How to Find a Democratic Doctor in Florida – check the sign on their door

Health care reform – no, not tort reform – advocates be aware – especially if you live in Florida.  A new trend or just a single quack?

The NY Times ran a piece yesterday about the now infamous urologist in Florida, Dr. Jack Cassell, who posted a sign on his door that says, “If you voted for Obama, seek urologic care elsewhere. Changes to your healthcare begin right now. Not in four years.”                                  

Well there’s free speech and then there’s outright stupidity.  If there were an award for Quack of the Month, Dr. Cassell would win hands-down.  I understand being opposed to what is commonly now referred to as Omamacare; however, this doctor is over-the-top.

Perhaps my favorite quote in the article is the following:

In an interview with The Orlando Sentinel, he insisted that he would not refuse to treat a patient because of politics. “That would be unethical,” he said.

Unethical?  Surprised he understands the concept.  Perhaps now when we show up at our health care provider’s office, we’ll not only be asked for the usual information such as name, address, health history and chief complaint but also “who did you vote for in the last presidential election?”

Did Dr. Cassell ever hear about exercising his right of free speech through an editorial?  The physician-patient relationship is supposed to be based on trust.  How do you trust a doctor who tells you ‘at his front door’ – you are not welcome here if you are an Obama supporter.

UPDATE:  after posting this, I came across a blog from Anderson Cooper’s 360 inviting comments on this issue.  Yes, I waded in on the topic having seen some of the ‘interesting comments’ by some who agree with Cassell.

My second favorite quote from the Times article reads – “Dr. Cassell, 56, could not be reached for comment. The phone at his office was continuously busy Friday, and the doors were locked before 4 p.m.”  Maybe and hopefully they were locked so early because a large percentage of his patient population is democrat!

Get real, Doc!  Rendering quality care to your patients is what should be happening in your hallowed office, not using your front door as a pulpit for political rhetoric.

Malpractice Reform — New England Journal of Medicine – New Alternatives Analyzed

There is a thought-provoking article in the New England Journal of Medicine entitled “Malpractice Reform — Opportunities for Leadership by Health Care Institutions and Liability Insurers,” which was posted online on March 31, 2010.  In essence, the authors suggest that health care institutions and insurers not wait for national tort reform legislation (“a political gridlock”) but rather become leaders in the development of alternative methods for “providing compensation for medical injuries.”

While the concept is somewhat intriguing, the methods discussed are in many instances nothing but a privatization of tort reform at its worst. Each “alternative method” will be examined seriatim.  

The overall concept seems to be rooted in what is commonly referred to as the “disclosure-and-offer” approach.  Three models are discussed: the reimbursement model, the early-settlement model and health courts.

Please refer to the article itself for a more thorough description of these models.  The length of this blog is concerning enough.

In essence, with the “reimbursement model, institutions offer to (as the name denotes) reimburse patients for some out-of-pocket expenses related to the injury and for “loss of time.”  Typically, there are pre-determined limits for each category,which often are $25,000 for expenses and $5,000 for loss of time. Clear cases of negligence, fatal injuries, cases that are the subject of a lawsuit or where an attorney is invovled are excluded from the program.  There is no investigation into “possible provider negligence” in this matters. Patients who accept money do not waive their right to sue.

As a general comment, this plan makes the most sense but does not really deal with the infamously named “malpractice crisis” to any large extent.  First, most cases of medical malpractice that make their way to the courthouse could not conceivably fall within these financial parameters.  If a malpractice lawyer takes on a case with $30,000 in special damages (economic losses such as medical bills and lost wages), that lawyer needs to reassess their intake procedures. Given the economics of costs of litigation (not fees), mandatory reimbursements such as Medicare and Medicaid, liens from private insurers and the like, it would be foolhardy for a lawyer to become involved in such matters since the client’s net recovery would be non-existent.  What does make sense, however, is no-fault reimbursement to patients with minor, non-permanent injuries as a sign of goodwill by the providers of health care.  In that respect, the “reimbursement model” is a good program – given its express limitations.

Another major defect in this “reimbursement model” is the premise that there is no “investigation into possible provider negligence.”  If I am reading this correctly (none of the hospitals with which I am familiar in our geographical area have such plans presently; therefore, I am not certain how this works), the risk manager or claims person simply decides to write-off the loss as potentially a cost-savings measure.  One of the positive features of our current litigation system (when meritorious cases are brought) is that it does serve to correct errors in the health care delivery system.  When a major injury case is brought, many valuable lessons are learned by providers of health care.  Whether there is a “system problem” or just a dangerous method of practice at play, people do (unless they are completely arrogant and/or dense) learn lessons so that other patients do not suffer the same harm. One of the goals of the medical profession in analyzing, handing and resolving cases of medical errors is to identify problems and take steps to correct those problems for future injury avoidance.  An entire essay, rather than a blog, could be devoted (and maybe will be) to this concept of the health care industry policing itself through conscientious, rigorous self-appraisal and correction when wrongs are identified.

The “early-settlement” model is described in the NEJM article as follows: “no preset limits on compensation,” but compensation is not offered unless the institution, “after an expedited investigation, determines that the care was inappropriate.”  Offers may include compensation for all elements of damage – economic as well as non-economic (e.g. pain and suffering) damages.  To accept the money, the patient must agree that such payment constitutes a “final settlement” – thus obviating the bringing of a lawsuit.

More research into this ‘early-settlement” model is called for since the NEJM article does not go into other critical details associated with such an approach.  Since the model was “pioneered by the self-insured University of Michigan Health System,” I intend to devote a separate writing to this program once more research on its possible limitations and efficacy has been accomplished.

Suffice it to say for the present that if such a model precludes attorney involvement, then this is a fatal flaw.  The reason individuals come to a lawyer when tragedy occurs in the medical context is because those of us who specialize in this area of law know and understand (1) what  proper claims should be made and (2) what the fair and reasonable parameters of just compensation are for the victims of medical malpractice.  Sure, one can take a jaded approach and scoff – “All the lawyer wants is a fee and that’s why you are against this model”  Simply not so.  A substantially reduced fee arrangement may well be in order in such instances.  If the client is at least properly represented and the case is handled expeditiously and the compensation is fair and reasonable, then I for one believe that a reduced fee is in order which would further benefit the patient/client.

That’s not the full story, however, when it comes to discussing this so-called model.

In our current system of medical malpractice litigation, the system would work a whole lot better and be much less expensive and be much more efficient if these same principles were applied to the current claims handling practices of insurers and self-insured health care providers.

One of the largest drawbacks  for both the health care system and for the patient/client are the costs associated with medical malpractice litigation.  I recently wrote a blog regarding the issue of costs and their effect on the so-called malpractice crisis.  When clear-cut cases of medical negligence exist and are ignored or denied by risk management or insurance claims  personnel, the costs sky-rocket.  The health care insurer or provider hires counsel at an hourly rate to defend the case.  Discovery in the form of record production, depositions and the like proceed with sickening and dollar-wasting frustration for the plaintiff lawyers and their clients.  Cases slog along unmercifully through the system for months if not years. If you have a clue what you are doing as an experienced medical malpractice lawyer, you have a pretty good sense of what cases have merit and which do not.  Of course, no one is infallible, but for the most part, “good cases almost try themselves.”

Applying the principles of the “early settlement” model to what exists in today’s world of medical malpractice, I suspect that nationally, on an annual basis, billions of dollars would be saved in ridding our system of the needless waste of money in defending cases that should have been resolved early in the process.  Why not take the principles of this model and apply them to what exists in the current system?  That’s what the health insurance industry should have been doing years before now.  Did they need a new “model” to tell them that? If insurers took a more responsible approach by fairly and honestly assessing these cases and did so in an “expeditious” fashion, our courts would not be clogged with needless litigation, the health care industry would save enormous amounts of money, and – most important – patients would be justly and timely compensated.  If only the public knew just how much waste there is in our current system due to the lack of due diligence and timely claims handling, they would perhaps have a more balanced approach to this ‘discussion’ of tort reform.

Institutions and insurers that are responsible in their claims handling practice are not the problem.  Fortunately, in my work for  years as a defense lawyer, I had the privilege of working for one such organization. Unfortunately, they are not in the majority.  I would love to see figures of defense costs (fees and expenses) on those cases that are ultimately settled or unsuccessfully defended.  I have zero doubt that those numbers are staggering.  If those fees and costs were substantially reduced through conscientious and timely claims handling, we might well not be having this discussion of tort reform in the first place.  When critics say blame the plaintiff lawyers – they may have half the phrase right – just not the right adjective.  A fuller discussion of the abject waste due to poor claims handling and delaying tactics by the defense bar is the subject for future consideration.

Finally, the infamous option of the ‘health courts.’  Succinctly stated (in the interest of relative blog-brevity), the essentials are described in part as follows:

A panel of experts, aided by decision guidelines,determines whether the injury was avoidable — a determination that turns on whether the injury would ordinarily have occurred if the care had been provided by the best specialist or an optimal health care system; the avoidability standard is more generous than the negligence standard. For avoidable injuries, the institutionoffers full recompense for economic losses plus an amount for pain and suffering according to a predetermined compensation schedule that is based on injury severity.

Various alternatives for this model are discussed in the NEJM article and include items such as making the program voluntary, permitting limited appeals to some extent and so on.  As one reads further, however, repugnant elements start rearing their ugly heads.  Just some of these components of the ‘health court’ system proposal are (1) waivers of the right to file a lawsuit “as a contractual condition of receiving care,” (2) so-called “decision guidelines,”  and (3) “predetermined compensation schedules.”

Waivers of right to a jury trial as a condition to receiving care screams “void for being against public policy.”  Who is advising a patient in need of care what his or her rights are when signing a waiver. Can’t you just picture the following scenario?  Mr. Jones is clutching his chest in the ED and before care is rendered he’s asked, “Would you like to receive care here?  If so, you will need to sign this waiver form.”

Predetermined schedules of compensation?  Is this a euphemism for contractually created caps?

The NEJM article raises some valid issues and concerns. A great deal more thought of how to fix the system is warranted.  The answer may well  lie in the underlying approach being advocated in the article – malpractice reform should be self-initiating for health care institutions and liability insurers.  They should take a leadership role and not sit passively on the sideline shouting the same old song – “We need caps….Our system is about to crumble…It’s all the fault of the greedy plaintiff lawyers!”  Maybe a new model is in order – grab a mirror and examine how to better police your own claims-handling practices.  Stop wasting everyone’s time and money through poor claims practices.  Expeditiously and honestly assess claims.  Offer fair compensation early in the process.  Maybe if the health care and insurance industries tried fixing their own practices in the framework of the current system of civil justice, these endless calls for restricting injured patient’s rights might stop and the so-called crisis just might be averted.  Ever consider working with the plaintiff malpractice bar….or is just a lot easier blaming them?

Expanding The Role Of Nurse Practitioners: Licence To Practice Medicine Without A License

An article published by NPR comments on the nationwide movement to expand the role of nurse practitioners in light of the growing deficit of primary care physicians. According to the article:

Nursing leaders say large numbers of [nurse practitioners] …will be needed to fill gaps in primary care left by an increasing shortage of doctors, a problem that would intensify if Congress extends health insurance to millions more Americans. Advocates say nurse practitioners have the extra education and training needed to perform a variety of services, including physical exams, diagnosis and treatment of common ailments and prescribing drugs.

A study published by the Center for Workforce Studies projects that, by 2025, there will be a nationwide shortage of about 124,000 physicians. Researchers note:

Under any set of plausible assumptions, the United States is likely to face a growing shortage of physicians. Due to population growth, aging and other factors, demand will outpace supply through at least 2025. Simply educating and training more physicians will not be enough to address these shortages. Complex changes such as improving efficiency, reconfiguring the way some services are delivered and making better use of our physicians will also be needed.

Based on this rationale, a number nursing organizations, state level legislators, regulatory bodies, and various other national organizations and policy thinktanks advocate for an expanded role, particularly in the field of primary care, for nurse practitioners. According to the article, a number of states have already implemented or are presently considering legislation to expand the role of nurse practitioners. For example, a Colorado bill would enable nurse practitioners to issue orders in the same way as a physician. Practically speaking, this would mean that a nurse practitioner, in addition to being able to order medications, would also be able to issue orders directing the treatment of the patient (e.g., orders to admit the patient, CT/MRI orders, consultation orders, etc.)

While these proposed reforms may be practical and serve a utilitarian purpose, one can’t help but wonder if the quality of health care rendered to millions of Americans is going to be compromised as a consequence. The easy answer is not always the right answer. It may be true that there are more nurse practitioners in the U.S. than there are physicians (there are about 125,000 more nurse practitioners). If allowed, nurse practitioners could certainly fill the void. But, the critical inquiry remains: are nurse practitioners sufficiently qualified to serve as substitutes for physicians? For example,

The American Medical Association (AMA) and doctors’ groups at the state level have been urging state legislators and licensing authorities to move cautiously, arguing that patient care could be compromised.

The AMA issued a report in which it questioned whether nurse practitioners are sufficiently qualified to render medical care in areas currently restricted to physicians.

“To back up its claims, the report cites recent studies that question the prescription methods of some nurse practitioners, as well as a survey that reported only 10 percent of nurse practitioners questioned felt well prepared to practice primary care.”

The idea that nurse practitioners are qualified to serve as substitutes for physicians it truly worrisome. There is a reason why nurse practitioners are not physicians – they don’t have the same level of training and expertise. Surely, there are patients with fairly simple medical complaints, which probably could be addressed by nurse practitioners; however, what about the inevitable complex patient? Are nurse practitioners sufficiently trained to simultaneously recognize the interplay of multiple medical conditions, as well as determine the interplay of necessary medications, radiographic studies and necessary follow up care? I for one will make sure to be seen by a physician.

Contributing author: Jon Stefanuca

Tort Reform – Tennessee Style: ER doctors back bill ‘redefining’ malpractice – NO KIDDING!

As I was going through the listings and hashtags on my TweetDeck yesterday, I came across this tweet from a report in a Tennessee online publication – Emergency doctors back bill redefining malpractice | tennessean.com | The Tennessean. While I don’t practice in Tennessee, any trend in legislative changes affecting a patient’s right of access to the legal system is on my watch list.  

Here’s the essence of the proposed legislation according to this article:

Under the bill filed last month, the definition of medical malpractice would be changed from “negligence” to “gross negligence,” which would raise the bar for mistakes that could trigger a lawsuit.

To put this in context, Maryland and the District of Columbia, where I am licensed to practice, have many times defined “gross negligence.”  Those definitions are precisely what caused a chill to run up and down my spine when I saw the proposed change to Tennessee’s malpractice law.

In Maryland there is legislation called the Good Samaritan Act and the Fire and Rescue Company Act, which essentially provides in relevant part that in an emergency setting, only extraordinary or outrageous conduct by a person giving assistance or medical care in an emergency, or by a member of a fire company or rescue company, can be termed “gross negligence.”  For the lawyers among you, see, e.g. McCoy v Hatmaker, 763 A2d 1233 (2000).

In the District of Columbia, one case that gives multiple but somewhat common definitions for  ‘gross negligence is D.C. v Walker, 689 A2d 40 (D.C. 1997):

[Gross negligence is] [t]he failure to exercise even slight care,” and “such negligence as would shock fair-minded men.”Shea v. Fridley, 123 A.2d 358, 363 (D.C.1956).  Similarly, the United States Court of Appeals for this circuit has stated that “gross negligence implies an ‘extreme departure from the ordinary standard of care.’ ” Wager v. Pro, 195 U.S.App. D.C. 423, 428, 603 F.2d 1005, 1010 (1979).  We have applied Maryland law to define gross negligence in the driving context as “a wanton or reckless disregard for human life or for the rights of others,” and “indifference to the consequences … [which] implies malice and evil intention.” Hall v. Hague, 257 A.2d 221, 223 (D.C.1969).  * * * And our federal court of appeals, applying what it apparently perceived to be District law, has said that, “[t]o constitute willful or wanton negligence, the police actions must involve ‘such reckless disregard of security and right as to imply bad faith.’ ”      

And just what is the alleged justification for this ‘gross negligence’ in ER’s standard being proposed?  Well here you go:

“In my personal practice, if I knew that I couldn’t be sued except for things that I truly believe I should get sued over, I could eliminate half of my lab tests, two-thirds of my X-rays and 90 percent of my CT scans because all of those tests are done for my protection, not the patient’s,” said Dr. Andy Walker, a local emergency physician and vice president of the Tennessee chapter of the American Academy of Emergency Medicine. “For TennCare patients, of course, the Tennessee taxpayer is paying for that.”

Yeah – that’s my emphasis added to the above quote.  Is this doctor kidding?  He does twice the number of labs, three times the number of x-rays and ninety percent of the CT scans he orders – to protect himself, not the patient?  And his litmus test for getting sued is what?  – “… things that I truly believe I should get sued over.”  Maybe when the Senate Committee is done investigating the ‘stents controversy’ at St. Joseph Medical Center in Maryland, they can take a look at what’s going on in Tennessee!

Using this wonderful test – “I should only get sued for what I believe is malpractice” – I am pretty confident that  there won’t be much medical malpractice litigation concerning ER care in the state of Tennessee should this wonderful piece of legislation go through.

Perhaps I should also make you aware that there is also pending in the legislature of this state a cap on non-economic damages.   If you are wondering at what amount they want such damages capped – it’s $1,000,000.  Apparently, however, the lobbyists for the medical profession really would like to see such damages capped at $300,000 since they believe such a low figure would “take away the profit motive of trial lawyers.”

I wonder if this double-pronged legislative initiative isn’t a variant on the old shell game.  Throw enough legislation out there and negotiate to get at least one of them passed.

Tell you what – I won’t be moving our firm to Tennessee any time soon.

N.J. doctors will gain easier access to paperwork via web | New Jersey Business – – NJ.com

Here’s an encouraging report from the The Star-Ledger’s online  service –N.J. doctors will gain easier access to paperwork via web | New Jersey Business – – NJ.com.

In essence, now that Congress has apparently come to a screeching halt on health care reform, two trade groups for the health insurance industry, America’s Health Insurance Plans and the Blue Cross and Blue Shield Association, have rolled out a plan that will provide “doctors’ offices with a single way of accessing dozens of different health plans administered by five major insurers, including Aetna, UnitedHealthcare and Horizon Blue Cross Blue Shield New Jersey.”  Apparently, these five insurers represent 95% of people in NJ with private insurance.  The plan is similar to one started earlier in Ohio.  “The program works by using a single website operated by Colorado-based Navinet, which is the nation’s largest healthcare communications network.”

“The ultimate goal is to have state-wide or regional-wide portals that span the country,’’ said Susan Pisano, spokeswoman for America’s Health Insurance Plans.

Christy Bell, senior vice president of healthcare management at Horizon Blue Cross Blue Shield New Jersey, said yesterday during a conference call announcing the program that one physician estimated his office spends between $60,000 and $100,000 a year just handling administrative issues — or required paperwork.

“We think we can remove a quarter to a third of those costs through streamlining and standardization,’’ Bell said.

Who said private industry, when left to its own devices, isn’t smarter and more efficient that Congress?