February 11th, 2008

Mistaken Double Mastectomy Leads To Mercy Hospital Investigation

Last year Mercy Medical Center out on Long Island did a double mastectomy on a woman in her 30s. The problem was that she didn’t actually have breast cancer, as her test results were mixed up with another patient. She died from complications the day after the surgery.

According to today’s New York Times, and the New York Post from yesterday, the hospital is under investigation by the Health Department. The hospital was being investigated for the failure in the pathology lab with respect to the tissue mix-up that led to the woman’s death, but apparently led to a doctor’s complaint that “a physician’s assistant had improperly inserted catheters, chest tubes and pacemakers into patients. Three such patients died, the doctor said: a 65-year-old man and a 64-year-old woman last summer, and a 19-year-old woman in October.”

It is worth noting, I think, that the investigation apparently comes at the behest of a physician. So that while some folks in the hospital may be trying to cut corners with the use of physician’s assistants when not appropriate, others are apparently not willing to remain silent on the subject. This reminds me to some degree of the nurse who wrote two days ago about her refusal to remain silent on which doctor’s were reviewing fetal heart monitor strips while covering for another (see: How Medical Malpractice Gets Covered Up).

It’s good to see when medical personnel push back against the very disturbing White Coat of Silence that was documented last year in a study. Having the doctors go the way of the police and their blue code of silence would be just awful for patients.
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Note: Last year I covered a case of a woman with a double mastectomy after a lab screw-up, but there is no reference to Mercy Hospital or death in the story, and I am unclear if this is the same case. See: Long Island Woman Has Unneeded Double Mastectomy.

February 8th, 2008

How Medical Malpractice Gets Covered Up

Ever wonder how malpractice gets covered up or why it doesn’t appear in the medical records? Well, an anonymous obstetrical nurse from Pennsylvania opened that little door for us today.

Writing at the blog At Your Cervix (perhaps one of the most creative medical blog names around), she writes how she was reprimanded for documenting in the medical chart the name of a covering doctor that had reviewed the external fetal monitor strip. You read that right: Folks were actually mad at her for being accurate with her notes and writing down in the chart who had reviewed important information regarding the patient.

Now the covering of a patient by another physician can be fairly common. No one works 24-7, and even during working hours there may be other patients or emergencies to attend to. This is particularly true in obstetrics. But apparently, the Powers That Be at this large teaching hospital where she works would like this to remain a mystery. She writes:

Dr So-And-So’s colleague feels that we should only chart “attending aware of EFM strip” or something along those lines – and not actually document the physician’s name on the record.

What does this mean? A couple things. First, and most importantly, it means that when a subsequent physician or nurse comes on the scene they won’t necessarily know who read the strips and who is aware of the situation. That is one less person with actual knowledge of the patient for the next doctor to talk to. Second, it means that if something does go wrong, it is the nurse in the hot seat.

The nurse goes on to write:

Apparently the physician colleague went on to say that if it was every subpoenaed for court, he would refuse to hand over the list of attending physicians on duty during that time period.

Isn’t that darling? Now this nurse is one tough cookie. Because this was her ultimate response:

I told my nurse-manager, in no specific terms, that I will continue to document as I do, to cover MY ass. I’m not out to harm anyone – patients, women, babies, physicians, midwives, fellow nurses, etc – but so help me, I will document completely and thoroughly for not only accuracy in the chart, but for best recall for myself if I am ever taken to court.

Now here is the kicker: It was just last week that I was in a debate with Ted Frank over at Point of Law about Bush’s statement in the State of the Union about “junk medical lawsuits” and I said that Bush never cites empirical evidence that this was an actual problem. Ted responded with a study in the New England Journal of Medicine that showed there were some suits for which claims were paid that, based on the documentation, didn’t have merit. And while I responded that the authors of the study said this was not a significant problem, here is one more thing for those tort “reformers” to consider: Sometimes there are reasons malpractice isn’t revealed in the chart, and that is deliberately lousy charting by those involved. They are thinking about themselves instead of the best interests of the patient.

Thanks to Elizabeth for the link to At Your Cervix.

[Addendum 2/11/08 – I wrote about malpractice cover-ups two months ago in Medical Malpractice and the White Coat of Silence, which deals with a Harvard study done in conjunction with Mass. General Hopsital. The study found that 46% of doctors admitted they knew of a serious medical error that had been made but did not tell authorities about it.]

February 5th, 2008

The Medical Malpractice Trial of John Ritter

Four years ago comic actor John Ritter suddenly died from an aortic dissection after being rushed to the emergency room from the set of his sitcom, 8 Simple Rules … For Dating My Teenage Daughter. A medical malpractice action ensued. The defendants include a radiologist that did a scan two years before and failed to note any enlargement of the aorta in the 54-year old actor, and a cardiologist that saw him in the emergency room at Providence St. Joseph Medical Center in Burbank, California.

According to this story in USA Today:

[T]he cardiologist [was] summoned to the emergency room at Providence St. Joseph Medical Center in Burbank after Ritter was taken there complaining of nausea, vomiting and chest pain. Plaintiff’s lawyers say a chest X-ray should have been performed before Lee treated Ritter.

The doctor’s lawyers say that there wasn’t enough time for that and that a chest X-ray ordered earlier inexplicably was not done. They say Ritter’s symptoms were more consistent with a heart attack than anything else and had to be treated quickly.

Kevin M.D. has previously written on this case. But, not being in the courtroom, he has to work from public accounts. He offers us this along with a longer analysis at the link:

Was it malpractice? Tough to say. The question I’d be interested in would be how long it took for the ER to order that chest CT scan.

His family says that he likely would have survived with prompt treatment and that the treatment for the aortic dissection is the opposite of treating him for a heart attack. The hospital, by the way, has already settled.

My personal view: Suits against emergency departments are very difficult, though not impossible. Jurors will, if given half a chance, give the benefit of the doubt to emergency room physicians, often times even if their own protocols are violated. I have no idea what will happen in this particular case since I won’t be in the courtroom hearing the evidence, but I say with some confidence that the scenario presented in the news media presents a difficult factual pattern if the hospital was the culprit in failing to get the CT scan done.

With respect to the radiology films from two years earlier, that will be a classic “battle of the experts” that cannot be evaluated by people outside the courtroom unless they have seen the actual films at issue.

Jury selection starts today.

January 29th, 2008

More on Bush’s Frivolous Claim of "Junk Medical Lawsuits"

When I wrote this morning that Bush complained, once again, about “junk medical lawsuits” in the State of the Union, I wrote that he never cites any studies to support the claim. Nor for that matter, do tort “reformers.” Ted Frank jumped up at Point of Law to claim, however, that a study reveals that 28% of patients who suffered no medical error received compensation. So let’s look at the study he cites to that was published in May 2006 in the New England Journal of Medicine, which was conducted by the Harvard School of Public Health and the Harvard Risk Management Foundation (Claims, Errors, and Compensation Payments in Medical Malpractice Litigation). But I’ll give you a quick peak at the conclusion: The authors clearly disagree with Ted as to whether there is a problem of frivolous medical malpractice suits.

My perspective in doing this analysis is 20 years of doing mostly medical malpractice cases, having reviewed hundreds of filed cases (and vastly more of potential claims that were rejected), deposed many hundreds of medical witnesses and tried my share of cases. Ted brings to the table a career in academia, BigLaw and conservative think tanks. That doesn’t make either one of us right or wrong, it just shows our perspective.

In looking at how the numbers were arrived at, the first thing that jumped out at me from the study is the fact that the analysis was from the perspective of the defendant doctors/hospitals since closed insurance company claims files were the source of the materials the investigators used. This meant, almost by definition, that the defense claims will be more fully presented in the files than the plaintiffs’ claims.

Take this simple example: A woman complains of a hard lump in the breast at a January exam. The lump is dismissed by the doctor as fibrocystic disease, and that note is made in the chart. A year later, the lump is finally biopsied due to continuing complaints and the cancer is found. The patient says one thing about that January visit while the doctor, relying on her notes, says something else.

Thus, a finding of liability by an investigator is damning in any one particular case because it is likely based on the records, but a finding of no liability does not carry the same weight. Why? Because many cases present raw issues of fact that can’t be decided by a review of files such as the breast cancer case above. A doctor says one thing and a patient says something else. If the medical notes are skewed, they are skewed toward the defense. (The authors concede this problem, writing: “Agreement was especially difficult to obtain among claims involving missed or delayed diagnoses.”)

Resolving these disputed issues of fact is a jury function. They do their best by looking people in the eye when they testify to make their determinations in conjunction with direct and circumstantial evidence mustered by both sides. It may take anywhere from several days to several weeks to hear that evidence.

But these investigators, the report authors wrote, spent just 1.6 hours per claim. Just 96 minutes to read the medical chart (and decipher the handwriting), claims memos, deposition transcripts and other evidence? That’s one way to get a skewed result. How, exactly, were the investigators to evaluate a doctor that kept giving evasive answers? Or a plaintiff that did the same? The reviews are only as good as the information being reviewed.

The reviewers, it should be noted, had a high confidence rate for their results in only 44% of the cases. There was 30% with moderate confidence and 23% were close calls.

Notwithstanding that, the study found that: Overall, 73 percent of all claims for which determinations of merit were made had outcomes concordant with their merit. Discordant outcomes in the remaining 27 percent of claims consisted of three types: payment in the absence of documented injury (0.4 percent of all claims), payment in the absence of error (10 percent), and no payment in the presence of error (16 percent). Thus, nonpayment of claims with merit occurred more frequently than did payment of claims that were not associated with errors or injuries.

According to the researchers, therefore, there was a payment in the absence of error just 10 percent of the time when looking at 1452 cases. How did Ted get the 28% number above? Because he elected to work only from the smaller subset of 515 “no error” cases instead of the entire pool, and the 145 payments made. That gets filed in the Fun With Numbers Department.

According to the researchers, even with imperfect information it appears that the existing medical malpractice liability system works well.

But don’t take my word for it. The two conclusions of the study, done by doctors not plaintiffs’ attorneys, and you can read the study yourself, were:

[P]ortraits of a malpractice system that is stricken with frivolous litigation are overblown; and
The malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter.

I find it odd that Ted would cite to the study, since the authors have stated quite bluntly that his portrait of a system stricken with frivolous litigation is overblown and that the system works reasonably well. Was this some type of Orwellian up-is-down reformspeak?

Finally, Ted writes in his piece that, “perhaps Turkewitz sincerely thinks that the plaintiffs’ lawyers’ decision to bring a lawsuit is little better than a coin-flip in determining whether a doctor committed medical error.” For the record, I have never said anything even remotely like that. I have, however, said the exact opposite on how such cases should be approached in order to lower the risk of inadvertently taking on a bad case. My views on the vetting of medical malpractice cases as well as the brutal economics involved in such cases might make for better sources of material if one needs to attribute thoughts to me. This is especially true since juries tend to favor doctors.

Given that, according to the study, the “non-error” claims were more likely to go to an expensive trial, significantly less likely to result in compensation, and when compensation was paid it was significantly lower than average, only the biggest of fools would bring a claim that they thought was without merit. Such a course of conduct would quickly lead to bankruptcy for the attorney.

George Bush and the Myth of "Junk Medical Lawsuits"

It happens like clockwork. Every State of the Union George Bush has given I remember him making comments about junk medical malpractice suits of some kind. Last night he, unsurprisingly, did it again.

And every State of the Union speech follows the similar pattern of failing to provide any empirical evidence to support “junk” suits being an actual problem. I’ve never seen a study showing frivolous suits to be a problem. Have you?

In fact, just the opposite is true. Empirical research shows that the medical tort system works, except for those times that it actually favors doctors. But it doesn’t stop certain politicians from trying to perpetuate the myth of frivolous litigation.

And it’s worth noting that the contingency fee is a strong disincentive to bring bad suits, as the attorneys generally must take the risks with their own money, and since the suits are militantly defended bringing bad suits leads to attorney bankruptcy. The medical community already enjoys de facto immunity for medical malpractice in many jurisdictions for all but those instances with exceptionally bad injuries. And the federal government, and every state that I know of, also has rules in place to sanction frivolous suits when they are brought.

So there is a good reason you won’t see Bush and the tort “reformers” tout any kind of empirical evidence. Because their agenda is driven by anecdotes of the occasional bad cases brought by a bad lawyer. Not by actual studies.

On the political front, I’ve always found it odd that tort “reform” comes from the right wing of politics, since taking personal responsibility for one’s actions (or mistakes) is such an important concept. But it falls by the wayside, without explanation as to the obvious hypocrisy to political theory, when it comes to big business and medicine. Instead, the victims are asked to bear the brunt of a burden caused by others.

So too have the concepts of states rights and limited government fallen to the wayside when it comes to looking for ways to lend protections and immunities to business and medicine when they have fouled up and hurt someone. It’s certainly not the way a capitalistic society is built.

Maybe, someplace and somewhere, someone has come up with a rationalization for the political hypocrisy. If there is one that actually makes sense — a justification for giving government protections and immunities to the wrongdoers at the expense of the victims — I’d like to see it.

Addendum: Ted Frank commented on this piece at Point of Law, and I have responded here: More on Bush’s Frivolous Claim of “Junk Medical Lawsuits”