A Concise Guide to Mastering the Medical School Interview

If you or someone you know is applying to medical school, please check out "A Concise Guide to Mastering the Medical School Interview," written by myself. It is a book with many tips for the interview process as well as practice interview questions. The book is available at Amazon.com. http://www.amazon.com/Concise-Mastering-Medical-School-Interview-ebook/dp/B00X1YKDXQ/ref=dp_kinw_strp_1

Protecting Good Physicians

http://journals.lww.com/em-news/Fulltext/2015/09000/Viewpoint__Protecting_Good_Physicians.18.aspx

“Assistant Physicians,” Solution to Physician Shortage, or Recipe for Disaster?

It is well known that there is a shortage of primary care physicians throughout the country, which will continue to worsen as more people are becoming insured under the Affordable Care Act. Missouri has passed a law that creates “Assistant Physicians” to help cure the shortage problem. This law will allow graduates of medical school who have passed USMLE Step 1 and 2 (but not Step 3), but who have not completed internship or residency, to practice medicine in rural or underserved areas of Missouri. They will be allowed to prescribe Schedule III, IV, and V drugs. These physicians will initially be supervised by a fully licensed physician for 30 days, and then will be free to practice medicine in those specified areas. The licensed physician will be responsible for the activities of the Assistant Physician under a collaborative practice arrangement. So far, no Assistant Physicians have been licensed. The Board still has to establish more specific rules with regards to the licensure. They anticipate the licensure to begin in the summer or fall of this year.

I have many concerns about this law.

 • Risk to Patients: people in these rural/underserved areas will be treated by physicians with minimal clinical training and will be doing so with no direct supervision.

 • Risk to Assistant Physician: This law seems to place the Assistant Physician at a huge liability risk. What standard of care will apply to them in malpractice law suits? Will they be able to obtain malpractice insurance?
• Risk to the Licensed Physician engaged in the collaborative practice arrangement: How can you hold the Licensed Physician responsible for all the activities of the Assistant Physician when they may not be supervising them face to face?
 • Confusion: will patients understand the difference between the Assistant Physician, Physician and Physician Assistant?
 • Standard of care
           o Are we creating different standards of care for those who live in rural/underserved areas, vs. everyone else?
           o Are we creating different standards of care for different states? These physicians will not be able to obtain a license in other states, so are we lowering the standard of care of underserved patients in Missouri?

 I am a licensed physician that completed at three year residency program in Emergency Medicine. Although residency was no doubt one of the most difficult times of my life, I could not imagine practicing medicine, unsupervised, without actually training in a residency program. I believe that residency training is crucial to becoming a licensed physician. I truly understand the need for more primary care physicians; however I feel there are safer ways to do this. How about create more residency spots so these same graduates can obtain the proper training to practice medicine?

SB 716, Modifies Provisions Relating to Public Health http://www.senate.mo.gov/14info/BTS_Web/Bill.aspx?SessionType=R&BillID=28296866

Defying the AMA, Some Politicians Lower Standards for Practicing Medicine http://www.forbes.com/sites/leahbinder/2014/07/22/defying-the-ama-some-politicians-lower-standards-for-practicing-medicine/

Doctor Shortage Fix is a Disaster Waiting to Happen

http://www.healthleadersmedia.com/page-1/QUA-306258/Doctor-Shortage-Fix-Is-a-Disaster-Waiting-to-Happen

Top Health Law Questions

What are some of the top Health Law and Policy questions you would like answered? Please comment in the comment section below.

Negligent Referral

Did you know that physicians can be sued under the theory of negligent referral? If the referring physician knew or should have known that the specialist would act below the standard of care, he can be liable for negligence. The plaintiff has the burden of proof in this particular situation. In one particular case, the court stated that the referring physician must be diligent and as a gatekeeper for referrals. 

Physicians can also be held liable for referring the patient to the wrong type of specialist, for example, if you refer a patient to a Neurologist, when they really need to see a Neurosurgeon. 

What is the best way to avoid getting sued under this doctrine? When referring a patient to a specialist, unless you know of the specialist qualifications and a reasonable physician would also refer the same specialist, it is probably best to tell he patient what type of specialist they need and let them research and find a specialist they would like to see within their health plan. 

American Association for Justice. Negligent referral is a valid claim, court says. The Free Library. June 1, 1999. http://www.thefreelibrary.com/Negligent+referral+is+a+valid+claim,+court+says.-a054939489

Crane, M. Legal Pitfalls when you Refer Patients. Medscape. August 21, 2014. http://www.medscape.com/viewarticle/828402

Medical Liability Risks Associated with Communicating with Patients "Virtually"

With the increased use of technology in medicine, some physicians have started to interact with patients via this method. Some interact with well-established patients, other with new patients they have never met before. Some interact via email, telemedicine, or videoconferencing. This use is sure to increase exponentially over the next few years. Since this is a relatively new method of communicating with patients, the medical-legal landscape is unknown. 

On one hand, some argue that you cannot have a good physical exam and evaluation of a patient without actually having the opportunity to touch and examine the patient in person and that without doing so, you are providing substandard care. On the other hand, some argue that this is a very efficient way to see low acuity patients, and if they need more examination or care, they can always make an appointment to visit the physician in person, or be directed to go to the emergency room or call 911 if deemed necessary. 

According to a recent article, the number of “remote patient visits” is still very low when compared to actual in person visits, therefore there are a low incidence of malpractice claims to date. Malpractice insurance does cover telemedicine and it seems to have been accepted as the standard of care in medicine in appropriate situations. Most of the virtual networks will also limit their liability; again, by only seeing minor, low-acuity patients, that will again, limit their liability and risk. 

Another concern is with physicians that communicate with patients in other states. Every state has different rules for online consultations or telemedicine, most will likely require some type of licensure in that state in order to legally conduct this service. 

This topic has been of great interest to me over the years (and the topic of my Masters in Health Law Thesis and subsequent publication). My advice; first, for physicians that are contemplating beginning online medical consultations or telemedicine, they should first contact their current malpractice insurance carrier to determine if this service would be covered under their policy. Second, if attempting to practice in multiple states, physicians should contact those states medical licensing boards to determine their telemedicine requirements. Third, notify your insurer if your plan to practice in multiple states. 

Overall this appears to be an efficient method of seeing low acuity patients. I will be keeping a close eye on the developments in this area. 

Bailey, R. The Legal, Financial, and Ethical Implications of Online Medical Consultations. 16 J. Tech. L. & Pol’y 53 (2011).

Chesanow , N. Do Virtual Patient Visits Increase Your Risk of Being Sued? Medscape; October 22, 2014 http://www.medscape.com/viewarticle/833254?src=wnl_edit_tpal&uac=184121PG 

Sensitivity to Medical Malpractice and Defensive Medicine

This is a link to an article I wrote reviewing whether physicians that are more sensitive to malpractice are more likely to turn to defensive medicine: http://www.policyprescriptions.org/sensitivity-to-malpractice/

A Review of the No-Fault Liability System in France

This is a link to an article I recently wrote reviewing the use of a no-fault liability system in France over the past 10 years: http://www.policyprescriptions.org/crisis-becomes-opportunity/

Is the End of the $250,000 Malpractice Cap Looming Near?

In 1975, California was the first state to implement Tort Reform under the Medical Injury Compensation Reform Act. As a part of that law, non-economic damages (pain and suffering) in medical malpractice suits was capped at $250,000. Almost 40 years later, that law is still in effect. However, there is a proposed initiative that would raise this cap to $1.1 million (in order to adjust for inflation since 1975). The new measure would also allow this to continue increase to keep up with future inflation. Efforts are being made to try to put this in the November California ballot. If this does pass, it may be a sign of future change in Tort Reform.

House Passes Bill that Threatens to Shut Down the Government Unless all Spending on the ACA is Eliminated

With a week until the Health Exchange goes live, the House passed a bill that would only continue to fund the government if all spending on the Affordable Care Act is eliminated. Obviously President Obama and the Senate Democrats are not for this, which means the government may shut down if a compromise is not reached by October 1st. It has been reported that important government functions will continue (air traffic controllers, border security, social security, medicare), but that soldiers would not be paid (but have to report for duty), federal workers would have to go on unpaid leave. It is highly unlikely that this bill will pass through the Democratic-controlled Senate, but even if it does, President Obama says that he will veto the bill. This is an interesting last minute turn of events attempting to halt implementation of the new health care law. 

H.J.RES.59 -- Continuing Appropriations Resolution, 2014, September 10, 2013. http://thomas.loc.gov/cgi-bin/query/z?c113:H.J.RES.59:

House Bill Links Health Care Law and Budget Plan, New York Times, September 20, 2013. http://www.nytimes.com/2013/09/21/us/politics/house-spending-bill.html?hp&_r=0 

House Vote 478 - Passes Stopgap Spending Bill with No Health Law Funding, New York Times, September 20, 2013. http://politics.nytimes.com/congress/votes/113/house/1/478?ref=politics

Compensation for Personal Injury or Wrongful Death Arising from Medical Injury

A few months ago I wrote about a proposal in the Florida legislature to create a Patient Compensation System. In this system, an injured patient would file a claim with the help of a patient advocate, a medical review department would research and review the claim, a fee schedule would be used to determine and recommend an amount for economic and non-economic damages. If there was a dispute, a judge would determine whether law was appropriately applied. Money that physicians currently pay for malpractice premiums would go towards funding the Patients’ Compensation System. This Bill was introduced in March 2013, Senate Bill 1134/House Bill 897.

 

I wanted to update you that this Bill did not pass. Even though the legislature did not pass in Florida, I personally believe this is a very interesting model to help curb liability and health care costs, and more importantly, compensate injured patients faster. I think other states may use this system as an example to consider when considering implementing novel tort reform practices.

 

References

1. Guglielmo, WJ. Movement to A No-Fault Liability System. Medscape. September 13, 2012. http://www.medscape.com/viewarticle/770384. Accessed September 17, 2013.

 2. Latner, AW. Florida Considers patient Compensation System.. The Clinical Advisor. February 21, 2012. http://www.clinicaladvisor.com/florida-considers-patient-compensation-system/article/228551/ Accessed September 17, 2013.

3. Compensation for Personal Injury or Wrongful Death Arising from Medical Injury. http://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=50137 Accessed September 17, 2013

Update on Missed MI and Willful and Wanton Negligence in Texas

Last year I wrote about a case where a physician and hospital were found guilty of negligence for missing a Myocardial Infarction (i.e., heart attack) in a patient under the willful and wanton doctrine that was created in Texas as a part of tort reform. That case was appealed by the hospital and subsequently reversed. “We hold that the evidence of deviation from the standard of care by St. Mary’s nursing staff is legally insufficient to support the jury’s finding that the willful and wanton negligence of the hospital was a proximate cause of Stacy’s death.” It looks like Texas continues to hold very stringent requirements for determining medical negligence.

 

More information can be found here: http://setexasrecord.com/news/239006-st-mary-hospital-wins-appeal-of-1-2m-jury-verdict

 

My original blog post:

Monday, September 12, 2011 Missed Myocardial Infarction Held to Constitute Willful and Wanton Negligence in Texas As a part of Tort reform in Texas, in order to find a physician providing emergency medical services　guilty of negligence, the claimant must show that the doctor acted with willful and wanton negligence. Willful and wanton negligence is defined as　gross negligence. Plaintiffs must prove that ER doctors acted with conscious indifference, or gross negligence, rather than simple negligence. This is extremely difficult to prove and is one of the primary reasons for the decrease in medical malpractice cases against emergency medicine physicians in Texas. However, recently a Texas court held a hospital liable for willful and wanton negligence for a missed MI. This is a rare precedent in Texas since the enactment of Tort Reform.　 An elderly woman with history of diabetes and hypertension presented to ER with chief complaint of chest pain, chest discomfort and chest tightness. She was triaged as level 3 (low severity level), given albuterol nebulizer treatments and discharged home with a prescription for captopril. She he died at home the next day, autopsy reported that cause of death was MI (severe atherosclerotic disease was seen).　 It was later determined that during her brief stay in the ER, she had 2 EKGs done (one EKG was reported normal but the other showed a Septal Infarct). 　 The treating physician settled out of court and the hospital was found liable for negligence.　 The court found that prematurely discharging a patient with chest pain, improperly interpreting EKG results, and prescribing medication without first determining the effect it will have on the patient’s cardiovascular system constituted willful and wanton negligence (gross negligence). 　

 

More information on this case can be found here: http://www.beaumontenterprise.com/news/article/St-Mary-s-found-negligent-in-ER-death-737829.php

Health Insurance Marketplace

Open enrollment for the new Health Insurance Marketplace created under the Affordable Care Act is set to debut on October 1st. There is a website that is available to apply for coverage, compare plans and enroll. The website also provides individuals information about whether they qualify for health insurance under the marketplace, qualify for lower cost insurance, what is available in their individual state marketplace, as well as what specific benefits are available for indivudials, families and small businessess. This site can be used by indiviudals that do not have insurance, as well as individuals with insurance looking to change their current insurance. The link to this website is: https://www.healthcare.gov/

The State of Medical Malpractice Payouts

I have written a few articles and blog posts about medical malpractice.  A company recently published a study of medical malpractice claims from 2012.  Some interesting findings are:

 

• New York had the highest dollar amount of total payouts for 2012, $763,088, 250. 
• 48% of all payouts came from only 5 states (New York, New Jersey, California, Florida and Pennsylvania). 
• The vast majority of payouts were from settlements; only 5% of payouts made it to trial and were received from a judgement. 
• Texas and North Dakota had the lowest, per capita payouts.
• The highest percentage of malpractice claims were due to failure to diagnose.
 

A link to that study can be found here:
Diederich Heatlhcare 2013 Medical Malpractice Payout Analysis.
http://www.diederichhealthcare.com/medical-malpractice-insurance/2013-medical-malpractice-payout-analysis/

Links to some of my articles on Medical Malpractice:

Bailey, R.  Resident Liability in Medical Malpractice. Annals of Emergency Medicine (January 2013).

http://www.annemergmed.com/article/S0196-0644(12)00409-X/abstract

 

Bailey, R. Medical Liability Reform: The Good, The Bad and The Ugly. What’s Up in Emergency Medicine (June 2011). https://www.emra.org/content.aspx?id=583

 

Bailey, R. The Litigators Lions Pit: The Top 10 Medical Malpractice Issues Every Resident Should Know. What’s Up in Emergency Medicine (March 2011).

http://www.emra.org/content.aspx?id=597

Patient Sues Hospital, Nurse and EM Doctor for Malpractice for Being Left on a Bedpan Too Long

A patient in Louisiana filed a lawsuit for being left on a bedpan too long.  The patient arrived to the Emergency Room with a chief complaint of severe headache, dizziness, nausea and vomiting. At some point during his ER stay, the patient was given an enema, placed on a bedpan and then given medication that made him fall asleep.  Apparently he stayed on the bedpan for over 4 hours, subsequently developed swelling and pain of both lower extremities and was diagnosed with deep vein thrombosis of both lower extremities.

 

I am interested in finding more details about this case and also interested in following the arguments and ruling.  My biggest question, how would the doctor know that the patient has been stuck on the bedpan if he didn't place it there himself?

 

Barnett K. Man sues hospital that allegedly left him on bedpan for over four hours. The Louisiana Record. February 12, 2013. http://louisianarecord.com/news/249019-man-sues-hospital-who-allegedly-left-him-on-bedpan-for-over-four-hours

A Novel Approach to Medical Liability Reform, No-Fault Liability

I have written multiple articles on Medical Liability and its reform.  Another idea has been proposed, institution of a no-fault liability system. There is currently a proposal in the Florida legislature to create what they have named, a Patients’ Compensation System.  In this system, an injured patient would file a claim with the help of a patient advocate, a medical review department would research and review the claim, a fee schedule would be used to determine and recommend an amount for economic and non-economic damages.₁  If there was a dispute, a judge would determine whether law was appropriately applied. 

The proposed system would hypothetically be faster and also much cheaper than the current system.₂  It is also believed that by removing blame from the equation, physicians will be less likely to practice defensive medicine, which in turn would help lower cost of medical care by billions.  “If an effective no-fault PCS would be enacted, and assuming a slow change in physicians' defensive medicine behavior, first year savings for payors could be $1.5 billion; that number may grow to annual savings exceeding $16 billion when physicians have reduced their defensive medicine practices significantly.” ₃ 

Money that physicians currently pay for malpractice premiums would go towards funding the Patients’ Compensation System.

I think this is a very interesting system to help curb liability and health care costs, and more importantly, compensate injured patients faster.  I will be keeping a close watch on how this develops.

 

References

1.      Guglielmo, WJ. Movement to A No-Fault Liability System.  Medscape. September 13, 2012.  http://www.medscape.com/viewarticle/770384.  Accessed September 18, 2012.

2.      Latner, AW.  Florida Considers patient Compensation System.. The Clinical Advisor. February 21, 2012. http://www.clinicaladvisor.com/florida-considers-patient-compensation-system/article/228551/ Accessed September 18, 2012.

3.      Bioscience Valuation. The economics of defensive medicine and no-fault patients' compensation systems: Florida. July 6, 2012. http://www.patientsforfaircompensation.org/media/21160/bioscience-fl.pdf Accessed September 18, 2012.

Are Health Care Workers Ethically Obligated to Receive Influenza Vaccinations?

I recently wrote a post about a new law in Texas requiring health care facilities to require their employees to obtain vaccinations, including the influenza vaccination. The National Vaccine Advisory Committee also announced that health care facilities should consider requiring their employees to receive influenza vaccinations. 

 

I then came across a very interesting perspective.  An ethicist recently wrote an article about this topic, proposing that health care workers are ethically obligated to get the influenza vaccination.  I agree with his view point.  Influenza is a very communicable, but preventable disease.  Health care providers are susceptible to obtaining the virus from their patients, and passing it on to other patients.  By nature, we are also tempted, even feel obligated to work when ill (and still infectious).  We take an oath to do no harm to our patients, and one of the easiest ways to do so is to obtain vaccinations for communicable diseases.

 

 

A link to the article can be found here:

Why Hospital Workers Should be Forced to Get Flu Shots,

http://www.medscape.com/viewarticle/770383

New Law in Texas Requires Vaccination of Healthcare Providers

It has been well documented that unvaccinated health care workers have been implicated in hospital outbreaks of influenza.  A new law in Texas seeks to help reduce these outbreaks.  Starting September 1, health care facilities (hospitals, nursing homes, dialysis centers, ambulatory surgical centers, birthing centers, freestanding ERs) will be required to implement preventable disease immunization policies.

Health care workers can be exempt from the policy for health reasons, but they will have to take precautions if they have contact with patients (e.g., wear masks).

Hopefully implementation of this new law will aid in preventing the spread of vaccine-preventable diseases and help improve patient health and safety.

More information can be found in the August 2012 issue of Texas Medicine:

Code, C.  Lifesaving Shots.  Texas Medicine.  August 2012.

Massachusetts Implements Program for Disclosing Mistakes, Apologizing and Offering Compensation In Lieu of Litigation

In an effort to reform Medical Liability, Massachusetts has created what they call the “Road Map to Reform,’’  The purpose of this plan is for doctors and nurses to fully disclose mistakes to patients and apologize.  In addition, anyone, including patients or family members, can report a suspected error.  At that point the hospital will investigate the situation and determine if the medical staff or the hospital was at fault.  If they determine they were at fault, they will apologize and work with their malpractice insurers to determine the amount of compensation. Patients who accept the financial settlement surrender their right to sue, but those who decline the settlement can pursue legal action. On average in Massachusetts it takes 5 1/2 years for patients to be awarded money in the traditional litigation system, so this also creates a way for patients to receive financial compensation for their injuries earlier than the traditional litigation system.

This effort will first be tested out in 7 hospitals before implementing it statewide. The purpose of the program is to increase reporting of medical mistakes and cut down on lengthy litigation that they believe drives up health care costs.

Similar programs have been implemented in other states, and have been successful in decreasing the number of malpractice claims in addition to a decreasing the cost of medical liability insurance.

It is good ethical practice for health care workers to acknowledge their mistakes and apologize.  These types of programs may be a way to improve that practice, decrease litigation and help the injured party receive compensation earlier than in the traditional programs.

More information can be found in this recent article:

Kowalczyk, L. Massachusetts Hospitals Promise Openness, Apologies.  The Boston Globe.  Available at: http://bostonglobe.com/metro/2012/04/18/mass-hospitals-promise-openness-apologies/z7HH8c8J1aPUf2d4lYggvM/story.html

Governor of Washington State Suspends Policy that Would have Denied Payment for Certain ED Visits made by Medicaid Patients

In February I wrote about Washington State legislators enacting a law that would deny payment for ED visits that were deemed medically unnecessary. This law was set to take effect on April 1st of this year. However, Governor Chris Gregoire of Washington state recently announced that she is suspending this policy and is considering implementing the alternatives that were suggested and discussed in my original blog.

Friday, February 10, 2012

Update on Washington State Health Care Authority Denying Payment for Emergency Services of Medicaid Patients

Earlier this week I wrote about a new law in Washington State that would deny payment for all Emergency Department Visits that the Washington State Health Care Authority (HCA) deems "not medically necessary" in the ER. The Washington Chapter of the American College of Emergency Physicians, the Washington State Medical Association, and the Washington State Hospital Association have joined forces and have created an online petition to stop this. The petition can be found at http://www.thepetitionsite.com/3/stop-denying-payment-of-emergency-services-to-medicaid-patients/

In addition to the petition, they offer suggestions to save health care costs without denying Medicaid payments for Emergency Department visits. Their suggestions include:

• Reducing ED visits for narcotic-seeking behavior.
• Increasing access to primary care and reducing ED visits by collaborative use of next-day or same-day visits to primary care.
• Creating a "Generics First" initiative spearheaded by physicians to voluntarily develop a statewide drug formulary.
• Instituting an extensive case management program to reduce ED utilization by frequent users.
• Tracking emergency room visits to reduce ED shopping.

The new rule is set to take effect on April 1st. I will be watching closely for any updates