Healthcare Reform

This is a tough one.

Readers will remember the case of Jahi McMath, the unfortunate 13 year old who underwent an operation to treat sleep apnea, including tonsillectomy. Post-op Jahi was coughing up blood. The following morning her heart rate dropped and she went into cardiac arrest. Three days later she was declared brain dead. The family challenged the hospital’s decision to take the patient off the ventilator. The family won the right to transfer Jahi to an undisclosed location in New Jersey.

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Many years ago, I took care of a worker’s comp patient. He wasn’t improving. He lamented he could not even pick up the newspaper from his yard.

 
The worker’s comp carrier obtained video surveillance footage of this same person getting in his car, traveling over two states to reach a casino. There, he was filmed with a drink in one hand, a cigarette in the other, reveling at the end of a craps table. He was kicking one leg up in the air like a UFC contender screaming “Seven come Eleven.” I don’t think he won any money; but, he looked like he was having fun.

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Most U.S. physicians are not clamoring to embrace the British healthcare system. But, one feature accessible to our colleagues across the pond is an exception. Loser pays.

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Families are pivotal in helping patients recover. They advocate for their loved ones. They give encouragement to rehabilitate. They provide reasons to push harder to live. What happens when a patient deteriorates in front of the family and a code is called? Sometimes the family is ushered out of the room. Sometimes they are pushed to the side – allowed to stay as long as they do not get in the way.

A recent California case suggests that if close family members witness negligence in implementing a code – or calling a code too late – not only can the patient sue, so can the family.

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In his sixth year of neurosurgical residency at Stanford, Dr. Paul Kalanithi developed night sweats, back pain, and cough. His weight dropped precipitously. In May, 2013, he was diagnosed with stage 4 non-small cell EGFR positive lung cancer. He had never smoked.

He was treated and went back to work.

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As medical innovation evolves, someone is the first person to do a procedure. If the results are great – wonderful. What happens if the results are great most of the time, but one patient out of 100 has a horrible complication? If that patient sues for malpractice, he will argue you were not following the standard of care, and that failure caused damages. That is the hallmark of a medical negligence suit.

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Recently, co-pilot Andreas Lubitz locked himself in the cockpit of a Germanwings plane and intentionally caused the plane to crash, killing himself and 149 passengers and crew. We are learning new information daily. Apparently, he had a doctor’s note declaring him unfit for flying on the date he crashed. And, he apparently sought help in the past for a psychiatric condition. Details are scarce. Still, no one in close proximity to Lubitz said they saw this coming. Everyone expressed shock and surprise.

Will Lubitz’s doctors be blamed, in part or in full? And, if so, what kind of liability might that trigger?

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What’s the difference between an optimist and a pessimist?

An optimist believes these are the best of times.

A pessimist is afraid he’s right.

It’s an old joke. But, it exemplifies how we expect things will turn out.

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A handful of states mandate that medical malpractice cases first be reviewed by panels of experts. These panels rule on the merits of a case. They conclude the standard of care was violated or it wasn’t.

In the states that use such panels, such as Indiana and New Mexico, the panel’s decision is not binding. A plaintiff’s attorney can ignore a smack-down and take the case to trial. But, the panel gives a strong signal as to how the winds will blow. Many – but not all – plaintiff’s attorneys take the hint.

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Dr. Orlito Trias was sued for negligence. The lower court awarded $4 million in damages.

A summary of the case was presented on the Connecticut State Medical Society website.

The case claimed that during a preoperative consultation for the removal of fibroid tumors, Dr. Trias failed to “strongly advise” the plaintiff that her family history of breast cancer greatly increased her risk for developing ovarian cancer. Although clear from the medical records that the risk of ovarian cancer was discussed, the plaintiff claimed that she was not “strongly advised” to undergo removal of her ovaries. The plaintiff subsequently developed ovarian cancer.

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