Utah Med Law

A recent study published and discussed in Medpage Today and HealthDay reveals some old and new information about doctors and how medical malpractice can occur.  The article, Fatigue, Distress Contribute to Resident's Errors, tells us that residents who report higher levels of fatigue, sleepiness and distress are at greater risk of committing medical malpractice (what the article terms (major medical errors).

Sleepiness was defined as driwsiness and lack of alertness.  Fatigue was defined as a wider sense of wariness and depletion of energy.  Now this is not new - many studies have reported that sleepiness and fatigue contribute to medical error.  I do not persoanlly think we needed study after study to showe us that sleepiness and fatigue do in fact contribute to error but there are those in the medical profession that claim that sleepiness and fatigue do not contribute to ewmedical error so I guess that formal studies were required.  It is common sense to me that when a physician is faced with many facts upon which to base a diagnosis that the correct analysis, at least in part, on the physician's attention to detail that is absent or lacking when the physician is sleep deprived. I have posted before about the long hours that doctors work and why they should be reduced.  

This most recent study piles on the evidence that doctors who are sleepy, fatigued and furthermore distressed are at higher risk for committing medical malpractice.  Distress focuses on such things as overall quality of life, depression and burnout which encompasses depersonalization, emotional depersonalization, emotional exhaustion and feelings of low accomplishment.  The results of this study suggests that fatigue and distress contribute to the risk of making medical errors and the odds ratios reportd "are of a magnitude relevant to patient safety." 

Past studies have been important to generate attention to the long hours worked by residents in training and has spurred the adoption of limitations to hours worked although theya re still disproportionate to other industries.  For example, airline pilots are restricted to flying no more than 30 hours per week and not longer than 8 hours per day.  Medical residents on the other hand are "limited" to more than 80 hours per week average over 4 weeks and no more than 24 hours per day - some restriction! 

In my career as a registered nurse I have seen hundreds of residents at teh University of Utah fall asleep while giving report, while I was reporting labvalues to them and during rounds.  Sleepiness, fatigue and distress are an epidemic in the education of physicians and are one of the reasons that medical malpractice occurs. 

Public Citizen is a national consumer advocacy organization founded in 1971 to represent consumer interests in Congress, the executive branch and the courts.  They fight for openness and democratic accountability in government, for the right of consumers to seek redress in the courts; for clean, safe and sustainable energy sources; for social and economic justice in trade policies; for strong health, safety and environmental protections; and for safe, effective and affordable prescription drugs and health care.

 Public Citizen recently released a report that proves that medical malpractice payments fell to near record low levels in 2008, but the decline almost certainly indicates that a lower percentage of injured patients received compensation, not that health safety has improved.  The Citizen goes on to report that medical malpractice is so common, and litigation over it so rare, that between three and seven Americans die from medical errors for every one who receives a payment for any malpractice claim. "Any way you measure it, medical liability accounts for less than 1 percent of the country’s health care costs, and the vast majority of victims receive no compensation whatsoever," said David Arkush, director of Public Citizen’s Congress Watch division. "These are people who died or were left with serious permanent injuries - out of work, with enormous medical costs for the rest of their lives - and they and their families are getting nothing from the doctors and hospitals responsible."

Dead by Mistake is a web site created by Hearst Newspapers and they have taken on the secrecy behind the medical malpractice epidemic in this country that is killing thousands of people every year in the United States.  The first sentence on the web site states "Experts estimate that a staggering 98,000 people die from preventable medical errors each year. More Americans die each month of preventable medical injuries than died in the terrorist attacks of Sept. 11, 2001."  Phil Bronstein, editor-at-large and the San Francisco Chronicle describes the site this way: "Dead by mistake, the comprehensive story you see on this web site, is the result of two things converging: a team of skilled and dedicated journalists from across Hearst newspapers and television stations, and a critical and neglected health care issue that dramatically affects hundreds of thousands of Americans every year."  He goes on to site the studies and experts that back up what he says.

There is little doubt that there is a medical malpractice crisis or epidemic in this country.  It is the result, at least in part, because of the secrecy that surrounds the problem.  Doctors do not want to admit they made a mistake and were negligent, hospitals do not want to do the same.  In the mean time the acts that injure, maim and kill thousands is allowed every year is allowed to fester.

Let's rip the face off of the secrecy surrounding the medical profession and put into place safety checks and balances that make a doctor part of the health care team and take away their ability to dictate what happens to patients.  let's make patients truly informed partners in the care of their own health.  Let's move into the modern times of communication and information to help each other care for each other.

Is the above a lofty goal - idealistic - perhaps naive?  I do not think so.  Imagine a hospital where a doctor takes the time to explain what they are going to do with you or a loved one  - explaining what can go wrong and say to you face-to-face that they will try their best.  Sometimes  doctors and nurses make mistakes and they should be able to say they made a mistake despite their best efforts.  They should say to the injured patient or their family "Sorry - I tried but I made a mistake - here is the name of my medical insurance company - I will cooperate fully to make sure you get compensated for the harm we caused." Let there be no secrets.

If you think you have been the victim of medical malpractice call me and I am happy to review your case at no fee.  I will tell you if I think you have a case and if not - why not.

"Sentinel events" is the term given by the medical establishment to designate medical mistakes that result in an unexpected death or a serious physical or psychological injury that otherwise should not happen.  They are meant to be tracked in order to alert the medical profession to system-wide problems in patient care.  By law, as dictated in the Utah Administrative Code (R380-200) under authority of the Utah Code (63G-3-102(5)) Utah hospitals are required to report these medical mistakes to the Utah Department of Health.  For a full detailed expose on sentinel events in Utah see this article in the Salt Lake Tribune titled "Nearly 90 Major Medical Mistakes Logged at Utah Hospitals in 2008."

Despite tougher evidence rules passed by Utah legislators and the general public perception that medical malpractice cases are frivolous and groundless, medical malpractice continues to be a serious and increasing problem that is killing people in Utah.  There were 89 of these most serious sentinel events reported in 2008 - up from 57 in 2007 - a 56% increase.  It is also widely suspected that these sentinel events are only the tip of the medical malpractice problem showing above the water-line.  Many errors that do not meet the devastating requirements of the sentinel event definition and many incidents go unreported by hospitals and other facilities because they are afraid that this information will be used against them in court to prove medical negligence.

I am an attorney who represents people injured by medical malpractice.  People injured by medical malpractice need to be compensated by the harm visited upon them by careless health care providers and careless facilities that are more interested in profit than truly correcting what is wrong with the system.  Profit, whether derived from doing more with less or not paying compensation to the people injured is still profit - make no mistake, the interest in curtailing medical malpractice claims is based on only one thing - the profit motive.

The current system of civil litigation is expensive and especially so for medical malpractice because experts are required to prove medical negligence.  Unfortunately, unless you are horrifically injured as the result of medical malpractice, the cost of litigating the case makes the case economically infeasible.  I receive calls every day from people who, in my opinion, have been malpracticed on and have sustained injury as a result.  Unfortunately, because of the high cost to litigate the case I can not bring these cases forward.  These cases make up some of the lurking ice berg of medical malpractice in Utah and nation-wide.

In my opinion, from the perspective as a medical malpractice attorney, retired registered nurse, and recent patient is that there should be no restriction on medical malpractice cases whatsoever.  The profit motive and the health care profession and facilities would be forced to pay for the true damage they inflict and forced to correct problems that cause medical malpractice.  Health care delivery would improve and my practice would be put out of business - a goal many doctors and health care facilities would welcome I am sure.  As a matter of fact I would love to be put out of business as a medical malpractice attorney - believe it or not!  Simplistic?  Perhaps, but this premise is true, accurate and based on American ideals of being held responsible for the wrongs you do and letting the free market correct inefficiencies.

Arbitration is a fact of life - or is it?  With so many stories circulating about how conumers repeatedly end up on the short end of the stick it is amazing that something is not being done.  Well maybe something is finally going to happen.  I urge you to read the below reprinted article from an association to which I belong called American Association for Justice.  It was sent to me by our president and I am proud to reprint it here.  I also urge you to follow the NPR link to the article discussing Ms. Jones' ordeal in Iraq.

NPR: Rape Victim's Case Shows Failings Of Arbitration
by Wade Goodwyn

All Things Considered, June 9, 2009 • Jamie Leigh Jones was a 20-year-old Halliburton employee in 2005 when she was sent to work in Iraq. She'd been there just four days when she joined a small group of Halliburton firefighters outside her barracks at the end of the day. One of them gave her a drink. She took two sips, and Jones says that was the last thing she remembered.

"I woke up inside the barracks," she says. "It was actually inside my barrack room, and that's when I noticed I had been severely beaten and was actually naked."

Jones had been raped, repeatedly. By how many men, she's not sure. But she says one man was still naked and asleep in the room when she came to.

"Apparently, he knew he was beyond the reach of any jurisdiction, so he was still brazen enough to be there," she says.

Jones was escorted by security to the company clinic for a rape examination. When the rape kit examination was done, the evidence was turned over to Halliburton security.

The young woman's breasts were so badly mauled that she's permanently disfigured. It has been four years since the attack, and despite the physical and circumstantial evidence, the Department of Justice has declined to investigate.

Seeking Justice Through a Suit

Justice Department officials refused to explain or comment in any way to NPR about the case. Jamie Leigh Jones has decided that if she can't have her day in criminal court, she'll sue Halliburton and its former subsidiary, KBR, in civil court.

"I want corporate accountability," she says. "I was so brutalized that I'm going to have to remember this the rest of my life. And Halliburton was so uncompassionate that they even let the men work there, still, after I went home."

Heather Browne, director of communications at KBR, says that while the company can't speak to the facts since the case is ongoing, it denies any liability in the attack. And she argues that any dispute with Jamie Leigh Jones, even one involving charges of rape, must go to arbitration.

So Jones is now going to court seeking the right to sue. She has become one of the nation's leading arbitration reform advocates.

An Arbitration Culture

If Jones' case is remarkable, the fact that arbitration is involved is not. In the last 20 years it has become a dominant feature in the legal relationship between American corporations, their employees and their customers.

If you use credit cards, have a cell phone contract, bought a house from a builder or put your mother or father in a nursing home, you have likely signed away your right to be heard in court if there's a problem. It's called pre-dispute mandatory binding arbitration.

Public Citizen's David Arkush, one of the country's leading researchers on arbitration, says many consumers have no clue as to the rights they're signing away.

"In the fine print of those contracts is a provision that says that they can never sue the company if they have a dispute," Arkush says." Instead they have to go a private, secret tribunal chosen by the company."

A Losing Record For Consumers

Arbitration is a closed, private process, often with little or no written record. But one state, California, changed its law to require that arbitration results be publicly recorded. Public Citizen staff reviewed 34,000 California cases and Arkush says the results speak volumes.

"Overall, consumers lost 94 percent of the time," he says.

The arbitration industry disputes that number. But it does not disagree that corporations win more of the time. The disagreement is about whether this is evidence of bias or a reflection that corporations bring stronger cases.

Mike Kelly, spokesperson for the National Arbitration Forum — one of the country's largest arbitration firms — says it's the latter.

"You're not going to bring a case that you're going to lose," he says. "Frankly, you're not going to bring a case that you think you have a chance to lose."

Kelly says the results would still be lopsided if these same cases went to court instead of arbitration. And Kelly says his arbitrators, which the NAF calls neutrals, are men and women without bias.

"What you're really doing is taking a shot at all those individual neutrals who are handling these cases," he says.

Rulings And Consequences

Elizabeth Bartholet was one of the NAF's arbitrators for a time. She's a law professor at Harvard and for two decades has moonlighted as a part-time arbitrator. The first 19 cases she arbitrated for the National Arbitration Forum were all credit card cases. She ruled each time for the credit card company.

Then, on the 20th case, she ruled for the consumer. After reviewing the evidence, Bartholet awarded the credit card holder $48,000. And with that, her career as a NAF arbitrator was effectively over. She says was stricken from her remaining cases.

"I called the NAF and spoke to the case manager, and she agreed the reason I was being removed was because I had ruled in this one case against the credit card company," Bartholet says.

The NAF says nothing improper was done, that companies and consumers alike are allowed to strike an arbitrator from a case. Bartholet counters that arbitrators know full well that if they rule against corporations too often, their income will dry up.

"NAF arbitrators are given a form where every line is filled out in terms of the amount it is suggested that you rule," she says. "And so all you need to do is fill in to the right [of that line] the exact same number. And then at the bottom, you total it up and they give the attorneys' fees number. And there's no indication that you should even write a one-sentence opinion."

Bartholet says nowadays, she will arbitrate only when both parties are roughly equal in power and enter into arbitration voluntarily.

Push For Reform

The Arbitration Fairness Act now before Congress would ban clauses that make arbitration mandatory for the resolution of disputes — restoring to consumers and employees the choice of taking their case to court.

Lisa Rickard, president of the U.S. Chamber of Commerce's Institute for Legal Reform, says that making arbitration voluntary will lead to its extinction.

When you go to a doctor and he tells you that you need an operation how do you go about checking out the doctor.  Until recently checking out your doctor was difficult if not impossible.  There has been a growing public groundswell however make doctors more forthcoming.  I recently wrote about transparency in reporting medical malpractice cases and applaud the recent decisions in Colorado.

As of May 31, 2009 all Colorado physicians must be in compliance with a recent state law, the Michael Skolnik Medical Transparency Act, that requires them to publicly report certain business dealings, malpractice actions, disciplinary matters and crimes in order to practice medicine here. The information is compiled in physician profiles that are listed in a searchable database maintained by the Colorado Department of Regulatory Agencies.

The whole Michael Skolnik story is reviewed in an article byBrian Newsome in the Gazette out of Colorado Springs telling of a doctor who had been repeatedly sued and repeatedly moved his practice from state to state to continue practicing.

Skolnik said the law is intended to empower consumers and keep physicians on their toes, not to punish doctors. She say the vast majority of physicians are "excellent."

Her concern is the small percentage who are, in her words, "doing harm repeatedly."

The New York Times reported that small gifts from drug manufacturers can positively influence doctors.  The suggestion of course is that the making of small gifts can influence how doctors go about practicing medicine and in particular their prescription patterns.

A study titled  "Effect of Exposure to Small Pharmaceutical Promotional Items on Treatment Preferences" was recently published in the Archives of Internal Medicine and the conclusion in the abstract states:

^{Subtle exposure to small pharmaceutical promotional items influences implicit attitudes toward marketed products among medical students. We observed a reversal of this effect in the setting of restrictive policies and more negative school-level attitudes toward marketing.}

So the question becomes whether this is good or bad practice - ethical or unethical.  Should drug companies be allowed to attempt to influence the prescription practices at all?  Is it good business or bad?  These are tough questions.

First and foremost, I think we all have to realize that medicine is a business.  Physicians and health care facilities want to make the consumer of health care believe that health care is about that - caring.  What we all need to know however is that health care is a business - first and foremost.  I was a nurse for a long time and I cared for people - people who suffered horrific injury as a result of being burned.  Yes - I cared - really cared for those people.  However, I also wanted to get paid a fair wage to render that care.  Every person and entity involved in health care is in it to make money.  Is that a bad thing - absolutely not.  Is the interest in making money directly paradoxical to caring - absolutely not.  What we need to understand is that the caring professions (doctors and nurses etc.) and the entities that have been developed to facilitate care (hospitals and long term care facilities for example) are there to make money. Drug companies are no different in that they need and want to make money.  Money after all is what makes the world go around.  It is the model of the American Health Care Industry.

Drug companies make money based on the drugs they sell.  They complain that millions of dollars are spent on research and development for drugs that will never be commercially viable and when a drug is developed that is commercially viable they need to reap the benefit (profit) to fill their coffers for more research and development.  The never-ending circle of profit - research and development - selling all go hand in hand.  The drug companies are competitive with each other at least to a point and they need to market their product just like anyone else.  Should they be restricted to not giving gifts that influence the prescription practices of doctors?  This question infers that doctors, because they have been given repeated small gifts, may prescribe to you one drug versus another because they feel soem empathy toward the drug company from which they received gifts.  That has far-reaching consequences and infers that the drug prescribed may not be as good for the patient versus some other drug.  This study does not say that.

Often we hear of educational institutions being awarded money grants by private companies to R&D their drugs - does that have an undue influence?  In my opinion the answer is obviously yes.  Should this private company funding be allowed - what are the alternatives - would the government need to spend more in R&D - tough questions for sure.  I do not have the answers - all I know is that when a doctor sits in front of me with a clip board that has drug X named on it and he proceeds to prescribe drug X to me I wonder - is that the right drug for me or is the doctor prescribing it because the drug manufacturer of drug X bought my doctor lunch.

This is a challenging area of ethics and one that the medical community has been unable to cope with internally.  I would think that the American Medical Association or other like bodies, either nationally or state leverl, would address this issue.  Maybe the money is too good.

The Associated Press has written an excellent article on medical malpractice reform that is sure to become a hot topic for the Obama administration if they are going to be successful in fixing what is wrong with health care in the United States.

There appears to be a disconnect between trial lawyers who represent persons who have been injured as a result of a doctor's negligence and doctors themselves.  As the system exists now the mechanism is straight forward.  A doctor practices negligently and the patient injured sues.  If negligence is found and the doctor held liable for the injury then the doctor's insurance company pays the injured party.  The amount paid is determined by a jury of peers.  So far so good.  The injured parson is compensated and the doctor, who had no intent to practice negligently, is protected by insurance.  The doctor learns from his mistake and life moves on.  The problem here is that because of teh veil of secrecy surrounding medical malpractice cases the healing professions rarely become aware of the negligence and the negligent act is perpetuated by other doctors across the nation yielding more and more medical malpractice cases. If the goal is to improve health care then the negligent acts of doctors (perhaps without naming hte doctors responsible) should be made available and not kept a secret.

When urologists were told by John McDonough, a top health adviser to Sen. Edward Kennedy, D-Mass., that doctors must improve their quality of care he was greeted with a chorus of "boos."  Sentiments run deep and the lines appear to be drawn between trial lawyers and doctors.

There are other issues surrounding medical malpractice reform like defensive medicine where "unnecessary" tests are ordered just to protect the doctor from later lawsuits that claim the omitted test should have been ordered.  This issue persists despite any research to show that such "defensive medicine" isreally practiced. 

Doctors also claim that their insurance premiums are always increasing because they blindly look at their bills and believe the propaganda of their insurance carriers that medical malpractice claims are rising.  Again, there is little research to prove that medical malpractice payouts are increasing to justify the increased premiums that doctors pay for thier insurance coverage.  What is not secret and easily available and clear for all to see is that medical malpractice insurance carriers continue to make large profits despite the "medical malpractice crisis" that appears to only exist in their collective minds.

One of the best options, at least in my opinion, may be the creation of "health courts" to help streamline litigation by quickly and expeditiously moving cases through a litigation process that is becoming more and more expensive and specialized.

The New York Times reported that a hospital network in Albany agreed to pay $1.25 million to settle a class action antitrust claim that hospitals an the area had illegally conspired to artificially hold nursing wages at low levels.  The hospitals maintain that they are admitting no guilt and are merely settling the claim to stop "wasting" their meager resources on litigation. 

Do you think that these conspiracy cases are limited to the big cities in the East?   Not so!  In 1994 in United States v. Utah Society for Healthcare Human Resources Admin., et al. the Federal Trade Commission alleged a violation of § 1 of the Sherman Act designed to stop defendants -- Utah Society for Healthcare Human Resources Administration ("USHHRA"), a professional association of hospital human resource directors in Utah; and nine named hospitals in the Salt Lake County, Utah, area, all of whose human resource directors belong to USHHRA -- from continuing their conspiracy to exchange non-public prospective and current information about overall budgets, nursing budgets, and entry level wages for registered nurses.  In other words the human resource directors of he Salt Lake County hospitals were charged with conspiring to keep entry wages of nurses low.  There are many like cases across the nation.

Free trade and economic Darwinism is good for their proponents but this is free enterprise run amok.  When wages for any given occupation are held artificially low less people are attracted to that occupation.  Not rocket science.  When nursing wages are kept artificially low less people consider nursing as an occupation.  The result is predictible.  There is a shortage of nursing personnel to care for people.  The cause for the shortage is blamed on everything else except the real cause - poor wages.  Who is to blame?  Not the hospitals and their unscrupulous administrators because they are simply doing what they are able to do - even it means braking the law.  Who is to blame?  Nurses - that's who!

Nurses are to blame becasue they do not have the gumsion to form a strong group that will be effective in negotiating with these manipulative hospital executives.  The reasons are many but all come up short in my opinion.  If nurses have respect for their profession and really care about the care that patients receive than they should unionize in Utah.  You hear stories from patinets complaining of never seeing their nursesand the poor care they receive in hospitals.  Are the nurses to blame?  Maybe - based on the above arguments - but the poor care is a direct reflection of the number of patients that nurses are forced to care for becasue hospitals finance their operations (and exorbitant executive pay) on the backs of the very patients they pay lipservice to about their genuine concern.  The hospitals do this by conspiring to keep nursing wages artificcally low thereby restricting entry into the occupation and thereby creating a nursing shortage.

The solution is to allow or maybe even mandate by law that nurses create and join a union to better negotiate with greedy hospitals and the conspiraing executives.  The union would have the interests of its nursing constituency at heart but the pay-off for the public would be adequate numbers of nurses caring for their loved ones when in the hospital. 

Is it any wonder why doctors, medical facilities, health insurers and drug makers are loosing the trust and respect of the public when you hear of cases of fraud and under-the-table payments?  Just this past week alone:

Eli Lilly embarked on a calculated plan to push their drug Zyprexa to doctors to prescribe the drug to their patients with dimentia to help them sleep.  Lilly's "salespeople told care providers that 5 milligrams of Zyprexa at 5 p.m. - '5 at 5' - would help dimentia patients sleep.  The problem is that the drup Zyprexa has never been approved by regulators for the for the treatment of dimentia.  This was reported Bloomberg News and the Legal Intelligencer.

UnitedHealth Group Inc., the biggest U.S. health insurer, will pay $400 million to settle allegations it has manipulated payments to doctors and patients over the last 15 years.The suit was brought against UnitedHealth by the American Medical Association and their president Nancy Nielsen used terms like "rampant cheating" and "rigged database" to describe the acts that UnitedHealth engaged in. The New York Times also ran the story.

Aetna Inc., the third largest U.S. health insurer is going to pay $20 million to settle reimbursement rates paid to out-of-network physicians.  This investigation was handled by the New York Attorney General.

Perhaps one of the most egregious acts was the discovery that Medtronic paid a prominent University of Wisconsin spine surgeon and researcher $19 million over five years.  Medtronic happens to be one of the country's largest makers of spinal devices according to Senator Grassley who is investigating conflict of interest allegations. In some lawsuits, Medtronic has been accused by former employees and the government of inducing surgeons to use its spine products with payments for sham consulting agreements and lavish travel. In 2006, Medtronic agreed to pay $40 million to the government to settle civil allegations that it paid kickbacks to doctors, including sham consulting and sham royalty agreements as well as lavish trips. Those allegations were initially made in two lawsuits brought by former Medtronic employees, including a former legal counsel. As part of the settlement, the employee lawsuits were dismissed. While agreeing to the settlement, Medtronic denied any wrongdoing.

What is going on?  I'll tell you what is going on - greed!  Even when a corporation like Medtronics has to pay millions in settlements they persist in the same practice - why - because the  risk and cost of discovery is probably miniscule to the profits they reap as a result of the persistent practices they engage in.