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On November 7, 2011, cardiologist Conrad Murray was found guilty of involuntary manslaughter of pop superstar Michael Jackson, who died of cardiac arrest on June 25, 2009. The trial, which lasted six weeks, ended with the jury’s decision that Dr. Murray’s conduct was reckless enough to be viewed as criminally negligent under California’s penal laws. His conviction was for involuntary manslaughter, which at least under California law, is defined as criminal negligence.  The prescribing and unorthodox administering of the powerful anesthetic propofol was the major factor in proving Dr. Murray’s guilt.

California Penal Code 192(b) recognizes involuntary manslaughter as “the commission of an unlawful act, not amounting to felony; or… the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” The prosecutors in this case had to prove that even though the doctor did not intend to kill Jackson with propofol, Murray’s utter disregard for his patient amounted to recklessness.

In a civil case, negligence is a common law tort in which a person is injured due to another person’s carelessness. Criminal negligence as it is defined by California law, occurs when a person (such as a doctor) acts in blatant disregard of the harm which might befall another person (such as a patient), ie: recklessness.

If Jackson’ family decides to sue the doctor in negligence, they would be able to use the evidence already presented in the criminal case. If and when Jackson’s estate brings a negligence case, here is what must be proven:

Duty: In a civil negligence case, it is necessary to prove that the defendant (Conrad Murray) owed a duty to the plaintiff (the late Michael Jackson). Due to the doctor-patient nature of their relationship, it is undeniable that Dr. Murray owed a duty to Jackson and that that duty required Murray to act in a manner befitting his profession.

Breach of Duty/Breach of Standard of Care: After establishing that Dr. Murray owed a duty to his patient, it is then necessary to prove that he breached that duty. Prosecutors had presented a list of ways in which the defendant failed to fulfill his duty to the plaintiff. Prescribing 4 gallons of propofol, and allowing the drug to be administered within Jackson’s home was an unorthodox practice which has been recognized as the doctor’s major breach of duty, and outside of the standard of care: ie what a reasonable doctor would have done under the circumstances.

Causation: After proving breach of duty, prosecutors must argue that the defendant’s negligence directly caused harm to the plaintiff. Combined with other drugs, the propofol prescribed to Jackson caused the singer to go into cardiac arrest. In the criminal case, prosecutors argued that Dr. Murray failed to perform all of the necessary steps of cardiopulmonary resuscitation (CPR); specifically, he performed CPR on Jackson’s bed rather than on a flat surface. These details further prove breach of duty, as well as served to implicate Dr. Murray in causing Jackson’s death.

Damages: Damages in a negligence case amount to the injury or other measurable loss inflicted upon the plaintiff. The damages here were, obviously, the singer’s death. But also, there is an element of pain and suffering which is called survival damages, and Jackson’s loss of earnings over his expected lifetime, which falls under the category of wrongful death damages.

Duty, standard of care/breach, causation and damages are the elements which need to be proven by any plaintiff/estate in a death case, whether in Pennsylvania or in California.

Dr. Murray is due to be sentenced on November 29th, 2011. He could serve up to 4 years in prison for involuntary manslaughter.  

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These days, a good number of doctors have interests in medical technologies: many take part in researching and testing new supplies, machinery, and hardware, lending their expertise to examine practicality and usability.

On some occasions, surgeons may be placing themselves in conflicts of interest: using medical products on their patients that they have either developed, tested, or endorsed themselves— and from which they stand to profit monetarily. Dr. Adam Lewis, a spinal surgeon recently cited in a Wall Street Journal article (October 8, 2011, John Carreyrou and Tom McGinty) for allegedly causing the wrongful death of a patient, used spinal hardware from a company in which he had a vested financial interest. His use of a product he personally developed and endorsed is argued to have lead to his patient’s death from surgical complications.

The Association for Medical Ethics (AME) has addressed the dangers and inherent conflicts of interest involved in using hardware that bears extra monetary profit for doctors. There is an extra incentive for doctors to use these products, either through royalties gained from the manufacturers, or direct profit from partial ownership of the manufacturing company itself. The concern of the AME, as outline in the Wall Street Journal article, is that some doctors, spurred by the promise of more money, will perform surgeries that are not necessarily vital to the care of their patients.

Instances such as Dr. Lewis’ and several other doctors only serve to show the importance of knowing as much about your treatment as possible. Making sure that your medical history is complete and acknowledged, that the best and least harmful treatments have already been attempted and have not sufficed, and that your doctor has your health first in mind, is more important than ever in a world where industry and medicine are growing closely together.

For more from the Association for Medical Ethics, see "The Role of Industry and Academia."

The Wall Street Journal, “Taking Double Cut, Surgeons Implant Their Own Devices.”

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The new Fair Share Act passed earlier this year eliminates joint and several liability. Joint liability now only applies when a defendant is found at fault for not less than 60 percent of the total liability apportioned to all parties. Under the predecessor statute of joint and several liability, a legal doctrine that had ruled Pennsylvania since the Colonial era, a successful plaintiff could pursue a judgment against any one party as if it were jointly liable; it then became the responsibility of the defendants to sort out their respective proportions of liability and payment. Now, collection of the judgment is based on a defendant's actual level of responsibility for an injury so long as that defendant is not found by the jury to be 60 per cent or more negligent vis a vis the other defendants.

But, in the medical malpractice context, the abolition of joint and several liability in fact exposes individual doctors to the risk of greater jeopardy to personal assets. Why? Typically the defendant doctor is sued as a corporation and as an individual actor. Under the old law, a total payment of the verdict (or settlement) would be made on behalf of the doctor and his corporate entity and paid by the defendant doctor’s corporate medical malpractice insurer. Case over. Under the current law, if that doctor is found less than 60 per cent negligent, the plaintiff can only collect on a pro rata portion of the verdict of that doctor’s negligence. In other words, with the enactment of the Fair Share Act, plaintiffs’ counsel clearly have a greater incentive, and legal obligation, for suing physicians individually and keeping those judgments on file in the courts indefinitely where excess verdicts, over and above the carrier’s policy limits, are obtained. Additionally, the Fair Share Act’s intent was to reduce exposure to medical defendants. But consider the likelihood that more defendants will have to be sued in order for plaintiffs’ counsel to try to identify the individual or corporate entity who may ultimately be the defendant who is 60 percent or more responsible for plaintiff’s injuries. That information is simply not known pre-suit, and can only accurately be determined after litigation is commenced and in the discovery portion of the case. More defendants will undoubtedly be sued than they otherwise would have been before the abolition of joint and several liability.

Who may these defendants be? They will be nurses, hospitals policy makers, administrators, and peripheral physicians who would otherwise not have been the focus of the lawsuit, but now will be, under the Fair Share Act.

The stated purpose of the Hospital and Health System Association of Pennsylvania was to get more doctors into the clutches of hospital employment equating to the consolidation and control of medical care by the large hospital corporations. And why wouldn’t a doctor want that? Clearly he or she would because as an employee of the hospital corporation the doctor not only does not have to worry about liability coverage, but the hospital corporation can purchase greater amount of coverage than the individual doctor could have or would have otherwise chosen.

The unrealized and unanticipated effects of the Fair Share Act will be played out in the Commonwealth’s courts for years to come, and unfortunately some physicians may find they do  not like the results.

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The answer is no. Yet knowing the importance of the statute of limitations is key to protecting your rights in a typical personal injury case.

Here's an example. I received a call from a woman who had fallen from the bed of a pick-up truck and fractured her elbow. She went to an emergency room where she was examined and X rays were done. The X rays showed an avulsion fracture at the elbow which did not require casting. She was released, but later developed complications, and came under the care of an orthopedic surgeon, who did surgery on the elbow a few months later. Something went wrong with the surgery and she was left with minor nerve damage in her hand.

She hired an attorney to investigate a potential medical malpractice case. That attorney looked into the case and determined the injuries weren't serious enough to warrant pursuing a medical malpractice case and informed his client as much. The attorney sent her a letter informing her that in  Pennsylvania, the two year statute of limitations required her to file suit against any responsible parties for her injuries pertaining to the medical malpractice case, or she would lose her right to do so,  and that if she wished to do that she would have to find another lawyer.  The problem was the woman was never informed, never knew, or never realized that the same two year statute of limitations that applied to her potential medical malpractice case also applied to the underlying incident that resulted in her fall.

When she called me, twenty six months after her original injury, she told me that she has slipped on the bed of the pick up because there was an oily substance that she had not seen.  This was not investigated by the first attorney that she had hired. But by the time she contacted me the two year statute of limitations had expired. If she had contacted me earlier, I explained to her, I would have pursued the case against the owner of the pick-up truck for neglecting to clean the oil from the bed of the truck and not informing her of the slippery substance which ultimately led to her injuries. She however had no idea that the two year statute of limitations applied to her original incident. She was so focused on the potential malpractice case that she lost sight of the possibility of pursuing a case based upon her original fall.

As lawyers, we assume the public is aware of what the statute of limitations is and what it means,  in any particular case.  It’s part of the language that we speak, and we assume, incorrectly,  that the public uses the same language.  I was surprised that the woman that called me was simply unaware that the time limit had expired on her case. That's one reason I have written this article. The lawyer that was looking into the medical malpractice case never thought of looking into the negligence of the owner of the pick-up truck as a means of seeking compensation for his client’s injuries. That's not to say that the case against the owner of the pick-up is an easy case. It may be fraught with all sorts of difficulties. Nevertheless, the woman who called me is time-barred from even looking into that case because of the two year statute of limitations.

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In early October, Governor Ed Rendell  highlighted the improvements in Pennsylvania's medical malpractice system. A looming issue, however, is whether he will agree to extend the Mcare fund.

In Pennsylvania, doctors and hospitals are required to carry $1 million in medical malpractice insurance. The first $500,000 is through private insurers, while Mcare provides an additional $500,000.

The Pennsylvania House proposed legislation to postpone the phase-out of the Mcare Fund for seven years. The bill was approved by the Senate, and now just requires approval from Rendell. Rendell has expressed his support for the bill, but wants to review the bill’s provisions. The extension of the Mcare Fund has been endorsed by  professional groups, including the Pennsylvania Orthopedic Society and the Pennsylvania Association for Justice, two organizations that are rarely on the same page concerning political issues.

The Mcare Fund was established in 2002 as a way to combat the high medical malpractice premiums charged by insurance companies and paid by physicians and hospitals. The medical malpractice system in Pennsylvania has undergone various changes since the Mcare Fund was put into place in 2002. In his press release, Rendell pointed to an almost 20% decline in insurance rates for the primary level of coverage in the private market. Additionally, there is more competition in the private insurance market with more than 21 new carriers. As a result, more and more doctors and hospitals have an adequate amount of medical malpractice insurance and they are paying less for it.

In 2009, Rendell stated that he would not seek to renew the Mcare Fund and that the reform of medical malpractice was complete. He did not see any need for further improvements. Despite this declaration, the Mcare Fund is likely to be extended. Rendell is said to have some reservations on certain language that returns unspent money to hospitals instead of rolling it over into the next year's fund.  It is clear, however, based on the changes to the system, including the requirement of a certificate of merit and stricter venue rules, that Pennsylvania has succeeded in driving down the rates that insurers have charged doctors and hospitals for malpractice coverage.

Update: Governor Rendell , in fact, on October 22, 2010, vetoed the bill which would have extended the Mcare Fund.

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How important is fasting before a routine blood test measuring cholesterol levels? Very important. You don't want to strictly follow your doctor's recommendations before a medical test? Fine. Then you run a high risk that the test will either be medically meaningless, or will be read improperly by your doctor. 

It's no secret that patient non-compliance with pre-testing requirements as well as patient failure to follow instructions from doctors are major factors in the misdiagnosis of various medical conditions. According to a Johns Hopkins University School of Medicine study, diagnostic errors account for the deaths of 40,000 to 80,000 hospitalized patients annually. Dr. Peter Pronovost  conducted the study. The reason for a misdiagnosis can be the center of debate in a typical medical malpractice claim. And a patient's non-compliance will certainly be raised as a defense. 

How about not hearing from your doctor's office following  a routine test? Does that mean everything is ok? Not necessarily. Your primary care doctor and the specialist who ordered the test may assume each is following up, when in fact they are not. Simply put, patients have to be empowered on their own (and bear some responsibility) for followup on the test results their doctors order. This may sound counterintuitive. After all, we rely on the expertise of our doctors to not only order the appropriate tests but also to diagnose our medical problem, as well as to report the results to us, accurately.

Protecting patients in the hospital setting, empowering patients to be more assertive in their own care, and evaluating medical malpractice claims for purposes of educating doctors in not only the avoidance of  future claims, but also as a means to provide better care, has been the area of study to which Dr. Provonost has dedicated himself. Two recent articles, one in The Wall Street Journal (September 28, 2010 by Laura Landro) and one in The New York Times ( March 8, 2010 by Claudia Dreifus) highlight his views.

Malpractice claims on the basis of misdiagnosed tests are possibly indicative of overloaded primary care physicians and, some would argue, part of deeper problems in our health care delivery systems. Nevertheless, Dr. Pronovost 's take on the issue is to allow and encourage patients to be responsible for their own care in a hospital setting. This comment is from the New York Times article.

Q. WHAT CAN CONSUMERS DO TO PROTECT THEMSELVES AGAINST HOSPITAL ERRORS?

A. I’d say that a patient should ask, “What is the hospital’s infection rate?” And if that number is high or the hospital says they don’t know it, you should run. In any case, you should also ask if they use a checklist system.

Once you’re an in-patient, ask: “Do I really need this catheter? Am I getting enough benefit to exceed the risk?” With anyone who touches you, ask, “Did you wash your hands?” It sounds silly. But you have to be your own advocate.

 

Dr. Pronovost's approach is counter to the trend of the medical community and counter to the  views typically espoused by insurance companies that insure doctors and hospitals. But he certainly provides a refreshing voice. If we are to see the improvement in the delivery of medical care in this country, the reduction of medical mistakes, as well as the reduction of medical malpractice claims, doctors, hospitals and their insurers are going to have to listen to what Dr. Pronovost says, and are going to have to embrace his approach.

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I've written before about what steps to take to be a knowledgeable and informed patient. Here is another list  of pointers entitled For Patients: Ten Safety Take Home Tips  from ECRI Institute which I thought was very good. This is common sense stuff that we all need to remind ourselves of when speaking with our medical providers and being responsible for our own medical care.

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The use of radiation therapy for cancer treatment is designed to kill cancer cells and stop the cancer from spreading. It is a specific and exact therapy where an external beam  is directed to the site of the cancer by a machine called a linear accelerator. The beam is precise in terms of the amount of dose sent to specific areas on the human body for treatment.

Over radiation occurs when the patient gets more than the prescribed dose of radiation over a period of time. The results for over radiated patients  even in seemingly small doses  weakens and kills healthy tissue causing skin and organ damage.

In a remarkable article by Josh Goldstein of the Philadelphia Inquirer it was reported last week that the Hospital of the University of Pennsylvania (HUP) has publicly revealed  that on January 21, 2010 a man being treated  for prostate cancer received radioactive seeds, a similar therapy to that of a linear accelerator, which were incorrectly implanted outside of the intended target site. Similarly, the Department of Veterans Affairs in December 2009 apologized for a prostate-cancer program where veterans were over radiated for six years at its main Philadelphia  VA Hospital via the same method as in the HUP case.

These are not isolated events. In a lawsuit against the Melbourne Internal Medicine Associates, a cancer clinic in Melbourne, Florida, it is alleged that doctors put patients at risk through poor safety procedures as well as lack of oversight of technicians, and then tried to cover up their mistakes. Not only that, but the lawsuit further alleges that the clinic fraudulently over billed Medicare from 2003 through 2008 for the over use of the  high tech and highly reimbursed radiation treatments. The Florida suit was started by a "whistle blower,"  a Fred Fangman, the cancer center's former director of radiation oncology. Federal prosecutors joined in the suit.

Walt Bogdanich of the New York Times has been following this issue. His article dated January 26, 2010 entitled "The Radiation Boom-As Technology Surges, Radiation Safeguards Lag" reports the following.

In New Jersey, 36 cancer patients at a veterans hospital in East Orange were overradiated — and 20 more received substandard treatment — by a medical team that lacked experience in using a machine that generated high-powered beams of radiation. The mistakes, which have not been publicly reported, continued for months because the hospital had no system in place to catch the errors.

Lorraine Raymond, a radiation therapist, raised concerns about overradiation in the treatment of Frederick Stein at a Veterans Affairs hospital in New Jersey in 2006.
In Louisiana, Landreaux A. Donaldson received 38 straight overdoses of radiation, each nearly twice the prescribed amount, while undergoing treatment for prostate cancer. He was treated with a machine so new that the hospital made a miscalculation even with training instructors still on site.

In Texas, George Garst now wears two external bags — one for urine and one for fecal matter — because of severe radiation injuries he suffered after a medical physicist who said he was overworked failed to detect a mistake. The overdose was never reported to the authorities because rules did not require it.

These mistakes and the failure of hospitals to quickly identify them offer a rare look into the vulnerability of patient safeguards at a time when increasingly complex, computer-controlled devices are fundamentally changing medical radiation, delivering higher doses in less time with greater precision than ever before.

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As the health care reform debate intensifies, it is apparent that malpractice reform is not a key part of the President's agenda. Though it certainly is not excluded from the debate. Will medical malpractice protection for health care providers be back doored into a final bill on health care? Are the two issues necessarily linked? What would happen to malpractice insurance premiums if malpractice standards were federalized? (I suggest malpractice insurance carriers would not be pleased because their ability to vary rates based upon specialty and region would be controlled. But that discussion has to be left to a subsequent post).

President Obama has repeatedly made the statement that "no government bureaucrat will come between you and your doctor." He stresses in TV talk shows,  town hall meetings  and in his June 2009 speech to the American Medical Association that "if you like your doctor, you keep your doctor, if you like your insurance company, you keep your insurance company."

Is the president suggesting connecting malpractice reforms to doctors and hospitals  who would follow government guidelines?  This is what he said in the speech:
Now, I recognize that it will be hard to make some of these changes if doctors feel like they're constantly looking over their shoulders for fear of lawsuits. I recognize that. (Applause.) Don't get too excited yet. Now, I understand some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That's a real issue. (Applause.) Now, just hold on to your horses here, guys. (Laughter.) I want to be honest with you. I'm not advocating caps on malpractice awards -- (boos from some in audience) -- (laughter) -- which I personally believe can be unfair to people who've been wrongfully harmed. But I do think we need to explore a range of ideas about how to put patient safety first; how to let doctors focus on practicing medicine; how to encourage broader use of evidence-based guidelines.

Is he suggesting 1) complete preemption of malpractice lawsuits and 2) complete insulation from malpractice liability for a doctor that provides care which meets a government checklist?

It does not appear, yet, that is direction of the debate. One glaring reason? The doctors and hospitals that  provide care which does not adhere to the checklist, even for good reason, may expose themselves to liability. Maybe the checklist becomes outdated and an advancement in clinical diagnosis calls for test on a patient that isn't on the checklist. Is a doctor liable for a bad result by going beyond the checklist even if the checklist is not in the best interest of the patient?

"Evidence based guidelines" mandated by bureaucrats in Washington could end up being a double edged sword for doctors.

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I can't say for sure because I'm a personal injury lawyer and not a doctor. But every time I've had an MRI of my knee, it's because the orthopod thought it was in my best interest to get another look inside the joint.

As fellow trial lawyer Ronald V. Miller Jr. has recently stated in his excellent blog post:

"Let us not pretend that there is no defensive medicine in this country. But we have to take out of the medical malpractice equation three kinds of defensive medicine: (1) tests and evaluation that are actually good for the patients, (2) additional treatment that is motivated, not by fear of lawsuits, but by fear of harm to the patient, and (3) patient induced defensive medicine (i.e. patient seeks tests doctor would not necessarily recommend)."

There is one more reason not mentioned in Mr. Miller's blog post which is also relevant.  The simple fact that medical testing equates to profits for doctors and hospitals is a real issue that we need to deal with when health-insurance reform is discussed. I'm not suggesting that doctors and hospitals shouldn't make money. They should.  And insurance companies are very stingy these days in reimbursing medical providers for the procedures that are billed. But more medical testing on  patients positively affects the bottom lines of medical providers and we, meaning consumers, politicians, and medical providers can't and shouldn't overlook that.

I have tremendous confidence in the orthopedic surgeon that repaired the ACL in my knee. All of the MRIs that I've had on my knee before and after the surgery were performed at a facility affiliated with his hospital.  It was convenient for me and profitable for the hospital that he works for.

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Last week Governor Rendell stated he will not be seeking to renew the state funded subsidy for medical malpractice premiums known as MCARE due to the fact that any "medical malpractice crisis"  is officially over. The Medical Care Availability and Reduction of Error Program, or MCARE provides $500,000 in liability insurance in addition to the $500,000 in coverage medical providers must buy from the private insurance market.

MCARE was designed to provide additional professional liability insurance to doctors and hospitals in Pennsylvania at subsidized, and therefore reduced, premium rates. 

Statewide, there has been a 41 per cent drop in malpractice lawsuits in the last decade. Judicial rule changes and new laws implemented in 2002 have been extraordinarily effective in abating and reducing the malpractice insurance premium rates, Rendell said at a news conference.

The statistics in the report published by the Adminstrative Office of the Pennsylvania Courts, and which Rendell relied upon, make clear that any argument that Pennsylvania is in a medical malpractice crises is simply no longer true. Premiums that doctors and hospitals pay for coverage have gone down. Moreover,today there are 57 carriers writing malpractice coverage in Pennsylvania as compared to 3 in 2002.

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