Medical Justice® aggressively addresses the interest of doctors within the changing landscape of medical practice. Our mission; to protect our members' most important assets - reputation, character and integrity - against frivolous medical malpractice lawsuits, Internet defamation and unwarranted demands for refunds.



Apr 29 2016

Suture Around the Ureter. Clip on the Common Bile Duct. Complication or Malpractice?

Published by under Healthcare Reform

Over the years, I have seen many lawsuits where a specific operation ended in a complication.

Two come to mind.

An ob-gyn performs a hysterectomy or uterine repair and a ureter is sutured.

A general surgeon performs a laparoscopic cholecystectomy and the common bile duct is clipped.

Some of these cases turn into lawsuits.

Some of those lawsuits result in a win for the plaintiff. Others result in a verdict for the defense.

Why are some cases treated as an unexpected complication? Why are others treated as a violation of the standard of care resulting in a payout?

The short answer is I don’t know. But one recent case illustrates factors that press the scale in one direction or another.

A patient in Mississippi underwent a C-section. During the procedure, the uterus was lacerated. No surprise – it was a C-section. During the repair, the surgeon sutured the left ureter.

Post-op, the surgeon ordered an IV pyelogram to analyze urine flow. The study demonstrated partial obstruction of flow from the left kidney.

A urologist was consulted. He performed a cystectomy and examined the ureter. He confirmed the ureter was sutured. He could not alleviate the obstruction. So he placed a nephrostomy tube to bypass the obstruction externally. The tube was removed after 7 months. The woman found another urologist who inserted stents into the blocked ureter.

The woman sued. She claimed the surgeon did not leave her on the table long enough to look for and treat any discovered blockage. During deposition, the surgeon denied suturing the left ureter, a position he propelled until opening day at trial.

At trial, the ob-gyn’s attorney stated for the first time that the woman’s blood loss was a factor in terminating the surgery quickly. It was too dangerous to take the time to investigate any problem with the ureter. Further, the ob-gyn was concerned the tissue was friable and removing any suture might create even more blood loss.

The opposing expert opined that the ob-gyn over-estimated the amount of blood loss based on post-op hemoglobin levels.

Regardless, the patient’s attorney moved to exclude the story about concerns over blood loss. Why? The surgeon had never brought it up until trial. The court agreed. And a jury rendered a verdict against the ob-gyn for $484,141. Robinson v. Corr, 2016 WL 1459120 (Miss., April 14, 2016)

This patient had a complication that took months to resolve. Further, the ob-gyn changed the story over time. Those two factors probably did not help his legal outcome.

Here’s what I have learned over time.

  • If a patient clearly understands upfront the risk of likely complications, they are less likely to sue and even less likely to win. This mean real informed consent. Not a 20 page document listing every potential complication under the sun that the patient must read in the holding area in 10 minutes. The more educated the patient is before surgery, the greater the likelihood the patient will be a collaborative partner (as opposed to an adversary) if there is a complication.
  • Be honest, open, and transparent. If you have a complication, don’t sugarcoat it after the procedure. Do what you can to get it diagnosed and fixed quickly. The longer it takes to make the diagnosis, the more likely the patient will sue. This is doubly true if the patient had subjective complaints and they were ‘ignored.” If a patient has to find another surgeon to get the problem fixed (a surgeon you did not refer the patient to), you will not have any control over the narrative. Gasoline might be thrown into the fire. Or that surgeon may be the calm voice of reason. Regardless, you will not have control.
  • If the case is harder than usual (scarring, adhesions, morbid obesity, atypical anatomy), the operative report must reflect that. If the report makes the case sounds humdrum and routine, the patient will appropriately ask why there was a complication. Be careful about using your typical op-report template if you run into problems.
  • Detail in the operative report cuts both ways. If you know in advance the patient is at higher risk for a complication, then the question will be whether you have the background, training, and experience to do such a case. Or should the patient be transferred to an institution better suited to handle such challenges. Be honest with yourself before you cut.

Complications in the operating room are inevitable. But, they do not have to lead to a courtroom. You, the surgeon, do have reasonable amount of control over the outcome.

So, is a suture around the ureter malpractice? What about a clip on the common bile duct?

It depends.

2 responses so far

Apr 22 2016

Doctors Strive to Avoid Being Labeled Outliers – Except When it Comes to Schedule II Drugs

Published by under Healthcare Reform

Every month I receive a letter from my electric company. It shows how much power I am consuming relative to my peers – my neighbors. Studies have shown such data, when presented in a non-confrontational way – can impact behavior. In those studies, total energy consumption went down. In the letter I receive, no allowance is made for square footage of the house. I’m labeled an apparent outlier. A recalcitrant outlier. (I do drive high MPG hybrid, though.)

Doctors occasionally receive letters from insurance companies or healthcare systems highlighting compliance with targeted measures may be outside norms associated with their peers. One example include rates of vaccination for influenza. Such letters have boosted immunization rates among the less compliant.

A recent study looked at whether such non-confrontational letters might impact over-prescribing of Schedule II medications.

The answer is no.

The researchers identified about 1,500 “hyper-prescribers.” These doctors prescribed 400% more than their peers. These prescribers accounted for 10% of the Schedule II prescriptions in Medicare in 2012, but represented only 0.2% of the providers who wrote any prescriptions for Schedule II medications that year.

Half of these doctors (the experimental group) received a letter informing how much the doctor prescribed Schedule II medications compared to their peers.

Half of the doctors (the control group) received no such letter.

The letter said nothing of an impending audit. But, the letters might have served as a subtle reminder of potential consequences, given that anti-fraud investigators use prescribing patterns to identify those who will be audited.

So, what happened?

Nothing.

There was no statistically significant change in prescribing patterns between the two groups.

By mid-2014, 21% of these prescribers were already being investigated for fraud and abuse. They obviously triggered other database alarms.

The authors stated they plan to try again.

This time, they will send multiple letters over time to impress upon them they are being monitored. Further, they plan to alter the language of the letters to emphasize the negative consequences of inappropriate prescribing behavior.

It’s unclear why these letters had no effect. Perhaps they were never opened or, if they were, taken seriously. Further, if a doctor is running a lucrative pill mill, he may not respond to typical carrots and sticks.

Big Data is upon us. Hyper-prescribers of schedule II drugs are being labeled. If you do receive such a letter, it’s probably wise to not ignore it.

5 responses so far

Apr 15 2016

NC Medical Board Disciplines Doctor for a Lease Dispute.

Published by under Healthcare Reform

I can understand why a Medical Board investigates a practice for allegations related to patient safety. I get it when the Board responds to concerns a doctor may be taking advantage of patients sexually. The main purpose of the Medical Board is to protect the public.

What I don’t understand is when a Medical Board stretches its mandate in “protecting the public.”

Case in point, Donovan Dave Dixon, MD.

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11 responses so far

Apr 08 2016

HIPAA Conundrum. War of the Roses After Death.

Published by under Healthcare Reform

Remember the movie War of the Roses.  Kathleen Turner and Michael Douglas play married characters. They hated each other. But, neither wanted to part with their opulent house. So, they stay put. No one moved. They continue to spew hate and back it up with hateful actions.

Recently, a Medical Justice member said they cared for a patient who died. The patient was estranged from his wife. He explicitly stated he did not want his estranged wife to have access to his medical records.

HIPAA is clear, though.

The person who can access a patient’s full record after death is the estate’s executor. The executor steps into the shoes of the deceased. Further, HIPAA applies to dead patients for 50 years.

One exception to a dogmatic interpretation of HIPAA and deceased.

The Privacy Rule permits a covered entity to disclose protected health information about a decedent to a family member, or other person who was involved in the individual’s health care or payment for care prior to the individual’s death, unless doing so is inconsistent with any prior expressed preference of the deceased individual that is known to the covered entity. This may include, depending on the circumstances, disclosures to spouses, parents, children, domestic partners, other relatives, or friends of the decedent, provided the information disclosed is limited to that which is relevant to the person’s involvement in the decedent’s care or payment for care.

So, yes, one can talk to the family about how a patient died unless doing so violates the express wishes of the patient.

But, here, the patient’s estranged wife was the executor. And now she wanted the records. And the deceased had stated she was not to receive the records.

What to do?

Just give her the records under the assumption if this issue was that important to the patient, he would have changed his will and named a different executor? Deny the records and make her obtain a court order?

There is no perfect answer, but, it likely is the former. One is legally obligated to give records to the personal representative/executor of the estate.

Who knows? Maybe the couple made up moments before his death. Maybe the patient only cared about not disclosing his medical records to his estranged wife while he was alive. Maybe he was negligent in revising his will.

Doesn’t matter. The doctor’s office is left to follow the direction of the estate’s executor.

 

 

3 responses so far

Apr 01 2016

Deporting Hospital Patients

Published by under Healthcare Reform

Illegal immigration is now the buzz of the political ball. Candidates are talking about building a wall, rounding up and deporting undocumented immigrants, and its economic ramifications.

What happens when undocumented workers are injured and need long term medical care? What must hospitals do? What do hospitals do?

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5 responses so far

Mar 25 2016

Two Counterintuitive HIPAA Scenarios

Published by under Healthcare Reform

Scenario #1:

Some doctors believe, incorrectly, that if a patient has already disclosed protected health information on the Internet, his doctor can “correct” the record online. In other words, if a patient slams a doctor online, and attaches his name or picture to the review, many doctors believe the toothpaste is out of the tube, and the doctor can tell their side of the story. After all, it was the patient who spilled the beans. The doctor is just making sure the public record is accurate.

Unfortunately, the doctor is not free to respond, if doing so would disclose any protected health information. This includes even acknowledging there is/was a doctor-patient relationship.

The doctor can respond and disclose protected health information if (a) the patient authorizes such a release in writing; or (b) if the disclosure falls under an explicit exception where the patient’s authorization is not required. Unless one of these conditions is met, responding online is risky. If a patient has slammed the doctor online, it is unlikely he will authorize a retort. And most exceptions to requiring the patient’s signed authorization are not triggered by the standard rant.

Scenario #2:

Doctors ARE allowed to disclose protected health information to defend themselves against a lawsuit. It’s only fair. The medical record cannot serve as both a sword and a shield. A patient cannot simultaneously sue a doctor alleging he violated the standard of care and then cry foul when he defends using the medical record.

Here’s one tricky situation.

Occasionally, one treating doctor will cast aspersions on a prior treating doctor. This may rile the patient up. This may lead to the first doctor being sued. The first doctor can use the medical record to defend himself.

What about the second doctor? Can he report on the litigation on his blog? After all, litigation IS a public record.

The short answer is no.

If both doctors have treated this patient, they are covered by HIPAA. The first doctor, the one being sued, can defend against allegations and disclose protected health information.

But, the second doctor, who is not a party to the litigation, is foreclosed from disclosing protected health information without the patient’s authorization. Note: an independent third party who never took care of this patient, could report on the case, because he is not disclosing any protected health information for one of his patients. In this role, the independent third party is more like a journalist.

 

Tricky stuff. Don’t kill the messenger.

2 responses so far

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