Surprise! Exercise Is Good for You.

Posted on May 17, 2013 by Bill Sandweg

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It should probably come as no surprise by now that exercise is good for us.  Study after study shows its benefits in improving our health or in staving off illnesses.  Want to minimize the risk of diabetes?  Exercise.  Want to minimize the risk of heart disease?  Exercise.  Want to improve stamina and joint health?  Exercise.

All of these findings are pretty intuitive.  What is not so intuitive is that exercise can actually reduce our risk of many common cancers and, even better, can improve our chances of surviving, if we get the cancer.  In a paper to be presented at the 2013 Annual Meeting of the American Society of Clinical Oncologists, researchers have found a strong association between cardiorespiratory fitness and a reduced risk of prostate, lung and colorectal cancer in men.  http://abstracts2.asco.org/AbstView_132_111825.html  Those men in the highest fitness category had the lowest incidence of these cancers.  Not only was the incidence of cancer less in the most fit men, their survival rate was better as well.

There is certainly no reason to believe that the significance of these findings would be limited to men.  Women would undoubtedly reap similar benefits from a good exercise regimen.

So lace ‘em up or get in the pool or do whatever exercise works best for you but do something – for your own sake.

Posted in Cancer, General Health, Prostate Cancer | Leave a comment

Prostate Cancer Testing Getting Better

Posted on May 13, 2013 by John Ager

If have been reading our blog, you know that my partner, like many medical professionals, does not believe prostate cancer testing is worthwhile.  That’s because most prostate tumors grow so slowly that a person is most likely to die from other causes after a prostate cancer diagnosis and treatment usually results a myriad of unappealing consequences.  Nonetheless, many men will subject themselves to treatment for prostate cancer, even when they know the risk of a it ever becoming life-threatening is exceedingly low.  Once prostate cancer is detected, only 10 % of men who are candidates for monitoring instead of treatment actually choose monitoring.  Well, the times may be a changing.

Scientific advances in genetics have led to a new test that can predict how aggressive a tumor will be.  Such tests already exist for breast and colon cancer.  This should give those like my partner some incentive to get routine testing knowing that high risk tumors can be differentiated from low risk ones.  More importantly, it will give the 90% of men who would otherwise choose treatment some comfort that monitoring would be the safe and preferable option once the diagnosis is made.

At $3,820 the test is expensive.  Whether insurers will pay for it is another question, but much like preventative care, the savings to be derived from avoiding the cost of unnecessary treatment is likely to more than make up for the cost.

The rate of scientific development in medicine today is astonishing.  I am constantly in awe of our ability to innovate and the degree of success that is achieved, despite the significant economic risks often involved.  It has been only about a year since my partner  shared his thoughts about testing and treatment for prostate cancer.  My how the times have changed.

 

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Stroke Litigation

Posted on May 2, 2013 by John Ager

Sandweg & Ager is pleased to welcome our first guest blog on stroke litigation by Dr. Frank Bonpietro, M.D. and the folks at The Expert Institute.  You can reach them at http://theexpertinstitute.com

Stroke Litigation 

Stroke is characterized as a sudden loss of blood circulation to an area of the brain, resulting in a corresponding loss of neurologic function. Strokes are classified as either ischemic or hemorrhagic. Acute ischemic stroke refers to stroke caused by thrombosis or embolism (blood clot) and is more common than hemorrhagic stroke (vessel rupture). Hemorrhagic stroke, however, is associated with higher mortality rates than ischemic stroke and it is important to differentiate the type of strokes in terms of acute treatment of such vascular disorders. No matter the type of stroke, once it occurs, brain cells begin to die and brain damage occurs at a rapid rate. When brain cells die during a stroke, the sensory and motor abilities controlled by that area of the brain are lost and are (almost) never fully recovered. These abilities include speech, movement, memory, and other cognitive functions. How a stroke patient is affected depends on where the stroke occurs in the large distribution vessels in the brain and how much brain tissue is affected by the lack of oxygen delivery.

Given these considerations, litigating a case involving a stroke can be difficult because of the different elements that come into play. There can be a claim based on: 1. delayed diagnosis 2. delayed treatment 3. an improper discharge 4. mismanagement of treatment 5. inadequate medication 6. different elements of causation At The Expert Institute, we have provided experts for stroke, and stroke-related issues, to attorneys in hundreds of cases, and while no two cases are the same, we’ve discovered some commonalities and trends that repeatedly occur. With that in mind, we decided to put together this stroke litigation guide, to provide some insight and knowledge into what elements we found to be most common, and what experts were used most often in these cases.

Scientific Underpinnings of Stroke: On the cellular level, the oxygen-starved neuron becomes depleted of energy and the intrinsic systems at the single cell level begin to fail. It is believed that several intracellular signaling mechanisms result in release of a number of neurotransmitters (signaling molecules) that activate various degradative enzymes, leading to the destruction of the cell membrane and other essential neuronal structures. This lack of oxygen also directly results in dysfunction of the cerebral vasculature, with a breakdown of the blood-brain barrier occurring within four to six hours after the initial insult. Following the barrier’s breakdown, proteins and water flood into the space surrounding individual brain cells, leading to vasogenic edema, also known as brain swelling. Vasogenic edema produces greater levels of brain swelling and mass effect that peaks at three to five days and resolves over several weeks.

A major worry of clinicians is the possible transformation of a stroke from ischemic to a hemorrhagic. This conversion represents the conversion of a bland infarction into an area of massive hemorrhage, which has a significantly higher mortality rate. Proposed mechanisms for hemorrhagic transformation include reperfusion (reintroduction of oxygen) to previously injured tissue, either from surgical correction of an occluded vessel, or from collateral blood supply to the oxygen-starved territory. With disruption of the blood-brain barrier, red blood cells leak from the weakened capillary bed producing a slow hemorrhage that may evolve to a full-blown hematoma. [1]

Prognosis: The prognosis after an acute ischemic stroke varies greatly, depending on the stroke severity and on the patient’s premorbid condition, age, and post-stroke complications. Stroke rehabilitation is a combined and coordinated use of medical, social, educational, and vocational measures to retrain a person who has suffered a stroke to his/her maximal physical, psychological, social, and vocational potential, consistent with physiologic and environmental limitations. Evidence from clinical trials supports the premise that early initiation of therapy favorably influences recovery from stroke. When the initiation of therapy is delayed, patients may, in the interim, develop avoidable secondary complications, such as contractures and deconditioning. In addition, many studies show that stroke rehabilitation can improve functional ability even in patients who are elderly or medically ill, and who have severe neurologic and functional deficits. Significant improvement in extremity function is seen only in the first three months post-stroke. If no return of motor function is noted after more than six months, prognosis for useful function is likely unfavorable. If no return of voluntary motor function is noted after more than one week, it is unlikely that full use of the affected extremities will return.

Most patients with stroke who undergo rehabilitation have many other associated medical conditions that require professional attention. These problems might be preexisting medical illnesses that necessitate ongoing care (e.g., hypertension, diabetes mellitus), secondary post-stroke complications (e.g., deep venous thrombosis, pneumonia), or acute post-stroke exacerbations of preexisting chronic diseases (such as angina in a patient with ischemic heart disease). Management of these conditions can constitute major portions of the rehabilitation effort. Some patients may be more disabled by certain associated comorbid diseases than by the stroke itself. The occurrence of these associated conditions has several implications for management of stroke cases during and after rehabilitation. Essentially, these problems can detract from the benefits of rehabilitation. Some medical problems, such as heart disease, have been found to affect the course and outcome of rehabilitation adversely following a stroke. Intercurrent medical complications can limit the patient’s ability to participate in therapeutic exercise programs, inhibit functional skill performance, and reduce the likelihood of achieving favorable outcomes from rehabilitation.

Issues surrounding treatment: Stroke affects some 750,000 persons yearly in the United States and is the leading cause of serious, long-term disability. Annually over 150,000 deaths are attributed to stroke and approximately 4 million Americans live with the associated complications. In 1998, the annual national cost was in excess of $60 billion, with an average direct cost per case of approximately $59,000.[2] The devastating impact of stroke, along with rising expectations for correct diagnosis and treatment, creates fertile ground for malpractice claims.

Stroke-associated civil suits generally fall into two areas—informed consent and failure to diagnose, as illustrated by a discussion of treatment issues. Tissue plasminogen activator (tPA) has been shown to be effective in reducing the morbidity rate in strokes by approximately 30% when given according to a strict protocol. Efficacy of tPA gradually diminishes over time, approaching that of a placebo at 180 minutes after onset of stroke symptoms. Symptomatic cerebral hemorrhage occurred in approximately 6% of cases, and the rate increased with treatment beyond 180 minutes. tPA use is ordinarily reserved for moderately severe deficits that are not improving while under observation in the emergency department. Patients with acute stroke may not be able to fully participate in the informed consent process because of lethargy, impaired communication, impaired recall, or lack of cognitive appreciation of benefits and risks inherent in the use of tPA. Some would consider the risks of systemic or cerebral hemorrhage potentially excessive. As a general protection for both patients and physicians, good informed consent is essential. If the patient is unable to give consent, then the consent should be obtained from a close family member, if possible. While written consent is not required ordinarily, the chart should document the discussion and the family member who was present. Appropriate elements to discuss would include the potential benefits of using tPA, along with its risks including asymptomatic or symptomatic cerebral hemorrhage, bleeding in other organs, and the possibility of death. Factors raising or lowering the risk or benefit in that patient (eg, recent surgery or other invasive procedures) should be mentioned.

Given widespread efforts to educate physicians and lay communities regarding acute stroke, asserting that tPA is now the standard of care in the appropriate setting would be easy. This puts great burden on the hospital, the ED staff, and consulting neurologists to provide appropriate care or rapid transfer to another facility. As such, an effort is now in place across the United States to certify hospitals as primary stroke centers that meet basic standards of stroke care including the availability of CT scanning, neurological evaluations, and timely handling of acute stroke patients.[3] Many hospitals have developed a “Code Stroke” approach in this fashion with standardized protocols that allow for rapid implementation of stroke evaluation and care. This typically includes being seen as soon as possible by the appropriate personnel, having the correct diagnostic tests performed, and being administered tPA anywhere from an hour to three hours after the onset of stroke-like symptoms (see chart below). In addition, certain core indicators of quality are being developed to track quality in stroke care. If a physician elects not to use tPA, the reasons should be documented clearly. Given the potential for long-term disability, refusal of tPA by patients with acute stroke or their families is somewhat unusual, although not unheard of. Neurologists may feel pressured to use tPA by the family, by the emergency staff, or by their own desire to reduce disability. A definite onset time is critical; in its absence, the last known neurologically normal period must be used (for example, if the attack begins during sleep, onset must be dated from the night before, unless the patient got up during the night with no deficit). While full consideration of risks and benefits occasionally may mandate using tPA outside the original strict criteria, deviations should be discussed clearly with the patient and/or family and the discussion documented in the chart.

Failure by the hospital to provide essential facilities (24-hour CT technician availability, streamlined care paths in the ED) may create liability for the hospital and/or emergency physicians. In the best interest of patient care and malpractice avoidance, the neurologist should collaborate actively with both emergency staff and hospital administration to guarantee appropriate care or transfer of patients who potentially meet tPA criteria. Whether tPA should be given by a neurologist or an emergency physician is an evolving issue, with strong partisans espousing each viewpoint. The standard of care continues to evolve and varies with locality. Implicit in the therapeutic potential of tPA is the failure to diagnose acute stroke; it carries liability risk but only if the patient met strict criteria for tPA at the time of assessment. If additional new therapies broaden the therapeutic window, liability risk for failure to diagnose will broaden correspondingly. Failure by the hospital to provide essential facilities (24-hour CT technician availability, streamlined care paths in the ED) may create liability for the hospital and/or emergency physicians. In the best interest of patient care and malpractice avoidance, the neurologist should collaborate actively with both emergency staff and hospital administration to guarantee appropriate care or transfer of patients who potentially meet tPA criteria. Whether tPA should be given by a neurologist or an emergency physician is an evolving issue, with strong partisans espousing each viewpoint. The standard of care continues to evolve and varies with locality.

Implicit in the therapeutic potential of tPA is the failure to diagnose acute stroke; it carries liability risk but only if the patient met strict criteria for tPA at the time of assessment. If additional new therapies broaden the therapeutic window, liability risk for failure to diagnose will broaden correspondingly.

Experts Needed:

Neurology:  Neurology is a medical specialty dealing with disorders of the nervous system. To be specific, neurology deals with the diagnosis and treatment of all categories of disease involving the central and peripheral nervous system; or equivalently, the autonomic nervous systems and the somatic nervous systems, including their coverings, blood vessels, and all effector tissue, such as muscle. A stroke fellowship is frequently attained and is an essential part of training for neurologists interested in gaining expertise in the diagnosis and management of complex problems involving the cerebrovascular system.

Emergency Medicine: In the case of acute stroke, it is the ER physician’s responsibility to coordinate the collaborative effort amongst many physicians for the benefit of the patient. Also, in most cases, the first physician that the patient encounter is in the ER and that physician has the responsibility of gauging the severity of the patient’s stroke, and how to proceed from there.

Radiology: Radiology is a medical specialty that employs the use of imaging to both diagnose and treat disease visualized within the human body. Radiologists use an array of imaging technologies (such as X-ray radiography, ultrasound, computed tomography (CT), and magnetic resonance imaging (MRI)) to diagnose or treat diseases such as stroke. Interventional radiology is the performance of (usually minimally invasive) medical procedures with the guidance of imaging technologies to remove clots or clip aneurysms stopping ischemic and hemorrhagic strokes before major damage occurs.

Neurosurgery: Neurosurgery is the medical specialty concerned with the prevention, diagnosis, treatment, and rehabilitation of disorders which affect any portion of the nervous system including the brain, spinal cord, peripheral nerves, and extra-cranial cerebrovascular system. Occasionally, neurosurgeons may be called in to assist in a stroke case that may necessitate surgical intervention. An example would be clipping a hemorrhagic bleed via endovascular therapy or open craniotomy.

Physical Medicine and Rehabilitation: Physical medicine and rehabilitation (PM&R), physiatrist or rehabilitation medicine, is a branch of medicine that aims to enhance and restore functional ability and quality of life to those with physical impairments or disabilities. A physician having completed training in this field is referred to as a physiatrist or rehabilitation medicine specialist. Physiatrists specialize in restoring optimal function to people with injuries to the muscles, bones, tissues, and nervous system (such as stroke patients).

Consultations in Stroke Diagnosis and Treatment: An experienced professional who is sufficiently familiar with stroke or a stroke team should be available within fifteen minutes of the patient’s arrival in the ED. Often, occupational therapy, physical therapy, speech therapy, and physical medicine and rehabilitation experts are consulted within the first day of hospitalization. Consultation of cardiology and vascular surgery or neurosurgery may be warranted based on the results of carotid duplex scanning, neuroimaging, transthoracic and transesophageal echocardiography, and clinical course. During hospitalization, additional useful consultations include the following: • Home health care coordinator • Rehabilitation coordinator • Social worker • Psychiatrist (commonly for depression) • Dietitian ________________________________________ [1] Source: http://www.dwp.gov.uk/publications/specialist-guides/medical-conditions/a-z-of-medical-conditions/stroke/classification-stroke.shtml [2] http://www.strokecenter.org/patients/about-stroke/stroke-statistics [3] For more information, refer to http://videos.nyp.org/videos/dr-marshall-stroke-treatment-timeline

Here is a link to the original article.

http://www.theexpertinstitute.com/the-stroke-litigation-guide/

 

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Medical Errors May Result from Shorter Shifts

Posted on April 1, 2013 by John Ager

We have all heard of the grueling schedules young physicians are required to endure – 80 hour work weeks with 30 hour shifts of intense practice, applying what they have learned over many years.  Just thinking about it is exhausting.  It only makes sense that such hours are prone to produce sleepy, exhausted doctors who are going to be more likely to make mistakes than those that are well rested, right?  Well, no so fast.  Two studies, one by Johns Hopkins Hospital and the other by the University of Michigan Medical School, recently  published in the Journal of the American Medical Association suggest otherwise.

In 2008, the Institute of Medicine, a non-profit public policy think tank, issued a report which made what seemed like a common sense suggestion that doctors in residency programs were putting patients at risk as a result of fatigue stemming from long work schedules.  These observations were supported by well-researched studies.  The Institute recommended capping shifts for residents at 16 hours.  The recommendation was implemented in 2011 by the  American Council for Graduate Medical Education, the accrediting body for post-graduate medical education. The new studies, however, indicate that  medical errors by residents causing patient harm have increased 15-20 percent.  While that may seem counterintuitive, it appears that there are some reasonable explanations. (Although I have not analyzed the methodology of any of the studies, and one year does not seem like a very long time upon which to base a comparison, the reported increase is so substantial it is hard to believe it is simply an anomaly.)

Handoff risks, those risks that arise when patient care is shifted from one health care provider to another, offer one explanation.  The risk of patient harm increases with the greater number of handoffs that shorter shifts produce.  Another is that hospitals do not appear to be adjusting staffing, so the same amount of work must be performed in less time.  Haste makes waste.  Finally, and perhaps most importantly, shift changes do not appear, at lease anecdotally, to increase the amount of sleep residents get, which was the primary reason for the recommendation for shift changes in the first place.  If residents are getting no more sleep, the negative consequences of shorter shifts would seem to outweigh the potential benefits.  Still, one has to wonder how much work is too much.  At some point, long shifts must cause more problems than they solve.  Is it at 25 hours? 35? 40?  I am sure these recent studies will rekindle the debate about the wisdom of lengthy shifts which many see as a type of hazing, utilized only because “that’s the way it has always been done.”

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Placebo Treatment Works but Is Not Always Ethical

Posted on March 25, 2013 by John Ager

A recent AP article I read discussed the use of placebo by British physicians in a clinical  setting.  (It is an important an indispensable tool in the research setting.)  It noted that 75% prescribe a treatment, like low dose drugs or vitamins, they know won’t work at least once a week.  The sample was fairly broad, encompassing 71 percent of all physicians registered in the U.K.  The British Medical Association, however, deems such conduct unethical.

I take issue with the suggestion that physicians know “it won’t work” because there is a vast array of medical literature that says exactly the opposite.  I think what the author intended to communicate was that the physicians did not believe that the treatment would have a measurable physiological affect on the patient.  The psychological effect is another story.

The medical community has known for a long time that the “placebo effect” is actually very powerful, especially for pain reduction.  Although the brain is an amazingly complicated organ about which we know very little,  one thing we do know is that when patients are told a sugar pill, for example, will reduce pain, the brain in some individuals will tell them they have less pain after they take it.   Although the nature and extent of a patient’s physiological response to the brain’s psychological stimuli is also something that is not well understood, current research suggests there truly is little if any physiological effect.  I think over time, however, we will learn that the brain alone can profoundly affect healing and physiology in ways we can’t yet imagine and that placebo can be an important part of that.

So what’s all the hubbub?  Well, I checked to see if the American Medical Association takes a similar position to that of the Brits.  The AMA position statement on the issue is here. https://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion8083.page   It’s basically he same.  The problem seems to be one of patient trust.  Additionally, physicians are required to obtain informed consent from patients before proceeding with any type of treatment.  This means discussing the relative risks and benefits.  Unfortunately, for placebo to work, the patient can’t be aware that the prescribed remedy is in fact placebo. Therefore, the physician can’t obtain informed consent.

Despite the ethical admonition, studies suggest that physicians in the U.S., U.K. and worldwide frequently use placebo when they believe that it is the best option and will be beneficial for a patient.  Isn’t that what medicine is all about?  While patient trust is very important, the fact is placebos work and may be an excellent or only treatment option in many situations.  The medical communities’ governing bodies need to explore ways to remove the stigma of placebo use and develop protocols for its ethical use in the clinical setting.  In the meantime, I doubt I’ll ever pursue a medical negligence claim based on placebo when no better option was available.

 

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Robotic Surgery – The Jury Is Still Out but Likely Not for Long

Posted on March 21, 2013 by John Ager

It’s hard to fathom the technological advances made just in past few decades, much less the last 100 years.  They almost pale in comparison to the predictions of Forbidden Planet’s Robbie the Robot and Star Trek’s replicator.  (Okay, maybe we haven’t quite caught up to promise of Star Wars, but we are getting closer all the time.)    Robbie is not yet doing surgery all by himself, but since robotic/computer-assisted surgery began in the late 1980s and blossomed in the late 1990s, the number of  surgeries and types of procedures in which such technology is used have proliferated.

Robotic surgeries have many advantages over traditional surgical methods.  They allow the surgeon to operate more precisely in more confined areas with less trauma to the patient, meaning less blood loss, less pain and a quicker recovery.   The future holds even greater promise, with surgeons being able to see the internal aspects of the operating field in real time 3-D and operate on patients in remote places around the world from a single location.  As robotic technologies are integrated with surgical instrumentation, we should expect surgical robots to become smaller, less expensive and easier to operate.  Of course, this development will come at a cost and right now, the jury is still out on whether the benefits of robot assisted surgery are justified.

Case in point.  The American College of Obstetricians and Gynecologists recently stated that most routine hysterectomies should be performed using standard tools through the vagina rather than robotically, citing a lack of evidence that robotic procedures improved outcomes and the $2,000 of additional cost.  You can read the article here.  http://www.acog.org/About_ACOG/News_Room/News_Releases/2013/Statement_on_Robotic_Surgery

Robotic procedures are still being developed and, for many procedures, a variety of competing techniques have been suggested.  Experimentation will continue and techniques become more refined and subjected to greater scrutiny.  Even after a technique has become the standard, however, current research suggests that surgeons must do many robotic procedures and do them regularly in order to obtain the expected benefits.  One  benefit of conventional surgeries is that they carry less risk when performed by low volume surgeons than robotic procedures.

Of course, the early stages of any developing technology carries with it both risk and expense.  In the long run, however, it seems that the benefits have usually outweighed the growing pains.  Just imagine when Orville and Wilbur first flew under power in 1909.  Could they or anyone have possibly imagined we would land a man on the moon just 60 years later?  The development of technology -  wow!

 

 

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Retained Sponges – Never Events which Tiny Transmitters Can Stop

Posted on March 15, 2013 by John Ager

“Never events” are defined as serious medical events which are so easily preventable that they should never happen.  Inadvertently leaving a surgical implement inside of a patient is a never event.  Surprisingly, it happens a lot – 4,500 to 6,000 times or more a year.  When we think about retained surgical instruments, we often imagine the startling x-ray images of forceps or some other large metal object that was left inside of someone.  While the shock value of such images in news stories is impressive, most of the time, a surgical sponge is the item that is forgotten.  Because some surgeries require dozens or more sponges, and because they often can be hidden by the body’s anatomy and fluids during surgery, care must be taken to ensure that they all are removed before a patient is closed.  This involves counting the sponges used before and after the surgery to be sure the numbers match.  When they are forgotten, the consequences can be devastating, life-threatening and expensive.

Believe it or not, sponges equipped with inexpensive tiny transmitters are now available.  They allow nurses to electronically track then going into and coming out of a patient.  Perhaps more importantly, they also allow surgeons to pinpoint the location of any sponges which are not accounted for at the conclusion of a surgery.  The technology has the potential to virtually eliminate human error in sponge counts, thus eliminating any compliations caused by a retained sponge, and costs about $8-$12 per operation.  Yet, only about 15% of hospitals use them.

That statistic is surprising since the cost of a retained sponge hospitalization averages more than $60,000.  Additionally, the related and usually justified malpractice suit (they call them never events for a reason) averages between $100,000 and  $200,000.  There are 32 million invasive surgical procedures in the U.S. each year.  Even if every one were an open procedure with the potential for a retained sponge event using the technology, and a large number are not, the savings to be realized are staggering however you run the numbers - in the hundreds of millions of dollars.

Medicare does not cover retained sponge events and even small hospitals are often self-insured for at least $1 million.  This means that looking at the total cost of a retained sponge event, rather than just the hard cost of sponge transmitter technology, makes financial sense when considering the sum value of the technology to the hospital, not to mention the value to the patient.   Why then are only a small portion of hospitals using it?  Beats me.

 

 

 

 

Posted in Malpractice costs, Medical Malpractice, Medical Negligence, retained sponge, retained surgical instruments, Uncategorized | Tagged , , , , | Leave a comment

Arizona Supreme Court Sides with Doctors – Again

Posted on March 12, 2013 by John Ager

Sadly, today the Arizona Supreme Court handed down a decision in Baker v. University  Physicians Healthcare, et al. which makes it more difficult for plaintiffs who have been harmed by medical negligence to obtain justice.  The decision can be found at the following link.  http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2013/CV-12-0102-PR.pdf  More chip, chip, chipping away at the rights of Arizona citizens.

Currently, Arizona Revised Statutes § 12-2604 requires a plaintiff in a medical malpractice case to present expert testimony on the standard of care that applies to a defendant.  If the defendant is certified by the American Board of Medical Specialties (ABMS), the expert must also be certified in the same specialty, if the care at issue in the case involved that specialty.  At the heart of the decision, however, is whether the statute requires an expert against a defendant with an ABMS sub-specialty to also be so certified as a sub-specialist.  The Court concluded that answer was yes.

The defendant in the case was board certified in pediatrics with a sub-specialty in pediatric hematology-oncology.  When looking for experts, the plaintiff was turned down by 20 pediatric hematology-oncologists, which is not unusual in cases involving physicians in very small, tight-knit communities who are especially reluctant to testify against one another.   So, the plaintiff eventually retained a board certified specialist in internal medicine with a sub-specialty in hematology-oncology.  Pretty darn close, right?  Wrong.  Despite the fact that the plaintiff was 17  years old, the Court concluded that a pediatric physician rather than an internist was required, even though they specialized in essentially the same type of medicine.

As disappointing as the decision was, the constitutional basis the Court relied upon was more disturbing.  While the Court  recognized the difficulty plaintiffs can face when trying to identify standard of care medical experts from an essentially closed medical community to testify on behalf of a medical malpractice victim, it held that law was constitutional because it applied equally to plaintiffs and defendants.  I am not sure how the Court could have reached that conclusion because it based it decision on the policy ameliorating perceived public health problems of rising malpractice insurance premiums and the reluctance of physicians to practice in Arizona.  Really?  What about the public health epidemic of harm being caused by medical mistakes.  Not only does the analysis justify what will be a clearly unequal application of the statute favoring negligent physicians over injured victims, it is contradicted by the research of the American Medical Association, which I have commented on frequently in the past.  Making medical negligence cases harder solves neither “problem” cited by the Court.

I do not suggest that the Court is partisan, but it sure went out of its way to reach a result that will disadvantage the majority of Arizona citizens for many years to come.

 

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People Believe What They Hear – We’re Lazy – It’s Science

Posted on January 18, 2013 by John Ager

I have often wondered why it is so difficult to debunk the myths that exist about medical malpractice claims (i.e. driving physician out of business, raising insurance rates, eating up health care dollars) when even the studies performed by the health care industry do not bear them out.  There has been a lot of research about why people believe what they believe and why they hold onto those beliefs even in the face of overwhelming, credible, contradictory information.  A a study recently released by Psychological Science in the Public Interest  found that one reason false information tends to stick with us is that we are just plain lazy.

This probably does not come as much of a shock.   We simply do not take the time to thoughtfully evaluate much of the information which provides the framework for, and substance of, our belief systems.  When we do, we pay attention to but a few features of the information, such as whether it fits into the paradigm we already know.  Particularly troublesome is the fact that information which conforms to our pre-existing beliefs or point of view is what the researchers call “especially sticky,” regardless of its truth.

Not surprisingly, the researchers also concluded that the prevalence of wrongly held beliefs negatively impacts society.  For example, while there is no question that global warming as the result of human activity is a scientific fact, 33% of Americans still don’t believe it.  Unfortunately, the tendency to simply accept information regardless of its truth could  significantly impact political and social decisions in a way which may harm our society.  For example, it may already be too late to do anything to contain global warming, yet the drumbeat against it existence still echos loud and clear.  Similarly, the erroneous belief that medical malpractice claims are bad for society has led to the placement of draconian limitations on remedies for the serious harms caused by bad medicine and stymied reforms that might improve the quality of medical care.  Ultimately, society must bear the burden of the consequence of those harms rather than the wrongdoer.

As long as intellectual laziness is a problem, misinformation and its consequences will be a problem.  We need to wake up and evaluate what we read, see and hear!

 

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Very Few Medical Malpractice Lawsuits Are Actually Filed

Posted on December 21, 2012 by John Ager

Believe it or not, very few medical malpractice lawsuits are being filed in Arizona.  That may come as a bit of a surprise since we have been conditioned to believe that medical malpractice litigation is solely responsible for physicians leaving the state, skyrocketing health insurance costs, and out of control malpractice insurance premiums.  Let’s take a closer look.

Maricopa county has a population of about 4,000,000 people.  There are about 350 office visits just to physicians for every 100 people each year.  Counting emergency department visits, elective surgical procedures and other health care-related activities, there are well over 500 health care provider contacts per 100 residents annually.  That does not include the multiple contacts a person may have with a variety of different health care providers at  an emergency department or hospital for example.  The charts at this CDC website  http://www.cdc.gov/nchs/fastats/docvisit.htm breaks it down into more detail.   Even using a conservative number of 500 health care provider contacts per 100 residents, there are at least 20 million opportunities for patients to be harmed by medical malpractice annually.

Yet, there were only about 325 medical malpractice lawsuits filed in Maricopa County in 2011.  That’s right.  Out of the thousands of health care providers in Maricopa County -  doctors, nurses, chiropractors, physical therapists etc. – and the millions of patient contacts, only 325 lawsuits.  Moreover, the number of cases filed each year has been fairly steady for several years.

So, does this mean that malpractice is not really a problem?  Hardly.  All of the research indicates that millions are harmed and die each year because of medical malpractice in the United States alone.  My partner and I have written a lot about the difficulties of helping the victims of medical malpractice.   The number of lawsuits is low because the cases are extremely difficult, and very expensive, to prosecute.  Jury’s find for the defense 93% of the time.   Recognizing malpractice and proving it in a legal context are two completely different things.

Cases also rarely settle before a lawsuit is filed.  This means that 325 is likely pretty close to the actual number of lawsuits that would have been filed, but for early settlements.  Are “frivolous lawsuits” really a problem.  I don’t think so.  The problem is that meritorious lawsuits are so difficult that justice for medical malpractice victims is hardly ever served.

 

 

 

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