Roanoke Personal Injury Lawyer - Medical Malpractice - 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

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

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

Malignant Hyperthermia in Florida

Dan Frith — Mon, 31 Mar 2008 08:34:52 GMT

We wrote a short blog a couple of days ago on the tragic death of Stephanie Kuleba, an 18 year old who died from malignant hyperthermia, a known complication of anesthesia, after corrective reconstructive breast surgery in Boca Raton, Florida.

The sad story of the unnecessary death of an 18 year old from complications at an outpatient surgery clinic motivated me to write my blog. The purpose of my blog was to note the increased risks presented to patients who submit to any surgical procedure in an outpatient clinic. In my opinion, and based upon my experience in representing victims of medical negligence, few outpatient clinics have the medical equipment and medical experts at hand to deal with rare but life-threatening complications.

I also wrote that most outpatient clinics use nurse anesthetists and not anesthesiologists (medical doctors) to provide anesthesia care. I received several emails from nurse anesthetists taking issue with my position. I respect and invite such comments. However, I did not intend to paint all nurse anesthetists in a bad light...my only point is that a patient is better served by a hospital than an outpatient clinic when disaster strikes! For me, I want an anesthesiologist responding to my medical emergencies and not a nurse anesthetists.

I acknowledge that Ms. Kuleba was attended to by an anesthesiologist and NOT a nurse anesthetist. As we learn more about this sad tragedy it will be interesting to learn if the attending anesthesiologist followed appropriate protocols for treating malignant hyperthermia.

Originally posted at InjuryBoard by Dan Frith

Fentanyl Patch May Cause Fatal Respiratory Depression and Death

Dan Frith — Thu, 10 Jan 2008 06:23:51 GMT

A public health advisory has been issued to educate healthcare professionals and patients regarding the appropriate use of fentanyl transdermal patches (Duragesic, Alza Corp and generics), the U.S. Food and Drug Administration (FDA) advised healthcare professionals this week. Despite a previous public health advisory and safety labeling changes issued in July 2005, the FDA has continued to receive reports of death and life-threatening adverse events related to fentanyl overdose.

The fentanyl skin patch is only indicated for management of persistent, moderate to severe chronic pain in opioid-tolerant patients aged 2 years and older who require a total opioid dose at least equivalent to a 25 Âµg/hour patch. Because of the risk for potentially fatal respiratory depression, the patch is not indicated for the management of postoperative, mild, or intermittent pain.

Patients should use the patch exactly as prescribed. Heating pads, electric blankets, saunas, heated waterbeds, hot baths, and sunbathing can increase fentanyl exposure and should be avoided.

Originally posted at InjuryBoard by Dan Frith

Virginia Hospital Can't Avoid Responsibility for Emergency Room Problems

Dan Frith — Tue, 21 Oct 2008 09:57:09 GMT

Danville (VA) Regional Medical Center has been sued for medical negligence. The hospital is being sued in federal court for its Emergency Room staff"s failure to provide competent medical care. The case, Everett W. Scruggs v. Danville Regional Medical Center, involves among other issues, an allegation that the hospital Emergency Room did not provide competent medical care as required by federal law called the Emergency Medical Treatment and Active Labor Act (EMTALA).

The EMTALA statute imposes two primary obligations on hospitals. First, it requires that when an individual seeks medical treatment in a hospital’s emergency room, the hospital must provide for an appropriate medical screening examination . . . to determine whether or not an emergency medical condition exists. Second, if the screening examination reveals the presence of an emergency medical condition, the hospital must stabilize the medical condition before transferring or discharging the patient.

The lawsuit alleges a patient arrived at DRMC Emergency Department at 1:50 a.m. on September 3, 2006 complaining of prolonged dry heaves over the previous two days. Upon arrival, the patient was triaged by a registered nurse and prioritized as a "non-urgent" patient based upon the nurse's triage screening examination. The nurse’s triage report did not include Scrugg's diabetic ketoacidosis condition or his history of diabetes.

The Emergency Room doctor did not examine the patient for over 11 hours after he arrived in the ER. That physician ordered various tests but, unfortunately, the patient was found unresponsive and in cardiac arrest approximately 20 minutes later.

Almost unbelievably, the hospital argued the emergency room nurse's brief assessment of the patient met the requirements of a "medical screening examination" required by EMTALA. However, sound reason prevailed and the judge did not agree.

Originally posted at InjuryBoard by Dan Frith

What Happens When Damages Exceed the Cap in Medical Malpractice Cases

Dan Frith — Wed, 28 Jan 2009 09:31:50 GMT

I practice law in Virginia...a beautiful state with much to offer...unless you are the victim of a serious medical error which renders you a quadriplegic...or comatose for life...or incapable of earning an income for your family.

In Virginia all damages against a health care provider (doctor, hospital, nursing home, etc.) are "capped" or limited to $2 million for claims arising after July of 2008. A lot of money indeed, but lets look closely at Virginia's medmal cap. What if a patient is the victim of medical negligence and is so injured as a result that she will require medical care costing $150,000 per year for the rest of her 30 year life expectancy? My math indicates that, despite not even counting damages for pain and suffering, that patient will incur $4.5 million in just monetary damages. Does anyone pay the rest and, if so, who?

I recently had the opportunity to speak with some of the professional and business pillars of my city (Roanoke, Virginia). This topic came up and it appeared the answer to the above question was a surprise to some. The answer: The portion of the patient's monetary damages above the cap are paid by YOU....the taxpayer...in the form of Medicaid or Medicare benefits.

Is that fair? I do not think so...someone tell me I'm wrong and why!

Originally posted at InjuryBoard by Dan Frith

Jury awards verdict against doctor in hospital for placing a screwdriver in the patient's back

Staff Writer — Thu, 30 Mar 2006 14:19:42 GMT

A Hawaii jury has awarded damages of nearly $5.6 million in a lawsuit against a surgeon who placed a piece of a screwdriver in the patient's back.

Two hours into the surgery the doctor discovered that the titanium rods to be placed in the patient's back were missing and he improvised a new rod by cutting the shaft of a stainless steel medical screwdriver. He did this despite the fact that a representative of the medical supply company said another set of titanium rods could be at the hospital in 90 minutes. A week later the piece of screwdriver broke requiring another operation. Further surgery was required and the patient later died from complications.

The defendant physician, Robert Ricketson, did not carry malpractice insurance and served as his own attorney. Dr. Ricketson is expected not to practice further in Hawaii, because under Hawaiilaw his earnings would go towards paying his share of the damages awarded for the death of his patient.

Originally posted at InjuryBoard by Staff Writer

Keeping a Closer Watch on Patients with Pacemakers and Defibrillators

Dan Frith — Sun, 18 May 2008 13:30:37 GMT

You probably know someone who has a pacemaker or defibrillator implanted in their chest. An estimated 180,000 pacemaker devices and 91,000 implantable defibrillators were implanted in the U.S. in 2005. A pacemaker is a small device that sends electrical impulses to the heart muscle to maintain a suitable heart rate and rhythm. A defibrillator is a small device that doctors use to watch for and fix life-threatening abnormal heart rhythms. If it detects a life-threatening rapid heart rhythm, it sends an electric shock to your heart to restore a normal rhythm.

Great devices, right? Not always. In my opinion, insufficient monitoring of these implanted devices has resulted in problems with the lead wires which connect to the heart. One of our clients reported she was electrically "shocked" 30 times by her faulty Medtronic defibrillator. Also, the medical literature has reported horror stories of dying cancer patients whose defibrillators continue to shock their failing hearts back to life.

Help may be on the way. The Heart Rhythm Society has recently published guidelines for the monitoring of these cardiac devices. The guidelines will endorse new wireless technology that lets doctors check the devices remotely while the patient remains at home. The full list of guidelines will be published by the American College of Cardiology.

Originally posted at InjuryBoard by Dan Frith