Why Wouldn’t a Doctor Choose Arbitration?

Several recent Massachusetts court decisions have involved efforts by health care providers, primarily nursing homes, to force patients and their families to arbitrate claims involving personal injuries and death at the facilities.  Presumably, these facilities, who often attempt to have patients sign an agreement to arbitrate–and, at least implicitly–a waiver of their right to a jury trial at the time of admission, believe that arbitration will favor them in the event of a claim.  In other states, these efforts have gone even further, to the point where gigantic health plans such as Kaiser Health force arbitration on their patients as a matter of course.

The reasons these providers want arbitration have nothing to do with what’s good for patients.  They believe that an arbitrator will be less sympathetic to a seriously injured patient, and that they are more likely to be able to defend claims in that forum.  Further, they believe that, even if they lose the case, an arbitration award will be less than a jury verdict.  And finally, in many cases, patients have less access to information in an arbitration proceeding, making it more difficult to prove a claim.  (That some of these propositions are very debatable has not deterred providers from pursuing mandatory arbitration quite aggressively).

And so, a Massachusetts Appeals Court decision last week, Walker v. Collyer, was notable for the fact that it was a health care provider–a doctor who was working at a nursing home–who was trying to resist the plaintiff’s efforts to compel him to submit to arbitration.  Dr. Charles Walker argued that, because he was not a party to an arbitration agreement between a nursing home facility and the plaintiff’s decedent, he was entitled to a jury trial.  The Appeals Court agreed, finding that Dr. Walker, who had not signed the agreement, and perhaps was not even aware of its existence, was not bound to arbitrate the claims against him, even though they arose out of treatment he gave as a member of the facility’s staff.

At first blush, this seems like a strange reversal of the usual positions of patient and health care defendant, but it doesn’t take much work to figure out what’s really going on: yet another attempt to make it as difficult as possible for patients to receive compensation for their injuries.  The Appeals Court’s holding means that the plaintiff cannot join her claims against the doctor and the facility, but will have to bring and litigate them separately–the claim against the facility in an arbitration proceeding, and the claim against the doctor in Superior Court.

That is a terrible result for the plaintiff.  The economic consequences are clear: two proceedings in two venues,  two sets of expenses for two separate cases.  It’s going to cost a lot more than even the normally expensive malpractice process.  But the real detriment to the plaintiff is strategic.  In each case, the health care defendant can blame the “empty chair”–the provider who is absent from the proceeding.  So in the arbitration proceeding, the nursing home can direct attention to the absent doctor, while in the Superior Court trial, the doctor can lay off responsibility onto the facility and the “system.”  If both were defendants in a single case, that couldn’t happen, because one or the other would have to be at fault.  But because no factfinder will be able to consider the interaction of the two defendants in a single proceeding, both may escape liability by blaming the other.

Viewed strictly as a matter of contract law, it’s understandable that the Appeals Court held that the doctor wasn’t bound by an agreement he didn’t sign.  But that view ignores the realities of the situation: that the doctor is an integral part of the facility’s care, and that the plaintiff’s difficult job has been made yet harder and more costly.

Hiding Behind “Systems Failures”

The recent debacle at Cooley Dickenson Hospital in Northampton, which has involved the deaths of at least one mother and two babies, is a perfect example of how the excuse of a “systems failure” can provide legal cover for institutions that cut corners in staffing and other areas. The absence of meaningful responsibility for non-profit organizations in Massachusetts is a significant disincentive to those organizations, and an enormous impediment to those injured through “systems failures.”

The troubles at Cooley Dickinson have been widely chronicled in the Hampshire Gazette, which has done an admirable job of uncovering many of the circumstances surrounding the recent spate of deaths that have occurred in the maternity department of the community hospital.  The most recent article focused on a state investigation that criticized systems failures, including inadequate staffing, among obstetricians and obstetric nurses.  And even the hospital’s chief medical officer, Mark Novotny, was quoted as agreeing that the staffing levels were “less than optimal.”

One of the hidden factors that permits this type of systems failure–a situation that is potentially life-threatening to patients–is the Massachusetts law relating to the limited liability of non-profit organizations, a category that includes most hospitals.  M.G.L. c.231 s.85K limits the malpractice liability of non-profit hospitals to $100,000–an amount which is grossly inadequate to compensate for a serious injury or death.  The practical effect is two-fold: first, unlike hospitals in other states, which are financially responsible for the full amount of damage caused by “systems failures,” Massachusetts health care facilities do not have a direct financial incentive to avoid such dangerous situations.

And the second problem with this system is the patients, who are often collateral damage.  They may face a situation where the individual providers were doing the best they could with a poor or limited resources, or at least where their individual negligence pales in comparison with that of the “system” in which they were working.  In that situation, their ability to receive fair compensation for their injuries may be extremely limited or virtually non-existent.  Unless the patient can identify individuals responsible for the failures in care, the recovery will be limited to $100,000.

In fact, with awareness of the limited institutional responsibility, individual providers have a ready scapegoat: they can hide behind “systems failures” and faceless bureaucrats in order to minimize or avoid their own liability.  Most juries–and perhaps not unreasonably so–will hesitate to blame an overworked doctor or nurse whom jurors might view as a victim of a system that demanded too much of them.

And all this plays out behind the scenes: in most cases, the jury never knows of the institution’s limited liability.  And so if the institution is a party at trial, the jury may hold only the organization liable, never realizing that such a finding will deprive the patient of compensation for a severe injury or death.  Yet if the institution is not named as a party, the individual providers who are defendants can effectively avoid liability by blaming the faceless–and absent–organization where they worked.

Thus far, the hospital lobby has successfully beaten back all attempts to reform this situation in a way that would promote institutional responsibility and meaningful compensation.  One good thing that could come from the Cooley Dickinson disaster would be a change in these antiquated laws.

Two Mass. General doctors to pay $4.5M for patient’s death

Two doctors from Massachusetts General Hospital, Dr. Alasdair Conn and Dr. George Velmahos, will pay the estate of 62-year-old Plymouth resident Geraldine Moran $4.5 million due to allegations that they failed to take action that might have prevented the woman’s death.

According to the lawsuit, Moran fell from the top of a 6-foot-tall ladder in her home while cleaning on March 23, 2005, breaking several ribs. She was first taken to the Beth Israel Deaconess Hospital-Plymouth, formerly called Jordan Hospital, where her pelvis and chest areas were examined and it was discovered that she had several broken ribs, one in a very dangerous location near her aorta.

Doctors at Beth Israel suggested that she be taken to Massachusetts General Hospital, as they would be in a better position to treat her injuries. The lawsuit alleged that Conn and Velmahos, the doctors who examined her at Mass. General, failed to order chest imaging exams on Moran, or address the broken rib next to her aorta. The broken rib punctured her aorta overnight, resulting in cardiac arrest and her death.

Who Is Writing Your Medical Record?

As more young (and not-so-young) lawyers are computer-literate, the trend in law firms is to decrease the number of secretaries and other support staff, as many lawyers do their own typing.  Yet in medicine, there is apparently a movement the other way, towards hiring “scribes” who accompany doctors while they see patients and type their notes for them.

A recent article in the Boston Herald reported that Brigham & Women’s Hospital is using the scribes in its Foxboro Urgent Care Center.  According to the Herald, a scribe “follows a doctor into a patient visit and takes real-time electronic notes while the doctor and patient talk. A scribe can be particularly helpful in hectic clinics, where health care providers have to move quickly to see lots of patients.”

So, let me get this straight.  In a hectic situation, where important health care decisions are being made, someone other than the doctor is deciding what to write in the medical records.  And going forward, the patient’s health may depend on whether the scribe has chosen the appropriate information to record, and has accurately recorded what was said.

From a patient safety perspective, the scribe system would seem to raise plenty of concerns.  The article is silent about many of the important details and safeguards:  What kind of education and training do the scribes have?  How do they decide what to write down?  Do the doctors proof read the records for completeness and accuracy?  And do they do that while the encounter is still fresh in their minds?  How and when do they correct errors?

It’s one thing if, as the Herald article mentions, resident doctors in training serve as the notetakers for their supervising physicians.  At least in that case, the “scribe” has been through four years of college (with significant scientific training), four years of medical school, and some post-graduate education.  They’ve had courses like anatomy and physical diagnosis.  Even then, there are many errors and inconsistencies in medical records, but I think most patients would have a lot more confidence in the record-keeping ability of a resident than a “scribe.”

While it’s certainly understandable that doctors love having personal secretaries, it’s really hard to imagine than this system can serve the interests of the patient.  Like young lawyers who type their own pleadings and correspondence, most young doctors are pretty adept with computer note-taking.  ANd most people find that the act of writing something down helps them to listen and remember what they’ve heard.  Since accurate records are essential to good patient care, it doesn’t seem like too much to ask to have doctors responsible for that accuracy.

And when something goes wrong–as it inevitably will–who will be responsible?  Will the patient ever know that a “scribe” prepared his record?  Will the scribe’s name be on the record itself?  Will doctors blame scribes for their mistakes?  Health care is complicated enough without interposing yet another barrier between patient and physician.

Joint study recently released on medical malpractice claims

On Tuesday, October 29 Aon Risk Solutions and the American Society for Healthcare Risk Management (ASHRM) released a joint study on medical malpractice.

The study, released at ASHRM’s Austin, Texas conference  posits that the frequency of medical malpractice claims will not increase in the upcoming year and will only increase slightly over the next ten years at a rate of 2.5%. This is the lowest recorded rate of severity growth in the 14-year history of the study.

Though medical services can be extremely helpful, victims of malpractice and negligence should consult experienced legal counsel if they have suffered from poor treatment. The Massachusetts attorneys at Crowe & Mulvey, LLP have the knowledge and competence to effectively represent our clients’ needs. Contacts us at (617) 426-4488 to find out if we can help you.

Insurance industry financially booming yet rates steadily decline, according to 2013 report

The Medical Liability Monitor recently released its 2013 annual survey and one of its main findings showed that even as insurance rates and written premiums have continued to go down since 2006, the medical professional liability insurance industry as a whole has been booming financially over the years.

Chad Karls, author of this year’s Executive Summary, said the industry’s premium revenue has continued to surpass claims expenses, with annual combined ratios for medical insurers coming in below 100% annually since 2006. Insurance rates suffered a great decline this year with a 28.8% of all manual rates slumping in 2013 after a 3.1% increase last year.

The Northeast region of the United States was the only one to see an increase in medical insurance rates, albeit lower than last year’s 1.19% at only 0.7%, with New York leading the rise (4.8%). New York was followed by New Hampshire with a 4.2% increase.

It is important that physicians and medical staff do their job to the best of their abilities, follow all regulations, and ensure that medical procedures are done properly, as one error move can mean the difference between life and death for patients. If you have been the victim of medical malpractice in Massachusetts, our attorneys at Crowe & Mulvey, LLP can help. Call us at (617) 426-4488 to discuss your situation with us and find out more about your options.

Research shows certain banned doctors in the U.S. not susceptible to license revocation

In a study done by USA Today, records showed that some doctors who have been banned by hospitals or other medical institutions have yet to receive punishment from medical boards that conduct licensure of said doctors, meaning their licenses are still not revoked and they are still allowed to practice medicine.

The records came from the National Practitioner Data Bank, which aids medical boards in tracking doctors’ license documents, malpractice payments, and disciplinary actions given by their respective hospitals, HMOs, and other medical organizations.

According to the research:

  • Fifty-two percent (more than 3,000 physicians) of nearly 6,000 doctors who were banned or disciplined by their hospitals from 2001 to 2011 were never fined, or punished with a license restriction, suspension, or revocation.
  • Nine hundred doctors from the same time period were cited for substandard care, negligence, incompetence, or malpractice, but kept practicing with a medical license.

Medical malpractice is a very serious legal matter, as it can cause patients debilitating injuries and, in worst-case scenarios, even death. Our legal team at Crowe & Mulvey, LLP, helps victims of such negligence in Massachusetts take legal action against the reckless practitioner. Hold those responsible for your losses accountable by calling (617) 426-4488 today.

Danger Zone: Hospitals

Several patients at Cape Cod Hospital may have been exposed to a potentially fatal infection during spinal surgery, according to The Boston Globe.  The five patients in question underwent surgery this summer using a rented instrument that had previously been used on a patient with Creutzfeldt-Jakob disease, a brain infection that cannot be treated and that usually causes death within months.  According to the Massachusetts Department of Public Health, the patients’ risk of actually contracting the disease is low, because the surgery did not involve their brains.

The disclosure follows on the heels of report that other patients may have been exposed to the same instrument at Catholic Medical Center in Manchester, New Hampshire.  Ordinary hospital sterilization procedures do not eradicate the deadly infection.  The New Hampshire Department of Public health notified eight patients that they may have been exposed to the disease as a result of the device, rented from Medtronic corporation.

This report is eerily similar to another series of exposures at Boston Medical Center, in which dialysis patients were exposed to hepatitis B because the dialysis equipment was not properly sterilized between patients.  And last month, a medical technician named David Kwiatkowski recently pled guilty after infecting dozens of patients in at least three states by stealing and then replacing syringes to support his drug addiction.

These stories are a stark reminder of the many dangers that face hospitalized patients.  Hospitals are well-known sources of a wide variety of infections, from the common and easily treatable to potentially life-threatening or life-changing.   The CDC estimates that 1.7 million people contract infections in hospitals each year, and nearly 100,000 of those patients die of the infection.  Some infections are difficult to prevent, but others involve clearly identifiable fault of hospital personnel in such areas as sterilization procedures, risk recognition, and communication.  But there’s no question that hospitals are dangerous places.

Patients who are seriously injured or killed by hospital-acquired infections may have malpractice claims against the medical providers, the facility, and/or the equipment providers.  Hospital staff needs to be vigilant for sources of infection, and mindful and responsive to unexpected clusters of infections.

Read more about the problem of hospital acquired infections (HAI) here.

Arbor Hospital System Cited for Continuing Failures

A recent article in The Boston Globe highlighted problems with one of the Commonwealth’s major providers of mental health care.  In a piece entitled  “Staff Failures Cited in Deaths at Arbor Psychiatric Centers,” reporter Chelsea Conaboy describes three patient deaths that occurred at Arbor facilities in the last few years.  The “staff failures” were basic: failure to follow emergency response policies, and in one case, a patient suffering from unexplained head trauma and multiple bruises.

Unfortunately, the problems uncovered by the Department of Mental Health (DMH) are not new.  Our firm represents the family of a patient who died at Arbor Fuller Hospital in Attleboro in December 2007, because of some of the same problems recently reported.  The most significant include the failure of the hospital staff to conduct regular safety checks on patients, and the inadequate emergency response when a patient is in distress.

In two of the more recent cases reviewed by the DMH, patients were found unresponsive, and there was an inordinate delay in bringing emergency equipment and beginning resuscitation.  The hospital chain–owned by a Fortune 500 corporation called Universal Health Services based in King of Prussia, Pennsylvania–claims that it responded to the deaths by implementing new policies and retraining its staff.

Coincidentally, that’s exactly what Arbor and UHS told the state investigators in 2007, when they were being investigated on account of our client’s death in the Attleboro facility.  She, too, was found unresponsive and there was a delay in response, including a lack of proper resuscitation.  An extensive DMH investigation revealed a security videotape that showed a 40-minute gap between the time a staff member noticed a problem with the patient and the time he reported to it to his supervisor.  And even when the problem was reported, and the nursing supervisor saw the patient unresponsive, the staff was shown walking calming around the floor, with no regard for the urgency of the situation.  The DMH interviewed 16 people and issued a lengthy and damning report.

It would seem that if the hospital had responded properly to that tragic event, a similar situation would not have been repeated–TWICE–a few years later.  And there’s no doubt that UHS was aware of the incident: two staff members were fired and a nursing supervisor demoted, all on the order of the company’s CEO.  Policies were supposedly rewritten, and staff was supposedly retrained.

So why does the Arbor system continue to have multiple violations and patient deaths?  Without question, many of these mental health patients are challenging to care for.  But they need caring and compassionate staff who understand and are trained and equipped to deal with those challenges.  Arbor’s track record of poorly trained staff who are at best overworked and indifferent to their patients’ needs, and at worst in blatant violation of corporate policies should concern anyone who cares about mental health care in Massachusetts and elsewhere.

The Myth of the Non-Profit Hospital

Many clients come to us about injuries or death suffered as a result of malpractice that occurred in a hospital.  Often they were attracted to that hospital by the facility’s reputation, advertising, or medical school affiliation.  And invariably, they are stunned to learn that their prospects for recovering damages against the hospital itself are minimal–under Massachusetts law, the maximum recovery has long been just $20,000, recently increased to $100,000.  This amount is barely sufficient to cover the costs and fees associated with bringing a lawsuit, and completely inadequate to compensate a family for serious injury or death.

So why the limitation?  Because most Massachusetts hospitals are “non-profit” organizations, and state law grants them this limited liability. (Individual providers such as doctors, residents, nurses, technicians and other staff are still responsible for their negligence, and covered by their own and/or the hospital’s malpractice insurance.)

But to treat these hospitals as “non-profit” or “charitable” corporations, and lump them together with local youth groups, museums, and service organizations is a farce that doesn’t reflect the financial and economic realities of the situation: Massachusetts hospitals are BIG business, with many routinely earning annual profits in the millions of dollars.

A recently released report from the Massachusetts Center for Health Information and Analysis (CHIA) sheds some light on the financial health of hospitals in the Commonwealth.  The report, containing information about hospital profits, liquidity, and overall financial health shows that many hospitals are turning handsome profits.  Take for example, Children’s Hospital Medical Center in Boston.  Children’s has $2.5 billion in assets, and made a profit of some $93 million over the last six months.  Partners, the largest health care system in Massachusetts that includes Brigham & Women’s Hospital and Massachusetts General Hospital, among others, reported an overall profit of $76 million, most of it from those two flagship hospitals.  Dana-Farber–unquestionably a facility that provides excellent care for cancer patients–reported an operating loss of $23 million, yet its operating surplus rose by $11 million to $35 million, and it holds more than $1 billion in net assets.  That’s a lot of Jimmy Fund contributions.  And sleepy little Cooley Dickinson Hospital in Northampton racked up $11 million in profits.

And these hospitals are run like businesses.  They hire financially savvy management teams and pay outside consultants to come up with business development strategies.  They increase their potential earnings by focusing on profitable services, such as obstetrics and cardiac surgery.  And they advertise like any other business–on billboards, television and radio.

Yet Massachusetts remains one of a handful of states to give hospitals the benefit of limited liability.  It’s a surprise to patients who usually have no idea until it’s too late.  And given the power of these institutions and the staggering dollar amount involved, it’s unlikely to change any time soon.

Read the summary report for Quarter 2 of 2013 here.   More detailed information about each individual hospital is available on the CHIA website.