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Week in Review

by Kroger Burrus on January 21st, 2013


Brunston v. Johnston
A patient sued the physician who reviewed his MRI alleging that the physician’s failure to identify a spinal abnormality resulted in permanent damage. The physician argued the patient’s expert was unqualified because he was not actively practicing medicine. The expert stated he had been practicing neurosurgery since 1976, but listed “Expert Medical Advisor” as his only recent employment. The Fort Worth appellate court upheld the trial court’s refusal to dismiss the case, noting that the neurosurgeon’s report and curriculum vitae established that he was a Florida Worker’s Compensation Certified Physician Expert Medical Advisor and had been in the private practice of neurosurgery from 1976 through the present.

Texas State Board of Chiropractic Examiners v. Attorney General Greg Abbott
The Texas State Board of Chiropractic Examiners sought an opinion from the Attorney General’s Office to establish that patient records included in the Board’s investigation of a chiropractor were not subject to the Public Information Act. The Attorney General opined that a patient had a right to access his own records from the Board. While the trial court ruled in support of the Attorney General’s Office, the Austin appellate court ruled for the Board. Individuals have a special right of access to personal information that is confidential, but this exception applies only when the confidential status is intended to protect personal privacy. The investigation-privilege cited by the Board is intended to protect the integrity of the Board’s regulatory process.

In a related opinion, the Austin appellate court affirmed an earlier ruling that while there are provisions in the Medical Practice Act that permit the release of medical records, there is nothing that requires anyone other than a physician to release them. The Public Information Act does not create a special right to medical records in the Board’s possession.

Kayani v. Stevens
A patient sued her surgeon on the basis that his actions during surgery resulted in the inadvertent and unnecessary removal of a healthy ovary. The patient’s expert opined that the surgeon should have assessed changes in the patient’s anatomy prior to surgery and should have stopped operating when the patient experienced significant blood loss to address the complication. The surgeon objected to the patient’s expert report on the basis that it did not adequately describe how the standard of care was breached. The Beaumont appellate court affirmed the trial court’s conclusion that the report was adequate.


HHS Official: Medical Data Storage in the Cloud Inevitable
The transition to cloud storage of electronic health records is inevitable and current security policies are trailing advances in the development and use of new technology, according to a leading HHS Health IT official. Widespread adoption of cloud storage of medical records could save billions annually, but may also expose sensitive data to hackers and inadvertent disclosures.

Less Spending Linked to Better End-of-Life Experience
Almost one-third of Medicare expenditures are attributable to the 5% of beneficiaries that die each year, with one-third of that cost occurring in the last month of life. However, a recent study suggests that when less money is spent on treating terminal patients they experience a better quality of life and death.

American Health Outcomes Worst Among Developed Countries
The United States ranks last among developed countries with respect to life expectancy for people under the age of 50. Guns, drugs, car crashes, and disproportionate health care expenditures on the elderly are cited as factors contributing toward a marked difference between health outcomes for young people in the US and 16 other developed countries.

FDA to Require Weaker Sleeping Pills
The Food and Drug Administration has announced that it will require manufacturers of Ambien and similar sleeping pills to reduce dosages. Tests have shown that the active ingredient in these medications remains in the body longer than previously thought, posing the risk that consumers will remain impaired the following day.

Variables Complicate Hospital Quality Comparisons
Nationwide and statewide reports on hospitals’ quality are intended to permit easy performance comparisons, but a number of variables can complicate the ability to make meaningful quality measurements. The use of different fiscal years, reporting methods, and auditing and accounting practices can make it difficult to compare costs and performances among various hospitals and health systems.

Health Spending Increases May be Slowing, But Sharp Increases Expected
Health care spending grew at 3.9% in 2011, the third straight year in which health care spending increases were historically low and the first time in over a decade that costs grew slower than the rest of the economy. However, as the recession recedes most analysts expect that some Medicaid enrollees will return to private cost, resulting in increased costs. In the long term government spending is expected to increase substantially as the population continues to age and inflation for medical services outpaces broader measures of inflation.

Texas Medical Boards Wants to Arm Investigators
The Texas Medical Board is considering a measure that would permit its investigators to carry concealed weapons. Over the past year the US Drug Enforcement Agency and Texas law enforcement agencies have cracked down heavily on pill mills. The Board’s investigators have not participated in these raids, but they check up on clinics afterwards and are concerned that they could be at risk.

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