Utah Med Law

 This proposed legislation is wrong and wreaks of the special interest influence that is rampant here in Utah.  Here the doctors, their medical malpractice insurers and health care facilities, all very strong professional interests, are lobbying the government to further restrict the rights of the individual harmed as a result of medical malpractice perpetuated upon them by negligent physicians and hospitals.Senate bill 145 is wrong in so many ways:

1) Protecting Health Care Providers:Utah already has 27 statutes protecting health care providers from malpractice claims. Of the 96,000 civil lawsuits filed in 2008, only 229 were malpractice suits. The perception that medical malpractice is driving up health care costs is simply not true.

2) Fiscal Note:The bill currently does not have a fiscal note, but the effect of the bill will be to reduce the amounts that Medicaid will be reimbursed from medical malpractice claims. The loss in state funds will be significant. This is hardly the economic climate for enacting legislation that will take money out of state coffers and put it in the hands of insurance companies.

3) Statute of Repose:The bill requires the parent or guardian of a minor under age 10 to file a medical malpractice claim on the minor's behalf before the minor's 14th birthday (unless the parent has a conflict of interest). The statute already has a 4-year statute of repose, which has been held unconstitutional as applied to minors. (Lee v. Gaufin, 867 P.2d 572 (Utah 1993).) The provision in the current bill will also likely be found unconstitutional. The policy of the state should protect minors, not deprive them of claims before they can decide for themselves.

4) On the Cap:In 1986, Utah enacted its first caps on noneconomic damages--primarily pain and suffering and other damages that are difficult to quantify -- available in malpractice lawsuits, setting the limit at $250,000. Ten years ago, the limit for noneconomic claims was raised to $400,000 due to inflation and today it stands at $480,000. SB 145 would return the limit non-economic damages to $250,000 for cases filed after May 1and there would be no indexing for inflation. In cases where someone has had the wrong leg amputated or a child has suffered brain damage, $250,000 is inadequate to cover the individuals' pain and suffering. According to the Congressional Budget Office, a $250,000 cap on noneconomic damages would only reduce overall health-care costs by 0.5%. Indeed, after the 1986 damage cap went into effect, health-care costs and malpractice insurance premiums continued to go up. If the Legislature is serious about bringing health-care costs under control, it should focus on insurance reform, not tort reform.

5) On Sliding Scale:SB 145 also proposes a sliding scale for attorney fees, from one-third of the award for the first $100,000 down to 15% for awards over $600,000.contingent fees are a just a way for someone to get legal representation. The Legislature shouldn't intrude with a contract between an attorney and a client. There is already a limit on contingent attorney's fees in medical malpractice actions. A contingent fee is the only way most injured people can afford to pursue a claim. Medical malpractice claims are already the hardest and costliest to pursue; the cost of taking a case to trial can be well over 100,000. Once again, the only people whose pockets will benefit from the bill are the insurance companies.

6) Affidavit of Merit:The bill would require an injured person to obtain a statement from a health -care provider in the same specialty against each defendant before he can bring a claim. Before a person can obtain an affidavit of merit, he must obtain all his medical records, find someone willing to testify against a fellow doctor, and have the medical records reviewed and a statement drafted. Which leads to the next problem with the bill: If the allegations in an affidavit of merit “are found to be without reasonable cause," the plaintiff or his or her attorney is held liable for the payment of expenses and attorney fees actually incurred. The effect is once again to intimidate injured people from bringing claims.

7) One Sided Bill:Finally, the bill is one-sided. The defense does not have to provide any expert opinions at the pre-trial stage, has no attorney fee caps, or sliding-scale attorney fees. Those that will be hurt by this bill are injured patients and their access to justice.

I have blogged before about the case where a Texas nurse was criminally prosecuted for reporting a doctor she thought a threat to patient care:

• Two Texas Nurses Terminated and Charged Criminally for being Advocates of their Patients 
• Nurses Try To Protect Patient - Gets Criminally Charged
• Update on Texas Nurse Trial

In the end the jury found that the nurse, Anne Mitchell, was not guilty of the charges.  However, what has happened and will happen as a result of this egregious prosecution is that nurses will be much more reluctant to report physicians and facilities they think are a threat to patients.  I am a lawyer and a nurse.  In nursing school it was drummed into our heads that it is the nurse that looks out for the patient.  This was made abundantly clear to me when I was a nurse in a university teaching facility.  It was often that the case that patients were saved from harm by a nurse that stood up to a doctor and stopped the delivery of 'care' that would have harmed a patient.  Do not get me wrong - nurses and doctors are not infallible.  What I am saying is that the requirement to report care that is perceived as below the standard of care should not be restricted but encouraged.  I can tell one thing - doctors will never report each other!

What follows is a reprint of an article from  Texas Watch that clearly explains why even allowing this case to be brought will be harmful to the future of health care in Texas and probably across America.

IMPACT OF WEST TEXAS NURSE TRIAL WILL REVERBERATE FOR PATIENTS

Texas Has Become Wild West for Patient Safety Despite Nurse's Acquittal, Prosecution Threatens Patient Safety

West Texas nurse Anne Mitchell was acquitted today for filing a complaint with the Texas Medical Board (TMB) alleging that a doctor she worked with was endangering his patients.  The jury rightly determined she had a duty to protect her patients.  However, this prosecution will have long term consequences for the safety of patients in Texas.  Individuals with knowledge of medical wrongdoing will hesitate to speak up for fear they might be dragged into criminal court, putting Texas patients in danger.

“While today’s decision brings an end to this particular legal drama, the impact of this prosecution on patient safety in Texas is yet to be felt.  Whether Ms. Mitchell was convicted or exonerated, was largely irrelevant to the long term impact her prosecution will have on Texas patients.  The very fact that she was prosecuted will make individuals who have information that could save lives will think twice before speaking up, putting Texas patients at risk,” said Alex Winslow, executive director of Texas Watch, a statewide citizen advocacy organization active on patient safety matters.

Texas patients have had their right to hold a doctor accountable in court severely curtailed and the state Office of Patient Protection was shuttered by lawmakers before it could begin serving patients as a public ombudsman and advocate.  This has left the Texas Medical Board – a flawed state agency with a history of being too cozy with the doctors it regulates – as the only line of defense Texans have against dangerous, careless, or unqualified doctors.  The TMB relies on complaints made by members of the public to aid them in policing the medical profession.  This prosecution has put a chilling effect on individuals who want to come forward with evidence of violations of patient safety.

“Texas has become the Wild West when it comes to medicine,” said Winslow.  “Our courthouses are closed and patients have no public advocates.  Now, our only line of defense to protect patients from dangerous, careless or unqualified doctors, the Texas Medical Board, is hamstrung because of this prosecution."

"Medical malpractice and hospital infections kill an estimated 200,000 Americans each year," added Winslow.  "Curbing the epidemic of medical errors by implementing proven patient safety standards and protocols, restoring patient rights, and rooting out the few bad doctors who commit most of the malpractice should be our top priority – not dragging nurses into court for trying to protect patients."

The Texas Medical Board’s job is to license, regulate, and police the medical profession without the aid of the legal process or public patient advocates.  This agency has a history of problems and has been criticized for being too soft and too cozy with the doctors it is tasked with overseeing.  However, because the special interests succeeded in stripping patients of their rights, this small group of bureaucrats with a budget of just $11.4 million and only 43 investigators are all patients have to protect them.

The prosecution of Anne Mitchell will likely give other nurses and individuals with knowledge of medical wrongdoing pause before they speak up, severely hampering the TMB’s ability to properly regulate and oversee the 48,373 physicians practicing in our state.  As the medical board’s director said in a scathing letter to prosecutors: “The willingness of persons to come forward and file complaints with the Board is critical to the Board’s success in regulating the practice of medicine as required by Texas law.  Causing persons to fear criminal felony prosecution if they do so undermines the Board’s ability to do its job.”

I have posted repeatedly on this trial "Two Texas Nurses Terminated and Charged Criminally for being Advocates of their Patients" and "Nurses Try To Protect Patient - Gets Criminally Charged."  It looks like the jury will finally have its say.  Regardless of how this case plays out the very thought of holding an RN criminally accountable for reporting an errant physician has already chilled future reporting.  This is a perfect micro-example of the physician old-boys-network that conspires every day to keep hush medical malpractice.

Day three in the trial of a former Winkler County Memorial Hospital nurse included more revealing testimony from key figures in the case.

From Judge Rex warning the audience once again, to testimony from the Sheriff, the hospital administrator and nurses inside the hospital, day three of the trial saw heated direct and cross examinations of seven witnesses with the prosecution and defense getting to the heart of the issue.

The morning began with Winkler County Sheriff, Robert Roberts, on the stand. Roberts admitted to defense attorney, John Cook, during questioning, that nothing disparaging was in the original letter sent by Anne Mitchell to the Texas Medical Board and that it was not "non-governmental" in nature. The Sheriff did say he believes the patient file numbers in the letter were confidential, although they do not reveal any names, dates of birth or identities. Former Winkler Co. Nurse, Cendy Antley, shared her thoughts on today's testimony.

"It really concerns me that there is this good old boy system going on and that my county is suffering because of it", she said.

Next, Winkler Co. Memorial's Doctor Kenneth Winton took the stand and admitted he's been reprimanded by the Texas Medical Board before. The defense asked Winton whether the medical mistakes Dr. Arafiles made,

 would be made in larger, professional hospital. Winton responded by asking Attorney Cook, whether he was suggesting Winkler Co. Memorial is not professionally staffed, to which Cook said, "I think the evidence has made that much clear".

Ms. Antley believes the case, which has drawn national attention, could get even bigger.

"One day this could become a book, this could become a movie because their careers are ruined. That was Anne she kept coming. They didn't like it. They wanted to shut her up and I think the civil trial will bring to light a lot of that", she said.

Then, hospital administrator, Stan Wiley, faced a long line of questions in cross-examination. He explained that the only reprimand handed to Dr. Arafiles from the hospital was telling him "not to do it again". This includes improper surgeries, wounding a patient, sending a patient with appendicitis home without care, and sticking a needle into a patient's bone.

"That is not a standard of care in any E.R. That is ridiculous, we don't do that in America", said Antley.

Once the prosecution decided to rest, the defense called several former hospital employees to the stand, including Doctor Naomi Warren, who said she sent a letter of her own to the TMB regarding her concerns about patient safety at the hospital. Dr. Pham, a colleague of Dr. Arafiles, said he's had concerns about Arafiles' conduct. Winkler Co. Judge, Bonnie Leck, testified that she thinks Anne should not have been fired. Then former Winkler Co. Rural Health Clinic nurse, Debby Egger, took the stand.

"Not for harassment. It was for patient safety", she explained to CBS 7 right after her testimony. Finally, the defense called Lolly Lockhart to testify. Lockhart, a former Texas Medical Board employee (PhD, RN) stressed that the board weeds out possible false or harassing complaints from legitimate complaints: meaning Doctor Arafiles probably had nothing to worry about.

"I've never seen any retaliation like this, ever in my almost 50 years of nursing practice", said Lockhart.

Prosecuting Attorney, Scott Tidwell continued attempts to establish harassment by Anne Mitchell directed toward Doctor Arafiles. A handful of the prosecution's witnesses claim that Mitchell called Arafiles a "witch doctor" and told them quote "we need to get this SOB out of here".

Just a day ahead of a likely finale to the trial, Ms. Lockhart says she's holding her breath for nurses everywhere.

"If this case is not won by the nurse, it could virtually shut down all reporting of all professional boards. Who would want to run the risk of facing a criminal challenge just because they reported what they were concerned about".

Doctor Rolando Arafiles, County Attorney Scott Tidwell and administrator, Stan Wiley, all declined our interview requests.

The trial continues this morning and we're told the jury may have their ruling by the afternoon.

 Janabeth Fleming Taylor, R.N., R.N.C.

 Litigation Paralegal

 Attorney's Medical Services, Inc. - Corpus Christi

 P.O. Box 181268

 Corpus Christi, TX  78480-1268

 Phone: 361-949-8880

 Fax: 361-949-8886

  This e-mail address is being protected from spambots. You need JavaScript enabled to view it

 www.attorneysmedicalservices.com

There is a despicable thing going on in Winkler Texas.  An experienced long-time nurse thought she was doing the right thing when she reported a doctor in rural Texas for what she thought was unprofessional and dangerous practice.  She did it confidentially and she did it correctly by reporting to the Texas Medical Board that licenses and disciplines doctors.  Now she is on trial for "misuse of official information" and facing jail time.  I have blogged previously about this case. 

Nurse Mitchell is 52, the wife of an oil field mechanic and mother of a teenage son.  She thought she was doing the right thing.  Not only did she think she was doing the right thing but she was upholding a long-time professional obligation that came as part of her nursing heritage.  Nurses are defined in many ways and in different ways depending upon the circumstance but one unchanging definition is that nurses are advocates for their patients.

In this cynical world doctors are oftentimes as being too concerned with the almighty buck.  It is the rub of their profession that they are well paid for what they do.  It is because they are well paid we have high expectations.  We expect doctors to be above it all somehow.  Doctors are supposed to care about patients and the money comes as almost a secondary gain.  That can hardly be the expectation when your doctor solicits his patients to purchase $40 per bottle herbal remedies as appears to be the case here - at least in part. 

This case is a travesty of justice and rings of small town politics and shenanigans between a local doctor and a sheriff conspiring to retaliate against a nurse for doing the right thing.  To convict Mrs. Mitchell, the prosecution must prove that she used her position to disseminate confidential information for a “nongovernmental purpose” with intent to harm Dr. Arafiles. Mari E. Robinson, executive director of the Texas Medical Board, has warned in a blistering letter to prosecutors that the case will have “a significant chilling effect” on the reporting of malpractice.This case is also starting to get wide-spread coverage in The New York Times.

The bigger question here is do we really want to chill nurses from reporting bad doctors or bad medical facilities.  Even if Nurse Mitchell was acting vengefully do we want other nurses to forgo reporting for fear of loosing their job, retaliation and possible criminal prosecution?  I for one hope not!

The special interest groups are at it again at the Utah Legislature.  The health insurance industry, medical malpractice insurance companies, health care facilities and doctors are again putting the patient second to their own interests.  

The special interests are trying to:

1. Limit the time which a person injured by medical negligence can sue for compensation;
2. Reduce the amount of money the injured can receive when they are hurt by negligent health care;
3. Make others than themselves pay for the harm they have caused;
4. Decrease the fees paid to attorneys who represent injured people making it less likely that smaller cases will recover compensation for their injuries;
5. Changing the rules of the game to make it tougher for injured plaintiffs to have their day in court; and
6. Cut off avenues of recovery where one health care provider looks like he or she or they are working for someone else again leaving the injured plaintiff out in the cold.

I represent people injured as a result of medical negligence.  I have seen the injuries, the heartache and the pain.  These are real people I am talking about.  If not people you now know they will be people will know.  They are your friends, family or loved ones who may be injured, oftentimes in very personal and lifelong ways, by the doctor who refuses to listen or the facility that treats patients more like a processing plant than a  caring institution.

Personally I think these measures that the special interest groups are trying to pass into law are reprehensible.  Professionally, as an attorney who represents people injured by medical negligence, I think this legislation and other legislation like it is a big money grab by the special interest groups. 

Does medical malpractice happen?  You bet it does!  Should people be stopped from suing their health care providers"  Absolutely not!

Philadelphia Daily News, February 3: "According to a report released last month by the [Pennsylvania] state Department of Health, [Joaquin]Rivera, a musician and Olney High School counselor, died of a heart attack and was unattended for more than 40 minutes. The state report said hospital staff made extensive errors before, during and after Rivera's death. While Rivera sat dead in the waiting room, three vagrants stole his wristwatch."

Los Angeles Times, February 3: "The California Medical Board put a doctor with a flawed disciplinary history in charge of monitoring another troubled doctor who, while under supervision, allegedly mishandled an abortion leading to a patient's death."

New York Daily News, February 3: "The [New York] State Health Department let a Long Island hospital off the hook for abandoning a patient in the OR - even though it found the hospital broke a host of rules."

Cincinnati Enquirer, February 2: "[Ohio's] Christ Hospital has settled a federal whistleblower lawsuit accusing its acclaimed cardiac-care center of running an illegal kickback scheme."

Associated Press, February 1: "[A] Riverside [California] Superior Court jury deliberated for eight hours Friday before finding neurosurgeon Christopher Pham negligent in his treatment of Trent Hughes in November 2003. Hughes was injured while off-roading and was airlifted to the Desert Regional Medical Center where Pham was on call. Hughes, who had a fractured spine, was not seen until the next day and not operated on until two days after his injury. He was left a paraplegic."

Jersey Journal, January 31: "The doctor who caused the death of a patient at the Meadowlands Hospital in Secaucus by removing the wrong lung some 10 years ago -- and then tried to cover it up -- is practicing surgery again; this time at Hoboken University Medical Center."

Los Angeles Times, January 28: "State officials have fined 13 California hospitals for medical errors that in some cases killed or seriously injured patients, according to a report made public Wednesday."

Associated Press, January 28: "Attorneys have filed a class-action lawsuit against a Baltimore-area hospital that recently informed more than 350 patients that they may have received unnecessary heart stents."

St. Petersburg Times, January 27: "Donna Delgado just wasn't healing properly after dental surgery. There was too much bleeding, too much pain. Her head hurt. She was dizzy. She had nosebleeds and sinus infections. And with good reason, according to her lawsuit: The surgeon left an inch-long piece of steel in the wound. Lodged in Delgado's right maxillary sinus, the drill bit burr made the 35-year-old woman miserable for nearly a year as she held down a job and cared for her children, her lawyer said."

Mr. Jerome-Parks died in 2007 as the result of a computer error that directed a linear accelerator to blast his brain stem and neck with errant beams of radiation. Not once, but on three consecutive days. He was being treated for tongue cancer.

Shortly after this "error" a 32-year-old woman being treated for breast cancer absorbed 27 days of radiation overdoses.  A linear accelerator with a missing filter would burn a hole in her chest, leaving a gaping wound so painful that this mother of two young children considered suicide.

The full article reviewing these two horrible cases can be read at The New York Times - Radiation Offers New Cures, and Ways to Do Harm.

Part of the health care debate and the call for reforming tort law regarding medical malpractice is the claim that doctors practice in such a way that the cost of medicine is increased because doctors order tests and treatments to protect themselves from medical malpractice claims.  Of course the ordering of unnecessary tests and treatments increases the cost of health care overall and increases your health insurance premiums.  This practice of ordering unnecessary tests and treatment is called defensive medicine.

Imagine that you go to the mechanic complaining that your car's brakes do not seem to be work properly.  The mechanic looks at your vehicle and tells you that you need new brake pads and you expect the bake pads to be fixed and receive a bill for $300.  However, unknown to you, he also places new calipers and a new master cylinder fearing that if your brakes fail you will sue him. Your anticipated bill for $300 becomes a bill for $1000.  Welcome to the world of defensive automobile repair.  Would you accept and pay the bill?

Now doctors are supposed to be professionals.  Your doctor should not order unnecessary tests and treatment if he does not think the tests will reveal a treatable condition or rule out a threatening illness.  Treatments that yield no benefit should be foregone. An excellent example of how physicians have allowed erosion of their professional standards is the rise of Methicillin resistant Staphylococcus aureus (MRSA).  MRSA infections may have been driven in part by physicians' tendency to over-prescribe antibiotics to avoid being sued by disgruntled patients, according to a study published this past fall in the American Journal of Therapeutics. 

If we enforce "Best Practices" a patient demanding antibiotics for treatment of a condition which should not have antibiotics prescribed may not receive those antibiotics.  Costs would be reduced and the doctor would be acting professionally.  Doctors respond of course that the practice of medicine is part science and part art and that they must be allowed to practice without rigid guidelines. The pros and cons of guidelines or best practices is extensively discussed in KevinMD.com authored by Kevin Pho M.D.  My hat is off to Dr. Pho for writing about provocative issues of everyday health care and medical malpractice.  

Best practice guidelines, perhaps created by a respected panel of national physicians, should be the basis of health care treatment in the United States.  If a physician deviates from the best practice he should have a reason to do so - in both under-treating and over-treating the patient.  If the physician deviates from the accepted practice guideline or best practice then he should be liable for medical malpractice and any harm that visits his patient as a result of the deviation.  Medical malpractice lawyers could evaluate the guideline against what teh physician actually did and determine if a medical malpractice case is viable.  Guidelines and best practices exist - let's use them!  For example, look at the National Guidelines Clearinghouse or the Washington State Medical Treatment Guidelines.

It is time to enter the present doctors - let's get on board and start practicing medicine in a manner that benefits patients and not your antiquated notions of the noble pursuit of medicine.

Importantly this bill has no provisions that would limit an injured medical malpractice victim's rights concerning their claims.  This is a stunning victory for victims of medical malpractice considering the tremendous pressure brought to bear against the bill from the health insurance industry and others interested in reducing patient rights.  However, there is a provision for demonstration projects.  Demonstration projects will be funded by the federal government at the state level to allow the states to explore better ways to handle medical malpractice claims.  There is also an opt-out clause for plaintiffs in the plan and it appears they can remove themselves from an expiremntal approach at any time.  Only time will tell if Utah will decide to embark on a demonstration project.

Of course the House and Senate bills have to be reconciled before the bill is passed into law by President Obama.  The Senate bill would prevent insurance companies from dropping patients who get sick and create a new legal requirement that all Americans must own health insurance – a provision already under growing attack from conservatives.  On the other side the Senate plan falls far short of Democrats' initial vision for reform in one key regard — it lacks a government-run insurance option after several moderate Democrats said they’d block the bill if it remained. That decision has divided the Democratic base, with many liberals saying the plan isn’t true reform and would merely enrich private insurers.

Not a lot of people are aware that there exists a national data bank that keeps track of incompetent and unprofessional health care practitioners.  The data bank is known as the National practitioner's Date Bank.  According to Tulsa World in their recent article titled "20 Years of Malpractice Data Still Mostly Closed to Public" the data base has information on some 460,000 medical malpractice lawsuits whose judgments total $69.7 billion.  The article also states that the data base includes information on 23,788 patient deaths, 8,100 major permanent injuries and 3,896 cases that resulted in quadriplegics, brain damage or lifelong care.

What is startling is that the greater amount of the information held in the data bank is not available to the public.  

Patients make decisions everyday about their health care every day.  To make the best decision possible people need to have all of the available facts.  If the surgeon you are considering cutting into your abdomen is a repating offender and been found liable in repeated medical malpractice cases do you think that information would be critical in your decision process?

There are many reasons advanced by the American Medical Association about why the information needs to be kept secret.  The primary reason is that they claim the information in the data base is inaccurate.  Better some information than no information at all I say.  

There is a paternalistic attitude in medicine that permeates almost all aspects of care.  There is this attitude that somehow patients can not be trusted to make decisions about their own health.  In this day of information consumers of health care are becoming sophisticated buyers and need the information on which to base those decisions.  

Furthermore, most physicians believe that a relatively small number of thier profession account for the vast amount of medical negligence.  If that is the case then teh AMA is missing the mark in policing their own profession.