Recently, a federal court judge dismissed a lawsuit that an Ohio woman filed claiming that a hospital did not safeguard her EMR (electronic medical records). In an interesting twist, the woman alleged that her husband, who worked at the hospital, was able to access her EMR and share them with a co-worker. This was not just any co-worker. Allegedly, it was a co-worker with whom the husband was having an [...]
Let's be honest. Selfies are fun. They are great ways of capturing the moment. Like my daughter and I on the merry-go-round at FunPlex this summer. Selfies can also get you in lots of trouble. I can honestly say I have never had a doctor or other health care provider ask whether taking a selfie during surgery is a good idea. It's not. As some doctors in China recently discovered. [...]
It is not unusual for a doctor to be asked to sign a contact governing his or her employment and/or ownership of a business as a doctor. The issues to consider in reviewing these contracts are many: - Med mal insurance - Staffing (nurses, assistants, etc) - Provision of medical equipment - Billing - Compensation structure - Employee versus owner - Non complete clauses - Non solicitation clauses - Scope of [...]
Surgeons: how would you like every move of the surgeries you perform recorded with a “black box” type device? Such a device would make a record of every movement during a surgery, and potentially, provide real-time feedback to identify mistakes. Not only would it record the surgery itself, it could record every word uttered by the medical team during a surgery. The potential and hopeful benefits include improved results and reduced [...]
In a case decided in June of 2014 described as “landmark,” the Washington Supreme Court held in favor of a physician as to claims of lack of informed consent. Generally, informed consent addresses the need for a physician to advise the patient of the risks, benefits and alternatives to certain treatment or procedures for a medical condition before the care is undertaken. The usual standard is then that a reasonably [...]
Earlier, I blogged about two NMC employees being fired for viewing Dr. Sacara’s medical records without authorization. Dr. Sacara had been treated for Ebola at NMC. Recently, a man in Texas was diagnosed with Ebola. This is different from Dr. Sacara, who was being treated at NMC for Ebola. In other words, NMC knew of Dr. Sacara’s condition. The Texas patient contacted Ebola in Liberia, traveled to the United States [...]
It happed in California several weeks ago. After 2 ½ days of jury deliberation, the jury awarded a $4 million verdict against a hospital for allegedly covering up the cause of the post-operative death of a patient. The jury did not find that the hospital committed malpractice and did not award punitive damages (which cannot be awarded in Nebraska). The patient had a surgical cervical disc. Post operatively he had [...]
A hospital in Connecticut recently reported a drastic drop in both claims made and settlements paid after a safety training regime aided by the hospital’s med-mal insurer. In 2004, the hospital joined with its med-mal insurer in an effort to increase patient safety and in turn decrease claims made and amounts paid. Here’s what they did: - standardized care, - implemented new teamwork protocols, and - enhanced oversight of clinical [...]
A recent report by CNN indicates that John Hopkins has agreed to a whooping $190 million settlement in a case involving a gynecologist who was alleged to have secretly photographed and recorded his more than 7000 patients. Dr. Nikita Levy was fired in February 2013 after the Baltimore based health care system discovered he had been using a pen-like camera around his neck to snap photographs of patients. A diligent co-worker suspected [...]
A recent report by the Rand Corporation, sponsored by the U.S. Department of Health and Human Services, concludes that the cost of medical malpractice insurance may actually increase under the Affordable Care Act a/k/a Obamacare. The increase could be up to 5% in some areas, although this is an early and inexact estimate. According to David Auerbach, the study's lead author and a policy researcher at RAND, “the Affordable Care Act [...]
It's time for my somewhat regular update regarding the latest state to address the constitutionality of caps on damages in medical malpractice lawsuits. Previously, I have discussed Kansas and Missouri and their judicial treatment of such caps. In its recent decision, the Florida Supreme Court threw out the state's statutory cap on non-economic damages in medical malpractice cases as violating the Equal Protection Clause of Florida's Constitution. In a blistering [...]
Gov. Dave Heineman vetoed Legislative Bill 916, which would have allowed nurse practitioners to practice without a supervising doctor. Currently, Nebraska state law requires nurse practitioners to have a practice agreement with a doctor. Gov. Heineman has made sure that continues. According to the Omaha World Herald, the supporters of LB 916 claim that the current model - requiring NPs to have a supervising doctor - contributes to a shortage [...]
REO Speedwagon might have been discussing the Nebraska Supreme Court's recent opinion in C.E. v. Prairie Fields Family Medicine, P.C., 287 Neb. 667 (2014) in their famous song, "Take it on the Run." The Prairie Fields case dealt with the issue of whether a patient could sue a medical provider for intentional and negligent infliction of emotional distress for the alleged unauthorized disclosure of that patient's testing positive for HIV. In [...]
Who would have ever thought that President Obama would appear on "Between Two Ferns with Zach Galifianakis" on the Funny or Die website. See the video here. Obama was there to pitch, what else, Obamacare. To do so, he had to answer the following questions painfully posed by Galifianakis: "What is it like to be the last black president?" "What should be done about North Ikea?" Obama was not without [...]
What is thought to be one of the most common vehicles for spreading germs in a hospital? The answer might surprise you: the white lab coat. Also ranking high are neck ties and wrist watches worn by health care practitioners. The Society for Healthcare Epidemiology of America has released new guidelines suggesting that the white lab coat be eliminated altogether or hung on an outside hook prior to entering a patient’s [...]
In an opinion released last week by the Nebraska Supreme Court, it indicated that a forensic pathologist who performed a poor autopsy could be liable for malicious prosecution when that autopsy formed part of the basis of criminal charges against a daycare provider. In McKinney v. Okoye, 287 Neb. 261 (2014) the Nebraska Supreme Court considered a malicious prosecution claim brought against a forensic pathologist whose testimony contributed to charges [...]
The Omaha World Herald recently reported that Nebraska has seen a surge in applicants for coverage under the Affordable Health Care Act aka Obamacare. In its article, Obamacare: Health Plan Enrollment Surges in Iowa, Nebraska, the World Herald reports that, in Nebraska, 14,464 people had enrolled in a plan by the end of December. That's more than seven times as many as the 1,965 Nebraskans who had enrolled through the [...]
Six people. That's the number of people who registered with the new healthcare website on Day 1 of its unveiling. Documents released yesterday by the House of Representatives showed this number modestly increased to 248 individuals successfully enrolled on Day 2 of the rollout. These numbers shine a light on the rocky introduction of President Obama's health care legislation to the American people. Criticisms of the new healthcare law include the [...]
The government shutdown impacted more than most people would think, including, as Sarah Macdissi noted in her last post, food safety. During the government shutdown, all inspections of domestic food except meat and poultry were halted: the Centers for Disease Control and Prevention furloughed more than two-thirds of its workers. What did this mean? No issuing of daily updates on global outbreaks to world health officials; 9 of 10 global disease detection systems [...]
The obvious and immediate impacts of the government shut down are visible before everyone’s eyes – the closing of the national parks, federally owned museums, IRS call centers advising taxpayers and offices handling federal grants, and the furloughing of thousands of federal employees. What’s not so visible is the impact on America’s already vulnerable healthcare system. No, I am not talking about the hot button topic of Obamacare here. What [...]
October 1, 2013 marks the anticipated start of open enrollment for health care products offered on state health care exchanges. The federal government has a website to help potential health insurance buyers choose an insurance plan. Expect the Internet's version of a long line (delays, error messages and glitches). It took me 30 minutes to get past the following message: We have a lot of visitors on our site right [...]
Diagram published by the CDC. Last week I discussed a report issued by the Centers for Diseases Control (“CDC”) that addressed the ever increasing prevalence of antibiotic resistance. One author, commenting on the potential demise of antibiotics, went as far as to compare a modern post antibiotic era to the plight of our ancestors during the “Black Death.” Piling on, the CDC declared antimicrobial resistance to be “one [...]
Aetna, in announcing last week that it will not participate in the state-based health insurance exchange in New Jersey, is just the latest insurer to pull out of such exchanges. A big deal? Maybe. As noted by CNN, while Aetna has 1.1 million customers, just 2600, that’s .2 per cent, buy individual plans. But, this could signal a larger trend. Neither Aetna nor Conventry Health Plans will be represented on [...]
Going into effect earlier this month, the Physician Payments Sunshine Act will require pharmaceutical companies to report most of the payments and gifts they give to doctors and teaching hospitals. The major exception to the Physician Payments Sunshine Act? Compensation from businesses to doctors speaking at accredited, continuing medical education events. According to The Wall Street Journal, information regarding payments from pharmaceutical companies to doctors and teaching hospitals will be [...]
A twenty-year-old nursing student had finally realized her dream and was caring for patients on her pediatric oncology rotation. She fell in love with the courage of her young patients. One patient, in particular, captured her heart. She took a picture of the three-year-old boy grinning from ear-to-ear despite his chemotherapy. When she posted the picture to her Facebook page, she put the following caption: "This is my 3-year-old leukemia [...]
A growing number of doctors are declining to participate in the Medicare health program, due in part to disagreements with the program’s rate policies and an ever increasing list of regulations. The current number of doctors refusing to accept Medicare may still be an immaterial figure; however, this growing trend should be cause for alarm. For the first time, the agency administering the Medicare program has released figures documenting this [...]
Does inadvertent disclosure of protected health information keep you up at night? It should. Unlawful disclosure, or allowing unauthorized access to protected health information, case be costly. Since 2009, 65,000 breach reports, where protected health information is exposed or wrongfully accessed, have been filed with Health and Human Services Office of Civil Rights. The vast majority of these breaches do not lead to any type of formal enforcement action. But the Office of [...]
More and more doctors are selling their practices due to rising business expenses and shrinking payouts from insurers. The buyers? Hospitals. According to a recent article from CNN, Doctors Bail out on their Practices, the number of physicians selling their practices to hospitals is up 30% to 40% in the last five years. In the normal transaction, the selling doctor will then become an employee of the hospital along with [...]
One of the little discussed features of the Affordable Care Act (better known in some circles, for better or worse, as Obamacare) is the authorization of federal funds to be given to states so that they can set up test programs that experiment with ways to reduce Medicaid costs. One such program is underway in Oregon and is receiving positive preliminary reviews. The program establishes "coordinated care organizations" to care [...]
On Tuesday, the U.S. Treasury Department announced a one-year delay in a key provision of President Barack Obama's sweeping health care law, the Affordable Care Act. It postponed the provision that required businesses with more than 50 employees to provide their workers with health insurance or face fines. The Treasury Department explained in its blog that the government needs time to simplify reporting requirements, and businesses need breathing room to adapt [...]
Today marks my husband’s last day of residency. As he walks out of his last call shift, he says a bittersweet farewell to not only his on call pager (the sound of which will likely trigger a nervous twitch for many years to come) - but to an army of mentors and a group of colleagues bonded through three years of work with little sleep. The topic of residency has [...]
A recent article in USA Today posits that doctors perform thousands of unnecessary surgeries every year. It claims that unnecessary surgeries might account for 10% to 20% of all operations in some specialties, including a wide range of cardiac procedures. It generally cites three reasons as the cause of the problem: - doctors who enrich themselves by bilking insurers for operations that are not medically justified; - doctors who simply lack the competence [...]
It’s a scene straight from a movie – someone is injured and you rush to render aid. Of course, there’s blood – and with blood comes the potential exposure to communicable diseases. So, what should you do if you do not know whether the person you have been assisting may have placed you at risk? The Nebraska statutes and regulations provide some protection to emergency services providers (including individuals rendering [...]
No doctor wants to be the target of a medical malpractice lawsuit. Nor does any doctor want to be reported to the National Practitioner Databank. I recently argued before the Eighth Circuit Court of Appeals in an attempt to remove a doctor’s name and report from the Databank. My main take-away from this experience: if and when you receive notice that you are the subject of a disciplinary proceeding where [...]
How much time should a physician spend with their patient? In an ideal world, the answer would be as much time as needed. Yet, according to a new study conducted by researchers from the John Hopkins University and the University of Maryland, gone are the days where new physicians had the time to truly get to know the individuals they treat. This new study found that physicians-in-training spend about eight minutes per day [...]
In an interesting article this morning in the Omaha World Herald, it reports that nine Omaha and Lincoln area hospitals had approximately $1 million in Medicare payments withheld due to the number of patients returning to the hospitals within a month of being released. Medicare has recently targeted these types of readmissions, which cost roughly $17 billion dollars a year. The government is penalizing hospitals with high readmission rates within [...]
Many years ago, in a Nebraska gynecological case alleging medical malpractice, an oncologist testified favorably as to the applicable standards of care relating to the defendant physician. After the jury returned a verdict for the defense, the plaintiff appealed this inclusion of this expert witness’ opinions to the jury. The Nebraska Court of Appeals upheld the decision in Hoffart v. Hodge, M.D, 9 Neb. App. 161, 609 N.W.2d 397 (2000). [...]
Last week I discussed a new study published by the journal BMJ Quality and Safety that analyzed malpractice claims since 1986 and found errors in diagnosis to be the worst offender for malpractice claims. This week, my discussion centers on a similar analysis performed by Diedrich Healthcare. Analyzing data gathered by the National Practitioner Data Bank, Diedrich Healthcare found that out of the $3.6 billion paid out for malpractice lawsuits in [...]
The need for Quality Improvement and Peer Review Activities to remain confidential and to be protected from discovery in a lawsuit has long been recognized. Historically, Nebraska’s quality and peer review statutes have provided very limited privilege protection. Many hospitals performed quality and peer review activities that staff and administrators believed to be privileged but likely were not. In 2011, the Nebraska Legislature passed The Health Care Quality Improvement Act [...]
Hospital policies are adopted for the purpose of providing a safe environment and quality care to patients. They are also adopted as a means of preventing liability. It is becoming increasingly common, however, for policies to be used against health care facilities and providers when litigation arises. By applying a literal interpretation to a policy that does not provide any flexibility in its terms, the plaintiff is able to argue [...]
Time magazine recently published an article highlighting the controversy surrounding work hour restrictions placed upon doctors in training. Work hour restrictions were initially enacted by the state of New York in 1987 in response to the death of an 18 year old female, caused by a medication prescribing error made by a resident in the middle of a 30 hour work shift. As a result of the 18 year old’s death, [...]
On a 93-62 vote, the Missouri House passed a measure yesterday to reinstate that state's cap on non-economic damages in medical malpractice cases. The cap had been declared unconstitutional by the Missouri Supreme Court last summer. In that decision, the Missouri Supreme Court held that the cap violated the right to trial by jury found in the Missouri Consititution. The Court found that, because there was a common law right [...]
The Omaha World Herald published a thought provoking article on the topic of overtreatment and the use of MRI’s in last week’s paper, written by World Herald Columnist Matthew Hansen. In it, Dr. Thomas Tape from the University Nebraska Medical Center discusses how the health system in this country pushes people into hospitals, rather than out, with unnecessary medical tests, including the overuse of MRI’s, becoming the norm. According to [...]
This topic hits close to home. I am married to a third year resident who is starting his career as a hospitalist in August. Friends and family frequently ask my husband to write them a prescription for various ailments rather than visit their primary care physician. His response? "Sorry, unless you come visit me in my clinic and we establish a physician - patient relationship, the Statutes and Regulations in [...]
Between 2000 and 2010, the number of doctors employed by hospitals grew by 32 percent, to 212,000. This unmistakeable trend raises serious questions about potential conflicts of interest that such employment arrangements may create. For example, some physicians have reported that their hospital employer requires them to use in house lab facilities when the physicians have received better results or better service from an outside lab. Others have reported that [...]
Dr. Robert Glattner posted a very interesting article on Forbes.com yesterday that discusses the need for malpractice reform. It is well worth the read. I do have a couple of criticisms of his thesis, however. First, Dr. Glattner cites a recent RAND Corporation study for the proposition that "waiting for the resolution of [malpractice] claims can take up more than 10 percent of the average medical career." While the study [...]
Last month the U.S. Department of Health and Human Services announced a first-of-its-kind settlement involving a breach of unsecured electronic protected health information. The Hospice of North Idaho agreed to pay HHS $50,000 to settle potential violations of the HIPAA security rule. The case arose when the hospice reported to HHS that an unencrypted laptop computer containing the electronic protected health information of 441 patients had been stolen. During its investigation, [...]
The Nebraska Excess Liability Fund provides excess coverage for medical malpractice claims against qualified health care providers in Nebraska. The provider is responsible for the first $500,000 in coverage, and the Excess Fund provides coverage from $500,000 up to the maximum amount recoverable of $1,750,000. The Excess Fund is paid for by a surcharge levied on qualified health care providers. The surcharge is expressed as a percentage of the premium charged for [...]
The U.S. Department of Health and Human Services yesterday unveiled long awaited changes to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). The release is comprised of four final rules combined into a single omnibus rule designed to reduce the impact and number of times certain compliance activities need to be undertaken by regulated entities. Important provisions include: An expansion of HIPAA's scope to apply many HIPAA provisions [...]
