• Perspective: The IME: Does time heal all wounds?
• FDA issues warning on long-acting asthma meds
• Texas nurse cleared of charges after reporting physician for unsafe practices.
• “Medical Mafia” case in Las Vegas coming to a close
• What are the chances? Explaining risk to patients
• Good Samaritan defense depends on the circumstances
• Emotional injury triggers lawsuits more often than negligence. Business model of patient safety challenged.
• Are the monitors being monitored? Patient dies when monitor turned off.
• Does HIPAA prohibit defendant physician’s access to another physician’s information? Michigan case moving forward.
• “You get what you ask for” says Connecticut Supreme Court.
• If at first you don’t succeed… SB 6508, 2010 edition, remains alive

Perspective: The IME: Does time heal all wounds?

By Charles A. Pilcher MD FACEP

How does one measure pain? How does one objectively evaluate limited functionality? Who says that time is required to heal all wounds? Does the absence of objective findings negate the patient’s complaints? And what is the value of the “Independent” Medical Exam, or IME?

One recourse for plaintiff attorneys (or defense attorneys who suspect that an IME will go against their client) is to have a knowledgeable medical advocate attend the IME with the patient/client. That person can then report the nature of the exam and assure that the examiner’s report is consistent with the exam conducted. There are several Certified Legal Nurse Consultants in this area who provide this service, or a physician expert can be retained to assist with a specific injury. MORE ->

FDA issues warning on long-acting asthma meds

The FDA has called for new limits on long-acting beta agonists (LABA’s) used as inhaled bronchodilators by asthmatics. The agency advised that patients should first use a corticosteroid inhaler for prevention of attacks, short acting beta-agonists for attacks, and LABA’s only if attacks cannot otherwise be controlled, and then for only the shortest time possible. The ruling is a response to a higher complication rate for those on LABA’s, with or without a corticosteroid. The drugs involved are Foradil (formoterol), Serevent (salmeterol), Advair (fluticasone and salmeterol) and Symbicort (budesonide and formoterol).

Texas nurse cleared of charges after reporting physician for unsafe practices.

It took a West Texas jury less than an hour to acquit a nurse for reporting unsafe practices on the part of a physician. She had been charged with “felony misuse of official information.” Prosecutors argued that “personal — not professional — reasons motivated the nurse to file the complaint. The jury found no proof that she had done anything illegal, according to a NY Times article.

“Medical Mafia” case in Las Vegas coming to a close

The case of malpractice conspirators Kabins, Gage, Awand, et al. made progress in Las Vegas courts in February when Dr. Kabins pled guilty to misprision of a felony, admitting he knew about federal crimes being committed by others but did not report them. Originally, he had arranged for a local “fixer,” Awand, to get attorney Gage to name someone other than Kabins in a malpractice suit. In return, Awand would funnel more lucrative malpractice cases to Gage. Federal investigations found the conspiracy to be much broader. Awand was convicted in Federal Court of tax evasion this month. A further trial for both Awand and Gage on the conspiracy charges is pending. Kabins will reportedly testify against the two.

What are the chances? Explaining risk to patients

Medical Economics published a nice article in a February edition that teaches physicians some great ways of explaining risk to patients. This would be excellent reading for all physicians, and can help attorneys understand the processes involved in educating patients. The concept of “relative” and “absolute” risk are well described. [Editor's Note: I highly recommend Against the Gods: The Remarkable Story of Risk, by Peter Bernstein, one of the 3 most influential books I've ever read. It is a fantastic treatise on the subject of risk.]

Good Samaritan defense depends on the circumstances

Emergency Physicians Monthly just published a nice article on the “Good Samaritan” concept. It contains many excellent illustrative examples.

Emotional injury triggers lawsuits more often than negligence. Business model of patient safety challenged.

A recent article in Archives of Internal Medicine challenges traditional thinking that negligence generates malpractice lawsuits. The authors make the case that, while injured patients are 20 times more likely to sue, many of those suits could be prevented by better handling of the emotional issues involved in the error and the patient’s subsequent care. The article does not excuse errors or deny negligence, but only points out what generates the bulk of the lawsuits, and suggests that, from a strictly business perspective, equal effort should be directed at managing bad outcomes as preventing them. [Editor's note: I agree it's hard to read this article (summary linked) from a "strictly business perspective."]

Are the monitors being monitored? Patient dies when monitor turned off.

When a patient died recently at Mass General Hospital, the heart monitor alarm was found to have been turned off. Patient-safety experts say that “numerous deaths have been reported, because alarms malfunctioned or were turned off, ignored, or unheard.” Meanwhile, “JCAHO…said it also has seen a surge in alarm-related incidents.”

Does HIPAA prohibit defendant physician’s access to another physician’s information? Michigan case moving forward.

A physician being sued in Michigan has been denied access to the records of another treating physician under the HIPAA law. At issue is whether the defendant can seek a court order allowing his attorney to interview the other doctor.The matter, previously reported in this newsletter, is now before the Michigan Supreme Court. Click here for the Court of Appeals Decision.

“You get what you ask for” says Connecticut Supreme Court.

When a plaintiff sued for just over $1 million dollars and was awarded nearly $1.6 million by the jury, the Connecticut Supreme Court overturned the award, telling the plaintiff they could either pay back the difference or start over. The court ruled that the larger amount was not supported by the evidence presented by the plaintiff’s experts. [Editor's Note: Didn't the the Rolling Stones have a song called "You can't always get what you want." Well, I guess you can, but no more than that.]

If at first you don’t succeed… SB 6508, 2010 edition, remains alive

A bill to expand the wrongful death statutes in Washington State has been introduced regularly but has yet to be passed. This year’s version, SB 6508, remains active as of this writing. Those defending wrongful death claims are opposed to the bill.

Wham!!! Jim’s head snapped back as the Hummer hit the back of his Subaru Forester, totaling the Forester but leaving little more than scratches on the Hummer’s sturdy bumper. Jim had no idea how fast the Hummer was traveling. All he knew was that he had just stopped quickly to avoid the vehicle in front during the early rush-hour traffic when he was slammed from behind. The Hummer’s driver claimed to be going less than 10 mph, but damage to the Forester indicated otherwise.

At first Jim was just mad. “Why can’t people pay attention?” he steamed, but kept his cool and was exchanging information with the Hummer’s driver as the police and EMT’s arrived.

“Are you hurt?” the EMT’s asked.

“Not as bad as my car, dammit!” Jim muttered.

The EMT’s dutifully reported a good 2 feet of intrusion of Jim’s rear bumper into the rear of his Subaru and asked, “Does your neck hurt?”

“Nah,” said Jim, “it’s just a little stiff, It’ll be fine,” and walked away to call his wife to come pick him up.

“Are you sure we can’t take you to the ER? You got hit pretty hard. You should see a doctor” they advised. Again he declined their offer, but as they cleared the scene they reminded him to see his doctor or go to the ER if he felt worse.

The next morning Jim woke up in pain… severe pain. His neck was so stiff that it hurt to even brush his teeth. In the shower he dropped the soap and could not even bend over to pick it up. He took 4 ibuprofen, laid back down on the bed with an ice pack and had his wife call work to tell his boss he wouldn’t be in that day.

By afternoon he hurt even worse, and finally agreed to his wife’s urgings to go to the ER.

The ER doc listened to Jim’s story, examined his neck, checked his reflexes, but felt the stiffness, though severe, did not warrant x-rays. He advised Jim to continue using 4 Advil 3 times a day and continue the ice. He prescribed some Vicodin and a muscle relaxer, and told him to see his family doctor in a few days.

Fast forward several months. Jim saw his family doc who got some neck x-rays, which were negative. He was referred to physical therapy, but was no better after two months. Even though he had no symptoms of nerve impingement, an MRI was ordered and Jim was referred to an orthopedist. The orthopedist told Jim the MRI was normal and there was nothing he could do. On the advice of a friend, Jim saw a chiropractor, but after six months of care he still needed at least 6 Vicodin a day to even begin to control the pain. And he had yet to return to work.

In the meantime, he was being pressured to settle his claim with the Hummer’s driver. His own insurance company wanted this case closed and off their books. The Hummer driver’s insurance company, whose legal department had been involved from the outset, requested an IME, or Independent Medical Exam. His family doctor, sensing Jim’s desperation, suggested Jim talk to an attorney before signing anything.

So now, you’re Jim’s attorney, he’s not working because he hurts, he’s nearly broke, his doctors can find nothing anatomically wrong with his neck and he’s scheduled for an IME next week in preparation for closing the claim. Your experience tells you there’s little independence in the “Independent” Medical Exam. When most such exams seem to favor the defendant, you prefer the term “Defense Medical Exam.”

Sure enough, the IME physician finds nothing wrong — other than the fact that Jim himself says it hurts too much to move — and reports this to the Hummer’s insurer. The report states: “Ongoing complaints are not consistent with the reported accident 9 months previously. The reason for that opinion is the passage of time.” In other words, “time heals all wounds,” and because it’s been such a long time, Jim can’t really hurt.

The above story is undoubtedly familiiar to physicians and attorneys alike. How does one measure pain? How does one objectively evaluate limited functionality? Who says that time is required to heal all wounds? Does the absence of objective findings negate the patient’s complaints?

There are many excellent IME physicians, but often too few objective findings. This puts all parties in a sticky situation and results in settlements based on debatable evidence. Sure, once the check is cut, some injured parties experience a remarkable recovery, but that is not the norm. Most of the injured would rather have their health back than the money.

The best IME recourse for plaintiff attorneys (or defense attorneys who suspect that the IME will go against their client) is to have a knowledgeable medical advocate attend the IME with the patient/client. That person can then report the nature of the exam and assure that the examiner’s report is consistent with the exam conducted. There are several Certified Legal Nurse Consultants in this area who provide this service, or a physician expert can be retained to assist with a specific injury.

By Charles A. Pilcher MD FACEP

Last month I reported on the defense verdict in the case of a Bellingham woman left with brain damage as a result of a surgical complication. The case bothers me.

The patient’s injuries were major and her family devastated. Future expenses will be huge. The woman likely remains in a nursing home, and a “medical bankruptcy” would be a predictable outcome as the costs of her care mount. Her attorney did his best, but a jury agreed with the defense.

So, for the past few weeks I’ve been asking myself “Isn’t there a better way?”

Medicine is not a perfect science nor is the human body a perfect organism. Things go wrong, just as they do with car accidents and building fires, and bad outcomes will never be eliminated completely. Thus, I wonder if we are using the money paid in malpractice premiums in the best possible way. Why should only a small percentage of injured patients recover the huge majority of those funds? Could the medical equivalent of an insurance adjuster resolve these situations more equitably? For the rest of my thoughts, click here >>

Attorneys to blame for MRSA epidemic?
A study published in the American Journal of Therapeutics questions whether the MRSA epidemic (methicillin-resistant staphylococcus aureus) might be caused by physicians who defensively prescribe antibiotics where not medically indicated. The study found a direct correlation across Europe, Canada and the US between the density of attorneys in an area and the prevalence of MRSA infections. The authors also “confirmed that the vast majority of providers were far more concerned with the potential of being sued for refraining from prescribing antibiotics than for doling them out prematurely.” A layman’s summary is reported at Time.com.

Stroke patients more likely to receive tPA on the weekend. Survival unchanged.
In the continuing debate about the value of tPA in the treatment of stroke, a paper in the Archives of Neurology reports that stroke patients admitted to hospitals on Saturday or Sunday were more likely to be given a clot-busting medication known as tissue plasminogen activator (tPA). There was, however, no difference in the in-hospital mortality rate between the two groups. While investigators pondered a variety of reasons to explain this somewhat unexpected finding, they seemed to belittle a possibly obvious explanation: tPA makes little if any difference. For more on the evaluation and management of stroke, check out three “Perspectives” articles on Stroke/TIA listed in the left sidebar.

Gross or net? What damages count? “Collateral source rule” at issue in Ohio.
The Ohio Supreme Court has been asked to consider whether a plaintiff’s “damages” are the amount paid by his insurer, or the amount billed by his providers. This is a complex case involving parallel rulings, but is pertinent in malpractice claims. This challenge to the “collateral source rule” could potentially reduce the amount recoverable by plaintiffs in any personal injury suit. Key question: What is the true value of one’s services if one bills one amount but contracts to accept another?

Whose side are you on? Plaintiff attorney to defense attorney and back again
Attorney Keith Forman of Wais & Vogelstein in Reisterstown, MD, has produced a very readable list of reasons why he has returned to being a plaintiff attorney. He discusses “The Burden of Proof,” “Winning and Losing,” “The Tripartite Relationship,” “The Billable Hour,” “Reporting,” and “Your Cases Choose You.” If you have ever wondered which side is best for you, click here for some insight.

Plaintiff settles for $150,000. Jury awards $1.45 million. Does the award stand?
In a NY case extending over 13 years, the plaintiff initially prevailed. The defendant physicians appealed, the verdict was set aside, and a new trial ordered. In the third trial, the jury was still out when the plaintiff attorney, obviously anticipating a defense verdict, notified the defense attorney that the plaintiff would accept a settlement of $150,000. The court clerk told the judge of the settlement agreement, just as he received a note from the jury room that they had reached a verdict. Refusing the plaintiff attorney’s request to memorialize the agreement in open court, the judge allowed the jury to return and read their verdict: $1.45 million for the plaintiff. This resulted in another defense appeal, in which the plaintiff again prevailed. The reasoning: The defense attorney failed to speak up at the time to acknowledge the settlement, hoping apparently to “have it both ways” and either get the small settlement or a defense verdict. The full story can be read here.

Jurors’ derogatory racial remarks toward plaintiff attorney result in vacation of defense verdict. New trial granted.
In Turner v. Stime in Spokane, a new trial was granted to the plaintiff after allegations of juror misconduct arose following a defense verdict. The plaintiff attorney, of Japanese ancestry, was referred to in what the court concluded was a derogatory manner during trial and deliberations. Every minority bar association imaginable has signed on to this case as an amicus curiae. Reality check: The defendant physician’s listing on the DOL website reveals his license to be “Active on Probation” following 3 allegations of inadequate evaluation and treatment of other patients.

Most Ridiculous Lawsuits of 2009
Faces of Lawsuit Abuse conducted its annual poll and came up with this list of the top five most frivolous lawsuits of 2009:

• Neighbor sues woman for smoking in her own home
• Double-murderer sues to claim his victims’ classic Chevy pickup
• Holocaust denier sues Auschwitz survivor, alleging memoir contains “fantastical tales”
• Tourist sues hotel, claiming swimming pool got daughter pregnant
• Illegal immigrants sue rancher who stopped them on his property at gunpoint and turned them over to the Border Patrol

Last month I reported on the defense verdict in the case of a Bellingham woman left with brain damage as a result of a surgical complication. The case bothers me, and for the past few weeks I’ve been asking myself “Isn’t there a better way?”

Medicine is not a perfect science nor is the human body a perfect organism. Things go wrong. No one asks to have cancer, appendicitis, a major injury or a stroke. Nothing is completely preventable, nothing is always diagnosable, and nothing is completely fixable. Some things just happen.

Surely, some people destroy their body through their own bad choices, and some “body repairmen” are more competent than others. But nearly every doctor does his or her absolute best in every situation presented. Their intentions are good. Still, things can go wrong.

When things do go wrong, how can we “do the right thing?” Why do we have a system that forces litigation, attempts to prove incompetence in usually caring physicians, appears to over-compensate the occasional “winner,” and leaves (in my estimate) ten times more “victims” out in the cold?

I can understand why the Bellingham case was filed. The patient’s injuries were major and her family devastated. Future expenses will be huge. Her attorney did his best. But a jury agreed with the defense, the woman likely remains in a nursing home, and a “medical bankruptcy” would be a predictable outcome as the costs of her care mount.

Is this the best way?

Doctors know, probably better than attorneys and patients, that bad things happen. That’s why they cover those “therapeutic misadventures” with malpractice insurance. In my mind the key question is this: Are we using all that money contributed in insurance premiums in the best possible way? Why should only a small percentage of injured patients recover the huge majority of those funds? Accidents or misjudgments are predictable, as they are with automobiles and driving, or buildings and fire, yet every bad thing that happens is not resolved via a lawsuit. Could the medical equivalent of an insurance adjuster resolve these situations more equitably?

What if the system guaranteed that, when an unfortunate medical event occurs, expenses and even damages, could be recovered from the insurance pool? Rather than filing a lawsuit against a physician, an injured patient would file a claim against an insurance pool.

This would not eliminate the need for plaintiff or defense attorneys. In fact, it would probably increase the need. Each party could continue to have representation, but the outcome would not be in doubt; compensation would be provided. The only question would be: “How much?” The average value of each case would go down as more patients took advantage of the available funds, but so would the time and trouble of reaching a settlement. Matters would be handled through the insurance system rather than the courts.

But what about the truly incompetent physician?

The courts have proven to be a poor system for removing incompetent caregivers from practice. The courts serve only to point out who those caregivers are. However, an insurance pool in which more victims filed more claims would more quickly identify the incompetent. At that point, state licensing and disciplinary bodies could step in, as they do now but earlier, and better deal with physicians with an excess of claims. In fact, probably more work for attorneys.

I don’t claim to have the answer, but I bet even the defendant physicians in Bellingham, and certainly the victim and her family, would like this system better. Maybe even the attorneys?