Law & Medicine

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following best describes this hypothetical case?

A. The nurse is negligent; but for her handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The jury can assume the man's respiratory distress was likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's handwriting may have contributed to the injury, that does not get the hospitalist off the hook. He should have rechecked the allergy history. The facts in this case raise the issue of medication error, which sometimes amounts to negligence. However, to win a malpractice lawsuit, the plaintiff has to prove causation—that is, that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong that affects private citizens and is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

“Standard of care” can be defined as follows: “The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill, and care ordinarily possessed and employed by members of the profession in good standing” (Prosser W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed. St. Paul, Minn.: West Publishing Co., 1984; pp. 186-7).

Medical malpractice or negligence is therefore an act or omission by a health care professional that departs from this defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some define medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (error of execution) or the use of a wrong plan to achieve an aim (error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000; p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. But if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence.

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia said: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following best describes this hypothetical case?

A. The nurse is negligent; but for her handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The jury can assume the man's respiratory distress was likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's handwriting may have contributed to the injury, that does not get the hospitalist off the hook. He should have rechecked the allergy history. The facts in this case raise the issue of medication error, which sometimes amounts to negligence. However, to win a malpractice lawsuit, the plaintiff has to prove causation—that is, that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong that affects private citizens and is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

“Standard of care” can be defined as follows: “The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill, and care ordinarily possessed and employed by members of the profession in good standing” (Prosser W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed. St. Paul, Minn.: West Publishing Co., 1984; pp. 186-7).

Medical malpractice or negligence is therefore an act or omission by a health care professional that departs from this defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some define medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (error of execution) or the use of a wrong plan to achieve an aim (error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000; p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. But if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence.

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia said: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following best describes this hypothetical case?

A. The nurse is negligent; but for her handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The jury can assume the man's respiratory distress was likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's handwriting may have contributed to the injury, that does not get the hospitalist off the hook. He should have rechecked the allergy history. The facts in this case raise the issue of medication error, which sometimes amounts to negligence. However, to win a malpractice lawsuit, the plaintiff has to prove causation—that is, that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong that affects private citizens and is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

“Standard of care” can be defined as follows: “The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill, and care ordinarily possessed and employed by members of the profession in good standing” (Prosser W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed. St. Paul, Minn.: West Publishing Co., 1984; pp. 186-7).

Medical malpractice or negligence is therefore an act or omission by a health care professional that departs from this defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some define medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (error of execution) or the use of a wrong plan to achieve an aim (error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000; p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. But if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence.

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia said: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation that he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following statements best describes this hypothetical case?

A. The triage nurse, rather than the hospitalist, is negligent; but for her illegible handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The man's respiratory distress was most likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's poor handwriting may have contributed to the injury, that does not get the hospitalist off the hook, as he should have rechecked the allergy history. The facts in this case do raise the issue of medication error, which often but not always amounts to negligence. However, in order to win a malpractice lawsuit, the plaintiff has to affirmatively prove causation—i.e., that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong affecting private citizens that is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator, although there is a separate class of legal wrongs termed intentional torts where the wrongdoing is intentional, such as assault and battery. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

Medical malpractice, also called medical negligence, is an act or omission by a health care professional that departs from the defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say that medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some authors have defined medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (e.g., error of execution) or the use of a wrong plan to achieve an aim (e.g., error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000, p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. On the other hand, if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence. As one court put it: “An honest error of judgment in making a diagnosis is insufficient to support liability unless that mistake constitutes negligence” (Dotson v. Hammerman, 932 S.W.2d 880, Mo. App. 1996). Several courts have cautioned against the use of terms such as “error in judgment” and “best judgment,” as they may confuse the jury (Hirahara v. Tanaka, 959 P.2d 830, Haw. 1998; D'Orazio v. Parlee & Tatem Radiologic Associates, Ltd., 850 A.2d 726, Pa. 2004).

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia put it this way: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are wholly independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Contact the author at [email protected].

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation that he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following statements best describes this hypothetical case?

A. The triage nurse, rather than the hospitalist, is negligent; but for her illegible handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The man's respiratory distress was most likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's poor handwriting may have contributed to the injury, that does not get the hospitalist off the hook, as he should have rechecked the allergy history. The facts in this case do raise the issue of medication error, which often but not always amounts to negligence. However, in order to win a malpractice lawsuit, the plaintiff has to affirmatively prove causation—i.e., that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong affecting private citizens that is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator, although there is a separate class of legal wrongs termed intentional torts where the wrongdoing is intentional, such as assault and battery. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

Medical malpractice, also called medical negligence, is an act or omission by a health care professional that departs from the defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say that medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some authors have defined medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (e.g., error of execution) or the use of a wrong plan to achieve an aim (e.g., error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000, p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. On the other hand, if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence. As one court put it: “An honest error of judgment in making a diagnosis is insufficient to support liability unless that mistake constitutes negligence” (Dotson v. Hammerman, 932 S.W.2d 880, Mo. App. 1996). Several courts have cautioned against the use of terms such as “error in judgment” and “best judgment,” as they may confuse the jury (Hirahara v. Tanaka, 959 P.2d 830, Haw. 1998; D'Orazio v. Parlee & Tatem Radiologic Associates, Ltd., 850 A.2d 726, Pa. 2004).

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia put it this way: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are wholly independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Contact the author at [email protected].

Question: A 56-year-old man was admitted to the hospital with pneumonia. He had told the triage nurse on initial presentation that he was allergic to penicillin, but the hospitalist subsequently administered ampicillin. Shortly after receiving the first dose, the patient developed progressive respiratory distress and required intubation. At trial, the hospitalist testified that he had misread the triage note because of poor handwriting. Which of the following statements best describes this hypothetical case?

A. The triage nurse, rather than the hospitalist, is negligent; but for her illegible handwriting, there would have been no injury.

B. The hospitalist is negligent because he should have retaken the allergy history.

C. Illegibility is an unimportant source of serious mistakes.

D. This is a case of medical error, which is the same as medical negligence.

E. The man's respiratory distress was most likely antibiotic-induced because of the time sequence of events.

Answer: B. Illegible handwriting can lead to serious mistakes, and although the nurse's poor handwriting may have contributed to the injury, that does not get the hospitalist off the hook, as he should have rechecked the allergy history. The facts in this case do raise the issue of medication error, which often but not always amounts to negligence. However, in order to win a malpractice lawsuit, the plaintiff has to affirmatively prove causation—i.e., that the antibiotic proximately caused respiratory distress—and cannot simply rely on an unsupported assumption. The defendant is likely to argue that the respiratory distress was the result of pneumonia rather than a reaction to the antibiotic.

A tort is a civil wrong affecting private citizens that is not based on a breach of contract. Negligence is a tort that deals with harmful conduct not ordinarily expected of a reasonably prudent person. It has nothing to do with the good or bad intentions of the perpetrator, although there is a separate class of legal wrongs termed intentional torts where the wrongdoing is intentional, such as assault and battery. When professionals such as physicians, dentists, engineers, and lawyers commit negligence, it is called malpractice. Medical malpractice is conduct by a health care provider that breaches the standard of care, resulting in harm to the patient.

Medical malpractice, also called medical negligence, is an act or omission by a health care professional that departs from the defined health care standard. As articulated by the Supreme Court of Nebraska: “In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was a proximate cause of the plaintiff's alleged injuries” (Hamilton v. Bares, 678 N.W.2d 74, Neb. 2004, citing an earlier Nebraska case).

It is incorrect to say that medical negligence means an adverse outcome, a wrong judgment, or even a medical error. Some authors have defined medical error to denote a preventable adverse event, which in turn is defined as an injury caused by medical management rather than by the underlying condition of the patient. The Institute of Medicine defines error as “the failure of a planned action to be completed as intended (e.g., error of execution) or the use of a wrong plan to achieve an aim (e.g., error of planning)” (Kohn L.T. et al., eds. “To Err Is Human: Building a Safer Health System.” Washington: National Academy Press, 2000, p. 54).

Although a medical error can lead to patient harm, it is not synonymous with negligence. If the error or misjudgment is one that a reasonably competent professional would not commit, the standard of care is breached and there is medical negligence. On the other hand, if a reasonably skilled practitioner could commit such an error or misjudgment, it would not amount to medical negligence. As one court put it: “An honest error of judgment in making a diagnosis is insufficient to support liability unless that mistake constitutes negligence” (Dotson v. Hammerman, 932 S.W.2d 880, Mo. App. 1996). Several courts have cautioned against the use of terms such as “error in judgment” and “best judgment,” as they may confuse the jury (Hirahara v. Tanaka, 959 P.2d 830, Haw. 1998; D'Orazio v. Parlee & Tatem Radiologic Associates, Ltd., 850 A.2d 726, Pa. 2004).

Nor is an adverse outcome necessarily the result of negligence. The Supreme Court of Virginia put it this way: “The mere fact that the physician has failed to effect a cure or that the diagnosis and treatment have been detrimental to the patient's health does not raise a presumption of negligence” (Bryan v. Burt, 486 S.E.2d 536, Va. 1997). Some medical conditions end up with bad results that are wholly independent of the doctor's actions—hence the commonly stated axiom that the doctor is neither an insurer nor a guarantor of the patient's health.

Contact the author at [email protected].

Delayed testing leads to death from embolism

SWELLING OF HIS RIGHT FOOT prompted a 75-year-old man to seek medical attention. He had a history of blood clots and wore compression stockings. The physician spent 10 minutes with the patient; he did not remove the compression stockings during the examination. The physician scheduled a sonogram for the next day.

After the sonogram, the patient returned to the physician complaining of a back problem. While in the waiting room, the patient collapsed and died of a massive pulmonary embolism.

PLAINTIFF’S CLAIM: The patient had classic symptoms of a blood clot and should have been tested immediately.

DOCTOR’S DEFENSE: The patient didn’t wear compression stockings to prevent blood clots but because of swelling from a long history of postphlebitic syndrome. The foot and back complaints were similar to previous complaints related to the patient’s postphlebitic syndrome and degenerative disc disease. Moreover, the sonogram was negative for acute clots.

VERDICT: $5.2 million Texas verdict.

COMMENT: Although the facts of this case aren’t altogether clear, timely evaluation might have prevented the unfortunate outcome. As with many malpractice allegations, documentation remains key to a physician’s defense. If it’s not documented, it didn’t happen. JLS

Heart attack blamed on lack of workup, referral

A 57-YEAR-OLD MAN, who had been under the regular care of an internist for 5 years, died suddenly of an acute myocardial infarction. He had a history of high cholesterol and high blood pressure, as well as a family history of heart disease, and he was a heavy smoker. The internist had ordered resting electrocardiograms over the years but hadn’t done a workup for heart disease or referred the patient to a cardiologist.

PLAINTIFF’S CLAIM: The internist should have performed appropriate testing or referred the patient to a cardiologist because the patient had all the risk factors for heart disease. If the doctor had done any of these things, the patient’s heart disease would have been diagnosed and cardiac bypass surgery would have saved his life.

DOCTOR’S DEFENSE: The patient’s continued heavy smoking caused or contributed to his fatal heart attack. The attack was unpredictable and untreatable because it was caused by new and unstable plaque rupture and thrombosis. (The plaintiff countered that the patient didn’t suffer from ruptured plaque or thrombosis.)

VERDICT: $377,500 Michigan settlement.

COMMENT: How aggressively should we evaluate the patient with multiple cardiac risk factors? This case suggests that we need to strongly consider definitive evaluation of the patient at high risk of coronary artery disease. JLS

Death after repeated calls to doctors

AFTER SUFFERING SEVERE BURNS to his leg and foot while cooking French fries, a 48-year-old man was treated by his family physician as well as a surgeon specializing in skin grafts. During rehabilitation, the patient became disoriented and short of breath; he hyperventilated and reported that he was seeing aliens. He was also depressed.

His wife called the offices of both the family physician and the surgeon 4 times over 2 days. She never spoke to a doctor. Two days later, a nurse practitioner returned her call and prescribed fluoxetine for depression. Very shortly thereafter, the patient suffered a massive pulmonary embolism. He was taken to an emergency room, where he was pronounced dead.

PLAINTIFF’S CLAIM: The physician and surgeon were negligent in their failure to respond properly to the wife’s phone calls. Prompt intervention would have prevented the pulmonary embolism.

DOCTORS’ DEFENSE: The only information that was relayed to the doctors’ offices was that the patient was depressed and “talking funny.”

VERDICT: Indiana defense verdict.

COMMENT: We’re only as good as our staff and systems of care. Here’s another patient with pulmonary embolus who might have survived if appropriate evaluation had occurred promptly. JLS

2 cases, 1 theme: A purported lack of follow-up

A 62-YEAR-OLD MAN with an abdominal aortic aneurysm was seen by an internist at a Veterans Administration hospital. The aneurysm subsequently ruptured, necessitating emergency surgery. The surgery was successful, but the patient required attendant living assistance and neuropsychological retraining.

PLAINTIFF’S CLAIM: The internist was told that the patient’s father had been diagnosed with an abdominal aortic aneurysm, and that the patient himself had been diagnosed with a 2- to 3-cm aortic aneurysm and advised to have it rescanned periodically. The patient further informed the internist that he had been told that the aneurysm would require surgery if it reached 5 or 6 cm.

The patient saw the doctor many times after the first visit, but no history of abdominal aortic aneurysm was ever recorded and no scanning was performed. Serial monitoring would have revealed a slowly enlarging aneurysm, and elective surgery could have treated it.

DOCTOR’S DEFENSE: The patient failed to inform the internist of the history of abdominal aortic aneurysm. An aneurysm of 2 to 3 cm does not require follow-up.

VERDICT: $200,000 California settlement.

A CHEST RADIOGRAPH of a 74-year-old woman showed lung densities and artifacts. No follow-up radiography was performed. Two years later, the patient was diagnosed with lung cancer, which had metastasized to her liver. The patient died 5 months after the diagnosis.

PLAINTIFF’S CLAIM: The internist should have ordered a CT scan to further investigate the abnormalities.

DOCTOR’S DEFENSE: A follow-up radiograph was ordered, which the patient refused. (The plaintiff denied that follow-up radiographs were ordered and argued that even if they had been performed, the outcome would have been the same.)

VERDICT: Illinois defense verdict.

COMMENT: Tracking and following up test results is often a challenge in primary care offices. Although the advice given to the first patient concerning follow-up of his abdominal aortic aneurysm appears to be sound, the lack of follow-through resulted in serious consequences. It’s important to assure timely reevaluation of abnormalities, such as repeat CT or workup of a chest mass, repeat mammography, or tracking of an abdominal aortic aneurysm. JLS

Delayed testing leads to death from embolism

SWELLING OF HIS RIGHT FOOT prompted a 75-year-old man to seek medical attention. He had a history of blood clots and wore compression stockings. The physician spent 10 minutes with the patient; he did not remove the compression stockings during the examination. The physician scheduled a sonogram for the next day.

After the sonogram, the patient returned to the physician complaining of a back problem. While in the waiting room, the patient collapsed and died of a massive pulmonary embolism.

PLAINTIFF’S CLAIM: The patient had classic symptoms of a blood clot and should have been tested immediately.

DOCTOR’S DEFENSE: The patient didn’t wear compression stockings to prevent blood clots but because of swelling from a long history of postphlebitic syndrome. The foot and back complaints were similar to previous complaints related to the patient’s postphlebitic syndrome and degenerative disc disease. Moreover, the sonogram was negative for acute clots.

VERDICT: $5.2 million Texas verdict.

COMMENT: Although the facts of this case aren’t altogether clear, timely evaluation might have prevented the unfortunate outcome. As with many malpractice allegations, documentation remains key to a physician’s defense. If it’s not documented, it didn’t happen. JLS

Heart attack blamed on lack of workup, referral

A 57-YEAR-OLD MAN, who had been under the regular care of an internist for 5 years, died suddenly of an acute myocardial infarction. He had a history of high cholesterol and high blood pressure, as well as a family history of heart disease, and he was a heavy smoker. The internist had ordered resting electrocardiograms over the years but hadn’t done a workup for heart disease or referred the patient to a cardiologist.

PLAINTIFF’S CLAIM: The internist should have performed appropriate testing or referred the patient to a cardiologist because the patient had all the risk factors for heart disease. If the doctor had done any of these things, the patient’s heart disease would have been diagnosed and cardiac bypass surgery would have saved his life.

DOCTOR’S DEFENSE: The patient’s continued heavy smoking caused or contributed to his fatal heart attack. The attack was unpredictable and untreatable because it was caused by new and unstable plaque rupture and thrombosis. (The plaintiff countered that the patient didn’t suffer from ruptured plaque or thrombosis.)

VERDICT: $377,500 Michigan settlement.

COMMENT: How aggressively should we evaluate the patient with multiple cardiac risk factors? This case suggests that we need to strongly consider definitive evaluation of the patient at high risk of coronary artery disease. JLS

Death after repeated calls to doctors

AFTER SUFFERING SEVERE BURNS to his leg and foot while cooking French fries, a 48-year-old man was treated by his family physician as well as a surgeon specializing in skin grafts. During rehabilitation, the patient became disoriented and short of breath; he hyperventilated and reported that he was seeing aliens. He was also depressed.

His wife called the offices of both the family physician and the surgeon 4 times over 2 days. She never spoke to a doctor. Two days later, a nurse practitioner returned her call and prescribed fluoxetine for depression. Very shortly thereafter, the patient suffered a massive pulmonary embolism. He was taken to an emergency room, where he was pronounced dead.

PLAINTIFF’S CLAIM: The physician and surgeon were negligent in their failure to respond properly to the wife’s phone calls. Prompt intervention would have prevented the pulmonary embolism.

DOCTORS’ DEFENSE: The only information that was relayed to the doctors’ offices was that the patient was depressed and “talking funny.”

VERDICT: Indiana defense verdict.

COMMENT: We’re only as good as our staff and systems of care. Here’s another patient with pulmonary embolus who might have survived if appropriate evaluation had occurred promptly. JLS

2 cases, 1 theme: A purported lack of follow-up

A 62-YEAR-OLD MAN with an abdominal aortic aneurysm was seen by an internist at a Veterans Administration hospital. The aneurysm subsequently ruptured, necessitating emergency surgery. The surgery was successful, but the patient required attendant living assistance and neuropsychological retraining.

PLAINTIFF’S CLAIM: The internist was told that the patient’s father had been diagnosed with an abdominal aortic aneurysm, and that the patient himself had been diagnosed with a 2- to 3-cm aortic aneurysm and advised to have it rescanned periodically. The patient further informed the internist that he had been told that the aneurysm would require surgery if it reached 5 or 6 cm.

The patient saw the doctor many times after the first visit, but no history of abdominal aortic aneurysm was ever recorded and no scanning was performed. Serial monitoring would have revealed a slowly enlarging aneurysm, and elective surgery could have treated it.

DOCTOR’S DEFENSE: The patient failed to inform the internist of the history of abdominal aortic aneurysm. An aneurysm of 2 to 3 cm does not require follow-up.

VERDICT: $200,000 California settlement.

A CHEST RADIOGRAPH of a 74-year-old woman showed lung densities and artifacts. No follow-up radiography was performed. Two years later, the patient was diagnosed with lung cancer, which had metastasized to her liver. The patient died 5 months after the diagnosis.

PLAINTIFF’S CLAIM: The internist should have ordered a CT scan to further investigate the abnormalities.

DOCTOR’S DEFENSE: A follow-up radiograph was ordered, which the patient refused. (The plaintiff denied that follow-up radiographs were ordered and argued that even if they had been performed, the outcome would have been the same.)

VERDICT: Illinois defense verdict.

COMMENT: Tracking and following up test results is often a challenge in primary care offices. Although the advice given to the first patient concerning follow-up of his abdominal aortic aneurysm appears to be sound, the lack of follow-through resulted in serious consequences. It’s important to assure timely reevaluation of abnormalities, such as repeat CT or workup of a chest mass, repeat mammography, or tracking of an abdominal aortic aneurysm. JLS

Delayed testing leads to death from embolism

SWELLING OF HIS RIGHT FOOT prompted a 75-year-old man to seek medical attention. He had a history of blood clots and wore compression stockings. The physician spent 10 minutes with the patient; he did not remove the compression stockings during the examination. The physician scheduled a sonogram for the next day.

After the sonogram, the patient returned to the physician complaining of a back problem. While in the waiting room, the patient collapsed and died of a massive pulmonary embolism.

PLAINTIFF’S CLAIM: The patient had classic symptoms of a blood clot and should have been tested immediately.

DOCTOR’S DEFENSE: The patient didn’t wear compression stockings to prevent blood clots but because of swelling from a long history of postphlebitic syndrome. The foot and back complaints were similar to previous complaints related to the patient’s postphlebitic syndrome and degenerative disc disease. Moreover, the sonogram was negative for acute clots.

VERDICT: $5.2 million Texas verdict.

COMMENT: Although the facts of this case aren’t altogether clear, timely evaluation might have prevented the unfortunate outcome. As with many malpractice allegations, documentation remains key to a physician’s defense. If it’s not documented, it didn’t happen. JLS

Heart attack blamed on lack of workup, referral

A 57-YEAR-OLD MAN, who had been under the regular care of an internist for 5 years, died suddenly of an acute myocardial infarction. He had a history of high cholesterol and high blood pressure, as well as a family history of heart disease, and he was a heavy smoker. The internist had ordered resting electrocardiograms over the years but hadn’t done a workup for heart disease or referred the patient to a cardiologist.

PLAINTIFF’S CLAIM: The internist should have performed appropriate testing or referred the patient to a cardiologist because the patient had all the risk factors for heart disease. If the doctor had done any of these things, the patient’s heart disease would have been diagnosed and cardiac bypass surgery would have saved his life.

DOCTOR’S DEFENSE: The patient’s continued heavy smoking caused or contributed to his fatal heart attack. The attack was unpredictable and untreatable because it was caused by new and unstable plaque rupture and thrombosis. (The plaintiff countered that the patient didn’t suffer from ruptured plaque or thrombosis.)

VERDICT: $377,500 Michigan settlement.

COMMENT: How aggressively should we evaluate the patient with multiple cardiac risk factors? This case suggests that we need to strongly consider definitive evaluation of the patient at high risk of coronary artery disease. JLS

Death after repeated calls to doctors

AFTER SUFFERING SEVERE BURNS to his leg and foot while cooking French fries, a 48-year-old man was treated by his family physician as well as a surgeon specializing in skin grafts. During rehabilitation, the patient became disoriented and short of breath; he hyperventilated and reported that he was seeing aliens. He was also depressed.

His wife called the offices of both the family physician and the surgeon 4 times over 2 days. She never spoke to a doctor. Two days later, a nurse practitioner returned her call and prescribed fluoxetine for depression. Very shortly thereafter, the patient suffered a massive pulmonary embolism. He was taken to an emergency room, where he was pronounced dead.

PLAINTIFF’S CLAIM: The physician and surgeon were negligent in their failure to respond properly to the wife’s phone calls. Prompt intervention would have prevented the pulmonary embolism.

DOCTORS’ DEFENSE: The only information that was relayed to the doctors’ offices was that the patient was depressed and “talking funny.”

VERDICT: Indiana defense verdict.

COMMENT: We’re only as good as our staff and systems of care. Here’s another patient with pulmonary embolus who might have survived if appropriate evaluation had occurred promptly. JLS

2 cases, 1 theme: A purported lack of follow-up

A 62-YEAR-OLD MAN with an abdominal aortic aneurysm was seen by an internist at a Veterans Administration hospital. The aneurysm subsequently ruptured, necessitating emergency surgery. The surgery was successful, but the patient required attendant living assistance and neuropsychological retraining.

PLAINTIFF’S CLAIM: The internist was told that the patient’s father had been diagnosed with an abdominal aortic aneurysm, and that the patient himself had been diagnosed with a 2- to 3-cm aortic aneurysm and advised to have it rescanned periodically. The patient further informed the internist that he had been told that the aneurysm would require surgery if it reached 5 or 6 cm.

The patient saw the doctor many times after the first visit, but no history of abdominal aortic aneurysm was ever recorded and no scanning was performed. Serial monitoring would have revealed a slowly enlarging aneurysm, and elective surgery could have treated it.

DOCTOR’S DEFENSE: The patient failed to inform the internist of the history of abdominal aortic aneurysm. An aneurysm of 2 to 3 cm does not require follow-up.

VERDICT: $200,000 California settlement.

A CHEST RADIOGRAPH of a 74-year-old woman showed lung densities and artifacts. No follow-up radiography was performed. Two years later, the patient was diagnosed with lung cancer, which had metastasized to her liver. The patient died 5 months after the diagnosis.

PLAINTIFF’S CLAIM: The internist should have ordered a CT scan to further investigate the abnormalities.

DOCTOR’S DEFENSE: A follow-up radiograph was ordered, which the patient refused. (The plaintiff denied that follow-up radiographs were ordered and argued that even if they had been performed, the outcome would have been the same.)

VERDICT: Illinois defense verdict.

COMMENT: Tracking and following up test results is often a challenge in primary care offices. Although the advice given to the first patient concerning follow-up of his abdominal aortic aneurysm appears to be sound, the lack of follow-through resulted in serious consequences. It’s important to assure timely reevaluation of abnormalities, such as repeat CT or workup of a chest mass, repeat mammography, or tracking of an abdominal aortic aneurysm. JLS

Question: During a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective.

However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger.

Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006–2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers, although Vermont is an exception, imposing an affirmative duty to assist a victim in need.

Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence.

The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, that is, whenever a doctor undertakes to evaluate or treat a patient. In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663–1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211–4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls.

A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective.

Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 survey by the American Medical Association, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders, G.B. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859–66).

Question: During a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective.

However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger.

Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006–2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers, although Vermont is an exception, imposing an affirmative duty to assist a victim in need.

Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence.

The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, that is, whenever a doctor undertakes to evaluate or treat a patient. In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663–1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211–4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls.

A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective.

Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 survey by the American Medical Association, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders, G.B. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859–66).

Question: During a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective.

However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger.

Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006–2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers, although Vermont is an exception, imposing an affirmative duty to assist a victim in need.

Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence.

The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, that is, whenever a doctor undertakes to evaluate or treat a patient. In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663–1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211–4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls.

A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective.

Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 survey by the American Medical Association, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders, G.B. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859–66).

Question: On a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic Oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective. However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger. Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic Oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006-2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers. (Vermont is an exception, imposing an affirmative duty to assist a victim in need.) Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence. The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, i.e., whenever a doctor undertakes to evaluate or treat a patient.

In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663-1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211-4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls. A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective. Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 AMA survey, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders GB. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859-66).

Contact the author at [email protected].

Question: On a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic Oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective. However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger. Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic Oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006-2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers. (Vermont is an exception, imposing an affirmative duty to assist a victim in need.) Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence. The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, i.e., whenever a doctor undertakes to evaluate or treat a patient.

In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663-1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211-4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls. A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective. Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 AMA survey, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders GB. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859-66).

Contact the author at [email protected].

Question: On a flight from Los Angeles to Newark, a passenger developed acute chest pain and diaphoresis. A flight attendant put out an emergency call, but Dr. Brown, a general internist nearing retirement, failed to respond because he was concerned about potential litigation. Unfortunately, the passenger sustained a massive MI, and died en route.

Regarding a medical malpractice lawsuit in such a scenario, which of the following is correct?

A. The Good Samaritan statute imposes upon doctors the legal duty to treat.

B. Good Samaritan statutes immunize doctors against all liability.

C. Dr. Brown need not have hesitated, as his attempts, even if negligent, would have been protected by the Aviation Medical Assistance Act.

D. All doctors have taken the Hippocratic Oath to treat in an emergency situation.

E. But for Dr. Brown's negligent failure to act, the patient might have survived, so the doctor is at least partly liable.

Answer: C. If Dr. Brown had responded, his effort would not have put him in jeopardy even if his intervention had proved ineffective. However, there is no legal duty for anyone, even a doctor, to come to the aid of a stranger. Although doctors are generally thought to have an ethical duty to offer emergency care, the Hippocratic Oath is silent on this matter, and the American Medical Association's Code of Medical Ethics states: “Physicians are free to choose whom they will serve. The physician should, however, respond to the best of his or her ability in cases of emergency where first aid treatment is essential” (AMA Code of Medical Ethics §8.11, 2006-2007 edition).

All 50 states have laws on their books called Good Samaritan statutes, whose intent is to encourage people to help those in acute distress. These statutes do not require doctors to come to the aid of strangers. (Vermont is an exception, imposing an affirmative duty to assist a victim in need.) Rather, they protect against liability arising out of negligent rescue, but typically they cover only ordinary, not gross, negligence. The Aviation Medical Assistance Act, enacted in 1998, is the federal equivalent of the Good Samaritan statute, covering emergency treatment during flights in the United States.

In allegations of medical malpractice, the plaintiff must first show that the doctor owed a duty of due care to the injured victim. This duty arises out of the doctor-patient relationship, i.e., whenever a doctor undertakes to evaluate or treat a patient.

In the absence of such a relationship, a doctor is not legally obligated to treat, even in an emergency.

However, to encourage aiding strangers in distress, states have enacted so-called Good Samaritan laws to protect rescuers who act in good faith. Popularized in the 1960s in response to the perception that doctors were reluctant to treat strangers for fear of a malpractice lawsuit, these laws immunize the aid giver against allegations of negligent care. Their protective scope varies from state to state, usually offering immunity against simple negligence but not gross misconduct.

Hawaii's Good Samaritan statute is typical. It states: “Any person who in good faith renders emergency care, without remuneration or expectation of remuneration … shall not be liable for any civil damages resulting from the person's acts or omissions, except for such damages as may result from the person's gross negligence or wanton acts or omissions” (Hawaii Revised Statutes §663-1.5 [a]).

California, the first state to enact a Good Samaritan statute in 1959, is an exception, as it may excuse even gross negligence as long as the act was done in good faith. In a litigated case, a California court declared: “The goodness of the Samaritan is a description of the quality of his or her intention, not the quality of the aid delivered” (Perkins v. Howard, 232 Cal.App.3d 708 [1991]).

There is no universal definition of gross negligence, but the term is frequently equated with willful, wanton, or reckless misconduct.

One can think of gross negligence as aggravated negligence, involving more than mere mistake, inadvertence, or inattention, and representing highly unreasonable conduct, or an extreme departure from ordinary care where a high degree of danger is apparent (Prosser, W.L. et al., eds. “Prosser and Keeton on Torts,” 5th ed., St. Paul, Minn.: West Publishing Co., 1984, pp. 211-4).

Statutory protection is generally excluded for Good Samaritan acts performed within a hospital setting under the theory that doctors have an ongoing relationship with the hospital and are already obligated to provide emergency care within its walls. A minority of states such as California and Colorado do provide immunity irrespective of the location of aid.

Commentators have observed that very few lawsuits have involved Good Samaritan doctors and that such laws are both unnecessary and ineffective. Those who are averse to helping will remain on the sidelines even with the protection of the law.

In a 1963 AMA survey, approximately half of responding physicians said they would render emergency help, and this did not depend on whether there was a Good Samaritan statute in place (Sanders GB. First Results: 1963 Professional-Liability Survey. JAMA 1964;189:859-66).

Contact the author at [email protected].

[email protected]

Last month, I discussed the universal health coverage proposals offered by the presidential candidates. Now let's look at two areas that could help us figure out how to get there: universal health care systems in other countries, and how America's one universal coverage-type program—Medicare—came about.

Earlier this year, PBS broadcast “Sick Around the World” as part of its “Frontline” series, focusing on the health care systems in the United Kingdom, Taiwan, Germany, Japan, and Switzerland. Taiwan's system is based on the Canadian-style national health insurance model, in which private practices are paid by the government; the United Kingdom is the paradigm for the socialized medicine model, in which physicians are salaried government employees; and the other three systems are based on the German model, in which workers pay into “sick funds” to receive coverage from private insurers, and those who can't afford to pay are subsidized by the government.

These plans function fairly well, and their citizens don't pay for health care (at least not directly, though the taxes in these countries are considerably higher than in ours). Insurers are not expected to make a profit.

Whatever the system, each country's premise is the same: Everybody has a right to health care. The money to correct what ails the U.S. system (an estimated $100 billion) is the equivalent of how much the government is spending in half a year in Iraq, according to Princeton University economist Uwe Reinhardt, Ph.D.

But how would we convince Americans that health care for all is worth the cost? Some clues might be found in considering the way in which another costly health program—Medicare—advanced through the halls of Congress. Opposition was everpresent (particularly from organized medicine via the American Medical Association), and it took 8 years and 80 revisions from the introduction of the original bill in 1957 until Medicare became law in 1965.

The preamble to a piece of congressional legislation, the 1966 Comprehensive Health Planning Act, states, “The fulfillment of our natural purpose depends on promoting and assuring the highest level of health attainable for every person.”

Once all parties signed on to the idea that seniors needed help in paying medical bills, the question became which mechanism to use—government subsidies, direct government payments, or health insurance financed and administered through Social Security. The latter option prevailed, but these options all sound familiar to what we hear from our presidential candidates today regarding universal coverage.

This pundit has another suggestion: Why not provide a basic layer of health protection for all Americans funded with taxpayer dollars, with any additional coverage paid for by the individual, the employer, or both through the private sector? In this way, every citizen will be guaranteed a certain level of health care, while letting market forces take care of levels of health care above a certain floor. This represents a blending of what presidential candidates Sen. John McCain (R-Ariz.) and Sen. Barack Obama (D-Ill.) have advocated.

If there is a recognition that Americans are entitled to health care, Sen. Obama and Sen. McCain would do well to learn from the past endeavors that made Medicare possible and from the programs that exist in other countries. If we fail to learn from history, we are bound to make the same mistakes. Our nation can ill afford to make these mistakes when we consider the present state of the crisis in availability and accessibility of health care in our country today.

[email protected]

Last month, I discussed the universal health coverage proposals offered by the presidential candidates. Now let's look at two areas that could help us figure out how to get there: universal health care systems in other countries, and how America's one universal coverage-type program—Medicare—came about.

Earlier this year, PBS broadcast “Sick Around the World” as part of its “Frontline” series, focusing on the health care systems in the United Kingdom, Taiwan, Germany, Japan, and Switzerland. Taiwan's system is based on the Canadian-style national health insurance model, in which private practices are paid by the government; the United Kingdom is the paradigm for the socialized medicine model, in which physicians are salaried government employees; and the other three systems are based on the German model, in which workers pay into “sick funds” to receive coverage from private insurers, and those who can't afford to pay are subsidized by the government.

These plans function fairly well, and their citizens don't pay for health care (at least not directly, though the taxes in these countries are considerably higher than in ours). Insurers are not expected to make a profit.

Whatever the system, each country's premise is the same: Everybody has a right to health care. The money to correct what ails the U.S. system (an estimated $100 billion) is the equivalent of how much the government is spending in half a year in Iraq, according to Princeton University economist Uwe Reinhardt, Ph.D.

But how would we convince Americans that health care for all is worth the cost? Some clues might be found in considering the way in which another costly health program—Medicare—advanced through the halls of Congress. Opposition was everpresent (particularly from organized medicine via the American Medical Association), and it took 8 years and 80 revisions from the introduction of the original bill in 1957 until Medicare became law in 1965.

The preamble to a piece of congressional legislation, the 1966 Comprehensive Health Planning Act, states, “The fulfillment of our natural purpose depends on promoting and assuring the highest level of health attainable for every person.”

Once all parties signed on to the idea that seniors needed help in paying medical bills, the question became which mechanism to use—government subsidies, direct government payments, or health insurance financed and administered through Social Security. The latter option prevailed, but these options all sound familiar to what we hear from our presidential candidates today regarding universal coverage.

This pundit has another suggestion: Why not provide a basic layer of health protection for all Americans funded with taxpayer dollars, with any additional coverage paid for by the individual, the employer, or both through the private sector? In this way, every citizen will be guaranteed a certain level of health care, while letting market forces take care of levels of health care above a certain floor. This represents a blending of what presidential candidates Sen. John McCain (R-Ariz.) and Sen. Barack Obama (D-Ill.) have advocated.

If there is a recognition that Americans are entitled to health care, Sen. Obama and Sen. McCain would do well to learn from the past endeavors that made Medicare possible and from the programs that exist in other countries. If we fail to learn from history, we are bound to make the same mistakes. Our nation can ill afford to make these mistakes when we consider the present state of the crisis in availability and accessibility of health care in our country today.

[email protected]

Last month, I discussed the universal health coverage proposals offered by the presidential candidates. Now let's look at two areas that could help us figure out how to get there: universal health care systems in other countries, and how America's one universal coverage-type program—Medicare—came about.

Earlier this year, PBS broadcast “Sick Around the World” as part of its “Frontline” series, focusing on the health care systems in the United Kingdom, Taiwan, Germany, Japan, and Switzerland. Taiwan's system is based on the Canadian-style national health insurance model, in which private practices are paid by the government; the United Kingdom is the paradigm for the socialized medicine model, in which physicians are salaried government employees; and the other three systems are based on the German model, in which workers pay into “sick funds” to receive coverage from private insurers, and those who can't afford to pay are subsidized by the government.

These plans function fairly well, and their citizens don't pay for health care (at least not directly, though the taxes in these countries are considerably higher than in ours). Insurers are not expected to make a profit.

Whatever the system, each country's premise is the same: Everybody has a right to health care. The money to correct what ails the U.S. system (an estimated $100 billion) is the equivalent of how much the government is spending in half a year in Iraq, according to Princeton University economist Uwe Reinhardt, Ph.D.

But how would we convince Americans that health care for all is worth the cost? Some clues might be found in considering the way in which another costly health program—Medicare—advanced through the halls of Congress. Opposition was everpresent (particularly from organized medicine via the American Medical Association), and it took 8 years and 80 revisions from the introduction of the original bill in 1957 until Medicare became law in 1965.

The preamble to a piece of congressional legislation, the 1966 Comprehensive Health Planning Act, states, “The fulfillment of our natural purpose depends on promoting and assuring the highest level of health attainable for every person.”

Once all parties signed on to the idea that seniors needed help in paying medical bills, the question became which mechanism to use—government subsidies, direct government payments, or health insurance financed and administered through Social Security. The latter option prevailed, but these options all sound familiar to what we hear from our presidential candidates today regarding universal coverage.

This pundit has another suggestion: Why not provide a basic layer of health protection for all Americans funded with taxpayer dollars, with any additional coverage paid for by the individual, the employer, or both through the private sector? In this way, every citizen will be guaranteed a certain level of health care, while letting market forces take care of levels of health care above a certain floor. This represents a blending of what presidential candidates Sen. John McCain (R-Ariz.) and Sen. Barack Obama (D-Ill.) have advocated.

If there is a recognition that Americans are entitled to health care, Sen. Obama and Sen. McCain would do well to learn from the past endeavors that made Medicare possible and from the programs that exist in other countries. If we fail to learn from history, we are bound to make the same mistakes. Our nation can ill afford to make these mistakes when we consider the present state of the crisis in availability and accessibility of health care in our country today.

[email protected]

With Sen. Edward M. Kennedy (D-Mass.), a staunch supporter of patient rights and health care, now battling brain cancer, the subject of health care in our nation becomes all the more poignant. In a two-part series, we will consider this important issue.

Our present health care system is broken, and we need an updated model. A March 17, 2008, Fortune magazine article reported that the United States now has 47 million uninsured residents, and that, according to the Department of Health and Human Services, health care expenditures will double by 2017, to $4.3 trillion. And even though the United States is the richest country in the world, the World Health Organization recently ranked it 37th in terms of health care quality and fairness.

Health care is a top-tier issue for our presidential candidates. The American electorate demands change in the health care system. This time, whoever takes the Oval Office must ensure that change comes about so that all Americans are provided adequate health care at affordable prices.

The first question to be answered is: Should all Americans be entitled to health care? It is a simple question but one that has produced considerable debate, because we as a nation have never considered health care to be a right. Should it be? If it should not become a fundamental right, should some Americans—such as children—have health insurance coverage guaranteed to them?

The permutations are many, but there is only one right and fair choice: All Americans, including those taking overt steps to become citizens, should be provided health care. This is necessary for many of the same reasons that led to Medicare's passage in 1965: The crisis is as widespread and pervasive today as it was in the years preceding Medicare's enactment, and some type of relief is warranted on a national level, but for all U.S. citizens—not just for seniors.

Who should pay for that care is an important issue, but the answer to this question should not be the engine that drives the car. Instead, we should declare that all Americans should have access to health care, and then figure out a way to achieve that goal.

The two major-party presidential candidates, Sen. John McCain (R-Ariz.) and Sen. Barack Obama (D-Ill.) have very different approaches to the problem. Sen. McCain declares himself to be a free-market guy, believing that governmental intervention proposed in Democratic plans would be shackled with “inefficiency, irrationality, and uncontrolled costs.” A fundamental principle of his plan is that no American should be required to buy health insurance.

As noted in the Fortune article, Sen. McCain says his plan would “tax employer-sponsored health insurance, and use the money to provide tax credits (up to $5,000) for individuals and families to shop for coverage on their own,” thereby “forcing insurance companies to compete head-to-head for customers” and ostensibly lowering prices. He has also proposed a creation of a Guaranteed Access Plan to help ill and high-risk patients—who otherwise would find coverage very expensive or impossible to buy—obtain “coverage of last resort.” He also would not require insurers to sell policies to those with preexisting medical conditions. His message makes for nice sound bites but the devil, as always, is in the details.

The underpinning of McCain's plan involves the elimination of the tax break that employees now receive when their employer provides their health insurance. The employee would have to pay tax on the cost of an employer-provided plan for that employee or his family. With the federal dollars saved by eliminating the tax break, McCain would provide a $2,500 federal tax rebate for individuals and $5,000 per family that could be used toward the purchase of private health care policies. Sen. McCain expects that this would result in many fewer people opting for employer-sponsored health benefits.

In addition, Sen. McCain would allow the individual to purchase the health plan that best fits his or her stage in life, allowing insurers to offer an array of plans, with various benefits, copays, and deductibles. As one writer has observed, however, the downside is that “he risks leaving the poor and sick behind” (although one McCain lieutenant says the tax credit would be increased for that patient population).

Sen. Obama describes his plan as providing affordable and portable health coverage for all and lowering costs by modernizing the health care system. Specifically, he would require that no American be turned away from any insurance plan because of an illness or a preexisting condition. Americans would receive benefits similar to those that Sen. Obama and other members of Congress receive through the Federal Employees Health Benefits Program. He also calls for a National Health Insurance Exchange to assist individuals who wish to purchase a private insurance plan.

Employers that do not offer or make a “meaningful” contribution to the cost of quality health coverage for their employees would be required to contribute a percentage of payroll toward the costs of a national plan, although some small employers would be exempt from that requirement. Parents would be required to provide coverage for their children.

For physicians, Obama's plan would strengthen comparative effectiveness research by establishing an independent institute to guide reviews and studies, giving physicians and patients up-to-date clinical information. Another part of his plan would strengthen antitrust laws to prevent insurers from overcharging physicians for their malpractice insurance and would work to improve systems that eliminate errors in patient care and safety. Again, nice bullet points, but crafting all his points into a workable solution for a majority of Congress will take some doing.

In our next column, we will look at what U.S. history and health plans in other countries can teach us about health reform.

[email protected]

With Sen. Edward M. Kennedy (D-Mass.), a staunch supporter of patient rights and health care, now battling brain cancer, the subject of health care in our nation becomes all the more poignant. In a two-part series, we will consider this important issue.

Our present health care system is broken, and we need an updated model. A March 17, 2008, Fortune magazine article reported that the United States now has 47 million uninsured residents, and that, according to the Department of Health and Human Services, health care expenditures will double by 2017, to $4.3 trillion. And even though the United States is the richest country in the world, the World Health Organization recently ranked it 37th in terms of health care quality and fairness.

Health care is a top-tier issue for our presidential candidates. The American electorate demands change in the health care system. This time, whoever takes the Oval Office must ensure that change comes about so that all Americans are provided adequate health care at affordable prices.

The first question to be answered is: Should all Americans be entitled to health care? It is a simple question but one that has produced considerable debate, because we as a nation have never considered health care to be a right. Should it be? If it should not become a fundamental right, should some Americans—such as children—have health insurance coverage guaranteed to them?

The permutations are many, but there is only one right and fair choice: All Americans, including those taking overt steps to become citizens, should be provided health care. This is necessary for many of the same reasons that led to Medicare's passage in 1965: The crisis is as widespread and pervasive today as it was in the years preceding Medicare's enactment, and some type of relief is warranted on a national level, but for all U.S. citizens—not just for seniors.

Who should pay for that care is an important issue, but the answer to this question should not be the engine that drives the car. Instead, we should declare that all Americans should have access to health care, and then figure out a way to achieve that goal.

The two major-party presidential candidates, Sen. John McCain (R-Ariz.) and Sen. Barack Obama (D-Ill.) have very different approaches to the problem. Sen. McCain declares himself to be a free-market guy, believing that governmental intervention proposed in Democratic plans would be shackled with “inefficiency, irrationality, and uncontrolled costs.” A fundamental principle of his plan is that no American should be required to buy health insurance.

As noted in the Fortune article, Sen. McCain says his plan would “tax employer-sponsored health insurance, and use the money to provide tax credits (up to $5,000) for individuals and families to shop for coverage on their own,” thereby “forcing insurance companies to compete head-to-head for customers” and ostensibly lowering prices. He has also proposed a creation of a Guaranteed Access Plan to help ill and high-risk patients—who otherwise would find coverage very expensive or impossible to buy—obtain “coverage of last resort.” He also would not require insurers to sell policies to those with preexisting medical conditions. His message makes for nice sound bites but the devil, as always, is in the details.

The underpinning of McCain's plan involves the elimination of the tax break that employees now receive when their employer provides their health insurance. The employee would have to pay tax on the cost of an employer-provided plan for that employee or his family. With the federal dollars saved by eliminating the tax break, McCain would provide a $2,500 federal tax rebate for individuals and $5,000 per family that could be used toward the purchase of private health care policies. Sen. McCain expects that this would result in many fewer people opting for employer-sponsored health benefits.

In addition, Sen. McCain would allow the individual to purchase the health plan that best fits his or her stage in life, allowing insurers to offer an array of plans, with various benefits, copays, and deductibles. As one writer has observed, however, the downside is that “he risks leaving the poor and sick behind” (although one McCain lieutenant says the tax credit would be increased for that patient population).

Sen. Obama describes his plan as providing affordable and portable health coverage for all and lowering costs by modernizing the health care system. Specifically, he would require that no American be turned away from any insurance plan because of an illness or a preexisting condition. Americans would receive benefits similar to those that Sen. Obama and other members of Congress receive through the Federal Employees Health Benefits Program. He also calls for a National Health Insurance Exchange to assist individuals who wish to purchase a private insurance plan.

Employers that do not offer or make a “meaningful” contribution to the cost of quality health coverage for their employees would be required to contribute a percentage of payroll toward the costs of a national plan, although some small employers would be exempt from that requirement. Parents would be required to provide coverage for their children.

For physicians, Obama's plan would strengthen comparative effectiveness research by establishing an independent institute to guide reviews and studies, giving physicians and patients up-to-date clinical information. Another part of his plan would strengthen antitrust laws to prevent insurers from overcharging physicians for their malpractice insurance and would work to improve systems that eliminate errors in patient care and safety. Again, nice bullet points, but crafting all his points into a workable solution for a majority of Congress will take some doing.

In our next column, we will look at what U.S. history and health plans in other countries can teach us about health reform.

[email protected]

With Sen. Edward M. Kennedy (D-Mass.), a staunch supporter of patient rights and health care, now battling brain cancer, the subject of health care in our nation becomes all the more poignant. In a two-part series, we will consider this important issue.

Our present health care system is broken, and we need an updated model. A March 17, 2008, Fortune magazine article reported that the United States now has 47 million uninsured residents, and that, according to the Department of Health and Human Services, health care expenditures will double by 2017, to $4.3 trillion. And even though the United States is the richest country in the world, the World Health Organization recently ranked it 37th in terms of health care quality and fairness.

Health care is a top-tier issue for our presidential candidates. The American electorate demands change in the health care system. This time, whoever takes the Oval Office must ensure that change comes about so that all Americans are provided adequate health care at affordable prices.

The first question to be answered is: Should all Americans be entitled to health care? It is a simple question but one that has produced considerable debate, because we as a nation have never considered health care to be a right. Should it be? If it should not become a fundamental right, should some Americans—such as children—have health insurance coverage guaranteed to them?

The permutations are many, but there is only one right and fair choice: All Americans, including those taking overt steps to become citizens, should be provided health care. This is necessary for many of the same reasons that led to Medicare's passage in 1965: The crisis is as widespread and pervasive today as it was in the years preceding Medicare's enactment, and some type of relief is warranted on a national level, but for all U.S. citizens—not just for seniors.

Who should pay for that care is an important issue, but the answer to this question should not be the engine that drives the car. Instead, we should declare that all Americans should have access to health care, and then figure out a way to achieve that goal.

The two major-party presidential candidates, Sen. John McCain (R-Ariz.) and Sen. Barack Obama (D-Ill.) have very different approaches to the problem. Sen. McCain declares himself to be a free-market guy, believing that governmental intervention proposed in Democratic plans would be shackled with “inefficiency, irrationality, and uncontrolled costs.” A fundamental principle of his plan is that no American should be required to buy health insurance.

As noted in the Fortune article, Sen. McCain says his plan would “tax employer-sponsored health insurance, and use the money to provide tax credits (up to $5,000) for individuals and families to shop for coverage on their own,” thereby “forcing insurance companies to compete head-to-head for customers” and ostensibly lowering prices. He has also proposed a creation of a Guaranteed Access Plan to help ill and high-risk patients—who otherwise would find coverage very expensive or impossible to buy—obtain “coverage of last resort.” He also would not require insurers to sell policies to those with preexisting medical conditions. His message makes for nice sound bites but the devil, as always, is in the details.

The underpinning of McCain's plan involves the elimination of the tax break that employees now receive when their employer provides their health insurance. The employee would have to pay tax on the cost of an employer-provided plan for that employee or his family. With the federal dollars saved by eliminating the tax break, McCain would provide a $2,500 federal tax rebate for individuals and $5,000 per family that could be used toward the purchase of private health care policies. Sen. McCain expects that this would result in many fewer people opting for employer-sponsored health benefits.

In addition, Sen. McCain would allow the individual to purchase the health plan that best fits his or her stage in life, allowing insurers to offer an array of plans, with various benefits, copays, and deductibles. As one writer has observed, however, the downside is that “he risks leaving the poor and sick behind” (although one McCain lieutenant says the tax credit would be increased for that patient population).

Sen. Obama describes his plan as providing affordable and portable health coverage for all and lowering costs by modernizing the health care system. Specifically, he would require that no American be turned away from any insurance plan because of an illness or a preexisting condition. Americans would receive benefits similar to those that Sen. Obama and other members of Congress receive through the Federal Employees Health Benefits Program. He also calls for a National Health Insurance Exchange to assist individuals who wish to purchase a private insurance plan.

Employers that do not offer or make a “meaningful” contribution to the cost of quality health coverage for their employees would be required to contribute a percentage of payroll toward the costs of a national plan, although some small employers would be exempt from that requirement. Parents would be required to provide coverage for their children.

For physicians, Obama's plan would strengthen comparative effectiveness research by establishing an independent institute to guide reviews and studies, giving physicians and patients up-to-date clinical information. Another part of his plan would strengthen antitrust laws to prevent insurers from overcharging physicians for their malpractice insurance and would work to improve systems that eliminate errors in patient care and safety. Again, nice bullet points, but crafting all his points into a workable solution for a majority of Congress will take some doing.

In our next column, we will look at what U.S. history and health plans in other countries can teach us about health reform.

[email protected]

Imagine being a physician who has been involved in an adverse event—one that, through no real fault of your own, caused death or serious injury to a patient. Should your future patients have a right to know of your involvement?

Florida physicians are dealing with this issue in the wake of a recent decision by the Florida Supreme Court earlier this year, in Florida Hospital Waterman, Inc. etc., v. Teresa M. Buster, etc., et al. (No. SC06–912). In November 2004, Florida voters passed a constitutional amendment titled “Patients' Right to Know About Adverse Medical Incidents.” The amendment let patients obtain “any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident”—as long as the identity of the patients involved in the incidents wasn't revealed, and other privacy restrictions were adhered to. This included incidents that had to be reported to a government agency, or those that were reported to health care facility review committees. The amendment was to become effective immediately.

About 6 months later, in June 2005, the Florida legislature tried to clarify the amendment legislatively, stating that existing restrictions on use of records in court cases stay in place and that “discovering such documents does not mean that any of them can be introduced into evidence in a lawsuit … and [they] may not be used for any purpose, including impeachment, in any civil or administrative action against a health care facility or health care provider.”

Because of the legislature's action, two lower courts in Florida were asked to decide whether the amendment passed by the voters applied retroactively to records that existed before the amendment was passed. One court held that the amendment was retroactive; the other did not. In a 4–3 decision (with a sharply worded dissent), the Florida Supreme Court found that the amendment was indeed retroactive. The court also found that several subsections of new law were in conflict with the amendment passed by the voters, and were thus unconstitutional.

The Florida high court noted that access to peer review information is not to be limited to only those who are themselves patients since that restriction is not contained within the amendment.

But more importantly, the court also said that because part of the new law allows current laws restricting access to adverse incidents to remain in place, the new law is in conflict with the amendment passed by the voters and therefore “cannot stand.”

The dissenting justices argued that the amendment should not be applied retroactively. They noted that hospitals are required to perform peer review as part of medical quality assurance, and that the hospitals should be able to keep peer review records from being used in legal cases. Now that the majority has found the amendment to be retroactive, the dissenters pointed out, that allows for the discovery of records previously kept confidential, a consequence that is “legally unsupportable” and “fundamentally unfair.”

The Florida Supreme Court goofed. In its fervor to address the issue of retroactivity, it created more of a problem than it should have. The majority eviscerates what has become the linchpin for a health care facility's ability to ensure quality of care: its peer review function.

For example, let's take a situation in which a hospital's peer review committee obtains documents relating to an adverse medical incident. From those documents, the peer review committee makes a decision about the care rendered by a particular doctor.

Before the Florida Hospital Waterman case came down, there was an expectation that documents considered by a peer review committee would be privileged from discovery and not admissible in a legal proceeding. With Florida Hospital Waterman, no longer would such documents be cloaked with the protections against discovery provided in Florida. This would be inconsistent with protections against discovery provided in most—if not all—states having peer review statutes.

And, again, according to Florida Hospital Waterman, the right to see such evidence can pertain to documents that existed as of the date the Florida voters passed the constitutional amendment. How far back can the documents go? The court never says.

Another problem is that, for example, an accrediting organization such as the Joint Commission—which credentials a considerable portion of our nation's hospitals and other health care facilities—may find some difficulty with the Florida Hospital Waterman's majority's decision. One area the Joint Commission looks at in its accreditation process are “sentinel events”—those involving deaths or serious injuries. What if a sentinel event is intertwined with an adverse medical incident? All such information would be usable in legal cases under Florida Hospital Waterman, which may make hospital administrators uncomfortable if the commission asks them to produce sentinel event information during an accreditation or reaccreditation process.

Then there is the privacy issue. If privacy laws such as the Health Insurance Portability and Accountability Act (HIPAA) are to be respected, what good is producing an adverse medical incident report that is required by HIPAA but not including identifying information about the patient? HIPAA would thus destroy much of the good intended by the amendment passed by the voters. Moreover, since the amendment doesn't specify exactly who is entitled to such records, then anyone can request such information, regardless of applicable state or federal privacy laws.

Last, but certainly not least, are evidence laws relating to adverse medical incident records. The Florida high court blundered when it stated that a restriction on admitting such records in court cannot stand. Surely the decision on whether the constitutional amendment was retroactive was never intended to circumvent Florida's laws regulating the admissibility of evidence. Yet this is a conundrum that the court majority has now created.

The law is never precise, and many times its development can raise more issues than it solves. That is what has happened here. What the Florida Supreme Court has done needs fixing—by the court somehow amending its decision, or by the Florida legislature harmonizing state law with the constitutional amendment passed by Florida's voters, or by having Florida voters amend the state constitution in some fashion. Only then can physicians in Florida and elsewhere be assured that the confidential work of peer review committees and accreditation organizations will remain confidential.

[email protected]

Imagine being a physician who has been involved in an adverse event—one that, through no real fault of your own, caused death or serious injury to a patient. Should your future patients have a right to know of your involvement?

Florida physicians are dealing with this issue in the wake of a recent decision by the Florida Supreme Court earlier this year, in Florida Hospital Waterman, Inc. etc., v. Teresa M. Buster, etc., et al. (No. SC06–912). In November 2004, Florida voters passed a constitutional amendment titled “Patients' Right to Know About Adverse Medical Incidents.” The amendment let patients obtain “any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident”—as long as the identity of the patients involved in the incidents wasn't revealed, and other privacy restrictions were adhered to. This included incidents that had to be reported to a government agency, or those that were reported to health care facility review committees. The amendment was to become effective immediately.

About 6 months later, in June 2005, the Florida legislature tried to clarify the amendment legislatively, stating that existing restrictions on use of records in court cases stay in place and that “discovering such documents does not mean that any of them can be introduced into evidence in a lawsuit … and [they] may not be used for any purpose, including impeachment, in any civil or administrative action against a health care facility or health care provider.”

Because of the legislature's action, two lower courts in Florida were asked to decide whether the amendment passed by the voters applied retroactively to records that existed before the amendment was passed. One court held that the amendment was retroactive; the other did not. In a 4–3 decision (with a sharply worded dissent), the Florida Supreme Court found that the amendment was indeed retroactive. The court also found that several subsections of new law were in conflict with the amendment passed by the voters, and were thus unconstitutional.

The Florida high court noted that access to peer review information is not to be limited to only those who are themselves patients since that restriction is not contained within the amendment.

But more importantly, the court also said that because part of the new law allows current laws restricting access to adverse incidents to remain in place, the new law is in conflict with the amendment passed by the voters and therefore “cannot stand.”

The dissenting justices argued that the amendment should not be applied retroactively. They noted that hospitals are required to perform peer review as part of medical quality assurance, and that the hospitals should be able to keep peer review records from being used in legal cases. Now that the majority has found the amendment to be retroactive, the dissenters pointed out, that allows for the discovery of records previously kept confidential, a consequence that is “legally unsupportable” and “fundamentally unfair.”

The Florida Supreme Court goofed. In its fervor to address the issue of retroactivity, it created more of a problem than it should have. The majority eviscerates what has become the linchpin for a health care facility's ability to ensure quality of care: its peer review function.

For example, let's take a situation in which a hospital's peer review committee obtains documents relating to an adverse medical incident. From those documents, the peer review committee makes a decision about the care rendered by a particular doctor.

Before the Florida Hospital Waterman case came down, there was an expectation that documents considered by a peer review committee would be privileged from discovery and not admissible in a legal proceeding. With Florida Hospital Waterman, no longer would such documents be cloaked with the protections against discovery provided in Florida. This would be inconsistent with protections against discovery provided in most—if not all—states having peer review statutes.

And, again, according to Florida Hospital Waterman, the right to see such evidence can pertain to documents that existed as of the date the Florida voters passed the constitutional amendment. How far back can the documents go? The court never says.

Another problem is that, for example, an accrediting organization such as the Joint Commission—which credentials a considerable portion of our nation's hospitals and other health care facilities—may find some difficulty with the Florida Hospital Waterman's majority's decision. One area the Joint Commission looks at in its accreditation process are “sentinel events”—those involving deaths or serious injuries. What if a sentinel event is intertwined with an adverse medical incident? All such information would be usable in legal cases under Florida Hospital Waterman, which may make hospital administrators uncomfortable if the commission asks them to produce sentinel event information during an accreditation or reaccreditation process.

Then there is the privacy issue. If privacy laws such as the Health Insurance Portability and Accountability Act (HIPAA) are to be respected, what good is producing an adverse medical incident report that is required by HIPAA but not including identifying information about the patient? HIPAA would thus destroy much of the good intended by the amendment passed by the voters. Moreover, since the amendment doesn't specify exactly who is entitled to such records, then anyone can request such information, regardless of applicable state or federal privacy laws.

Last, but certainly not least, are evidence laws relating to adverse medical incident records. The Florida high court blundered when it stated that a restriction on admitting such records in court cannot stand. Surely the decision on whether the constitutional amendment was retroactive was never intended to circumvent Florida's laws regulating the admissibility of evidence. Yet this is a conundrum that the court majority has now created.

The law is never precise, and many times its development can raise more issues than it solves. That is what has happened here. What the Florida Supreme Court has done needs fixing—by the court somehow amending its decision, or by the Florida legislature harmonizing state law with the constitutional amendment passed by Florida's voters, or by having Florida voters amend the state constitution in some fashion. Only then can physicians in Florida and elsewhere be assured that the confidential work of peer review committees and accreditation organizations will remain confidential.

[email protected]

Imagine being a physician who has been involved in an adverse event—one that, through no real fault of your own, caused death or serious injury to a patient. Should your future patients have a right to know of your involvement?

Florida physicians are dealing with this issue in the wake of a recent decision by the Florida Supreme Court earlier this year, in Florida Hospital Waterman, Inc. etc., v. Teresa M. Buster, etc., et al. (No. SC06–912). In November 2004, Florida voters passed a constitutional amendment titled “Patients' Right to Know About Adverse Medical Incidents.” The amendment let patients obtain “any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident”—as long as the identity of the patients involved in the incidents wasn't revealed, and other privacy restrictions were adhered to. This included incidents that had to be reported to a government agency, or those that were reported to health care facility review committees. The amendment was to become effective immediately.

About 6 months later, in June 2005, the Florida legislature tried to clarify the amendment legislatively, stating that existing restrictions on use of records in court cases stay in place and that “discovering such documents does not mean that any of them can be introduced into evidence in a lawsuit … and [they] may not be used for any purpose, including impeachment, in any civil or administrative action against a health care facility or health care provider.”

Because of the legislature's action, two lower courts in Florida were asked to decide whether the amendment passed by the voters applied retroactively to records that existed before the amendment was passed. One court held that the amendment was retroactive; the other did not. In a 4–3 decision (with a sharply worded dissent), the Florida Supreme Court found that the amendment was indeed retroactive. The court also found that several subsections of new law were in conflict with the amendment passed by the voters, and were thus unconstitutional.

The Florida high court noted that access to peer review information is not to be limited to only those who are themselves patients since that restriction is not contained within the amendment.

But more importantly, the court also said that because part of the new law allows current laws restricting access to adverse incidents to remain in place, the new law is in conflict with the amendment passed by the voters and therefore “cannot stand.”

The dissenting justices argued that the amendment should not be applied retroactively. They noted that hospitals are required to perform peer review as part of medical quality assurance, and that the hospitals should be able to keep peer review records from being used in legal cases. Now that the majority has found the amendment to be retroactive, the dissenters pointed out, that allows for the discovery of records previously kept confidential, a consequence that is “legally unsupportable” and “fundamentally unfair.”

The Florida Supreme Court goofed. In its fervor to address the issue of retroactivity, it created more of a problem than it should have. The majority eviscerates what has become the linchpin for a health care facility's ability to ensure quality of care: its peer review function.

For example, let's take a situation in which a hospital's peer review committee obtains documents relating to an adverse medical incident. From those documents, the peer review committee makes a decision about the care rendered by a particular doctor.

Before the Florida Hospital Waterman case came down, there was an expectation that documents considered by a peer review committee would be privileged from discovery and not admissible in a legal proceeding. With Florida Hospital Waterman, no longer would such documents be cloaked with the protections against discovery provided in Florida. This would be inconsistent with protections against discovery provided in most—if not all—states having peer review statutes.

And, again, according to Florida Hospital Waterman, the right to see such evidence can pertain to documents that existed as of the date the Florida voters passed the constitutional amendment. How far back can the documents go? The court never says.

Another problem is that, for example, an accrediting organization such as the Joint Commission—which credentials a considerable portion of our nation's hospitals and other health care facilities—may find some difficulty with the Florida Hospital Waterman's majority's decision. One area the Joint Commission looks at in its accreditation process are “sentinel events”—those involving deaths or serious injuries. What if a sentinel event is intertwined with an adverse medical incident? All such information would be usable in legal cases under Florida Hospital Waterman, which may make hospital administrators uncomfortable if the commission asks them to produce sentinel event information during an accreditation or reaccreditation process.

Then there is the privacy issue. If privacy laws such as the Health Insurance Portability and Accountability Act (HIPAA) are to be respected, what good is producing an adverse medical incident report that is required by HIPAA but not including identifying information about the patient? HIPAA would thus destroy much of the good intended by the amendment passed by the voters. Moreover, since the amendment doesn't specify exactly who is entitled to such records, then anyone can request such information, regardless of applicable state or federal privacy laws.

Last, but certainly not least, are evidence laws relating to adverse medical incident records. The Florida high court blundered when it stated that a restriction on admitting such records in court cannot stand. Surely the decision on whether the constitutional amendment was retroactive was never intended to circumvent Florida's laws regulating the admissibility of evidence. Yet this is a conundrum that the court majority has now created.

The law is never precise, and many times its development can raise more issues than it solves. That is what has happened here. What the Florida Supreme Court has done needs fixing—by the court somehow amending its decision, or by the Florida legislature harmonizing state law with the constitutional amendment passed by Florida's voters, or by having Florida voters amend the state constitution in some fashion. Only then can physicians in Florida and elsewhere be assured that the confidential work of peer review committees and accreditation organizations will remain confidential.

[email protected]

When he was asked about corporate America during one of his speeches on the presidential campaign trail, former Democratic candidate John Edwards noted, “They don't give the layperson anything; it has to be taken from them.” How true this admonition and observation is when it comes to the plight of health plan members whose health insurance coverage is rescinded just when medical bills come due. The “poster child” for this problem seems to be Health Net Inc. of Woodland Hills, Calif.—for good reason.

On Feb. 21, 2008, California resident Patsy Bates was awarded $9 million in an arbitration proceeding involving Health Net. Ms. Bates had a health insurance policy from another company, but was convinced by an insurance agent to try Health Net. She applied for the new policy in July 2003, and Health Net approved her new policy effective Aug. 1. In September of that year, she was diagnosed with breast cancer. Three months later, Health Net asked that she elaborate on certain answers she gave on her enrollment application. In January 2004, Health Net sent Ms. Bates a letter telling her it was rescinding her health insurance policy. This left her, at the time of the arbitration, with unpaid medical bills totaling nearly $130,000.

Bates sued Health Net for breach of contract, and breach of the duty of good faith and fair dealing. She also claimed that by rescinding her policy, Health Net was guilty of oppression, fraud, or malice.

Evidence presented during the arbitration indicated that after Ms. Bates filled out and signed her application, her agent changed what she gave as her weight; however, he did not tell Ms. Bates about the change, nor did he have her approve the change in writing, as required by law.

One of the standards Health Net used for reviewing applications pertained to weight, that is, if an applicant over age 50 weighed more than 198 pounds, the application could be declined, or “rated a “+50.” Although Ms. Bates' actual weight was not mentioned in the arbitration record, it appears the agent changed the weight listed on the application from another amount to 185. Ms. Bates' application was initially approved without further investigation or follow-up.

Ms. Bates was a victim of one of the frequent “rescission investigations” performed by Health Net employees. Information omitted from an application, even by mistake, could be grounds for rescission, and employee bonuses were tied to the rescission investigations. “It's difficult to imagine a policy more reprehensible than tying bonuses to encourage the rescission of health insurance that helps keep the public well and alive,” wrote the arbitrator in the case.

Ms. Bates claimed that the rescission of her policy was in bad faith because it was based upon the information supplied in the initially approved application. If there was a problem, it should have been investigated before the policy was issued so that if it was declined, she could still keep her previous coverage.

The arbitrator concluded that Health Net was more concerned with its own financial interests than concerns for the interests of Ms. Bates. The award covered Ms. Bates' medical expenses, emotional distress, and nearly $8.5 million in punitive damages. According to one newspaper article, this ruling was the first of its kind, and the most powerful rebuke to California's major insurers concerning the practice of rescinding health insurance policies.

A day before the Bates decision came out, the Los Angeles City Attorney filed a 47-page lawsuit against Health Net and its various entities for claims based on unfair competition and false advertising (Dkt. No. BC385816, Sup. Ct., Cty. of Los Angeles). The thrust of this lawsuit is that coverage provided by Health Net and its member companies is largely illusory because they rescind coverage upon submission of a substantial claim for benefits, as was the case with Ms. Bates. That suit is ongoing.

For its part, Health Net reported that it paid out claims in excess of $200 million in 2006 and that its program of tying bonuses to number of rescinded health insurance contracts has been dropped. The company also said that it has halted cancellations and that it would be changing its coverage applications and retraining its sales force.

Health Net is not the only California insurer in the crosshairs of legal scrutiny. Los Angeles City Attorney Rocky Delgadillo announced in April that he is suing Anthem Blue Cross for illegally canceling the policies of more than 6,000 California residents. There is also the year-old class-action suit against Anthem for canceling policies, and a case joined in last year by the largest organizations representing California doctors and hospitals, accusing the state's largest health plan of illegally and routinely refusing to pay millions of dollars for medical care provided to enrollees whose policies were later canceled.

Then, of course, there was the much-publicized decision earlier this year when Cigna HealthCare denied a liver transplant for a 17-year-old girl in California. The insurer then changed its mind, but it was too late—the girl died a few hours after the reversal was announced. Another insurer decided that after years of paying for nursing care for a badly disabled boy, the boy no longer needed it, even though he suffered from severe brain damage and was unable to walk, sit up, speak, or eat by mouth.

California's Department of Managed Health Care is trying to help people get their policies back. In mid-April, the department announced that it was ordering immediate reinstatement of policies for 26 consumers whose policies the department found were wrongfully rescinded. The department is also ordering a re-review of all other rescissions over the past 4 years as part of its ongoing investigation into the rescission practices of five of the largest health plans that offer individual coverage to state residents.

From all these examples, one could assert that there is a problem in California with insurers' wanting to get out of insurance contracts once an illness or treatment has occurred. But is it an epidemic, or is this problem of rescission limited to California? Evidence has not suggested the problem is “systemic” nationwide, but where there is smoke, there surely is fire. One thing is certain: Insurers seem to be playing the “blame game”—blaming consumers for not filling out applications for coverage properly when these companies have failed to properly investigate the contents of those applications. Ain't that the American way now—place blame on others for your own failings?

Equally noteworthy is that when insurers rescind health coverage due to their own shortcomings, they can still retain premiums paid by patients or employers, deny payments to doctors and health care facilities for care rendered—and perhaps then make their profit margins even heftier. Moreover, buying insurance to protect against a loss or risk is the expectation of only those who buy the insurance—and also, perhaps, the physicians who treat patients because they have certain insurance coverage; they are expecting to be paid by that insurer. Another perspective exists, however: to see how inventive an entity protecting against that risk can be to deny or limit the coverage purchased, and to find ways to preclude the doctors who treat those patients from getting paid.

In the end, maybe the Latin, caveat emptor, might be worth thinking about. However, it should never come to this, since the insurance laws of any state in which an insurer wishes to write health policies should be inclusive of a provision or two barring cancellations or rescissions of policies based on innocent or negligently made mistakes done by the insured or anyone acting on behalf of the insured in filling out an application for insurance.

Regardless of what remedies are put in place, a perception also certainly exists that rescission of health care coverage only adds to the woes of the health care crisis now engulfing our economy and nation today. But what is important for the reader to know is that maybe health insurers do not insure medical disease or injury, but instead ensure that they will avoid risks themselves once a patient makes a claim.

[email protected]

When he was asked about corporate America during one of his speeches on the presidential campaign trail, former Democratic candidate John Edwards noted, “They don't give the layperson anything; it has to be taken from them.” How true this admonition and observation is when it comes to the plight of health plan members whose health insurance coverage is rescinded just when medical bills come due. The “poster child” for this problem seems to be Health Net Inc. of Woodland Hills, Calif.—for good reason.

On Feb. 21, 2008, California resident Patsy Bates was awarded $9 million in an arbitration proceeding involving Health Net. Ms. Bates had a health insurance policy from another company, but was convinced by an insurance agent to try Health Net. She applied for the new policy in July 2003, and Health Net approved her new policy effective Aug. 1. In September of that year, she was diagnosed with breast cancer. Three months later, Health Net asked that she elaborate on certain answers she gave on her enrollment application. In January 2004, Health Net sent Ms. Bates a letter telling her it was rescinding her health insurance policy. This left her, at the time of the arbitration, with unpaid medical bills totaling nearly $130,000.

Bates sued Health Net for breach of contract, and breach of the duty of good faith and fair dealing. She also claimed that by rescinding her policy, Health Net was guilty of oppression, fraud, or malice.

Evidence presented during the arbitration indicated that after Ms. Bates filled out and signed her application, her agent changed what she gave as her weight; however, he did not tell Ms. Bates about the change, nor did he have her approve the change in writing, as required by law.

One of the standards Health Net used for reviewing applications pertained to weight, that is, if an applicant over age 50 weighed more than 198 pounds, the application could be declined, or “rated a “+50.” Although Ms. Bates' actual weight was not mentioned in the arbitration record, it appears the agent changed the weight listed on the application from another amount to 185. Ms. Bates' application was initially approved without further investigation or follow-up.

Ms. Bates was a victim of one of the frequent “rescission investigations” performed by Health Net employees. Information omitted from an application, even by mistake, could be grounds for rescission, and employee bonuses were tied to the rescission investigations. “It's difficult to imagine a policy more reprehensible than tying bonuses to encourage the rescission of health insurance that helps keep the public well and alive,” wrote the arbitrator in the case.

Ms. Bates claimed that the rescission of her policy was in bad faith because it was based upon the information supplied in the initially approved application. If there was a problem, it should have been investigated before the policy was issued so that if it was declined, she could still keep her previous coverage.

The arbitrator concluded that Health Net was more concerned with its own financial interests than concerns for the interests of Ms. Bates. The award covered Ms. Bates' medical expenses, emotional distress, and nearly $8.5 million in punitive damages. According to one newspaper article, this ruling was the first of its kind, and the most powerful rebuke to California's major insurers concerning the practice of rescinding health insurance policies.

A day before the Bates decision came out, the Los Angeles City Attorney filed a 47-page lawsuit against Health Net and its various entities for claims based on unfair competition and false advertising (Dkt. No. BC385816, Sup. Ct., Cty. of Los Angeles). The thrust of this lawsuit is that coverage provided by Health Net and its member companies is largely illusory because they rescind coverage upon submission of a substantial claim for benefits, as was the case with Ms. Bates. That suit is ongoing.

For its part, Health Net reported that it paid out claims in excess of $200 million in 2006 and that its program of tying bonuses to number of rescinded health insurance contracts has been dropped. The company also said that it has halted cancellations and that it would be changing its coverage applications and retraining its sales force.

Health Net is not the only California insurer in the crosshairs of legal scrutiny. Los Angeles City Attorney Rocky Delgadillo announced in April that he is suing Anthem Blue Cross for illegally canceling the policies of more than 6,000 California residents. There is also the year-old class-action suit against Anthem for canceling policies, and a case joined in last year by the largest organizations representing California doctors and hospitals, accusing the state's largest health plan of illegally and routinely refusing to pay millions of dollars for medical care provided to enrollees whose policies were later canceled.

Then, of course, there was the much-publicized decision earlier this year when Cigna HealthCare denied a liver transplant for a 17-year-old girl in California. The insurer then changed its mind, but it was too late—the girl died a few hours after the reversal was announced. Another insurer decided that after years of paying for nursing care for a badly disabled boy, the boy no longer needed it, even though he suffered from severe brain damage and was unable to walk, sit up, speak, or eat by mouth.

California's Department of Managed Health Care is trying to help people get their policies back. In mid-April, the department announced that it was ordering immediate reinstatement of policies for 26 consumers whose policies the department found were wrongfully rescinded. The department is also ordering a re-review of all other rescissions over the past 4 years as part of its ongoing investigation into the rescission practices of five of the largest health plans that offer individual coverage to state residents.

From all these examples, one could assert that there is a problem in California with insurers' wanting to get out of insurance contracts once an illness or treatment has occurred. But is it an epidemic, or is this problem of rescission limited to California? Evidence has not suggested the problem is “systemic” nationwide, but where there is smoke, there surely is fire. One thing is certain: Insurers seem to be playing the “blame game”—blaming consumers for not filling out applications for coverage properly when these companies have failed to properly investigate the contents of those applications. Ain't that the American way now—place blame on others for your own failings?

Equally noteworthy is that when insurers rescind health coverage due to their own shortcomings, they can still retain premiums paid by patients or employers, deny payments to doctors and health care facilities for care rendered—and perhaps then make their profit margins even heftier. Moreover, buying insurance to protect against a loss or risk is the expectation of only those who buy the insurance—and also, perhaps, the physicians who treat patients because they have certain insurance coverage; they are expecting to be paid by that insurer. Another perspective exists, however: to see how inventive an entity protecting against that risk can be to deny or limit the coverage purchased, and to find ways to preclude the doctors who treat those patients from getting paid.

In the end, maybe the Latin, caveat emptor, might be worth thinking about. However, it should never come to this, since the insurance laws of any state in which an insurer wishes to write health policies should be inclusive of a provision or two barring cancellations or rescissions of policies based on innocent or negligently made mistakes done by the insured or anyone acting on behalf of the insured in filling out an application for insurance.

Regardless of what remedies are put in place, a perception also certainly exists that rescission of health care coverage only adds to the woes of the health care crisis now engulfing our economy and nation today. But what is important for the reader to know is that maybe health insurers do not insure medical disease or injury, but instead ensure that they will avoid risks themselves once a patient makes a claim.

[email protected]

When he was asked about corporate America during one of his speeches on the presidential campaign trail, former Democratic candidate John Edwards noted, “They don't give the layperson anything; it has to be taken from them.” How true this admonition and observation is when it comes to the plight of health plan members whose health insurance coverage is rescinded just when medical bills come due. The “poster child” for this problem seems to be Health Net Inc. of Woodland Hills, Calif.—for good reason.

On Feb. 21, 2008, California resident Patsy Bates was awarded $9 million in an arbitration proceeding involving Health Net. Ms. Bates had a health insurance policy from another company, but was convinced by an insurance agent to try Health Net. She applied for the new policy in July 2003, and Health Net approved her new policy effective Aug. 1. In September of that year, she was diagnosed with breast cancer. Three months later, Health Net asked that she elaborate on certain answers she gave on her enrollment application. In January 2004, Health Net sent Ms. Bates a letter telling her it was rescinding her health insurance policy. This left her, at the time of the arbitration, with unpaid medical bills totaling nearly $130,000.

Bates sued Health Net for breach of contract, and breach of the duty of good faith and fair dealing. She also claimed that by rescinding her policy, Health Net was guilty of oppression, fraud, or malice.

Evidence presented during the arbitration indicated that after Ms. Bates filled out and signed her application, her agent changed what she gave as her weight; however, he did not tell Ms. Bates about the change, nor did he have her approve the change in writing, as required by law.

One of the standards Health Net used for reviewing applications pertained to weight, that is, if an applicant over age 50 weighed more than 198 pounds, the application could be declined, or “rated a “+50.” Although Ms. Bates' actual weight was not mentioned in the arbitration record, it appears the agent changed the weight listed on the application from another amount to 185. Ms. Bates' application was initially approved without further investigation or follow-up.

Ms. Bates was a victim of one of the frequent “rescission investigations” performed by Health Net employees. Information omitted from an application, even by mistake, could be grounds for rescission, and employee bonuses were tied to the rescission investigations. “It's difficult to imagine a policy more reprehensible than tying bonuses to encourage the rescission of health insurance that helps keep the public well and alive,” wrote the arbitrator in the case.

Ms. Bates claimed that the rescission of her policy was in bad faith because it was based upon the information supplied in the initially approved application. If there was a problem, it should have been investigated before the policy was issued so that if it was declined, she could still keep her previous coverage.

The arbitrator concluded that Health Net was more concerned with its own financial interests than concerns for the interests of Ms. Bates. The award covered Ms. Bates' medical expenses, emotional distress, and nearly $8.5 million in punitive damages. According to one newspaper article, this ruling was the first of its kind, and the most powerful rebuke to California's major insurers concerning the practice of rescinding health insurance policies.

A day before the Bates decision came out, the Los Angeles City Attorney filed a 47-page lawsuit against Health Net and its various entities for claims based on unfair competition and false advertising (Dkt. No. BC385816, Sup. Ct., Cty. of Los Angeles). The thrust of this lawsuit is that coverage provided by Health Net and its member companies is largely illusory because they rescind coverage upon submission of a substantial claim for benefits, as was the case with Ms. Bates. That suit is ongoing.

For its part, Health Net reported that it paid out claims in excess of $200 million in 2006 and that its program of tying bonuses to number of rescinded health insurance contracts has been dropped. The company also said that it has halted cancellations and that it would be changing its coverage applications and retraining its sales force.

Health Net is not the only California insurer in the crosshairs of legal scrutiny. Los Angeles City Attorney Rocky Delgadillo announced in April that he is suing Anthem Blue Cross for illegally canceling the policies of more than 6,000 California residents. There is also the year-old class-action suit against Anthem for canceling policies, and a case joined in last year by the largest organizations representing California doctors and hospitals, accusing the state's largest health plan of illegally and routinely refusing to pay millions of dollars for medical care provided to enrollees whose policies were later canceled.

Then, of course, there was the much-publicized decision earlier this year when Cigna HealthCare denied a liver transplant for a 17-year-old girl in California. The insurer then changed its mind, but it was too late—the girl died a few hours after the reversal was announced. Another insurer decided that after years of paying for nursing care for a badly disabled boy, the boy no longer needed it, even though he suffered from severe brain damage and was unable to walk, sit up, speak, or eat by mouth.

California's Department of Managed Health Care is trying to help people get their policies back. In mid-April, the department announced that it was ordering immediate reinstatement of policies for 26 consumers whose policies the department found were wrongfully rescinded. The department is also ordering a re-review of all other rescissions over the past 4 years as part of its ongoing investigation into the rescission practices of five of the largest health plans that offer individual coverage to state residents.

From all these examples, one could assert that there is a problem in California with insurers' wanting to get out of insurance contracts once an illness or treatment has occurred. But is it an epidemic, or is this problem of rescission limited to California? Evidence has not suggested the problem is “systemic” nationwide, but where there is smoke, there surely is fire. One thing is certain: Insurers seem to be playing the “blame game”—blaming consumers for not filling out applications for coverage properly when these companies have failed to properly investigate the contents of those applications. Ain't that the American way now—place blame on others for your own failings?

Equally noteworthy is that when insurers rescind health coverage due to their own shortcomings, they can still retain premiums paid by patients or employers, deny payments to doctors and health care facilities for care rendered—and perhaps then make their profit margins even heftier. Moreover, buying insurance to protect against a loss or risk is the expectation of only those who buy the insurance—and also, perhaps, the physicians who treat patients because they have certain insurance coverage; they are expecting to be paid by that insurer. Another perspective exists, however: to see how inventive an entity protecting against that risk can be to deny or limit the coverage purchased, and to find ways to preclude the doctors who treat those patients from getting paid.

In the end, maybe the Latin, caveat emptor, might be worth thinking about. However, it should never come to this, since the insurance laws of any state in which an insurer wishes to write health policies should be inclusive of a provision or two barring cancellations or rescissions of policies based on innocent or negligently made mistakes done by the insured or anyone acting on behalf of the insured in filling out an application for insurance.

Regardless of what remedies are put in place, a perception also certainly exists that rescission of health care coverage only adds to the woes of the health care crisis now engulfing our economy and nation today. But what is important for the reader to know is that maybe health insurers do not insure medical disease or injury, but instead ensure that they will avoid risks themselves once a patient makes a claim.