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Week in Review

by Kroger Burrus on December 3rd, 2012



Felton v. Lovett
A chiropractic patient who experienced a stroke after his neck was manipulated sued the chiropractor under a negligence theory and for failing to disclose that vertebral artery dissection is a known risk among patients with unhealthy arteries. The jury found the chiropractor was not negligent, but that his failure to disclose an inherent risk caused the patient’s injuries and violated Texas’ disclosure statute. The Texas Supreme Court reversed a lower court’s ruling that the relevant risk was not “inherent”, finding that the injury was a direct result of treatment and the risk that a patient will not respond well is an inherent risk. The Court agreed with the chiropractors’ argument that Texas’ informed consent law did not apply to chiropractors, but found that a common law duty exists to disclose risks that a reasonable physician would share with a reasonable patient.

Jassin v. Bennett
A patient recovering from sinus surgery alleged that the physician providing post-operative care became angry and began “gouging” the inside of the patient’s nose with a vacuum tool, causing the surgery wound to re-open. The trial court found the patient’s expert report inadequate, noting that the expert had not reviewed surgical records and post-treatment records, but permitted him to amend the report. The Waco appellate court found the supplemental report adequate, noting that the expert had observed the wound and described how the standard of care required gentle vacuuming and administration of topical anesthesia in response to complaints of pain. The court also found that the expert’s experience performing sinus surgeries qualified him to opine on post-surgical sinus care and complications.

Abilene Regional Medical Center v. Allen
Parents of an infant that sustained brain damage after the umbilical cord wrapped around her neck sued the hospital alleging that if the nursing staff had warned the physician of troubling fetal monitor tracings a Caesarian section could have been ordered to prevent the injury. The hospital challenged an OB/GYN’s expert report on the basis that he was unqualified to opine on causation because he was not a neurologist or pediatric neuroradiologist. The Eastland appellate court found that the expert was qualified and his opinion on causation adequate, but ruled that reports supporting a direct liability cause of action concerning a nurse’s alleged inexperience were inadequate. The reports did not address the nurse’s educational background and did not provide any insight into the hospital’s staff training, policies, or procedures.


Clear Records Key to Surviving Medicare Audits
Physicians at teaching hospitals are frequently scrutinized by a variety of federal audit initiatives, but maintaining clear medical records that clarify the teaching physician’s presence and role in procedures can remove confusion and help the audit process run smoothly. Teaching physicians are encouraged to make sure that medical records include legible signatures identifying every contributor to the record, and to ensure that the records clearly explain when and how the teaching physician was involved in patient care.

Study Finds Hospital Safety Slowly Improving
Hospital safety ratings are improving, but not as quickly as desired. The Leapfrog Group graded 2,618 hospitals and found that 23% showed improvement since June, 19% were given lower grades, and 58% received the same grade. Officials with the employer-backed Leapfrog Group acknowledged that the industry was showing improvement, but felt that the rate of improvement was not adequate.

Minor Distractions Cause Major Surgical Errors
A study of residents performing simulated gall bladder removals found that minor distractions, such as a ringing cell phone or side-bar conversations, can lead to major surgical errors. Younger surgeons were more prone to err when distracted, suggesting that with experience surgeons learn to cope with interruptions.

Healthcare Reform Prompts Shift to Private Rooms
As the reimbursement model shifts from fee-for-service to pay-for-performance, hospitals are considering an emphasis on private rooms to improve patient satisfaction and reduce infection rates. Hospitals face penalties related to patient satisfaction under the new healthcare reforms and some believe placing patients in private rooms may lead to long-term savings.

HHS Releases New Health Insurance Rules
Rules banning surcharges and prohibiting exclusions for pre-existing conditions have been released, prompting concern among some that healthcare reforms will lead to a drastic increase in premiums. Under the new rules plan benefits in each state will have to be equivalent to the “typical” plans currently offered by employers in that state, but some worry that the benchmark criteria will lead to plans that are more generous and expensive than typical individually-purchased plans.

Health Law Faces Challenges and Challengers as Rollout Proceeds
Opposition to the Obama administration’s healthcare reforms continues post-election. With opponents recognizing that a full repeal is unlikely as the reforms become entrenched, efforts are focused on piecemeal repeals, House investigations into the implementation process, and planning for an anticipated collapse of the new system. The administration must also face the logistical challenge of establishing health insurance exchanges in the 16 states that have declined to establish and operate their own exchanges.

Legal Challenge to Affordable Care Act Resurrected
The Supreme Court recently vacated its order declining a petition to review a lower court’s decision concerning a challenge to the Affordable Care Act. This development is not expected to culminate in the Supreme Court reconsidering its landmark decision upholding the health law, but rather is likely an invitation for the Fourth Circuit to reconsider aspects of its ruling on Liberty University’s challenge in light of the Supreme Court’s June 28, 2012 ruling.

Doctors’ Payments Set to Fall From Fiscal Cliff
Some doctors may face a massive pay cut on January 1 if Congress does not intervene before the fiscal cliff is reached. Each year a statutory formula has required a 4 percent reduction in the rate doctors are reimbursed at after they reach a set number of bills-per-patient. Congress has routinely passed legislation to defer application of these rate reductions, but the formula is cumulative and will impose an aggregate 30 percent decrease in reimbursements next year if no action is taken.

Memorial Hermann Hospitals Ranked Among Nation’s Top Hospitals
Many of Memorial Hermann’s hospitals received top ranks in Healthgrades’ latest American Hospital Quality Outcomes report. Hospitals in the system received ranks in the top 5 to 10 percent range for categories including GI services, general surgery, stroke treatment, pulmonary services, and neurosurgery.

Legislators Solicit Answers Regarding Cancer Grant Award
State lawmakers have issued a letter to the head of the Cancer Research and Prevention Institute of Texas requesting an explanation for why the state’s cancer initiative awarded an $11 million grant to a Dallas company without following the mandatory review process.

CHRISTUS Westover Hills Named Texas Ten Step Facility
CHRISTUS Santa Rosa Hospital – Westover Hills was designated a Texas Ten Step Facility by the Texas Department of State Health Services, an honor awarded to only 80 hospitals in the state. The distinction was made in recognition of the hospital’s adoption of a formal program that encourages more mothers to breastfeed newborns and infants.


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