Healthcare Update — 01-24-2011


Also see the satellite edition of this week’s update over at ER Stories. While ERP is on vacation, I’ll try to do double duty and post on both blogs this week.

They’re already starting to itch. Drug seeking patients will soon have a new medication to add to their list of allergies … and/or medications that “don’t work on me”: Intravenous Tylenol.

US Supreme Court to decide whether California will be allowed to cut access to care, er, um, cut payments to providers and still remain in compliance with federal Medicaid laws. Twenty two other states have joined California in its appeal, meaning that about half of the people with government health “insurance” – and those about to be forced to purchase insurance under the new health care plan – will have one heck of a hard time finding access to medical care.

In another story on the topic, Arizona is looking to drop more than a quarter million patients from its Medicaid “insurance” plan. Twenty nine state governors have signed a letter to President Obama requesting a change in the law to permit the states to tighten Medicaid requirements. Arizona is pushing the envelope by making the formal request directly to Kathleen Sebelius and “daring” her to refuse it.

You’ll get faster attention all right – from men with bigger guns than yours. Twenty four year old patient walks into hospital emergency department and demands faster treatment for his condition or else he’ll start shooting up the place. Instead, he gets a free trip to the Greybar Motel.

Disincentive to seeking help for psych problems in North Carolina emergency departments – you’ll have to spend an average of 3-4 days in the emergency department before you find placement. You read that right – three to four days. Biggest problem: Few states want to pay for funding for psychiatric care. Next biggest problem: Mentally ill patients are less likely to vote.

Then again, if you go to an emergency department seeking psych care and say you want to kill your pastor, you can always sue the hospital and psychiatrists when they involuntarily commit you. In this case, the plaintiff’s psychiatric patient’s expert stated that the patient should just have been given anti anxiety medications instead of being committed because she didn’t have a “plan” to kill the pastor.
Another example of how physicians are damned if they do and damned if they don’t. If you don’t commit a patient who threatens homicide, then you’re sued if the patient goes out and kills someone. If you do commit the patient, you’re sued for unlawfully committing the patient. No matter what happens, plaintiff attorneys will always be able to find some purported expert to testify that what you did was wrong.

Two interesting factiods from Physician’s Practice Magazine
First is commentary about the “Twinkie Diet” – which I hadn’t heard about before reading the article. See more here. A professor of nutrition at Kansas State University ate mostly “convenience store food” for two months – in addition to vitamins, a protein shake, and a can of vegetables per day. At the end of the month, he had lost 27 pounds. Not only did his weight go down, but, his LDL (bad cholesterol) dropped, his HDL (good cholesterol) increased and his triglycerides dropped by 39%. On Twinkies and Doritos! Once he started eating meat, his cholesterol went back up. I think that’s pretty compelling evidence in favor of the intake/output argument for weight control.
Next is the study showing that the screen on that iPhone of yours has 18 times as many bacteria than the handle of a toilet in a men’s restroom. Wonder how it compares to the toilet seat. Maybe we all should start putting toilet paper over the iPhones before we touch them.

Speaking about germs … stay off of public transportation during flu season. You’re six times as likely to get a respiratory infection that requires a doctor visit.

Which emergency department has the longest wait? Pennsylvania hospitals are starting to compare waiting times for hospitals. For example, Tenet Healthcare Corporation is posting wait times for 40 of its 49 hospitals. Can anyone guess what will happen when hospitals compete to see who has the shortest wait times? Remember the engineer’s triangle: Fast care, free care, quality care: Pick any two. Plaintiff’s attorneys are going to love this …

Harbor-UCLA Medical Center settles case for $1.175 million after catheter inserted into trauma patient “accidentally punctures a vessel wall.” Details of the case aren’t provided except for the fact that the patient left the hospital after a few days. If this case revolves around accidental arterial puncture when inserting a central venous catheter, depending on the location site, arterial punctures are a known complication of catheter insertions.

It’s not enough that some patients assault staff in the emergency department. Now patients are planting fake bombs in emergency department bathrooms.


  1. Re: the story about lady-threatening-to-kill-pastor:

    There is no way this story should be coming to the courts. The doctors did the right thing — heck, all of med school we were constantly being reminded about the Tarasoff case — and remember what happened just last May?

    Is there really no way doctors and law-makers (not lawyers) can get together and hash over how to set up common-sense procedures that would make stories like this history? Or do more have to die while we play patty-cake with mentally-disturbed threat-utterers.

    • Here in California we had a case where a retired guy said that he “wished he were dead” after having been catheterized for an outpatient procedure.

      A doctor informed the police; two uniformed officers were sent to the guy’s house, where they forced the door open and Tased him, and then zapped him twice more while he was thrashing around on the floor screaming.

    • Michelle,

      Lawmakers can’t draft laws to cover literally every permutation of human conduct. Think how many laws there are already, and they don’t even come close. You can draft laws without lawyers, although it doesn’t make a lot of sense. In fact, it appears from this article that the case in some part turns on some interpretation of a law to deal with this situation.

      We express common sense via our jury system. That’s where society deals with those permutations. Where we decide what the societal standards are. This is something that we fought the Revolutionary War for, and was so important we enshrined it in the Constitution. Locally, your community gets to decide how it deals with X situation or Y situation. Now, you may not ultimately agree with that particular juries’ take, but short of making you arbiter of all disputes, no system will make you happy ALL the time.

      That’s one of the primary functions of civil courts, so I’m not sure why you would say this kind of case shouldn’t come to the court.

      • Matt,
        The reason one doesn’t want to be sued for frivolous reasons is it is very expensive and disheartening, and it stops one from helping other patients while defending one’s self. If one is facing such a lawsuit one will need to hire a lawyer and at least one expert. The legal costs for preparations, depositions, court appearance, and so on will easily exceed $50,000. It will take one away from his medical practice for at least two weeks, during which he is unable to earn any income, but will incur ongoing overhead expenses. When I was in private practice, a dozen years ago, I was never able to get my expenses lower than about $10,000 per month (a modest urban orthopaedic surgery office), and we all know that medical inflation has increased these unavoidable expenses. Although medical malpractice insurance will cover the defense costs future rates will go up because of the expense. My carrier offered a 10% discount to physicians who did not incur these expenses. The loss of that discount will increase a surgeon’s expenses by more than $100,000 over the decade following a successfully defended lawsuit. Beyond the expenses of defending a merit free lawsuit it is demoralizing to be sued unjustly, and one does not always win just because the suit has no merit. The other side always has an expert that will claim you were wrong. How can a judge and jury know enough medicine to know which expert is wrong? Perhaps you remember the woman who won a nearly $1 million verdict after claiming she lost her psychic powers during a head CT scan. (New York Times, March 29, 1986).

      • I didn’t wonder why you didn’t want to be sued for “frivolous reasons” – although I don’t know a defendant who didn’t think the claim was “frivolous”. In fact, I’ve seen patently non-frivolous cases where your insurers (you say you are spending this money when it’s actually your insurer) fought tooth and nail until right up to trial. Why?

        Those people weren’t just out a few days of work, or worried about their malpractice premiums going up. They were unable to work, bills piling up, uninsurable and no money to pay for care.

        I’m sorry you couldn’t get your expenses lower – tell me, on that $120K a year overhead, what was your income? Telling me your expenses is interesting, but unless we have the full picture of the business model, it’s hard to take much from it other than you’d like to pay less overhead. Which describes every business owner ever.

        “Although medical malpractice insurance will cover the defense costs future rates will go up because of the expense.”

        Insurance rates rise and fall with the economy. If you believe it’s a direct correlation between payouts and premiums, then you need to study the industry more.

        And no, I don’t remember a 25 year old case. I also don’t know if that judgment was ever paid. Do you?

      • WTH..I lookedd it up.
        In his law review article, Galanter traced the long afterlife of an infamous 1986 case involving a Philadelphia psychic who won a $1 million verdict. She had claimed she had an allergic reaction to medical treatment and lost her psychic powers.

        The story of the psychic’s verdict was widely circulated. Eventually, Galanter learned, it found its way into a 1991 report of the President’s Council on Competitiveness, which referred to such bizarre cases as “almost commonplace” but did not disclose that the psychic’s verdict had been reversed and that she had collected nothing.

  2. Matt,
    I thought we were discussing this specific “damned if you do – damned if you don’t” example. I wasn’t trying to claim that there were no non-frivolous cases. I tried to illustrate why the actual verdict or pay out was not a reason to argue against a change in the law because of your statement “We express common sense via our jury system” justifying the lack of such a change. For the record I believe that victims of malpractice should be compensated and have the right to seek that compensation. I believe one real problem is the “experts” and I do not fault the lawyers or the plaintiffs who lack the medical knowledge to understand they were misled by their expert, and who honestly believe there was malpractice, or the physician and defense lawyers who were misled by their experts, and honestly believe there was no malpractice. I hope that deliberate fraud on either side is rarer than legitimate dispute.

    Although this psychic did not collect on the judgment my example was intended to illustrate the economic and emotional costs of relying on the wisdom of juries alone to stop such actions. I wasn’t trying to relate insurance rates to pay outs, I was discussing individual rates to illustrate individual expenses not covered by insurance. An individual with a claim that is defended will pay, because of the cost of defense, a higher rate than one without a claim will pay, and those higher rates will continue for years because individuals with a longer history of no claims made pay discounted rates. My example was meant to show that the successfully defended individual more than paid for the full cost of such a defense, in addition to the immediate business costs and loss of income and productivity. The differential increase in an individual’s premium because of defense costs is approximately double the cost of that defense over a decade. True business expenses are unavoidable and a necessary part of earning an income, but the costs of a patently unjust claim are an additional unjust burden that interfere with the delivery of healthcare and justify a change in the law that would stop some claims, that I think we agree lack merit, while not impeding legitimate claims that deserve just adjudication.

    • Steven,

      In large part this discussion hinges on WHAT change in the law you’re referring to. With your specific example of the old case, we didn’t solely rely on the jury. There was (apparently) an appeal, and a successful one at that.

      Again, defense costs in one case will not necessarily dictate an increase in premiums. If you believe that insurance industry profitability is a function of premium dollar in v. paid claims out (and associated costs) if you pay $10,000 a year for 20 years, and have one case with $100,000 in defense costs – why would your rates go up? Now, that’s not how the insurance industry works, but still. Or a better question – why would you be in a pool with someone who has 5 or 6 paid claims?

      I realize you’re outraged about “patently unjust” (in your eyes) claims. But are you equally outraged about “patently unjust” refusals to pay for damages a party causes? Where are the reforms to punish defendants and their insurers who don’t quickly and fully pay claims? If you run the red light and hit me, where’s the reform to make your insurer immediately pay me the full value of the damages rather than make me file suit against you because they want to drag it out?

      And remember, just because one side loses doesn’t make their claim “patently unjust”. We know next to nothing about the example cited originally. Haven’t seen medical record one. Yet you’ve determined it’s a scenario we need protection from?

      • What “about “patently unjust” refusals to pay for damages a party causes”?
        You’re getting back to your innuendos again.

        When negligence is clear cut, often there is early settlement. Run a red light, you’re presumed negligent. However, what if the person hit was in the intersection illegally? What if the other vehicle was ordered into the intersection by a police officer or was trying to get out of the way of an ambulance? There are always mitigating facts that need to be uncovered.

        In medicine, most malpractice cases are not so clear-cut. Did the patient develop cerebral palsy in utero or because of some perceived delay in delivery? How do you prove that one way or another? Did the patient have a bad outcome from MI because he didn’t take his medications, because of the cocaine in his system, or because the doctor delayed giving him thrombolytics for 10 minutes? Again, how do you prove the liability one way or another?

        It’s kind of like the comment I made in one of the previous updates about lawyers losing a case and being guilty of malpractice – in that one all the attorneys jumped all over me for being quick to judge. Maybe attorneys or their insurers should stop fighting claims and just pay their clients when they lose a case. Funny how perceptions change when the shoe is on the other foot.

    • You really, really don’t understand the meaning of the word “innuendo”. And you apparently think it’s an insult.

      Either way, I’m not seeing your point. You’re right, USUALLY there is a settlement offer when negligence is clear, especially in low damage cases. But if you’ve got a high damage case, of any kind, you’re almost certainly going to have to file suit, and the insurer is unlikely to pay before you do. Especially if you are going to have to estimate future damages with a life care planner, etc. They’re going to dispute that – which is their right.

      You ask a lot of good questions with regard to a car wreck. All need to be answered, which is why we have a court system that allows for claims and discovery. Yet you complain when those things apply to you or your colleagues, because you read a newspaper article about a case! See the problem? (probably not, but I’m an optimist)

      And you’re right, a malpractice case has even more elements, namely the standard of care issue they revolve around. How are they proved? By evidence, that’s how. Same way we prove any claim, or attempt to.

      Your last paragraph doesn’t make sense. I never argued that insurers should immediately pay a claim. So not sure where you’re going with that. Just as a bad outcome does not equal negligence, nor does losing a case. I think this is part of the problem for you. You don’t understand something you’re trying to fix. Stick with improving medicine and you’ll be on solid ground.

      • The issue here is that you’ve spent your entire professional life working with the court system, and therefore all its processes and requirements and intricacies seem obvious and logical to you. This is not the case for the lay person–and it’s hardly appropriate to say “well, that’s THEIR fault for not LEARNING”.

      • innuendo (n.) – a baseless invention of thoughts or ideas. It can also be a remark or question, typically disparaging (also called insinuation), that works obliquely by allusion. In the latter sense, the intention is often to insult or accuse someone in such a way that one’s words, taken literally, are innocent.

        Matt’s Question: “Where are the reforms to punish defendants and their insurers who don’t quickly and fully pay claims?”
        Innuendo: Defendants and insurers purposely drag out claims and refuse to fully pay claims and therefore need punishment based on some arbitrary standard that only Matt has the mental capacity to understand.
        Fact: Validity of claims must be determined. If valid, then value of claims has to be determined. Determination takes time.

        Matt’s Question: “If you run the red light and hit me, where’s the reform to make your insurer immediately pay me the full value of the damages …?”
        Innuendo: Every person who runs a rid light and hits him is liable in full for damages regardless of the circumstances and any person who questions the circumstances is “dragging out” the case.
        Fact: Validity of claims must be determined. Mitigating circumstances and contributory negligence must be determined. If claim is valid, then value of claims has to be determined. Determination takes time.

        Matt’s statement: “You don’t understand something you’re trying to fix.”
        Innuendo: Matt knows more about medicolegal issues than WhiteCoat.
        Fact: Matt is wrong.

      • ” This is not the case for the lay person–and it’s hardly appropriate to say “well, that’s THEIR fault for not LEARNING”.”

        Actually, that’s not what I’m saying. I acknowledge he doesn’t know as much. What I’m saying is don’t go making suggestions for something that you don’t understand. And, if you don’t understand it, how can you be convinced it’s so wrong?

        It’d be like me proposing how heart surgery can be done better.

      • “…if you don’t understand it, how can you be convinced it’s so wrong?”

        There is an entire medical-malpractice industry based around the notion that you can not understand what a doctor did but still know that it was the wrong thing to do.

      • You’ve pretty loosely defined “industry”. There are some lawyers who specialize in that work, on both sides. Which makes sense because it’s demanding work, highly technical, and is difficult. And on the plaintiff’s side, requires a significant financial risk. But if you think it’s based on the premise that you can not understand what a doctor did but still know it’s wrong, you’re fooling yourself. Which is fine, it’s your life.

        I’m sure there are physicians who market their services for those cases exclusively. But that’s not surprising because most physicians don’t have the time and really the inclination, regardless of the merit of the case to assist. People see a need and they fill it. That’s business. Just like physicians generally go where the rich patients are.

  3. “Innuendo: Defendants and insurers purposely drag out claims and refuse to fully pay claims and therefore need punishment based on some arbitrary standard that only Matt has the mental capacity to understand.”

    That’s not an innuendo, that’s a fact. Insurers do. I can’t believe you don’t know this as a physician. In fact, physicians sue health insurers for billions for arbitrarily denying payment. Do you really think you’re the only people insurers don’t want to pay in a timely and fair manner?

    “Every person who runs a rid light and hits him is liable in full for damages regardless of the circumstances and any person who questions the circumstances is “dragging out” the case.”

    That’s not at all what I meant. But if you took it that way, that’s my fault. My point was you guys all want reforms for what you believe to be all these “frivolous” cases filed by the plaintiff, but you don’t have any reforms for frivolous denials of liability by the defendants. Do you really believe that doesn’t happen?

    “Validity of claims must be determined.”

    Absolutely. Yet it’s YOU, WC, who wants to shortcircuit that process with your reforms. AND you want to limit people from recovering the full value of their damages.

    “Fact: Matt is wrong.”

    There are no “medicolegal” issues per se. A malpractice trial is a civil trial. Your comments indicate you know next to nothing about civil trials, how they’re tried, evidence rules, or rules of procedure. It’s also pretty clear you don’t know much about the insurance industry. I freely admit I know next to nothing about how to practice medicine. You’re still trying to pass yourself off as a malpractice litigation expert though.

    • “I freely admit I know next to nothing about how to practice medicine.”

      But by *god* you know enough to sue someone’s ass for doing it wrong!

      • Well I’ve really only handled a few smaller ones with clear liability since I’ve been on my own practicing. I did work on more in a previous firm.

        However, you’re still wrong partly. I know how to file the claim, yes. But it is a physician that tells me if the work was done wrong.

        Are you offended that people have to hire a lawyer to pursue damages when they’re hurt? What if you get hurt today – you just going to say pretty please and hope the insurer pays? Funny, it seems docs don’t hesitate to sue when it’s their money at stake:

        I guess you don’t find it quite so offensive then.

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