Published By: Maxwell S. Kennerly, Esquire

Medical Malpractice

Subscribe to Medical Malpractice

I haven’t written much about medical malpractice lately because, apart from a couple unique cases, it doesn’t feel like there is anything new to say. Medical malpractice is still responsible for less than one-half of 1% of all United States healthcare costs, and it is still the case that even “hellhole” jurisdictions like Philadelphia are nonetheless still so hostile to patients’ lawsuits that three-quarters of injured patients walk away empty-handed from jury trials. (I would be remiss not to mention this recent study further discrediting the “hellhole” data about Philadelphia’s courts.)

But now I have some good news to report: it seems that many of the major medical societies are moving away from blaming lawyers and lawsuits for every problem under the sun, and are starting to take matters into their own hands to reduce the overall cost of healthcare while still protecting patient safety. The new campaign, “Choosing Wisely,” unveiled this week, was organized by the ABIM Foundation, part of the American Board of Internal Medicine (which has its headquarters only a couple blocks from my office). The ABIM Foundation brought together a number of the major physician specialty societies to come up with lists of five things — typically diagnostic tests — that doctors in each specialty shouldn’t do because they are wasteful and unnecessary.

The part that pleasantly surprises me is how the medical societies have all resisted the urge to trot out the “defensive medicine” line, the claim that doctors wouldn’t do any of these tests if it weren’t for the potential for medical malpractice liability.  See, for example, this NPR story and this JAMA article, neither of which quotes a doctor blaming lawyers for every wasteful practice in medicine.

As I have argued many times before on this blog, I think “defensive medicine” is mostly a bunch of hooey.  Contrary to what you hear from some insurance companies and tort reform organizations, medical malpractice lawsuits don’t impact access to care, and don’t cause doctors to order unnecessary tests. To see why lawsuits don’t result in “defensive medicine” requires a bit more understanding about how malpractice lawsuits work: 
Continue Reading Choosing Wisely: Healthcare Costs Debate Moves Beyond Defensive Medicine

The lines between conscious sedation, monitored anesthesia care, general anesthesia, and life-threatening central nervous system depression are blurry and thin.  As the death of Michael Jackson and prosecution of his personal physician has brought back into the spotlight (I hope), anesthesia medications like propofol are frighteningly dangerous if used improperly.  It’s not like taking an antihistamine and going to sleep for a couple hours. Even the “long acting” procedural sedation agents like Versed and Fentanyl work for at most an hour, whereas the short-acting agents like Propofol last for only a couple minutes.  They have to be constantly administered and the patient has to be constantly monitored.

We review a lot of medical malpractice cases, so it feels like I see the same tragic story once a month, either in the press or in cases at our firm. Recently, “parents of student who died after dental surgery sue for malpractice“:

The parents of a Woodstock teen who died 10 days after losing oxygen during a routine wisdom tooth surgery March 28 in Columbia are suing the anesthesiologist and the oral surgeon involved for medical malpractice, according to court records filed Nov. 30.

…

The suit claims that Dr. Krista Michelle Isaacs, the anesthesiologist, and Dr. Domenick Coletti, the oral surgeon, were negligent in their care of Olenick and failed to resuscitate her after her heart rate slowed to a “panic level” of 40 beats per minute and her body began losing oxygen.

Yahoo has an article examining the merits of wisdom tooth removal, but it seems the type of surgery wasn’t really the problem, nor the use of improper surgical techniques.  It happened to involve dental surgery, but it could have been any type of surgery; Ms. Olenick’s death was perhaps another example of anesthesia malpractice:

According to Dr. David Fowler, the state’s chief medical examiner, Olenick was first given a standard dose of anesthesia during the procedure that did not “get her deep enough so she was fully anesthetized.” More anesthesia was then administered by Isaacs, which was also standard procedure, Fowler said in an interview.

At approximately 8:05 a.m., Olenick began to experience bradycardia, or a slowing of her heart rate, according to the lawsuit. “A little while later, the oxygen saturation in her blood started dropping,” Fowler said. Shortly thereafter, according to the autopsy report, Olenick went into hypoxic arrest.

The part of Ms. Olenick’s story that raised my eyebrows is how the patient showed bradycardia and then a little later showed a drop in oxygen saturation followed by hypoxia and cardiac arrest.  Bradycardia is a known side-effect of many anesthesia agents (consider this 1997 study on propofol), including Versed, which was likely used in the oral surgery procedure.  (On a comment on a blog called “No Midazolam,” it appears Ms. Olenick’s mother confirmed that Versed was one of the drugs used.)

Once a patient under anesthesia shows bradycardia, that’s a medical emergency, and action needs to be taken immediately. Here’s a medical malpractice case from Texas describing a similar situation:

[D]uring surgery, Mark had progressive bradycardia, an abnormally slow beating of the heart, which is a condition that is consistent with inadequate ventilation. This condition can lead to cardiac arrest. According to Dr. Fromm, if Mark was in good health before the operation and if he had been well-ventilated during surgery, he would have survived a sudden cardiac arrest during the surgery.

Adequate ventilation is critical during any surgery under general surgery, and I suspect that it contributed to Ms. Olenick’s brain damage, but another issue jumps out at me.Continue Reading Anesthesia Complications In Routine Surgery

Earlier this week, The Legal Intelligencer filed a report about the Pennsylvania Supreme Court’s hearing on the Scampone v. Highland Park Care Center case:

In the apparent headliner of last week’s Supreme Court oral arguments in Harrisburg — a case dealing with whether a nursing home can be held liable under the theory of corporate negligence — the attorneys representing the plaintiffs told the justices they simply wanted to hold it responsible.

It didn’t have to be “corporate negligence,” the lawyers told the justices.

The acknowledgment came after several on the high court bench asked Peter D. Giglione and Stephen Trzcinski, both representing the plaintiff in Scampone v. Highland Park Care Center, what was stopping them from suing nursing home Highland Park Care Center under ordinary negligence at common law. …

Giglione argued vicarious liability for the nursing home would not be sufficient because, in this case, it was the larger company making the decisions that led to the underlying problem.

The Pennsylvania Superior Court agreed with the Plaintiffs (that court’s opinion is available here).

It sounds like an argument that only lawyers could dream up: whether you can only sue a corporation for negligence or whether you can also for corporate negligence.  To understand why that question matters, and why the Pennsylvania Supreme Court should allow the survivors of nursing home abuse to sue managed care facilities for corporate negligence, we need to review some background. There’s more than enough misconceptions about nursing home litigation.

If John Roberts’ tenure as Chief Justice of the United States could be summed up in one sentence, it would be “corporations have all the same rights as real people, plus a couple more.”  The mere notion of corporate personhood is silly — a corporation exists to make money, and can be born, die, and merge with other corporations at will — but the law in most states treats corporations as if they were people. (Stephen Colbert rightfully wants to put “corporations are people” versus “only people are people” to a vote.)

That concept of the corporation as a single person can pose a problem when it comes time to hold companies accountable for the actions of many employees and affiliated corporations.  If the driver of the car speeds through a stop light and hits someone, it’s quite obvious where blame starts: the driver of the car.  It’s far more difficult to assign that sort of individual blame when, for example, multiple care managers at a residential care facility ignore a resident’s dehydration or infection.  Many nursing home companies deliberately try to evade responsibility for these types of systemic problems by operating their facilities through multiple shell companies, many of which are created for the sole purpose of frustrating residents’ families and lawyers in the course of a lawsuit.
Continue Reading Corporate Negligence vs. Vicarious Liability In Nursing Home Abuse Lawsuits

The Philadelphia Inquirer today profiles an issue of disturbing importance to doctors and malpractice insurance companies: the legal right to lie to patients with impunity.

Of course, they don’t describe it that way, they describe it like this:

Many doctors feel that an apology – accepting responsibility for errors, telling what went wrong – is a dramatic advance and the right thing to do since doctors have long been loath to admit mistakes.

But they say the trend will continue only if doctors know they can speak openly, without fear of being bludgeoned in a lawsuit.

“Isn’t that a little like testifying against yourself?” asked Jim Redmond, head of legislative affairs for the Hospital Association of Pennsylvania.

Let’s get one thing straight, Jim. I’m assuming you’re referring to the right against self-incrimination by mentioning “testifying against yourself.” That right protects criminal defendants from being punished for refusing to confess to their crimes. Outside of that narrow circumstance, people ‘testify against themselves’ all the time.

If you run a red light, hit someone, then jump out of your car and exclaim, “I’m so sorry, I didn’t see the light change, are you okay?” that can be used against you in court. If you slip and fall on an olive oil spill at the grocery store and the manager comes out and says, “We’re so sorry, somebody should have cleaned that up,” that can be used against them in court.

It’s pretty simple: with a few exceptions relating to constitutional rights, what people say outside of court matters inside court. Why? Because what people say matters in real life outside the courthouse. It matters that you admitted not seeing the light and the store manager admitted someone should be cleaning up the floor — do we want our courts to be nothing more than a collection of legal fictions with no relationship to the real world? Why should we pretend that someone didn’t say something they did?

It’s important that we all understand exactly what doctors, hospitals, and more importantly their insurance companies are demanding: they want a special exemption from a basic principle of law and evidence that’s applicable to everyone.

But there’s another, more insidious, issue underlying the “medical apology” lobbying. To see it, let’s dive into the facts of the case described by the Inquirer:

Destinee Lotoya Blake arrived in this world by cesarean section after doctors determined the umbilical cord was wrapped around her neck. At 29 weeks, she was small, weighing just 1 pound, 9 ounces. …

The newborn needed to be fed intravenously. Her doctor threaded a catheter no thicker than a human hair through her veins, intending it to stop where her biggest vein reached the heart. The nutritional fluid was so concentrated that it needed the largest possible vein and maximum amount of blood to dissolve safely into the bloodstream.

Her heart was the size of an adult thumb, and the catheter went a few millimeters too far, entering the heart. In the vein, the blood flow keeps the catheter away from the vessel wall. But inside the heart, blood doesn’t move as rapidly, and her catheter rested against a heart wall.

The fluid actually seeped through the wall, into the sac surrounding her heart. That sac began to fill with fluid – a teaspoonful, but enough to stop the heart.

A chest X-ray is always taken to confirm proper placement. But in Destinee’s case, the X-ray wasn’t read in time.

When processing the X-ray, the technician clicked on the wrong baby’s name, realized it, but when she clicked again on the correct name, a drop-down screen that normally auto-populates with data had to be filled in manually, which the technician wasn’t accustomed to doing.

She confused the birth date with the film date, since they were close together. As a result the X-ray wasn’t seen in a timely manner or in context.

That is blatant, unambiguous malpractice. When my twins were in the NICU, they, too, received intravenous feeding (“Total Parenteral Nutrition”), and indeed the technicians took dozens of x-rays every time the catheter was placed anywhere near the heart. It’s one of the more dangerous moments for the baby; everyone from the technicians to the nurses to the doctors knows that, and they’re supposed to be on guard.

An aside: in the comments to the Inquirer story, a number of readers make arguments like “At 29 weeks and 1.5 pounds, this baby should have never lived as long as it did. Hard to say but it’s true.” Rubbish. Destinee was small for gestational age, and she had a nuchal cord, but the odds were still in her favor. My twins were 26 weeks. One was 1.625 pounds and had a nuchal cord. Years later, they’re both alive and doing well. NIH has a tool for predicting outcomes in extremely premature children, and it tops out at 25 weeks because the odds of survival rise so rapidly after that.

In addition to the malpractice claim, there’s likely a ‘corporate negligence‘ claim against the hospital (see Thompson v. Nason Hosp., 591 A. 2d 703 (Pa. 1991)), too, for having inadequate procedures to confirm the x-ray was timely reviewed. Abington Memorial Hospital should have had adequate policies, procedures, and electronic health records systems to ensure that, even if the technician did make that type of mistake, the problem would be caught in time. Healthcare researchers often describe medical errors in terms of “the Swiss Cheese Model:”

The ideal system is analogous to a stack of slices of Swiss cheese. Consider the holes to be opportunities for a process to fail, and each of the slices as “defensive layers” in the process. An error may allow a problem to pass through a hole in one layer, but in the next layer the holes are in different places, and the problem should be caught.

In many ways, Destinee’s death was due more to the lack of enough “layers of cheese” than to the technician’s mistake. Humans are mortal. They make mistakes, have errors in judgment, and mix up dates and numbers. At a hospital is supposed to ensure that these mistakes don’t lead to tragic outcomes by implementing many “layers of cheese,” which Abington apparently failed to do here.

I write all of that so everyone reading knows that this case doesn’t involve much debate about the standard to which doctors are held. It was malpractice, pure and simple. 
Continue Reading Medical Apology Laws Are An Excuse To Avoid Doctors’ Ethical And Legal Duties To Patients

Misdiagnosis is the most common type of medical malpractice case – roughly one-quarter of all claims – and the failure to diagnose cancer is the most common form of misdiagnosis that results in a malpractice claim. (For those interested in the statistics, the most commonly missed cancers are breast cancer, colorectal cancer, and prostate cancer.) I thus spend a lot of time thinking and talking about cancer as part of my legal practice, but over the past two weeks it has seemed like cancer has been a part of almost everything I’ve read and discussed.

Last week, I had to tell a woman that, though I thought her doctor was negligent in failing to diagnose her ovarian cancer, I couldn’t bring a lawsuit on her behalf. As will be explained below, there’s a big difference between malpractice in patient care and proving a malpractice claim in court.

First, a couple words about Steve Jobs. Now that the initial grieving has ended, the big question has been asked several times: would Jobs have lived longer if he hadn’t delayed surgery?

Most medical experts who have discussed his case in public believe the answer is “yes.” MedPageToday rounded up a number of surgical oncologists opining that Jobs should have undergone surgery immediately — a conclusion implicitly backed by a paper Jobs’ own surgeon published in 2006, and by a related follow-up paper earlier this year — for reasons explained in detail by a post on Quora by medical researcher Ramzi Amri:

The big confusion in the media is that Jobs had pancreatic cancer. Though his tumor might have originated in his pancreas, we’re not speaking of the dreaded pancreatic adenocarcinoma that has such a horrible prognosis and makes up for 95% of pancreatic tumors.

Jobs is cited to have said himself that he had an islet-cell tumor, which is a colloquially used, less accurate name for the other 5% of pancreatic tumors, so-called neuroendocrine tumors.

Neuroendocrine tumors are relatively mild forms of cancer. …

Neuroendocrine tumors caught in time can be treated just by surgically removing the tumor.

This is a relatively low-risk treatment that — especially compared to chemo and radiation — has negligible disadvantages. In many cases, a simple enucleation (just cutting out the tumor with a safe margin around it) is enough and leaves no residual side-effects.

In short, Jobs’ “pancreatic cancer” was initially a gastroenteropancreatic neuroendocrine tumor that, although it interfered with his hormone levels, could have been treated by simply removing it and performing a resection of any parts of the pancreas he lost. It wasn’t just a matter of buying him a couple months or years, the treatment would have changed his prognosis considerably, adding years to his life, potentially leading him to live an ordinary life span.

Cancer Remission MisconceptionsBut that’s the strange part about cancer. Until we or someone close to us has gone through cancer treatment, we tend to see it as the process memorably described by the beginning of xkcd’s comic, “Lanes,” part of which is posted on the right.

Consider this article from last week in the Dayton Daily News:

Glenda Christian’s license plates on her Chrysler Town & Country minivan say it all: She proudly wears pink as 19-year breast cancer survivor. …

Although the cancer is in remission, the 54-year-old Washington Twp. resident is adamant in sharing her story to help raise breast cancer awareness in people of all ages and stress the importance of early detection.

After spending 3½ years with her cancer misdiagnosed, Christian is admirably upbeat in recounting the details of her illness and, in particular, how faith guided her through the arduous process of treatment. …

She was diagnosed with stage 3B estrogen-receptor-negative breast cancer.

She had a left mastectomy in 1992 and then chemotherapy. Since she tested positive for BRAC1 – a gene mutation that increases a woman’s risk for breast and/or ovarian cancer – she also had an elective right mastectomy and a hysterectomy in 2008. …

From the beginning, the outlook was grim. Christian was given a two-year survival rate of 50 percent.

In addition to being a survivor of cancer, Glenda Christian is also a survivor of blatant medical malpractice. She first noticed symptoms more than two years before she was properly diagnosed. A mammogram was done and she was cleared. A year later, another mammogram and an ultrasound, and another all-clear. Two separate exams, two failures to diagnose. It wasn’t until she had “cottage cheese-like lumps encompassing more than half of her left breast” that a different doctor diagnosed her with breast cancer.

By the odds, she should have died a long time ago. Yet she’s still here, despite having spent two years with her cancer undiagnosed, while Steve Jobs went a mere nine months refusing treatment of his then-largely-benign tumor and it spread throughout his pancreas and duodenum, requiring he get the dreaded Whipple procedure before dying seven years later.

Their differing outcomes aren’t just due to the differences between breast cancer and pancreatic cancer (or neuroendocrine tumors), but rather to the arbitrary tragedy of cancer.
Continue Reading The Arbitrary Tragedy of Cancer Misdiagnosis

As recently as twenty years ago, large parts of the medical establishment believed that neonatal Group B Streptococcus was rare disease that couldn’t be prevented or treated. Unsurprisingly, the failure to treat Group B Strep remains one of the leading causes of malpractice in labor and delivery.

Group B Strep was, and remains, the leading cause of meningitis and sepsis in newborns, but the American College of Obstetricians and Gynecologists (ACOG) and the American Academy of Pediatrics (AAP) didn’t even have any documents, much less guidelines, on Group B Strep prevention until 1991. In 1993, the Centers for Disease Control (CDC) found that Group B Strep screening was cost-effective. In 1996, the CDC, ACOG, and AAP finally published their first consensus statement on Group B Strep prevention, leading to formal guidelines in 1997. The GBSA has a timeline of its efforts explaining the considerable effort it took to get us where we are today.

As late as 1998, an editorial in American Family Physician still had to convince obstetricians and pediatricians that GBS was a real problem, and explain to them how to prevent it:

First and foremost, we must not ignore the problem. Neonatal group B streptococcal infection is more prevalent than many of the other conditions we screen for in pregnancy, and the effects can be just as devastating. Based on the importance of group B streptococcal infection, there are two possible principles governing our obligation to inform and to care for patients: One is to adhere to the community standard and the other is to provide care that any reasonable patient would want.

Both of these principles can be addressed by two linked steps. First, each practice or care system can develop and document a standard (or reasonable choice of standards) that is supported by current literature or by authoritative clinical guidelines. The CDC consensus recommendations provide some latitude for this, as noted in this editorial and in the article by Keenan. Second, inform patients, document that the information has been provided and provide the opportunity for questions, additional information and choices, when choices are appropriate.

That was just five years before Christian Arroyo was born. As the Seventh Circuit recounted in the Arroyo v. United States opinion last Thursday:

On May 16, 2003, Solorzano Arroyo went into labor. She went to Northwestern Memorial Hospital and gave birth to her son, Christian Arroyo in the early morning hours of May 17, 2003. Because Christian’s birth was more than a month premature, Solorzano Arroyo had not undergone the battery of diagnostic tests, including a test for Group B Streptococcus (GBS), that women typically undergo in the month prior to delivery. These diagnostic tests are extremely important, as they indicate whether an infant will be at risk of contracting any diseases from his or her mother’s blood during birth and allow health care practitioners to take steps to reduce the risks that such incidents will harm the infant.

When a mother has not had these diagnostic tests, medical professionals protect infants by utilizing a two-pronged approach. First, at the delivery stage, doctors are required to observe the presence or absence of four risk factors. Second, after the baby is born, doctors are required to be vigilant in looking for signs indicating the presence or absence of neonatal sepsis (a bacterial infection of the baby’s bloodstream). If a medical professional finds any indications of infection, then she must immediately administer antibiotics to prevent the spread of infection. Because GBS is fairly benign in adult s, mothers can carry it asymptomatically during pregnancy. Newborns can contract the disease during birth and, unless it is treated immediately, it can cause severe and permanent brain injuries.

Shortly after birth, Christian exhibited several symptoms indicating that exposure to his mother’s blood had infected him with GBS. However, the obstetrician and pediatrician responsible for taking care of Solorzano Arroyo failed to detect the infection and treat Christian with antibiotics. Because of this failure, Christian suffered severe and permanent brain injuries. If the doctors had promptly treated Christian, it is likely that the damage done to Christian’s brain would have been significantly reduced.

(Names of physicians omitted.) Christian developed cerebral palsy and is a spastic quadriplegic, requiring substantial additional medical care.

It wasn’t negligent for the physicians not to test for GBS that early in her pregnancy. Nonetheless, because she wasn’t tested before going into labor, the standard of care demands the physicians presume she has GBS and that the baby has been infected until symptoms show otherwise, and to treat at any sign of infection. The failure to do so was classic medical malpractice; said his lawyer, “At one point or another, he pretty much had almost every sign of the infection; at one point, the baby was not even able to see, which was a really bad sign.” Still, he wasn’t treated. Cutting edge to do so ten years ago, malpractice not to do so today. That’s how the standard of care in medicine advances.

Medical causation was similarly indisputable. As the CDC states, “A pregnant woman who tests positive for group B strep and gets antibiotics during labor has only a 1 in 4,000 chance of delivering a baby with group B strep disease, compared to a 1 in 200 chance if she does not get antibiotics during labor.” And that’s just for the antibiotics during labor; antibiotics immediately after birth lower the odds even further.

Recall how, just five years earlier even many doctors didn’t understand the dangers of Group B strep, how to prevent it, or how to treat it. Solorzano Arroyo didn’t know it could be prevented, either, and none of her treating physicians bothered to tell her that. (Any guesses why not?) It wasn’t until she saw a personal injury lawyer’s television ad mentioning that Group B Strep infections that she suspected the possibility of malpractice. She hired a lawyer and sued.

Because the obstetrician and pediatrician worked at a federally-funded clinic, they were immune under the Federal Tort Claims Act, and the United States government was substituted as a defendant. At a bench trial, a federal judge found the United States liable for $29 million in medical care, economic damages, and pain and suffering.

The United States didn’t challenge the finding of medical negligence, nor the size of the damages — it is very difficult to get a federal appellate court to overturn the purely factual findings of a federal district court — but instead claimed that the lawsuit was filed outside the statute of limitations.

There are good policy reasons for having a statute of limitations that bars claims at some point down the road, but none of those policy reasons applied here: the malpractice occurred in May of 2003 and the lawsuit was filed in December of 2005. All witnesses were still living and of sound mind. The medical records were all available.

Most states recognize the particular circumstances of malpractice injuries to children, and so extend the statute of limitations at least a few years, sometimes until the injured child reaches adulthood. Illinois extends the statute of limitations for children to eight years, or until the child turns 22. That extended statute would have applied if this was a normal medical malpractice lawsuit, but, as noted above, this case was against federal employees, so the stricter Federal Tort Claims Act rule applied, and thus the case was governed by the state’s statute of limitations for general personal injuries, despite the child-specific statute. (Strange, I know; the Federal Tort Claims Act is a strange beast, a handful of sentences that opened up a can of worms inside Pandora’s Box.)

The question, then, was when did the statute of limitations begin to run? Under the Federal Tort Claims Act, a claim accrues when the plaintiff discovers or  a reasonable person in the plaintiff’s position would have discovered, that he has been injured by an act or omission attributable to the government. W

e know that Solorzano Arroyo didn’t “discover” the negligence until, at the earliest, she saw the personal injury ad on television, but the question is when “a reasonable person” in her position would have “discovered” the negligence.

The government argued that, “from an objective standpoint, reasonably diligent persons are aware that infections can be prevented, particularly in hospital settings.” Did the Department of Justice take the time to review the history of GBS prevention and the scope of GBS educational efforts? Did they stop and consider that, if just five years earlier an editorial in a major medical journal was imploring doctors “not ignore the problem,” then maybe, just maybe, your average American might not know that the standard of care demanded Group B Strep be closely considered in all pre-delivery testing and, if found, treated with antibiotics?

Or did they just throw out whatever arguments they could, regardless of merit or justice?

Enter Judge Richard Posner.
Continue Reading When Does A Reasonable Person Suspect Medical Malpractice?

The New England Journal of Medicine released a new study in today’s issue, Malpractice Risk According to Physician Specialty, which concluded:

There are few recent estimates on the likelihood of malpractice claims and the size of payments according to physician specialty. Using physician-level malpractice claims from a nationwide liability insurer, we found substantial variability

…

Last month the American Journal of Medicine published a new study (“Longer Lengths of Stay and Higher Risk of Mortality among Inpatients of Physicians with More Years in Practice”) with the unexpected conclusion that hospitalized patients were more likely to die or stay long in the care of an experienced physician than in the care of a recent graduate from residency:

According to findings in the American Journal of Medicine, patients whose doctors had practiced for at least 20 years stayed longer in the hospital and were more likely to die compared to those whose doctors got their medical license in the past five years. …

Over the course of the study, there were 59 different attending physicians. The researchers divided them up based on how long they were practicing: five years or less, six to 10 years, 11 to 20 years, or more than 20 years. …

At first glance, compared to patients with the newest doctors, those with the most experienced physicians had more than a 70 percent increase in their odds of dying in the hospital and a 50 percent increase in their odds of dying within 30 days.

However, when the researchers took into account how sick the patients were, they found that only the sicker patients — those with complicated medical problems — were at higher risk in the hands of the more experienced doctors.

Southern’s group also found that while the doctor’s experience played a role in how long patients stayed in the hospital, it also mattered how many hospitalized patients he or she was taking care of.

When doctors weren’t very busy, they kept patients in the hospital for roughly the same average time no matter how many years of experience they had. But when they did have a lot of patients to see in the hospital, those with more than 20 years of experience kept patients there about half a day longer than their peers who’d been practicing for less than five years.

Description from Reuters. The authors suggested that the younger doctor’s “familiarity with more current guidelines and practices” explained the difference, and suggested requiring periodic re-certifications. Scepticemia notes some possible confounding variables and sample size issues, but on the whole the study’s conclusions look robust.

We have a fair amount of experience investigating medical mistakes around here, including malpractice by hospital residents, so let me offer another possibility.

There is a misunderstanding about medical malpractice law which goes like this: if a doctor is faced with multiple potential diagnoses and treatments and the doctor chooses the wrong one, the doctor will be liable for medical malpractice.

Such myth is not and has never been the law.
Continue Reading Medical Malpractice, Errors in Judgment, and The Beginner’s Mind

When I was in law school, I took Federal Courts, a notoriously difficult and complicated class, with Laura Little, who taught it with grace and style. (Law students, take note: she wrote a commercial outline with rave reviews.) Afterwards, I told her how much I liked the class, and asked her what I should take next (law students, again take note: great way to get recommendations for classes) and she pointed me to Michael Libonati, whom she said was “probably the smartest teacher on the faculty.”

With a recommendation like that, I dutifully took his State and Local Governments class, not realizing until I was in the class that it wasn’t merely an interest of his, but a subject on which he had written a four-volume treatise.

Anyone who studies State and Local Government law as a field comes quickly to a simple realization: there is even less “law” among states and municipalities than there is “international law” among nations. Every state conducts itself in an entirely different manner, and within states the law is changed to suit the circumstances. In Pennsylvania, for example, doesn’t have just cities or townships. As the Pennsylvania Legislator’s Municipal Deskbook says, Pennsylvania has one first class city, one second class city, one second class-A city, 53 third class cities, 961 boroughs, one incorporated town, 1,548 townships (91 first class; 1,457 second class), 501 school districts and 2,015 authorities, with different rules applicable to each of them.

That sort of diversity of legal relations isn’t necessarily a bad thing — Philadelphia, Pittsburgh, Harrisburg, Erie, Altoona, and rural communities with fewer than 5000 people are not merely different cities, but different types of cities, and so need to be governed differently — but it does make it exceedingly difficult to glean any sort of “legal principles” from the laws of states and local governments. Tailor-made law is more political policy than legal theory.

Before, during, and after law school I’ve always been a bit of a legal realist. At some point I was grousing to Prof. Libonati about a handful of state Supreme Court opinions about zoning law in which the wealthy real estate developers always on their challenges against the local boards but the individual homeowners always lost when I asked him, “is anything in the law real or are these opinions all just rationalizations?”

“Burdens are real,” he replied briskly as if he had considered and answered similar questions before. “Burdens decide cases.”

Which brings me to the inspiration for this post. I hadn’t intended to write again so recently about emergency medicine malpractice, but last week Walter Olson sent WhiteCoat the opinion in King v. St. Barnabas, a first-responder negligence case in which a New York appellate court reversed the trial court’s entry of summary judgment in favor of the defendants. As the opinion recounted:

In this case, involving allegedly negligent resuscitation efforts by a team of first responders, we revisit the vexing question of the degree of certainty necessary to establish legal or proximate cause in a medical malpractice action.

By definition, victims requiring resuscitation are found in grave condition from which the likelihood of recovery may be negligible. These circumstances, however, cannot excuse first responders from all responsibility when they fail to abide by professional standards. Negligent resuscitation attempts — while not a but-for cause of the victim’s distress — may nonetheless contribute to a death so as to make the imposition of liability appropriate. …

In February 2009, defendants moved for summary judgment dismissing the complaint, arguing that the opinion of their medical expert established that the emergency medical treatment rendered to Murray was within accepted medical standards, and, in any event, had not contributed to his death.

[Defendants’ board-certified emergency physician expert] noted that when the first responders arrived on the scene, they found Murray to be in an asystolic state. He noted that “asystole is an ominous finding in victims of cardiac arrest in which the heart stops beating and is characterized by the absence of electrical and mechanical activity in the heart,” and opined that the possibility of survival from such a state “is extremely rare, especially in the absence of immediate bystander CPR.”

WhiteCoat wasn’t happy. Most everyone, WhiteCoat included (I think), agrees that it’s negligent to administer electrical defibrillation to an asystolic rhythm. Instead, it’s the standard of care to begin CPR, provide supplemental oxygen, and add intravenous lines to administer epinephrine and atropine. WhiteCoat attacks the causal connection between that error and the decedent’s death: the decedent was asystole, which is essentially dead anyway, and the odds of recovering from that — even with proper treatment — are miniscule. As WhiteCoat put it, the defendants were being sued for not performing a miracle.Continue Reading The Burden Of Proof: A Matter Of Life And Death