Can you be held liable for resuscitating a patient who has a DNR order?

A New Mexico woman, suffering from Dercum’s disease (adiposis dolorosa) which causes painful fatty tumors, is suing a Santa Fe hospital and an emergency physician claiming she was the victim of two negligent acts in 2016.

One, according to the Albuquerque Journal, she told hospital personnel she was allergic to Dilaudid but went into cardiac arrest after receiving an injection of the drug.

Two, despite the presence of a lawfully executed “do not resuscitate” (DNR) advance directive, she was successfully resuscitated and now faces continued pain and medical bills.

The staff had been aware of her DNR order and had even issued her a purple bracelet labeled “DNR.” However since the cardiac arrest was allegedly caused by an allergic reaction to Dilaudid, the staff may have felt her problem was not related to her illness and would likely result in a successful resuscitation.

While researching this subject, I found several instances of patients or families suing hospitals and doctors for failing to heed a DNR order or what some have called “wrongful life.”

However, I found only one major case that had gone to conclusion. A Georgia woman had both an advance directive and a healthcare proxy—her granddaughter. She was admitted to a hospital for a cough and eventually required a thoracentesis. The healthcare proxy agreed to allow the procedure to be done but specifically said her grandmother did not want intubation or mechanical ventilation.

A 2017 paper in The Journal of Clinical Ethics said the patient was temporarily intubated and ventilated during the thoracentesis. She was extubated, but a bout of respiratory distress was treated with intubation and mechanical ventilation again without consulting the granddaughter. The patient died two weeks later.

The granddaughter sued, and the hospital settled for $1,000,000. I believe this is the first such case settled for that much money. The biggest problem was failure of the doctor to communicate with the healthcare proxy.

Many issues in medicine are not black or white. Here’s the other side of the story. An elderly Boston man suffered a cardiac arrest in a hospital CT scanner and was resuscitated. The resident who treated him wrote that during the code, a nurse discovered a 6-year-old advance directive saying he did not want to be resuscitated in his chart.

But the code team noted he had walked into the hospital for the test and felt certain they could save him. They contacted his son and healthcare proxy who said “My father would want everything done to save his life.” The code was successful. He was weaned from mechanical ventilation and extubated after a few hours. He thanked his doctor and was discharged from the hospital two days later.

Some take-home points:

A DNR order and an advance directive may not necessarily be the same. For more information, read an interview with the plaintiff’s lawyer in the Georgia case.

Whether to resuscitate a patient or not may depend on the circumstances [e.g., whether an event is likely reversible or not], the wording of an advance directive, and/or the wishes of the healthcare proxy.

If possible, explain the possible scenarios and outcomes of resuscitation and DNR to your patients and their families well before a cardiac arrest occurs.

Communicate with patients and their healthcare proxies.

An expert witness goes the extra mile

A Canadian dermatologist was found guilty of professional misconduct by a disciplinary committee of the Ontario College of Physicians and Surgeons. He had been accused of rubbing his penis against the legs of two patients he was examining.

In his defense, the doctor said it couldn't have happened because he was so obese that his penis was covered by abdominal fat.

After 38 days of testimony, the committee was in effect a “hung” jury regarding the penis allegation but found against the doctor for rubbing his abdomen against the patients without "any form of warning, apology or excuse." The committee found the conduct "disgraceful, dishonorable or unprofessional."

One of several fact witnesses, not a direct party in the case but having seen the doctor, was asked how she knew it was a penis rubbing against her. She said, “I’m a woman of almost 70 years; I know what a penis is and what it feels like. I have no doubt at all that it was a penis.”

The doctor was also found guilty on charges of touching a patient's breasts under her bra without a valid clinical reason for doing so and for not giving patients a warning or explanation before removing some of their clothes.

The most interesting part of the hearing was that both the defense and the college had retained expert urologists to examine the dermatologist to see if the patients' allegations would have been possible.

The defense expert examined the dermatologist with and without an erection and said it would not have been possible for him to have done what the patients alleged.

The urologist for the college pretended to be the patient on the examining table with the dermatologist reprising his role as the examiner. At three different table positions, the urologist said he was able to feel the dermatologist's chemically induced erection.

I tried to imagine the conversation between representatives of the college and their expert witness prior to his encounter with the defendant.

College: Are you willing to be our expert?
Urologist: Yes. What do I have to do?
College: You must determine if the accused's erect penis can be felt at various heights of the examining table.
Urologist: How should I do that?
College: Just give him a drug to produce an erection, lie on the table while the defendant presses up against you, and testify about what you feel.
Urologist: Say what?

I tweeted a link to one of the newspaper articles about this case, and @Laconic_doc said he knew all along “the evidence wouldn't stand up in court.”

References:
Globenews.ca
The star.com

Appendicitis and shared decision-making

Staying with the current theme of appendicitis on my blog, here is a summary of recent developments. A JAMA Surgery Viewpoint suggested that because of the findings of a Finnish randomized trial, surgeons now should give patients with appendicitis a choice between an appendectomy or treatment with antibiotics.

The paper acknowledged my criticisms of the Finnish study which found that simple appendicitis could be treated successfully with antibiotics in almost 75% of patients.

I respect the authors of the JAMA Surgery article and am happy they referenced the blog post noting my concerns about that Finnish trial: the trial compared antibiotics to open appendectomy—an operation with more complications than the more commonly performed laparoscopic appendectomy; the antibiotic used in the Finnish trial is not a first line choice in the United States; patients were followed for only one year.

The JAMA surgery paper answered three questions I posed in a previous post. One, the Viewpoint authors consider antibiotic therapy for appendicitis mainstream. Two, surgeons must assume that patients might opt for antibiotics despite at least a 25-30% chance of suffering a recurrence of appendicitis. Three, an informed consent discussion now should include a mention of antibiotics as an option.

I disagree with the Viewpoint authors’ assertion that antibiotics are as safe and effective as surgery for treating appendicitis. Based on one flawed study, antibiotic therapy cannot yet compare to the many years of excellent results of laparoscopic appendectomy.

Here are some other problems.

A medical riddle: Where do incident reports go?

Incident reports are frequently submitted by hospital personnel. Did you ever wonder what happens to them? I have.

Over the years, I estimate that I’ve heard of hundreds of such reports being filed, but rarely have I heard of a problem being solved or for that matter, any action being taken at all.

In fact, I don’t even know where they went or who dealt with them. When I was a department chairman, I sat on quality assurance and risk management committees. Yet we never discussed individual incident reports.

The original intent of incident reports was to identify patient harms and increase patient safety.

According to a 2009 post by patient safety expert Dr. Bob Wachter, hospital incident reports are a spinoff from the Aviation Safety Reporting System which had successfully used them for identifying potential safety issues such as near misses.

At Dr. Wachter's hospital, San Francisco General, about 20,000 incident reports were filed every year. That is about half of what the Aviation Safety Reporting System receives per year, and San Francisco General Is only one of about 6000 hospitals in the United States.

Dr. Wachter feels that analyzing incident reports is not worth it. He estimates that each incident report creates about 80 minutes of work times 20,000 reports, which equals about 26,600 hours of wasted time. He also estimated that about one fourth of US hospitals do nothing with incident reports. That saves time but renders the reports useless.

He says an even bigger problem is that incident reports in his hospital fail to capture most events that harm patients.

That has also been my experience. I think most incident reports were filed by people wanting to "cover their asses" and most of the reported incidents were minor. A reference in Wachter's article states that most incident reports are submitted by nurses with only about 2% by doctors.

Incident reports can backfire too. From a 2002 Medscape article: "In some states, under certain conditions, the incident report is considered confidential and cannot be used against the nurse practitioner in a lawsuit. However, if copies are made or the chart reflects that an incident report was completed, the incident report can then be subpoenaed by the patient and used against the defendants in court."

And from the Louisiana State University School of Law: "The nonjudgmental nature of an incident report is very important because in most cases the incident report will be discoverable in litigation. An accusatory remark in an incident report may gain unintended weight in a legal proceeding."

Since incident reports generate a massive amount of wasted time, fail to identify most events that harm patients, are frequently ignored, and can possibly have a negative effect on lawsuits, why are they still being filled out by the thousands?

Is the surgeon still "captain of the ship"?

A Kentucky appeals court ruled that a surgeon was not responsible for a burn caused by an instrument that had been removed from an autoclave and placed on an anesthetized patient's abdomen.

According to an article in Outpatient Surgery, the surgeon was not in the room when the injury occurred and only discovered it when he was about to begin the procedure.

An insufflator valve had been sterilized and was apparently still hot when an unknown hospital staff member put it down on the patient's exposed skin. [An insufflator is a machine that is used to pump CO2 through tubing into the abdomen for laparoscopic surgery.] When the doctor saw the mild second-degree burn, he asked what happened, but "but no one in the OR claimed any knowledge or responsibility."

The hospital had settled the suit on behalf of its staff, but the surgeon, who as a private practitioner had his own malpractice insurance, held out. The original lower court ruling dismissing the suit against him had been based on the plaintiff's lawyer's failure to prove that the surgeon was responsible for the actions of the hospital staff.

In December 2012, I wrote a post stating my opinion that activities such as counting the sponges during an operation were not the responsibility of the surgeon. Many who commented on the post were highly indignant that I could suggest such a thing.

I wrote another post last year on the subject in response to another surgeon's blog entitled "Everything's my fault: How a surgeon says I'm sorry." I felt that many things that happened to patients were beyond the control of the surgeon. Most of the comments agreed with me.

I keep hearing that medical care has become a team sport. If that's true, then the surgeon, like everyone else, is simply a member of the team. People on teams have different roles and must execute properly for the team to succeed.

One of the most interesting things about the case in question was that none of the OR team members had any idea how that hot insufflator valve found its way to the patient's abdomen.

One thing we know for sure, at least in Kentucky, is that a surgeon is not legally responsible for everything that happens to a patient in the operating room, particularly when he is not even present.

Is this decision the first nail in the coffin of the "captain of the ship" doctrine?

Male docs are more often involved in medicolegal actions than female docs

"Male doctors are more likely to have experienced medico-legal actions compared to female doctors. This finding is robust internationally, across outcomes of varying severity, and over time," concluded a recent meta-analysis.

The study, published online in BMC Medicine, said men were 2.45 (95 % CI, 2.05–2.93) times more likely to have been the subject of legal proceedings.

Legal action was defined as disciplinary action by a medical regulatory body, malpractice experience, complaints received by a medical regulatory or healthcare complaints body, a criminal case, or when a paper on the topic did not specify one of the above.

Data from 32 published papers were pooled and analyzed. At first glance, the methods seem reasonable, and the conclusion may even be correct.

But to their credit, the authors mention that the paper has some limitations which, in my opinion, probably invalidate the results.

Duke Docs Who Attached Intestine to Vagina Must Stand Trial

Catchy headline, isn't it?

That headline appeared two years ago on the Outpatient Surgery website. Too bad it wasn't accurate.

This case has been a topic on the Internet off and on for a few years. Although the patient's surgery took place in 2008, the malpractice trial did not occur until earlier this month.

Like nearly every news media article about malpractice incidents, details were sketchy and sensationalism was featured.

Also common in cases like this that although many stories appeared about the case before the trial, but few reported the verdict. That is because after deliberations lasting less than one day, the doctors were not found guilty of negligence.

According to a story on the only media outlet reporting the verdict—Courtroom View Network, here's what happened.

The patient underwent surgery for debilitating chronic constipation at Duke University Medical Center in 2008. Postoperatively, she developed a recto-vaginal fistula [a tract or tunnel from the rectum to the vagina] due to a portion of vaginal wall being caught in the surgical staple line when the intestine was reconnected. The problem was corrected by a second operative procedure.

Prior to the first case, the patient had been informed that secondary procedures might be necessary if complications arose.

The malpractice suit was originally denied by a lower court because the plaintiff could not find an expert witness to testify that negligence had occurred, but an appeals court ruled that an expert was not necessary because "even a layperson would be able to determine whether or not negligence occurred," and "It is common knowledge and experience that intestines are meant to connect with the anus, not the vagina, even following a surgical procedure to correct a bowel problem."

Although the second operation solved the patient's problem, she claimed that she had suffered a conversion disorder causing slurred speech, tremors, and weakness. However, subsequent treating physicians felt that her symptoms were inconsistent and that she was "trying to appear disabled."

This case illustrates several important principles about medical malpractice cases.

They often take a long time—an average of 4 to 5 years—to be resolved.

Every less-than-perfect outcome is not necessarily due to negligence. Recto-vaginal fistula is a known complication of this type of surgery.

Stories from 2013, when the appeals court said the case could go to trial and from this year just before the trial started, implied that the surgeons had mistakenly attached the intestine to the vagina which many of us found hard to believe. But without knowing the details, we could only speculate.

The jury did not believe the alleged damage—a conversion reaction—was real.

This lawsuit, which cost both the plaintiff's attorney and the defendants' insurance company a lot of money and dragged two highly competent and respected surgeons through the mud for 7 years, should never have gotten off the ground.

There was a reason that plaintiff couldn't find an expert to testify that negligence occurred. The intestine was never mistakenly "attached to the vagina."

On the horrific story of a Texas neurosurgeon and why it could happen again

If you are interested in patient safety and medical errors and haven't read the story in the Texas Observer about a spectacularly incompetent neurosurgeon, you should. It is long but worth it. As I tweeted last week, it will make you cringe.

The story includes many details about operations done poorly and patients suffering paralysis and death at the hands of Dr. Christopher D. Duntsch.

The Texas Medical Board is over-worked, slow to act and apparently toothless when it comes to disciplining doctors. Despite many complaints, it took them more than a year before it temporarily suspended his license on June 26, 2013.

However, the author of the piece, some Dallas area lawyers and at least one blogger are mistaken when they blame the malpractice monetary cap in Texas for contributing to the delay.

Yes, Texas has a cap on non-economic damages. Is that really the problem? Or is it what I and many others have written, that average duration of a malpractice suit is well over 4 years, with many cases lasting much longer than that?

If the only way this doctor could have been stopped was by malpractice litigation, he would still be operating today.

This dreadful situation was created by a number of factors.

As background, note that Dr. Duntsch has a remarkable curriculum vitae in that he graduated from medical school summa cum laude and was inducted into Alpha Omega Alpha, the med school equivalent of Phi Beta Kappa.

In addition to an MD degree, he also received a PhD and did two research fellowships and a minimally invasive spine fellowship. However, according to the website of the American Board of Neurological Surgery, Dr. Duntsch was not board-certified.

In the Observer article, a general surgeon who assisted him on his first operation in Texas immediately recognized that Dr. Duntsch did not have good technical skills. The general surgeon said, “His performance was pathetic . . . He was functioning at a first- or second-year neurosurgical resident level but had no apparent insight into how bad his technique was.”

After another disaster, his operating privileges were suspended for 30 days after which time he was to have been supervised by another neurosurgeon at every procedure.

But the hospital Duntsch worked in, Baylor Plano, did not enforce that sanction and he continued to operate until he finally caused the death of a patient from bleeding.

He resigned from that staff and obtained privileges at Dallas Medical Center, which claimed that Baylor Plano said there were no issues with Duntsch's performance. Of course, there were issues. And resigning from a medical staff while under restriction of privileges or even under investigation mandated a report, which apparently was not sent, from Baylor Plano to the National Practitioner Databank.

At Dallas Medical Center, two of his first three cases ended badly. One patient died, and the other suffered a major complication.

A surgeon who was brought in to reoperate on the patient with the complication could not believe what he found and called the Medical Board himself. He was told it would take time to process the information and investigate.

Although Dallas Medical Center "fired" Duntsch, he still was operating at two other hospitals. How he obtained privileges at those two was not explained.

At one, a patient woke up with both vocal cords paralyzed after a cervical spine fusion, and at the second one, the OR team had to "physically restrain" Duntsch from continuing a procedure that was going badly.

After another more detailed complaint by the general surgeon who had helped Duntsch with his first case, the Medical Board finally suspended his license.

There were four chances to have stopped this doctor sooner.

One, as many commenters on Reddit wondered, how was this surgeon allowed to graduate from his residency program? It is unlikely that he suddenly became a terrible surgeon after completing his training, although the medical board did find that he was impaired by drugs or alcohol.

Two, the doctors who knew of the bad cases could have been more vocal in opposing his applications for staff privileges at the area hospitals. They may have held back because of fear that they would be sued for libel or slander.

Three, the hospitals in the Dallas area could have been more diligent in investigating his past record, but neurosurgeons are cash cows so maybe his problems were glossed over.

Four, the Texas Medical Board could have been more proactive in the face of such serious allegations against the doctor.

All four of the above would have been much quicker and more efficient than any malpractice suit. The fact is that while too late to help several patients, the Medical Board suspension occurred in well under 2 years, still faster than any lawsuit would have been resolved.

This is key, "Every year the board is overseeing many more doctors and bringing in more money. But it doesn’t get to keep much of it: In fiscal year 2013, the board sent almost $40 million to the state’s General Revenue fund, of which it got about $11 million back. (Like other state licensing agencies—the Pharmacy Board, the Nurse Practitioner Board—the Medical Board operates at a surplus for the state.)"

As is true in many states, medical licensing fees are essentially a tax on doctors. Instead of going for better policing of the profession, the states use the money for other things. The doctors who assist with Medical Board investigations are unpaid volunteers.

Here's a very telling passage from the Observer article. "Why does it take so long to investigate a doctor? The process for resolving complaints is slow and painstaking, set up in statute to guarantee doctors the maximum legal protection."

And who writes the statutes? The majority of legislators are lawyers, certainly not doctors.

Regarding the investigators, the article says, "They know if they try to discipline a doctor, the burden of proof will be on them. A poorly put-together case can mean months or years of expensive litigation. So the board members tend to act conservatively."

I would wager that even a well put together case could mean months or years of expensive litigation too.

So the lawyers, who will tell you that they are the champions of patient safety and the salvation of mankind, are also the biggest stumbling block to rapid resolution of the problem of disciplining bad doctors.

By the way, If you google Dr. Duntsch, you will see that he still has many outstanding ratings from various websites, including 4½ stars of a possible 5 from HealthGrades.

And check out the first couple of minutes of this video from March of this year produced by his public relations people for the "Best Docs Network."

Among the many interests listed in Dr. Duntsch's LinkedIn profile are "Mentoring the Next Generation of Scientists" and "Medicolegal." In the future, I'm sure he will get few chances to do the former but many for the latter.

I feel for the patients and families who were harmed by this surgeon.

Texas is no different than most other states. This could happen again just about anywhere in this country.

UPDATE 12/18/2013

On 12/6/2013, Dr. Duntsch agreed to give up his Texas medical license and further disciplinary proceedings were dropped.

Follow-up on whose fault is it if a patient doesn't follow up

My post entitled "Who is at fault if a patient doesn't follow up?" from 7/19/13 has had over 1000 page views. There were several comments on Twitter.

In three parts, here is some follow-up on following up.

1. A surgeon saw a new patient with flank pain. He had undergone an appendectomy a few years before by another surgeon at a different hospital. He said that the surgeon told him the pathology report was "fine."

Physical examination was not enlightening.

A CT scan showed a possible ureteral stone. A urologist was consulted, saw the patient and said there was no stone.

The patient called the surgeon who told the patient to come back to her office to discuss further work-up. He did not keep the appointment. The surgeon made two more phone calls urging the patient to return and documented them in her office records. He was also called by the urologist, a consultant gastroenterologist and his family doctor. He never followed up with any physician.

Two years later he presented to the ED with a small bowel obstruction. At surgery, carcinomatosis from his ruptured mucinous carcinoma of the appendix was found.

The CT scan showing the possible stone was re-reviewed and still showed no evidence of a tumor.

The original pathology report said "mucinous tumor [not cancer] of the appendix."

Everyone except the surgeon who had done the appendectomy and the pathologist was sued. They escaped because of the statute of limitations.

The insurance companies advised all of the doctors to settle, which they did.

So much for documenting your attempts to have the patient seen.

2. Two of my Twitter followers from Australia sent me a link to a case that illustrates that patients in that country are somewhat responsible for their fate.

Briefly, it concerned a man who needed a Q fever vaccination for work. A skin test for Q fever was negative, but serology was weakly positive. An infectious disease specialist recommended that vaccination not be done. He was told to return in a month for a repeat serology. He failed to do so and contracted Q fever about 4 years later.

He sued. A judge ruled in favor of the physician saying the patient "understood the advice he was given by [the doctor] that he was low positive, that he needed further testing and that he could not be immunized. There was nothing in [the patient's] presentation in court or within his evidence that suggested he did not comprehend what was said to him by [the doctor]. He denied being told to return by [the doctor]. I reject his account for the reasons already mentioned."

3. This last one is hard to believe.

A brief "Viewpoint" article in JAMA from May of 2013 tells of the discovery of a new disease. It is called "Medication Nonadherence" and it has six different phenotypes.

They are as follows: "(1) the patient does not understand the relevance of medication adherence to continued health and wellbeing; (2) the patient has concluded the benefits of taking medications do not outweigh the costs; (3) the complexity of medication management exceeds the information processing capacity of the patient; (4) the patient is not sufficiently vigilant; (5) the patient holds inaccurate, irrational, or conflicting normative beliefs about medications; and (6) the patient does not perceive medication to have therapeutic efficacy."

I had trouble getting past the above portion of the paper.

However, the authors advocate screening all patients for this malady and treating it when found. They say, "Each medication nonadherence phenotype requires different diagnostic tools and treatments in the same way that subtypes of a medical condition, such as heart failure (diastolic vs systolic), require them."

I thank God I am no longer in practice.

Who is at fault if a patient doesn't follow up?

In keeping with the mind-set of most Americans today, the answer to the question posed in the title of this post is, "the doctor."

American Medical News reports that "Medical liability experts say missed appointments and failures to follow up pose some of the greatest legal risks for physicians." And these problems are increasing with more hand-offs and more people being involved with the "team" taking care of the patient.

The article began with an anecdote about a patient who needed at cardiac catheterization but wanted to think about it. He went home and died. The family sued and said the doctor did not tell "them how critical it was for him to have the procedure.”

The doctor did not document the conversation about the need for the procedure in the chart and lost the case.

Failure to make sure that appropriate follow-up was done and failure to contact patients about missed appointments are among the most frequent deficiencies cited as big legal risks for physicians.

Get this. "A common claim in lawsuits that involve missed appointments is lack of informed refusal. The allegation arises when patients admit they declined or ignored treatment recommendations, but allege they were not adequately educated about the medical risks of their decision."

Lack of informed refusal. That's a new one on me.

The article says that adequate documentation by the doctor will support his version of events.

What is to prevent any patient, who is explained any plan or procedure and declines, from simply saying, "I didn't realize how serious this was"?

And where does this end? Should a doctor call all her patients every day to ask if they took their medications?

"Hello, Mrs. Balotelli. Did you take your Placebolol today?"
"No, I didn't think it was important."

"Mrs. Balotelli, I wouldn't have prescribed it for you if I didn't think you needed it. I told you that you have to take it to prevent you from having a stroke."
"Well, doctor, I didn't understand that a stroke might be a bad thing. And I don't think my blood pressure is that high today anyway."

Whatever happened to personal responsibility?

I guess it's always someone else's fault when anything goes wrong.

The article ends with a list of 16 things that a doctor and her staff should do for every patient to try to counter this disturbing trend.

Here are a few of them:

    Maintain a current list with dates of problem identification, reviews and resolutions.
    Use the patient's own words when documenting.
    Indicate in writing or electronically that all results of tests, consultants and referrals were reviewed.
    Document all after-hours patient calls.
    Document all advice in the patient's record.
    Detail the patient's level of understanding during the informed consent process.

I'm sure these tasks won't take much time or effort.

And some lawyer will probably say that what the doctor wrote on the chart is not what the patient remembers him saying.

See  this follow-up post on following up.

Law schools start firms in order to employ their graduates

The New York Times reports that law schools in the US, smarting from the collapse of the job market for lawyers, are establishing law firms so they can hire their graduates and give them something to do.

Regarding such a scheme in Arizona, the article says, "Over the next few years, 30 graduates will work under seasoned lawyers and be paid for a wide range of services provided at relatively low cost. The school-based firms will be something like teaching hospitals for law school graduates."

Several schools have bought in to the idea to solve two "seemingly contradictory problems: heavily indebted law graduates with no clients and a vast number of Americans unable to afford a lawyer."

For a minute there, I thought the legal profession was actually going to break precedent and do some real charity work. [Please don't tell me lawyers do pro bono work. Very few do, and when they do, it is a paltry amount of time. A judge had the audacity to recommend that new lawyers do 50 hours of pro bono work before being allowed to take the bar exam in New York. That's about 6 days of work per year. A law blog called it "indentured servitude."]

But the article mentioned that the legal services provided will not be free. in fact, the plan for the Arizona project "is to charge $125 an hour in an area where the going hourly rate is $250." That's not exactly analogous to the way a teaching hospital works.

By what criterion is $125 per hour "relatively low cost"? Oh, I think I've got it. That's relatively low cost for legal fees. Of course, lawyers know how make up for low hourly fees. According to another New York Times piece, it called padding the bill or "churning." One expert commented that "churning, while not endemic, is an insidious problem in the legal profession."

A lawyer for a firm that is being sued for overbilling of hours allegedly worked said in an email to a colleague, “Now Vince has random people working full time on random research projects in standard ‘churn that bill, baby!’ mode,” Mr. Thomson wrote. “That bill shall know no limits.”

So the idea of law schools setting up graduates in business reminds me of a joke.

Back in the late 19th century, a lawyer moved to one of the many new towns springing up in the West. He was the first and only lawyer. For a year, he had nothing to do and nearly starved to death.

Then another lawyer came to town.

Why do malpractice claims take so long to be resolved?

Two recent papers have prompted me to ask myself the question, “Why do malpractice suits take so long to be resolved?”

One was by a group from Harvard, USC and the RAND Corporation. They looked at more than 10,000 closed malpractice cases for all specialties and found the average length of time it took to close a case was 19 months, with litigated claims taking a little over twice as long as non-litigated claims, 25.1 vs. 11.6 months respectively. Claims that were resolved at trial took much longer averaging 39.0 months for defendant verdicts and 43.5 months for plaintiff verdicts.

The second study was by a group headed by a surgeon based at a Johns Hopkins affiliated hospital. They reviewed 187 closed surgery claims at four university hospitals in New York. Using a different method of calculating the length of time, they noted a mean time until resolution of all claims of 4.5 years. Cases closed with no payment took 3.9 years, while those won or lost at trial took about 5 years.

I’ll give you a minute to see if you can guess why it takes so long to resolve these claims.

Here’s my theory. I think it might have something to do with the involvement of lawyers. We all know that plaintiffs’ attorneys get a large percentage of the take from any case settled with payment or plaintiff’s verdict with damages.

But defending cases can be expensive too. Since defense lawyers are paid according to their billable hours, it seems to me that it is in their best interest to make a claim last as long as possible. Have you ever been deposed or read a deposition? Lawyers object to every other question, which accomplishes nothing. The question still has to be answered. They also ask the same questions over and over leading to the old “Objection, asked and answered” response. Often the questions seem to have nothing to do with the alleged negligence.

Let’s do some math.

A paper that appeared in the journal Health Affairs in 2005 addressed the legal costs associated with malpractice claims. The study found that “legal costs average $27,000 per claim in the United States, which adds approximately $1.4 billion in costs to the $4.4 billion paid in settlements and judgments. The costs of underwriting insurance against malpractice claims are estimated at an additional 12 percent, or $700 million. The cost of defending U.S. malpractice claims, including awards, legal costs, and underwriting costs, was an estimated $6.5 billion in 2001—0.46 percent of total health spending.”

Yes, it’s less than 1% of total healthcare spending. But as the old and possibly apocryphal saying attributed to the late Senator Everett Dirksen goes “A billion here, a billion there, pretty soon, you're talking real money.” And don’t forget the emotional toll that being the target of a lawsuit takes on the defendent doctor while the case is meandering through the process.

A version of this post appeared on Sermo yesterday. All who commented thought the process took too long.

“Damned if you do…”

Here’s a little story from the early days of my first job as a chairman of surgery.

Shortly after I assumed the role of surgical chairman in a community teaching hospital at the ripe old age of 40 and having absolutely no administrative experience, I visited a mentor of mine whom I had known since I was a medical student. He had been serving in a similar role at a larger hospital than mine, and I thought he might be able to share some wisdom about how to be a good chairman.

He was dispensing sound advice for most of the hour or so I spent with him. Then he said something that struck me: Sometimes the unexpected happens and there’s no simple solution. He told me that among the challenges he was facing were two lawsuits.

One was from the family of a patient who had died after a carotid endarterectomy that had been performed by a surgeon in his department. The plaintiffs were suing the hospital and my mentor, the surgical chairman, for allowing what they alleged was an incompetent surgeon to do complex vascular surgery.

The other lawsuit was by a surgeon in his department who had requested privileges to perform carotid surgery, which had been denied by my mentor on the grounds that in his opinion, the surgeon was not adequately trained in carotid surgery.

I never heard the outcome of either case, but it certainly seemed like a no-win situation.

Although that encounter occurred some 25 years ago, the problem persists today. For example, patient advocates are concerned that pain is not being adequately addressed. Yet there is an epidemic of abuse of narcotic prescription drugs that is sweeping all parts of the country.

We also are being criticized for runaway healthcare spending and being encouraged to reduce things like unnecessary testing, while a recent jury verdict for $6.4 million in Philadelphia went against two physicians for failing to order certain tests on a man who had a fatal heart attack 3 months after an emergency department visit for pneumonia.

Some say too many CT scans are being ordered for the work-up of appendicitis with worry that radiation will cause future increased cancer rates. However, in my experience, patients prefer accuracy in diagnosis over a theoretical increased risk of cancer 30 years from now.

Not long ago I was called by an emergency physician who said he had a 17-year-old boy with a textbook case of acute appendicitis. He felt a CT scan was unnecessary. I examined that patient and agreed. I explained to the boy’s mother that I was convinced he had appendicitis and needed surgery. She said, “What about a CT scan?” After a lengthy discussion, I convinced her that the CT scan was not needed. As I made the incision, I said to the OR team, “I sure hope this kid has appendicitis.”

I can think of many more such situations. How should we resolve them?

 

It seems to be the mantra for modern medicine. "Damned if you do and damned if you don't."