Jeffrey Segal, MD, JD

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

One of the most aggravating issues in the daily life of a medical practice is the request for records by non-physicians. 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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by Dr. J.D. – a physician and plaintiff’s attorney, practicing in the Northeast

There is a lot of good that comes from EHR.

Electronic records allow an unprecedented capacity for continuity of care. Tele-medicine permits consults not just across the country but across the world. Just not having to physically transcribe notes saves time. E-prescribing eliminates calls from pharmacies unable to decipher handwriting. Legibility itself prevents many lawsuits.

In fact, as revealed in a 2008 study in the Archives of Internal Medicine, malpractice payouts correlate inversely with EHR use. The authors cited improved follow-up and legibility among the factors that not only reduced adverse outcomes but also made physicians more defensible if they were sued.

On the other hand, EHR carries new risks as the flip side to every advantageous coin.

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