Roanoke Personal Injury Lawyer - Medical Malpractice

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

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

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

Alzheimer's Project - well worth your time and tears

Lauren Ellerman — Wed, 13 May 2009 08:57:35 GMT

I spend my days speaking to families who have learned their loved one may have been a victim of nursing home neglect. As a sensitive person, I am touched by their stories of loss, sadness and disappointment.

Many of my clients care for someone who has a dementia or Alzheimer's diagnosis. After many years of trying to provide care alone, they often turn to a facility to help with 24 hour a day care.

Last night I spent two hours in front of the TV - watching an HBO documentary called the Alzheimer's Project. The documentary follows families in the same circumstances - trying to get care for a loved one.

They featured one family who after 4 months after placing their Dad in the nursing home, was still struggling to regulate his medication, care takers etc. Overmedicated, the father slept all day and was up most nights. I was so scared watching the show, because I have seen real danger occur in nursing homes for this reason.

Persons with dementia and Alzheimer’s are often overmedicated (makes it easier for nurses to "KEEP AN EYE ON THEM IF THEY ARE IN A CHAIR OR BED ALL DAY"), and then at night, not supervised. Falls will occur. The documentary showed where the father's pants fell off him - and I thought to myself - HELLO - WEIGHT LOSS! Overmedication means they won't eat, will lose weight, are more susceptible to pressure ulcers, UTIs, falls etc.

The cycle is so scary - and my heart goes out to these families. I would encourage them, to be proactive (as the family on the show was) and make sure the health care providers are on the same page. Are they monitoring nutrition? Water intake? Exercise? Medicine?

Great tragedies can and do occur in nursing homes when dementia and Alzheimer’s patients are overmedicated.

While I would recommend the show, it is not for the faint of heart. Actually, neither is being in a nursing home, placing a family member in one, working in one - or holding them accountable.

Originally posted at InjuryBoard by Lauren Ellerman

Virginia Doctor Reprimanded for Proscribing Too Much Medication

Dan Frith — Mon, 04 May 2009 15:23:28 GMT

Today's blog should not surprise anyone. In my opinion, the pharmaceutical industry and doctors have been in bed together (for their joint financial benefit) for way too long. But here is the story...

A committee of the Virginia Board of Medicine informed Dr. Larry Boulware this month that he is permanently barred from treating chronic-pain patients. The allegations center on events that occurred from 2005 to 2007 while Boulware was medical director at the Colonial Beach (VA) Medical Center. Dr. Boulware was reprimanded for liberally prescribing pain medicines and for failing to keep good records.

Dr. Boulware is alleged to have prescribed narcotics for patients even though he:

Did not have a treatment plan for them.

Did not document why he chose the medicines he did.

Did not monitor their progress on the medicines he prescribed.

Did not require them to sign pain-management contracts, which spell out their responsibilities.

The controlled substances at issue were alprazolam, Ambien, Dalmane, diazepam, Dilaudid, Endocet, flurazepam, hydrocodone, hydromorphone, Lorcet, methadone, oxycodone, Percocet, Valium and Vicodin.

The Best Comment: Comes from Dr. Boulware himself when he said, ""My trip down there (for the hearing before the panel) and the time I spent with them, two hours being grilled, meant nothing. They didn't prove anything other than I'm sloppy." Dr. Boulware currently practices medicine in Fredericksburg, Virginia.

Originally posted at InjuryBoard by Dan Frith

Too Many Malpractice Lawsuits or Too Much Malpractice?

Dan Frith — Thu, 02 Apr 2009 15:15:41 GMT

We've listened to George Bush, various national, state, and local medical organizations, and the insurance industry cry long and hard about the need to reform medical malpractice laws in the United States. Frivolous lawsuits they claimed...running doctors out of the practice of medicine they claimed. My response...BS!

I challenge anyone to deny the reality that:

Most Americans injured by medical malpractice do not sue.
Most lawsuits are not frivolous and courts efficiently weed out weak claims.
Jury awards have not spiraled out of control, and lawsuits have not reduced access to doctors.

Here are the facts:

In a landmark study, the Institute of Medicine of the National Academy of Sciences estimated that medical errors kill up to 98 000 US hospital patients each year (Kohn LT, Corrigan JM, Donaldson MS, editors. To Err is Human: Building a Safer Health System) In 2004, Healthgrades, an independent health care ratings company, reported nearly double that figure. Its examination of 37 million patient records from all 50 states, representing 45% of all U.S. hospital admissions, found 195 000 hospital deaths from preventable medical errors annually between 2000 and 2002.
Evidence that medical malpractice in the U.S. greatly exceeds malpractice lawsuits has been available since 1974, when California's medical and hospital associations sponsored a study intended to support their efforts to get lawmakers to pass tort reform. Instead, it found that doctors and hospitals negligently injured 0.8% of hospital patients (Mills DH, editor. Report on the Medical Insurance Feasibility Study. Sacramento: California Medical Association and California Hospital Association; 1977). A later analysis of the data found that, at most, only 1 in 75 of those injured were compensated (Danzon, Patricia A. Medical Malpractice: Theory, evidence and public policy. Cambridge: Harvard University Press; 1985).
The notion that frivolous lawsuits abound is also unsubstantiated. A 2007 study by Public Citizen showed the court system was "on the whole, a rational one that provides money for valid claims and dismisses invalid ones." Using data from the U.S. government's National Practitioner Data Bank, the consumer nonprofit group concluded that complaints by "the business and medical lobbies are exaggerated and unsupported by the facts."
The evidence is that jury awards are simply keeping up with the costs of medical care, rather than being out of line. In 2005, Dartmouth College economists studied payments made to patients between 1991 and 2003. Actual payments, not jury awards, grew an average of 4% annually — slowing to 1.6% a year since 2000 — or 52% since 1991, roughly equivalent to increases in health care costs. A 2004 RAND study examining 40 years of jury verdicts concluded that average payouts grew by less than real income, with more costly medical care responsible for more than half the growth in jury awards.
Malpractice insurance and claims account for, at most, 2% of U.S. health care spending, according to the U.S. General Accounting Office, the investigative arm of Congress.

Who is willing to take on my challenge?

Originally posted at InjuryBoard by Dan Frith

Hospital ICU's: Wrong Drug...Wrong Dose...Wrong Route

Dan Frith — Mon, 30 Mar 2009 08:37:39 GMT

What am I talking about? A newly released (multinational) report from the British Medical Journal which concludes medication errors are common in intensive care units and may result in permanent harm or death.

The findings include:

1. The total prevalence of medication errors at the administration stage in intensive care units was found to be 74.5 errors per 100 patient days.

2. Errors were most frequently associated with the wrong time of administration (386) followed by missed medication (259), wrong dose (118), wrong drug (61), and wrong route (37).

3. Workload, stress, and fatigue were reported as the most frequent contributing factors to medication errors (32%). Other contributing factors included changes in drug names; written or oral miscommunication; lack of experience, knowledge, or supervision; violation of protocol; shift change; and equipment failure. More than half of the errors (53%) that resulted in permanent harm or death occurred in situations in which trainees were involved.

Wonder how the ICU units in following Southwest Virginia hospitals perform?

Carilion Roanoke Memorial Hospital, Lewis-Gale Hospital, Memorial Hospital of Martinsville and Henry County, Danville Regional Medical Center, Stonewall Jackson Hospital, Carilion New River Valley Hospital, Montgomery Regional Hospital, Wellmont Bristol Regional Hospital, Carilion Giles Memorial Hospital, Alleghany Regional Hospital, Carilion Franklin Memorial Hospital, and Tazewell Community Hospital

Originally posted at InjuryBoard by Dan Frith

Got MRSA!

Dan Frith — Tue, 24 Mar 2009 10:44:30 GMT

I know it is not a good idea to play on the marketing phrase, "Got Milk," but I just couldn't help myself. My reasoning is that it seems as if MRSA is as common today as cow's milk.

Most people know that MRSA is an infection is caused by Staphylococcus aureus bacteria — often called "staph." MRSA stands for methicillin-resistant Staphylococcus aureus. It's a strain of staph that's resistant to the broad-spectrum antibiotics commonly used to treat it. MRSA can be fatal...and its everywhere!

At least we can be safe from MRSA at our local hospital emergency room, right? Wrong!

A recent study published in the Annals of Emergency Medicine reports that MRSA often colonizes in emergency department personnel, which can put many patients at risk for contracting the life-threatening infection.

Originally posted at InjuryBoard by Dan Frith

Ask Tough Questions Before Choosing a Doctor

Dan Frith — Thu, 05 Mar 2009 11:40:18 GMT

It amazes me to see how many people chose a doctor based solely upon "word of mouth" or convenience. That doctor, whose office is just down the street, may have 5 pending medical malpractice cases against her and the state board of medicine may be getting ready to suspend her medical license...but that co-worker told you how nice she is so you just decide to place your health (and life) in her hands. Happens all the time.

Be an informed consumer of medical care. If you are in Virginia, check out the doctor's credentials with the Virginia Board of Medicine. At least you will know if the doctor graduated from the Southwest Antigua School of Art and Medicine. The site will also disclose whether the physician is board certified in a recognized specialty like cardiology, internal medicine, geriatrics, etc. You see anyone can "focus" their practice in certain areas of medicine but what you need to know is whether they passed a certification test which examines the depth and extent of their knowledge in a certain medical area.

Are you considering surgery? If so, why not ask your surgeon how many times has he performed the recommended procedure? What is his complication rate (not what is the national complication rate)?

My Take: If your doctor doesn't look good after checking him/her out...go somewhere else! If your doctor refuses to answer questions about his/her complication rates...it is probably because the answer will not make him/her look good...go somewhere else!

Originally posted at InjuryBoard by Dan Frith

Even Doctors Make Mistakes

Lauren Ellerman — Wed, 18 Feb 2009 15:40:30 GMT

I will admit, I make mistakes. Our new President admitted the second week in office he made a mistake (remember the issue of Daschle appointment - "I screwed up."). So, do doctors and nurses in Virginia ever make mistakes?

I think most would admit they do. Here are some examples of what we have seen in the last few years:

1. giving patient wrong medication / wrong dose of medication

2. not using a lift to move a patient

3. dropping patient from lift

4. failing to treat patient for UTI

5. allowing patient to become dehyrdated

6. Giving patient a medication despite known allergy

In the news we hear all the time about amputations of the wrong leg, etc. But these mistakes can be very costly. Someone gets a medication they are allergic to, and they could suffer complete organ failure and or die. Someone misses a medication, they could die. When physicians or nurses make mistakes, lets face it, the stakes are higher.

So shouldn't we help them more? Morse nurses at nursing homes? More physicians in the ED so 36 hour shifts are no longer normal?

If we could build a healthcare system where mistakes are NOT made, I would gladly find another job. Until them, when we put dollars before people (and yes, I mean staff too!) then mistakes will continue, and the consequences of physician errors in Virginia will continue to be great.

Contact me at lellerman@frithlawfirm.com if you have questions.

Originally posted at InjuryBoard by Lauren Ellerman