Medical Malpractice Bulletin for February, 2009

CONTENTS:

Perspective: Stroke, Part 3:  What is the standard of care?

Despite two previous “Perspective” pieces on the topic of stroke last year [“Clot-busting drugs for stroke” and “Evaluation and management of stroke/TIA, Part 2“], both patients and attorneys continue to have questions about treatment standards for this often devastating condition.  In an effort to make this as simple as possible, given the state of flux of the standard of care in this area, this Perspective presents a current summary of what one should know when evaluating whether the care of a stroke victim has met that standard as it exists today. Here are the key points.

Radiologist can’t give films to defense expert without authorization. Another instance of “How to win a malpractice case even if you lose.”
The North Carolina Court of Appeals found a defendant radiologist guilty of malpractice for providing a defense expert with copies of the original mammograms without the patient’s authorization, even though the report of the study was contained in the patient’s original medical record available to the defense expert. The patient had lost her lawsuit against the treating physician for alleged misdiagnosis of breast cancer.

In upholding the claim, the court wrote: “…The filing of a medical malpractice suit by a patient against his physician, however, constitutes a limited implied waiver of the physician-patient privilege to the extent the defendant physician may reveal the patient’s confidential communications contained in the defendant-physician’s own records to third parties where it is reasonably necessary to defend against the suit.” However, the court noted that the radiologist, who was not a defendant in the medical malpractice action against the original treating doctor, “disclosed plaintiff’s mammography films to the expert witness. Although the films were related to plaintiff’s malpractice action, the films were not in the possession of a defendant to that action.” An appropriate request and authorization would have alleviated this problem.

Gynecologist sued. Non-gynecologist expert’s testimony challenged.
A Texas gynecologist challenged the court for allowing a non-gynecologist specialist in infectious disease to be the plaintiff’s expert, claiming that expert testimony from a physician in the same specialty was required. He lost his challenge when the court allowed the ID doctor’s testimony, since in fact the patient had died of an infection.

CMS “Never Events”
The following is a list of the “Never Events” for which CMS will not be paying hospitals. Should a patient experience a problem related to oned of the listed conditions, plaintiff attorneys will likely find these easier to litigate. Defense attorneys will likely seek earlier settlement.
1.    Unintentional retention of a foreign object after surgery.
2.    Air embolism.
3.    Blood incompatibility.
4.    Pressure ulcers (Stages III and IV).
5.    Hospital-acquired injuries from falls and certain traumas (fracture, dislocation, intracranial injury, crushing injury, burns and/or electric shocks).
6.    Manifestations of poor glycemic control.
7.    Catheter-associated urinary tract infections (UTI).
8.    Vascular catheter-associated infection.
9.    Deep vein thrombosis (DVT) or pulmonary embolism following total knee replacement and hip replacement procedures.
10.    Surgical-site infections following certain orthopedic procedures, mediastinitis following coronary artery bypass graft (CABG) and/or following bariatric surgery for obesity.
11.    Surgery on the wrong body part.
12.    Surgery on the wrong patient.
13.    Wrong surgery performed on a patient.

It may be Chinese herbal medicine, but you’re still subject to American medical-malpractice law.
A Chinese herbal medicine practitioner in Illinois has been sued by a patient for allegedly prescribing a nephrotoxic herb that caused his patient’s kidneys to fail. For a synopsis of the case, click here . To view the complaint, click here.

Why can non-compliant patients still sue their practitioner? Enough fishy stuff here to fill an aquarium.
•    Woman wants to deliver twins at home.
•    Has complications, goes to hospital.
•    Hospital says “stay here and deliver.”
•    Patient says “no,” goes home to deliver.
•    Midwife student attends delivery with two midwives.
•    Twin dies.
•    Family sues everyone.
•    Student wants to use “Good Samaritan” defense.
•   Court says no, and sends everyone out to defend their actions… except the plaintiff.

Does a doctor have a duty of care to a child not yet conceived?
A court in Toronto recently ruled that a physician is only responsible for treating the patient before him, not a child yet to be conceived. The case involved the use of Accutane, a drug capable of causing congenital deformities in the fetus. The patient receiving the drug was given ample warning about the drug, had a negative pregnancy test and a husband with a vasectomy, yet shortly after beginning the treatment became pregnant and delivered a baby with deformities. A suit against the physician on the child’s behalf was unsuccessful.

Doctors blame lawyers, lawyers blame doctors. Might it be the patient’s fault?
A commentary in “USA Today Online” suggests that the current malpractice legal system is “arbitrary, inefficient and results in years of delay. Reform would encourage doctors to focus on patient needs instead of performing unnecessary tests to keep a lawyer away from their doors.” Key question: Is the problem REALLY that doctors fear LAWYERS, or that patients don’t trust their DOCTORS?

Does HIPAA keep records out of hands of defense attorneys?
The role of the Health Insurance Portability and Accountability Act (HIPAA) in medical malpractice cases was recently reviewed by courts in 2 states. The issue was to what extent a defendant physician’s attorney is prevented from informally interviewing a plaintiff’s prior or subsequent treating doctors in the course of litigation. Georgia ruled that HIPAA prevailed over Georgia state law (under which plaintiffs waive their privacy rights when in litigation.) In Michigan a plaintiff argued that a defense attorney went too far in speaking with plaintiff’s physicians after the plaintiff consented, under HIPAA, to release only medical records from the plaintiff’s doctors. The court disagreed and the plaintiff is appealing. Bottom line: A plaintiff should ideally sign a HIPAA waiver for both written records of, and verbal discussions with, attending physicians (if allowed by state law) when involved in a malpractice case, even if state law says plaintiffs relinquish privacy rights during litigation.