The State of New Jersey has taken an innovative approach to addressing a longstanding concern of physicians in high-risk practices.  According to the New Jersey Star-Ledger, a recently passed bill would require the state’s doctors and lawyers to each contribute toward a state fund that would ease the relatively higher medical malpractice insurance premiums paid by the state’s OB/GYN’s.

New York is about to implement an experiment involving NYC hospitals that aims to cut costs and time from the process of resolving medical malpractice claims.  The Times-Albany Union reports that the program calls for immediate admission of errors to victims of malpractice, followed by early, and apparently real offers of settlement from the hospitals’ insurance companies, under the guidance of specially trained judges. ( Here is the Healthcare Association of NY State’s take.) The program is based on the practices of Bronx County Supreme Court Justice Douglas McKeon, who has utilized similar principles while handling all Bronx cases generated by NYC’s Health and Hospital Corporation’s hospitals.  If a malpractice victim feels the offer is unfair or unrealistic, he or she can always opt out, and commence a standard medical malpractice case.  The program is being funded by a $2.9 million dollar grand from the U.S. Dept. of Health and Human Services, and is part of a nationwide pilot program.

Interestingly, not all shortages of physicians in particular fields can be blamed on high premiums and greater exposure to the threat of lawsuits.  There is a shortage of primary care physicians in this country, and according to the LA Times, it stems from the desire of medical school graduates to pursue more lucrative specialty areas.

ShareThis

Today’s Washington Times has a commentary post by a person who claims the title of “doctor,” Dr. Jason D. Fodeman.  I say that because the writer addresses the high costs of so-called “defensive medicine,” in a manner so robotic and lacking in humanity that it is difficult to believe such a person has devoted his life to healing people.

Whether a doctor, or just another conservative ghost writer, you know he’s a hack by the phrases he uses. In one modest post, we are charmed to see “tort mafia,” “jackpot justice” and, my favorite by far, “pesky lawyers.”  Do you suspect that this man of the healing arts might have a political agenda?

To sum up his point: doctors are forced to practice defensive medicine, distracting them from the more important things at hand, by amoral, parasitic trial lawyers who force them to cover themselves in anticipation of out-of-control medical malpractice suits.

Interestingly, the good doctor appears to have forgotten how useful we pesky trial lawyers can be to his colleagues and him.  Here’s a little reminder. When the US health insurers you relied on for much of your salary began shortchanging you, your premier professional organization, the AMA, hand-in-hand with numerous state medical societies, retained us trial lawyers to go after those insurance companies.  I guess money can be quite the motivating factor for you, huh Doc?  And, darn it, I still can’t quite get the difference in spelling between Hippocratic and hypocritical!

Anyway, Doc, I’m a little surprised that an educated professional like yourself would leave out the “other reason” for skyrocketing defensive medicine costs: you doctors–you know, the ones who decide which extra tests are necessary, and how often to order them–enjoy lining your own pockets with the extra cash generated by these extra tests.  Could that have something to do with those high costs?

But the clearest lapse in your post is the failure to mention, even once, the victims of medical errors, who are injured and sometimes killed by medical malpractice.  There is a “cost” there too, Doc, but one that was not important enough for you to write about.

ShareThis

We should not be surprised that surgeons, like everyone else, suffer from burnout and depression, according to a new study reported in The Annals of Surgery.  But we should be surprised, and alarmed, by the manner in which the burnout and depression affects patient care.

In this survey of 7,905 U.S. surgeons, almost 9% acknowledged having made a major error during the three months prior to the taking of the survey.  That is unsettling enough on its own.  But these were only the self-reported errors.  Imagine what the real numbers are.

This should serve as a reminder to the so-called tort reformers that serious medical errors remain a serious problem.  Thus far, none of the ideas proposed by tort “reformers” have addressed the root cause of the medical malpractice lawsuits that they constantly decry–medical errors that ruin or end patients’ lives.  Isn’t it time that their thinking evolved?

ShareThis

The New York State Bar Association, of which I am proud to be a member, is yet another nationally recognized and bipartisan organization that sees through the tort “reform” movement.  In a November 13, 2009 letter to U.S. Senators Charles Schumer and Kristin Gillibrand, The NYSBA’s President, Michael E. Getnick, urged that “[i]n assessing the current tort system, it is at least as important to consider the victims of malpractice in comparison to those who cause them personal injury.  We have seen…that the attack of tort reformers is a movement that favors cost savings over quality and that emphasizes the corporate bottom line over safety of the public.”  And he specifically called for a rejection of caps on damages.

“We object to legislation to cap pain and suffering compensation for victims of medical malpractice. Such caps would unjustly discriminate against classes of accident victims who suffer devastating physical and psychological losses.”

And speaking of caps, Michelle Mello, of Harvard’s School of Public Health, is not impressed with them, according to MarketWatch’s HealthMatters Blog. Professor Mello finds that any impact on medical liability has been modest, and the practice raises issues of fairness to victims.  However, she and Kristen Gerencher, the post’s author, have some interesting thoughts on health courts.

I’ll rely on Patrick Quinlan, of InjuryBoard, to close today’s post.  He points out that John Stossel, sketchy television news reporter and recent vocal advocate for tort “reform,” is a hypocrite, given Stossel’s own use of us “trial lawyers.”  But…is it news if we are not surprised? 

Somehow, it reminds me of the hypocritical ways of the RNC, and its leader, Michael Steel, who was quite vocal and self-righteous about keeping the dreaded “coverage for abortion” out of President Obama’s health care reform bill.  Of course, Republicans, especially the conservative kind, would never allow such immorality to taint them in any fashion.  But wait.  What’s that, Mike?  The RNC offered its employees insurance coverage for elective abortions? Luckily for us real Americans, Chairman Steele, now that he knows about it,  has promised that this option will no longer exist under his administration, according to the LA Times.  I don’t know about you, but I feel reassured.   And if you guessed that Steele and his cronies are proponents of tort “reform,” you’d be right.

ShareThis

When I was an assistant district attorney in Queens County (NYC), New York, my boss, Richard Brown, decided to charge a local OB/GYN with murder, based on a showing of “depraved indifference to human life,” after that physician’s depraved actions during an abortion procedure in a storefront clinic left his immigrant patient dead.  The New York Times wrote about the prosecution after the doctor’s conviction for second-degree murder.

The facts of the doctor’s abortion procedure were difficult to hear.  Dr. David Benjamin left a 3-inch tear in the victim’s uterus while performing a late-term procedure for which he was unqualified.  He left her to bleed to death on a table in his clinic while he performed another abortion on a second clinic patient.  He then tried to hide his mistake by telling paramedics that the patient had suffered a cardiac arrest. And, he lied to the trial jury about his knowledge of the gestational age of the fetus.

But even more disturbing was this practitioner’s disciplinary history.  As reported by Lynette Holloway in the NY Times article:

“The incident came at [a] time when the doctor’s license was in the process of being revoked.  His license was revoked in June 1993 [2 years before this conviction] for ‘gross incompetence and negligence’ in five other cases.  During an appeal of the revocation, he was allowed to continue practicing, and Mrs. Negron, a Honduran immigrant, died during that time.”

Unfortunately, it doesn’t end there.  Ms. Holloway learned that there had been additional suspensions:

“In 1986, as he practiced under the name of Elyas Bonrouhi, the state suspended his license for three months based on 38 counts of negligence and incompetence.”

So, here are my questions.  Why was the doctor allowed to continue practicing after he had been found to be grossly incompetent and negligent in five prior cases?  After all, this was not a case of a doctor with one or two unfounded accusations.  This was an OB/GYN–someone empowered to perform invasive surgical procedures that were potentially lethal if done improperly–with a history of negligence.  Why not order the direct supervision by a qualified OB/GYN over any significant procedures performed by Dr. Benjamin?  Why not impose supervised re-training and re-certification before allowing him to practice while his revocation was being appealed?  Where was The New York State Medical Society? The AMA?  The hospital with which Dr. Benjamin was affiliated?

Luckily, doctors like Dr. Benjamin are the exception and not the rule. But his case illustrates a sad reality that continues to this day.  Doctors and hospital executives do a terrible job of disciplining bad doctors, if they take any action at all.  And then they have the chutzpah to turn around and claim they are being victimized by greedy trial lawyers bringing frivolous medical malpractice suits.  And you tend to hear this chorus of moaning from OB/GYNs above all others, because their liability insurance rates tend to be much higher than those in most other specialties.  Some unsolicited advice: look within, and act ethically with regard to your incompetent peers. 

Dr. Benjamin was the first New York State doctor to be convicted of a murder based on his medical treatment of a patient.  Hopefully, he’ll be the last as well.  But his prosecution is not an isolated case in this country.

 Three years after Dr. Benjamin’s conviction, California prosecutors tried an ER physician for negligent homicide, using a “depraved heart” theory, after that physician saw an 11-month old child with signs of severe dehydration twice in a three-day period, and then did little more than suggest that the baby be driven to another hospital 55 miles away. The baby died en route.  The charges against the physician were dismissed during the trial.

Last year in Massachusetts, an OB/GYN who performed an abortion by himself, with no cardiac or blood pressure monitoring equipment, and no oxygen available for his patient, was charged with manslaughter after the patient’s death.  When the doctor could not arouse the patient after the procedure, he delayed in calling 911, and then tried to cover up his negligence by telling his local disciplinary board that he had used oxygen, had monitored the patient’s pulse and that his assistant had been certified in CPR, all of which claims were false.  He also misled state investigators about the room in which the prodecure had been performed, showing them one that contained equipment not used during the patient’s procedure.

That doctor, Rapin Osathanondh, surrendered his medical license, and still faces his criminal trial.

Clearly, these physicians did not become dangerously negligent overnight.  Just as clearly, they had colleagues and co-workers who saw the quality of the medicine they were practicing.  Silence cannot be an option here.

ShareThis

Today, we revisit the story of a West Virginia orthopedist who has injured and killed numerous residents of his state with his unmatched incompetence.  ChicagoTribune.com reports that Biomet, Inc., parent company of EBI, the manufacturer of bone stimulators used by Dr. John King during many failed surgeries, has settled 24 out of 27 claims by plaintiffs.  Based on a regulatory filing by Biomet, it expects to pay out $39 million dollars on the claims.  EBI has denied that it improperly marketed its devices through an illegal kickback scheme centering on Dr. King, which scheme was also alleged to have defraued federal healthcare programs.

Of course, this is not the first time Dr. King has been covered by this blog.  I wrote about the kickbacks he seemingly enjoyed from the makers of devices he implanted here.   And before that, I wrote, in awe, about how a man facing 124 medical malpractice suits still had the time and the chutzpah to sue the good lawyers who had defended him in court.

Meanwhile, in yesterday’s NY Times, we learned that an Army surgeon at Walter Reed Medical Center who was a paid “consultant” for Medtronic, concocted a fraudulent study, using nonexistent subjects, to support his glowing praise for Medtronic’s bone-growth product.  He even forged the signatures of four other Walter Reed doctors when submitting his study for publication in a British medical journal, which has since retracted the related article at the Army’s request.  And this is where it almost gets personal.  Dr. Timothy Kuklo, the doctor who masterminded this fraud, is also a lawyer, having graduated from Georgetown University’s Law School.  Ethics? Professional Responsibility? Differences between right and wrong?  Are these no longer part of the law school curriculum?  Do they really have to be?

But the bigger problem here is, because these physician-criminals have so bastardized the process of using medical devices and products, they have effectively muddied the waters surrounding their quality.  We cannot know how effective these devices are, since they were used in a manner dictated not by what was best for the patient, but what was best for the pocketbook.

And, the unfortunate victims of these scams will never be able to seek redress in the courts when these products fail, due to the federal preemption doctrine.  Ironically, the federal preemption case that enabled big business to avoid its responsibilities to the medical consumer involved this very company, Medtronic (Riegel v. Medtronic).

Let’s hope that the current efforts in Washington to undo that ill-advised decision will bear fruit, and quickly.

ShareThis