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The CMG Voice

Why Juries Tend to Blame Victims of Malpractice

Posted Monday, November 10, 2014 by Gene Moen

Every lawyer who tries medical malpractice cases knows this fact: if at all possible, the jury will try to blame the victim. It is a phenomenon that has been discussed by many attorneys, and the explanation is that this is a form of psychological “self-protection” for a juror. No one wants to think that seeing a doctor or going to the hospital exposes them to bad outcomes, such as those that are the basis for a malpractice lawsuit. They want to feel safe in seeking medical care. So when a plaintiff claims that a doctor harmed them, the jury wants to deflect that risk by coming up with a reason why it was the patient’s fault. They want to feel that “this would not have happened to me, because I would have been more careful.”

A common form of blame: “The patient should have obtained a second opinion.” Focus group participants, and jurors, often assert that they would always seek a second opinion if their doctor recommends a major medical procedure. Yet the reality is that very few people actually seek second opinions because most of them trust the doctor they are seeing.

Another form of fault-attribution: “If the patient had taken care of himself or herself, the bad outcome would not have occurred.” This means that patients who delay seeing a doctor, or who are over-weight, or who smoke, are almost automatically blamed for bad outcomes, even when experts on both sides agree that these were not factors in what happened. When medical records are admitted into evidence, some jurors pour over them looking for anything that indicates patient fault or negligence. For example, in a case involving delay in treating a cardiac condition, the jurors may look to their own experience or knowledge to decide that the patient had a bad diet or did not exercise enough, and that means the patient brought this on himself.

Sometimes the fault attribution becomes almost absurd. In a case involving post-surgical problems leading to death after a cardiac valve replacement, the focus group was given photos of the decedent showing how active he was before his death in order to show how the death resulted only from the post-op care. Some of the focus group participants concluded that he was too physically active for a man his age, and that this was likely the reason why he needed valve replacement surgery in the first place. The bad outcome could thus have been avoided by the patient if he had only taken it easy.

I recall one focus group for a young woman who had developed intractable pain after an injection was negligently given and damaged a nerve. The evidence was that she had sought treatment from a neurologist, a physical rehab physician, an anesthesiologist/pain clinician, and a pain psychologist. One of the focus group members then said “but she hasn’t gone to an acupuncturist, and I would have done that.” The consensus quickly developed that she had not fully mitigated her damages because she didn’t seek care from an acupuncturist. The focus group then deducted 25% from the damage figure they otherwise thought was appropriate.

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The Hazards of Electronic Health Records

Posted Monday, November 3, 2014 by Gene Moen

This blog already contains several posts on the problems of using electronic health records (EHR) in hospitals. If you keep up with medical literature, as we must do in order to handle medical malpractice cases, it is striking that almost every week there is a new article about the perils of EHR. A recent one in Medscape, an online publication aimed at health care providers, summarizes the complaints.

The title: “8 Malpractice Dangers in Your EHR” is telling. It points out risks to a doctor of being sued because of EHR problems, but doesn’t mention that the “danger” isn’t just to the doctor, but to the patient! After all, unless a patient is seriously injured because of an EHR problem, there is no risk of a malpractice lawsuit in the first place.

The article summarizes the problems and perils into several major categories, including:

(1) Copying and pasting text, which can mean incorrect or outdated patient information is repeated and potentially utilized by later providers.(2) The use or non-use of passwords to access the EHR computers, which means that providers may not access key information because they don’t have the password or, in the alternative, if no password is required the information can easily be hacked by outside personnel.(3) Ignoring changes in clinical or medication data because it is “buried” in so much repeated information that it is overlooked.(4) Focusing on the computer screen while in the exam room rather than focusing on the patient, and thus missing key clinical or history data.

The article also points out how the focus on electronic records increases the gap between patients and their doctors, and this widening impersonality can also lead to more risk of someone suing their doctor.

Ask any health care provider who uses EHR — and that is pretty much everyone in today’s medicine — and you will hear many more complaints about how the system works and doesn’t work in their practice. If you ask patients, they may not know how it is affecting them, until there is a bad outcome and an attorney finds out the EHR was a major factor in causing the harm. Ask a medical malpractice attorney, and you will get an entirely new list of EHR perils, mainly involving the difficulty of even finding out what clinical decisions were made, when they were made, and how they were communicated.

Another post on this blog will discuss “audit trails,” a key means by which attorneys travel down the rabbit-hole of EHR to understand what went wrong and how it injured their client.

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Use of Counterfeit Orthopedic Hardware Alleged in California

Posted Friday, October 31, 2014 by Gene Moen

An article in the publication “Outpatient Surgery” describes a lawsuit in California against a number of doctors and clinics, as well as a local machine shop, for making and using “knock-off” screws and other spine hardware. It is alleged that the doctors received part of the profits from implanting an orthopedic screw and charging $12,500 when the counterfeit cost only $300 to make. Of course, the counterfeits were not FDA-approved.

Numerous patients have now joined in a lawsuit, claiming that they had serious medical issues when some of the hardware failed after being implanted. The article states that thousands of patients in the Long Beach, California area may have claims related to this practice.

The business of making and selling spine “hardware” or other orthopedic devices is a huge one in the U.S., involving billions of dollars. Scandals occasionally arise when it is found that a doctor is using a particular brand and getting some benefit in return. An example is a Seattle-area spine surgeon who was indicted by the U.S. Attorney in Texas for getting kickbacks for using a particular brand of spine implant devices. The surgeon was in the Army at the time these events allegedly occurred, so it was a violation of a federal fraud law.

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Tort Reform Does Not Impact Care Provided

Posted Monday, October 27, 2014 by Gene Moen

For years, a favorite myth of those who favor restrictions on medical malpractice lawsuits is that this would reduce the amount of “defensive medicine” that is practiced. Proponents in Congress threw out huge figures in medical care savings if only the trial lawyers were held in check. Those of us who practice in this field of law always thought this was a terribly exaggerated premise.

The New England Journal of Medicine, perhaps the nation’s most prestigious medical publication, just published the results of a study testing the tort reformers’ premise. They systematically studied Emergency Room medical practices in three states that enacted legislation making it almost impossible to hold an ER doctor accountable for malpractice.

The conclusion: “Legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measured by imaging rates, average charges, or hospital admission rates.” In other words, fear of a malpractice lawsuit was not forcing doctors to do more tests, order more imaging studies, or otherwise practice medicine in a “defensive” way.

The true result of the legislation in those three states is that people who are injured because of negligent ER care now have no recourse for their injuries, and the doctors are no longer held accountable when they injure through negligent care. Is it possible that this is the real reason hospitals, physician groups and their insurers lobbied so hard to impose the restrictions on suing for negligent ER care?

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Electronic Health Records Interfere with Doctor-Patient Communication

Posted Friday, October 24, 2014 by Gene Moen

There has been a litany of complaints recently about how confusing electronic health records (EHR) can be and how flaws can result in diagnosis and treatment errors. An example is the possibility that the Texas Ebola patient was not diagnosed in the ER because the EHR entry about his arrival from Liberia was not seen by the doctors who treated him and sent him home. See here for a previous blog post on this issue.

A recent article in the New York Times highlights yet another complaint about the use of electronic health records (EHR). You know how we complain about teenagers who are so engrossed in their digital world that they ignore those around them? It turns out this is a potential problem with doctors, too. The cut-and-paste abilities of EHR means there is a huge amount of repetitive information that has to be picked over to pull out the key facts needed, such as in making a diagnosis. That means the doctor is often hunched over the computer screen trying to find that information rather than turning around and talking to her patient.

Every medical school teaches the importance of history taking. Indeed, some medical educators think it is the single most important subject to teach medical students. That history is to be taken directly from the patient, not from perusing another provider’s version of that history. Short-cuts, like having the patient fill our a lengthy health questionnaire, may save some time for the physician, but often that information is ignored. As the New York Times article said: “Force the doctor to take notes, and the doctor will usually remember. Ask the doctor to read, and the doctor will scan, skip, slide, omit and often forget.”

Asking others to elicit the history has the same pitfalls. In a recent case, the triage nurse in the ER noted that the patient had a family history of cardiovascular disease, but the doctor didn’t see this when he examined the patient and didn’t bother to take his own history. The result: the patient was sent home when she should have been referred to a cardiac workup. The Times article summed it up: “Like good police work, good medicine depends on deliberate, inefficient, plodding, expensive repetition. No system of data management will ever replace it.”

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