Archive for the ‘Legislation’ Category

Attention Ward 7 & 8 Residents! Your Input is Needed!

Monday, September 12th, 2011

Are you living in Southeast and wondering how your money is being budgeted and spent?  Concerned about the direction of the United Medical Center?  Now is the time to act!

Let’s start with a little bit of background for anyone that is not living in Southeast or familiar with United Medical Center (formerly known as Greater Southeast Community Hospital.)  For years United Medical Center has struggled to pay its bills. In 2006 and 2007, the hospital was in danger of closing, requiring the city to step in to save it.   The Not-for-Profit Hospital Corporation, commonly known as United Medical Center, was established on July 9, 2010 through special legislation. Since then, the new leadership team, its medical staff, and nurses, clinical and support staff claim to be making major improvements in their quality of care, customer service, patient safety and campus security. The facility, which serves many of the city’s poorest residents, also received a new roof and generators, major improvements to the emergency department and replacement of nearly all radiology equipment.  Putting the hospital’s claims aside, have you noticed a difference?

The hospital has replaced most patient care diagnostic, monitoring and therapeutic equipment and upgraded most hospital physical plant systems. Over 75 physicians have joined the medical staff.  With changes being made everyday, now is the time to give your input and share your experience with the City Council.

On Thursday, September 29, 2011, at 10:00 a.m., Room 500, 1350 Pennsylvania Avenue, NW, Washington DC 20004, a public hearing will be held on issues related to the financial management of the hospital.  This hearing will be open to the public; however, only invited witnesses will be permitted to provide oral statements.  Members of the public may submit written testimony which will be made part of the official record.  Copies of written statements should be submitted to the Committee on Health no later than Thursday October 6, 2011.

Sufficiently concerned?  Make certain that you attend the hearing or, at a minimum, submit your written statements to the committee.

 

Week in Review (April 23 – 29, 2011): The Eye Opener Health and Law Blog

Saturday, April 30th, 2011

From the Editor:

Last week was a busy but productive week for our firm’s blawgers – 6 posts – and we actually practiced law a lot! My personal thanks to our writers for taking the time to post some important pieces on health, safety, medicine and law. To our readers, my continued and sincere thanks as well. While it’s great to pull-out our soapbox and write about stuff we do and are passionate about, it’s incredibly rewarding to have you, our readers, take the time to read what we write. To those who left comments, a special thanks. We really enjoy interacting with you!

Now on to the business at hand. What did we write about that you may find interesting? Here you go.

My Pet Peeves About the New Age Mediation Process

Having been inspired by a fellow blawger from New York, Scott Greenfield, who chided legal bloggers (thus the name “blawgers”) for simply rehashing news and not taking a stand on issues, I wrote a piece called Mediation of Lawsuits: The 5 Top Things that Tick Me Off!

Having recently been through a number of mediations that were enough to pull your hair out because of the silliness that people engage in when they claim they are mediating to get cases resolved, I decided that it was time to take a stand and post a personal rant. While perhaps best understood by lawyers, claims adjusters and mediators, this blawg was not intended just for them. I’ve seen what impact foolish approaches and conduct by the participants to mediation can have on my clients, the injured parties. It was time to sound-off; so that’s what I did. I once again invite anyone who has been a party to a lawsuit mediation to do your own personal sound-off and tell us what it was like for you. It’s your turn to tell us just how much you enjoyed the process and what can be done to make it better. Read the horror story told in our Comments section by one of our Canada readers when she went through a domestic mediation process. Share your thoughts and stories as well.

Health Care: Who’s “Voiceless” When It Comes to Being Heard on Capitol Hill

Guess I had too much time on my hands at the beginning of this week (not really!). I couldn’t help but be inspired by a piece Jason Penn had done last week about how families were so adversely affected by the budget cuts that were made when the government shutdown was looming a few weeks ago. As I was going through my Google Reader early this past week, I came across an Op Ed by a doctor, who was complaining or at least suggesting that the president and congress need to hear more what doctors had to say about health care reform. Having read that, Jason’s piece jumped into my mind and the result was my blawg entitled Health Reform: What voice does the patient have in the debate.

The post brings to light the amount of money being spent by the healthcare industry in its lobbying efforts on health care reform. ObamaCare‘s raison d’etre is explored as well since it is ironic, if not sad, how the story behind all this money, lobbying and legislation seems to have been lost in the rhetoric. More affordable, better and available health care for our citizens? Then why were the most needy among us the victims of back room wheeling and dealing when the time came for budget cuts to save the federal government from closing its doors? I ask the question – who’s voice is being heard – but more important – who’s is not?

FDA approves use of “meningitis drug,” Menactra, for younger children

Hopefully you’ll never need to use this information, but if you do, Jason Penn reported on a condition – meningitis – that can affect not only adults and older children, but infants and toddlers as well. Meningitis is generally defined as an inflammation of the protective membranes covering the brain and spinal cord. Prior to a recent change in position by the FDA, there wasn’t a vaccine available for children under the age of 2. Now, with the FDA’s recent approval, Menactra can be used to vaccinate children from the age of 9 months to age 2.

In addition to this news release, Jason tells parents about the signs and symptoms they should be aware of to spot this condition.

The classic symptoms of meningitis are a high fever, headache and stiff neck. Detection of these symptoms, particularly headache and stiff neck are certainly difficult to detect in infants and toddlers. According to the Centers for Disease Control and Prevention, infants with meningitis may appear slow or inactive, have vomiting, be irritable, or be feeding poorly. Seizures are also a possibility.

To learn more about this important topic, read his piece Meningitis & Your Baby: Three Things to Think About.

Why are children still dying because of venetian blinds?

Sarah Keogh wrote what I believe is a very important piece for parents, grandparents or anyone who has a baby in the house. Years ago we all heard about the horror of parents finding their babies dead from strangulation when their necks became entangled in venetian blinds. Years have passed since those stories made the front page. Well, an update on just how well manufacturers and parents have been doing to avoid such tragedies was recently posted in The New York Times.

In her blawg entitled Window Blinds: Why are Children Still Dying, Sarah tells us the sad truth that these deaths and injuries still continue in our country. Find out what you as a caregiver of a young child need to realize about this product. Maybe you’ve put the cords up high and out-of-reach for your baby. Maybe you’ve taken other steps to avoid such a nightmarish event ever happening in your home and in your life. Unfortunately, many who have done so have still suffered this tragedy. Why? What is being done by manufacturers and the government to prevent these injuries and deaths ? Read Sarah’s piece for the answers and some practical advice you can take to make your home safer for your child.

Hospitals Reporting Methods for “Adverse Events”

We all know by now that if you want to look good to the public, all you have to do is “play with the numbers.” Well, it seems like hospitals have a penchant for doing just that. One of the key “numbers” that advocates of patient health and safety look at is how many “adverse events” take place in any given hospital. An “adverse event,” as you may already know, is – simply put – any harm to a patient as a result of medical care.

In his post this past week, Jason Penn compares some interesting adverse event bookkeeping by hospitals throughout our country. His blawg, The New Enron? Are Hospitals Cooking the Books?, brings to light serious flaws in the way that our medical institutions “count” the number of so-called adverse events taking place within their walls. His research for this piece reveals…

[M]edical errors occur 10 times more than previously thought.Maybe that wasn’t hard hitting enough. Let me try again. How about this: mistakes occur in one out of every three hospital admissions!

Frankly, that strikes me as an astounding and very concerning number. Are the numbers being reported reflecting this? The simple answer is no. Why not? Read Jason’s post and see what reporting systems are in place – or not in place as the case may be. We all remember Enron. Is this the medical version of “making the numbers look good” when they simply are not!

Surgeons and Booze – an Obvious Bad Combination – Who’s Protecting Us?

It doesn’t take a genius to realize that surgeons should not be under the influence when we as patients are “under the knife” What’s not so obvious is just how prevalent this may be in the operating rooms of our country (and throughout the world).

Wondering what the studies have been done by the medical profession to examine this problem? Have any idea what regulations are in place by hospitals to guard against the problem of “hungover surgeons”?

Wonder no more. Jon Stefanuca’s blog this past week, Hungover Surgeons: Watch Out! There’s Nothing Between You and Their Scalpel!,will tell you all you need to know. Jon queries: “Should hospitals regulate for patient safety?” What do you think? Share your comments.

A “Sneak Peak” of the week ahead

Some more good advice is on the way for parents of special needs children. We all know about what a wonderful aide dogs are for the blind. Mike Sanders will share what he’s learned how these canine wonders are being used for kids in need. Suffering from asthma or know someone who is? Jon Stefanuca will be sharing with  you some valuable information on this topic next week. A number of our clients or their now-deceased family members have suffered from this condition. Jon will share a story or two (without revealing protected confidential information) to bring to light just how this medical condition needs to be better recognized and treated by our health care providers before its too late. We all know what a difficult job nursing can be. That being said, Sarah Keogh will be telling us about some very concerning “trends” that are coming to light in this wonderful profession. Stay tuned for this important piece.

We’ll start next week off with a new blawg by our in-house medical specialist, Theresa Neumann. Her post on how important it can be to get a second opinion before you sign-up for a surgery, procedure or test is sitting in the queue just waiting to hit the pages of The Eye Opener – Views and Opinions from the Nash Community.

One Final Note: I wrote in last weekend’s Week In Review that we intended to post a new White Paper by Marian Hogan on a very important topic relating to Patient Controlled Analgesia (PCA). It didn’t happen – because of “my Bad.” I fouled-up and sent the wrong draft of Marian’ s piece to our graphic designer. He did a wonderful job – as usual – of getting it ready – it just wasn’t the right version. The problem is fixed, but my mistake will delay the posting of this important White Paper for another week. Public apology: Sorry, Marian! We’ll make it right soon.


Health Reform: What voice does the patient have in the debate?

Tuesday, April 26th, 2011

Recently, I came across an Op Ed entitled Health Reform Requires Listening to Doctors. The very title suggests that  physicians and the health care system in general don’t have much of a voice in the discussion of health care legislation.

The question struck me – can that really be true? If the medical profession and health care industry are crying “poor us,” as the Op Ed author would suggest, that’s rather disingenuous at best. It’s well-known in today’s world of American politics that one sure way to have a voice is to hire a lobbyist. According to the Center for Responsive Politicsover $1 billion was spent on lobbying related to health care in 2009 and 2010. Who were the big players and payers in the hiring of lobbyists?

CNN Money tells the tale of the tape:

[L]obbyists for 1,251 organizations disclosed that they worked on health care reform in 2009 and 2010, according to the center and an analysis by the Sunlight Foundation. The number of individual lobbyists who reported working on health related legislation last year hit 3,154 in 2010.

Big Pharma topped the list. The Pharmaceutical Research and Manufacturers of America spent $22 million and deployed an army of no fewer than 52 lobbyists, according to the center.

Blue Cross Blue Shield, which used 43 lobbyists, spent $21 million. The biotech company Amgen (AMGNFortune 500) employed 33 lobbyists and spent $10.2 million.

Yet another source, iWatchnews.org, reports the following:

A Center for Public Integrity analysis of Senate lobbying disclosure forms shows that more than 1,750 companies and organizations hired about 4,525 lobbyists — eight for each member of Congress — to influence health reform bills in 2009.

Among industries, 207 hospitals lined up to lobby, followed by 105 insurance companies and 85 manufacturing companies. Trade, advocacy, and professional organizations trumped them all with 745 registered groups that lobbied on health reform bills, illustrating the common Washington strategy of special interests banding together to pool money and increase their influence.

Seems like a whole lot of money was spent by the health care industry to have a voice.

This blog, however, is not intended to address issues relating to the Obama Health Care Reform (or as it is referred to in some circles as ObamaCare). I don’t claim to understand the in’s and out’s of that political football. I’ll leave that for the so-called pundits to address. What does strike me, however, is the travesty that recently played out in the setting of a threatened federal government shutdown.

Health Care Reform – the goal of the President’s Plan

What was the stated purpose and goals of the President’s health care reform? Look no further than the online posting by the White House for the answer:

Health reform makes health care more affordable, holds insurers more accountable, expands coverage to all Americans and makes our health system sustainable.

Sounds good in principle, right? Putting aside all the politics, rancor and ranting surrounding the debate over the specifics of health care reform, don’t you find it rather ironic that when recent budget cuts to avoid a government shutdown were the topic du jour, those who had very little, if any, voice were the people who desperately need can’t afford health care?

Recent Budget Cuts and Who Paid the Price

As I learned last week, when the back room deals were struck, those without a voice were the victims of political expediency.

As our own Jason Penn reported in his blog post, Budget Crisis Avoided, But What About the Babies? Can They Live With $504 Million Less in Funding?:

At the 11th hour, cuts were made, backroom deals were struck, and Washington spoke:  there will be $38 billion dollars trimmed from the federal budget.  On a positive note, federal agencies will remain operational until the end of September. Reason to cheer? Maybe. Before we break out the party hats and noise makers, let’s take a look at how healthcare fared.  The following areas are among those cut:

-         Special Supplemental Nutrition Program for Women, Infants and Children (WIC):  $504 million

-         Community Health Centers:  $600 million

-         Substance Abuse & Mental Health Services Administration:  $45 million

-         Infectious Disease prevention:  $277 million

Total:  $1.426 Billion.  Yes, billion, with a “B”!

Isn’t the answer of who does and who does not have a voice in the bigger picture of health care legislation and so-called fiscal reform self-evident. Who was there in the back rooms of our hallowed halls of Congress protecting those in need of good primary care programs? I suspect that when it’s crunch time, political expedience wins the day. Need cuts to keep a bloated beast alive and floundering? Snatch it from the ones who will be heard the least – the ones who don’t have the ability to spend over $500,000,000 a year for lobbyists so they can have their voice heard.

As Written in the Book of Isaiah the Prophet…

Apparently it’s just “politics as usual.” For all the rhetoric about making primary health care available to all Americans and improving and sustaining programs to deliver critical healthcare to those who need it the most, the voice crying in the wilderness was not loud enough. Maybe, as the Op Ed author claims, everything the medical profession and health care industry has to say is not being heard or at least being accepted. Nevertheless, they have a voice, which is more than can be said for those they claim they want to protect. How many of the enormous lobbying dollars did the medical community and health care industry spend to protect primary care programs from the budget-cutting ax? I suspect we all know the answer.

 

Image source: fromtheleft.wordpress

 

Budget Crisis Avoided, But What About the Babies? Can They Live With $504 Million Less in Funding?

Wednesday, April 20th, 2011

Let’s start here:  The Federal Government Shutdown has been avoided.  Federal workers and government contractors that depend on a functioning federal government can breathe a deep sigh of relief.  As the hysteria subsides and we return to business as usual, we should ask ourselves – “Are we really returning to business as usual?”  When it comes to your health and more specifically, the healthcare that you and your baby receive, the answer very well may be a resounding “NO.”

How It All Happened

I suppose I should set the stage for you, in case you missed the hand-wringing and other hysterics.  The two houses of Congress are divided.  As is par for the course, Democrats profess that one course of action is correct and Republicans declare that another course is more appropriate.  A budget needs to be in place for the government to function, yet the two political parties couldn’t come to an agreement.  A shutdown of the federal government was promised if a compromise was not reached.  The American public held its breath—or protested.  At the 11th hour, cuts were made, backroom deals were struck, and Washington spoke:  there will be $38 billion dollars trimmed from the federal budget.  On a positive note, federal agencies will remain operational until the end of September. Reason to cheer? Maybe. Before we break out the party hats and noise makers, let’s take a look at how healthcare fared.  The following areas are among those cut:

-         Special Supplemental Nutrition Program for Women, Infants and Children (WIC):  $504 million

-         Community Health Centers:  $600 million

-         Substantance Abuse & Mental Health Services Administration:  $45 million

-         Infectious Disease prevention:  $277 million

Total:  $1.426 Billion.  Yes, billion, with a “B”!

WIC, Babies, Community Health & Death

Women, Infants and Children, otherwise known as WIC, is a program that provides food for poor women and children up to the age of five.  WIC’s mission statement is “to safeguard the health of low-income women, infants, and children up to age 5, who are at nutritional risk by providing nutritious foods to supplement diets, information on healthy eating, and referrals to health care.” WIC gives targeted nutritional supplementation to help prevent birth defects and developmental problems caused by malnutrition.  It also provides information on healthy foods and referrals for medical care, according to the program’s website.

The WIC program gave out about $7 billion in food grants to states in 2010. There were nearly 8.9 million households receiving WIC benefits at the end of 2010, according to the Department of Agriculture. Locally, on an annual basis, Maryland WIC serves over 130,000 women, infants and children each month.  More than 151,000 pregnant and breastfeeding women, infants, and toddlers benefit from the program in Virginia.  Despite the number of women, infants and children assisted by the program, the recent budget compromise promises to slash $504 million in funding. The startling aspect is the number of women and children that are eligible but for one reason or another are not enrolled in the program. There is an estimated 43 percent of women and children, who are eligible for benefits but aren’t receiving them.  The cuts to funding will effectively foreclose their opportunity to receive benefits. At risk and in need, they will have to look elsewhere.  Sadly, many will not.

In addition to the significant cuts to WIC’s budget, the budget for community health centers would drop by about $600 million, affecting access to basic health services for approximately 5 million low-income Americans, according to the National Association for Community Health Centers. By 2015, according to NACHC, the reduction could undermine health centers’ capacity to provide services to 40 million people.

But what does it mean?

It is 2011.  My computer, cell phone and other gadgets all confirm that we are soundly within the confines of the 21st century. While we can certainly live with the fact that automobiles do not take flight a la The Jetsons, what is troubling is that we are continuing to battle fetal death in the United States.  Around 2.6 million babies are born with no signs of life after 28 weeks’ gestation – which defines a stillbirth. Undoubtedly, most of these stillbirths take place in developing countries.  Nonetheless, in the world’s wealthiest nations around 1 in every 300 babies are stillborn.  In 2005, data from the National Vital Statistics Report showed a US national average stillbirth rate of 6.2 per 1000 births. In fact, of the world’s most advanced economies, the United States has the highest infant mortality rate.  In Maryland, a preliminary report from the Department of Health and Mental Hygiene (DHMH) shows that Maryland’s infant mortality rate is 7.2 infant deaths per 1,000 live births.

The major causes of stillbirths—complications during labor, maternal infections, hypertension, diabetes, and fetal growth restriction—aren’t too different from the major causes of maternal or neonatal deaths. Among the most fundamental ways to prevent stillbirths and fetal death is to improve basic and comprehensive emergency obstetric care. Providing pregnant women folic acid supplements, preventing disease, and improved detection and management of infection during pregnancy are simple ways to ensure babies are born healthy.

According to WIC, numerous studies have shown that pregnant women who participate in WIC have longer pregnancies leading to fewer premature births; have fewer low birth-weight babies; experience fewer fetal and infant deaths; seek prenatal care earlier in pregnancy and consume more of such key nutrients as iron, protein, calcium and vitamin C. That being said, the budget negotiations resulted in drastic cuts to a program effective at reducing harm to the nation’s most vulnerable?  Oh, boy.

With the exception of a short stint as a student legislator in high school and college, I do not have meaningful experience in the political arena.  I will not pretend to have significant insight into what it takes to balance a federal budget.  As a lay person, what I can do is look at the statistics and read the reports.  The numbers and reports tell me that in the 21st century America, a scary number of its children are being harmed by the preventable.  On top of that, the funding—the lifeblood—that sustains the programs aimed at reducing the problem just took a devastating blow. Will the programs designed to help our most vulnerable continue to operate? We can only hope.   At least, for the sake of the children. So please excuse me if I don’t put on my party hat and celebrate the $38 billion in budget cuts. I haven’t found a cause for celebration just yet.

Agree or disagree? That’s why the comment section is below. Let me know if you have your party shoes on.

 

Baltimore Abortion Ordinance Declared Unconstitutional – How Did We Get Here and Why?

Saturday, February 5th, 2011

Pro-Life and Pro-Choice Advocates

Last April, we posted a blog regarding a Baltimore City ordinance, which required local crisis pregnancy centers to post signs in their clinics disclosing that they did not offer abortion or birth control services if, they in fact, did not offer such services. Because of this requirement, many clinics chose to post separate notices informing the public about clinics that offered abortion services. Consequently, the Archdiocese of Baltimore, filed a lawsuit in the Federal District Court, seeking to have the ordinance declared unconstitutional.  One of its arguments was that the City should be prohibited from compelling speech by requiring the clinics to post signs.

On January 28th, 2011, District Court Judge, Marvin Garbis, ruled that the ordinance violates the First Amendment of the U.S. Constitution and, as such, is unenforceable. In his opinion, Judge Garbis wrote: “Whether a provider of pregnancy-related services is ‘pro-life’ or ‘prochoice,’ it is for the provider — not the Government — to decide when and how to discuss abortion and birth-control methods.” According to the opinion, “[t]he Government cannot, consistent with the First Amendment, require a ‘pro-life’ pregnancy-related service center to post a sign as would be required by the Ordinance.”

The dynamic of this litigation is fascinating, revealing nonsensical and unpredictable aspects of the abortion debate.  One could argue that the original passing of the ordinance was fueled by an underlying “pro-life” attitude.  After all, why would the City require clinics that don’t offer abortion services to publically state that they don’t offer abortion services? My personal opinion is two-fold: 1) to discourage individuals in need of abortion services from seeking abortion services, and 2) to reveal to the public the number of clinics that don’t offer abortion services in order to paint a picture that the public is generally pro-life (this is particularly true because the ordinance did not require clinics offering abortion services to post notices that they offered such services).

Interestingly, the ordinance backfired. Some of the clinics required to disclose that they did not offer abortion services chose to inform the public about other clinics where abortion services are available. There is nothing wrong with that, right? Well, apparently the Archdiocese did not think so, and, in my personal opinion, here is the real reason why: As soon as it became apparent that many of the clinics could simply choose to post notices about other clinics, which offered abortion services, it also became apparent that the ordinance was de facto prompting free advertising for abortion services all over the city.

I can’t imagine that the Archdiocese was too thrilled about that. Hence, the litigation ensued and the opponents of the ordinance prevailed on an argument, which is commonly and usually made by the “pro-choice” side of the abortion debate. At the heart of Judge Garbis’ opinion is the notion that the government should not legislate morality or religion. On January 28th, the Archdiocese and other “pro-life” groups prevailed on an argument, which has undermined and discredited the “pro-life” position for decades. How ironic!

Have you have been following this litigation in Baltimore City? What are your thoughts? Was Baltimore’s ordinance misguided or spot-on? Will Judge Garbis’ decision be reversed or upheld on appeal?

Photo from foxnews.com

The Reality of Medical Malpractice Lawsuits: Demystifying and Dismantling the Medical Profession’s Arguments

Monday, December 20th, 2010

A couple of weeks ago, Dr. Kevin Pho published a blog in which he argued that medical malpractices lawyers do not help improve patient safety. My mentor and good friend, Brian Nash, (a medical malpractice lawyer) posted a counter-blog, disputing the validity of Dr. Pho’s conclusion. As a result of these two postings, the two author’s agreed to post Brian Nash’s piece on Dr. Pho’s website – KevinMD.com. This posting, Open dialogue on medical malpractice and patient safety led to an amazing, extensive, thought-provoking and still ongoing public discussion about the role of physicians, lawyers and patients in promoting patient safety. The last time I checked, this discussion generated just over 190 comments

Although many topics were addressed during this discussion, I could not help but notice an underlying sentiment of distrust with respect to lawyers in many of the comments posted in support of Dr. Pho’s blog.  Statements like “lawyers don’t care about the quality of their cases as long as they make money,” or “the medical malpractice system is failing because most cases are filed over bad outcomes and not medical negligence.” Such comments reflect an overall attitude that medical malpractice lawyers are the reason why there is an alleged nationwide medical malpractice crisis.

This argument is terribly misguided and, frankly, based on a number of false assumptions about the practice of law. In part, the misunderstanding stems from the fact that most critics are not lawyers and, thus, not familiar with a lawyer’s everyday incentives, interests, limitations, and obligations. Although a law review article would be more befitting this subject, the following discussion outlines a few considerations that should hopefully illuminate what drives a lawyer’s analysis with respect to the type of cases that should be pursued.

Ethics

Let me begin with the consideration that is most important to me. Lawyers, unlike most other service providers in the workforce, are bound by a code of ethics.  If they don’t follow it, they can be disciplined and even disbarred.  It is as simple as this: in each state, lawyers are subject to a plethora of proscriptive and prescriptive rules. For example, in Maryland, each lawyer must comply with the rules of professional conduct. These rules govern virtually every aspect of legal practice (i.e. conflicts of interest, acting in good faith, etc). In addition to these rules, Maryland lawyers must also abide by local rules of court, the rules of civil procedure and a plethora of cases dictating how lawyers should act.  In this matrix of Rules, many rules directly or indirectly prohibit a lawyer from making frivolous claims, pursuing claims without a good faith basis, and taking unsupported positions during the course of litigation, among other things.

In the District of Columbia, relatively recent legislation requires the giving of a substantive (i.e. not just – I’m going to sue you) notice to the potential defendant(s), which outlines the essential theories of the claim. Failure to give some notice in timely fashion can – and often does – result in the dismissal of a lawsuit in which this notice was not given. Once filed, a patient-plaintiff is, in essence, bound by the same requirements of proving his/her case as in Maryland, but more on that later.

A cynic may argue that the rules are no good if lawyers are not willing to live by them. The assumption that most lawyers don’t care about the rules of professional conduct is just that, an assumption – and a misguided one at that! Most of us care deeply about our clients. Most of us are very proud to be lawyers, and the vast majority of us diligently and religiously comply with our ethical obligations.   You don’t have to believe me; call your state’s bar association for studies directly on point.

As in any other profession, a few bad apples give us all a bad name from time to time.  When this happens, other lawyers are quick to initiate disciplinary actions. In medical malpractice cases, the persons with the greatest incentive to report unethical behavior are the defendant health care providers and their lawyers.  As you may suspect, reporting bad behavior in an adversarial system is a bit more incentivized when compared with reporting among physicians, who practice in a collaborative and non-adversarial environment (i.e. the same hospital, practice group or health care system).

The Financial Realities

In addition to various ethical constraints, I am convinced beyond all doubt that a lawyer would have to be completely out of his/her mind to pursue a meritless medical malpractice case. Don’t forget that a law practice is a business just like any other business. The vast majority of plaintiff medical negligence lawyers practice in small firms. Operational and the litigation costs are very high (if you know physicians who testify as experts in medical malpractice cases, for plaintiffs or defendants, ask them what their hourly charge is to review medical records, give depositions and testify in court. It would be enough in an of itself to make you reconsider your career choice). Generally speaking, most medical malpractice cases (conservatively estimated) require between $50k and $100k to bring to trial. Additionally, each lawyer can only pursue a small number of cases to insure diligence, and yes, compliance with the ethical rules of professional conduct. Keep in mind that the vast majority of medical malpractice cases are contingency fee cases, which means that the law firm (where permitted by law and ethics) advances all of the costs. None of these costs are recouped if the case is lost.

The obvious question – or at least what should be an obvious question is: why would a lawyer want to invest his/her money in a meritless or questionable case?  The simple economic reality of a medical malpractice firm is that it can never afford to pursue frivolous or meritless claims.  Pursing even questionable cases is a good way to go bankrupt. When a frivolous case is filed, guess who is waiting on the other side of the aisle ready to devour it and the lawyer who filed it? Unlike plaintiff lawyers, defense lawyers get paid by the hour. Their spending power on litigation is enormous since they have the financial backing of multi-million dollar insurance companies and/or self-insured institutions.  Because defense lawyers get paid by the hour, they have every incentive in the world to use every known legal tool and maneuver to increase the costs of litigation and defeat the claims against their clients.

Simply put, survival of the fittest (and the smartest) is the name of the game when it comes to choosing cases for litigation.  Every plaintiff’s lawyer asks this question more than any other before signing a case: just how strong is the evidence of negligence? The last thing a lawyer wants to  do is spend thousands of dollars on a case that is frivolous and destined to fail.  When handled by lawyers who are experienced in handling cases of medical negligence/malpractice, if case is in litigation, believe me, it is as far from being frivolous as it can get. This doesn’t mean the patient/plaintiff always wins. It simply a matter of common sense – experienced medical malpractice lawyers screen cases vigorously and don’t (and certainly can’t) make a living out of filing non-meritorious lawsuits.

Procedural Requirements

Assuming that a lawyer foolishly chooses to represent a client with a weak or meritless claim, there are still a number of procedural requirements that are purposely designed to prevent such claims.  In most states, a number of procedural/jurisdictional thresholds must be met before a case can even be filed in court. Such requirements are specifically designed to weed out non-meritorious cases.

For example, in Maryland, a lawyer must obtain a very specific certificate and report from a qualified physician, specifying that the defendant health care provider breached the standard of care (failed to act reasonably under the circumstances) and that this breach of acceptable medical standards of care caused the patient-plaintiff’s injuries.  The case must first be filed with a special arbitration commission and have certifying expert certificates and reports before it can be filed in court.  Throughout litigation, a plaintiff is required to obtain supportive, competent opinions from a number of medical experts. These experts cannot just generally or vaguely support the patient-plaintiff’s claim. They must specifically establish 1) what the defendant  health care provider should have done to comply with the standard of care, 2) that the  defendant health care provider breached the standard of care, 3) that the breach in the standard of care caused Plaintiff’s injuries, and 4) what patient’s injuries actually are – not just sheer speculative damages. Such testimony can not come from the lawyer, his/her client, or a lay person; it must come from other physicians. Medical malpractice litigation is not possible without the participation of health care providers, who are willing to testify as experts on behalf of the patient. As if this was not enough, an expert’s testimony cannot be based on a guess, speculation, or conjecture. Each expert opinion must be expressed to a reasonable degree of medical probability, and it must have a scientific basis. These procedural requirements are just the tip of a very large iceberg designed to prevent meritless cases.

Don’t Buy Into the Myths

The simple truth is that real (those who know what they are doing in this specialty area of law) medical malpractice lawyers have very little – if any – incentive to pursue frivolous, weak or questionable cases. Such cases are expensive, they must be supported by other physicians, and they must survive the rigor and scrutiny of litigation.

I often hear people say that most medical malpractice cases are filed because of bad outcomes and not because of real medical malpractice.  I am utterly convinced that such a statement could not be further from the truth. If it were true, most, if not all medical malpractice lawyers would be out of business. That’s the hard, cold reality. Don’t buy into the myths that are many times at the core of this s0-called medical malpractice crisis debate.

Have you been a party in a medical malpractice/negligence lawsuit? Have you been a juror in a medical negligence case? Even been a witness in these cases? What has been your experience? Share your story – let’s get to the real truth of issues that should be at the core of the “discussion” – “debate.”

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Related Posts:

Every Bad Outcome Does Not a Malpractice Case Make! Some Practical Advice

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

Tort Reform or Just Plain Medical Care Reform: the debate continues as thousands are injured annually in US

Many Doctors Don’t Blow Whistle on Colleagues



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Electronic Medical Records – Why Would Insurance Companies Be Concerned About Informed Patients?

Thursday, December 9th, 2010

According to a study conducted by Conning Research and Consulting, an insurance industry research group, hospitals, physicians and other health care providers may end up paying more for medical malpractice if they use electronic medical records instead of the “old school” paper chart. Why, you ask? Get this, because patients will have access to medical records that will be legible to more than just the physicians who write them.  Seriously, this is one of the major reasons presented in the report.

The study warns that more patients will choose to sue doctors because electronic medical records are easier to access. They are, of course, easier to read. Additionally, because it is easier to compile, update, and organize information digitally, electronic records generally contain a lot more information than is customarily included in a paper chart.

The report also mentions that the cost of medical malpractice insurance may go up because of litigation associated with the implementation and maintenance of computer programs that are used to create electronic medical records. Yet another reason advanced is that medical malpractice lawyers will seek to obtain costly production of metadata associated with electronic medical records.

The latter two reasons seem to be a bit attenuated considering that most jurisdictions have specific definitions of medical negligence, which do not include torts arising from the actions of IT personnel. If anything, such torts would include claims of general negligence, negligent supervision and product liability. In these contexts, a health care provider’s medical malpractice insurance premiums should not be affected. With respect to requests for production of metadata, I am not sure the group really appreciates how easy it is to obtain metadata.  Matadata is nothing but code that can easily be derived from digitally stored information and copied on a CD at a very low cost.

How the Health Care Reform Bill Comes into Play

A more credible justification for an increase in the cost of medical malpractice insurance is the increase in transparency as more and more healthcare providers turn to electronic medical records.  There is no turning back.  Pursuant to President Obama’s recently enacted Health Care Reform Bill, health care providers must adopt electronic medical records by 2012 in order to qualify for federal funds.  Because the new law will enable an estimated 32 million people to become insured by 2014, the implementation of electronic medical records is seen as a necessary measure to make medical services more efficient.

The Maryland Experience

In Maryland alone, an estimated 200 health care providers have elected to participate in the State’s electronic medical record system.  It is estimated that another 1000 health care providers will turn to electronic medical records in light of the available 25 million dollar in federal assistance to help pay for the transition.

The Endgame

We have said it many times before in our blogs – information is power. If electronic medical records will make it harder for insurance companies to hide behind illegible, confusing, and incomplete medical records, this is great news for all patients. Hopefully, as electronic medical records become more prevalent, we can begin to deconstruct the notion that most medical malpractice cases are over bad results as opposed to genuine negligence by health care providers.

Has  your medical care has been impacted by inaccuracies or ambiguities in your medical record. Tell us  your story.I

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For more information about the prevalence of injuries as a result of medical errors, see  our previous posting, Medical Malpractice – Serious Medical Errors: Failure of the System or Just Plain Ignorance

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Therapeutic Switching: Who is Really Ordering Your Medications?

Wednesday, December 8th, 2010

The Simple Life

Once upon a time, in a little town called Mayberry, all things were good.  No one really became ill, but if he did, the local town doctor would prescribe a medicine that was promptly filled by the “Ma & Pa” Pharmacy.  The patient got better because of the doctor’s expertise and the prompt response of the pharmacy to deliver the prescribed medicine to the ailing individual.

If “Mayberry” ever really existed, it certainly does not today.  How many times have you been to the doctor for an ailment and the medicine prescribed by that trained and licensed practitioner was denied by your insurance company once you took that prescription to the pharmacy?  Two, three, maybe even 7 days later, after much haggling with the insurance company, you finally get your medication.  Or, when you pick up your prescription from the pharmacy, after doing a little shopping to occupy your time while the prescription is being filled, the pharmacy technician notifies you that your insurance company would not cover the prescribed medication, switching it instead for a cheaper version (not even generic version of the same drug)!  Believe it or not, sometimes the patient is not even notified of the switch!  And this is acceptable practice?!?

What Role Does Your Health Insurer Play?

In April of 2010, Maryland MedChi, the Maryland State Medical Society sponsored a survey for its members titled, “Impact of Patient Health Insurance Protocols on the Maryland Physician’s Ability to Provide Care.” This survey assessed the distribution of perceived problems across the state of Maryland and the impact of insurer protocols on patient care, physician practice management and physician professional satisfaction.  An essentially universal frustration amongst respondents (95%) was the negative impact of insurance carrier requirements on regarding what physicians can prescribe or order on behalf of their patients.  Depending on the insurer, there were pre-approval protocols, step-therapy protocols, therapeutic switching and others that significantly affected the physician’s ability to treat his or her patient.  The problems related to time spent “haggling” with the insurer, communicating with patients to explain the problems, researching potential interactions with other medications or patient conditions, determining other similar failed therapies in an attempt to justify the prescribed therapy, and others.  There are even instances when a patient presents to the hospital for admission to a Hospitalist, and the physician’s office sends the patient’s current medication list to corroborate current therapies only to find differences between the patient’s medication bottles and the current list due to therapeutic switching by the insurance company.  Another even more potentially problematic perception of the physician respondents (59.5%) involved arbitrary delays or outright denials of prescribed therapies by the insurers.

What’s the Motive?

So, you ask what the basis is for this and how do the insurers get away with such mandates?  It all boils down to money.   Typically businessmen run insurance companies, and these businessmen are making business decisions without any inkling of understanding of medicine or seeing an actual patient.  Medical News Today recently reported a survey performed by Global Healthy Living Foundation, a non-profit patient advocacy group, that corroborates the Maryland MedChi findings:  ”…up to 70 percent of prescription medications are changed by health insurers, denying patients the drugs their doctors prescribed” because the substituted drug is actually cheaper.  This survey has identified serious sequellae to this business practice such as adverse reactions, poor recovery rates and worsening of chronic conditions.

The trickle-down-effect of these business practices, in addition to the physical effects on the patient, involve basic economics.  Physician practices have to spend more time in communication with the insurer, the patient and the pharmacy trying to address the problem, taking time away from patient care with n0 compensation (up to 60 hours a week in some practices according to the Maryland MedChi survey).  Some busier practices have had to hire experienced medical professionals (up to $75,000/year salary) simply to intervene with the insurers for pre-approvals and authorizations.  Additionally, patient adverse outcomes and/or worsening of chronic conditions often lead to hospitalizations, time off work, and even job loss.  This seriously affects work production, family income, and in some cases, can lead to permanent disablility placing additional strain on the already over-burdened Medicare/Medicaid system.

How Did this Happen in the First Place?

My question is, how did businessmen get into the practice of prescribing medications?  After all, physicians have spent 4 years in undergraduate programs, 4 years in medical school, and 3+ years in residency and sometimes 1+ years in fellowships to learn medicine and pharmacologic interventions.  These businessmen have perhaps spent 4 years as business majors (not a lick of medicine) and maybe 2 years in a Masters of Business program (still no medicine) in order to dictate what medications an ill patient is taking?!  So, when did these businessmen get their degree to prescribe?  Essentially, that is what they are doing!  And for all of our kicking and screaming, it is still going on in 49 states and the District of Columbia.

The Louisiana “Purchase” Law

The state of Louisiana has led the way in fighting this trend; they passed legislation last year prohibiting the insurance companies from switching medications once they are prescribed.  Currently, New York, California and Missouri have legislation pending that would prohibit this practice, as well.  More states need to advocate for their citizens with regard to such practices; it would also help the physicians and other mid-level providers who prescribe medications provide effective patient care.  The anticipated physician shortage (124,000 less providers nationally by 2025) can only worsen as physicians threaten to retire early, sell their practice or move to other more physician-friendly states (not to mention the move to “boutique medical practices” that would bypass insurers completely) due to dissatisfaction with the profession.  The general public needs to be calling, emailing or writing letters to their legislators to advocate for these changes!  ”Mayberry” may never exist, but we can make the system better for everyone.

What’s your story?  Has this happened to you or someone you know? What can be done about this?

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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.

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UPDATE: AAP Compromise Statement on Female Genital Cutting – RETRACTED!

Tuesday, May 25th, 2010

Please see UPDATE at end of article!

On April 26,2010, the American Academy of Pediatrics (AAP) issued a new policy statement seen by many as essentially advocating the practice in this country of female genital mutilation (FGM)[sometimes  this 'tradition' is referred to as female genital cutting (FGC) as well].  In pertinent part, the policy advocates for “federal and state laws [to] enable pediatricians to reach out to families by offering a ‘ritual nick’,” such as pricking or minor incisions of girls’ clitorises.

Yes, I said this was issued by the American Academy of Pediatrics. How, in the world, you ask, could such an august body promote such a misogynistic practice?

For those who may not be familiar with this barbaric (you fill-in the other adjectives – the list is simply too long) ‘ritual,’ a recent online article by PRNewswire sets the chilling background of this controversy.

FGM is a harmful traditional practice that involves the partial or total removal of the female genitalia and is carried out across Africa, some countries in Asia and the Middle East, and by immigrants of practicing communities living around the world, including in Europe and the U.S.  It is estimated that up to 140 million women and girls around the world are affected by FGM.

Putting aside my personal opinions regarding the overall chauvinistic cultures of – to name a few – Africa, Asia and the Middle East, what would motivate any culture to engage in such a ritualistic practice?

In an NPR interview of Professor of Law, Cleveland-Marshall College of Law, Cleveland State University, Dena Davis, on May 14, 2010, Professor Davis,  a consultant to the AAP and the lead author of the policy statement, the ‘rationale of this ‘tradition’ is explained.

RAEBURN: Do you have a sense I’m just I can’t help but interrupt. Do you have a sense of why in these cultures, there may be different reasons, but why this is done or what is supposed to be the benefit of it?

Ms. DAVIS: Right, it’s a wide array of things. On a positive side, it’s seen as a growing-up ritual, as a celebration of ethnic or national identity. It became politically important as a response to colonization, for example, but it’s also done to remove sexual pleasure from women so that they can be controlled, to guarantee women’s virginity so that they are marriageable and to protect the family’s honor.

So just how did this ‘celebration of ethnic or national identity’ work its way to our shores? How did it conceivably become a part of a policy statement by the AAP?

Professor Davis offers the following explanation:

Ms. DAVIS: Well, I want to start by reiterating what you already said. The statement ends with four recommendations, and none of those mention this compromise. The recommendations are that the American Academy of Pediatrics opposes all forms of female genital cutting that pose risks of physical or psychological harm, encourages its members to educate themselves about the practice, recommends that members actively seek to dissuade families from carrying out harmful forms of FGC and recommends compassionate education of the parents of patients.

Having said that, the controversial part, as you made mention, is a discussion toward the end of the possibility of pediatricians offering what would literally be a nick. And in the statement, we analogize it to ear piercing.

And the idea here was that we knew that some pediatricians in Seattle a number of years ago who had a good relationship with the Somali immigrant community around their hospital had been asked by mothers of girls for this kind of compromise. And they had gone down the road of – they’d had meetings with mothers and so on, and they were about to do that…

RAEBURN: So this was mothers from some of these cultures where this is practiced had suggested that…

Ms. DAVIS: Right, were Somali immigrant mothers.

RAEBURN: Okay, so it was their idea?

Ms. DAVIS: Well, I’m not sure whose idea it was, but they embraced it to the extent that they held off on doing something worse until the doctors could get set up to start offering this. But before that could happen, Congresswoman Pat Schroeder wrote to tell the hospital that it would be criminal under her new law that had recently passed in Congress.

The concern is that we know that in many cases, when pediatricians turn down parents, girls are taken back to Africa for the worst possible procedures done, you know, with no painkilling and no, you know, no infection control and extremely severe forms of these procedures where girls’ labia are scraped away, for example.

And there’s really that’s very difficult to stop…

The uproar from this AAP statement advocating a ‘compromise’ – ostensibly premised on the concept of the ‘lesser of two evils’ – comes from virtually every group in this nation.  One I quite frankly didn’t anticipate was posted by Jihad Watch: “[T]here are those four words of the Hippocratic oath that the American Academy of Pediatrics seems to have forgotten: First do no harm. And if it is supposed to be harmless, let the AAP doctors line up forthwith for their own “ritualized nick.” The comments to this posting by Jihad Watch, which refers to this practice as being “primarily enforced in Muslim countries, ” are also quite revealing. One person identified as ‘Ccoopen’ had this to say:

I’m not sure why this is listed under dhimmitude, considering that FGM is not Islamic. Sure, it is practiced by Muslims, but it is not a Muslim practice. It is a cultural practice which predates Islam by hundreds, if not thousands of years. In fact, the majority of practitioners in Africa are of the African Tribal religions, not Muslim. While it is a horrific practice, it doesn’t need to be tied to Islam since it has nothing to do with Islam, but with culture.

For those who have dedicated their life’s work to obtaining equality among the sexes, the AAP’s attempt at a ‘neutral’ statement of compromise has been vehemently rebuked:

“Encouraging pediatricians to perform FGM under the notion of ‘cultural sensitivity’ shows a shocking lack of understanding of a girl’s fundamental right to bodily integrity and equality,” says Taina Bien-Aime, executive director of the human rights organization Equality Now. “If foot-binding were still being carried out, would the AAP encourage pediatricians to execute a milder version of this practice?”(See “An End to Female Genital Cutting?”) See our source – Time online article.

In its online posting, Time, a partner of CNN, reports (as do many others) reports a legislative twist to the timing of the AAP’s policy statement:

On the same day the AAP published its new recommendation, the Girls Protection Act, which would make it illegal to take a minor outside the U.S. to seek female circumcision, was introduced in Congress. “I am sure the academy had only good intentions, but what their recommendation has done is only create confusion about whether FGM is acceptable in any form, and it is the wrong step forward on how best to protect young women and girls,” said one of the bill’s sponsors, New York Representative Joseph Crowley, speaking to the New York Times. Davis counters that such a law would be extremely difficult to enforce.

So where do you stand on the issue? Has the AAP done more harm than good? Is the ‘compromise simply dangerous folly or adoption of ‘the lesser evil’ for the safety and well-being of these children? You be the judge. Share with us and our community of readers your reaction.

_____________________________________________

UPDATE: in response to my posting this blog on Twitter, one person using the Twitter name kvetchingguru brought to my attention a posting which is a ‘call to action.’ It is entitled “Urgent Alert: Call on the American Academy of Pediatrics to retract their endorsement of Type IV FGM.” A form letter is made available and the names of the Executive Director/CEO of AAP, the Chair of AAP and the President and CEO of the American Board of Medical Specialties are provided.

As I wrote earlier today, this ‘endorsement’ in any fashion – call it ritual snip or piercing – has created a groundswell of reaction.

____________________________________________________

UPDATE: May 27, 2010

It appears that the uproar reported in this article has taken its toll.

The American Academy of Pediatrics has retracted its policy statement on female genital cutting after sparking controversy by apparently endorsing the illegal practice of “ritual nicks” to forestall more extensive mutilation.

“The AAP does not endorse the practice of offering a ‘clitoral nick,’” according to a new statement by the organization’s board of directors. “This minimal pinprick is forbidden under federal law, and the AAP does not recommend it to its members.”

The following from the AAP president about says it all:

In a new statement, AAP president Judith Palfrey, MD, of Harvard Medical School, clarified the academy’s position. ”Our intention is not to endorse any form of female genital cutting or mutilation,” she said. “We retracted the policy because it is important that the world health community understands the AAP is totally opposed to all forms of female genital cutting, both here in the U.S. and anywhere in the world.”

The source for these quotes: medpagetoday