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.

Nov 20 2015

Getting Burned By a Patient with a Substance Abuse Problem

Published by under Healthcare Reform

Most surgeons prescribe post-op narcotics to treat pain. The typical plan is a short course of narcotics followed by non-narcotic medication or no medication at all. I am not referring to complex pain or chronic pain. I am talking about a patient who in theory is not on narcotics when they see you, has surgery, and then will be on a week or two of tapered medication.

A plastic surgeon I respect asked me to eyeball a template document he started asking his patients to sign. It states, among other things:

We request your agreement to abide by these guidelines:


  1. We will prescribe narcotic pain medication in a responsible manner to help alleviate pain experienced by our patients as a result of a procedure at our clinic. Unrelated pain, chronic pain and other issues should be managed by a pain management specialist.
  2. No narcotic prescriptions will be replaced if lost or stolen.
  3. No narcotic prescriptions can be refilled by phone, in compliance with state regulations.
  4. All narcotic prescriptions must be printed on tamper-resistant paper and can only be given during normal business hours. This means that adequate planning is important, especially before weekends and holidays.
  5. It is the patient’s responsibility to:
    1. Notify us of any prior history of addiction or drug abuse. This will help us manage your pain more effectively and safely.
    2. Notify us of any prescriptions that you receive from another physician.
    3. Take medications only as prescribed, avoid any other narcotics while taking the prescribed medications, unless clearly communicated and agreed to with your doctor.
    4. Avoid driving or performing any hazardous activity while taking narcotics.
    5. Avoid ingesting alcohol or recreational drugs while taking narcotics.
    6. Notify us promptly of any possible side effects, or if you feel that you are over-medicated or under-medicated.


There are other details in that agreement. But those are the salient points.


At first I thought, what’s the point? Every patient will sign on the dotted line and it will change nothing. He’s not seeing chronic pain patients or managing an addiction practice.


Then I changed my mind.


Imagine a patient with a history of substance abuse comes to your office. Clean now. But, struggled to overcome a serious problem in the past. He says nothing about the history. You operate on the patient. He gets one week of narcotics for the expected post-op pain. Then one more. You never see him again.


Unbeknownst to you, he’s doctor shopping. His habit is back. He overdoses.


The Board starts investigating. The patient’s wife hires an attorney. You’re now in the crosshairs.


The question you never want hear:


“Doctor, did you even ask if the patient had a history of substance abuse?”


If you had such an agreement with the patient, he might have admitted to the history; and the two of you could have figured out a better post-operative plan of action. Or, he might have lied and nothing would have changed – except your answer to the Board and plaintiff’s attorney.

So, I’ve changed my mind. I think such a template does make sense. It’s like a parachute. If you don’t have it when you need it, you’ll never need it again.

3 responses so far

Nov 13 2015

Employer Sued for Alleged Discrimination. Employee Fired for Uncontrollable Farting.

Published by under Healthcare Reform

When the US was founded, is it likely our founding fathers could have anticipated this lawsuit – Dolan v. Case Pork Roll Co.?


Ben Franklin once wrote a letter called Fart Proudly. Franklin was living abroad, serving as Ambassador to France. He opined the Royal Academy of Brussels called for too many scientific papers that focused only on the impractical. In that context, Franklin’s essay argued that more research should be done to improve the odor of human flatulence.

I have perused your late mathematical Prize Question, proposed in lieu of one in Natural Philosophy, for the ensuing year…Permit me then humbly to propose one of that sort for your consideration, and through you, if you approve it, for the serious Enquiry of learned Physicians, Chemists, &c. of this enlightened Age. It is universally well known, that in digesting our common food, there is created or produced in the bowels of human creatures, a great quantity of wind. That the permitting this air to escape and mix with the atmosphere, is usually offensive to the company, from the fetid smell that accompanies it. That all well-bred people therefore, to avoid giving such offence, forcibly restrain the efforts of nature to discharge that wind.

From Wikipedia:

The essay goes on to discuss the way different foods affect the odor of flatulence and to propose scientific testing of farting. Franklin also suggests that scientists work to develop a drug, “holesome and not disagreeable”, which can be mixed with “common Food or Sauces” with the effect of rendering flatulence “not only inoffensive, but agreeable as Perfumes”. The essay ends with a pun saying that compared to the practical applications of this discussion, other sciences are “scarcely worth a FART-HING.”

Franklin thought the Royal Academy was a pompous collection of windbags. His letter was intended to draw attention to their pretentiousness; not to stimulate a new field of inquiry.

Back to the more mundane 21st Century.

Dolan v. Case Pork Roll Co.

Richard Clem worked as comptroller at Case Pork Roll Co. He weighed as much as 420 pounds. He then had gastric bypass surgery. Post-op he suffered from constant flatulence as a side effect of the surgery. According to the lawsuit, Clem experiences “extreme gas and uncontrollable diarrhea” that made him have to “sit on a toilet 24 hours a day.”

His boss had enough of this. Thomas Dolan, the president of Case, claims that Mr. Clem’s seeming inability to control his flatulence and the ensuing aroma—was obviating the scent of pork rolling.

According to the lawsuit, the boss allegedly told the employee’s wife (also an employee of the company) that “This can’t go on. We can’t run an office and have visitors with the odor in the office,” and “We have to do something about Rich.”

So, on February 28, 2014 [the employee] let out his last fart on Case territory—he was fired. The same day his wife quit Case due to all the negativity directed toward her husband. And they lawyered up.

The lawsuit was filed as a violation of the American with Disabilities Act. The question to be resolved is whether the flatulence was a side effect of a medically necessary procedure to curb obesity and its complications. If so, is obesity and its treatment covered under the American with Disabilities Act? And, is there a reasonable accommodation the employer can make so the employee could have functioned?

Apparently, technology has come to the rescue. Shreddies is a flatulence filtering underwear. Activated charcoal cloth is built into the construct. Shreddies’ promotional web site has a diagram showing flatulent odors traversing the activated charcoal cloth, emerging as “odour-free air.” Will Shreddies be considered a “reasonable accommodation” which could have allowed the plaintiff to continue as an employee?

What’s my point with this? There are times an employer will have little choice but to terminate an employee. Before acting impulsively, go through a quick analysis as to whether the firing may lead to a lawsuit including an allegation of discrimination under the American with Disabilities Act. Other analyses need to be performed at the same time. There are many ways to allege discrimination. Run it by your lawyer – hopefully someone skilled in the nuances of employment law.

I wonder if Shreddies is the answer to Ben Franklin’s original call to action. A jury may soon decide.

4 responses so far

Oct 16 2015

One Sentence Can Save You Lots of Time and Prevent Headaches

Published by under Healthcare Reform

Recently, I learned of a surgeon on the west coast who received a “love letter” from an attorney. By love letter, I mean a demand for several hundred thousand dollars.


The surgeon took care of a patient and recommended surgical treatment. The patient did not want any down-time and opted for conservative care, fully understanding the surgeon thought surgery was a better option. Still, the surgeon believed that the patient could try conservative management over time, and if need be, more aggressive treatment could be done down the road.


The patient did not improve.


The attorney’s “love letter” alleged the surgeon should have fixed a minimally displaced fracture acutely in the operating room. The fracture was splinted and followed. The fracture healed with an angular deformity (a deformity that causes no symptoms in most patients).


The patient left the practice and saw another doctor – a surgeon who practiced in a different specialty. The new doctor had limited background, training, and experience in the procedure the original surgeon recommended. In contrast, the original surgeon had extensive experience.


The second surgeon performed the procedure; osteotomy and internal fixation.


The patient had a significant complication and the second surgeon had to re-do the procedure.


Likely, the second surgeon threw the first surgeon under the bus. He likely said something like “if only your first doctor had repaired it properly…you never would have needed more extensive surgery or experienced any complications.” Who knows?


The medical record is sparse regarding the patient’s affirmative choice for conservative care. Had the doctor added one sentence – stating he recommended surgery acutely, but the patient wishes conservative care for the following reason….. – the love letter would not have been sent. If this evolves into a lawsuit and the patient is deposed, he will need answer truthfully about his choice. I don’t see this evolving into a full-throttle lawsuit. But, one sentence added to the record would have eliminated the risk.

6 responses so far

Oct 09 2015

MOC and Your Web Site. How Can They Even be Remotely Connected?

Published by under Healthcare Reform

I am not a fan of Maintenance of Certification (MOC). I think it’s a time-suck, expensive, and does little to inform the public of much that is useful. I say this from the sidelines because my Board certification in neurosurgery was grandfathered. So, I’m one of the lucky ones. For those who were certified after 1999, they receive time limited certificates, and have to pony up every decade.


One colleague, a neurosurgeon, published on his website” “Board certified, November 2003.” On licensing questionnaire, he was asked “Are you Board certified?” He answered: “American Board of Neurological Surgery.”


Well, it looks like he had not taken his MOC. So, technically, the time limited certificate had expired. His website was not updated for 8 months after the time-limited certificate expired.


The Board of Medicine meted out discipline.


The Board listed a number of mitigating factors in limiting its disciplinary action.

  1. Respondent is still a member of the American Association of Neurological Surgeons (AANS) and is taking examinations for his re-certification within the next few months.
  2. Respondent did not intentionally falsely advertise his Board certification.
  3. Respondent immediately removed the representations regarding his board certification when they were called to his attention.
  4. Respondent has cooperated in the investigation of the allegations related to this Agreed Order. Respondent neither admits nor denies the information given above. To avoid further investigation, hearings, and the expense and inconvenience of litigation, Respondent agrees to the entry of this Agreed Order and to comply with its terms and conditions.


The outcome certainly could have been worse.


  1. Respondent shall correct the advertisement and representations m all websites, including those websites for which he controls the content, regarding his board certification(s) within two weeks of the date of the entry of this Order. Respondent shall notify the Compliance Department in writing within 10 days if he experiences any difficulty in making those corrections.
  2. Within one year from the date of the entry of this Order, Respondent shall enroll in and successfully complete a total of eight hours of continuing medical education (“CME”), approved for Category I credits by the American Medical Association, in the topic of ethics or risk management, approved in writing in advance by the Executive Director or their designee. To obtain approval for a course, Respondent shall submit in writing to the Compliance Division of the Board information on the course, to include at least a reasonably detailed description of the course content and faculty, as well as the course location and dates of instruction. Respondent shall submit documentation of attendance and successful completion of this requirement to the Compliance Division of the Board on or before the expiration of the time limit set forth for completion of the course. The CME requirements set forth in this paragraph shall be in addition to all other CME required for licensure maintenance.
  3. At all times while Respondent is under the terms of this Order, Respondent shall give a copy of this Order to all hospitals, nursing homes, treatment facilities, and other health care entities where Respondent has privileges, has pending an application for privileges, applies for privileges, or otherwise practices. Within 30 days of being first contacted by the Compliance Division of the Board following entry of this Order, Respondent shall provide to the Compliance Division of the Board.


Lesson: If you are Board certified, and choose not to take MOC (or if you fail MOC), and you have a time-limited certificate that has expired, do a quick review of your website and marketing material. Also, pay attention to how you answer questions on license renewals and re-credentialing for privileges. An innocent oversight can make the pain of MOC even worse.


Just saying.

12 responses so far

Oct 02 2015

Notes from a Plaintiff’s Attorney: Dealing with malpractice litigation concerns

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. Finally, these articles are not intended as specific legal advice. For that, please consult with attorney licensed to practice in your state.


A recent poll on the physician networking site Sermo asked an interesting question: What stresses you the most about a lawsuit?


1,927 doctors responded. 37% feared losing the case. 33% thought that they would end up second-guessing their abilities. 25% focused on being reported to the National Practitioner Data Bank. 5% thought that their peers would criticize them.

Continue Reading »

4 responses so far

Sep 18 2015

What “a jury of your peers” really means

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. Finally, these articles are not intended as specific legal advice. For that, please consult with an attorney licensed to practice in your state.


A surgeon sits at the defense table on the first day of her malpractice trial. Looking at a jury that includes a retired data entry clerk, a postal worker, a college student, a housewife, a motorcycle mechanic and an accountant – but no doctors – she whispers to her attorney, “This is not a jury of my peers!”

An internist stands next to his attorney as the verdict in his malpractice case is read out. A jury that included a kindergarten teacher, a FedEx truck driver, an unemployed man, a hair stylist, a librarian and an airline machinist – but no doctors – has just found substantial liability. He asks his attorney, “Why can’t we appeal? What about my constitutional right to a jury of my peers?”

Both doctors are certain that they are right, but both are actually mistaken about the law.

A “jury of your peers” is one of the least understood legal concepts, so let’s take a look at it.

Like “separation of church and state,” it is a phrase that appears nowhere in the Constitution.

The Constitution addresses juries in just three places: Article II provides that “the trial of all crimes, except in cases of impeachment, shall be by jury”, the 6th Amendment provides for jury trials in criminal cases, and the 7th Amendment preserves the right to a jury in a civil trial with damages above a minimum value.

Who actually sits on those juries is barely touched upon. Here is what the 6th Amendment requires: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.

The key word here is “impartial.”

The general qualifier is that the jury be local, to prevent either side shipping in jurors who would favor their side – while excluding those who best know a given area. But the only qualifier pertaining specifically to the decision-making function of the jury – why the jurors are there – is that it must be impartial.

The Founders could have written in specifics about juror qualifications, including a requirement that they be educated to a certain degree, members of the same profession as the defendant, or have personal knowledge about the matter being tried. They didn’t. They only required that cases proceed on a foothold of fairness.

The answer to what “peer” was intended to mean is any ordinary citizen who can make a fair judgment.

Now, our two defendant doctors might counter that in the 18th century the jury pool was already very limited, mostly to white men who owned property, and so excluded many community members. But, back then, many property-owning white men were not literate at all or barely so. Yet there was no requirement that a juror meet any educational test to sit on any jury, including one that could involve complicated issues.

That a jury should be a sampling of the community is best demonstrated by how it may not be limited. This goes back to the concept that litigants have the right to be judged by a jury using nondiscriminatory criteria and processes, something that cannot occur if there is systematic exclusion of groups that make up a community’s population.

If you ever watched Law and Order you probably already know that during voir dire (the questioning of jurors during jury selection) attorneys cannot use peremptory challenges (challenges to jurors for no reason at all) solely to keep a given race or gender off the jury. But that is the floor and courts are increasingly raising the ceiling.

For example, in a 2010 case in New York, the judge held that a jury of one’s peers means a “broad spectrum of people” in the county. The judge found it was unconstitutional to challenge a juror simply because he was a hunter in a case in which the defendant was accused of shooting another hunter. The defendant claimed the shooting was accidental. Because the prosecutor removed three jurors who hunted from the jury panel, the judge declared a mistrial based on the systematic exclusion of a class of persons that represented the defendant’s peers- not because they were hunters- but because they were community members.

This does not mean that a hunter gets hunters guaranteed on their jury – it means that if hunters are members of the community – they cannot be excluded just because they are hunters.

To our two defendant doctors, this means they are not guaranteed that a surgeon or an internist, or any doctor at all, be seated on their jury. But it also means that if the plaintiff tried to bar all doctors solely because they were doctors that would be impermissible.

Now, you may say “But doctors usually get excluded from medical malpractices cases.”

The answer is that they are not excluded because they are doctors – they are excluded because being doctors presents a complicating issue. Doctors likely honestly state during voir dire that they could not exclude what they already know about medicine from their judgment and base their verdict solely on the facts as presented in the case.

Neither the plaintiff nor the defense wants an “unsworn expert” in the jury room. Neither side wants such an “unsworn expert” spinning their own version of the facts and perceived as an opinion leader by other jurors and. So, the doctor is discharged from jury duty for actual cause, not peremptorily just because he holds a medical degree.

So where does this leave us?

Jury selection now focuses on getting a cross-section of a community. Such members may not be a litigant’s professional or socio-economic “peers.” However, courts have responded to that latter point by holding that a litigant is not entitled to a jury that is composed of his or her own group or one tailored to fit the particular matter to be tried, but only to one capable of being fair.

In summary: A “jury of one’s peers” requires a cross-section of the community capable of hearing the case fairly. Defendants in specialized professions are not guaranteed a panel of similar professionals but members of that profession cannot be excluded solely because of that.


*** Medical Justice Notes: [The vast majority of physician defendants would probably want to have a physician serve on their jury. The law does not mandate that outcome, though.]

3 responses so far

Next »