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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.
In an earlier post, I offered some information to help answer questions raised by many clients about how they could have learned more about their doctor’s malpractice history. Although they are far from perfect, many state medical board websites have some information available for patients who know where to look. They don’t include any pending claims, and sometimes even paid claims are mysteriously absent. But many patient advocates feel they are better than nothing.
Not unexpectedly, the physician profiles are full of disclaimers that downplay the significance of malpractice payments in evaluating a doctor’s competence. They offer a wide variety of reasons why the information that they are posting should be ignored. But many patients would disagree with the medical boards, believing that they are better off avoiding doctors with a history of malpractice claim(s).
There is some scientific support for their belief. A number of authors have studied malpractice insurers’ closed claim files to determine whether doctors who are successfully sued one or more times are more likely to be sued again. The answer is generally yes. The majority of doctors are never sued at all. Very few have more than one claim. But there are a number of repeat offenders.
As in many areas, however, the law does not mirror reality! Despite a number of statistical analyses showing that doctors with one or more malpractice claims are more likely to be sued again, the law considers each case individually. Clients (and some lawyers) are usually surprised to learn that a doctor’s malpractice history is not admissible in court. Thus, a jury never hears whether a doctor has paid malpractice claims in the past, or has never been sued at all. The legal theory is that the jury is not deciding whether the defendant doctor is a good doctor or a bad doctor, but whether he or she was negligent in the particular case in question. The fear is that, if a jury learns that a doctor has been sued before, or has settled claims, it will assume that the doctor has done it–committed malpractice–again.
Doctors with malpractice histories are not alone in benefiting from this rule. A driver who causes his fifth accident can rest assured that the jury will never be told about the four previous crashes. And the same rule is carefully applied in criminal cases: in most cases, a jury never learns about a defendant’s prior convictions.
The goal of insuring that each case is judged on its own merits is admirable; certainly no one would want to be adjudged liable or guilty solely on the basis of past misdeeds. However, the absence of information about past accidents or crimes may lead jurors–who aren’t told about the rule excluding such evidence–to believe that there are none, and to give the defendant the benefit of the doubt.
To be sure, there are many reasons why a claim may be paid that don’t reflect on a doctor’s competence or overall quality of care. On the other hand, there are habitually careless doctors who manage to escape liability for years. While a malpractice history should not be the only factor a patient uses to choose a doctor, it’s still worth considering.
Read a few studies finding that a history of prior claims is a risk factor for more claims here and here and here.
A study designed to identify the safest oxygen levels for premature babies is under heavy fire for causing high levels of blindness, and perhaps even unnecessary deaths, among the 1316 very small infants who were enrolled. Critics charge that 23 major research hospitals, including noted New England facilities Tufts Medical Center, Brown University, Women & Infants Hospital and Yale University, subjected babies to added risks, while failing to tell their parents about the potential dangers.
The SUPPORT (Surfactant, Positive Pressure, and Oxygenation Randomized Trial) study, conducted from 2004 to 2009, was designed to find out whether premature babies whose immature lungs required oxygen support were more likely to die or become blind if their oxygen levels were targeted to either a high or a low range. As with any medical research study, the participants—or in this case, their parents—signed a consent form that was supposed to make sure they fully understood the risks and benefits of the study. Yet in March of this year, the Office for Human Research Protections (OHRP), an arm of the federal Department of Health and Human Services (DHHS), charged the University of Alabama Birmingham (UAB), one of the lead participating hospitals, with failing to tell the parents that the amount of oxygen their baby received might affect whether the baby would develop blindness, a brain injury, or even die. Instead, the only risk mentioned was that the device used to monitor the baby’s oxygen levels might cause skin breakdown. While the consent form suggested to parents that babies who received lower levels of oxygen might have fewer eye problems, it failed to point out that the converse might also be true: babies assigned to receive more oxygen would be at higher risk for ROP. And nowhere in the consent does it say that a baby might be at higher or lower risk of death, depending on the random assignment to one group or the other.
A month later, Public Citizen, a private non-profit group that advocates for patient safety, fired off a letter to DHHS Secretary Kathleen Sebelius, claiming that the violations occurred at all of the participating hospitals, not just UAB, and calling for OHRP to go further by requiring the facilities to apologize to parents for what they had done, and to institute corrective measures to prevent similar lapses in the future.
Several parents whose babies died have already filed lawsuits against UAB. As the deficiencies in the consent form, and the adverse effects on some of the babies become more well-known, it is likely that there will be more, including here in Massachusetts and Rhode Island.
The cause of the controversy focuses on the researchers’ decision to assign babies randomly to receive either a higher (91-95%) or lower (85-89%) oxygen concentration. Normally, the amount of oxygen a premature baby receives is carefully individualized depending on the infant’s medical condition and other treatments he is receiving. Neonatologists attempt to keep the oxygen levels as low as possible to avoid the complication known as retinopathy of prematurity (ROP), where an abnormal growth of blood vessels in the eye can lead to blindness and other vision problems. The results from the study showed a statistically significant (unlikely to be due to chance or coincidence) increase in blindness for the babies who received higher oxygen levels, and in death for babies who received lower levels.
Not surprisingly, the researchers have their defenders. They claim that all of the oxygen levels received by babies in the study were within the standard range of treatment, and pointed out that, in fact, the babies in the study had a lower death rate than a supposedly similar group of premature infants.
The treatment of the patients and parents in the SUPPORT study is particularly disturbing, because it involves very vulnerable babies and parents who most likely would go to the ends of the earth to improve the outcome for their children. Understandably, the researchers wanted to increase participation in their study–for which they needed the parents’ consent. But however well intentioned the doctors were, there is no justification for making decisions based on random assignments rather than the best interests of each individual baby. In this case, it is likely that the lack of information induced many parents to enroll their babies in the study when they would not otherwise have done so.
There is no question that medical research can lead to tremendous improvements in patient care and outcome. But particularly in studies like SUPPORT, where the subjects are tiny premature babies, the institutions conducting such research must be vigilant to insure that their patients’ rights are protected. It is likely that many of the study participants’ parents are still unaware of the harm their babies faced—or even actually suffered—as a result of their decision to participate. It is never too late for the hospitals to explain to these parents what actually happened, and to try to atone for the breach of trust and, in some cases, physical damage, they have caused.
A recent article in The Boston Globe spotlighted a growing problem for patients: doctors suing them for publishing unfavorable reviews or statements on the internet. The article focused on the efforts of a Boston-area neurosurgeon, Dr. Sagun Tuli, to counteract the supposed effects of negative publicity generated by a blog created by a disgruntled former patient.
Unfortunately for the doctors, the effort to have unfavorable information removed often has exactly the opposite effect, generating more unwanted publicity and increasing the doctor’s visibility on search engines such as Google. Dubbed the “Streisand effect,” this unintended consequence landed Dr. Tuli in a prominent position in the Globe, which reported on her lawsuit. Instead of eliminating any on-line reference to her patient’s dissatisfaction, she only succeeded in making it more public and more permanent: although the blog that bothered her has disappeared, the Globe article will remain accessible indefinitely, and perhaps forever. And the publicity has multiplied, as other blogs and news outlets have picked up the story.
Forbes Magazine focused on a different aspect of the issue: the magazine reported that some doctors over prescribe tests and treatments in order to satisfy patients and raise their ratings. The author speculated that the adverse effects of over treatment may actually be hazardous to patients!
Although the First Amendment will likely protect patients from most successful suits, the doctors’ suits nevertheless have had unpleasant consequences for some patients. A California neurosurgeon named Aaron Filler sued a patient over an unfavorable review on a physician rating site. Although the suit was dismissed, and Filler was ordered to pay some $50,000 of his patient’s legal fees, the patient, Susan Walker, was apparently tied up in court for a year, and still suffered some financial loss.
While some doctors have complained that they are hampered by patient privacy laws when they try to rebut unfavorable information, there is no reason that consumers of medical care should have fewer rights than other types of consumers when it comes to posting reviews about the services they receive. There are services to rate lawyers, and many other types of service providers. Patients have always relied on the word-of-mouth reports from family and friends in choosing doctors.
For every problem, there’s a solution, and some doctors have responded by hiring services to help improve their online reputation. These services focus not on eliminating the negative, but in creating counterbalancing positive information in the form of blogs, press interviews, and favorable patient ratings.
I’ve always been astounded at how we as patients have come to accept, and even expect that our doctors will keep us waiting long past our scheduled appointment times, and then rush through the visit without really listening to us. Maybe, as some commentators have suggested, the doctors who consider suing their patients should try a different approach: perhaps if they provided better service, their ratings would rise!
The Joint Commission, an independent accrediting body for health care organizations, has just released a “Sentinel Event Alert” related to the on-going problem of hospital staff failing to respond to alarms on patient monitors. Entitled “Medical Device Alarm Safety in Hospitals,” the bulletin is aimed at helping hospitals to institute safety procedures for the use of medical devices with alarms.
Monitoring technology has become ubiquitous in hospitals, starting with the fetal monitoring machines that monitor unborn babies’ heart rates during labor through heart and oxygen monitors that keep track of critically ill patients. While these machines provide important information to health care providers, their widespread use has created a number of problems.
The most widely reported problem is so-called “alarm fatigue”–the phenomenon where busy providers, bombarded with multiple alarms, are slow to respond to the sound. The reasons for this are many, ranging from understaffing, to a high number of false positives, where the machine alarm sounds when there is really no danger to the patient, to providers simply tuning out a sound that is a part of the normal environment. Virtually anyone who has ever sat in an intensive care unit with a family member has witnessed delays or even failures in responding to machine alarms. It can be terrifying to patients and families, and as the Joint Commission points out, it can even be life-threatening.
Because alarms are so frequent, particularly in intensive care settings, the Joint Commission notes that “clinicians may turn down the volume of the alarm, turn it off, or adjust the alarm settings outside the limits that are safe and appropriate for the patient – all of which can have serious, often fatal, consequences.” The Commission suggests a series of steps that hospitals can use to insure that patient alarms are properly set so as to minimize false readings, and that providers are able to hear the alarms and respond in a timely fashion.
When a patient suffers injury or death in a hospital, alarm errors can be very difficult for families to identify, as medical records often do not record what monitors are being used, what parameters are set, whether and when an alarm sounded, and whether and when a provider responded to the alarm. Some cases come to light when the hospital admits to the patient or family–usually following some sort of adverse event–that there was a problem with the monitoring, while others are uncovered during discovery in a lawsuit, when a health care provider admits in response to specific questions that a monitor was ignored or turned off.
The ability of patients to obtain data from malfunctioning or ignored monitors varies greatly. Some monitors have no internal storage of data, while others save information only for a relatively short time. Some types of monitoring records are saved by hospitals, but not considered part of a patient’s record, and must be specifically requested–often only after a lawsuit is filed. This data, if available, often provides important insights into what happened during crucial times in a patient’s care.
Read more: The Boston Globe recently published an article discussing the risks to patients from “alarm fatigue.”
Patient safety scored a major victory last week in Pennsylvania, when a federal court judge upheld a jury verdict against the American Academy of Orthopedic Surgeons (AAOS), the primary professional organization in the specialty, holding that the organization had unfairly damaged the reputation of Dr. Steven Graboff.
Dr. Graboff, a board certified orthopedic surgeon and a member of the AAOS, was one of the rare members of his specialty willing to review and testify for patients in medical malpractice cases. The physician-defendant in a case in which Dr. Graboff was involved took offense, and filed a complaint against him with the AAOS disciplinary system. After a couple of fairly brief hearings, the AAOS Board of Directors voted to suspend Dr. Graboff from the Academy for two years. The AAOS published notice of the suspension in its monthly bulletin to members, and also posted the decision on its public website, where it was readily accessible through search engines such as Google.
As a result of the suspension, law firms that had previously used Dr. Graboff’s services as an expert witness told him that they could no longer hire him as a reviewer because of the suspension. One firm even asked for a refund of monies already paid to Dr. Graboff for work he had performed before the suspension. The economic loss was significant.
A Pennsylvania jury found that the AAOS had portrayed Dr. Graboff in a “false light,” by implying that he had made deliberately false statements in a “medical-legal report,” when in fact he had simply given a preliminary opinion to an attorney who had not supplied him with all the facts. The jury awarded damages of nearly $200,000.
Dr. Graboff is to be commended for taking a stand against the intimidation tactics of professional organizations, some of which have been quite active in discouraging their members from testifying on behalf of injured patients in malpractice cases. The AAOS system, for example, permits only fellow physicians to file grievances–so that a patient whose valid malpractice claim was defeated by false or misleading testimony from a defense expert would not be able to complain.
Juries are well able to listen to expert witnesses for both sides, and reach decisions on which testimony is worthy of belief. Lawyers are well able to expose flaws in reasoning and methodology in expert testimony by vigorous cross-examination. However, the integrity of the legal process depends on the willingness of qualified physicians to participate as advocates for patients who have been harmed by malpractice. Without such physicians, the doors to the courthouse are shuttered to an injured patient.
The attempt by professional organizations to discipline members for having the audacity to testify against fellow physicians has a dangerous and chilling effect on doctors who might otherwise be willing to come forward on behalf of their patients. The “conspiracy of silence,” which discourages physicians from speaking up against other physicians is strong enough without witnesses for patients having to face the added risk of professional disciplinary action for giving testimony that displeases the medical establishment.
While the playing field for patients can never be level, due to lack of access to information and continuing professional pressure on physicians, the Graboff court took an important step in helping to avoid making the situation any worse.
A Massachusetts Superior Court judge has ruled that he will review the school records for the sibling of a young man who suffered lead poisoning to see if they contain information that might tend to show a familial or genetic cause for the plaintiff’s cognitive and learning disabilities. If the records contain pertinent information, the defense will be allowed access to the records, even though the sibling is not a party to the case.
The claim that a plaintiff’s medical condition has a hereditary basis is often raised by defendants in medical malpractice and other personal injury actions. As yet, no Massachusetts appellate court has addressed the question of when or how the defendant may obtain copies of medical and other personal information related to another family member in order to support its contention. However, defense lawyers commonly issue subpoenas for this type of material, ignoring the rights of the non-party family member.
The defendants in Sapienza v. Beaulieu sought an order requiring production of the plaintiff’s 10-year-old sibling’s school records, in order to determine whether there is evidence to support a genetic or familial cause for the plaintiff’s cognitive disabilities. In support of their motion, the defendants submitted an affidavit from a neuropsychologist, who stated that review of the medical and educational records for other family members would be important to her conclusions about the cause of the plaintiff’s disability.
Last month, Superior Court Associate Justice Jeffrey Winik ruled on the defense motion, issuing a sensible order that is roughly modeled on procedures for obtaining non-party records in criminal cases. The school has been directed to produce the records in a sealed envelope, which will be opened and reviewed by the judge. If the judge determines that there is information pertaining to “attention deficit disorder, specific learning disabilities, such as speech delay, and mental illness,” he will appoint a guardian ad litem for the minor sibling, who will have an opportunity to argue why the records should not be produced to the defense. If the judge then determines that the records should be produced, he will allow defense counsel and the expert to see them under strict safeguards.
Normally, someone who files a lawsuit alleging personal injury is considered to have waived any privilege or privacy rights to medical and other information related to that injury. There is no automatic waiver, however, for family members or others who are not parties to the case. Judge Winik’s opinion strikes a reasonable balance between the privacy rights of non-party family members, whose medical condition may arguably be relevant to the causation issues being litigated, and the defendants’ need for information to contest the claim of causation. The detailed procedures instituted by the court recognize that other family members’ rights must be protected, and cannot be waived simply by a relative’s act of bringing a lawsuit.
New regulations passed under the Health Insurance Portability and Accountability Act (HIPAA) will soon permit patients to request and receive their medical records electronically. These regulations have the potential to help patients by reducing the cost of obtaining records, providing the records in a form that is more accessible, and perhaps even by allowing access to hidden information that patients don’t generally get without a fight.
45 CFR §164.524 will be effective as of March 25, 2013, but health care providers have until September 25, 2013 to comply. The regulation requires that providers who maintain their patient records in electronic form must, on request by the patient, provide the records in an electronic format acceptable to the patient if the record is “readily producible” in that format, or, if not, in a different electronic format agreed to by the covered entity and the individual. Instead of the usual per-page copying charges, the provider may charge a reasonable, cost-based fee, which may include the cost of the data device (CD-ROM or USB device), actual labor costs and postage. However, the published interpretation from the U.S. Department of Health & Human Services states that that charge does not include non-labor-based retrieval fees or overhead costs for creating or maintaining electronic systems and equipment.
The regulatory comments suggest that in many cases, the patient will request records in Portable Document Format (pdf). In most cases, the patient should request and the provider must provide, a searchable pdf file. This will make record review much faster and easier. In the alternative, patients may want to request a copy of the file in its “native” state, just as it is used in the hospital or office, although the software necessary to read this format may be proprietary and not readily available.
Although the issue of metadata is not specifically addressed in either the regulations or the comments, an argument can be made that the patient is entitled to receive the entire contents of the facility’s electronic file, including often invisible information about when and by whom entries were made, changed or even accessed. If the timing of entries or who reviewed them will be an issue in a medical malpractice case, this information can be invaluable. While it is usually obtainable through discovery, in many cases it would be advantageous to have it sooner rather than later.
Finally, the new regulations establish a fixed time limit of 30 days for the health care provider’s response to the patient’s request. Unlike the old regulations, this period is not extended if the data is stored off-site. Time spent negotiating with the patient about the format of the electronic response is chargeable against the 30 days. The provider may request a one-time extension of 30 days, with written notice to the patient or other requestor about the reason for the delay and the expected date of completion.
Read the full text of the regulations and comments here.
In my last post, I summarized the recent Time Magazine article by Steven Brill, which exposed the rampant abuse and overcharging that drive up health costs beyond the means of many ordinary people–even those with health insurance. Brill demonstrated how “non-profit” hospitals often generate stunning profits by marking up the cost of both common and specialty medical supplies and by billing separately for items most people would assume are included within other charges.
Although not cited as a main force behind soaring medical costs, Brill does mention the role of so-called defensive medicine, the practice of ordering tests or treatments based on fear of a malpractice suit rather than good medical practice. While Brill acknowledges that other factors–including personal profit motives–may prompt doctors to order “unnecessary” tests or treatments, he also assumes that some doctors do treat patients with one eye on their possible malpractice liability, ordering tests for fear that they will be sued if they don’t do so.
Brill’s proposed solution to the problem of defensive medicine is one that has been around for a while. He suggests that doctors would order fewer unnecessary tests if they knew that they could not be held liable as long as they followed established professional standards for diagnosing a particular condition.
There are two main problems with Brill’s solution, which, if properly implemented, in theory would have the potential to help patients by insuring that more people get appropriate care. One is the obvious problem of how the “established” standards are set—and by whom. If physician organizations are permitted to set artificially low standards, patients will suffer.
But the other problem is that physician groups have fought valiantly—and for the most part successfully—against the establishment of this type of standards. Unfortunately, the medical groups’ opposition is not based on any concern that patients may be harmed by standards that are set too low. Rather, the opposition from physicians is motivated by pure self-interest: they are afraid that if there are clear universal standards, they will have absolutely no defense if they don’t follow the standards!
Because a favorite defense technique is confusion. Malpractice defendants love to argue that medicine is an art, not a science, that medicine is not practiced from a “cookbook” that gives the proper treatment in each given situation, and that practicing medicine requires doctors to “exercise their judgment.” Imagine what would happen to this defense if there was a clear, unambiguous professional standard that required certain actions in a given situation. Rather than protecting the doctor from liability, that unambiguous standard would provide the injured plaintiff with precisely the proof of negligence that he needs.
A recent special issue of Time Magazine is must-reading for anyone interested in understanding why health care costs are spiraling out of control. As author Steven Brill reveals, hospitals routinely reap unconscionable profits by adding huge markups to the charges for common supplies and medications that any consumer could buy online for a fraction of the price, billing patients several times the actual cost for specialty medical devices, and ordering unnecessary lab and radiology studies that generate added revenue.
Brill cites specific examples: $108 for the common antibiotic ointment bacitracin, $1.50 for a single acetominophen tablet, $7 for the little alcohol-soaked pad used to swab your arm before you get an injection or a blood draw. The list goes on for more specialized items: $49,237 for a medical device that one source estimated cost the hospital perhaps $19,000 to buy, and $13,702 for a medicine that, using the manufacturer’s financial investor reports, may have cost as little as $300 to make.
Brill’s extensively researched article dissects medical bills received by several patients around the country, most of whom needed extensive medical care due to an unexpected accident or diagnosis of cancer. These middle-class citizens, all with health insurance, were financially ruined by the hospital bills they received. Even those who received assistance from billing advocates who specialize in negotiating medical bills, the charges were well beyond their means.
For example: In the 11 months between his diagnosis and his death, the total bill to a California man who died of lung cancer came to $902,452. His health insurance paid $50,000 of that total, the lifetime limit of the policy. And even after aggressive negotiation by a trained advocate, his family still owed nearly $200,000–an amount they can never hope to pay. A school bus driver from Connecticut slipped in her yard and broke her nose. Her six hours in the emergency room cost $9,418. Her insurance coverage was limited to $2500 per hospital visit and a judge ordered her to pay the remaining $7000, less $500 he ruled was duplicative. A man who sought cancer treatment at renowned MD Anderson Cancer Center in Houston had to pay $83,900 in advance to get his treatment plan and begin chemotherapy. Needless to say, his insurance plan, which capped costs at $2,000 a day, was not particularly helpful.
Brill contrasts these horror stories with a satisfied medical consumer, an older gentleman who has received excellent medical care from world-famous facilities with minimal out-of-pocket cost to him, while Medicare and a supplemental insurance policy covered the lion’s share of the charges. Still, Brill notes, the amount paid by Medicare is far below what the providers charge to patients with private insurance or no insurance. For example, the bus driver with the nosebleed has to pay $6,538 for three CT scans; Medicare would pay just $825 for the same studies.
Brill also exposes the exorbitant salaries paid to many hospital and health care administrators, running to the millions of dollars per year. The head of the Yale-New Haven hospital system earns $2.5 million per year–nearly $1 million more than the University president. The chief executive officers of the ten largest non-profit hospitals in country all make more than $2 million per year–with the highest earner topping out at nearly $6 million. To put that in perspective, Brill notes that the head of the American Red Cross is paid just $560,000 per year.
One of Brill’s suggested cures for the out-of-control costs is almost counter-intuitive. Rather than raising the age at which patients become eligible for Medicare, Brill suggests that the eligibility age ought to be lowered. This would spread the risk by including more younger (and presumably healthier) patients in the pool of covered patients, and would lower costs overall because Medicare pays a much lower rate for care than private insurers. For example, Brill notes that if a 64-year-old woman profiled in his article, treated at a Connecticut hospital for chest pain, had been 65–Medicare would have paid something in the range of $2500-$3000, instead of the $21,000 she was charged.
Interestingly, the medical malpractice system draws only indirect criticism from Brill. While he suggests some reform might be appropriate, his stated reason is so that doctors won’t incur additional costs by ordering unnecessary tests for fear of being sued. More on this thought in the next post.