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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Current Medical Coding System Out of Date, Critics Argue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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Mar 6 14

Junior Partner Lauren M. Nelson Named as a 2014 Texas Rising Star

by Kroger Burrus

Kroger | Burrus is pleased to announce that Lauren M. Nelson, JD has been selected as a 2014 Texas Rising Star. Ms. Nelson was previously selected in 2012 and 2013. 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. In January of this year, she became a partner of our firm.

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Mar 5 14

Week in Review

by Kroger Burrus

Kroger Burrus Week in Review 4001 Week in Review


McAllen Hospitals v. Texas Health and Human Services Commission
Hospitals denied Medicaid reimbursements challenged the state’s administrative ruling that the services were unnecessary and could have been performed on an outpatient basis. The trial court granted the state’s plea to the jurisdiction, concluding that the hospitals had not established a constitutional takings claim necessary to confer it jurisdiction. The Austin appellate court agreed that the hospitals interest in the payments at issue were not yet vested and could not support a takings claim. It also concluded that the administrative decision did not involve a “contested case” subject to judicial review. It found the trial court may have jurisdiction to consider the hospitals’ request for mandamus relief that would compel the state to consider appeals involving cases denied due to insufficient documentation.


Stethoscopes More Contaminated Than Doctors’ Hands
Researchers in Switzerland found that stethoscopes tend to be more contaminated with bacteria than the hands of the doctors using them, with the exception of the physicians’ fingertips. The study’s authors noted there are no official guidelines that detail how frequently stethoscopes should be cleaned.

CBO: Republican Health Law ‘Fix’ Would Cost Billions
A proposal by Congressional Republicans to fix the federal health law would cost as much as $74 billion and cause one million people to lose work-based insurance, according to Congressional Budget Office projections. The proposed fix would change the definition of a full-time employee from someone working 30 hours per week to someone working 40 hours.

President’s Budget Recommends Billions for Physician Training
President Barack Obama’s proposed budget recommends a $14.6 billion expansion of health-care and medical-training programs for fiscal year 2015. The funding would be used to increase the number of medical residents and encourage health care providers to provide services in rural areas with limited access to health care.

Study: Medical Homes Haven’t Saved Money or Substantially Improved Care
A pilot program intended to improve health care quality and reduce costs has not yielded substantial results. Patient-centered ‘medical homes’ involve team-based practices in which providers actively manage patients’ chronic conditions. An early study of the largest medical-home pilots found that after three years, patients’ health improved in only 1 of 11 measures.

Study: Primary Care Physicians More Likely to Misdiagnose Cardiac Disease in Women
Primary care physicians are more likely to misdiagnose cardiac disease in women and are sued more frequently than physicians practicing in other fields, according to a recent analysis of 41 lawsuits in California. Primary care doctors were defendants in 50% of the lawsuits evaluated, 22% were cardiologists, 17% were emergency medicine physicians, and 6% were orthopedists.

Health Law’s Small Co-Ops Experience Mixed Success
Nonprofit health cooperatives intended to drive down insurance prices in areas with little competition have experienced mixed success so far, with critics predicting that many will ultimately default on the federal loans they received. About 300,000 of the 4 million people who signed up for health care coverage in state and federal exchanges so far joined a health co-op, and in some areas supporters report the co-ops have succeeded in lowering prices.

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Feb 27 14

Bioethics at the Movies: Dallas Buyers Club

by Leah Greene, JD, LLM

Dallas Buyers Club 202x300 Bioethics at the Movies: Dallas Buyers ClubDallas Buyers Club, which is based on a true story, stars actor Matthew McConaughey, who has won several acting awards for his portrayal of the movie’s main character, Ron Woodruff. Mr. Woodruff was diagnosed with AIDS at a time when it could result in death in a matter of months. Mr. Woodruff believed the side effects of the FDA-recommended dosage of AZT were harming his health (his white blood cell count decreased significantly). The movie suggests the FDA knew its recommended dosage of AZT was harmful but refused to change its recommendation. Through Mr. Woodruff’s own research, he learned of alternative drugs available in other countries with less harmful side effects and potentially better efficacy in treatment. He then illegally imported those drugs to the U.S. to sell to other HIV and AIDS patients.

Dallas Buyers Club raises bioethical questions about drug trials for those with terminal illnesses. To evaluate those issues, consider the bioethical principle of autonomy: a patient’s right to make decisions independently after disclosure of the risks and benefits. The following questions are a starting point in considering some issues related to the FDA’s approach to treatment for terminal illnesses:

  • If a patient suffers a drug’s side effects which could be hastening death or putting him at risk for other significant illnesses, should resources be provided for alternative treatments, even if those alternatives involve unproven drugs or unconventional treatment (e.g., Eastern medicine, etc.)?
  • In the case of a terminally ill patient, should drug testing on humans be allowed before animal (or other) testing evaluates its efficacy or side effects?
  • How should the FDA choose which drugs to fast track for terminal illnesses when their efficacy and side effects are still being researched and / or are unknown?

If you do not have time (or the desire) to see Dallas Buyers Club at the movie theater, consider renting Lorenzo’s Oil, which addresses orphan drugs and involves similar bioethical issues. In this movie, a young boy develops ALD, a severe central nervous system disorder, which was so rare, almost no research was being conducted on its cause or treatment. After learning of this lack of research, the boy’s parents essentially taught themselves medicine, and then badgered scientists and physicians to develop a drug to treat ALD.

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Feb 25 14

Week in Review

by Kroger Burrus

Kroger Burrus Week in Review 4001 Week in Review


Malik v. Bhargava
A woman filed suit against a physician alleging that his failure to diagnose a pulmonary embolism resulted in her former spouse’s death. The defendant physician moved for summary judgment, arguing that the woman lacked standing to bring a wrongful death claim because she was not married to the decedent. Although the woman alleged the divorce was purely for financial reasons and the couple had an informal marriage, the Dallas appellate court affirmed the trial court’s summary judgment, noting that the woman had testified in her deposition that the couple did not plan to remarry until after resolving their unresolved financial problems.

Cervantes v. McKellar
A woman whose child was born with encephalopathy filed suit against the medical center where the child was delivered, alleging that the staff’s failure to monitor a fetal heart monitor caused the child’s injury. The medical center, a governmental entity, filed a plea to the jurisdiction asserting sovereign immunity. The Texarkana appellate court affirmed the trial court’s granting of the plea to the jurisdiction, holding the claims did not involve the use of tangible property, as required to establish immunity had been waived, but rather the misuse of information.

University of Texas Health Science Center v. Dickerson
The mother of an infant that died from a streptococcus infection filed suit alleging that the results of a blood culture that tested positive were never communicated to her by hospital staff, depriving her of the chance to purse life-saving treatment for her daughter. The defendant hospital filed a plea to the jurisdiction, asserting that as a governmental entity it was covered by sovereign immunity. The mother alleged that immunity was waived through the misuse of tangible equipment, including a telephone and computer, that she argued should have been used to communicate the results of the blood test to her. The Houston appellate court reversed the trial court’s denial of the plea to the jurisdiction, holding that the claims involved the failure to communicate information, rather than the use of tangible property.


Woman Develops Process to Run 30 Lab Tests on Single Blood Drop
A California woman has developed a blood-testing service that requires only a single blood drop to perform blood tests cheaper and faster than with conventional methods. Her company, which introduced its services at a Palo Alto, California Walgreen’s last year, estimates that the technology could someday save Medicare and Medicaid billions of dollars.

25 Charged in $500 Million Pain-Pill Ring
Twenty-five people have been charged with being involved in the operation of an alleged pill mill that officials say provided more than 5 million oxycodone pills to pharmacies in New York and throughout the country.

Feds Propose Medicare Advantage Payment Cuts
The Obama administration has proposed spending cuts that would reduce Medicare Advantage spending by 3.55%. Last year, Medicare officials had proposed reducing the Medicare Advantage payments by 2.2%, but changed course in response to a strong industry lobbying campaign and instead raised the rate by 3.3%. Critics of the proposed cuts caution that seniors in the program could lose benefits and may face higher premiums.

Medicare Releases ACO Quality Measure Data
Medicare has released data from 2012 on five of the 33 quality measures being used to track how well accountable care organizations are caring for patients. The data reflect that the average ACO reached the Medicare goals for 65% to 75% of their patients. Four of the quality measures evaluated how well the ACOs had helped patients with diabetes, while the fifth measure examined how many patients with arterial plaque were receiving appropriate medication.

ACOG Urges Members to Reduce Number of C-sections
The American College of Obstetricians and Gynecologists recently released new guidelines encouraging its members to allow women with low-risk pregnancies to spend more time in labor prior to recommending a caesarean section. The recommendation follows recent studies that suggest that an increase in caesarean sections over the past decade has not led to better outcomes for women or infants.

Flu Hitting Young Harder
The flu is hitting younger individuals harder this year than in previous years, according to the Center for Disease Control. People between the ages of 18 and 64 represent 61% of all flu-related hospitalizations this season, compared to 35% in previous years.

Study Finds Patients Find Online Physician Ratings Useful
Among individuals who used an online physician review in the last year, 93% reported that the ratings were either somewhat useful or very useful in making a decision about a doctor. However, another recent study focused on online ratings for urologists found on average there were only 2.4 reviews per physician, suggesting that ratings are vulnerable to being skewed by a single positive or negative review.

Report Finds Hospital Networks, Equipment Frequently Under Cyber Attack
Last month, over the course of one month more than 50,000 unique cyber-attacks occurred across more than 700 devices, according to a recent report on cyber security in the health care industry. The attacks were committed against a broad spectrum of targets, including billing systems, as well as radiology equipment and dialysis machines.

Researchers Call for Interdisciplinary Approach to Infection Prevention
Nurses cannot prevent hospital-acquired infections by themselves, according to the authors of a recent study who recommend an interdisciplinary approach to infection prevention. Researchers from the Columbia School of Nursing recommend that nurse leaders take the lead on making sure that an interdisciplinary team is adhering to existing infection prevention policies and recommending new policies that should be in place.

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Feb 19 14

Medical Quiz: Downton Era Medicine

by Suzanne Daniluk, RN

With the new season of the popular TV series Downton Abbey commencing in 1922, test your knowledge of medical advancements of the era.

Downton Abbey Medical Quiz:  Downton Era Medicine

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

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

Check back next week for answers.

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Feb 11 14

Week in Review

by Kroger Burrus

Kroger Burrus Week in Review 4001 Week in Review


Chadha v. Rothert
A patient filed suit against the physician who treated her for hand, hip, and neck pain and a hospital, alleging she lost her vision due to a missed diagnosis of temporal arteritis. The Austin appellate court affirmed the trial court’s denial of the hospital’s motion to dismiss, finding that the patient’s expert adequately described his opinion that the treating physician should have recognized that an elevated erythrocyte sedimentation rate was a major abnormality indicating temporal arteritis.

Northeast Methodist Hospital v. Dewey
A hospital visitor alleging he was injured by a sliding electric door filed a premises liability claim without filing a Chapter 74 expert report. The San Antonio appellate court joined recent appellate court decisions in Beaumont, Corpus Christi, Texarkana, and Dallas, distinguishing the Texas Supreme Court’s decision in Texas West Oaks and ruling that because the claim was not even indirectly related to health care it was not a health care liability claim subject to Chapter 74’s provisions.

CHRISTUS Santa Rosa Health Care Corporation v. Vasquez
A patient’s family filed suit against a hospital and issued a Chapter 74 expert report prior to the 120 day deadline. The hospital filed objections and a motion to dismiss on the basis that the expert and his report were inadequate. The San Antonio appellate court affirmed the trial court’s denial of the motion to dismiss, noting that although the hospital had to file its objections within 21 days, the trial court could not grant or deny a motion to dismiss until the 120 day deadline to file an expert report had passed.


Study Suggests Some Interventions for Prolonged Childbirths Unnecessary
A recent study suggests that epidural anesthesia can lengthen the second stage of labor longer that generally recognized, and some women may be subject to unnecessary interventions by physicians concerned that labor has become prolonged. The findings indicate clinicians may need to wait longer before intervening with oxytocin, forceps, vacuum, or a cesarean.

 Severe Flu Season May be Responsible for Saline Shortage
Hospitals across the nation are facing a shortage of intravenous saline, which may be attributable to a spike in flue cases in recent weeks. Frustration over the shortage has prompted at least one hospital to ask the government to release saline from its emergency stockpiles.

Medical Identity Theft on the Rise
Medical-related identity theft accounted for 43% of all identity thefts reported in the United States in 2013. Victims have reported having their identity’s stolen by thieves seeking medical treatment and prescription drugs, and in one instance by a psychiatrist who created false diagnoses of drug addiction and depression to submit fraudulent medical insurance claims.

Legislators Reach Deal on Medicare Payment Overhaul
Lawmakers in Washington have reached a bipartisan agreement that would replace the current Medicare system for paying physicians that would increase payments by 0.5% each year over the next five years. Legislators must still agree on a method to pay for the proposed fix, which could cost as much as $150 billion.

Insurers Report Losses, But Gain Younger Members Under 40
Humana has reported that it lost money in the fourth quarter of 2013 and a drop in membership, but has also had younger than expected enrollees sign up for insurance after federal health law reforms took effect. Cigna has also reported a fourth-quarter profit dip. Aetna has announced it expects to lose money on its business in the health-law marketplace this year, with the demographics of enrollees skewing more than expected toward people likely to generate higher costs.

Study Finds Home Births Tied to Higher Infant Death Rate
The potential for neonatal death was about four times higher for children delivered at home by a midwife compared to children delivered by a midwife at a hospital, according to a recent study. According to experts, home births lack the advantage of readily available access to critical care for when complications arise. Between 2004 and 2009, the number of home births in the United States has increased by 29%.

Older Nurses Favored Over Recent Graduates
Nurses licensed in 2010 or 2011 were less likely to work in hospitals than nurses licensed in 2004 or 2005, according to a survey of 34 states. Nurses who were expected to retire and open up positions at hospitals have not done so, likely because of the economy, according to the study’s authors.

TV Series ‘House’ Helps Solve Real Medical Mystery
A German physician recently diagnosed a case of cobalt poisoning caused by a patient’s artificial hip after recognizing that his symptoms mirrored those of a patient in an episode of the medical drama ‘House.’

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Feb 4 14

Week in Review

by Kroger Burrus

Kroger Burrus Week in Review 4001 Week in Review


Columbia North Hills Hospital v. Bowen
A patient sued a hand surgeon and hospital, alleging caused an injury to his left ulnar nerve during elbow surgery. The hospital challenged the patient’s Chapter 74 expert’s qualifications to opine on the standard of care for nurses and hospitals, and argued his report was inadequate as to causation. The Fort Worth appellate court affirmed the trial court’s refusal to dismiss, noting that the patient’s expert was familiar with the standards of care for nurses and hospitals. It found that the expert adequately described his opinions that the hospital should have questioned the rush to perform non-emergent surgery, and that if its nurses had documented the intraoperative injury an unnecessary exploratory surgery could have been avoided.

Plum Creek Healthcare Center v. Kirkland
A man undergoing rehabilitation for a broken leg filed suit alleging a nurse negligently applied antibiotic cream to his injuries that caused an allergic reaction resulting in skin necrosis and an above the knee amputation. The healthcare center appealed an adverse verdict, arguing that expert testimony linking the medicated cream to skin necrosis was purely conclusory. The Amarillo appellate court found the plaintiff’s expert sufficiently reliable, noting that he considered factors such as the pattern of necrosis, witness accounts that the plaintiff experienced significant pain after the cream was applied, and supportive medical literature regarding allergic reaction to the medication at issue.

Memorial Hermann Southwest Hospital v. Galvan
A hospital visitor who slipped and fell filed a premises liability claim. The hospital sought dismissal after the visitor failed to file an expert report, arguing that per the Texas Supreme Court’s holding in Texas West Oaks, claims involving safety qualify as health care liability claims, even if not directly related to health care. The Houston appellate court agreed, reversing the trial court’s refusal to dismiss the case.


Wait Times Down, But May Increase Under Health Law
At 45.4 days, the average wait time to see a physician in Boston is more than double of reported wait times across 15 metropolitan areas recently surveyed. The average wait time throughout the cities surveyed was down from 20.4 days in 2009, the year before the Affordable Care Act was enacted. The report found that the drop in wait times may be due to fewer people having sought care during the recession, as well greater efficiency associated with mid-level practitioners. The study’s authors speculate Massachusetts’ 2006 health law initiative may be responsible for the lengthy wait times reported in Boston. They anticipate the Affordable Care Act could have a similar impact nationwide.

More Republicans Favor ‘Fixing’, Rather Than Repealing Health Law
A shift in tone among some influential conservatives suggests the Republican party may be shifting toward pursuing ways to alter the Affordable Care Act, rather than attempting to have it repealed outright.

Silencing Some Hospital Alarms Could Improve Outcome
At a hospital in Boston, researchers found more than 12,000 alarms were sounding daily, desensitizing staff and contributing to “alarm fatigue.” After determining that some low-level “warning” alarms do not need to make an audible signal to be effective, the hospital turned many off. Staff and patients have responded favorably, noting that it is easier to hear and respond to critical alarms and patients’ call signals.

ICU Infection Control Practices Not Adequate at Many Hospitals
ICU units throughout the country showed uneven compliance with infection prevention policies, according to a recent study in The American Journal of Infection Control. The study found adherence to prevention policies ranged from 37% 5o 71% for central line-associated bloodstream infections, 45% to 55% for ventilator-associated pneumonia, and 6% to 27% for catheter-associated urinary tract infections (CAUTI). The authors encouraged more focus on CAUTI, noting that it is the most frequent healthcare-acquired infection, yet only 27% to 68% of ICUs had CAUTI prevention policies in place.

Uninsured Patients, Women Less Likely to be Transferred Between Hospitals
Contrary to popular perception, women and uninsured patients are less likely to be transferred among hospitals than others, according to a study by the University of Pittsburgh School of Medicine. These results may mean uninsured patients and women are not being transferred as often as other patients to facilities that offer more advanced treatments, according to the study’s lead author. The trend may also mean that men and insured patients are at greater risk of exposure to more costly procedures and excessive treatments than women and the uninsured.

Veterans Dying Due to Delays in Diagnosis
At least 19 veterans have died due to delayed diagnoses that could have been made through simple screenings such as colonoscopies or endoscopies, according to an internal document from the US Department of Veterans Affairs. Recently, as many as 7,000 veterans were on a backlog waiting for these procedures at VA facilities in Washington D.C., South Carolina, and Georgia. The VA has since resolved the delay issues at those facilities and reports it is working to prevent similar delays in the future.

Wikipedia Top Source of Health Care Info For Patients and Doctors
Wikipedia is the leading source of medical information for patients and healthcare professionals, with 50% of the latter reporting that they have consulted the online encyclopedia for information on health conditions, according to a study by the IMS Institute for Healthcare Informatics.

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Feb 3 14

Texas Supreme Court Hears Statute of Repose Case

by Marsha Bradley, JD, LLM

In Tenet v. Rivera, an obstetrics medical malpractice case, the Texas Supreme Court will decide whether the ten-year statute of repose in the Texas Medical Liability Act (TMLA) violates the Open Courts provision of the Texas Constitution when applied to claims by children injured before the age of eight. TMLA was enacted in 2003 to “make affordable medical and health care more accessible and available to the citizens of Texas.” Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(5), 2003 Tex. Gen. Laws 847, 884–85.

Will the Court’s decision in Rivera have any impact on the practice of obstetrics in the State of Texas? Oral arguments in the case will be heard on Tuesday, February 4, 2014. Live streaming of the arguments can be found here.
































Between 2000 and 2010, the population of Texas increased by 20.6 percent, but there was only a seven percent increase in the number of doctors practicing obstetrics in Texas. In contrast, there was a 29.7 percent increase in the overall number of doctors providing direct patient care.

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