Jeffrey Segal, MD, JD

We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful.

Whether you can accept a gift from a patient is fundamentally a matter of ethics. But fiduciary violations can result in discipline for misconduct. And patients and estates of deceased patients can sue for the return of what was gifted. So, when accepting a patient’s gift, it’s important to keep basic legal issues in mind.

As a fundamental matter, the doctor-patient relationship imposes unique professional boundaries and gifting to doctors by patients blurs those.

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The other night, I was channel surfing and started watching a documentary on Jim Morrison, the lead singer of The Doors. He died at the age of 27 in a Paris hotel room. No autopsy was performed. Morrison struggled with alcohol abuse. Many accounts noted he was snorting heroin close to the time of his death. While he made a number of choices that hindered longevity, he did have a will.

The will stated his entire estate would pass to his girlfriend Pamela Courson, provided she survived him by 3 months. If she didn’t, his estate would pass to his brother and sister.

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California implemented substantive tort reform in the 1970s. The cap on non-economic damages (pain and suffering) has held firm at $250,000 since. And, compared to the rest of the country, professional liability premiums in California have remained “reasonable.”

Last year, enterprising lawyers spearheaded a referendum, Proposition 46, to overturn these caps. The Proposition was labeled Drug and Alcohol testing of Doctors. Medical Negligence Lawsuits.  The marketing pitch behind the proposition was clever – pilots and bus drivers are randomly tested for drugs and alcohol. Surely, this list should include physicians. (Buried in the Proposition was– “hey, by the way, let’s raise the cap on non-economic damages.”) The measure failed. For now, there is no state mandated random drug and alcohol testing for doctors. And, the cap on non-economic damages continues at $250k.

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Many Americans purchase individual policies from health insurance carriers. Since the advent of the Affordable Care Act, the marketplace for such policies has changed. If you purchased an individual policy issued before 2010, and you maintained that policy in place, you are “grandfathered in.”  You can continue to purchase that policy – provided the carrier still sells the plan. Whether or not the carrier still sells that flavor depends upon the policy’s profitability.

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60 Minutes recently featured a story on Senator Tom Coburn. He’s an ob-gyn family physician from Oklahoma who also delivered babies. He vowed to serve only two terms. He intended to be a citizen-legislator and return to full-time medical practice upon retirement from the Senate.

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October 26^th, 60 Minutes featured a segment on selective breeding in humans. The story focused on Genesis Genetics, a company which developed the technology for identifying those embryos within a larger set which have defective genes. Once identified, the family can choose the other “disease-free” embryos to implant via standard in-vitro fertilization techniques. When born, such children would be disease-free.

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The genomics revolution is here. We are accumulating new information almost daily about how our genes cause various diseases. More importantly, the door is opening to new treatments. As we fine tune our diagnostic capabilities, we are discovering small groups of individuals who can be effectively treated, but at a very high cost. In that model, the cost is high because the development cost is high, as it is for all pharmaceuticals. But for these small groups, the cost cannot be spread out among millions of patients. “Specialty pharmaceutical companies” are racing to create and distribute these high priced treatments.

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Ever heard of the name Gary Muhrcke? He won the first NYC marathon in 1970.

He was also a firefighter. He injured his back in a burning building and was retired with ¾ disability pension. In 1975, he started running again. He said he felt better while exercising compared to taking medication for the pain.

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