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Monday Mornings

monday mornings cover
For anyone who wants a peek behind the curtain of Morbidity and Mortality conferences–those secret peer review meetings where medical errors are discussed–there’s a book-turned TV series that offers an interesting glimpse.  Monday Mornings is a TNT series based on a book of the same name by medical journalist Sanjay Gupta.  As with most things worth watching, the series was cancelled after one season, but it remains readily available thanks to Amazon Instant Video!

As I’ve ranted before, the medical profession has an established tradition of meeting to discuss bad outcomes in patient care, and has prevailed upon legislatures in every state to pass laws allowing them to keep those discussions secret, even from the patients whose care is being discussed.  Monday Mornings offers a fictionalized description of what goes on behind those closed doors.

While the characters’ personalities–the pompous chief of staff, the emergency department doctor who shoots from the hip, the scruffily handsome neurosurgeon who is having an affair with his beautiful colleague– are rather stereotypical and obviously created to bolster the dramatic storyline, there is still plenty of focus on how hospitals react to medical mistakes.  For the most part, discussions in the Monday morning meetings are brutally honest in their criticism of surgeons who’ve made errors, both in technique and in reasoning.  Of course, when the chief of staff decides to terminate the privileges of a doctor who made an inexcusable error, it is clear that he will allow the physician to go practice at another facility–another dose of reality in a world where bad doctors move freely from hospital to hospital and state to state.

Most people outside the medical profession will never get a chance to see the inner workings of the peer review process up close and personal.  Gupta’s inside knowledge brings readers and viewers a unique look at how the medical profession handles errors.  The result is flattering and frightening in equal parts, as the providers genuinely seem to strive for improvement, yet at the same time are willing to conceal mistakes from public view.  Despite the dramatic embellishments, the book is worth a read for lawyers and patients who are interested in how the peer review system really works. The TV series faithfully tracks the book, and the cast makes a compelling drama.


Lawyers No Better than Doctors

conspiracy of silenceFor years, I have roundly criticized “peer review” statutes, which permit doctors to conduct private discussions about medical errors, and to refuse to tell even the patient about the discussion.  The principle behind these statutes, which make these discussions privileged in all 50 states, is that doctors won’t tell the truth if they know anyone might find out about it.  The premise is that health care will be improved by allowing doctors to discuss their mistakes freely among themselves.

Now, the Supreme Judicial Court has decided that lawyers are no better than doctors in terms of honesty and openness.  In a recent decision, RFF Family Partnership LP v. Burns & Levinson LLP, the Court held that a members of a law firm could have secret conversations among themselves to discuss a threatened malpractice claim by an active client of the firm.  The result strikes me as completely inconsistent with the fiduciary duty that we as lawyers have to put our clients’ interests above our own.

In RFF Family Partnership, the client sent the firm a letter complaining that the firm had failed to identify and pay off an existing mortgage, and threatening a lawsuit for legal malpractice.  The attorneys representing the client met with the firm’s “ethics counsel” to discuss the firm’s liability and the best course of action.  The firm represented the client at the time of the discussion and continued the representation for sometime thereafter.

Rejecting the client’s argument that the firm was placing its own interests above its fiduciary duty to the client, the SJC held that the communications with the in-house ethics expert were protected.  The Court reasoned that this would benefit clients by encouraging lawyers to get dispassionate advice about whether to withdraw from representing a current client who threatens a lawsuit, so that the lawyers would not withdraw “prematurely or without careful advice.”

The court placed four conditions on a law firm’s ability to hide behind the attorney-client privilege: 1) the firm must designate one of its lawyers to represent the firm as in-house counsel; 2) the designated lawyer must not have performed any work on the case that is the subject of the potential malpractice claim; 3) the firm cannot bill the client for the time spent discussing the potential claim with in-house counsel (really?); and 4) the communications must be made in confidence and kept confidential.

But as someone who has railed against peer review secrecy in the medical profession, I am disturbed by the idea that the legal profession should be seeking a similar foxhole.  So long as we represent a client, our first obligation is to that client.  If we’ve made a mistake, we should be accountable.  To allow lawyers to hide conversations from their clients poses a very real likelihood that the lawyer’s own interests will take precedence over the client’s.  At a minimum, it creates an unsavory appearance that the lawyer is looking out for himself, at the client’s expense.  These results are wholly inconsistent with the high ethical standards that the legal profession has always aspired to attain.

Read the SJC’s decision here.


Who and What Does HIPAA Protect?

HIPAA-COMPL monkeysThe HIPAA police are at it again.  A Massachusetts federal district court has dismissed a claim brought against Baystate Medical Center by a nurse who was fired for asking about a patient’s condition and expressing her concerns about the hospital’s care of the patient.  The hospital claimed that the nurse’s conduct was a violation of the patient’s privacy, in violation of HIPAA (the federal Health Insurance Portability and Accountability Act).

Audrey Dyjak had worked as a registered nurse at Baystate Medical Center in Springfield for some eighteen years, always garnering positive employment reviews.  She was commended at least fifteen times with “Baystate Best” awards giving excellent care.

In June of 2009, Dyjak was caring for a patient who became non-responsive.  As per hospital protocol, she paged a Rapid Response Team that was tasked with responding to such situations, and when the team did not arrive fast enough, she called a Code.  Dyjak was upset with what she viewed as a lack of a proper response, voiced her concerns loudly, and was told to leave the room by the radiology manager.

The next day, Dyjak saw the patient’s partner–who was also a Baystate employee–and mother in a restaurant at the hospital, and asked how the patient was doing.  The partner informed Dyjak that the patient had had a stroke.  Dyjak then related the events of the previous day, including the fact that she had been asked to leave the patient’s room.  She added that there was “some mismanagement” going on, and that she viewed the radiology director’s actions as “unprofessional.”  Few people were nearby at the time, and Dyjak spoke quietly.

A few days later, the partner complained to the hospital, saying she believed Dyjak had acted in violation of HIPAA.  The partner also told the hospital that Dyjak had  inappropriately expressed criticisms of the hospital staff.  The complaint resulted in Dyjak’s termination, the stated reason being her violation of the hospital’s Confidentiality Policy.  She sued Baystate for age discrimination, claiming that the hospital had used her supposed HIPAA violation as an excuse to get rid of her.

In Dyjak v. Baystate Health Systems, Inc., the federal court in Springfield ruled that the hospital was within its rights in firing Nurse Dyjak for her conduct, and that she had not proven that the hospital’s excuse was simply a pretext for age discrimination.

I don’t know whether Baystate was truly trying to get rid of older workers, but it does seem like the hospital’s termination of this long-time employee was motivated by her criticisms of its staff, rather than her rather benign inquiry about the condition of a patient she had cared for.  Most family members would be pleased by the nurse’s concern–not only for the health of their loved one, but for the quality of care that the patient was receiving.

It’s not clear from the court’s opinion exactly what, if any, medical information Dyjak disclosed to the patient’s partner and mother.  It’s difficult to believe that this was anything more than the kind of conversation that takes place in every hospital every day, when nurses update family members.  Perhaps technically, those are HIPAA violations, but at some point, the law must yield to common sense, courtesy and decency.  Most family members wouldn’t be pleased if their inquiries about a patient’s health were met with stony silence from nurses concerned with losing their jobs if they respond.

It really seems like what did Nurse Dyjak in was not her brief conversation with a patient’s family in a quiet  corner of a public place, but her airing of the hospital’s dirty laundry.  Most hospitals frown on their employees discussing mistakes with outsiders–and their internal discussions are strictly protected from disclosure by the peer review privilege,   In many facilities, written policies for “Resolution of Clinical Discord” or the like (what do to when providers don’t agree with each other), admonish providers not to express their disagreements in the medical records or in front of a patient’s family.

Dyjak may not have been fired because of her age, but rather for something much more dangerous for patient safety–speaking up about what she viewed as bad patient care.


We’re Having a Meeting About You…

secrecyNo, you can’t come.  And no, we’ll never tell you what we say.  If we figure out why you or a family member suffered a catastrophic injury or even died, it will remain our little secret.  Ours, not yours, And there’s nothing you or anyone else can do to make us tell you.

That’s peer review.

Peer review is a process in which every hospital in the country engages when there is a bad or unexpected outcome.  The doctors involved in the patient’s care get together in a meeting, often joined by other doctors from the same medical or surgical department.  They review medical records, oral or written statements from the health care providers involved, and other sources of information available in the hospital.  Sometimes, they even get reports from outside consultants.  They discuss what happened, whether it could have been avoided, and how to prevent similar occurrences in the future.

Sounds like a great idea, doesn’t it?

Unfortunately, the people with the greatest interest in the outcome–the patient and his family–will never find out what happened in that meeting, or what conclusions were reached.  Never.  Not under any circumstances.  No way.  In fact, some hospitals have even fought to keep that information away from the Board of Registration in Medicine, the state agency that is charged with protecting the public by disciplining bad doctors.

The original rationale for peer review statutes was that doctors needed to be free to criticize other doctors in order to improve the quality of medical care, and that they would not speak freely if they knew that their comments might become known to others.  Translation: we’d much rather lie to patients than criticize another doctor in public.  (Does anyone see a problem with this?)  What they really mean is that they don’t want some patient’s lawyer coming along and figuring out what went wrong.  But what’s lost in the dust-up between the doctors and the lawyers is… the patient.

It’s bad enough that no other profession or industry or governmental body gets to hide behind the veil of secrecy that has been created for doctors in virtually every state in the country.  Imagine, if you will, if a product manufacturer who had received complaints of injuries and death from consumers, came out and said, “We had an internal meeting.  We figured out what went wrong, why people got sick and died.  But we’re not going to tell anyone what we found.”  That’s bad enough.  But to add insult to injury, so to speak, the rationale is that doctors won’t tell the truth if someone might find out what they said.

Late last year, Massachusetts enacted a “Disclosure and Apology” statute, which  is supposed to encourage health  care providers to tell patients when a mistake has been made.  It’s a great idea, but as long as doctors know that the truth can never be forced out of them, I think it’s unlikely to do much to dispel the culture of secrecy that surrounds the medical profession.