P.I.S.S.D. -- Personal Injury, Social Security Disability. Dallas Texas Lawyers

Health Insurance Companies Cut Back On Medical Tests - Does This Help Or Hurt Patients?

The Associated Press is running a story today in papers across the country, documenting cutbacks health insurance companies are making in the number of medical tests they approve. Actually, the carriers are requiring pre-approval for more and more tests, which has the effect of cutting back on the total number. The insurance companies say this is for the protection of the patients (to reduce unnecessary exposure to radiation), but doctors say patients are endangered because they're not getting sufficient testing before diagnoses are made. Here are excerpts from the story:

Insurance companies are taking a harder look at advanced medical scans like CT scans, citing spiraling costs and safety concerns. And some doctors agree that there’s emerging evidence that these scans are being over-prescribed.

“Costs are soaring in this area, quality concerns are mounting, and safety concerns are mounting,” said Karen Ignagni, the chief executive of the trade group America’s Health Insurance Plan.

Health insurers are requiring more preauthorizations before patients can have these scans, and setting other restrictions including mandating that the imaging equipment and medical staff be credentialed in advance.

Insurers fear that some patients are being exposed to dangerous radiation levels from having repeated CT and PET scans, which use many times the radiation of a regular chest X-ray. Sometimes, scans are repeated because the first ones were not done properly because of outdated equipment or poorly trained technicians.

But doctors say that the bigger problem with medical imaging tests is the insurance red tape needed to get them.

“Is this a preauthorization process, or are these (insurance) companies practicing medicine?” asks Dr. Arl Van Moore, the board chairman at the American College of Radiology, the specialists in medical imaging.

Moore cited another reason for increasing costs: Doctors sometimes order a diagnostic test that doesn’t need preauthorization - even if it provides less-helpful information than the one they prefer - then try to get approval for a more advanced test if the first one shows that it’s needed.

Worse yet, sometimes patients end up getting a riskier, more invasive test than what they really need, Hendel said. For example, cardiologists wanting to assess blood flow and blockages inside a patient’s heart arteries would prefer a nuclear cardiology test. With that, a small amount of a radioactive substance is injected in the blood and tracked using a camera.

Some doctors will instead order a cardiac catheterization, which doesn’t require advance authorization, Hendel said. But that involves threading a catheter through a blood vessel up into the patient’s heart - and carries a 10-times higher risk of complications such as a heart attack or stroke, he said.

The Truth About Medical Malpractice Litigation

Here is a very good discussion of the medical malpractice insurance crisis by the Center for Justice & Democracy.

A Bad "Solution" To A Perceived Medical Malpractice Insurance Problem

Here's a truly bad idea from the National Center for Policy Analysis (NCPA). This nonprofit, nonpartisan research institute advocates private solutions to public policy problems. In December they came up with a really bad "private solution" for the alleged medical malpractice insurance problem.

The group proposes removing medical malpractice claims from the judicial system and instead using a new system that "automatically compensates patients for unexpected injuries or deaths, regardless of who is at fault." Here are excerpts from the NCPA report:

The malpractice system is supposed to compensate victims of negligent medical practice for their injuries and discourage future errors by medical providers.  It does both jobs poorly.  Consider that:

• Fewer than 2 percent of patients (or the families of patients) who are negligently injured ever file a malpractice lawsuit; and even fewer receive compensation.
• Moreover, of the lawsuits filed, fully one out of every three cases does not involve any medical error.
• Furthermore, malpractice victims receive less than half of every dollar (46 cents) recovered through settlements or jury verdicts go to the victims; the rest goes to pay their attorneys’ fees, court administrative costs and defense costs.

The current system, according to the report, imposes large costs on doctors.  One in every four physicians is sued every year, and more than half are sued at least once during their career.  To protect against such lawsuits, doctors purchase malpractice insurance, which carry high premiums.  Most of these costs are passed on to all patients. The total cost of the medical tort system is estimated between $129 billion and $207 billion – or as much as $2,000 per year for every household in America.

The report suggests a reformed system should compensate every patient fully who is harmed by a medical error, minimize the cost of determining compensation and encourage health care providers and patients to act in ways that reduce the frequency of errors.  To do this the NCPA suggests replacing the tort-law malpractice system with a system in which liability would be determined by voluntary contract.  These contracts could include:

• Compensation without fault – set in advance the amount a provider is obligated to compensate the patient (or family of the patient) for in the case of unexpected death, and set compensation for unexpected disability based on the state Worker’s Compensation system.
• Adjustment for risk – allow the compensation amount to be reduced for the riskier patient or high-risk procedures.
• Full disclosure – require providers to make certain quality information public, such as mortality rates for surgeries.
• Patient compliance – base qualification for full compensation on the patient’s compliance with certain provider directives, including diet restrictions, full discloser of medications being taken.

“Instead of buying malpractice insurance, physicians would essentially be purchasing short-term life insurance on all patients, say, undergoing surgery,” said Villarreal.  “Under this system, insurers would have a strong interest in monitoring how doctors practice medicine and would price their policies accordingly.  Bad doctors would largely be priced out of the market.”

Without trying to refute every factual and logical error in the report (If one out of every four doctors is sued every year, then why would only "more than half" be sued at least once during their career"? Even the conservative Congressional Budget Office says there are only 15 claims [not suits] filed each year per 100 doctors.), the conclusion of the report is simply ludicrous -- patients are supposed to negotiate with doctors about the value of their lives and limbs before they receive medical treatment? How eager is your doctor going to be to treat you if you begin the relationship by arguing about how much the doctor should pay you for each possible mistake the doctor might make during treatment? And how much time is a busy doctor supposed to devote to such negotiations at the beginning of each new patient visit? That would be crazy.

Then again, perhaps the contract is only to be between the doctor and the insurance company, with the patient left out entirely.  How fair would that be -- the patient would be totally at the mercy of an agreement to which he or she was not a party.

Too many people seem eager to abolish the American system of justice when it comes to their own areas of interest, whether it's doctors and malpractice or home builders and defective houses. We can't let justice be available for sale to the groups who can afford to pay politicians the most money. It must be equally available to all citizens of the United States.

ER Doctors Less Likely To Prescribe Painkillers To Minorities

Here's a strange and troubling tidbit from today's Dallas Morning News. A recent study revealed that emergency room physicians prescribe narcotic painkillers more frequently to white patients than to minority patients. What's especially odd about this fact is that whites are more likely to abuse painkillers than are blacks or Latinos. Here are excerpts:

Even for the severe pain of kidney stones, minorities were prescribed narcotics such as oxycodone and morphine less frequently than whites.

The analysis of more than 150,000 emergency room visits over 13 years found differences in prescribing by race in both urban and rural hospitals, in all U.S. regions and for every type of pain.

The study appears in Wednesday’s Journal of the American Medical Association. Prescribing narcotics for pain in emergency rooms rose during the study, from 23 percent of those complaining of pain in 1993 to 37 percent in 2005.

The study’s authors said doctors may be less likely to see signs of painkiller abuse in white patients, or they may be undertreating pain in minority patients.

In the study, opioid narcotics were prescribed in 31 percent of the pain-related visits involving whites, 28 percent for Asians, 24 percent for Hispanics and 23 percent for blacks.

Link of the Day - Checking Up On Your Doctor

The Dallas Morning News had a good article recently detailing different ways to get information about your medical providers. It's much easier now, with the Internet, to find out if a particular doctor has had problems in the past with any of the governing medical bodies. Here are excerpts:

The Texas Medical Board announced in August that it had disciplined 88 physicians for problems ranging from failing to file paperwork to endangering patients’ lives. Twenty-one of the disciplined physicians are in the Dallas-Forth Worth area. The board also told two people who were practicing medicine in Texas without a license to stop.

While most of the state’s more than 44,000 physicians provide patient care without incident, it’s worth checking out your doctor. The TMB, which is responsible for licensing and disciplining physicians, physician assistants and some other medical professionals, provides information for consumers to background physicians on its Web site.

The TMB search allows you to look for a physician by name, license number, ZIP code, city and specialty.

The results page indicates which information TMB verified. The rest is reported by the physician.

Also Online

Link:Texas Medical Board

Link: American Board of Medical Specialities

Link: Public Citizen Study

Link: Federation of State Medical Boards

The information verified by TMB includes license status and license history, the physician’s medical school, and any action or closed investigations the TMB has conducted.

Information reported by physicians, but not verified by TMB, includes board certification, malpractice claims, criminal records and basic information about their practices, such as office location and the hospitals where they work.

While TMB does not verify board certification, you can check yourself by checking individual certifying boards’ Web sites. You also can check the American Board of Medical Specialties’ Web site. The search is free but requires registration. You also can call the ABMS at 866-275-2267 to verify a certification.

TMB investigations are prompted by complaints, which come to the agency in a variety of ways. An investigation might begin as police report, a news story, an insurance complaint, or a complaint from a patient or colleague of the physician. While not all complaints lead to disciplinary actions, the board says it reviews all complaints filed.

The number of disciplinary actions taken by the board has nearly tripled since 2001. During the same time, complaints increased about 60 percent.

Most of those violations resulted in fines, additional training or monitoring by another physician. In some cases, the board temporarily suspended licenses.

Publicly available physician profiles were mandated by the Texas Legislature in 1999 and were put online in 2001, according to Ms. Wiggins.

A 2006 report by the advocacy group Public Citizen rated Texas 14th in its evaluation of the information medical boards provide on their Web sites. The study evaluated Web sites based on several criteria, including basic physician information, discipline reports from hospitals and medical boards, criminal information and how easy the Web site can be navigated. The study ranked New Jersey best with 84 points out of 100. North Dakota was rated lowest with only 12 points out of 100. Texas scored 62 points.

While Texas scored above average in most categories, it received zero points for disciplinary information from hospitals and from federal agencies such as Medicare, the Food and Drug Administration or the Drug Enforcement Agency. The TMB is not is not required to report that information.

To search physician license information in other states, go to the Federation of State Medical Boards’ Web site, which has a directory of state medical licensing boards and links to their Web sites. In some states, medical doctors and doctors of osteopathy are overseen by different boards, so you may need to check multiple sites.

Link of the Day - Two Sides Of Medical Malpractice Caps Debate

On Friday, October 5, 2007, the New York Times published an article on the "rush" of doctors coming to Texas to practice after the medical malpractice liability caps were passed in 2003. Below is Texas Trial Lawyers Association President Jay Harvey's Letter to the Editor delivered to the New York Times the same day.

Dear Editor:

In your article "After Texas Caps Malpractice Awards, Doctors Rush to Practice There" (10/5/2007), the cheering section for stripping legal rights from patients injured by medical errors conveniently omits several telling statistics. According to the 2006 Census, states limiting the compensation for medical errors have 249 physicians per 100k population; states without caps have 283 per 100k. While hailed as a cure for counties without an obstetrician, three years after the cap was enacted Texas had four fewer counties with obstetricians.

Also not mentioned is the importance of fair access to the courts for families devastated by malpractice. Caps are routinely used by defendants to make pursuing claims more expensive than any possible recovery. Thus malpractice can be kept from public scrutiny and bad hospitals and doctors can continue to put patients at risk. Caps may be good new for bad doctors, but they are bad news for all patients.

Jay Harvey, President

Texas Trial Lawyers Association

Link of the Day - Tort Reform Group Protects Bad Doctors?

The Houston Chronicle had a very interesting article this past weekend about the tort "reform" group known as Texans for Lawsuit Reform. It seems the group is so desperate to deny Texas consumers a fair day in court that they don't even bother to do background checks on their own spokes people.

In this instance, a physician the group was using in their unrelenting battle against Texas citizens turned out to be an apparently stunningly bad doctor. Here are excerpts from the story:

Retired orthopedic surgeon Forney Fleming was just what the doctor ordered, or so Texans for Lawsuit Reform thought.

He was eager to bash plaintiffs' lawyers, particularly those who targeted doctors. So TLR, a business group that has spent hundreds of thousands of dollars bashing plaintiffs' lawyers and winning restrictions on judgments against physicians and other defendants, signed him up as a volunteer speaker.

Until a few days ago, TLR also featured Fleming's "supporter profile" on its Web site, where he was quoted:

"I was practicing in a 'judicial hellhole' and saw the effect of lawsuit abuse, which was decreasing the accessibility of medical care in Jefferson County."

Fleming, however, left out some details of his professional life, including his reprimand and $7,500 fine by the Texas Medical Board in 2004 for misdiagnosing what turned out to be bone cancer in a 16-year-old girl's leg. The leg later was amputated.

The board also accused Fleming of providing substandard care to six other patients, including an 81-year-old woman with a fractured hip. That formal complaint was still pending when he let his medical license lapse and retired last December.

And, according to state records, Fleming was sued or threatened with suits for malpractice three times. All were settled out of court or resolved through mediation for undisclosed terms.

None of his professional problems was mentioned on the TLR Web site, but his profile was removed last week, within an hour after I informed a TLR spokeswoman about them.

Fleming, who practiced for more than 30 years in Beaumont and is a former president of the Jefferson County Medical Society, now lives in Garland. He didn't return my phone calls.

His regulatory record is available for public review on the Texas Medical Board's Web page, which TLR hadn't bothered to check.

The group's speakers are all volunteers, spokeswoman Sherry Sylvester said, adding, "We have at this point not done a background check on any of them."

In 2003, TLR's political action committee spent at least $300,000 promoting voter approval of Proposition 12, a constitutional amendment ratifying new limits on noneconomic damages — money awarded for such things as pain, suffering and disfigurement — in medical malpractice cases.

In a formal complaint filed that same year, the Texas Medical Board's staff alleged that Fleming, in treating the 16-year-old girl for a knot in her right leg, had failed to review reports by an emergency room radiologist and her primary care physician, who believed X-rays indicated the possibility of bone cancer.

Fleming had seen the patient four times over a two-month period in 2001 before her family took her to another physician, who ordered an MRI. After several chemotherapy treatments at M.D. Anderson Cancer Center in Houston, the leg was amputated at the knee.

Fleming agreed to a negotiated disciplinary order, entered in April 2004, joining only a small fraction of Texas doctors who have ever been disciplined by the state.

In addition to the public reprimand and fine, he agreed to have his medical practice monitored for three years and accepted certain other requirements, including additional professional education.

The regulatory board's staff filed another complaint against Fleming in August 2006, alleging substandard care for six additional patients, including the 81-year-old woman and patients treated for fractured ankles, a fractured wrist and a crushed leg.

Tort-Reform Folly

There was an excellent article about "Tort Reform" in the Austin Chronicle a few days ago. It was so good, I'm going to include the entire article here and just hope the newspaper doesn't find out.

Back in 2003, 71-year-old Alvin Berry of Copperas Cove went to the doctor for a routine prostate screening. He was told his antigen levels were elevated, so his doctor referred him to a urologist for a follow-up. The urologist, however, told Berry not to worry. Seven months later, Berry's antigen levels had skyrocketed – he had developed prostate cancer, and it was too late, the cancer had already spread to his bones. He was given five years to live. Unfortunately, reports the consumer-advocacy group Texas Watch in 2003 Berry had also voted in favor of Proposition 12 – the sweeping "tort reform" package that severely limited the ability of individuals to avail themselves of the legal process and to sue in cases of medical negligence (what tort reformers – read, insurance companies – prefer to call "frivolous lawsuits") – and with its passage, discovered that now he was left without the ability to seek legal redress for his doctor's deadly oversight. "We'd voted on something," Berry told Texas Monthly in 2005, "and we really didn't know what the facts were."

To hear Gov. Rick Perry tell it in his State of the State speech last week, the facts are that things in the land of tort reform are just peachy, thank you very much. Texas is "perched at the forefront of a new era of prosperity," he said. "Frivolous lawsuits are down, as are insurance rates for homeowners and doctors. Thanks to medical liability reforms, hospitals are once again able to recruit specialists whose expertise can mean the difference between life and death." Apparently, Perry wasn't talking to Alvin Berry. According to a new Texas Watch report on the state of Texas' tort-reform measures, Perry's promises that frivolous lawsuits and high medical-malpractice insurance rates are down, and that the recruitment of specialists is on the rise, are just promises that haven't panned out. In fact, it appears that the opposite may in fact be true. Since passage of Prop. 12, malpractice insurance premiums remain inflated. Texas Watch Executive Director Alex Winslow notes that from 1999 to 2002, insurance premiums had ballooned as much as 145%. In the years since Prop. 12, premiums have come down, but only by about 13.5%, Winslow notes, meaning they're still artificially high. "Clearly," he says, "doctors are still paying too much for their med-mal premiums," and what "marginal reduction" there has been has had "little to do with Proposition 12" but have been part of a natural market adjustment – at least in part stemming from the outrageously high premiums charged in the preceding years.

And, contrary to Perry's reassurance, the number of counties without specialist doctors – and particularly those without access to an obstetrician – has actually increased since 2003. Currently, 156 counties – more than 60% of all Texas counties – do not have a licensed obstetrician. That bit of news is stunning, considering the emphasis tort reformers placed on access to obstetricians in their politicking for Prop. 12. "This is one of the most striking things we encountered" when preparing the report, Winslow said. "This was one of [the Prop. 12 supporters'] main talking points" – that out-of-control lawsuits, leading to out-of-control med-mal insurance rates, were at the heart of the obstetrician shortage. If that were true, Winslow says, we wouldn't be worse off today than we were before Prop. 12. At the heart of the problem, Winslow suspects, is that smaller counties with higher indigent populations and less up-to-date technology are hard-pressed to lure qualified specialists – including obstetricians. As such, instead of the sweeping tort-reform measures, it might have been wiser to concentrate resources on solving the indigent-health-care crisis – as it stands, 25% of Texas' population is uninsured, and prohibiting access to legal redress does nothing to change that. At press time, Perry spokesman Ted Royer wasn't available for comment.

Link of the Day - Texas Board Of Nurse Examiners

The mission of the Board of Nurse Examiners for the State of Texas is to protect and promote the welfare of the people of Texas by ensuring that each person holding a license as a nurse in the State of Texas is competent to practice safely. The Board fulfills its mission through the regulation of the practice of nursing and the approval of nursing education programs. This mission, derived from the Nursing Practice Act, supersedes the interest of any individual, the nursing profession, or any special interest group.

At this Web site you will find statutes, rules, and regulations governing nursing in Texas, as well as information of the disciplinary procedures.

Medication Errors Labeled Serious - And Preventable

The Dallas Morning News' feature story today was about medication errors at U.S. hospitals. Here are a few excerpts from the article:

At least 1.5 million Americans are injured or killed every year by medication errors at a direct cost of billions of dollars, according to a report issued Thursday by the prestigious Institute of Medicine.

For hospitalized patients, the report said that on average one medication error per day is caused by confusion in drug names, wrong doses, failure to deliver drugs and a host of other problems.

The report is a follow-up to a 1999 report from the institute, which is part of the National Academy of Sciences, that outlined all medical errors and said that as many as 98,000 people are killed each year as a result of medical errors – 7,000 as a result of medication errors.

The study laid out a series of recommendations for new procedures and research to minimize the risk of medication errors.

•It called for all prescriptions to be written electronically by 2010. Currently, fewer than one-fifth of prescriptions are written and transmitted electronically.

•It said the country should invest about $100 million annually in research into closing "an enormous knowledge deficit" about drug errors and called on the Food and Drug Administration to order improvements in the way drugs are named, packaged and labeled.

Each year, there are an estimated 400,000 preventable drug-related injuries in hospitals, costing at least $3.5 billion.

There are also 800,000 medication-related injuries in nursing homes and other long-term care facilities and about 530,000 among Medicare recipients in outpatient clinics.