Day on Torts

The November 2007 Annals of Surgery  has an interesting article on surgical errors.  The abstract of the article says that  the authors "analyzed 444 randomly sampled surgical malpractice claims from four liability insurers. Among 258 claims in which injuries due to error were detected, 52% (n = 133) involved technical errors."

They found that "[f]orty-nine percent of the technical errors caused permanent disability; an additional 16% resulted in death. Two-thirds (65%) of the technical errors were linked to manual error, 9% to errors in judgment, and 26% to both manual and judgment error. A minority of technical errors involved advanced procedures requiring special training ("index operations"; 16%), surgeons inexperienced with the task (14%), or poorly supervised residents (9%). The majority involved experienced surgeons (73%), and occurred in routine, rather than index, operations (84%). Patient-related complexities-including emergencies, difficult or unexpected anatomy, and previous surgery-contributed to 61% of technical errors, and technology or systems failures contributed to 21%."

So, what do they conclude?  "Most technical errors occur in routine operations with experienced surgeons, under conditions of increased patient complexity or systems failure. Commonly recommended interventions, including restricting high-complexity operations to experienced surgeons, additional training for inexperienced surgeons, and stricter supervision of trainees, are likely to address only a minority of technical errors. Surgical safety research should instead focus on improving decision-making and performance in routine operations for complex patients and circumstances."

I thought the "error in judgment" number was the fascinating.  After 26 years of work in this area of the law, I have heard everything blamed on error in judgment.

Find the article here.  Thanks to the DC Med Mal Blog for informing me about the article.

Yesterday I wrote about tort statistics revealed by the 2006-07 "Annual Report of the Tennessee Judiciary."  Among the statistics I cited was that there were 584 medical malpractices cases filed in the state of Tennessee and a total of 15 medical malpractice trials.

To put that in perspective, remember that according to the National Institute of Health 98,000 people a year die in the United States from malpractice in hospitals alone.  Assuming that Tennessee is neither worse nor better than average, that means that 1986 Tennesseans die each year as a result of malpractice in a hospital setting (because we have about 2% of the nation's population).

And yet only 584 malpractice cases were filed in the entire state for the fiscal year ending June 30, 2007.  Those cases presumably involved not only deaths in hospitals but also injuries in hospitals and deaths and injuries in outpatient settings, nursing homes and surgery centers.  They also include cases against pharmacies and home health agencies and outpatient physical therapy centers.

Look at Davidson County.  It had 166 medical malpractice cases filed.  Using statistics complied the Tennessee Advisory Commission on Intergovernmental Relations, one can determine that Davidson County has about 3200 doctors, 3600 hospital beds and 3000 nursing home beds.  Assuming the hospitals run an 60% census (and that is just a guess) Davidson County has just over 788,000 total hospital bed days per year.   Assuming a 90% census (another guess) for nursing homes,  there are  just under 1,000,000 nursing home bed days in Davidson County per year. 

That's about 1,800,000 patient days where patients receiving care and are exposed to the risk of a medical error.

If the average physician performs services for 60 patients per week 48 weeks per year that is another 9,200,000 patient contacts.

Now, we all know that there were more than 166 injuries and deaths caused by medical negligence in Davidson County in the year covered by the Report.  Indeed, the NIH statistics tell us that there were about 190 deaths.

So what's going on?  There are lots of explanations.  First, lawyers who do medical malpractices cases do not take "small" cases because the costs of prosecuting the cases is significant and the time that must be invested makes pursuit of the cases uneconomical.  Most medical errors cause relatively minor injuries.  Second, a significant number of patients don't want to be involved in litigation, which is certainly understandable.  Third, a good number of patients (or their survivors) don't know what happened to give rise to an injury or death and lack the will, sophistication, or energy to investigate it.  Fourth, some patients who make inquiry are not told the truth.  And undoubtedly there are other reasons as well.

But I think these numbers tell us that (a) there is not an explosion in claims against health care providers and (b) if anything, the legal system has done a poor job providing access to justice for people with "small" cases.  The ultimate cost of malpractice in all those cases is borne by the patients and their health insurers (public or private).

The statistics cited above need to be refined slightly.  I don't have the precise number of doctors in the state or in any county, the average census of hospitals or nursing homes, etc.  But I think at the end of the day the statistics determined with more reliable figures would demonstrate that the so-called medical malpractice crisis is manufactured.

By the way, here is a link to the Department of Commerce and Insurance Report on Medical Malpractice cases.  Please note that it uses calendar years for reporting.

This post is taken from an email sent out by Janabeth Fleming Taylor at Attorney Medical Services:

ICD-9 codes (Think of it as "Diagnosis" Code)

http://www.cdc.gov/nchs/icd9.htm

The International Classification of Diseases (ICD) is the classification used to code and classify mortality data from death certificates.

The International Classification of Diseases, Clinical Modification (ICD-9-CM) is used to code and classify morbidity data from the inpatient and outpatient records, physician offices, and most National Center for Health Statistics (NCHS) surveys.

CPT Codes -Current Procedural Terminology (Think of it as "Procedure Code" upon which reimbursement is determined)

https://catalog.ama-assn.org/Catalog/cpt/cpt_search.jsp?checkXwho=done

CPT Codes describe medical or psychiatric procedures performed by physicians and other health providers. The codes were developed by the Health Care Financing Administration (HCFA) to assist in the assignment of reimbursement amounts to providers by Medicare carriers. A growing number of managed care and other insurance companies, however, base their reimbursements on the values established by HCFA.

Since the early 1970s, HCFA has asked the American Medical Association (AMA) to work with physicians of every specialty to determine appropriate definitions for the codes and to try to determine accurate reimbursement amounts for each code. Two committees within AMA work on these issues: the CPT Committee, which updates the definitions of the codes, and the RUC (Relative Value Update Committee), which recommends reimbursement values to HCFA based on data collected by medical societies on the going rate of services described in the codes.

Medicare Unique Physician Identification Numbers (UPIN) - UPIN is a six-position alphanumeric identifier that is assigned to all Medicare physicians, medical groups and non-physician practitioners.

UPIN are assigned as follows:

Physicians (Medical Doctors) begin with A - M
Limited License Practitioners, e.g., Chiropractors, Dentist, etc, begin with T - V
Non-Physician Practitioners, e.g., Anesthesia Assistants, Physician Assistants, Clinical Nurse Practitioners, etc, are assigned P -S
Group Entities, e.g., Ambulance, Independent Physiological Lab, etc, are assigned W - Y
See below for the applicable Credential Codes:

AA : Anesthesia Assistant
AMB : Ambulance Service Supplier
ASC : Ambulatory Surgical Center
AU : Audiologist
CH : Chiropractor
CNA : Certified Nurse Anesthetist
CNM : Certified Nurse Midwife
CNS : Certified Clinical Nurse Specialist
CP : Clinical Psychologist
CSW : Clinical Social Worker
DDM : Doctor of Dental Medicine
DDS : Doctor of Dental Surgery
DO : Doctor of Osteopathy
DPM : Podiatrist
FNP : Family Nurse Practitioner
GRP : Group
IDF : Independent Diagnostic Facility
IPL : Independent Physiological Lab
LAB : Laboratory
MD : Medical Doctor
MSC : Mammography Screening Center
NP : Nurse Practitioner
OD : Doctor of Optometry
OT : Occupational Therapist
PA : Physician Assistant
PHS : Public Health Service
PSY : Psychologist
PT : Physical Therapist
PXS : Portable XRay Supplier
RNA : Certified Registered Nurse

Code Modifiers for Alternative Medicine - ABC codes and terminology are maintained and developed annually as consumers, individual practitioners, practitioner associations and other health industry organizations submit code requests that reflect current practices in alternative medicine, nursing and integrative healthcare. This is an attempt to fill in the "gaps" left from other coding, and is done to support research and compile data by practioner type. These include treatment by massage therapists, acupuncturists, etc. These may not be seen in traditional billing records, but may be referenced in charting or other records obtained from non-traditional medical sources: http://www.alternativelink.com/ali/abc_codes/code_mode.asp

Need to go to back to school on the neck and back?  Check out Spine University.

Click on the Spine Wizard, select the area of the spine that you are interested in, and read a detailed description of the various procedures that can be used to treat pain in that area.

There are also printable booklets on these subjects:

Spine University Topics (Spine - General)

Spondyloarthropathies

Spine University Topics (Spine - Cervical)

Anterior Cervical Discectomy and Fusion

Cervical Artificial Disc Replacement

Cervical Corpectomy and Strut Graft

Cervical Discectomy

Cervical Foraminotomy

Spine University Topics (Spine - Lumbar)

Anterior Lumbar Fusion with Cages

Anterior Lumbar Interbody Fusion

Back Care Boot Camp

Low Back Pain

Lumbar Artificial Disc Replacement

Spine University Topics (Spine - Thoracic)

Kyphoplasty

Scheuermann's Disease

Spinal Compression Fractures

Thoracic Disc Herniation

Thoracic Spine Anatomy

Chronic Pain Management

Epidural Steroid Injections

Facet Joint Injections

Injections for Pain Prin

Pain Pumps

A professional liability insurer has posted this information on fetal monitoring for doctors.

The opening paragraph:  "Initially, the fetal monitor was developed for the intrapartum period to better evaluate the status of the fetus during labor. Earlier identification of pending acidosis and hypoxia would alert the obstetric team, leading to more timely intervention and thus a significant reduction in the incidence of neonatal morbidity and mortality. Though clinical trials have failed to demonstrate a significant impact on morbidity and mortality, fetal monitoring is now essentially universal."

This is interesting:

"While monitoring can be ambiguous, certain persistent patterns on a tracing require a response on the part of the practitioner. These include but are not limited to:

                    Severe variable decelerations
                    Persistent late decelerations with a nonreactive tracing
                    Persistent fetal tachycardia with a nonreactive tracing
                    Prolonged bradycardia

Failure to execute an intervention or form a plan in these situations may make it difficult to defend against a malpractice allegation. "

The Joint Commission on International Patient Safety has a website that it calls "Patient Safety Practices."

Here is the introduction to the site:  "Welcome to Patient Safety Practices, a new online resource for health care professionals and the public. Over 900 links to trusted patient safety websites are provided, with tips, tools and resources for addressing patient safety problems. The problem categories and topics have been culled from the Joint Commission's Sentinel Event Database."

If you are looking for information on wrong site surgery, you will find links to a large number of sites, including this one from the American College of Surgeons.

Enjoy.

The American Association of Pediatricians  has issued  "Guidelines and Levels of Care for Pediatric Intensive Care Units." 

The abstract: "The practice of pediatric critical care medicine has matured dramatically during the past decade. These guidelines are presented to update the existing guidelines published in 1993. Pediatric critical care services are provided in level I and level II units. Within these guidelines, the scope of pediatric critical care services is discussed, including organizational and administrative structure, hospital facilities and services, personnel, drugs and equipment, quality monitoring, and training and continuing education. "

The citation:  PEDIATRICS Vol. 114 No. 4 October 2004, pp. 1114-1125.

Here is the PDF version of the article.

Author of a recent article published  in Medicine, Health Care and Philosophy have taken a hard look at the 1986 article in the New England Journal of Medicine by Karin Nelson and Jonas Ellenberg that led the medical community to sing in chorus that lack of oxygen was rarely a cause of cerebral palsey.

The new article finds that the central argument of the 1986 article relies on "straightforwardly fallacious statistical reasoning."  The author's concern is that the 1986 article  improperly influences "how carefully fetuses are monitored during labor and delivery, expert testimony in malpractice cases, and public policy decisions."

(Remember my recent post on the birth-related injuries prevented by Seaton hospitals after they instituted various measures to provide more uniform care to expectant mothers?  If lack of oxygen is rarely a cause of cerebral palsey why did those (and other) injuries decrease by almost 90% when new procedures were adopted?)

You can purchase the article here, although I must tell you that if you lack a solid background in statistics it is a challenge to read and comprehend.  I would post the article for you but I am not sure I have the right to do that since you have to pay ($30) to purchase it.

What I find interesting about the article is that it provides more evidence that we must never accept as true what we read in medical literature.  As recent experience as shown regarding the risks associated with consumption of Vioxx, information contained in medical journals is not necessarily true or complete.  The authors of some of the articles  have an agenda other than helping other doctors treat patients, or they may be receiving compensation from, say, a drug or device manufacturer that may cause reasonable people to give different weight  to the findings and conclusions expressed.

Over time, things tend to work out.  By that I mean that erroneous positions in medical articles will be exposed over time.  One problem is that in the meantime tremendous harm can be done to patients and litigants when "experts" rely on medical or scientific literature that lacks a solid basis.

The other problem is the resources to attack "bad" literature.  It costs alot of money to conduct solid scientific research?  Who pays for the effort?  A competing drug company or manufacturer?  The government?  Plaintiff's lawyers?

Three things must be done at a minimum.  First, the editors of the publications must conduct true peer review of the research, insisting that the researchers disclose all underlying data, assumptions, etc.  Second, the editors must insist upon complete disclosure of all economic and other ties between the authors, their institutions and families with any entity that could economically benefit from the publication of the research.  The disclosure should be a "black box" disclosure, such as you find in the PDR about very significant adverse risks attendant to the use of certain medications.

Finally, judges must be educated that the mere fact that something is published in medical or scientific literature doesn't make it Gospel.  There is a tendency for all of us to assume that if something finds its way to a publication it must be accurate, particularly if the publication is well-known.  But, as the recent experiences with Vioxx tell us, even the folks at the NEJM can be lead astray.

A picture is worth a thousand words - or maybe more.

Click here to get access to a great list of websites that have videos and stills on a host of medical issues. Some of the sites are copyrighted, but at least you can look at the sites to educate yourself and, if you need to use the images for deposition, mediation or trial, know where you can purchase the images you need.

Thanks again to Robert for telling me about this site.

Read more about the American Heart Association's new CPR and ECC guidelines at this post our medical malpractice blog.

Here is the website of the American Society of Anesthesiologists that lists their "Standards, Guidelines and Statements."

There is a gold mine of information here for use in medical negligence cases.

This is a link to doctor's website that collects a large number of sources of medical information. It is the best collection of medical links I have seen to date.