… Or are they? While total advertising spend worldwide is still dominated by TV, print and online ads, a recent study by The Nielsen Company shows these ad channels to be significantly less trustworthy than so-called  ”word-of-mouth” sources. According to the study,  ”ninety-two percent of consumers around the world say they trust earned media, such as word-of-mouth and recommendations from friends and family, above all other forms of advertising,” (Nielsen, 2012). That’s an increase of 18 percent over 2007 figures.

Likewise, “online consumer reviews are the second most trusted form of advertising with 70 percent of global consumers surveyed online indicating they trust this platform,” corresponding to a 15 percent increase over a four year period. This type of source has an emerging name — they are called “virtual strangers” — and they are the third most trustworthy source behind family and friends.

When it comes to television, magazine and newspaper ads, not only do a mere 47 percent of consumers view them as a trustworthy source, but consumer confidence also declined 24 percent, 20 percent and 25 percent respectively since 2009. Despite the sharp decline in trust, overall ad spend for television advertising still increased by nearly 10 percent in the US.

Online ads are not experiencing any shelter from the desensitization of the consumer base from advertising either. Online and mobile ads overall earn trust from approximately 25-35 percent of consumers, depending on the delivery medium. Although these numbers are still relatively low, trust in online and mobile ads experienced an encouraging uptick in trust from 2007, with mobile ads accountable for the highest increase — 21 percent since 2009 and 61 percent since 2007.

In the words of the great Bob Dylan, “the times they are a-changin.” Conventional push advertising is becoming white noise to consumers, while digital word-of-mouth from virtual strangers is shaping buying decisions. Look at your marketing budget — does your spend allocation set you up to win in 2012? How about 2013?

Of course, patient opinions are not for sale. And even if they were, the medical and dental industries would be prohibited from investing in them. But by empowering your patients to share their voices online, you can effectively leverage the opinions of your most trustworthy advocate. Gone are the days of full-page Yellow Pages ads and local magazine blocks. The social Internet is no longer just a trend. The world is becoming increasingly social, and advertising is no exception. It is now a necessary component of modern business.

Be forewarned: if you don’t take advantage of social and crowd-sourced marketing, you can be sure that your competition will.

Resources: Nielsen: Global Consumers’ Trust in ‘Earned’ Advertising Grows in Importance

I have been a L/D nurse for six years now, and have participated in many, many deliveries with Dr. Haupt, in addition to close to a thousand more with the other local OBs. I know more about whom I would want in an emergency than the average person, and I chose Dr. Haupt as my obstetrician. I feel so fortunate I have had him to learn from all these years.

Hard to say whether this case will affect baby deliveries in San Luis Obispo where Dr. Haupt practices. I doubt the effect will be positive.

This is just one more example of jurors misconduct via social media. In February a Sarasota, Florida man was selected to be a juror on a car-wreck case. He received the standard instructions not to use social media or the internet regarding the litigation. Days later the judge learned the juror had looked up the female defendant on Facebook and sent her a friend request. The juror was kicked off the jury and admonished.

In December 2011, a juror in an Orange County, California murder trial was dismissed after posting comments about the accused killer on Facebook, saying she’d like to get in contact with him after the case and making disparaging remarks about her colleagues on the panel.

In one post, the woman said she had become so annoyed with another juror cracking her knuckles that “I want to punch her,” the Orange County Register reported.

The juror also posted a photo of another juror’s shoes on her Facebook page, mocking her footwear as “clunky running shoes which I am pretty sure are not used for their intended purposes.” One can only imagine what testimony was being offered during the photo shoot.

There has always been an unpredictable nature to jury trials. Social media and the world wide web have injected more uncertainty into the process. In time, our judicial system will develop mechanisms for addressing this situation. For now, we proceed up the steep learning curve.

The patient’s family pursued a lawsuit against the anesthesiologist. Since he had declared bankruptcy, the gastroenterologist was added to the lawsuit. The anesthesiologist was neither an employee nor independent contractor of the gastroenterologist. In spite of that, the judge ruled the anesthesiologist was working in the gastroenterologist’s office under his implicit approval. Accordingly, the judge refused to dismiss the gastroenterologist invoking the legal theory of vicarious liability.

How this case is ultimately resolved is anyone’s guess.

Some of the over-ordered tests:

1. Routine EKG at routine physical
2. MRI for recent back pain
3. Imaging studies for patient suffering from simple headaches
4. Antibiotics for sinusitis.

 
Two points:

“These all sound reasonable, but don’t forget that every person you’re looking after is unique,” said Dr. Eric Topol, chief academic officer of Scripps Health, a health system based in San Diego, adding that he worried that the group’s advice would make tailoring care to individual patients harder. “This kind of one-size-fits-all approach can be a real detriment to good care.”

Next, the N.Y. Times opined: “Clear, evidence-based guidelines like the ones to be issued Wednesday will go far both to reassure physicians and to shield them from litigation.”

Really? How will evidence-based guidelines shield doctors from baseless litigation? Many such guidelines already exist. It requires little more than one plaintiff’s expert to argue the guidelines did not apply in this unique case. Unless and until such guidelines can serve as explicit exculpatory evidence in court (codified in statute), it will be challenging to get enthusiastic buy-in from doctors.

Finally, often it’s the patient demanding an MR study for three days of uncomplicated back pain. It’s rarely the doctor. So, patients’ expectations will need to be adjusted. This will likely take more effort and education than a simple declaration from organized medicine.

Utah’s highest court ruled that family members can sue a doctor if something goes wrong with their loved one’s care. Doctors, of course, owe a duty of care to their patients. But, if their care affects non-patients…well, that is mostly new territory.

Dr. Hugo Rodier, a primary care doctor, prescribed antidepressants (and other medications with potential psychiatric effects – such as steroids) to his patient, David Ragsdale.

Ragsdale’s wife, Kristy had requested a restraining order against him. Unfortunately, the restraining order was not effective – Ragsdale gunned down his wife. Ragsdale pled guilty to first degree felony murder and is serving a 20 years to life prison term. He supposedly took full responsibility for his actions. One caveat. He said he would not have murdered his wife had he not been on the medications.

Ragsdale’s children (via a conservator) filed a medical malpractice lawsuit. A lower court dismissed the suit noting the plaintiffs were not the doctor’s patients.

Utah’s Supreme Court overruled.

“Healthcare providers perform a societal function of undoubted social utility. But they are not entitled to an elevated status in tort law that would categorically immunize them from liability when their negligent prescriptions cause physical injury to nonpatients,” Justice Thomas Lee wrote in the high court’s unanimous opinion. “We uphold a duty of healthcare providers to nonpatients in the affirmative act of prescribing medication.”

So, there you have it. The list of potential plaintiffs is long.

Here’s the background. In March, 2003 (yes, 9 years ago), Jeanelle Toney was pregnant and had a pelvic ultrasound. She was assured the results were normal and no fetal abnormalities were identified.

In July, 2003, Toney delivered a boy with significant abnormalities – including partial arms and legs. Toney sued the radiologist who read the scan for negligent infliction of emotional distress. The lawsuit alleged the radiologist had not prepared her for the inevitable shock of witnessing the birth. The experience left her with ongoing grief, rage, nightmares, insomnia, etc. Of note, the suit did not include any medical negligence claim. A typical medical negligence claim must assert physical damages.

A lower court dismissed the lawsuit. It was reversed on appeal. And the Supreme Court of Pennsylvania agreed in December, 2011 that the mother could indeed sue for emotional distress only.

Typically, there are only two ways one can sue for emotional distress without any physical injury. One is the plaintiff is in a zone of potential injury when a defendant is negligent– for example a car swerves at the last second avoiding any physical damage. But, the patient was within milliseconds of death or injury. Next, is if a plaintiff witnesses a negligent event on a family member – such as a surgeon negligently operating on a relative. Both of these scenarios are uncommon.

Texas allowed a similar claim to progress for emotional distress absent any physical injury. There, Harris County medical Examiner’s Office lost a baby’s body during an autopsy. New York, New Jersey, and Wyoming have also allowed for recovery based on emotional injury alone.

The radiologist’s defense attorney concluded:

The impact is: Not only are doctors going to get sued [by patients], but family members who are surprised by a loved one’s condition are going to sue. It’s expanding who can sue over these things.”

Kyle Richards, 21, an inmate in a Michigan jail, sued the governor and the state over his lack of access to porn. Really.

Who is Kyle Richards? He entered a guilty plea to bank robbery. Now, he claims he is being subjected to “cruel and unusual punishment” because the jail does not allow pornographic materials.

Richards wrote, “Such living conditions have been used as a method of ‘psychological warfare’ against prisoners, in order to both destroy the morale of inmates and break the spirit of individuals.”

A repeat offender, Mr. Richard’s record includes convictions for assault and battery and assault of a prison employee. He has filed complaints in several courts, and judges have dismissed at least three as frivolous.

Richards says he is suffering from chronic masturbation syndrome and sexual discomfort.
“Sexual deprivation has been used against plaintiff in a way as to both sexually frustrate the plaintiff, deprive the plaintiff of any sort of sexual gratification, and deny the plaintiff his right to sexual reproduction.” Gawker quoted him as saying in the lawsuit. Huh?

Macomb County Sheriff Anthony Wickersham stated: “He’s not going to get any of those materials from us. As long as I’ve been with the sheriff’s department we haven’t ever allowed porno in the jail. It’s against our rules, it’s that simple.”

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?