NK+M: Differential Diagnosis

On January 19, 2012 the Arkansas Supreme Court issued an opinion in the case of Broussard v. St. Edward Mercy Health System striking down a key provision of the state’s Civil Justice Reform Act of 2003 which required that expert testimony in a medical malpractice case be given by a health care provider of the same specialty as the defendant.   The court concluded the legislature exceeded its authority by drafting a provision that dictated court procedures. The court previously struck down provisions of the law regarding evidence, damages, and permissible defenses.

A recent report by the Committee on Patient Safety and Health Information Technology of the Institute of Medicine of the National Academies stresses the importance of evaluating new technologies to ensure that are having their intended benefit of increasing patient safety: “Advanced technology can create some new paths to failure at the same time that it blocks others.”  One way in which new technologies may be increasing rather than decreasing the risk of adverse outcomes is by is by distracting care providers from the immediate task at hand – the patient.    Hospitals can expect increased scrutiny following a report in the New York Times (December 14, 2011) about the risk of “distracted doctoring” which can occur when doctors and nurses pay too much attention to the ubiquitous electronic devices at their disposal, particularly when those devices are being used for surfing the web or communicating on social media.  A study presented at the 2011 annual meeting of the American Society of Anesthesiologists found that nurse anesthetists and residents were distracted by something other than patient care in 54% of cases – mostly by surfing the internet (Abstract 1726).  A peer reviewed survey of 439 medical technicians published in the journal, Perfusion found that 55% of technicians who monitor bypass machines during open heart surgeries acknowledged talking on phones or texting during surgeries.   From a risk management and litigation perspective, doctors and nurses should assume that whatever they are doing on their handheld devices and tablets may be discoverable.   The best way to avoid having to answer questions at a deposition about why you were trying to beat your high score on Angry Birds while your attention should have been focused on a patient is to turn the device off, or ensure you are using it to obtain information about the patient.

A recent story in the Boston Globe stressed the importance of CPR training for runners so that they can lend assistance to other runners who suffer a cardiac arrest during a race.  The Globe article cited a recent study in the New England Journal of Medicine that examined 59 runners whose hearts had stopped over the past decade in the United States.  Of the 31 cases where complete data was available, researchers found that all 8 of the runners who survived their heart attacks had received CPR from a bystander.   Only 10 of the 23 who died received CPR.   The study’s author, Dr. Aaron Baggish, who is the  associate director of the Cardiovascular Performance Program at MGH notes that “the number one predictor of survival of cardiac arrest during a race was whether a runner had access to bystander CPR.”    To try to improve the chances that a runner who suffers a heart attack during the Boston Marathon this year receives prompt CPR, the Boston Athletic Association, in cooperation with the American Red Cross and the American Heart Association, will hold 30 minute training sessions for marathon participants and their families the weekend before the race.

A patient filed a class action in federal court in New York last week against his dentist over the issue of whether patients can be prevented from posting a poor review regarding the dentist’s services on any of several websites that track such reviews (e.g. Yelp!, which carries the tag line “real people, real reviews.”)

The patient had been suffering from an emergent toothache, arrived for treatment, and was required to sign a “Mutual Agreement to Maintain Privacy” form before he could receive treatment.   The patient admits he understood it, but reasoned he couldn’t see how or why the dentist would apply it to him, and in any case he was in great pain, so he signed.  After that initial visit and a follow up to place a filling, he was charged $4800; he claimed this was excessive, and further that the dental office failed to follow through as promised on submission of documentation to the patient’s insurance carrier for reimbursement.

In frustration, the patient posted reviews on websites that track consumer feedback, complaining the dentist overcharged him and failed to file reimbursement documentation.  The dentist responded (invoking the “privacy agreement”) by demanding the patient remove the critical comments, and by sending invoices purporting to charge $100/day while the reviews remained up on the websites.  The patient finally filed the lawsuit, seeking class status for all patients who had been forced to sign the form “agreement.”  The suit argues the “agreement” should be declared void, as unconscionable.

The case raises several interesting issues: the patient’s information is already protected by the Health Insurance Portability and Accountability Act (HIPAA), so the form is one-sided. Likewise, it purports to abrogate First Amendment rights; meanwhile, the feedback poster could bear liability for inaccurate postings, if libelous.  The suit is pending, but according to “Ars Technica,” a technology news and information website that covered the story,  the form was prepared and widely distributed (2000+ doctors) by a North Carolina-based company called “Medical Justice,” which has now decided to “retire” the use of the form in the wake of this lawsuit.

Massachusetts’ Supreme Judicial Court (“SJC”) concluded yesterday that Federal law preempts a State licensing board from interpreting, applying and enforcing OSHA standards when disciplining a professional, in its review of an order from the Massachusetts Board of Registration in Dentistry (“Board”).

Following two patient complaints, the Board investigated Dr. Stephen Chadwick’s office and found multiple deficiencies. First, the Board found Dr. Chadwick failed to provide training for his employees before offering Hepatitis B vaccination, and did not maintain records of employee vaccinations. Second, the Board determined Dr. Chadwick’s monthly office trainings on infection control did not comport with OSHA standards or CDC guidelines. The Board also interpreted Dr. Chadwick’s practices of disposing of glass tubes and blood-spotted cotton balls in a manner that violated OSHA standards.

The SJC held that the Board could mandate compliance with OSHA standards in dental practices, and could sanction dentists for professional misconduct after OSHA has determined a violation has occurred, but the Board “may not interpret, apply, and enforce OSHA standards regarding workplace safety on its own accord.”  (The decision is Chadwick v. Board of Registration in Dentistry, SJC-10831 (December 8, 2011).

Because Federal OSHA standards preempt control in Massachusetts, the SJC found that the Board’s decision regarded Dr. Chadwick violated the Supremacy Clause of the U.S. Constitution, citing Gade v. National Solid Wastes Mgt. Ass’n, 505 U.S. 88 (1992).  The Board’s interpretation, application and enforcement of OSHA standards constituted improper assertion of concurrent jurisdiction by the State. Also, it represented direct and substantial State regulation of occupational safety and health issues that are covered by Federal standards.

The Court remanded Dr. Chadwick’s case for the Board to reassess his penalty of a six month license suspension followed by five years of probation. A finding that Dr. Chadwick failed to conduct required weekly spore testing for sterilization equipment was affirmed, as it was not based on OSHA standards.

The Massachusetts Supreme Judicial Court upheld a decision and order of the Board of Registration in Medicine (BOM) that revoked a physician’s license to practice medicine because of his failure to maintain insurance and improperly dispensing a controlled substance. The BOM found that Vernon Kellogg had falsified his expired malpractice insurance certificate from 2004 to reflect coverage through 2007 and dispensed controlled substances out of a free clinic at his home.

Kellogg challenged the BOM’s decision — Kellogg v. Board of Registration in Medicine, SJC-10931 (December 6, 2011) — on the grounds that board proceedings violated his constitutional rights. Mr. Kellogg also argued the requirement that he maintain malpractice insurance violates the contracts clause of the U.S. Constitution.

The Court cited Massachusetts Rules of Appellate Procedure in declining to consider Kellogg’s claim because he failed to provide legal and factual support for his arguments. For example, he did not provide a record of the BOM procedures followed, or provide an explanation of which BOM actions violated his rights.

A woman who sued Tufts Medical Center for allegedly violating her privacy by faxing four pages of medical records to her workplace has dropped her lawsuit.   The plaintiff alleged that her co-workers read the records (which related to her recent hysterectomy), causing her embarrassment, exacerbating her other medical issues, and stalling her career.  The defendants denied any wrongdoing and contended that the plaintiff had requested the information to be sent to her workplace.  The case, filed in Plymouth County Superior Court, has now been dismissed with prejudice by agreement of the parties.  The hospital made no offer to settle the case.

The Massachusetts Supreme Judicial Court has ruled that a plaintiff may amend his malpractice complaint to add a claim for wrongful death after the seven year repose period for medical malpractice actions has expired.

The plaintiffs in Sisson v. Lhowe  filed their original malpractice action against the defendant physicians in February 2006, alleging a course of substandard medical care from January to November of 1999.  The complaint alleged that the defendants’ negligence had caused the plaintiff patient to suffer injuries “including, but not limited to, expected premature death.”

The patient died in March 2007 while the action was pending. In March 2008, the plaintiffs amended their complaint to add claims for wrongful death. Prior to trial, the defendants moved to dismiss the wrongful death claims, arguing that the statutory repose period had expired in November 2006, seven years after the last alleged negligent conduct. The Superior Court granted the motion and dismissed the wrongful death claims.

The Supreme Judicial Court vacated the dismissal and remanded the case. The Court agreed with the plaintiffs that the repose period applies to any “action” for malpractice, and the personal injury and wrongful death claims were parts of the single action for malpractice filed in 2006. It rejected the defendants’ argument that personal injury and wrongful death are distinct “causes of action” because each claim is covered by a different statute, each is treated differently in regard to damages, and a wrongful death action does not accrue until the time of death.

The Court concluded “that a wrongful death claim may be substituted for a personal injury claim only where (1) trial has not commenced; (2) the original complaint alleging malpractice was filed within the statutes of limitation and repose; and (3) the allegations of liability supporting the personal injury claim are the same as those supporting the wrongful death claim.”

In a dissenting opinion, Justice Spina argued that the Court was inappropriately employing a “relation back” analysis, and amendment of the complaint should be denied because the clear intent of the repose statute is to extinguish malpractice claims seven years after negligent acts or omissions.

A Connecticut trial court judge has ordered Greenwich Hospital to disclose about 200 documents from the credentialing file of a plastic surgeon who performed surgery despite known drug problems. 

The surgeon, Ian Rubins, died in 2008 at age 46 of a heroin overdose.  The plaintiff, who underwent surgery in 2006, has sued the hospital for allowing Dr. Rubins to perform the surgery despite being aware of his substance-abuse problems.  Hospital officials say they were aware of Rubins’ drug problems but that he completed rehabilitation programs.

The Greenwich Times reports that the Court’s order also allows the plaintiff’s counsel to question hospital officials and others who administered drug tests to Rubins.

State investigators have cited “alarm fatigue” as a factor in the August 2010 death of an ICU patient at UMass Memorial Medical Center in Worcester.  The 60 year-old patient died when alarms signaling a rapid heart rate and low blood oxygen level went unanswered for nearly an hour.  According to an article in The Boston Globe, this was the second such death at UMass Memorial in the last four years. 

The 2010 death was investigated by the Massachusetts Department of Public Health, whose report was obtained by the Globe.  The report cited various violations by the hospital, including failure to respond to alarms “in a timely manner.” 

“Alarm fatigue” occurs when audible signals from monitoring devices are so numerous and frequent that clinicians become overwhelmed or desensitized to them, possibly leading them to disable, silence, or ignore the alarms.  One study documented an average of 942 “serious” alarms per day on a 15-bed unit (about one alarm every 90 seconds).  Other studies have found that more than 85 percent of alarms are false.  In the UMass Memorial case, for example, the patient was restless and agitated and kept removing his blood oxygen monitor, causing an alarm to sound much of the day. 

Officials at UMass Memorial say they are intensifying their efforts to address the problem of alarm fatigue following the death.  Experts contacted by the Globe, however, said the problem is widespread and has not been fully solved at any hospital.  These experts say the key to a solution is in better machines that will more accurately gauge whether a patient is in crisis before an alarm sounds.

In Fitzsimmons v. Fradella (N.Y. Supreme Court, Nassau County, March 30, 2011), an attending gynecologist encountered difficulty with abdominal adhesions during a laparoscopic cystectomy.  A surgical consult was requested and the responding surgeon assisted in the operation which included removing an infected cystic mass.  After the patient was diagnosed with a perforation she claimed the surgeon negligently failed to obtain informed consent, failed to review the her medical history prior to participating, and failed to provide post-operative follow up.  The surgeon’s motion to dismiss was granted, with the court ruling the surgeon’s limited role did not form a basis for these liability claims. It was the gynecologist’s duty to obtain informed consent and the surgeon could rely on the information provided to him by the gynecologist about the patient’s history.

In Odei v. St. Mary’s Hospital the Connecticut Superior Court ruled a joint venture claim against an independent anesthesiologist and the hospital will proceed to trial.  The patient claimed the anesthesiologist failed to properly interpret a transesophageal echocardiogram resulting in a surgical injury.  Suit was brought against both the hospital and anesthesiologist, with the plaintiff alleging the anesthesiologist was the hospital’s agent because the hospital and anesthesiologist had entered into a joint venture to provide anesthesiology services to the hospital’s patients.  The hospital’s motion to dismiss was denied.  The court cited to the agreement whereby the hospital would provide patients and examination space to the practice and the anesthesiology group would provide physicians and equipment.  The hospital unsuccessfully argued it did not control patient treatment.  The court ruled that issue was to be determined by the jury.

In Baker v. Farrand the Maine Supreme Court held that a patient may bring a malpractice claim based upon two or more related negligent acts or omissions if some, but not all, of the acts or omissions occurred outside the three-year statute of limitations. From 1996-2006 Dr. Farrand ordered PSA testing for the plaintiff. Starting in 2002 the tests revealed elevated PSA levels.  After obtaining the test results in 2006 Dr. Farrand referred the plaintiff to a urologist who diagnosed prostate cancer.  In 2007 the plaintiff filed a notice of claim, alleging Dr. Farrand negligently failed to make a referral in 2003, 2004, and 2005, and that this failure delayed his diagnosis which limited his treatment options.  The Supreme Court held that a plaintiff may bring a single action alleging continuing negligent treatment arising from two or more related acts or omissions by a single health care provider where each act or omission deviated from the applicable standard of care, and at least to a to some demonstrable degree, proximately caused the harm complained of, as long as at least one of the alleged acts or omissions occurred within three years of the notice of claim.

West Virginia’s Supreme Court of Appeals has upheld the constitutionality of a statute limiting the amount of noneconomic damages that may be recovered in medical liability actions.  The decision issued on June 22, 2011, sustained a 2003 law that caps such recoveries at $250,000 per occurrence, regardless of the number of claimants or defendants, except in cases of wrongful death or permanent injury in which situations the cap is raised to $500,000.  The court rejected claims that the limits violate the equal protection, right to jury trial, separation of powers, and “certain remedy” provisions of the West Virginia constitution. 

The decision places West Virginia “squarely with the majority” of jurisdictions that have upheld similar caps.  The court cited the New Hampshire Supreme Court’s 1991 decision in Brannigan v. Usitalo as one of only a few “rare instances” in which courts have found such caps to be unconstitutional.

In Bateman v. Greenwich Hospital (February 2011), a Connecticut trial court ruled the State’s Consumer Protection statute, which prohibits unfair methods of competition and unfair or deceptive acts of commerce, did not require the hospital to reveal a staff’s members substance abuse history while promoting him as a top specialist.  The patients alleged if they had not been misled about the surgeon’s credentials, they would have declined surgery.  Dismissing the suit, the court held the claims about the physician’s incompetence and inadequate consent were best addressed under the State’s medical malpractice law.

In Orgavanyi v. Henry County Health Center (December 2010), an Iowa Appellate Court ordered the disclosure of an incident report in a lawsuit alleging improper labor and delivery resulting in severe brain injuries.  A delivery nurse had filed the incident report, which the plaintiff sought.  Peer review records were defined as investigative information relating to professional competence in the possession of a peer review committee or employee. In its response to the plaintiff’s discovery requests, the hospital submitted an affidavit from the risk manager stating the risk management department would sometimes submit an analysis of the report to the hospital’s performance improvement committee and medical staff quality improvement committee for peer review.  The hospital declined to indicate whether a report had been forwarded to any hospital committee.  Refusing to apply the peer review privilege, the Appellate Court noted there was no evidence that the report or an analysis of it was ever submitted to a peer review committee.  Therefore, it was discoverable.  Rebutting the hospital’s public policy concerns, the court wrote the report was only available to litigants and not the public; the hospital’s procedures permitted anonymous reporting and the court’s ruling was not a decision on trial admissibility.

The Massachusetts Board of Registration in Chiropractic (“Board”) has proposed new regulations formally creating a chiropractic peer review system.  The proposed regulations would define peer review as a formal, third party review to assess necessity, quality of care, and other issues, undertaken at the request of a third party.  Although the Board has utilized “monitors” for many years, the proposed regulations represent the first time the process would be formalized and expressly regulated.  As noted here in February 2011, the Massachusetts Board of Registration in Medicine recently found that inappropriate or substandard monitoring was grounds for discipline not of the subject, but of the third party monitor.  Will formalization of chiropractic peer review also create new avenues of risk?  The proposed regulations are currently in the notice and comment period.

A bill recently passed into law by the New Hampshire legislature prevents the Board of Medicine from disciplining doctors for prescribing long-term antibiotic treatment for Lyme disease. 

Guidelines published by the Infectious Disease Society of America’s (IDSA) in 2006 recommend against prescribing long-term antibiotics for the disease, citing a lack of scientific studies to support the efficacy of the treatment.  According to a recent report in the Concord Monitor, this caused some New Hampshire doctors who support the therapy to fear disciplinary sanctions or legal liability, which in turn led desperate patients to seek treatment out of state. 

The new law was enacted without Gov. Lynch’s signature. It requires the Board of Medicine to post a statement on its website that “No licensee may be subject to disciplinary action solely for prescribing, administering, or dispensing long-term antibiotic therapy for a patient clinically diagnosed with Lyme disease” if the diagnosis and treatment are documented in the patient’s chart. 

A special review panel convened by the IDSA and the Connecticut Attorney General issued a unanimous finding last year confirming the ISDA’s guidelines after investigating the controversial treatment.