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.

Jun 10 2016

Those Damn Jackson-Pratt Drains

Published by under Healthcare Reform

As Shakespeare once posited: “To drain or not to drain. That is this the question.”

Perhaps it wasn’t him.

Surgeon preference typically dictates whether a drain makes sense. Keeping a hematoma from forming means avoiding one additional nidus of infection. But, a drain (even a closed drain), can also serve as a nidus of infection. I know the pros and cons do not end there. But, I want to change direction.

I received a call from a plastic surgeon in the Northeast. He placed implants in a patient. He also placed a Jackson Pratt drain. He left town for a long weekend. His nurse, who had removed many Jackson Pratt drains, tried to remove this drain. Seemed a little stuck, but, with a little added pressure, only some of the drain came out. The rest never slid out. It was left embedded in the wound, adjacent to the implant. It’s unclear whether a stray suture caught the drain. Or whether the drain was kinked and fractured at a weak point. Or some other hypothesis. But what was clear was that a piece of silastic remained in the patient.

Many surgeons will say that the rest of the drain needs to come out.

But, going back in means opening the wound, and exposing the implant to potential infection.

There’s risk of infection with going back in. There’s risk of infection with leaving the wound alone.

Part of the calculus becomes a matter of optics. Patients expect that we will not leave needles, drains, or surgical tools inside of them. But, we don’t chase all bullets in trauma patients just to get a clean X-ray.

A real risk-benefit analysis must look at the added risk of fishing out the fragment.

No doctor wants to be that defendant explaining why a drain fragment was left in. But, if a patient experiences an added complication just because of the optics, have their interests been served.

There’s no perfect answer to this dilemma.

What do you think?

13 responses so far

Jun 03 2016

Plastic Surgeons as Psychiatrists.

Published by under Healthcare Reform

Many years ago, a mentor taught me a surgeon spends an entire residency learning how to operate. Then the surgeon spends the rest of one’s career learning how NOT to operate.

This includes when not to operate.

A plastic surgeon called me recently, and described a recent patient visit. The woman, in her mid-40’s, confessed her husband just left her. She was starting over. She wanted to look better as she re-entered the dating scene – a scene she abandoned many years earlier.

The surgeon asked her what she had in mind.

Most of his patients have detailed instructions in mind when they meet. They bring pictures. They have expectations. They may be unrealistic expectations, but, in their brain, there’s some roadmap.

In the surgeon’s opinion, the patient already looked quite good. And there was nothing in particular that seemed to be bothering her. The only thing driving her was the motivation to “tune up” for the next phase of her life.

The surgeon made a good call. He said it sounded as if she was early in the journey. If she believed that plastic surgery made sense, she should first become educated on the topic. He referred her to reputable web sites, and told her how to distinguish between hype and reality. He said she could follow up down the road.

Working with pre-educated patients makes the doctor-patient relationship more of a collaboration.

The easier, and likely more near-term lucrative path, would have been for the surgeon to subconsciously “impose” his beliefs on the patient. He could have suggested any number of procedures. Who among us wouldn’t benefit from some tuning up?

But, the patient’s angst was fueled by her recent break-up. She likely needed more time to heal. If plastic surgery was in the cards, she needed to better understand the risks, benefits, and options.

There’s a time and a place for everything. This time, the plastic surgeon functioned as a “psychiatrist” by demonstrating restraint and compassion. It was a good call.

What do you think?

12 responses so far

May 13 2016

Simple Procedures: An Occasional Multi-Million Dollar Lawsuit

Published by under Healthcare Reform

We often worry about complications from difficult procedures. What might happen if a patient has anesthesia for 12 hours. Or, operating on a redo-redo cervical spine. And we’re right to be cautious.

But, even simple things can be fraught with hazards; hazards that are easily prevented.

Continue Reading »

6 responses so far

May 06 2016

Credentialing and Answering Touchy Questions

Published by under Healthcare Reform

I received a call from a general surgeon in California. He was re-credentialing for hospital privileges. He was re-credentialing for his in-network status with insurance companies. And, renewing his medical license was around the corner.

Credentialing questions have gotten longer and more detailed.

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3 responses so far

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.

5 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?


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.

6 responses so far

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