Roanoke Personal Injury Lawyer - All Topics - Most Popular

The Myth About Defensive Medicine

Dan Frith — Thu, 02 Jul 2009 06:49:00 GMT

The health care system in this country has problems. The one point we can all agree on is that it just costs too darn much. The system’s other flaws, and the reasons why it costs so much, are all controversial issues. To some extent, one’s opinions about the whys and wherefores of the price depend on one’s political beliefs. This is odd, as there is no real reason why opinions about gun control or the morality of capital punishment should necessarily correlate with pricing issues.

In any event, it is an article of faith among tort “reformers” that medical care is expensive in large part due to an explosion in medical malpractice claims. A subset of this belief is the idea that legal liability causes doctors to perform unnecessary tests and procedures to protect themselves from meritless lawsuits. This is known in medical circles as practicing “defensive medicine.” Is this really the case? To take this claim from the realm of opinion to that of fact we have to break it down into series of questions to see if there is evidence to support them. Let’s do that and see what we find.

With any empirical question, an early task has to be deciding what data we can collect, and how to measure it. Few doctors face direct personal legal liability for their treatment choices. This is because most doctors are insured, with any actual malpractice judgments paid by a third-party insurer.

Many studies of the effects of torts on health care pricing use medical malpractice premiums as a proxy for the costs of the tort system. If defensive medical practices are motivated by a desire to keep premiums low, then we would expect to see fewer of these practices in states which have capped tort payouts. We should also see lower premiums, or at least a slower increase in premiums, in states which have limited tort damages. Also, for legal action to be the primary driver of increases in malpractice insurance payouts, we would need to see an explosion in either the number of successful claims, the damage awards from those claims, or a mixture of the two. Do we see such an increase? No, we do not.

A study of malpractice claims in Texas 1988-2002 found, correcting for inflation and population growth, a decline in the number of small claims (those under $25,000) and that the number of large claims had remained the same. Moreover, the amounts of paid claims only increased by 0.8-1.2 percent per year. As for the effects of capping tort claims, one national study found that while payouts did decline in the nineteen states that then had caps, premiums in capped states rose far faster than those in uncapped states. In states with statutory caps, the median annual premium increased almost fifty percent, while those states without caps saw a median increase of only thirty-five percent. Something is driving premiums higher, it just isn’t necessarily malpractice claims. A more recent study from New York shows exactly the same thing.

The other primary method of studying “defensive medicine” is simply to send surveys out to various doctors and simply ask them if they practice medicine defensively. This is the preferred method of researchers on almost every side of every question. This is so because the researcher can, by carefully crafting survey questions, get any answers he or she desires. And, in the major survey of this topic, we find that is exactly what surveyors did.

An early attempt to discover whether doctors practice defensive medicine was conducted in the early 1990s by the Office of Technology Assessment (OTA), a non-partisan research arm of the U.S. Congress. This agency concluded that defensive medicine is real, and may cause as much as eight percent of the cost of health care. However, a 2003 audit of this survey by another non-partisan research arm of Congress, the General Accounting Office, found the OTA research unconvincing, because: “Physician clinical scenario surveys were designed to elicit defensive medicine practices among physicians; hence they may overestimate the rate at which defensive medicine is practiced.” (Appendix III, Table 5).

The GAO found similar flaws with studies from the American Medical Association (AMA) and the American Academy of Orthopaedic Surgeons which had purported to show high levels of defensive medicine. The GAO found that those studies’ “Low response rates and imprecise measurements of defensive medicine practices preclude generalizing these responses to all physicians.” (page 31/63 in pdf).

So, do any physicians ever practice “defensive medicine” because of tort liability? Sure, probably some do. But is it a major factor driving the increase in health care costs? The evidence for that question is thin, and so far at least, based mostly on faulty research.

The tort system exists for several reasons, primary among them, to make victims whole and deter doctors from misconduct. We have made radical changes to this system in the past and surely we will again. And yet, before we conduct major surgery on our legal system, shouldn’t we make sure our diagnosis of the problem is correct?

Why don't we try to reduce acts of medical malpractice first...

Originally posted at InjuryBoard by Dan Frith

Lets Keep Track of Autistic Children and Demented Elders

Dan Frith — Wed, 11 Feb 2009 15:58:20 GMT

I have often read the sad newspaper report of an elderly nursing home resident who wanders away from the facility (elopes) and is found dead hours or days later due to exposure. Less often, but equally disturbing is the report of the young autistic child who wanders away from his or her home and is killed or seriously injured as a result.

The National Alzheimer's Association reports that there are an estimated 5.2 million Americans with Alzheimer's and more than half of those affected go on random and dangerous walks. The National Autism Association says that 92% of respondents to an online poll indicated their child was "at risk" for wandering and in the last 4 years 14 children have died as a result of wandering.

Isn't there a better way to watch over these vulnerable individuals? The answer is, "yes."

Companies offering "search and rescue" products is starting to take off in the United States. These companies include LoJack Corporation, Care Track International, and Locator Systems. This is the same technology which the police use to find stolen cars. The individual wears a lightweight wristband radio-tracking device. The cost is $25 to $30 per month.

Check with the local police department BEFORE making a purchase as your police department may prefer (and support) one manufacturer over another.

Originally posted at InjuryBoard by Dan Frith

Herbalife Products: A Lead Risk?

Dan Frith — Wed, 21 May 2008 07:04:00 GMT

Do you know someone who takes Herbalife products? Herbalife is global nutrition and weight-management company, whose stock is traded on the New York Stock Exchange. If you know someone who is taking Herbalife products... you had better sit them down and share this information with them.

The Fraud Discovery Institute (FDI) based in San Diego, California has released an alert warning of dangerously high levels of lead allegedly found in six common Herbalife products. The study was reviewed by Christopher Grell, co-founder of the Dietary Supplement Safety Committee and lawyer specializing in dietary supplement litigation. The alert can be viewed at the Fraud Discovery Institute's website.

The products at issue include: Herbalife's Thermogetics; Herbalife's Shape Works Cell Activator; Herbalife's Multivitamin Complex; Herbalife's Tang Kuei Plus; Herbalife's Shapeworks Protein Drink Mix; and Herbalife's Healthy Meal Nutritional Shake Mix.

The sign and symptoms which can be indicative of lead poisoning in adults may include:

. Pain, numbness or tingling of the extremities
. Muscular weakness
. Headache
. Loss of appetite
. Abdominal pain
. Memory loss
. Mood disorders
. Reduced sperm count, abnormal sperm
. Fatigue
. Depression
. Heart failure

Originally posted at InjuryBoard by Dan Frith

Midwives in Virginia: A Bad Idea

Dan Frith — Tue, 03 Feb 2009 10:57:29 GMT

Virginia is seeing an explosion in the number of midwives....and this is a bad trend!

I see many complicated deliveries where a fetus becomes entangled in the umbilical cord or caught in the birth canal due to the large size of the fetus or the smallness of the mother's pelvis. Both of these situations are medical emergencies and require the immediate attention of well-trained obstetrician or maternal-fetal specialist in a hospital setting. These life or death situations do not, in my opinion, call for delivery by a midwife in the patient's home...where there is often inadequate time to transfer a patient to the hospital after a delivery becomes complicated.

Is the increase due to lack of health insurance? Maybe. Is the increase due to outrageous hospital and physician bills for deliveries? Probably. Is the American system for the provision of health care the best in the world? Absolutely not!

I just reviewed the National Association of Certified Professional Midwives (NACPM) website which states as follows about how the state of Virginia is approaching the issue of midwives, "Midwives, consumers and supporters in the legislature had the amazing foresight to include an explicit reference to the NACPM Standards of Practice in the legislation to license CPMs in Virginia." The NACPM website goes on to state that Virginia did a good thing by making specific reference to NACPM standards, because otherwise the Virginia Board of Medicine would not know what standards are applicable.

What a bunch of hooey! Want to know what the NACPM's first identified "Philosophy and Priciples of Practice is? How about, "NACPM members respect the mystery, sanctity and potential for growth inherent in the experience of pregnancy and birth."

My Take: Virginians deserve better medical care...it's not a mystery people....its medicine!

Originally posted at InjuryBoard by Dan Frith

What are High Risk Medications?

Dan Frith — Mon, 24 Mar 2008 10:57:13 GMT

By now most Americans have read something about the medication errors which almost cost actor Dennis Quaid and his wife the ultimate loss....the death of their twins due to a medication error (heparin overdose) at Cedars-Sinai Medical Center in Los Angeles, California.

Medication errors happen daily - it is part of the "grab and go" culture in busy hospitals. What can be done to reduce this potential lethal problem?

Hospitals are retraining their nurses and pharmacy technologists to make them more aware of the problems. They are instituting new policies which require two nurses to okay the administration of certain dangerous drugs. Hospitals are also creating a "High Risk Drug List" which require increased attention and care when these medications are ordered, dispensed, and administered. The drugs on the High Risk list include heparin (maintains blood flow), insulin(controls blood sugar), opiates (acute and chronic pain control), and methotrexate(for rheumatoid arthritis and other conditions).

The Institute for Healthcare Improvement has created a guide for hospitals on how to prevent harm from these high risk or high alert medications. The Institute for Safe Medication Practices maintains an updated list of high alert medications and says that safety efforts are largely voluntary and that too few hospitals have invested in technologies like bar coding that could greatly reduce medication errors.

The bottom line: If you have a loved one in the hospital...be ever watchful for medication errors.

Originally posted at InjuryBoard by Dan Frith

Recurring Problems with Nursing Homes #6

Dan Frith — Fri, 10 Jul 2009 06:11:00 GMT

Lauren and I have reviewed over 500 potential nursing home cases over the years and we see some problems over and over and over again. I decided we would share with our readers some of the more frequent problems...and the answers.

Problem #6: The Director of Nursing has a meeting with the family to tell them, "we don't have enough staff to take care of all of your father's needs...you will have to hire your own private-duty aide to provide the needed care." Can they do this?

The answer is "no." You should tell the Director of Nursing that it is the nursing home's responsibility to provide necessary care (as documented by the Care Plan or ordered by a doctor), and that claiming a shortage of staff or money is no excuse. Also, remind the Director of Nursing that federal law requires the nursing home to provide the care a resident needs to reach the highest practicable level of functioning and that requiring or suggesting private-duty aides is a violation of federal law. The federal law can be found at Section 483.25 of Title 42 of the Code of Federal Regulations

Originally posted at InjuryBoard by Dan Frith

Watch Out for Old Bones: They Break Easily

Dan Frith — Mon, 24 Aug 2009 08:45:03 GMT

Accidents in nursing homes are causing injury and even death to our nation’s elderly. In fact, each year average sized nursing homes of approximately 100 beds report anywhere from 100 to 200 slip and falls. Although not all accidents result in fatalities, those that fall may experience reduced quality of life, difficulty in movement, or other serious injuries.

The figures of nursing slip or fall accidents are staggering. Nursing home residents account for 20% of the fall related deaths for those 65 years and older. Of those living in nursing homes, 3 out of 4 residents will slip or fall within the year. This figure is twice the number of those older adults living outside nursing homes in the community. Even more alarming is the fact that residents are falling more than once throughout the year. The average number is 2.6 falls per the year for each nursing home resident.

These falls do not always allow for an easy or quick recovery. Approximately 1,800 people who reside in nursing homes die each year from slips or falls. Those that fall but do not suffer a fatal injury, can disable themselves for the rest of their life, causing depression and feelings of helplessness.

So why are these falls occurring more frequently in nursing homes? The answer is obvious: Residents in nursing homes are usually more dependent and frail than those living outside homes in the community.

With the incidence of falls on the rise, prevention is essential in nursing homes. Prevention steps can include staff education as to risk factors that lead to falls, making resident life easier and more convenient to the residents, and making changes in facilities such as adjusting toilet heights, adding hand rails, and lowering bed heights. Also, making hip pads available to patients to help support them during a fall could prevent serious injuries.

For those with loved ones in nursing homes, or those that work in nursing homes, ensuring that the facilities meet appropriate and safe conditions can mean the difference between longevity and healthy life for your loved ones, or a possibility of a slip and fall accident.

My Advice: First, don't be a victim...be proactive and insist that the facility take appropriate actions and implement safeguards to reduce or prevent falls. Second, if you, or anyone you know has been victim of a slip and fall in a nursing home, contact legal counsel to discuss your legal rights.

Originally posted at InjuryBoard by Dan Frith

Attorneys General Request Suspension of Medicare 5 Star Rating System for Nursing Homes

Dan Frith — Thu, 03 Sep 2009 09:37:08 GMT

Thirty state attorneys general have asked the Centers for Medicare & Medicaid Services (CMS) to suspend and revise its Five-Star rating system. The Five-Star system, launched in December 2008, gives each nursing facility a rating between one and five stars, based on the facility’s inspection record, staffing levels, and “quality measures” (e.g., percentage of residents with pressure sores or urinary tract infections).

In short, the Five-Star system grades facilities on a curve within a state, and the attorneys general are requesting ratings that could be compared from state to state. It is unclear how much of an issue this is for consumers, since in most (but not all) cases the search for a facility is done solely within one state.

A copy of the request is available on the National Senior Citizens Law Center (NSCLC) website.

My Take: Attorneys General are politicians and money is the financial life-blood of any successful politician. My guess is that deep-pocketed owners of nursing homes made a little telephone call to their state's attorney general and told them the money will stop unless you help us. Unfortunately, the politicians decided money for re-election was more important than informing the public about which nursing homes in their state provide poor care. A sad commentary indeed!

Originally posted at InjuryBoard by Dan Frith

Tanning Beds....The Sun is Setting

Dan Frith — Wed, 29 Jul 2009 17:02:51 GMT

The news is disturbing. I knew in my heart that tanning beds couldn't be good for your skin but the conclusions reached in a recent international study are alarming.

The International Agency for Research on Cancer (IARC) had previously classified sunbeds as being a "probable" cause of cancer. However, the agency is now recommending that tanning machines should be moved to "the highest cancer risk category" and be labeled as "carcinogenic to humans".

In an article in medical journal The Lancet, oncology expert Dr. Fatiha El Ghissassi wrote: "The use of UV-emitting tanning devices is widespread in many developed countries, especially among young women. The article concluded the risk of skin melanoma is increased by 75 percent when use of tanning devices starts before 30 years of age. In addition, studies provide consistent evidence of a positive association between the use of UV-emitting tanning devices and ocular melanoma.

Melanoma is the second most common cancer in women aged 20 - 29.5, according to the America Melanoma Foundation.

My Take: It took way too long to restrict the use of cigarettes...lets not wait so long in limiting who may use tanning beds and under what limitations. I recently saw a local teenager with a tan that had to come from too frequent visits to a tanning bed...she may not know it but she is putting her life at risk.

Originally posted at InjuryBoard by Dan Frith

Midwives in Virginia: Part Two

Dan Frith — Wed, 04 Feb 2009 11:45:22 GMT

Yesterday I wrote a blog on midwives in Virginia...and boy did I raise some eyebrows! I do appreciate my readers' comments and, although I cannot respond to everyone, I do want to follow up on my post with the following comments:

1. I spend a great deal of my professional time representing pregnant mothers and other consumers of medical care in medical malpractice cases. As a result, I have seen (specifically, in-depth review of medical records) more deliveries than any of my critics, except for those in the health care profession who delivery babies on a regular basis.
 

2. I am not a proponent or supporter of the Medical - Industrial Complex. America's system of providing medical care is too expensive and makes too many mistakes, costing billions of dollars and the loss of thousands of lives.

3. I am an advocate for personal choice and if a woman wants to deliver at home it should be her decision. However, it is because I believe in personal choice, it is important for the consumer to fully understand the consequences of making this important decision.

4. I've heard from many people about their wonderful experience delivering their child at home. Those responses do not surprise me. If there are no complications experienced during a home delivery, I am sure everyone is pleased with the outcome...its less expensive...more personal...and more intimate and special than delivery at the local hospital.

5. My concern, and the purpose behind my post, is to make sure all pregnant mothers think about what happens if there is an unanticipated medical emergency or crisis which occurs at the time of delivery at home. What happens when the umbilical cord becomes wrapped around the fetuses' neck and her heart rate plummets? What happens when the fetus' shoulder cannot pass the pelvis resulting in a brachial plexus injury? What happens when the mother experiences DIC (disseminated intravascular coagulopathy) and risks bleeding to death? I have seen and litigated cases with these very facts. All occurred in the hospital setting and I can tell you that either the mother or infant (or both) run the risk of death unless prompt surgical intervention (often with the involvement of multiple medical specialists) is provided. This type of care cannot be provided in mother's home.

For example, the standard of care in Virginia for the speed at which an emergency Cesarean section is performed is 30 minutes from "decision to incision." Do you think a mother who encounters a life-threatening unanticipated complication can be transferred from her home to the local hospital and for an emergency c-section in 30 minutes? I doubt it!

Originally posted at InjuryBoard by Dan Frith