Jeffrey Segal, MD, JD

Finally…a non-controversial blog post.

My mother taught me not say anything if I could not say something nice. Suffice it to say, many times I have fallen short of that aspirational goal. And, diving deep into the Affordable Care Act, I could not find much positive to say.

In particular, there was almost nothing written about reigning in the dysfunctional medico-legal tort system. To the extent anything about med mal is buried in the ACA, it is limited to a “sense of the Senate” – a nonbinding statement used to express the position of the Senate on a particular issue. Through this language, the ACA suggests states should be prodded to “develop and test” alternatives to the existing medico-legal tort system. And Congress should “consider establishing a State demonstration” to run pilot projects on such solutions.” The ACA, however, includes no funding or binding provisions to those ends.

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In 1997, Dr. Robert Smith, a Scottish surgeon saw a patient with an atypical request. He wanted the surgeon to amputate his perfectly healthy left leg. Why the request? The patient argued his left foot wasn’t part of him. “It felt alien.” Dr. Smith had the patient see a psychiatrist. The patient was diagnosed with Body Integrity Identity Disorder (BIID). Smith performed the operation. At follow-up a couple of years later, the patient reported his life was positively transformed by the operation. Word got out. Smith saw another such patient and performed a similar amputation. And the second patient also reported a positive result.

Then, the story hit the media. The public reacted. Smith was ordered by his hospital to cease and desist.

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Surgeons are typically afforded great latitude in choosing whether or not to operate on a patient. For example, Jehovah’s Witnesses generally eschew transfusion of blood products. If a Jehovah’s Witness needs a coronary artery bypass, you are not obligated to operate on this patient. You can, of course, send the patient to another surgeon who will accede to the restrictions. If you make the decision to cut, you must honor the patient’s religious request to avoid using blood products. But, if you’re not comfortable with the demand, you can Just Say No.

Further, you can generally refuse to operate on an elective patient because you don’t like him. If that is the real reason, and it’s not based on the fact the patient belongs to a particular protected class, such as race or religion, you’re typically on safe ground.

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The FDA has been in the news lately. For those returning from two month news-free National Geographic vacation in Antarctica, a compounding pharmacy in Massachusetts was supplying vials of preservative free methyl-prednisolone for epidural injections and much more. Some of these vials were tainted with fungus. Many people got sick. Some died. The FDA does not typically have any statutory authority over such compounding pharmacies. But, anything related to pharmaceuticals gone bad gets the attention of the FDA. So, it took us a while to get an answer from the FDA about a completely unrelated item – also in the news, but less so.

The cycling world went public with evidence about performance enhancing ‘doping.” Doping is defined broadly, and includes anabolic steroids, EPO, human growth hormone, and more. Whether doping was or is ubiquitous in the cycling world is not the subject of this blog. It’s the question of whether doctors can prescribe various pharmaceuticals and stay on the right side of the law.

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By now it’s common knowledge that a compounding pharmacy in Massachusetts delivered tainted preservative free methyl-prednisolone to a number of hospitals / clinics. The taint was a fungus. And morbidity and mortality have climbed.

Why did doctors/ facilities even order from a compounding pharmacy? Two reasons: First, the typical preservatives used to suppress fungus can wreak havoc if the injection accidentally strays into the spinal sac (CSF). So, preservative-free is, in principle, a good idea as it is impossible to know with certainty the injection is in the epidural space. There are ways to be quite sure – but not completely sure.

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Warren West’s pregnant wife died during an emergency delivery in Nevada in 2005. His daughter was born with severe brain damage.

Attorney Chris Gellner filed a malpractice lawsuit. Another attorney, Dave Haley, served as guardian ad litem for the child.

Here’s what they negotiated. A $238,000 settlement. But, only $30,000 was to go to the daughter.

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by Dr. J.D. – a physician and plaintiff’s attorney, practicing in the Northeast

That the choice to ally with someone who has harmed your patient and to deny your patient critical facts about their own health is an utter betrayal of the trust at the core of the physician-patient relationship is obvious.

However, it is also an excellent way to get yourself sued, and sued in a way that your malpractice insurance will not cover and that your malpractice carrier will not defend.

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by Dr. J.D. – a physician and plaintiff’s attorney, practicing in the Northeast

In Part 1, we discussed that one of the most aggravating issues in the daily life of a medical practice is the request for records by non-physicians. To recap, patients are vociferously certain of what they presume their rights are, third parties try to be become involved where they do not belong, and legal process hovers over many situations. Physicians and their staffs end up feeling caught in the middle. No surprise.

However, most of the anxiety is the result of misconceptions about rules that are usually easily manageable.

There are five basic rules that are the keys to avoiding both anxiety and liability:

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