When doctors are named in groundless malpractice lawsuits, they often want to fight back by filing countersuits or moving for sanctions. But, as American Medical News is the latest to learn, our legal system is elaborately structured to deny them any such recourse for the injury done them by the lawsuit. (Tanya Albert, “Fighting frivolous lawsuits: Doctors engage in an uphill battle”, American Medical News, Oct. 27). For a few of the rare instances in which countersuits or sanctions motions have been successful, see Sept. 6-8, 2002; Jun. 14-15, 2000; Sept. 14, 1999. More (rare successful countersuit by W.V. surgeon Saad Mossallati): Tanya Albert, “West Virginia physician caught in legal net hooks lawyer, lands settlement”, American Medical News (AMA), Dec. 2, 2002; Dorothy L. Pennachio, “The target of a ‘shotgun’ suit fires back”, Medical Economics, Apr. 11, 2003. More: see Point of Law, Jan. 10, 2005 (Pennsylvania Medical Society has begun assisting doctors in countersuits).
Posts Tagged ‘medical’
Medical privacy madness
HIPAA, the stringent new federal medical-privacy law, took effect in April, and soon had what may be some rather drastic unintended consequences in the town of Craig, Colo.: “To protect the privacy of those needing medical help, 911 dispatchers stopped mentioning residents’ names in radio calls to emergency response teams. That made it more difficult for the teams to find addresses,” which critics charge may have contributed to the death of a local heart attack victim. Moreover, thousands of doctors “have stopped sending out appointment-reminder postcards, figuring the cards could be read by someone other than the patient. Some doctors have stopped leaving messages on patients’ telephone answering machines, fearing that other family members might listen to them. Wives have been told they no longer could verify dental appointments for their husbands” — even though a federal official says such postcards, phone messages and spousal verifications do not violate the law. (Laura Parker, “Medical-privacy law creates wide confusion”, USA Today, Oct. 16).
Medical errors often arise from miscommunication, and the law has also made medical providers more reluctant to share information with each other about patients. Medpundit Sydney Smith (Oct. 20) comments: “Part of the problem is that the penalties are so stiff (they include time in prison) that no one wants to risk any breach, no matter how nonsensical and impractical complying with it may seem. I’ve heard colleagues say that they’ve had requests for old medical records from other practices or hospitals rejected because their request form was deemed ‘non-HIPAA compliant,’ and I’ve heard nurses ask one another if they’re allowed to tell another nurse in another department — say dialysis — details about the patient they’re sending over for care. Most see the law as punitive — one that will be used by the disgruntled and unhappy as one more weapon in their attack arsenal (along with laws on disability, sexual harassment, equal opportunity, etc.). That makes people — especially those who manage large organizations — very nervous. And that’s another reason they abandon common sense so readily.”
Following the standard of care?
“A San Francisco jury has awarded a 9-year-old boy $70.9 million in compensatory damages after finding a hospital and a medical clinic negligent for failing to diagnose his metabolic disease.” The mother of Michael Cook sued Stanford Health Services and the Palo Alto Medical Clinic, saying “that the hospital took Cook’s blood specimen when he was 4 hours old, too early to get accurate results when performing a required screening test for metabolic disorders.” Not until years later was Cook diagnosed with hereditary phenylketonuria, by which time he had suffered brain damage. “The lawyer defending Stanford Health Services, David Sheuerman, of Sheuerman, Martini & Tabari in San Jose, argued that the state didn’t come out with a guideline saying the tests should be done after a baby’s first 12 hours until 1995, the year after Cook was born. Sheuerman said 88,000 infants in California between zero and 12 hours of age were tested in 1994. ‘Stanford did their screening program the same way every other hospital in the (San Francisco) Bay Area did it.'” (Pam Smith, “San Francisco Jury Awards Boy $70.9M”, The Recorder, Sept. 30; Barbara Feder Ostrow, “$70 million awarded for boy’s brain damage”, San Jose Mercury-News, Sept. 30; Bob Egelko, “Brain-damaged boy wins huge verdict”, San Francisco Chronicle, Sept. 30).
Insurers roll back Texas med-mal rates
Confirming the hopes of supporters of Texas’s Proposition 12 (see Sept. 4, Sept. 6, Sept. 14), various companies that write medical malpractice insurance have moved quickly to cut the rates they charge doctors. “Texas Medical Liability Trust, which insures more than 3,000 Houston-area doctors, will cut rates by 12 percent, effective Jan. 1. … Dr. Charles W. Bailey Jr., president of the Texas Medical Association, says he expected insurers to reduce rates after the proposition passed, but didn’t think it would happen so quickly. Outside insurers could be returning to write policies in Texas again in the near future, Bailey predicts.” (Allison Wollam, “Medical insurance rates roll back”, Houston Business Journal, Oct. 6). During the Prop 12 campaign, the editorialists of the Fort Worth Star-Telegram, who opposed the measure, deemed “debatable” the proposition that the damage limitations at issue “will bring down, or at least stabilize, insurance rates” (“Keeping courts open”, Aug. 24).
The doctor who went bare
Last month Dr. Mark Macumber, a family practitioner in suburban Chicago, made headlines when he announced that he planned to “go bare” and practice without professional liability insurance. (Sarah A. Klein, “Rising rates force docs out on limb”, Crain’s Chicago Business, Sept. 15). Dr. Macumber has set up his own website (“SaveMyDoc.com“) and his case has stimulated an interesting discussion among medical webloggers: MedPundit (Sept. 27), GruntDoc (Sept. 29), Bhavesh Patel (Sept. 30), Cut to Cure (Aug. 3, scroll down, not on Dr. Macumber but same general subject matter), and MedPundit again (Oct. 2, archives busted, scroll down). After the last-mentioned of these, keep scrolling down to “Beware of Experts” for an exchange between MedPundit and The Bloviator (Oct. 2) on the question of whether unreliable expert testimony was used against a Phoenix gynecologist on trial for taking improper liberties with female patients, and the possible harms done by such testimony even if the doctor turns out to be guilty as charged.
Overreading mammograms
American women who get routine mammograms are more likely to be called back for additional tests than women in other countries, even though such caution does not result in more cases of breast cancer being found, a new study has found. ‘Higher callback rates would be fine if we had evidence we’re getting more bang for the buck,’ said Dr. Joann Elmore, lead author of research published Wednesday in the Journal of the National Cancer Institute. ‘But we’re not.'” The study found that “American mammographers do not detect any more cases of breast cancer, nor do they detect cancer at earlier stages, than their counterparts in such countries as Australia, the Netherlands, Italy or Britain.” They do, however, have a much higher false-positive rate: “According to one of Elmore’s earlier studies, one in every two U.S. women will have at least one false positive after 10 years of annual screening. … the authors say they have adjusted for most of the other factors that could lead to higher false-positive rates and hint strongly that America’s litigious culture is implicated.” (“Callbacks don’t increase detection”, Chicago Tribune/San Diego Network of Care, Sept. 17). See also Nov. 2, 2000; May 12, 2003; “Study suggests false-positive mammogram results linked to radiologists? experience”, UW School of Medicine Online News, Sept. 27, 2002 (earlier Elmore research).
U.K.: defending assumption of risk
There’s been much attention (and deservedly so) to the recent ruling of the Appellate Committee of the House of Lords in Tomlinson v. Congleton Borough Council (see Aug. 11), which vigorously and eloquently defended the principle of assumption of risk as a bulwark of “the liberty of the citizen” which helps prevent the imposition of “a grey and dull safety regime on everyone.” See, for example, Scott Norvell, “‘The Protection of the Foolhardy or Reckless Few’?”, TechCentralStation.com, Oct. 2. Now, in a case that arose on the Isle of Wight, “A judge has stripped a schoolboy of a ?4,250 damages award after his school argued that it would be ‘madness’ to compensate him for breaking his arm after falling off a swing as he played Superman during a sports day at Chillerton country primary school near Newport. … [O]verturning the ruling that the school was negligent, Mr Justice Gross said at London’s high court that if ‘word got out’ the boy had won his case ‘the probability is sports days and other pleasurable sporting events will simply not take place … Such events could easily become uninsurable, or at prohibitive cost.'” (Clare Dyer, The Guardian, Sept. 25; Chris Boffey, “Judge’s ruling ‘saves school sports days'”, Daily Telegraph, Sept. 25). See also articles by barrister Jon Holbrook in Spiked Online: “‘Duties of care’ to the careless and criminal” (Tony Martin case, etc.), Jul. 29; “The trouble with Making Amends” (medical malpractice law), Aug. 22; “Blind spot” (road accident caused by pedestrian), Sept. 23.
Diagnosis: asbestos
Commenting on the recent legal action (see Sept. 21) charging a cardiologist with having run a diagnosis mill providing dubious certification of heart damage for thousands of fen-phen claimants, Sydney Smith (Medpundit) is reminded of a problem from her own practice (Sept. 19, scroll down): “Making dubious diagnoses for class action suits is becoming a bit of a cottage industry in medicine. Asbestos is the [worst]. Several of my patients have come in saying that they’ve been diagnosed with asbestosis by ‘the union’s lawyer’s doctor.’ Needless to say, neither the union, nor the lawyer, nor the doctor ever share their findings with me, even when asked. And not one case has been confirmed by our local pulmonologist when I’ve referred them on. That is if they’ll let me. Some of them don’t want to have a second opinion — don’t want to miss that payout. (That’s not to say I haven’t had cases of asbestosis. But curiously, all of my asbestosis cases were not diagnosed by lawyers.)”.
“KC doctor faces fraud suit in fen-phen cases”
A class action trust fund in the fen-phen cases is suing a cardiologist, accusing her of being paid $3.2 million by lawyers to issue bogus test results to permit clients to collect millions more from drug makers. (Kansas City Business Journal, Sep. 18). “When considering the thousands of echocardiograms that Dr. Crouse interpreted during the period that she worked for the Hariton and Napoli firms, her practice resembled a mass production operation that would have been the envy of Henry Ford,” a district court previously wrote in halting payments from the fund. The settlement trust is seeking treble damages. (Shannon Duffy, The Legal Intelligencer, “RICO Suit Filed in Fen-Phen Dispute,” Sep. 22; see Sept. 27-29, 2002; May 30-Jun. 1, 2003; Aug. 19, 2003). Update Nov. 30: similar suit filed against second cardiologist.
Oh, that medical privacy
Police have arrested 42-year-old Juvenal Caballero Guerrero, formerly a patient-care assistant at Houston’s Memorial Hermann Hospital, on charges of “selling about 12 pages of patient information for $500 to a representative of Industrial Safety Consultants, a company that advertises ‘investigations regarding accidents and injuries’ from its Houston offices. According to court documents, investigators were told the company has sold stolen patient records to personal-injury lawyers. … Prosecutors said the arrests won’t stop with Guerrero…’There are lots of other people involved,'” Harris County prosecutor Lester Blizzard told the Houston Chronicle, including employees of other health institutions. Lawyers might also face charges if they can be proved to have directly solicited business from accident victims. (“Former Houston hospital worker arrested”, AP/Fort Worth Star-Telegram, Aug. 28; “Hospital Employee Charged With Theft, Sale of Patient Information”, BNA Health Law Reporter, undated Sept.; Annie Blanco, “Hospital worker arrested for medical record theft”, News 24 Houston, Aug. 28)(via SickOfLawsuits.org)