A jury in Jacksonville, Florida entered a $178 million judgment against physicians and an HCA owned hospital for a gastric bypass procedure that went horribly awry.

In 2007 following laparoscopic gastric bypass surgery, the patient, Clay Chandler, suffered respiratory failure and was admitted to critical care. He experienced a perforated bowel which required additional surgery and was in a comatose state for several weeks.  He presented at trial with an inability to walk, feed himself, speak intelligently and was blind.

The plaintiffs introduced evidence that the Chandler’s surgeon did not meet the standards of the American Society of Bariatric Surgery Centers of Excellence. This was the designation at the HCA facility where Chandler underwent his initial bypass surgery. The plaintiff’s attorney claimed that Chandler was fraudulently informed as to his surgeons experience in performing bariatric procedures. Apparently, the jury agreed with the plaintiff’s position.

The jury verdict of $178 million was so large as to attract the attention of the Wall Street Journal. Reports indicate that HCA plans to appeal the judgment. Despite the fact that this case has been pending for years, the litigation will continue. The ending to this sad story remains unclear and distant. What is clear is that this judgment will have an impact on other pending medical malpractice litigation in Florida and beyond.

Have you ever had a patient who, in the middle of a procedure, said “Please stop. It hurts.” Never? Almost every doctor has heard these words once.

One doctor apparently did not heed these words quickly enough. He was sued for battery. Battery is an “intentional tort.” It is different than negligence. Many professional liability policies exclude coverage of intentional torts – such as battery.

Here’s what happened. It’s an old case, but it’s instructive. Shirley Coulter underwent outpatient surgery to remove a mass on her lower eyelid. An automated blood pressure cuff was placed on the patient’s arm – to monitor her blood pressure. The first time it inflated, Coulter testified she felt extreme pain, began to sweat and tremble, and demanded the cuff be removed.

She claimed the cuff inflated a second time. She again cried for someone to remove the cuff.

The patient said it was not until several minutes later that her demands were heeded. The cuff was removed. Surgery continued uneventfully. (By the way, the doctor and nursing staff testified that the cuff only inflated a total of two times).

Coulter sued the doctor for battery. Battery is an offensive “touching” of another person’s body without her consent. The patient argued she gave consent for the procedure. Then she withdrew consent for one part of the procedure – in the middle.

This case percolated to the Kentucky Supreme Court (Coulter v. Thomas, 33 S.W.3d 522 (2000)), and its decision was rendered 8 years after the cuff’s inflation / deflation cycle.

The patient argued that a subsequent surgery on her pronator teres (releasing the median nerve) demonstrated damage to the nerve. Never mind the pronator teres is well distal to the typical location of a blood pressure cuff. Perhaps at this surgicenter, the doctor places BP cuffs around the forearm. I don’t want to judge.

The Court ruled that a patient can revoke consent – (a) if the revocation is clear and can evoke no doubt in the minds of reasonable men that consent was revoked; and (b) “it must be medically feasible for the doctor to desist in treatment or examination without the cassation being detrimental to the patient’s health or life from a medical viewpoint.”

Apparently the patient’s demand to remove the cuff qualified for the first prong. And the procedure was indeed completed safely without the cuff. Once consent was revoked, battery occurred.

Who would guess a blood pressure cuff could create such drama?

For some, 2011 was a great year. For others, not so good. The US Chamber of Commerce memorialized 2011 with its list of Top 10 Frivolous Lawsuits.

None of these lawsuits were in the medical malpractice category. And we are certain you can fill in those gaps.

Without further ado.

• A kidnapped couple was sued by a convict who kidnapped them. Why?  The couple failed to help him evade police. What was the couple thinking? Etiquette demands kidnappees assist the kidnapper. Haven’t they heard of the Stockholm Syndrome?
• A bar is sued by a man who broke the law by carrying a gun into that bar. Why? The bar shirked its duty to search him for a weapon.
• A mother is sued by her adult children – yes adult children. Why? She sent cards without gifts.  Further to everyone’s horror, she allegedly played favorites.
• A woman files a lawsuit against a store asking for $5 million – not a trifling sum. Why? A spat over an 80 cent refund she was supposed to receive. Now that would be quite a return on investment.
• A mother files a lawsuit against an exclusive preschool. Why? Something the school did or didn’t do allegedly affected her child’s college prospects. We’ll try to report back in 15 years.
• A man who filed a lawsuit claiming age discrimination. Fair enough. Then he argued the presiding judge was too old to hear the case.
• An obese man filed a lawsuit against a burger joint. His beef? The booths were a tad tight to accommodate his large frame.

And so on….

Help us round out the list from the medical world. Share your thoughts.

A New York trial court judge received word that a juror had conducted some independent research during the trial by performing “google” searches on the parties.  Upon questioning, the juror admitted that he had “googled” the parties and gave the excuse that he was “curious.”   Apparently he wasn’t the only curious juror.  The trial court judge went on to question the remaining jurors.  Eight of his fellow jurors also admitted to conducting independent internet searches.  That is nine (9) out of the twelve (12) jurors.  The judge was forced to declare a mistrial.  This is not an isolated incident.  In another case, a juror was uncertain whether a defendant was guilty or not.  What did she do? She conducted a poll on her Facebook page.  This also resulted in a mistrial.

The social media revolution has inflamed other aspects of the trial process.  Attorneys now devote effort to reviewing the other party’s social media use.  Information that you post for friends or colleagues may well end up as a piece of evidence in a trial.  A simple rant posting following an unpleasant appointment or difficult staff encounter reported in a Tweet could end up as a line of questioning in your deposition or trial.  Social media sites have become a new frontier for lawyers to explore in litigation so be careful what you post.

Here are some tips on how to protect yourself:

Own your name as a domain name: Log onto websites like 1and1.com or godaddy.com and buy the domain name of your private and practice names. Domain names typically cost around $7.99 a year. It is a small price to pay if a patient or competitor of yours decides they want to own your cyber identity. It may also be wise to buy pejorative derivatives of your name; for example: drjoesmithsucks.com.

Electronically Monitor Your Online Reputation: This is as simple as going to Google Alerts and type in your name. Medical Justice offers a much more specialized search service; notifying you “as-it-happens” when your name or your practice name is mentioned on the web. This allows you to react to any positive or negative comments in a timely manner.

Have your employees sign a social media policy: Defining what your employees can and cannot do both in the workplace and at home, needs to be spelled out. If you fire an employee for something they’ve said online, that needs to be spelled out in your own company’s policy or you could be subject to a wrongful termination suit.  These policies have become standard for larger institutions and help properly set expectations as to how staff and employees will use the internet.

Separate your personal social media activities from your professional activities: Healthcare providers should maintain both personal and professional social media accounts. If you are worried about having to log in and out of multiple accounts a day you can use programs like hootsuite.com or tweetdeck.com to manage your accounts. Different accounts keep your personal and professional lives separate. Friending patients may cross professional boundaries. There are also issues with HIPAA and the HITECH Act when communicating with your patients online so be careful. A common professional way for physicians to stay in touch with patients is to start a fan page. Search Fan Page on Facebook and they will provide you with step-by-step instructions to start one.

Encourage patients to review your practice online via rating sites: Physicians like yourself probably have hundreds if not thousands of patients but the truth is only a couple of them have taken time to review you online. The simple fact is the majority of your patients like you, but the few who don’t let their voices be heard by reviewing you on multiple rating sites. Those reviews could cast you in a negative light to potential patients. To brighten the scope of your image, find ways to encourage your patients to rate you online.  More accurate reviews will help marginalize negative outliers.  Medical Justice’s new eMerit program can assist you in this endeavor

In a very real sense, a defendant’s online reputation can become a major witness in his or her trial.  While many physicians view the importance of their online reputation in terms of practice development and patient volume, they should be concerned for a whole other reason.  Anyone engaged in litigation would be wise to begin taking action to address his or her online reputation.

An doctor was sued several weeks ago for her use of a healthcare financing company.  The suit was brought as a class action and is based upon consumer fraud laws.  The allegations center around the way the credit application was presented and when it was signed by the patient.  The patient claims that she did not understand that she was signing a credit application and that the practice performed unnecessary work in an effort to collect the entire amount of her line of credit.  The doctor needs to prepare for a long, painful process.  This is not a medical malpractice case, so normal professional liability policies will not cover it.  Further, given the general public’s current hostility towards finance firms, there is a risk to taking the case to a jury.

Basically, this is a predatory lending case.  Predatory lending is a general description for activities that violate consumer laws.  A common element to most predatory lending cases include the lender or lender’s agent engaging in fraud or deception to conceal the true nature of the loan obligation from an unsuspecting or unsophisticated borrower.  This means that a practice could be sued based on what information was presented to a patient or for how a signature of the application was secured.

It seems that this doctor is not alone.  News reports from Houston, Texas to National Public Radio have been looking into allegations of predatory lending in the medical world.  A quick Google search for “predatory lending” yields dozens of law firms looking to represent “victims.”  The Attorney General of New York has launched an investigation into medical lending firms.  It seems we are at the start of a trend that will result in a wave of predatory lending cases being filed against medical providers.

Medical finance firms can provide a service to both patient and practice.  The question should not be whether to offer patients a financing option, but how and when to offer this option.

Do’s and Don’ts

• I recommend that the credit application be given to the patient without other documents.
• Don’t hand the patient a stack of documents with an instruction to “sign these.”  A separation in time from when the patient applies for the line of credit and when the professional services are rendered also helps.
• Staff should be familiar with how the credit firm works to answer basic questions and should refer the patient directly to the financing firm for more specific information.
• Finally, a little common sense should be used.  Don’t present a credit application to a patient that is heavily medicated or is not in a condition to fully appreciate what they are signing.

With a little training of staff and appropriate procedures, a practice can go a long way to protecting itself from a predatory lending claim.

When lawyers talk, I listen. Two attorneys penned a piece on medical malpractice reform in the April 21st issue of The New England Journal of Medicine, the most prestigious medical journal on the planet. Here is an excerpt from their article, New Directions in Medical Liability Reform.

The best estimates are that only 2 to 3% of patients injured by negligence file claims, only about half of claimants recover money, and litigation is resolved discordantly with the merit of the claim (i.e., money is awarded in nonmeritorious cases or no money is awarded in meritorious cases) about a quarter of the time.

This is not self-serving drivel spewed forth by greedy, bitter doctors, but a view offered by attorneys, esteemed officers of the court. Apply the statistics in their quote to your profession. Would you be satisfied if your efforts were benefiting 2-3% of your customers or clients? Would this performance level give me bragging rights as a gastroenterologist? Perhaps, I should attach a new slogan to my business card.

Michael Kirsch, MD

Gastroenterologist

Correct Diagnosis and Treatment in 2-3% of Cases

We would have to build a second waiting room to accommodate the crowds of new patients who would be jamming in to see me.

The current medical malpractice is beyond broken, and it is absurd to debate this. When even lawyers write under their own bylines that medical malpractice reform is needed, then it must be even worse than I thought. I assume that their bylines are true, but perhaps they used pseudonyms for their own protection.

In fairness, the authors did not find persuasive evidence that various medical malpractice reform proposals, some of which I have advocated on this blog, would accomplish the desired objectives of improving care and controlling costs. They examined various reforms including damage caps, pre-trial screening panels, certificate-of-merit requirements, joint-and-several-liability reform and statutes of limitation limits. They advocate continued study and experimentation to achieve meaningful medical malpractice reform.

As a physician, I understand the value of evidence. We should not adopt a medical malpractice reform measure that is shown be ineffective, even if doctors like me favor it. This assumes, of course, that the reform measure has been fairly tested. Debating tort reform proposals is a legitimate discussion and lawyers should be included in the conversations.

Defending the current system, however, is not legitimate. Even lawyers admit that the current system targets but a tiny fraction of patients who have been harmed by medical negligence. What relief do the other 97% of patients receive? In addition, the system targets too many innocent physicians, ultimately releasing most of them after dragging many of us on an agonizing journey. In my office, and probably in your doctor’s office also, litigation fear promotes defensive medicine, which harms patients and costs money.

I will now turn away from tort reform and turn to my morning pleasure, The New York Times. I read a hard copy with ink and newsprint, but I am sure that this anachronism will soon be extinct. I have a new suggestion for their motto, which appears in the top left corner on page 1 of every issue.

“2-3% of the News That’s Fit to Print”

This was originally posted to MD Whistleblower and is used here by permission

There have been several recent cases involving Facebook that have been released. These cases continue to show how social media has permeated our society. They also show a darker side of social media. Although not directly related to the health care world, I think that they provide some useful lessons. But first the cases…

Several weeks ago a Connecticut judge ordered a couple in the midst of a divorce an exchange of passwords for Facebook and dating websites. The husband’s lawyer argued, that postings by the wife, were evidence of her inability to take care of the couple’s children. The husband was arguing for full custody. The court agreed that this might produce irrelevant information in order for the wife to disclose Facebook and dating website passwords. The court agreed it might provide irrelevant information and ordered that the husband and wife exchange Facebook and dating website passwords. Finally the court went on to order that neither spouse may post messages pretending to be the other.

If you think that the Connecticut judge’s order for the parties to not post messages;  reporting to be each other was unnecessary then hold on tight. In New Jersey, a woman was charged for creating a fake Facebook profile of her ex-boyfriend. As the ex-boyfriend is a narcotics detective, this woman posted such comments as “I am a sick piece of scum with a gun”. It gets worse. She posted in her ex-boyfriends name that he had herpes, frequented prostitutes, and was high all of the time. In New Jersey, a judge found that such behavior could constitute identity theft and the prosecution could go forward with her case against this woman.

So what possible relevance could these have to health care providers? It provides several lessons. At first, there are some not so nice things that happen out on the web. This is one reason why all practices need to have a social media policy for employees. The last thing any practice needs is an employee using its computer systems inappropriately. The cases also point to the general feeling of anonymity and privacy that many individuals have when using social media and the internet. It is these feelings that allow for ex-spouses, ex-employees, and/or competitors to comment on physician rating sites. By understanding these risks in the cyber world, you can begin to develop strategies to protect yourself and your practice.

Remember how painful memorizing the Kreb’s Cycle was?

Try this. New patient walks in with a few freshly printed documents. He just plopped down a few hundred bucks for a personalized genetic profile – offered by 23andme, Decode, or any number of other direct-to-consumer vendors.

He points to SNP results linked to 9P21. He findings state Rs2383207 (G:G); Rs1333049 (C:C); and Rs10757274 (G:G). He’s heard these markers might bode poorly for heart attack.

“Doc, what do YOU think?”

Kreb’s Cycle doesn’t seem so hard now, does it?

Welcome to the exploding world of personalized medicine. There are several thousand discrete gene tests which can identify isolated single nucleotide polymorphisms. These SNPs sometimes predict if populations are at higher risk for certain diseases. Whether such findings are strong; weak, or fleeting or even applicable to individuals remains to be seen.

Sequencing the entire genome at one time cost millions of dollars. Today, some companies are offering raw data (sans interpretation) for under $10,000.

What responsibility do you have for interpreting tests not approved by the FDA? What about not ordering genetic tests for your patients? What about tests looking at genes that might impact drug metabolism – for example Coumadin or Plavix.

Interestingly, there is not much case law on these issues. And to make matters more challenging, many insurance carriers will not pay for some genetic tests.

If you are comfortable with the literature and making recommendations, then by all means do so. If not, consider referring the patient to a genetic counselor for guidance.

Finally, should you order genetic tests when prescribing drugs that impact metabolism? Maybe. I am no expert on pharmacogenomics. If the risk of getting the dose wrong is great; and the clinical effects of getting the dose wrong are significant, I personally would write the order to help guide treatment. What would you do?

Citrate → cis-Acontiate → Isocitrate → alpha-Keotglutarate….

A recent study in New England Journal Medicine shed light on the frequency of litigation against doctors. For high risk specialties, such as neurosurgeons and cardiothoracic surgeons, the annual rate approached 20% a year. For general surgeons, the rate was 15% per year; for plastic surgery, the rate was 13% per year.

The same study noted that plaintiffs received an award in only 1 of 5 cases.

A more recent study in the Journal of American College of Surgeons examined the effect this litigation had on surgeons.

Seven thousand surgeons (29%) in the professional society returned surveys.

Involvement in a recent malpractice suit was reported by 24.6% responding surgeons. Surgeons involved in a recent malpractice suit were younger, worked longer hours, had more night call, and were more likely to be in private practice.

Not surprisingly, recent malpractice suits were strongly related to burnout, depression, and recent thoughts of suicide. Hours worked, nights on call, subspecialty, and practice setting were also independently associated with recent malpractice suits. Surgeons who had experienced a recent malpractice suit reported less career satisfaction and were less likely to recommend a surgical or medical career to their children.

These conclusions are not exactly news to surgeons. But, it drives home the message that our professional liability system is badly broken. The consequences of a lottery system where only one in five patients win have profound consequences for our healthcare system. One question our healthcare system should address is who will take care of us if there are fewer surgeons to answer the call. Fixing our medico-legal tort system would help ensure a brighter future for surgeons – indeed, all physicians.

With regard to physicians’ support for medical malpractice reform, the times they are a changin’. These iconic words of Bob Dylan, who has now reached the 8th decade of life, apply to the medical liability crisis that traditionally has been a unifying issue for physicians.

The New York Times reported that physicians in Maine are going soft on this issue, but I suspect this conversion is not limited to the Pine Tree State. Heretofore, it was assumed that physicians as a group loathed the medical malpractice system and demanded tort reform. The system, we argued, was unfair, arbitrary, and expensive. It missed most cases of true medical negligence. It lit the fuse that exploded the practice of defensive medicine. Rising premiums drove good doctors out of town or out of practice.

What happened? The medical malpractice system is as unfair as ever. Tort reform proposals are still regarded as experimental by the reigning Democrats in congress and in the White House. The reason that this issue has slipped in priority for physicians is because our jobs have changed. Private practice is drying up across the country for the same reasons that family owned hardware and appliance stores are vanishing. Look what has happened to independent bookstores? If you want to find one in your neighborhood, you may need to hire a private investigator. Private physician offices are being squeezed out by surrounding medical institutions that, using Ross Perot’s famous phrase uttered in the 1992 presidential campaign, have created a ‘giant sucking sound’ as it vacuums up patients from private doctors’ waiting rooms.

This is only half of the story. Sure, the medical behemoths that employ doctors have cut deeply into private physicians’ patient bases. But, increasingly, physicians are joining these enterprises willingly becoming employees of hospitals and large multispecialty clinics. Understandably, these physicians who are entering their careers do not want the lifestyles of their predecessors. They want time off and a decent family life. They want hospitalists to admit their office patients who need in-patient care. They don’t want to spend hours of uncompensated time each week on paperwork that doesn’t help patients or improve their medical skills. They don’t want the stress of making payroll, hustling for patients or engaging in the fun pastime of trying to convince insurance companies to pay them what they are owed. You get the idea here. They are shifting to a shift work culture, and I certainly understand why.

Can these doctors still get sued? They can, and they will. But, they are not paying their own medical malpractice premiums. Some of the larger medical institutions that employ them are self-insured. Since these physicians are not paying the bill – or any bills – they don’t have the same stake in the game that we private practitioners do. Medical malpractice reform is still on their radar screen, but the blips occur at a higher orbit. They are focused on other issues.

What this means that one of tort reform’s most unified and vocal constituencies will lose interest in the medical liability issue. The crop of physicians entering the profession in the next decade just won’t view medical malpractice reform as a religion. Of course, they will reel when they are unfairly sued, as we do, but it won’t be an issue that commands much of their attention in between lawsuits.

Folk music is prophetic.  Where have all the doctors gone?  Long time past seen. Will medical malpractice reform ever really happen or will it continue to be just blowin’ in the wind?

This was originally posted to MD Whistleblower and is used here by permission