Maximizing Benefits and Minimizing Risks

The title and focus of the conference was “Introducing New Technologies to Patient Care: The Promise and the Peril.”  Speaker Thomas Krummel, MD, of Stanford University, set the tone for the event by emphasizing that the modern, responsible approach to “Never Do Harm” is maximizing benefits while minimizing risks to the patient.  To this end, the seminar was flush with revolutionary medical technologies and methods, carrying the promise of maximal patient benefits… and the peril of catastrophic harms, if utilized incorrectly.

Robotic Surgery Continues to Progress

Frederic Moll, MD, co-founder of seminal robotic device innovator Intuitive Surgical, Inc. and now Hansen Medical, Inc. explained the accuracy and efficiency of new robotic surgery techniques.  A technique that continues to gain ground is the use of 3D preoperative imaging to allow surgical robots to “learn” the patient’s body before a procedure.  This allows the surgeon, who formerly had the benefit of physically touching the tissue he was working with, to sit at a remote video station and control a precise robotic surgical tool, without completely losing his sense of touch, or “haptic feedback” from the patient.

The Promises and Perils of Telemedicine

Attorney Janice Mulligan of Mulligan & Banham discussed the promises and perils of “telemedicine” with Lawrence Friedman, MD and Brett Meyer, MD of UCSD.  Telemedicine, or “therapy at a distance,” allows a physician or specialist in one area of the world to examine, or even perform procedures (via robot control) upon a patient in another.

The benefits of telemedicine are stunning – the best physicians become instantly available to the patients most in need, wherever they may be.  But proper physician adaptation to this new paradigm of care is essential. Legal concerns are also paramount. Mulligan cautioned that under existing law, a doctor from one state operating on a patient in another state without proper licensing can lead to criminal charges as well as unlimited civil liability and medical licensure censure. Change in states laws to facilitate telemedicine law across state and federal borders is necessary,but it is hampered by laws designed to preserve business for doctors in the states where patients are located.

Evolving EMR Standards

Joshua Lee, MD, of UCSD lectured about the rise in prevalence of Electronic Medical Records (EMR) and the need for vigilance in EMR standards to safely and ethically realize the possibilities of this exponentially expanding data cache.  Todd Pawlicki, PhD, also of UCSD, expressed pointed criticisms of the current state of electronic data platforms in medicine, urging hospitals to demand the same information-rich but user-friendly standard from their vendors that consumers demand of tech giant Apple, Inc.

Veteran Physicians: The New Novices

The common theme throughout the presentations on Thursday was that emerging technology and treatment techniques, with all of their hopes of “maximizing benefits” for patients, threaten to run afoul of the essential second half of the modern “Never Do Harm” tenet:  “minimizing patient risks.”  As cautioned by Dr. Moll, when you change the tools, you change the risk profile of a procedure. A poignant example was the personal experience of Santiago Horgan, MD (UCSD) with the treatment of achalasia.  Dr. Horgan has had to learn and re-learn how to perform surgical treatment for this disorder four times, in four different ways, over just two decades, due to evolving methodological standards.

The disconnect between the way physicians were taught to practice in medical school, and the procedures that are now demanded of them, is more pronounced now than ever before.  Experienced, “hands-on” surgeons are being told they should sit at a computer and control their scalpels with joysticks. Patients, the consumers of medicine, demand progressive laparoscopic and robotic techniques from their doctors, which are marketed to them as safer, cheaper, and with less cosmetic consequence.  But this change of tools has the practical effect of transforming veteran surgeons into novice students.  No matter how promising a new technology may be, in the hands of the inexperienced, it can be treacherous.

Lack of Opportunities to Train

Experience is everything.  The seminar’s consensus of the solution to realizing the maximal patient benefits promised by new technology, while minimizing the peril for patients, is a simple one:  PRACTICE.  And this practice is simply not available, nor ethically appropriate, “in the field” – i.e., by operating on patients.

Christopher Kane, MD, of UCSD, explained that in the case of robotic radical prostatectomies, for example, data shows that a surgeon does not reach proficiency until around his 300th procedure.  But the average urologist performs only about twelve of these procedures a year, and is “certified” after his second proctored procedure.  Given that lack of exposure, how can a surgeon become competent, much less proficient, even over an entire career?  And what is the use of emerging technology, if through lack of experience it causes more harm than existing techniques?

Prescription: Precise Simulation

Thankfully, the conference presented more than a diagnosis of the problem; but also a prescription for it.  UCSD, already the largest and most well-equipped teaching hospital in the region, has been busy building the solution.  The new, state of the art Simulation Training Center at the UCSD School of Medicine contains multiple mock-up patient rooms, operating rooms and training mannequins, and precisely the same equipment that trainees will use in the “real world” – from the latest multi-million dollar surgical robots down to fully functioning autoclaves (for sterilization of tools used on… dummies!  That’s thorough.)

Dr. Horgan, a world class physician and pioneer in laparoscopic procedures, robotic surgery, and emerging NOTES techniques (“scarless” surgery through natural orifices), has taken on an integral, hands-on role in the development of the Center and the execution of its goals.

The richness and authenticity of this training experience promises to take a novice to near proficiency before he or she need ever attempt the procedure on a living patient.  The Center is already in use and in high demand, not just by medical students, but by physicians and health care workers from UCSD and other area hospitals.

Don’t Be Your Doctor’s Dummy

For those of us in Southern California and surrounding areas, we are extremely fortunate that UCSD’s Simulation Training Center exists.  Patients take note: this training is available.  The better physicians, surgeons and nurses are taking advantage of it.  Demand the experience and demonstrated skill that simulated training provides from your health care provider – particularly if you are considering progressive surgical technologies or techniques.

http://www.sdcourt.ca.gov/portal/page?_pageid=55,1056871&_dad=portal&_schema=portal.

If you find that a specific physician has been sued on numerous occasions, it may well be worth a personal trip to the courthouse to pull the entire files and learn more about the individual before allowing the physician to operate or even treat you or your loved ones.
Unfortunately, not all physicians who have been sued multiple times for malpractice have public records at the courthouse. Shocked? How can this be? Well, because many physicians have arbitration agreements which require their cases to be resolved outside of the courthouse by private arbitrators. Often, these lawsuits are never filed in court.
You may be able to learn more about these physicians by checking with the California Medical Board online at:http://www.medbd.ca.gov/lookup.html The Medical Board’s website should be able to tell you if the physician has been disciplined or even formally accused of wrongdoing by the Medical Board or some limited information about the physician’s past settlements or judgments in other medical malpractice litigation. More bad news though, because the Medical Board is under-funded and under-staffed, so on occasion there is no listing even for physicians with a “colored past”.
If you can’t universally rely on court filings or the state licensing/discipline board to tell you if a physician is really good what do you do? Word of mouth from other family and friends who have used a particular physician’s services is often a good way to find such a professional.
New to a community or don’t know anyone who is familiar with a specialist in a particular field of medicine? Often the best physicians are at the university based community hospitals, such as the University of California, San Diego (“UCSD”). These physicians typically are at the top of their field of expertise and more interested in academia and research than some of the for-profit physicians. By doing a little research on the university medical center’s website, you will likely be even able to find a specific doctor who is trained in and conducts research in specific diseases or injuries of interest to you.
One caveat however is that some recent studies have shown that medical errors spike in the summer when new medical trainees start working at teaching hospitals — a phenomenon known as the ‘July effect.’ The New York Times (7/12/11, D6, Rabin, Subscription Publication) reports that death rates do increase in July, and that many patients stay in the hospital longer than in other months.” The Wall Street Journal (7/11, Hobson) “Health Blog” reported that for the review, published in the Annals of Internal Medicine, investigators looked at data from 39 different studies.The Boston Globe (7/11, Kotz) “Daily Dose” blog reported that “the best-quality studies reviewed found that patients treated in July had a 4 to 12 percent increase in mortality risk compared to those treated in the spring before the staffing change.” Meanwhile, “Some of the studies also indicated an increase in medical errors and complications from procedures, but the data weren’t strong enough to draw firm conclusions.” HealthDay (7/11, Mozes) and Medscape (7/11, Kling).
Remember, even if you do find a good physician, a true second opinion from an independent specialist at a different medical group is always a good idea before embarking on surgery. Sometimes a third opinion is even better!
Stay healthy, eat your veggies and exercise. If you are lucky, only preventative medicine and a yearly check up will be all that is required. If not, a trip to the courthouse before surgery to check on your doctor beats the need for a medical malpractice attorney after an adverse event.

The 1994 case of Liebeck v. McDonald’s Restaurants, 1995 WL 360309, involved a 79 year old grandmother, Stella Liebeck from Albuquerque, New Mexico. Ms. Liebeck ordered coffee from a local McDonald’s and after receiving the order, her grandson pulled his car forward and stopped so Ms. Liebeck could add cream and sugar to her coffee. Ms. Liebeck placed the coffee cup between her knees and as she removed the lid, the entire contents of the cup spilled into her lap. She suffered third degree burns (the most significant degree of burns) to over 6 percent of her body, including her inner thighs, groins, and abdomen. She had lesser burns to 16% of her body. She was hospitalized for eight days and underwent skin grafting to repair her grossly damaged skin.

Ms. Liebeck attempted to settle her claim for her medical bills of $20,000, but McDonald’s refused and offered her a measly $800. A lawsuit was filed and during the discovery phase of litigation, McDonald’s produced documents showing that there were more than 700 claims by people burned by coffee over a ten year span. McDonald’s also revealed that its coffee was held between 180 and 190 degrees, while most coffee is sold at a substantially lower temperature. Matter of fact, coffee served at home is generally 135 to 140 degrees. McDonald’s knew their coffee was exceptionally hot and had burned many customers over the past 10 years, but claimed that the millions of cups of coffee sold per day was worth the risk.

The court ordered two settlement conferences, but McDonald’s failed to show, wanting instead to go trial because a jury in New Mexico had never returned a products liability verdict in favor of a Plaintiff. At trial, a jury awarded $200,000 in compensatory damages to Ms. Liebeck. This amount was reduced to $160,000 because the jury found Ms. Liebeck 20 percent at fault. Here’s the kicker though and why this case is so well known, the jury awarded $2.7 million in punitive damages to punish McDonald’s. This amount equaled two days of McDonalds’ coffee sales. The judge reduced the punitive damages award to $480,000 for a total verdict of $640,000. The parties eventually settled the case for a confidential amount, reportedly less than $600,000.

There is a lot of hype about the McDonald’s hot coffee case. The McDonald’s case should be well-known in our society as an example of our justice’s system of checks and balances. It is NOT an example of a runaway jury or windfall to the Plaintiff. And it is definitely NOT a frivolous lawsuit either, given the severity of Ms. Liebeck’s burns and the arrogance/reckless/willful conduct of McDonald’s.

For more information, or if you or a loved one, have been injured as the result of the negligence of another in California, please contact the experienced lawyers at Mulligan & Banham. Our telephone number is 619-238-8700.

Does defensive medicine exist? Is it the real reason doctors and hospitals order more tests for their patients? The following are a couple other reasons to consider why doctors and hospital order additional tests, besides for the most obvious reason, the benefit of a patient:

Morbidity and Mortality (M&M) Conferences – M&M conferences are held regularly in hospitals and clinics across the country. They are peer review assessment of mistakes made during the care of patients. The objective of an M&M conference is for doctors to learn from complications and errors, to modify behavior and judgment based on previous experiences, and to prevent repetition of errors. Once a doctor has presented at an M&M, he/she will probably never make that same mistake again – but he/she may also start ordering more tests on his/her patients for minor symptoms.

Money - Radiology tests all cost money, lots of money. For instance, MRI’s can cost from $400 to $3,500 depending upon which MRI procedure is performed and the location of the testing facility. Doctors and hospitals have contracts with radiology testing companies and testing centers. While physicians are prohibited from having a financial interest in a referral under the Stark Law (Section 1877 of the Social Security Act (42 U.S.C. 1395nn)), the average MRI machine costs over $1 million dollars. Thus, radiology testing centers have to charge enough per test to cover the expense of the machine. And if no tests are ordered, no one makes any money.

Today’s Doctors - Radiology tests have become a crutch for our doctors. According to a recent Time Magazine Article, doctors are no longer taught how to distinguish patients who need testing from those who do not. A decade ago, a surgeon would spend time interviewing and carefully examining a patient to help decide if he or she needed a CT. Nowadays, many surgeons, especially the younger ones, won’t see a patient until the CT is complete. Radiology testing has become more of a reflex than a higher level, well-thought out decision.

Next time you hear someone say that “defensive medicine is the reason doctors cannot practice medicine,” ask them about these other reasons as well.

For more information, or if you or a loved one, have been injured as the result of medical malpractice in California, please contact the experienced lawyers at Mulligan & Banham. Our telephone number is 619-238-8700.

On February 4, 2002, Delaney Lucille Gonzales, 16 months old, went to UCLA Medical Center for a routine surgery to repair a cleft palate. It was supposed to be the first of several surgeries to repair malformations on Delaney’s head and face caused by Treacher Collins syndrome, a rare birth defect.

The initial operation on Delaney was successful, according to medical records, BUT a breathing tube was misplaced and pumped air into Delaney’s stomach rather than her lungs. Because Delaney’s body was deprived of oxygen, her heart stopped. She suffered irreversible brain damage. Delaney Gonzalez passed away less than an hour later.

While no one can put a price on the life of a child, twenty-five years before Delaney was born, in 1975, California lawmakers passed a law known as MICRA that determined Delaney Gonzalez’s life was only worth $250,000. That cap on “non-economic damages” for pain and suffering would override the decision of any jury that may think Delaney’s life is worth more.

When a child dies, the other available damages in a wrongful death lawsuit, known as “economic damages,” are very low because future lost wages are difficult to prove and no medical expenses remain. Medical experts, court costs and legal fees, which can easily run more than $100,000 in a complicated medical malpractice case, are not considered “economic damages” either, so they must be subtracted from the settlement or verdict. Thus, Delaney’s family would only receive $250,000 for “non-economic damages,” minus expenses and legal fees, unless they are able to prove Negligent Infliction of Emotional Distress (NIED) or Fraud which would allow for a greater recovery beyond the MICRA cap on “non-economic damages.”

Voters and lawmakers should reject proposals which set an arbitrary value on the life of every child who is the victim of medical mistakes.

For more information, or if you or a loved one, have been injured as the result of medical malpractice in California, please contact the experienced lawyers at Mulligan & Banham. Our telephone number is 619-238-8700.

What is a frivolous lawsuit? In legal terms, a “frivolous lawsuit” is one having no legal basis or merit, often filed to harass or extort money from the defendant. Most people use the word “frivolous” to describe someone or something that is unconcerned about or lacking any serious purpose. Proponents of tort reform often argue that “frivolous” medical malpractice lawsuits increase insurance premiums for hospital and physicians, increase health care costs, and do not allow doctors to practice medicine.

This begs the questions – are there really that many “frivolous” medical malpractice lawsuits in the United States? Tort reform supporters often cite a 2006 Harvard School of Public Health Study as evidence that there are too many frivolous med mal lawsuits. Representative Lamar Smith (R-Tex), who is the ranking Republican on the House Judiciary Committee, and Darren McKinney of the American Tort Reform Association, both publicly cited the Harvard study for the proposition that 40 percent of medical malpractice suits filed in the U.S. are “without merit” or “groundless.”

It is clear that those who rely on the 2006 Harvard Study to promote the idea that “frivolous” lawsuits have a severe impact on health care didn’t actually read it. Or, if they did, they chose to ignore that authors’ conclusion that efforts to “curb frivolous litigation, if successful, will have a relatively limited effect on the caseload and costs of litigation (emphasis added).” As William Sage, now the vice provost for health affairs at the University of Texas at Austin School of Law, said when the Harvard study was published, “the major problem out there is medical errors that are not compensated, rather than frivolous claims that are compensated.” The most seriously injured patients are the ones whose monetary compensation is severely limited and do not receive the justice they so desperately deserve.

For more information, or if you or a loved one, have been injured as the result of medical malpractice in California, please contact the experienced lawyers at Mulligan & Banham. Our telephone number is 619-238-8700.

According to the article, USC Hospital performs about two transplants a week, which means there are a little over a 100 kidney transplants in a given year. Dr. Goran Klintmalm, a veteran surgeon at Baylor Regional Transplant Institute in Dallas, was quoted as saying that such a mistake is almost inconceivable. “The safeguards are very substantial,” he said. “I can’t even imagine how this mistake could have happened.”

According to a 2000 study by the American Heart Association, medical errors cost tens of thousands of lives in hospitals across the United States each year – more than deaths from highway accidents, breast cancer, and AIDS combined. Studies have put the numbers of deaths at over 98,000 annually in hospitals.

For more information, or if you or a loved one, have been injured as the result of medical malpractice in California, please contact the experienced lawyers at Mulligan & Banham. Our telephone number is 619-238-8700.

How does this compare to the State of California? While California does not have a cap on overall damages in medical malpractice lawsuits, California does have a cap on non-economic damages for things such as pain, suffering, and loss of companionship. The Medical Injury Compensation Recovery Act of 1975, known as MICRA, sets a limit on non-economic damages at no more than $250,000 in California. This cap on non-economic damages has not changed in over 36 years!!!

Using an inflation calculator based on data from U.S. government’s Consumer Price Index (CPI), $250,000 in 1975 is equivalent to a whopping $1,023.341 in the year 2011. That’s an increase of over 300%. Or, another way of putting it, $250,000 in 2011 is equivalent to only $61,074 in 1975.

The non-economic damages cap in California is particularly unfair to young children, the elderly, the disabled, and stay-at-home parents. Basically, anyone who was not working or underemployed at the time of their injury or death. As a result of the substantial costs involved in pursuing a medical malpractice case, the cap on non-economic damages prevents many California citizens who have been harmed by a doctor or hospital, through no fault of their own, from being able to seek justice.

For more information, or if you or a loved one, have been injured as the result of medical malpractice in California, please contact the experienced lawyers at Mulligan & Banham. Our telephone number is 619-238-8700.

MICRA applies to actions (i.e. lawsuits) filed against a “health care provider” based on “professional negligence” or medical malpractice. MICRA’s most controversial element is a $250,000 cap on non-economic damages for pain & suffering, regardless of how egregious the medical negligence or how serious the injury. The $250,000 limitation on non-economic damages is not indexed for inflation. There is also a limitation on attorney contingency fees in medical malpractice cases (40 % of the first $50,000, 33.33 % of the next $50,000, 25 % of the next $500,000, and 15 % of any amount that exceeds $600,000), the statute of limitations for actions against healthcare providers was shortened by MICRA, there is a requirement that there be advance notice of claims against healthcare providers, MICRA allows for binding arbitrations, MICRA abrogates the collateral source rule, and MICRA allows for doctors to pay judgments over time.

In California, there are certain causes of actions where MICRA’s cap on non-economic damages is not applicable. The following is a list of the types of cases, that when established, can allow for greater recovery: Battery (Perry v. Shaw (2001) 88 Cal.App.4^th 658), Elder Abuse and Dependent Adult Actions (see CA Welfare & Institutions Code Section 15657), Fraud, Unfair Business Practices (CA Business and Professions Code Section 17200), unlicensed health care providers (including telemedicine care) for residents by out of state health care providers (Lathrop v. Healthcare Partners Medical Group (2004) 114 Cal.App.4th 1412) and a failure to summon medical care for a prisoner (Flores v. Natividad Medical Center (1987) 192 Cal.App.3d 1106).

For more information, or if you or a loved one, have been injured as the result of medical malpractice in California, please contact the experienced lawyers at Mulligan & Banham. Our telephone number is 619-238-8700.