by Medical Justice | Feb 4, 2019 | Legal
A friend and colleague, Doug Wojcieszak, recently posted an article on his blog, Sorry Works, about responding to criticism in health care. Actually, it was more than just criticism. A law firm ran ads soliciting plaintiffs against a nursing home. The nursing home sued the law firm. The story and Doug’s response are worth reading.
A recent news story stated that three Georgia nursing homes won a round in court against a PI law firm that ran ads targeting their facilities. Many of you have seen these type of ads where a PI law firm will exclaim – shout! – in a newspaper or billboard that a certain nursing home was cited for the following deficiencies by state regulators and residents may have suffered bodily harm or death due to the lapses and here’s our phone number if you have a loved one at said facility. Georgia state law requires such advertisements to provide more detail on the deficiencies, including whether the lapses actually injured or killed any residents.
The nursing homes sued the law firm and one of the firm’s attorneys over the ads. The law firm and the lawyer fought back saying the case should be dropped because it was nothing more than a SLAPP lawsuit or “Strategic Lawsuit Against Public Participation” meant to chill the First Amendment rights of critics and safety advocates. A lower court disagreed with the defendant law firm and lawyer. The case is now is being appealed to the Georgia Supreme Court.
Nursing homes have been under been attack by these types of ads for many years. One of the factors that makes the nursing home/long-term care business different from acute care is the heightened level of emotions. Sending mom or dad or any member of the family to a nursing home is tough stuff….lots of guilt, regret, and other bad feelings. Families are in vulnerable, emotionally charged situations, and then a lawyer comes along and plays on those fears. Is that fair? Is it wrong, or simply the price we pay for living in a free and open society? Where do you draw the line?
Where I sit no one is free from blame in this situation….there are many honest, ethical PI lawyers who genuinely help families in horrible situations and have helped make healthcare safer. I know many PI lawyers who would never dream of running such ads, mainly because they have more than enough strong, legitimate cases already coming through the door. However, there are PI firms that run commercials that don’t tell the whole story — they’re no different than political ads — and play on the emotions of families.
There are many nursing homes and long-term care professionals who do God’s work every day caring for the most vulnerable members of our society. They have an extremely difficult job. Unfortunately, mistakes happen in nursing homes, and the long-term care industry has not always been honest with residents and families. Same is true for our entire healthcare system. Disclosure and apology is still a work in progress in the long-term care industry and throughout our healthcare system.
So, who started this fight? Overly aggressive PI lawyers, long-term care administrators not willing to tell the truth when mistakes happen and say sorry…or families with excessive guilt and unreasonable expectations? Probably all of the above.
How do we get out of this mess?
I have written in this space before that dishonesty attracts dirt bags. In other words, when your organization is perceived as being dishonest when things go wrong, that perception opens the doors to all sorts of marginal and even frivolous claims being brought forward. After all, who knows when you are telling the truth? Conversely, disclosure organizations generally don’t settle nuisance claims, and when they say “We didn’t make a mistake” are more likely to be believed. I like to say disclosure produces an “honesty dividend.” Moreover, being perceived as honest can help quell the passions of zealous regulators who honestly believe they are the only protectors of seniors warehoused in nursing homes.
I think there should be truth in advertising, especially when touching the heart strings of vulnerable residents and families. Moreover, I understand the desire for the nursing homes to fight back. However, I am worried this fight will provide some exposure they don’t want.
A few years ago, a nursing home client of Sorry Works! shared the following response to ads run by PI law firm ads. They didn’t sue…instead they placed this letter as an ad in their local newspapers. I think it’s remarkable. See what you think:
“A letter from Rockcastle Health and Rehabilitation to the community of Brodhead
Nobody chooses to work in a nursing home for money, for glory, or for power. We do this because we love it and because we believe that taking care of our elders is some of the most meaningful and important work imaginable.
Recently, someone took out a full page newspaper ad saying some not-very-nice things about us. This is not the first time they done it. In fact, they take out similar ads all around the country and make their money by playing on people’s fears.
We know we aren’t perfect. But we are honest and hardworking, and we are striving to get better. If we do something wrong, we pride ourselves on admitting it and saying “We’re sorry.”
I would personally like to invite you to come visit us and see the changes we’re making at Rockcastle Health and Rehab. If you can’t make it to our facility, we’d love to hear from you on our website at RockcastleHealth.com or via phone. My cell phone number is 606-308-5813. You may even know someone who works at Rockcastle Health and Rehab. If you do, ask them what we’re all about.
To our residents and their families, we want to say that we love you. If we’ve fallen short of your expectations in any way or done something to upset you, please know that we’re sorry. And please feel free to schedule a time for us to talk. I promise that we will try to make it right.
Taking care of your loved ones is a sacred duty, and we want you to know how seriously we take it.
Sincerely,
David Dickerson, Administrator”
That’s a powerful letter I hope you will remember the next time you are targeted with a negative ad by a PI law firm. More broadly, I hope you consider developing a disclosure program.
About the Author:
Doug Wojcieszak is a disclosure training consultant who created Sorry Works! and has trained over 30,000 healthcare, insurance, and legal professionals. Wojcieszak is a sought-after speaker and trainer, and Sorry Works! content (books, booklets, on-line learning, etc) has become the “go to” references for organizations dealing with adverse medical events. Sorry Works! and Wojcieszak partnered with The Sullivan Group to provide on-line disclosure training content for healthcare professionals
by Medical Justice | Jan 28, 2019 | Legal
I may not be clairvoyant. But I know one family that will receive a gigantic check soon.
A 29-year-old woman had been in a persistent vegetative state for about ten years. She was involved in a near drowning incident.
Unbeknownst to the staff at Hacienda Healthcare, a long-term care facility, the patient was pregnant. She started to moan and gave birth on December 29th.
An attorney for the woman’s family said in a statement to NBC affiliate 12News in Phoenix that the family is not emotionally ready to make a public statement, but that “the family would like me to convey that the baby boy has been born into a loving family and will be well cared for.”
“The family obviously is outraged, traumatized and in shock by the abuse and neglect of their daughter at Hacienda HealthCare,” the attorney said.
Yes, how did a patient in a persistent vegetative state at a long-term care facility get pregnant?
Police in Phoenix executed a search warrant looking for DNA samples from male staff members.
“We had consulted attorneys to determine whether it would be legal for our company to compel our employees to undergo DNA testing conducted through Hacienda or for Hacienda to conduct voluntary genetic testing of staffers,” the facility said in a statement. “We were told it would be a violation of federal law in either instance.”
The CEO of Hacienda resigned.
The patient was raped, plain and simple. This is a criminal offense and the perpetrator should be identified and charged. It may have been a staff member. It may have been a visitor. If the latter, how can one protect against this? Not easy.
Hacienda will likely have to write a big check, the sooner the better. They will also need to come up with a plan to assure the public and regulators that their vulnerable patients will not be sexually abused or raped.
What do you think?
ABOUT THE AUTHOR
Jeffrey Segal, MD, JD
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
If you have a medico-legal question, write to Medical Justice at infonews@medicaljustice.com.com.
by Medical Justice | Jan 12, 2019 | Blog
The answer is likely yes. More on that shortly.
One role of the physician is to relieve suffering. Adult patients, who are mentally competent and terminally ill, sometimes implore their physicians to help them achieve a more peaceful death to alleviate either actual or impending suffering. The US Supreme Court in Washington versus Glucksberg tackled this issue and refrained from finding a federal constitutional right for a person suffering from terminal illness to hasten his death, via a physician intermediary or otherwise. In a separate case, Gonzales versus Oregon, the SCOTUS found that Aid in Dying (AID) is a legitimate medical practice under the Controlled Substances Act.
Six states have pass legislation codifying Aid in Dying. (Oregon, Washington, Vermont, California, Colorado, and Hawaii). The District of Columbia also allows AID. Montana, has no enabling statute. But the Montana supreme court concluded
that AID is a choice within the public policy of the state; hence a physician will not be subject to prosecution for prescribing medication to bring about the peaceful death of a competent terminally ill patient.
States with enabling legislation bake rigid restrictions into the process to prevent the perception of commission of abuse. Examples include mandatory second opinions, waiting periods, and counseling “if in the opinion of the attending physician or the consulting physician a patient may be suffering from a psychiatric or psychological disorder, or depression causing impaired judgment.” Clearing such hurdles is not a simple matter. Little is left to judgment, which is otherwise one of the hallmarks of a healthy doctor-patient relationship.
Montana is less prescriptive. Since the state supreme court blessed AID, there are no explicit hurdles. Evaluating a doctor’s role in AID is similar to evaluating his role in any other medical treatment. Did the doctor follow the standard of care? The standard of care is that which a majority or respectable minority in the field would do under same or similar circumstances. (Generally, a respectable minority is not a pool of one. If you are the only practitioner who performs such a procedure, then you are likely not following the standard of care.) Such language mirrors what doctors experience when they are sued for medical malpractice. The question distils to did they follow the standard of care.
Back to North Carolina.
Kathryn Tucker, an attorney, and founder and director of the End of Life Liberty Project, just authored an interesting law review article, AID in Dying in North Carolina2. She concludes that physicians are empowered to prescribe medications to assist a patient to voluntarily end their life if that patient is mentally competent and terminally ill, and the patient is the individual who takes the final affirmative action.
Broadly, what risk might a physician face engaged in such prescribing?
First, the criminal code needs to be consulted. Before a person can be found criminally guilty of a law, that law must be clearly defined. In other words, if there is no criminal statute or common law history that some action is a criminal offense, one cannot be convicted of engaging in that action. Before 1974, suicide was a crime in North Carolina. That included attempted suicide and aiding and abetting suicide.
In 1974, the North Carolina General Assembly passed a law stating that “[t]he common-law crime of suicide is hereby abolished as an offense.” Poof. Once that law was passed, derivative liability, such as assisting (aiding or abetting) suicide ceased to be considered a criminal offense.
Hence, the state of North Carolina cannot prosecute a person for ‘assisting a suicide’.
Analysis of criminal law does not end there. Federal law must also be addressed. Could a physician be sanctioned under the Controlled Substances Act? If AID is considered a legitimate medical practice defined by the standard of care, the US Supreme Court, as articulated in Gonzalez versus Oregon, concluded that physicians cannot be prosecuted under the Controlled Substances Act.
Note, there ARE states that have explicit statutes that criminalize AID, such as Idaho and Arkansas. North Carolina does not fall into that camp. If a state has enacted legislation outlawing AID, absent a court ruling such a law violates the state constitution, physician are forbidden from prescribing medications intended to end a patient’s life.
Next, what about the Board of Medicine?
The Board of Medicine is empowered to sanction physicians who violate the standard of care or are “unprofessional.” As noted earlier, the standard of care is determined by what a majority or respectable minority in the field would do under same or similar circumstances. In North Carolina, such physicians could look to Montana’s experience to determine what is or is not kosher. Apparently, to date, there are no cases of the Montana Board of Medicine disciplining a physician for providing AID. Whatever implicit checks and balances exist, they have not triggered action by the Montana Board of Medicine.
In contrast to its statutory silence on AID, North Carolina does have a substantive statutory framework which recognizes and respects the autonomy of patients in their decisions related to end-of-life care. A number of existing laws empower patients ensuring they are allowed to effectively treat their pain and refuse or withdraw life-sustaining treatment.
Given the silence of North Carolina’s criminal code on AID, and the strong framework empowering patients to make end of life decisions, Ms. Tucker argues that there are no criminal legal roadblocks for physicians to prescribe medications for AID. (Note, in the AID model, the physician functions as an intermediary; the patient must take the final action. AID is not the same as a physician infusing the medication into the patient’s veins, on his own, even if the patient desires that action. Further, only physicians would be empowered to perform AID. An unlicensed person performing the same acts (eg giving a patient the medications) would arguably be engaging in the unauthorized practice of medicine, which is a criminal offense.) Finally, to the extent the Board of Medicine has oversight over AID, the physician would need to follow the “standard of care.”
Until I read Ms. Tucker’s law review article, I just assumed that AID in North Carolina was forbidden – as there was no enabling legislation or a supportive higher court opinion. Very few practitioners in North Carolina are aware of Ms. Tucker’s conclusions. Given the uncertainty of how the Board of Medicine might react, those doctors thinking of pursuing such ends would be well served to aggregate and formalize guidelines for the standard of care, perhaps mirroring Montana’s experience.
One consideration: The Board of Medicine always has the option of formulating position statements defining unprofessional conduct.
Here’s one:
It is the position of the North Carolina Medical Board that prescribing any controlled or legend substance for other than a validated medical or therapeutic purpose is unprofessional conduct.
Is prescribing a controlled substance for AID a validated medical or therapeutic purpose?
Given the support for AID in many medical and health policy communities, perhaps.
The Board might put forth a new position statement that varies from practice allowed in other states. For example,
[I]t is the Board’s position that it is inappropriate to: (1) prescribe hCG for the treatment of obesity
Position statements are designed to give licensees guidance but do not have the same force and effect of laws and rules. And position statements have greater practical force in addressing future action compared to past action. A position statement on AID, if ever published in North Carolina, could cut both ways. The Board could declare AID is unprofessional conduct. Or it could declare AID is not unprofessional conduct as long as the physician is following the standard of care. Or it may never publish any statement on the issue.
Ms. Tucker argues that the Board would be overstepping its authority if it tried to discipline a physician for prescribing AID to a terminally ill patient. Of course, any action would depend on the facts of the case. The statute empowering the Board to discipline a physician for unprofessional conduct is § 90-14(a)(6) and is limited in the following way.
The Board shall not revoke the license of or deny a license to a person, or discipline a licensee in any manner, solely because of that person’s practice of a therapy that is experimental, nontraditional, or that departs from acceptable and prevailing medical practices unless, by competent evidence, the Board can establish that the treatment has a safety risk greater than the prevailing treatment or that the treatment is generally not effective.
Ms. Tucker concludes:
Neither of the two exceptions to this protection would appear to fit AID. A patient choosing AID avoids harm they hope to avoid (that of a more lingering and horrific death), and AID, when provided subject to the standard of care, is nearly always “effective” in achieving the desired result (the swift and peaceful death of the patient).
A licensee on the receiving end of a negative Board action and seeking relief could always take their case to court. Still, the first person charting the path might have a lonely experience with the Board of Medicine. There is strength in numbers.
So, can North Carolina physicians legally prescribe medications to hasten end of life in competent adults with terminal illnesses?
Ms. Tucker makes the case.
What do you think?
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ABOUT THE AUTHOR
Jeffrey Segal, MD, JD
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
If you have a medico-legal question, write to Medical Justice at infonews@medicaljustice.com.com.
[1]. Baxter v. State, 2009 MT 449, ¶¶ 26, 49–50, 354 Mont. 234, 224 P.3d 1211. The court emphasized that “a physician who aids a terminally ill patient in dying is not directly involved in the final decision or the final act” but rather is “only provid[ing] a means by which a terminally ill patient himself can give effect to his life-ending decision.” Id. at ¶ 23, 354 Mont. 234, 224 P.3d 1211. Moreover, in analyzing the Montana Rights of the Terminally Ill Act, the court found no suggestion that physician AID is against public policy as homicide because of the homicide statute’s limited scope, which only applies to one who “purposely or knowingly causes the death of another human being..” Id. at ¶ 26, 354 Mont. 234, 224 P.3d 1211 (quoting Mont. Code Ann. § 45-5-102(1)(a) (Westlaw through 2017 legislation)). The court noted that the terminally ill patient’s decision to self-administer medication causing his or her own death would not cause the death of “another” within the homicide statute but the death of oneself, which was not within the statute. Id. Further, the court noted that the Act expressly “does not condone, authorize, or approve mercy killing or euthanasia,” but also does not mention “physician aid in dying” in what is prohibited. Id. at ¶ 36, 354 Mont. 234, 224 P.3d 1211 (quoting Mont. Code Ann. § 50-9-205(7) (Westlaw through 2017 legislation)). In distinguishing physician AID from mercy killing and euthanasia, the court looked to the definitions of “euthanasia” and “mercy killing,” highlighting that neither is consent-based, nor do they involve a patient’s “decision to self-administer drugs that will cause his own death.” Id.
[2] Will be published in UNC Law Review sometime in 2019
