ThePopTort

Hot Pop Topics

If you’ve ever watched The View, you know that every show starts off with Hot Topics,  where the hosts (whoever's left of them) discuss the latest hot news items. No doubt today’s show will address Margaret Thatcher and while they’re on the topic of “death”, probably last night’s Mad Men. 

If there’s any time left on the show, we’d like to suggest a couple other very hot news items (at least in our world) that definitely need discussing! 

The U.S. House Intelligence Committee apparently had a committee staff call briefing with Congress’ paymasters, the U.S. Chamber of Commerce, telling the Chamber that it’s set to pass the highly-controversial cybersecurity bill that not only violates the privacy rights of everyday people (the ACLU calls it a “privacy disaster), it also immunizes big corporations that engage in this behavior. Writes Bloomberg,

Many of the House bill’s corporate supporters are among the top 20 contributors to [Committee Chair Mike] Rogers’ 2011-2012 campaign committee, according to the Center for Responsive Politics, a Washington-based research group. They include AT&T, Verizon Communications Inc., Boeing and Lockheed Martin Corp. employees and their families.

[Ranking Democrat C.A. “Dutch”] Ruppersberger’s top contributors in the same period also include Boeing and Lockheed employees and their families, according to the center.

The American Civil Liberties Union and other advocacy groups have stoked online opposition to the House bill, saying it would allow Americans’ personal data to be shared with the National Security Agency and the military, and let the government use that data for undefined “national security” purposes.

Meanwhile, there’s a medical malpractice case out of Nevada that medical malpractice and insurance expert, Professor Tom Baker at University of Pennsylvania Law School called a possible “sea change” for managed care companies. Specially,

A Nevada jury on Thursday found Nevada affiliates of UnitedHealth Group Inc responsible for infecting two patients with hepatitis C, a disease that attacks the liver. The patients claimed they became infected because their gastroenterologist used allegedly unsafe injection practices for an endoscopy. The third plaintiff was the spouse of one of the patients.

Typically in medical malpractice cases, plaintiffs can only recover damages from the doctor and the hospital. But in the Nevada lawsuit, the plaintiffs argued that UnitedHealth Group should be held responsible because the accused gastroenterologist was part of the company's network and that the insurer should have known about allegedly unsafe practices.

If the plaintiffs' theory of liability is upheld on appeal and adopted elsewhere, it would represent a major change for the insurance companies, and likely increase the scrutiny insurers place on doctors within their network, experts said.

Although the case rests on Nevada state tort law, other state courts could follow Nevada's lead, forcing insurers to make significant changes to their oversight of member doctors, and either raise premiums or further restrict their networks of doctors, said several professors who specialize in medical malpractice law.

Dr. Arnold Rosen must be all ears hearing this news!  (Sorry, bad Mad Men joke.)

The Big Tort Law/Physician Location Disconnect

Place this one under the category, “Thank you Captain Obvious.”

Over the weekend, in Ezra Klein’s Washington Post blog, health policy reporter Sarah Kliff wrote an interesting piece about an impending doctor shortage facing the U.S., "where we’ll have too few physicians to treat a population that’s getting increasingly older and sicker” according to projections from the Association of American Medical Colleges.  There are many factors at work here including much geographical variation, but state “tort laws” are decidedly irrelevant in determining where a physician decides to practice. 

For example, she writes,

Northeastern states have the highest concentration of doctors, while Southern states, as well as those in the West, have some of the lowest. It’s a pretty striking disparity.…

Texas, for example, is home to two of the country’s largest cities, Dallas and Houston. It graduated more than 1,200 medical students last year, second only to New York. About 80 percent of doctors who train in Texas stay in Texas. Yet it has one of the lowest levels of doctors seen in the country.

Compare that to Maine, a state without a medical school that somehow manages to have one of the highest levels of physicians.…

What drives doctors out of one state and into another is actually pretty difficult to figure out. The map of physicians doesn’t line up nicely with one showing a state’s average income or its population size. Rates of uninsurance or aggressive tort reform laws don’t really predict much, either. States with fewer doctors tend to be more rural, but there are certainly exceptions: Nevada has an exceptionally low rate of doctors despite 91 percent of its population living in urban areas, according to census data.

Hhmm, need we mention the fact that Northeast states generally do not “cap” damages for injured patients.  Southern, Western states? Lot of caps.  That would include Texas and Nevada.

But the most striking thing about this “finding” may be that it’s even considered news.  This isn’t news.

Back in 2003, the GAO released a study ostensibly to find support for the AMA’s assertions that a widespread health care access “crisis” existed in this country caused by doctors’ medical malpractice insurance problems.  They couldn't find it.  Instead, the GAO found that the AMA and doctors groups had based their claims on information GAO determined to be “inaccurate” and “not substantiated,” and that to the extent there are a few access problems, many other explanations could be established “unrelated to malpractice,” that problems “did not widely affect access to health care,” and/or “involved relatively few physicians.”  The health care access problems that GAO could confirm were isolated and the result of numerous factors having nothing at all to do with the legal system.  Specifically, GAO found that these pockets of problems “were limited to scattered, often rural, locations and in most cases providers identified long-standing factors in addition to malpractice pressures that affected the availability of services.”

Such studies have been around, well, forever.  One academic study found that, “despite anecdotal reports that favorable state tort environments with strict … tort and insurance reforms attract and retain physicians, no evidence suggests that states with strong … reforms have done so.”  (Abstract is here.)  A 1995 study of the impact of Indiana’s medical malpractice “tort reforms,” which were enacted with the promise that the number of physicians would increase, found that “data indicate that Indiana’s population continues to have considerably lower per capita access to physicians than the national average.” 

In fact, PopTort fans might even recall our post a couple years ago, when we reported asking David Goodman, M.D., M.S., Professor of Pediatrics and Health Policy at Dartmouth Medical School, about his views on the subject. Goodman was co-investigator of the highly respected Dartmouth Atlas, which analyzes and ranks health care spending and has been the basis of a lot of discussion about why certain areas of the country are so costly.  His email to us said: “We haven’t explicitly analyzed this, but I agree with the impression that physician supply in general bears no relationship to state tort reform, or lack thereof.” 

I guess another reminder can’t hurt.

Medical Malpractice: We Told You So, Part Deux

If you happen to be a fan of both ThePopTort and country music, today we begin with apologies because by now, you probably can’t get that Randy Travis/Carrie Underwood song “I Told You So” out of your head  (especially after watching their American Idol duet).  But we just had to take one more opportunity to rub more salt into the massive wound known as the medical and insurance lobbies.

This time, we address their political tactic of trying to redirect attention away from the enormous cost of negligence in hospitals, by focusing negative attention instead on the injured patients who sue because of them.  For example, they often cite to “studies” trying to debunk the Institute of Medicine’s conservative finding that up to 98,000 die in hospitals due to avoidable medical errors, calling that “exaggerated.” I suppose that “exaggeration” would also extend to the costs of these errors, which IAM put at least at $17 to $29 billion a year – in 1999.  

Well today, insurance actuaries and insurance industry consulting firm, Milliman, came out with some stunning numbers themselves – especially considering the source.  Even they now say “measurable medical errors” cost the economy $19.5 billion in 2008, which they call “staggering.”  According to their news release: 

Medical errors are a significant source of lost healthcare funds every year. For example, the study found that $1.1 billion was from lost productivity due to related short-term disability claims, and $1.4 billion was lost from increased death rates among individuals who experienced medical errors.

"We used a conservative methodology and still found 1.5 million measurable medical errors occurred in 2008," says Jonathan Shreve, FSA, MAAA, consulting actuary for Milliman and co-author of the report. "This number includes only the errors that we could identify through claims data, so the total economic impact of medical errors is in fact greater than what we have reported."

They say more than half the total error costs were the result of “five common errors:  Pressure ulcers; Postoperative infections; Mechanical complications of devices, implants, or grafts; Postlaminectomy syndrome; Hemorrhages complicating a procedure."

Speaking, by the way, of infections, check out this week’s Las Vegan Sun article about how badly hospitals are failing to prevent infections.  (See their editorial today.) They paper reported:

The Sun has spent two years investigating hospital safety in Las Vegas, including analysis of hospital billing records on file with the state.

Among the findings: In 2008 and 2009, patients became infected with lethal, drug-resistant "superbugs" in area hospitals 2,010 times.

Two hundred thirty-nine died — although it's impossible to tell from hospital billing records how or whether the infections factored in the patients' deaths.

Moreover, they report that “health care-acquired infections” alone cost the country $30 billion annually and kill 100,000 people, putting it among the leading causes of death in the United States.  That’s a far greater cost than the actuaries found. 

And if that doesn’t get your attention, remember that “Much of the cost of hospital-acquired infections is borne by taxpayers and the insured, through government insurance programs and private insurers."  (Can't we finally all agree that it's time for Nevada to get rid of its anti-accountability, anti-safety "cap" on compensation for injured patients?)

OK all together now: Told You So!

 

Whistles, Pipes and Modern Day Robber Barons

Bob Herbert has a New York Times column today about the sorry state of this country’s infrastructure, a problem that hopefully the President is more willing to tackle especially because of the jobs it could generate.  Herbert tells an interesting story about the pipes under Philadelphia, when (according to then Mayor Ed Rendell), “58 of our water mains broke, causing all sorts of havoc … The pipes were old. Some were ancient ... and they were laid shallow, without much protection.  So with any radical changes in temperature, they were susceptible to breaking.  We had a real emergency on our hands.”

In fact, some of those pipes were laid back in the 19^th century - robber barons days.  So it's kind of incredible that they lasted so long.  I guess even the greedy industrialists back in the day didn’t have the gall to do what apparently the company JM Eagle has been doing to cites and water districts since 1996.  According to the company’s former employee, John Hendrix, the company has been:

falsifying test results about the quality of its products. Pipes that should last 50 years are in some cases rupturing in their very first year, according to Mr. Hendrix and some state documents. This can lead to explosions, leaks, fires and other dangers.

[Hendrix said] JM Eagle had been selling substandard plastic pipe since 1996, and that it had subsequently manipulated test results. “It became apparent to me that this was being done intentionally,” he said in an interview [with the New York Times].

Nevada, Virginia, Delaware, Tennessee and more than 40 water authorities in California have brought suit, saying this could cost each of them many millions of dollars to fix.  And that’s just the beginning. The company claims “about 60 percent of the nation’s market for new water pipes.”

And for all of you asbestos trivia fans out there, turns out that JM Eagle is a successor to Johns Manville, which went bankrupt in the early 1980s after poisoning countless people with asbestos for decades knowing the medical dangers, covering this up for 45 years. 

Let’s hope this whole mess at least creates some jobs.

Nevada Hospital ER Shows “Pattern” of Refusing Care

We’ve talked any number of times about the terrible hazards many patients have faced when seeking care from a hospital’s emergency room.  And that makes sense, given that the ER is the location where most medical malpractice occurs.  It’s bad enough that in many states, like Nevada, patients killed or injured by negligence in ER’s have limited rights.   But some have actually targeted ER patients for additional restrictions, laws that would affect no other hospital patient even as the ever-growing litany of ER nightmares continue.

Speaking of Nevada, consider the case of Roshunda Abney (see video below) who was refused treatment last November at the University Medical Center (UMC) in Las Vegas, NV.  Abney, who was unaware of the fact that she was pregnant and in labor, showed up at the hospital’s ER in excruciating pain.  Nevertheless, Abney was made to wait more than five hours in UMC’s ER before eventually seeking help from nearby Valley Hospital Medical Center, where her baby was born—and shortly thereafter, died.  Abney currently has a lawsuit pending against UMC—but the story doesn’t end there.

According to state records obtained by the Las Vegas Sun, Abney’s case was “just the latest in a handful of [similar] cases” at UMC over the past five years.  Patients who received similar treatment (or lack thereof) included a woman bleeding profusely with seven fractures in her face, a woman in labor who was told the hospital had no beds for her as she watched another pregnant woman stroll right in (“Some people have priorities,” the hospital explained, according to the state report), and a man with a “fever, elevated white blood cell count, and possible abscess” on his spine.

You get the idea.  Hospital ERs continue to be incredibly dangerous places—and any suggestion that ER personnel should somehow be immunized from liability for such blatant mishaps makes about as much sense as, well…telling a bleeding woman with seven facial fractures to wait her turn “like everyone else.”

Las Vegas Hepatitis Case Takes a Criminal Turn—Possibly at Victims’ Expense

That terrible story about the Las Vegas clinic that reused dirty syringes and vials, potentially exposing some 50,000 Nevadans to Hepatitis C, may be about to take a very unfortunate turn from a civil justice perspective.  Ironically, that’s because criminal charges may soon be filed against the majority owner of the clinic, Dr. Dipak Desai, as well as several other clinic workers.

As the Center for Justice & Democracy has pointed out, the criminal justice system can leave something to be desired when it comes to obtaining actual help for crime victims, because it was designed simply to punish wrongdoers—not to compensate the injured.

Already, a number of the 5,000 or so former patients of the clinic with civil cases pending have been subject to terrible delays, as the specter of potential criminal charges has given key witnesses the ability to avoid telling what they know by simply pleading the Fifth.

But even worse, if the criminal charges are filed and Dr. Desai and his cronies are found guilty, their malpractice insurer could void their policies altogether—leaving the injured victims stuck, with little chance for meaningful compensation.

Who knew a criminal prosecution could end up hurting crime victims?

Las Vegas, Hepatitis, Michael Jackson and Propofol...What’s Up With That?

Remember that Las Vegas clinic that reused of dirty syringes and vials, potentially exposing some 50,000 Nevadans to Hepatitis C?  You know, the one whose patients might never have recourse because of Nevada’s anti-patient “tort reform” law?  Well today we have a few updates on that grizzly story.

First, ever hear of Propofol?  Has Michael Jackson suddenly entered your thoughts?  Turns out that the drug being administered in those dirty syringes was Propofol, the same drug that apparently killed Michael Jackson!  (Honestly, what is it with Propofol and Las Vegas doctors???)

While you’re pondering that…the real thrust of today’s update is that attorneys from three separate firms, representing three different patients who were exposed to the incurable, often deadly liver ailment, have been comparing their client’s medical records and noticing some incredibly disturbing trends.

According to the lawyers and their court papers, the same physicians, nurses and nursing assistants participated in the colonoscopies of the three patients all within 90 minutes on March 15, 2007. “Patient A” underwent a colonoscopy at about 9:05 a.m., “Patient B” had one at 9:35 a.m. and “Patient C” went through the procedure at 10:35 a.m.

The lawyers said medical records show all three cases involve the same genotype, or strain, of the hepatitis C virus, as well as the same anesthetic, Propofol. The lawyers contend that the sloppy handling of vials and syringes containing Propofol led to the infections.

The discovery is expected to give the plaintiffs’ lawyers ammunition to attack the defense’s claim that there was no widespread abuse of procedures at the clinic.

“This is pretty compelling proof,” attorney Nia Killebrew said. “It goes toward establishing that it wasn’t just an isolated incident or two. This was indeed a pervasive practice at this clinic.”

Another case of the civil justice system on the job!

Michael Jackson’s Doctor and So-Called “Tort Reform”

Were you wondering when the Michael Jackson story would finally cross over to ThePopTort?!  Well, it finally has, thanks to TMZ, the apparent news source of record on all things MJ!

Today, TMZ  published an exclusive which cites a Nevada coroner’s report claiming that in 2007, Jackson’s now famous doctor, cardiologist Conrad Murray (who had offices in Texas and Nevada) mistakenly punctured the heart of a 67-year-old Las Vegas man during a procedure—and that the medical misstep was a cause in the man’s death.  But because the case (like all medical malpractice cases) would have been so extremely expensive to pursue, the family never filed suit.  Consequently, we’ll never know if this case may have been enough to raise red flags for future patients like Michael Jackson.

So what else does this sad tale tell us?  Well first, both states in which Dr. Murray practiced (here, here) have enacted horrible so-called “tort reform” laws that establish severe legal roadblocks in the paths of injured patients and their families (as in the example above), while doing nothing to bring down insurance rates for doctors.  In fact, the Texas laws, admitted one cardiologist to the New Yorker magazine, reduced injured patients' abilities to file malpractice suits “[p]ractically to zero.”  Moreover, medical boards do almost nothing to weed out the small number of doctors who commit the most malpractice both nationally and in states like Nevada, and Texas. 

Here is the other thing it tells us.  Contrary to popular myth, it is very difficult to bring a malpractice case.  In fact, even though 98,000 people die in hospitals each year, only about 1 in 8 ever file a claims for compensation.  That means incompetent doctors and unsafe hospitals are rarely held accountable for medical malpractice. 

Hopefully, people will start acquiring a greater understanding of how dangerous it is to restrict the legal rights of patients to bring malpractice actions.  And most importantly, they'll see that we’ll all be better off if more emphasis is placed on patient safety—not limiting patients’ rights.

More Evidence that “Tort Reform” and Patient Safety Don’t Mix

You may have already heard about this next medical malpractice horror story, but it’s oddly similar to a Nevada story we’ve been telling you about (here, here, here) and there’s an interesting article about its civil justice implications in today’s Denver Post,  so we thought we’d add our two cents.

The story revolves around a Colorado heroin addict, Hepatitis C carrier, and (now former) surgery technician named Kristen Diane Parker.  Long story short, Parker was in the habit of filling her used needles with saline solution, then taking them to work and swapping them out for syringes full of Fentanyl, “a narcotic 80 to 100 times stronger than morphine.”

This went on for months, and then she was hired by yet another surgical center.  Meanwhile, all told, some 5700 patients were exposed to Hepatitis C—and so far, 10 have tested positive for the incurable, often deadly liver ailment.

The real question is, how in the world, and why, did either of these hospital fail to detect that dirty needles were being used on patients?  Here’s a thought.  Colorado has some of the most severe restrictions on patients’ rights in the country.  In 1988, Colorado capped medical malpractice compensation at $250,000, raising it only slightly to $300,000 in 2003.  Like Nevada in the wake of their Hep C outbreak, recent attempts in Colorado to have the cap raised have fallen flat, despite the fact that the cap’s value is now about half of what it originally was in real dollars.

Of course, all of this is to say, as we often do, that the way to reduce malpractice, injuries, claims and lawsuits is to reduce malpractice, not make hospitals less accountable.

Nevada Medical Board Elects Not to Hold Malpractice/Hepatitis Doc Accountable

We’ve mentioned before that a Nevada clinic recently “reused syringes and vials,” ultimately exposing some 50,000 of the state’s residents to hepatitis C (here, here, here).

We’ve also mentioned an awful tendency on the part of state medical boards to look the other way when it comes to holding bad doctors accountable, which is why Public Citizen’s Health Research Group publishes an annual report showing which states are the most lenient in dealing with bad doctors.

Well unfortunately, this next item represents an awful merger of these two stories.  In a sickening turn of events, it is being reported today that Dr. Eladio Carrera, whose license was originally suspended for 13 months for his role in the Nevada syringe scandal, has now had his punishment reduced to 24 months of probation, a public reprimand, and a $15,000 fine.  In the meantime, announced Nevada’s Board of Medical Examiners (in a unanimous decision!), Dr. Carrera is free to resume treating patients in the state.

"The board isn't taking this seriously at all," said Gwendolyn Brown, 61, who became infected with hepatitis C as on of Carrera's patients. "You can't believe what you have to go through when you get hepatitis. Don't they realize how sick people get?"

"The only way to fix the medical board is to shut it down and start over with brand-new people," said Assemblywoman Sheila Leslie, (D-Reno), whose committee investigated the Las Vegas outbreak. "There's a culture within the medical board that protects doctors and not the public. They should resign for the good of Nevada."

Meanwhile, injured Nevada patients are experiencing a double whammy because they are  also suffering with a draconican “cap” on compensation should they pursue a medical malpractice case.  The legislature still has not passed a bill to ease the cap in cases of “gross negligence,” as with the Hep C scandal. 

And if President Obama’s has his way, a third whammy may be on the way, given his recent flirtations with “bargaining” away the rights of injured patients to gain conservative support for his national health plan.