Medical Malpractice Roundup

  • This week a jury found transplant doctors not liable for a cancer that a transplant recipient most likely developed through a transplanted kidney. The case raises interesting public policy questions. The doctors and hospital are the only ones able to screen the organs and donors for disease, which might suggest liability should lie with them. Furthermore, it would seem liability lying with the doctors would not decrease the supply of donors because the donors’ incentives to donate would remain essentially unaltered. On the other hand, the cost-benefit judgments here are already hard enough to make. The patient was a thirty-seven year old diabetic.
  • Drawing on a real-life case involving sexual abuse by a Delaware pediatrician, Professor Alberto Bernabe wonders whether doctors who have a duty to report suspected misconduct of their peers should face liability (liability lying entirely outside the realm of a doctor-patient relationship) when their failure to speak out results in the abusive doctor’s patients being victimized.

Consumer Product Safety Commission Warns Of Memorial Day Weekend Dangers To ATV Riders

ATV Accidents.jpgLast year, over Memorial Day Weekend, twenty-seven people died in All Terrain Vehicle (ATV) accidents, including two riders under the age of sixteen.
This year, the Consumer Product Safety Commission (CPSC) is issuing a warning to ATV riders to be mindful of the dangers of off-roading.
It is easy to understand why Memorial Day weekend might be especially dangerous to ATV riders. Since it’s the unofficial beginning of the summer season, you probably have a greater number of riders who have just “come of age,” and are riding an ATV for the first time. Couple that with the “rust” that more experienced drivers accumulate over the winter months when they are not riding, and throw in some alcohol, and you have a perfect storm for ATV accidents.
If you own an ATV, you should know that, in April 2009, CPSC began mandating that ATV manufacturers offer free hands-on training for ATV purchasers through dealerships. So you can go to your dealer for a free course on how to operate your ATV safely.

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Do We Tolerate Too Many Traffic Deaths?

That’s the title of an excellent online symposium running in The New York Times’ Room For Debate page.
And the answer of all the esteemed thinkers assembled by The Times is: yes, the carnage on America’s roadways – the 37,000 fatalities a year caused by car accidents – is excessive and reducible.
The different writers’ explanations for why we have so many traffic deaths are fascinating. Tom Vanderbilt, the author of “Traffic: Why We Drive The Way We Do (And What It Says About Us),” points to Canada and a 50 percent decline that it experienced in car accident fatalities between 1979 and 2004. During the same period, the number of American traffic deaths declined by a much smaller percentage. If Canada can do it, why can’t we? Vanderbilt urges us to take an epidemiological approach to car accidents. Rather than seeing them as isolated tragedies, we need to address them as a public health crisis, emphasizing the “three Es” – education, enforcement and engineering.
Adrian K. Lund, from the Insurance Institute of Highway Safety, thinks the answer lies in only one of the “Es” – enforcement. He believes the problem is speeding and we’ll have fewer car crashes only when we begin to meaningfully enforce our speeding laws.
Dan Burden, from the Walkable and Livable Communities Institute, thinks the problem is too many driver-miles. We’d have fewer car accidents, he says, if we redesigned our communities to make them more pedestrian and mass transit-friendly.
When the US leads the Western world in the number of people killed each year in car crashes, and car accidents are the leading cause of deaths for Americans aged 1-34 years old, something needs to be done. And we need to take a look at all the different tacks available to us.

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Arrogance Kills Patients (Why You’re Safer On A Plane Than Under Anesthesia)

airplane panel medical deaths.jpgThe physicist Eugene Wigner, wondering why math works and why it is able to tell us so much about the world, once famously marveled about “the unreasonable effectiveness of mathematics in the natural sciences.” Today, researchers studying medical malpractice are marveling about the unreasonable effectiveness of following simple checklists for medical tasks.
I’ve previously blogged about Dr. Atul Gawande’s new book, “The Checklist Manifesto: How To Get Things Right.” The book concerns the outgrowth of a project that the World Health Organization (WHO) asked Dr. Gawande to work on in 2006. The WHO wanted to find the most cost-effective solution for reducing deaths and complications for surgery. Since whatever solution Dr. Gawanda and his team devised would be implemented around the world, including Third World countries, it couldn’t be an expensive or high-tech quick fix.
Eventually, inspired by checklists that he found used everywhere from construction projects to airline travel, Dr. Gawande and his team decided the single best proposal they could come up with in response to the WHO’s challenge was to implement simple medical checklists. The nineteen-step medical checklist that they drafted has, in a worldwide pilot study, reduced deaths by 47 percent and major complications by thirty-six percent. Britain’s National Institute of Health is planning to mandate the checklist’s use in British hospitals. (American hospitals, by contrast, seem reluctant to adopt the use of checklists). The idea that something as simple as a checklist could be, well, so unreasonably effective in saving patients’ lives really is something to wonder at, in this day and age of twenty-first century technology.
In his book, Gawande appears to marvel at the unreasonable effectiveness of checklists in surgery the same way that Wigner once marveled about the unreasonable effectiveness of mathematics in physics. Gawande’s book shows that checklists work but does not seem particularly interested in why they work.
Is it just as simple as, without the reminder of a checklist, a surgeon might forget to wash his hands? Does a checklist work the same way as a “cheat sheet” that a student might bring into an exam – helping him jog his memory about facts he might otherwise not recall?
Or is there some deeper magic to checklists? Gawande suggests that one possibility is that the checklists open up a more democratic/egalitarian environment in the operating room, where nurses and other personnel feel empowered to speak up and tell doctors that they did something wrong, but he devotes surprisingly little time to investigating this possibility. In my book review, drawing on some aviation history, I suggested that I thought this might be the main reason checklists proved so effective.
So I was excited this week when I read about the experience of Nebraska Medical Center, which, since 2006, has trained its personnel in airline Cockpit Resource Management (CRM) techniques, centering around a “See it, say it, fix it,” approach to patient safety. A 2007 study at Nebraska Medical found that fewer than six months into their CRM training, the percentage of medical staff who “felt free to question the decisions of those with more authority” had nearly tripled – increasing from 29 to 86 percent. Meanwhile patient safety had dramatically improved.
The egalitarian nature of airline crews, whose members are trained to be assertive and speak their minds to the captain, are one reason to feel safer on a plane than under anesthesia. But maybe some things are changing.

What Do Tort Reformers Believe In? (Hint: It’s Not The Free Market)

We’re all familiar with the arguments that trial lawyers are the bane of this country’s existence. We hear that the cost of lawsuits and regulation challenges businesses’ ability to compete and create jobs. What we need, we are told, are caps on damages – limitations on the amount that patients can recover for pain-and-suffering in medical malpractice cases, the elimination of treble damages provisions in consumer protection laws.
It sounds like these complaints from the tort reform movement put them on the side of individual liberty and free markets. But when you take a closer look, it’s obvious how much distance there is between tort reformers and free market economics.
In a recent column, Paul Krugman linked to this old videotaped interview with the late Milton Friedman, the Nobel Prize winning economic adviser to President Reagan, famed for his free market thought and favor of deregulation:

What should be interesting about this interview to many who sympathize with the tort reform movement, is how unabashedly pro-tort law Friedman is. In case you don’t have time to watch the whole interview, Friedman says that we should have less government regulation of business and allow tort law to force business to absorb the cost of its accidents. Friedman, like most of his Chicago school colleagues, including Judge Richard Posner (whom I’ve blogged about before here) favored a regime without much government red tape, where businesses would be forced to behave responsibly by trial lawyers who forced them to internalize the costs of their misdeeds.
Many businesses are able to externalize the costs of what they do on an innocent and unsuspecting public. So, for example, a company may be able to emit smoke from its smokestack without having to pay for the negative effects of its pollution. A legal system that prohibits that noxious pollution and allows the factory’s neighbors to sue the factory helps promote efficiency by forcing the factory to internalize the costs of its pollution. This is how we insure that, on balance, net-net, businesses’ activities are doing less harm than good. The price of the goods that the factory produces may be driven up as a result, but this legal change causes the goods to be priced according to their true cost to society, and thus is efficient in an economic sense.
But it is clear that this sort of legal regime, favored by extremely market-oriented thinkers, is not what the tort reformers endorse. They want to interfere with lawsuits and keep caps on damages. Thus, this week in Congress we saw Republican Senator Lisa Murkowski block a bill that would have amended the Oil Protection Act of 1990 to raise its cap on damages from $75 million to $10 billion. We wouldn’t want a federal law that would force BP to pay for all of the coasts of the oil spill cleanup would we? Think of the poor BP shareholders who might not receive a dividend! Best to let government foot the bill, the same way it did with AIG and the rest of Wall Street.

Study Says Newer Airbags May Be Inferior To Older Model

A new study by the Insurance Institute For Highway Safety, to be published this year in the peer-reviewed journal The Annals of Epidemiology, suggests that the latest model of airbags, available in some cars since 2004 and mandated since 2008, may be reducing crash survivability for belted drivers.
The researchers found that belted drivers had a twenty-one percent greater chance of dying in cars equipped with the newer airbags, compared to belted drivers in cars equipped with the older model airbag. The auto accident fatality statistics were unchanged for drivers who weren’t wearing seat belts.
The researchers did not offer a definitive explanation for their findings. Instead, they conclude that there could be a multitude of explanations for their results, including the possibility that the newer airbag systems, which take into account a number of factors before determining whether to deploy, may not be responding as anticipated in real-life car crashes.
While researchers sort out whether the new airbag design is suboptimal in terms of saving lives, drivers should continue to wear seatbelts and should not deactivate their airbags. These tentative findings suggest only that the newer airbag design may be inferior to the older one, not that drivers and passengers should go unbelted or without airbags. The perennial wisdom that airbags and seat belts save lives in accidents continues to hold true.

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May 17-23 Is National Dog Bite Prevention Week

Dog_Bite.jpgThis week is National Dog Bite Prevention Week. Why should you care? Each year, about 4.5 million people are bitten by dogs, one in five of those dog bite victims requires hospitalization and approximately 30,000 a year require some sort of reconstructive surgery.
Children between the ages of five and nine are among the most likely to get bitten.

If attacked by a dog
, experts advise you to remain calm and still and to “play dead” if you’re knocked down.
Dogs truly are man’s best friend. However, I think that old adage should be reworked a bit. Dogs are their owner’s best friend. And that necessarily means they can be a stranger’s worst enemy.

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Are You To Blame For The High Cost Of Health Care?

doctors drugs lawyers.jpgIf you listen to Republican legislators tell it, medical malpractice lawyers are to blame for the high cost of health care. Frivolous medical malpractice lawsuits drive up doctors’ medical malpractice premiums and force them to practice “defensive medicine” – ordering more tests and examinations than are actually necessary to treat the patient. All of this translates into you paying much more than you should for your health care.
We’ve dealt with those claims before on this blog and found them lacking.
So now there’s a new explanation for the high cost of health care and it’s probably not one you’re going to like. The new theory is: You’re to blame. Yes, you. Stop looking around at everyone else.
As economist/blogger Tyler Cowen explains, a new journal article shows that since 1997, when the FDA relaxed its rules on direct-to-consumer advertising (DTCA), the cost of prescription drugs has gone up threefold. Prior to 1997, broadcast advertising by pharmaceutical companies was much more heavily regulated by the FDA. The 1997 changes meant drug companies were able to spend comparatively more money directing advertisements at the consumer (you), rather than targeting your doctor (the person who writes out the prescription).
This research is really surprising because it flies in the face of a very famous free market economics journal article showing that, when advertising bans on optometry services were abandoned, the price of eyeglasses fell dramatically. Advertising gave consumers access to information that they hadn’t had before, so they were able to shop around for the best prices and eyeglass frames and lenses.
How do we reconcile the famous study of eyeglass prices with the new research suggesting pharmaceutical advertising is driving up the prices of pharmaceuticals? There are many explanations, but it seems “informational asymmetry” is involved. When a consumer is buying eyeglasses, she can tell that she needs them (she can tell that her vision is poor or has declined) and she knows what kind of results the eyeglasses produce (she can see them plain as day). So, in short, she and the eyeglass seller possess a roughly equal amount of information.
Pharmaceutical pills are a little more complex. Most problems have a vague set of symptoms. You can’t really tell if your symptoms are serious enough to need the pills. But you see the advertisement and want the magic pill. And you go to your doctor and pressure him to give it to you.
And we wind up with the cost of prescription drugs tripling in a little over a decade.
Needless to say, I like this theory better than the “medical malpractice lawyers are the root of all evil” theory.

Why You Should Pay Attention To Drug And Product Warning Labels

Warning labels on drugs and other products are often mocked for the extreme caution they recommend and for their obviousness. In fact, there’s a whole host of websites dedicated to mocking warning labels, including the website “Dumb Warning Labels.” (My favorite: “Warning: Product will be hot after heating.”)
One warning that I’ve heard mocked quite a few times is the warning you hear at the end of certain prescription drug commercials that a side effect of the drug may be an increased risk of problem gambling. Ads for the drugs Mirapex and Requip (a medication for restless leg syndrome and Parkinson’s) carry this warning, as seen here:

The ad, and its litany of warnings, probably seems silly, just another vestige of an overly litigious society. People may watch and doubt whether there’s any sort of connection between the drug and gambling and suspect this warning is premised entirely upon some scientist’s conjecture that such drugs may cause such behavior.
But, as I was reminded this week, while reading “How We Decide,” a book on neuroscience, drug and product warning labels are there for our own benefit. Drugs like Requip are called “dopamine agonists” – they activate dopamine receptors in your brain even when your dopamine levels are low.
For many people these drugs are a miracle. For example, Parkinson’s disease is a disorder of the dopamine system that involves the irreversible death of dopamine neurons in the part of the brain that controls bodily movement. A Parkinson’s patient taking a dopamine agonist can see dramatic improvement in his control of his bodily movement because the agonist gets more horsepower out of the few surviving dopamine neurons.
One side effect of this is that the patient’s amped-up dopamine neurons make him more attracted to the “dopamine highs” he gets from gambling. Lehrer, the Rhodes Scholar author of “How We Decide,” tells the story of Ann Klinestiver, a fifty-one year old English teacher who was diagnosed with Parkinson’s and prescribed Requip. Klinestiver, who had never previously gambled, and who had religious objections to gambling, suddenly became a problem gambler. After a year of playing slot machines, Ann had lost more than $250,000 – wiping out her retirement savings.
Klinstiver’s story is not unique. As Lehrer informs us, medical research suggests that as many of 13 percent of patients taking dopamine agonists develop severe gambling compulsions.
So the next time you come across a product warning label or a prescription drug label reciting a litany of possible side effects, ones that seem like a barrage of nonsense, take heed. The labels may actually be there for your benefit.

Bikers Are Getting Older, And More Banged Up

The Boston Globe had this interesting article about a hidden phenomenon: the average of motorcyclists is creeping up (the average rider is now over 40!) and, to add insult to injury, older riders are getting hurt worse in accidents.
Older motorcyclists are especially vulnerable to brain injuries, as the blood vessels on the top of the brain stretch as you get older and, therefore, are more likely to tear when an older biker gets in an accident.

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