5 Comments

1. Joseph Horton on February 5, 2021 at 5:59 pm

   “Still, to comply with the Americans with Disabilities Act, if a surgeon turns a patient with a disability away, he needs to document objective reasons why the risk is not reasonable. By objective, I mean why many surgeons would come to the same conclusion.”

   I’ve written before that I refused to treat elective patients with aneurysms because their native risk of complications was ~ 20x that of non-smokers. As far as I was concerned, they were disabled, and that disability was what created the risk. Most other surgeons didn’t have the same risk aversion I did (I don’t do these any more, hence the past tense), so I’d fall outside the above protection.

   My general approach to that is that I don’t have the skill necessary to treat them at an acceptable risk level. I ~always~ offered to refer them to colleagues who were not as twitchy as I was. Interestingly, not a single one accepted a referral–not even the ones who wouldn’t stop smoking. I think they had secret death wishes.

   “If the patient can be reasonably accommodated to bring the risk coming down, then one must do so.”

   What does that even mean, in the context of what I just wrote? Having a patient stop smoking for a month? I tried that. Often they would, sometimes they wouldn’t.

   Still, I had this nagging feeling in the back of my head that this patient was not really hoping to have a procedure done. I wondered whether he was hoping to be abruptly turned away. I wondered if this patient was a “tester.”

   Kinda like the guys who went into the Masterpiece Cake Shop? They didn’t want a cake; they wanted a fight.

   • Medical Justice on February 7, 2021 at 9:20 pm

     I’m not convinced a patient who has an “elective” aneurysm would meet the definition of being disabled per ADA. To be considered legally disabled, the condition must interfere with targeted activities of daily living. Perhaps in specific cases, some patients do meet this definition. Nonetheless, if the patient will not stop smoking because it increases the risk of the procedure, you ARE within your rights to say no. You described stats describing how the risk can be modified and it is entirely in the patient’s hands. Once you are comfortable the risk has been lowered (by the patient), then you’d be free to say yes to the procedure.

2. Michael M. Rosenblatt on February 5, 2021 at 8:17 pm

   In the Seattle area, where I was working, there was a disabled attorney who had a “stable” of other disabled people who went out looking for small businesses to sue under Americans for Disability Act” access requirements.

   Ramps, stairs, hand holds, rest room access, signage and other features were observed in an effort to create a letter threatening a lawsuit unless a demand was paid.

   Statistics were hard to collect but it was roughly estimated that he put about 35O small businesses out of business over the years he was working.

   Right now, governors in Democrat run states are accomplishing much worse during the Pandemic.

   Michael M. Rosenblatt, DPM

3. retired on February 5, 2021 at 10:11 pm

   Who benefits from these torts? Was someone damaged? What exactly is the harm that occurred? Doesn’t there have to be some injury to a patient before they can sue, not just a violation of law? How does putting a business out of business benefit the unemployed employees? What is the cost of the compliance the with letter of the ADA requirements? Does everyone know that if one electronically submits claims to Medicare and Medicaid, then one is attesting that they are HIPAA compliant. Yet is you can hear patients discussing anything medically related ie appointments with another physician, then care can be inferred, and privacy could be considered to be violated. If one sends out testers for HIPAA compliance, virtually no facility could meet the standard. Who is going to bear the huge costs of making every office and every department in a hospital HIPAA compliant. The ambulatory surgery areas in most outpatient settings for hospitals are relatively small cramped spaces with curtains between them. So conversations between physician and patient could not remotely be considered to be private. The liability cost of anesthesia equipment 20 years ago was about 30% of the total price. Today it is probably closer to 50%. Lawyers benefit enormously from all of these liability issues because they wrote the laws to benefit themselves. However society as a whole suffers and pays a cost to keep these lawyers well paid. Again 20 years ago there was 1 lawyers for every 5 persons in the US. Given that law schools have continued to crank out graduates, the ratio is probably 1 lawyer for every 4 persons now. The law school graduates then have to find creative new ways to twist the laws so that they can make a living. Japan 20 years ago had less than 1/3 of the lawyers that the US does. Also in thinking about it, how many people visit their lawyers multiple times per year? How many people visit a lawyer even once per year? Compare that to the number of physician visits per year. The bottom line is that the current track is unaffordable. The number of law school graduates must be capped, as there are far too many lawyers and far too little work for them to do. Class action lawsuits are now used as cudgels to extort money from companies. The DOJ also uses similar tactics to extort funds from companies even though no wrongdoing is admitted in most cases. Where does this end? I submit that we should all pay into a liability insurance pool that covers the cost of all liability cases, including malpractice, no matter what the cause. The payments into the pool should be capped at a set amount per citizen and per business per year, in one national pool. Any judgements against a business or person, gets paid out of that. The amount of the judgement should then be prorated downward, against the total amount that was contributed into the pool for that year. If an excess amount exists, it should be allocated to businesses and citizens that apply after they have been injured by lawsuits. Or the money can be returned to the citizens. By the fact that the amount of the judgement is not paid until following year when the total amount collected, and the total judgement amounts are known, lawyers will have to wait to be paid. Then the judgement will be prorated, so that the more lawsuits and more liability cases, then the less each case will bring back to attorneys. This will eventually have the effect of deterring lawyers from filing all of these cases, since their payout will decline year over year. The law causing the no fault contributions should be set so that there can never be any increase in the contributions per person or per business. The only way that contributions would go up would be by an increase in the numbers of businesses and increases in the population. Those citizens under age 26 would not be required to contribute. Illegal aliens and other non citizens would pay twice as much as the set amount to represent the fact that their non citizen status indicates a less than full understanding of the law, and would deter them from using the current legal system to try to obtain a windfall advantage.

4. Teri Lautman on February 15, 2021 at 1:19 pm

   What suggestions do you have to address this issue?