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The CMG Voice

Aging Surgeons and Malpractice

Posted Wednesday, July 23, 2014 by Tyler Goldberg-Hoss

Recently a surgeon friend of mine contacted me. He was calling because a colleague of his was worried about something he heard at a seminar focused on surgical liability: that surgeons are easier to sue once they turn 70 years old.

My friend was concerned enough for his friend that he called and asked for my opinion. I tried to think of the issue with common sense, and I concluded that no such hard and fast rule made any sense. There are likely many excellent surgeons who are past 70. It seemed to me that if the surgeon came across to a jury as competent and able, it would only backfire on me and my client to imply or assert that the surgeon was negligent just because he was older than some magical age.

Interestingly, a recent article came across my desk that considers this very issue. It will be printed in the August 2014 edition of Annals of Surgery and is titled “The Aging Surgeon.” It’s available here (for a fee):

The Aging Surgeon

The article takes what I believe to be a balanced look at the issues surrounding aging surgeons. It is still a potential patient safety problem, as there are now approximately 20,000 surgeons over the age of 70 actively practicing in the United States. The article cites studies that show increased incidence of complications relative to age, including in coronary artery bypass grafts, laparoscopic procedures, and other surgeries. Anecdotally, one surgeon was found to have fallen asleep during a complex procedure.

Addressing the problem is difficult, as these people are esteemed members of their surgical communities, often training those surgeons who are now acting as their chiefs. Mandatory retirement, the article concludes, is not the answer, since that would prevent otherwise very competent surgeons from continuing to practice.

The article advocates for The Aging Surgeon Program as a method by which the surgical community can police itself. It is a two-day comprehensive evaluation of a surgeon’s physical and cognitive abilities. Its goal is to strike a balance, between patient safety and liability risk on one hand, and the dignity of the surgeon and his benefit to his surgical community.

While I’m unsure exactly what solution is best, I am glad to see surgeons balancing their own interests with those of their patients.

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University of Washington Medical Center Ranked 11th Among U.S. Hospitals

Posted Monday, July 21, 2014 by Gene Moen

In a recent report by U.S. News and World Report, the U.W. Medical Center was ranked 11th overall among all U.S. hospitals. In certain areas, its ranking was even higher: 4th in rehabilitation medicine, 6th in oncology, and 10th in diabetes. Nationally, the highest ranking hospitals were Mayo Clinic in Minnesota, Johns Hopkins, Massachusetts General, and UCLA.

The report, just released, ranked nearly 5,000 hospitals in 16 adult specialty categories using surveys from more than 9,500 physicians. Hospitals that are consistently featured high up on the list are seen as some of the best in the nation.

The rankings were based on physician surveys of hospital quality, and those views may be based on research and scholarly publications as much as on direct patient care. What happens to a patient while in the hospital may have little relation to the quality of research done by senior faculty members. Indeed, much of the care in a teaching hospital is done by residents and by nurses, although faculty members may supervise that care. Residents are graduates of medical schools and are doctors, but they are doing specialized training at a teaching hospital such as the U.W.

In our experience, most of the medical malpractice cases we handle against the U.W. or Harborview involve poor decisions by first year residents, nurses, or technicians. Another common area of liability has to do with systems errors, such as failure to have procedures for follow-up of adverse tests or imaging results. As with any large medical institution, patient decisions can be less than optimal when there are numerous providers involved in a particular patient’s care. In teaching hospitals, there are often numerous residents involved, many of them making recommendations or issuing orders. The more “hand-offs” of care between providers, the more room for mistakes to occur.

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Statutes of Limitations and Other Deadlines

Posted Thursday, July 17, 2014 by Gene Moen

Being a litigator means you are often anxious about deadlines. The deadline that produces the most anxiety is the “statute of limitations.” Washington law has many statutory deadlines for filing different kinds of lawsuits, including several that apply specifically to medical malpractice cases. The basic one is the three-year statute of limitations, which means a lawsuit must be filed within three years of the negligent medical care or it is barred. When a client calls and says his botched surgery happened “about” three years ago, the first thing a lawyer has to do is pin down the exact date of the surgery. Missing the statute of limitations deadline by even one day can mean the lawsuit cannot be brought. Most litigators have systems of tracking such deadlines, and even backup systems, to make sure a deadline is not missed. Lawyers sometimes say you can “turn a bad medical malpractice case into a good legal malpractice claim” by missing the statute of limitations.

There are exceptions to this rule. One is called the “continuing course of treatment” rule, which means a lawsuit can be filed within three years of the last date on which there was continued negligence of the same type by the same provider, and the claim can then cover years of bad treatment that occurred more than three years ago. Another is called the “one year after discovery” rule. An injured patient has one year to bring a lawsuit from the time she/he discovered, or reasonably should have discovered, the elements of a medical malpractice claim. This “discovery” rule is subject to another rule, giving an injured patient up to a maximum of eight years after the negligent medical care.

A classic example is an x-ray taken more than three years after a surgery that reveals some error made in the surgery. Without the x-ray findings, the patient could not know that an error had been made. “One year after discovery” cases can be difficult, however, because it is a fact issue when the claim should have been discovered, and the same jury that decides the underlying case also decides whether the statute of limitations has run on the claim. The result can be a great deal of work and resources put into a case, only to have the jury decide against you on the statute issue.

Another exception to the three-year statute of limitations is a “tolling” of the statute if the patient or his attorney submits a “good faith request for mediation” to the health care provider before the three year period runs. The practical effect is that this adds an additional year to the three-year period.

There are also special rules that apply to medical malpractice claims against governmental entities, such as public hospital districts, the University of Washington or Harborview. A statute requires that a state claim form be submitted in such cases, and a lawsuit cannot be filed until sixty days have elapsed following this submission. If the claim form is submitted within sixty days of the running of the statute of limitations, it extends the statute for that additional sixty days.

Finally, in cases involving a federal health care provider, such as a V.A. or military hospital doctor, there are special rules under the “Federal Tort Claims Act.” The statute of limitations for a claim against such an employee is two years from the time the patient discovered or should have discovered the elements of a medical malpractice claim, and the statute is tolled when a formal claim form is submitted. The government then has six months in which to resolve or deny the claim. If it is denied, or after the six months have elapsed with no action, the claimant can file a lawsuit in federal court within six months.

Some clinics that receive federal financial help to provide care to rural or low-income patients are “deemed” to be federal employee for purposes of the federal tort claims act, and the same procedures apply. A medical malpractice lawyer has to be vigilant about determining whether care was provided by such a “deemed” clinic and therefore a reduced statute of limitations applies.

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Communicating Pain

Posted Tuesday, July 15, 2014 by Tyler Goldberg-Hoss

A recent New York Times opinion piece focuses on pain and our ability to communicate about it, both as speakers and listeners. You can find a link to the article here:

How to Talk About Pain

As attorneys representing injured people in medical malpractice actions, it is often a difficult task to get jurors to “feel” our client’s pain and properly compensate them for it. Various words can describe various pains, such as stabbing, burning, and crushing. A particularly useful description from the article is a woman’s description of the pain of neuralgia (a type of nerve pain): “a powerful engine when the director turns some little key, and the monster is at once aroused, and plunges along the pathway, screaming and breathing forth flames.”

Focusing on the hearer of the pain complaints is a difficult subject when treating a patient with pain. Some patients in great pain are loath to call a nurse for additional medications for fear of being a complainer, or shamed as a malingerer. Some folks are stoic about their pain; others less so. Some ask for medications for their pain, others do not.

Similarly, as a juror without the specific experience of the plaintiff’s pain, it’s difficult to stand in the shoes of him or her and empathize. Pain is a complex symptom made more so by the language – or lack thereof – we’ve developed to discuss it. This is particularly the case when asking a jury to allow money damages for it for a victim of medical malpractice. Yet that’s what plaintiff attorneys do every day in courts across the nation.

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Patients suffering from ischemic strokes should be monitored longer for evidence of atrial fibrillation

Posted Thursday, June 26, 2014 by Tyler Goldberg-Hoss

Two new studies looked at people who had ischemic strokes of unknown origin in hopes of learning why the strokes were occurring, and what if anything can be done to prevent these patients from having further strokes.

You can read an article summarizing these new studies here:

Studies urge longer heart monitoring for stroke patients

Every year, approximately 125,000 patients have ischemic strokes and their doctors don’t know why. Without the “why,” doctors can’t form the best plans to prevent these patients from having additional strokes.

Currently, such patients are monitored for 24 hours to rule out atrial fibrillation, a condition in which erratic electrical signals cause the heart to contract abnormally, causing blood to pool and form clots that can then travel to the brain and cause strokes.

This new research suggests that 24 hours is not enough, and these patients should be monitored for 30 days, often with monitors the patient can wear outside of the hospital. Hopefully such monitoring will effectively diagnose atrial fibrillation, and allow doctors to more aggressively treat it and prevent further strokes and death.

Although this may not be the standard of care at the moment, it may be in the near future.

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