Articles Posted in Conflicts of Interest

The DC Medical Malpractice & Patient Safety blog published an interesting post last week that sheds light on a new court opinion which upheld a jury decision against a medical group known as the American Academy of Orthopaedic Surgeons (AAOS). The blog post can be found here and a .pdf of the court opinion is here.

The situation is worth learning about, because it offers a glimpse inside one of these medical advocacy groups, reminding that “objectivity” and “honesty” are not necessarily the focal point of all of their actions. This case is a reminder of how much work still needs to be done before patient safety is the number one priority among medical professionals. Unfortunately, the culture of protecting one’s own–instead of being honest about medical errors or negligence–is still prevalent.

“Reckless Disregard for the Truth”

When considering improper conduct by hospitals administrators and staff members, most focus is on medical errors. Medical malpractice rules requires professionals to act prudently at all times. When those standards are not met and harm befalls a patient, then a malpractice lawsuit might be filed.

But focusing only on medical mistakes–things like surgical problems, medications errors, and more–does not adequately cover all of the ways that a facility can disrespect patient rights and cause very real mental, emotional, and physical harm. Sadly, the drive for profits occasionally leads facilities to act inappropriately. Sometimes this involves trying to “get rid” of patients who, for whatever reason, are not as profitable. Because of certain insurance rules and other financial factors for patients, some hospitals skirt ethical rules in trying to get patients out of their facility.

Shuffled into Nursing Home

In recent weeks we have discussed the federal False Claims Act which seeks to protect taxpayers from wasteful spending on programs like Medicare and Medicare. Unfortunately, with hundreds of billions of dollars spent each and every year it remains difficult for federal regulators to ensure that every dollar spent is going toward necessary, efficient care. For those service providers with less scruples, it may be tempting to game the system, cut corners, and act outright fraudulently to attract more and more reimbursements.

One need only look so far as the front page of any newspaper today to identify the need to be serious about efficiency with public funds. Today marks the beginning of the “sequestration” cuts, which will enact nearly $85 billion in automatic budget reductions affecting many different programs and agencies. Medicaid and Medicare are mostly spared from this particular round of cuts, but any compromise to end the cuts may include reduction in payouts for these programs.

Understanding that background makes stories like the one posted in the Star Tribune quite infuriating. The reports explain how government investigators recently revealed that over $5 billion in Medicaid funding may be wasted on certain skilled care–specifically in bad nursing homes. The findings were part of a report released by the inspector general from the U.S. Department of Health and Human Services.

One of the most important pieces of medical documentation used in countless different ways is a death certificate. At first glance, it might be easy to underestimate the importance of this piece of information. After all, the patient has already passed away, and nothing written in the certificate will change any of that. But the truth is that the death certificate has significant ramifications on survivors. From legal consequences and insurance details to widespread public policy data, the information in the death certificate impact various matters. For that reason, it is absolutely critical to get the information correct every time. But mistakes and confusion surrounding these records remain common.

The U.S. Centers for Disease Control and Prevention have guidelines regarding the basic information that must be included on all certificates. However, each state may collect that information in slightly differing ways. The certificates are occasionally updated, but the main information in them has remained unchanged for decades.

Doctors are usually responsible for adding information like date and time of death on top of “primary and secondary” causes of death. Depending on the complexity of the situation (and the doctor’s familiarity with the patient) these details may be filled out in haste–often inaccurately.

Patient safety advocates who are working to minimize medical malpractice usually leave no stone unturned when it comes to identifying solutions. It is one thing to properly identify the mistakes that occur, highlighting the prevalence of preventable errors. However, it is another to enact changes that minimize the errors. Awareness is a necessary but not sufficient step to improving patient care.

For example, everyone knows that operating on the wrong body part is an obvious, and unacceptable error. No doctor needs to be told otherwise. Additionally, it is relatively well-known, at least in the medical community, that these surgical errors are surprisingly frequent. Yet the errors still mount up year after year. If it were only a matter of telling everyone “Don’t make surgical errors,” then the problem would have disappeared a long time ago.

Instead, more complex issues need to be addressed which contribute to the likelihood of certain mistakes being committed. Much of this involves playing the odds. The use of checklists during surgery, as an example, does not guarantee that no surgical errors will ever be committed. Conversely, not using a checklist does not automatically mean that mistakes will be made. But research has found that using the lists lowers the risk. If the ultimate goal is fewer mistakes, then using checklists is preferable to not using them.

The Center for Justice & Democracy released a new report recently that discusses contingency fee arrangements and their value. There are many different misconceptions about the importance of the system, its history, and the benefit that it provides to all community members. The full report is available online and entitled Courthouse Cornerstone: Contingency Fees & Their Importance for Everyday Americans.

How It Works

Most are familiar with the basics of contingency fee arrangements. They are far and away the most common type of arrangements in personal injury cases, including Chicago medical malpractice lawsuits. The basic idea is that the arrangements allows those hurt by the misconduct of others to pursue justice without having to come up with significant funds (or any funds) at the outset. Instead, a legal professional works without pay and covers all costs with the understanding that payment for those services will be paid out of a settlement or judgement. If no favorable settlement or judgement is reached, then the attorney does not receive anything for his or her time and loses the costs incurred. The plaintiff generally does not have any financial obligation following a loss.

Our injury attorneys frequently remind Chicago residents of the dangers of arbitration agreements. Usually entered into unknowingly, these agreements often bind parties to using a separate legal process to resolve disputes. Sadly they are growing in popularity in many contexts, including nursing home admissions and some speciality medical services. At the end of the day, arbitration is almost always more harmful to plaintiffs than the traditional civil justice system. Where at all possible, it is critical for individuals not to sign these agreements to preserve their right share their story in front of a judge or jury pursuant to regular legal rules in the event of a dispute.

Unethical Relationship With Arbiter

One recent case offers an example of how a family’s attempt to seek accountability following medical malpractice hit a road block as a result of a binding arbitration agreement and questionable relationships between the defense counsel and those involved in the arbitration decision.

Insurance companies are often at the center of injury lawsuits. Medical malpractice cases are no exception. While hospitals, doctors, nurses, and other staff members may be the individuals who actually committed the errors, any subsequent payment to those harmed will likely be made by an insurance company. That is why these companies often dominate the defense of most injury cases, including those related to medical malpractice nursing home neglect, auto accidents, and more.

As most intuitively know, insurance companies are not in the business of being generous when they need to make a payment. In fact, many have experienced first-hand the low ball techniques used by these companies to make as little a payment as possible, regardless of the long-term harm and damage suffered. One of the very reasons that you need to have an experienced Chicago medical malpractice attorney on your side in the event of a medical error is so that professionals are acting on your behalf when dealing with the tactics of large insurance companies. Going it alone is usually a recipe for getting nowhere near what you are owed.

Insurance Computer Software Problem

Those who follow civil justice issues know that most “tort reform” efforts are state-based. In other words, changes to the civil justice system–like arbitrary damage caps and new rules for seeking accountability in medical malpractice cases–are passed by state legislatures, not Congress. That is why it is a seemingly never-ending battle to protect these rights for all Americans. There are many different state coming up with various proposals (at the influence of big interests) to take away justice rights.

For example, the Center for Justice & Democracy recently flagged two states which have proposals in the works to possible go entirely overboard and eliminate the right to a jury trial altogether. Legislation has been introduced in both Florida and Georgia which were drafted by a leading healthcare company owner. Not surprisingly, the proposal is a direct affront to the rights of medical patients and a way for medical interests to be insulated from ever being held fully accountable for their conduct.

Eliminate the Jury Entirely?

Money makes people do strange things. Unfortunately, that is true even for professionals who are able to make a healthy living without resorting to unscrupulous conduct. The striving to maximize profits, get more and more at all costs, is at the root of so much abuse, mistreatment, and crime. The perverse motivations can be found everywhere, from the legal world to the medical world. It is never acceptable, and it must be called out in order to have accountability and fairness.

In the medical arena, for example, the problem often manifests itself in the form of Medicare fraud. The reasons are simple. Medicare (and Medicaid) programs pay for a large percentage of medical care in the United States. When a doctor performs work, the payment for that work will often come from one of those programs. Functionally, this means that the doctor will send a bill to Medicare which will then make a payment to the doctor for those services, usually for a set amount that both sides know will be paid for the work. This system means that there is trust placed with the doctor to ensure that the billing is accurate and approprate. Sadly, some medical providers are tempted to breach rules with regard to that billing, ultimately trying to syphon off more money from the public coffers.

Challenging Medicare Fraud

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