…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).
Posts Tagged ‘medical’
“What is wrong with tort law”
Colloquy of Coyote and commenters, based on the John Ritter malpractice jury verdict.
“Jury clears doctors of negligence in Ritter’s death”
“A Glendale jury on Friday cleared an emergency room doctor of negligence and liability in John Ritter’s death, holding he did everything he could to save the comic actor. … Jurors, who voted 9 to 3 against liability for Lee and Lotysch, said they were torn between sympathy for Ritter’s wife and children and their conviction that the doctors were blameless.” (John Spano, Los Angeles Times, Mar. 15). Earlier here and here (noting that Ritter family had already obtained $14 million in settlements from other defendants).
“You can’t scan everybody. You can’t cath everybody.”
Which means, says Kevin Pho, that you’re not always going to succeed in catching the extremely rare aortic dissection: “No test is 100% accurate, and there will always be missed cases no matter how good the care was.” (Feb. 18; John Maxfield, “Besieged by scourge of medical ‘malpractice’”, Naples (Fla.) Daily News, Feb. 16 (Mahoning County, Ohio case)).
The health costs of defensive medicine
There is no shortage of examples of medical malpractice litigation where plaintiffs blame doctors for failing to perform a CT scan. E.g., Oct. 2006 and Feb. 2004. This plainly raises costs far more than the direct costs of medical malpractice insurance that you see when the trial bar claims that malpractice reflects only 1-2% of health-care expenses. Tom Baker, among others, argues that defensive medicine has to be viewed as good with bad, because of improved health-care outcomes from the additional care. But not all defensive medicine is positive; it can be irrelevant, or, worse, adversely affects health results.
Malpractice litigation does change doctors’ incentives, but only with respect to short-term results. Because doctors won’t be sued for long-term consequences of defensive medicine, there is a substantial risk of overexposure to radiation in the course of defensive CT scans—a problem identified in a study in the latest issue of Annals of Emergency Medicine (Winslow, et al., Quantitative Assessment of Diagnostic Radiation Doses in Adult Blunt Trauma Patients; Reuters summary), finding that standard trauma treatment—1005 chest X-ray equivalents—results in an additional 322 cases of cancer per 100,000 treated because of use of CT scans. Earlier: Feb. 2004.
(Update: Walter writes in to note that “the problem of needless or avoidable CT and MRI scans has been getting a fair bit of discussion at the medical blogs lately, e.g. White Coat Rants, GruntDoc, and KevinMD.”)
$25 million for yanking hospital privileges
On Feb. 7 a jury found the Charleston Area Medical Center in West Virginia had wrongly revoked the privileges of vascular surgeon R. E. Hamrick, Jr. over a financial dispute. It awarded Hamrick $25 million, including $20 million in punitive damages; the dispute arose over Hamrick’s desire to set up a self-insurance fund against professional liability as opposed to purchasing outside insurance. CAMC has retreated from initial talk of pay freezes for staff, but it is unclear where it will come up with the money — about 4 percent of its annual budget — in ways that have no impact on patients: “‘Any time you have to spend $15 million, how can it not affect the way we care for people?’ asked Dr. Tom Bowden, who also serves on CAMC’s Board of Trustees.” However, expert witness Jonathan Cunitz of Westport, Ct., who testified for the plaintiffs on punitive damages, told the Daily Mail that patients and employees “shouldn’t be concerned for a second” about cutbacks because the nonprofit community hospital could just pull the money from the magic rainbow wishing well could cover the punitive damage award “just out of the money generated by Hamrick’s surgeries,” in the newspaper’s phrasing. It sounds almost as if hospital revenues from surgery constitute pure gravy and do not involve any correlative expenditures. The hospital’s CEO notes that the damage award “was higher than the $15 million CAMC spent to purchase the former Putnam General Hospital in 2006.” (Justin D. Anderson, “Doctor responds to colleague’s lawsuit win against CAMC”, Charleston Daily Mail, Feb. 12; Eric Eyre, Charleston Gazette, Feb. 13, Feb. 20, Feb. 21; Chris Dickerson, West Virginia Record, Feb. 7).
Med-mal in the Upper Midwest
The lowest medical malpractice insurance rates are found in Minnesota, Wisconsin, Iowa and the Dakotas. Why is that? Probably not because doctors there have managed to achieve anything resembling error-free practice; and probably not because the five states, taken as a whole, are distinguished by any unusually pro-defendant set of tort laws. MedInnovationBlog takes up the question here and here, and speaks with a mutual insurer executive in search of explanations, which may include (among others) a “culture of collegiality among doctors and society as a whole”, a hard line against doubtful claims, and a paucity of giant verdicts of the John Edwards variety. (cross-posted from Point of Law).
Privacy law and criminal investigations, cont’d
Following up on our discussion of HIPAA and the New York therapist murder, police have reported a break in the case, arresting a mentally disturbed man who has told investigators of having been committed to a mental institution 17 years ago by Dr. Kent Shimbach, the doctor who was injured in the rampage (and who shared offices with the therapist who was killed, Kathryn Faughey). Dr. Shinbach apparently has told investigators that he did not recognize the assailant and has no memory of any contact with him in the past.
Helen Smith (“Dr. Helen”) at Pajamas Media recalls the case of Vallejo, California psychologist Ira Polonsky, Ph.D., “who was shot and killed by what family members believe was a former patient. Unfortunately his death is still a mystery. Why? Blame the confidentiality laws in California:”
…police have been stymied in pursuing that line of investigation because of confidentiality laws protecting Polonsky’s patient records and appointment books.
Vallejo police detectives are in touch with a court-appointed attorney – a “special master” – who is working with the county court to see if there can be at least a limited review of protected records, but neither police nor court officials will comment on progress in that area.
And Hans Bader takes note of a recent Volokh thread discussing cases in which it seems Massachusetts privacy law was construed to prohibit the taping of ransom discussions with kidnappers (Commonwealth v. Jackson, 1976, mentioned in passing here) and a Florida court considered (but rejected!) the argument that a murderer’s privacy was infringed by his victim’s having tape recorded the murder.
When Clinton and Obama agreed
Before they officially became presidential candidates, the Illinois and New York senators co-authored an article in the May 25, 2006 issue of the New England Journal of Medicine, entitled “Making Patient Safety the Centerpiece of Medical Liability Reform.” (See: http://content.nejm.org/cgi/content/full/354/21/2205)
They sympathized with physicians over escalating insurance costs and condemned the current tort system for creating an “intimidating liability environment.” Still, Clinton and Obama said, it’s more important to focus on how to improve patient safety than “areas of intense disagreement,” such as caps on financial awards to patients.
They introduced legislation, which died in committee in 2006, to provide money and assistance to physicians, hospitals, insurers, and health care systems to start programs for disclosure of medical errors and compensation to patients. The bill would have created an office of patient safety and health care quality to establish a database to track incidents of malpractice and fund research into guidelines to prevent future injuries.
“Physicians would be given certain protections from liability … in order to promote a safe environment for disclosure. … This legislation would provide doctors and patients with an opportunity to find solutions outside the courtroom. In return, [hospitals, insurers, and others] would be required to use savings achieved by reducing legal defense costs to reduce liability insurance premiums and to foster patient-safety initiatives.”
(Mark Crane, MedPageToday, Jan. 7). More: see Ted’s December post at PoL.
High cost of health privacy laws, cont’d
More HIPAA madness? On Wednesday, in a crime that cast a chill through the mental health community, a Manhattan therapist was brutally slaughtered in her office by a man whose actions seemed consistent with those of a current or former patient with a grudge. The assailant escaped on foot, and although his image had been captured on surveillance tape, police were nowhere near beginning to know where to start looking for him: “Because of privacy laws, police hadn’t been able to access patient records as of late yesterday, sources said.” (New York Post, Feb. 14)(via Bader). On medical privacy laws and the Virginia Tech rampage of Seung Hui Cho, see Jun. 16, 2007.
More: Commenter Supremacy Claus says not to blame HIPAA, which has an exemption for police reports.
Friday morning sequel: This morning’s New York Post sticks with the original story and fleshes out the HIPAA role somewhat:
The hunt for the savage beast who butchered an Upper East Side therapist has hit a roadblock – because detectives can’t access her patients’ medical records under federal privacy laws, The Post has learned.
Police believe the meat-cleaver-wielding psycho who killed Kathryn Faughey on Tuesday night inside her office on East 79th Street could be the doctor’s patient – and need access to her records to identify him.
But police sources said because of the Health Insurance Portability and Accountability Act, signed by President Bill Clinton in 1996, investigators are having a hard time gaining access to those records.
“A case like this gets complicated because of medical privacy protections,” a source close to the investigation told The Post yesterday.
The federal law states that doctors, hospitals and health-insurance companies must protect the privacy of patients – even in a murder investigation – and that only through the use of subpoenas can authorities hope to obtain such information.
Police sources said investigators have applied for a subpoena, but have yet to receive it. Even if the subpoena is issued, patients can sue to keep their records private. …
[D]etectives have tried to get around the law by tracking down patients through sign-in sheets at the building’s front desk and through surveillance cameras in the lobby, sources said.
(Murray Weiss, Jamie Schram and Clemente Lisi, “Vexed by ‘Slay File’ Madness”, New York Post, Feb. 15). My Times (U.K.) article on the problems posed by health privacy laws is here.