When the Feds Come Knocking

Slightly over a year ago, the Department of Justice (DOJ) launched an investigation of a large number of institutions regarding concerns that implantable cardiac defibrillator (ICD) procedures were performed for reasons outside of the criteria set forth in Medicare’s National Coverage Decision (NCD).  This investigation occurred just after Al-Khatib and others published a report January 4, 2011 in JAMA that suggested as many as 22.5% of implantable defibrillators implanted for primary prevention of sudden death were not evidence-based.  While the physician community took issue with the Al-Khatib paper, the media firestorm it generated paired with the announcement to the Heart Rhythm Society physician community that a federal investigation was underway, had a chilling effect on ICD implantation nationwide.  Drs. Jonathan S.Steinberg and Suneet Mittal report on their experience with DOJ investigators under this heavy regulatory oversight in today’s Journal of the American College of Cardiology.

Steinberg and Mittal's diplomatic account carefully describes the challenges of retrospective audits performed by lawyers from the Department of Justice and those of their targeted health care facilities. The DOJ identified 229 cases as potentially inappropriate cases based on Medicare code criteria.  (This represented 8.7% of the de novo non-resynchronization ICD implants done for primary prevention at their institutions). After determining that some of these targeted cases were actually for secondary prevention or other coding transgressions, the authors could medically justify all but thirty-four (15%)  (or a very low 1.5% of all ICD’s implanted for primary prevention of sudden death) at their institution.  As has been the case in most reports, the majority of outside NCD-directed ICD implants occurred because of timing violations—too close to the diagnosis of heart failure, heart attack and coronary intervention. These timing constraints constitute the primary issue before implanting doctors: their professional society guidelines do not -- in all cases -- recognize similar timing restrictions.

It is surprising that we are not told what sanctions, if any, were levied against their respective institutions.   Perhaps the authors felt this important detail was unimportant to disclose or perhaps they were prohibited from doing so.  Perhaps their penalty is still being determined: after all, nothing drives behavior like fear.  To this end, we found the authors' compliments of the government's legal team unusual to report in a scientific manuscript, as if the they were suffering from Stockholm Syndrome.

We should acknowledge that the authors have added much needed clarity to the gray area of decision-making surrounding ICD implantation. Their explanations of timing violations highlight problems with coding, confusion around incidental PCI intervention in patients with dilated cardiomyopathy, and demonstrate the overlap decisions that must be made when bradycardia and tachycardia functions might be required for our patients.  This kind of clinically-relevant nuance was lacking in the impugnable Al-Khatib JAMA piece.

We can only speculate the large cost of the legal fees and man-hours devoted to this review process.  We will never know how many patients died during, or now after, the course of this investigation because they were not offered ICDs because ICDs can only be offered to patients who meet Medicare’s rigid, outdated, and still-to-be-updated National Coverage Decision for implantable defibrillators.   But perhaps this is the price of regulation that America is willing to pay in return for cost savings.  Perhaps we should not be concerned that professional guidelines for care delivery should be second fiddle to government mandates for ICD implantation.

With this latest report, a new era for medical practice is now upon us – one where priorities of low cost care and high quantity of care determined by non-medical personnel supersede the highest quality of medical care to our patients.   For regulators, it is easy to be a Monday-morning armchair quarterback evaluating health care delivery.  It is far harder, however, to decide prospectively who is likely to die (or not) when they sit before you with a newly-diagnosed cardiomyopathy and ejection fraction of 12%. 

When government and legal officials who carry no responsibility for the long-term well-being of our patients have the authority to retrospectively impugn and penalize doctors (and their health care facilities) based merely on retrospective reviews of billing codes and outdated payment mandates, they risk irrevocable harm to patients who might qualify for devices according to updated professional guidelines.  Doctors everywhere should stand up collectively to disown the practice of using NCD mandates, rather than updated professional guidelines, to determine appropriate care for patients.

After all, our patients are depending on us.

Westby G. Fisher, MD
Director, Cardiac Electrophysiology
NorthShoreUniversity Health System and
Clinical Associate Professor of Medicine
Pritzker School of Medicine, University of Chicago
Evanston, IL

John Mandrola, MD
Cardiac Electrophysiologist
Baptist Medical Associates
Louisville, KY

Addendum 27 Mar 2012: Link to Steinberg/Mittal article finally added.

Addendum 14 Sep 2012: Update on the DOJ Decision

References:

Jonathan S. Steinberg and Suneet Mittal. "The Federal Audit of Implantable Cardioverter-Defibrillator Implants: Lessons Learned." J Am Coll Cardiol. April 3, 2012, 59 (14) 1270-4. doi: 10.1016/j.jacc.2011.12.026

Epstein AE, DiMarco JP, Ellenbogen KA, et al. ACC/AHA/HRS 2008 guidelines for device-based therapy of cardiac rhythm abnormalities. J Am Coll Cardiol. May 27, 2008;51(21):e1-62.

Al-Khatib S, Hellkamp A, Curtis J, et al. Non–Evidence-Based ICD Implantations in the United States JAMA. 2011;305(1):43-49. doi: 10.1001/jama.2010.1915

Note: This post also appears on Dr. John Mandrola's blog: http://www.drjohnm.org/

Connecticut Cardiologists Insist On Malpractice Reform

Cardiologists in Connecticut are standing up to the lack of liability protection in the state's new low-income health plan called SustiNet:

The SustiNet program would create large pools of people, including those who can't currently afford health insurance, that would theoretically drive down premium costs by competing with the plans of private insurers. Among other cost savings, it would designate a single doctor or practice for each patient, to reduce emergency care use, and create new "best-use" procedures for a variety of ailments to reduce the number of tests doctors order.

But a key provision of the plan was that doctors, in return for following the new procedures and ordering fewer tests, would be protected from malpractice suits if the outcome of a case was not favorable for the patient. However, with backing from the Connecticut Trial Lawyers Association, that provision was removed from the SustiNet bill two weeks ago.

Cardiologists are considered a particularly important group for the new best-use procedures because they tend to order a battery of expensive tests when patients show signs of heart trouble. If specialists like them failed to participate in the SustiNet program, cutting medical costs could be more difficult.

On Tuesday, the Connecticut chapter of the American College of Cardiology withdrew its support for the bill and said that it would circulate an open letter to House Speaker Christopher G. Donovan and Gov. Dannel P. Malloy saying that it could not support the bill without the malpractice protection.

As screws continue to get tightened on doctors' ability to order tests thanks to third-party oversight bodies, look for more physicians to play hardball about liability limits at both the state AND national levels.

Doctors are being forced to do do their part to control health care costs as a result of our increasingly government-controlled health care initiatives. It's high time for the trial lawyers' to do the same. And there's already precedent to doing so: just look to the legal protections military doctors enjoy when caring for their members. While legal recourse still exists in the military, the challenge of suing the government on behalf of their employees thwarts frivolous claims.

-Wes

Why Lawyers Will Get Every Heart Test Known to Man

... because if you don't predict the unpredictable, they sue:

A doctor failed to see that former Tompkins County District Attorney George Dentes had heart disease, and this professional negligence led to Dentes' fatal heart attack in October 2006, his widow is alleging in a medical malpractice suit starting in county court this week.

Dr. Jonathan Mauser of Cayuga Cardiology Associates P.C. improperly interpreted Dentes' April 2005 stress echocardiogram, failed to suspect that Dentes had coronary artery disease and failed to recommend or perform a cardiac catheterization to confirm it, Elsie Dentes claims in the suit. Mauser and Cayuga Cardiology Associates are named as defendants.

Remember, the doctor did not give this patient heart disease, God did.

While I do not know the circumstances surrounding the case in question, it is clear that our society increasingly accepts that all diseases are preventable, life is limitless, and all tests we perform perfect. Of course, none of these are true. Yet when something doesn't follow the Western psyche's playbook, someone has to pay. All too often, that someone is the doctor.

This, my friends, is why doctors will continue to order every test known to man... as this case exemplifies, there is simply no incentive to do otherwise.

-Wes

Could a Heart Attack During A Trial Help a Defendent in Court?

Perhaps:

Assistant U.S. Attorney Christopher Graveline wrote in a motion that after the judge told the jury about the heart attack “many jurors in their body language and facial expressions, rightly expressed concern for Mr. Cicchetti.” The prosecutor said the government did not object to the judge telling the jury about the heart attack because it assumed that Cicchetti would be prosecuted later before a different jury.

“It is only natural for the jury to feel sympathy for Mr. Cicchetti’s condition and this sympathy may well play into its consideration of the evidence against Mr. Cicchetti especially in light of his defense that he is a sick harmless older man who is only guilty of loving motorcycles and cocaine.”

“The government believes that allowing Mr. Cicchetti to continue in absentia would prejudice its ability to have a fair hearing and that there would be a high probability that an extrinsic factor, i.e. the defendant’s health, could affect the jury’s decision rather than the evidence presented in court.”

-Wes

Illinois Supreme Court Strikes Down Medical Malpractice Caps

From Crain's Chicago Business:

The Illinois Supreme Court on Thursday struck down limits on jury awards in medical malpractice cases passed by the Legislature four years ago amid spiking liability costs for medical providers.

The court ruled that the caps on pain and suffering and other non-economic damages — $500,000 per case for doctors and $1 million for hospitals — are unconstitutional.

The court’s opinion upholds a 2007 ruling by a Cook County Circuit Court judge determining that the law violated the Illinois Constitution’s “separation of powers” clause, essentially finding that lawmakers interfered with the right of juries to determine fair damages.

It’s the third time the state’s high court has quashed limits on medical malpractice awards, having tossed out similar laws in 1976 and 1997.

The ruling is a blow to physicians, hospitals and malpractice insurers, who successfully argued in 2005 that frivolous lawsuits and runaway jury verdicts were driving up insurance rates and forcing physicians to leave the state.

Another blow to health care tort reform...

-Wes

The New Health Care Crisis: Dueling Burger Joints

Heart Stoppers Sports Bar versus Heart Attack Grill:

A bed pan full of Cheese Chest Pain Fries is just one of several medically themed items on the menu here at Heart Stoppers Sports Grill in Delray Beach.

Anyone 350 pounds or over gets a free meal. Owner and Paramedic Iggy Lena came up with the idea.

The challenge burger is three pounds. And those who fail ... well, there's a special place for them here...the morgue!

But not everyone is laughing.

The owners of Heart Attack Grill in Chandler, Arizona filed a federal lawsuit.

Their lawyer says Heartstoppers is using many of the medical theme elements that heart attack originated.

Lena's attorney says the two restaurants have separate concepts. The restaurant in Arizona uses high choloric food as a gimmick and here in Delray Beach, they focus on medical themed equipment with something on the menu for everyone, vegetarians, young and old.

The lawsuit was filed last week.

God bless America.

-Wes

Our Upside Down Medical Liability Crisis

I had an interesting visit with the husband of my niece last evening. He works as an ER doctor that is self-insured group of 60 physicians that cover the ER needs of four hospitals in Clark County near Las Vegas.

What is interesting is they are self-insured to save costs. As a group, then, they know how much per patient they must collect to assure liability care for every patient that comes to their emergency rooms.


That amount is $17 per patient per visit.

Guess how much their group receives for care they render to a Medicaid patient for a "level two" visit (minor problem: ear ache, sore throat, etc.)

Fourteen dollars per visit.

(Note: Medicare level two patients pay considerably better (about four times as much)).

When liability costs exceed the payments received for the care provided to those most in need, it's interesting that our legal and political forces in Washington see no need for liability reform as part of our larger health care reform efforts underway.

-Wes

If Lawyers Billed Like Doctors

Imagine if lawyers had to bill like doctors:

Beginning July 1, 2010, under the Legal Billing Obfuscation Act of 2009, lawyers will receive their payments for services rendered after approval by a central US government Payment Distribution Authority (USPDA). To receive payment from the Authority plaintiff and defendant complaints must be coded and filed electronically using the International Classification of Legal Complaints, 10th edition (ICLD-10), copyright © 2009, American Bar Association and Legal Proceeding Terminology (LPT) codes, copyright © 2009 American Bar Association. The full publication of each of these codes will be available in print March 1st 2010 and in electronic form on DVD in July 2011.

To familiarize lawyers with the new coding scheme requested by the USPDA, a small sample for the complaint of “Spilling” is shown below:

• Spilling 200
• Spilling, Water – 210
• Spilling, Water, Hot – 211
• with blisters 211.1
• without blisters 211.2
• Spilling, Water, Warm – 212
• Spilling, Water, Cold – 213
.
.
.
• Spilling, Coffee - 240.1
• Spilling, Coffee, Hot - 240.11
Spilling, Coffee, Hot, With Cream only - 240.12
• with blisters - 240.121
• without blisters 240.122
• Spilling, Coffee, Hot, With Regular Milk only – 240.13
• Spilling, Coffee, Hot, With 2% milk only – 240.14
• Spilling, Coffee, Hot, With Skim Milk – 240.15
• Spilling, Coffee, Hot, With Soy milk only 240.16
• Spilling, Coffee, Hot, With Sugar only - 240.17
Spilling, Coffee, Hot, With Artificial Sweetner (of any type, including, but not limited to Nutrasweet, Spenda, Sweet ‘n Low) – 240.18
• Spilling, Coffee, Hot, With Cream and Sugar 240.16
.
.
.

Pairing of improper complaint codes with legal proceeding codes will result in non-payment. “Up-coding” of legal proceedings shall constitute grounds for prosecution with some additional fines imposed by the IRS, as determined by the Office of Health and Human Services. For instance, pairing a legal complaint of “Spilling, Coffee, Hot, with blisters” to and of those of Divorce, same gender, living apart, male (or female) (shown below) will result in non-payment.

• Divorce: 100-199
• Between husband and wife 100.1
• Between same gender couple, living together, male, 100.011
• Between same gender couple, living together, female, 100.012
• Between same gender couple, living apart, male, 100.021
• Between same gender couple, living apart, female, 100.022
.
.
.

Valid code pairings for spillage include Accident codes (0010-0059), Assault codes (4400-4499), or Battery codes (5500-5599) provided documentation supports the requests for payment.

-Wes

On The Defensive

A scenario:

Dr. Wes: "I wonder if I could treat a pregnant woman, 36 weeks gestation, who wants to breast feed, is hemodynamically stable but has atrial fibrillation with rapid ventricular response unresponsive to digoxin/beta blockers, with short-acting Ibutilide?"

Dr. Google: "Several case reports exist treating pregnant patients with atrial fibrillation and atrial flutter without injury to mother or fetus and with no adverse effects."

The Obstetrician: "What's ibutilide?"

The Neonatologist: "Ibutilide? Has teratogenic potential at high dose in animals, including cleft lip and scoliosis, but at 36 weeks?...Maybe... Let me check with a pediatric electrophysiologist..."

Pediatric electrophysiologist: "We've used it in kids, but very cautiously... Never in pregnancy."

Pharmacist: "We have some concern, given the lack of human data."

ACC Guidelines 2006-Atrial fibrillation in Pregnancy(pdf): (Level of evidence: II-b or not II-b): "Ancient ineffective antiarrhyhmic drugs like quinidine sulfate or procainamide are generally thought to be safe in pregnancy."

Guess which drug I used?

Although I'm not proud of this, I caved to the paranoia. She stayed in the hospital another 18 hours because of it. A small price to pay, I suppose, but I am convinced I did not render the best care, just the safest care... for me.

It never ceases to amaze me how the threat of litigation constantly influences the medical care we deliver.

-Wes

Missing Judgement

A while back, I gave an EKG challenge to the blog-o-sphere to review an EKG of a young man who presented to the Emergency Room for evaluation of shortness of breath and lightheadedness unrelated to exertion. After posting the EKG, I got all kinds of answers for the young man's ailment, but most failed to guess the gist of the exercise: that the EKG was normal.

It is interesting to ponder why.

In medical school, we are trained to develop a differential diagnosis to any and all symptoms before us. Heck, I can remember the pneumonic "VINDICATES" that allowed me to spew forth such great diseases caused by vascular, infectious, neoplastic, degenerative, iatrogenic, congenital, autoimmune, traumatic, endocrine or neurologic ("squash") causes for virtually any unusual finding on a chest x-ray or lab test. It's how we were trained. Think of everything. Don't you dare miss anything, lest you be judged incompetent in the Court of Public Humiliation on rounds with your Chief Resident or Attending. Cover all the bases. Your patient depends on it.

More senior and experienced attendings usually performed the same exercise, albeit at lightning speed. They quickly consulted their vast experiential database to prioritize the most likely diagnosis, leading to a razor-like ability to hone in on the problem and affect proper treatment. Nine time out of ten they were right on, and we stood in awe. Years ago, that was good enough. Attendings were appreciated for their remarkable accuracy but permitted the professional courtesy of occassionally missing a diagnosis. Naturally as residents, we relished the moment when we got it right when the attending didn't: those cases were always presented as "The Case of the Week" conference on Fridays where we rehashed the play-by-play of our diagnostic acumen. It was how we learned.

But with the evolution of the information era, the remarkable improvements in radiologic image quality and test performance, and the speed with which those images and test results are acquired and reported, deductive reasoning and judgement in our Emergency Rooms and offices based on careful history and physical examination has given way to a plethora of testing. God forbid you miss something. Better to shot-gun it rather than limit it. It is far easier to explain a negative test finding than a missed diagnosis. But what about the unexpected findings of, say, a positive troponin from a person with an inflamed toe from gout? Should a cardiologist be consulted? What are the risks to the doctor if there is a heart attack underway?

With the constant drumbeats of "quality" and "safety" echoing in doctors' heads coupled with shortened office visits and overriding liability concerns, a psychology of professional protectionism has come to trump judgement. There simply is no reward for proper judgment in our system, even though there are lots of reasons for false positive troponins. But it is difficult to explain this to a concerned patient and only huge financial and emotional downsides if you're wrong.

So the cardiologist is consulted, the echo obtained, and the nuclear treadmill performed, even as our judgment tells us otherwise.

It's just too risky to do otherwise. After all, it only takes one subpoena.

But as we limit doctors' salaries, drug costs, restrict certain testing (as much as we can), and limit hospital stays as much as we can through policy after policy, we must ask ourselves why we consistently fail to limit liability as the costs continue to spiral ever higher.

Up and up and up.

But limiting liability would require some judgement now, wouldn't it?

-Wes

Tort Conform

South Dakota Senator Tom Daschle as Health and Human Services director?

At least the American Heart Association is pleased, stating:

"... We commend Senators Baker, Daschle, Dole and Mitchell for their commitment to develop and promote policies aimed at providing all Americans access to high-quality, affordable health care."

And it looks like the trial lawyers will be happy, too.

*Sigh*

So much for tort reform any time soon.

-Wes

Should You Have Blogging Insurance?

Digital Pathology Blog contemplates his liability needs as a blogger. I would encourage this given my experience, particularly if "whistle-blowing" or ranting occurs on your blog. Some offerings for bloggers insurance are mentioned here. I'm still shopping options and readers will likely see advertising creep in to my blog to offset expenses.

I'd also encourage all bloggers to understand the legal definitions of defamation, slander, and libel.

-Wes

References:

My Problem: "Bloggers Beware"
Where I try to decide if I should continue blogging: "So Now What?"
From the Daily News / Opinions: "Bloggers Must Learn A New World Order to Win Fans, Respect"
Electronic Frontier Foundation Cyberslapp Website.

A Conversation: The Legal Morass Caused by the EMR

"The thing I hate about the Electronic Medical Record (EMR) is my name is always there for instant recall, even if I've surrendered by care to another physician."

"Why's that?" I asked, naively.

"Well, once I was subpoenaed in a malpractice case that occurred in 2006. I last saw the patient in question in 2002. But because the lawyers asked for a copy of the medical record, the entire dump of the patient's record was provided. The lawyers took note of every treating physician in this patient's care, irrespective of treating date, and filed subpoenas for 'discovery depositions.' I had to hire a lawyer, respond, and was later released from the case, but not after significant financial and emotional anguish."

"Sheesh. I had no idea it could get that bad...", I said.

"Yep. I just wish there was a statute of limitations about how far back a lawyer could ask for a medical record to avoid these fishing expeditions..."

-Wes

Digitek and Heparin Suits - Forthcoming?

In-pharma Technologist.com has a good review of the Wyeth v. Levine case before the Supreme Court that, like the Riegel v Medtronic case for the medical device industry, will rule if FDA approval of pharmaceutical manufacturing and labeling processes would preempt state liability claims from the recent digitek (digoxin) and heparin manufacturing problems.

-Wes

Kickback Quandary

Does a $119,000 kickback from a hospital to a referring cardiologist justify the $2.5 million dollar fine the Feds want to impose?

The federal government yesterday filed a civil lawsuit against an Essex County physician, accusing him of participating in an illegal kickback scheme at the University of Medicine and Dentistry of New Jersey, which has already led to the criminal convictions of two other doctors.

According to the suit filed by the U.S. Attorney's Office, cardiologist Atul Prakash of Cedar Grove violated federal Medicare statutes, committed fraud and submitted false statements by illegally referring more than 30 patients to UMDNJ's University Hospital in Newark in return for $119,000 in payments.

The suit seeks triple reimburse ment of Prakash's salary as well as financial penalties that could exceed $2.5 million.

"There are still others who engaged in the same conduct, and we will use both criminal and civil remedies as needed to achieve justice and the return of money received by fraud," U.S. Attorney Christopher Christie said.

I guess it's justified in the government's eyes if they want to pay for even more investigations.

This issue of "self-referral" is a murky one. If payments for referrals is illegal, then why isn't the profit-sharing amongst members of the same large multi-specialty medical group who refer to each other considered a form of kickback? No, this is okay. But when a separate entity like a hospital dares to "profit-share" in return for referrals, it's illegal.

I guess multiple standards can be imposed when the government needs money.

-Wes

Lawyer Jokes

Three general surgeons are in the locker room after a long day's work. Two were younger, energetic types; the other, more senior. One of the younger surgeons asked:

"Hey, what's your favorite patient to work on?"

"Oh, hell, that's easy," said the youngest surgeon. "I like engineers. You open them up and all of the parts are labelled numerically. To put them back together you just connect the parts labeled '1' to the other part labeled '1', '2' to '2', and so forth."

The other younger surgeon piped in, "I like artists for the same reason. They're all color-coded. You connect the red pieces, the yellow pieces, the green pieces and so forth."

The crusty old surgeon had heard enough. As he was straightening his tie, he said, "You're all full of shi*. Everyone knows that the best patients to work on are lawyers. Hell, the only have two parts, a mouth and an a**hole, and they're both interchangeable."

I heard this joke years ago. Chuckled, and moved on. No doubt there's plenty of similar jokes about doctors.

But in an interview with the director of media and public relations with the Allegheny County Bar Association, they asked, "What are you going to do about lawyer jokes?"

Seriously.

It seems the Allegheny Bar Association is concerned about this survey:

In a 2002 survey by the American Bar Association, only 19 percent of 450 individuals polled said they had extreme or high confidence in the legal profession. Lawyers ranked second-lowest in the study, just above the media, which garnered a vote of confidence from only 16 percent of those surveyed.

Some of the reasons lawyers aren't respected, according to the survey: They "are more interested in winning than seeing justice served;" "spend too much time finding technicalities to get criminals released;" and are "more interested in making money than in serving their clients."

Most of my neighbors are lawyers. They are very nice people. Really. But lawyers can bill for their time, right down to the minute. The rest of the world gets paid by the hour, but lawyers get paid by the minute. Lawyers are smart and have an inside edge to the legal system here in America, and know how to sue. And they sue sometimes for ridiculously big sums.

But now it's spreading to the Pennsylvania Bar Association, too:

The Pennsylvania Bar Association is also tackling the image issue. It has retained a Philadelphia media consultant to create a three-commercial campaign that will air beginning in April on CBS television affiliates in Pittsburgh and Philadelphia, an ABC affiliate in Erie, and on cable stations in central parts of the state.

...

The state bar -- with about $400,000 to spend on its campaign -- also plans radio spots and an improved Web site to get its message out.

So does a marketing campaign by the Allegheny and Pennsylvania Bar Associations that serves to add additional expense to the already high minute-by-minute wages for lawyers and might be considered a "frivolous" concern serve to help or hurt their profession?

-Wes

Disclaimer: The Information made available at the Site is provided on an “AS IS” and “AS AVAILABLE” basis without warranties of any kind, either express or implied, including, without limitation, warranties of title, noninfringement, and implied warranties of merchantability or fitness for a particular purpose. Without limiting the generality of the foregoing, the Author makes no warranty, representation or guaranty as to the content, sequence, accuracy, timeliness or completeness of the Information, that the Information may be relied upon for any reason or that the Information will be uninterrupted or error free or that any defects can or will be corrected.

Without limiting the generality of the foregoing, the Author makes no representations or warranties with respect to any Information offered or provided within or through the Site regarding treatment of medical conditions, action, or application of medication.

Under no circumstances, as a result of your use of the Site, will the Author be liable to you or to any other person for any direct, indirect, special, incidental, exemplary, consequential or other damages under any legal theory, including, without limitation, tort, contract, strict liability or otherwise, even if advised of the possibility of such damages. Without limiting the generality of the foregoing, the Author shall have absolutely no liability in connection with the Site for:

1. damages as a result of lost profits, loss of good will, work stoppage, failure of performance, delays in operation or transmission, nondelivery of information, deletions of files, mistakes, defects, errors, interruptions or computer failure or malfunction;

2. any loss or injury caused, in whole or in part, by the Author’s actions, omissions, or negligence, or for contingencies beyond the Author’s control, in procuring, compiling, or delivering the Information;

3. any errors, omissions, or inaccuracies in the Information regardless of how caused, or delays or interruptions in delivery of the Information; or

4. any decision made or action taken or not taken in reliance upon the Information.

Thanks, Kevin for the legal help.

And hat tip to Overlawyered.com.

Patient Blogs Make HIPAA Unenforceable

HIPAA, the Health Insurance Portability and Accountability Act of 1996, contains privacy provisions that provide "protection" of patient's health care information to assure that health care providers, health plans, and health care clearinghouses don't leak such sensitive information in a public forum. You see, our legislature felt that doctors and health care providers might use such information to the detriment of our patients, so they made this law to allow government to reassure others that Big Brother could do a better job at protecting your privacy.

But now comes another realization: patient's family members might leak the informaton instead.

Patient blogs are now the rage at local hospitals here in Chicago, detailing play-by-play accounts of health care delivery and histories on patients themselves. You see, patients aren't covered by HIPAA. They can say what ever they want about themselves. But sometimes the patient isn't the one posting on the patient's blog, family members were, dutifully updating the daily progress of their loved one to the world.

"Many people have been inquiring about him so I would like to share some information with everyone," said the first in a series of near-daily updates posted by Nequin's wife, Dawn.

She described in detail how her husband had slipped on ice March 6 while walking the family dog, hit his head on the sidewalk and, nearly three hours later, asked to be taken to the hospital, complaining of a headache and weakness in his leg.

"Within minutes he was having a CAT scan, and in a few more minutes we knew he had a brain bleed," she wrote.

And companies providing these patient weblogs and message boards are springing up like 17-year cicadas:

TLContact Inc., the Northwest Side company that oversees CarePages, has created more than 50,000 such pages, according to a spokeswoman. CaringBridge, a competing service based near Minneapolis, and theStatus.com, a third major competitor based in Anchorage, claim roughly the same numbers of pages, most of them generated in the last few years as word has spread about their availability.

"Most people don't find out about them until a friend goes into the hospital and starts one," said theStatus founder Mark Pierson.

Such sites have been around nearly 10 years, are free, easy to use and fairly secure -- families can control access to them via passwords and invitation lists. Though the companies contract with hospitals for branding and promotional purposes, any patient anywhere can sign up and use any of the services.

They relieve family members and patients of the tedious job of telling the same story over and over, while the accompanying message areas become a forum for encouragement and prayers.

They offer an advantage for health-care professionals as well. Having the family post updates online allows them to skirt the awkwardness and even legal peril that newly stringent medical privacy regulations have added to such simple questions as "How's he doing?"

So in the future, if doctors or insurers get accused of violating the HIPAA provisions, they'll just look stupid and say, "Hey, I just read what I know about him on his patient blog!"

-Wes

Post Virginia Tech: HIPAA Implications

Walter Olson reviews the implications of Health Insurance Portability and Accountability Act of 1996 (HIPAA) following the Virginia Tech massacre:

Under HIPAA’s terms, doctors and other covered persons who improperly release information about identifiable persons’ health care are subject to fines and even prison terms of up to ten years. That a disclosure is well-meaning rather than malicious is no defence: disclosures to patients’ own parents or roommates, as well as disclosures to other medical or custodial institutions, can very much trigger liability; and the exact scope of what is deemed proper disclosure is by no means precisely defined.

Unintended consequences soon blossomed, in large quantity. Frantic family members dialed emergency rooms in vain seeking confirmation that their unconscious loved ones were there. Preferring to play it safe, some hospitals removed patients’ names from doors. Clergy were ordered not to drop in on ill parishioners unless on specific request. Wider areas within clinics were closed off to unescorted visitors; Santa Claus could drop by only with a proper release form on hand for each ailing child.

Infringement of medical privacy is a lamentable thing, but experience soon suggested that other things can be even worse. After a Washington, D. C. pedestrian was fatally struck by a car, his family learned nothing of it for two weeks until a $17,000 hospital bill arrived in the mail. In rural Colorado, where ambulance dispatchers had been casually accustomed to naming the family whose home needed a run (get over to the Wilson ranch, Vern is having chest pains) it was thought advisable to rely on unfamiliar street addresses instead, leaving drivers to fumble.

In my experience, if a referring clinic knows me they will send a patient's records without requiring written authorization for release of records from the patient. Are they breaking the law by releasing this information to me without a "consent form" being signed?

Technically, I suppose they are.

Yet here we are, forced to comply with a mandate that isn't enforced, has significant limitations, and in many ways limits the quality of health care delivery.

-Wes

On Doctors Saying They're Sorry

"If you cut, you bleed."

So said a sage surgical colleague of mine. He was referring, of course, to the fact that unfortunate outcomes are part of what we do as doctors. No one is perfect. No invasive procedure without risks and no two cases are alike or medical co-morbidities the same. Doctors who "cut" usually spend significant time explaining the procedure, its inherent risks, and possible outcomes - hopefully good, but sometimes, not so good. Even in the best of hands, unfortunate outcomes do occur.

But as hard as it may be for many to realize, a bad outcome does not always mean that malpractice occurred during the course of a procedure. When unfortunate outcomes occur, I still believe it is appropriate to say you're sorry. Doctors are humans too, after all, and most care deeply about their patients.

Risk managers seem to welcome doctors speaking with patients after a mishap and saying they're sorry.

The wave of "I'm sorry" laws is part of a movement in the medical industry to encourage doctors to promptly and fully inform patients of errors and, when warranted, to apologize. Some hospitals say apologies help defuse patient anger and stave off lawsuits.

A law in Vermont exempts only oral statements of regret or apology, not written ones. Illinois gives doctors a 72-hour window to safely apologize after they learn about the cause of a medical mishap.

But malpractice insurers are not thrilled with the risks inherent to this procedure:

Boston-based ProMutual Group, which insures 18,000 doctors, dentists and health care facilities in the Northeast, warns its clients against apologies that admit guilt -- even in states that have laws protecting doctors who say they are sorry.

It distributes a tip sheet cautioning doctors against uttering the words "error," "mistake," "fault" or "negligence."

"We encourage physicians to apologize about the outcome, not necessarily for any error that may have occurred," ProMutual spokeswoman Nina Akerley said. "Apology is not about confession."

But the real reason risk managers are eager for doctors to fess up early is not to show our altruistic side, I've learned. It's actually about legal statute of limitations.

(Chicago Tribune) On average, the states took 15 to 24 months before a medical injury was reported to insurance carriers. For Illinois and Nevada, it took 67 months on average to close after injury.

"Several factors influence the decision concerning when to file a medical malpractice claim, including statute of limitations restrictions and the need to ascertain various medical, work-related, and pain and suffering expenses," the authors said.

In Illinois, the minute a doctor acknowledges that there was a problem, a hidden clock starts that lasts three years. You see defense attorneys know about the bungled system of justice here in the US, and once an admission of responsibility about an injury occurs, plaintiffs have three years to have the case tried. And given my experience with how long it took a civil suit to wind its way to the courthouse, I can see why there's a push by risk managers to have doctors disclose.

-Wes

Reference: US Department of Justice Bureau of Justice Statistics: Medical Malpractice Insurance Claims in Seven States, 2000-2004.

Confessions of a Prospective Juror

If you ever want to get out of a jury duty on a personal injury case, just tell ‘em you’re a doctor.

Being a neophyte to the judicial system, I found today’s brief experience interesting: just herd a bunch of bodies into a room, show them a quick video, and violá, you’re a juror!

Then you wait. I had drawn a '#6' from a big tin can as I entered and discovered I was with Group 6 of the juror pool. It didn’t take long until our group number was called with two other groups, forming one Big Group. “Well, at least I’ll see how this works,” I thought. We were soon headed off to a courtroom two-by-two and took our seats.

The case to review involved a rear end vehicular collision – your basic civil case – no blood-and-guts criminal case for me. (Thank goodness). We were cautioned that this was the real deal - no Judge Judy or Law and Order or any other drama - just the drama between two individuals with one trying to get compensated, handsomely, for a rear-end collision and another individual trying to send the other packing with nothing.

I realized from the outset I identified with the defendant. After all, a car accident happened, didn't it? But the plaintiff's lawyer was careful to never say that word... no, he was going to try to determine if there was negligence and malice on the part of the defendant. It's not okay to have an accident on the road. Everyone must be perfect - everyone must know the "Rules of the Road."

I swept the room. Both the plaintiff and defendant seemed like solid citizens. Both appeared to ambulate without difficulty (each had to retire to the restroom once). Both seemed to hate each other (glares were exchanged on more than one occassion). My diagnostic eye was in overdrive - I examined the plaintiff carefully accross the room: gait normal, uses both hands without difficulty, turns head without difficulty, leans forward to speak to her lawyer without screaming, no rubbing of the neck, posture appropriate. In retrospect, it's probably best to avoid the diagnostic endeavor, but it's hard - it's like a moth being drawn to the flame...

Needless to say, I was rejected before getting out of the starting block.

“It says here that you’re a physician?”

“Yes”

“What kind?”

“A cardiac electrophysiologist.”

Puzzled, the lawyer asks, “Is that like a cardiologist?”

“Yes, sir – an electrician for the heart if you will.”

“Have you ever treated patients for injuries after car accidents?”

“Yes, I used to be an emergency room physician for the United States Navy and treated many patients involved in car accidents.”

“Thank you, that will be all.”

Booooiiinnnggggg. Damn. Bounced out like a SuperBall on a hot, dry pavement. But it was still fun to see and participate in the process. I did get to sit through the jury selection process and observe. Soon the Lucky 14 were selected and we were dismissed. Here are a few of my revelations from my brief experience:

1) The accident involved occurred in 2002, and it’s now worked its way to a juried trial in 2007. Damn that’s a long time. I can’t imagine what the legal fees had been so far.

2) The verbal and communication skills coupled with the appearance of the lawyers matters greatly – at least to this prospective juror. The plaintiff’s lawyer remained seated during questioning of the jurors; the defense lawyer stood as he asked his questions – somehow, the defense attorney came off as more confident and secure.

3) Even where the jurors sat mattered, for reasons that were not clear to me.

4) Great lengths were made to assure the selection of jurors was truly random.

5) $17.20 is not enough pay per day for jurors.

6) In my non-scientific study, 14 initial jurors selected, ten (71%) had been in an auto accident some time in their life, and five (36%) had been involved in litigation for one of these accidents. Seems not everyone is perfect after all. Certainly, people have the right to sue their fellowman in our great country, and defendants have the right to due process. There will always be appropriate suits filed. But there still seems to lurk in the back of my head a feeling (especially when such potentially large sums are to be bestowed on the plaintiff while the defendant is happy to walk away with hefty legal fees), biases me to think that many try to take advantage of the system to make a buck. Lawyers, it seems, will never go out of business.

But the system as it is, worked. Although I did not get to stay for the trial, I pondered what I had been though. Somewhat reluctantly I reflected on the day and despite it all, I still feel damn proud of the judiciary here in the good ol' U.S. of A.

-Wes