Healthcare Reform

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.

As most doctors know, a malpractice action is grounded in first establishing a physician-patient relationship. This is a fiduciary situation in which a duty of care is owed to the specific patient.

However, there are unusual cases where a third party sues a doctor for negligence. Here, liability has increasingly been found via general negligence principles.

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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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