I was watching a local news station last night, and they had a story about medical tourism.  There is apparently a quickly growing trend of people visiting foreign countries (primarily India) to have medical procedures performed.  The procedures are suppposedly much cheaper than the same surgeries here in the US.  I really began paying attention when the reporter interviewed a doctor and asked his thoughts about the practice. The doctor said that one benefit of having services performed here was that we had medical malpractice laws to protect patients in case something went wrong.  I was shocked.  A doctor touting the benefits of medical malpractice laws?  You're kidding me, right?  In 2003, when the medical malpractice system came under fire, I don't remember any doctors jumping up to defend the system and the public's rights.   I just remember doctor after doctor talking about how bad the system was and pushing for more limits that have essentially destroyed the system for most victims of medical malpractice.  But I guess it's okay to support the system now when it's a benefit that could help your business.

You can watch the story here.    Hopefully the station will allow us to embed stories in the future.

"IT'S BIGGER THAN AIDS.  IT'S BIGGER THAN BREAST CANCER. IT'S BIGGER THAN AUTOMOBILE ACCIDENTS.  AND YET, NO ONE SEEMS TO REALLY BE AWARE OF THE PROBLEM." 

I couldn't have said it any better myself.  That quote from Dennis Quaid accurately sets forth the problem with medical errors.  Over 100,000 people a year die from medical mistakes, but no one seems to notice.  The Quaids want to change that, and they are using their celebrity to try and raise awareness of the problem.  One of their first stops on the publicity tour was a weekend interview on 60 Minutes.  Their powerful story is below.

Tort reform lobbying groups took an unusual step this week by filing a declaratory action suit here in Austin trying to establish that the 2003 medical malpractice caps on liability are constitutional.  The suit stems from a lawsuit against Corpus Christi doctor John McKeever.  In that suit, patient Adrian Cerny sued Dr. McKeever after Cerny developed a serious infection following surgery.  As part of the suit, Cerny alleged in his pleading that the Chapter 74 caps on medical malpractice damages violated various provisions of the Texas constitution.  Instead of litigating the constitutionality in the Corpus court, Dr. McKeever, tort reform lobbyist group Texas Alliance for Patient Access, the Texas Medical Association,  and the Texas Hospital Association filed suit against Cerny in Travis County asking the Travis County courts to declare that the caps are constitutional.

This is a highly unusual move that I think will ultimately be unsuccessful. Dr. McKeever and the lobby groups filed their suit based on a provision in the act that said the constitutionality of the statute "may" be addressed in Travis County.  The provision is not mandatory.  It is the general rule in Texas that when two suits are filed litigating the same issue, the first suit usually controls, and the second suit must be abated  (there are, of course, exceptions, but none that I think would apply here).  Because it is not mandatory that the constitutionality be challenged in Travis County, I think it is likely that Cerny will file a plea in abatement arguing that the constitutionality is already being litigated in the Corpus suit.  The plea should be granted, and the litigation over the constitutionality should continue in Corpus.

The real question is why use the Cerny case as a test case?  Mike Hull, the lobby groups' attorney, says that he chose this suit because Cerny's lawsuit "has the broadest number of challenges to the Constitution."  But that's not really true.  The pleading by Cerny is not much different than most challenges.  In fact, it may be more limited.  Probably the best challenges to the statute are based on arguments that the statute violates the US constitution.  Cerny doesn't object to the caps on any federal constitutional basis.  Perhaps we'll see in the coming months the real reason that the lobby groups chose this case.

It will be interesting to see how this turns out.  Regardless, we won't have a dispositive answer until the federal courts chime in.

Travis Poling of the San Antonio Express News has an article on the case (and it quotes me).

The American College of Emergency Physicians released its National Report Card of Emergency Medical Services, and Texas received a strong "C" grade.  The state received a "D" in public health/safety, a "D+" in access to care, and a "D+" in quality/patient safety.  But a strong "A+" in medical liability raised the state an entire letter grade to an overall "C."  

It's great to see the medical malpractice reform really helping improve care that Texas patients receive (and, of course, we say that tongue-in-cheek).

Last week, West Virginia Supreme Court justice Larry Starcher railed against West Virginia’s tort reform. In recent years, West Virginia has passed medical malpractice tort reform measures that require plaintiffs to provide pre-suit expert reports saying that the claim has merit. The reforms also have caps on damages.

Because plaintiffs want to avoid these requirements, there is often a fight about whether the claims are medical malpractice claims subject to the tort reform laws. In the recent West Virginia case, the plaintiffs were suing the manufacturer of contaminated sutures and the medical providers that administered them. The court ended up holding that the claims were health care liability claims subject to the act.

In a dissent, Justice Starcher wrote:

I dissent to express my hope that, in the future, the court or the Legislature will recognize the absurd and unconstitutional effects of the (reform) and either strike down or repeal (the reform in its entirety.

Application of the (reform) to the instant case clearly demonstrates the absurdity of the (act), and demonstrates why the Legislature should exercise restraint when it attempts to meddle with centuries-old common law principles.

Sadly, Texas courts have had no trouble finding that the Texas medical malpractice act applies in what would seem absurd situations. The snowball started in 2005 with the Texas Supreme Court’s decision in Diversicare v Rubio, where the court held that the Texas medical malpractice laws applied when a nursing home resident sued a nursing home after the resident was sexually assaulted by another patient (who had a history of sexual assault).

In 2007 alone, Texas appellate courts have used the Rubio case to find that the Texas medical malpractice reforms covered claims by a patient who was sexually assaulted during an exam (Vanderwerff v. Beathard - Dallas court of appeals), by a patient who was injured when the bed she was sleeping in collapsed (Christus Health v. Beal – Houston), by a patient who fell while getting out of bed because the foot of the bed he was using to help himself get up fell apart (Marks v. St. Lukes Episcopal Hospital - Houston), and by a patient suing a doctor for disclosure of confidential information (Sloan v. Farmer - Dallas).

Each of these cases results in a strange anomaly. If a third party visitor to a hospital or doctor’s office is sexually assaulted by another patient or a staff member, that visitor has an assault claim. But a patient is limited to a medical malpractice claim. Similarly, if a visitor goes to see someone in the hospital and is sitting on a bed and it collapses, that visitor has a products liability or premises defect claim. But, again, a patient is limited to a medical malpractice claim. In each case, the stranger receives more protection from the law than the actual patient.

Yesterday’s Wall Street Journal has a heart-breaking story about prescription abuse in U.S. nursing homes. The first three paragraphs of the article say it all

In recent years, Medicaid has spent more money on antipsychotic drugs for Americans than on any other class of pharmaceuticals -- including antibiotics, AIDS drugs or medicine to treat high-blood pressure.

One reason: Nursing homes across the U.S. are giving these drugs to elderly patients to quiet symptoms of Alzheimer's disease and other forms of dementia.

Nearly 30% of the total nursing-home population is receiving antipsychotic drugs, according to the Centers for Medicare & Medicaid Services, known as CMS. In a practice known as "off label" use of prescription drugs, patients can get these powerful medicines whether they are psychotic or not. CMS says nearly 21% of nursing-home patients who don't have a psychosis diagnosis are on antipsychotic drugs.

The root of this problem is staffing. Unfortunately, my grandmother had Alzheimer’s. We placed her in a wonderful facility with an excellent reputation that provided excellent care. Unfortunately, the person in charge of her facility and several other key aides left, and the quality of care dropped dramatically. We eventually moved her to another facility where she stayed until she passed away. I don’t know if the first facility was over-medicating her, but I’ve always had my suspicions.

And this scenario plays out all across the country. Nursing homes, often relying on Medicare or Medicaid payments that seem too low, are unable or many times unwilling to spend the money to hire good caretakers. And the less skilled workers, instead of doing the hard work to care for the residents, take the easy way out by relying on medication.

Perhaps this story can help change some of those trends.

Thanks to the Roanoke Injuryboard website for their thoughts on the story.

Several states, including Texas, have special laws protecting emergency room physicians from medical malpractice litigation.  These protections may include higher burden of proof on the plaintiff or a different standard of care (for example, providing only liability when there is gross negligence). Last week, the Torts Prof Blog outlined an interesting medical malpractice reform proposal being championed by law professor Jeffrey O'Connell. 

Under the proposal, emergency room physicians would receive the benefit of a higher burden of proof and lower standard of care, but only after they made a qualifying early offer to the plaintiff.  The doctor would get a set number of days to offer to pay for all economic damages (but not pain and suffering damages) and a reasonable attorneys' fees (perhaps 10% of the recovery).  If the physician makes the offer and the plaintiff does not accept it, then the physician is entitled to the higher burden of proof.  If the physician makes no offer, then traditional rules apply.

These types of limits are not without precedence.  Under the Texas Deceptive Trade Practices Act, defendants are given a set period of time to make a reasonable offer, and if that offer is rejected then the defendant is entitled to statutory protections.  Similarly, under the  Texas Residential Construction Liability Act, homebuilders and remodelers are afforded statutory protections (such as caps on recovery) if they make a reasonable offer within a set timeframe and that offer is rejected.

If you are at all interested in this concept, we really encourage you to click on the link to the post on the Torts Prof Blog, because the post there has links to other articles with more information.

An anonymous Texas ER doc has a blog post discussing the medical malpractice story of Christopher Jones. Mr. Jones, 33, arrived at a Los Angeles area emergency room complaining of chest pains, where he was told to sit down and wait his turn. After more than three hours, he got up, walked outside, collapsed and died of a heart attack.

The post has some great thoughts on the necessity of so-called defensive medicine. However, some of the comments, apparently from other physicians, are quite chilling.

Thanks to the New York Personal Injury Law Blog for the link.

The Nov. 1, 2007 issue of the New England Journal of Medicine has an article encouraging federal legislation to require pharmaceutical and medical device companies with more than $100 million in revenue to disclose the amount of money and gifts they give to physicians. The bill, entitled the "Physician Payment Sunshine Act," is "about letting the sun shine in so that the public can know" about these relationships, according to one of its sponsors, Senator Charles Grassley.

From the article:

Indeed, the nature, extent, and consequences of physicians' relationships with industry have become one of the most fiercely debated issues in health care today. At the simplest level, such a relationship exists whenever a physician accepts anything from a company whose products or services are related to the practice of medicine. And such interactions are ubiquitous: according to a recent survey, although the frequency and intensity of the ties vary according to physicians' personal and professional characteristics, virtually all physicians (94%) have some type of relationship with industry.

Most commonly, physicians report receiving food and beverages in the workplace (83%) or being given drug samples by a manufacturer's representative (78%). More than one third of physicians (35%) receive reimbursement for costs associated with professional meetings or continuing medical education, and more than one quarter (28%) receive payments for consulting, speaking, or enrolling patients in trials.

From a policy perspective, the debate centers on the overall effect of these relationships on patient care. Although most physicians deny that receiving free lunches, subsidized trips, or other gifts from pharmaceutical companies has any effect on their practices, research has shown that physician–industry relationships do influence prescribing behavior.  After all, if these relationships didn't affect physician behavior in such a way as to increase sales, companies wouldn't spend $19 billion each year establishing and maintaining them.

A recent article in the Texas Observer is the latest writing to address the effects of medical malpractice reform in Texas.  After surveying the number of doctors in the state, the Observer concludes that tort reform has had no effect on helping the rural parts of Texas get access to physicians.  The article states:

The flood of beguiling baby photographs began cascading into mailboxes across Texas as the 2003 fall election drew near. Gracing the cover of a slick brochure, the infant smiled as a stethoscope—held by an unseen but presumably kind physician—was pressed to its chest. "Who Will Deliver Your Baby?" the mailer asked.

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On a Texas map inside the beguiling-baby mailer, blood red marked the 152 counties in Texas that did not have obstetricians in 2003. Rural doctor shortages were kept front and center as the state’s physicians, led by the Texas Medical Association and the Texas Association of Obstetricians and Gynecologists, campaigned for Proposition 12.

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As of September 2007, the number of counties without obstetricians is unchanged—152 counties still have none, according to the Observer’s examination of county-by-county data at the state Medical Board.

Nearly half of Texas counties—124, or 49 percent—have no obstetrician, neurosurgeon, or orthopedic surgeon. Those specialists aside, 21 Texas counties have no physician of any kind. That’s one county worse than before Proposition 12 passed, when 20 counties had no doctor.

The article went on to examine the problem of lack of care and why tort reform hasn't had an effect, and the answer is pretty obvious tha the problem is reimbursement for medical procedures, and not some fear about liability from lawsuits.

The article also addressed recent claims that overall the number of doctors in Texas is increasing since medical malpractice reform passed.  The article noted:

Proposition 12, and the far-reaching changes in Texas civil law that it dragged behind it, was built on a foundation of mistruths and sketchy assumptions. The number of doctors in the state was not falling, it was steadily rising, according to Texas Medical Board data. There was little statistical evidence showing that frivolous lawsuits were a significant force driving increases in malpractice premiums.

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The TMA counts 186 new obstetricians in Texas since Proposition 12 passed, and President Dr. William Hinchey offers that as proof of tort reform’s effectiveness.

No independent study has shown what caused the increase, though Texas medical schools have graduated increasing numbers, by the hundreds, of physicians every year since 1997, the earliest year for which TMB posts data. And the state’s growth probably played some part. According to the U.S. Census Bureau, Texas’ population grew 12.7 percent between 2000 and 2006, compared with 6.4 percent for the country as a whole. The number of obstetricians in Texas increased only 4.27 percent over the same six years, including three years under tort reform.

The article goes on and notes that most of the new doctors in the state are showing up in the areas of the state where the economy is growing the fastest.  For example, Collin County, the state's wealthiest county, had the biggest gains in OBs.  Second was Montgomery County, a rapidly growing county on the outskirts of Houston.

In discussing the programs that the state has established to try and lure doctors to rural areas, the article leaves with this thought:

The seven-year-old Office of Rural Community Affairs gives doctors stipends of up to $15,000 a year for residency practice after medical school in underserved areas. A separate program in the state office uses $112,500 a year in interest from the state’s share of the massive tobacco lawsuit settlement to recruit and retain licensed nonphysicians, such as nurses and physical therapists, in underserved areas. Another $2 million in tobacco money is distributed by the office to small rural hospitals.

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The irony that tobacco-settlement money is put to work year after year sustaining rural health care professionals and hospitals should not be lost on Texas physicians who campaigned for Proposition 12.

The massive tobacco settlement was the work of trial lawyers, the very folks TMA leaders demonized in their quest for cheaper insurance and fewer lawsuits.