Patient Safety Archives | Page 4 Of 6 | Medical Malpractice Insurance Is Not Enough

Freckles and Lawsuits

by Medical Justice | Jun 20, 2017 | HIPAA, Legal, Patient Safety, Risk Management

Virtually every physician knows that patient privacy is sacred. One needs a patient’s affirmative consent to disclose what is known as protected health information. This is covered by state and federal (HIPAA) privacy laws.

If a doctor posts the medical record, that is disclosure of protected health information.

If a doctor acknowledges a particular patient is indeed a patient of his, that is disclosure of protected health information.

But, what if the doctor just describes the generalities of a case to the public, without disclosing the name or identifying information of the specific patient.

Well, it depends upon whether or not the “dots can be connected” to identify the individual.

Which brings me to Jane Doe in the Chicago area.

Ms. Doe had a breast augmentation surgery. She was presented two forms. One to allow the doctor to take photos for medical use. Later, she received a “waiver” to use the photos for promotional and marketing purposes. She supposedly only signed the first release.

Before and after pictures of the patient’s breasts were allegedly placed on the doctor’s website. No name. No face. On first blush, it would seem that these breasts were not protected health information.

Not so, as articulated in the lawsuit filed in Cook County.

Ms. Doe’s lawyer is arguing the patient has a distinctive freckle pattern on her chest allowing her to be identified by those who know her well. The complaint continued she had an intense fear that friends or family would find these photos online.

The practice took down the photos as soon as they were made aware the patient did not want them on the website. But, the lawsuit soon followed.

Sometimes, it does not take much to “identify” a patient. Could be a distinctive tattoo, scar, or anything else.

The take home message is if there is any doubt, get the patient’s written authorization to use the photos in the manner in which you intend to do so.

Which brings me to North Carolina Medical Board’s proposed Policy for the Use of Audio or Visual Recordings in Patient Care.

The backdrop:

The Board recognizes that there may be valid reasons for licensees to make audio or visual recordings of patients during a healthcare encounter. However, such recordings must be made for appropriate professional reasons and should employ safeguards that protect a patient’s autonomy, privacy, confidentiality, and dignity. In instances where a patient may be asked to disrobe, the patient should be provided an opportunity to disrobe beyond the view of any camera.

So far, so good.

Prior to an audio or visual recording being made of a patient, licensees should ensure that they have obtained the patient’s informed consent. The informed consent should be documented in the medical record and should allow the patient an opportunity to discuss any concerns before and after the recording. The patient should also be informed:

1. Of the purpose of the recording and its use;

2. That the recording is voluntary and that a refusal to be recorded will not affect the patient’s care;

3. That the patient may withdraw consent to be recorded at any time and what will be done with any prior recordings;

4. Of the possibility of accidental or deliberate dissemination during the acquisition or storage of the information.

Huh?

While I understand the rationale for getting a patient’s authorization if photos will be used for anything other than direct patient care, this policy goes much further. Note that HIPAA does NOT require a patient’s written authorization to disclose protected health information to take care of the patient. For example, you may speak with the patient’s referring doctor to take care of the patient – unless the patient explicitly tells you not to.

What if you want the medical records to include a video of a patient’s treatment after surgery for Parkinson’s disease? Before and after photos for the medical record for plastic surgery patients? How about photos of an unconscious patient being treated for trauma?

I could go on.

My take. This policy seems onerous and burdensome.

What do you think?

How Facebook Saved My Patient’s Life

by Medical Justice | Jun 6, 2017 | Blog, In The Media, Patient Safety

Sometimes you need a nugget of medical information – pronto. If your patient has been in a hospital, you likely have access to reams of data. Finding your nugget may take seconds, minutes, or hours. You may never find it.

A number of years ago, Dr. Kamal Thapar, a Wisconsin neurosurgeon, gave a talk on how Facebook provided the nugget he needed to save his patient’s life.

He saw a 56 year old unresponsive patient in the emergency department. CT of the brain showed a large hemispheric ischemic stroke with mass effect. In fact, there were multiple strokes.

The comatose patient provided no history.

She had been seen in 2 ERs over a couple of weeks. One system sent over health records, by fax. It was difficult to tell what was going on.

The patient’s son explained she had a Facebook account. She had been a meticulous documenter of her medical history. The son helped gain access. The woman had posted medications, symptoms, hospitalizations, and treatment going back months. Only the relevant stuff.

Putting the pieces together, the medical team diagnosed an atrial septal defect and cardiac aneurysm which caused and propelled emboli going to the brain. The patient was timely treated and made a good recovery.

This brings me to two other patients.

Each had surgery by a plastic surgeon. Each seemed to have a good result. Inexplicably, both lashed out at their surgeons on online review sites.

In the first case, the patient was ultimately diagnosed with bipolar syndrome. Once treated, she regained control of her life. And she was embarrassed by how she reacted online.

The second patient had a history of breast cancer. She was post-mastectomy and her surgeon performed a breast reconstruction. This patient attacked the surgeon online and suggested she would destroy his career.

This made no sense.

At the time I wrote this post, I don’t have a full explanation as to what fueled this rage. But, before attributing this behavior to an unhappy patient with access to the Internet, it makes sense to see if there is a medical reason for this activity. She had breast cancer which was treated by mastectomy. It’s possible she had metastatic disease to her brain. A large frontal lobe lesion might cause disinhibition. Such a mass could cause a patient to lose her veto control over all thoughts that would otherwise be kept in check.

The facile conclusion to being on the receiving end of such online rants might be: “The patient is angry. I never saw it coming. I wish I had never touched this patient.”

In the medical world, sometimes the words posted online are a clue to an underlying diagnosis.

Make the diagnosis and you can help the patient.

Once the patient has been helped, then ask them to tell the full story.

Of course, it’s also possible the patient is unhappy and just wants to vent and perhaps you never should have touched the patient.

What do you think?

WARNING: “Obamacare” Insurance Scams Emerging

by Medical Justice | Apr 27, 2010 | Healthcare Reform, Patient Safety

Misinformation and fear seem to be the basis for the newest insurance scam: protection against the supposed dangers of Obamacare. In Illinois, for example, an elderly lady was sold a policy that the telemarketer told her would protect her again the “death panels” that the new Health Care Reform laws are supposed to create. In Alabama, fears of “government health care reform” have caused people to give a con man their bank account info over the phone. In Kansas, people have been claiming to be government employees collecting payments for the newly required “Obamacare” insurance.

The most obvious giveaway is calling it “Obamacare” in the first place, since there is no such law or plan. Another common scam seems to be coming from people claiming to be able to expedite Medicare rebates on drug coverage. (The government specifically doesn’t allow that to be done, so you know it’s not accurate if they claim to be doing so.) If you’re at all uncertain, it’s wise to check with your state’s Insurance department or the Better Business Bureau. While the latter is no guarantee, scams may be reported there, and you may be able to read their listings online during the weekend, when the state’s offices may be closed.

When in doubt, decline to purchase or participate at that time. If they’re legit, they won’t mind selling you the policy in a few days. Perhaps the best defense is knowing enough facts about the new laws so that you are able to recognize a lie or scam. Don’t trust biased perspective and political leanings. Rely upon unbiased sources, and remember that most of the new law doesn’t come into effect for at least a few years.

C-Sections & Obesity Blamed For Rise In Maternal Mortality

by Medical Justice | Mar 7, 2010 | Healthcare Reform, Patient Safety

Perception holds that the United States has best possible health care and the days of fearing pregnancy are a thing of the past. To be fair, Maternal Mortality is rare, just 11 women in 100,000 pregnancies back in 2005. But it’s on the rise. A new report sponsored by the California Department of Health shows that the incident of Maternal Mortality has steadily grown over the past decade, rising to about 17 people in 100,000 in 2006. Statistically, it is safer for women in Poland, Croatia, Italy and Canada to give birth than it is here in the U.S. While there are a number of factors, including hemorrhage, deep-vein thrombosis, blood clots, and underlying cardiac disease, much of the risk is connected to C-sections. Dr. Mark Chassin, president of the Joint Commission, says that “as many as half of those deaths are preventable.”

One contributing factor is that more obese women are becoming pregnant — about 20 percent of all pregnant women in the U.S. these days are obese. Obesity, a danger in and of itself, becomes an even more problematic during pregnancy. What’s more, the obesity often suggests that a C-section is in order… which leads to the next cause for concern.

The CDC’s figures suggest that 31 percent of the mothers who died had chosen to have a C-section. What is in question is whether that was an actual preference or a policy decision. Studies consistently demonstrate higher mortality rates as a result of C-section deliveries — especially when the woman has had multiple C-sections. The mother herself may not prefer the C-section but many hospitals mandate C-sections for women who have had them before: even when this policy can increase the risk factors for the expectant mother and there may be no specific reason why the mother cannot deliver naturally

If C-sections are more dangerous, and multiple C-sections create an even higher risk, why would hospital policies require that a woman who has had a C-section before deliver by C-section again? When a standard policy contradicts patient safety, it seems clear that the policy must be modified.

Health care reform isn’t just a problem for the government. We, health care providers and patients, must take proactive steps to reform our health care systems; even when these steps mean questioning standard policies.

The SGR Band-aid & Why We All Should Care

by Medical Justice | Mar 6, 2010 | Healthcare Reform, Patient Safety

With Senator Bunning’s 5-day filibuster out of the way, the Senate was finally able to pass a month-long delay on SGR cuts (and extend unemployment benefits.) But a month-long extension is hardly a cure. It’s hardly a band-aid. The real problem is with the SGR itself. Medicare’s reimbursement for treatment needs to be addressed and revised so that it provides fair and equitable compensation. Then doctors can return their full attention to treating patients instead of worrying about how to keep the doors open for those patients.

Meanwhile, President Obama continues with the dog and pony show, lab coat props all around, suggesting that physicians are solidly behind the feeble excuse of health care reform. Pardon me, Mr. President, but could you tell your stage dressers that it takes more than a garment to make a doctor, and more than those props to get the American people to believe that physicians are actually endorsing such a pathetic and woefully inept excuse for Health Care Reform?

The SGR (so-called Sustainable Growth Rate) method of compensation is really just one symptom of the diseased health care system. The U.S. House of Representatives passed a bill to replace the dysfunctional SGR system back in November 2009. Yet it sits unanswered by the Senate; who just keep us all on the edge of our seats, passing temporary band-aids one after another. The real solution is the honest intent to pay physicians fairly for services provided.

Historically, politics stayed out of medical practices. Perhaps it’s time that physicians let their patients know what’s going on in Congress BEFORE the situation becomes untenable. Most patients are largely unaware of all of the problems with the SGR. Perhaps if their constituents were to tell Senators to get serious about Medicare compensation, then the Senate would pass something more significant that a 30-day band-aid.

What’s certain is that no practice can afford to continue providing care to patients at any lower reimbursement rate. It’s difficult (read: impossible) to sustain a practice at the current rate. The money has to come from somewhere. We will all pay the price, every member of our society, one way or the other. Why not simply agree to compensate physicians fairly for the services they provide, instead of looking for ways to shortchange the people who dedicate their lives to keeping us all alive and well? Indeed, the solution has more to do with appreciation than band-aids.

From The Trenches (Healthcare Reform for the Real World) #4: Support Innovation

by Medical Justice | Mar 5, 2010 | Healthcare Reform, Patient Safety

From The Trenches

(Healthcare Reform for the Real World)

#4: Support Innovation

This is the fourth in a series examining the problems in our health care system from the real world where patients get sick and injured, and doctors and other health care providers work to heal them. In the series, we’ll identify the actual non-political problems, and offer sound, sensible solutions that we can enact ourselves to reduce risk and increase patient safety.

Today’s medical industry is full of amazing technologies, things we never dreamt of 50 years ago; X-rays no longer need to be “processed,” oxygen levels are found with a meter, temperature with an instant temp gun. Computers keep track of inventory, monitor patients’ vitals, and we’re about on the verge of standardized, digital medical records. But much of this technology is obscenely profitable for the few, at the cost of many. Certainly that’s the way Capitalism works. It provides incentive to develop new technologies and abilities. But can be a double-edged sword. Consider this:

A diabetic’s test strips are his/her miner’s canary, the way s/he can tell if blood glucose levels are safe or if they’re causing damage to the body. With Type-2 diabetics, it’s not quite as crucial as with Type-1 patients (who administer insulin by injection) The industry developed complex and capable pumps, but those little devices cost about $6K each, and require maintenance supplies that are also very expensive. Those without pumps still have to do things the old-fashioned way, with syringes. (Granted, the needles have become much finer — so small that they’re often entirely painless.) So long as there’s money to be made, especially on a recurring basis, companies will be there, funding new developments. But what happens when a technology stands to eliminate a profitable item? Then our Capitalist system can suppress the innovation. Consider this:

Dr. Ren of the University of Florida developed a sensor chip capable of accurately detecting blood glucose levels (amongst things) from one’s breath. That may just seem clever to some, but for the millions of diabetics in this world, people who must stick themselves in their fingers every day, it’s a minor godsend. Great idea! No more sticking oneself, and no more test strips. HURRAY! But it may never see the market. (more…)

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