Jeffrey Segal, MD, JD

Surgeon Sentenced to Jail Time (HIPAA = Need To Know)

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In classified environments, information is only available on a need-to-know basis. If you have no official business pertaining to a file, then you don’t need to know. Healthcare professionals should consider HIPAA to be a similar environment.

Last year, Congress passed HITECH, which tightened restrictions on healthcare privacy and increased penalties for transgressions. Unauthorized access to patient records can lead to jail-time. A surgeon working as a researcher at UCLA was sentenced to jail under the HIPAA. What happened? Here’s the rest of the story:

Huping Zhou, a cardiothoracic surgeon, was working at the UCLA School of Medicine as a researcher. His employment was terminated, but UCLA’s IT department didn’t block his access to electronic medical records at the same moment; it took the university some time to process retraction of the doctor’s authorization to the database. In that interrum, Dr. Zhou accessed and read his immediate supervisor’s medical records, as well as those of former co-workers. Then, over the next few weeks, his curiosity led him to remotely access of other medical records he was unauthorized to see, including those of celebrity patients.

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Magazine Proves MD Ratings Are Questionable

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We have long questioned the validity of physician rating systems. Not just one, or some, but all MD rating systems. Even if you put two doctors in an identical circumstance, notions that the comparison between them is significant is questionable. 5280 Magazine, a publication for the Mile High city, may seem to be the exception. In reality, they prove the point for us.

Seeing the cover, though it seems quite charming. Smiling physician, complete with lab coat. A critical mind might expect a negative, though. After all, naming the top 2oo+ doctors within a city of 8000 practitioners is certain to be exclusionary. When one delves in and reads the story, though, it seems the rare exception. They’re not taking patient critiques. Quite the opposite, they’ve asked physicians to rate each other, and even gone so far as to do so in a positive fashion. They ask area physicians which doctor THEY would most trust, within a given specialty. Certainly that’s a fair appraisal, right? After all, it’s physicians performing the ratings, looking for the best. What could possibly be more fair than that?

Their methodology may seem entirely free of malevolence, without bias. Thinking it through, though, reveals the flaws. It’s still a popularity contest, even though qualified physicians are performing the “appraisals”. When you ask someone who THEY trust the most, that’s still a subjective opinion, perhaps based on many irrelevant factors. Most certainly, though, the result will come from within those physicians the individual comes into contact with, and therein lies the fatal flaw. A physician who is a social butterfly is going to be known by more people. If his reputation is that of an expert of great renown, if he speaks or educates often within the field, that will make it seem all the more certain that he’s the one to trust most, the best. The contest continues to ignore the fact that there may be several better practitioners within the field who are simply less celebrated. Perhaps they’re simply too busy treating patients with their excellence to be giving lectures or blowing their own horn. Regardless of the reason, they’re less known than the social butterfly, and yet the well-known figure is the one likely to gain the most votes.

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Patience is the Hunter’s Greatest Weapon

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by Joseph Horton, MD

I was raised by a pair of criminal lawyers in New Orleans. Being raised by wolves is not intrinsically pleasant, but it does give one a certain sense of being invulnerable to specious attacks—like while being on a witness stand. The inevitable education about courtroom and trial procedure doesn’t hurt either.

Of the two, my mother was the litigator. Tiny in size (I’m 5’3” tall and I dwarfed her), in court she stood, oh, about 11 feet tall, breathed fire, and was bulletproof. It was not a good idea to cross her there—or anywhere else, come to think of it.* One of the things that she drilled into my head was the First and Second Laws of cross-examination.** The First Law is never to ask an opposing witness a question you don’t know how he’s going to answer. The Second Law covers what to do on the very rare instances when it is OK to ask a question you don’t know how they’re going to answer: refer to the First Law.

It always amazes me how many opposing attorneys missed that lecture. Probably half the time I’ve been to trial as an expert witness, I get asked a question that there is no way they can know how I’ll answer. My best guess is that they believe that, since I really am physically small (and gray and nebbish-looking), I can’t possibly help anyone’s case but theirs. Best bet is to look as unassuming as you can, and wait for the opening. (Remember that patience thing?) Then overwhelming force usually stops the attack.

A couple examples:

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Curbside Consults are Kosher: A Breath of Fresh Air

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How often are we told as doctors? You can’t do this. Don’t do that.

We are sometimes made to feel as if we are two-year-olds.

Now for the good news. An article published by Victor Cotton, MD, JD* pushes the opposite position. Curbside consults. If you follow the basics, you’re on safe ground. A breath of fresh air.

As a neurosurgical resident, we were cautioned to avoid curbside consults. Attending physicians admonished us to get the formal consult. At Ben Taub County Hospital, our service was busy. The internal medicine service was busy. Everyone was busy. The one commodity we did not have was time.

I was forced to use the following strategy to coax an internist to see my patient – one suffering from a head injury, in the Neuro-ICU, with a gazillion lines penetrating his skin and a blood sugar of 450.

“I know you are really busy and I hate to bother you. I have a patient with severe head injury and a blood sugar of 450. Do you give one amp or two amps of insulin?”

“What! Don’t do anything. We’ll see your patient in a matter of moments.”

Mission accomplished. The more stupid I sounded, the easier it was to get a consultant to the patient’s bedside.

That made no sense to me then. It makes no sense to me today.

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Tort Reform Is Dead. Now What?

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More than a few state Supreme Courts have overturned tort reform laws in the past year. The concept is that everyone is entitled to a trial by jury, and that the courts, not legislature, should decide how much is enough. Oddly enough, the legislative branches are often opposed to tort reform as well. Whether we agree or not is irrelevant. Enough Supreme Courts have spoken that we concur that tort reform certainly in jeopardy.

What’s the next step? Do we just “stay the course,” continue the trend towards increasingly extensive defensive medicine? That is a waste of the physician’s resources as well as the patient’s time and money. The insurance companies can’t care very much for it either, since raising rates to compensate for such costs is easier said than done these days.

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Other Concealed Faults of the New HCR; The Case For Universal Healthcare

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When the new health care reform legislation was presented to the American people, one of the pushing points was that one could keep dependent children on one’s policy until they turn 26. But guess what? Not really. If your son or daughter’s employer offers health care of any kind, s/he MUST take it from the employer. It doesn’t matter if that coverage is horribly inadequate. It doesn’t matter if it costs an arm and a leg and still doesn’t actually cover anything. Yep, s/he still has to take it from the employer, and you cannot cover your child on your policy any more. That’s right, it is forbidden. So your young adult dependent MUST take the inferior coverage at the higher price. Think it’s not happening? All over the nation, companies are being sold similarly overrated policies as employers scramble to lower costs. Some do it because of economic conditions, some because they’re about to shoulder costs they didn’t have before the law, and some because reducing costs is what corporations do. Regardless, if an employer offers it, you’re stuck with it, no matter how inadequate it may be.

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Be Careful What You Say to a Patient’s Family Members

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by Michael J. Sacopulos, Esq.

A recent case from Missouri highlights the importance of keeping patient’s medical information confidential — even from that patient’s family members. A 23 year old female sustained injuries to her right arm. While being treated for these injuries, a patient alleges that a nurse informed the patient’s brother and aunt of her being HIV-positive. The patient went on to state that the same nurse announced her HIV status in a hospital corridor while transporting her from the surgical recovery room to her hospital room.

The case ultimately went to trial.

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Report Expects Medical Malpractice Costs To Rise

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This week a new report was released, indicating that medical malpractice liability costs are likely to rise for both physicians and hospitals. The study, performed by Aon Risk Solutions, cites both claim frequency against hospitals and increased claim severity as the two driving forces behind the anticipated increases in premiums. From their release:

U.S.-based hospitals are expected to face more than 44,000 claims arising from incidents occurring in 2009, according to the report, “Hospital Professional Liability and Physician Liability Benchmark Analysis,” which Aon Risk Solutions put together with the American Society for Healthcare Risk Management.

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