Archive for the ‘surgical errors’ Category

July 1 – New Residents, New Rules……Again!

Monday, June 13th, 2011

Last year, I wrote a blog on “The July Effect”, a long-observed phenomenon of increased hospital deaths during the month of July that was substantiated by medical data and statistics just last year. These data seemed to specifically relate these deaths to the influx of new medical school graduates into teaching hospitals as first-year residents of those institutions. The conclusions of the study seemed well-substantiated. I further elaborated on some of the potential causes of errors being made that could result in harm to patients; what I didn’t elaborate upon was the rigorous and demanding schedule that residents assume.

In 2003, the Accreditation Council for Graduate Medical Education (ACGME) instituted new policies regarding the time limitations of ALL residents, but specifically focused on the first year resident. These limitations were placed on the number of hours that residents could and should work in any given week or rotation in an effort to safeguard the health of the resident but more so to ensure the safety and well-being of patients being treated by these residents.

It is now 2011, and the ACGME is instituting even stricter limitations affecting both first year and mid-level residents; Nixon Peabody does a great job of delineating the changes in the guidelines. Much information has been published in the last year regarding the continued occurrence of medical errors despite protocols and safety mechanisms in place to protect patients (click on related blogs below). It seems that the ACGME is attempting to address some of these errors by addressing the fatigue factor of medical and surgical residents in training. The overall maximum hours per week will not change; it remains at 80 hours.  Yes, twice that of “normal” jobs. One big change is the limit on the maximum continuous duty period for first year residents; this will be decreased from 24 to 16 hours.  It will remain 24 hours for residents after their first year, but recommendations include “strategic napping.” Another change is the additional duty time, previously allotted as 6 extra hours to perform clinic duty, transfer of care, didactic training, etc.; for first year residents, these duties are to be included in the overall 80-hour work week, but after the first year, the residents will be allowed 4 additional hours. A third big change is the minimum time off between duty periods. Previously, it was noted that all residents “should have” 10 hours between shifts; year 1′s are still recommended to have 10  hours off, but they MUST HAVE AT LEAST 8! Intermediate-level residents should also have 10 hours off, but they also must have at least 8 hours off with a mandatory 14 hours off if they just completed a 24-hour shift. Final year residents are recommended to receive 8 hours off, but this is still being reviewed.  One thing that has not changed is the mandatory 1 day off in 7, averaged over 4 weeks.

Many of us watch the medical TV shows, but none of these shows really paint the true picture of medical residency training. As a Physician Assistant student, I trained alongside medical residents and medical students, alike. My training mirrored theirs in the hospital setting, and it happened well before the 2003 ACGME recommendations. There were times during my surgery rotation in a trauma center during which I worked 36 hours straight, followed by 10 hours off, then back to 10- and 12-hour days. The working hours entailed clinic time, managing daily in-patient care, many hours in the operating room, admitting patients during the overnight hours from the emergency room and emergency surgery for trauma victims, hours and hours at a time, in the overnight hours and during the day.  By the end of 36 hours, the exhaustion was indescribable. It is easy to understand how and why mistakes happen. After these crazy shifts, no one ever looked so glamorous as those who are depicted on television shows…..TRUST ME!

July 1, 2011, marks the date when over 100,000 medical residents across the USA from ACGME-accredited training programs start their training in teaching hospitals/institutions across this great nation. We should applaud the ACGME for looking at the data, analyzing studies regarding sleep deprivation, and putting forth these guidelines, not only to aid in patient safety but also to protect the health and well-being of these doctors in training. The pressures of residency are incredible. It is interesting that there was and still is opposition to the duty-hour limitations, citing oppositional rationale such as the residents do not learn enough in 16 hours, and small institutions do not have the support staff to treat all of the patients without the addition of medical resident hours.

So, who is going to fill those gaps created by the resident-hour restrictions placed by the ACGME come July 1st? Each institution will have to look at its own hospital model and decide according to current standards. In 2003, many of these gaps were filled by Physician Assistants and Nurse Practitioners; I suspect this will again be the case.  These mid-level practitioners are quite capable of providing many of the services necessary in hospital settings; they are a growing and well-respected addition to the healthcare team, and I suspect that their usefulness and potential will be more fully appreciated with the institution of healthcare reform!

For more information and Frequently Asked Questions (FAQs) regarding the ACGME guidelines, please go to the website and click on the links!

And, no matter who is caring for you or your loved one, never be afraid to ask questions about therapies and medications being ordered. Be informed!

Related Posts:

“The July Effect”: Where To Seek Medical Care When The Heat Is On

Medical Malpractice – Serious Medical Errors: Failure of the System or Just Plain Ignorance

Study Finds Regional Hospitals Often Are Better At Preventing Medical Errors Than Academic Centers – Kaiser Health News

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

 

 

 

 

 

 

Why early settlement is a win-win for all

Friday, May 20th, 2011

There is an old adage in the law that cases settle on the courthouse steps. There is a reason for that. When the parties are actually walking into court to try their case, they seem to suddenly recognize that there are significant risks to going to trial, and that there is serious money at stake. When you go to trial, only one side can win. The other side goes home a loser. Faced with such a stark outcome, both sides tend to become more reasonable in their assessment of their case and more willing to talk settlement. After all, despite all the years of experience that trial attorneys amass, no one can ever predict what a jury is going to do in any specific case. As one mediator I know likes to tell the litigants, going to court is like going to Vegas:  you roll the dice and you take your chances. So often times, the closer a case gets to the trial date the more motivated the two sides are to talk settlement. But is there a better way?

A couple of recent cases made me start to think about settlements and how they come about. (If you missed it, Brian Nash wrote an excellent piece on the frustrations of mediation and trying to settle cases). I’ve recently handled two cases that illustrate how settlements work and how two cases can go down dramatically different routes to ultimately get to the same place. Both of these cases are subject to confidentiality agreements so I can’t divulge the names of the parties or the settlement amounts, but they were both seven-figure cases with significant injury.

In the first case, the patient alleged that her doctor failed to timely diagnose stomach cancer over a period of several years. By the time the patient was properly evaluated by another physician, the cancer had progressed to the point that there was virtually no chance of a cure, and the young woman was likely going to die in the next few years. In the second case, the patient alleged that he suffered serious neurological complications (motor and nerve dysfunction in his arms and legs) as a result of post-operative complications that were not treated quickly enough. In both cases, a lawsuit was filed in court.  At that point, the two cases diverged.

Case Example #1 – Getting it done early

In the cancer case, before any depositions had taken place, the defense attorney called and asked if we might be able to talk about resolving the case. That’s always a great call to get as a plaintiff’s lawyer because it means there is a good chance that you will be able to get a nice result for your client, which is always the ultimate goal. Within a matter of weeks, we had reached an agreeable number and the case was over.

Case Example #2 – Grinding it out to the courthouse steps

In the second case, there was no early talk of resolution. The case proceeded through the normal course of litigation, which in the District of Columbia usually means about eighteen months of discovery, depositions, expert meetings, etc. Twenty-five experts were hired to review records and testify. Twenty-seven depositions ended up being taken. The case got all the way up to the Thursday before trial was scheduled to start on the following Monday morning. At that point, the parties finally reached agreement on a number and the case was settled.

Why the difference in approach?

So we have two cases, both with significant injury and both with questionable care. One case settled right away, and one dragged on for almost two years before settling. Is there a simple reason why? Not that I’ve been able to figure out. After years of doing this, I, like every other attorney, get a gut feeling as to what cases are worth, which ones will likely settle, which ones will go to trial. But it’s still a gut feeling; there’s no science involved.

It’s usually a combination of factors – the quality of the medical care, the severity of the injury, the likeability of the plaintiff and the defendant (more important than most people realize), the specific jurisdiction you’re in, etc. On top of these factors you have a myriad of psychological reactions that pop-up in lawsuits and there is no predicting those. Sometimes people get entrenched in fighting for no other reason than to fight. Some people get a number in their head for what a case is worth and don’t want to budge. So even though I can’t sit here and explain why certain cases settle early and some settle late, I do want to talk about the value of early settlements to all sides.

Common Sense and good economics say “get it done early”

It is easy to see why early resolution of cases benefits everyone, and it comes down to the costs of litigation. In today’s world, it can easily cost $75,000 to $100,000 (if not more in many instances) just in expenses to take a case to trial; it can easily be much higher in complex cases. (I know of one attorney who spent $300,000 on a case that he took to trial; he lost the case). These expenses consist primarily of expert fees paid to doctors to review records and testify. Expert doctors routinely charge at least $400 per hour and oftentimes more for their time. For trial testimony, doctors usually charge around $5,000 per day (some substantially more). If it runs into two days, that’s $10,000 just for one witness. It’s not unusual to spend tens of thousands of dollars for expert fees alone.

On top of that there is the cost of court reporters for each deposition, copying charges, obtaining medical records, long-distance calls, travel expenses, etc. Going through litigation is an expensive undertaking, and the longer the case goes on the more expensive it is. On the plaintiff side, all of those expenses are usually advanced by the attorney (in jurisdictions where this is permitted), but they all get paid back by the client at the end of the case (assuming the plaintiff wins; if there is no recovery, the plaintiff’s attorney “eats” those costs). So every dollar spent on litigation comes straight out of the client’s portion of the recovery.

On the defense side, insurers and self-insured institutions (like hospitals) have those same expenses, but on top of that, they also have to pay legal fees to their attorneys. Defense attorneys charge by the hour for everything they do on a file from reviewing records to meeting with clients to talking to experts to taking depositions. The complexity of medical negligence cases means long hours of work on each file, generating substantial legal fees. Those fees get paid to the defense lawyer whether the case is won, lost or settled at the last minute. The longer the litigation lasts, the higher the legal fees.

Of course it always costs money to investigate a case. There is no avoiding that.  Records need to be obtained and reviewed. Experts need to be retained for an initial opinion. But instead of spending $75,000 or $100,000 (or more) on a case, it may cost only several thousand dollars to work-up a case to get it ready to file – that is, to be in a position where early resolution can be discussed with the defendant. If a case can be settled early on, all of those thousands of dollars that would have gone to litigation costs go straight to the client. That is a huge benefit to the client.

The defendant benefits too. No hospital or insurance company wants to spend money needlessly. Early resolution means that the defendant doesn’t have to spend tens of thousands of dollars in expenses and tens of thousands more in legal fees. The only way it makes sense to spend that money is if, at the end of the day, the “defendant” (read insurer/hospital) believes it can either win the case or settle it for less down the road. But here’s the thing – a case can usually settle early on for less than the case would be worth had the case gotten closer to trial. This isn’t always true, of course, but as a general rule, a good case does not become less valuable over time.

Plaintiffs’ attorneys don’t undersell their cases to get an early settlement, but in practical terms, attorneys and clients are usually willing to consider some discount because they know that an early settlement is to their mutual benefit.The plaintiff gets a guaranteed financial payment now rather than waiting eighteen months for a trial and then a possible appeal that may drag the case out another two years. In that circumstance, the plaintiff is usually willing to take a little less money now because it is certain. It’s the age-old question: would you rather have X amount of money now, or wait eighteen months for the chance of getting more? For most plaintiffs, it’s an easy answer. Also the defense can pay less on a case than it would have ended up paying anyway and save thousands in expenses and legal fees by doing so. It’s a win-win for all parties.

Just do the math!

The big secret with early settlements (and which can sometimes be difficult to explain to a client) is that even though an early settlement might be for less than what a jury might award, the client can actually put more money in his or her pocket with a lower settlement amount. Again, we’re back to the issue of litigation costs. If a firm spends $10,000 to investigate a case and get it ready to file rather than $100,000 to take a case to trial, that is an extra $90,000 that goes straight to the client. Also, some law firms will have a contingent fee agreement in which the fee is higher (usually from 1/3 to 40%) when the case goes to trial, which serves to compensate for the additional time,  risk and expense of going to trial. When you consider the higher legal fees and the increased costs of litigation that have to be paid back, it can actually take a substantially larger jury verdict to put the same amount of money in the client’s pocket as he or she would get with a smaller early resolution.

Some cases may just need to be tried

I don’t mean to imply that every case that gets filed should be settled early. Far from it. Some lawyers undoubtedly file cases that are simply without merit and should be defended vigorously. Other cases – while they may be defensible – fall into a middle category where the care may not be the best but the plaintiff has problems with his/her case too. Some cases can be difficult to evaluate without further investigation and discovery to gauge the strength of the case. In those cases, it is entirely appropriate to proceed with litigation – even on a somewhat limited scale through discovery. No doubt there are instances where insurance companies do need to protect the interest of their doctors, and sometimes that means vigorously defending a case all the way through trial.

Some cases, however, – the cases where the medical care is truly egregious and the damages are clear – need to be looked at early on to see if the two sides can be reasonable and find some middle ground. If a case is going to ultimately settle (and believe me, experienced attorneys and claims adjusters can usually identify those cases early on), it makes sense to talk sooner rather than later. It requires compromise on everyone’s part, but the value to both sides is so great that it makes sense to talk early and get it done.

What has been your experience?

I’d be curious to know the experience of our readers. Has anyone been involved in a lawsuit that settled? Did it resolve early on or did it stretch out for years? Do you think the time involved had any impact on the amount of the settlement? Any tips or tricks you might suggest? Let’s hear from you – maybe we can all learn how to get these cases resolved earlier and stop wasting time, resources and money.

You may also want to read these related posts:

Frequently Asked Questions (FAQ’s)

A View from the Shady Side – The Defense Perspective

Every bad outcome does NOT a malpractice case make! Some practical advice

 

Medical Second Opinions: An Under-utilized Option for Patients

Monday, May 2nd, 2011

Today’s medical world is vast with various technologies, treatments and options.  So, if a patient is diagnosed with a medical condition, and doctor A recommends treatment A, what keeps the patient from seeking a second opinion? This is an interesting phenomenon.  After performing intake summaries and client interviews for quite a while now, it still amazes me how many people have bad outcomes from surgery simply because they never requested a second opinion. Second opinions are not simply reserved for surgery, though; cancer treatment options, medical therapies for chronic conditions like rheumatoid arthritis or inflammatory bowel disease, chiropractic care of chronic back or neck pain are some other conditions that, in my mind, scream for a second opinion!

Having practiced medicine for 13 years, working with physicians from all specialties, I can honestly say that doctors are not gods. They are human beings, no different than you or me, and human beings are prone to prejudice and errors. Granted, physicians go through a lot of education and training to perform their daily duties, but location of training, timing of training and educational mentors play a huge role in shaping the decision-making process of these humans.

Inherent limitations that can affect physician recommendations

For example, the latest technology for prostatectomy has been the DaVinci procedure, using minimally invasive robotic technology to surgically remove the prostate.  Operation of the robotics involves manipulation of “joysticks”, much like video-gaming. No offense, but if your particular urologist is 60 years of age or older, what are the chances that this particular surgeon is as adept with these skills or technology as a 30-year-old urologist?  Special training is required for use of these robotics, and not all hospitals even have the technology available. Therefore, one’s choices are automatically limited, and a minimally-invasive robotics-assisted procedure may not even be an option! A second opinion by another urologist at a different facility might be able to provide that option. A similar situation would be the use of gamma knife surgery for removal of brain tumors; it is not always an option available based on the facility or the neurosurgeon providing the consultation.

Can recommendations be limited by specialty?

Another example has to do with medical specialty affiliation. If one is trained as a surgeon, he/she focuses on the technical removal or repair of abnormal body parts. If one is trained in radiation-oncology, the focus would be the various radiation technologies available for treatment of disease. If one is a medical oncologist, chemotherapy protocols for the particular neoplastic condition would be the focus.  So who ties all of this together?  First of all, is the tumor even operable? Is the patient a good candidate for surgery? Should one try radiation first to shrink the tumor, then follow it with an operation? Is chemotherapy the way to go, but which regimen of drugs is really appropriate? These are very technical and complex questions. Should one leave the ultimate recommendation up to one specialty physician?

Suggested approach to the problem

For me, it would be a little more comforting to get the same overall recommendation from two independent physicians. What if the opinions differ?  A third opinion? – or, simply focus on the discrepancies with direct questioning of the two physicians and find out the rationale for the recommendation being made. You do not know how many times I have heard, “I trusted my doctor.” I ask you, if your car was making a rattling noise but seemed to be running okay and a mechanic told you a new transmission was necessary at the cost of $1800, would you get a second opinion?

Don’t let fear or reprisal get in your way

One of the main reasons for fear in seeking second opinions is anticipated disapproval and potential retaliation by the first physician or fear of a change in the patient-physician relationship.  I pose to you the following:  if a physician has done his/her research regarding the condition and is confident is his/her recommendation, then he/she should not fear the opinion of a peer. If that opinion differs, it should be reviewed for accuracy and appropriateness because it might just be a viable option not previously considered. If the physician is “offed” by the patient’s search for a second opinion, that physician thinks way too highly of himself/herself; keep in mind that this is about the patient who has a condition that requires treatment, not the physician’s integrity or ego. It is my firm opinion that physicians should be proud of those patients who advocate so strongly for themselves and seek to be educated about their condition.  Education leads to a better understanding of the disease process, better expectation of the “road ahead,” and better patient compliance with medical therapies. Retaliation is prohibited by the medical code of ethics; if there is a retaliatory action, the state’s Medical Board should be notified and prompted to investigate.

Beware of the on-line second opinion approach!!!

Recently, multiple facilities have offered a “second opinion service” via the internet. A patient submits his/her medical condition along with various lab studies and other diagnostic imaging (CT scans, x-rays, MRI scans, etc.) for review over the internet; an opinion is provided based on these facts!  What this really doesn’t take into consideration is the patient!  Patients are people – human beings with emotions, physical limitations, families (or not), previous histories and other underlying health conditions. One of the things I was taught in PA school was to treat the patient and not the numbers!  Not all patients are surgical candidates.  Not all patients can emotionally or physically tolerate some of the chemotherapy protocols. Someone might look good on paper with great blood parameters, vital signs, etc., but in person, one’s assessment changes dramatically.  These virtual second opinions may have their place in certain situations, but I generally have to question the validity of such an assessment.

A “real-life” story

I leave you with a quick summary of a case:  Mr. B was a 40-something, physically fit male professional, who loved to work out and exercise. He developed some mechanical back pain for which he sought treatment. An MRI scan revealed an incidental finding of small spinal cord glioma in the low back. Clinically, there was no evidence to support that this incidental finding was in any way related to Mr. B’s pain. He sought the advice of a neurosurgeon, who immediately wanted to operate. Well, if research had been done, these particular tumors are 99% benign, very slow-growing and can often be monitored for 10 to 20 years before surgery might even be necessary.

Mr. B followed the advice of the surgeon and underwent a resection of this small tumor. The surgery required resection of the S1 nerve root, which affects sensation in the genital region and anus; Mr B was now impotent and had problems with bowel movements in addition to a chronic burning sensation in his genital region. A second opinion might well have saved Mr. B a lot of pain, permanent erectile dysfunction and money required to undergo alternative methods for conception. He’ll never know now.

Have you or someone you know gotten second opinions before making a decision about an important medical procedure? What’s your approach? Have you ever received different opinions about how to treat a condition? How did you resolve this situation? Any tips for others?

Image: Wellsphere.com

Update: After posting Theresa Neumann’s piece this morning, I came across a somewhat related post on KevinMD.com entitled Marcus Welby and the relentless growth of specialization. The author, Jan Henderson, PhD, raises some very interesting thoughts about what I would call the “over-specialization” of medicine. She provides the following quote of Dr. Welby from very first episode of this TV show of years gone by, which – to me – supports one of the concerns raised by Theresa in her blawg:

… I hope some of you will go into general practice. For if you don’t, where will a patient turn who doesn’t know that he has an orthopedic problem? Or a neurological problem? Or a psychiatric problem? Or a nutritional problem? But who only knows that, in lay terms, he feels lousy.

Just some food for thought you might enjoy.

Brian Nash (editor of “Eye Opener”)

Robot Anesthesiologists?

Tuesday, April 19th, 2011

robotic intubationFor anyone contemplating serious surgery, it can be a scary endeavor. From going through it myself and talking to others, I know that the main fear we have going into it is that the surgeon will make a mistake during the surgery, or that we will develop serious complications such as a hematoma, infection, etc. that leads to death or paralysis. While these are very real risks of many forms of surgery, there is another aspect of surgical procedures that gets less attention from patients – the anesthesiologist. While it may get little notice from patients, anesthesiology is a highly complex field of medicine in which doctors (and certified nurse anesthetists) train for years to be able to do it well. This post will focus on just one aspect of anesthesiology known as intubation, and a new development in robotics that may improve the procedure.

What is intubation?

At its most basic, intubation is the process by which the anesthesiologist places a thin plastic tube into the patient’s windpipe to maintain an airway or to facilitate mechanical ventilation. While this is done in a variety of serious medical situations, it is almost always done during major surgery when the patient is under general anesthesia. During such surgery, the patient is rendered unconscious and is unable to breathe on his or her own. Therefore, the anesthesiologist has to essentially breathe for the patient during the surgery, either using a ventilator or sometimes compressing a bag that replaces natural breathing. The process of intubation allows this artificial breathing to take place. Because intubation itself is a painful procedure (remember – a tube is being inserted far down your throat), the patient is usually given paralytic drugs (drugs to induce paralysis) before intubation. This is a key point we’ll come back to later.

Risks of Intubation

While it may sound as simple as sliding a tube down the throat, intubation carries its own risks separate and apart from the risks of anesthesia itself (risks from anesthesia can include death, paralysis, brain damage and a whole host of other less serious injuries). With intubation, there are minor risks such as chipped teeth, lacerations in the gums and sore throat. However, there are many more serious risks as well, including perforation of the trachea, mistakenly placing the tube down the esophagus (a more common occurrence than you might think), aspiration of stomach contents, vocal cord injury, decreased oxygen and elevated carbon dioxide, and nerve injury. Intubation is a serious procedure that requires a high degree of skill and training to do it well and safely.

What if the tube does not get placed properly?

Inability to secure the airway is a major problem in intubation. To understand why, you have to remember that before the tube is placed, the anesthesiologist paralyzes you with drugs. Therefore, before the tube is placed, you stop breathing on your own. It is then critical that the tube be placed quickly and accurately to ensure that you don’t suffer from a lack of oxygen (or ventilation – the exchange of oxygen and carbon dioxide). So what happens when the anesthesiologist has trouble getting the tube in? It just so happens that I have some personal familiarity with that scenario.

A few years ago I had back surgery. The surgery itself was not complex as far as spine surgeries go (it always amazes me how surgeons are able to describe cutting open your back and operating on your spine as casually as they might describe changing a light bulb). It essentially consisted of trimming off a small piece of disc that was pressing on my spinal cord and causing pain to radiate down into my leg and foot.  I was in and out of the hospital the same day, but of course I was under general anesthesia so I had to spend a couple of hours in the Post Anesthesia Recovery Room (PACU) to make sure that I was not suffering from any ill effects of the anesthesia. While waking up, and still groggy, the anesthesiologist walked up to me and said, “I just want to let you know – you were really hard to intubate. If you ever have surgery again, be sure to tell your doctor that you’re really hard to intubate.”

I asked the doctor what he meant by that. He told me that because of the anatomy of my mouth and throat, he had had a really difficult time getting the tube into my airway. Keep in mind, the tube was placed down my throat after I was given drugs to paralyze me. Even in my post-anesthesia addled state, I knew enough to ask the obvious question – what would have happened if he couldn’t have gotten the tube down in time? He was casual in his response. “Oh, we would have given you drugs to wake you back up.” How comforting. My next thought was, “Maybe you could have checked my anatomy out before you gave me paralyzing drugs.” I didn’t ask that because I am sure they did check me pre-operatively.  That is standard procedure before giving anesthesia to make sure that the anesthesiologist knows the patient’s anatomy and can anticipate problems. Apparently, my anatomy was a little more vexing than he had bargained for. However, he was finally able to get the tube in and the surgery went well.

The use of robotics

Because of the ever-present risk of serious complications, researchers are always working on improving intubation to minimize risk. It has always been a hands-on procedure that depended on the skill of the individual performing it. Now we may be moving into a whole new world of intubation thanks to advances in robotics.

Medical News Today is reporting that Dr. Thomas Hemmerling of McGill University and his team have developed a robotic system for intubation that can be operated via remote control. According to Dr. Hemmerling:

The [device] allows us to operate a robotically mounted video-laryngoscope using a joystick from a remote workstation. This robotic system enables the anesthesiologist to insert an endotracheal tube safely into the patient’s trachea with precision.

The system is still in development. It has been widely tested with mannequins that mimic human anatomy, and clinical testing on patients has now begun. Dr. Hemmerling hopes that the new device will allow anesthesiologists to intubate patients using less force and higher precision, which should help to improve patient safety. Even with the use of robotics, I would think that intubation, including pre-operative assessment of individual anatomy, is going to require close hands-on involvement in order to ensure that it is done safely and properly, but it is always exciting to see what was once science fiction being used in real-life surgeries.

What you can do

While robotic anesthesiology is still down the road for most of us, there are still things you can do to minimize your risk of injury. Before agreeing to surgery, most of us do a good job of vetting our surgeon – how experienced he or she is, how many similar procedures he or she has performed. How many times have you heard a friend describe his or her surgeon as “the best?” Yet virtually no one who has been a patient – at least in my experience – makes any inquiry into the experience level of the anesthesiologist, even though a mistake by this person can render you paralyzed or brain-dead (or even dead) in a matter of minutes.

If you are planning on undergoing serious surgery, I would encourage you to discuss the anesthesia care with your surgeon. Find out ahead of time who your anesthesiologist is going to be (if that’s possible), and discuss your situation with that person. No doubt you will be evaluated by the anesthesiology team before your surgery, but it may well be the same day as your surgery, and it will feel like just another routine matter like signing a few forms. Keep in mind, however, that anesthesiology is just as important as the surgery itself. Stay informed and ask questions. Treat your pre-operative session with the anesthesiologist as if your life and health were depending on it – it just may!

And as for robotics, I’m curious what your comfort level would be if your doctor suggested using a robot to intubate you? Would you be willing to try the procedure, or would you prefer the traditional hands-on, human approach?

Image from “Today’s Medical Developments”

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?

Medical Malpractice – Serious Medical Errors: Failure of the System or Just Plain Ignorance

Wednesday, October 27th, 2010

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

Monday, October 25th, 2010

HEADLINES AND EXCERPTS

Wall Street Journal, September 28, 2010, diagnostic errors kill 40,000 to 80,000 patients annually based on autopsy studies over past 4 decades.

American Medical News, August 23, 2010, an estimated 1.5 million medical errors cost the US economy $19.5 billion in 2008.  

CNBC.com, October 19, 2010, the Colorado Physician Insurance Company found between 2002 and 2008, 25 surgeries were performed on the wrong patient, and another 107 surgeries were performed on the wrong body part. One-fourth, approximately 6 patients suffered significant injury. There was 1 death.

News from the National Academies, October 21, 2006, medication errors injure 1.5 million people annually. 400,000 injuries occur in hospitals; 800,000 occur in longterm care; and 530,000 occur in Medicare outpatient clinics. Estimates were conservative.  Treatment of hospital injuries cost more then $43.5 billion annually. Lost wages, productivity, or additional healthcare costs were not included.

HealthGrades, April 2008, published 3 years of Medicare data from 2004-2006 in their 5th Annual Patient Safety in Hospitals Study. They found 1.12 million patient safety incidents occurred representing a 3% incident rate; and 270,491 in hospital deaths were directly attributable to an incident. The incident rate was unchanged from the 4 previous annual reports.  The incidents accounted for $8.8 billion in excess cost.

HealthGrades, April 2009, also reported improved data in the 6th Annual Patient Safety in Hospitals Study.  Inpatient Medicare admissions from 2005 to 2007 were studied. Only 913,215 patient safety incidents occurred with an associated $6.9 billion in excess costs. Instead of a 1 in 5 chance of dying from a safety incident in 2004-2008; patients’ odds improved to 1 in 10 chance of dying from an incident by 2007.

Institute of Medicine of the National Academy of Sciences, 2000, estimated medical errors kill up to 98,000 US hospital patients each year.

_______________________________

I decided to write about patient injuries in American hospitals 2010 because – frankly – my career in healthcare quality assurance and risk management was launched as a direct result of a landmark study released in 1978.  Don Harper Mills, M.D. published a study known as the California Medical Insurance Feasibility Study (CMIFS). In 1978, no one knew how many people were actually being injured in hospitals. There was a crisis of available liability insurance for physicians and hospitals, and as a result, compensation alternatives were being considered. In order to fund compensation alternatives for patient victims, actual injury data was needed.

Dr. Mills and his colleagues manually reviewed 20,864 hospital patient medical records from 23 representative California hospitals for the year 1974. They found 970 patients were directly injured by a medical mistake. This was 4.5% of the entire records sampling.  What shook the healthcare industry to the core in 1978 was the following:

When expanding the study sample size to the full statewide population, the data showed there were:

  • 6.5% minor permanent injuries – 9,100 patients;
  • 3.8%  major permanent injuries – 5,300 patients; and
  • 9.7% suffered death – 13,600 patients.

If all of these patients were to be fully compensated under full disclosure and/or no fault insurance plans, the state would not have been able to fund the approach. Insurance companies and states across the country began looking at closed medical malpractice claims, statewide data, medical records that showed the same trends were a national and not just a “California” problem.

Throughout the early 1980’s, we saw state and federal regulations mandating hospitals implement physician peer review and quality assurance programs. Medical malpractice insurance companies and brokers sent consultants into hospitals to begin teaching staff how to set up systems for monitoring care and correcting/improving systems.

The American Society of Healthcare Risk Management was born creating national and state-based initiatives to reduce injuries. The American College of Surgeons published their first Patient Safety Manual for medical staff leadership.

Initiatives from the Joint Commission for the Accreditation of Healthcare Organizations continued into the 1980’s and 1990’s with expanded quality improvement standards.

This great computer age has allowed more sophisticated and widespread comparison of insurance, state and national data than ever before. The data tragically continues to reveal dismal results despite decades of government, state, regulatory, and social pressures for hospitals, physicians, and healthcare professionals to improve.

THE DEBATE RAGES ON …WHAT WILL FIX IT?

While the AMA continues to whine about being sued too often and the tragic impact on physicians, as you see the data show that for decades, patients continued to be significantly injured. A study by Harvard researchers, who reviewed 1452 medical malpractice closed claims in 2006, reported 75% had legal awards consistent with their merit. Two reports by Dartmouth economists in 2005 and RAND in 2004 found awards were consistent with the rising costs of medical care and average awards grew less than real income. The more costly medical care was responsible for more then half the jury awards. A study of American insurance data between 2001 and 2004 showed malpractice awards per doctor were stable or fell, and premium increases were not connected to awards.

In 2009, the Canadian Medical Association Journal reported there was no evidence US doctors were experiencing increasing numbers of lawsuits during 2001-2004.  Over 15 years, states had reported physician insurance premium rates were flat or declined relative to economic and population changes.  The article cited opinions that the problem was not litigation; the problem was malpractice.  However, the AMA is persistent in claiming financial relief is needed. One means they propose is to limit of non-economic damages for pain and suffering nationally to $250,000.

Very recently, American Medical News (amednew.com) issued a summary of 20 new grants issued by the Dept. of Health and Human Services at a cost of $25 million. The grants are to find ways to cut medical errors and improve communication between doctors and patients.  Highlights were:

  • New patient safety programs that include data designed to link with medical liability claims.
  • New York won $3 million to expand and test a judge-directed negotiation program for surgery and obstetrical injured patients.
  • The University of Washington in Seattle won $2.97 million to train physicians, nurses, and pharmacists to communicate.
  • Ohio State University of College of Medicine won $186,214 to establish a statewide database on pregnancy-related deaths for study towards improving outcomes.
  • South Dakota and Sanford Health won $299,995 to develop a state model for collecting medical error data and to design a patient complaint reporting system.

Ironically, the Wall Street Journal article (September 28, 2010) reported physicians were learning from reviewing closed lawsuit claims data. As a result, “Some doctors are using electronic alerts and reminders to order tests, follow-up lab data, and communicate with referral specialists.”

WHY AREN’T THEY ALL DOING THIS?

This June’s Archives of Internal Medicine reported 91% of doctors practice defensive medicine and order too many tests adding huge unnecessary costs to the healthcare system.  The Wall Street Journal article reported a better solution is to  improve larger system failures and prevent errors. Kaiser Permanente uses medical malpractice data for education, but also focuses resources on technology to reduce patient injuries, i.e. close tracking and follow-up of patients with abnormal testing results. The VA is doing the same through an electronic medical record system. This is encouraging.

The insurance company representing Harvard University affiliated hospitals and doctors uses lawsuit data to focus on improvement strategies. Again, from my perspective having worked in the past for a large insurance broker, a statewide project funded by an insurance company, and a medical malpractice insurance company, this is NOTHING NEW.  Out of 456 high severity cases resulting in serious harm to patients, most were diagnostic errors. The insurance executive for the Harvard account is hoping to spur changes in systems and procedures and reduce this finding.

I am hoping he will see results. I trust the headlines will continue to print those results and trends for us to follow.

We can only hope that the coming years will see a dramatic reduction in these preventable medical injuries.

Medical Malpractice:woman awarded $3.5 Million for paraplegia after graft surgery.

Wednesday, May 19th, 2010

53 year old Victoria Little, of Harford County, MD, walked into the hospital to have  surgery wearing four inch heel, but when the surgery was over, she was left a paraplegic unable to walk. Ms. Little underwent a grafting procedure in 2007 for blocked arteries.

Ms. Little filed suit in 2008 claiming that Dr. Rodger Schneider and Dr. Mark Gonze, partners and surgeons of Vascular Surgery Associates, used an improper grafting technique. Plaintiff’s counsel, two good friends of ours, Jim Cardea and Scott Kurlander,  argued that the procedure led to blood loss and damage to Ms. Little’s spinal cord, which left her a paraplegic.

The Baltimore Sun reported that after hearing all arguments and nine hours of deliberation, the jury awarded Ms. Little $1.3 million for non-economic damages, $2 million for future medical costs and over $200,00 for prior medical bills.

Attorney for the defendants, E. Phillip Franke, III, claimed that Ms. Little  simply had a poor outcome and that her injuries wee not the result of malpractice. The defense is currently reviewing the case for appeal. In light of Maryland’s cap on non-economic damages (e.g. pain and suffering) we expect that in the interim that the award will be reduced.

Harford County has traditionally been viewed as a conservative jurisdiction and not plaintiff-friendly. Well, the good people of Harford County got it right! Congratulations, Scott and Jim!

Computer May Be Better Than Your Doctor in Providing Information for Obtaining Your Informed Consent

Tuesday, April 13th, 2010

When most people think about medical malpractice, they think about a doctor making a mistake during surgery, or failing to order a necessary test, or making the wrong diagnosis. In other words, a mistake in the actual rendering of medical care. However, a doctor can also be negligent in his or her communications with a patient even before the doctor undertakes the treatment at issue.

Under the law, a doctor is required to explain to the patient the risks, benefits and alternatives of treatment so that the patient can make an informed decision about whether to proceed with treatment. This is called “informed consent” and is a critical step in the process of getting competent medical care.  

While some doctors and hospitals have generic consent forms that you sign before surgery, the actual informed consent process is typically handled by the doctor, usually in the doctor’s office. At this time, the doctor is required to explain the treatment, what it entails, the risks involved (i.e., death, infection, etc.), and whether there are any less  invasive alternatives or other available options for care. If the doctor fails to thoroughly explain these issues, then he or she can be held liable if the patient did not understand the full ramifications of the procedure and suffered injury as a result.

One of the difficulties of informed consent is that it is usually done verbally, and we all know the difficulty of trying to remember all the details when someone is explaining something to us, whether it’s directions to a local store, or how to program a new cell phone. It can be especially difficult in the context of a doctor’s office when the patient is already under stress and is being bombarded with complicated medical terminology. It is not surprising that many patients have little or no recall of the actual risks of treatment that doctors routinely say they explain to their patients.

One method that is currently being explored to improve this process is the use of computer programs to help educate patients. In a new study, researchers at the University of Melbourne and Austin Hospital in Australia tested a computer program in forty patients scheduled to undergo surgery to remove the prostate gland.

The computer program included slides with animations detailing the procedure, its potential complications and the post-surgery recovery. Each slide contained questions for the patient to answer, and he could move on to the next slide only after he gave the correct responses.

Patients were randomly assigned to one of two groups. One group received standard informed consent verbally from their doctor. The second group got to use the computer. The study found that the patients in the computer group scored much higher on test questions about the procedure – 78% correct answers versus 57% in the standard group. Why the difference?

Having patients answer questions helps turn the process into an “education and knowledge tool,” according to Dr. Nathan Lawrentschuk, one of the researchers on the study, which appears in the urology journal BJU International.  It may also allow doctors and nurses to “hone in on areas not understood, rather than assuming our patients understand what we say,” Lawrentschuk told Reuters Health in an email.

We look forward to further advances in this technology so that patients can make informed decisions about their medical treatment. Let us know if you have ever given ‘informed consent’ after being advised of the risks and alternatives by a computer.  We would appreciate you sharing with us how, if at all, that process improved your understanding of the surgery you were about to undergo.

Patient finds source of pain: forgotten surgical tool!!!

Tuesday, February 16th, 2010

You just can’t make this stuff up.  Apparently some surgeon and his team in Prague have a problem with counting surgical instruments.  Patient finds source of pain: forgotten surgical tool | News Bizarre | Chron.com – Houston Chronicle.

PRAGUE — It took five long months for a Czech woman to discover the reason for her pain: Doctors had left a foot-long medical tool inside her abdomen.

This month, doctors at a clinic in the southeastern town of Ivancice discovered their colleagues had forgotten to remove a spatula-like surgical instrument from the woman following gynecological surgery in September.

Wonder if they have tort reform in Czechoslovakia?