Perspective: Medical Malpractice and Healthcare Reform
By Charles A. Pilcher MD FACEP
Over the past year I have been involved in many discussions with doctors, healthcare executives, elected officials, plaintiff and defense attorneys and others about healthcare reform. At a recent Swedish Hospital 100th Birthday Symposium on “Innovation in the Age of Reform,” an array of well-known speakers made it clear that the end game has yet to be played out. Were this a horse race, I would opt out of betting on anyone.
One of the interesting aspects of almost every such discussion is the relative absence of talk about malpractice reform. Health leaders at their core know that things could be better, and are working hard to make it so. Despite what doctors may feel, the overall plan emphasizes improving quality pro-actively, not just reacting to liability concerns.
It may be that capitation and managed again become a part of the healthcare scene. If so, another aspect of medical litigation may arise: accusations that physicians did not “do the right thing” because he/she had a profit motive. Current case law regarding existing HMO’s and managed care organizations may well need to be dusted off and reviewed. It could come in handy if that we are heading in that direction.
Video: “Health, Money and Fear.”
Should you have the time or interest, there is a wealth of information in an excellent 40 minute video documentary “Health, Money and Fear,” by Dr. Paul Hochfeld, a Corvalis, Oregon, emergency physician.
Who pays the cost of an expert review of a patient medical record before filing a malpractice claim?
If you would like to learn more about how attorneys bill clients for an expert pre-filing review of a medical record, please complete this 1 question survey available here. If enough respond, I will summarize the results in the next issue of Medical Malpractice Bulletin.
Mediation now mandatory in Connecticut malpractice cases
Effective July 1, Connecticut law requires parties in a medical malpractice action to attend at least one session of mandatory mediation before proceeding with a lawsuit. The mediation must begin within 20 days and be completed before the close of pleadings, which generally occurs after the complaint and answer have been filed with the court.
Hippocrates or hypocrisy: Is defensive medicine malpractice?
S. Clark Newhall, a physician and attorney in Salt Lake City, UT, responded to an article in Circulation on over-treatment and over-testing by cardiologists with a letter alleging that such a practice simply to protect oneself against legal liability might well be malpractice. What if a physician orders a contrast CT scan or treats a viral infection with an antibiotic “just to be sure,” and the patient suffers an allergic reaction? Certainly if a physician is planning to order a test or treatment he/she truly believes to be purely “defensive” in nature, he/she should have a frank conversation with the patient and document it. But couldn’t the same approach be used if one chose NOT to order a test?
Washington State law serves as template for youth athletes’ concussions.
The New York Times reports, “A Washington State law that mandates strict procedures for handling youth athletes’ concussions has served as a template for similar policies.” Washington’s law, “known as the Lystedt Law and named after a high school football player who sustained permanent brain damage, requires “education for coaches and parents, the immediate removal of any athlete suspected of having sustained a concussion, and written authorization from a ‘licensed health care provider trained in the evaluation and management of concussion’ before an athlete can return.”
Texas Supreme Court: Hospital injuries unrelated to physician error fall under malpractice caps.
The Texas Tribune reports, “The Texas Supreme Court has narrowly ruled that hospital injuries seemingly unrelated to doctor error can still fall under the state’s stringent medical malpractice caps.” The case centers on a patient who injured himself on a broken footboard on his hospital bed. He says he should be allowed to sue the hospital “for unlimited damages with a so-called ‘premises liability’ claim.” The “5-4 high court ruling late last month reversed a 2009 high court decision that [the patient’s] claims did not fall under medical malpractice law because the bed was not integral to his medical care.”
Malpractice? No. Assault? Yes. Hospital sued for circumcising newborn boy against parent’s wishes
A Miami hospital claims it “misread the consent form” and proceeded to circumcise a newborn boy. The upset parents have filed a lawsuit, but for assault and battery, not malpractice.
Expert Says Complaints Of Texting Lifeguards Are Increasing.
The New York Times reports reports that Bernard J. Fisher II, director of health and safety at the American Lifeguard Association, has “heard a sharp rise in complaints about lifeguards who were texting on the job.” According to Fisher, “Lives are being endangered… and pools and waterfronts should have procedures to prevent lifeguards from using cellphones while on duty.”
Alaska Supreme Court rejects “duty” of IME physician to patient
A patient later found to have a rare but treatable spinal cord condition sued the physician who examined him during an “independent medical exam” (IME) for failure to diagnose the condition. The court ruled that an IME physician does not have a doctor-patient relationship in the same sense as a treating physician and could not – at least in this instance – be sued for malpractice. [Editor’s note: This case was brought to my attention by an Alaska healthcare attorney with whom I have worked. Such items are always welcome.]
Stroke: Window of opportunity enlarging
Individuals experiencing a stroke may now have at least six hours – and perhaps longer – after “last seen normal” to avail themselves of some form of treatment. Many of the options may only be available in fairly sophisticated centers, however. These involve advanced techniques such as intra-arterial thrombolysis and thrombectomy by an interventional radiologist. At best, outcomes are still only marginally better, and informed consent is crucial. Guidelines can be found on the American Heart Association website. There are also three essays on emergency management of stroke in the Perspectives archives of this newsletter.
Reminder: “Compression Only CPR”
“Compression Only CPR” is now the new American Heart Association standard. Compress the chest about 2 inches about 100 times a minute. No mouth-to-mouth breathing required. Results are far better than the old way by about 50%.