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The CMG Voice

Meta-Analysis often a short cut to original work in medical literature

Posted Tuesday, October 30, 2018 by Morgan Cartwright

Often in medical negligence cases, jurors want to know where the “standard of care” comes from, or if an expert witness offers an opinion, is it consistent with what the medical literature says on the topic.

Medical literature, then, is important both in clinical practice (improving the care provided to patients in all 50 states) and in the medical-legal field (helping jurors understand key concepts at issue in cases).

Historically, literature in medical journals were based on medical research that was derived from large studies and trials that physicians conducted on a diverse patient population. However, in recent years, with the increase in massive data mining technology, the articles published in medical journals have started to change, in part. In many medical journals nowadays, you will often find a huge assortment of articles that have been created not by a person, but predominately by a computer program.

As Dr. Milton Packer explains, he has reviewed many journal articles that compile meta-analysis from other studies and get computer-generated results. He explains that in many instances, the authors of these meta-analysis articles do not do any of their own research, but have computers compare other articles and insert data from other articles to come to conclusions. However, these conclusions may not actually be warranted based on the computer-generated analysis.

Unfortunately, these articles are becoming more common. The biggest problem with such articles is that they lack the traditional level of accuracy. In some instances, doctors pay individuals to create and even write these articles. As a result, there are a large number of articles published each year that contain conclusions based on insufficient data, clinically incorrect premises, and trials that are not statistically significant.

We can only hope that providers can start to realize that this type of medical literature does not advance the field of medicine and can actually undermine the important original literature.

For more on this subject read here:

Do Medical Journals Publish Original Work Anymore?

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The Consent Form – Not A Waiver of Liability

Posted Monday, October 22, 2018 by Tyler Goldberg-Hoss

Invariably when handling a claim involving a surgical or other procedure error, folks listening to the claim want to know about the form the patient signed prior to the procedure. The form, which many of us know from signing ourselves, gives the doctor consent to perform the procedure, and alerts the patient to the possible risks to the surgery that the patient is undertaking.

In addition to the specific risks of the surgery in question, invariably there is a long list of other, more general ones. A recent example included “stroke, device failure, infection, nerve injury, blood clots, heart attack, allergic reactions, respiratory failure, kidney failure, bleeding, severe blood loss, and risks of blood transfusions.”

For some folks, once you sign the form and agree to let the surgeon perform the surgery, there’s no real recourse if something goes wrong. The question of whether the surgeon was negligent is less an issue, since the patient understood that bad things can happen. Unfortunately, a bad thing happened in this case. Tough luck. Leaving aside whether you can consent to malpractice (you can’t), the consent form is important enough to some folks to overcome a surgeon’s negligent actions.

But there are other times when the form doesn’t tell the whole story, such as when the patient has agreed to a surgery without a full, necessary understanding of what he or she is getting into. Because a surgeon must obtain a patient’s “Informed” consent, that includes more than just spelling out the risks.

In Washington, as in other jurisdictions, surgeons must not educate their patients on every possible risk that can occur, or every possible other treatment options. However, they must tell their patient about all “material facts” of the proposed surgeon, things that a reasonable patient would think is important.

And this can include not only things as risks, but also the possible alternatives to the proposed surgery, including other possible treatment options.

What if your condition can be treated by a procedure other than the one being proposed by the surgeon? What if it is similarly effective at treating your medical problem, and carries less risk? Would you want to know that before deciding on surgery?

Often times, surgeries are uneventful, no risks materialize, and outcomes are good. However there are some times when a surgery results in a very bad outcome. Looking back, the patient or her family questions whether surgery was such a good idea in the first place. In these circumstances, it may be that the consent process was inadequate, and a reasonable patient sitting in front of the surgeon would have made a different choice had she had all the necessary information.

The informed consent process, then, is not simply a form to put in front of a patient right before surgery. It is a process, including giving the patient all the necessary information to agree on the surgery. This is consistent with the doctrine of patient sovereignty: all patients of sound mind get to decide what is done to his or her own body.

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Want to know whether your doctor receives money from drug or device companies? You can do that.

Posted Friday, October 19, 2018 by Tyler Goldberg-Hoss

Perhaps you or a loved one is considering surgery. In researching surgeons, one is advocating for the use of a particular device for your back. Certainly, it may be the right device for you. And also, there may be an ulterior motive for the surgeon to recommend it – he or she has made lots of money from the manufacturer of the device.

Wouldn’t it be nice to know if that were (or were not) the case?

You can.

Pro Publica created a tool for you to research physicians to see whether and to what extent they have received money from drug and/or device manufacturers.

You can find it here:

Dollars for Docs

The site also lists the top companies who pay doctors. One company, Genentech, a drug manufacturer, has paid over one billion doctors to nearly 5,000 doctors.

In Washington State, Vascular and Interventional Radiologist Rodney Raabe, M.D. from Spokane is the highest earning doctor, making over $24,000,000 from such companies.

If you are considering a procedure involving a medical device, or a new medication, it may be worthwhile to learn more about the company who makes it, and the doctor who is recommending it.

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Dr. Death podcast illustrates many things, including the role of tort reform on patient safety.

Posted Monday, October 15, 2018 by Tyler Goldberg-Hoss

If you have not heard, there is a new podcast out called “Dr. Death.” It chronicles Texas neurosurgeon Chris Duntsch and the egregious and multiple surgical errors he made, eventually resulting in his being punished with the unprecedented sentence of life in prison.

There are multiple interesting threads within the story: the lives of the people Dr. Duntsch ruined; the medical system which allowed Duntsch to continue performing surgery in spite of this; the inside look into the relationships between different health care providers in the OR and in the hospital; the flagrant, shocking surgical errors made by Duntsch.

One thread is particularly noteworthy to attorneys who represent injured patients who have claims against health care providers – how tort reform in Texas contributed to Duntsch continuing to harm people as long as he did.

Texas, along with most other states, has passed laws restricting the rights of injured patients from bringing claims against health care providers. Ostensibly, the reasons given in support of such caps include saving money on insurance (and reducing the cost of health care for everyone), and protecting doctors from frivolous lawsuits which result in doctors leaving the state.

One significant law passed in many states, including Texas, is a cap on what are called “noneconomic” or pain and suffering damages. This means that, while a patient can bring a lawsuit to recover all of the “economic” harm done to the patient (past and likely future medical bills, lost wages, etc.), the state caps the amount of money a jury can award a claimant for noneconomic damages – the pain, suffering, loss of enjoyment of life, disability, disfigurement, and similar harms.

Texas capped these types of damages at $250,000. The result was that the number of medical malpractice suits plummeted, because it was not worth an attorney’s time, effort and energy to take many such claims because the possible recovery was not worth the risk and expense.

In the cases involving Duntsch, many of his patients who were maimed or killed were elderly or who had low incomes. In many of those situations, because of the cap, it was difficult for many of them to find attorneys willing to take their case.

Lawsuits – particularly as many as would have been brought in this circumstance – would have likely raised eyebrows of Dr. Duntsch’s employers, and likely the hospitals that credentialed him to perform surgeries within its walls. He would have had an increasingly difficult time obtaining the necessary malpractice insurance. All of these things would have worked prevent Dr. Duntsch from continuing to harm patients for as long as he did.

Instead, without such lawsuits, there is even less accountability for health care providers like Dr. Duntsch.

Washington State is one of the few states with no caps on noneconomic damages, and only minor barriers to justice for victims of medical negligence. It is not for lack of trying on the part of the health care industry and corporations which insure them. Such laws impeding patients’ rights have been passed, only for the state Supreme Court to strike them down as unconstitutional.

You can listen to the Dr. Death podcast here:

Dr. Death

You can read about it here:

A Surgeon So Bad It Was Criminal

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If your doctor tells you to call an attorney due to the negligence of another doctor, you might have a case. You also might not.

Posted Monday, October 8, 2018 by Tyler Goldberg-Hoss

Not infrequently we receive calls from potential clients who believe they have a malpractice case, in part because a later doctor told them malpractice occurred, suggested they call a lawyer, or otherwise implied that the care they had received was substandard.

Certainly, when a doctor tells you this, it is an indication that a health care provider did something wrong. However, there are many additional factors that determine the viability of a malpractice case. Factors that the doctor, well meaning as he or she was, likely did not consider when making that comment.

First, telling a patient that a previous doctor did something wrong is very different than telling a lawyer. Often times, when such statements are made, they are in the context of providing empathy to the patient, or otherwise explaining what happened.

It is my experience that the story or statement changes once a lawyer is actually involved, often understandably. When I attempt to contact that doctor to get the same or similar statement, often times I am stonewalled by the doctor’s employer’s risk management office, or my phone calls or emails are not returned. Calling out a colleague to a patient in his or her hospital bed is one thing; doing it with an attorney, or in a deposition, or at trial in front of the doctor and the jury is much different.

Second, while doctors may have an idea of what constitutes malpractice, they often haven’t taken the time to fully review the care in question, including all of the data available to the alleged negligent doctor. There may be another side of the story.

Further, while doctors serve as expert witnesses in legal cases, and testify about whether or not care was negligent, typically there are doctors on each side telling different stories (including doctors defending the care in question by testifying that it was reasonable). In such circumstances, juries determine malpractice based on that testimony, not the doctors.

Third and finally, while the doctor may have just told you that you received negligent care in the past, that is only one part of what makes a successful claim. Another big piece is called “causation” – that is, what did the negligent act cause? In my experience in these circumstances, this does not factor into the thought process of a doctor telling you to call a lawyer. Unless you can prove not only malpractice, but also that the malpractice caused the injury (and the injury is significant enough to justify the risk and expense of litigation), you do not have a viable claim.

If a doctor tells you to call a lawyer: call a lawyer. That is certainly a hint that wrongdoing occurred and you may have a case. But do not be surprised if the lawyer or lawyers you speak with don’t take you case for one or more of the above reasons. Reasons the well-intentioned doctor likely didn’t consider when he or she made that statement.

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