Week in Review
CASES
Medicus Insurance Company v. Todd
A malpractice insurer sought a judgment that it was not bound to defend a physician who did not fully disclose his claims history. The physician submitted a credentialing application that listed claims from a five year period and this information was copied into a section on the insurance application requesting a complete claims history. The physician testified he did not intend to deceive the insurer and jurors found in his favor. The insurer argued on appeal that by statute an insurer is not required to prove a misrepresentation was intentional to void a policy. The Dallas appellate court upheld the verdict on the basis that Texas courts have repeatedly ruled that intent is a necessary element to void a policy on the basis of misrepresentations even though it is not mentioned in the applicable statute.
NEWS
Government Data Shows Hospital Billing Varies Wildly
Data released by the Centers for Medicare and Medicaid Services shows wide variations in what hospitals bill Medicare, both across the country and within the same area. Government officials speculated that some of the variation may be because some patients were sicker or required longer hospitalizations.
House Approves Scope-of-Practice Bill for Advanced Practice Nurses, Physician Assistants
The Texas House of Representatives has passed a bill that would eliminate the requirement for on-site physician supervision in order for doctors to delegate authority to prescribe and order medical devices. The bill would also increase the number of APNs a physician can supervise and allow physicians to delegate authority to prescribe Schedule II controlled substances.
Malpractice Payouts Concentrated in 5 States
Almost half of the $3.6 billion paid out for medical malpractice lawsuits in 2012 was concentrated in five states. States with the highest payouts included New York, Pennsylvania, California, New Jersey, and Florida.
Texas Children’s Hospital Announces New Sports Medicine Clinic
Texas Children’s Hospital has announced that it will open a state-of-the-art sports medicine clinic in Katy this summer. The facility, which will focus on young athletes, will feature a 3,000-square-foot gym, two radiology rooms, three casting rooms, and 16 exam rooms.
Study: Medicare Does Little to Track Prescribing Patterns
An analysis by ProPublica and The Washington Post found that Medicare does little to track the prescription patterns associated with dangerous or addictive drugs.
Doctor-Owned Hospitals Thrive Under Health Law
Hospitals owned by physicians are earning many of the largest bonuses provided as quality care incentives under the federal health law. The average physician-owned hospital is receiving bonuses of 0.21% more per patient, while the average non-physician owned hospital is losing 0.30% per Medicare patient under the federal health law’s penalty system.
CDC: One-Third of Death Certificates May be Wrong
One-third of death certificates may be inaccurate, according to a study by the Centers for Disease Control and Prevention. The majority of respondents who admitted entering incorrect information stated that the system would not accept the correct cause, while others stated that they were instructed to change what they listed on the certificates.
Week in Review
CASES
In re Methodist Dallas Medical Center
A hospital visitor who filed a premises liability claim after slipping and falling requested a copy of the hospital’s incident report. The hospital objected to the discovery request by asserting the report was confidential under state law and under the Health Care Quality Improvement Act. The visitor argued that these privileges did not apply because she was not a patient and the trial court ordered production of the document. The Dallas appellate court granted the hospital’s request for mandamus relief, holding that these privileges are not limited to reports generated with respect to hospital patients and can apply to the investigation of premises liability claims.
CHCA v. Salazar
A hospital employee filed suit against her employer alleging the hospital’s negligence contributed to her sustaining an injury while maneuvering a patient. In 2012, one month before the case was set for trial, the Texas Supreme Court’s ruling in Texas West Oaks Hospital v. Williams broadened the scope of Chapter 74 with respect to claims involving “safety” and the hospital sought to dismiss the case on the basis that no expert report was served. The trial court granted the employee permission to produce an expert report. The Houston appellate court overruled, finding that Texas West Oaks applied retroactively and that the claim was a health care liability claim because it involved allegations that the hospital did not provide adequate safety to employees offering mobility assistance to patients.
NEWS
NIMH Withdraws Support for DSM-5
The National Institute of Mental Health has withdrawn its support of the soon to be released fifth edition of the Diagnostic and Statistical Manual of Mental Disorders and has announced it will not fund research projects that rely exclusively on DSM-5 criteria. The NIMH is developing an alternative diagnostic system, the Research Domain Criteria that favors a diagnostic approach focused on biological factors rather than clinical symptoms.
Christus Spohn Shoreline Opening New Hi-Tech Operating Theater
CHRISTUS Spohn Hospital Corpus Christi – Shoreline will open a cutting edge operating facility this June that will allow surgeons to obtain the highest resolution images possible while conducting heart and brain surgeries.
Memorial Hermann Opens Third IRONMAN Sports Medicine Institute in The Woodlands
Memorial Hermann has opened a third location for the Memorial Hermann IRONMAN Sports Medicine Institute in The Woodlands. The facility will feature physician services, physical therapy, human performance testing, strength conditioning, and sports nutrition counseling.
Tele-ICU Monitoring on the Rise
About 10% of ICU beds in the US are monitored in part from an off-hospital site and the number of tele-ICUs is rapidly increasing. Satellite-linked video and audio feeds allow distant intensivists to monitor patients 24-hours and work with local physicians to review patient progress or respond to alarms when a local physician is not present. Studies conducted by hospitals testing these systems have reported a 40% decline in mortality, although independent studies conducted by third parties have noted a lack of improved outcomes coupled with increased costs.
US First-Day Infant Death Rate Highest in Industrialized World
A new report from Save the Children found that the rate of first-day infant death in the US is 50% higher than all other industrialized countries included in the report combined. The report’s authors could not determine why the infant mortality rate was higher in the US, but suspect it is related to a high rate of unintended pregnancies and inadequate prenatal care.
Doctors Challenge Cost of Cancer Drugs
A group of more than 120 cancer researchers and physicians issued a research paper challenging the price of certain cancer drugs whose retail prices can run into the six-figures annually. The paper was inspired by New York physicians who stopped prescribing an expensive cancer drug in favor of cheaper alternatives to protest the drug’s price.
Primary Care Physicians Top Specialists in Hospital Revenue Survey
Primary care physicians in 2013 generated $1.57 million for their hospitals, compared to the $1.42 million generated by specialists, marking the first time in the history of the Merritt Hawkins revenue survey that primary care physicians produced more hospital revenue than specialists. Orthopedic surgeons topped the list with $2.68 million in revenue, while neurologists generated the least revenue at $691,406.
Week in Review
CASES
Texas State Board of Pharmacy v. Witcher
A pharmacist licensed to practice in Texas and North Carolina had her North Carolina license suspended after an incident involving alcohol poisoning. Her Texas license was subsequently suspended because of the suspension in North Carolina, where officials refused to reinstate her unless she completed an in-state rehabilitation program. An administrative law judge in Texas recommended a five-year probated suspension after completing rehabilitation in Texas, but the Texas State Board of Pharmacy ruled her license should remain suspended until the restrictions on her North Carolina license were lifted. On appeal to a district court the judge found the Board’s decision was arbitrary and capricious. The Austin appellate court affirmed, concluding that the Board’s policy regarding mandatory reciprocal suspensions amounted to an administrative rule that was never formally and appropriately adopted.
Carpinteyro v. Gomez
The family of a deceased nursing home patient filed suit against her nursing home and attending physician. The 120-day deadline for an expert report fell on a Saturday and the plaintiffs mailed their expert report by certified mail the following Monday. The San Antonio appellate court upheld the trial court’s refusal to dismiss the case, noting that under Texas’ procedural rules when a deadline falls on a weekend the deadline is extended to the next non-weekend and non-holiday. Although provisions of Chapter 74 control where there is a conflict with other law, there is no provision in Chapter 74 for the computation of deadlines and the report was timely filed pursuant to the Texas Rules of Civil Procedure.
Dallas County Hospital District v. Hospira Worldwide, Inc.
After it was sued for breach of contract regarding medical equipment, the Dallas County Hospital District argued that it was immune to suit under a theory of sovereign immunity. The medical supplier argued that the district’s immunity was waived by a statute authorizing breach of contract claims against local government entities. The Dallas appellate court held that the hospital district qualified as a local government entity and that the legislature waived its immunity to breach of contract claims. A related claim seeking equitable relief under a theory of quantum meruit was not included in the statute waiving immunity and was subject to dismissal.
NEWS
Study Finds More Oversight of State Hospitals Needed
An analysis of deaths at state-run psychiatric hospitals found that although the number of deaths is not excessive, these facilities are rarely investigated by any agency other than the hospitals themselves and the state agency that operates them.
Bill to Help El Paso County Find Medical Examiner Passes House
Despite an extensive search El Paso County has been unable to fill its Chief Medical Examiner position for three years, but a bill recently passed by the Texas House authorizing the appointment of a medical examiner with a provisional license might help. Nationwide there are fewer than 500 qualified forensic pathologists, while there is a need for about 1,000. In recent years El Paso medical examiners have performed as many as 500 autopsies a year, double the maximum recommended by a national accrediting entity.
Texas Children’s Hospital First in Nation to Offer PET/MRI Scans
Texas Children’s Hospital is now the first children’s hospital to offer PET/MRI scans. This hybrid imaging technology can produce more detailed imaging than PET or MRI scans alone and exposes patients to much lower radiation doses than a PET/CT scan.
Medicare Seeks to Reduce Number of Patients Placed in Hospital Observation
Under Medicare’s three-day rule coverage for nursing home care is unavailable to patients unless they were admitted for at least three days and time spent while on observation status is not counted. Under a proposed rule Medicare seeks to clarify that patients who are in a hospital for less than 48 hours are considered on observation status, while patients who remain in the hospital longer have to be admitted.
Health Care Spending Growth at Record Low
After several years of rapid growth, health care spending has slowed to record lows. Experts from the Kaiser Family Foundation and the Altarum Institute have concluded that the trend is attributable primarily to the weak economy, but that measures introduced in 2010 as part of the federal health law reforms have also contributed to the slowdown. Between 2009 and 2011 healthcare spending grew by 3.9%, but this figure is expected to increase to an annual rate of 7% by the end of the decade as the economy improves.
CMS Proposes Increased Inpatient Rates
CMS has proposed a 0.8% increase for 2014 for hospitals paid under the inpatient prospective payment system and the long-term care hospital prospective payment system.
Study Calls for Electronic Health Record Standardization
More than 70% of physicians have reported using electronic health records in some form, but these systems cannot always communicate with each other, which often leaves patients responsible for ensuring records are shared between offices. Authors of a study conducted by Harvard Medical School and the RAND Corporation are calling for more-standardized systems that are easier to use and afford patients greater access and control over their health data.
Justice Department Sues Nation’s Biggest For-Profit Hospice Chain
The U.S. Justice Department has filed suit against the nation’s largest hospice chain alleging that it submitted false claims for reimbursement, including billing for patients who were not terminally ill.
Lack of Coordination Among Caregivers ‘Endemic’
Lack of coordinated care among healthcare providers is endemic and may have contributed to as many as 98,000 deaths from medical errors each year. Although hospitalists are available at many hospitals to coordinate care, patients often do not understand the role of staff physicians and are unable to distinguish hospitalists from other providers. Many hospitalists report heavy workloads that can also contribute to miscommunication between providers and patients.
Week in Review
CASES
Chalfant v. Brookdale Senior Living Communities
A nursing home patient recovering from leg surgery filed suit alleging that the nursing home’s staff failed to properly cover his surgery wound before he showered, resulting in an infection. The patient’s suit was dismissed for failure to submit an expert report. The patient argued on appeal that the expert report requirement violated the Texas Constitution’s open courts provision. The Houston appellate court held that the Medical Liability Act was constitutional because it was rationally related to the purpose of discouraging frivolous malpractice suits. The court also rejected an ineffective assistance of counsel argument, noting that the doctrine of ineffective assistance of counsel does not generally extend to civil cases.
Kim v. Hoyt
The husband of a patient who died during surgery filed suit alleging that her surgeon admitted to a fatal surgical error, but later maintained that a pre-existing condition caused her death. The husband sought mental anguish damages for claims that included intentional infliction of emotional distress and fraud. A surgical expert opined that the defendant surgeon’s deception resulted in the husband’s emotional distress. The defendant surgeon challenged the surgeon’s qualifications to opine on emotional distress and asserted that the report was conclusory. The Dallas appellate court affirmed the trial court’s refusal to dismiss, holding that the surgeon’s interactions with patient’s families qualified him to conclude that producing a misleading report regarding the cause of death can result in mental anguish.
Popeney v. Causey
A patient undergoing surgery on her parotid (salivary) gland alleged her facial nerve was inadvertently transected as a result of failures by a neurologist and a technician responsible for monitoring neurophysiological activity to identify nerve placement. The defendant neurologist and technician sought dismissal on the basis that the patient’s expert reports were conclusory. The Beaumont appellate court found that the reports adequately described how a lack of communication between the neurologist and technician resulted in the operating physician mistaking artifact readings for signs of neurological activity and operating on the wrong areas.
NEWS
Baylor Opens High School Health Clinic
Baylor College of Medicine has opened a high school-based health clinic that will offer affordable care for low-income for students at the Raul Yzaguirre School for Success. The clinic will offer sports physicals, a pharmacy, mental health care, as well as immunizations for students’ younger siblings.
State Legislature to Consider Bills to Fight Medicaid Fraud
State legislators are considering several bills this session intended to combat Medicaid fraud. Proposed legislation would strengthen the power of the Office of Inspector General, establish a data analysis unit to detect patterns of fraudulent billing, and implement additional regulatory oversight over corporate-run dental clinics. Bills have also been proposed that would allow providers to challenge decisions regarding withheld payments faster and to appeal administrative decisions regarding Medicaid fraud to district courts.
Neurologist Shortage Expected to Double Within Decade
A shortage of neurologists is expected to double over the next decade, according to a recent study published in the online issue of Neurology. The study’s authors anticipate that by 2025 the nation’s demand for neurologists will exceed the number available by 19%.
Texas Children’s Launches Cloud Storage Pilot
Texas Children’s Hospital has started cautiously experimenting with cloud storage through a pilot program in which only spam has been placed in online storage to date. If the system proves safe and effective the hospital will consider placing data in the cloud.
Closed Windows May Raise Infection Risk in Hospitals
Closing windows in hospital wards may increase the risk of infection, according to a study by British researchers. The researchers used carbon dioxide to represent exhaled breaths and compared the spread of gas when the windows were open and closed. They found that ventilation was better when the windows were open and the risk of infection was four-fold when the windows were closed.
Study Finds Anesthesia Can Increase Breech Delivery Success Rate
The use of anesthesia can improve the success rate of a turning procedure used in breech deliveries and may save money by reducing the incident of caesarian sections, according to a recent study. Anesthesia can relax a patient’s abdominal walls making it easier for providers to turn the baby and allow for a safe vaginal delivery.
Use of Robotic Tools for Hysterectomies Questioned
The American Congress of Obstetricians and Gynecologists has issued a statement challenging the use of robotic tools used to perform minimally invasive hysterectomies. A study published in the Journal of the American Medical Association found that the median hospital cost for robot-assisted surgery was almost $2,000 higher than for laproscopic hysterectomies. Patients who underwent robot-assisted surgery did not experience significant differences in blood transfusion rates or complications, but were less likely to be in the hospital for a period of more than two days than other patients.
Report Claims Hundreds of Immigrants Deported from Hospitals
Over the past five years more than 600 undocumented immigrants have been repatriated to their home countries after receiving care in American hospitals, according to a report from the Center for Social Justice. Hospitals are required to treat emergent patients until they are stabilized and often are unable to obtain reimbursement from the government for any additional care provided.
CMS to Increase Bounty on Medicare Scammers
The Centers for Medicare and Medicaid Services has proposed increasing the reward for reporting Medicare fraud from a maximum of $1,000 to almost $10 million to encourage more people to come forward about corrupt healthcare providers and suppliers. In 2012 more than $4 billion was recovered from Medicare fraudsters, but only $3.5 million of that figure was attributable to tips provided through Medicare’s Incentive Reward Program and only $16,000 was paid out in rewards.
Birth Control Training Rule for Family Doctors May Change
A rule that requires family doctors to learn about all methods of contraception may be replaced, causing some to fear that this training will not be offered by some residency programs. The majority of women consult with family doctors, rather than obstetrician-gynecologists, concerning reproductive health needs and reproductive health advocates are concerned that if residency programs do not require contraceptive training many women will have reduced access to reproductive health care options.
Week in Review
CASES
Tawa v. Gentry
A patient experiencing heart palpitations filed suit against his admitting physician, the physician’s practice group, and a nurse practitioner alleging he experienced a stroke due to the improper discontinuation of antithrombotic therapy. The admitting physician argued that the patient’s expert was unqualified to evaluate an administrative decision not to prevent implementation of another physician’s order. The Houston appellate court concluded that the expert adequately asserted that the defendant physician was responsible for the patient’s overall care and had breached the standard of care by allowing the discontinuation of antithrombotic therapy. The trial court abused its discretion by refusing to dismiss the complaint against the nurse practitioner because the patient’s expert did not demonstrate familiarity with the standard of care for nurse practitioners.
Lo v. Gonzalez
A patient who had undergone spinal surgery filed suit against a radiologist she alleged did not diagnose a failed fusion, resulting in delayed surgical intervention and a period of resultant prolonged pain. The defendant radiologist’s motion to dismiss was denied by the trial court. The Houston appellate court held the report was inadequate because it did not provide any factual basis to conclude that the patient’s pain had increased beyond what she had already been experiencing.
Yagnik v. Hernandez
A physician found liable for the death of a patient challenged the jury’s finding of damages on the basis that jurors committed jury misconduct by averaging their individual findings regarding damages. The Fort Worth appellate court affirmed the trial court’s denial of a new trial on the basis that evidence of jury deliberations submitted by a juror may not be considered. The court also overruled the physician’s assertion that the patient’s expert established as a matter of law that the patient’s nurses were liable for his death. Although the expert opined that the nurses should have contacted the physician about his patient’s condition, this testimony did not establish that the nurses were solely responsible for the patient’s death.
CHRISTUS Health Gulf Coast v. Aetna
Several Houston-area hospitals sought to recover prompt-pay penalties from a Health Maintenance Organization for nonpayment of medical services provided by the HMO’s delegated network. The Texas Supreme Court held that the Prompt Pay Statute, which imposes penalties on HMO’s that do not timely pay for undisputed medical bills submitted by providers, requires privity of contract between providers and HMO’s. The hospitals in this case contracted with a third-party administrator of the HMO’s health plan and did not have a direct contractual relationship with the defendant HMO.
NEWS
Proposal Would Give Physicians Access to Confidential Complaint
Proposed legislation would allow physicians to obtain a copy of confidential complaints made against them. The bill would also require the Texas Medical Board to supply reports it compiles while investigating cases, including the credentials of experts.
Episcopal Diocese Approves Sale of St. Luke’s to Catholic Health Initiatives
The Episcopal Diocese of Texas has approved an agreement to transfer the St. Luke’s Episcopal Health System to Catholic Health Initiatives. As part of the transfer CHI will contribute more than $1 billion to a new Episcopal Health Foundation that will focus on meeting the needs of the area’s underserved population. CHI will also contribute $1 billion toward future investments in the health system. The transfer includes the Texas Medical Center campus, as well as hospitals located in The Woodlands, Sugar Land, Pasadena and The Vintage. CHI has committed to maintaining all current physician models and retaining all employees.
Studies Question Shorter Shifts for Doctors in Training
Efforts to relieve fatigue among medical interns and residents by capping shift hours have been questioned by a series of studies that suggest these efforts have resulted in heavier workloads as interns and residents strive to accomplish more in less time. These studies found that many interns have not been getting significantly more sleep, are not happier, and are not studying more as a result of the shift hour limits.
Quality Improvement Programs Reduce Early Elective Deliveries
A multi-state quality improvement program intended to reduce the number of elective deliveries has led to a significant reduction in early deliveries. A group of 25 hospitals in Texas and four other states that implemented a toolkit called “Elimination of Non-medically Indicated Deliveries Before 39 Weeks Gestational Age” reported that the rate of elective early term deliveries decreased from 27.8% to 4.8% over a one-year period.
Study Finds Complications Can Increase Profits
A study of 12 hospitals in South Texas found that hospitals earn more when surgical mistakes are made. The study found that when surgery goes wrong patients typically remain hospitalized for 14 days rather than three, resulting in almost $40,000 in additional profits when the patient has private insurance. The study’s authors emphasized that they did not find any suggestion of intentional wrongdoing, but noted that hospitals that succeed in decreasing postsurgical complications could experience adverse financial consequences.
ER Visits Underreported When Calculating Readmission Rates
A study conducted at a Boston hospital found that almost one-quarter of patients may return to the emergency department within 30 days from discharge. Patients who are not re-admitted will not be included in readmission rates, which under the federal health law can affect hospital penalties and reimbursement rates.
‘Big Data’ Could Lead to Big Savings in Healthcare
Data analytics used to predict healthcare needs could save between $300 billion to $450 billion in healthcare costs. Improvements in data analysis and data sharing can help reduce the number of repeated tests, predict the onset of expensive diseases to allow earlier and more effective treatment, and help optimize triage and discharge decisions.
Routine HIPAA Audits Expected to Commence Soon
Investigations into HIPAA compliance will no longer be initiated only by complaints and self-reported breaches. A pilot audit program for HIPAA compliance is already underway and routine audits are expected to commence not long after the pilot concludes in September of 2013. The audit process will involve requests for documents related to privacy policies and workplace training followed by site visits and interviews of key personnel. The Office of Civil Rights will use auditor’s reports to determine what types of technical assistance should be developed and whether to conduct compliance reviews.
Lawyer Who Rejected $8 Million Settlement Wins $130 Million Verdict
A New York attorney who declined an $8 million settlement on behalf of his clients won a $130 million verdict after a third trial of the case. The plaintiffs in the medical malpractice case lost the first trial in 2009 but obtained an order for a new trial that resulted in a hung jury last year. The suit involved allegations that errors during delivery caused the child to develop cerebral palsy.
Medical Quiz #17-Answers
This performer’s name became linked with his art. He was a rabbi’s son who also sought to expose fraudulent spiritualists and psychics. Several days before his death, he experienced abdominal pain after trauma to the area, but ignored his symptoms and carried on with the performance that would be his last. Afterward, he was taken to the hospital, where he subsequently died. He received a posthumous star on the Hollywood Walk of Fame.
- Who is the famous patient?
- What was the cause of death?
ANSWER:
Houdini, the great escape artist and magician, was born Erick Weisz on March 24in Budapest, Hungary, and raised in Wisconsin. The man who had performed many death-defying stunts died of peritonitis due to a ruptured appendix.
He claimed he could withstand punches to the stomach. One evening, in Houdini’s dressing room before a performance, a young man decided to test that claim by delivering several blows to Houdini’s abdomen before he could brace himself. Though in severe pain, Houdini went on with the show. Later diagnosed with acute appendicitis, he declined surgery and died on October 31at age 52. He received a posthumous Walk of Fame star on that date in 1975.
Week in Review
CASES
Lindsey v. Adler
A patient filed suit pro se alleging that she was injured by an injection she received during her scar removal treatment. The defendant physician and nurse moved to dismiss on the basis that no expert reports were filed within the 120-day deadline. Prior to the hearing the patient amended her pleadings to remove claims of malpractice and to allege negligence, assault and intentional infliction of emotional distress. The Dallas appellate court upheld the trial court’s dismissal of the claim, holding that the facts alleged established the lawsuit was a health care liability claim subject to Chapter 74.
Cervantes v. McKellar
Plaintiffs in a health care liability claim filed notice of an accelerated appeal 78 days after their claim was dismissed due to lack of an adequate expert report. The Texarkana appellate court held that it lacked jurisdiction to hear the plaintiffs’ appeal because the notice of appeal was not filed within the 20-day filing deadline or within an additional 15-day grace period. A motion to reconsider filed with the trial court did not impact the filing notice deadline for an accelerated appeal.
Avila v. Jimenez
Plaintiffs filed suit alleging that a defendant physician’s negligence contributed to a patient dying from a fat embolism following surgery. The defendant physician sought dismissal on the basis that the plaintiffs’ expert reports did not mention the defendant physician by name. The Corpus Christi appellate court upheld the trial court’s refusal to dismiss. The Court concluded that because the plaintiffs’ expert opined that the patient should not have been operated on in an ambulatory surgical center, or should at least have been observed overnight, the defendant physician’s care was adequately implicated in the report.
NEWS
Houston Health Care Providers Join Health Information Exchange
Twenty-five health institutions and clinics have contracted to participate in a Health Information Exchange that will permit health care providers to electronically access patients’ records from other facilities. CHRISTUS Health and Legacy Community Health Services are the first to begin exchanging patient health histories through the system which is projected to include up to 14,000 physicians and 130 hospitals.
Sextuplets Delivered at Texas Children’s Hospital
A Houston woman has given birth to sextuplets. The three boys and three girls, who were delivered at 30 weeks, are in stable condition in the Texas Children’s Pavilion’s neonatal intensive care unit.
HISD Board Approves Creation of Baylor College of Medicine-affiliated Middle School
The Houston Independent School District has approved the creation of the Baylor College of Medicine Academy at Ryan. The new magnet middle school will feature curriculum focused on the health sciences. The school will be aligned with the Michael E. DeBakey High School for Health Professions, which the college and school district have operated jointly since 1972.
79-Year-Old Cardiologist Sentenced to 7 Years for Fen-Phen Fraud
A 79-year-old Florida cardiologist has been sentenced to 7 years in prison for fraud. He was accused of receiving compensation in exchange for falsely certifying that patients seeking to recover from a Fen-Phen settlement fund had sustained heart damage.
‘Robot Doctors’ Effectiveness Questioned
While health care innovations such as the daVinci robotic surgery system are promoted as promising alternatives to traditional surgery, some have questioned whether the cost of cutting edge technology is warranted by the outcomes. A study of hysterectomy procedures performed with the daVinci system found that the outcomes were no better than with conventional surgeries, but increased costs by over 30%. Similarly, proton beam therapy for prostate cancer has been found to be no more effective than less costly conventional alternatives.
Hospitals Question Fairness of New Medicare Rules
Under the federal health law reforms hospitals that experience large numbers of readmissions can face steep penalties as an incentive to improve patient outcomes. Some health care experts and executives have objected that this policy unfairly targets hospitals that treat the sickest patients and patients who face the greatest socioeconomic challenges.
Lawyers, Doctors Partner to Assist Patients
Medical-legal partnerships between attorneys and health care institutions provide an opportunity to improve patient health care by offering free legal advice to resolve issues that can contribute to stress and anxiety that could negatively affect a patient’s health. In Ohio, Akron’s Community Legal Aid is in the process of studying whether providing an on-site attorney to respond rapidly to patients’ concerns can measurably improve patients’ health outcomes.
Mortality Rate at Isolated Rural Hospitals Rising
Between 2002 and 2010 the mortality rates at Critical Access Hospitals—medical providers located in isolated regions supported by federal funding—increased while during that same period mortality rates at other hospitals steadily fell. Researchers have suggested that this trend may be attributable in part to a lack of technology, specialists, and special treatment by the government, which does not require that these hospitals to report performance evaluations to Medicare.
Jury Awards Record $524 Million Verdict in Hepatitis C Case
A Nevada jury has awarded a verdict totaling $524 million in a case in which two of the three plaintiffs alleged they contracted Hepatitis C as a result of treatment by a physician who contracted with the defendant health insurer. The verdict included $500 million in punitive damages.
Struggling Hospitals Forgo Malpractice Coverage
Several of the most troubled hospitals in New York, as well as some in other impoverished parts areas, have started operating without malpractice insurance. Some of these hospitals had saved money to cover liabilities, but have since exhausted their malpractice reserves. One hospital has already closed its obstetric practice, in part due to concern over potential litigation.
Week in Review
CASES
Sherman v. Healthsouth Specialty Hospital
A woman who fell from her wheelchair while being transported home from the hospital filed an ordinary negligence claim against the provider. After the lawsuit was dismissed for failure to file an expert report, the plaintiff appealed on the grounds that her complaint did not involve medical care. The Dallas appellate court affirmed on the basis that under the Texas Supreme Court’s Williams decision a claim against a health care provider involving safety does not have to be directly related to health care. The Court also rejected plaintiff’s argument that the doctrine of res ipsa loquitur—an evidentiary rule allowing jurors to infer negligence when the cause of injury is clear—did not eliminate Chapter 74’s procedural requirements.
Fortner v. Hospital of the Southwest
After undergoing emergent surgery, a cardiac patient reported vision loss that progressed to complete blindness. The patient sued multiple health care providers and health care entities alleging a failure to timely respond to his reports of vision loss. The trial court dismissed the case on the basis that the expert reports did not adequately address causation. The Dallas appellate court reversed, concluding that reports from a pulmonary critical care physician and a neuro-ophthalmologist adequately alleged that the health care providers’ failure to timely respond to the patient’s anemia and hypotension resulted in his injuries.
NEWS
Bill to Protect Psychiatric Patients Passes Senate
The Texas Senate passed a bill intended to provide additional safeguards for patients at state psychiatric hospitals. The bill would require direct care workers to undergo federal background checks and would permit hospital investigators to be named commissioned peace officers authorized to legally question providers suspected of committing abuse, neglect or exploitation.
Memorial Hermann Plans Pearland Hospital
Memorial Hermann plans to open a 64-bed hospital in Pearland by 2015. The Pearland campus will also feature a 24-hour emergency department and a center for adult and pediatric primary care, sports medicine, and rehabilitation expected to open next year.
Medicare Stops Paying for Molecular Diagnostics Tests
Medicare’s concern over payments for certain molecular diagnostic tests has resulted in uncertainty and missed payments. In the past, reimbursements were set by the cost of each discrete step in the testing process, a method vulnerable to bill padding. Medicare has since delegated reimbursement rates for these tests to local Medicare carriers, many of which have stopped making payments while attempting to determine appropriate reimbursement rates.
UC-Irvine to Pay $1.2M to Settle Whistleblower Claim
The University of California has agreed to pay $1.2 million to settle a whistleblower claim alleging that it permitted certified registered nurse anesthetists and residents to administer anesthesia while the supervisory anesthesiologist was in another facility in violation of federal regulations.
Brazilian Doctor Accused of Killing Patients to Free Up Beds
A Brazilian doctor accusing of killing at least seven patients to free up beds in a hospital’s ICU may have killed as many as 300 people. The doctor and members of her medical team are accused of administering muscle relaxants and lowering patients’ oxygen supply to induce death by asphyxia.
Disability Claims Steadily Climbing
The number of Americans claiming disability benefits from the government has reached 14 million after doubling every year for 15 years. Some attribute this trend to Congress’ decision in 1984 to expand the definition of disability to include conditions that are debilitating but not easily tested for such as depression and chronic pain.
Risk Score Predicts Hospital Readmissions
A predictive score based on hospitalized patients’ hemoglobin and sodium levels and similar factors identified almost one-fifth of patients as high risk for potentially avoidable readmissions within 30 days with a “fair” level of accuracy, according to researchers.
Only 11% of Hospital, Physician Pay Performance-based
Only 11% of commercial payments made to hospitals and physicians were tied to providers’ performance or how well they delivered care and reduced waste, according to a report from the Catalyst for Payment Reform. The study found that 43% of value-based payments were in the form of bonuses while the remainder place hospitals and physicians at financial risk if they do not meet quality and cost goals.
Reducing Resident Hours May Not Impact Error Rate
Long shifts and a lack of sleep among residents have long been a cause of concern, but recent research suggests that restricting residents’ hours may inadvertently lead to missed educational opportunities and a consequential increase in errors.
Week in Review
CASES
Texas Health and Human Services Commission v. Advocates for Patient Access
Patient advocates filed suit against the state seeking to invalidate a rule requiring that a relative accompany Early and Periodic Screening, Diagnosis and Treatment patients under 15 in order to receive Medicaid coverage for transportation costs. The advocates allege the state stopped permitting parents to authorize a non-relative to accompany their children after a perceived overutilization of the service, impeding patient access to treatment. The Austin appellate court found that there was sufficient evidence presented to support a temporary injunction against enforcement of this rule.
Desrochers v. Thomas
A plaintiff whose case was dismissed pursuant to a no evidence motion for summary judgment appealed on the basis that her request for additional time for discovery was improperly denied and that the court erred in granting summary judgment. The San Antonio appellate court affirmed the trial court’s decisions, noting that the plaintiff failed to comply with an order to present an expert for deposition and was properly refused additional discovery time. The Court also noted that the plaintiff did not timely respond to the summary judgment motion and dismissal was appropriate.
NEWS
Texas Lab Loses Deadly Virus
The Galveston National Library has lost track of one of five vials containing the deadly Guanarito virus. The Venezuelan virus causes hemorrhagic bleeding, similar to the Ebola virus, and can infect humans but typically only spreads among Venezuelan rodent populations. Officials suspect the vial may have been inadvertently destroyed through a clerical error and do not believe a security breach occurred.
CHRISTUS Building Medical Plaza in San Antonio
CHRISTUS Santa Rosa Hospital is building a $12 million medical-office complex in San Antonio. The new facility will house physicians and medical providers, including the CHRISTUS Santa Family Health Center, a patient-centered medical home.
CHRISTUS’ New Braunfels Hospital Designated Trauma Facility
CHRISTUS Santa Rosa — New Braunfels has been designated a Level IV Trauma Facility by the Texas Department of State Health Services. This designation authorizes the hospital to stabilize seriously injured and critically ill patients on a 24-hour basis.
Outlook for Cardiac Arrest Survivors Better Than Believed
The odds of survival for cardiac arrest patients resuscitated in a hospital setting have increased significantly over the past decade and are higher than anticipated, according to a recent study. The study suggests 22% of patients whose hearts stop while in the hospital will survive through discharge, compared to 14% a decade ago. Among those who are successfully resuscitated, 60% are likely to survive at least one year.
Minimally Invasive Surgery Could Save $14 Billion
A study of six surgical procedures found that minimally invasive alternatives could have saved $14 billion in 2009. This figure represents lower costs associated with some of the procedures as well as shorter recovery periods that translate to less worker absenteeism. Procedures evaluated include coronary revascularization, uterine fibroid resection, prostatectomy, peripheral revascularization, carotid revascularization and aortic aneurysm repair.
Harris County Receives Mixed Health and Wellness Rating
Harris County received a mixed rating for health outcomes among Texas counties evaluated by the Robert Wood Johnson Foundation. Harris County ranked 70 out of 232 counties for low birth weight, and the number of poor physical and mental health days. The county ranked 132 for health factors that include physical inactivity, children in poverty, and the number of uninsured.
Report Finds Nurses, Midwives Play Important Role in Improving Health Outcomes
Nurses and midwives can play a critical role in reducing the risk of cardiovascular diseases, cancers, chronic respiratory diseases, and diabetes, according to a World Health Organization report. The report encourages nursing schools to offer curricula emphasizing the valuable role nurses can play in encouraging healthy lifestyles.
Group Appointments Could Ease Physician Shortage
A growing number of people are participating in group medical appointments. During these sessions physicians respond to questions from patients with a common condition, such as diabetes, and share information about their health care issues.
SCOTUS Hears Arguments on ‘Pay to Delay’ Generic Drug Practice
The Supreme Court heard arguments Monday regarding whether brand-name drug makers may pay generic drug manufacturers to keep their products off shelves to settle patent disputes. The Federal Trade Commission has challenged this practice, known as “reverse settlements” in the industry, on the basis that it amounts to a form of anti-competitive collusion.
Wireless Personal Health Monitoring System Could Revolutionize Healthcare
Developers of a wireless health monitoring system believe it could revolutionize the healthcare industry by facilitating constant analysis of patients’ status. The mHealth system is expected to prove useful in determining if stroke and cardiac patients are exercising appropriately and identifying signs of trouble.
Medical Quiz #17: Famous Patient, Part 2
This performer’s name became linked with his art. He was a rabbi’s son who also sought to expose fraudulent spiritualists and psychics. Several days before his death, he experienced abdominal pain after trauma to the area, but ignored his symptoms and carried on with the performance that would be his last. Afterward, he was taken to the hospital, where he subsequently died. He received a posthumous star on the Hollywood Walk of Fame.
- Who is the famous patient?
- What was the cause of death?
Check back next week for the answers.
Pursuant to the Texas Supreme Court’s ruling in West Oaks v. Williams, the 14th Court of Appeals speedily upheld the district court’s dismissal of a premises liability case for failure to have an expert report. In Ross v. St. Luke’s Episcopal Hospital¸ the 14th Court of Appeals determined that the Williams case required an expert report in a case brought by a non-patient for a breach of the standard of care of safety unrelated to health care. Specifically, a claim brought by a hospital visitor who fell in the hospital lobby is a health care liability claim that requires a 120 day expert report. Because the plaintiff did not serve an expert report, the 14th Court of Appeals agreed the case should be dismissed. This is only one of many cases that are being appealed after the Williams decision.
Week in Review
CASES
Khan v. Ramsey
A home health patient with infective endocarditis sued his hospitalist after overdosing on antibiotics, alleging he was not provided adequate discharge instructions and follow-up planning. The hospitalist challenged the qualifications of the patient’s expert, a family practitioner, to render an opinion and argued the report was conclusory. The Houston appellate concluded that the expert was sufficiently familiar with the use of antibiotics to treat infectious endocarditis. The court also found that the report adequately described how the hospitalist should have provided timely discharge instructions about the risks associated with antibiotics and a plan for follow-up care to prevent an overdose.
In a related ruling, the court found that the same expert was qualified to describe the standard of care for a home health care provider because of his experience consulting with home health agencies. The court held that the expert adequately described how the home health company breached the standard of care by failing to timely recognize the symptoms of an adverse drug reaction, contacting the wrong physician about the patient’s deteriorating condition, and failing to timely contact emergency services.
Mastin v. Jelinek
After the Texas Supreme Court ruled that a plaintiff’s expert report was inadequate, the trial court ordered the plaintiff’s firm to pay $50,000 in attorney’s fees. The plaintiff’s firm argued on appeal that the defense firm waived its right to recover from it because the defense firm initially sought to recover attorney’s fees from the plaintiffs. The Corpus Christi appellate court held that there was no waiver and noted that the fees could be recovered from the plaintiff’s firm as sanctions. The court also found that $50,000 was an appropriate amount of attorney’s fees and rejected the defense firm’s request for $70,000.
NEWS
Survey Finds Most British Family Doctors Provide Placebos
In a recent survey 97% of British family doctors responded that they have provided placebos or drugs with no established efficacy to patients, including prescriptions for antibiotics in response to suspected viral infections. The respondents reportedly did not intend to deceive their patients and believe that providing placebos can prove beneficial.
Baylor College of Medicine Ranked Among Top 20 Med Schools
U.S. News & World Report has ranked Baylor College of Medicine as the 18th best medical school in the nation. This represents an increase from last year when the college was ranked 21st.
Physician Turnover Rate Reaches All-Time High
Physician turnover rate has reached the highest level since 2005 according to the results of a survey of 80 physician groups employing almost 20,000 physicians. The average turnover rate reached 6.8% in 2012 and is expected to continue to rise in 2013.
While Medical Schools Expand, Doctors Caution More Residencies Needed
As demand for doctors increases medical schools are expanding and new schools are opening but some doctors have cautioned that funding for additional residencies is also needed. A bipartisan bill introduced last week would fund 15,000 additional residencies under Medicare and require that half these positions train residents in primary care.
Supreme Court to Consider Generic Drug Liability
The Supreme Court will hear arguments this week concerning the liability generic drug makers face for producing pharmaceuticals that are required by law to be identical to their name brand counterparts and include the same warnings and instructions.
DSH Payment Cuts May Challenge Hospital Credit Ratings
Disproportionate Share Hospital payments will be cut by $64 billion through 2019 under the federal health law reform and Moody’s has warned that these cuts will likely produce credit challenges for hospitals, particularly in states that have chosen not to expand their Medicaid programs.
3-D Technology Improves Surgical Performance
Surgeons invited to test 3-D endoscopic camera systems by performing simulated stomach surgery found that the technology helped improve surgical speed and precision. The display systems obscured the surgeons’ hands from view and they used screens to see what they were doing. One participant performed the procedure in 15 percent less time and with increased precision.
Medical Practice Consolidation Could Prove Costly
Incentives under the federal health law are encouraging hospitals to buy out physician practices, a trend that some caution will result in reduced productivity and a resultant increase in health care costs.
Patients Increasingly Challenging Hospital Fees
Patients angered by unexpected hospital surcharges are increasingly challenging the bills and in some instances refusing to pay, while others are opting to drop longtime caregivers in favor of physicians not employed by hospitals.
Week in Review
CASES
USA v. Read
An ambulance company’s owners were convicted of health care fraud for encouraging EMTs to omit patients’ mobility status from records. Medicare pays more for the transportation of patients with poor mobility and jurors found that 4 out of 15 patients considered did not have a medical necessity justifying the amounts billed to Medicare. Jurors assessed a fine in the amount the company overbilled for four patients, while the district court determined that the defendants owed an additional $1.7 million representing the total amount billed for all 15 patients. On appeal, the 5th Circuit held the trial court could permissibly consider the total amount billed for all 15 in spite of the jury reaching a verdict on only four of the patients whose bills were challenged.
NEWS
Texas Hospital Agrees to $2.5 Million Settlement in Billing Case
A South Texas children’s hospital and a nearby radiology center have agreed to pay $2.3 million to settle whistle-blower allegations alleging they double-billed government health care programs for work on genetic ultrasounds.
Kidney Recipient Killed by Rabies Infection
A kidney transplant recipient has died after contracting rabies from the transplanted organ. Federal officials have identified three other people who received organs from the same donor and these individuals have been treated with rabies vaccinations.
Study Finds Pre-Op Tests Frequently Unnecessary
A study of elective hernia repairs found that 2/3 of patients had preoperative laboratory tests performed and these tests did not predict complications in patients without comorbidities. The study’s authors estimate that pre-operative testing costs up to $18 billion and have recommended that surgical societies establish guidelines to reduce unnecessary testing.
Caesarian Delivery Rates Vary Widely Among US Hospitals
Caesarian delivery rates vary from 7.1% to 69.9% among US hospitals and the overall trend is an increase in cesarean deliveries. The authors of a recent study on cesarean rates note that Medicaid pays for half the births in the US and government efforts to decrease overuse of this procedure may be warranted.
Hospitals Responding to Angry Doctors
Doctors’ aggressive conduct has long been tolerated as a product of a stressful environment, but in recent years the Joint Commission has called for a “zero tolerance” approach toward disruptive behavior. Some hospitals have responded to this issue by requiring anger management courses for their most distressed physicians to improve morale and patient safety.
‘Texas Solution’ to Medicaid Expansion Considered
Lawmakers in Austin are considering a “Texas solution” to Medicaid reform that would allow the state to access billions of federal dollars to help finance Medicaid expansion. One proposal calls for personal responsibility of Medicaid recipients through implementation of copayments or deductibles.
Medicaid Pay Raise for Doctors Delayed
A 73% pay raise for doctors promised as part of the Affordable Care Act is three months behind schedule and may not be implemented for another three months, according to state Medicaid directors. The Obama administration has stated that the payments will be made eventually and will be made retroactive to January 1, 2013.
Patients Do Not Want to Weight Health Care Costs
A study of patient’s attitudes regarding health care costs found that most do not want to weigh the costs borne by insurers and many feel motivated to choose a more expensive but equally effective option out of spite toward insurance companies.
CMS Revises Hospital Readmission Penalties
CMS has revised readmission penalties for hospitals for a second time. Penalties based on the readmission of cardiac patients and pneumonia patients readmitted between 2008 and 2011 were assessed last August and revised in September after errors were discovered. CMS has revised these penalties again after discovering that it failed to include all Medicare inpatient claims in its calculations.
Physician Gender Not Linked to Health Care Costs or Outcomes
A recent study found that a physician’s gender has no bearing on patients’ outcomes or use of health care resources. This study contradicts an earlier, smaller study that associated female providers with lower use of health-care services and costs.
Kroger | Burrus is pleased to announce that Lauren M. Nelson, JD has been selected as a 2013 Texas Rising Star. Ms. Nelson was previously selected in 2012. Lawyers who are 40 years old or younger are eligible for peer nomination. The selection process includes a review of credentials and experience. Ultimately, less than 2.5% of the state’s lawyers are recognized for this award.
Ms. Nelson is a graduate of Baylor University and South Texas College of Law. She practices in the areas of medical malpractice defense and health law, representing health care providers across Texas.
Week in Review
CASES
Gelber v. Hamilton
A surgeon accused of failing to detect complications from a gallbladder operation appealed the trial court’s denial of his motion to dismiss. The surgeon complained that the expert report did not adequately describe how the standard of care was breached. The Houston appellate court found that the report was adequate, noting that the expert described how the surgeon’s failure to identify and repair surgical injuries contributed to the patient’s subsequent infection and other post-operative complications.
Hebert v. Hopkins
A patient who underwent spinal surgery filed suit alleging a neurosurgeon’s negligence contributed to screws pulling out and spinal cord damage. The Austin appellate court upheld the dismissal of the case, noting that the expert report was internally inconsistent. The expert opined that the surgeon should have performed the procedure with multilevel posterior internal fixation, but subsequently acknowledged that there are “clinical situations” in which anterior only instrumentation is appropriate. The expert did not elaborate on when this apparent exception applies. The court also rejected constitutional challenges to the expert report requirement, concluding that Chapter 74 does not violate due process, the separation of powers doctrine, or impede litigants’ access to open courts.
Good Shepherd Medical Center v. Twilley
A hospital employee who fell from a ladder filed a premises liability suit against the hospital. After the Texas Supreme Court’s decision in Texas West Oaks Hospital v. Williams broadened the scope of Chapter 74 with respect to claims involving “safety”, the hospital sought to dismiss the case on the basis that no expert report was served. The Texarkana appellate court upheld the trial court’s denial of the motion to dismiss, concluding that because the allegations were not even indirectly related to health care Chapter 74 did not apply. The court distinguished Williams, noting that the claims involved in that case were indirectly related to healthcare.
Lasik v. LCA Vision
A laser eye surgery clinic filed suit seeking to enjoin a physician from operating a rival clinic prior to the expiration of an 18-month covenant not to compete. The clinic’s request for a temporary injunction was denied and it sought a writ of injunction from the appellate court to preserve its good will during the pendency of appeal regarding the temporary injunction. The Houston appellate court declined to issue a writ of injunction, concluding that the writ was not necessary to preserve the clinic’s rights during the pendency of its appeal.
NEWS
TCH, Baylor, CHRISTUS to Partner on Children’s Hospital
Texas Children’s Hospital, the CHRISTUS Santa Rosa Health System, and Baylor College of Medicine have partnered to open a new children’s hospital in downtown San Antonio. CHRISTUS will own and operate the facility, while Baylor will recruit, employ and oversee faculty and physicians. Texas Children’s Hospital will provide consultative advice and clinical expertise for the hospital.
Texas Tech Opens Nursing School
Texas Tech University has unveiled a new, $12 million nursing school in Abilene. Hendrick Health System helped build the facility, which features classrooms, laboratories, and a large simulation center where students can receive hands-on training.
Report Encourages Nursing Migration in North, Central America
The authors of a report touting the benefits of nursing migration anticipate that efforts to facilitate migration can help ameliorate health disparities throughout the Americas. The authors’ recommendations include investing in educational systems, facilitating the credentialing of nurses across borders, and integrating transitional educational programs as part of the credentialing process for internationally educated nurses.
EHR Adoption by Hospitals Nears 50%
The number of hospitals that have adopted electronic health records reached 44% in 2012, triple the number of facilities that reported using EHRs in 2009.
Family of Woman Who Died After CPR Refused Satisfied With Care
The death of a resident at a continuing care community garnered nationwide attention after the release of a 911 call recording in which a caregiver appears to refuse to provide CPR. The woman’s family has explained that she did not want to receive life-prolonging medical interventions. The resident died from a stroke and it appears unlikely that CPR would have prevented her death.
EHR ‘Information Overload’ Contributes to Errors
A survey of primary-care practitioners revealed that 30% have missed important test results due to information overload associated with electronic health records.
