Category: Health care news

Traumatic Birth Injury to Lakewood, New Jersey, Infant Results in Settlement for $1 Million Insurance Liability Limits of Defendant Physician.

At 4:00 a.m. on May 24, 2001, the mother was admitted to Labor and Delivery. Initial fetal heart rate measurements were noted to be in the 100-110 beat per minute range. The defendant physician arrived at 4:30 a.m. Shortly afterward, at 4:35 a.m., the fetal monitoring strips became non-reassuring. Oxygen was applied to the mother, and position change was employed. An internal fetal scalp electrode was not applied, and a good portion of the fetal monitoring strips thereafter were uninterpretable.

At 5:05 a.m., due to continuing concerns about the fetal heart rate, the defendant applied a vacuum extractor while the baby was at +2 station, with the vertex in the occiput position. At 5:22 a.m., the baby was delivered with a midline episiotomy under local anesthesia, with Apgar scores of 2/2/5 at 1/3/10 minutes. When the plaintiff was born, resuscitation was necessary, and she was intubated.

The plaintiff was diagnosed with metabolic acidosis and persistent pulmonary hypertension while admitted at the hospital. Additionally, she demonstrated irritability though fisting, clonus and bicycling movements.

Following discharge from the hospital, an MRI of the brain demonstrated findings consistent with the chronic phase of profound asphyxia. The plaintiff suffered from aspiration pneumonia and gastroesophageal reflux and failure to thrive and required the insertion of a gastronomy tube. She then went on to develop a spastic quadriplegia and developmental delay.

The plaintiffs contended that the defendant’s failure to employ an internal fetal scalp electrode was a breach of accepted standards of care, and prevented the defendant from knowing the true status of the baby’s condition, and led to an inappropriate decision to move forward with operative vaginal delivery rather than taking further resuscitative measures during labor and potential cesarean section.

The defense contended that the fetal tracings were intermittently reassuring, that the mother was combative during labor and that the extremely rapid pace of labor made the defendant’s anticipation of imminent vaginal delivery logical, and therefore his decision to forego a cesarean section was within accepted standards of medical care.

John Ratkowitz settled the case after parties and witnesses were deposed and expert reports were exchanged.

To Err is Human, But This is Something Else

In November 1999, the Institute of Medicine (IOM), a branch of the National Academy of Sciences, published a study declaring that a threshold improvement in the quality of health care was urgently needed because medical negligence committed in hospitals in the United States was killing more people annually than motor vehicle accidents, breast cancer and AIDS. Kohn LT, et al, To Err Is Human: Building a Safer Health System, National Academy Press pg. 26 (1999). (Hereafter ‘To Err Is Human”). The impact of that study, and its ‘Jarring” analogy that the annual number of deaths from hospital negligence would be equal to the downing of a jumbo jet every single day, “galvanized the public and health professionals and led to congressional hearings, media exposes, and millions of anxious patients.” Robert M. Wachter, M.D. , The End of the Beginning: Patient Safety Five Years After ‘To Err Is Human,” W4 Health Aff (Millwood) Web Exclusives 534 (2004). (Hereafter ‘The End of the Beginning”).

It is not an overstatement to say that as a result of the IOM study, in 1999 the United States came to the realization that medical mistakes were a problem of epidemic proportions. Id.

A Call for Change

To Err Is Human declared that the health care industry needed to take the following steps to make health care safer:

  • Create leadership roles, research patient safety issues and develop tools and protocols to enhance knowledge of safety issues that exist;
  • Create nationwide mandatory and voluntary error reporting systems so that it could identify and learn from medical errors;
  • Raise safety standards through the use of oversight organizations, professional groups and health care purchasers; and
  • Implement safety systems that enhanced safe practice at the health care delivery level.

Howard Larkin, 10 Years, 5 Voices, I Challenge. To Err Is Human Jump-Started a Movement to Improve Patient Safety. How Far Have We Come? Where Do We Go From Here? 83 Hosp. Health Netw.24 (2009). (hereafter “10 Years, 5 Voices 1 Challenge”).

There was an initial flurry of activity following the IOM report in 1999. Five years after the study was released, the federal government, private foundations, health plans, hospitals and clinics were all investing more in patient safety then they had been in 1999. The End of the Beginningsupra, at 543. Notwithstanding this fact, as early as 2004, there was recognition that efforts to advance patient safety were not moving forward comprehensively enough to be responsive to the problem ld. Studies of specific hospital systems revealed that while some areas of patient safety systems were improving, other were declining due to changing hospital priorities, budgets and philosophies. Daniel R. Longo, OblSb, ScD, The Long Road to Patient Safety: A Status Report on Patient Safety Systems294 JAMA 2858, 2863 (2005). (hereafter ”The Long Road to Patient Safety”).

In To Err Is Human, the IOM called for a 50% reduction in medical errors in five years, but 10 years later it was clear that progress in the area of patient safety was still far short of that goal. Lucian Leape, et al., Transforming Healthcare, a Safety Imperative, 18 Qual. Saf. Health Care 424 (2009). Indeed, one commentator observed that “[s]hockingly modest progress has been made given the impact of the problem, how many people were made aware of it and how many efforts have been made to address it.” 10 Years, 5 Voices 1 Challenge, supra, at 28. ”The current status of hospital safety systems is not close to meeting IOM recommendations.” The Long Road to Patient Safety,supra, at 2858. Data from recent studies measuring safety progress suggests that “patient safety progress is slow, and cause for great concern.” ld.

Why the Loss of Momentum?

Various reasons have been given for loss of momentum in the patient safety movement over the last 10 years. First, there was no organization set up to implement and oversee the plans set forth in To Err Is Human.10 Years, 5 Voices 1 Challenge,supra, at 28. Additionally, the health care industry has displayed a reluctance to engage in recommended error reporting systems. ld. Although we are beginning to see changes, for the most part, payment systems throughout the last 10 years generally did not reward patient safety or penalize unsafe practices. ld. at 27. Finally, “Some of this lack of progress may be attributable to the persistence of a medical ethos, institutionalized in the hierarchal structure of academic medicine and health care organizations, that discourages teamwork and transparency and undermines the establishment of clear systems of accountability for safe care.”Transforming Healthcare, a Safety Imperative, supra, at 424.

A Scathing Review

On Nov. 18, 2010, the New England Journal of Medicine published a study that attempted to quantify the impact of patient safety measures on in-patient hospital admissions. Christopher P. Landrigan, M.D. et al., Temporal Trends in Rates of Patient Harm Resuhing from Medical Care, 363 New Eng. 1. Med. 2124 (2010). (Hereafter Trends in Rates of Patient Harm). The New York Times identifiedTrends in Rates of Patient Harm as “one of the most rigorous efforts to collect data about patient safety” since the publication of To Err Is Human. Denise Grady, Study Finds No Progress in Safety at Hospitals, N.Y. Times, Nov. 24, 2010 at A1

Trends in Rates of Patient Harm examined hospital admissions in a stratified random selection of hospitals in North Carolina between 2002 and 2007. Trends in Rates of Patient Harm, supra, 2124-2125. The study was restricted to adult patients. The authors specifically chose to evaluate the impact of patient safety efforts in North Carolina because that state showed a high level of engagement in efforts to improve patient safety. In spite of this, the study revealed that ”harm resulting from medical care was common, with little evidence that the rate of harm had decreased substantially over a 6-year period ending in December 2007.” ld. at 2130. The review revealed that 25.1% of the patients receiving medical care in the hospitals surveyed suffered from medically induced harm. Id. at 2124-2125. Sixty-three percent of these were entirely preventable. ld.at 2127.

Proposed Law Changes May Further Patient Pain

On Dec. 1,2010, The National Commission on Fiscal Responsibility (NCFR) published a report with suggestions to be pursued by Congress and the Senate to deal with the federal deficit. NCFR, The Moment of Truth, Dec. 1,2010,http://www.fiscalcommission.govsites/fiscalcommission.gov. Several recommendations of the NCFR seek to restrict the rights of redress of patients harmed by medical malpractice, in the name of reducing the federal deficit. There appears to be bipartisan support for creating “safehaven”rules for health care providers who follow best practices of care, for creating a more restrictive federal statute of limitations for all medical malpractice cases, and creating specialized “health courts” to replace the jury system Id. at 29. Some members of the NCFR recommended that the legislature consider the imposition of a federal statutory cap on damages. Id.

More of the Same?

Ten years ago, To Err Is Human announced that the health care industry was “a decade or more behind other high-risk industries in its attention to ensuring basic safety.” To Err Is Human, supra, at 5. The report was so shocking in part because “silence surrounds” the issue of medical malpractice.Id. The goal of To Err Is Human was noble: to break the cycle of inaction in the health care industry. Id. at 3. Action was urged 10 years ago because doctors (not lawyers) finally declared that the status quo was not acceptable and could no longer be tolerated.

It is difficult to imagine the last 10 years’ history of the patient safety movement occurring in any other industry. If 10 years ago jumbo jets were falling from the sky every day and we learned from a study (conducted by the airline industry itself) that the resulting individual tragedies were avoidable if air carriers followed safe practices, citizens would demand change and there would be bipartisan support for government intervention to stop preventable deaths. The idea that thousands of deaths already occurred because of air carriers’ failure to follow safety standards would be considered utterly scandalous. You certainly would not expect people to stand idly by while the planes continued to full from the sky every day for ten more years. If the planes did keep falling, nobody would dream of suggesting that we should reduce airline accountability to the victims who were dying because of preventable errors.

The Consequences of Truth: Compulsory Medical Error Reporting in New Jersey

Excerpted from “The Consequences of Truth: Compulsory Medical Error Reporting in New Jersey,” Medical Malpractice Law and Strategy, Volume 26, Number 9, June 2009, by John Ratkowitz.

NEW JERSEY LEGISLATIVELY MANDATES AN ETHICAL RESPONSIBILITY

A. The statutory and regulatory scheme.

In 2004, the Legislature passed the Patient Safety Act, N.J.S.A. 26:2H-12.23 (PSA). This landmark legislation changed the way medical errors are dealt with in New Jersey by creating a legal duty to immediately disclose medical errors to patients who are harmed by them. N.J.S.A. 26:2H-12.25. There are few states in the nation that require this kind of disclosure. William M. Sage et al.,The Relational Regulatory Gap: A Pragmatic Information Policy For Patient Safety and Medical Malpractice, 59 Vand. L. Rev. 1263 (2006) (noting that New Jersey was one of four states that recently passed legislation requiring patients to be informed when they were the victim of medical errors). Commentators have observed that the PSA has made the communication of healthcare errors a part of ordinary medical life. Edward A. Dauer, Postscript on Health Care Dispute Resolution: Conflict Management And the Role of Culture, 21 Ga. St.U. L.Rev. 1029, 1053 (2005).

Under the PSA, a patient must be informed no later than the end of the episode of care, or, if discovery occurs after the end of the episode of care, in a timely fashion, when the patient is a victim of “a serious preventable adverse event.” N.J.S.A. 26:2H-12.25(d). A “serious preventable adverse event” is any adverse event that is preventable and results in death, loss of body part, or disability or loss of bodily function either lasting more than seven days, or that is still present at the time of discharge. N.J.S.A. 26:2H-12.25(a). In addition to requiring adverse events to be reported to the victims of medical malpractice, the Patient Safety Act also requires health care providers to report medical errors to the Department of Health and Human Services (the “Department”). N.J.S.A. 26:2H-12.25(c).

On January 24, 2008, the Department enacted regulations that gave teeth to the notification and reporting requirements of the Act. As of (a) March 3, 2008, for hospitals, (b) August 30, 2008, for ambulatory care facilities, home health care agencies and hospice providers, and (c) starting March 3, 2009, for nursing homes and assisted living facilities, health care providers have five business days after discovery of a serious preventable adverse event to notify the Department that a preventable adverse event has occurred.N.J.A.C. 8:43E-10.1, N.J.A.C. 8:43E-10.6(b). The notification requires the inclusion of specific categories of information, including: (a) the date and time the event occurred, (b) a brief description of the event, (c) a statement about the impact of the event on the health of the patient, (d) the date and time the facility became aware of the event, (e) how the event was discovered, (f) the immediate corrective actions to facility took to eliminate or reduce the adverse impact of the event on the patient, and (g) what steps were taken to prevent the occurrence of future similar events. N.J.A.C. 8:43E-10.6(c). Failure to comply with these reporting requirements results in a fine of $1,000 a day. N.J.A.C. 8:43E-3.4(14).

Medical providers have 24 hours after the discovery of a serious preventable adverse event to notify a patient that it has occurred.N.J.A.C. 8:43E-10.7(b). Patients are to be notified in person if they are still at the facility or by telephone or by certified mail if they are not. N.J.A.C. 8:43E-10.7(c). Disclosure to a patient must be accompanied by documentation in the patient’s medical chart which indicates: (a) that the disclosure was made, (b) the time, date and individuals present when the disclosure was made and (c) the name of the person to whom the disclosure was made. N.J.A.C. 8:43E-10.7(f). Medical providers failing to disclose a serious preventable adverse event to a patient are subject to a fine of $1,000 if the event was also not disclosed to the Department of Health and Senior Services, but $5,000 if they reported the event to department, N.J.A.C. 8:43E-3.4(15).

B. The Insufficiency of Existing Ethical Mandates to Disclose Medical Errors.

It is significant that when mandating the disclosure of medical errors under the PSA, New Jersey sought only to compel medical providers to do something already ethically required. Under the American Medical Association Code of Ethics, physicians have an ethical obligation to advise a patient when they commit consequential acts of medical malpractice when “a patient suffers significant medical complications that may have resulted from the physician’s mistake or judgment.” Am. Med. Ass’n Code of Medical Ethics A-02 Edition, E-8.12 Patient Information, 77. Similarly, the American College of Physicians Ethics Manual mandates disclosure of errors if disclosure of this information is “material to the patient’s well-being.” Lois Snyder & Cathy Leffler, Ethics Manual, Fifth Edition, 142 Annals Internal Medicine 560, 563. Finally, the Joint Commissions on Accreditation of Health Care Organizations requires that patients be informed of unanticipated results that differ from the expected outcome in a significant way when a medical error occurs at a hospital. Joint Comm’n on Accreditation of Health Care Orgs., Revisions to Joint Commission Standards in Support of Patient Safety and Medical/Health Care Error Reduction 12 (2001).

Disclosure of medical errors is not only ethically mandated, literature supports that it is consistent with the fiduciary nature of the physician-patient relationship, since in most instances, disclosure of errors will be benefit a patient. C.J. Wusthoff, Medical Mistakes and Disclosure: The Role of the Medical Student, 286(9) Journal of the American Medical Association, 1080, 1081 (2001). Disclosure helps gain the cooperation of a patient who has been harmed by an error. Id. Further, understanding the cause of unexpected problems can relieve anxiety about recovery or complications. Id. Finally, some commentators have suggested that since patients need information about errors to make decisions about their medical care, disclosure of malpractice is part of a physician’s duty to provide a patient with informed consent. Thomas H. Gallagher, Wendy Levinson, Disclosing Medical Errors to Patients: a Status Report in 2007, 177(3) Canadian Medical Association Journal 265 (2007).

In theory, physicians agree that they have an ethical obligation to disclose medical errors. One study suggests that between 70 and 90% of the physician population believes that doctors should disclose errors to patients. Kathleen M. Mazor et al., Communicating with Patients about Medical Errors, 164 Archives of Internal Medicine 1690, 1692 (2004). In another study, 97% of the faculty and resident population surveyed indicated that they would disclose medical errors that caused minor harm, and 93% indicated that they would disclose an error causing major harm. Lauris Kaldjian , et al. Disclosing Medical Errors to Patients: Attitudes and Practices of Physicians and Trainees, 22(7) J Gen Intern Med 988-96 (2007).

Regrettably, while physicians are ethically obligated to inform their patients of consequential medical malpractice and studies suggest they intellectually support this principle, theory has not translated into practice. A study revealed that only 24% of residents surveyed reported the medical errors they committed to their patients. Albert Wu, et al. Do House Officers Learn From Their Mistakes? 12 Quality & Safety Health Care 221, 224 (2003). Another study estimated that nationwide, physicians are only disclosing errors to patients about 1/3 of the time. Robert J. Blendon et al., Views of Practicing Physicians and the Public on Medical Errors, 347 New. Eng. J. Med. 1933, 1935 (2002) .

THE GENERAL IMPACT OF COMPULSORY ERROR REPORTING AND DISCLOSURE

A. Compulsory Error Reporting Will Make Significant Contributions to the Improvement of the Quality of Health Care Everywhere.

Mandatory disclosure of medical errors in New Jersey will provide invaluable information useful to medical providers everywhere. First, it will provide information about the scope of the medical malpractice problem. In November 1999, the Institute of Medicine, a branch of the National Academy of Sciences, declared that a threshold improvement in the quality of health care was needed because studies indicated that medical negligence committed in hospitals in the United States were killing more people annually than motor vehicle accidents, breast cancer and AIDS. Kohn LT, Corrigan JM, and Donaldson MS, To Err Is Human: Building a Safer Health System, National Academy Press pg. 26 (1999). (hereafter “To Err is Human”). As alarming as the statistics disclosed in the Executive Summary of this study were, it is significant that the analysis dealt only with deaths caused in hospitals. New Jersey’s mandatory disclosure requirements apply not only to hospitals, but to all health care providers in the state. Not just deaths, but any preventable event that impacts a patient’s health for more than seven days must be reported. Thus, mandatory disclosure of medical errors in New Jersey may provide the government and health care industry with the first accurate picture of the human and economic costs related to medical mistakes.

Beyond acquiring knowledge about the scope of the problem, analysis of the information generated from a statewide policy of compulsory error disclosure will provide the health care industry with the ability to analyze patterns in the data collected to see why system errors occur, and this will help determine what can be done to avoid or minimize certain problems. Surprisingly, such a systematic approach to dealing with medical errors is absent. In To Err is Human, the authors noted that the health care industry is at least a decade or more behind other high-risk industries in its attention to ensuring the basic safety of people it services. Id. at 5. The Institute of Medicine indicated that a multifaceted approach was needed to improve the quality of health care. Id. at 4. One of the changes it called for was mandatory reporting of serious adverse events so that these could be studied. Id. at 102. To date, the failure to disclose medical errors has undermined efforts to improve patient safety. Hebert PC, et al. Bioethics for Clinicians: 23.Disclosure of Medical Error, 164 CMAJ, 509-513 (2001); The Joint Commission on Accreditation of Healthcare Organizations, Health Care at the Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury, pg. 27 (2005). New Jersey’s statewide compulsory error reporting requirement is one of the most significant first steps taken to correct this problem. Clearly, industry experts all over the world will be watching what New Jersey learns on this front.

B. Compulsory Error Disclosure Will Not Necessarily Result in an Increase in Medical Malpractice Filings in New Jersey.

There are few health care systems that enforce a policy of mandatory medical error disclosure. As a result, it is difficult to estimate how the PSA’s compulsory error reporting requirements will impact medical malpractice filings in New Jersey. Nevertheless, studies in smaller systems where this was done demonstrate that the impact of mandatory disclosure on filings may be negligible and perhaps even positive. The Veterans Affairs Medical Center in Lexington, Kentucky, the University of Michigan Health System and a Colorado malpractice insurance company, COPIC, developed programs to fully disclose medical errors while simultaneously attempting to compensate the victims of malpractice if warranted. Disclosing Medical Errors to Patients: a Status Report in 2007, supra, at 266. All of these organizations found that the number of malpractice claims filed either stayed the same or decreased. Id.; Christian J. Vercler, et al., Communicating Errors, 140 Cancer Treatment and Research, 195-213, 204 (2008).

Although seemingly counterintuitive, the idea that compulsory medical error disclosure may not yield more malpractice lawsuits is corroborated by studies that seek to ascertain what motivates patients to sue their doctors. Financial compensation is not the most common reason that people give for filing a medical malpractice lawsuit. In fact, it is fifth on the list, behind (1) a clear admission that a mistake was made, (2) a full explanation of the error, (3) a sincere apology, and (4) reassurances that things are being done so that the error is not repeated. Thomas Gallagher et al, Patients’ and Physicians’ Attitudes Regarding the Disclosure of Medical Errors, 289 JAMA 1001, 1004-1006 (2003). It may very well be that because the PSA’s compulsory error reporting requirements will immediately satisfy the first four of the above desires, some potential lawsuits will not be filed.

THE PSA AND CHANGING THE CULTURE OF HEALTH CARE

An examination of the reasons why health care providers failed to meet their ethical obligation to disclose errors can shed light on how mandatory error reporting will change malpractice litigation because the same forces which discourage the reporting of medical mistakes when they occur likely discourage physicians from taking responsibility for mistakes after a lawsuit is filed.

Health care providers’ failure to fulfill their ethical obligation to disclose medical errors is often blamed on the fear of potential medical malpractice lawsuits. Putting aside the question of whether avoiding being held financially responsible for a mistake is a valid basis to reject an ethical obligation to report it, scholarly articles addressing the subject of why physicians fail to disclose errors suggest motivations besides fear of lawsuits are at play. Notably, despite the fact that there are procedural safeguards in place to prevent statements made in M&M conferences from being used against a health care providers in medical malpractice cases, physicians are still reluctant to discuss medical mistakes in these forums, leading some commentators to conclude that legal liability does not inhibit the discussion of errors in these conferences as much as other factors, such as the social norms of medicine. Wei, Marlynn, Doctors, Apologies and the law: An Analysis and Critique of Apology Laws, 40(1) Journal of Health Law 107-59, 132 (2007).

Beyond M&M conferences, academics have noted that physicians do not disclose errors even when they are permitted to do so anonymously, without fear of retribution:

Id. at 36. (2007).

Some have suggested that the culture of medicine, instilled in physicians beginning in medical school, is responsible for the widespread abandonment of the ethical obligation to disclose errors. Gallagher TH, Waterman AD et al. US and Canadian Physicians’ Attitudes and Experiences Regarding Disclosing Errors to Patients, 166(15) Archives Internal Medicine 1605-1611. (2006). Similarly, it has been hypothesized that the failure to disclose errors is due to a “medical narcissism,” which develops through doctors’ “idealistic, perfectionist projection of themselves” which causes the mere acknowledgment of an error to be “so psychologically damaging to the physician’s sense of self that he or she will go to great lengths to rationalize and obfuscate the facts of the error.” Vercler CJ et al., Communicating Errors, 140 Cancer Treatment and Research 195-213, 206 (2008). (discussing Banja J.D., Medical Error and Medical Narcissism, Jones & Bartlet: Sudbury, MA (2005). According to this theory, a kind of preexisting narcissism drives individuals to become physicians in the first place, and a narcissistic inclination is then supported and encouraged through the medical education process, where residents are encouraged to strive for perfection. Communicating Errors, supra, at 206. Emotional detachment is simultaneously developed as a survival strategy, and the loss of empathy and the goal of perfection combine to present a major barrier to disclosure of mistakes. Id.

There are other aspects of the culture of medicine that contribute to the failure of physicians to disclose errors, including the desire of physicians to remain self-regulated. Doctors, Apologies and the law: An Analysis and Critique of Apology Laws, supra, at 146. Simply put, physicians resent being told how to treat their patients, especially by non-physicians. Id. Furthermore, disclosure of errors chips away at the mask of infallibility that physicians wear. Id. at 147. Infallibility supports two fundamental aspects of the physician-patient relationship. First, it buttresses the physician’s position of authority in the relationship. Id. Second, it instills a sense of certainty in the physician’s treatment recommendations. Id. at 148.

Physicians also resist the disclosure of errors because doing so creates worries about costs to reputation, loss of referrals and risk of litigation. Id. Finally, there are problems of analysis that contribute to physician’s failure to disclose errors because there can be doubt about the cause of a particular outcome. Communicating Errors, supra, at 204.

“The culture of an organization is the nonverbal part of the ongoing conversation among the individuals who comprise the organization.” Edward Dauer, Postscript on Health Care Dispute Resolution: Conflict Management and the Role of Culture, 21 Ga.St.U.L.Rev. 1029, 1044 (2005) (discussing Debra Gerardi, The Culture of Health Care: How Professional and Organizational Cultures Impact Conflict Management, 21 Ga.St.U.L.Rev. 857 (2005)). As one commentator observed, by compelling the disclosure and reporting of medical errors, the PSA is forcing a change in the culture of health care in New Jersey. Postscript on Health Care Dispute Resolution: Conflict Management and the Role of Culture, supra, at 1053. It stands to reason that this health care culture change will impact medical malpractice litigation.

CONCLUSION

The PSA has provisions which prevent disclosures made pursuant to its terms from being used against medical providers in a malpractice case. Any documents submitted to the Department of Health and Human Services are not subject to discovery or admissible in evidence in a civil or criminal hearing. N.J.S.A. 26:2H-12.25(f)(1). Additionally, a statement by healthcare provider advising a patient that he is the victim of a serious preventable adverse event are is not discoverable or admissible in evidence in a civil trial.

Although disclosure of a medical error under the PSA may not be brought to the attention of a jury in a medical malpractice case, it is a mistake to conclude that the compulsory immediate disclosure of a medical mistake will not impact medical malpractice litigation. Disclosure of a medical mistake under the PSA will require health care providers to immediately examine their actions and take responsibility for preventable adverse events of consequence. Not every serious preventable adverse event under the PSA will constitute a meritorious and viable medical malpractice claim. Nevertheless, every meritorious and viable medical malpractice case should meet the requirements of being a serious preventable adverse event under the PSA. Therefore, hereafter, in most medical malpractice cases, a defendant health care provider will have already examined his actions, concluded a mistake of consequence was made, and advised his patient and the state accordingly.

Failing to disclose medical error when they occur will often foreclose a physician from acknowledging the mistake in a subsequent lawsuit. Doctors, Apologies and the law: An Analysis and Critique of Apology Laws, supra, 110-111. At a minimum, if a plaintiff prevails, a defendant doctor can appear cold and unapologetic to the jury. Id. Furthermore, failing to honestly deal with a mistake at its outset can set the tone in a subsequent litigation, turning circumstances involving an honest error into a zero-sum credibility challenge, which unnecessarily escalates the stakes for everyone involved in the lawsuit.

Compulsory disclosure under the PSA should make medical malpractice cases less contentious because in many cases defendants will have already acknowledged and come to terms with the fact that they have committed a consequential mistake. Further, because the cultural and economic pressures that discourage disclosure and reporting of errors are some of the same forces that serve as obstacles to resolving a medical malpractice lawsuit, the PSA’s compulsory error reporting requirements should obviate many unstated motivations medical malpractice defendants have for not taking responsibility for their actions throughout the course of a lawsuit.

In 2003, the American Arbitration Association (AAA) reported that out of the thousands of matters it handled throughout the United States, only 1 involved a claim of iatrogenic injury in a health care setting. Dauer, Edward A., Postscript on Health Care Dispute Resolution: Conflict Management and the Role of Culture, supra, at 1036. There is reason to believe that changes mandated by the PSA may make ADR a more useful tool for medical malpractice defendants.

If the changes in medical culture caused by compulsory error disclosure and reporting make medical malpractice cases in New Jersey less contentious, plaintiffs will not be the only beneficiaries. Ninety-five percent of physicians sued for malpractice report strong emotional responses related to that event, physical reactions or both. Doctors, Apologies and the law: An Analysis and Critique of Apology Laws, supra, at 139. Id. One half reported insomnia and a minority reported the manifestation of physical problems related to being sued for medical malpractice. Id. at 140.

Perhaps the PSA’s error reporting and disclosure requirements will be just what the doctor ordered for patients and doctors who are unfortunate enough to have to go through a medical malpractice litigation. To be sure, many will be watching to see the impact this legislation has on the health care profession in New Jersey.

The Relevance of Never Events in Medical Malpractice Litigation

Excerpted from “Never Events in Medical Malpractice Litigation,” September 2010, Vol. 27, No.126. Medical Malpractice Law & Strategy. By John Ratkowitz and Robert Sanfilipo

The National Quality Forum is a nonprofit organization which aspires to set priorities and goals for improvement in healthcare in the United States. To pursue its mission it established the concept of “Never Events,” a list of serious complications that should never occur in a safe hospital. Arnold Milstein, Ending Extra Payments for “Never Events” – Stronger Incentives for Patients Safety, 360 (23) New Eng. J. Med. 2388, 2388-90 (2009).

On February 8, 2006, President Bush signed the Deficit Reduction Act of 2005, Section 501(c) of Pub. L. 109-171, instructing the Department of Health and Human Services (the Department) to create its own list of Never Events, so that Medicare payments could be decreased when preventable complications occur in hospitals. On October 1, 2008, the Centers for Medicaid and Medicare Services (CMS) identified eight categories of complications for which it would no longer reimburse hospitals if they developed during a hospital admission: foreign objects left in the body after surgery, air emboli, infusion of incompatible blood, falls and traumas, catheter associated urinary tract infections, mediastinitis after coronary-artery bypass grafting, certain infusion associated infections, and pressure ulcers. Sharon K. Inouye, et al., Medicare Nonpayment, Hospital Falls, and Unintended Consequences, 360 (23) New Eng. J. Med. 2390, 2390-92 (2009). This list was later expanded to include poor glycemic control, deep-vein thrombosis or pulmonary embolism associated with knee or hip replacement surgery, and certain orthopedic and bariatric surgical-site infections. Milstein, supra, at 2388. In January 2009, CMS went further and indicated that it would cease payments to hospitals and physicians when surgery was performed on the wrong patient, when the wrong surgical procedure was performed, or when surgery was performed on the wrong side or wrong body part. Id. at 2388. These actions of federal regulators were said to be an effort to “align financial incentives with the quality of care, thereby promoting both quality and efficiency.” Inoye, et al., supra, at 2391.

Major private insurers have decided to follow the lead of the federal government by adopting similar reimbursement denials when patients have been harmed in hospitals through categories of preventable medical errors. Among these insurers are Aetna Inc., Cigna HealthCare, Anthem Blue Cross Blue Shield in New Hampshire, Blue Cross Blue Shield of Massachusetts and WellPoint. Rachel Morgan, R.N., National Conference of State Legislatures, Medicare Nonpayment For Medical Errors, (2008), http://www.ncsl.org/Portals/1/documents/health/MCHAC.pdf. Additionally, in July 2008, CMS contacted all State Medicaid Directors and urged them to adopt policies echoing its denial of payments for Never Events in order to avoid the potential negative fiscal impact that non-payment of Never Events by Medicare might have on states, given the problem of dual eligibility under these plans. Id. Clearly, refusing payment for avoidable medical expenses is a public policy trending towards expansion.

Commentators have questioned the wisdom of Medicare’s policy decision to refuse to pay for Never Events. See Inouye, et al., supra; See also, See also Peter J. Pronovost, et al., The Wisdom and Justice of Not Paying for “Preventable Complications,” 299(18) J. Am. Med. Ass’n. 2197, 2197-99. Even critics of the policy, however, have characterized Medicare’s decision not to reimburse for costs related to leaving objects in the body after surgery as “wise and just.” Id. at 2199. When discussing the propriety of including retained foreign objects as one of the original eight categories of Never Events in its non-reimbursement policy, the Department pointed out that in the field of health care, “there are widely accepted and clear guidelines for the prevention of [these] events.” 72 Fed. Reg. 426,206 (Aug. 22, 2007). Consequently, according to the Department, this kind of mistake “should not occur.” Id.

In 2006, there were 764 instances in which Medicare was billed for care related to retained objects following surgery. Id. Although there is not a comprehensive database that sets forth information about every medical malpractice case filed involving allegations of a retained foreign object, Westlaw does contain a national database of verdicts, judgment and settlements compiled from regional and national jury verdict reporters. However, articles submitted to these reporters are strictly on a voluntary basis. Further, medical malpractice defendants almost always require confidentiality as part of any settlement agreement. Thus, Westlaw’s database is no doubt a very small sample of cases filed and litigated. At the same time, it is also one of the only tools available (to plaintiffs’ lawyers) to examine how categories of certain types of claims are handled from inception to resolution.

A search of medical malpractice cases involving the retention of surgical sponges in Westlaw’s national jury verdict data base reveals that there have been twelve medical malpractice cases involving retained sponges throughout 2008 and 2009. See An v. Shaw, No. 06 L 11100, 2009 WL 5091924 (Ill. Cir. Ct. Oct. 29, 2009); Anonymous Female Patient v. Anonymous Physician, Anonymous Nurse and Anonymous Clinic, 2009 WL 6366089 (Va. Cir. Ct. Oct. 5, 2009); Sneeze v. State of Louisiana, No. 154,568, 2009 WL 6528661 (La. Dist. Ct. Jul. 27, 2009); Edmondson v. Oakwood Healthcare, No. 07-721460-NH, 2009 WL 3699101 (Mich. Cir. Ct. Jun. 4, 2009); Anonymous 31 Year Old Female v. Anonymous OB/GYN And Anonymous Hospital; 2009 WL 6366051 (Ohio Com. Pl. Jun. 1, 2009); Khaulipour v. St. Ann’s Hospital, Kington, and Jiricko, No. 07-CV-001264, 2009 WL 3748727 (Ohio Com.Pl. May 18, 2009); Davis v. Jacobs, No. 06-CV-3409, 2009 WL 1740332 (N.C. Super. Ct. Jan. 16, 2009); Haden v. Kramer, Patrick County Family Practice, P.C. and R. J. Reynolds Patrick County Memorial Hospital, Inc., No. CL07149, 2008 WL 6400289 (Va. Cir. Ct. Oct. 16, 2008); De La Cruz vs. Purdom, No. VC048742, 2008 WL 7165022 (Cal. Super. Ct. Jun. 16, 2008), Young v. Levitt, No. 277895V, 2008 WL 4614405 (Md. Cir. Ct. Jun. 16, 2008); Hanner v. Mark Jones, No. 02-VS-041911, 2008 WL 4614375 (Ga. State Ct. May 19, 2008); Green vs. Sheila Miller, No. CV-2004-1038, 2008 WL 4847169 (Ala. Cir. Ct. Feb. 27, 2008) and Lynch v. St. Vincent Hosps. and Health Servs., No. 49C01-0503-CT-10724, 2008 WL 4276346 (Ind. Cir. Ct. Feb. 28, 2008). In two of the cases, the plaintiffs did not seek compensation from the hospital or medical facility, but rather pursued causes of action exclusively against the treating physicians. In four of the other ten cases, the medical facilities settled without the necessity of a lawsuit. Of the six remaining cases, two of them were settled after suit was filed but prior to trial. The final four cases resulted in two verdicts against hospitals as well as two verdicts in which the hospitals prevailed. Thus, from the sample of the twelve cases appearing in Westlaw’s national jury verdict data base in 2008 and 2009, despite the fact that Medicare and private insurance companies have concluded that retained sponges are entirely preventable events which should not occur and should not be paid for, these cases are still being litigated and defended by hospitals in a negligence setting.

In New Jersey, hospital protocols are admissible and can constitute evidence of the prevailing standard of care applicable to medical providers. Rosenberg v. Tovorath, 352 N.J. Super. 385, 406 (App. Div. 2002). Additionally, practice guidelines published by professional medical organizations have also been deemed evidence of what accepted standards of medical care are. Perna v. Pirozzi, 92 N.J. 446, 463-464 (1983). Similarly, if a statute sets forth the appropriate standard of care that should be followed by a medical provider, that statute is admissible as standard of care evidence. DiGiovanni v. Pessel, 104 N.J. Super. 550, 562-563 (App. Div. 1969). Pronouncements from administrative agencies pertaining to issues of medical care have also been deemed admissible to establish governing standards of medical care. Swank v. Halivopoulos, 108 N.J. Super. 120, 126-127 (App. Div. 1969).

It will be interesting to see how the decision by Medicare and the insurance industry, to declare certain categories of events non-compensable because they should not occur in safe hospitals will impact future medical malpractice litigations. Although commentators have suggested that it is “wise and just” to categorize retained foreign objects following surgery as Never Events, these cases are still being defended and litigated. Given the evidentiary nature of professional practice guidelines and administrative regulations, it is reasonable to expect that public policy decisions regarding the compensability of Never Events and the standard of care in medical malpractice litigations will eventually converge.

Health Care Safety Index – September 2015

Here are healthcare safety issues that have appeared in the news and medical journals throughout the last 30 days or so:

A study published in Pediatrics indicated alcohol abuse is more prevalent in adolescent girls who have less parental supervision.

A study published in the International Journal of Behavioral Nutrition and Physical Activity demonstrated a link between increased screen time and poor grades. Children who spend more than the average 4 hours a day on screen time (TV, computers, internet and games) have poorer academic performance.

An article published in the Lancent Psychiatry concluded that teenagers identifying with the goth subculture are more at risk for depression and self-harm.

Eletroacupuncture was found to be helpful in diminishing hot flashes associated treatment of breast cancer in an article published in the Journal of Clinical Oncology.

The American Journal of Public Health published an article discussing the annual probability of attaining normal weight for obese people. The probability is 1 in 210 for men and 1 in 124 for women who are obese. Meanwhile the probability decreases to 1 in 1290 for men and 1 in 677 for women in people suffering from morbid obesity.

According to a study published in JAMA there is an association between electronic cigarette use and subsequent tobacco smoking.

The Infectious Disease Society of America published clinical practice guidelines for the diagnosis and treatment of native vertebral osteomyelitis in adults.

The Advisory Committee on Immunization Practices released recommendations for the prevention and control of influenza for this year’s flu season. Vaccination was recommended for everyone over 6 months of age. Different influenza A H3N2 and influenza B antigens than were used last year were recommended.

An article published in Pediatrics demonstrated a relationship between antibiotic use and Juvenile Idiopathic Arthritis.

The American College of Physicians issued a position paper regarding the integration of behavioral health care into the practice of internal medicine.

Health Care Safety Index – June 2014

Tim Darraghreported that there are 43% fewer medical malpractice cases being filed in Pennsylvania today than there were ten years ago. The article attributes the decrease two new rules which require (a) medical malpractice cases to be filed in the county where the malpractice took place and (b) the filing of an affidavit of merit at the outset of a case.

Dennis Slattery, for the Daily News, wrote about the New York Judiciary’s adoption of a program formerly run by Judge Douglas McKeon in the Bronx which seeks to reach early settlements in meritorious medical malpractice cases filed against municipal hospitals. The program has resulted in decreased litigation costs and safer care because hospitals have implemented safety programs to learn from the mistakes.

Steven Reinberg, for CBS News, wrote about the rise in the mosquito-borne chikungunya virus. The virus has still not been contracted in the United States, but it is predicted that it could arrive this summer. The virus causes high fevers, joint pain and swelling, headaches and a rash. In rare instances it is fatal.

Andrew Pollack, for the New York Times, reported on how health insurance plans are lowering drug costs by requiring pharmaceutical companies to choose between discounting their drugs or not being covered.

Liz Szabo, for USA Today, discussed the whooping cough epidemic in California, which is related less parents refusing medication and more to the limitations in the vaccines that are being currently used.

Gretchen Reynolds, for the New York Times,reported on a study that revealed that exercising only on weekends is beneficial and makes people healthier than those who do not exercise at all.

Jessica Firger, for CBS News, revealed that scientists discovered that mutations in the APOC3 gene lowered heart attack and stroke risk by approximately 40 percent. The hope is that this could lead to a drug alternatives to statins.

Elsevier discusseda study that demonstrated that an increase in the size of the amygdala in children’s brains correlated with high anxiety levels.

John Von Radowitz, for the London Evening Standard, reported on a study out of Harvard Medical School which indicated that UV rays from sunshine stimulate the production on endorphins, to the point where sun exposure can be addictive.

Health Care Safety Index – May 2014

Kate Thomas, reporting for the New York Times, discussed how Insys Therapeutics, maker of Subsys, a narcotic pain killer, increased sales by aggressively marketing Subsys to physicians for off-label use. The medication was approved by the FDA for use in cancer patients, but just 1% of prescriptions are now written by oncologists.

Melissa Healy, of the LA Times, reported that the United Nations’ leading expert on food and nutrition declared that the international community must focus and mobilize against unhealthy diets that contribute to the global obesity problem.

Sharon Begley of Reutersdiscussed a study by biologists Tony Wyss-Coray of Stanford University and Saul Villeda of the University of California San Francisco which revealed that when old mice were transfused blood from young mice, the aging process in the brain was reversed.

Karen Kaplan wrote about a recent study appearing in JAMA that revealed that while 40 years of clinical trials have unequivocally demonstrated that antibiotics do not help patients suffering from acute bronchitis, 70% of patients treated for that condition are still prescribed these drugs. In fact, antibiotic prescriptions for acute bronchitis have increased since 1996, despite the fact that the Centers for Disease Control and Prevention have been trying to stop this practice for the last 15 years.

CBC reported that a study published in the 1970s suggesting that fish oil lowers the risk of heart disease is fatally flawed and its conclusions are based on faulty research.

Dr. Meera Dalal reportedthat a recent study out of Johns Hopkins University showed no correlation between the consumption of red wine and heart disease, cancer or inflammation.

Peter Eisler, for USA Todayreported on the increasing misuse of prescription drugs, including narcotic painkillers by senior citizens.

CBC News reported that the first man in the U.S. diagnosed with MERS was doing well.

Health Care Safety Index – July 2014

Here are healthcare safety issues that have appeared in the news and medical journals throughout the last 30 days or so:

A study published in the American Journal of Clinical Nutritionconcluded that people who consumed more fruits and vegetables had a 13% lower risk of heart disease.

The CDC reported that people with health insurance are up to three times more likely to obtain recommended preventative care. Preventive services are available for nine of the ten leading causes of death in the United States.

An article published in Neurology concluded that the risk of stroke in patients diagnosed with endocarditis is longer than previously thought. According to the authors of the study, the risk of stroke usually begins 4 months before a diagnosis of infective endocarditis, peaks in the month after the diagnosis, and then normalizes by 5 months afterward.

The FDA issued a safety communication regarding 45 patient deaths and other adverse events related to the use of SentreHEART devices used for left atrial appendage closure.

An article published in Osteoporosis International suggested a link between ischemic heart disease and osteoporosis. The authors concluded that bone health should be considered in patients diagnosed with ischemic heart disease.

The FDA amended the warnings related to NSAID use and the increased risk of strokes and heart attacks.

The American Thoracic Society, European Respiratory Society, the Japanese Respiratory Society, and the Latin American Thoracic Association published new guidelines for the care of Idiopathic Pulmonary Fibrosis.

Updated guidelines for the treatment of Hepatitis C were published in Hepatology by The American Association for the Study of Liver Diseases.

An article published in Emerging Infectious Diseases(and approved by the CDC) revealed the continuing and significant expansion of Lyme disease. In counties throughout the United States between 1993 and 1997, there were 69 counties with high incidence of Lyme disease; this number climbed to 130 counties for the period from 1998 to 2002, 197 counties in 2003 to 2007 and 260 counties in 2008 to 2012. The news is bleaker for northeastern states who saw a 320% jump in counties with high incidence, from 43 counties in the first period to 182 in the last survey.

The CDC published a reportindicating that the United States in in the midst of a heroin epidemic with usage rates climbing from 63% between 2002 and 2013. The biggest increases in use were seen in women and people with higher incomes.

Pauline Anderson, of MedScape News, reported on oral presentations at the Alzheimer’s Association International Conference which demonstrated that physical activity reduces cognitive decline and improves neuropsychiatric symptoms in patients with dementia and may reduce Alzheimer’s disease biomarkers.

A study appearing in Pediatrics raised the question of whether antibiotic use increased the risk of juvenile arthritis.

An article published in PLOS Medicinedisclosed that Glitazones taken by patients for Type 2 Diabetes (including Avandia and Actos) might have the unintended but beneficial effect of decreasing the risk of Parkinson’s disease.

Health Care Safety Index – July to August 2014

Jessica Firger, for CBS News, on increased reports of West Nile Virus in western, central and southern states. Early signs and symptoms of the disease include fever, headaches, body aches, joint pains, vomiting, diarrhea and rash.

Robert Preidt, for CBS News,an article appearing in BMJ that concluded that light to moderate alcohol consumption can result in heart damage.

Nicholas Bakalar, for the NYT,on a study appearing in the journal Circulation that calls into question the necessity of fasting before undergoing blood lipid tests.

Nicholas Bakalar, for the NYT,an article appearing on Obstetrics and Gynecology that concluded that sutures are safer than staples when closing incisions following cesarean sections.

Robert Preidt, for CBS News,study at Harvard which suggested that vasectomies can increase the risk of fatal prostate cancer.

Liz Szabo, with USA Today, that the child “Mississippi baby” previously diagnosed as cured of HIV by the NEJM, was found to have a return of the disease.

Gretchen Reynolds, for the NYT, a recent report from the Center for Disease Control and prevention that concluded that children in the United States are becoming less fit with every passing year.

Stephen Reinberg, for CBS News, on a study that concluded that people who are severely obese (BMI >40) are 2.5 times more likely to die of heart disease, cancer or diabetes.

Elisabeth Rosenthal, for the NYT, on the inexplicable rapid price increases of some generic drugs over the last few years.

Janet St. James, for ABC News, that the Texas Attorney General is investigating Johnson & Johnson for its polypropylene mesh which is used in surgeries for hernia, stress, incontinence and pelvic organ prolapse.

The AP announced that House and Senate negotiators have agreed on a compromise plan to deal with the health care crisis in the veterans’ health program. The plan purportedly authorizes billions in emergency spending to lease 27 new clinics, hire more doctors and nurses and implement measures to make it easier for veterans to obtain outside care when they cannot get prompt appointments.

James Gallagher, of the BBC, discussed the approval of intraoperative radiation therapy by the National Institute for Health and Care Excellence, which reduces the frequency of post-operative tumor removal radiation therapy to a single dose following breast cancer surgery. This is a promising development for women who have discover breast cancer in the early stages.

Dominic Hughes, of the BBC, reported on the latest efforts to reduce all cancer screening to a single blood test.

The editorial board of the NYT published a series of articles supporting the federal legalization of marijuana.

Brendan M. Reilly, M.D., in the NEJM, wrote an interesting piece on the challenges teaching hospitals pose to patient centered care.

Nicholas Bakalar, for the NYT, discussed a recent article in Neurology that indicated that low vitamin D is associated with an increased risk for Alzheimer’s disease.

Catherine Saint Louis, for the NYT, reported on an article in the Lancet that discussed a promising new vaccine for the mosquito borne chikungunya virus.

Joyce Frieden, with MedPage Today, discussed the continuing problems created by misdiagnosis.

Rebecca Kaplan, of Tech Times, discussed a recent study appearing in Cancer Prevention Research in which an analysis of stool samples from patients’ guts proved to be an effective screen test for colon cancer.

Rob Stein, for NPR, wrote about possible changes to the rules about the waiting lists for liver transplants, which currently favors patients living in the Southeast and Midwest.

Kendall Hatch, for the MetroWest Daily News, reported that serious medical mistakes in Massachusetts sharply increased in the last year. Some commentators have suggested that the 70% increase is due to the change in the definition of “serious reportable events” under the law.

Eryn Brown, for the LA Times, reported on how the death of Robin Williams has refocused attention on Parkinson’s disease and depression.

Reed Abelson and Eric Lichtblau, for the NYT, reported on the frustration associated with investigating and prosecuting Medicare Fraud because of the decentralized prosecutorial efforts of private contractors and the backlog of appeals.

California Healthlinereported on a study appearing in BMJ Open Kaiser Health News which revealed that charges related to outpatient blood tests can vary by hundreds and even thousands of dollars with no rational explanation for these disparities.

Health Care Safety Index – January 2014

A stunning expose by Julie Creswell Reed Abelson in the New York Times detailed how a multi-state hospital chain is alleged to have put profits before patients in an increasing trend that is moving medicine away from individual decision making by doctors toward corporate control focused on profits.

Journalist Ryan White wrote about the implications of a report issued by the Dartmouth Atlas Project which found significant variations in care provided to children in different geographic regions in New England, raising questions about overuse of medical services and whether financial gain is impacting the medical decision making of pediatricians.

In this book review, Marcia Angell highlighted the disturbing conflicts of interest that permeate the pharmaceutical industry and medical academia and result in the over-prescription of drugs in a way that is against the interests of patients. Ms. Angell discusses three books: (a) Side Effects: A Prosecutor, a Whistleblower, and a Bestselling Antidepressant on Trial; (b) Our Daily Meds: How the Pharmaceutical Companies Transformed Themselves into Slick Marketing Machines and Hooked the Nation on Prescription Drugs and (c) Shyness: How Normal Behavior Became a Sickness.

Jenny Gold, writing for NPR, discusses the complete absence of price transparency in the field of medicine. Most surgeons do not know the cost of the medical devices they implant into patients, and make decisions based on the fact that they are aligned with a particular manufacturer because they receive some sort of royalty or consulting fee. Meanwhile, hospital systems and purchasing groups sign agreements keeping the actual price of these devices confidential so medical device manufacturers can sell the same product at vastly different prices.

Robert Langreth, writing for Bloomberg, points out how underreporting of adverse events is creating a false sense of security in patients who undergo robotic surgical procedures and otherwise impacting the FDA’s oversight of medical devices.

This article in Elsevier points out how the gap between hospital policy and clinician compliance leads to inadequate infection control practices in hospital intensive care units.

This article by Melisa Healy in the Los Angeles Times points out that in response to a campaign to encourage children to eat better and exercise, childhood obesity rates have stabilized and appear to be poised for a reversal. Unfortunately, this trend appears to be dependent on a family’s education and affluence levels.

Marcia Allen wrote an article discussing why medical malpractice cases that clearly have merit are rejected by attorneys because they are not often not financially viable. Ms. Allen points out how this problem is exacerbated in states that have capped damages in these kinds of lawsuits and how it disparately impacts young children, the poor and the elderly.

Chuck Douglas, writing for the Concord Monitor wrote a short article discussing how statistics undercut the argument that lawyers are driving up the cost of healthcare with medical malpractice cases, pointing out that (a) the number of malpractice payouts on behalf of physicians fell for the eight consecutive year in 2011, and (b) the actual cost of medical malpractice payments amounted to one-eighth of one percent of healthcare expenditures.

Anahad O’Connor, writing for the New York Times published an article highlighting the dangers over-the-counter dietary aids, which account for 20% of hospital visits for injuries to the liver.

Nancy Shute, writing for NPR, discusses the fact that a study performed in Finland and reported in the New England Journal of Medicine demonstrated that surgery for meniscus tears yields no better result than people who underwent fake surgery for the same medical problem.

This article by Denise Grady for the New York Times discusses two recent articles in JAMA that raise concerns about morcellation surgery to remove fibroid tumors from the uterus. The authors question whether this surgery may be linked to abnormal growths and cancer spread when it is performed with the use of an electric device that contains a rapidly spinning blade because it can spray bits of uterine tissue or fibroids around the abdomen like seeds.

This blog post, by Brian Hatten, MD, questions whether joint replacement manufacturers should provide warranties for their products. Currently, only one company, Biomet, provides this kind of consumer assurance.

The World Health Organization reported that four more people have died of Middle East Respiratory Syndrome, a SARS-like disease that is suspected to be associated with contact with camels.