Edward J. Kroger, MD, JD, managing partner of Kroger | Burrus, has been selected as a 2013 Texas Super Lawyer. Dr. Kroger was previously selected in 2008, 2009, 2010, 2011 and 2012. He practices in the areas of health law and medical malpractice defense. His clients include health care facilities and medical professionals across Texas.
LasikPlus v. Mattioli
A laser eye surgery clinic filed suit alleging an ophthalmologist violated a non-compete agreement. The trial court denied the clinic’s motion for a temporary injunction. The Houston appellate court held the trial court did not abuse its discretion because the clinic did not establish it was likely to succeed on the merits. The court noted that non-compete agreements involving physicians must contain a buy-out provision and rejected the clinic’s argument that the trial court could reform the agreement to include a buy-out provision.
Gynecologists Discouraged From Treating Male Patients
The American Board of Obstetrics and Gynecology has informed its members that they are not permitted to provide treatment to men, including anoscopies, a technique adapted from cervical cancer screening. Researchers fear the decision will stymie a national study on anal cancer prevention by prohibiting some of the most qualified physicians from participating.
Lawsuit Alleges Nurse ‘Worked to Death’
An Ohio man has filed suit against the hospital where his wife worked, alleging she fell asleep while driving due to fatigue associated with being overworked to compensate for inadequate staffing levels.
Study: Bedside Nurse Shift Handovers Improve Outcomes
Nurses can reduce errors and improve patient satisfaction by performing shift handovers at bedside rather than at a nursing station, according to recently published research.
Study Finds High Density Mattresses Help Prevent Pressure Ulcers
A randomized study of nursing home residents at risk for pressure ulcers found that there was no difference in the incidence of pressure ulcers for residents turned at intervals of two, three or four hours. Researchers concluded that high-density foam mattresses expose residents to less pressure than conventional spring coil mattresses, reducing the risk for pressure ulcer formation.
Surgeon Convicted of Manslaughter for Delaying Operation
A colorectal surgeon in London has been convicted of manslaughter and sentenced to 2.5 years for delaying surgery for a man with a perforated intestine. According to the judge, the physician suspected a bowel perforation but did not order a CT scan until the following morning and did not pursue findings of what proved to be free intra-abdominal air on the CT scan or request a reading from a radiologist.
Obstetrician and Gynecological Associates v. Hardin
A man filed a Deceptive Trade Practices Action against a fertility clinic alleging the clinic released his cryopreserved sperm without authorization and used it to inseminate his then-girlfriend. The clinic sought dismissal on the basis that the claim was a health care liability claim and no expert report was served. The Houston appellate court affirmed the trial court’s denial of the clinic’s motion to dismiss. The court found that the clinic offered no evidence that it was a licensed health care provider, and as such, could not establish that the claim was a health care liability claim.
CHRISTUS Santa Rosa v. Botello
A patient who non-suited her claim against a hospital re-filed after sending an expert report to the hospital’s attorney. The hospital sought dismissal on the basis that the deadline for an expert report had expired by the time the second lawsuit was filed. The San Antonio appellate court upheld the trial court’s dismissal, holding that a non-suited defendant is no longer a party and delivery of an expert report to the hospital’s attorney did not satisfy Chapter 74’s expert report requirements.
Alonzo v. Lampkin
A hysterectomy patient who filed suit against her surgeon appealed the summary judgment of her claim, arguing that the trial court’s ruling striking her untimely designated expert amounted to an inappropriate sanction. The Amarillo appellate court affirmed, holding that the scheduling order the parties agreed to qualified as a Rule 11 agreement and the trial court had a ministerial duty to enforce the deadline for designating experts.
CHRISTUS St. Elizabeth v. Guillory
A visitor who slipped on water in a hospital hallway filed a premises liability suit and the hospital sought dismissal on the basis that no expert report was filed. The Beaumont appellate court affirmed the trial court’s denial of the motion to dismiss, concluding that the visitor’s claim did not implicate any standards of health care and as such did not qualify as a health care liability claim.
Shoemaker v. Lorenz
The family of a patient alleging a wrongful death claim against a physician and hospital appealed the summary judgment dismissal of their claim arguing that the statute of limitations did not apply because the hospital did not comply with their request for medical records. The Corpus Christi appellate court affirmed, finding that the plaintiffs offered no affidavit or other evidence to support a fraudulent concealment defense to the statute of limitations.
University of Texas Southwestern Medical Center v. Klingslick
The family of a lung transplant recipient filed suit against the medical center that performed the operation alleging that it had stored the lung in preservation fluid that had a dangerously elevated pH level. The medical center sought dismissal on the basis that the family’s expert report was inadequate. The Dallas appellate court held the expert adequately described his opinions that the medical center breached the standard of care by not verifying that preservation fluid with an appropriate pH level was used, and that damage from the fluid contributed to the patient’s death.
Lahiq v. Rosemond
A sepsis patient who experienced debilitating contractures filed suit against a physician he alleged should have recognized the development of the contractures and ordered range-of-motion therapy during his hospitalization. The Houston appellate court reversed the trial court’s denial of a motion to dismiss. It found that the patient’s expert report was conclusory, noting that contractures were not noted in the patient’s medical record until 28 months after his hospitalization and the expert’s opinion that the condition could have been detected earlier was speculative.
Medicare Penalizes Almost 1,500 Hospitals
Almost 1,500 hospitals were assessed penalties by Medicare pursuant to the quality of care system established under recent federal health law. About 1,200 hospitals will receive increased reimbursements based on two-dozen quality measurements, including patient satisfaction and death rates.
Nurse Education, Experience Impact PICU Mortality
A study of 38 children’s hospitals found that nursing education and experience significantly impact the outcome for patients who underwent cardiac surgery. The researchers recommend that there be no more than 20% of nurses with less than two years of clinical experience in pediatric ICUs to decrease mortality rates and noted that nurse education preparation at the baccalaureate level or higher improved mortality rates.
Nurse Home Visits Decrease Infant Emergency Care
Home visits from nurses decrease the number of emergency care episodes, according to a study published in Pediatrics. The study focused on a program in which nurses visit new parents to check on the health of the mother and newborn, offer advice on breast-feeding and child care, and screen for post-partum depression. Families who received home visits experienced 50% fewer emergency care episodes over the course of a year compared to a control group.
Hospital Inpatient Days Expected to Increase 19% by 2025
Researchers using a computer model predict hospital inpatient days will increase by 19% by 2025, largely as a result of an increase in the number of patients with chronic diseases associated with aging.
Women Admitted for Pregnancy Face High Clot Risk
Pregnant women admitted to the hospital for reasons other than delivery face a substantially increased risk of serious blood clots, according to a study published in BMJ.
Physician Demand to Increase by a Third by 2025
Increased access to health insurance and an aging population are expected to increase physician demand by up to a third by 2025. However, the anticipated physician shortage may not be as bad as feared. The expanded role nurse practitioners and physicians assistants are playing in health care may reduce the expected physician shortage by as much as 50%, according to a recent study.
NY Medical Residents Receive Most Support
New York medical residents receive 20% of Medicare’s graduate medical funding, while 29 other states receive less than 1% even though some are experiencing severe physician shortages. Researchers attribute the disparity to a rigid funding formula that needs to be revised.
CHRISTUS, Cantex to Develop Nursing Home in South Texas Medical Center
CHRISTUS Santa Rosa and Cantex Continuing Care Network have partnered to develop a new skilled nursing facility that will be located next to CHRISTUS Santa Rosa Hospital — Medical Center. The 66,000 square-foot post-acute transitional care and rehabilitation center will provide advanced therapy and medical care to patients.
Study: Sleepy Surgeons Still Perform Well
A study of 10,000 gall bladder operations performed in Ontario found that sleep deprived surgeons did not perform poorly verses when they had received a full night’s rest. Surgeons who had performed an emergency operation the night before a planned procedure were not found to have made an increased number of mistakes.
Feds Boost Mental Health Access
Federal officials have announced new rules intended to improve access to mental health treatment. The rules will require insurance companies to charge similar co-payments regardless of whether treatment is for physical or mental health.
Maintaining a normal sleep-wake cycle for hospital patients is a common challenge for health care providers. Typically, this challenge is attributed to excessive light in patient rooms at night. A recent study by Cleveland Clinic’s Nursing Institute found the reverse significantly impacts patients’ well-being, too. Hospital rooms with low lighting during the day interrupted patients’ ability to adopt a normal sleep-wake cycle. In addition, low lighting during the day is associated with worse mood and increased pain and fatigue among patients, as opposed to those whose rooms with more light during the day.
Sleep has long been recognized as an important component in health and healing. Health care providers can assist their patients with normal sleep-wake cycles by keeping room lights on during the day or moving less critical patients to available sitting areas with windows that allow for a greater amount of natural light.
The full article summarizing the study’s findings is found here.
Small v. Parker Healthcare Management Organization
A physician filed a breach of contract suit against two chiropractors he partnered with to form a healthcare association. The trial court found the contract at issue was unenforceable because the healthcare association violated the Texas Medical Practice Act’s restrictions on partnerships with non-physicians. On appeal, the physician argued he was the sole owner. The appellate court held that testimony and language in the articles of association established that the three healthcare providers intended to jointly own the enterprise.
Snodgrass v. Hillcrest Baptist Medical Center
The family of a heart bypass patient filed suit against her hospital alleging that her ICU bed was negligently allowed to lower, resulting in the displacement of her endotracheal tube and subsequent asphyxiation. The trial court granted the hospital’s no-evidence motion for summary judgment. The appellate court affirmed, finding that affidavits from nurses were insufficient to overcome summary judgment because nurses cannot establish proximate cause. A letter from a physician was also held inadequate to defeat summary judgment because it contained no opinion on proximate cause.
Douglas v. Kingwood Medical Center
The plaintiff in a medical malpractice claim erroneously named a limited partnership unrelated to the incident at issue in her petition, but later amended it to name the correct party. The defendant medical center moved for summary judgment on the basis it was not served until after the statute of limitations expired. The plaintiff argued that the petition had been served on the correct defendant’s chief operating officer and the medical center thus had fair notice of the claim. The appellate court affirmed, finding that the plaintiff had served an unrelated entity and did not name the correct entity until the statute of limitations expired.
First Study of ‘Moral Distress’ Among Burn Unit Nurses Held
Researchers from Loyola University Medical Center have conducted the first study of ‘moral distress’ among nurses at burn units. The study focused on stress associated with ethical conflicts, such as being required to carry out orders that seem unnecessary or observing healthcare workers provide false hope to patients and their families.
Data Suggests Devices Not Behind Hospital Charge Variations
New data suggests that medical devices are not responsible for the wide variation of Medicare hospital charges for similar admissions. Charges for device intensive procedures fluctuated by 59% among hospitals, while charges for non-device intensive procedures varied by almost 80%.
Sepsis Rates, Costs Higher in Teaching Hospitals
Teaching hospitals provide care for children with sepsis at a higher cost and with higher mortality rates than non-teaching hospitals, new data suggests. Pediatric patients at teaching hospitals had a mortality rate of 4.6% compared to 1.6% at non-teaching hospitals and experienced an almost double average length of stay.
Study Measures Impact of Education on Hand Hygiene Compliance
A program conducted at Rhode Island Hospital between 2008 and 2012 to assess the impact of education and information on hand hygiene compliance found compliance rates improved from 60% to 89%. The initiative engaged all levels of hospital staff, administration, and healthcare providers in an effort to produce a culture of safety and reduce hospital-associated infections
Men’s Reluctance to Visit Doctor Could be Killing Them
More than a quarter of men report not visiting a doctor or other health care professional over the past 12 months, and two-thirds of men report they would not visit a doctor even if they were experiencing chest pain. Researchers from The Men’s Health Network estimate that more than half of premature deaths among men could be preventable through regular checkups to identify problems such as high blood pressure, diabetes, and high cholesterol.
Electronic ICU Care Comparable to Conventional ICU
The number of complications observed among patients monitored using electronic ICUs and patients in conventional ICUs was similar, according to a study comparing the incidence of code blues, falls, overall mortality, and length of stays.
Victims of Tainted Steroids Still Struggling
A year after a fungal meningitis outbreak linked to contaminated steroids, many victims are still undergoing treatment and some who believed they were cured have relapsed. More than 700 people contracted meningitis traced to the New England Compounding Center and 64 have died.
US Given ‘C’ for Preterm Births
Although the United States’ preterm birth rate has decreased for six consecutive years, at 11.5% it remains above the March of Dimes’ goal of reducing premature births to 9.6% by 2020. The March of Dimes rated the nation’s premature birth rate at a ‘C’, noting that the rate is among the highest in an industrialized nation.
Answers to last week’s Weird Medicine quiz:
1. Tanorexia, or excessive tanning of the skin such as displayed by the so-called “Tanning Mom”, is a condition now recognized by the medical community. True or false?
False. The term tanorexia is considered slang and not recognized by the medical community. However, excessive tanning can be symptomatic of “body dysmorphic disorder”, a psychiatric condition in which those affected are critical of their own physical appearance to an obsessive degree. As of September 1st of this year, Texas bans persons under age 18 from the use of tanning beds.
2. Ingestion of what substance can turn your skin blue?
Ingestion of silver can cause a condition known as Argyriasis which turns the skin blue. A 40-year old man who drank colloidal silver to ease arthritis symptoms found that while the treatment worked, it also permanently tinted his skin a shade of blue-gray.
3. Like fingerprints, another body-part print is unique to each individual. What is it?
A tongue print.
4. What type of bodily injuries occur most often around Halloween?
Hand and finger injuries occur most frequently from pumpkin-carving, followed by extremity injuries from falls due to obstructed vision or too-long costumes. A study published in Pediatrics in 2010 found that Halloween is the holiday with the fourth-highest number of ED visits, mostly by children. Now that’s scary, so be careful out there and have a Happy Halloween!
Baker v. Regency Nursing and Rehabilitation Centers
The family of a deceased nursing home patient filed suit against his nursing home and physicians alleging that their negligence contributed to the development of infected pressure ulcers. The defendant health care providers argued that the expert report could not demonstrate the claims had merit because he did not consider that the ulcers were unavoidable. The Corpus Christi appellate court reversed the trial court’s dismissal of the case, noting that experts are not required to rule out the possibility complications were unavoidable in a Chapter 74 report.
Studies Suggest Hospital Cost Shifting on the Decline
For years hospitals have made up for reimbursement shortfalls by shifting costs to the privately insured. That trend may be on the decline according to a recent Rice University study that found that reimbursements for privately insured patients have exceeded increases in the cost of care in recent years.
Dewhurst May Order Hospital Study in Response to ED Shutdown
Lt. Gov. David Dewhurst has stated he will likely order an investigation into the fallout tied to the closure of the only emergency department within 21 miles of the East Texas town of Center. The facility was closed in July 2013 amid a government crackdown on substandard care and questionable management practices.
Study Suggests Paying Organ Donors Could Curb Healthcare Costs
Providing kidney donors $10,000 in compensation would save about $340 per patient if the number of donors increased by as little as 5%, according to a recent survey. About half of the individuals surveyed who stated they were unlikely to donate an organ answered that they would probably change their mind if provided $10,000 in compensation.
Study: Female Doctors Provide Better Quality Care, While Males More Productive
A study of physicians treating elderly diabetic patients found that women tended to provide better quality care, while their male colleagues were more productive. Researchers noted that the differences between the genders were more pronounced among older physicians, suggesting that the differences between male and female practices have diminished over time.
Mississippi Toddler ‘Functionally Cured’ of HIV
A Mississippi child born with HIV and promptly treated with a trio of antiretroviral drugs remains free of HIV almost 2.5 years later. The child stopped receiving antiretroviral drugs 15 months after she was delivered and researchers announced in March that they consider her functionally cured of the disease.
ACOG Changes Definition of ‘Term’ Pregnancy
The American College of Obstetricians and Gynecologists has changed its definition of the start of term pregnancy from 37 weeks gestation to 39 weeks gestation. The group now defines the period starting at 37 weeks as ‘early term’. The change is intended to emphasize that brain and lung development sometimes continues through the final week of pregnancy and non-medically indicated deliveries should not generally occur prior to 39 weeks.
Study Critical of Interns’ Bedside Manner
An evaluation of how first year interns interact with their patients found most were lacking in areas such as introducing themselves to patients, providing a reassuring touch, asking open-ended questions regarding how their patients are feeling, or initiating a conversation with patients. Research suggests that good bedside manner can improve patient outcomes.
Medical School Enrollment at Record High
The number of first-year medical students exceeded 20,000 for the first time this year, a 2.8% increase over the number enrolled in 2012. Enrollment at osteopathic medical colleges increased by 11% over last year.
Methodist Hospital v. Halat
A physician who terminated his employment agreement with a hospital filed suit alleging that it refused to compensate him for accrued time off. The defendant hospital characterized the claim as a health care liability claim on the basis that the physician raised concerns about patient safety in his resignation letter. The defendant hospital’s motion to dismiss for failure to file an expert report was denied. The Houston appellate court affirmed, noting that the physician’s purported motive for resigning was not relevant to whether a breach of contract occurred.
In re Gunn
An obstetrician group filed suit against an obstetrician for indemnity and against the attorney that had previously represented both parties for legal malpractice after an adverse jury verdict. The obstetrician group obtained a ruling disqualifying the attorney from continuing to represent the obstetrician about one year after the adverse verdict. The Houston appellate court found the trial court abused its discretion by disqualifying the attorney on the basis that the obstetrician group had waived its right to seek disqualification by waiting for almost a year.
Baylor College of Medicine, St. Luke’s Consider Partnership
Baylor College of Medicine and Catholic Health Initiatives, the new owner of the St. Luke’s Health System, have entered into negotiations for a possible partnership that could be finalized within 90 days.
25% of Hospitals Have Made no EMR Progress
About a quarter of hospitals have not made any progress in implementing robust electronic medical record systems over the past 5 years, according to a recent study, and 4% continue to use completely paper-based record systems.
Nurse Practitioners Satisfied, But Overextended
Nurse practitioners are among the most satisfied health care professionals, with more than 90% reporting they are happy with their careers and optimistic about the future. More than 80% of respondents also report that they are either at capacity or overextended.
Nurse Staff Levels Tied to Medicare Readmission Rate
Hospitals with higher nurse staffing levels are 25% less likely to face Medicare penalties tied to readmission rates. Researchers estimate that for each additional nurse hour per patient the odds of a hospital being penalized are lowered by 10%.
Laser Surgery Lawsuits Against Non-Physicians on the Rise
The number of lawsuits filed against non-physicians more than doubled between 2008 and 2011, increasing from 36% of total cases to about 75%. The majority of these lawsuits involved laser hair removal procedures performed outside of formal medical centers.
Bexar County DA Mulls Opening New ‘Killer Nurse’ Cases
Bexar County District Attorney Susan Reed has announced her intent to pursue new cases against a pediatric nurse convicted of killing one child and injuring another in the 1980s. Genene Jones, who is suspected of having killed dozens of other infants, could be released as early as 2018 under the provisions of a mandatory sentencing law.
Eye Contact From Doctors Builds Trust
An evaluation of physician’s interactions with patients found that those who maintained the most eye contact tended to build trust and received higher ratings from patients. Social contact, such as a pat on the back, was also found to improve patients’ impressions, but only up to a point. The study found that when doctors touched a patient more than three times they tended to feel uncomfortable or find the doctor insincere.
Robot Surgery Use, Injuries Increasing
Robot-assisted surgeries have increased by more than 60% over the past three years in conjunction with aggressive marketing efforts, but the number of injuries and deaths has also increased dramatically. Reports of adverse outcomes associated with robot-assisted procedures more than doubled in the first eight months of this year compared to the same period in 2012.
Many ICU Patients Leaving Hospital With Cognitive Problems
New research shows that many patients who entered the hospital with no history of learning or memory problems are leaving with cognitive impairments after receiving treatment in the ICU. A Vanderbilt University analysis of 800 ICU patients found 74% experienced delirium during their hospitalization and were more likely to develop a dementia-like disease later in life.
- Tanorexia, or excessive tanning of the skin such as displayed by the so-called “Tanning Mom”, is a condition now recognized by the medical community. True or false?
- Ingestion of what substance can turn your skin blue?
- Like fingerprints, another body-part print is unique to each individual. What is it?
- What type of bodily injuries occur most often around Halloween?
Check back next week for answers.
Babin v. Haynie
The parents of a minor filed suit against his dentist alleging she had placed a crown that was too large and inappropriately removed enamel from another tooth. The defendant dentist moved for dismissal on the basis that the expert report did not adequately address the standard of care. The Houston appellate court found that although the expert report did not include the phrase “standard of care,” it adequately described the expert’s opinions regarding how the applicable standard was breached.
Texas Health Harris Methodist Hospital Fort Worth v. Biggers
The parents of a minor who underwent an emergency craniectomy filed suit against the hospital, tissue bank and surgeon involved in his care alleging that improper storage of bone tissue necessitated the use of artificial implants that caused an infection. The Houston appellate court found that although the plaintiffs’ expert claimed familiarity with the storage of tissue at hospitals, his report did not establish that he was familiar with the standard of care for a hospital with regard to tissue storage and preservation. The report also included a single standard of care for all defendants and did not explain why the same standard of care would apply to the hospital, tissue bank, and surgeon.
Texas Board of Nursing v. Krenek
A nurse ordered by the Texas Board of Nursing to refrain from alcohol use for one year sought judicial review. The district court struck the stipulation, finding that there was no evidence that the nurse had abused alcohol and that the Texas Board of Nursing could not prohibit a nurse from using alcohol outside of the work environment except to prevent any effects on her work performance. The Board appealed the district court’s decision. The Austin appellate court dismissed the case as moot on the basis that the nurse had already complied with the stipulation by refraining from alcohol use for one year and submitting to random urinalysis.
Tilllman v. Memorial Hermann Hospital System
A radiology technician who alleges she injured her back while moving a 300-pound patient as a result of a nurse releasing the patient too early filed suit against the hospital. The hospital sought dismissal on the basis that the technician did not file an expert report and the technician argued in response that her complaint was not a health care liability claim. The Houston appellate court found that the claim related to “safety” and qualified as a health care liability claim. It also rejected the technician’s argument that the Texas Medical Liability Act, as applied to injured health care workers, violates the equal-protection guarantees of the Texas and United States constitutions.
Three-Year Medical Programs for Primary Care Considered
Three-year medical programs for primary care physicians are gaining traction, offering an opportunity for physicians to save on tuition and the possibility of helping to address a shortage of primary care practitioners. Opponents of fast-track programs caution that medicine is becoming more complicated and students graduating from a three-year program may be at a disadvantage when competing for residencies.
Antibiotics Unnecessarily Prescribed for Sore Throats, Bronchitis
Although antibiotics are not effective to treat the viruses that cause most sore throats and bronchitis infections, US doctors have continued to inappropriately order antibiotics in the majority of these cases.
‘Cycling’ Antibiotics Might Help Combat Resistance
A recent study has found that the development of antibiotic-resistant bacteria may be preventable by cycling patients on to different drugs that have reciprocal sensitivities, potentially expanding the life span of several antibiotics.
Doctors Quick to Order Knee MRIs When They Own a Scanner, Study Finds
Doctors who own or have an interest in MRI scanners tend to refer more knee pain patient for imaging, according to a new study. Although federal law prohibits physicians accepting Medicare patients from owning a stake in an imaging center, an exception applies when the scanner is located in the doctor’s office. Some speculate that the convenience of having an on-site MRI machine has contributed to the higher referral rates.
Study Suggests Link Between Physician Pay and Performance
Results from two recent randomized trials suggest that paying physicians according to how well they do their job could improve patient outcomes. The studies involved incentives for providers who made improvements in areas such as controlling patients’ blood pressure levels.
Some Online Journals Will Publish Fake Science, For A Fee
A sting conducted by the magazine Science found that more than 150 online science journals were willing to publish a fake research article for a fee, despite the inclusion of glaring scientific errors. Many of these journals were designed to appear similar to reputable journals in order to profit off scientists eager to be published.
Demagaloni v. Bexar County Hospital District
A woman alleging she was discriminatorily discharged from employment at a hospital district objected to the dismissal of her case on the basis that the hospital district improperly raised a statute of limitations defense in a plea to the jurisdiction rather than in a motion for summary judgment. The San Antonio appellate court affirmed on the basis that timely filing is a prerequisite to a lawsuit against a governmental unit and a plea to the jurisdiction was the appropriate procedural approach.
Christus Santa Rosa Health Care Corp. v. Botello
After non-suiting a defendant physician, a plaintiff delivered an expert report on the non-suited defendant’s attorney, but did not file a second petition until after the 120-day deadline had expired. The trial court denied the defendant physician’s motion to dismiss. The San Antonio appellate court reversed, concluding that the non-suited defendant physician was not a “party” after the original petition was non-suited and thus the plaintiff did not satisfy the requirement of serving an expert report on a party within 120 days of filing the original petition.
O’Connor v. Bollinger
After a patient’s cardiologist concluded in 2011 that he had likely experienced a heart attack in May 2008, the patient filed suit alleging he had been misdiagnosed with a bronchial infection. The trial court dismissed the lawsuit on the basis that the statute of limitations had run. The patient appealed, arguing that under the Texas Constitution’s open courts provision his claim should not be barred by the two-year filing deadline because he did not learn about the alleged misdiagnosis until 2011. The Tyler appellate court affirmed the dismissal, concluding that the patient had continued to experience symptoms and had an adequate opportunity to learn about the potential missed diagnosis before the statute of limitations ran.
Rodriguez-Salinas v. Cano
The family of a patient who died from blood loss following cardiac surgery filed suit alleging that the defendant surgeon’s course of treatment was improper. The defendant surgeon objected that the criticisms in the reports did not address any of the theories of liability pled. The Corpus Christi appellate court upheld the trial court’s refusal to dismiss, holding that one of the reports adequately addressed the plaintiffs’ complaint that the defendant surgeon offered inadequate heart protection. The court found that the expert report opined that an inadequate amount of cardioplegia, a heart-preserving solution, was administered and that the report was adequate so long as it addressed one of the theories of liability pled.
Mulholand v. Sherwood
Parents of an infant who died after contracting rotavirus and strep filed suit alleging he should have been admitted for further IV treatment. After jurors found in favor of the defendant physician, the family appealed arguing the trial court should have allowed the infant’s twin brother’s medical records into evidence. The Amarillo appellate court affirmed, concluding that the twin was not treated under substantially similar circumstances because he was admitted after his brother’s death and his health care providers had the benefit of hindsight.
Houston Methodist to Acquire Interest in Two Houston Hospitals
Houston Methodist will take a majority ownership share in two CHRISTUS hospitals in the Houston area, including CHRISTUS St. Catherine in Katy and CHRISTUS St. John in Nassau Bay. The transaction, which also includes CHRISTUS clinics, is expected to be complete by year’s end.
CHRISTUS Santa Rosa Surgery Center Wins Quality Award
For the fifth consecutive year the CHRISTUS Santa Rosa Physicians Ambulatory Surgery Center in New Braunfels has won the national APEX Quality Award for patient satisfaction.
Study Finds Doctors Keep Practicing Despite Serious Errors
A USA Today investigation into physicians accused of making serious errors found that 52% of physicians who had clinical privileges removed or restricted by a medical facility never incurred any discipline from their state medical board. The study found that 250 of these doctors had been cited by their hospitals as an immediate threat to health and safety, while 900 were cited for serious violations including malpractice and incompetence.
AMA Study Finds Private Practice Remains Strong
An American Medical Association study has found that despite increases in hospital employment of physicians, private practice medicine remains strong. Although there has been a trend over the past five years toward hospital employment, about 60% of physicians practice in physician-owned practices.
Hospital Inquired Infections Cost $9.8 Billion a Year
Hospital acquired infections contribute toward $9.8 billion a year in costs, much of which could be prevented with additional measures. The Journal of American Medicine Internal Medicine study found that surgical site infections accounted for most of the costs, at an average increase in hospital expense of almost $21,000 per patient. The study’s authors estimate that additional investment in infection prevention could save up to $6 billion and 20,000 lives.
CDC Finds Deadliest Drug Resistance Attributable to Hospitals
While critics have complained that overuse of antibiotics in livestock is contributing to drug resistance, a recent report by the Centers for Disease Control and Prevention has identified hospitals as the top source of dangerous, drug-resistance microbes.
Compounding Pharmacy Recalls on the Rise
Compounding pharmacies have been the subject of at least 14 multistate recalls this year, compared to two in 2012. Legislation has been proposed in the Senate that would require the largest compounding pharmacies to submit to FDA inspections every three years.
Long-acting Pain Drugs No Longer Approved for Moderate Pain
Long-acting drugs such as Oxycontin, which contribute to a disproportionate amount of prescription drug over doses, must now carry warnings that indicate these drugs are to be used only for the management of severe pain.
Study: ED Physicians Spend More time Entering Data than Seeing Patients
A study of physician productivity in the use of electronic medical records found that emergency department physicians spend 44% of their time entering data into electronic medical records, compared to 28% of their time seeing patients. The study suggests improved efficiency in data entry could contribute to more time being spent on patient care and an associated increase in hospital revenues.
OIG: Medicare Recovery Auditors Flawed, But Effective
An Office of Inspector General review of more than 2.5 million claims reviewed by Medicare recovery auditors found that the entities identified $1.3 billion in improper Medicare payments. However, the OIG was also critical that CMS did not do enough to make certain that improper payments and potential fraud could be prevented in the future.
Zanchi v. Lane
The family of a patient who died after surgery served a Chapter 74 expert report on a defendant physician prior to serving him with process. The physician sought dismissal on the basis that he was not yet a party when served with the expert report and as such the plaintiffs did not meet the 120-day deadline for serving an expert report. The Texas Supreme Court affirmed the trial court’s refusal to dismiss, holding that “party” refers to anyone named in the lawsuit and that it was not necessary for the plaintiffs to serve the physician with process before serving an expert report.
Taylor v. Allen
A woman who developed a Methicillin-resistant Staphylococcus aureus infection following surgery filed suit against her surgeon and the hospital where she was treated alleging they were responsible for the infection. The defendants sought dismissal on the basis that the patient’s expert report was inadequate. The Houston appellate court affirmed the trial court’s dismissal, noting that the plaintiff’s expert acknowledged it was no more likely that the MRSA was contracted from health care providers than visitors and that the rapid onset of symptoms suggested the patient was already colonized with MRSA.
Harrison v. University of Texas Health Science Center
A patient who contracted a lung infection filed suit against the health science center where he was evaluated alleging its physicians failed to diagnose the infection. The health science center sought dismissal on the basis of sovereign immunity. The patient argued the health science center’s immunity was waived because his allegation involved the use of tangible property, including an x-ray and stethoscope. The Houston appellate court found that immunity was not waived because the complaint did not involve the misuse of tangible property, but rather an allegation that information produced with equipment was not correctly interpreted.
Sessions v. TH Healthcare, Ltd.
A hospital that offered a physician a collections guarantee in exchange for his agreement to relocate his practice filed suit for breach of contract alleging the physician was required to pay the hospital any amount collected in excess of $725,000. The physician countered that the agreement applied only to collections for services performed within the hospital’s service area. The Texarkana appellate court found that the trial court correctly ruled that “collections” were not limited to the service area, but found that a question of fact remained regarding whether the agreement had been amended.
CHRISTUS Health Ark-La-Tex v. Curtis
A patient experiencing dizziness and muffled hearing filed suit after undergoing a procedure intended to reposition the crystals in his ear, alleging that he experienced a brainstem stroke as a result of the treatment. The defendant physician sought dismissal on the basis that the patient’s expert report was purely conclusory. The Texarkana appellate court found the report adequate, noting that the expert opined that the procedures performed were inappropriate because of the patient’s abnormal cerebrovascular anatomy and explained how these procedures contributed to the patient’s brainstem stroke.
Conboy v. Lindale Health Care
The family of a man who resided part-time at a skilled nursing facility filed suit after he left the facility against medical advice, fell, and died, alleging that the facility should have stopped him from leaving. The plaintiff’s expert opined that the man was at risk for falling because of the effects of medication and alcohol. The Texarkana appellate court affirmed the trial court’s dismissal of the case, finding that the expert report was conclusory because it was not known whether the patient fell shortly after leaving the facility or as late as 12 hours later when he was found and after the medication and alcohol may have already worn off.
Tool for Testing Consciousness Could Change End-of-Life Decisions
An experimental method for measuring the complexity of consciousness could help doctors objectively gauge whether a patient is likely to recover. While MRI studies can measure brain activity, the process developed by researchers from Italy’s University of Milan appears to provide more insight into the degree of consciousness present that could prove beneficial when making end-of-life decisions.
Studies Question Success of Resident Shift Reforms
Limits imposed on the number of hours resident physicians may work were intended to improve patient safety, but recent studies suggest these reforms may be adversely affecting both patient care and physician training. While the limits offer residents more hours to sleep, they also increase the number of patient handoffs during which serious errors are more likely to occur.
Money May Be Motivating Doctors To Do More C-Sections
Patients who are physicians are 10% less likely to undergo an unscheduled C-section according to a recent study whose authors believe this suggests financial incentives are subtly encouraging obstetricians to recommend the more expensive delivery method.
CHRISTUS St. Elizabeth Opens Cath Lab Featuring Disney Pixar Technology
CHRISTUS Hospital St. Elizabeth in Beaumont has dedicated a new catheterization lab featuring a Black Diamond video system, the same used by Disney Pixar’s animators. The 56-inch, 8 mega-pixel monitor allows the cardiology team to simultaneously access patients’ lab work, previous films, and medical records.
Poll: Americans Divided on Health Law But Oppose Defunding
Although many Americans oppose Obamacare, the majority do not favor defunding it. A Kaiser Family Foundation poll also found that 51% of Americans do not understand how the health law reforms will affect them. Although October 1 has been touted by the administration as the start date for Obamacare, policies purchased through health care exchanges beginning on October 1 will not actually begin to provide coverage until January 1, 2014.
Study: Leaving Hospitals Early Increases Risks of Readmission, Death
Patients who leave the hospital early against medical advice face more than double the odds of 90-day mortality and 30-day readmission compared to those who comply with medical advice, according to the results of a study of almost 2 million hospital admissions over a 20 year period.
Psychiatric Solutions, Inc. v. Palit
A psychiatric nurse injured while restraining an erratic patient filed suit alleging his employer failed to provide a safe working environment. The defendant mental health facility argued the lawsuit was a health care liability claim and sought dismissal on the basis that the psychiatric nurse did not serve an expert report. The Texas Supreme Court held the claim qualifies as a health care liability claim because it involves a claimed departure from accepted standards of safety and health care that would require the use of expert health care testimony to support or refute the allegations. The Court’s decision reaffirmed its holding in Texas West Oaks, which broadened the scope of Chapter 74 to encompass claims that did not directly involve health care.
Millions Invested to Fight Future Physician Shortage
By 2014 the number of medical school students graduating in Texas is expected to exceed the number of residency slots available. Although the Texas legislature recently approved more than $12 million to invest in additional residency slots and another $2 million to help hospitals study implementing new residency programs, many in the medical community remain concerned that Texas does not have a long-term solution for an impending physician shortage.
Fewer Doctors Than Expected Leaving Medicare
Although the number of doctors who chose to opt out of Medicare tripled between 2009 and 2012, suggesting some cause for concern, although the actual proportion of physicians accepting new Medicare patients has remained steady since 2009. Some reports reflect an overall increase in the number of physicians accepting new Medicare patients, which now exceed the number of physicians accepting new private insurance patients.
Hospital Doctors Less Hygienic Than Nurses
A global study of hospital hygiene practices found that physicians tended to be less compliant than nurses with hand hygiene guidelines. The study found the highest compliance rates were seen in nurses with 71%, compared to 60% among physicians.
Studies Predict Higher Costs in Affordable Care Act’s First Year
Health insurance premiums are expected to increase by about 5% in the first year that key provisions of the Affordable Care Act take effect. Although premium hikes are expected to continue to outstrip wage increases, the anticipated increases are expected to be more moderate than in the past.
Study Suggests Hospitals Need Improvement in Discharge Process
New research suggests hospitals need clearer, well-designed discharge processes for older patients. A survey of 400 patients over 65 years old found that only 60% could accurately describe their diagnoses, and in many instances discharge documents contained technical terms or other information that was difficult to understand.
Obama Administration Delays Out-of-Pocket Limits
The Obama administration has deferred a provision in the Affordable Care Act that would limit an individual’s annual out-of-pocket expenditures to $6,350. Last month, the administration also announced a delay in the requirement that large employers offer health insurance to full-time employees.
Congratulations to Managing Partner Edward J. Kroger, MD, JD for being selected by H Texas Magazine as one of Houston’s Top Lawyers in 2013. Edward was one of five lawyers selected as a top medical malpractice defense lawyer in 2013 in Houston.
Brannan v. Toland
A patient who filed suit against a physician after the statute of limitations expired argued on appeal that the statute of limitations had been tolled when he provided a signed HIPAA medical release to the defendants. The Houston appellate court found the signed but otherwise blank medical release form did not substantially comply with the tolling provision under Chapter 74. The court noted that the patient failed to identify his treating physicians for the five years preceding the incident made the basis of his claim and did not authorize the release of their records, as required under Chapter 74.
In re Higby
A medical expert retained by a defendant health care provider filed a complaint with the American College of Obstetrics and Gynecology (ACOG) alleging that the plaintiff’s medical expert made false statements during the underlying lawsuit, violating ACOG’s ethical code. The plaintiff’s expert sued the defense expert for defamation. The defense expert refused to testify regarding his complaint to ACOG, arguing that it was privileged under the medical peer review privilege. The Houston appellate court agreed, holding that ACOG qualifies as a medical peer review committee.
Heritage at Longview Health Center v. Fitzgerald
The family of a nursing home patient who repeatedly fell at the facility filed suit alleging the nursing home should have installed a fall mat and chair and bed alarms. The Tyler appellate court found the plaintiffs’ expert report inadequate. The court noted that the patient’s injury involved striking the back of his head against a door and found that the expert report did not explain how a fall mat or safety alarms could have prevented this from happening.
Columbia Rio Grande v. Oldham
A patient who was injured after falling out of a hospital bed filed suit alleging that the hospital negligently failed to provide a warning about the effects of medication that was prescribed. The hospital sought dismissal on the basis that the patient did not submit an expert report. The Corpus Christi appellate court dismissed the case, concluding that it involved a question of medical care and qualified as a health care liability claim.
Penalties for Patients’ Readmissions to Double
Although the number of hospitals expected to face penalties for patient readmissions is expected to remain level, the potential severity of these fines is likely to double. The hospital readmissions reduction program is estimated to cut Medicare spending on hospitals by about $227 million over the next year.
Study: Malpractice Reform Does Not Reduce Defensive Medicine
State malpractice reform measures do not have a significant impact on physicians’ defensive medicine habits according to a recent study. Researchers found no consistent relationship between state caps on economic damages and the level of malpractice concern among physicians. Researchers have estimated that defensive medicine contributes an additional $50 billion to US health care spending annually.
New Medical School Faces First Amendment Challenge
As the University of Texas prepares to partner with a Catholic hospital network that will provide training at the new UT medical school some are already questioning the constitutionality of the arrangement. The Americans United for Separation of Church and State sent a letter objecting that doctors affiliated with the Seton Healthcare Family would be required to follow the Catholic Ethical and Religious Directives, which includes rules concerning birth control, abortion, and end-of-life care. The advocacy group maintains that doctors teaching at a state-owned medical school are government actors and requiring them to adhere to religious doctrine would violate the First Amendment.
Healthcare Job Growth Hits 10-Year Low
Job growth in the healthcare sector reached a 10-year low in July, but experts caution it is premature to conclude that this is symptomatic of a hiring slowdown and anticipate that job growth could rebound.
Texas Pharmacy Recalls Drugs After Patients Infected
A Texas pharmacy has recalled all of its compounded sterile products after 15 patients from two hospitals became ill from what federal health officials said were tainted sterile infusions. These patients are believed to have developed bacterial infections in their bloodstreams from infusions of calcium gluconate made at a compounding pharmacy in Cedar Park.
Administrative Errors Main Cause of Medical Errors
A study of instances in which patients were given incorrect medication found that administrative errors were responsible for the majority of mistakes, followed by transcription errors. Instances in which physicians prescribed medicine for the wrong patient accounted for only 12% of medication errors.
Study Finds Progress in Electronic Health Record Interoperability
There has been significant progress in getting health information systems to talk to one another, according to a recent federal study on interoperability. Researchers also found that the percentage of hospitals engaging in health information exchange increased from 41% to 58% over the past five years, although only 36% of hospitals reported exchanging health information with hospitals outside of their organization.