Category Archives: National

September 2019 Newsletter

Longer statutes of limitation could invite in lawsuit abuse A challenge to Kentucky’s longstanding statute of limitations on medical liability lawsuit filings could open the door for additional litigation – and medical lawsuit abuse. A case is currently pending before the Supreme Court of Kentucky, seeking permission for a lawsuit to continue outside the statute of limitations under a narrow doctrine intended to apply in situations where continuous care is provided after an instance of negligence. In this case, the plaintiff is challenging that the statute of limitations should be waived anytime a patient is receiving follow up care from any health care provider at the same institution. Ruling in support of expanding that window would have negative repercussions. The Litigation Center of the American Medical Association and State Medical Societies, along with the Kentucky Medical Association, filed an amicus brief with the court. The brief detailed the effect overturning current law would have in permitting patients with lifelong conditions such as diabetes or asthma who receive continuous follow up care to be able to file lawsuits indefinitely. “Such a result would destroy the predictability and certainty essential to the ‘peace and welfare of society’ that the General Assembly sought…

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Electronic-related med mal claims increasing: The Doctors

SOURCE: Business Insurance The number of medical malpractice claims stemming at least in part from electronic health records is increasing and may become a more frequent risk factor, says a report by a medical malpractice insurer. An analysis of 216 claims closed from 2010 to 2018 indicates the pace of these claims grew from a low of seven in 2010 to an average of 22.5 cases per year in 2017 and 2018, according to the study by Napa, California-based The Doctors Co. Electronic health records “are typically contributing factors rather than the primary cause of claims, and the frequency with an EHR factor continues to be low (1.1 percent of all claims closed since 2010),” says the study by Darrell Ranum, vice president of patient safety and risk management at the insurer. “Still, as EHRs approach near-universal adoption, they may become a more prevalent source of risk.” The report says the EHR-related claims closed from 2010 to 2018 were caused by either system technology and design issues, such as electronic systems or technology failure, or by user-related issues. One example presented in the study was of an elderly female patient with sinus complaints, for whom the physician intended to order…

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August 2019 Newsletter

Liability reforms must be more than skin deep An analysis by University of Virginia (UVA) researchers on the prevalence of unnecessary medical tests highlighted the effect on health care costs and patient anxiety, leading a retired neurologist to reflect on how reforms must go beyond the superficial. The initiative followed a report by UVA researchers Andrew Parsons, a hospitalist and an assistant professor of medicine, and Joe Wiencek, a pathologist and an assistant professor of pathology, which found that diagnostic care that offered little value to patients is estimated to cost our health care system $800 billion annually. By offering technical solutions, such as a screen alert when a doctor orders a certain test and a weekly email that analyzes the amount of tests a doctor orders as compared with their peers, they seek to drive down unnecessary costs. Retired Virginia neurologist Dr. Justiniano F. Campa urged policymakers and patients to consider the root cause – a physician’s fear of being faced with a lawsuit. “I have to point out that the main reason for those tests lies in doctors’ fear of being sued, an event that can stop and destroy a hard-earned reputation and career,” Campa writes. While he…

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Opinion/Letter: Unnecessary tests need deep reform

SOURCE: The Daily Progress The July 28 issue of The Daily Progress relates the initiative from two young members of the University of Virginia faculty, Dr. Joseph Wiencek and Dr. Andrew Parsons, about reducing unnecessary medical tests. As a retired neurologist from 40 years of clinical practice, I have to point out that the main reason for those tests lies in doctors’ fear of being sued, an event that can stop and destroy a hard-earned reputation and career. One of my UVa mentors told us, “If you practice long enough, you will be sued.” This fear might lead doctors to: 1) order more tests, 2) refer patients to more expensive tertiary care hospitals and 3) contribute to the current flight to become hospital employees, where ordering more tests is easy and expected, instead of remaining in independent practice. Add these three contingencies, and guess what is the additional cost to our health care? A figure for this cost is not readily available and seldom mentioned, truly a political taboo. Yet I and my contemporary colleagues estimate it at 20% to 25%. When one compares this malpractice cost in the U.S. to the likely 3% in the European countries, it is…

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UVa researchers lead effort to reduce unnecessary medical tests

SOURCE: The Daily Progress Unnecessary medical tests can add to a patient’s costs, discomfort and anxiety as more and more tests cascade in an effort to chase the cause of a symptom. A doctor may order those tests out of a worthy desire to take care of a patient, according to University of Virginia researchers, but when the tests are not needed, they don’t add much value. Instead, according to Dr. Andrew Parsons, a hospitalist and an assistant professor of medicine, and Joe Wiencek, a pathologist and an assistant professor of pathology, hospitals and medical schools can do a better job educating doctors and patients about what tests are supposed to do and when they’re effective — and when to avoid them. The two have teamed up as part of a UVa effort to examine levels of testing and try out various methods to ensure that only useful tests are ordered. “Even in the beginning of medical school, they instill a culture that you should be quite thorough,” Parsons said. “And that makes sense, but we’re trying to switch that culture from thoroughness to appropriateness.” In a June report for the journal Clinical Lab Manager, the two researchers wrote that…

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July 2019 Newsletter

Opportunity for ACCESS: Liability reform introduced in Congress A new bill introduced in Congress offers the opportunity to limit the patchwork of medical liability laws and bring certainty to patients across the country seeking access to care. The Accessible Care by Curbing Excessive LawSuitS Act (ACCESS Act) is a comprehensive medical liability reform bill introduced by Representative Richard Hudson (R-NC) and modeled after proven reforms already in place in Texas, California, and many other states around the country. Rep. Hudson was joined in introducing the bill by Representatives Roger Marshall, MD (R-KS) and Larry Bucshon, MD (R-IN). The bill, H.R. 3656, ensures full and unlimited recovery of economic damages to deserving patients for expenses such as lost wages, past and future medical expenses, rehabilitation costs, and other out-of-pocket expenses. The legislation also permits the additional recovery of up to $250,000 for non-economic damages, such as damages awarded for pain and suffering, and the bill also protects states’ rights in the process. Recent estimates from the Congressional Budget Office (CBO) and the staff of the Joint Committee on Taxation (JCT) estimate that the provisions included in the bill would reduce federal spending by about $14 billion over five years, and almost…

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Strong physician-patient relationships improve care, ward off malpractice suits

SOURCE: AAP News As experts in prevention, pediatricians need to know essential strategies to prevent medical liability claims. Ample research shows that communicating skillfully and fostering effective physician-patient relationships can help pediatricians avoid malpractice litigation. The literature also provides insights on how pediatricians can enhance communication skills. Communication differences between physicians and surgeons with malpractice histories and those with none are revealing. A sentinel study found that primary care physicians with no malpractice claims employed the following communication techniques: oriented patients about what the visit would entail, solicited opinions and concerns, verified patient understanding, and spent more time during office visits. No such differences were identified among surgeons with malpractice claims and those without (Levinson W, et al. JAMA.1997;277:553-559). A recent analysis of 24,000 medical liability claims from 2009-’13 by CRICO, a program that insures Harvard medical institutions and their affiliates, revealed that communication failures were factors in 30% of malpractice suits. More than half of those cases resulted from communication problems between providers and patients/families. Another study found that one-third of malpractice litigation was related to communication problems manifested by the physician appearing inattentive, discourteous or providing inadequate information (Roter D. J Health Care Law Policy. 2006;9:304-314). Research shows…

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A Missed Opportunity for the Malpractice System to Improve Health Care

SOURCE: The New York Times The American medical malpractice system is doing almost nothing to improve the quality of health care, research suggests. What may be more concerning is that there is very little discussion, much less action, on reform. Despite worries among doctors that they are at financial risk from large payouts to plaintiffs, it turns out that a small percentage are responsible for a huge number of claims. A new study, confirming earlier research, found that about 2 percent of doctors accounted for about 39 percent of all claims in the United States. The study contained other valuable information about a system that not only compensates patients who have been harmed, but is also supposed to identify physicians who may be performing poorly and need correction. First, these doctors quit at higher rates than other physicians. This is considered good news by the medical profession. These doctors also tend not to pick up and move somewhere else to start fresh (which many thought they’d do given that licenses and malpractice are regulated at the state level). But the overwhelming majority of doctors who had five or more paid claims kept on going. And they also moved to solo…

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June 2019 Newsletter

Lifting liability limits in New Mexico could take medical system from bad to worse Already ranking two spots from the bottom on access to health care when compared to all U.S. states, New Mexico patients now face another obstacle if personal injury attorneys have their way. Challenges stemming from a rural landscape, an aging population, and low physician pay influencing recruitment already make it difficult for patients to access affordable health care. Making things worse is an attempt to raise reasonable limits on non-economic damages to $2 million for individual physicians and $25 million for medical entities, which includes many small practices. Michael Kaufman, MD, of Taos Medical Group, who has practiced internal medicine in Taos for more than 40 years, expressed what many fellow practitioners were feeling: “If this goes through, we’re out of here.” Dr. Kaufman cited an impossible operating environment for a four-physician, three-nurse practitioner practice due to higher insurance premiums required to remain covered under an increased limit. While the measure was defeated – for now – due to overwhelming opposition by the healthcare community demonstrating their concern for their patients’ access to healthcare, it remains likely to be introduced again in the future. Click here…

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May 2019 Newsletter

Minnesota liability ruling trends towards dangerous precedent for patients Setting a troubling precedent that could limit collaborative patient care efforts, the Minnesota Supreme Court recently ruled in favor of expanding liability and opening the door for an increase in medical lawsuit abuse. In mid-April, the Court issued a ruling case of Warren v. Dinter, reversing precedent and stating that the existence of a physician-patient relationship was not a prerequisite for bringing forth a medical liability lawsuit. The Court declared that legal actions could proceed if the harm suffered by an individual — even if they were not considered a patient of the physician — was a “reasonably foreseeable consequence” of the physician’s actions. Supporting the defendant were the American Medical Association (AMA), Minnesota Medical Association (MMA), and the Minnesota Hospital Association (MHA), on the basis that this new precedent could expose physicians and other health professionals to expanded liability risks in situations that were previously protected, including unbilled consultations, and discourage collaboration. “The overall expansive language in the Court’s opinion does raise concerns,” said Mark Fogg, general counsel of COPIC, MMA’s endorsed medical professional liability insurance provider. “We respectfully believe that it is important that a physician-patient relationship be established…

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