Archive for November, 2010

Malpractice System Doesn’t Improve Patient Safety – Oh, Really?

Tuesday, November 30th, 2010

When I woke this morning, I was trying to think of some good subjects for a blog. Writer’s block – or topic block – struck. With some draft posts sitting in my WordPress queue, I gave thought to putting the final touches on one, but it was just not ready. Still stuck, I headed for Google Reader, and there it was – a posting by KevinMD.com on MedPageToday entitled “The malpractice system doesn’t improve patient safety.” Problem solved. Topic served on a platter. Thanks, Dr. Kevin!

Dr. Kevin (Kevin Pho, M.D.) has been a source of inspiration on more than one occasion. I’ll give it to him – he writes on matters that are “controversial” and many times has the “call to action” concept of blogging down to a science. So here’s my return “call to action.”

Dr. Kevin’s Argument

In his blog, Dr. Kevin acknowledges that in the “world of medical error, truth is often clouded in secrecy.” He then points out that “…taking the bold step of publicly describing your mistake is a brave one. Some would say it’s long overdue.” Well so far, Dr. K, we’re on the same track!

He then poses the question:

There have been studies that show an apology and admission of error lead to a lower rate of being sued. Beyond the malpractice implications, it’s simply the right thing to do. So, why isn’t it happening more often?

Dr. Kevin then provides a commentary by Hillary Clinton and Barack Obama in a perspective they “penned” in 2006 in The New England Journal of Medicine to the effect that “many errors in medicine are not due to bad doctors intentionally trying to hurt patients, but on system-wide errors…”

I’m wondering if Dr. Kevin appreciates the difference between the concepts of negligence and intentional tort? If there are physicians intentionally trying to hurt patients, we have a bigger problem on our hands than I ever realized. Whose conduct leads to “system-wide errors”? Answer: the health care providers and administrators of health care facilities whose acts of omission or commission create such system-wide errors and/or permit them to exist.

After citing the now famous statistics of the 1999 Institute of Medicine (IOM) report that told the public that “as many as 98,000 deaths in the United States result of failed system and procedures,” Dr. Kevin then gets to the root cause analysis of his polemic:

The malpractice system does a lousy job to improve patient safety (along with poorly compensating injured patients). * * * Every error should be discussed in the open, used to improve the care of our patients, and reduce the risk of future mistakes.

The fact that that’s not happening can be chalked up to the adversarial nature of our flawed malpractice system, which encourages secrecy, suppresses apologies, and does little to improve patient safety.

Well, Dr. Kevin, you and I now go different paths.

Open Discussion To Improve Patient Safety

So exactly what is this system in place to have an “open discussion to improve patient safety,” Dr. Kevin? Physicians have had a system of policing themselves for a long, long time. I believe you call it peer review. If this system is so effective, why, after decades of having an “open discussion” (that is done in secrecy, by the way) do 98,000 deaths occur in this country annually. The IOM report was ostensibly designed to create a reporting system of errors to identify, analyze and correct these so-called “system-wide errors.” Interestingly, I haven’t seen an update on just how the death rate has decreased in the last eleven  years! It’s a great concept but only as good as its implementation. Are deaths, catastrophic injuries, life-altering errors still occurring at an alarming rate? Oh, I suspect so – based on the number of calls our firm gets from people whose lives have been turned upside down after suffering from bad medical care.

The indisputable theme of Dr. Kevin’s post is that the reasons  patient safety has not improved at an acceptable rate is because of the media (e.g. in its unfair and hyped coverage of “Dr. Ring’s story” ) and “to the adversarial nature of a flawed malpractice system, which encourages secrecy, suppresses apologies, and does little to improve patient safety.”

Really? Let’s take a look at the reasons Dr. Kevin espouses.

Encourages Secrecy

The last time I checked, which was yesterday unless something happened after I left work last night, lawsuits are played out in public forums. Where do you conduct peer review, Dr. Kevin? What laws do you have that make the investigations of those peer review sessions not discoverable in lawsuits? In a lawsuit, both sides get to put it out there in public. Seems to me that a bit more of an “open discussion” than your self-policing, which, by the way, doesn’t seem to have done a great job of improving patient safety.

I fully understand the concept behind the protections of peer review. In essence, the protections are premised on the belief that if peer review is not protected from disclosure, an honest, open assessment of care rendered (for improvement in care) will not take place. What I don’t understand is why, when one’s peers find fault, a health care provider and/or the insurer simply fight to the bitter costly end of litigation in order to prove their peers wrong. Have you done an analysis on the costs associated with defending medical malpractice cases where the care is outright poor? I’ll bet that’s an astounding figure. Maybe correction on that score would improve the cost of medical care.

Suppresses Apologies

I suspect what the good doctor is referring to is the concept that if a physician apologizes for his/her malpractice, this might be used against him/her in a court of law as an admission against interest. Well, Dr. Kevin, have you been keeping track of the legislative proposals that would make such “admissions” – inadmissible? I might suggest that the medical profession spend time advocating for that legislative change rather than condemning the “flawed malpractice system” I would also invite attention to the programs that are apparently still in their infant stages whereby hospitals and health care systems do admit fault and seek early case resolution. Query: just how well have these taken off? Seems like this is a good idea – in theory. Any particular reason the medical profession hasn’t embraced the concept nationwide? While cogitating on that issue, perhaps some can also share their thoughts on why it is that the care givers think about the legal implications first when they are meeting with a family whose lives have been devastated by outright negligence. I believe it is you, Dr. Kevin, who writes blogs about physicians being patient advocates. Is this just another theoretical concept that your colleagues have a hard time putting into action? Just a tip – there are ways to apologize and have such apologies remain inadmissible in a court of law. Perhaps you ought to check those out and share them with your colleagues who are standing in line to apologize for their malpractice. Just a hint: confidential, early intervention proceedings. They would go a long way with the families whose lives have been ruined. But…does the medical community really need protection to just admit malpractice has occurred – when it has? Apparently so… Oh, I forgot, it’s the flawed malpractice system and the press, not the basic integrity of the health care provider, that are the root causes of the problem.

Does Little to Improve Patient Safety

I respectfully disagree, Dr. Kevin. Are you suggesting that when a meritorious lawsuit is brought that it doesn’t make at least those involved more aware? Do you accept the proposition that such health care providers might make better decisions/judgments when faced with a similar clinical situation?

Having previously represented physicians and health care institutions for decades before representing the victims of medical malpractice, let me assure you that the message does resonate with many, if not most, defendants in a medical malpractice case.

Interestingly, it has also affected those who are not directly involved. Do you really think that verdicts in cases aren’t discussed by other health care providers? Do you really believe that when bad care has occurred and has seriously injured someone that colleagues haven’t paused and self-examined their own practices – hopefully not repeating the same mistake(s)? I refuse to believe that so-called physician hubris is really that bad? In fact, my extensive experience with physicians has led me to believe that there lives are dedicated to doing the right thing for their patients, which could well include self-analysis of prior conduct.

There are so many excellent, dedicated health care providers who do take stock of the practices of others played out in litigation and change their own practices. I have personally witnessed dedicated, caring health care administrators and risk managers undertaking “root cause analyses” to correct system failures. Many, many times the genesis of these analyses are medical malpractice cases they have had to confront.

I am constantly being told by expert witnesses on both sides of litigation that they have learned so much about practice issues and patterns that it has helped them improve their own practices for the betterment of patient safety. Maybe they were all just making this up, but I think not!

Permit me to share another piece of information. One of the primary motivations – at least for our clients – for bringing a lawsuit is not about money – it’s about the client’s hope that some other patient won’t suffer the same fate they did. Others just want to know what happened. Maybe if the medical profession were to adopt a policy of honesty, open discussion and willingness to admit fault when it occurs, there would be fewer lawsuits and improvement in patient safety.

That really is what it’s all about, Dr. Kevin. Believe what  you want; however, practice what you preach: be a patient advocate.

An Invitation for an “Open Discussion”

Dr. Kevin, your posts and those of  your guest bloggers have been applauded by me and many others for a long time. They are thought-provoking, well written and – yes – many times controversial. As you know, one of the hallmarks of a good blog post is a call to action. Well – here’s my call to action.

Perhaps a public airing of some of the key issues relating to the malpractice system (which is flawed in a number of respects) and the health care system (which is not free of its own flaws) would lead to improvement in patient safety and the betterment of both systems. You and your readers just might be surprised as to how many things there are about which we might agree. There is no doubt that we may have to agree to disagree, but maybe – just maybe – a public airing of these issues will have the same result – true improvement in both systems.

DARVON AND DARVOCET WITHDRAWN FROM U.S. MARKET – WHAT SHOULD YOU DO IF YOU ARE TAKING THESE MEDICATIONS?

Tuesday, November 23rd, 2010

Last week, the manufacturer of Darvon and Darvocet, Xanodyne Pharmaceuticals, agreed to withdraw these drugs from the market in response to FDA requests.  The FDA has also requested that generic drug manufacturers also stop marketing propoxyphene-based pain killers like Darvon and Darvocet. These drugs were withdrawn from the U.K. market almost six years ago. About a year and a half ago, the European drug agency also placed a ban on propoxyphene-based pain killers. An estimated 10 million Americans are taking propoxyphene-based drugs.

Although propoxyphene was always associated with a number of complications, the FDA’s request was prompted by new studies revealing the drug’s serious cardiovascular side-effects. The FDA was petitioned on a number of occasions to pull propoxyphene off the market. The latest petition came from the public interest group Public Citizen in 2006.  The FDA submitted the petition to an expert advisory committee that voted in favor of withdrawing the medication in 2009 (14 to 12 ).

The FDA did not request that the medication be removed from  the U.S. market in 2009. Instead, it requested that the manufacturer of the drug, Xanodyne Pharmaceuticals, Inc., conduct research to study the effects of the drug on the heart. This new research revealed that people taking propoxyphene (Darvon, Darvocet and  the like) can develop abnormal or fatal heart rhythm.  These findings prompted the FDA to request the withdrawal of the medication. Propoxyphene is also associated with the following cardiovascular complications:

  • Tachycardia
  • Cardiac/respiratory arrest
  • Congestive heart failure
  • Myocardial infarction
  • Hypotension

Some other side effects include:

  • Drug overdose/toxicity
  • Drug dependence/withdrawal
  • Anxiety
  • Nausea
  • Vomiting
  • Drowsiness/ dizziness
  • Hives
  • Difficulty breathing
  • Chest tightness
  • Swelling of the face, mouth, lips or tongue

The Public Citizen group has claimed that about 2000 people in the U.S. have died as a result of propoxyphene in the last six years. The good news for those taking Darvon, Darvocet or a similar drug is that the cardiovascular side effects of these drugs are not cumulative. Therefore,  the risk of developing cardiovascular problems should go away once the drug is stopped.

If you are taking Darvon or Darvocet, DO NOT stop taking the drug until you talk to your doctor. Sudden interruption of the medication can lead to serious withdrawal symptoms.  If you are taking propoxyphene-based medications, contact your doctor immediately so that you may be transitioned to a safer pain killer.

Photo: pharmer.org

The 22Tweets Interview Experience: An Invaluable Lesson Learned

Friday, November 19th, 2010

Some weeks ago, I was contacted by Lance Godard of The Godard Group, who asked if I would be interested in being interviewed live on 22Tweets at some future date. The concept of the show is for Lance to provide a forum, using the concept of a Twitter mash-up, for lawyers who tweet to tell their story “one tweet at a time.”

We were able to coordinate a date and the interview took place this past Tuesday. As you might expect, the interviewee is presented with twenty-two questions by Lance. The questions and responses are presented in live streaming format on Twitter.

For those of you who are not familiar with Twitter, your message is limited to 140 characters, which is somewhat of an oxymoron – lawyers limiting their world-shaking thoughts to just 140 characters?!

Getting ready for the big day, I studied some of Lance’s interviews with other lawyers. Sweat broke out on my brow. I wondered – how do you answer questions such as these:

  • Tell us about your law practice
  • Tell us about the clients you represent. Who are they?
  • Why do your clients hire you?
  • What do you tell every new client before you start working for them?

If that wasn’t bad enough, I then was queried about the following:

  • Your firm has a blog, Eye Opener (http://bit.ly/bqnokj). Who is it for? Why should they read it?
  • In addition to the blog, you’re active on Twitter and have a Facebook page. What’s your social media strategy?

Try it some time. Figure out what you do, how you do it, and then the biggest question of all – why you do what you do – all in roughly 140 characters!

After the panic subsided, I started to appreciate what a wonderful opportunity this whole process was – no, not just for exposure or for “getting the word out” about our firm, our philosophy and the like. I had to truly reach into the core of our firm, our clients and our soul to answer Lance Godard’s 22 questions.

Fortunately, a few days before going live on 22Tweets, I happened across a video presentation by Simon Sinek on TED entitled How Great Leaders Inspire Action.

Find about 18 minutes of time and watch this inspirational piece. You won’t be disappointed.

httpv://www.youtube.com/watch?v=u4ZoJKF_VuA

Sinek has created a construct known as the “golden circle.” He asks, why does your organization exist? Why do you get out of bed in the morning? Why should anyone care about your organization? What do Apple, the Wright brothers and Martin Luther King have in common?

He effectively argues that people respond to the why of what you do. People want to do business with those who are able to “communicate from the inside out” – the why is shared with them, and they respond if the why resonates with them. He then warns – if you don’t know why you do what you do, then why would people want to hire you or be inspired by you.

Other gurus in fields such as marketing, branding and the like talk about “defining your goals” and “identifying your niche.” Sounds like the same why question, doesn’t it?

Thankful to people like Simon Sinek, who made me consider the why of what we do, I began my quest to define our why so that I could respond to my upcoming 22 questions.

Lance Godard and 22Tweets were really the ones who forced me to step back and think about issues I should have be contemplating for some time now. I will be forever grateful to him and 22Tweets for doing so. Whether I was able to communicate “our why,” I leave that to others to judge. I only know I will continue to consider some of those 22 questions and try to figure out as best I can – why we do what we do at Nash & Associates. Hopefully we will get a better understanding of ourselves and our clients as we explore and better answer that question.

I hope you in the legal profession get the opportunity that was afforded to us by Lance Godard of 22Tweets. We will always be thankful to him and his group for that wonderful opportunity to get to know ourselves more so that we can serve our clients better.

High-paying Jobs for Women Cause Women to Pay a Price in Cardiovascular Health

Thursday, November 18th, 2010

High-paying jobs typically equate to high-stress jobs for most individuals, that is, fast-paced jobs with a lot of responsibilities and little creativity.  As women have entered the workforce and fought for equality in all types of employment situations, they have slowly and gradually been successful in most venues; we have yet to see a female President of the USA.  Some jobs are much more creative allowing the expression of individual skills while others require strict adherance to company policy (or parent company policy), little decision-making ability, and productivity-driven payscales.  These latter types of jobs, regardless of the gender of the employee, often lead to job strain, a type of psychologic stress that seems to have potent effects on an individual’s health.

This week, the great city of Chicago (a bustling hub-bub of big corporations and highstress jobs) hosted the American Heart Association’s annual meeting.  Abstract 18520 was presented; it was titled, “Women with High Job Strain Have 40 Percent Increased Risk of Heart Disease.”  The study elaborates on details related to job security and the types of cardiovascular ailments.  This was a landmark study, funded by the National Institutes of Health (NIH), called the Women’s Health Study, and it followed 17, 451 women and their development of cardiovascular disease over a 10-year period.  Previous studies related to stress and cardiovascular disease have focused on men.

Women with high job strain were at a 40% increased risk overall of heart attack, ischemic stroke, coronary artery bypass surgery, balloon angioplasty/stent and even death!  The increased risk of heart attack alone in these women was 88%! The study further delineates that even women in high stress jobs who have significant control over decision-making are also at an increased risk long-term of cardiovascular disease.  Women who suffer job insecurity (fear of losing one’s job) are at risk for particular risk factors that contribute to cardiovascular disease (high blood pressure, high cholesterol, obesity), but no direct correlation to the end-effects of cardiovascular disease could be statistically supported.  This truly supports the notion that psychological stress plays a role in the development of cardiovascular disease.

The National Women’s Health Information Center is a government-sponsored organization that collects information on all types of women’s health topics and offers up-to-date information and advice on the topics.  In the Heart Health and Stroke section, the statistics are numbing; coronary artery disease is the number 1 killer amongst women while stroke is the number 3 killer of women.  In other words, women are 4 to 6 times more likely to die of heart disease than of breast cancer according to the American Academy of Family Physicians (AAFP).

Interestingly, breast cancer has much more awareness and publicity as compared to women and heart disease.  This is surprising since the symptoms of heart attack or angina pectoris in women are often atypical, much like the silent growth of microscopic cancer cells in women’s breasts.  Women, for whatever reason, do not necessarily experience the “crushing chest pain” that most people equate with a heart attack; they might develop generalized fatigue or weakness, lightheadedness, back pain, upper abdominal discomfort or simply a feeling of nervousness or anxiety.

Hmm- try being a highly-stressed 48-year-old female executive telling an ER doctor that you are feeling anxious and a little short of breath; you will be given paper bag for breathing and a Valium pill to take instead of an EKG, aspirin, oxygen and nitroglycerine.  A male would most likely get the second treatment!  Litigation involving this aspect of medicine often involves a failure to diagnose the disease.

Now, let’s get back to this landmark Women’s Health Study.  There is finally a long-term study that reports some very frightening statistics for women.  It is time for women to start advocating for themselves and performing primary interventions such as exercise, healthy weight maintenance, smoking cessation, low-fat/high fiber diets, and routine physical exams.  Both the AAFP website (linked above) and the U.S. Food and Drug Administration website offer tips for reducing women’s risk of heart attack and stroke; they will soon have to incorporate job-related stress as potential risk prevention interventions.  Employers, as well, might need to re-examine work policies and provide stress-relief activities for their employees, especially of they do not want to lose them to premature death and disability.

Another abstract presented at these same American Heart Association Scientific Sessions in Chicago addressed a controversial but nonetheless seemingly stroke-protective intervention.  From men’s and women’s  studies, mild to moderate alcohol consumption on a daily basis is associated with a reduction in risk of heart attack, but women were limited to one alcoholic beverage per day.   Abstract 19870 titled, “Alcohol Consumption and Risk of Stroke in Women,” concluded that women who consumed moderate amounts of alcohol on  a daily basis were not at an increased risk of stroke and may be healthier overall in the long-term.

The women in our office got a good laugh when these studies were placed side-by-side since our conclusion was that the boss should sponsor a happy hour on a weekly basis! All kidding aside, these new data offer both  some chilling reality checks and some hope that more research regarding modern women’s health topics will be on the horizon.  One thing is for sure — there needs to be more awareness, advocacy and primary prevention!

What programs do you have at your workplace for stress reduction?

Photo from the-invisible-gym.com

Editorial Comment (Brian Nash): To all employees (especially the women!), there will not be a firm-sponsored, weekly Happy Hour. Nice try, though.

Mammography the “Australian Way” – Why aren’t we doing this in the US?

Wednesday, November 17th, 2010

I came across an online article today by Marianne Betts of heraldsun.com.au that there was a problem regarding mammogram reports that had gone out to over 5,000 women who recently had this test performed. There was apparently a breakdown in their review process, which required massive notifications to the women involved.

While this is no doubt very serious business for all concerned, I decided to post this blog for an entirely different reason. I simply was not aware that in Australia, two radiologists read mammograms independent of each other as a normal practice.

A senior radiologist, Professor Jenny Crawson, is quoted as saying that this standard practice of two separate, independent radiology reads (i.e. interpretations) is standard practice in Australia was a “proven success.”

The article goes on to report that with this practice, if both radiologists agree the images are “clear” (no evidence of detectable suspicious lesions/cancer), then the patient is given the “all clear” notification. However, if they disagree, the opinion of a third radiologist is sought.

Dr. Cawson is then quoted to say:

There’s a lot of  scientific evidence that if you have two radiologists reading mammograms you have a higher detection rate of breast cancer than if you have one radiologist.

So it’s a quality assurance mechanism to maximise cancer detection.

Have any of you heard of this practice being followed anywhere else? Anywhere in the United States? Is anyone aware if this program or practice has been studied in the United States or elsewhere in terms of effective higher detection of breast cancers? If we are not doing this (which I’ve never heard of) here in the US, why not? Cost?

I would really like to hear what you know about such a practice.

Image from norwalkradiology.com

Should You Be Concerned About Cancer If You Have Lupus?

Tuesday, November 16th, 2010

Did you know that people with lupus are more likely to develop cancer?  According to a recent study presented at the American College of Rheumatology Annual Scientific Meeting, patients with lupus are 15 % more likely to develop cancer when compared with the general population.

The study also revealed that patients with lupus are three times more likely to develop lymphoma (cancer of the white blood cells) and that woman are less likely to develop estrogen-sensitive cancers if they have Lupus (breast cancer – 30% decreased risk, endometrium – 51% decreased risk,  ovary – 44% decreased risk).

With respect to other carcenomas, the following correlations were established:

  • 3.4 times more likely to develop non-Hodgkin’s lymphoma
  • 3.2 times more likely to develop any lymphoma
  • 2.8 times more likely to develop vulvo-vaginal cancers
  • 2. 2 times more likely to develop liver cancer
  • 1.7 times more likely to develop leukemia
  • 1.7 times more likely to develop cervical cancer
  • 1.2 times more likely to develop lung cancer

Systemic lupus (systemic lupus erythematosus or SLE) is an autoimmune disease, whereby the body’s immune system is unable to distinguish between harmful or foreign substances/tissue and normal/healthy tissue. As a result, the immune system ends up fighting healthy tissue as if it were diseased. Some of the symptoms associated with lupus include:

  • Arthritis
  • Fatigue
  • Fever
  • General discomfort, uneasiness or ill feeling (malaise)
  • Joint pain and swelling
  • Muscle aches
  • Nausea and vomiting
  • Pleural effusions
  • Pleurisy (causes chest pain)
  • Psychosis
  • Seizures
  • Sensitivity to sunlight
  • Skin rash — a “butterfly” rash over the cheeks and bridge of the nose affects about half of those with SLE. The rash gets worse when in sunlight. The rash may also be widespread.
  • Swollen glands

If you have lupus, you must appreciate your risk for developing cancer. The key to successful cancer treatment is early detection and treatment. Make sure that your doctor is aware of your lupus condition and that your risk for developing cancer is properly and systematically assessed.

Photo: from http://articles.elitefts.com

Are Your HIPPA Privacy Rights Really Being Protected? New Study Suggests They Are Not!

Monday, November 15th, 2010

Anyone who has been to a healthcare provider in the last five years has become familiar with a HIPAA Release form. As a patient, you are required to sign the form giving the provider permission to release confidential medical records to your insurance company. Along with the form you may have been given a summary of the law describing your rights. I usually get a shrug and an apology from the registration staff for having to repeatedly ask me to sign the same form. However, it has always seemed to me healthcare workers were taking the law seriously and complying with its regulations.

I was surprised to learn recently hospitals are not shoring up their responsibility under the federal law to protect the unwarranted release or loss of my data. Individual physician office practices are scoring even lower in their protection of confidential patient data. Ponemon Institute released a benchmark study this past week on hospital compliance with the Health Insurance Portability and Accountability Act (HIPAA) of 1996. While I was not able to access the full report, their press release was compelling enough.

Federal and cival penalties for HIPAA privacy and security breaches were significantly increased as part of the HITECH Section of the American Recovery and Reinvestment Act which took effect on February 17, 2010.  Along with billions of dollars for investment into creating electronic health records (EHR), additional funding was allocated to ensure breaches in confidentiality would be investigated and violators successfully penalized. Key provisions of the HITECH regulations now include:

BEWARE THE UNAWARE

  • Fines will be imposed even when a violator unknowingly violates the act. The minimum penalty is $100 with an annual maximum for repeat minimal violations of $25,000.  If the violation is severe, irregardless of the circumstances, a provider can be fined up to $50,000 per violation with an annual maximum fine of $1.5 million. No penalty will be imposed if the violation is corrected in 30 days.

BEWARE THE AWARE BUT FOOLISH

  • This penalty is reserved for the provider, who is aware of the act and willfully, but not neglectfully, accesses medical data without patient consent. Such infractions could occur during the course of patient transfer to another facility when a provider might want to learn the clinical outcome of a prior patient. Fines in this category range from $1,000 to a maximum of $100,000 for repeated violations.

BEWARE THE AWARE WHO FAIL TO SECURE

  • Willful neglect will cost a provider anywhere from a minimum of $10,000 to a maximum of $250,000 per violation. Maximum penalties for repeat offenses remain up to $50,000 to $1.5 million. Lesser penalties will be imposed if the provider corrects the violation within 30 days. Maximum penalties for corrections not remedied in 30 days. Examples of violations might be an unsecured server; exposed passwords; and/or data leaving secured provisions for analysis purposes.

BEWARE THE CRIMINAL

  • Individuals who knowingly release health information and/or medical record data may be criminally prosecuted and spend 1 year in jail in addition to fines of up to $50,000. A violation using a false pretense basis is more serious. Such offenses can land individuals up to 5 years in jail in addition to fines up to $100,000. Selling or maliciously using health information for personal or financial gain comes with a 10 year prison sentence and fines up to $250,000.

With the above looming penalties, providers have been required to report all breaches involving 500 unencrypted medical records or more since September 2009. Some states have enacted even tougher laws. Earlier in 2010, Connecticut’s Attorney General, Richard Blumenthal, sued Health Net of Connecticut for misplacing security data for nearly 450,000 enrolled patients along with failing to timely notify them. The lost data included social security numbers, bank account information, and medical health information. The data was lost for 6 months before authorities and patients were notified.

California is one of the states with tough laws supporting patient confidentiality.  During 2010 the state imposed stiff penalties totaling $675,000 against 6 hospitals.

  • $250,000 for one unauthorized employee who was able to access 204 patient medical records.
  • $130,000 for unauthorized access of one patient medical record by 7 employees.
  • $100,000 for unauthorized access of 33 patient medical records by 17 employees.
  • $95,000 for unauthorized access of one patient record by 4 employees.
  • $75,000 for unauthorized access of three patient records by 1 employee.
  • $25,000 for unauthorized access of three patient records by 2 employees.

The Ponemon Institute, a research organization sponsored by ID Experts, conducted a two year study at 65 healthcare organizations and interviewed 211 senior-level managers. Data loss and theft experiences were included in the research. Poneman reported the following:

Breaches are costing the healthcare industry nearly $6 billion annually.

The average organization had 2.4 data breach incidents over the last 2 years.

Major breaches were unintentional employee action, lost or stolen computing devices, and 3rd party error.

Ponemon went on to report that 58% of the participating organizations have little to no confidence in their ability to protect electronic health records. A staggering 71% have inadequate resources allocated to data security, and 69% would be unable to quickly identify and detect a data theft. Sadly, a majority of the organizations had less than two staff dedicated to data protection management. Reportedly, there were a significant number of undetected data breaches not reported to state and federal authorities. Most interviewed did not feel the HITECH regulations have been an impetus to do a better job.

Ponemon Institute is holding a FREE WEBINAR entitled Benchmark Study on Patient Privacy and Data Security on Tuesday, November 16, 2010 at 1:00pm ET for those interested. ID Experts are reported in Fiercehealthcare.com to be the leader in data breach solutions for government, financial, universities, corporations, and healthcare organizations. While this is clearly a marketing effort, if the research process and what was revealed is solid which I suspect it is, then the results are staggering and healthcare executives need to tune in.

Another issue looming in the confidential healthcare data world was revealed in the November 14 Baltimore Sun newspaper. Med Chi, a physician medical society representing 22,000 Maryland physicians, is concerned electronic health records can also be altered by drug companies and insurance companies. They are the first medical society in the nation to pass a resolution calling for state legislation to ensure doctors retain the right to control the treatment plan and keep patient records neutral without imposed financial parameters. This resolution follows Maryland legislation last year encouraging physicians to adopt electronic medical records. It seems physicians are fearing daily access and interaction by 3rd party payors and drug companies into what was once a confidential treatment process conducted solely by health professionals.

It seems hackers, thieves, harassers, and paparrazzi have an open market at this time. Government regulations and penalties are not making much of an impact. More legislation and regulation is coming, but will my and YOUR data be any safer in the end? What will it take to get the attention and priority agenda of heathcare executives to use the experiences and systems of other industries and get data safeguarded?

Comment from Brian Nash: We will soon be posting a White Paper providing instructions on how to report a HIPAA violation as well as important links to federal and state agencies responsible for the protection of a patient’s rights under HIPAA.

Photo: hipaacomplianceguide.com

Cyber-bullying: With digital age comes digital crime

Friday, November 12th, 2010

Update (Brian Nash): This morning, May 23, 2011, I saw a tweet linking to news that First Lady, Michelle Obama, is joining Maryland’s Judge O’Malley and Lt. Gov. Anthony Brown in a visit this week to a local Maryland school, Central Middle School in Edgewater, to get the word out on an anti-bullying campaign.

Great work and an important message that needs to keep being delivered! The President and First Lady are using Facebook to get their anti-bullying message out there as well.

Wanting to do my (little) part in getting this message out there, I thought I’d re-post this blog from last November for those who may have missed it on the first time. Spread the word; let’s give a hand to all who work so hard to rid society of this dangerous blight.

Original Post:

Digital media is everywhere, and social networking is totally “in” among our youth as well as adults.  As with every advancement in technology, one is faced with the new problems that accompany that technology. With the advent of personal computers, “hacking” became the big cyber-crime followed by sexual predation.  There have been a multitude of movies in which the plots focus on computer-hacking or on-line dating, and there are plenty of songs referencing cell phones and on-line technology.

We are in the digital age, and with that we are experiencing new and more ominous digital crime that is involving our youth and resulting in the premature death of beloved children.

October, 2006, Megan Meier (age 14) committed suicide after being bullied on MySpace by a supposed friend and the friend’s mother.  In June of 2008, Tomohiro Kato rented a truck and drove into the crowded “geek district” of Tokyo where he proceeded to stab 17 unknown people, killing 7 and injuring 10, because he was being harassed on-line for his ideas and electronic postings on social websites.  This year, beginning in January, a beautiful 15 year-old Irish immigrant, Phoebe Prince, committed suicide after being blatantly harassed by her peers, both outwardly in school and on-line, in Massachusettes.  Two months later, on March 21, 2010, Alexis Pilkington (17yrs) committed suicide after being harassed on a social networking site; she was a good student and soccer “star” in Long Island who had received a college scholarship for soccer.  On September 9, 2010, Billy Lucas, a 15-year-old Indiana student, committed suicide after being blatantly harassed on-line and in school for presumed homosexuality.  The most recent case involved a Rutgers University student, Tyler Clementi (18yrs); he committed suicide after his college roommate illegally videotaped a homosexual encounter and posted it on the internet.  These are a few of the more publicized cases, but, cyber-bullying is much more pervasive in our youth.

Each of these cases represents an unnecessary loss of life prompted by children or young adults, facilitated by the use of digital technology.  The hatefulness and utter meanness of the offending children is astounding.  Bullying has been around for ages, and unfortunately, it is part of human nature, evolution and survival of the fittest.  The problem has become the pervasiveness of digital media in our lives, the anonymnity allowed by it and the ease and speed of which information can be disseminated world-wide.  It used to be that the bullying could be left on the playground at school, and/or that school administrators were more apt to intervene if approached with the problem; neither of these conditions seem to exist anymore.  Compound these issues with the virtual isolation these digital media promote, the often-times dysfunctional family unit (divorce, re-marriage, single-parenting, and even the need for both parents to work full-time), the relative independence of our youth, and the relative insensitivity of our youth to violence and sexually explicit material.

Steve Williams posted an article about Billy Lucas’ death on the organization, Care 2 Make a Difference (www.care2.com) which sited the following statistics related to suicide from the Trevor Project:

  • In the United States, more than 34,000 people die by suicide each year (2007 Centers for Disease Control and Prevention, CDC).
  • Suicide is the third leading cause of death among 15 to 24-year-olds, accounting for over 12% of deaths in this age group; only accidents and homicide occur more frequently (2006 National Adolescent Health Information).
  • Suicide is the second leading cause of death on college campuses (2008 CDC).
  • For every completed suicide by a young person, it is estimated that 100 to 200 attempts are made (2003 Youth Risk Behavior Surveillance Survey).
  • Lesbian, gay, and bisexual youth are up to four times more likely to attempt suicide than their heterosexual peers (Massachusetts 2007 Youth Risk Survey).
  • More than 1/3 of LGB youth report having made a suicide attempt (D’Augelli AR - Clinical Child Psychiatry and Psychology 2002)
  • Nearly half of young transgender people have seriously thought about taking their lives and one quarter report having made a suicide attempt (Grossman AH, D’Augelli AR - Suicide and Life Threatening Behavior2007)
  • Questioning youth who are less certain of their sexual orientation report even higher levels of substance abuse and depressed thoughts than their heterosexual or openly LGBT-identified peers (Poteat VP, Aragon SR, et al – Journal of Consulting and Clinical Psychology2009)

Children in this age group, despite their outward mature appearance in today’s world, remain emotionally and intellectually immature.  The teenage human body goes through enormous hormonal changes during this period which compounds emotional lability.  The onslaught of hurtful and demoralizing comments, whether by text-messaging, emails, or social networking sites, can be quite devastating to one’s sense of self and integrity.  The speed at which such information, whether true or false, can disseminate and build momentum amongst peer groups can become overwhelming for the immature psyche, while suggestions to “kill yourself” or threats of murderous intent might just push that individual “over the edge”.

Just last week, Medscape posted an interview with  Gwenn Schurgin O’Keeffe, MD, FAAP, (a pediatrician, health journalist, chief executive officer of Pediatrics Now (www.pediatricsnow.com), an online health and communications company, and the author of Cybersafe: Protecting and Empowering Digital Kids in the World of Texting, Gaming and Social Media ). In the interview, Dr. O’Keeffe defined cyber-bullying, offering suggestions for parents and even medical health providers for monitoring child behaviors and usage of these digital medias, as well as the effects on the individual’s psyche.  Legislation is being discussed on ways to punish these crimes, but the first-line protection begins in the home.  The Massachusettes Attorney General’s Office also displays a page on its website devoted to the topic; it is unclear whether this appeared before or after the Phoebe Prince tragedy, but it is there nonetheless.  One can only hope that changes can be made before those suicide statistics increase exponentially.

I leave you with one of my childhood teachings that I only wish was held in high regard in today’s society:  ”If you cannot say anything nice, then don’t say anything at all.”

Related Post (update):

I also came across a post entitled Stopping Cyberbullying: Who’s Responsible? – Interesting read!

Credit to news.cnet.com for photo

Hospitals Fined Heavily for Unsafe Practices – medical malpractice pure and simple!

Tuesday, November 9th, 2010

Well this headline got my immediate attention!

HOSPITAL FINED $300,000 FOR LEAVING A DRILL BIT IN PATIENT’S HEAD.  Rhode Island Hospital (RIH) was fined by the state’s Department of Health with the largest penalty in state history and only the 3rd posed against a hospital for surgical errors.

How does such a mistake happen? I went to the article and then saw similar articles over the last year.

CALIFORNIA HOSPITALS FINED FOR ENDANGERING PATIENT SAFETY

TEMPLE TO PAY (the US Government) $130,000 TO SETTLE DRUG DIVERSION CLAIMS

BOTCHED RADIATION TREATMENTS LEAD TO FINE FOR VA

Yes, states are fining hospitals, the US government is fining hospitals, and the US government is even fining government hospitals for unsafe practices. State, regional and national news publications are breaking the stories and making the public aware of their hospitals’ most costly mistakes.  Over the last two decades, more and more states are requiring hospitals to report serious errors and fining them for failing to do so. One way or the other, hospitals pay for serious mistakes and suffer media scrutiny at the same time.

The Rhode Island Director of Health reported “a troubling pattern” of patient safety procedural violations at RIH.  On October 15th of this year, a surgical instrument was found in the abdomen of a patient who had undergone surgery three months before. This followed an August incident when a quarter inch drill bit broke off in a patient undergoing brain surgery. While aware the bit was missing, no one in the operating suite investigated where it went. The next day an MRI identified the bit in the patient’s brain. This error placed the patient at serious risk of harm during the MRI. Magnetic forces during the MRI could have moved the metal drill bit causing significant brain injury.

Clinical standards of care require all surgical instruments to be counted at the beginning and end of a procedure. If the count is incorrect, xrays are immediately taken. If found in the patient, the instrument is removed before the conclusion of the procedure. This healthcare industry-wide patient safety procedure has been in place for well over 30 years. The simpe, straightforward procedure was not undertaken according to Rhode Island news reports. In addition, the state found anesthesiologists at RIH don’t wear masks while in the operating room, and no actions had been taken to correct the behavior.

The Director of Health also reported in 2009, RIH was fined $150,000 and ordered to hire a consultant to improve operating suite procedures; shut down surgeries for 1 day to conduct mandatory training; and install audio/video monitoring devices to ensure compliance. This all happened when a surgeon operated on the wrong finger which was the 5th time a wrong body part had been operated on in 3 years at RIH.  Things have not improved in 2010. The fines are getting heftier and the Centers for Medicare & Medicaid Services (CMS)  as well as state professional licensing boards are now involved. Federal government intervention has only happened one other time in Rhode Island’s healthcare history.

Rhode Island is not alone. As the headlines above show, California, after enacting a new state law in 2007, reports that over $4.8 million in healthcare administrative penalties have been issued with $2.9 million collected to date. California news stories began breaking last January (2010) when thirteen hospitals were fined $50,000 each and another was fined $25,000 four times. In April, seven more hospitals were fined. In May, nine more hospitals $550,000 in penalties imposed.

The deputy director for public health, Kathleen Billingsley, told the press that Californians have a right to receive the minimum level of required state standards. Out of 146 penalties, hospitals were appealing 37 in an April news report. Notable infractions resulting in fines included:

  • Man hospitalized with a heart attack died after his cardiac monitor had been disconnected.
  • Woman misdiagnosed with an ectopic pregnancy was given chemotherapy drugs. She was not pregnant.
  • Two ER nurses without documented clinical competencies or life support training failed to record vital signs in a 5 month old with a temperature of 105.4.
  • An operative sponge was left in a patient and discovered a year later. Three operations were required to eventually remove the sponge.
  • A wrong knee was operated on.
  • Contrast material for radiology was given to a patient with a known iodine allergy resulting in death.
  • An oxygen tank became empty during a simple ultrasound procedure resulting in the patient’s death. The patient had waited in radiology over 60 minutes for the procedure allowing the tank to run dry.
  • A patient aspirated a laryngoscope plastic blade extender during intubation for an outpatient surgery. It was not discovered until the patient called post operatively complaining of coughing up plastic.

In March, the Department of Veteran Affairs, which oversees the Philadelphia Veterans Affairs Medical Center was fined $227,500 by the Nuclear Regulatory Commission. This was the second largest fine against a medical facility. Between 2002 and 2008, Iodine 125 seeds were placed incorrectly in 97 out of 116 prostate cancer patients. There were inconsistent doses, unintended organs and tissues radiated leading to a myriad of complications for the victims including excessive radiation. Many of the incorrect procedures initially went unreported.

While I applaud these fines and would like to see stronger sanctions, several questions came to mind after reading these reports. Are states and the federal government merely cashing-in and paying-down healthcare deficits, or putting this revenue to good use such as improving patient safety? How much of the revenue is being consumed in hospital appeal proceedings? Is this an effective incentive for hospitals to change or merely perceived by them as a cost of doing business in today’s high paced and burdened healthcare system?

What do you think?

Epidural Analgesia – What Should an Expectant Mother Consider? What are the risks?

Monday, November 8th, 2010

Statistics show that about 70% of women in the U.S. elect to have epidural analgesia during labor. While epidural analgesia is very effective at helping women cope with the pain of labor, it is important to have an appreciation for the possible complications associated with such medical treatment.  If you are an expectant mother, the last thing you want to do is think about the possible risks of epidural analgesia – while you are in labor.  The decision to have epidural analgesia during labor should not be a hasty, last minute decision.  The following is a survey of a number of complications associated with epidural analgesia.  It is intended to provide expectant mothers with a general understanding of the various complications associated with epidural analgesia and to encourage further inquiry.

It is important to know that epidural analgesia may cause infection (i.e., epidural abscess). An epidural abscess is a collection of pus in the epidural space.  As the abscess gets larger, it will eventually compress the spinal cord resulting in neurological deficits (e.g., numbness and/or weakness in the legs). An epidural abscess requires immediate medical intervention.

Moreover, be aware that certain patients with blot clotting disorders are at a higher risk for bleeding (i.e., epidural hematoma). Women who are on blood thinners (e.g., Lovenox) or who are otherwise hypocoagulable are at an increased risk for developing hematomas during epidural infusions. Epidural hematomas may also cause spinal cord compression leading to potential paralysis.

Because the epidural space is only a few millimeters wide, there is a risk that the needle used to gain access to the epidural space may cross into the subdural and/or subarachnoid space.  The administration of epidural anesthesia beyond the epidural space may lead to a number of very serious complications.  When epidural anesthetic agents are administered beyond the epidural space, a patient may experience low blood pressure,   difficulty breathing, loss of motor function and sensation, nausea, loss of consciousness and even cardiac arrest.   The puncture of the dura may lead to an outflow of cerebral spinal fluid into the epidural space.  When this happens, patients complain of severe headaches, which could take days or weeks to resolve.

The inadvertent administration of an excessive amount of epidural agents may cause nerve damage as well.   Anesthesiologists are very careful to select the right epidural drugs based on the patient’s medical history, comorbidities, age, height, and weight.   The key to avoiding epidural toxicity is making sure that the proper dosage of an epidural medication is administered.  In part, this involves a determination of the acceptable dosage per unit of body weight (i.e., ml/kg).  Epidural toxicity may lead to permanent loss of motor function and sensation in the lower extremities.  If you elect to have epidural analgesia, demand to be evaluated and monitored by an anesthesiologist or certified registered nurse anesthetist (CRNA) during the epidural infusion and throughout the anesthesia recovery period.

Some patients may be allergic to certain epidural agents.  Because most epidural administrations involve a cocktail of different medications (e.g., fentanyl and bupivacaine), an anesthesiologist should be familiar with the patient’s history of allergies.  If you are considering epidural analgesia, make sure that you are not allergic to “caine” drugs or opiates.

Epidural analgesia may also make it more difficult to push during labor. Consequently, the use of epidural analgesia may lead to other medical interventions, including the use of Pitocin and a Caesarean section.

If you are an expectant mother, talk to your obstetrician about the risks associated with epidural analgesia.  The decision to proceed with epidural analgesia should be a considered decision.  Your physician can avoid some, if not most, complications associated with epidural analgesia by performing a proper and thorough assessment of your risk factors and by carefully monitoring you during labor and the recovery period.

Have you or someone you know had any complication associated with an epidural? Share your story with our readers. We welcome your comments.