Healthcare Update Satellite 07-29-2013


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InQuickER has some competition for violating EMTALA in the “reserve a spot for my emergency department visit” market. Massachusetts hospital using service called “ResERved” and another company called ER Express is also filling this niche … at least until malpractice attorneys realize that EMTALA violations and decisions from hospital administrators to utilize these services aren’t subject to state malpractice caps and also bring in another set of “deep pockets” when patients suffer an injury.

Brazilian man dies when cow falls through roof of his home and lands on him in bed. Family doesn’t blame cow, but rather blames the excessive amount of time that the patient waited to be examined in the hospital.
Now the owner of the cow could be charged with manslaughter.
Those commenting to the article note how red meat isn’t good for you.

Why do low income patients go to the emergency department?
1. More accessibility. If you’re bored some day, get a list of doctors offices in your area, call around and tell them that you have Medicaid and need an appointment as soon as possible. Walk into the emergency department and you get evaluated by a medical professional.
2. Lower out of pocket costs. Primary care physicians sent many patients to multiple specialists – each who required a co-pay. Emergency departments took care of the problems in one visit.
3. Higher quality of care. Well, you know. What can all of us emergency docs say?

Fourteen of the 500 or so NHS hospitals are allegedly to blame for up to 13 thousand excess patient deaths in the past 8 years. Report shows “alarming levels of infections, patients suffering from neglect and appalling blunders such as surgery performed on the wrong parts of bodies.
After the shock headline was disseminated, the author of the report, when asked for comment, responded “Don’t believe everything you read, particularly in some newspapers.”
The cited report was supposed to be published two weeks ago. I found a summary of the allegations here, but I can’t find the report itself anywhere online.

Interesting point to keep in mind regarding testing for pulmonary embolism: The higher the d-dimer level, the more likely that a PE will be present. Those with the highest d-dimer levels had a 45% chance of having PE on chest CT scans.
Should we have a new criteria to presumptively diagnose PE solely by blood testing?

Gynecologist’s assets seized after $5 million malpractice judgment.
Patient develops metastatic ovarian cancer when gynecologist discusses removing ovaries during a hysterectomy, but doesn’t “strongly advise” that they be removed.
Skeptical Scalpel creates a nice summary of the case, Downs v. Trias. The court opinion notes that the patient previously had bilateral mastectomies due to strong family history of breast cancer, that the doctor testified he had limited knowledge of the patient’s ovarian cancer risk, and that plaintiff experts testified that the doctor did not properly inform the patient about her risk of developing cancer.
What message does a verdict and asset seizure like this send to physicians?
Refer cases to multiple specialists for expert opinions on everything. Order more testing so that patients can be fully informed about all the potential risks of any of their medical problems. It is only called “defensive medicine” when the testing is performed and the results are normal. Take proactive steps to protect your assets in the event that any one of the hundreds of medical decisions you make each day turns out to be incorrect and results in harm to a patient.

Two Alabama postal service employees hospitalized after coming into contact with KY Gel that had leaked out of a package. Yeah, that same stuff doctors put on their gloved fingers before performing rectal exams. Oh, the comments running through my mind right now …


  1. “What message does a verdict and asset seizure like this send to physicians?”

    Not much of one. As the article reports, this was the first such time in Connecticut history. Although I highly doubt it was done with “no notice”.

    The most interesting part of the article was that he told his insurer to settle for policy limits, and the insurer refused. If the article by the AMA magazine were really interested in helping physicians, it would note that he has a very good claim against his insurer, and he should assign the proceeds from that to the plaintiff.

    • Err, the insurer isn’t liable for more than the covered amount, unless new case law has changed that.

      A decision on whether to settle is the insurer’s, not the defendant’s. That the doctor got left holding the bag is largely irrelevant to the insurer. They’re only liable for the covered amount, it’s the same to them (aside from legal fees) whether they settle for the covered amount (as the doctor wanted) or they lose the court case (which leaves then responsible for … the covered amount).

      You’re a lawyer – are you saying that insurers bear liability beyond the stated amounts? That they’re legally responsible for preventing one of their clients from being sued for more than the amount they are covered? What legal theory provides that liability? How much _are_ they liable for? Up to their cuff-links?

      • Bad faith claim. Google it. Assuming the story is correct, if they could have obtained a release for their insured by offering policy limits, they may have opened themselves up to one.

    • OK, a few questions, then, counselor.
      First, suppose you had a client that came to you and asked you how to avoid having a similar scenario happen to him. What actions would you counsel your client to take in order to avoid a similar judgment for failing to encourage a surgical procedure “strongly” enough? Oh, and at the same time, the client would also have to make sure that there were no adverse effects from recommending that a patient have both of her ovaries removed. Because if the patient later died from a hip fracture due to osteoporosis from insufficient estrogen, or developed some type of cancer from taking estrogen supplements, either way your client could also be on the hook for millions of dollars.

      Second, what difference does “no notice” make on whether the physicians assets were seized? Even if there was notice of seizure, the physician couldn’t get rid of all the assets once receiving notice. Hence the bit in the article about asset protection.

      Third, let’s suppose that the insurer wanted to settle and the plaintiff refused the offer of the policy limits. Then what?

      • You’re wanting me to answer questions about medical procedures in a case where I haven’t seen any of the evidence. That makes no sense, of course, and you know that. Your question would be better directed to the physicians who testified for the plaintiff, who have in fact seen the evidence.

        We’re relying on a lobbying group’s summary – even you, a noted shill for the insurers, wouldn’t do that in trying to form an opinion (I hope). From simply reviewing the Supreme Court opinion, and not even the records, Skeptical Scalpel modified his/her views:

        “As I thought about writing this post, I had in mind a strong rebuke of the entire legal system. It was to be a typical rant that you might expect from a doctor.

        But after doing some research on the case, I have adjusted my views a bit.”

        I didn’t say “no notice” made a difference, I just said it’s almost certainly wrong. Which is not surprising, given the point is to scare physicians. But it also further leads me to question the rest of the summary.

        If the plaintiff refused then the insurer is off the hook. Again, we’re going off a short article which may or may not be correct. The part about the insurer refusing to settle is not a quote from someone with knowledge, after all.

      • To clarify, if the insurer offered limits, and the plaintiff refused, I mean they are off the hook to their insured on the bad faith claim.

      • ” It is only called “defensive medicine” when the testing is performed and the results are normal.”

        It’s only called “defensive medicine” when we’re lobbying for tort reform. It’s “necessary” when it’s being billed to the payor and after the “reform” has passed. The procedures done don’t change though.

      • “You’re wanting me to answer questions about medical procedures in a case where I haven’t seen any of the evidence.”

        No, actually I’m asking you about the sufficiency of informed consent disclosures. That’s a legal issue. But when you run your yap about how no one can ever comment on any malpractice case because all the facts aren’t known, it becomes hypocritical to then use another person’s interpretation of the information to support your arguments.

        “Skeptical Scalpel modified his/her views”
        So in other words, it’s OK to raise opinions when they agree with Matt, but when the opinions don’t agree with Matt, they are based on incomplete information. Got it.

        The defensive medicine moniker is used to denote a test or procedure primarily performed to lessen potential medical malpractice liability. Since you seem to acknowledge that tort law contributes to overtesting, tort reform would be a logical way to diminish the amount of testing over time.

        And talking about “shills”, why is it that I never see you blasting any opinions from the American Association for Justice?

      • “No, actually I’m asking you about the sufficiency of informed consent disclosures. ”

        Weird, because that term is nowhere in the post I responded to. What exactly is your question? Are they sufficient? For what issues?

        “But when you run your yap about how no one can ever comment on any malpractice case because all the facts aren’t known, it becomes hypocritical to then use another person’s interpretation of the information to support your arguments.”

        First you claim something I never said, then you call me a hypocrite based on something I never said. That makes sense.

        “Since you seem to acknowledge that tort law contributes to overtesting, tort reform would be a logical way to diminish the amount of testing over time.”

        And yet in 40 years of tort reform, it hasn’t. At what point do you quit hoping and try something new? How is it “logical” to still believe in something that has failed for 4 decades. And that’s putting aside the fact doctors can’t agree which test is “necessary” and which is “defensive” when it comes to their own work.

        As for Skeptical Scalpel, I don’t know if he’s right. I’m simply pointing out that it seems when you get closer to the original source documents, you sometimes come to a different conclusion. I realize you rely solely on press releases in forming opinions, but not everyone does.

        And I would never tell you to rely on an AAJ press release in forming an opinion. It’s one side, slanted to that side’s advantage. Simply the other side of the coin of what you rely on to make decisions.

      • We’ll try it again
        The issue in the case was that the surgeon failed to encourage a patient to have a surgical procedure “strongly” enough. How should a surgeon go about encouraging surgical procedures to make sure that the recommendations are “strong” enough?

      • It’s funny to me that you think there was one “issue” in the case that you accurately summed up because that’s what your lobbyist told you.

        You’re asking for some blanket statement on a case that you haven’t seen the records or a single filing in. You don’t know what was actually alleged, what the jury found, and I’d bet you haven’t even read the Supreme Court opinion. But I am supposed to speculate on what the physician should have done differently in the case despite having not seen what was actually done? Is this really how you make decisions?

        Me guessing on that would be as foolish as you calling victims of malpractice lottery winners and pontificating on the costs of trying malpractice cases for the plaintiff.

  2. Oh, come on guys. Let’s cut through nonsense. It’s as simple as this:

    Doctor + bad outcome + sympathetic patient = lottery ticket for the attorney. Period.

    It’s the winning formula. Let’s not try to make some complex legal argument about it. It’s got nothing to do with “right” vs. “wrong” or “malpractice” and the “standard of care.”

    It’s about the money.

    • Given the (usual) success rate of lawsuits, if medical malpractice were a drug it would have been sued out of existence years ago.

      Ironic, ain’t it?

    • “Lottery ticket” – that’s funny. I bet you try a lot of medical malpractice cases. Tell me, which lottery do you have to put in tens of thousands to play? At least you had the good sense not to call the injured patient a “lottery winner”.

      A sympathetic patient is all you need? Because jurors are simpletons and defense lawyers are potted plants, eh? Yet physicians win the majority of the time at trial. Guess those lawyers didn’t figure out that their clients weren’t sympathetic enough.

      But you’re right – it is about the money. Because we can’t go back in time and undo the negligence. Money is an imperfect solution for what a negligent physician takes from someone in terms of loss of the quality of life, but it’s all we have. And guess what – all that future medical treatment provided by physicians as a result of the negligence. Why those physicians want to be paid with. . . . you guessed it . . . money! Greedy SOBs.

    • “I bet you try a lot of medical malpractice cases.”
      Ad hominem attack and a logical fallacy. Because one doesn’t try medical malpractice cases, one can therefore not comment on medical malpractice cases. My guess is that most doctors here have been involved in more medical malpractice cases than you have.

      “Physicians win the majority of the time at trial.”
      That comment seems to substantiate the “lottery” analogy. In other words, people don’t win often, but when they do win, there is a big payout.

      • You need to look up the meaning of the words you use. I never said one need try a lot of medical malpractice cases to have an educated opinion. But what lottery do you know that costs you hundreds of thousands in time and costs or if you’re the victim, a grievous injury, to collect? And not just to collect, but then to turn and pay the medical providers? Sounds like the worst “lottery” ever.

        If there were no settlements, you might have a point. Also, what’s a “big payout” Enough money to pay your medical bills?

      • “I never said one need try a lot of medical malpractice cases to have an educated opinion.”
        Then why did you bring up the issue of trying medical malpractice cases if you weren’t trying to insinuate that fact? Way to try to walk back the ad hominem attack, Dr. Doublespeak.

        “Hundreds of thousands in time and costs” is a bunch of hooey. Besides, I don’t know too many people that have your proverbial “hundreds of thousands” of disposable income to throw at each case they take — except perhaps the plaintiff attorneys.

        What difference does the definition of a “big payout” make in the discussion? You’re back to casting aspersions and creating non-sequiturs to try to bolster your weak responses.

      • Why? It’s called sarcasm. You’d have to be a fool to call that a “lottery”. I don’t think you know what ad hominem means.

        A bunch of hooey? Have you ever paid for an expert out of your pocket in a med mal case? Your own insurers claim it costs $100,000+ to take a malpractice case to trial for them. Why would it be cheaper for the side that has the burden of proof? And is a member of the world’s richest profession – US physicians – really doing the whole “plaintiff’s lawyers are so rich and greedy” line? When you’re backed by one of the world’s most profitable industries – insurance? It’s like you wake up in a world where you see none of what you’re saying.

        I’m just wondering what you consider a big payout, particularly given the investment required. And given that so much of the money in that “big payout” goes back to the health insurer that originally paid the bill, or to you, the physician who is now treating the future injuries. You’re like the kid who gets his student loan check and think he’s rich because he forgets he has to pay tuition with it.

  3. I always find the controversy about the existence of “defensive medicine” puzzling. Aren’t physicians meant to change practice in response to medical malpractice lawsuits?

    It seems that it is often the plaintiff lawyers who claim that reports of defensive medicine are exaggerated, and question its existence, yet, it is also the stated goal of at least some plaintiff lawyers to use the medical malpractice suit to change the practice of medicine for the better.

    • Well stated.
      Used to be able to search up the arguments that the American Association for Justice used to try to substantiate that point, but now they have apparently realized the arguments are so weak that they have to hide their content behind membership firewalls.

    • There are some who believe that individual cases are a good mechanism for changing the practice of medicine. There are some physicians who after 40 years of tort reform think it’s magically going to reduce “defensive medicine” as soon as we pass it one more time. People are entitled to hold errant beliefs.

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