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Aug 08 2014

The Story of the Make a Wish Foundation

Published by under Healthcare Reform

If you’re like me, you’ve certainly heard of the Make a Wish Foundation.

 

What I did NOT know was the story of the man behind the Foundation – who he is and why he started it.

 

The man is Frank Shankwitz. He was a Arizona Highway Patrol Officer. Frank built the foundation from his heart, supporting himself and his family on his salary as an Arizona Highway Patrol Officer. He didn’t take a salary at Make-A-Wish because he wanted to ensure that every dollar contributed to the foundation went to the kids.

 

His Foundation has touched the lives of many children struggling with terminal conditions – as well as their families. The organization pays for wishes of children who are dying.

 

Someone recently asked, “Frank, after granting so many children’s wishes, what is your wish?”

 

His answer. ”I would like to have my story told in a way that I could share it with my grandkids, so they could see that through our efforts, we made the world a little bit brighter.”

 

A documentary is being filmed about Frank’s life – so his story can be told.

 

The producer of the movie works down the hall from me. I knew nothing about this project until today. It’s being funded on the crowdfunding site – Indiegogo. I just donated. If the story moves you, please jump in. Any amount will help – whether it’s $1,000 or $1. This is Frank’s wish.

 

The link describing the project can be found at: http://igg.me/at/wishman/x/3380246

3 responses so far

Aug 01 2014

Red Flag City

Published by under Healthcare Reform

A plastic surgeon called me recently. He routinely examines his female patients with a female chaperone in the room. This is a good idea. Make that – a great idea. While it’s not common to be accused of inappropriate sexual contact, the accusation does occasionally happen. Then, it’s he said, she said. Write a big check.

 

This patient said she did NOT want any such chaperone in the room as it would create “negative female energy.” Huh?

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15 responses so far

Jul 25 2014

Prescribing opioids – Navigating the minefields

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.

Treating patients in pain with opioids creates serious legal quandaries for doctors.

A 2010 study (based on the American Society of Anesthesiologists Closed Claims Database) found that malpractice claims related to chronic non-cancer pain management primarily involved patients with a history of risk behaviors.

The study also found that death was the most common trigger of these claims.

Prescribing opioids causes a conflict. No doctor wants to undertreat the patient in pain. No doctor one wants the excess liability created by patients who are addicts, criminals, or a complex mishmash of unrelenting pain issues and co-morbidities.

On the other hand, that study also found that 59% of claims were grounded in physician mismanagement, either on its own or compounding a patient risk factor.

 

This means doctors still control the legal destiny of these cases. Steps can be taken to reduce the physician’s risk of being prosecuted as a “pill mill” or being held responsible for the dangerous or felonious use of the medication by the patient.

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5 responses so far

Jul 11 2014

Not on call. Just finished a large glass of wine. The ER calls. What to do?

Published by under Healthcare Reform

Most physicians wake up every day intending to do the best possible job and help their patients. They work long hours, sacrifice a normal family life, and don’t always receive a thank-you note.

 

Digest the following hypothetical.

 

You and your partner are the only neurosurgeons for a small community of 50,000 people. The draw area is larger, say 250,000. The closest major metro area is 80 miles away. And that city has a medical school, teaching hospitals, and full service trauma treatment.

 

You and your partner alternate call for both the practice and the ER.

 

Your partner is on call.

 

You’ve had a long week, and are ready to kick back. In anticipation of the weekend, you just finished a large glass of Cabernet. Yum.

 

The ER calls and you pick up the phone. You didn’t have to. But you did.

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26 responses so far

Jul 04 2014

Agreements to allow a doctor to respond to a patient’s untruthful online post.

Published by under Healthcare Reform

Recently, a doctor asked our thoughts on whether his standard HIPAA Notices of Privacy Practices could be amended to allow him to disclose protected health information online “to set the record straight.”

 

His goal was not to debate a patient’s opinion. Rather, he wanted to be able to refute factually inaccurate online statements without having to resort to a defamation lawsuit to achieve that goal.

 

HIPAA and state privacy laws are rather strict. Unless a particular fact pattern falls into a defined exception, HIPAA and state privacy laws do NOT allow for release of protected health information unless the patient provides explicit permission. Correcting a factually inaccurate online statement does not fall under such an exception. Doctors who cavalierly respond and “set the record straight” by revealing protected health information without such permission are engaging in a high risk activity.

 

So, back to the original question. Can an agreement be penned which preemptively grants the doctor permission to respond to fictional posts?

 

Perhaps. But, there are a number of caveats.

 

First, HIPAA Notice of Privacy Practices is not really an agreement, per se. It is a disclosure of what a practice must do to conform to HIPAA. In contrast, an agreement is a two-sided meeting of the minds. Each side gives. Each side gets. So, if the doctor wants the patient to provide permission to respond online, it probably needs to be separate from the standard HIPAA Notice of Privacy Practices.

 

Next, an agreement (a contract) must have certain elements to be enforceable. It must contain “consideration.” Each side must get something out of the deal. An agreement which only allows the doctor to respond in public would not, on the surface, provide the patient with any additional benefit. One potential benefit which might sidestep this shortcoming would be for the doctor to waive his right to sue for defamation. If such consideration is embedded into an agreement, the doctor would use the public forum as his full and total remedy for a fictional post. The doctor would be waiving his right to sue. This, arguably, is a tangible benefit to the patient.

 

There are other details that need attention for an agreement to be enforceable. It cannot be unconscionable. The patient would need to be fully aware of the terms. Burying such a term in tiny print legalese would not pass the sniff test. Drawing attention to the terms in bold print within a separate document would get closer to passing that test.

 

Next, the agreement must comport with the law. The HIPAA statute allows a patient to withdraw consent previously provided to release protected health information. So, a patient might give consent today, have a procedure done, and then withdraw that consent a week later. If that happens, the doctor would have to honor the patient’s request. He would not be able to respond publicly.

 

What if the patient withdraws consent after the doctor has already responded publicly to a fictional post? This is a bit trickier. Certainly, the doctor would be foreclosed from responding further. Arguably, the doctor would also be obliged to remove his response, if it were feasible and practical. Of course, it’s hard to put the toothpaste back in the tube. If a response goes up on a site whose written policy is to make such posts permanent, then you have no practical way to remove that response. But, if you have the means to remove the response to the post, you likely will have to – to conform to HIPAA.

 

Next, what happens if you are not 100% sure the patient posted the review with factual misstatements. You would want to err on the side of caution. A patient’s family member or friend might have penned the post. If so, you would not have the patient’s permission to respond.

 

Finally, what about the details of a response? HIPAA states that if protected health information is disclosed, the least amount of information should be disclosed to address the stated goal. So, if patient alleges online she developed a post-op infection, and the facts are that the patient had an allergic reaction to adhesive tape, then that pithy nugget is all that could be disclosed. Additional facts, such as the patient having a history of alcohol abuse and a borderline personality disorder, for example, could not be posted.

 

This analysis is a long-winded way of stating that such an agreement might be challenging to enforce; and, if used, would need to be used cautiously. That said, there should be better ways to set the record straight than having to file a lawsuit. If a doctor wants clarity in whether such a pioneering agreement complies with HIPAA, the best way to achieve that certainty is to ask HHS directly. Remember, pioneers take the arrows.

9 responses so far

Jun 27 2014

Can a Board of Medicine Discipline a Doctor for Participating in State Sanctioned Execution?

Published by under Healthcare Reform

Botched executions are in the news again.

 

The vast majority of states that allow for state sanctioned death penalty perform the execution via a three drug protocol.

 

The first drug is an anesthetic – such as propofol or a barbiturate.

 

The second drug is a neuromuscular paralytic agent.

 

The final drug is designed to stop the inmate’s heart (typically a solution of KCl).

 

If an inmate is not properly anesthetized, the second and third drugs cause conscious suffocation and intractable pain. States do not dispute the argument that an unanesthetized inmate exposed only to the second and third drugs in the three drug protocol would constitute Cruel and Unusual Punishment under the 8th Amendment.

 

Accordingly, lawyers for death row inmates have taken the position that states using the three drug protocol must employ the services of trained medical personnel for anesthesia. If states do not want to use the three drug protocol, the lawyers argue, they must use a different protocol.

 

The American Medical Association and the American Society of Anesthesiologists embrace the position that physician participation in state sanctioned executions is unethical. Even the Society of Correctional Physicians have opined the “the correctional health professional shall … not be involved in any aspect of execution of the death penalty.” The most a voluntary professional organizations could do to enforce its code of ethics would be to sanction the doctor. But, the doctor would still have a license to practice medicine.

 

Some anti-death penalty advocates have pushed various Boards of Medicine to discipline doctors who participate in executions. If these advocates had succeeded, participating doctors could have lost their license and be unable to practice medicine. In 2005, Dr. Arthur Zitrin filed a claim with the Georgia State Board of Composite Examiners. The Board refused to open an investigation. Zitrin then sued in state court, seeking a declaratory judgment that Georgia prohibit physicians from participating in public executions. The trial judge shut the case down quickly. He asked the attorney for Dr. Zitrin:”How many Georgia physicians belong to the AMA? I’d say less than a half. And you want to incorporate an ethical opinion from the AMA into Georgia law?” The case was appealed and the outcome was affirmed. The result “guarantee[d] that no physician [in Georgia] will be subject to disciplinary proceedings as a result of his or her participation in an execution.”

 

In California, state law authorized physician participation in executions. Nonetheless, in 1996, a group of doctors sued the state hoping for a declaration that physicians participating in such executions lose their licenses under state law. The appellate court ruled against the anti-death penalty advocates. It noted “surely the Legislature could not have expressly and implicitly provided for physician involvement in executions, and simultaneously subjected participating physicians to discipline or other legal sanctions from engaging in lawful conduct.’

 

 

Finally, the North Carolina Medical Board pre-emptively expressed a will to discipline doctors involved in executions. It issued a statement in 2007 warning such doctors may be the subject of disciplinary action. The Department of Corrections sued and the case percolated to the North Carolina Supreme Court. State law required physicians participate in such executions. The Supreme Court noted that the state legislature wrote both the state death penalty law and the Medical Practice Act which created the Medical Board. “To allow [the Medical Board] to discipline its licensees for mere participation would elevate the created Medical Board over the creator General Assembly.”

 

In state courts which have addressed the issue, the outcome has been consistent. If healthcare personnel are mandated by law to oversee state sanctioned executions, the State Medical Board is not empowered to discipline the doctor for mere participation.

Some state legislatures have gone one step further, not leaving the issue to judicial interpretation. Some states have created “safe harbors” explicitly preventing the state Medical Board from sanctioning doctors who participate in executions. Illinois was among the first states to grant this immunity to physicians. The legislature enacted the shield law in response to a complaint asking the Illinois Medical Board discipline those doctors willing to participate in the execution of John Wayne Gacy, the mass murderer. Gacy lured victims to his house by force or deception and murdered by either asphyxiation / strangulation with a tourniquet. Gacy buried 26 of his victims in the crawl space of his home. Gacy became known as the “Killer Clown” due to his charitable services at fundraising events, parades and children’s parties where he would dress as “Pogo the Clown.”

Doctors have given various reasons for participating. And such doctors believe their actions conform to general medical ethical principles. One doctor, Dr. Carlo Musso, says he feels an obligation not to abandon inmates in the final moments of life. He explained,”[T]his is an end-of-life issue, just as with any other terminal disease. It just happens that it involves a legal process instead of a medical process. [A death penalty] patient is no different from a patient dying of cancer – except his cancer is a court order.”

Dr. Kenneth Baum noted: “Condemned death row inmates are, for all practical purposes, terminally ill patients, albeit under a nontraditional definition of the term, and deserve to be treated as such.” He continued, “[t]o desert these individuals in their most vulnerable hour would be antithetical to the beneficent ideals of medical practice.”

In sum, if state law mandates a doctor participate in executions, the state Board of Medicine generally cannot discipline a doctor for following the law. More detailed discussion of this issue can be found in an excellent review article by Ty Alper: The Role of State Medical Boards in Regulating Participating in Executions

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