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Jul 23 14

Week in Review

by Kroger Burrus

Kroger Burrus Week in Review 4001 Week in Review


Schrade v. Earle
A radiologist who was sued for allegedly performing an unnecessary neck surgery testified that dye leaking out of the C4-C5 level of the patient’s neck indicated the need for the surgery at issue. The patient sought to impeach the radiologist with a discography film, but the court excluded it because it had not been produced in discovery. Contending the discography film proved the radiologist committed perjury, the patient moved for a new trial. The San Antonio appellate court upheld the denial of the motion for new trial, noting that there was a dispute over the proper interpretation of the discography film, and an affidavit from the patient’s expert alone did not prove the radiologist committed perjury.

CHCA West Houston v. Shelley
A hospital employee filed a slip-and-fall claim against the hospital, which moved for dismissal due to her failure to file an expert report. The employee argued that her claim was not a health care liability claim. The Houston appellate court reversed the trial court’s denial of the hospital’s motion to dismiss, extending to hospital employees its earlier holdings that slip-and-fall claims by hospital visitors qualify as health care liability claims.


Doctor Accused of Overprescribing Painkillers Convicted of Manslaughter
A New York doctor whose prescription practices were allegedly responsible for the fatal overdoses of two patients has been convicted on two counts of second-degree manslaughter, as well as several lesser charges. He faces a prison term of five to 15 years on each of the manslaughter counts.

Survey: Few Physicians Would Choose ‘Extraordinary Measures’ for Themselves
Among physicians surveyed about what treatment options they would select if faced with a terminal illness, only 7% would request that extraordinary measures be taken. About 55% would request palliative care, 43% would request hospice care, 39% would choose not to be resuscitated and the remaining 16% were unsure.

Houston Hospitals Ranked Highly by US News and World Report
Multiple Houston-area hospitals received high scores in US News and World Reports’ latest hospital rankings. Texas Children’s Hospital was ranked second nationwide for neonatology and cardiology services and was named among the top 10 children’s hospitals in seven other categories. MD Anderson Cancer Center was ranked second among hospitals nationwide for cancer treatment and was listed among the top 10 hospitals for ear, nose and throat and gynecological services. TIRR Memorial Hermann was ranked third among hospitals providing rehabilitation services, and the Menninger Clinic was named among the top five health care entities for psychiatric services.

Nursing Workforce Spikes Despite Projected Shortage
Contrary to an anticipated shortage of nurses, the nursing workforce in the US has grown more rapidly than projected. In 2012, there were 2.7 million registered nurses nationwide, exceeding estimates from a year earlier by about 500,000, according to a study published in the journal Health Affairs. The study suggests that nurses delaying retirement contributed to an additional 136,000 nurses remaining in the workforce.

Study Suggests EHRs do not Contribute to Hospitals Overcharging Medicare
A comparison of the billing practices between hospitals that use paper records and those that have transitioned to electronic health records found no difference in their billing practices, suggesting fears that electronic health records would contribute to overcharging Medicare may be unwarranted.

Hand Hygiene Rates Higher When Auditors Visible
Hand hygiene rates were three times higher when auditors were visible to healthcare workers, according to a study at a major acute care hospital in Canada.

Medicare Providers Reportedly Lose Millions Due to Excessive Audits
Healthcare providers say they are spending millions of dollars tied up in appeals due to an increasing number of Medicare audits. The rise in the often duplicative audits has not succeeded in reducing Medicare fraud, according to a recent report from the US Senate Special Committee on Aging, which has criticized the government for not targeting its resources more effectively.

Study Questions Necessity of Fasting Before Cholesterol Tests
While medical groups recommend that patients fast for up to 12 hours before taking a blood lipid test, a recent analysis suggests that a non-fasting cholesterol test may provide the same prognostic value as a fasting test.

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Jun 25 14

Week in Review

by Kroger Burrus

Kroger Burrus Week in Review 4001 Week in Review


Memorial Hermann Southwest Hospital v. Hayden
A hospital visitor filed suit alleging the hospital was responsible for her slip and fall. The hospital moved for dismissal on the basis no expert report was filed, but passed the dismissal hearing after the visitor amended her petition and asserted that her claim was a premises liability claim not subject to Chapter 74. After the Texas Supreme Court’s decision in Texas W. Oaks Hosp. v. Williams, the hospital moved to dismiss again. The appellate court affirmed the trial court’s finding that the claim constituted a health care liability claim, and that the hospital had waived its right to move for dismissal after passing on the initial dismissal hearing, engaging in extensive trial preparation, and waiting approximately 670 days after the visitor amended her petition to file its second motion to dismiss.

Smith v. Wall
A dental patient who allegedly sustained nerve damage during a wisdom tooth extraction filed suit against his dentist, alleging he failed to obtain informed consent regarding the risk of nerve damage. The trial court granted the dentist’s motion to dismiss, holding that the patient’s expert reports were inadequate. The Austin appellate court reversed, finding that the expert adequately described his opinion that the dentist’s failure to obtain informed consent was a breach of the standard of care that caused the patient’s injury.


Number of Induced Labors Declines
After almost two decades during which the number of induced labors had steadily increased, the number of US infants born early due to induced labor or C-section is on the decline. Between 1990 and 2010, the rate of induced labors had increased from 10% to 24%, but has been dropping slowly in recent years, in part due to recent efforts by medical societies to advocate against unnecessary induced labors.

Study Validates Hospital’s Efforts to Improve Patient Safety
A Connecticut hospital’s efforts to improve patient safety through standardizing practices, training health care providers to improve teamwork, and hiring a patient safety nurse have paid off, according to a study by Yale School of Medicine researchers. Researchers found that in the five years after the initiative was started, the hospital experienced a 50% reduction in liability claims and a 95% decrease in liability payments compared to the five years preceding the initiative.

CHRISTUS Selects First President for Children’s Hospital of San Antonio
Elias J. Neujahr has been chosen to serve as the first president of CHRISTUS Santa Rosa Health System’s new Children’s Hospital of San Antonio, which is currently under construction downtown. Neujahr comes to San Antonio from Spectrum Health in Grand Rapids, Michigan, where he was responsible for medical group and hospital operations at Helen DeVos Children’s Hospital. His prior experience includes serving as vice president of clinical resources for the Women and Infants Hospital of Rhode Island and The Children’s Hospital in Denver.

CHRISTUS Upgrading South Texas Medical Center Hospital Campus
Renovations at the CHRISTUS Santa Rosa Hospital — Medical Center should be completed at the Northwest San Antonio campus later this month. CHRISTUS is increasing surgical facility space at the hospital, increasing the overall capacity in the intensive care unit, and adding 22 intermediate care unit beds.

FBI Launches Criminal Inquiry into VA Scandal
The FBI has opened an investigation into accusations that Department of Veterans Affairs officials falsified reports to cover up delayed care for thousands of veterans, according to testimony provided by FBI Director James B. Comey last week to the House Judiciary Committee.

Hospitals Placing Pharmacists in Emergency Departments to Reduce Errors
In an effort to reduce medication errors, some hospitals are turning to pharmacists who specialize in emergency medicine. Medication errors and dangerous drug interactions contribute to 7,000 deaths across the US annually. Although electronic medical systems can help catch these types of errors, a recent study in the Annals of Emergency Medicine found that even with an electronic medical record, 25% of children’s prescriptions had errors, as well as 10% of adults’ prescriptions.

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Jun 3 14

Week in Review

by Kroger Burrus

Kroger Burrus Week in Review 4001 Week in Review


Report: Medicare Frequently Overpays
Medicare paid $6.7 billion more than it should have for office visits and patient evaluations in 2010, according to a report from the Department of Health and Human Services. The Centers for Medicare and Medicaid Services has stated in its reply to the report that it does not intend to change its review of physician’s billings, because it would not be cost-effective to do so.

Cancer Physicians Encouraged to Consider Financial and Medical Impact of Treatments
Physicians should consider the financial impact along with the medical impact of cancer treatments, taking into account both the volume and price of treatments, experts at the world’s largest annual meeting of oncologists have urged. Healthcare costs continue to grow faster than the economy, and in response the American Society of Clinical Oncology is developing a system to rate drugs based on the benefit, side effects, and price.

‘Meaningful Use’ Could Change Order of EHR Adoption
The ‘meaningful use’ guidelines intended to encourage the transition to electronic health records may be impacting the order in which hospitals adopt health record functions, according to a study published by the Journal of the American Medical Informatics Association. The study, which analyzed the order in which hospitals adopted various EHR functions, found that hospitals tended to adopt patient demographics and ancillary results components of EHR systems first, and physician notes, clinical reminders, and guidelines last.

Ultraviolet Cleaning Helps Combat Superbugs
Ultraviolet cleaning can reduce the prevalence of ‘superbugs’ such as methicillin-resistant Staphylococcus aureus by as much as 20%, according to a recent study. Hospitals that used ultraviolet environmental disinfection over the course of the 30 months study experienced some of the lowest incidence of infection in a decade.

Study Links Steroids to Delirium Among ICU Patients
Hospital ICU patients receiving steroids are significantly more likely to develop delirium, according to new Johns Hopkins research. Although the delirium episodes observed tended to subside within a few days, studies have shown that the onset of delirium in the ICU is associated with worse functional recovery and cognitive impairments similar to those caused by moderate traumatic brain injury or mild Alzheimer’s disease.

Health Law Inspiring Hospital Charity Cutbacks
Implementation of the Affordable Care Act is encouraging hospital systems throughout the country to cut back on charitable caregiving in favor of efforts to encourage low-income patients to enroll in online marketplaces. Hospital executives hope that they can encourage individuals to obtain low-cost insurance through the subsidized private plans that are now available.

Women with Diabetes Face Greater Heart Risk than Diabetic Men
Women with diabetes are at a significantly higher risk for developing cardiac problems than diabetic men. A meta-analysis of 64 studies found that diabetic women were at a 44% higher risk for cardiovascular events than diabetic men. Although the reasons for the discrepancy are unclear, some speculate that the reason for the differences may be because women tend to have to gain much more weight than men before developing diabetes, placing diabetic women at a higher risk for coronary heart disease at the time their diabetes is diagnosed.

Prescription Delay Following Stent Placement Common and Deadly
Patients frequently delay filling prescriptions for the blood thinner clopidogrel after receiving heart stents and many who do so face an increased risk for myocardial infarction and death, according to a new study published in the Journal of the American Heart Association. Researchers found a third of patients did not fill their prescriptions within three days of stent placement, placing them at a twofold increase in the risk for death or readmission within two years.

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May 30 14

Medical Quiz: Disease Names

by Suzanne Daniluk, RN

What’s in a name, asked Shakespeare. Many things are named after people: schools, organizations, pets — and diseases. Test your knowledge of diseases named for or associated with specific people. (Hint – diseases may have more than one name):

Match diseases with names:

  1. Amyotrophic Lateral Sclerosis
A.   Mary Mallon
  1. Neurofibromatosis
B.   Fredrick Daniel von Recklinghausen
  1. Salmonella typhi
C.  Lou Gehrig
  1. Leprosy
D.   Hans C. J. Reiter
  1. Chronic lymphocytic thyroiditis
E.   Hakaru Hashimoto
  1. Reactive arthritis
F.   Gerhard Hansen

 Check back next week for answers.

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May 27 14

Week in Review

by Kroger Burrus

Kroger Burrus Week in Review 4001 Week in Review


Columbia Medical Center of Denton v. Braudrick
A woman who fell after stepping in a hole in a medical center’s parking lot filed a premises liability suit alleging inadequate safety precautions had not been taken. The medical center moved for dismissal on the basis that the claim was a health care liability claim and the woman had not filed an expert report. The Fort Worth appellate court affirmed the trial court’s refusal to dismiss, holding that to qualify as a health care liability claim, the allegation needs to be at least indirectly related to the provision of health care.


Texas’ Nurse Practitioners Continue to Struggle for Autonomy
Although the state Legislature loosened some supervision requirements for nurse practitioners during the last session, nurse practitioners are still struggling for autonomy in the state Medicaid program. State regulations do not allow nurse practitioners to be reimbursed by insurance companies unless their supervising physicians are under contract with those companies. Advocates for greater nurse practitioner autonomy argue that at a time when fewer physicians are treating Medicaid patients, these regulations need to be revisited.

Sepsis Contributes to Half of All Hospital Deaths
Although patients with sepsis account for only 10% of hospital patients, sepsis deaths contributed to about half of all hospital deaths, according to a recent study. The study, which involved an analysis of 6.5 million hospital discharge records, also found that sepsis accounts for 21.2% of all hospital charges, or about $24 billion annually.

Study: ‘Walk-rounds’ by Hospital Executives Improve Communication, Reduce Burnout
Hospitals that effectively employ executive walk-rounds experienced improved communication among staff and a reduction in burnout, according to a study of the interaction between executives and frontline health care workers at neonatal intensive care units in California. Researchers found that the executive’s walk-rounds provided caregivers an opportunity to effectively point out safety problems, discuss resolutions to the problems that were raised, and resolve questions about the chain of command.

Survey Finds Most Nurses Satisfied With Profession
About 93% of nurses surveyed by CareerBuilder reported they consider nursing a satisfying profession, and 85% responded that they are unlikely to ever switch careers. The survey also found that about half of nurses felt they were spending more time on documentation compared to five years ago, although about 60% felt new technology was helping them perform their jobs more effectively.

Medicine’s Top Earners Are Not the Physicians
Although physicians are the highest trained members in the medical field, the top earners are typically insurance and hospital executives and hospital administrators. According to an analysis performed for The New York Times insurance CEO’s earn an average of $584,000, hospital CEOs $386,000, and hospital administrators $237,000. By contrast, surgeons earn $306,000 on average and general doctors $185,000.

Memorial Hermann Preparing for Major Expansion to Texas Medical Center Campus
Memorial Hermann-Texas Medical Center is preparing to launch a $650 million expansion and renovation of its campus. The project will include an additional 1.34 million square feet, 160 new beds, 24 new operating rooms, and 16 additional emergency room bays.

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Apr 30 14

Week in Review

by Kroger Burrus

Kroger Burrus Week in Review 4001 Week in Review


Rio Grande Valley Vein Clinic v. Guerrero
A customer alleging she was burned while she was receiving laser hair removal treatments filed suit against the laser hair removal clinic. The clinic sought dismissal on the basis that the claim was a health care liability claim and the customer did not serve an expert report. The Texas Supreme Court held that expert health care testimony was necessary to prove or refute the customer’s claim because only a physician can acquire or supervise the use of the laser at issue. The court rejected the customer’s claim that because she was treated only by a nurse, no physician-patient relationship existed. The Court held that a physician-patient relationship can exist even in circumstances where the physician deals indirectly with the patient.


Government Investigating Theft of Physician’s Tax Returns
The U.S. Secret Service and IRS are investigating widespread reports that identity thieves have targeted the tax refunds of physicians. The American Medical Association has reportedly received notice of tax fraud from state medical groups in Connecticut, Maine, Indiana, Vermont, and New Hampshire.

Bill Gates Raises Awareness of Vaccine Cost-Effectiveness Through Twitter
An infographic recently tweeted by Bill Gates is raising awareness of how cheap, and cost-effective, vaccines purchased by UNICEF on behalf of developing nations can be, with many costing less than $1. At 0$0.19 per dose, the DTP vaccine alone can prevent more than 250,000 deaths per year from diphtheria, tetanus, and pertussis.

Veterans on ‘Secret List’ Languish and Die While Waiting for Treatment
At least 40 veterans have died while waiting for appointments at the Phoenix Veterans Affairs Health Care System. According to CNN, Veterans Affairs managers in Phoenix developed an elaborate scheme to conceal that more than 1,400 veterans have been forced to wait for months to see a physician. A retired VA physician told the network that officials destroyed documents reflecting how long patients were actually waiting for appointments to create the appearance that they were improving wait times.

Study: $84,000 Hepatitis Treatment Costs Less than $150 to Make
A full course of what is being hailed as a miracle cure for hepatitis C only costs $68 to $136 to make, according to an analysis published in Clinical Infectious Disease in January. Articles on the drug evaluated in the analysis note that the $84,000 price tag for the 12-week treatment is reasonable when compared to the $270,000 price tag of living with chronic liver disease for 10 years, or the $577,100 cost associated with a liver transplant.

Doctors Becoming More Aggressive About Payments as Medical Debts Rise
Between 2008 and 2012, multispecialty practices have seen bad debt increase by up to 14% according to a recent study by the Medical Group Management Association. Some practices have responded to the trend by changing their billing strategies, with some now collecting payments before procedures are performed or reaching out to collection agencies sooner. In the past, many practices would wait for up to six months before contacting a collection agency.

Rural Hospitals Challenged by Transition to Electronic Medical Records
As American hospitals make the transition to electronic medical records, many rural hospitals are facing a tough decision. Often cash strapped and without access to information technology specialists, some smaller hospitals are turning to their larger counterparts for help. These arrangements can result in a loss of independence for rural hospitals, but those that do not make the transition will face financial penalties if they do not meet federal digital records standards by October.

Measles Cases at Highest Level in Almost Two Decades
Reports of measles are at the highest level in almost two decades, according to the Centers for Disease Control. More than 13 outbreaks have resulted in 129 cases in the first four months of 2014, with California reporting the highest number of cases.

 Study: Medicare Pays Male Doctors More
An analysis of the recently released Medicare payment data suggests that male physicians see more Medicare patients and receive more payment in return than female physicians do. The analysis found that female physicians earn only 53% of what their male counterparts earn from Medicare, but also found that male physicians see 60% more patients. Male physicians reportedly billed for an average of 5.7 services per patient, while female physicians billed for an average 4.7 services per patient.

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Apr 23 14

Week in Review

by Kroger Burrus

Kroger Burrus Week in Review 4001 Week in Review


Memorial Hermann Plans $650M Renovation of Texas Medical Center Campus
The Memorial Hermann Health System has plans to begin a $650 million renovation of its Texas Medical Center campus this summer. The project, which is scheduled to conclude in 2018, will add an additional 1.34 million square feet to the 2.5 million square foot campus, 160 new beds, 24 new operating rooms, and 16 additional emergency room bays.

Medicare Continued to Pay Sanctioned Doctors
Dozens of physicians who were suspended or terminated from state Medicaid programs, indicted or charged with fraud, or who settled civil allegations of submitting false claims, continued to receive reimbursement from Medicare for treating elderly and disabled payments, according to the nonprofit newsroom ProPublica. Payments to these doctors in 2012 totaled more than $6 million in 2012, according to the group’s analysis.

PET Scans Suggest Many Misdiagnosed as Vegetative
A new study involving the use of PET scans to assess patients who have emerged from a coma awake but unresponsive suggests that many who were diagnosed as being in a vegetative state have a higher level of consciousness than first thought. The imaging tests found minimal consciousness in 13 of 41 individuals pronounced vegetative patients, suggesting that some patients who appear vegetative actually have a low level of consciousness and the potential for recovery.

Whistleblower Lawyers Mining Medicare Billing Data
Lawyers who specialize in bringing whistleblower lawsuits on behalf of employees of drug companies and healthcare providers accused of defrauding the federal Medicare system started mining Medicare billing data shortly after its release last week. Under federal law, employees who can prove Medicare fraud are entitled to up to 30% of the amount recovered by the government, and the attorneys who represent them often receive 40% of that recovery.

Study Finds 12 Million Misdiagnosed in US Each Year
About 12 million Americans are misdiagnosed each year, according to estimates based on an analysis of 3,000 medical records collected during three previous studies. The study did not examine why mistakes were made, but prior studies have attributed errors to misinterpretation of test results and patients’ failure to provide accurate medical histories.

Patients Who Appeal Denied Health Claims Often Win
Patients who appeal their insurers’ refusal to cover health claims often win, according to recent studies. The Affordable Care Act set national standards that allow patients who are denied treatment to appeal denied claims to their insurance company and, when necessary, to a third party reviewer. Capital Public Radio’s analysis of data from California found that half the time patients appealed a denied health claim to state regulators, those patients won.

Study of VA Hospitals Finds Experienced Nurses Most Cost Effective
Patients who are treated in units staffed by nurses with extensive experience receive the best care, according to a study from the Columbia University School of Nursing and Columbia Business School. The review of more than 900,000 patient admissions to the Veterans Administration Healthcare System found that a one-year increase in the average tenure of RNs on a hospital unit was associated with a 1.3% decrease in length of stay, meaning patients received higher quality and more cost-effective care.

Free Samples Influence Physicians
Free pharmaceutical samples influence physicians’ prescription practices, according to a study published in JAMA Dermatology. The study compared prescriptions written for adult acne drugs by an academic medical center that prohibits the distribution of free samples with those in a database of prescriptions by office-based dermatologists nationwide. At the academic center, 17% of prescriptions were for brand-name drugs, compared to 79% of drugs prescribed in private offices.

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Apr 22 14

Medical Quiz: Music and Medicine – Answers

by Suzanne Daniluk, RN

These songs are about which diseases/conditions?  

“Streets of Philadelphia”
“The Streets of Philadelphia” by Bruce Springsteen is an Oscar-winning song about HIV/AIDS from the 1993 film Philadelphia, starring Tom Hanks and Denzel Washington.

Lithium is a medication that has been used for treatment of bi-polar disorder, presumably the topic of the Nirvana song.

“She’s Lost Control”
“She’s Lost Control” is about epilepsy.  The late Ian Curtis, frontman of Joy Division and the song’s lyricist, himself had the disorder.

 Match the song title with the artist:

1. Cat Scratch Fever G. Ted Nugent
2. Double Vision E. Foreigner
3. 19th Nervous Breakdown A. The Rolling Stones
4. Poison Ivy B. The Coasters
5. Headache C. Frank Black
6. Rockin’ Pneumonia and the Boogie-Woogie Flu F. Johnny Rivers
7. Doctor My Eyes D. Jackson Browne





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Apr 15 14

Week in Review

by Kroger Burrus

Kroger Burrus Week in Review 4001 Week in Review


Texas Department of State Health Services v. Balquinta
Health care entities affiliated with Planned Parenthood filed suit challenging a state law that excluded entities that perform or promote elective abortions from obtaining Medicaid funding. In response to the state’s assertion that the lawsuit was barred by sovereign immunity, the Travis County appellate court held that the trial court had subject-matter jurisdiction under the state’s Administrative Procedure Act to determine if a legal right or privilege had been impermissibly affected by the state’s exclusion of the Planned Parenthood-affiliated entities from the Medicaid program.


2% of Medicare Physicians Receive 25% of Payouts
About 2% of physicians receiving Medicare reimbursements receive 25% of payouts according to data recently released by the Centers for Medicare and Medicaid Services. Physicians have cautioned that this data can be misleading, noting that in some instances large payments that appear to be directed to a single physician are actually funneled through that practitioner to several other members of large group practices.

Current Medical Coding System Out of Date, Critics Argue
Critics of the coding system used to bill for medical services have argued that the antiquated system does not accurately capture the complexities of modern medicine, noting as an example that the current system does not include codes to differentiate between dozens of different kinds of implants used to open clogged arteries. The new system, ICD-10, which Congress voted last week to delay the implementation of for one year, will increase the number of codes for procedures from 4,000 to 72,000.

New Service Offers Digital Glimpse of Future Offspring
A new service that creates digital embryos by virtually mixing DNA will offer parents an opportunity to screen out genetic disorders prior to conception. The service, which will be introduced in two US fertility clinics later this month, uses algorithms to run simulations that will help predict the risk level for various genetic diseases.

Diabetes Drug Case Yields $9 Billion Jury Verdict
Jurors assessed $9 billion in punitive damages against the maker of a diabetes drug accused of failing to adequately inform people of cancer risks. Jurors assigned $6 billion of the verdict to the Japan-based company that makes the drug and $3 billion to the drug’s US distributor.

Scientists Engineer Complex Body Parts in Lab
Scientists in the US, Mexico, and Switzerland have successfully developed and implanted lab-grown reproductive organs and nasal cartilage. Experts say these developments, announced in two recent studies, represent a move forward in terms of the size and complexity of lab-grown organs.

Physician’s ‘People Skills’ Affect Patient Care
A physician’s bedside manner can have real effects on patients’ outcomes, according to a new study. A review of 13 clinical trials found that when doctors were trained to hone their people skills, their patients typically fared better in their efforts to lose weight, lower blood pressure, or manage pain.

Harris County Offers Phone-based Triage
In an effort to alleviate emergency department overcrowding, local health officials have established a 24-hour nurse call center that will allow residents throughout Harris County and eight surrounding counties to obtain an assessment by phone to determine the level of care needed and receive a referral to an appropriate facility in their area.

Physicians Weary of Red Tape Turn to Cash-based Model
Physicians frustrated with red tape are increasingly turning away from insurance-based practices in favor of cash-based models in which patients can pay a flat fee for a doctor’s appointments. Doctors who use a “direct primary care” model say they can keep costs competitive by avoiding high processing costs, such as additional staff, associated with accepting coverage.

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Apr 8 14

Careful Documentation by Employers Necessary to Avoid Potential GINA Pitfalls

by Leah Greene, JD, LLM

In 2010, Congress enacted the Affordable Care Act (ACA), guaranteeing health insurance coverage for anyone who applies. Has it made the protections guaranteed by the Genetic Information Nondiscrimination Act (GINA) superfluous?

Congress enacted GINA in 2008 to protect individuals who have undergone genetic testing to determine if they are at risk for developing such diseases, such as cancer, that may be hereditary. GINA applies to health insurers and employers.

A health insurer may not request, require or use genetic information to decide an individual’s eligibility, premium, contribution amounts or coverage terms for health insurance. GINA also bars an insurer from using an individual’s genetic information in a discriminatory manner, even if that insurer did not intend to obtain that information.

Employers with 15 or more employees are barred from discriminating against employees based on genetic information. An employer may not terminate or fail to promote an otherwise qualified employee based on that type of information, however innocently learned.

Lawyers who represent employers should advise their clients never to ask an employee about his or her family history. It is not a violation of the law if an employer inadvertently learns about an individual’s family health history. In addition, if an employer needs medical information for an Americans With Disabilities Act accommodation or family leave request, the employer should include safe harbor language in that request. The safe harbor language should state that the employer is barred from asking about genetic information and instruct the employee not to include any genetic information in response to that request.

It might appear that the ACA’s guarantee of coverage overrules GINA because it prohibits denial of coverage for preexisting health conditions. In addition, the ACA prohibits insurers from charging premiums based on factors such as the individual’s health, gender and other information.

The ACA applies only to health insurance issuers in the individual and small group markets. GINA applies to these groups plus self-insured group health plans or insurers in the large group market. The ACA does not apply to contribution amounts, but GINA does.

The ACA limits the determination of premiums to a few factors such as age or geographic area. It prohibits adjustment of premiums even after manifestation of a genetic disease. GINA allows health insurers to change premium rates after manifestation of disease, including diseases that were predicted by genetic testing. The insurer may also make decisions regarding the individual’s eligibility for its insurance after a diagnosis. The tension between these two provisions has not been tested in court.

For Texas Lawyers

The number of complaints regarding genetic information discrimination is extremely low compared to race, age and gender discrimination complaints received by the U.S. Equal Employment Opportunity Commission, but it’s growing. A 2014 Westlaw search for GINA cases revealed a total of 45 cases that addressed the statute substantively. Courts dismissed all but one due to pleadings defects. Last year, in Williamson v. Fermi National Accelerator Laboratory, the U.S. District Court for the Northern District of Illinois allowed a lawsuit to move forward because the employer required information regarding the employees’ family medical history. Pre-suit, the EEOC determined the employer has discriminated based on genetic information.

Because the number of GINA claims is growing, lawyers should remain vigilant in monitoring for potential violations.

Counsel for plaintiffs: If an individual believes an employer has discriminated against him or her for genetic reasons, counsel for the employee should ask whether the employee disclosed—inadvertently or in response to a request—family health history or genetic information to determine if the claim will survive a dismissal motion. To overcome a dismissal, the pleadings must show the employer requested or learned of genetic information, and then discriminated against the employee based on that information.

Counsel for employers: Review the clients’ employment applications, procedures for forwarding health insurance applications to the insurer and criteria for promotion. Educate clients regarding how managers should handle conversations with employees who volunteer information about family health history. Managers should avoid asking further questions so their knowledge of an employee’s family health history is not imputed to the employer.

If the employer terminates an employee or passes him over for a promotion after he discloses family health history, the employer could be open to a lawsuit if there is no other apparent reason for that decision, which underscores the importance of including safe harbor language in any forms or applications that request medical information. If an employer is planning layoffs or promotions, it should document the reasons to confirm that genetic information was not a consideration.

Counsel for physicians and health insurers: Physicians in health management organizations can order genetic tests without violating GINA. If the insurer requires physicians to forward the results, then the physician may do so without violating GINA. The insurer may not use that information to change premiums or contribution amounts.

Physicians still should order the genetic testing they believe is necessary to help a patient. If the insurance company requires of the results to determine payment of the claim for benefits, the physician must report them. The health plan must request the minimum amount of information to make the payment determination. If an individual’s premiums or contribution amounts change after that report, then the individual should consider contacting their insurer personally to ask about the reason for the change or have a lawyer involved in that discussion.

Despite some of the overlapping provisions, GINA’s broader scope provides protection for a greater number of individuals. Monitoring GINA litigation will show whether it is effective in preventing insurance rate hikes and employment discrimination based on an individual’s family health history.

Reprinted with permission from the March 17, 2014 edition of Texas Lawyer. © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.

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Apr 7 14

CMS to Release Physician-Specific Information

by Leah Greene, JD, LLM

Chart CMS to Release Physician Specific Information On April 9, 2014, CMS is expected to release physician-specific information about the number and type of health care services that almost 880,000 physicians provided in 2012. The information will also list how much Medicare paid for each service. The information will not disclose patient names, but it will name individual physicians. Physicians who see fewer than 11 Medicare patients will not be included in the disclosure.

The Obama administration decided to allow the disclosure after a years-long battle between the American Medical Association and consumer groups, insurers, and the media. The AMA recommended that physicians be allowed to review and correct any inaccuracies prior to the release of the information. Consumer groups, insurers, and media outlets want to investigate the information for any Medicare fraud or abuse. The information will show which physicians achieved the best results. The AMA expressed concern that the information could mislead the public, especially if a particular physician’s patients are not compliant, resulting in the appearance of bad results.

More information regarding the release of the physician-specific Medicare information is here.

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Mar 31 14

Week in Review

by Kroger Burrus

Kroger Burrus Week in Review 4001 Week in Review


Gentilello v. University of Texas Southwestern Health Systems
A physician filed a false claims act suit on behalf of the state and federal governments against a medical center he alleged had been billing for an attending physician’s direct supervision in instances where no supervising physician was present or was only minimally involved in certain procedures. The physician also filed suit claiming he had been retaliated against by the medical center. The medical center settled the false claim act lawsuits and sought dismissal of the retaliation claim on the basis of sovereign immunity. The physician argued the medical center had waived its immunity by the terms of the false claims act settlements. The Houston appellate court affirmed the dismissal of the case, finding that language in the settlement agreement did not clearly and unambiguously waive sovereign immunity.

SJ Medical Center v. Walker
The family of a motor vehicle accident victim who presented to a hospital with chest pain filed suit after his death from cardiac complications alleging the nursing staff should have intervened to prevent the patient from being discharged. The hospital objected to the family’s Chapter 74 report on the basis that it was conclusory. The Houston appellate court agreed, noting that the family’s expert did not explain how the nursing staff should have recognized that a physician’s discharge order was premature, or what the staff should have done if it knew the order was premature.

Bioderm Skin Care v. Sok
A woman who alleged she was burned while undergoing a laser hair removal treatment filed suit against the facility and its physician owner. The defendants sought dismissal on the basis that the plaintiff did not file a Chapter 74 expert report. She argued that her lawsuit was not a health care liability claim. The Texas Supreme Court held that her case was a health care liability claim, noting that there is a rebuttable presumption that a claim is a health care liability claim when it implicates care received from a health care provider.


Surgeons to Attempt Suspended Animation Procedure
Surgeons at a Pittsburg hospital are prepared to attempt a procedure that could provide physicians more time to treat trauma patients by suspending cellular activity. The procedure involves replacing blood with a cold saline solution that induces hypothermia and stops most cellular activity. Pigs that underwent the procedure during animal trials have made a full recovery after being suspended.

Congress May Delay ICD-10 Launch Date
Although the Obama administration has declared it will not delay the launch of ICD-10, Congress may intervene to delay implementation of the new comprehensive coding system. The US House of Representatives passed a bill in late March that would delay the implementation of ICD-10 for one year. Groups opposed to ICD-10 fear it will cause an unnecessary burden for providers.

Patients’ Blood Pressure Runs Higher When Checked by Physicians
Blood pressure recordings taken by physicians are often significantly higher than when the same patient is tested by nurses, according to an analysis by the University of Exeter Medical School. The phenomenon, known as the “white coat effect,” is thought to result from patients’ physical responses to being assessed by a physician.

1 in 25 Patients Contracted Hospital Infections in 2011
About 1 in 25 patients contracted a hospital infection in 2011, according to the results of a CDC survey of 183 hospitals across 10 states. Among the 721,800 infections, 75,000 were ultimately fatal. The most common infection was the bacterium Clostridium difficile, which kills approximately 14,000 people in the United States each year. In another CDC report, the agency announced that central line-associated bloodstream infections and infections from common surgical procedures declined by 44% and 20% respectively, while the number of catheter-associated urinary tract infections rose 3% between 2009 and 2012.

Study Questions Accuracy of Braden Score for Predicting Bedsores in ICU
An analysis of the electronic health records from almost 8,000 ICU patients has led researchers to question the accuracy of the Braden Scale to rate patients’ pressure ulcer in an intensive care setting. The study’s authors suggested that the scale may not sufficiently reflect the characteristics of ICU patients, but noted that the scale may still be a valuable tool in other health care settings.

CDC: Overuse of Antibiotics Placing Patients at Risk
The overuse of antibiotics is making many drugs less effective, leading to the development of superbugs, the CDC has warned. The agency noted that overprescribing antibiotics can also sicken patients by making them vulnerable to other types of infections, such as the bacterium Clostridium difficile.

Supreme Court to Hear Oral Arguments in Contraceptive Case
The Supreme Court will hear oral arguments this week in Hobby Lobby’s challenge to mandate requiring employers to pay for employee’s contraceptives. The company has expressed that it objects to certain forms of contraceptives, such as intrauterine devices, that its owners consider a form of abortion.

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Mar 31 14

Medical Quiz: Music and Medicine

by Suzanne Daniluk, RN

Music Medical Quiz:  Music and Medicine These songs are about which diseases/conditions?   

  • “Streets of Philadelphia”
  • “Lithium”
  • “She’s Lost Control”

Bonus points if you can name the songs’ artists.

Match the song title with the artist:


1. Cat Scratch Fever

2. Double Vision

3. 19th Nervous Breakdown

4. Poison Ivy

5. Headache

6. Rockin’ Pneumonia and the Boogie-Woogie Flu

7. Doctor My Eyes


A. The Rolling Stones

B. The Coasters

C. Frank Black

D. Jackson Browne

E. Foreigner

F. Johnny Rivers

G. Ted Nugent

Check back next week for the answers.


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Mar 27 14

Week in Review

by Kroger Burrus

Kroger Burrus Week in Review 4001 Week in Review


Cedar Senior Services v. Nevarez
A resident at a skilled nursing facility filed suit alleging he developed a pressure ulcer and became dehydrated as a result of substandard care. Four months after filing suit, the resident discovered that the facility had been purchased by a health care entity a year earlier and amended his petition to allege that the defendants were the past and current owners of the facility. The former owner sought dismissal on the basis that it was not named in the resident’s expert report. The San Antonio appellate court affirmed the trial court’s denial of the motion to dismiss, finding that by implicating the conduct of the skilled nursing facility, the report also implicated the former owner. The court held it was not necessary for the expert to offer an opinion on which entity owned the facility.


Hundreds of Thousands of Patients’ Data Stolen in California
The Social Security numbers and billing information of almost 170,000 patients in California were stolen after a break-in at a billing contractor, according to Los Angeles County authorities. County officials report that they are not aware of another breach of this size having ever occurred.

Study Finds Ventilator Patients at Risk for Psychological Problems
Patients who receive mechanical ventilation are at considerable risk for developing psychological problems, according to a recent Danish-American survey. The study found that one in seven ventilator patients were prescribed medication for psychological problems within the first three months after their hospital admissions, including sleeping medicine, anxiety medication, and antidepressants.

Statins Recommended for Half of Adults Over 40 Under New Cholesterol Guidelines
New guidelines for preventing heart attacks and strokes would more than double the potential number of statin-takers to 56 million people, if followed. The guidelines, formulated by the American Heart Association and the American College of Cardiology, recommend that everybody with known heart disease should be taking statins, rather than only patients whose LDL cholesterol levels exceed 130.

FDA Finds Medical Device Recalls Doubled Over Past Decade
Medical device recalls have doubled over the past decade, according to the FDA. In 2012, 57 recalls of devices carrying a reasonable probability of death occurred, compared to only seven in 2003.

Physicians Influenced by Requests for Advertised Drugs
Physicians often comply with patients’ requests for drugs that have been advertised, a new study suggests. In the study, actors portraying patients requested either a specific drug or made a general request for something that would alleviate their pain. One in five of the actors who requested oxycodone for sciatica pain would have received it, compared to 1% of those who made no specific request. Half of the actors who requested Celebrex would have received it, compared to about 25% of those who made no specific requests.

Study: Emergency Departments Dispensing More Narcotics
Although there was only a small increase in the percentage of visits for painful conditions at emergency departments between 2001 and 2010, the number of narcotic painkiller prescriptions increased by 49%, according to a recent study. Experts suggest that concerns that pain was being undertreated may have contributed to this trend. Some hospitals’ pay incentives are linked to patient satisfaction surveys, which some speculate may pressure ED physicians to comply with patients’ requests for strong painkillers.

Health Information Exchanges Reduce Admissions
Emergency department patients whose doctors consulted their records through a health information exchange were 30% less likely to be admitted, according to a Cornell study. The study found that savings associated with the use of the health information exchanges totaled $357,000.

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Mar 10 14

Medical Quiz: Downton Era – Answers

by Suzanne Daniluk, RN

Dr. Clarkson Medical Quiz: Downton Era   AnswersAnswers to last week’s medical quiz:

The following were all discovered in the 1920s:  True or False?

  1. Penicillin – True
  2. Aspirin – False
  3. Cardiac catheterization – True
  4. Insulin – True
  5. Blood types – False

Aspirin has been manufactured and marketed since 1899, the Victorian Era. Blood types were first identified in 1901, the Edwardian Era. The other discoveries of penicillin, insulin, and cardiac catheterization did occur during the Roaring ‘20s.

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