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Check out our 6-minute feature video: "Five Reasons You Should Attend HM13"
Click here to listen to Dr. Brotman
Click here to listen to Dr. Feinberg
Check out our 6-minute feature video: "Five Reasons You Should Attend HM13"
Click here to listen to Dr. Brotman
Click here to listen to Dr. Feinberg
Check out our 6-minute feature video: "Five Reasons You Should Attend HM13"
The Process of Selling a Hospitalist Group from Start to Finish
Whether your hospitalist group has five or 500 practitioners, you and your partners might be thinking about whether you want—or need—to enter into a merger or acquisition in the near future. For some hospitalist groups, mergers and acquisitions could be part of a growth strategy designed to increase geographic footprint, market penetration, or bargaining power. These types of transactions will allow larger groups to increase their competitiveness by being able to leverage investments in such items as information technology upgrades across a larger base of business.
For others, a desire to retire or an inability to either afford or justify certain capital investments needed to remain competitive might be leading some players to consider selling their hospitalist groups. Moreover, changes in the healthcare industry, coupled with the anticipation of tax increases, could factor into decisions to sell practices in the relatively near term.
While each transaction is unique, most tend to follow a similar process, incorporating a number of relatively standard phases that must be undertaken in order to complete a transaction. The transaction process typically takes between three and nine months, although preparations are often best begun in advance of the actual deal process.
Preliminary Matters
For hospitalist group owners and executives considering selling their practice, a number of preliminary matters should be addressed in preparation for a sale. First, potential sellers should carefully consider whether they really wish to enter into the sale process. The sale process is lengthy, time-consuming, and costly, and it is often stressful and demanding on the practice’s management. Thus, potential sellers should not undertake the process unless they are serious about selling and have a realistic expectation of what they will receive as the purchase price.
As part of the preparation, sellers should begin by assembling an experienced transaction team. Typically, the team includes key members of the practice’s management, as well as experienced healthcare mergers and acquisitions attorneys and accountants. These experienced professionals can be of great assistance in making sure that a transaction is executed on a timely basis and under terms appropriate for the specific transaction.
Another prudent step is undertaking a tax analysis to determine the implications of the sale on both the selling practice and its individual owners. This analysis should be performed as far in advance of a proposed transaction as possible, in order to allow time for adjustments to be made (if necessary) to limit the tax implications in advance of the sale. Sellers also will want to use this preparatory phase to make sure that the practice’s books and records are in good order in preparation for the buyer’s due diligence review, as well as to address any issues in order to make the practice more attractive to potential buyers. Some sellers might want to have an investment banker or other qualified professional provide a valuation appraisal of the practice to provide a realistic purchase price.
Finding a Buyer
As a seller begins the process to find a buyer, the seller must first consider the approach that it wants to take. Some larger groups are sold through auction-like processes in which a number of bidders are contacted and invited to participate. The advantage of this type of process is that it typically drives prices higher by introducing competition into the bidding process. On the other hand, this type of process has certain disadvantages, such as a longer time frame and increased risk of a breach of confidentiality.
For some sellers, a more targeted approach, with limited participants, might be more desirable. If a fair purchase price can be obtained without involving multiple potential buyers, the process can be completed faster and with less risk to the ongoing business operations.
The process of finding a buyer typically requires the seller to provide potential buyers with confidential information regarding the business so the interested parties can evaluate whether the selling group is even of interest and the amount that they will be willing to pay. However, the selling practice should only provide this confidential information after potential buyers have signed nondisclosure agreements.
Ultimately, the process will lead to the submission of specific proposals from interested parties. Typically, this results in the seller and the selected buyer entering into a letter of intent, a statement of key terms for the proposed transaction. Letters of intent are largely not binding and are subject to the satisfaction of conditions, such as the negotiation of definitive written agreements. Typically, in this phase of the process, the basic structure of the transaction, the purchase price, and the manner of payment are determined.
Due Diligence
In almost all sale transactions, the buyer will conduct a review and investigation of the seller’s business. The purpose of this review is to confirm the information previously provided by the seller and to allow the buyer to gain a thorough understanding of the business to determine whether it is truly willing to buy the business on the terms identified in the letter of intent. The buyer will want to confirm that it is not going to inherit any unexpected liabilities or problems, such as healthcare regulatory issues or lawsuits. To comply with the information requests from the buyer as it conducts its due diligence review, the seller will be required to assemble many documents and voluminous amounts of financial and other information. The burden of providing this information to the buyer will be substantial and could distract management from their day-to-day duties of running the practice.
Upon completion of the due diligence process, the buyer will either confirm that it is willing to move forward with the transaction “as is,” or, if the due diligence review reveals troubling information, the buyer can either demand changes to the transaction (such as a reduction of the purchase price) or be unwilling to proceed with the transaction altogether.
Negotiating Definitive Agreements
The parties will need to negotiate and agree on certain definitive written agreements, which will govern the transaction. First and foremost, this will include a purchase agreement, such as a stock purchase agreement or an asset purchase agreement. In addition, there may also be various ancillary agreements, such as noncompetition agreements between the buyer and the owners of the selling practice and new employment agreements for the sellers.
Typically, the negotiation of definitive agreements proceeds in parallel with the buyer’s due diligence review.
Closing
At the closing, both sides will sign numerous documents, including those necessary to transfer ownership of the purchased group to the buyer, as well as all ancillary agreements and other documents needed for the transaction. Once signatures have been obtained and exchanged between the parties, the transfer of title will occur and the buyer will tender the purchase price.
Post-Closing
Although the vast majority of the work associated with the transaction will terminate upon the completion of the closing, certain aspects of the sale will require some attention after the closing. For example, there may be purchase price adjustments based upon the final balance sheet or net working capital position of the seller’s business as of the closing date. Typically, these adjustments are addressed in the months following the closing. Also, if any indemnification claims are brought, the parties will need to address those claims and reach a resolution.
Merger and acquisition transactions are complex, time-consuming matters that require a great deal of effort on the part of all parties involved. An orderly process is essential for both buyers and sellers. Sellers will want to take steps to make sure that the transaction is completed in a timely manner while minimizing risk to the ongoing business operations. At the same time, buyers will want to make sure that the value that they are receiving from the seller’s business is commensurate with the purchase price and that the buyer’s goals for entering into the sale will truly be met post-closing.
Steven M. Harris, Esq., is a nationally recognized healthcare attorney and a member of the law firm McDonald Hopkins LLC in Chicago. Write to him at [email protected].
Whether your hospitalist group has five or 500 practitioners, you and your partners might be thinking about whether you want—or need—to enter into a merger or acquisition in the near future. For some hospitalist groups, mergers and acquisitions could be part of a growth strategy designed to increase geographic footprint, market penetration, or bargaining power. These types of transactions will allow larger groups to increase their competitiveness by being able to leverage investments in such items as information technology upgrades across a larger base of business.
For others, a desire to retire or an inability to either afford or justify certain capital investments needed to remain competitive might be leading some players to consider selling their hospitalist groups. Moreover, changes in the healthcare industry, coupled with the anticipation of tax increases, could factor into decisions to sell practices in the relatively near term.
While each transaction is unique, most tend to follow a similar process, incorporating a number of relatively standard phases that must be undertaken in order to complete a transaction. The transaction process typically takes between three and nine months, although preparations are often best begun in advance of the actual deal process.
Preliminary Matters
For hospitalist group owners and executives considering selling their practice, a number of preliminary matters should be addressed in preparation for a sale. First, potential sellers should carefully consider whether they really wish to enter into the sale process. The sale process is lengthy, time-consuming, and costly, and it is often stressful and demanding on the practice’s management. Thus, potential sellers should not undertake the process unless they are serious about selling and have a realistic expectation of what they will receive as the purchase price.
As part of the preparation, sellers should begin by assembling an experienced transaction team. Typically, the team includes key members of the practice’s management, as well as experienced healthcare mergers and acquisitions attorneys and accountants. These experienced professionals can be of great assistance in making sure that a transaction is executed on a timely basis and under terms appropriate for the specific transaction.
Another prudent step is undertaking a tax analysis to determine the implications of the sale on both the selling practice and its individual owners. This analysis should be performed as far in advance of a proposed transaction as possible, in order to allow time for adjustments to be made (if necessary) to limit the tax implications in advance of the sale. Sellers also will want to use this preparatory phase to make sure that the practice’s books and records are in good order in preparation for the buyer’s due diligence review, as well as to address any issues in order to make the practice more attractive to potential buyers. Some sellers might want to have an investment banker or other qualified professional provide a valuation appraisal of the practice to provide a realistic purchase price.
Finding a Buyer
As a seller begins the process to find a buyer, the seller must first consider the approach that it wants to take. Some larger groups are sold through auction-like processes in which a number of bidders are contacted and invited to participate. The advantage of this type of process is that it typically drives prices higher by introducing competition into the bidding process. On the other hand, this type of process has certain disadvantages, such as a longer time frame and increased risk of a breach of confidentiality.
For some sellers, a more targeted approach, with limited participants, might be more desirable. If a fair purchase price can be obtained without involving multiple potential buyers, the process can be completed faster and with less risk to the ongoing business operations.
The process of finding a buyer typically requires the seller to provide potential buyers with confidential information regarding the business so the interested parties can evaluate whether the selling group is even of interest and the amount that they will be willing to pay. However, the selling practice should only provide this confidential information after potential buyers have signed nondisclosure agreements.
Ultimately, the process will lead to the submission of specific proposals from interested parties. Typically, this results in the seller and the selected buyer entering into a letter of intent, a statement of key terms for the proposed transaction. Letters of intent are largely not binding and are subject to the satisfaction of conditions, such as the negotiation of definitive written agreements. Typically, in this phase of the process, the basic structure of the transaction, the purchase price, and the manner of payment are determined.
Due Diligence
In almost all sale transactions, the buyer will conduct a review and investigation of the seller’s business. The purpose of this review is to confirm the information previously provided by the seller and to allow the buyer to gain a thorough understanding of the business to determine whether it is truly willing to buy the business on the terms identified in the letter of intent. The buyer will want to confirm that it is not going to inherit any unexpected liabilities or problems, such as healthcare regulatory issues or lawsuits. To comply with the information requests from the buyer as it conducts its due diligence review, the seller will be required to assemble many documents and voluminous amounts of financial and other information. The burden of providing this information to the buyer will be substantial and could distract management from their day-to-day duties of running the practice.
Upon completion of the due diligence process, the buyer will either confirm that it is willing to move forward with the transaction “as is,” or, if the due diligence review reveals troubling information, the buyer can either demand changes to the transaction (such as a reduction of the purchase price) or be unwilling to proceed with the transaction altogether.
Negotiating Definitive Agreements
The parties will need to negotiate and agree on certain definitive written agreements, which will govern the transaction. First and foremost, this will include a purchase agreement, such as a stock purchase agreement or an asset purchase agreement. In addition, there may also be various ancillary agreements, such as noncompetition agreements between the buyer and the owners of the selling practice and new employment agreements for the sellers.
Typically, the negotiation of definitive agreements proceeds in parallel with the buyer’s due diligence review.
Closing
At the closing, both sides will sign numerous documents, including those necessary to transfer ownership of the purchased group to the buyer, as well as all ancillary agreements and other documents needed for the transaction. Once signatures have been obtained and exchanged between the parties, the transfer of title will occur and the buyer will tender the purchase price.
Post-Closing
Although the vast majority of the work associated with the transaction will terminate upon the completion of the closing, certain aspects of the sale will require some attention after the closing. For example, there may be purchase price adjustments based upon the final balance sheet or net working capital position of the seller’s business as of the closing date. Typically, these adjustments are addressed in the months following the closing. Also, if any indemnification claims are brought, the parties will need to address those claims and reach a resolution.
Merger and acquisition transactions are complex, time-consuming matters that require a great deal of effort on the part of all parties involved. An orderly process is essential for both buyers and sellers. Sellers will want to take steps to make sure that the transaction is completed in a timely manner while minimizing risk to the ongoing business operations. At the same time, buyers will want to make sure that the value that they are receiving from the seller’s business is commensurate with the purchase price and that the buyer’s goals for entering into the sale will truly be met post-closing.
Steven M. Harris, Esq., is a nationally recognized healthcare attorney and a member of the law firm McDonald Hopkins LLC in Chicago. Write to him at [email protected].
Whether your hospitalist group has five or 500 practitioners, you and your partners might be thinking about whether you want—or need—to enter into a merger or acquisition in the near future. For some hospitalist groups, mergers and acquisitions could be part of a growth strategy designed to increase geographic footprint, market penetration, or bargaining power. These types of transactions will allow larger groups to increase their competitiveness by being able to leverage investments in such items as information technology upgrades across a larger base of business.
For others, a desire to retire or an inability to either afford or justify certain capital investments needed to remain competitive might be leading some players to consider selling their hospitalist groups. Moreover, changes in the healthcare industry, coupled with the anticipation of tax increases, could factor into decisions to sell practices in the relatively near term.
While each transaction is unique, most tend to follow a similar process, incorporating a number of relatively standard phases that must be undertaken in order to complete a transaction. The transaction process typically takes between three and nine months, although preparations are often best begun in advance of the actual deal process.
Preliminary Matters
For hospitalist group owners and executives considering selling their practice, a number of preliminary matters should be addressed in preparation for a sale. First, potential sellers should carefully consider whether they really wish to enter into the sale process. The sale process is lengthy, time-consuming, and costly, and it is often stressful and demanding on the practice’s management. Thus, potential sellers should not undertake the process unless they are serious about selling and have a realistic expectation of what they will receive as the purchase price.
As part of the preparation, sellers should begin by assembling an experienced transaction team. Typically, the team includes key members of the practice’s management, as well as experienced healthcare mergers and acquisitions attorneys and accountants. These experienced professionals can be of great assistance in making sure that a transaction is executed on a timely basis and under terms appropriate for the specific transaction.
Another prudent step is undertaking a tax analysis to determine the implications of the sale on both the selling practice and its individual owners. This analysis should be performed as far in advance of a proposed transaction as possible, in order to allow time for adjustments to be made (if necessary) to limit the tax implications in advance of the sale. Sellers also will want to use this preparatory phase to make sure that the practice’s books and records are in good order in preparation for the buyer’s due diligence review, as well as to address any issues in order to make the practice more attractive to potential buyers. Some sellers might want to have an investment banker or other qualified professional provide a valuation appraisal of the practice to provide a realistic purchase price.
Finding a Buyer
As a seller begins the process to find a buyer, the seller must first consider the approach that it wants to take. Some larger groups are sold through auction-like processes in which a number of bidders are contacted and invited to participate. The advantage of this type of process is that it typically drives prices higher by introducing competition into the bidding process. On the other hand, this type of process has certain disadvantages, such as a longer time frame and increased risk of a breach of confidentiality.
For some sellers, a more targeted approach, with limited participants, might be more desirable. If a fair purchase price can be obtained without involving multiple potential buyers, the process can be completed faster and with less risk to the ongoing business operations.
The process of finding a buyer typically requires the seller to provide potential buyers with confidential information regarding the business so the interested parties can evaluate whether the selling group is even of interest and the amount that they will be willing to pay. However, the selling practice should only provide this confidential information after potential buyers have signed nondisclosure agreements.
Ultimately, the process will lead to the submission of specific proposals from interested parties. Typically, this results in the seller and the selected buyer entering into a letter of intent, a statement of key terms for the proposed transaction. Letters of intent are largely not binding and are subject to the satisfaction of conditions, such as the negotiation of definitive written agreements. Typically, in this phase of the process, the basic structure of the transaction, the purchase price, and the manner of payment are determined.
Due Diligence
In almost all sale transactions, the buyer will conduct a review and investigation of the seller’s business. The purpose of this review is to confirm the information previously provided by the seller and to allow the buyer to gain a thorough understanding of the business to determine whether it is truly willing to buy the business on the terms identified in the letter of intent. The buyer will want to confirm that it is not going to inherit any unexpected liabilities or problems, such as healthcare regulatory issues or lawsuits. To comply with the information requests from the buyer as it conducts its due diligence review, the seller will be required to assemble many documents and voluminous amounts of financial and other information. The burden of providing this information to the buyer will be substantial and could distract management from their day-to-day duties of running the practice.
Upon completion of the due diligence process, the buyer will either confirm that it is willing to move forward with the transaction “as is,” or, if the due diligence review reveals troubling information, the buyer can either demand changes to the transaction (such as a reduction of the purchase price) or be unwilling to proceed with the transaction altogether.
Negotiating Definitive Agreements
The parties will need to negotiate and agree on certain definitive written agreements, which will govern the transaction. First and foremost, this will include a purchase agreement, such as a stock purchase agreement or an asset purchase agreement. In addition, there may also be various ancillary agreements, such as noncompetition agreements between the buyer and the owners of the selling practice and new employment agreements for the sellers.
Typically, the negotiation of definitive agreements proceeds in parallel with the buyer’s due diligence review.
Closing
At the closing, both sides will sign numerous documents, including those necessary to transfer ownership of the purchased group to the buyer, as well as all ancillary agreements and other documents needed for the transaction. Once signatures have been obtained and exchanged between the parties, the transfer of title will occur and the buyer will tender the purchase price.
Post-Closing
Although the vast majority of the work associated with the transaction will terminate upon the completion of the closing, certain aspects of the sale will require some attention after the closing. For example, there may be purchase price adjustments based upon the final balance sheet or net working capital position of the seller’s business as of the closing date. Typically, these adjustments are addressed in the months following the closing. Also, if any indemnification claims are brought, the parties will need to address those claims and reach a resolution.
Merger and acquisition transactions are complex, time-consuming matters that require a great deal of effort on the part of all parties involved. An orderly process is essential for both buyers and sellers. Sellers will want to take steps to make sure that the transaction is completed in a timely manner while minimizing risk to the ongoing business operations. At the same time, buyers will want to make sure that the value that they are receiving from the seller’s business is commensurate with the purchase price and that the buyer’s goals for entering into the sale will truly be met post-closing.
Steven M. Harris, Esq., is a nationally recognized healthcare attorney and a member of the law firm McDonald Hopkins LLC in Chicago. Write to him at [email protected].
Was CT With Contrast Forgotten?
At an Illinois hospital ED, a 43-year-old man under several physicians' care underwent a CT scan that indicated a possible tear in the aorta. The emergency physician ordered a second CT with contrast, but it was never performed. The emergency physician assumed the test was being done; the patient's cardiologist assumed that the emergency physician was having the test performed; his internist assumed the cardiologist was having the test performed.
Seven hours passed before the patient's aortic tear was diagnosed and he was prepared for surgery. While being transported to the operating room, he experienced cardiac arrest and died.
The decedent had no history of heart problems. Apart from smoking, he had had a healthy lifestyle.
The plaintiff claimed that the defendants failed to diagnose the decedent's condition in a timely fashion.
The defendant hospital admitted negligence but denied that its negligence was causally related to the man's death.
Outcome
According to a published account, the jury awarded $4.5 million, but the recovery was expected to be $3.35 million because of high/low agreements with five of the eight defendants: $2 million to be paid by the hospital, $500,000 to be paid by the emergency physician and his practice group, and $850,000 to be paid by the internist and his practice group.
Comment
This is a tragic case of poor communication. Everyone knew that a CT with contrast had to be performed, and it appears that one was in fact ordered. The emergency physician thought the procedure had been carried out, but it was not done. The other physicians, the cardiologist and the internal medicine specialist, believed that another physician had ordered the test. Seven hours seems like a long time to have passed before anyone realized the procedure was not done, but by then it was clearly too late.
EDs are busy and sometimes confusing places. It is just these circumstances that call for very clear processes to carry out orders, then report findings to the appropriate personnel. The potential chasm between order and report is often a source of medical malpractice, even in medical offices—but the outcome is not usually so dramatic as in this case.
Certainly the argument can be made that the outcome would have been the same. A tear in the aorta may lead to death even in the hands of the best surgeon and even when the patient is otherwise in the best of health. But when a jury sees such a clear case of communication failure as appears here, the outcome is predictable. They will assume that whatever chance this man had was wasted while he waited. —JP
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
At an Illinois hospital ED, a 43-year-old man under several physicians' care underwent a CT scan that indicated a possible tear in the aorta. The emergency physician ordered a second CT with contrast, but it was never performed. The emergency physician assumed the test was being done; the patient's cardiologist assumed that the emergency physician was having the test performed; his internist assumed the cardiologist was having the test performed.
Seven hours passed before the patient's aortic tear was diagnosed and he was prepared for surgery. While being transported to the operating room, he experienced cardiac arrest and died.
The decedent had no history of heart problems. Apart from smoking, he had had a healthy lifestyle.
The plaintiff claimed that the defendants failed to diagnose the decedent's condition in a timely fashion.
The defendant hospital admitted negligence but denied that its negligence was causally related to the man's death.
Outcome
According to a published account, the jury awarded $4.5 million, but the recovery was expected to be $3.35 million because of high/low agreements with five of the eight defendants: $2 million to be paid by the hospital, $500,000 to be paid by the emergency physician and his practice group, and $850,000 to be paid by the internist and his practice group.
Comment
This is a tragic case of poor communication. Everyone knew that a CT with contrast had to be performed, and it appears that one was in fact ordered. The emergency physician thought the procedure had been carried out, but it was not done. The other physicians, the cardiologist and the internal medicine specialist, believed that another physician had ordered the test. Seven hours seems like a long time to have passed before anyone realized the procedure was not done, but by then it was clearly too late.
EDs are busy and sometimes confusing places. It is just these circumstances that call for very clear processes to carry out orders, then report findings to the appropriate personnel. The potential chasm between order and report is often a source of medical malpractice, even in medical offices—but the outcome is not usually so dramatic as in this case.
Certainly the argument can be made that the outcome would have been the same. A tear in the aorta may lead to death even in the hands of the best surgeon and even when the patient is otherwise in the best of health. But when a jury sees such a clear case of communication failure as appears here, the outcome is predictable. They will assume that whatever chance this man had was wasted while he waited. —JP
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
At an Illinois hospital ED, a 43-year-old man under several physicians' care underwent a CT scan that indicated a possible tear in the aorta. The emergency physician ordered a second CT with contrast, but it was never performed. The emergency physician assumed the test was being done; the patient's cardiologist assumed that the emergency physician was having the test performed; his internist assumed the cardiologist was having the test performed.
Seven hours passed before the patient's aortic tear was diagnosed and he was prepared for surgery. While being transported to the operating room, he experienced cardiac arrest and died.
The decedent had no history of heart problems. Apart from smoking, he had had a healthy lifestyle.
The plaintiff claimed that the defendants failed to diagnose the decedent's condition in a timely fashion.
The defendant hospital admitted negligence but denied that its negligence was causally related to the man's death.
Outcome
According to a published account, the jury awarded $4.5 million, but the recovery was expected to be $3.35 million because of high/low agreements with five of the eight defendants: $2 million to be paid by the hospital, $500,000 to be paid by the emergency physician and his practice group, and $850,000 to be paid by the internist and his practice group.
Comment
This is a tragic case of poor communication. Everyone knew that a CT with contrast had to be performed, and it appears that one was in fact ordered. The emergency physician thought the procedure had been carried out, but it was not done. The other physicians, the cardiologist and the internal medicine specialist, believed that another physician had ordered the test. Seven hours seems like a long time to have passed before anyone realized the procedure was not done, but by then it was clearly too late.
EDs are busy and sometimes confusing places. It is just these circumstances that call for very clear processes to carry out orders, then report findings to the appropriate personnel. The potential chasm between order and report is often a source of medical malpractice, even in medical offices—but the outcome is not usually so dramatic as in this case.
Certainly the argument can be made that the outcome would have been the same. A tear in the aorta may lead to death even in the hands of the best surgeon and even when the patient is otherwise in the best of health. But when a jury sees such a clear case of communication failure as appears here, the outcome is predictable. They will assume that whatever chance this man had was wasted while he waited. —JP
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Brain Aneurysm Missed at ED Visit
A woman presented to a Vermont hospital emergency department (ED) complaining of sudden-onset neck pain. She was evaluated by an emergency physician, who made a diagnosis of a twisted neck and prescribed pain medication. The patient's symptoms worsened, and she returned to the ED three days later. This time, a diagnosis of brain aneurysm was made.
The aneurysm ruptured during an attempted surgical repair, leaving the patient with a serious, permanent neurologic injury.
The plaintiff claimed that testing should have been performed at the initial ED visit that would have resulted in identification of the aneurysm.
The defendant hospital maintained that the plaintiff received the same care that would have been provided if the correct diagnosis had been made earlier. The defense claimed that the plaintiff would have been at the same risk for aneurysm rupture if reparative surgery had been performed at the time of her initial visit to the ED.
Outcome
The matter was first tried as to liability. The jury found negligence, but not proximate cause, resulting in a defense verdict.
Comment
In this case, the jury found negligence, but not proximate cause. In the legal system, litigation is divided into criminal and civil cases. A tort is a civil wrong giving rise to a compensable event. The tort of negligence is a legal theory of recovery of damages, provided the plaintiff is able to plead and prove the necessary elements. Most clinicians have some understanding of the elements of a negligence claim:
(1) Duty
(2) Breach of duty
(3) Harm
(4) Causation (ie, the conclusion that the harm was caused by the breach of duty).
Duty. First, there must be a legal duty to act. In a typical clinician-patient relationship, such a duty exists. Yet, should a dermatologist's next-door neighbor have an obviously cancerous facial melanoma, the neighbor could not prevail on a malpractice claim that the dermatologist breached the standard of care by not noticing the mole at a neighborhood Christmas party and acting. In contrast, if that neighbor asked for the dermatologist's opinion and the dermatologist rendered one, a clinician-patient relationship is created, and a legal duty attaches.
Breach. Breach of duty, a breach of the standard of care, is an element of the tort of negligence often referred to as "negligence" itself. Clinicians are most familiar with this element, because the standard of care comprises the body of knowledge that we implement when practicing. A clinician will be held to the standard of care for his or her discipline. Therefore, a chiropractor will be held to the standard of care as a reasonably prudent chiropractor, a naturopath will be held to the standard of care for a reasonably prudent naturopath, and so on. A family health care provider will not be held to the same standard of care as a specialist.
Harm. Harm is also required. The patient must have experienced some negative consequence resulting from the interaction. Should the clinician make an error, but the patient fortuitously escape harm, there can be no recovery; the plaintiff cannot recover for a "near miss."
Causation. Assuming all the elements are present, the last and often most thorny issue is that of legal causation. There are two types: cause-in-fact and proximate causation. The test for cause in fact is "but for a given act," harm would not have occurred.
For example, Patient A with an allergy to lidocaine is hit with a piñata stick at a party carelessly swung by Person B. Patient A, in need of sutures, presents to the ED (it was quite a stick). Clinician C does not ask about allergies and fails to discover the patient's allergy to lidocaine. Clinician C administers lidocaine; Patient A suffers a profound allergic reaction and succumbs. Who is responsible?
Person B and Clinician C both satisfy the "but for" test. "But for" Person B's carelessly swung piñata stick, the patient would not have been harmed; "but for" the administration of lidocaine, the patient would not have been harmed.
However, Clinician C's action is closer in the chain of events to the harm suffered and, legally, would be the proximate cause of the harm to Patient A. Why? The issue turns on the foreseeability of the harm that would flow from the breach. It was foreseeable that Clinician C's failure to take an allergy history could cause death from an allergic reaction. It was not foreseeable that Person B's errantly swung stick could cause death from an allergic reaction (even though it was foreseeable that Person B's action could cause the wound).
In the case presented, the jury determined that the emergency physician owed the patient a legal duty and breached the standard of care (presumably by failing to order imaging studies) and that the patient suffered harm. However, the jury decided that the mistake was not causally connected to the patient's harm, and was convinced that the patient would have faced the same risk of perioperative bleeding even if the aneurysm had been detected at the first encounter. —DML
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
A woman presented to a Vermont hospital emergency department (ED) complaining of sudden-onset neck pain. She was evaluated by an emergency physician, who made a diagnosis of a twisted neck and prescribed pain medication. The patient's symptoms worsened, and she returned to the ED three days later. This time, a diagnosis of brain aneurysm was made.
The aneurysm ruptured during an attempted surgical repair, leaving the patient with a serious, permanent neurologic injury.
The plaintiff claimed that testing should have been performed at the initial ED visit that would have resulted in identification of the aneurysm.
The defendant hospital maintained that the plaintiff received the same care that would have been provided if the correct diagnosis had been made earlier. The defense claimed that the plaintiff would have been at the same risk for aneurysm rupture if reparative surgery had been performed at the time of her initial visit to the ED.
Outcome
The matter was first tried as to liability. The jury found negligence, but not proximate cause, resulting in a defense verdict.
Comment
In this case, the jury found negligence, but not proximate cause. In the legal system, litigation is divided into criminal and civil cases. A tort is a civil wrong giving rise to a compensable event. The tort of negligence is a legal theory of recovery of damages, provided the plaintiff is able to plead and prove the necessary elements. Most clinicians have some understanding of the elements of a negligence claim:
(1) Duty
(2) Breach of duty
(3) Harm
(4) Causation (ie, the conclusion that the harm was caused by the breach of duty).
Duty. First, there must be a legal duty to act. In a typical clinician-patient relationship, such a duty exists. Yet, should a dermatologist's next-door neighbor have an obviously cancerous facial melanoma, the neighbor could not prevail on a malpractice claim that the dermatologist breached the standard of care by not noticing the mole at a neighborhood Christmas party and acting. In contrast, if that neighbor asked for the dermatologist's opinion and the dermatologist rendered one, a clinician-patient relationship is created, and a legal duty attaches.
Breach. Breach of duty, a breach of the standard of care, is an element of the tort of negligence often referred to as "negligence" itself. Clinicians are most familiar with this element, because the standard of care comprises the body of knowledge that we implement when practicing. A clinician will be held to the standard of care for his or her discipline. Therefore, a chiropractor will be held to the standard of care as a reasonably prudent chiropractor, a naturopath will be held to the standard of care for a reasonably prudent naturopath, and so on. A family health care provider will not be held to the same standard of care as a specialist.
Harm. Harm is also required. The patient must have experienced some negative consequence resulting from the interaction. Should the clinician make an error, but the patient fortuitously escape harm, there can be no recovery; the plaintiff cannot recover for a "near miss."
Causation. Assuming all the elements are present, the last and often most thorny issue is that of legal causation. There are two types: cause-in-fact and proximate causation. The test for cause in fact is "but for a given act," harm would not have occurred.
For example, Patient A with an allergy to lidocaine is hit with a piñata stick at a party carelessly swung by Person B. Patient A, in need of sutures, presents to the ED (it was quite a stick). Clinician C does not ask about allergies and fails to discover the patient's allergy to lidocaine. Clinician C administers lidocaine; Patient A suffers a profound allergic reaction and succumbs. Who is responsible?
Person B and Clinician C both satisfy the "but for" test. "But for" Person B's carelessly swung piñata stick, the patient would not have been harmed; "but for" the administration of lidocaine, the patient would not have been harmed.
However, Clinician C's action is closer in the chain of events to the harm suffered and, legally, would be the proximate cause of the harm to Patient A. Why? The issue turns on the foreseeability of the harm that would flow from the breach. It was foreseeable that Clinician C's failure to take an allergy history could cause death from an allergic reaction. It was not foreseeable that Person B's errantly swung stick could cause death from an allergic reaction (even though it was foreseeable that Person B's action could cause the wound).
In the case presented, the jury determined that the emergency physician owed the patient a legal duty and breached the standard of care (presumably by failing to order imaging studies) and that the patient suffered harm. However, the jury decided that the mistake was not causally connected to the patient's harm, and was convinced that the patient would have faced the same risk of perioperative bleeding even if the aneurysm had been detected at the first encounter. —DML
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
A woman presented to a Vermont hospital emergency department (ED) complaining of sudden-onset neck pain. She was evaluated by an emergency physician, who made a diagnosis of a twisted neck and prescribed pain medication. The patient's symptoms worsened, and she returned to the ED three days later. This time, a diagnosis of brain aneurysm was made.
The aneurysm ruptured during an attempted surgical repair, leaving the patient with a serious, permanent neurologic injury.
The plaintiff claimed that testing should have been performed at the initial ED visit that would have resulted in identification of the aneurysm.
The defendant hospital maintained that the plaintiff received the same care that would have been provided if the correct diagnosis had been made earlier. The defense claimed that the plaintiff would have been at the same risk for aneurysm rupture if reparative surgery had been performed at the time of her initial visit to the ED.
Outcome
The matter was first tried as to liability. The jury found negligence, but not proximate cause, resulting in a defense verdict.
Comment
In this case, the jury found negligence, but not proximate cause. In the legal system, litigation is divided into criminal and civil cases. A tort is a civil wrong giving rise to a compensable event. The tort of negligence is a legal theory of recovery of damages, provided the plaintiff is able to plead and prove the necessary elements. Most clinicians have some understanding of the elements of a negligence claim:
(1) Duty
(2) Breach of duty
(3) Harm
(4) Causation (ie, the conclusion that the harm was caused by the breach of duty).
Duty. First, there must be a legal duty to act. In a typical clinician-patient relationship, such a duty exists. Yet, should a dermatologist's next-door neighbor have an obviously cancerous facial melanoma, the neighbor could not prevail on a malpractice claim that the dermatologist breached the standard of care by not noticing the mole at a neighborhood Christmas party and acting. In contrast, if that neighbor asked for the dermatologist's opinion and the dermatologist rendered one, a clinician-patient relationship is created, and a legal duty attaches.
Breach. Breach of duty, a breach of the standard of care, is an element of the tort of negligence often referred to as "negligence" itself. Clinicians are most familiar with this element, because the standard of care comprises the body of knowledge that we implement when practicing. A clinician will be held to the standard of care for his or her discipline. Therefore, a chiropractor will be held to the standard of care as a reasonably prudent chiropractor, a naturopath will be held to the standard of care for a reasonably prudent naturopath, and so on. A family health care provider will not be held to the same standard of care as a specialist.
Harm. Harm is also required. The patient must have experienced some negative consequence resulting from the interaction. Should the clinician make an error, but the patient fortuitously escape harm, there can be no recovery; the plaintiff cannot recover for a "near miss."
Causation. Assuming all the elements are present, the last and often most thorny issue is that of legal causation. There are two types: cause-in-fact and proximate causation. The test for cause in fact is "but for a given act," harm would not have occurred.
For example, Patient A with an allergy to lidocaine is hit with a piñata stick at a party carelessly swung by Person B. Patient A, in need of sutures, presents to the ED (it was quite a stick). Clinician C does not ask about allergies and fails to discover the patient's allergy to lidocaine. Clinician C administers lidocaine; Patient A suffers a profound allergic reaction and succumbs. Who is responsible?
Person B and Clinician C both satisfy the "but for" test. "But for" Person B's carelessly swung piñata stick, the patient would not have been harmed; "but for" the administration of lidocaine, the patient would not have been harmed.
However, Clinician C's action is closer in the chain of events to the harm suffered and, legally, would be the proximate cause of the harm to Patient A. Why? The issue turns on the foreseeability of the harm that would flow from the breach. It was foreseeable that Clinician C's failure to take an allergy history could cause death from an allergic reaction. It was not foreseeable that Person B's errantly swung stick could cause death from an allergic reaction (even though it was foreseeable that Person B's action could cause the wound).
In the case presented, the jury determined that the emergency physician owed the patient a legal duty and breached the standard of care (presumably by failing to order imaging studies) and that the patient suffered harm. However, the jury decided that the mistake was not causally connected to the patient's harm, and was convinced that the patient would have faced the same risk of perioperative bleeding even if the aneurysm had been detected at the first encounter. —DML
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Postpartum high blood pressure missed, mother suffers brain damage … and more
HOSPITALIZED TWICE FOR HYPERTENSION in the month before her child was born, a 41-year-old woman gave birth to a healthy baby by cesarean delivery. The mother was discharged 2 days later with a blood pressure (BP) of 130/90 mm Hg.
Three days later, she went to her ObGyn’s office because she was not feeling well and had extreme swelling. Her BP, taken twice by a nurse, read 170/88 mm Hg, and 168/90 mm Hg, but she was not examined by the ObGyn.
That evening, the patient had difficulty breathing and was taken to the emergency department (ED), where she was intubated. She went into cardiac arrest and suffered permanent brain damage after being without a pulse for 15 minutes. She was in a coma for 45 days. She is unable to walk without assistance, is legally blind, and her hands are so contorted that she cannot feed herself. She suffers from short-term memory loss and has difficulty speaking.
PATIENT’S CLAIM The ObGyn should have examined her when she was at the office. Her hypertension would have been properly treated and injuries avoided. She had classic signs of postpartum cardiomyopathy.
PHYSICIAN’S DEFENSE The patient had not come to the office because she was feeling ill, but to show off her baby and have her BP checked. If he had been advised of the BP readings, he would have examined her.
VERDICT A $5 million Georgia verdict was returned.
Cervical biopsy results improperly reported
A 44-YEAR-OLD WOMAN UNDERWENT a cervical biopsy in July 2007 performed by a pathologist. A few days later, the pathologist contacted the patient and reported that the biopsy revealed invasive cervical cancer that required immediate surgery. Several procedures were performed without any cancer ever being found.
A second opinion was sought, and it was determined that the cancer diagnosis was incorrect; another patient’s pathology had been reported as the patient’s.
PATIENT’S CLAIM The pathologist and hospital were negligent in reporting incorrect results of the cervical biopsy, which resulted in the patient’s physical and emotional injuries, including unnecessary surgical procedures and depression and anxiety.
DEFENDANTS’ DEFENSE The defendants did not oppose the patient’s motion for summary judgment on liability; the issue of damages was contested.
VERDICT The patient received summary judgment on liability. She then discontinued claims against the pathologist, and the matter proceeded on damages against the hospital. A $46,000 New York verdict was returned. Stipulated medical expenses were added to the verdict for a total recovery of $60,979.
Brachial plexus injury: child has significant functional disability
AT 38 6/7 WEEKS’ GESTATION, a 23-year-old woman went to the ED with contractions. She had pregestational diabetes mellitus. Her admitting glucose level was 143 mg/dL, and she had gained 25 lb during pregnancy. Her fundal height was 40 cm, and estimated fetal weight was 4000 g (8 lb 13 oz). A pelvic examination determined that she was 3 to 4 cm dilated, 100% effaced, and at minus-1 station. She was given oxytocin to aid labor. The ObGyn noted that overall fetal heart-rate tracings were reassuring, and that a pediatrician would be present for delivery due to suspected macrosomia. Shoulder dystocia occurred during delivery, but it was resolved in 40 seconds. The mother sustained a second-degree perineal laceration.
At birth, the baby’s left arm was limp. Apgar scores were 5 and 9 at 1 and 5 minutes, respectively. Her birth weight was 10 lb 2 oz. A brachial plexus injury was diagnosed, and she underwent surgery in October 2008. Despite successful nerve grafts at C5 and C6, the child has significant functional disability in the left arm.
PARENTS’ CLAIM A cesarean delivery should have been scheduled when a macrosomic fetus was suspected.
PHYSICIAN’S DEFENSE The case was settled during trial.
VERDICT A $1,475,000 Maryland settlement was reached.
DURING A MOTHER’S 38-WEEK PRENATAL VISIT, ultrasonography showed the baby was in breech position. The midwife offered two options: to schedule an external cephalic version procedure at 38 weeks or a cesarean delivery at 39 weeks. The parents agreed to schedule a cesarean delivery for 8 days later. The day before the scheduled birth, the mother awoke to find the umbilical cord between her legs. An emergency cesarean delivery was performed. The newborn required resuscitation and mechanical ventilation and suffered permanent brain damage attributed to hypoxia from umbilical cord prolapse.
PARENTS’ CLAIM The midwife’s negligence caused the baby’s injuries. Breech presentation put the pregnancy at high-risk. She did not have a physician examine the patient before scheduling a cesarean delivery and did not attempt to rotate the child back to a head-first position. She did not warn the parents about the risks of breech presentation and umbilical cord prolapse.
DEFENDANTS’ DEFENSE The choices given the parents were reasonable. Scheduling a cesarean delivery at 39 weeks was proper. A prolapsed cord is not predictable or preventable.
VERDICT A $12.6 million Pennsylvania verdict was returned against the midwife and the hospital; a confidential high/low agreement was reached.
Extensive adhesions result in bowel injury
A 58-YEAR-OLD WOMAN UNDERWENT exploratory laparotomy in May 2009. There were extensive adhesions, and the gynecologist used blind, blunt dissection to resect a large pelvic mass adhered to the sidewall. He had difficulty removing the specimen because it was too large to fit through the incision. A left salpingo-oophorectomy was also performed.
On the second postoperative day, the patient reported shortness of breath, intermittent chest pain, and had a fever of 103° F. The next day, she was unable to ambulate due to shortness of breath. CT results ruled out deep vein thrombosis or pulmonary embolism but revealed significantly decreased lung volume. She continued to experience shortness of breath and temperature spikes for 3 more days. She was discharged on the seventh postoperative day despite shortness of breath.
Two days later, she experienced severe abdominal pain and shortness of breath at home and returned to the ED by ambulance. A CT scan revealed free pelvic air, ascites, and extensive inflammatory changes, likely due to bowel perforation. She was intubated and airlifted to a regional trauma center. During exploratory surgery, the surgeon aspirated a foul-smelling fluid and identified a perforation at the rectosigmoid junction; a colostomy was created. The patient stayed in intensive care for 5 days, developed renal failure, and was transfused due to acute blood loss. She was hospitalized for 19 days. The colostomy was reversed in October 2009.
PATIENT’S CLAIM The ObGyn was negligent in injuring the bowel during surgery and in not recognizing the bowel injury and treating it in a timely manner.
PHYSICIAN’S DEFENSE The case was settled during the trial.
VERDICT A $600,000 Virginia settlement was reached.
Pregnant woman stabbed: mother and baby die
A 20-YEAR-OLD WOMAN AT 30 WEEKS’ gestation was treated in the ED for a stab wound to the shoulder. The emergency medicine (EM) physician noted internal bleeding and a possible collapsed lung on radiographs, and began efforts to have the woman transferred. One facility declined because of her pregnancy. The patient was in pain and her ability to breathe declined. An airlift was finally arranged, but she suffered cardiac arrest as the helicopter arrived. A cesarean delivery was performed, but both the mother and baby died.
ESTATE’S CLAIM The EM physician was negligent in failing to perform a thoracotomy and arrange for a more timely transfer. The physician didn’t contact a hospital that was only 8 miles away.
DEFENDANTS’ DEFENSE The federal government, which operated the facility, admitted fault.
VERDICT A $7,267,390 Mississippi verdict included $5.45 million in noneconomic damages.
What caused child’s brain damage?
DURING LABOR AND DELIVERY, electronic fetal heart-rate monitoring indicated fetal distress. Meconium-stained fluid was present. The child was born with brain damage. It is unlikely that he will walk independently, talk in full sentences, or be able to perform daily activities independently.
PARENTS’ CLAIM The fetal heart-rate monitor indicated a need for emergency cesarean delivery. The quality and quantity of meconium should have alerted the caregivers to fetal distress and caused them to perform a cesarean delivery.
DEFENDANTS’ DEFENSE Fetal heart-rate strips did not indicate a need for emergency delivery until shortly before the delivery occurred. The underlying cause of the child’s injuries was an infection that spread to the brain and was irreversible.
VERDICT A $1.71 million Massachusetts verdict was returned.
When did bladder injury occur?
AN 84-YEAR-OLD WOMAN suffered recurrent bladder cancer. She underwent a cystoscopy, and then chemotherapy. Several weeks later, she was diagnosed with a bladder perforation became septic, and died.
ESTATE’S CLAIM The bladder was lacerated during cystoscopy; she would have survived if the laceration had been treated in a timely manner.
PHYSICIAN’S DEFENSE Bladder perforation during cystoscopy is a known risk of the procedure. However, the bladder was not perforated during cystoscopy; chemotherapy may have caused the perforation.
VERDICT A Michigan defense verdict was returned.
Fetal tracings poor: Why wasn’t an internal lead used?
AT 32 WEEKS’ GESTATION, a woman’s membranes ruptured, and she was admitted. Her ObGyn planned to induce labor at 34 weeks’ gestation. She experienced contractions on the morning of the scheduled induction. Although fetal heart-rate monitoring was reassuring, the fetus was in a compound position, with the chin leading. Labor progressed rapidly to 6-cm dilation. The fetal heart rate began to show recurrent mild variable decelerations that became increasingly deeper. Although the technical quality of the external monitoring was poor, no internal lead was applied.
After 3 hours, the tracing showed severe variable decelerations. The mother was fully dilated and began to push. The tracings were of poor quality, but interpretable portions showed minimal variability and significant decelerations during contractions. The fetal baseline heart rate became tachycardic. The obstetric nurse and resident continued to note abnormalities, but there is no evidence that they called the attending ObGyn. The fetal baseline heart rate reached 190 bpm with ongoing decelerations associated with contractions. Variability remained minimal to absent. After 2 hours of pushing, meconium-stained fluid was noted. The infant was born 1 hour later. The attending ObGyn was present for the last 30 minutes of labor.
The newborn’s Apgar scores were 1, 5, and 7, at 1, 5, and 10 minutes, respectively. His arterial cord pH was significantly low. MRI of the head showed subdural and intraventricular hemorrhage and evolving, profound hypoxic ischemic injury. At 1 year of age, the child suffers from a seizure disorder, cortical blindness, and severe developmental delays.
PARENTS’ CLAIM The nurse and resident failed to respond to fetal heart-rate abnormalities and failed to insert an internal lead to obtain better quality heart-rate tracings. They did not expedite delivery when fetal distress was evident.
DEFENDANTS’ DEFENSE The case was settled during trial.
VERDICT A $4.2 million Massachusetts settlement was reached.
Hypoxic ischemic encephalopathy
DUE TO PREECLAMPSIA, a woman was admitted to the hospital 5 weeks before her due date. Her condition was monitored for 2 weeks when it was decided to induce labor with oxytocin. After 3 hours in labor, the fetal heart-rate tracing began to show significant decelerations. The baby was born at 37 weeks’ gestation with severe hypoxic ischemic encephalopathy. The child died 2 years later from severe brain damage.
PARENTS’ CLAIM The ObGyns failed to respond to signs of fetal distress by performing an emergency cesarean. The brain images would have been different if a stroke-like event had occurred.
DEFENDANTS’ DEFENSE The fetus experienced an embolic process due to a compressed umbilical cord, resulting in a stroke-like vascular event, which led to the hypoxic ischemic encephalopathy.
VERDICT A $450,000 Wisconsin settlement was reached.
These cases were selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska (www.verdictslaska.com). The information available to the editors about the cases presented here is sometimes incomplete. Moreover, the cases may or may not have merit. Nevertheless, these cases represent the types of clinical situations that typically result in litigation and are meant to illustrate nationwide variation in jury verdicts and awards.
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HOSPITALIZED TWICE FOR HYPERTENSION in the month before her child was born, a 41-year-old woman gave birth to a healthy baby by cesarean delivery. The mother was discharged 2 days later with a blood pressure (BP) of 130/90 mm Hg.
Three days later, she went to her ObGyn’s office because she was not feeling well and had extreme swelling. Her BP, taken twice by a nurse, read 170/88 mm Hg, and 168/90 mm Hg, but she was not examined by the ObGyn.
That evening, the patient had difficulty breathing and was taken to the emergency department (ED), where she was intubated. She went into cardiac arrest and suffered permanent brain damage after being without a pulse for 15 minutes. She was in a coma for 45 days. She is unable to walk without assistance, is legally blind, and her hands are so contorted that she cannot feed herself. She suffers from short-term memory loss and has difficulty speaking.
PATIENT’S CLAIM The ObGyn should have examined her when she was at the office. Her hypertension would have been properly treated and injuries avoided. She had classic signs of postpartum cardiomyopathy.
PHYSICIAN’S DEFENSE The patient had not come to the office because she was feeling ill, but to show off her baby and have her BP checked. If he had been advised of the BP readings, he would have examined her.
VERDICT A $5 million Georgia verdict was returned.
Cervical biopsy results improperly reported
A 44-YEAR-OLD WOMAN UNDERWENT a cervical biopsy in July 2007 performed by a pathologist. A few days later, the pathologist contacted the patient and reported that the biopsy revealed invasive cervical cancer that required immediate surgery. Several procedures were performed without any cancer ever being found.
A second opinion was sought, and it was determined that the cancer diagnosis was incorrect; another patient’s pathology had been reported as the patient’s.
PATIENT’S CLAIM The pathologist and hospital were negligent in reporting incorrect results of the cervical biopsy, which resulted in the patient’s physical and emotional injuries, including unnecessary surgical procedures and depression and anxiety.
DEFENDANTS’ DEFENSE The defendants did not oppose the patient’s motion for summary judgment on liability; the issue of damages was contested.
VERDICT The patient received summary judgment on liability. She then discontinued claims against the pathologist, and the matter proceeded on damages against the hospital. A $46,000 New York verdict was returned. Stipulated medical expenses were added to the verdict for a total recovery of $60,979.
Brachial plexus injury: child has significant functional disability
AT 38 6/7 WEEKS’ GESTATION, a 23-year-old woman went to the ED with contractions. She had pregestational diabetes mellitus. Her admitting glucose level was 143 mg/dL, and she had gained 25 lb during pregnancy. Her fundal height was 40 cm, and estimated fetal weight was 4000 g (8 lb 13 oz). A pelvic examination determined that she was 3 to 4 cm dilated, 100% effaced, and at minus-1 station. She was given oxytocin to aid labor. The ObGyn noted that overall fetal heart-rate tracings were reassuring, and that a pediatrician would be present for delivery due to suspected macrosomia. Shoulder dystocia occurred during delivery, but it was resolved in 40 seconds. The mother sustained a second-degree perineal laceration.
At birth, the baby’s left arm was limp. Apgar scores were 5 and 9 at 1 and 5 minutes, respectively. Her birth weight was 10 lb 2 oz. A brachial plexus injury was diagnosed, and she underwent surgery in October 2008. Despite successful nerve grafts at C5 and C6, the child has significant functional disability in the left arm.
PARENTS’ CLAIM A cesarean delivery should have been scheduled when a macrosomic fetus was suspected.
PHYSICIAN’S DEFENSE The case was settled during trial.
VERDICT A $1,475,000 Maryland settlement was reached.
DURING A MOTHER’S 38-WEEK PRENATAL VISIT, ultrasonography showed the baby was in breech position. The midwife offered two options: to schedule an external cephalic version procedure at 38 weeks or a cesarean delivery at 39 weeks. The parents agreed to schedule a cesarean delivery for 8 days later. The day before the scheduled birth, the mother awoke to find the umbilical cord between her legs. An emergency cesarean delivery was performed. The newborn required resuscitation and mechanical ventilation and suffered permanent brain damage attributed to hypoxia from umbilical cord prolapse.
PARENTS’ CLAIM The midwife’s negligence caused the baby’s injuries. Breech presentation put the pregnancy at high-risk. She did not have a physician examine the patient before scheduling a cesarean delivery and did not attempt to rotate the child back to a head-first position. She did not warn the parents about the risks of breech presentation and umbilical cord prolapse.
DEFENDANTS’ DEFENSE The choices given the parents were reasonable. Scheduling a cesarean delivery at 39 weeks was proper. A prolapsed cord is not predictable or preventable.
VERDICT A $12.6 million Pennsylvania verdict was returned against the midwife and the hospital; a confidential high/low agreement was reached.
Extensive adhesions result in bowel injury
A 58-YEAR-OLD WOMAN UNDERWENT exploratory laparotomy in May 2009. There were extensive adhesions, and the gynecologist used blind, blunt dissection to resect a large pelvic mass adhered to the sidewall. He had difficulty removing the specimen because it was too large to fit through the incision. A left salpingo-oophorectomy was also performed.
On the second postoperative day, the patient reported shortness of breath, intermittent chest pain, and had a fever of 103° F. The next day, she was unable to ambulate due to shortness of breath. CT results ruled out deep vein thrombosis or pulmonary embolism but revealed significantly decreased lung volume. She continued to experience shortness of breath and temperature spikes for 3 more days. She was discharged on the seventh postoperative day despite shortness of breath.
Two days later, she experienced severe abdominal pain and shortness of breath at home and returned to the ED by ambulance. A CT scan revealed free pelvic air, ascites, and extensive inflammatory changes, likely due to bowel perforation. She was intubated and airlifted to a regional trauma center. During exploratory surgery, the surgeon aspirated a foul-smelling fluid and identified a perforation at the rectosigmoid junction; a colostomy was created. The patient stayed in intensive care for 5 days, developed renal failure, and was transfused due to acute blood loss. She was hospitalized for 19 days. The colostomy was reversed in October 2009.
PATIENT’S CLAIM The ObGyn was negligent in injuring the bowel during surgery and in not recognizing the bowel injury and treating it in a timely manner.
PHYSICIAN’S DEFENSE The case was settled during the trial.
VERDICT A $600,000 Virginia settlement was reached.
Pregnant woman stabbed: mother and baby die
A 20-YEAR-OLD WOMAN AT 30 WEEKS’ gestation was treated in the ED for a stab wound to the shoulder. The emergency medicine (EM) physician noted internal bleeding and a possible collapsed lung on radiographs, and began efforts to have the woman transferred. One facility declined because of her pregnancy. The patient was in pain and her ability to breathe declined. An airlift was finally arranged, but she suffered cardiac arrest as the helicopter arrived. A cesarean delivery was performed, but both the mother and baby died.
ESTATE’S CLAIM The EM physician was negligent in failing to perform a thoracotomy and arrange for a more timely transfer. The physician didn’t contact a hospital that was only 8 miles away.
DEFENDANTS’ DEFENSE The federal government, which operated the facility, admitted fault.
VERDICT A $7,267,390 Mississippi verdict included $5.45 million in noneconomic damages.
What caused child’s brain damage?
DURING LABOR AND DELIVERY, electronic fetal heart-rate monitoring indicated fetal distress. Meconium-stained fluid was present. The child was born with brain damage. It is unlikely that he will walk independently, talk in full sentences, or be able to perform daily activities independently.
PARENTS’ CLAIM The fetal heart-rate monitor indicated a need for emergency cesarean delivery. The quality and quantity of meconium should have alerted the caregivers to fetal distress and caused them to perform a cesarean delivery.
DEFENDANTS’ DEFENSE Fetal heart-rate strips did not indicate a need for emergency delivery until shortly before the delivery occurred. The underlying cause of the child’s injuries was an infection that spread to the brain and was irreversible.
VERDICT A $1.71 million Massachusetts verdict was returned.
When did bladder injury occur?
AN 84-YEAR-OLD WOMAN suffered recurrent bladder cancer. She underwent a cystoscopy, and then chemotherapy. Several weeks later, she was diagnosed with a bladder perforation became septic, and died.
ESTATE’S CLAIM The bladder was lacerated during cystoscopy; she would have survived if the laceration had been treated in a timely manner.
PHYSICIAN’S DEFENSE Bladder perforation during cystoscopy is a known risk of the procedure. However, the bladder was not perforated during cystoscopy; chemotherapy may have caused the perforation.
VERDICT A Michigan defense verdict was returned.
Fetal tracings poor: Why wasn’t an internal lead used?
AT 32 WEEKS’ GESTATION, a woman’s membranes ruptured, and she was admitted. Her ObGyn planned to induce labor at 34 weeks’ gestation. She experienced contractions on the morning of the scheduled induction. Although fetal heart-rate monitoring was reassuring, the fetus was in a compound position, with the chin leading. Labor progressed rapidly to 6-cm dilation. The fetal heart rate began to show recurrent mild variable decelerations that became increasingly deeper. Although the technical quality of the external monitoring was poor, no internal lead was applied.
After 3 hours, the tracing showed severe variable decelerations. The mother was fully dilated and began to push. The tracings were of poor quality, but interpretable portions showed minimal variability and significant decelerations during contractions. The fetal baseline heart rate became tachycardic. The obstetric nurse and resident continued to note abnormalities, but there is no evidence that they called the attending ObGyn. The fetal baseline heart rate reached 190 bpm with ongoing decelerations associated with contractions. Variability remained minimal to absent. After 2 hours of pushing, meconium-stained fluid was noted. The infant was born 1 hour later. The attending ObGyn was present for the last 30 minutes of labor.
The newborn’s Apgar scores were 1, 5, and 7, at 1, 5, and 10 minutes, respectively. His arterial cord pH was significantly low. MRI of the head showed subdural and intraventricular hemorrhage and evolving, profound hypoxic ischemic injury. At 1 year of age, the child suffers from a seizure disorder, cortical blindness, and severe developmental delays.
PARENTS’ CLAIM The nurse and resident failed to respond to fetal heart-rate abnormalities and failed to insert an internal lead to obtain better quality heart-rate tracings. They did not expedite delivery when fetal distress was evident.
DEFENDANTS’ DEFENSE The case was settled during trial.
VERDICT A $4.2 million Massachusetts settlement was reached.
Hypoxic ischemic encephalopathy
DUE TO PREECLAMPSIA, a woman was admitted to the hospital 5 weeks before her due date. Her condition was monitored for 2 weeks when it was decided to induce labor with oxytocin. After 3 hours in labor, the fetal heart-rate tracing began to show significant decelerations. The baby was born at 37 weeks’ gestation with severe hypoxic ischemic encephalopathy. The child died 2 years later from severe brain damage.
PARENTS’ CLAIM The ObGyns failed to respond to signs of fetal distress by performing an emergency cesarean. The brain images would have been different if a stroke-like event had occurred.
DEFENDANTS’ DEFENSE The fetus experienced an embolic process due to a compressed umbilical cord, resulting in a stroke-like vascular event, which led to the hypoxic ischemic encephalopathy.
VERDICT A $450,000 Wisconsin settlement was reached.
HOSPITALIZED TWICE FOR HYPERTENSION in the month before her child was born, a 41-year-old woman gave birth to a healthy baby by cesarean delivery. The mother was discharged 2 days later with a blood pressure (BP) of 130/90 mm Hg.
Three days later, she went to her ObGyn’s office because she was not feeling well and had extreme swelling. Her BP, taken twice by a nurse, read 170/88 mm Hg, and 168/90 mm Hg, but she was not examined by the ObGyn.
That evening, the patient had difficulty breathing and was taken to the emergency department (ED), where she was intubated. She went into cardiac arrest and suffered permanent brain damage after being without a pulse for 15 minutes. She was in a coma for 45 days. She is unable to walk without assistance, is legally blind, and her hands are so contorted that she cannot feed herself. She suffers from short-term memory loss and has difficulty speaking.
PATIENT’S CLAIM The ObGyn should have examined her when she was at the office. Her hypertension would have been properly treated and injuries avoided. She had classic signs of postpartum cardiomyopathy.
PHYSICIAN’S DEFENSE The patient had not come to the office because she was feeling ill, but to show off her baby and have her BP checked. If he had been advised of the BP readings, he would have examined her.
VERDICT A $5 million Georgia verdict was returned.
Cervical biopsy results improperly reported
A 44-YEAR-OLD WOMAN UNDERWENT a cervical biopsy in July 2007 performed by a pathologist. A few days later, the pathologist contacted the patient and reported that the biopsy revealed invasive cervical cancer that required immediate surgery. Several procedures were performed without any cancer ever being found.
A second opinion was sought, and it was determined that the cancer diagnosis was incorrect; another patient’s pathology had been reported as the patient’s.
PATIENT’S CLAIM The pathologist and hospital were negligent in reporting incorrect results of the cervical biopsy, which resulted in the patient’s physical and emotional injuries, including unnecessary surgical procedures and depression and anxiety.
DEFENDANTS’ DEFENSE The defendants did not oppose the patient’s motion for summary judgment on liability; the issue of damages was contested.
VERDICT The patient received summary judgment on liability. She then discontinued claims against the pathologist, and the matter proceeded on damages against the hospital. A $46,000 New York verdict was returned. Stipulated medical expenses were added to the verdict for a total recovery of $60,979.
Brachial plexus injury: child has significant functional disability
AT 38 6/7 WEEKS’ GESTATION, a 23-year-old woman went to the ED with contractions. She had pregestational diabetes mellitus. Her admitting glucose level was 143 mg/dL, and she had gained 25 lb during pregnancy. Her fundal height was 40 cm, and estimated fetal weight was 4000 g (8 lb 13 oz). A pelvic examination determined that she was 3 to 4 cm dilated, 100% effaced, and at minus-1 station. She was given oxytocin to aid labor. The ObGyn noted that overall fetal heart-rate tracings were reassuring, and that a pediatrician would be present for delivery due to suspected macrosomia. Shoulder dystocia occurred during delivery, but it was resolved in 40 seconds. The mother sustained a second-degree perineal laceration.
At birth, the baby’s left arm was limp. Apgar scores were 5 and 9 at 1 and 5 minutes, respectively. Her birth weight was 10 lb 2 oz. A brachial plexus injury was diagnosed, and she underwent surgery in October 2008. Despite successful nerve grafts at C5 and C6, the child has significant functional disability in the left arm.
PARENTS’ CLAIM A cesarean delivery should have been scheduled when a macrosomic fetus was suspected.
PHYSICIAN’S DEFENSE The case was settled during trial.
VERDICT A $1,475,000 Maryland settlement was reached.
DURING A MOTHER’S 38-WEEK PRENATAL VISIT, ultrasonography showed the baby was in breech position. The midwife offered two options: to schedule an external cephalic version procedure at 38 weeks or a cesarean delivery at 39 weeks. The parents agreed to schedule a cesarean delivery for 8 days later. The day before the scheduled birth, the mother awoke to find the umbilical cord between her legs. An emergency cesarean delivery was performed. The newborn required resuscitation and mechanical ventilation and suffered permanent brain damage attributed to hypoxia from umbilical cord prolapse.
PARENTS’ CLAIM The midwife’s negligence caused the baby’s injuries. Breech presentation put the pregnancy at high-risk. She did not have a physician examine the patient before scheduling a cesarean delivery and did not attempt to rotate the child back to a head-first position. She did not warn the parents about the risks of breech presentation and umbilical cord prolapse.
DEFENDANTS’ DEFENSE The choices given the parents were reasonable. Scheduling a cesarean delivery at 39 weeks was proper. A prolapsed cord is not predictable or preventable.
VERDICT A $12.6 million Pennsylvania verdict was returned against the midwife and the hospital; a confidential high/low agreement was reached.
Extensive adhesions result in bowel injury
A 58-YEAR-OLD WOMAN UNDERWENT exploratory laparotomy in May 2009. There were extensive adhesions, and the gynecologist used blind, blunt dissection to resect a large pelvic mass adhered to the sidewall. He had difficulty removing the specimen because it was too large to fit through the incision. A left salpingo-oophorectomy was also performed.
On the second postoperative day, the patient reported shortness of breath, intermittent chest pain, and had a fever of 103° F. The next day, she was unable to ambulate due to shortness of breath. CT results ruled out deep vein thrombosis or pulmonary embolism but revealed significantly decreased lung volume. She continued to experience shortness of breath and temperature spikes for 3 more days. She was discharged on the seventh postoperative day despite shortness of breath.
Two days later, she experienced severe abdominal pain and shortness of breath at home and returned to the ED by ambulance. A CT scan revealed free pelvic air, ascites, and extensive inflammatory changes, likely due to bowel perforation. She was intubated and airlifted to a regional trauma center. During exploratory surgery, the surgeon aspirated a foul-smelling fluid and identified a perforation at the rectosigmoid junction; a colostomy was created. The patient stayed in intensive care for 5 days, developed renal failure, and was transfused due to acute blood loss. She was hospitalized for 19 days. The colostomy was reversed in October 2009.
PATIENT’S CLAIM The ObGyn was negligent in injuring the bowel during surgery and in not recognizing the bowel injury and treating it in a timely manner.
PHYSICIAN’S DEFENSE The case was settled during the trial.
VERDICT A $600,000 Virginia settlement was reached.
Pregnant woman stabbed: mother and baby die
A 20-YEAR-OLD WOMAN AT 30 WEEKS’ gestation was treated in the ED for a stab wound to the shoulder. The emergency medicine (EM) physician noted internal bleeding and a possible collapsed lung on radiographs, and began efforts to have the woman transferred. One facility declined because of her pregnancy. The patient was in pain and her ability to breathe declined. An airlift was finally arranged, but she suffered cardiac arrest as the helicopter arrived. A cesarean delivery was performed, but both the mother and baby died.
ESTATE’S CLAIM The EM physician was negligent in failing to perform a thoracotomy and arrange for a more timely transfer. The physician didn’t contact a hospital that was only 8 miles away.
DEFENDANTS’ DEFENSE The federal government, which operated the facility, admitted fault.
VERDICT A $7,267,390 Mississippi verdict included $5.45 million in noneconomic damages.
What caused child’s brain damage?
DURING LABOR AND DELIVERY, electronic fetal heart-rate monitoring indicated fetal distress. Meconium-stained fluid was present. The child was born with brain damage. It is unlikely that he will walk independently, talk in full sentences, or be able to perform daily activities independently.
PARENTS’ CLAIM The fetal heart-rate monitor indicated a need for emergency cesarean delivery. The quality and quantity of meconium should have alerted the caregivers to fetal distress and caused them to perform a cesarean delivery.
DEFENDANTS’ DEFENSE Fetal heart-rate strips did not indicate a need for emergency delivery until shortly before the delivery occurred. The underlying cause of the child’s injuries was an infection that spread to the brain and was irreversible.
VERDICT A $1.71 million Massachusetts verdict was returned.
When did bladder injury occur?
AN 84-YEAR-OLD WOMAN suffered recurrent bladder cancer. She underwent a cystoscopy, and then chemotherapy. Several weeks later, she was diagnosed with a bladder perforation became septic, and died.
ESTATE’S CLAIM The bladder was lacerated during cystoscopy; she would have survived if the laceration had been treated in a timely manner.
PHYSICIAN’S DEFENSE Bladder perforation during cystoscopy is a known risk of the procedure. However, the bladder was not perforated during cystoscopy; chemotherapy may have caused the perforation.
VERDICT A Michigan defense verdict was returned.
Fetal tracings poor: Why wasn’t an internal lead used?
AT 32 WEEKS’ GESTATION, a woman’s membranes ruptured, and she was admitted. Her ObGyn planned to induce labor at 34 weeks’ gestation. She experienced contractions on the morning of the scheduled induction. Although fetal heart-rate monitoring was reassuring, the fetus was in a compound position, with the chin leading. Labor progressed rapidly to 6-cm dilation. The fetal heart rate began to show recurrent mild variable decelerations that became increasingly deeper. Although the technical quality of the external monitoring was poor, no internal lead was applied.
After 3 hours, the tracing showed severe variable decelerations. The mother was fully dilated and began to push. The tracings were of poor quality, but interpretable portions showed minimal variability and significant decelerations during contractions. The fetal baseline heart rate became tachycardic. The obstetric nurse and resident continued to note abnormalities, but there is no evidence that they called the attending ObGyn. The fetal baseline heart rate reached 190 bpm with ongoing decelerations associated with contractions. Variability remained minimal to absent. After 2 hours of pushing, meconium-stained fluid was noted. The infant was born 1 hour later. The attending ObGyn was present for the last 30 minutes of labor.
The newborn’s Apgar scores were 1, 5, and 7, at 1, 5, and 10 minutes, respectively. His arterial cord pH was significantly low. MRI of the head showed subdural and intraventricular hemorrhage and evolving, profound hypoxic ischemic injury. At 1 year of age, the child suffers from a seizure disorder, cortical blindness, and severe developmental delays.
PARENTS’ CLAIM The nurse and resident failed to respond to fetal heart-rate abnormalities and failed to insert an internal lead to obtain better quality heart-rate tracings. They did not expedite delivery when fetal distress was evident.
DEFENDANTS’ DEFENSE The case was settled during trial.
VERDICT A $4.2 million Massachusetts settlement was reached.
Hypoxic ischemic encephalopathy
DUE TO PREECLAMPSIA, a woman was admitted to the hospital 5 weeks before her due date. Her condition was monitored for 2 weeks when it was decided to induce labor with oxytocin. After 3 hours in labor, the fetal heart-rate tracing began to show significant decelerations. The baby was born at 37 weeks’ gestation with severe hypoxic ischemic encephalopathy. The child died 2 years later from severe brain damage.
PARENTS’ CLAIM The ObGyns failed to respond to signs of fetal distress by performing an emergency cesarean. The brain images would have been different if a stroke-like event had occurred.
DEFENDANTS’ DEFENSE The fetus experienced an embolic process due to a compressed umbilical cord, resulting in a stroke-like vascular event, which led to the hypoxic ischemic encephalopathy.
VERDICT A $450,000 Wisconsin settlement was reached.
These cases were selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska (www.verdictslaska.com). The information available to the editors about the cases presented here is sometimes incomplete. Moreover, the cases may or may not have merit. Nevertheless, these cases represent the types of clinical situations that typically result in litigation and are meant to illustrate nationwide variation in jury verdicts and awards.
We want to hear from you! Tell us what you think.
These cases were selected by the editors of OBG Management from Medical Malpractice Verdicts, Settlements & Experts, with permission of the editor, Lewis Laska (www.verdictslaska.com). The information available to the editors about the cases presented here is sometimes incomplete. Moreover, the cases may or may not have merit. Nevertheless, these cases represent the types of clinical situations that typically result in litigation and are meant to illustrate nationwide variation in jury verdicts and awards.
We want to hear from you! Tell us what you think.
ACOG to legislators: Partnership, not interference
Who’s in charge here?
It’s a legitimate question being asked by more physicians in all areas of the country as they struggle to provide good quality care. Yes, physicians face longstanding payment and coverage issues, regulations, and the insurance bureaucracy. But more and more often, physicians are struggling to care for their patients in the face of legislative interference that reaches right into their exam rooms. Who’s in charge here, indeed?
In this article, I detail several examples of legislative interference and describe the response of the American Congress of Obstetricians and Gynecologists (ACOG). I also detail a very healthy partnership ACOG has undertaken with the US Department of Health and Human Services (HHS) and the March of Dimes to end early elective deliveries before 39 weeks of gestation.
Physician gag law passes in Florida
State lawmakers in Florida have decided that physicians should no longer ask about guns in the home when performing a child wellness exam. The use of bike helmets and exposure to secondhand smoke are childhood health concerns worth mentioning, but the importance of keeping guns unloaded and locked away is not.
Under the Firearm Owners’ Privacy Act, enacted in 2011, physicians in Florida could be fined or imprisoned for initiating this conversation, and could be charged with a third-degree felony punishable by a fine of up to $5 million. Thanks to public pushback, the law was amended to remove the criminal penalty. Instead, patients who feel “harassed” by their physicians’ questions about gun safety can complain to the Florida Board of Medicine, which can take disciplinary action against an offending physician.
In November 2012, ACOG joined an amicus brief in the case of Wollschlaeger v the State of Florida, asking the court to overturn the Florida bill, now known as the “physician gag law,” challenging, in part, the government’s right to interfere with a physician’s freedom of speech.
In another example of legislative interference, energy production politics gets in the way of doctors sharing relevant medical information with their patients. Four states—Colorado, Ohio, Pennsylvania, and Texas—prohibit physicians from disclosing information about exposure to chemicals used in hydraulic fracturing, or fracking. Scientific evidence shows that exposure to the chemicals used in fracking can result in a spectrum of health-care problems, from headaches to cancer. Can doctors talk about this with their patients? Not in these states.
While some states are trying to gag physicians by limiting what they can talk about with their patients, legislators in other states are considering requiring physicians to read, or offer to read, scripts to all patients who might have a terminal illness about end-of-life care options. Laws were enacted in California (2008) and New York (2011) to do just that. ObGyns are too familiar with legislatively mandated scripts; we know how inappropriate they are.
According to the Guttmacher Institute, in 2013, a number of states require abortion providers to read a script or provide written materials to patients seeking abortions; often these scripts contain medically inaccurate information. Twelve states require the physician to “inform” the patient about the ability of the fetus to feel pain, five states require the physician to claim that personhood begins at conception, and five states require doctors to say that abortion increases the risk of breast cancer. Six states require inaccurate information on the effects of abortion on future fertility.1
Serious penalties usually accompany these laws—financial fines, loss of licensure, and jail time. These and other legislative efforts infringe on physicians’ freedom of speech and force physicians to make terrible choices: Do you risk criminal prosecution or do you give your patient scientifically accurate and complete information? Do you adhere to your professional obligation to your patients, and risk putting your professional career on the line?
CLICK HERE to read other insightful articles by Ms. DiVenere.
Women’s reproductive health in the firing line
Nowhere is legislative interference more rampant than in the world of women’s health care. Over the past 2 years, an unprecedented number of bills have been introduced in the US Congress and statehouses restricting access to care for women and placing inappropriate requirements on physicians. The year 2011 was record-breaking in terms of abortion restrictions in the states, with 92 restrictions enacted.
In 2012, 42 states and the District of Columbia enacted 122 reproductive health provisions, one-third of them related to abortion restrictions. Forty-three new laws in 19 states were passed that restrict access to abortion. More than half of these new laws came from six states: Arizona was first with seven anti-abortion restrictions. Kansas, Louisiana, Oklahoma, South Dakota, and Wisconsin all had at least three.
In 2013, there have already been bills introduced in the US Congress and in the states that would:
- prohibit Title X family planning funds from going to clinics that provide abortions or prohibit funds from going to other entities that perform abortions (US Congress)
- repeal the Affordable Care Act, including the insurance protections and preventive services provisions that ACOG supports (US Congress)
- ban medical abortion (Mississippi)
- require women to undergo transvaginal ultrasound before having an abortion (Michigan)
- prohibit abortion after detection of a fetal heartbeat (at least three states: Arkansas, North Dakota, and Wyoming).
Few, if any, of these proposals are based on medical science. In fact, many of them run contrary to science and good patient-care principles. And although most of these efforts focus on reducing access to reproductive health care, including abortions, legislative interference is an issue of concern to physicians of all specialties, regardless of individual positions on life and choice.
What the medical community is doing
The American Medical Association (AMA) has made clear, consistent with the direction of its House of Delegates, that it fully opposes political interference in the patient-physician relationship. In 2012, the AMA unveiled its “Protect the sanctity of the patient-physician relationship” campaign with a panel that included Dr. Erin Tracy, chair of the Massachusetts Section of ACOG; Dr. Tim Bartholow, chief medical officer of the Wisconsin Medical Society; and Dr. H. Garry Gardner, chair of the American Academy of Pediatrics’ (AAP) Council on Injury, Violence, and Poison Prevention Executive Committee.
The AMA’s campaign is designed to educate physicians and to work with state medical societies and specialties to “articulate a compelling and comprehensive legal foundation to oppose legislation that encroaches on the sanctity of the patient-physician relationship.”
ACOG’s leadership has directly and forcefully pushed back on legislative encroachment. In 2012, ACOG Executive Vice President Hal C. Lawrence III, MD, and the executive leadership of the American Academy of Family Physicians (AAFP), AAP, the American College of Physicians, and the American College of Surgeons issued a joint statement that was published in the New England Journal of Medicine against legislative interference in the exam room.2
In addition, ACOG President James T. Breeden, MD, has written eight oped pieces, letters to the editor, and other public statements in venues with far and important reach, including the New York Times, USA Today, and Capitol Hill dailies (see the box). ACOG has also issued “Rapid Responses” to counter inaccurate statements about women’s health made in the media or on the campaign trail by state or national politicians.
In a paid ad message to the National Conference on State Legislatures (NCSL), which the NCSL refused to run, Dr. Breeden said, in part:
- Because we stand firmly for access to needed care, we also stand firmly against legislative interference with the patient-physician relationship. There’s only room for two people in our exam rooms: the patient and the caregiver. Lawmakers get in the way of good patient care when they try to force women to undergo transvaginal ultrasounds or other unnecessary medical procedures; when they try to close health clinics for specious reasons; or when they try to tell women that legislators know best.
Lawmakers can and do play a vitally productive and important role in ensuring public health. Lawmakers should not, however, attempt to define, mandate, or prohibit medical practices or require doctors to read a government script to their patients.
As ObGyns visit with state and federal legislators this year, our message is simple: Partnership with lawmakers, yes. Legislative interference, no.
Our campaign makes the point that there are a number of legitimate roles that state and federal governments play in public health. We welcome opportunities to partner with legislators on important women’s health-care needs. We draw the line at legislative interference of all stripes.
Here are just a few examples of ACOG’s many statements on behalf of women’s reproductive health
USA Today – Letter to the editor – May 21, 2012
“Politicians should not be legislating the practice of medicine or the doctor-patient relationship. We all need to speak up and take action when legislators pretend they know what’s best for women and their physicians.” —ACOG President James T. Breeden, MD
New York Times – Letter to the editor – June 4, 2012
“Politicians were not elected to, nor should they, legislate the practice of medicine or dictate the parameters of the doctor-patient relationship. Our message to politicians is unequivocal: Get out of our exam rooms.” —ACOG President James T. Breeden, MD
“Universal access to contraception could be a lifesaver” – Las Vegas Review Journal – July 22, 2012
“Contraception is a basic and essential element of women’s preventive health care and a basic public health necessity.” —ACOG President James T. Breeden, MD
ACOG Rapid Response to Rep. Todd Akin’s August 19, 2012 statement on “legitimate rape” – Issued August 20, 2012
“Absolutely no veracity to the claim … A woman who is raped has no control over ovulation, fertilization, or implantation of a fertilized egg. To suggest otherwise contradicts basic biological truths.”
ACOG Rapid Response to Rep. Joe Walsh’s October 18, 2012, statement that “Technology has advanced to the point that abortions are never needed to save the health or life of a mother” – Issued October 19, 2012
“Abortions are necessary in a number of circumstances to save the life of a woman or to preserve her health.”
A meaningful partnership: Strong Start
ACOG was invited to partner with the HHS and the March of Dimes on an initiative designed to bring about a meaningful and lasting improvement in maternity care: ending early elective deliveries before 39 weeks’ gestation. At the press conference announcing this partnership on the Strong Start initiative, Dr. Lawrence stood with HHS Secretary Kathleen Sebelius and said, in part:
- An ObGyn’s job is one of the most rewarding jobs on the planet, bringing little babies into the world. This job carries enormous responsibilities, too, ensuring the highest levels of health and safety for every mom and baby.
- The American College of Obstetricians and Gynecologists is proud to partner with the Department of Health and Human Services and the March of Dimes on one of the most certain ways of helping babies get a good start in life: Babies should not be delivered earlier than 39 weeks, unless pregnancy complications require otherwise to keep mother and child safe.
- Such a simple change, but one that can tremendously benefit children, families, our health system, and our society.
- Our joint initiative will help bring this important information to women and physicians across the nation, and has enormous potential to make a real and lasting change in how we care for expectant moms, and more importantly, how expectant moms expect us to care for them.
The Strong Start initiative is an all-too-rare example of a wonderful partnership between government, medicine, and the public to lead and create important change. This initiative goes far beyond the original press conference. Dr. Lawrence and other leaders have participated in webinars and interviews to spread the word. ACOG has developed patient education materials tailored to the message of no early elective deliveries before 39 weeks unless there is a maternal or fetal medical indication. Strong Start has provided funding to innovative maternity care models, including centering and pregnancy medical homes.
Earlier this year, Dr. Lawrence convened a Strong Start summit of the heads of the American Hospital Association, AAFP, AAP, the American Women’s Health and Neonatal Nurses Association, the American College of Nurse Midwives, the March of Dimes, and our federal partners, the Centers for Medicare and Medicaid Services and the Center for Medicare and Medicaid Innovation.
This one-day summit had a clear goal: gain unanimous agreement and commitment from the maternal care community to move our clinical knowledge into practice, ending nonmedically indicated early elective deliveries before 39 weeks.
Since 1979, ACOG has emphasized that labor should be induced “when the benefits of delivery to the fetus or the mother exceed the benefits of continuing the pregnancy,” and that pregnancies should be maintained until at least 39 weeks unless medical indications make early delivery necessary. This guidance was based on sound clinical knowledge in 1979, and today’s data are only more compelling. Somehow, however, early elective deliveries are still common and, for a variety of reasons, usually not related to infant or maternal health. This Strong Start summit is our specialty’s way of leading through partnership to encourage every maternity hospital in America to have in place a practice policy supporting no nonmedically indicated early elective deliveries before 39 weeks.
In many important ways, Strong Start is an example of the best that partnership with government and our colleagues has to offer.
The difference between partnership and interference is easy to see. That’s why we say: Partnership, yes. Interference, no.
We want to hear from you! Tell us what you think.
1. Guttmacher Institute. State Policies in Brief: Counseling and Waiting Period for Abortion. New York, NY, and Washington, DC: Guttmacher Institute; 2013.
2. Weinberger SE, Lawrence HC, III, Henley DE, et al. Legislative interference with the patient-physician relationship. N Engl J Med. 2012;367(16):1557-1559.
Lucia DiVenere, MA
Ms. DiVenere is Senior Director of Government Affairs at the American Congress of Obstetricians and Gynecologists.
Ms. DiVenere reports no financial relationships relevant to this article.
Lucia DiVenere, MA
Ms. DiVenere is Senior Director of Government Affairs at the American Congress of Obstetricians and Gynecologists.
Ms. DiVenere reports no financial relationships relevant to this article.
Lucia DiVenere, MA
Ms. DiVenere is Senior Director of Government Affairs at the American Congress of Obstetricians and Gynecologists.
Ms. DiVenere reports no financial relationships relevant to this article.
Who’s in charge here?
It’s a legitimate question being asked by more physicians in all areas of the country as they struggle to provide good quality care. Yes, physicians face longstanding payment and coverage issues, regulations, and the insurance bureaucracy. But more and more often, physicians are struggling to care for their patients in the face of legislative interference that reaches right into their exam rooms. Who’s in charge here, indeed?
In this article, I detail several examples of legislative interference and describe the response of the American Congress of Obstetricians and Gynecologists (ACOG). I also detail a very healthy partnership ACOG has undertaken with the US Department of Health and Human Services (HHS) and the March of Dimes to end early elective deliveries before 39 weeks of gestation.
Physician gag law passes in Florida
State lawmakers in Florida have decided that physicians should no longer ask about guns in the home when performing a child wellness exam. The use of bike helmets and exposure to secondhand smoke are childhood health concerns worth mentioning, but the importance of keeping guns unloaded and locked away is not.
Under the Firearm Owners’ Privacy Act, enacted in 2011, physicians in Florida could be fined or imprisoned for initiating this conversation, and could be charged with a third-degree felony punishable by a fine of up to $5 million. Thanks to public pushback, the law was amended to remove the criminal penalty. Instead, patients who feel “harassed” by their physicians’ questions about gun safety can complain to the Florida Board of Medicine, which can take disciplinary action against an offending physician.
In November 2012, ACOG joined an amicus brief in the case of Wollschlaeger v the State of Florida, asking the court to overturn the Florida bill, now known as the “physician gag law,” challenging, in part, the government’s right to interfere with a physician’s freedom of speech.
In another example of legislative interference, energy production politics gets in the way of doctors sharing relevant medical information with their patients. Four states—Colorado, Ohio, Pennsylvania, and Texas—prohibit physicians from disclosing information about exposure to chemicals used in hydraulic fracturing, or fracking. Scientific evidence shows that exposure to the chemicals used in fracking can result in a spectrum of health-care problems, from headaches to cancer. Can doctors talk about this with their patients? Not in these states.
While some states are trying to gag physicians by limiting what they can talk about with their patients, legislators in other states are considering requiring physicians to read, or offer to read, scripts to all patients who might have a terminal illness about end-of-life care options. Laws were enacted in California (2008) and New York (2011) to do just that. ObGyns are too familiar with legislatively mandated scripts; we know how inappropriate they are.
According to the Guttmacher Institute, in 2013, a number of states require abortion providers to read a script or provide written materials to patients seeking abortions; often these scripts contain medically inaccurate information. Twelve states require the physician to “inform” the patient about the ability of the fetus to feel pain, five states require the physician to claim that personhood begins at conception, and five states require doctors to say that abortion increases the risk of breast cancer. Six states require inaccurate information on the effects of abortion on future fertility.1
Serious penalties usually accompany these laws—financial fines, loss of licensure, and jail time. These and other legislative efforts infringe on physicians’ freedom of speech and force physicians to make terrible choices: Do you risk criminal prosecution or do you give your patient scientifically accurate and complete information? Do you adhere to your professional obligation to your patients, and risk putting your professional career on the line?
CLICK HERE to read other insightful articles by Ms. DiVenere.
Women’s reproductive health in the firing line
Nowhere is legislative interference more rampant than in the world of women’s health care. Over the past 2 years, an unprecedented number of bills have been introduced in the US Congress and statehouses restricting access to care for women and placing inappropriate requirements on physicians. The year 2011 was record-breaking in terms of abortion restrictions in the states, with 92 restrictions enacted.
In 2012, 42 states and the District of Columbia enacted 122 reproductive health provisions, one-third of them related to abortion restrictions. Forty-three new laws in 19 states were passed that restrict access to abortion. More than half of these new laws came from six states: Arizona was first with seven anti-abortion restrictions. Kansas, Louisiana, Oklahoma, South Dakota, and Wisconsin all had at least three.
In 2013, there have already been bills introduced in the US Congress and in the states that would:
- prohibit Title X family planning funds from going to clinics that provide abortions or prohibit funds from going to other entities that perform abortions (US Congress)
- repeal the Affordable Care Act, including the insurance protections and preventive services provisions that ACOG supports (US Congress)
- ban medical abortion (Mississippi)
- require women to undergo transvaginal ultrasound before having an abortion (Michigan)
- prohibit abortion after detection of a fetal heartbeat (at least three states: Arkansas, North Dakota, and Wyoming).
Few, if any, of these proposals are based on medical science. In fact, many of them run contrary to science and good patient-care principles. And although most of these efforts focus on reducing access to reproductive health care, including abortions, legislative interference is an issue of concern to physicians of all specialties, regardless of individual positions on life and choice.
What the medical community is doing
The American Medical Association (AMA) has made clear, consistent with the direction of its House of Delegates, that it fully opposes political interference in the patient-physician relationship. In 2012, the AMA unveiled its “Protect the sanctity of the patient-physician relationship” campaign with a panel that included Dr. Erin Tracy, chair of the Massachusetts Section of ACOG; Dr. Tim Bartholow, chief medical officer of the Wisconsin Medical Society; and Dr. H. Garry Gardner, chair of the American Academy of Pediatrics’ (AAP) Council on Injury, Violence, and Poison Prevention Executive Committee.
The AMA’s campaign is designed to educate physicians and to work with state medical societies and specialties to “articulate a compelling and comprehensive legal foundation to oppose legislation that encroaches on the sanctity of the patient-physician relationship.”
ACOG’s leadership has directly and forcefully pushed back on legislative encroachment. In 2012, ACOG Executive Vice President Hal C. Lawrence III, MD, and the executive leadership of the American Academy of Family Physicians (AAFP), AAP, the American College of Physicians, and the American College of Surgeons issued a joint statement that was published in the New England Journal of Medicine against legislative interference in the exam room.2
In addition, ACOG President James T. Breeden, MD, has written eight oped pieces, letters to the editor, and other public statements in venues with far and important reach, including the New York Times, USA Today, and Capitol Hill dailies (see the box). ACOG has also issued “Rapid Responses” to counter inaccurate statements about women’s health made in the media or on the campaign trail by state or national politicians.
In a paid ad message to the National Conference on State Legislatures (NCSL), which the NCSL refused to run, Dr. Breeden said, in part:
- Because we stand firmly for access to needed care, we also stand firmly against legislative interference with the patient-physician relationship. There’s only room for two people in our exam rooms: the patient and the caregiver. Lawmakers get in the way of good patient care when they try to force women to undergo transvaginal ultrasounds or other unnecessary medical procedures; when they try to close health clinics for specious reasons; or when they try to tell women that legislators know best.
Lawmakers can and do play a vitally productive and important role in ensuring public health. Lawmakers should not, however, attempt to define, mandate, or prohibit medical practices or require doctors to read a government script to their patients.
As ObGyns visit with state and federal legislators this year, our message is simple: Partnership with lawmakers, yes. Legislative interference, no.
Our campaign makes the point that there are a number of legitimate roles that state and federal governments play in public health. We welcome opportunities to partner with legislators on important women’s health-care needs. We draw the line at legislative interference of all stripes.
Here are just a few examples of ACOG’s many statements on behalf of women’s reproductive health
USA Today – Letter to the editor – May 21, 2012
“Politicians should not be legislating the practice of medicine or the doctor-patient relationship. We all need to speak up and take action when legislators pretend they know what’s best for women and their physicians.” —ACOG President James T. Breeden, MD
New York Times – Letter to the editor – June 4, 2012
“Politicians were not elected to, nor should they, legislate the practice of medicine or dictate the parameters of the doctor-patient relationship. Our message to politicians is unequivocal: Get out of our exam rooms.” —ACOG President James T. Breeden, MD
“Universal access to contraception could be a lifesaver” – Las Vegas Review Journal – July 22, 2012
“Contraception is a basic and essential element of women’s preventive health care and a basic public health necessity.” —ACOG President James T. Breeden, MD
ACOG Rapid Response to Rep. Todd Akin’s August 19, 2012 statement on “legitimate rape” – Issued August 20, 2012
“Absolutely no veracity to the claim … A woman who is raped has no control over ovulation, fertilization, or implantation of a fertilized egg. To suggest otherwise contradicts basic biological truths.”
ACOG Rapid Response to Rep. Joe Walsh’s October 18, 2012, statement that “Technology has advanced to the point that abortions are never needed to save the health or life of a mother” – Issued October 19, 2012
“Abortions are necessary in a number of circumstances to save the life of a woman or to preserve her health.”
A meaningful partnership: Strong Start
ACOG was invited to partner with the HHS and the March of Dimes on an initiative designed to bring about a meaningful and lasting improvement in maternity care: ending early elective deliveries before 39 weeks’ gestation. At the press conference announcing this partnership on the Strong Start initiative, Dr. Lawrence stood with HHS Secretary Kathleen Sebelius and said, in part:
- An ObGyn’s job is one of the most rewarding jobs on the planet, bringing little babies into the world. This job carries enormous responsibilities, too, ensuring the highest levels of health and safety for every mom and baby.
- The American College of Obstetricians and Gynecologists is proud to partner with the Department of Health and Human Services and the March of Dimes on one of the most certain ways of helping babies get a good start in life: Babies should not be delivered earlier than 39 weeks, unless pregnancy complications require otherwise to keep mother and child safe.
- Such a simple change, but one that can tremendously benefit children, families, our health system, and our society.
- Our joint initiative will help bring this important information to women and physicians across the nation, and has enormous potential to make a real and lasting change in how we care for expectant moms, and more importantly, how expectant moms expect us to care for them.
The Strong Start initiative is an all-too-rare example of a wonderful partnership between government, medicine, and the public to lead and create important change. This initiative goes far beyond the original press conference. Dr. Lawrence and other leaders have participated in webinars and interviews to spread the word. ACOG has developed patient education materials tailored to the message of no early elective deliveries before 39 weeks unless there is a maternal or fetal medical indication. Strong Start has provided funding to innovative maternity care models, including centering and pregnancy medical homes.
Earlier this year, Dr. Lawrence convened a Strong Start summit of the heads of the American Hospital Association, AAFP, AAP, the American Women’s Health and Neonatal Nurses Association, the American College of Nurse Midwives, the March of Dimes, and our federal partners, the Centers for Medicare and Medicaid Services and the Center for Medicare and Medicaid Innovation.
This one-day summit had a clear goal: gain unanimous agreement and commitment from the maternal care community to move our clinical knowledge into practice, ending nonmedically indicated early elective deliveries before 39 weeks.
Since 1979, ACOG has emphasized that labor should be induced “when the benefits of delivery to the fetus or the mother exceed the benefits of continuing the pregnancy,” and that pregnancies should be maintained until at least 39 weeks unless medical indications make early delivery necessary. This guidance was based on sound clinical knowledge in 1979, and today’s data are only more compelling. Somehow, however, early elective deliveries are still common and, for a variety of reasons, usually not related to infant or maternal health. This Strong Start summit is our specialty’s way of leading through partnership to encourage every maternity hospital in America to have in place a practice policy supporting no nonmedically indicated early elective deliveries before 39 weeks.
In many important ways, Strong Start is an example of the best that partnership with government and our colleagues has to offer.
The difference between partnership and interference is easy to see. That’s why we say: Partnership, yes. Interference, no.
We want to hear from you! Tell us what you think.
Who’s in charge here?
It’s a legitimate question being asked by more physicians in all areas of the country as they struggle to provide good quality care. Yes, physicians face longstanding payment and coverage issues, regulations, and the insurance bureaucracy. But more and more often, physicians are struggling to care for their patients in the face of legislative interference that reaches right into their exam rooms. Who’s in charge here, indeed?
In this article, I detail several examples of legislative interference and describe the response of the American Congress of Obstetricians and Gynecologists (ACOG). I also detail a very healthy partnership ACOG has undertaken with the US Department of Health and Human Services (HHS) and the March of Dimes to end early elective deliveries before 39 weeks of gestation.
Physician gag law passes in Florida
State lawmakers in Florida have decided that physicians should no longer ask about guns in the home when performing a child wellness exam. The use of bike helmets and exposure to secondhand smoke are childhood health concerns worth mentioning, but the importance of keeping guns unloaded and locked away is not.
Under the Firearm Owners’ Privacy Act, enacted in 2011, physicians in Florida could be fined or imprisoned for initiating this conversation, and could be charged with a third-degree felony punishable by a fine of up to $5 million. Thanks to public pushback, the law was amended to remove the criminal penalty. Instead, patients who feel “harassed” by their physicians’ questions about gun safety can complain to the Florida Board of Medicine, which can take disciplinary action against an offending physician.
In November 2012, ACOG joined an amicus brief in the case of Wollschlaeger v the State of Florida, asking the court to overturn the Florida bill, now known as the “physician gag law,” challenging, in part, the government’s right to interfere with a physician’s freedom of speech.
In another example of legislative interference, energy production politics gets in the way of doctors sharing relevant medical information with their patients. Four states—Colorado, Ohio, Pennsylvania, and Texas—prohibit physicians from disclosing information about exposure to chemicals used in hydraulic fracturing, or fracking. Scientific evidence shows that exposure to the chemicals used in fracking can result in a spectrum of health-care problems, from headaches to cancer. Can doctors talk about this with their patients? Not in these states.
While some states are trying to gag physicians by limiting what they can talk about with their patients, legislators in other states are considering requiring physicians to read, or offer to read, scripts to all patients who might have a terminal illness about end-of-life care options. Laws were enacted in California (2008) and New York (2011) to do just that. ObGyns are too familiar with legislatively mandated scripts; we know how inappropriate they are.
According to the Guttmacher Institute, in 2013, a number of states require abortion providers to read a script or provide written materials to patients seeking abortions; often these scripts contain medically inaccurate information. Twelve states require the physician to “inform” the patient about the ability of the fetus to feel pain, five states require the physician to claim that personhood begins at conception, and five states require doctors to say that abortion increases the risk of breast cancer. Six states require inaccurate information on the effects of abortion on future fertility.1
Serious penalties usually accompany these laws—financial fines, loss of licensure, and jail time. These and other legislative efforts infringe on physicians’ freedom of speech and force physicians to make terrible choices: Do you risk criminal prosecution or do you give your patient scientifically accurate and complete information? Do you adhere to your professional obligation to your patients, and risk putting your professional career on the line?
CLICK HERE to read other insightful articles by Ms. DiVenere.
Women’s reproductive health in the firing line
Nowhere is legislative interference more rampant than in the world of women’s health care. Over the past 2 years, an unprecedented number of bills have been introduced in the US Congress and statehouses restricting access to care for women and placing inappropriate requirements on physicians. The year 2011 was record-breaking in terms of abortion restrictions in the states, with 92 restrictions enacted.
In 2012, 42 states and the District of Columbia enacted 122 reproductive health provisions, one-third of them related to abortion restrictions. Forty-three new laws in 19 states were passed that restrict access to abortion. More than half of these new laws came from six states: Arizona was first with seven anti-abortion restrictions. Kansas, Louisiana, Oklahoma, South Dakota, and Wisconsin all had at least three.
In 2013, there have already been bills introduced in the US Congress and in the states that would:
- prohibit Title X family planning funds from going to clinics that provide abortions or prohibit funds from going to other entities that perform abortions (US Congress)
- repeal the Affordable Care Act, including the insurance protections and preventive services provisions that ACOG supports (US Congress)
- ban medical abortion (Mississippi)
- require women to undergo transvaginal ultrasound before having an abortion (Michigan)
- prohibit abortion after detection of a fetal heartbeat (at least three states: Arkansas, North Dakota, and Wyoming).
Few, if any, of these proposals are based on medical science. In fact, many of them run contrary to science and good patient-care principles. And although most of these efforts focus on reducing access to reproductive health care, including abortions, legislative interference is an issue of concern to physicians of all specialties, regardless of individual positions on life and choice.
What the medical community is doing
The American Medical Association (AMA) has made clear, consistent with the direction of its House of Delegates, that it fully opposes political interference in the patient-physician relationship. In 2012, the AMA unveiled its “Protect the sanctity of the patient-physician relationship” campaign with a panel that included Dr. Erin Tracy, chair of the Massachusetts Section of ACOG; Dr. Tim Bartholow, chief medical officer of the Wisconsin Medical Society; and Dr. H. Garry Gardner, chair of the American Academy of Pediatrics’ (AAP) Council on Injury, Violence, and Poison Prevention Executive Committee.
The AMA’s campaign is designed to educate physicians and to work with state medical societies and specialties to “articulate a compelling and comprehensive legal foundation to oppose legislation that encroaches on the sanctity of the patient-physician relationship.”
ACOG’s leadership has directly and forcefully pushed back on legislative encroachment. In 2012, ACOG Executive Vice President Hal C. Lawrence III, MD, and the executive leadership of the American Academy of Family Physicians (AAFP), AAP, the American College of Physicians, and the American College of Surgeons issued a joint statement that was published in the New England Journal of Medicine against legislative interference in the exam room.2
In addition, ACOG President James T. Breeden, MD, has written eight oped pieces, letters to the editor, and other public statements in venues with far and important reach, including the New York Times, USA Today, and Capitol Hill dailies (see the box). ACOG has also issued “Rapid Responses” to counter inaccurate statements about women’s health made in the media or on the campaign trail by state or national politicians.
In a paid ad message to the National Conference on State Legislatures (NCSL), which the NCSL refused to run, Dr. Breeden said, in part:
- Because we stand firmly for access to needed care, we also stand firmly against legislative interference with the patient-physician relationship. There’s only room for two people in our exam rooms: the patient and the caregiver. Lawmakers get in the way of good patient care when they try to force women to undergo transvaginal ultrasounds or other unnecessary medical procedures; when they try to close health clinics for specious reasons; or when they try to tell women that legislators know best.
Lawmakers can and do play a vitally productive and important role in ensuring public health. Lawmakers should not, however, attempt to define, mandate, or prohibit medical practices or require doctors to read a government script to their patients.
As ObGyns visit with state and federal legislators this year, our message is simple: Partnership with lawmakers, yes. Legislative interference, no.
Our campaign makes the point that there are a number of legitimate roles that state and federal governments play in public health. We welcome opportunities to partner with legislators on important women’s health-care needs. We draw the line at legislative interference of all stripes.
Here are just a few examples of ACOG’s many statements on behalf of women’s reproductive health
USA Today – Letter to the editor – May 21, 2012
“Politicians should not be legislating the practice of medicine or the doctor-patient relationship. We all need to speak up and take action when legislators pretend they know what’s best for women and their physicians.” —ACOG President James T. Breeden, MD
New York Times – Letter to the editor – June 4, 2012
“Politicians were not elected to, nor should they, legislate the practice of medicine or dictate the parameters of the doctor-patient relationship. Our message to politicians is unequivocal: Get out of our exam rooms.” —ACOG President James T. Breeden, MD
“Universal access to contraception could be a lifesaver” – Las Vegas Review Journal – July 22, 2012
“Contraception is a basic and essential element of women’s preventive health care and a basic public health necessity.” —ACOG President James T. Breeden, MD
ACOG Rapid Response to Rep. Todd Akin’s August 19, 2012 statement on “legitimate rape” – Issued August 20, 2012
“Absolutely no veracity to the claim … A woman who is raped has no control over ovulation, fertilization, or implantation of a fertilized egg. To suggest otherwise contradicts basic biological truths.”
ACOG Rapid Response to Rep. Joe Walsh’s October 18, 2012, statement that “Technology has advanced to the point that abortions are never needed to save the health or life of a mother” – Issued October 19, 2012
“Abortions are necessary in a number of circumstances to save the life of a woman or to preserve her health.”
A meaningful partnership: Strong Start
ACOG was invited to partner with the HHS and the March of Dimes on an initiative designed to bring about a meaningful and lasting improvement in maternity care: ending early elective deliveries before 39 weeks’ gestation. At the press conference announcing this partnership on the Strong Start initiative, Dr. Lawrence stood with HHS Secretary Kathleen Sebelius and said, in part:
- An ObGyn’s job is one of the most rewarding jobs on the planet, bringing little babies into the world. This job carries enormous responsibilities, too, ensuring the highest levels of health and safety for every mom and baby.
- The American College of Obstetricians and Gynecologists is proud to partner with the Department of Health and Human Services and the March of Dimes on one of the most certain ways of helping babies get a good start in life: Babies should not be delivered earlier than 39 weeks, unless pregnancy complications require otherwise to keep mother and child safe.
- Such a simple change, but one that can tremendously benefit children, families, our health system, and our society.
- Our joint initiative will help bring this important information to women and physicians across the nation, and has enormous potential to make a real and lasting change in how we care for expectant moms, and more importantly, how expectant moms expect us to care for them.
The Strong Start initiative is an all-too-rare example of a wonderful partnership between government, medicine, and the public to lead and create important change. This initiative goes far beyond the original press conference. Dr. Lawrence and other leaders have participated in webinars and interviews to spread the word. ACOG has developed patient education materials tailored to the message of no early elective deliveries before 39 weeks unless there is a maternal or fetal medical indication. Strong Start has provided funding to innovative maternity care models, including centering and pregnancy medical homes.
Earlier this year, Dr. Lawrence convened a Strong Start summit of the heads of the American Hospital Association, AAFP, AAP, the American Women’s Health and Neonatal Nurses Association, the American College of Nurse Midwives, the March of Dimes, and our federal partners, the Centers for Medicare and Medicaid Services and the Center for Medicare and Medicaid Innovation.
This one-day summit had a clear goal: gain unanimous agreement and commitment from the maternal care community to move our clinical knowledge into practice, ending nonmedically indicated early elective deliveries before 39 weeks.
Since 1979, ACOG has emphasized that labor should be induced “when the benefits of delivery to the fetus or the mother exceed the benefits of continuing the pregnancy,” and that pregnancies should be maintained until at least 39 weeks unless medical indications make early delivery necessary. This guidance was based on sound clinical knowledge in 1979, and today’s data are only more compelling. Somehow, however, early elective deliveries are still common and, for a variety of reasons, usually not related to infant or maternal health. This Strong Start summit is our specialty’s way of leading through partnership to encourage every maternity hospital in America to have in place a practice policy supporting no nonmedically indicated early elective deliveries before 39 weeks.
In many important ways, Strong Start is an example of the best that partnership with government and our colleagues has to offer.
The difference between partnership and interference is easy to see. That’s why we say: Partnership, yes. Interference, no.
We want to hear from you! Tell us what you think.
1. Guttmacher Institute. State Policies in Brief: Counseling and Waiting Period for Abortion. New York, NY, and Washington, DC: Guttmacher Institute; 2013.
2. Weinberger SE, Lawrence HC, III, Henley DE, et al. Legislative interference with the patient-physician relationship. N Engl J Med. 2012;367(16):1557-1559.
1. Guttmacher Institute. State Policies in Brief: Counseling and Waiting Period for Abortion. New York, NY, and Washington, DC: Guttmacher Institute; 2013.
2. Weinberger SE, Lawrence HC, III, Henley DE, et al. Legislative interference with the patient-physician relationship. N Engl J Med. 2012;367(16):1557-1559.
ONLINE EXCLUSIVE: Society of Physician Entrepreneurs Co-Founder Talks about MD Career Changes
Click here to listen to Dr. Hausfeld, managing director of FMS Financial Solutions, Greenbelt, Md., co-founder and treasurer of the Society of Physician Entrepreneurs.
Click here to listen to Dr. Hausfeld, managing director of FMS Financial Solutions, Greenbelt, Md., co-founder and treasurer of the Society of Physician Entrepreneurs.
Click here to listen to Dr. Hausfeld, managing director of FMS Financial Solutions, Greenbelt, Md., co-founder and treasurer of the Society of Physician Entrepreneurs.
Hospitalists Urged to Help Reduce 30-Day Readmission Rate
For hospitals across the country, 2013 is the year to address readmissions and find practical solutions. In January, the Journal of the American Medical Association dedicated
an entire issue to the vexing problem of hospital readmissions. In his audio summary of the issue, JAMA editor Howard Bauchner, MD, notes that it “came together organically,” based on increased submissions and attention to 30-day readmissions.
Among nearly a dozen articles focused on readmissions, discharge, and transitions of care, Project BOOST principal investigator Mark V. Williams, MD, FACP, MHM, makes the case for a community-based approach in an editorial titled “A Requirement to Reduce Readmissions: Take Care of the Patient, Not Just the Disease.” In the piece, he advocates for “broad patient-centered approaches that engage all members of a care team, especially front-line clinicians and use proven quality-improvement [QI] methods.” He goes on to link the concepts to the principles taught by Project BOOST.
After all, readmissions are expensive, and not just for hospitals, which is why private insurers and the Centers for Medicare & Medicaid Services (CMS) are investing resources to improve discharge processes, reduce readmissions, and reduce costs.
Many adverse events that happen after discharge are predictable using assessment tools and methods in the Project BOOST program, Dr. Williams says. Hospitalists can—and should, according to many—improve the system to protect patients.
And while systemwide change doesn’t happen overnight, it does have to start somewhere, as leaders at the 150-plus Project BOOST sites nationwide can attest Now is the time to begin planning to join the Project BOOST 2013 cohort. Applications will be accepted through this summer; training will begin in the fall. But participation is limited, and successful applicants often need time to prepare their applications, which must include letters of support from a site executive and the development of a multidisciplinary team. For more information, visit www.hospitalmedicine.org/boost.
Brendon Shank is SHM’s associate vice president of communications.
For hospitals across the country, 2013 is the year to address readmissions and find practical solutions. In January, the Journal of the American Medical Association dedicated
an entire issue to the vexing problem of hospital readmissions. In his audio summary of the issue, JAMA editor Howard Bauchner, MD, notes that it “came together organically,” based on increased submissions and attention to 30-day readmissions.
Among nearly a dozen articles focused on readmissions, discharge, and transitions of care, Project BOOST principal investigator Mark V. Williams, MD, FACP, MHM, makes the case for a community-based approach in an editorial titled “A Requirement to Reduce Readmissions: Take Care of the Patient, Not Just the Disease.” In the piece, he advocates for “broad patient-centered approaches that engage all members of a care team, especially front-line clinicians and use proven quality-improvement [QI] methods.” He goes on to link the concepts to the principles taught by Project BOOST.
After all, readmissions are expensive, and not just for hospitals, which is why private insurers and the Centers for Medicare & Medicaid Services (CMS) are investing resources to improve discharge processes, reduce readmissions, and reduce costs.
Many adverse events that happen after discharge are predictable using assessment tools and methods in the Project BOOST program, Dr. Williams says. Hospitalists can—and should, according to many—improve the system to protect patients.
And while systemwide change doesn’t happen overnight, it does have to start somewhere, as leaders at the 150-plus Project BOOST sites nationwide can attest Now is the time to begin planning to join the Project BOOST 2013 cohort. Applications will be accepted through this summer; training will begin in the fall. But participation is limited, and successful applicants often need time to prepare their applications, which must include letters of support from a site executive and the development of a multidisciplinary team. For more information, visit www.hospitalmedicine.org/boost.
Brendon Shank is SHM’s associate vice president of communications.
For hospitals across the country, 2013 is the year to address readmissions and find practical solutions. In January, the Journal of the American Medical Association dedicated
an entire issue to the vexing problem of hospital readmissions. In his audio summary of the issue, JAMA editor Howard Bauchner, MD, notes that it “came together organically,” based on increased submissions and attention to 30-day readmissions.
Among nearly a dozen articles focused on readmissions, discharge, and transitions of care, Project BOOST principal investigator Mark V. Williams, MD, FACP, MHM, makes the case for a community-based approach in an editorial titled “A Requirement to Reduce Readmissions: Take Care of the Patient, Not Just the Disease.” In the piece, he advocates for “broad patient-centered approaches that engage all members of a care team, especially front-line clinicians and use proven quality-improvement [QI] methods.” He goes on to link the concepts to the principles taught by Project BOOST.
After all, readmissions are expensive, and not just for hospitals, which is why private insurers and the Centers for Medicare & Medicaid Services (CMS) are investing resources to improve discharge processes, reduce readmissions, and reduce costs.
Many adverse events that happen after discharge are predictable using assessment tools and methods in the Project BOOST program, Dr. Williams says. Hospitalists can—and should, according to many—improve the system to protect patients.
And while systemwide change doesn’t happen overnight, it does have to start somewhere, as leaders at the 150-plus Project BOOST sites nationwide can attest Now is the time to begin planning to join the Project BOOST 2013 cohort. Applications will be accepted through this summer; training will begin in the fall. But participation is limited, and successful applicants often need time to prepare their applications, which must include letters of support from a site executive and the development of a multidisciplinary team. For more information, visit www.hospitalmedicine.org/boost.
Brendon Shank is SHM’s associate vice president of communications.
Former Hospitalist Gets Satisfaction Helping Physicians Launch Nonclinical Careers
Q&A with Philippa Kennealy, MD, MPH, CPCC, PCC, founder and owner of The Entrepreneurial MD (www.entrepreneurialmd.com).
Question: What type of business do you operate?
Answer: I’m a physician development and business coach. My role is to help physicians who are struggling with launching a nonclinical career or a new business, or revamping a medical practice to become a satisfying venture. Although I am personally based in Los Angeles, The Entrepreneurial MD clients can be located anywhere in the world as long as we both have phone or Internet access. About 95% of my clients are not located in Los Angeles. I’m 57 years old. I was 41 when I left medical practice and went on to have several more careers.
Q: Why did you give up the practice of medicine?
A: I left my five-member private family practice in mid-1996, after joining my group in the middle of 1988. I realized that not only was I feeling unfulfilled and frustrated by work, but that I was even starting to dread it. I particularly dreaded the nights and weekends on call—for the latter, I started getting that “sick in the stomach” feeling on Mondays. I also realized that I had become bored with the repetition of the work and loved the idea of learning a whole lot of new stuff. I had embarked on my master’s degree in public health at UCLA around that time (mid-1995) and became completely energized by being a student again in a class of adult learners.
In short, I was deeply restless, in my early 40s, and ready for a change.
Q: How would you advise other MDs who are considering the pros/cons of not seeing patients anymore?
A: Above all else, it is important to get to really know yourself. Give yourself the gift of real reflection rather than just reaction. Upon such reflection, I knew that what truly energized me in clinical practice was my connection to people rather than being able to use a stethoscope or remove a mole. I also recognized that this “passion” was portable—unless I was locked away in a room with only a computer for company, I would thrive professionally no matter what I chose next, as long as it involved being in a helping relationship with others.
Engage in conversation with others who are like-minded—your mentors, people who have made career changes, your significant others. Do your homework and recognize that in the end, it is only you who can make the decision whether to stay or leave. Be compelled to make changes in your life because you are moving toward new opportunities rather than merely running away.
Q: Can you name some pros and cons for physicians interested in a career change?
A: The pros: interesting challenges, a chance to remake your career, re-engage your brain, feel challenged; reinvent yourself, strive for the dream(s) that you may have put on hold many years before or gave up because you did medicine to please others; acquire new skills, which may be fun.
The cons: risky if unplanned, you may have to take an income hit for a while, you may be a victim of “the grass is always greener” [mindset], you may never discover what you really want if you are simply acting from dissatisfaction and aren’t willing to do the work of change. It feels scary, and it takes a certain amount of inner courage and external support to make the move.
Q&A with Philippa Kennealy, MD, MPH, CPCC, PCC, founder and owner of The Entrepreneurial MD (www.entrepreneurialmd.com).
Question: What type of business do you operate?
Answer: I’m a physician development and business coach. My role is to help physicians who are struggling with launching a nonclinical career or a new business, or revamping a medical practice to become a satisfying venture. Although I am personally based in Los Angeles, The Entrepreneurial MD clients can be located anywhere in the world as long as we both have phone or Internet access. About 95% of my clients are not located in Los Angeles. I’m 57 years old. I was 41 when I left medical practice and went on to have several more careers.
Q: Why did you give up the practice of medicine?
A: I left my five-member private family practice in mid-1996, after joining my group in the middle of 1988. I realized that not only was I feeling unfulfilled and frustrated by work, but that I was even starting to dread it. I particularly dreaded the nights and weekends on call—for the latter, I started getting that “sick in the stomach” feeling on Mondays. I also realized that I had become bored with the repetition of the work and loved the idea of learning a whole lot of new stuff. I had embarked on my master’s degree in public health at UCLA around that time (mid-1995) and became completely energized by being a student again in a class of adult learners.
In short, I was deeply restless, in my early 40s, and ready for a change.
Q: How would you advise other MDs who are considering the pros/cons of not seeing patients anymore?
A: Above all else, it is important to get to really know yourself. Give yourself the gift of real reflection rather than just reaction. Upon such reflection, I knew that what truly energized me in clinical practice was my connection to people rather than being able to use a stethoscope or remove a mole. I also recognized that this “passion” was portable—unless I was locked away in a room with only a computer for company, I would thrive professionally no matter what I chose next, as long as it involved being in a helping relationship with others.
Engage in conversation with others who are like-minded—your mentors, people who have made career changes, your significant others. Do your homework and recognize that in the end, it is only you who can make the decision whether to stay or leave. Be compelled to make changes in your life because you are moving toward new opportunities rather than merely running away.
Q: Can you name some pros and cons for physicians interested in a career change?
A: The pros: interesting challenges, a chance to remake your career, re-engage your brain, feel challenged; reinvent yourself, strive for the dream(s) that you may have put on hold many years before or gave up because you did medicine to please others; acquire new skills, which may be fun.
The cons: risky if unplanned, you may have to take an income hit for a while, you may be a victim of “the grass is always greener” [mindset], you may never discover what you really want if you are simply acting from dissatisfaction and aren’t willing to do the work of change. It feels scary, and it takes a certain amount of inner courage and external support to make the move.
Q&A with Philippa Kennealy, MD, MPH, CPCC, PCC, founder and owner of The Entrepreneurial MD (www.entrepreneurialmd.com).
Question: What type of business do you operate?
Answer: I’m a physician development and business coach. My role is to help physicians who are struggling with launching a nonclinical career or a new business, or revamping a medical practice to become a satisfying venture. Although I am personally based in Los Angeles, The Entrepreneurial MD clients can be located anywhere in the world as long as we both have phone or Internet access. About 95% of my clients are not located in Los Angeles. I’m 57 years old. I was 41 when I left medical practice and went on to have several more careers.
Q: Why did you give up the practice of medicine?
A: I left my five-member private family practice in mid-1996, after joining my group in the middle of 1988. I realized that not only was I feeling unfulfilled and frustrated by work, but that I was even starting to dread it. I particularly dreaded the nights and weekends on call—for the latter, I started getting that “sick in the stomach” feeling on Mondays. I also realized that I had become bored with the repetition of the work and loved the idea of learning a whole lot of new stuff. I had embarked on my master’s degree in public health at UCLA around that time (mid-1995) and became completely energized by being a student again in a class of adult learners.
In short, I was deeply restless, in my early 40s, and ready for a change.
Q: How would you advise other MDs who are considering the pros/cons of not seeing patients anymore?
A: Above all else, it is important to get to really know yourself. Give yourself the gift of real reflection rather than just reaction. Upon such reflection, I knew that what truly energized me in clinical practice was my connection to people rather than being able to use a stethoscope or remove a mole. I also recognized that this “passion” was portable—unless I was locked away in a room with only a computer for company, I would thrive professionally no matter what I chose next, as long as it involved being in a helping relationship with others.
Engage in conversation with others who are like-minded—your mentors, people who have made career changes, your significant others. Do your homework and recognize that in the end, it is only you who can make the decision whether to stay or leave. Be compelled to make changes in your life because you are moving toward new opportunities rather than merely running away.
Q: Can you name some pros and cons for physicians interested in a career change?
A: The pros: interesting challenges, a chance to remake your career, re-engage your brain, feel challenged; reinvent yourself, strive for the dream(s) that you may have put on hold many years before or gave up because you did medicine to please others; acquire new skills, which may be fun.
The cons: risky if unplanned, you may have to take an income hit for a while, you may be a victim of “the grass is always greener” [mindset], you may never discover what you really want if you are simply acting from dissatisfaction and aren’t willing to do the work of change. It feels scary, and it takes a certain amount of inner courage and external support to make the move.
Altered Records in Case of Propofol Overdose
A 45-year-old woman went to the defendant hospital in Alabama for a diagnostic workup. Later that morning, she underwent successful triple cardiac bypass surgery. That evening, while the patient was not on a ventilator and less than 30 minutes after being given an overdose of propofol, she experienced cardiac arrest and was pronounced dead 18 minutes later.
The plaintiff claimed that the nurse who was caring for the decedent made several errors in the administration of propofol. The plaintiff also claimed that the nurse made numerous changes to the record regarding the decedent's vital signs and the ventilator settings. Lastly, the plaintiff claimed that data from the computer memory from the pump used to administer the medication had either been discarded or destroyed.
The decedent's husband had obtained his wife's medical records immediately after her death, and many entries differed from those in the records provided to the plaintiff's attorneys after suit was filed.
Outcome
According to a published account, a $15 million verdict was returned.
Comment
Never, never, ever change a record!
One of the larger plaintiff's verdicts I have recently seen in the literature involves a case of record alteration. As we learned in training, mistakes should be lined out with the correct information added and the date of the alteration indicated. With electronic medical records, the changes are noted and dated, even if the clinician doesn't add in the change date. The computer documents the change without further entry effort.
In this case, it appears that a nurse changed vital signs and ventilator settings. The only reasonable assumption is that it was done to cover up data that would otherwise have been incriminating. Then, to add insult to injury, the propofol pump records were either destroyed or discarded; how convenient. I can only imagine the jurors' thoughts as they heard this.
In addition, there were many other changes to the records. So how was this discovered? The records provided to the plaintiff's husband, probably obtained soon after the incident, differed from those obtained by the plaintiff's attorneys at a later date. I can only guess that no one documented that copies of the record were requested and provided to the husband early on, as would have been good medical record practice.
I have seen just such behavior in my own legal practice. What surprises me here is that the case ever went to trial. Maybe the hoped-for verdict was greater than the available policy limits for settlement, and there was no alternative. In every case that I have seen involving record alteration, a settlement was reached. A smart defense attorney knows that he will have little to offer in defense of this egregious behavior, that a jury will have trouble believing anything the defendants say at trial, and that there is a significant chance for a large and punishing plaintiff's verdict.
We will never know if there was real negligence in this case. When considering record alteration as a way to prevent a malpractice loss, remember that once that alteration comes to light—and it often does—facts mean little. —JP
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
A 45-year-old woman went to the defendant hospital in Alabama for a diagnostic workup. Later that morning, she underwent successful triple cardiac bypass surgery. That evening, while the patient was not on a ventilator and less than 30 minutes after being given an overdose of propofol, she experienced cardiac arrest and was pronounced dead 18 minutes later.
The plaintiff claimed that the nurse who was caring for the decedent made several errors in the administration of propofol. The plaintiff also claimed that the nurse made numerous changes to the record regarding the decedent's vital signs and the ventilator settings. Lastly, the plaintiff claimed that data from the computer memory from the pump used to administer the medication had either been discarded or destroyed.
The decedent's husband had obtained his wife's medical records immediately after her death, and many entries differed from those in the records provided to the plaintiff's attorneys after suit was filed.
Outcome
According to a published account, a $15 million verdict was returned.
Comment
Never, never, ever change a record!
One of the larger plaintiff's verdicts I have recently seen in the literature involves a case of record alteration. As we learned in training, mistakes should be lined out with the correct information added and the date of the alteration indicated. With electronic medical records, the changes are noted and dated, even if the clinician doesn't add in the change date. The computer documents the change without further entry effort.
In this case, it appears that a nurse changed vital signs and ventilator settings. The only reasonable assumption is that it was done to cover up data that would otherwise have been incriminating. Then, to add insult to injury, the propofol pump records were either destroyed or discarded; how convenient. I can only imagine the jurors' thoughts as they heard this.
In addition, there were many other changes to the records. So how was this discovered? The records provided to the plaintiff's husband, probably obtained soon after the incident, differed from those obtained by the plaintiff's attorneys at a later date. I can only guess that no one documented that copies of the record were requested and provided to the husband early on, as would have been good medical record practice.
I have seen just such behavior in my own legal practice. What surprises me here is that the case ever went to trial. Maybe the hoped-for verdict was greater than the available policy limits for settlement, and there was no alternative. In every case that I have seen involving record alteration, a settlement was reached. A smart defense attorney knows that he will have little to offer in defense of this egregious behavior, that a jury will have trouble believing anything the defendants say at trial, and that there is a significant chance for a large and punishing plaintiff's verdict.
We will never know if there was real negligence in this case. When considering record alteration as a way to prevent a malpractice loss, remember that once that alteration comes to light—and it often does—facts mean little. —JP
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
A 45-year-old woman went to the defendant hospital in Alabama for a diagnostic workup. Later that morning, she underwent successful triple cardiac bypass surgery. That evening, while the patient was not on a ventilator and less than 30 minutes after being given an overdose of propofol, she experienced cardiac arrest and was pronounced dead 18 minutes later.
The plaintiff claimed that the nurse who was caring for the decedent made several errors in the administration of propofol. The plaintiff also claimed that the nurse made numerous changes to the record regarding the decedent's vital signs and the ventilator settings. Lastly, the plaintiff claimed that data from the computer memory from the pump used to administer the medication had either been discarded or destroyed.
The decedent's husband had obtained his wife's medical records immediately after her death, and many entries differed from those in the records provided to the plaintiff's attorneys after suit was filed.
Outcome
According to a published account, a $15 million verdict was returned.
Comment
Never, never, ever change a record!
One of the larger plaintiff's verdicts I have recently seen in the literature involves a case of record alteration. As we learned in training, mistakes should be lined out with the correct information added and the date of the alteration indicated. With electronic medical records, the changes are noted and dated, even if the clinician doesn't add in the change date. The computer documents the change without further entry effort.
In this case, it appears that a nurse changed vital signs and ventilator settings. The only reasonable assumption is that it was done to cover up data that would otherwise have been incriminating. Then, to add insult to injury, the propofol pump records were either destroyed or discarded; how convenient. I can only imagine the jurors' thoughts as they heard this.
In addition, there were many other changes to the records. So how was this discovered? The records provided to the plaintiff's husband, probably obtained soon after the incident, differed from those obtained by the plaintiff's attorneys at a later date. I can only guess that no one documented that copies of the record were requested and provided to the husband early on, as would have been good medical record practice.
I have seen just such behavior in my own legal practice. What surprises me here is that the case ever went to trial. Maybe the hoped-for verdict was greater than the available policy limits for settlement, and there was no alternative. In every case that I have seen involving record alteration, a settlement was reached. A smart defense attorney knows that he will have little to offer in defense of this egregious behavior, that a jury will have trouble believing anything the defendants say at trial, and that there is a significant chance for a large and punishing plaintiff's verdict.
We will never know if there was real negligence in this case. When considering record alteration as a way to prevent a malpractice loss, remember that once that alteration comes to light—and it often does—facts mean little. —JP
Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.