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The CMG Voice

Jurors want a motive for why the doctor acted the way he did

Posted Wednesday, April 12, 2017 by Tyler Goldberg-Hoss

When one of my clients brings a case against a health care provider, it often feels like climbing up a mountain. A big reason is, unlike a claim involving a car crash, my client is pointing the finger directly at a health care provider, someone who has gone to a lot of school to learn how to help people, and was likely trying to help your client.

In my experience, doctors and nurses enjoy the benefit of the doubt in cases alleging bad care. Absent egregious wrongdoing, most folks are willing to give professionals in white coats a pass, even if the care is less than ideal.

One way to tip the balance and level the playing field is if you can show a bad motive on the part of the doctor or nurse for their actions. It is rare to find such things, as they are often not written down in a patient’s chart.

Still, once in a while you can gather enough evidence to show that, at least circumstantially, the defendant doctor, nurse or hospital was prioritizing other than the patient’s best interests.

A recent Seattle Times exposé shed light on a possible motive for poor medical care. The case of Dr. Johnny Delashaw, formerly of Swedish Hospital, highlights one possible motive: greed.

The series highlighted Swedish’s desire for increased revenue through this high-producing neurosurgeon, including an amazing $86 million in billed charges for the hospital in his first 16 months there. Allegations include unnecessary surgery, residents doing the bulk of surgeries while Dr. Delashaw was out of the OR, and a lack of resources to deal with post operative complications.

The ordeal at Swedish with Dr. Delashaw highlights my point: folks will forgive bad outcomes when doctors are trying to help; but when they find wrong motive, they are less forgiving.

You can read some of the fine journalism from the Seattle times here:

Quantity of Care – A special Investigation: High Volume, Big Dollars, Rising Tension

Top neurosurgeon Johnny Delashaw resigns from Swedish

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Need to go to the ER? How about Uber?

Posted Monday, April 10, 2017 by Tyler Goldberg-Hoss

If you have ever needed an ambulance to take you to a hospital, you likely were in some distress. Assuming the distress was transitory and you recovered, you likely felt distress again when you received the bill from the ambulance.

Enter ride-sharing apps such as Uber and Lyft. Increasingly, those who need a ride to the emergency room are dialing up one of these services instead of calling 911.

Cost is certainly a motivating factor for some. Another is the patient can pick the hospital he or she wants to go to, unlike many ambulances who often have to take you to the nearest one.

Reliability is another, with many people, at least in urban locations, feeling like Uber and Lyft are more predictably around and available than ambulances.

Even some emergency medical providers like the idea, at least in “non-emergency, low-acuity” cases, where the person needs medical attention but it is not life threatening. Using a ride sharing app in such circumstances reduces the stress sometimes placed on ambulances, allowing them to focus their resources on the high acuity patients who really need them.

In fact, in Washington, D.C. they are studying whether its 911 operators should be routing calls to triage nurses, who could then determine whether the patient needs an ambulance, ride-sharing service, or something else.

Certainly, there are drawbacks. Drivers for these services cite the possible liability attached to giving a ride to a person in obvious need of medical attention. Ubers can’t speed like ambulances, and it can be difficult to judge what is an actual emergency versus not.

You can read more about this here:

For a trip to the ER, some are opting for Uber over an ambulance

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Tort “Deform” Still Threatens Medical Negligence Plaintiffs On The Federal Level

Posted Thursday, April 6, 2017 by Gene Moen

Part of the Trump/Ryan health care bill that was pulled from the House for lack of votes, included some draconian provisions that would have made medical malpractice cases much for difficult to bring. Among other things, it would have imposed a “cap” on non-economic damages that would have limited such damages to $250,000, and also imposed limits on attorney fees that would mean lower fees on larger settlements or verdicts.

In other words, it would impose a sliding scale in which fees could be a fixed percent of the first $100,000, a smaller percent of the next $100,000, etc. The larger amounts would be limited to a 15% attorneys fee. Of course, the proposed law imposes no limits on the amounts defense attorneys could earn in resisting meritorious claims. Put another way, it would not cap what insurance companies can pay to fight the claims while, at the same time, limiting what a claimant can pay to fight for his rights.

It is hypocritical that Republicans, who believe in a free-market economy, would favor federal intrusion into what a willing client can pay his or her attorney to bring a medical malpractice lawsuit. It is also hypocritical that those who favor states’ rights, as most Republicans do, abandon those principles when it comes to medical legal cases. Tort law has been a state law prerogative from the beginning of our nation. Of course, the push to limit medical negligence cases has nothing to do with principle. It has everything to do with the power of the medical industry and the insurance carriers to limit the ability of an individual who is injured through medical negligence to seek redress through our justice system.

In practical terms, if the new law passed it would probably shut down most malpractice cases. The cases are extremely difficult as it is, with only a small percentage prevailing at trial. The costs needed to mount a serious case are such that few attorneys will bring them. The defendant hospitals and physicians have always been able to out-spend the claimants, and under the new law they can use that ability even more since the claimants’ attorneys could not get paid enough to justify the resources, including time and money, needed to bring a claim.

The new Secretary of Health and Human Services, former Representative Tom Price, is a physician who has fought for many years to restrict the legal rights of patients. We should assume that this fight will continue as long as he is in that position and the Republicans control the government.

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Use Of Scoring Systems In Determining Emergency Department Care

Posted Monday, April 3, 2017 by Gene Moen

Americans are increasingly relying on hospital emergency rooms to treat all manner of injuries, even minor ones. That places a high priority on decision models about which problems need emergent care, including expensive imaging studies. There are many clinical decision rules to stratify patients in terms of risk, but some of the most important are the Canadian Head CT Rule and the New Orleans Criteria.

Both are intended to reduce radiation exposure — and expense — from the frequent use of CT scans. Each of the systems utilizes a list of criteria, such as age, mental status after injury, vomiting and nausea, and amnesia. They vary slightly, with the Canadian rule using age 65 as the bottom age, while the New Orleans criteria uses the age of 60. The New Orleans criteria states that post-trauma headaches are a sufficient basis for ordering a CT while the Canadian system does not include that clinical indication.

Chest pain — perhaps the most common and most risky of presenting symptoms — is the focus of a scoring system called the HEART score, which stratifies patients according to history, EKG, age, risk factors for heart attacks, and the results of a troponin blood test. If patients have three or fewer of the enumerated risk factors, they have a 0.9-1.7% risk of a negative cardiac outcome in 30 days. Some studies show that this scoring system is as good or better than a stress test in establishing such risks.

None of the scoring systems for ER patients provide a “standard of care” in and of themselves, but they can be very useful for attorneys who are deciding whether a case has merit. Even if not admissible as establishing the standard of care, they also provide an excellent checklist that can be used by claimants’ attorneys in deposing doctors about their ER decision-making.

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Medical Group votes to eliminate 16 hour cap on work day for first year resident doctors

Posted Friday, March 31, 2017 by Tyler Goldberg-Hoss

Since 2003, the Accreditation Council for Graduate Medical Education has established work standards for resident doctors in the United States. This includes caps on hours worked in a week and in a day.

Originally, the group determined that it was safe for doctors in residency to work up to 24 hours a shift, and as many as 80 hours a week. Then research highlighted the safety concerns of these doctors in training being sleep deprived, leading the group to shorten the work shift day for first year residents to 16 hours.

Now, the group has reversed itself, again allowing the most rookie of doctors to work 24 hours continuously.

Proponents of the shift back to the 24 hour cap say that resident have complained that they have had to end patient interactions abruptly rather than finish up. Opponents have cited the same safety concerns for patients, and called the system “patriarchal hazing.”

You can read an article about this here:

Rookie Docs Can Work Longer, 24-Hour Shifts Under New Rules

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