Roanoke Personal Injury Lawyer

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

Recurring Problems with Nursing Homes #5

Dan Frith — Fri, 05 Jun 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 #5: The Administrator and Director of Nursing sit you down and tell you that they need to have your husband tied into his bed or chair in order to prevent him from wandering away and getting hurt. Further, they tell you the night time nurses will start putting his bed rails in the up position in order to keep him in bed at night. What do you do?

First, you tell the Administrator and Director of Nursing that federal law prohibits the use of "physical restraints" as a form of discipline or for their convenience (Section 483.13(a) of Title 42 of the Code of Federal Regulations). Why? By limiting a resident's ability to move, restraints may cause a resident to become even more unstable, and more susceptible to falls and injuries. Even more dramatic (and we have litigated one of these cases here in Roanoke), the use of bed rails can result in the resident's death when their neck becomes entrapped between the bed and the side rail resulting in their asphyxiated.

Originally posted at InjuryBoard by Dan Frith

Recurring Problems with Nursing Homes #4

Dan Frith — Thu, 04 Jun 2009 06:40:00 GMT

Problem #4: The staff at your mother's nursing home tells you she needs medication in order to make her more manageable. What you are really being told is the facility is under-staffed and they want to sedate your mother to the extent she doesn't need attentive and frequent nursing care. Federal law prohibits the use of medication in this situation.

Behavior modifying medication (also called psychoactive medication) can be used only to treat a resident's medical condition or symptoms. Behavior modifying medication cannot be used for discipline or for the convenience of the nursing home (Section 483.13(a) of Title 42 of the Code of Federal Regulations).

If the behavior modifying medication is recommended by the resident's doctor, the resident or her/his family must be told what condition or illness is being treated by the medication.

Don't let the facility "dope up" your mom.

Originally posted at InjuryBoard by Dan Frith

Recurring Problems with Nursing Homes #3

Dan Frith — Wed, 03 Jun 2009 06:25:00 GMT

Problem #3: You are told that your father must have a feeding tube inserted because he is taking too long to eat.

Wrong! Feeding tubes are a last resort. The nursing home must take specific steps toward maintaining a resident's ability to eat. The steps include: (1) prompting the resident to eat, (2) providing therapy to improve swallowing skills, (3) feed the resident by hand, (4) providing foods which are more easily eaten such as pureed foods, (5) provide utensils with easy to grip handles.

A resident's slowness in eating is not a sufficient reason for the placement of a feeding tube. The fact the nursing home has failed to hire sufficient staff to feed the residents is not a sufficient reason for the use of a feeding tube.

Originally posted at InjuryBoard by Dan Frith

Recurring Problems with Nursing Homes #2

Dan Frith — Tue, 02 Jun 2009 14:23:57 GMT

Problem #2: Many nursing homes tell the resident's family that they may "visit" only during set or scheduled visitation hours and may never visit after a certain time at night.

Wrong! The Nursing Home Reform Law provides that a nursing home may not limit visiting hours for "immediate family or other relatives." The law is found in Section 483.10(j)(1) of Title 42 of the Code of Federal Regulations. For late night visitations, federal guidelines suggest the visit take place outside of the resident's room to avoid disturbing a sleeping roommate. So, if you don't get off work until later in the day don't let the Director of Nursing, or others, tell you that you cannot visit a loved one.

We tell all of our client's family members that it is often best to visit at unusual times of the day to get a real picture of the care provided at the nursing home.

Originally posted at InjuryBoard by Dan Frith

Recurring Problems with Nursing Homes

Dan Frith — Fri, 29 May 2009 13:37:36 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. I decided we would share with our readers some of the more frequent problems...and the answers.

Problem # 1: Nursing homes which require a family member to sign the Admission Contract as a "Responsible Party." The Nursing Home Reform Law (Section 483.12(d)(2) of Title 42 of the Code of Federal Regulations) prohibits a nursing home from requiring a family member or friend to become financially liable for nursing home expenses of the resident. The signature of a family member or friend can only be required when the individual is signing on the resident's behalf. In other words, the signature of a family member or friend can only be required when they are signing as "power of attorney," "guardian," "conservator," for the resident.

Don't be mislead into believing you must sign as a "Responsible Party" or that you legally share financial responsibility for the resident's bills if you did sign the Admission Contract in that fashion.

Originally posted at InjuryBoard by Dan Frith

Patients with atrial fibrillation and heart failure are not being appropriately treated

Dan Frith — Tue, 26 May 2009 10:35:00 GMT

Don't take my word for it...take the word of a report in the May 5th Journal of the American College of Cardiology.

Atrial fibrillation (AF or afib) is the most common cardiac arrhythmia (abnormal heart rhythm) and involves the two upper chambers (atria) of the heart. Atrial fibrillation is often asymptomatic (and is not in itself generally life-threatening) but may result in palpitations, fainting, chest pain, or congestive heart failure. People with AF usually have a significantly increased risk of stroke (up to 7 times that of the general population).

Heart failure (HF) is a condition in which a problem with the structure or function of the heart impairs its ability to supply sufficient blood flow to meet the body's needs. It should not be confused with cardiac arrest. Common causes of heart failure include myocardial infarction (heart attack) and other forms of ischemic heart disease, hypertension, valvular heart disease and cardiomyopathy. Heart failure can cause a large variety of symptoms such as shortness of breath (typically worse when lying flat, which is called orthopnea), coughing, ankle swelling and reduced exercise capacity.

The recent study followed drug therapy among patients with AF and HF who were enrolled in cardiology practices of 182 hospitals in 35 countries. The results were disturbing. Only 29% of patients with both AF and HF received the full package of recommended drug therapy. Only one-fifth of all HF patients received the combination of a beta-blocker and digitalis.

My Question: Why?

Originally posted at InjuryBoard by Dan Frith

Road Biking Safety

Dan Frith — Fri, 22 May 2009 11:12:00 GMT

I admit it...I've been bitten by the bike bug! It started innocently enough last year when my wife and I rode in the Five Boro Bike Tour of New York City (it is a fantastic event and a great way to see all 5 boroughs). I promptly purchased a road bike upon my return home and have been riding ever since

I live in an area of Virginia which is great for riding. I can leave my house on my bike and be on the Blue Ridge Parkway in less than 10 minutes. I try to get at least two rides (20 - 45 miles each) every week, weather permitting.

Bike Safety is a big issue with me. I always wear a helmet and try to be vigilant for the crazy or absent minded automobile driver. I found this great web site for bike safety and want to share it with my readers. The article is entitled, "How Not to Get Hit by Cars: Important Lessons in Bicycle Safety."

Just writing about the topic has me thinking I may just sneak out of the office a little early today and go for a ride.

Originally posted at InjuryBoard by Dan Frith

Medical Malpractice: Want to Learn More?

Dan Frith — Thu, 21 May 2009 11:07:50 GMT

I spend a great deal of my time speaking with medical experts and conducting medical research. I try to share good information when I find it and that is my purpose today. The following web sites are sponsored by patient safety groups who are concerned about the high incidence of medical malpractice in America:

Josie King Foundation: The Josie King Foundation’s mission is to prevent others from dying or being harmed by medical errors. By uniting healthcare providers and consumers, and funding innovative safety programs, the group hopes to create a culture of patient safety.

Consumers Advancing Patient Safety: CAPS is a consumer-led nonprofit organization formed to be a collective voice for individuals, families and healers who wish to prevent harm in healthcare encounters through partnership and collaboration.

Persons United Limiting Substandards and Errors in Health Care: This support group/organization is dedicated to raising awareness about patient safety and reducing medical errors through advocacy, education, and support. The group works to empower the public to make informed decisions, increase effective communication and respect between healthcare providers and the public, and create community partnerships to foster safer healthcare environments.

Surgicalfire.org: Most people have never heard about "surgical fires" but they occur more frequently than you could imagine and the consequences are devastating. Examples include an electrical spark from a surgical tool sets off a fire in the breathing tube of a young tonsillectomy patient. A hot particle from a bassinet warmer ignites flames that burn a newborn baby. A nicotine patch on a patient undergoing an MRI scan becomes so hot the patient is burned and the test halted. The Wall Street Journal published a scary article on these problems just months ago.

Medically Induced Trauma Support Services: Medically induced trauma is an unexpected outcome that occurs during medical and/or surgical care that affects the emotional well being of the patient, family member, or clinician. This organization operates much like a support group and the web site is fantastic.

I hope you find these web sites useful.

Originally posted at InjuryBoard by Dan Frith

Want to Know the Best and Worst Nursing Homes within 50 Miles of Wytheville, Virginia?

Dan Frith — Thu, 14 May 2009 06:33:00 GMT

The information might be important if you are trying to decide where to place a loved one who can no longer care for himself/herself at home. But how can you determine which nursing home is the best? If this issue is important to you, you job just got a lot easier.

The answer is provided by a new "5-Star Quality Rating System" provided by Medicare. The Five-Star System was created to help consumers, their families, and caregivers compare nursing homes more easily and help identify areas about which you may want to ask questions.

The nursing homes receiving the best ratings include:

Westwood Center (Bluefield, VA)

Highland Ridge Rehabilitation Center (Dublin, VA)

Glenwood Park (Princeton, WV)

Radford Nursing and Rehabilitation (Radford, VA)

Heritage Hall - Laurel Meadows (Laurel Fork, VA)

The nursing homes receiving some of the worst ratings include:

Carrington Place at Wytheville - Birdmont Center

Bland County Nursing and Rehabilitation (Bastion, VA)

Golden Living Center - Blue Ridge (Galax, VA)

Maples Nursing Home (Bluefield, WV)

Grayson Nursing and Rehabilitation Center (Independence, VA)

Francis Marion Manor (Marion, VA)

Heritage Hall - Tazewell, Virginia

My Take: Be an informed consumer of health care and do your loved one a favor....check out the nursing home BEFORE you decide what is best for a family member.

Originally posted at InjuryBoard by Dan Frith