Photo of Michael C. Ksiazek

In the 1980s, journalists used the Freedom of Information Act to obtain data on individual cardiac surgeons’ surgical outcomes from the New York State Department of Health. A recent JAMA article discusses that type of data and takes the position that despite its limitations, the data should be publicly reported.

Debate Surrounding Reporting of Individual Surgeons’ Outcomes

The debate centers on whether data should be reported on the hospital level only or also reported as to individual surgeons.

According to the article, several objections to reporting data relating to individual surgeons have been raised.

First, an individual surgeon may perform a low number of procedures, possibly leading to an unreliable measure of performance. However, the author notes that performance can be aggregated across multiple years or a surgeon’s performance across a range of procedures can be used. Also, the data can be presented in a way that highlights the statistical limitations.

Continue Reading Should Surgical Outcomes for Individual Surgeons Be Available to the Public?

A recent New Jersey case addressed a statute of limitations issue pertaining to claims arising from a physician’s disclosure of a patient’s HIV-positive status to a third party without his consent.

Plaintiff was a patient of the defendant physician, a board-certified nephrologist. He was being treated for acute kidney failure. During an emergency consultation in plaintiff’s private hospital room, defendant discussed his medical condition and disclosed plaintiff’s HIV-positive status in the presence of a third party without plaintiff’s consent.

Continue Reading Is Doctor’s Disclosure of Patient’s HIV-Positive Status Medical Malpractice?

Generally, after an examination for a medical problem, a doctor will sit down with a patient and explain what the issue is and offer treatment advice and alternatives. Often, the patient goes home afterward and then and can’t remember exactly what the doctor said. Was it ice, then heat – or heat, then ice? Do you take the new prescription before or after eating? How long should you wait before resuming normal activity? What were the risks and benefits of each treatment option?

What did the Doctor Say?

Anxiety, confusion, or the medical issue itself may affect a person’s ability to remember and understand what transpired during a doctor’s appointment. This is especially true if the medical condition being discussed is complex and/or many treatment options are offered.

Patients may turn to recording their conversations during doctor visits, either to listen to the recording later to clarify what was said or to share with family members who can help them make an informed healthcare decision.

What Does the Law Say About Recording Doctors? Wiretapping Statutes

Researchers from The Dartmouth Institute for Health Policy and Clinical Practice’s Open Recordings Project recently published an article in the Journal of the American Medical Association (JAMA) that discusses the legality of recording medical visits as well as other related issues.

State wiretapping statutes apply when patients’ conversations with physicians are recorded. The key factor in state wiretapping laws involves consent – that is which parties to the conversation need to consent to the recording. In states where all parties need to consent, recordings made without such consent violate the law. In states where only one party needs to consent, a patient can record a conversation with a doctor during an appointment without the doctor’s consent.

Pennsylvania requires the consent of all parties to the conversation before recording. In Pennsylvania, the patient needs the doctor’s consent before recording a conversation taking place during an appointment.

New Jersey requires only the consent of one party to the conversation. In New Jersey, a patient can record conversations during his or her appointment without the doctor’s consent.

The Health Insurance Portability and Accountability Act does not apply to recordings made by patients unless they provide that recording to a health care plan or health care practitioner.

Guidelines for Patients Recording Doctor Visits

Because patients are recording their doctor visits more frequently with technology such as smart phones, one of the Open Recordings Project authors, Glyn Elwyn, M.D., stated that it may be time for medical professionals to develop guidelines to protect confidentiality and privacy. Clear guidelines would promote responsible, positive use of open recordings. Guidelines could also address issues such as sharing recordings on social media or with other healthcare providers.

A recent study by a team of vehicle experts at the U.S. Department of Transportation’s Volpe Center found that pedestrian crash avoidance/mitigation (PCAM) systems can potentially reduce up to 5,000 vehicle-pedestrian crashes and 810 fatal vehicle-pedestrian crashes each year. Even if a crash is unavoidable, PCAM systems may reduce the resulting number of injured pedestrians by lowering the speed of the vehicle prior to impact.

It only takes a momentary distraction to cause a motor vehicle/pedestrian collision. That distraction may be on the part of the driver of the vehicle or the pedestrian, or a combination of the two. A driver may be distracted by children in the car or a ringing cell phone, or by changing the music that is playing. A pedestrian may be looking at his or her cell phone, talking to others, or even reading while walking. But whatever the cause or causes, the pedestrian is by far the most likely to be injured or killed as a result of the impact.

Continue Reading Do Pedestrian Detection Systems in Cars Save Lives?

In Pennsylvania, a medical malpractice lawsuit must be filed in the county where the alleged malpractice occurred.

The Superior Court in Pennsylvania recently reversed a trial court decision in a medical malpractice case that transferred venue from Philadelphia County to Berks County, sending the case back to Philadelphia County.

The case involved a premature infant who was being treated in the neonatal intensive care unit in a Berks County hospital. The infant underwent a transthoracic echocardiogram in Berks County, which was interpreted by a pediatric cardiologist working in a hospital in Philadelphia County. The Philadelphia cardiologist wrote a report of her findings, including her diagnosis and treatment plan. The diagnosis of the Philadelphia doctor was pulmonary hypertension requiring immediate treatment or intervention, which was to be forwarded to plaintiff’s treating providers in Berks County.

Continue Reading Venue Returned to County Where Failure to Communicate Medical Test Results Occurred

A physician cannot perform a surgery or other medical procedure on a patient without first obtaining the patient’s informed consent. Informed consent means that the patient was advised of the risks, benefits, and alternatives to the procedure and, knowing these, made the decision to undergo the procedure. A physician can be legally liable where he or she fails to obtain a patient’s informed consent before performing a medical procedure.

In a recent medical malpractice action, the Pennsylvania Supreme Court held that a physician’s duty to provide information to a patient sufficient to obtain her informed consent is non-delegable. Thus, conversations between the patient and members of the physician’s staff will not suffice. The duty to obtain a patient’s informed consent for a major medical procedure belongs to the physician, who must inform the patient about the risks, benefits, likelihood of success, and alternatives.

Continue Reading Can a Doctor Delegate Duty to Obtain Informed Consent to Staff Member?

As reported by philly.com, New Jersey Department of Health investigators have released a preliminary report finding that that the Osteo Relief Institute Jersey Shore in Wall Township deviated from multiple infection control guidelines issued by the Centers for Disease Prevention and Control.

The report indicates that the clinic’s disregard of accepted hygiene practices likely caused 40 patients to develop septic arthritis of the knee following injections to treat knee pain. The clinic was closed in March but reopened two weeks later. The clinic treated up to 85 patients a day at the time of the infection outbreak, according to the report.

One physician at the clinic told health department investigators she did not wash her hands between procedures. Most troubling was the report’s finding that single-use vials were reused on multiple patients and leftover needles were put in the trash instead of in approved medical waste containers.

Lawsuits have been filed on behalf of several of the affected patients.

The Pennsylvania Superior Court will reconsider its ruling that attorney-client privilege does not apply to an email from a hospital’s attorney to its public relations firm.

The discovery dispute in the case involved a document generated by outside counsel pertaining to a public announcement planned by the hospital. The announcement would name two doctors who were identified from the results of a cardiology services audit as having performed unnecessary cardiac stent procedures. The hospital claimed that the audit indicated that the blockages in the patients at issue were so minimal that stents were not medically appropriate.

Continue Reading Pennsylvania Court to Reconsider Denial of Attorney-Client Privilege for Email to Consultant

According to the March of Dimes, each year more than 12,000 newborns are identified as having a condition detected through newborn screening. Newborn screening is the practice of testing every newborn for certain genetic, metabolic, hormonal, and functional conditions. If diagnosed early, many of these conditions can be successfully managed, improving lives and reducing costs. If not diagnosed, or not diagnosed and treated in a timely manner, these conditions can cause severe disability or death.

Newborn Screening in the US

Through newborn screening, nearly every baby in the United States is tested for genetic disorders shortly after birth. Health care providers collect blood samples from newborns and send them to labs for testing. But a recent report issued by the U.S. Government Accountability Office found most states have not met federal benchmarks to screen 95 percent of blood samples within seven days of birth by 2017. Continue Reading Do We Need More Uniformity in Newborn Screening in the US?

On March 3, 2017, a bill that would require medical malpractice claims to be reviewed by expert advisory panels before proceeding to court won final passage in the Kentucky Senate, two days after it narrowly passed in the House of Representatives. The bill will now be sent to Gov. Matt Bevin.

Continue Reading Bill Creating Medical Malpractice Panels Passes in Kentucky