Hey George - tell me about medical malpractice defenses
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Not sure if you read my EHR thread to Mik, but in there I explain how my disease is grossly under detected and we are always trying to change that.
We've been reasonably successful at getting standards bodies to recommend testing of certain high-risk populations, but these are often - even routinely - not followed.
One of the things I've thought about is if a few well-targeted malpractice suits could change the culture, either aimed at individual physicians or at at major health systems.
It would be trivial to find cases where people presented with symptoms that would indicate an Alpha-1 test according to guidelines, but no test was given, the patient went another decade without being treated, and lost a shit ton of lung function. In other words, real damage to a real person because a diagnosis wasn't made.
In your experience, what are defenses like in cases like this? Does an MD have to show he followed some set of official guidelines? Or just some more subjective test of 'typical practice'? Or what?
IOW could we ever win such a suit? The idea wouldn't be to soak a bunch of MDs, rather just to scare the suits at some big health systems to get them to implement better testing regimes.
Thoughts?
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Yeah, I saw your other thread, and commented.
MedMal is a very interesting thing as far as litigation is concerned. I've been sued half a dozen times. All but two were in a case where I was "there" but I didn't render care. In fact, in one case, a needle was left in a patient, and they sued me.
But, I digress...
For a MedMal judgement to go against the doc, in Illinois, at least, three things have to be proven.
- An injury occurred - patient develops a stroke after surgery.
- The injury occurred as a direct result of the actions of the practitioner - surgeon, doing carotid surgery. Patient wakes up in recovery unable to move one side.
These two are pretty simple and obvious. It's number 3 where things get murky.
- The actions of the surgeon were outside the standard of care - during carotid surgery surgeon took too long restoring circulation to the brain, or didn't provide circulation by alternate means.
In the case of #3, that's where expert opinions come into play. It's entirely possible for a bad result to occur, what the plaintiff has to prove is that that result was caused by the doc performing outside the "community standard of care." That "community" could be something as wide as national, or local. If a hospital is isolated in rural Nebraska, and doesn't' have a cath lab, the standard of care for heart attack care is different than that at Northwestern.
Like I said, murky.
The only "official guidelines" are those published in the standards and practices of the department of the particular hospital. They are usually sufficiently vague to be generic. No hospital will tell me what blood pressure I should maintain during carotid surgery. That's up to the expert witnesses.
If sued, the doc will be asked what the practice guidelines at HIS place are. After that, it's in the experts' court.
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But to address your question a bit more specifically.
If someone is diagnosed with A1A, the path for litigation involves proving that FAILURE to perform the appropriate studies caused harm.
That's entirely possible - "You missed my cancer, and now I'm gonna die in 2 months." Failure to diagnose is a big deal - just look at breast cancer.
But..."Yeah, I missed your cancer because getting XYZ test was not warranted because of your (lack of) symptoms. And, even if you HAD complained of symptoms, XYZ test is not in the standard of care."
You've got a high bar there, IMO.
It might be worth the effort, however. Do you have some legal representation on your foundation to offer more advice?
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But to address your question a bit more specifically.
If someone is diagnosed with A1A, the path for litigation involves proving that FAILURE to perform the appropriate studies caused harm.
That's entirely possible - "You missed my cancer, and now I'm gonna die in 2 months." Failure to diagnose is a big deal - just look at breast cancer.
But..."Yeah, I missed your cancer because getting XYZ test was not warranted because of your (lack of) symptoms. And, even if you HAD complained of symptoms, XYZ test is not in the standard of care."
You've got a high bar there, IMO.
It might be worth the effort, however. Do you have some legal representation on your foundation to offer more advice?
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Sadly, the guy who defended me in my trial (which I won, by the way) passed away and I don't have access for a "curbside consultation."
What you're basically trying to do is establish a standard of care for COPD which includes A1A deficiency. Did I get that right?
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Sadly, the guy who defended me in my trial (which I won, by the way) passed away and I don't have access for a "curbside consultation."
What you're basically trying to do is establish a standard of care for COPD which includes A1A deficiency. Did I get that right?
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Get this - we've actually heard this in a focus group about 'why don't you test your COPD patients for AATD'....
A guy said 'I've been seeing this patient for 15 years, if I test him now and he's positive, it'll make me look bad for not testing him earlier'.
You were warned.
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Well we’d like to get MDs to follow the “GOLD” standard for COPD care which says they should all be tested.
Our traditional approach has been ‘education’ but we haven’t moved the needle that much.
@jon-nyc said in Hey George - tell me about medical malpractice defenses:
follow the “GOLD” standard for COPD
Care to 'splain that? Outside my wheelhouse, obviously.
"Now look here, you Baltic gas passer... " - Mik, 6/14/08
The saying, "Lite is just one damn thing after another," is a gross understatement. The damn things overlap.
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Get this - we've actually heard this in a focus group about 'why don't you test your COPD patients for AATD'....
A guy said 'I've been seeing this patient for 15 years, if I test him now and he's positive, it'll make me look bad for not testing him earlier'.
@jon-nyc said in Hey George - tell me about medical malpractice defenses:
if I test him now and he's positive, it'll make me look bad
What? He actually said that?
ETA: That comment does sort of address my "community standard of care" statement.
"Now look here, you Baltic gas passer... " - Mik, 6/14/08
The saying, "Lite is just one damn thing after another," is a gross understatement. The damn things overlap.
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@jon-nyc said in Hey George - tell me about medical malpractice defenses:
follow the “GOLD” standard for COPD
Care to 'splain that? Outside my wheelhouse, obviously.
@George-K said in Hey George - tell me about medical malpractice defenses:
@jon-nyc said in Hey George - tell me about medical malpractice defenses:
follow the “GOLD” standard for COPD
Care to 'splain that? Outside my wheelhouse, obviously.
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@jon-nyc said in Hey George - tell me about medical malpractice defenses:
if I test him now and he's positive, it'll make me look bad
What? He actually said that?
ETA: That comment does sort of address my "community standard of care" statement.
@George-K said in Hey George - tell me about medical malpractice defenses:
@jon-nyc said in Hey George - tell me about medical malpractice defenses:
if I test him now and he's positive, it'll make me look bad
What? He actually said that?
Yep. He said the quiet part out loud. I wonder how many guys are thinking it.
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@George-K said in Hey George - tell me about medical malpractice defenses:
@jon-nyc said in Hey George - tell me about medical malpractice defenses:
if I test him now and he's positive, it'll make me look bad
What? He actually said that?
Yep. He said the quiet part out loud. I wonder how many guys are thinking it.
