Jeffrey Segal, MD, JD

Drs. Michael Parsa and Christopher Cabanillas are employed by University Medical

Center of El Paso. They are two of numerous defendants in a lawsuit filed by the ACLU. Even though they are hospital employees, they are being sued in their individual capacity.

 

The plaintiff, Jane Doe, is a 54 year old New Mexico resident. She was visiting a family friend in Juarez, Mexico. On return, she crossed the bridge back to the US, where she was chosen at random for “additional screening.” This “secondary inspection” involved a pat-down where an agent “inserted her finger into the crevice of Ms. Doe’s buttocks.” Nothing was noted. But, that was not the end of this search.

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Alexander Pope once stated in An Essay on Criticism “A little learning is a dangerous thing” (updated in modern times to the saying A little knowledge is a dangerous thing).

 

Here’s a conundrum.

 

Benjamin Dover has lymphoma and is a candidate for a bone marrow transplant. Ben is 10 years old. His parents, Mr. and Ms. Dover agree to be tested to see if either might be a suitable donor. Dr. Smith, the patient’s pediatric oncologist, spearheads the process.

 

When the lab results return, Dr. Smith learns that neither parent would be an ideal candidate. Dr. Smith also learns from the genetic testing that Mr. Dover cannot be Ben’s biological father.

 

Mr. and Ms. Dover have been married for 15 years, and by outward appearances, seem to have a close and loving relationship. Further, Ms. Dover did not express any anxiety about the genetic testing.

 

Dr. Smith does not believe either Benjamin or Mr. Dover knows who the actual biological father is. In other words, Dr. Smith suspects there’s a secret that has been kept for a long time – but is not sure.

 

What to do?

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Since the 1970s, California has had some of the most aggressive tort reform laws in the country. The law, known as MICRA, caps non-economic damages – otherwise known as “pain and suffering.” The cap is $250,000 and it’s not budged in over three decades. This feature has kept medical malpractice premiums lower than in other states that exemplify judicial hell-holes.

California allows citizens to change laws directly via ballot propositions (referenda). To get a proposition on the ballot, a critical mass of signatures must be obtained. Then, the citizens vote thumbs up or thumbs down.

Plaintiff’s attorneys have tried multiple times to over-turn MICRA in courts. They’ve not succeeded. Now, the question of MICRA is being brought directly to the citizens. If enough signatures are collected, the fate of MICRA will be determined in November 2014 elections.

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Jahi McMath was declared brain dead following complications related to tonsil / sleep apnea surgery at Children’s Hospital in Oakland California. Jahi developed post-op bleeding and went into cardiac arrest. Several doctors examined her and declared she satisfied criteria for brain death. And she was indeed declared dead. Under California law, brain death equals death.

The hospital wanted to remove Jahi from the ventilator. The patient’s family filed a court action arguing that the hospital should not have the power to do so. Removing the ventilator would cause cardiopulmonary arrest. The family believed it was premature to make that call.

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We continue with our series of 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.

I am scaling back my orthopedic surgery practice because I am moving towards retirement. I supplement my income by doing independent medical examinations (IMEs) for defense firms and insurers in personal injury cases.

One of the reasons that was appealing is because it seemed a low risk endeavor. Now that I am so close to retiring, I wanted to keep my risk of being sued as low as I can. The problem is that I am now actually being sued for malpractice over an examination that I performed on someone I examined who was suing her landlord over a fall.

She claims I injured her back by asking her to bend and twist so that I could evaluate the area of a spinal fusion she received after a car accident several years ago. She also claims to have re-injured her back in the fall. 

What’s going on here? She knew that I was working for the defense and she even signed a form that said that she understood my seeing her for the IME did not constitute a doctor-patient relationship. How can she sue me if I am not technically her doctor?

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We continue with our series of 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.

 

You are a surgeon and were just called to the ER to see a new patient. He’s a nurse practitioner who walked in describing abdominal pain and a low-grade fever. You determine he is in the early stages of acute appendicitis. You recommend an immediate appendectomy.

 

He explains he just started his job at a clinic and his health insurance coverage has not been initiated. Oh, crap.

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We continue with our series of 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.

I am a surgeon in a small community hospital. 

I performed an endoscopic carpal tunnel release on a patient. I have performed hundreds, if not thousands, of such procedures. I am fully experienced in performing that procedure. 

After surgery, the patient described some residual complaints. I believed these would resolve with time. Rather than wait and see me for follow-up, the patient went to my competitor for a second opinion. 

This competitor told the patient I performed the surgery ineptly. He said that he needed to re-operate. I tried to dissuade my patient but he explained he now had little faith in my opinion. The patient transferred his care to my competitor.  The second surgery was consummated.

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Recently, a doctor treated his patient for erectile dysfunction and decreased sexual drive. The patient had multiple reasons explaining these two conditions. He was on a SSRI. He had a history of alcohol abuse. And several other medical issues. What was also clear was that he had low free testosterone levels for his age cohort; and he had clinical hypogonadism.

 

The doctor discussed treatment with exogenous testosterone. They discussed the risks, benefits, and options – including low sperm count and fertility issues. The patient said he understood and gave his blessing to proceed.

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