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The CMG Voice

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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A Reminder Of The Value Of Checklists In Medicine

Posted Thursday, October 4, 2018 by Gene Moen

A family member recently attended a “fear of flying” program at SeaTac Airport. She and the other participants met with pilots and other professionals and even visited the air traffic tower and spent some time on the flight deck of an airplane. She was very reassured about the safety procedures that were followed by almost all the members of the “flight team.” She commented about how extensive and exhaustive were the checklists used by the pilots before they took off on a flight and how this avoided the risk of missing some crucial step in getting ready to fly.

It made me think of a recent article I read about the use of checklists when, in a long surgery, a new anesthesiologist takes over anesthesia services. Studies have shown that this kind of “hand-off” can create risks to patient safety. One study showed that there was a combined 14% increase in mortality, hospital re-admission, and major complications occurring within 30 days after an operation in which there was a change of anesthesiologists.

Experts studying this problem felt that the hand-off could be viewed as an opportunity to correct errors if there was the use of a checklist at the time the care is transferred. They concluded that this “might prevent an inadvertent oversight of a required action and resultant patient harm.” Having familiar and standardized communications techniques and tools, such as checklists, can make the hand-off a means of assuring continued good anesthesia care.

A few years ago Dr. Atul Gawande, a surgeon, wrote a book entitled “The Checklist Manifesto.” One reviewer of the book commented that “the routine tasks of surgeons have now become so incredibly complicated that mistakes of one kind or another are virtually inevitable: it’s just too easy for an otherwise competent doctor to miss a step, or forget to ask a key question or, in the stress and pressure of the moment, to fail to plan properly for every eventuality.”

Gawande then visits with pilots and the people who build skyscrapers and comes back with a solution. Professionals, including doctors, need to use more checklists. Note that the pilot checklist that impressed my family member was a partial source of the idea of using such checklists in medicine as well as flight.

In Dr. Gawande’s book, he notes that a secondary advantage of mandating checklists in the surgical setting is that it empowers the non-physician members of the operative team to intervene when a surgeon is rushing into the operation or avoiding some of the steps in the checklist that should be taken. The importance of this was highlighted when the Washington Medical Quality Assurance Commission recently suspended the license of a high-powered neurosurgeon because he had an anger-control problem and would berate other health care providers when they would question what he was doing.

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New case report finds chiropractic adjustments can cause vision problems

Posted Wednesday, October 3, 2018 by Tyler Goldberg-Hoss

The American Chiropractic Association reports that there are over 75,000 chiropractors in the US treating over 35,000,000 Americans every year.

Presumably, most of those visits do not result in negative health consequences. However, occasionally patients are harmed by chiropractic care, just as with other treatment modalities.

It has been known for some time, for example, that “high-velocity, low-amplitude” (HVLA) cervical (neck) manipulation can cause arterial dissections, which can lead to serious consequences such as stroke or death if not timely diagnosed and treated.

However, a new case report published by the American Journal of Ophthalmology found a connection between HVLA manipulation and damage in the eye, specifically the retina.

The report notes that the adjustment can cause not only indirect harm to the eye by occluding an artery providing blood to the retina, but can also more directly damage the eye. This can occur both with bleeding in the eye, as well as “posterior vitreous detachment”, where the manipulation causes the vitreous humor (the jellylike tissue filing the eyeball behind the lens) detaches from the retina.

Of course, complications such as dissection or vision problems are unusual. Still, this report supports the position held by many health care related associations that HVLA neck manipulations are not risk free, and carry small but known risks of potentially catastrophic consequences.

You can read the full article here:

Preretinal hemorrhages following chiropractor neck manipulation

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Will the Apple Watch heart-monitoring app make you healthier?

Posted Monday, September 17, 2018 by Tyler Goldberg-Hoss

Recently Apple came out with a new feature for its Watch – a heart monitoring application that can accurately detect a person’s irregular heart rhythm, among other things. In fact, Apple sought and received FDA approval as a “Class 2 Medical Device”. Such a rhythm, called atrial fibrillation or “a-fib”, can have serious health consequences, increasing the risk of stroke and heart failure.

Certainly, finding undiagnosed a-fib can be a good thing – leading to simple, non-invasive treatment (typically blood thinning medication) that may avoid catastrophic consequences. However, problems can arise if the app “catches” an irregular heart rhythm, yet it is a false positive: it says you have it when you don’t.

It can also signal other potential red flags for users who, without any medical training, may incorrectly interpret the results. For example, a long distance runner will be prone to lower heart rates (bradycardia). This isn’t necessarily a bad thing, yet inexperienced wearers may be sufficiently alarmed to seek medical attention.

These and other unintended consequences have the potential to increase the number of visits to health care providers by Apple Watch wearers concerned about non-existent medical conditions. And those same doctors may be in for a “data dump” – patients sending in EKG readings over and over again.

This increases the load on the medical system, and may further result in unnecessary testing, some of which may carry risks. Further, from a medical negligence standpoint, what duty arises on the part of the health care provider whose patient sends in EKG data from his or her watch? If the EKG is one of dozens sent in, and shows an undiagnosed irregularity, and the patient goes on to suffer a stroke, what then?

Certainly this new application shows promise. It does however come with the possible for unintended, and negative, consequences. More data is needed before coming to any definitive conclusions, at least in the form of how these Watches are used in the context of health care.

In particular, one would hope as more and more gadgets are used to monitor vital signs, that health care institutions and organizations governing health care develop reasonable guidelines for accepting, analyzing, and using such data in the future.

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