Graduate Medical Education (ACGME) implemented duty-hour restrictions for residents to a maximum of 30-hour shifts and no more than 80-hour work weeks. Fatigue-related risks included off-shift hours and consecutive shift work.

Every day throughout the United States, at bus stations, on train station platforms, and all over the streets, people are seen holding their smartphones.  Technology can be entertaining addictive, but when a hospital staff member gets distracted by a smartphone, a potential medical malpractice action could hit a medical provider, and serious injuries or death could result to a patient.  Sara Jackson recently recounted in “Educate your hospital staff to protect against text-related mistakes” about a story a doctor at Beth Israel Deaconess Medical Center, told about a resident who neglected to enter a prescription change because she was distracted by a personal text on her smartphone.

The incident took place because the resident used her smartphone for both personal and professional tasks, including entering orders into the hospital's computerized physician order entry (CPOE) system. The attending physician requested the resident to stop the patient's warfarin prescription until an ECG could be performed to confirm a cardiac issue that required a blood-thinning medication.  According to the doctor at Beth Israel Deaconess Medical Center:  "The resident began to enter the order into her smartphone. As she was entering the order, the resident received a text message from a friend regarding an upcoming party, and she confirmed her attendance through text messaging." Yet, she never finished the order discontinuing the warfarin.  The patient ended up with an elevated dose for three days. Blood collected around the heart, and the patient required emergency open-heart surgery.

The New York Times recently reported on similar situations where smartphones interfered with hospital staff concentration, including blood transfusion techs texting during procedures, surgeons chatting on cell phone headsets during operations, and nurses texting while intubating patients. 

The medical malpractice system in New York can be time-consuming, costly and slow, according to The Clinical Advisor. Discovery in a medical malpractice action, including evidence gathering through depositions, may take years and involve several different judges. Settlement negotiations usually do not take place until a trial is impending.

Efforts have been taken to reform medical malpractice claims, including caps on damages and statutes of limitations, but these reforms have resulted in little change.  However, in 2002, Judge Douglas E. McKeon, a Bronx County Supreme Court administrative judge, proposed a judge-directed negotiation program, to settle delayed malpractice disputes within six to nine months. 

Under McKeon's program, one judge with malpractice expertise oversees an entire case and facilitates settlement negotiations early in the case to save time and money for all parties. The program started as an agreement between McKeon and public New York hospitals operated by the New York City Health and Hospitals Corporation.  So far, about 200 cases have gone through the program.  In 2010, the Federal Agency for Healthcare Research and Quality funded the program with a $3 million grant, expanding the program to other New York City hospitals.

Medical malpractice reforms in Florida have started to decrease malpractice insurance rates for physicians and surgeons, but patients have not seen a reduction in their health-care costs, according to Sunshine State News.

In response, Patients for Fair Compensation proposes to create a system similar to workers’ compensation administration that would adjudicate malpractice claims and put an end to costly medical care stemming from "defensive medicine." 

According to the news article:  "Florida spends approximately $25 billion per year on defensive medicine," estimates Rick Jackson, chairman of the non-profit PFC. "Defensive medicine" refers to healthcare providers "ordering medical tests, procedures and consultations of doubtful clinical value to protect against litigation."

Liability insurance remains unaffordable for many Florida physicians, and litigation costs in defending and settling cases sometimes even when no negligence occurs, contributes to the high costs of health care for patients.

Jackson’s comments appear to be confirmed by a recent study on doctors ordering more tests and making more referrals to specialists than they would like.  We previously discussed this survey on 10/9/2011, in “Doctors Delivering More Care Than Necessary To Prevent Malpractice Suits.” Over half of the 627 physicians (76%) who participated in a nationwide survey, published in the Archives of Internal Medicine, admitted to providing more medical care than necessary because of malpractice fears. 

As the Florida Supreme Court reviews tort reform legislation on the legality of the state's $1 million limit on "pain and suffering" awards, medical malpractice reformers advocate an administrative alternative to resolving malpractice actions.

A US Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), set the standard that governs the admissibility of expert witness testimony during US federal legal proceedings and over half of state proceedings.  

According to the Daubert standard, whether an expert witness testimony is admissible in court, depends on:  (1) whether an expert’s opinion has been peer reviewed; (2) whether a doctor’s theory can be and has been tested; (3) known or potential error rate of an expert’s theory; and (4) general acceptance of a doctor’s theory in the relevant scientific community.  In Daubert, the Supreme Court decided FRE 702 required a trier of fact to exclude expert testimony that is not reliable.

According to Michael T. Taylor at Pillsbury Winthrop Shaw Pittman LLP, the Daubert standard allows for legal challenge of any expert witness testimony because the expert witness has the burden of proof relating to the acceptability and validity of the expert’s scientific conclusions.

In Daubert, the US Supreme Court held that Federal Rule of Evidence 702 applied to the admissibility of expert testimony at trial. FRE 702 states:   

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: 

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.” 

In lawsuits, such as personal injury or medical malpractice actions, expert witnesses are usually compensated to provide records reviews and testimony for either the plaintiff or the defendant. Each party is motivated to discredit expert witness opinions.

An article by Taylor’s provides in depth discussions into the burden of proof requirements for admission of expert testimonies. 

A neurology expert testified in a criminal case involving the death of a woman who died, and her boyfriend being accused of killing her.  The medical expert witness testified the woman may have died from a seizure disorder and not her ex-boyfriend, according to Aracadia Patch. 

The ex-boyfriend was charged with one count of murder in the woman’s death and faced life in prison if convicted.  Prosecutors alleged the man killed the woman by putting her in a martial arts hold meant to compress the carotid arteries in the neck and induce cardiac arrhythmia. Yet, the medical examiner was not able to make a decision on the cause of death. 

The neurology expert witness testified the woman died in man’s apartment following an altercation, but he did not murder her. Months before her August 12, 2007 death, physicians began treating the woman for severe headaches and pains.  The expert neurology witness for the defense described the woman’s five-year history with headaches.  Her headaches involved consistent migraines, but the expert said there could be other causes for the pain, such as inflammation of the blood vessels called vasculitis, or a partial seizure disorder. 

A doctor at Kaiser Permanente ordered a CT scan and MRI for the woman in 2007. The neurology expert witness reviewed the medical records and noted the June 2007 MRI showed an asymmetry in the woman’s brain:  “The scans reveal that the right lateral ventricle is larger than the left by six millimeters.” Since the woman’s headaches were triggered by physical activity and led to impaired cognitive function, the expert felt it was possible that vasculitis or a seizure disorder could have resulted in the woman’s death.

After the neurology expert finished his expert testimony, Los Angeles County Assistant District Attorney called an optometrist who saw the woman on August 6, 2007, to the witness stand.  The optometrist noted no abnormalities in the woman’s optic vessel and prescribed her glasses for a mild nearsighted vision.

A board certified radiologist for Kaiser Permanente also took the witness stand.  He said the woman’s CT scans showed a “likely” normal variant in her brain.

In a personal injury case involving a woman with one leg and other injuries, a medical expert witness’ testimony was the focus of a day of trial in Pennsbury, PA.  The expert witness, a rehabilitation nurse and certified life planner, prepared a life-care plan for plaintiff, who expected future medical costs to hit about $2.5 million, according to phillyburbs.com. 

The Falls, PA woman, age 21, filed suit against Pennsbury School District.  Most of the projected costs of the woman’s injuries focused on a new $65,000 prosthetic leg.  The woman lost her left leg above the knee after a runaway school district bus crushed her outside Pennsbury High School’s east campus in January 2007.

The expert witness had prepared a life-care plan that estimated the projected future costs of the plaintiff’s accident-related medical care at $2.5 million to $2.6 million, if she lived to the expected age of 78.  The expert witness’ report included expenses for medical care and equipment, psychological counseling, medications, and physical and occupational therapies.

The extent of the woman’s injuries, and the impact of such injuries on her life, was the main issue in the case, which was expected to go to a jury. The defendant already accepted legal responsibility for the bus wreck.  The accident was the result of driver error, according to two investigations, and the district agreed the woman should be compensated for her damages.

The expert witness testified about evaluating the plaintiff in October 2010, and said the woman told the nurse she experienced lower back pain, neck pain and hip and calf pain, for which she took prescription painkillers. She experienced pain in her right knee, which the woman said locked up when she sat in one place too long.  The plaintiff developed pain in her shoulders and wrists, which the expert witness attributed to overuse injuries in the upper body from using crutches.