Family of late pop singer Prince sues everyone for malpractice

According to the New York Times, “The suit claims that Prince’s death was a “direct and proximate cause” of the hospital failing to appropriately diagnose and treat the overdose, as well as its failure to investigate the cause and provide proper counseling.”

The suit names a hospital and an emergency department physician in Moline, Illinois where Prince’s private jet made an emergency landing when he became unresponsive during a 2016 flight home to Minnesota from a concert in Atlanta.

An employee of his told paramedics who met the plane that he “may have taken a Percocet.” After Prince regained consciousness, he supposedly told the ED doc he had taken two Percocets, but she did not believe him because it had taken two doses of Narcan, an opioid antidote, to revive him.

Friends said he refused all testing including blood and urine toxicology because he was trying to keep his addiction a secret.

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?

Narcotic addicts can sue doctors and pharmacies for "enabling" them

In a 3-2 decision, the Supreme Court of West Virginia ruled that narcotic addicts may sue pharmacies and physicians for facilitating their addictions.

A suit was brought on behalf of 29 pain center patients who had been treated with narcotics for various injuries and became addicted. One article quoted the Chief Justice's explanation: "A plaintiff’s wrongful or immoral conduct does not prohibit them from seeking damages as the result of the actions of others."

The court recognized that most of the plaintiffs "admitted their abuse of controlled substances occurred before they sought help "at the pain clinic.

Another story said, "The justices paved the way for people to claim damages for allegedly causing or contributing to their addictions of controlled substances—even if they broke the law by doctor shopping."

In a dissenting opinion, one justice wrote that the decision “requires hardworking West Virginians to immerse themselves in the sordid details of the parties’ enterprise in an attempt to determine who is the least culpable—a drug addict or his dealer.”

In response to the ruling, the West Virginia Medical Association issued a statement: "It may cause some physicians to curb or stop treating pain altogether for fear of retribution should treatment lead to patient addiction and/or criminal behavior. It may create additional barriers for patients seeking treatment for legitimate chronic pain due to reduced access to physicians. It would allow criminals to potentially profit for their wrongful conduct by taking doctors and pharmacists to court."

A post on the American Pharmacists Association website explained that pharmacists were included in the ruling "because they were aware of the 'pill mill' activities of the medical providers. The plaintiffs said these pharmacies refilled the controlled substances too early, refilled them for excessive periods of time, filled contraindicated controlled substances, and filled 'synergistic' controlled substances."

One newspaper summarized the public reaction to the ruling in an editorial stating, "Those who are illegally abusing prescription narcotics should be prosecuted to the fullest extent of the law. The same goes for medical professionals who are found guilty of committing a criminal act. But telling a drug addict or someone who is illegally abusing prescription narcotics that it is OK to go to court and file what could very well be a frivolous lawsuit is both baffling and shameful. This ruling by the Supreme Court justices is a clear back eye for West Virginia. And it does nothing to help West Virginia’s rampant drug problem."

As I wrote last year, I think the prescription drug abuse epidemic all stems from a 15-year campaign that declared pain is the fifth vital sign—a concept which is both untrue and as we have come to learn, harmful.

I agree with the WVMA. If I were practicing in West Virginia, I would be very reluctant to prescribe narcotic pain medication to any patient.

What do you think?

Can a surgeon who is sitting perform abdominal operations?

A loyal reader alerted me to news of a lawsuit brought by an obstetrician in South Carolina who is suing a hospital for suspending his privileges. He had performed a cesarean section while sitting on a stool because he had a foot fracture secondary to diabetes. Several witnesses said that the doctor "had been unable to properly view the surgical field, unable to properly handle the baby and unable to address hemorrhaging." The patient later developed a serious infection.

A seated surgeon can operate on the hand and arm. In fact, that's the way everyone does it. The surgeon's knees easily fit under the small table holding the outstretched arm. Certain anorectal operations and gynecologic procedures done through the vagina can be done by a surgeon who is sitting, but abdominal and pelvic operations done via laparotomy can't be safely done that way.

The problem is that when a surgeon is sitting, she can't get close enough to the OR table and the patient to see way down into the abdomen and pelvis. If bleeding occurs deep in the wound, controlling it would be challenging to a surgeon who is sitting. Tying a secure knot in the pelvis while sitting might even be impossible.

With the exception of robot-assisted surgery where the surgeon sits a console remote from the operating table, a seated surgeon would have trouble doing both open and laparoscopic procedures. Even with a robotic operation, there can be problems. If the surgeon can't stand, an assistant would have to help insert the robotic ports. What if something went wrong and the abdomen had to be opened?

In a laparoscopic case, the video monitor could be seen by a sitting surgeon, but manipulating the rigid instruments would be difficult because of the angles created by the locations of the ports through which the instruments are passed.

As a retired surgeon, I sympathize with anyone who might be forced to quit operating because of illness or disability, but the safety of the patient comes first.

I hope that the suit is resolved quickly and we learn what the outcome is.

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."

A lawyer tries (unsuccessfully) to take down Skeptical Scalpel

A trial lawyer named Max Kennerly has taken issue with a piece I wrote called "Can defensive medicine ever be stopped?" It appeared last week on KevinMD.

On his blog, he he says defensive medicine is a "myth" and accuses me of many wrongs, too numerous to detail here.

I will address a few of them.

He read my post but apparently did so selectively. He failed to note that I agreed with him that tort reform did not reduce the cost of medical care in states that have enacted it. This was documented by a paper from the National Center for Policy Analysis which I cited.

He went on to criticize three brief examples of defensive medicine that I mentioned in my post—about abdominal pain, a wound infection after colon surgery, and chest pain.

Mr. Kennerly writes, "a young girl with lower abdominal pain gets an ultrasound for appendicitis (among the least invasive, least expensive, and most helpful tests in history — remember this funny GE ad for their portable ultrasound?)."

Lawyer tricks of the trade: Billable hours

Lawyers are hardworking people. That's for sure. Take this lawyer from Ohio who billed long hours for court-appointed cases. For instance, he billed for 21, 21.5, 23 and 29 hours of work for 4 different days. His lawyer said he did the work but was simply a poor record-keeper.

Right.

Not to be outdone, a lawyer from Iowa billed for more than 24 hours of work in a day on 80 separate days. He is being charged with a felony for receiving $178,000 for what are being called improper payments for work as a public defender.

Four other lawyers were terminated from the program for similar issues.

And you thought doctors worked long hours?

The president of the Iowa State Bar Association called the findings of the audit that discovered the problems "an isolated aberration, involving five lawyers. Simply put, a few bad apples do not spoil the barrel."

Are these isolated aberrations?

I'm not so sure. A lawyer friend of mine (yes, I do have friends and even relatives who are lawyers) tells me that this is not particularly uncommon.

He said that lawyers will often schedule 5 or 6 case conferences at a courthouse over a 2-hour period and bill each client for 2 hours worth of work.

At least one lawyer feels that the "billable hour" model should be scrapped because "The billable hour makes no sense, not even for lawyers. If you are successful and win a case early on, you put yourself out of work. If you get bogged down in a land war in Asia, you make more money. That is frankly nuts."

This meshes nicely with a story my lawyer friend told me. Shortly after he became a lawyer, he proudly walked into his boss's office to report that he had settled a case in record time. His boss then chastised him for doing so and pointed out that settling the case so quickly cost the firm a lot of money.

It's too bad that legal services are a "privilege"instead of a  "right." Then maybe someone other than I would be upset about how much it costs.

What's the point of medical licensing?

A surgeon emailed me the following (in italics).

OK, I know this is radical but consider my argument...

Medical licensing protects no-one and costs physicians hundreds to thousands of dollars each year. If a physician is negligent, can the injured party sue the state that licensed him? I'm guessing not.

When I moved to my current location, I had to send lots of documentation to the state medical board so they could verify that I was a true and competent surgeon. I provided my employer with the same info so they could also verify my credentials. Now my employer can and will get sued if I commit a negligent act and absolutely should verify my credentials prior to handing me a scalpel. But the state? It's license is useless.

Most people choose a surgeon based on recommendations and word of mouth reputation and these are by far better indicators of quality than any credentialing board. Nobody asks to see my license, and, even if they did, it would not protect them any more than their trust in the health system in which I work.

If I was in private practice and had my license displayed on my wall it may give some reassurance to my patients, but it does not say anything about the quality of my work. Most doctors who really screw up due to negligence are licensed by the state.

I contend again, that word of mouth and reputation are the best indicators of a surgeons ability, anything beyond that is useless.

Caveat emptor, "let the buyer beware" remains the mantra of the informed consumer.

Thanks for letting me vent.

Of course this is a bit of exaggeration to make a point. We obviously need some sort of medical licensing or the public would not know if we were the same as the "butt enhancement" people who operate out of motel rooms.

But it's true that we—doctors and the public—don't get much bang for our buck. As I mentioned in my post about the Texas neurosurgeon who ran amok before that state's medical board took action, licensing fees are generally used by most states as a type of tax.

For example in the state of Texas, only$11 million of the $40 million in licensing fees collected per year goes to the medical board for policing the profession. The rest is left in the state's general fund.

My state also uses medical licensing fees as a tax rather than as a means to run a more effective medical board. I wonder how many other states do the same thing?

It's interesting that the surgeon who sent me this email has the same recommendation found by a researcher who recently looked at the relationship between hospital quality and patient satisfaction. Like many others, he found that there is no such relationship.

As the article about that paper states, "He [the researcher] suggested choosing a hospital the old-fashioned way: find a doctor you trust and ask for a recommendation."

PS: I'm surprised that lawyers haven't thought of suing states for allowing bad doctors to keep licenses.

A prank in the OR backfires

An anesthesiologist at a California hospital pasted stickers simulating a mustache and teardrops on the face of a hospital employee while she was having surgery on a finger.

According to the LA Times, the doctor said, "I thought she would think this is funny and she would appreciate it."

And if that wasn't bad enough, a "nursing attendant" took a photograph.

The patient, who said she had to quit her job because of the humiliation, is suing the hospital and the physician for this confidentiality breach.

The woman who took the photo said she deleted it after showing it to the patient and didn't post it anywhere. One version of the story is that she texted the photo to the plaintiff.

Others have testified that they saw the image on Facebook although the hospital said that there is no proof the photo was ever posted online. Multiple news outlets, including the LA Times, have published the photo which was obtained via court documents. 

One thing is certain. The photo is readily available now.

The plaintiff also claims that general anesthesia was unnecessary and only used so that the picture could be taken.

The anesthesiologist and some hospital employees were disciplined, but the hospital says the patient has fabricated and exaggerated some of her complaints.

At a deposition, a nurse manager at the hospital testified that in 2009, a sales representative took some pictures of a naked patient in the operating room. The hospital maintained that no such photos were ever taken. But then not only barred that sales rep from its OR, it also established a policy that no cell phones or cameras would be permitted in that area. This was an attempt to rectify a human error in judgment and common sense with a system correction. Obviously, it didn't work.

There are lots of issues to discuss.

It seems the OR is not a good place for a prank.

Bad ideas. One, pasting the stickers on the patient. Two, taking a photo (without consent). Three, texting it to the plaintiff. Four, posting it on Facebook (allegedly).

The Internet doesn't forget. Once something is posted it tends to stay there—somewhere—forever.

There is this thing called HIPAA, which contains many strict rules about patient privacy. People have been fired, fined, and even jailed for breaches of patient privacy.

Why didn't the hospital settle this case, which has gone viral? Do they really think they can win? Have they never heard of the "Streisand Effect"?

The hospital had a policy of no cell phones and no photos in the OR, but it was observed about as well as the 55 MPH speed limit. 

If there is nothing else to learn from this case, a hospital should not establish policies it cannot or will not enforce. Lawyers feast on that sort of thing.

Bottom line: The cell phone and its camera are not the culprits here. Smartphones don't take pictures of people; people take pictures of people.