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Jul 31 2015

Finally: An End to Malpractice Litigation?

Published by under Healthcare Reform

Published in Medscape: March 05, 2015 (reprinted with permission)

A Sensible Alternative to Our Broken System?

As every physician knows, our tort system is broken. Various solutions have been suggested over the years, only to fade away. But now, a promising new system for patient compensation in cases of medical error is being proposed in two states: Georgia and Florida. It makes sense for doctors and patients alike, and for our healthcare system as a whole.

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7 responses so far

Jul 24 2015

Dropping the Ball and Getting Away With It.

Published by under Healthcare Reform

Cases do not normally end like this.


A cardiologist implanted a pacemaker. He ordered a follow-up check X-ray to check the leads and make sure there were no complications. A second cardiologist checked the films and discharged the patient from the hospital. The radiologist’s report noted the placement of the pacemaker leads. It also noted a potential lung nodule and recommended follow-up X-rays.


Four months later, the patient returned to the original cardiologist’s office. The cardiologist never shared any information about the lung nodule. No follow-up chest X-ray was ordered.


One year later, the patient was diagnosed with lung cancer. He died 23 months after the pacemaker was placed.


The man’s wife sued the cardiologists for medical negligence. It argued that failure to relay the radiologist’s message resulted in a “loss of chance” of survival for her husband. The wife identified an oncologist as the sole medical expert.


The cardiologists filed for summary judgment. They argued that Alaska law mandates an expert must be board certified in the same specialty as the defendant. Here, the defendants were cardiologists. The expert was an oncologist. The cardiologists also submitted an affidavit certifying they met the standard of care for cardiologists.


The affidavit stated the cardiologist who reviewed of the x-ray was not required to perform a thorough radiological evaluation of the man’s overall health. The cardiologist who performed the surgery explained that he did not have a duty to go back through the entire chart and check all other care providers’ medical records.


The chest x-ray review by the other cardiologist had already confirmed the pacemaker implantation did not have complications. The purpose of the follow-up visit was to check the pacemaker, discuss chest pain, and discuss the results of a nuclear stress test.


The Supreme Court of Alaska ruled in favor of the cardiologists.


Here, the radiologist should have picked up the phone and alerted the ordering physician of the unusual finding and need for follow-up. I do not know if the radiologist was also sued; but typically, every person whose name was on such a chart would be sued and someone would be writing a check for delay in diagnosis.


Cases do not normally end like this.


Hagen v. Strobel, 2015 WL 4167381 (Alaska, Jul 10, 2015)

12 responses so far

Jul 17 2015

Do No Harm: Dr. John Marsh’s Excellent Book

Published by under Healthcare Reform

I just finished Do No Harm, a book authored by a freshly retired British neurosurgeon. If you’re not maxed out on your summer reading list, add this one.

In one sense, the book is a bit depressing. Dr. Marsh works for the National Health Service and chronicles more defeats than victories. He writes about his complications. The text is raw. His confessions authentic.

Neurosurgery is hard. And many patients have difficult conditions. Some of these conditions will progress regardless of the treatment. In such cases, doing little or nothing may make the most sense. That is one of Dr. Marsh’s primary points – a point echoed by Dr. Atul Gawande in his book Being Mortal.

When a patient has surgery for some condition, he is taking on near-term risk for future benefit. But, if the future benefit is marginal, then near-term risk makes little sense. As a neurosurgeon with 30 years of experience, Dr. Marsh explained he was more aggressive earlier in his career. But, long term follow-up prodded him to question the wisdom of his early choices.

As he matured, he would often talk patients out of surgery. He might leave small pieces of tumor next to vital structures (to avoid potential harm). Don’t let perfect be the enemy of the good. These are smart choices made by someone who has appropriately checked his ego at the door.

He also described the challenges of teaching residents. Dr. Marsh took care of one patient whose passion was cycling. The patient had a large disc herniation causing unrelenting pain; pain that did not improve with conservative treatment. Surgery was offered and the patient agreed. While Dr. Marsh was putting out a fire with an administrative bureaucrat, he tasked his resident with starting the case. He believed his resident was just opening the wound.

Turns out the resident was much further along. Dr. Marsh poked his head in and saw clear fluid and a long piece of spaghetti. The resident was lost and had opened the dura causing a CSF leak. Further, that piece of spaghetti was a sliced nerve root. Dr. Marsh quickly scrubbed in and did what he could. Post-op the patient had an expected foot drop which likely cut short his cycling passion. Dr. Marsh did not say what happened to the patient long-term. He lamented that while the resident made the error, he alone would bear the burden of responsibility. He had to speak to the patient. He had to speak to the family. He would be the person to see this patient in follow-up. All true. Residents move on. The attending stays put.

Finally, the book quotes a doctor stating there are only two compelling reasons to be a doctor. Over your career, you’ll have a collection of great stories. And you’ll know from whom to seek care when you become ill.

By the end of the book, I had hoped Dr. Marsh would have given more reasons. After 30 years, surely there must have been more.

5 responses so far

Jun 26 2015

Foreign Bodies Left in the Body, Oh My…

Published by under Healthcare Reform

Some unintended foreign bodies left post-op in the body never create any problems. Some are associated with continued risk. And the law is all over the place in terms of how long a surgeon or facility is liable, if at all.
A recent New York case illustrates this point.
In New York, an adult has 2 ½ years from the date of the negligent event to initiate a medical malpractice case; an infant has 10 years. Now for the foreign body exception. The foreign object exception provides that such a case may be commenced within one year of the date of this discovery. This naturally extends the typical statute of limitations. A time frame limited to one year a patient discovers a foreign body could be decades after the original procedure.
A three year old underwent surgery to correct a congenital heart malformation. Intra-op, a catheter was placed in the left atrium to record pressures. Naturally, the patient had a collection of other lines that were placed and remained in-situ post-op. Three days post-op, while still in the ICU, lines were removed. The nursing notes stated the left atrial line possibly broke off and it was possible a portion remained in the body. Eight days later the boy was discharged from the hospital.
At age 18, he had a pacemaker inserted.
One year later he had valve replacement (with pig’s valve).
One year later, the patient suffered an embolic stroke. An echocardiogram revealed “small mobile filamentous masses” in the heart – “possibly suture material though clots could not be ruled out.”
At age 25, the patient suffered two transient ischemic attacks. His pacemaker battery was replaced.
An echocardiogram done at the time the battery was replaced revealed a left atrial foreign body. (Note, this was 22 years after his original surgery.) Exploratory surgery was performed and plastic tubing was identified and removed. The pathologist documented the catheter was 0.1 cm in diameter and 12 cm. in length.
The inevitable lawsuit caught three hospitals and five doctors in its net.
The defendants tried to defend arguing that the lawsuit was well beyond the statute of limitations. They argued that the foreign body exception did not apply because of how the “foreign body” was defined by New York law. The foreign object exception does not apply to “chemical compounds, fixation devices, or prosthetic aids or devices.” They argued that the catheter was a “fixation device”, not a foreign object, because it was intentionally placed inside the boy during the operation and served a continuing medical purpose beyond the procedure itself.
That’s creative lawyering.
The plaintiff argued that the catheters were placed to permit monitoring of pressures for management of fluid replacement, blood pressure, and prevention and/or treatment of congestive heart failure. The plaintiff continued the catheters had no treatment function, but rather, simply served as a conduit for information about the cardiovascular system. The young man’s expert concluded the catheters were not fixative devices because they did not secure body tissues one to another, or at least provide support to some structure within the body on either a permanent or temporary basis.
The patient lost. The court reasoned that the catheter was not a foreign object (and not entitled to lengthening the core statute of limitations) because it was left in the boy’s body deliberately with a continuing medical purpose.
The case was appealed.
No surprise.
The Appellate Division affirmed employing slightly different reasoning. The appellate court concluded that the catheter, which was deliberately inserted into the boy’s heart to monitor atrial pressure, was a fixation device within the meaning of the statute.
Onward to the highest Court of Appeals in NY. It reversed.
The court concluded that tangible items, such as clamps, scalpels, and sponges, introduced into a patient’s body solely to carry out or facilitate a surgical procedure are indeed “foreign objects” if left behind.
And, yes, fixation devices are not considered foreign objects. A failure to timely remove a fixation device (such as pedicle screws) does not transform it into a foreign object. Every fixation device is intentionally placed for a continuing (even if temporary) treatment purpose, but it does not follow that everything that is intentionally placed for a continuing treatment purpose is a fixation device.
The court reasoned that the catheter inserted in the patient’s left atrium was not a “fixation device.” It noted the catheter performed no securing or supporting role during or after surgery. The catheter was placed for an instrumental purpose, specifically, to allow medical personnel to monitor the boy’s atrial pressure. The catheter was analogous to tangible items like clamps introduced into a patient’s body solely to carry out a surgical procedure. Medical personnel did not intend to leave any tubing in the boy’s heart. The catheter remained in the boy’s body a few days after surgery, but not for post-surgery healing, only monitoring. The retained catheter fragment served no purpose. The court concluded that the boy left the hospital after an operation with therapeutically useless and potentially dangerous surgical paraphernalia lodged in his body.
The case was sent back down to the lower court to rule on the merits of claims of negligence.
Yes, a retained catheter is not a fixation device.
Walton v. Strong Mem’l Hosp., 2015 WL 3593821 (N.Y. June 10, 2015)

3 responses so far

Jun 19 2015

Notes from a Plaintiff’s Attorney: Avoiding liability in retention of medical records

Published by under Healthcare Reform

We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.


As we move to paperless practices, the problem of retaining physical records will be less relevant. But for at least the next decade doctors who are closing their practices must understand what to do with bulky patient records.


Here, physicians faced with this unwelcome burden are tempted to cut corners, a choice that carries real liability issues.

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Jun 12 2015

Personality Profile and Specialty Choice

Published by under Healthcare Reform


I’ve often wondered whether medical students are attracted to a particular specialty because of their personality type; or whether their personality adjusts and evolves based on their specialty choice.


The answer is it’s probably a bit of both.


One academic medical school website delved a little deeper into the question. They noted that surgeons, for example, are stereotyped as dominant, aggressive, uninhibited. Formal Myers-Briggs personality testing – which characterizes personalities into 1 of 16 profiles (more on that in a bit) noted surgeons were more extroverted, practical, social, competitive, and structured than those in “controllable lifestyle specialties.”[1] Surgeons were less creative.


Controllable lifestyle specialties were more introverted and less conforming than surgeons.


Primary care had the most diversity in personality type.


One medical school in Saudi Arabia (King Saud bin Abdulaziz University for Health Sciences) publishes “Guide for Specialty Selection Based on Personality Type.


There are many crucial factors to take into consideration when choosing a medical specialty. One of the most unifying variables, ranking at the top of the list, is a good personality match between the student and the specialty. Unfortunately, the majority of medical students do not realize the importance of matching their personality types and the medical specialties they are interested in. In addition, the bulk of medical students’ time is spent on lectures, studying and clinical work, as a result most students do not have time to spend on thinking about their own personality type. But at some point during medical school, the student should take some time to assess his values, character, and temperament in an honest way.

There are many tools to determine the personality type but we will discuss here the most popular and widely used psychological test in the world; the Myers-Briggs Type Indicator (MBTI).


In Myers-Briggs testing, 4 dimensions are evaluated. Each subject has one of two elements.


  Dimensions Elements
1 Favorite World Extroversion (E) or Introversion (I)
2 Information Sensing (S) or iNtuition (N)
3 Decision Thinking (T) or Feeling (F)
4 Structure Judgment (J) or Perception (P)


For Favorite world, do you prefer to focus on the outer world or your own world?


For Information, do you concentrate on what can be seen, heard, felt, smelled, or tasted? Or do you naturally read between the lines and look for the meaning in all things?


For Decision, how do you make a decision, and based on what? Do you prefer to make decisions using an impersonal approach; making decisions that make logical sense? Or do you prefer to make decisions based on personal values?


Finally, for Structure, what type of lifestyle do you prefer? Getting things decided or stay open for new options?


The formal Myers-Briggs instrument includes 93 forced choice questions. Forced choice means the subject has to choose one of two possible answers to each question. Example questions include

  1. I am most comfortable being (a) spontaneous; or (b) a planner
  2. Change for me is (a) difficult; or (b) easy.
  3. I prefer to work (a) alone; or (b) in a team.


While it’s probably a stretch to pigeonhole personality into one of 16 types, here they are:




Here is the abridged list of specialties the Saudi Arabian medical school recommended based on personality type:





What do you think? If you’ve been tested with Myers-Briggs survey, does the list conform to the specialty you chose?

[1] Controllable lifestyle specialties were defined as anesthesiology, dermatology, emergency medicine, ophthalmology, pathology, psychiatry, and radiology.

8 responses so far

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