Perspective: Tell your expert the whole story
Charles A. Pilcher MD FACEP
A few years ago I was asked to review a case involving a death that occurred less than 24 hours after hospital discharge. The memorable experience taught me several lessons. To learn more, click here.
Medical staff is not a separate entity from the hospital
In a bit of a departure from the usual malpractice fare of this bulletin, I start with a recent Washington State Court of Appeals ruling regarding the independence of a hospital’s medical staff. In Perry v. Rado/Kadlec Hospital et al., the court ruled that “the staff was not a separate legal entity capable of being sued.” The suit named both the hospital and the medical staff as separate defendants. “In Washington, a hospital’s governing body sets standards and procedures… [in its role] to, ‘Appoint and approve a medical staff.’ WAC 246- 320-131(3),” said the court. “Thus, KMC’s medical staff is the product of bylaws, subordinate to the hospital’s governing board.” The complete ruling can be found here.
Can associate of plaintiff’s new physician testify for the defense? Court says “no.”
A defense attorney attempted to use as an expert a member of the specialty group currently treating a patient suing his client, one of the plaintiff’s previous physicians, for alleged malpractice. Ruling that such testimony would create an adversarial relationship between the patient and his current treatment team, the court said that patients have a right to expect “loyalty” from their physicians. More ->
Does improving patient safety reduce malpractice claims? Rand Corporation study says “yes.”
What seems like common sense, the Rand Corporation has verified. In a study done in California, they showed a direct link between improvements in patient safety and a reduction in malpractice cases. A brief report on the study from the LA Times has links to the original Rand report.
Database on stroke treatments incomplete due to non-published trials
As the concept of “brain attack” gains traction with both physicians and the general public, there is growing consensus that early treatment, particularly with a “clot buster” drug, can lead to improved stroke outcomes. But a recent study highlighted the fact that 19.6% of completed stroke trial results, involving over 16,000 patients, were never published in full. Dr. Jose Biller, co-editor of the Journal of Stroke and Cerebrovascular Diseases, commented that “Investigators [not pharmaceutical companies] must maintain control of the data and of decisions to publish. [If] you are going to participate in a clinical trial, you have the ethical obligation to publish the results, regardless of outcome.”
tPA for stroke: Give it early, but up to 4.5 hours now safe
Since a report in May, 2009, the window of opportunity for administration of the clot-busting drug alteplase has been shown to be safe up to 4.5 hours after “last seen normal.” A new report validates those findings, but confirms that earlier is better, especially if the drug can be given within 90 minutes of symptom onset. After 4.5 hours, there is greater risk of harm than benefit from the drug.
Medical records turned over in response to grand jury subpoena in criminal case. Wrong!
In a “can’t win for losing” decision, an Ohio court ruled that the release of an alleged criminal’s medical record by the Cleveland Clinic in response to a grand jury subpoena violated the patient-defendant’s right to medical privacy. Finding that the state’s privacy provisions supersede the provisions of HIPAA, the ruling allows the patient to sue the hospital for invading his privacy. The matter will now be adjudicated, most likely in federal court.
“Learned Treatise” may be used even when expert denies its authority.
Just because an expert witness denies the authority of a “learned treatise” does not prevent that reference from being used by the other side, a NJ appellate court ruled last year. The court ruled that so long as ANY witness in the trial considers the treatise authoritative, the information contained can be presented. It is then up to the jury to decide how much weight to attribute to the reference presented.
Paramedic disciplined by physician supervisor sues physician
When a physician supervisor determined that a paramedic for whom he was responsible exhibited inappropriate behavior, the physician arranged for the paramedic to be reassigned to work as a firefighter. The paramedic is now suing the physician. A District Court in Washington State granted the defense motion for summary judgment. The case is being appealed to the US 9th Circuit Court of Appeals with amicus curiae briefs being filed by several parties on behalf of the physician. For details of the case, see “Who’s In Charge on Trauma Supervision?” in Washington ACEP News.
Georgia ED docs liable only for “gross negligence”
The Georgia Supreme Court ruled 4-3 to uphold the state standard requiring that ED physicians in that state must be found guilty of “gross negligence” in a malpractice matter rather than simple negligence. The court found that the existing requirement, part of a tort reform package passed earlier, did not constitute a “special law,” which is disallowed when a general law covers a situation. For more details and a link to the ruling, click here.
Has the “locality rule” outlived its usefulness?
Some 20 states still use a version of the “locality rule” with regard to medical malpractice cases. The rule, dating from the 1880’s, is intended to protect practitioners in rural communities, where resources might be limited, from allegations of substandard care with respect to the standards available in larger locales. The questions today should be: 1) Does this rule now protect substandard care when national norms should be readily available and implemented, even in the most rural practice, and 2) Does this rule unfairly penalize a physician when his/her care conforms to national norms, but is less conservative than local standards? A case in point – regarding screening for prostate cancer – is given as an example. Today, the rule is primarily used to disqualify experts who “aren’t from around here.”
Viva Las Vegas! Hep C fiasco continues. Drugmakers lose big, plan appeal.
About 2 years ago, this newsletter reported that a GI endoscopy clinic in Las Vegas was cited for causing an outbreak of Hepatitis C by re-using syringes when injecting propofol for sedation. The drug’s manufacturers (Teva, Baxter) were recently ordered to pay $500 million in punitive damages for alleged poor labeling of their product. Teva said in a statement that the label for its propofol product “clearly states that it is for single patient use only and that aseptic procedures should be used at all times.” An editorial in the Las Vegas Review-Journal suggests the award was a case of greed chasing deeper pockets, since the owner of the clinics only had $3 million in insurance. One can’t help but wonder if this case was just used as an excuse to “stick it” to Big Pharma. See full article from DailyFinance: