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Monday Blog Follow-up

Sometimes you just don’t feel like it…

'Yes, I know we're hyenas - but sometimes I just don't feel like laughing, Kate.'
‘Yes, I know we’re hyenas – but sometimes I just don’t feel like laughing, Kate.’

This really is a crazy follow-up blog (here in case you missed it) from yesterday. Not very positive, but it really amazed me. This quote relates:

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When I walked into the office yesterday, paralegal Lauren said that she had read Our blog and asked, “Did you see what happened to that doctor?”. Then she told me.

I remembered the story but did not know it was the same doctor. From NBC12.com, Doctor found guilty in death of Chesterfield woman. This same doctor (Dr. John E. Gibbs III) killed his girlfriend! It had been an unsolved murder for over three years. This article references his child neglect conviction that was mentioned in the blog, as well.   

Honestly, this is one of those stories that truly ticks me off. And, who knows what bad things he was doing to his patients! We can see his character in both of these instances.

I like this quote on character too, and I feel like posting this before I post our funny pic o’ day. I just feel like this positive reminder needs to be inserted here.

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And then for pic o’ day, I post another quote… because I also need to laugh!

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Tools in the Body

They call it a counting error. The technical term from the Center for Medicare and Medicaid Services is retained foreign bodies or a retained surgical item, and they won’t pay for it because they are listed as Never Events… because they never should have happened. I think you know where this is going.

When a doctor does surgery, they are supposed to do a count of all the sponges and instruments used during surgery, before closing the patient up. Sometimes, they don’t do the appropriate mathematical standard of care and they leave something in the patient.

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Maybe when the pain medication wears off, the patient begins to complain of pain and they discover the foreign body. Other times, it’s days or weeks when the person has gone home. Then, they begin to experience pain “inside” and head to the doctor because they complain of an unusual pain or upset stomach. When the x-ray is performed… there is the foreign body.  The single most left behind item is a sponge.

In an average surgery,  there are between 250-300 surgical tools used for the surgery. In a study done in 2008 and reported in the Annals of Surgery, it is estimated that mistakes in tools and sponge counts occur in 12.5% of surgeries. It’s unclear how many of these end up being left in the patient. This 2014 Washington Post article titled When your surgeon accidentally leaves something inside you, does a good summary of the risks, injuries, pain, infection and ultimate costs of surgery to remove the items. They estimate that removal surgery costs about $64,000.

The medical watchdog group The Joint Commission states that there have been a reported 770 foreign objects left in patients in the last 7 years. Of these, 16 resulted in death. A 2012 report from Johns Hopkins University found that 80,000 of the never events have occurred between the years of 1990 and 2010. Big discrepancy there in that math between those two reports!

This is an example where a doctor is not intentionally doing wrong, but it’s bad medicine because it’s bad math. And yes, these are medical malpractice claims.

After writing that, it causes me want to post a pic o’ day that makes me smile:

 

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The Medicine Wisdom of Hippocrates

I call them the go-to guys for some insurance companies and some defense law firms. They are doctors who perform defense exams for the purpose of testifying. I see them over and over . One doctor even testified in two different trials in the same week, for the same defense firm. Of course, part of the cross-examination included, “Isn’t it true doctor that you testifed in a case down the hall yesterday, that involved The Joel Bieber Firm and this same defense firm?”

Fortunately, there are only a few doctors that do this and I usually have a checklist of items to show the jury why I believe that their testimony is grounded in bias instead of medical examination.  Sometimes their reports for each case are almost identical from client to client. And, of course, they are paid very well for their testimony.

I usually ask these doctors a question about a recommendation that was made over two thousand years ago. “Doctor, isn’t it true that part of your core health rules, the Hippocratic oath, include that you are ‘First, do no harm’?”  That quote comes from Greek physician Hippocrates of the third and fourth century B.C. He is the first physician credited with believing that diseases were caused naturally and not by superstition and gods. He also believed that every doctor should look fully into a patient’s face in determining health. Take time with each patient.

Many of his observations back then are still very good health recommendations for today, and referenced in a book recently authored by Dr. David B. Agus A Short Guide to a Long Life.

I decided to google some of his health quotes. Old medical wisdom that is still good for today.

“Declare the past, diagnose the present, foretell the future.”

“Walking is man’s best medicine. ”

“Life is short, art long, opportunity fleeting, experience treacherous, judgment difficult.”

“The life so short, the craft so long to learn.”

     “Extreme remedies are very appropriate for extreme diseases.”
     “Let food be your medicine and medicine be your food.”
     “There are in fact, two things: science and opinion; the former begets knowledge, the latter ignorance.”
     If you click on his name and attachment, I have included his wiki with several interesting health and discoveries of that day.

 

DID YOU KNOW that in the movie Jurassic Park, one scene shows a row of books on a shelf that includes a book on The Making of Jurassic Park. I know this picture is a bit dark but I tried to capture the camera shot.

Jurrassic book

 

And for pic o’ day, I figured this was similar to some couches yesterday during all that football.

TV Dog.

 

Woes of an Ex-Doctor

     This is a tale of woe from Staunton, Virginia. (NewsLeader.com)  Charles K. Weisman had his medical license suspended  after  the Board of Medicine determined  that he had smoked marijuana at his practice, kept alcohol in his office, prescribed testosterone to himself, swore at patients and kept faulty records. I know, you almost have to read that sentence a second time to take it all in.

     Like a bad ad, imagine hearing the voice that says, “But wait, there’s more”.  Weisman was also accused of misdemeanor sexual assault against two female employees. Those charges were later amended to simple assault and then ultimately dropped. Then, in his continuing events of life;  in 2009, a Staunton store owner accused Weisman of trespassing after the two men argued over storage space. (2009)

     I know you’d rather hear that exciting voice screaming, “set it…and forget it”. Instead, let’s stay with the same theme…”But wait, there’s more”.  In 2011, a judge found Weisman not guilty after Weisman was initially charged on a misdemeanor charge of obtaining money by false pretenses, after he was accused of giving a man a foot rub but trying to charge him for an X-ray at his Day Star Medical Center.

     A month later, his girlfriend brought an assault and battery charge against him,; Ultimately, that was taken under advisement and dismissed. 

     Now, what is going on in his life?… Yes, there is more.

     This past Tuesday, he was found to be operating a heating, ventilation and air-conditioning business without a license, and was convicted  on a misdemeanor charge of violating Virginia’s Profession and Occupation act.

      So, I guess we are all caught up. Maybe we should check in on him in a couple of weeks!

     And for pic o’ day, I thought I would stay in a bit of the theme:

Line up

Battle of the Trial Experts

     In yesterday’s blog, I wrote about expert testimony in trial.  Last week, Kim Raab and I tried a case in Richmond Circuit Court, where the experts provided different opinion testimony. It was up to the jury to decide the truth.

     Our client’s car was rear-ended, when she was sitting still on Hull Street. The insurance company’s lawyer told the jury that they accepted liability for the cause of the crash… just not the cause of our client’s injuries. So, the case went to the jury on the claim for injuries.

     In these cases, it really comes down to what harms were caused. That includes how long the injuries last. That’s where the experts went different directions.

     My client was treated by an orthopedic doctor, who gave her an injection in her back; but also said that she had a permanent injury. Her chiropractor had tried to treat her conservatively, because her MRI showed a bulging disc at two low-back levels.

     Both the orthopedic doctor and the chiropractor testified that there was really nothing else that they could do for her. She doesn’t feel pain everyday, but the disc bulging can be aggravated by simple activities like sitting or standing for long periods; driving on trips; or trying to do certain exercises or doing too much activity that involves her low back.

     The defense hired a doctor for the sole purpose of coming to court to testify. He did not see or talk to my client and he did not talk to any of the treating doctors. Instead, he did a “record review”. By his own testimony, that placed him in a better position to evaluate the injuries.

     The doctor hired by the defense told the jury that our client had suffered some injury in the car accident, but that all injuries had resolved. He testified that she did not have any permanent injury and certainly did not need any additional medical treatment.

     When I cross-examined this defense doctor, I knew that it would not be smart to attack him on medicine. He was firm in his opinion. The defense had already brought out that he had been hired and paid by them. The defense attorney just tried to make it sound like an independent evaluation.

     I went back to the fact that the doctor had only read the medical records. I hear it often from defense experts, but I still never get their testimony that they are in a better position to give an opinion because they have not seen the client. Something like no emotional tie.

     As in this case, I always then ask the doctor, “Doctor, do you personally have any patients that you have not seen or spoken to, whom you are currently treating?”. Of course, the doctor answered “No” with a smirk. In closing, it again went back to the reality of the double standard of treatment, versus the defense doctor being paid for testimony in trial. It’s one of those moments when you are hoping that the jury is also shining a light on that defense testimony.

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     When it comes time for the jury to decide its verdict,  they have to decide who is telling the truth. Kim had asked the client during her testimony, to discuss what “permanent” meant in her everyday life. The client discussed issues that included what she could do at work. She also talked about how she has a hard time wearing high heels and now basically only wears flat shoes; or physically pays for it the next day when she wears heels.

Hope

     When I am waiting for the jury to hit the courtroom buzzer to indicate that they have reached a verdict; I am just hoping that they don’t believe the defense doctor.

     I usually don’t talk about the trial result and then I get emails that asked, “So what happened”. The jury came back with a verdict that was more than 10x the settlement offer. That defense doctor was apparently not influential. The jury believed our client.

     For pic o’ day, this is about presentation. Also, this one is for my Mom!

Facebook presentation

A Positive From a Negative

Tucked in the Obituary section of the Richmond Times Dispatch is the notice of the passing of 87-year-old Dr. Allan Unger. His life is a lesson in taking a “No” and turning it into a tremendous impact on a multitude of lives.

Dr Unger worked at Richmond’s Medical College of Virginia (later to become known as VCU Medical Center)  after graduating from the Medical College of Virginia School of Medicine. He had decided to become a doctor, after serving in an Army evacuation hospital during World War II.  He was looking forward to a career in medicine, as a surgeon. That career path changed when he was diagnosed with chronic Hepatitis. At that time, it was suggested that he should avoid a surgical career.

Faced with this life obstacle, he soon decided to become MCV’s first nephrologist, to work with those suffering from kidney disease and related kidney problems. Soon, he persuaded MCV to purchase an artificial kidney, as the first hospital in Virginia to now be able to perform dialysis.

From those beginnings resulting from that purchase, he was known as the founder of the dialysis program at MCV. According to his biography, the machine was described as heavy; made out of steel mesh, and requiring two “burly” men to carry it from a truck.

This machine was used to keep Oklahoman Bill Merriman alive two years later, while his 26-year-old identical twin was prepped to donate his kidney. It would be the first kidney transplant performed in the state of Virginia.

Dr Unger managed Merriman’s life threatening blood pressure until Dr David M. Hume was able to perform that kidney transplant. Today, the VCU Transplant Center is named after Dr. Hume. Probably, that advancement and even the transplant department would not have existed at that time, without the initial purchase of that rotating drum primitive dialysis machine.

After serving on the MCV faculty, Dr Unger moved to San Francisco in 1960.  There, he helped  to start the California Pacific Medical Center’s kidney transplant service and became the first chief of the hospital’s department of nephrology.

Dr Unger passed away on March 29 in San Francisco. He had retired from medical practice there in 1989. All those lives were touched because he didn’t let life’s circumstances stop him. He just went around the obstacle and kept moving forward. I never knew him, but he certainly had impact on my life because of the great Nephrology Department at VCU Medical Center.

For pic o’ day, I thought that I would look for something related to hard work. I came across the following which made me think, “Please never let me do this”!  🙂

Defense Witness: Dr Kennedy Daniels

     To me, some things just don’t make sense. I heard that Ronald McDonald is no longer being used to market hamburgers. Maybe he has been reduced to a shopping cart and a cigarette. The Hamburgler can’t be far behind. Still, it just doesn’t match up.

     In researching this blog on Dr Kennedy Daniels, I came across two facebook accounts. Neither this  nor this  match up as the “Dr Kennedy Daniels”.  Cup doesn’t match saucer.

     Dr Kennedy Daniels is an orthopaedic doctor in Richmond, Virginia. Today, he was supposed to testify in trial for the defense. Originally, I was going to type “against one of our clients” because that is the way he seems to always testify. The case got continued because Richmond Circuit Court did not have enough Judges for trial today. One of those times that most of the Judges were at a conference.

     Dr Daniels is also scheduled to testify tomorrow, on behalf of the defense. His testimony is also adverse to our client’s interests.

     In both cases, he never saw our client;  He did a record review and is basing his testimony solely on “his review of the records”. You don’t need Alex Trebeck to be able to guess what his testimony is going to be again.  He has determined that the client did not need all of the treatment that was received. In these instances, different defense attorneys have identified his expected testimony as eerily the same in both cases.

          Defense attorneys usually can find doctors to testify. Plaintiffs have treating doctors and defense have their medical evaluations or record review doctors testify.

      Right now, Dr Daniels appears to be the “flavor of the month” for the defense. He will get on the stand and say that he can be more objective, being removed from the care. Somehow, he wants the jury to believe that not seeing the plaintiff/patient, is more objective.  That’s why it’s called a defense medical examination or defense medical record review.

     Here’s what doesn’t match up to me. He would never operate or treat someone, without seeing them, would he? At least that’s what I asked him in the most recent trial where he testified. Last trial I asked him how many patients he currently has in California. He gave me a confused look. I then said, “Well doctor, based on your testimony about objectivity, when not seeing the patient; it seems to me that you would only have out of state patients”.  He just smirked.

     For consideration, he wouldn’t get paid $5,000 (cost of his appearance in court that is paid by defense) if he did not render an opinion that was favorable to the defense.  They would not call him to testify. That $5,000 doesn’t include his expense for reviewing the records and writing his report.

               In tomorrow’s jury trial, he is supposedly going to render the opinion that the treatment of one of his partners was unnecessary.  That’s right…. one of his partners. That doesn’t seem to match up, to me. 

     He admits that he does these medical record reviews from his house and that the billing and payment use his home address. He doesn’t have to share that with the rest of his practice or partners, I’m told. It’s a separate business.

     When doing defense examinations, there is no doctor/patient prvilege. So, the only relationship of Dr Daniels, is with the defense attorney. I wonder if that is what the hippocratic oath ever contemplated? 

     It will be interesting to see what happens in this trial. I hope that the jury places no belief in a $5,000 record review. Hopefully, they will say that it just doesn’t match up.

“Ask Your Doctor” Ads

     The other night, I watched the national  Evening News. Normally, I’m either not home,  or my wife and I are eating without the TV  turned on;  Or, My wife and I are eating dinner with Tony Kornheiser and Michael Wilbon. What that really means is that we are watching a  version of “Pardon the Interruption”,  “DVR’d” from ESPN. 

     Watching the national Evening News is surprising, during the advertising breaks. It seems like the commercials are endless ads for some kind of medication. I guess they believe in the proposition that if Big Pharma tells us about a problem, then they have  a pill to fix it.

     There might be an advertisment that deals with poor sleeping habits. Then, they tell you how they can fix that, to make you feel like a butterfly is floating past you. Do we really want butterflies hanging around our pillows?

     The next ad might have something to do with “jumpy legs”. Or, a guy has heart or cholesterol problems and he is always in black and white, until he takes one of these amazing pills and life is back in color again…. riding a bike with family.

     They always have the depression ads. The person with furrowed brow is magically out in the garden or smiling at the world, after taking that special medication. Maybe there’s depression after learning that you have to take a pill for jumpy legs, so you can have butterflies zipping around the bedroom, while you sleep with that satisfied look of “making sure that you have 8 hours to sleep”  when you take the pill.

     In my practice, I regularly rely on what doctors say or put in their notes. The standard for evidence is “more probable than not”.  The Hippocratic oath includes the words “First, do no harm”. For that reason, you would think that doctors would want to be advocates for their patients in testimony and in the medical records.

     Some doctors will come right out and say that they don’t want to be involved in an accident case. In fact, they will charge such an exorbitant amount to meet, have their deposition taken or even come to court, that it sometimes becomes financially prohibitive. They seem to forget that the client has to ultimately pay for their testimony. 

     At a recent seminar, a jury psychologist was saying that nurses are now considered to be much more credible and reliable than doctors. Because of these surveys, they were encouraging us to call nurses to testify in our cases.

     I guess the summary of all these “ask your doctor” ads  has led me to believe that the public might see these ads and starts linking Big Pharma with doctors. If you start to believe that doctors are in the pocket of Big Business, no wonder we begin to believe in the nursing profession as more dependable.

     Personally, I’m glad that I have doctors that I can depend on. In fact, I never feel as though I have to ask them about a prescription that I just saw on TV. Maybe that is a good test as to whether you are already receiving good medical care. I don’t have to walk in with some  prescription name, written down on a piece of paper, to ask my doctor whether it’s right for me.  Otherwise, maybe the ads should say, “Ask your nurse if your doctor is right for you”.

An Abbreviated Blog

     I know that a few of my blogs have been a bit long. As a kid, my mom used to always repeat what the dog said, after he had his tail run over, “It won’t be long now”. That made me laugh. Now, I kinda feel sorry for the dog. Anyway, I do have a few blogs coming that will be back to the “War and Peace” length, but I thought I’d pass on something that you might want to stash away.

     I received an email from another lawyer, Dorothy Sims, who sent medical prescription abbreviations. Sometimes my clients will ask me what “that means” so I thought that I’d attach some abbreviations. I hope it’s helpful. Of course, I also thought, when I was a kid, that I had made up a funny joke that would make me famous, “What did one arm say to the other arm? Let’s go join the army”. It was funny when I made it up, so maybe a 6 year old, reading my blog, might be laughing out loud right now. Here’s the prescription cheat sheet (I know, you never thought you’d see Latin in this blog!):

a.c. : before meals (Latin: ante cibum)

b.i.d. : twice daily (Latin: bis in die)

b.i.n. : twice nightly (Latin: bis in noctus )

cap : capsule (Latin: capsula)

d : day (Latin: dies)

daw : Dispense as written, no substitutions

gtt : drop (Latin: gutta)

h.s. : bedtime (Latin: hora somni)

noxt : at night

O.D. : Right eye (Latin: oculus dexter)

O.S. : Left eye (Latin: oculus sinister)

O.U. : Each eye (Latin: oculus uterque)

p.c. : After meals (Latin: post cibum)

p.o. : By mouth (Latin: per os)

p.r.n. : As needed (Latin: pro re nata)

q.d. : Every day (Latin: quaque die)

q.h. : Every hour (Latin: quaque hora)

q.2h. : Every two hours (Latin: quaque secunda hora)

q.3h. : Every three hours (Latin: quaque tertia hora)

q.4h. : Every four hours (Latin: quaque quarta hora)

q.q.h. : Every four hours (Latin: quaque quarta hora)

q.6h. : Every six hours (Latin: quaque sex hora)

q.8h. : Every eight hours (Latin: quaque octa hora)

q.i.d. : Four times per day (Latin: quater in die)

q.s. : As much as is required (Latin: quantum sufficit)

s. : Without (Latin: sine)

s.o.s. : If necessary (Latin: semis)

ss : Half (Latin: sine)

t.d.s : To be taken three times daily (Latin: ter die sumendum)

t.i.d. : Three times a day (Latin: ter in die)

t.i.n. : Three times a night (Latin: ter in nocte)

ut. dict. : As directed (Latin: ut dictum)

Loser Really Loses

It seems a paradox to include issues about doctor mistakes in the national health care bill. However, apparently legislators don't see the oddity of this. As such, one such inclusion, in the potential health care legislation, involves a proposal co-sponsored by Senators Saxby Chambliss (R-Ga.) and Lindsay Graham (R-SC).

The Senators have proposed a restrictive "loser pays" provision. In their bill, when a patient brings an action against a doctor and loses, then the patient would also be responsible for all legal fees and costs that were spent by the doctor, to defend himself.

On it's face, some probably would get this far in my blog and say "So?". Well, you'll note that it doesn't go both ways. If you're going to make a patient pay a doctors attorney fees and cost, if they lose, why not make the doctor pay the patient's, if the case has to go to trial and the doctor loses . Why can't "loser pay" go both ways.

The justification for such legislation is to  (get ready for the buzzwords) stop the "frivolous lawsuits". The legislation also includes a provision, according to the Atlanta Journal-Constitution,  that would require both parties to enter non-binding arbitration to try to resolve disagreements.

I have a few thoughts on this legislation that might differ from some other trial lawyers. First, I do think that some claims brought against doctors have no merit and could be deemed as frivolous. Usually, in my experience, it involves some young lawyer who thinks that just because there is a bad result, it must mean that there should be some payment by the doctor. Some states have cured this by requiring that an expert opinion on the standard of care be filed or, or at least, certified to exist, before a malpractice suit can be brought.

Second, I think that non-binding arbitration can be a huge waste of time, requiring the plaintiff to spend, to put on their case and just added costs to the whole procedure, while the defendant completely ignores any arbitration finding. However, in South Carolina, some counties have mandatory mediation. It causes the parties to get together with a neutral individual and results in many settlements. Sometimes it even gives the plaintiff a sense of having their day in Court.

 Finally, interestingly enough, I asked a legislator, a few years back, to introduce a "loser pay" bill in the Virginia General Assembly. It was the same as what has already been enacted as law in North Carolina. There was such opposition to it that it didn't make it out of committee.

I guess this legislation has to be looked as to whether or not it significantly impacts access to the courthouse, by those who don't have the resources anyway, and are then scared off by the one sided requirement of paying. In a just world, those responsible are always held accountable. Unfortunately, no one really believes such is happening. 

Several years ago, I tried a malpractice case in South Carolina. The jury stayed out 6 hours and then came back with a defense verdict. Two of the jurors were troubled by the result because they felt that malpractice had been committed. However, they said that, in the jury room, the jurors were all concerned about the possibility that doctors would leave the state, if verdicts were entered against them. These jurors believed the propaganda of tort reformers. In that instance, my 80 year old client would have been responsible for those defense costs.   

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