Holland & Hart Healthcare Law Blog

OKLAHOMA FEDERAL JUDGE AUTHORIZES SUBSTITUTE USE OF NEMBUTOL TO AID IN EXECUTIONS.

 

There has been a shortage of thiopetal sodium recently, the anesthetic of choice in executions by lethal injections, which has temporarily halted executions in a number of jurisdictions that unlike, Texas,  have not stocked up on the drug. The manufacturer of the drug Hospira, Inc. of Illinois has indicated that it has had manufacturing issues with the drug and replacement supplies would not be available until early 2011.  Hospira, which markets its drugs, under the tag line of “Advancing Wellness” has indicated that it does not favor the “off-label” use of its drug in state sponsored executions. Death penalty opponents have been objecting to the substitution of other drugs because of the potential for pain and suffering by the prisoner in potential violation of the Eighth Amendment prohibition against cruel and unusual punishment.

 

“Barking” Radiologist Bites Hospital for $4 Million Dollars.

On March 4, 2008, this blog published a story about St. James Healthcare in Butte, Montana and its having obtained an injunction against a radiologist, Dr. Jesse Cole, enjoining him from allegedly threatening staff and contacting prospective radiologists being recruited to St. James. The article was entitled “Montana Court Muzzles Barking Radiologist.”  Well, the tide has turned and Dr. Cole has taken a bite out of the hospital and its parent company, the Sisters of Charity of Leavenworth Health System to the tune of $4 Million dollars.

 

HOSPITAL CONFLICT RESOLUTION POLICIES.

 

Most hospitals today have adopted policies for dealing with disruptive conduct within the hospital setting.  Most of these policies relate to forms of harassment, intimidation and violence.  There are of course the omnipresent “disruptive physician” policies that relate to physicians acting out in unprofessional manners like berating staff and throwing hissy fits generally.  There are many more subtle forms of conflict between hospital administration, its medical staff, its medical staff leadership and its governing body. The Joint Commission Standards have evolved with a growing focus on the resolution of conflict at all levels of a hospital organization, with the understanding that all dissension has the potential to affect patient safety and outcomes if left to fester.

 

HOSPITALS INSTALL MEDIATION CENTERS TO QUELL PATIENT VIOLENCE AGAINST DOCTORS

    Is access to quality healthcare a right of all citizens or a privilege for the privileged?  Consider the prospect of a growing disparity between the halves and have nots and the frustration of those excluded from the better hospitals and physicians because of the inability to pay. Imagine the potential for violence as patients observe loved ones needlessly dying or facing disabling injury as a result of poor or inadequate treatment.  Hospitals demanding police protection, but officers concerned that they are public servants and not body guards.  2000 people riot at a hospital which refuses to treat a three year old who is unable to pay an $82.00 up front fee. A pediatrician jumps out of a fifth floor window to avoid the wrath of angry relative of an infant who died under his care.  Relatives beat doctors and nurses with mops and sticks for referring feverish patient to an outside clinic. 5,500 medical workers injured by patients in a single year. A grim vision of the future?

THE VALUE OF CONSENT TO SETTLEMENT CLAUSES IN PROFESSIONAL LIABILITY INSURANCE.

    Many physicians appear to be unaware of the potential impact on their reputations of not having a right to consent to any settlement in their contract for professional liability insurance.  Without such a clause the insurance company, may settle a nuisance claim against a physician for a small token payment, yet in making a payment on behalf of a physician, no matter how small, the insurance company is required to report the payment to the National Practitioner Data Bank under the Healthcare Quality Improvement Act of 1986. It is in fact sometimes better for a physician to make a nuisance payment himself or herself to settle a case if the amount is small enough, because payments made by the physician are not reportable.

UNION LIABILITY FOR LAUNDERING HOSPITAL DIRTY LINEN IN PUBLIC?

    A California Court of Appeals struck down a $17 million dollar defamation judgment in favor of Sutter Health against a union, Unite Here, which was engaged in a labor dispute with a nationwide laundry company, Angelica Textile Services, Inc. Unite Here engaged in a type of secondary picketing, attempting to apply pressure on Sutter Health to pressure Angelica to submit to union demands.  Unite Here directed its fire on the lucrative birthing services of the Sutter Hospitals. It developed what was identified as the Sutter Escalation Plan,” mailing postcards to prospective clients of the Sutter birthing centers or “wealthier women between 25 and 40 who are registered to vote.” The postcards warned that the laundry service (Angelica) used by Sutter did not ensure its lines were free from harmful pathogens and urged potential Sutter Health patients to protect their newborns because Sutter may not be taking adequate precautions against potential infections. One side of the postcard stated: “EXPECTING? You may be bringing home more than your baby if you deliver at a Sutter birthing center.”

    

STANDARD OF CARE MEDICAL EXPERT - SAME OR SIMILAR SPECIALTY REQUIRED?

    In medical malpractice cases in every state, absent clear negligence readily perceptible by a lay juror (i.e. scalpel left in the body), a plaintiff is generally required to produce expert medical testimony to establish a facial case of negligence.  In many states these standards are adopted by the legislature,and therefore can vary considerably from state to state, preempting “common law” standards created by the courts (Someone once described legislative law as “common sense as amended by the legislature.”)

    Judges are of course still called upon to construe legislative standards. Several days ago the Missouri Supreme Court ruled in Spradling et al. v. SSM Health Care St. Louis et al., No SC 90613 ( June 29, 2010), that a radiologist was permitted to testify for the plaintiff in a medical malpractice case as to the standard of care on a vertebroplasty gone bad. A verebroplasty is an invasive procedure where  needle is inserted into a vertebral compression fracture, injecting bone cement into the fracture. Under the Missouri law a plaintiff’s expert must have “substantially the same specialty” as the defendant. On first blush it might seem incongruous that a radiologist could testify as to the standard of care by a neurosurgeon. The court, noting that “substantially the same” is not necessarily the same as “the same” specialty, essentially construed the statute to require a testifying expert to have familiarity with the standard of care for the procedure itself without the necessity of matching up specialty credentials.

INTRACTABLE CONFLICT AND THE FALL OF RESPECT

The bruising and polarizing debate over health care reform reflects a broader societal infection of contempt and distrust generally among politicians, professionals and ordinary citizens, among and between any group of people whose collective identity and self esteem is tied to one’s link to one group and related to distain for another. All intractable conflicts ranging from the halls of Congress to the  corridors of hospitals have at their root a sense of alienation and fear arising from the absence of respect in the interactions of people.  The perceived lack of respect from other affects our core sense of self esteem and feeds an anger and reciprocal hostility.  As Lord Chesterfield said in one of his many letters to his son, “- an insult is never forgiven.”

There are many theories advanced for the dissolution of intractable conflict and all of them at one level or another seek the restoration of respect and trust between people and groups. Fundamentally it requires the restoration of transparency, trust and interlocking respect. The communication of respect starts at home with one’s own attitude toward others - behaving like ladies and gentlemen.  A “gentleman” has been defined as  “a man who can disagree without being disagreeable.” One can avoid being disagreeable by being open to receive and to respect the views and perceptions of others and honoring the motivations and experiences giving rise to them. One doesn’t need to agree to avoid being disagreeable.  

The late Senator Kennedy had a talent for forging unlikely alliances with colleagues with substantially different points of view.  He was able to accomplish much by maintaining respect for the individuals by listening to and acknowledging their positions with respect while disagreeing with their points of view.  He was transparent in his beliefs and his objectives. He radiated respect for others and received it in return. 

There are a number of psychological principals at play fueling the power of the extension of unilateral respect.  Cognitive dissonance makes it difficult to disrespect someone who is extending respect to you.  The human value of reciprocity makes one want to respond in kind to the attitude others project one oneself.  There is a human need to reduce guilt that can arise from the mistreatment of others who do not respond in kind. There is also the need for internal consistency, to act like a gentleman when won is approached as a gentleman. Not all of these principals are successful all of the time but over time they apply considerable leverage.

Getting others to play nice starts with a single step, the expression of respect, the willingness to know and understand those with whom we disagree and to express our esteem for them, even if we cannot accept their views. Emerson said that “[m]en are respectable only as they respect.”  It perhaps starts with honoring each other’s dignity. It  can generate an enormous return and costs very little. Frank Barron hit the mark, 

“Never take a person’s dignity; it is worth everything to them and nothing to you.”

Just ask Aretha Franklin.

HEALTH REFORM BILL EASES INTENT REQUIREMENT IN ANTI-KICKBACK STATUTE.

    One of the relatively unheralded changes in the Patient Protection and Affordable Health Care Act (the “Act”) passed by Congress recently is the change to the “intent” requirement of proof by the government or plaintiffs attempting to impose liability for federal program related kickbacks under the federal anti-kickback statute (“AKS”). The statute, pre-amendment, was very broad and raised legitimate concerns that it would implicate inadvertent conduct. 

DISRUPTIVE CONDUCT: DR. BADRI’S BAD BEHAVIOR

“Disruptive conduct” by a physician as a basis for suspension of medical staff privileges is a standard that is sometimes abused because of the elasticity of its application to conduct which is merely disagreeable or politically insensitive. In the case of Badri v. Huron Hospital, et al, Case No. 1:08cv 1913 (N.D. Ohio, 2010) a federal district judge granted summary judgment against a plaintiff physician whose surgical privileges were suspended by the hospital following an extraordinary series of admittedly inappropriate, offensive and abusive behavior and repeated violations of the hospital’s code of conduct. 

A sample includes the following described by the  court.

‘On May 13, 2004, Dr. Badri was heard complaining in a loud voice that “ in order to get promoted around here you have to screw physicians.” Dr. Badri was later observed standing behind Dr. Ravakhoh and motioning as if to “stab him in the back and making a very rude motion as if to have something inserted into Dr. Ravakhoh”s behind.”’

Following his dismissal Dr.Badri filed a federal lawsuit against the hospital and members of its medical staff claiming that his misconduct was the result of dependency on steroids and other prescription drugs and his emotional impairment all resulting from an automobile accident in 2002.