We’ve already aired much dissent from the medical profession about whether or not top-notch hospital care can in fact prevent all instances of patient falls, decubitus pressure ulcers (bedsores), hypoglycemia, deep vein thrombosis, delirium, suicide attempts, c. difficile infection, or iatrogenic pneumothorax. Nonetheless, Medicare has adopted its proposal to deny hospitals reimbursement for the cost of treating such events and complications, with likely consequences both for hospital behavior (refusal to admit some patients at high risk of never events), for private insurer behavior and for the climate of medical malpractice litigation. (Kevin Sack, “Medicare Won’t Pay for Medical Errors”, New York Times, Sept. 30). White Coat Rants, who has blogged extensively on the issue in past months, has some predictions (Oct. 1) of things we can now expect to see more of: more patient transfers between hospitals (since Medicare will not punish the second hospital for the first’s “never event”; underdiagnosis of certain conditions and overdiagnosis of others; and, more remotely but no less alarmingly, pressure on some families to serve as ultimate bearers of risk for supposed never events affecting the frailest and most elderly:

Say hello to the Advance Beneficiary Notices. Medicare won’t cover preventative care, so you are going to have to pay for it out of your pocket. If you’re prone to falls or bedsores, you’ll have to pay for a personal nurse to wait on you hand and foot so you don’t develop these never events. If you don’t pay for a personal nurse 24 hours around the clock to keep a never event from happening, you’re personally responsible for paying the costs of treatment if the “never events” occur. You had the opportunity to prevent the events but you were just too cheap to pay for it. I think that ABNs are less likely to catch on, but eventually I think they will become commonplace.

In bedsores; hospitals; Medicare; never events; suicide

Thanks to a new city ordinance, they get to provide some of the world’s most expensive free hotel service to patients who are well enough to leave but refuse. (WSJ health blog, Aug. 4).

More: Numerous interesting comments from readers including this from Throckmorton:

This is not just in L.A. but happens all around the country as well. Our area saw this increase with the rise in nursing home suits. Nursing homes are now very reluctant to accept patients who are at risk for decubitus ulcers, etc. This combined with the declining revenue has led to the situation where there are no places that will accept transfers from the hospital. As more and more patients fill the wards awaiting placement, the hospital has no choice but to divert those that need urgent care.

You may not be able to get a nursing home patient out of the hospital, but at least you will not have a problem finding them an attorney.

In hospitals; Los Angeles; never events; nursing homes

Around the country, courts have thrown out suit after suit by private hospitals, health insurers and benefit funds seeking to tag tobacco companies with the cost of smokers’ illnesses. A suit on behalf of various Missouri hospitals still hasn’t flickered out and is being litigated expensively, with Richard Daynard’s Northeastern University-based Tobacco Product Liability Project doing its customary cheerleading. (Heather Ratcliffe, “Hospitals’ suit against tobacco industry is large in every dimension”, St. Louis Post-Dispatch, Sept. 15).

They’ll have to assist unmarried women in giving birth even if doing so violates their religious scruples, according to a new California Supreme Court decision involving a lesbian applicant. As Bookworm Room points out (Aug. 19), and as we noted in the earlier Bay Area conscience controversy over gender-switch breast surgery, it makes a practical difference (if not one of libertarian principle) that there are plenty of other fertility clinics around San Diego that would be happy to step into the gap. The doctors in the case at hand might still escape liability because a ban on marital-status discrimination as such was not yet part of state law at the time they rejected Guadalupe Benitez; Benitez will win if she shows that the true motivating factor was her lesbianism. (Egelko, SF Chronicle, Recorder). The ruling also allows doctors to excuse themselves on the basis of religious scruples if there is a second doctor within the same practice — but not, apparently, a doctor across town at a different practice — willing to perform the work in question. And of course the legislature in Sacramento could readily help bring peace to the culture war by inserting into the law a generously drafted conscience clause — if it wanted to. More: Miller, IGF; opinion, PDF.

Blood should never clot, microorganisms should never happen, and one doc-blogger is on a tear (Aug. 14, more, Aug. 17) over the sometimes absurd hype being given to the concept:

“Never events” are and always have been “all about the Benjamins.” Look at this news release. The “background” section states that the “never events” were “required” pursuant to Section 5001(c) of the Deficit Reduction Act. Medicare wants to stop paying for things not because they “should never happen” but because it’s trying to save money. The whole “never event” moniker is just a spin they put on the cuts to make it look like someone else’s fault. Do “never events” never occur at government run hospitals? We’ll never know because CMS doesn’t even include government run hospitals on the “hospital compare” list.

In hospitals; medical; Medicare; never events

So now everyone will be happy dept.: The only bone-marrow donor program in Idaho’s capital of Boise is closing down. It seems the National Marrow Donor Program has enacted regulations requiring local programs either to recruit at least 1,000 minority donors a year or to hire a full-time recruiter by way of showing a good-faith effort toward that goal. But there aren’t enough minorities in the Treasure Valley to hit the numerical target and the program at St. Luke’s Mountain States Tumor Institute isn’t big enough to support the full-time hire, so now the nearest local option for potential donors will be an institution in Spokane, Washington. (Idaho Statesman and more, Idaho Business Review, Seattle Times) (via Taranto).

More: The national program, however, denies that its regulations require the hiring of a recruiter and says its local minority recruitment goal is 575, not 1,000: Taranto, Aug. 11.

We hear frequently that the medical profession doesn’t do enough to police its own. Cases like that of Lawrence Poliner might explain why. In 1997, in response to complaints by nurses at Presbyterian Hospital of Dallas, and the allegation by a doctor that Poliner had performed an angioplasty on the wrong artery, the hospital asked Poliner to stop work while they investigated. These limited privileges lasted 29 days, followed by a unanimous decision to suspend, a five-month suspension from echocardiography privileges, and then reinstated Poliner five months later subject to conditions that he consult with other cardiologists.

For this, Poliner sued for defamation and under federal antitrust law, alleging that other cardiologists were trying to dominate the market and prevent his competition. The five-month suspension had federal immunity under the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. (just one of many federal tort reforms that promote safety), but the trial court held that the 29-day limited-privileges created a cause of action that should go to a jury. Poliner lost $10,000 in income over that time “but was awarded more than $90 million in defamation damages, nearly all for mental anguish and injury to career. The jury also awarded $110 million in punitive damages”–despite the fact that Poliner would have to prove damages were caused by the allegedly unprivileged temporary limitation rather than by the five-month suspension. We covered the initial $366 million verdict in 2004, the outraged medical blogosphere reaction, and the remittitur to a still ludicrous $22.5 million in 2006.

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Yesterday the New York Times reported on the longstanding problem of patient assaults on medical personnel, particularly in psychiatric care: citing Bureau of Labor Statistics numbers, it said “half of all nonfatal injuries resulting from workplace assaults occur in health care and social service settings”. (David Tuller, “Nurses Step Up Efforts to Protect Against Attacks”, Jul. 8). So it’s worth noting what happened to Northfield City Hospital in Northfield, Minnesota when a man showed up at the emergency room at 2 a.m., ranting and yelling in an increasingly agitated manner. Hospital staff finally called the police, who arrived on the scene at 7 a.m., assessed the situation and tasered the man. (He was uninjured otherwise and was subdued without losing consciousness.) “Now federal and state health officials have cited the Northfield hospital for violating the patient’s rights,” a development that has outraged hospital officials in the state. The state health department says it believes that staff at the facility, a small one with fewer than 100 beds, “needs more training in deescalation techniques”. The hospital has hired two security guards and is negotiating other steps with the state (Maura Lerner, “Hospital calls cops and feels the sting”, Minneapolis Star-Tribune, Jun. 15). A commenter at KevinMD asserts:

A few years ago, Medicare tried to prohibit physicians from discharging a patient for any reason, up to and including physical attacks on physicians and staff.

Just as the doctors were required to hire translators at the doctor’s expense, they would be required to hire security at the doctor’s expense.

They backed off then, when they physicians called them on it. Not surprised they would try again.

In hospitals; Minnesota; sued if you do

The recent flurry of press attention to medical apology prompted this anecdotal recollection from Michael O’Hare at Same Facts (May 18) of his work 25 years ago on a Massachusetts state commission to address the malpractice issue:

The story was that soon after [in-house hospital lawyer] Fred arrived, he was assigned to get on top of malpractice claims, and he sat down with six months’ worth of files. All of them, he discovered, began with a collection action for non-payment of a bill. So he ordered the accounting office to send him every overdue account before any efforts at collection, and invited the deadbeat patient into his office for a conversation. Invariably, the patient was withholding payment because he thought he had been mistreated. Often, the patient was right. The next meeting was with the practitioner accused of having screwed up, and the outcome was sometimes an apology and a promise to fix the problem for free (for example, another operation at no charge to retrieve the forgotten sponge), sometimes an expression of regret for a bad outcome with an explanation that the hospital hadn’t actually erred: not everything in medicine works every time. Of course this required that Sanders and Fred drive out fear, so the staffers could be honest and sympathetic.

The result of this was a really spectacular reduction in malpractice costs, even counting in the “warranty service” repairs; I don’t remember the numbers but it was on the order of more than half, partly in fees to defense lawyers, partly in claim payments. Frequently the bill even got paid. The reduction in lawsuits occurred both when the hospital was wrong and said so, and when it was right and said so; it turned out a lot of the injured patients just wanted to tell a live person what had happened to them and get an apology. Of course the public relations benefits are enormous, if hard to measure. And quality always goes up when your own people aren’t afraid to talk to each other about instructive mistakes.

It’s notable that Fred’s pay didn’t depend on how many cases he litigated….

Full post here. More thoughts on medical apology: Melissa Clouthier, May 19.

Tort reform, of course, resulting in substantially lower medical malpractice premiums and expenses, and an influx of 7000 doctors, including into many underserved regions. One indirect benefit: with less money spent on medical malpractice lawyers, self-insuring hospitals can spend more on doctors and on medical practice:

Take Christus Health, a nonprofit Catholic health system across the state. Thanks to tort reform, over the past four years Christus saved $100 million that it otherwise would have spent fending off bogus lawsuits or paying higher insurance premiums. Every dollar saved was reinvested in helping poor patients.

Also of relevance: the amusing results when Texas added evidentiary standards of medical harm to their asbestos and silicosis docket. Suddenly, over 99% of the cases went away because so few suing plaintiffs had a doctor willing to certify harm. (Joseph Nixon, WSJ, May 17). Related: POL Nov. 6, 2006 and POL Nov. 7, 2006, where I debate Texas law professor Charles Silver on these issues. Suffice it to say that the last year and a half has provided more support for my position than his.

Update: more data at Texas Medical Association website.

Why they might be giving you a parting x-ray whether or not anyone thinks you strictly need one (Dr. Val, Apr. 2).

We’ve extensively covered the scandal over charges that attorneys William Gallion, Shirley Allen Cunningham Jr. and Melbourne Mills Jr. siphoned off $65 million or so in settlement money due claimants in the diet drug litigation, using the proceeds to buy, among other things, the Preakness-winning race horse Curlin. Ted notes the latest developments over at Point of Law, as does Carter Wood. (Wolfson/Courier-Journal, WSJ law blog).

More from WSJ law blog: Mills’ lawyer tells jury his client “was hospitalized for an ‘alcoholic seizure’ a month after the case was settled, didn’t take part in any court hearings and was too drunk at the time to be responsible,” while prosecutor says “that Mills ’sat back and laughed’ when the other two described a plan to overcharge the clients.”

• Canada free speech: Islamic group files complaint against Halifax newspaper over cartoon of burka-wearing terror fan; two more libel suits aimed at online conservative voices; growing furor over complaint against Steyn/Macleans [National Post]
• More than 5,000 students committed crimes last year in Philadelphia schools, but none were expelled — consent decrees tying system’s hands are one reason [Inquirer]
• U.K.: Man threatened with legal action for flying pirate flag as part of daughter’s birthday party [Guardian]
• Bankruptcy judge doesn’t plan to accept at face value Countrywide’s claim that it generated false escrow documents by mistake in foreclosure [WSJ, WSJ law blog]
• Amid bipartisan calls to step down, Ohio AG Marc Dann [Apr. 19, May 6] hires an opposition researcher [Adler @ Volokh] on top of Washington lobbyist [Legal NewsLine], after being rebuked by judge for political suit [Dispatch]. And where’s that ethics form on the Chesley flight? [Dayton Daily News]
• Missouri med-mal claims fall sharply after legislated damages curb [Springfield News-Leader]
• More on Dartmouth prof Priya Venkatesan, the one who wants to sue her students — as suspected, she’s a devotee of deconstructionist Science Studies [Allen/MtC; earlier]
• Covert plan to sabotage Chinese economy? [Wilson Center event]
• What, never? Well, hardly ever: Docs continue to assail notion that various complications such as patient delirium, clostridium difficile infection, iatrogenic pneumothorax, etc. — not to mention falls — are “never events” [KevinMD various posts; earlier]
• Mich. high court agrees anti-gay-marriage amendment bars municipal health benefits for domestic partners, just what key proponents had claimed it wouldn’t do [Rauch @ IGF, Carpenter @ Volokh, earlier]
• Private service rates the safety of charter air providers — but can it afford the cost of being sued after giving a bad rating? [Three years ago on Overlawyered]

41-year-old South Texas personal injury solo practitioner Hermes Villarreal was admitted to a McAllen hospital on April 16, 2005, reporting that his heart was racing. The hospital put him on a 24-hour EKG. Villarreal reported being under stress, but refused a psychiatric consultation or the recommended medication. At 5 a.m. on April 19, 2005, the day of his scheduled discharge, “Villarreal summoned the nurse on duty and requested a razor, saying that he wanted to take a shower and shave his chest, because the EKG monitor leads attached to his chest were bothering him.” The nurse complied with his wishes, and Villarreal locked himself in the bathroom and committed suicide with the razor.

This was, said Villareal’s family, the hospital’s fault; since it’s South Texas, a Hildalgo County jury, after a three-week trial, awarded $9 million in March (which looks to be reduced at least to $1.64 million under Texas law capping damages). Ironically, the opening line of the Texas Lawyer story says “It was a suicide no one saw coming,” but doesn’t question the resulting jury verdict.

Somehow, the trial lawyer, Raymond L. Thomas, a close friend of Villarreal’s, interjected himself into the closing argument, telling an emotional story of a Rolex Villarreal had given him as a gift that left the jury in tears; the press coverage doesn’t acknowledge the blatant violation of ethical rules (see also Texas Rule 3.04(c)(3)), much less indicate whether he got away with it because of the failure of the defense to object or a judge’s failure to oversee her courtroom. (Jenny B. Davis, “Attorney, Interrupted: Seeking Meaning, Recovery for a Legal Life Lost,” May 5 via ABA Journal).

I’m happy to see that my initial post — which doesn’t really include any details of yet — has already begun to spark debate in the comments. I have thoughts on the views expressed, but I’ll begin with some background. This information might be old hat to those familiar with the asbestos mess, but it’s essential for those with little knowledge. This summary largely follows the account from the introduction to our Trial Lawyers, Inc.: Asbestos report.

Asbestos manufacturing in the United States was ubiquitous. At one point, asbestos-related industries employed as many as 2.5 million Americans. Asbestos commercial mining began in the U.S. in 1874, and after the Johns-Manville corporation was founded in 1890 with a patent for a process that blended short asbestos fibers with magnesia, asbestos manufacturing exploded: “asbestos consumption went from only 956 metric tons in 1890 to a peak of 803,000 tons in 1973.”

While asbestos ultimately proved deadly, it was originally thought to be a “magic mineral,” as it was dubbed at the 1939 World’s Fair. The word asbestos itself is derived from the Greek for “indestructible,” and the product is an incomparable flame retardant: it insulated generations of schoolchildren from fire and indeed fireproofed our World War II Pacific fleet.

But asbestos has also long been known to be dangerous when inhaled–as far back, perhaps, as the days of Pliny the Elder. In the early 20th century, asbestos was deemed as dangerous as lead and mercury (two products that have themselves spawned much litigation). In 1918, the U.S. Department of Labor declared that there was an “urgent need for more qualified extensive investigation” into the harms of asbestos, and in 1938, the U.S. Public Health Service issued a “good-practice” guideline for Threshold Limit Values of asbestos exposure.

Thus, asbestos was known publicly to be dangerous when virtually everyone suffering from asbestos-related illness was exposed. The extent of the danger, however, was not known definitively until 1964, when a seminal study by Mount Sinai Hospital’s Irving Selikoff established a definitive link between asbestos exposure and lung cancers and asbestosis.

Subsequently, evidence indicated that asbestos manufacturing companies knew more about asbestos’ dangers than they originally let on, and indeed in some cases hid that information from the public. Still, as my colleague Peter Huber pointed out in his review of Paul Brodeur’s Outrageous Misconduct, a much-cited book that harshly criticizes the asbestos industry, the asbestos companies’ early knowledge about asbestosis–asbestos-related lung injury that is rarely fatal, and was generally known–should not be confused with knowledge of the deadly lung cancer mesothelioma, which was exposed by the Selikoff study: “In his account of who knew what when–the core of his cover-up theory–Brodeur systematically obscures the difference between asbestos-related cancer and asbestosis, usually a much less serious disease, and understood and discussed in the Manville boardrooms much earlier.”

In any event, the original asbestos manufacturers like Johns-Manville have long been bankrupt due to litigation exposure. (Johns-Manville, ranked 181 on the Fortune 500 with over $2.2 billion in sales, declared bankrupcty in 1982 due to its looming caseload of 16,500 cases, and projections of up to 200,000 in the future.) The story of how that litigation evolved will be the subject of my next post.

Lacking specialized knowledge in this area I’m not well situated to evaluate the contents of this letter from reader J.W., but perspectives and advice from medically knowledgeable readers would be more than welcome:

One of our friends apparently has focal segmental glomerulosclerosis, which has a substantial risk for progression to end-stage renal disease.

Apparently, getting a nurse to come and administer albumin, which is a blood product, is a real problem. About three years ago, liability laws stopped the companies that produce albumin from allowing it to be used at home. There is a real possibility she will have to go to “Day Hospital” every day for five hours and perhaps have to be readmitted every weekend.

Given the likelihood that she will die from her disease, I’m sure she is comforted by the fact that she’ll spend so much time in the hospital for legal reasons.

But I feel safer, so that’s nice.

In hospitals; medical

…or the universal adoption of round-the-clock patient guards or restraint devices, it’s hard to go along with the notion that hospital falls should be so-called “never events”. (Happy Hospitalist, Jan. 15, Feb. 20). Nor is the concept much more useful when it comes to patient suicide attempts or hypoglycemia, among other misadventures (White Coat Rants, Feb. 5)(via KevinMD). Related: letters section, 2004 (pressure wounds/bedsores).

…and then wins a settlement against the hospital for letting him do so [ER Stories, Feb. 2]. (For sharp-eyed readers: this post replaces one linking to a story on the same blog that — my lapse — Ted had already covered).