Here in California we’ve had liability reform for medical malpractice claims since 1975.  It has exactly the kinds of caps and limits that are being proposed nationally and which the ER physician group apparently supports.  California’s experience with these tort limits is that while they have definitely reduced the number and cost of liability claims, and have made malpractice insurance cheaper and more easily available for California physicians, this has not translated into significant savings in the cost of health care in California.  [Anybody living in California knows it has not become a nirvana of inexpensive health care.] 

Because California is not the only state which has passed tort reform for medical malpractice claims, there is similar data available from other states as well.  The CBO reviewed this issue several years ago, and the truth of the matter is, while there is definitely some money to be saved if you institute malpractice tort reform, the total dollars are estimated to be quite small compared to the total bill for health care in the US.  People who talk about tort reform as the solution to the nation’s high cost of health care are either ignorant or liars. Given the fact we have a number of states that have the sort of tort reform being championed at the national level, I’m baffled by the lack of interest in the data to be derived from these state experiences.    

Harvard did a study 15-20 years ago looking at the potential cost of going to a “no fault” medical malpractice system.  That study concluded doing so would essentially bankrupt the health care system because there is so much real negligent care that injures patients.  As it turns out, statistically, only a small percentage of the victims of true negligent care file lawsuits.  Nobody is certain why this is true, maybe the victims never realize what really happened, or they do know but they like their doctor and don’t want to sue anyway.  In any event, according to the Harvard study, a true no fault system that actually compensated all the victims of malpractice would cost far more than the current system, so if you’re looking for cost savings, no fault is not an answer either. 

The truth of the matter is there are many drivers of the high cost of health care in the US- heavy use of increasingly expensive drugs, heavy use of expensive technology, lots of high technology and expensive care at the end of life, the cost of liability claims, regional variations in care and lack of focus on “best practices” in medicine [the idea of using aviation style check lists is just now catching on in operating rooms and hospitals], an insurance system that pays for things done, especially procedures, rather than maintaining good health, and many other problems.  Sadly, there is no simple answer or silver bullet; driving down health care costs is going to take thoughtful and concerted effort across a wide range of issues and problems.  Almost every problem has a simple answer and that simple answer is almost always wrong.  So could we all please actually consider the data before braying about liability reform as a solution?

If the DUI is truly an isolated incident in the life of an RN who is evaluated and found not to be an alcoholic, never to have been intoxicated at work and otherwise considered a good worker and valuable member of the health care team, why place that person on probation, possibly meaning they become unemployable?  How does this make sense when there is a shortage of good RNs?   And is this a rational use of scarce enforcement resources?  It doesn’t make a lot of sense to me.

It would be nice if the California Hospital Association or the large health care systems in the state could bring this to the attention of the governor and try to see if we could have a more rational, nuanced policy.  Some sort of citation or reprimand that is less than probation would seem to make a lot more sense for a health care professional who gets a DUI, absent any other evidence of impairment.  At least that’s how it looks to me.

In brief, Dr. El-Attar, a cardiologist, had been a member of the medical staff for a number of years.  He was one of several physicians targeted by an ad hoc committee investigation looking into quality concerns.  The allegation was made that Dr. El-Attar was involved in “a pattern of clinically unnecessary, inappropriate, and opportunistic consultations involving patients who had been admitted to Hospital through the Emergency Department”.  Dr. El-Attar’s privileges were up for bi-annual renewal later the same year.  The medical  staff MEC recommended reappointment but the hospital governing board suspended Dr. El-Attar and refused him reappointment.  Although the suspension lapsed without support from the MEC, the Board’s decision to deny El-Attar reappointment stood.  He asked for a Judicial Review Committee hearing to contest the denial of reappointment.  The MEC [apparently unhappy with the actions of the Board] delegated to the Board the tasks of issuing a notice of charges, appointing the JRC hearing committee, hearing officer and the like.  As is typical of bylaws in California, these tasks [issuing a notice of charges, appointing a hearing committee and a hearing officer] were all the responsibility of the MEC, not the Board.  It appears the MEC’s heart was not in these actions against Dr. El Attar and wanted the Board to take direct responsibility for the hearing necessitated by the Board’s decision.

After a full JRC hearing, the hearing committee issued a decision that the Board’s decision not to reappoint Dr. El-Attar was reasonable and warranted based on certain facts, but noted that if it had been the initial decision maker, it would have pursued an intermediate resolution.  After an unsuccessful appeal to the governing board, Dr. El-Attar filed a writ action in superior court to contest the termination of his privileges.  Although the trial court denied his writ petition, Dr. El-Attar persisted and struck gold in the court of appeal.  That court concluded that the selection of the JRC committee and hearing officer by the governing board, in violation of the staff bylaws, also violated the principles of fair procedure that govern medical staff peer review hearings.  The fact the MEC attempted to “delegate” its duties to appoint the committee and hearing officer to the Board did not satisfy the bylaws or due process.  The court of appeal noted: “Allowing the Governing Board to select the hearing officer and JRC panel is not an inconsequential violation of the Bylaws.  Rather, it undermines the purpose of the peer review mechanism.”  The court of appeal commented that although the hospital’s administrative governing body makes the ultimate decision about staff privileges, it is to do so based on recommendations of the medical staff, giving great weight to the actions of staff peer review bodies.  It emphasized the importance of this dual [governing body and medical staff] structure to shield physicians from arbitrary and discriminatory disciplinary action.

The specific facts of this case [an MEC delegating JRC duties to the governing board] are unlikely to happen much, if ever again.  However, some of the general language in the decision about the importance of fair peer review and the separation of the governing board from the hands-on management of the peer review system by the medical staff will probably provide encouragement to advocates for medical staffs and individual staff members who feel governing boards may be intruding too directly in the peer review process.

If the posting is clearly factually wrong [Dr X operated on my left leg when he should have operated on my right] the professional can communicate with both the poster and the web host, urging the incorrectness of the post and asking for removal of the statement.  If the inaccuracy of the post can be readily demonstrated, the web host may cooperate in taking down the post, even if the poster declines to do so.  When all else fails, it is possible to sue for defamation but this should only be done if the statement posted can be proven to be false and the damage caused by the statement appears significant.  Such suits can themselves generate publicity and interest, so an adverse outcome to the lawsuit could make matters worse instead of better.

At least one physician in Northern California took on a patient who had made a hostile internet posting and not only did the physician lose her suit, she was ordered to pay attorneys fees and costs for the patient who had to defend himself in court.  The entire matter was written up in area newspapers leaving the physician far worse off than she was before she went after the patient over the post.

I write now to note the release of a new California court of appeal decision, Smith v Selma Community Hospital.  The case just came out a few weeks ago [September 1, 2010] and is the latest in a series of decisions issued by trial and appellate courts addressing a long running fight between Dr. Smith and Selma Community Hospital, as well as other facilities related to it through their common corporate parent, Adventist Health System/West.

This latest and hopefully final appellate decision does not yet have an official cite but can be found on Westlaw at 2010 WL 3431753. 

The decision is quite lengthy as it attempts to summarize the long factual and legal feud between Smith and SCH.  I will not attempt to present in any detail the extensive facts and legal disputes between the parties, other than to note that Dr. Smith was both a medical staff member and a very active and apparently successful medical entrepreneur, with many local clinics, often in competition with SCH and related facilities.  There was plenty of evidence that Adventist Health wanted to buy Smith out of his various enterprises and that while these business questions were being explored between Smith and Adventist Health, various peer review actions at multiple Adventist facilities were undertaken against Smith.  In various peer review and legal proceedings, Smith argued [with success] that SCH and Adventist were using the peer review allegations against him to attempt to extract more favorable terms with regard to the contemplated sale of his medical empire to Adventist.  Adventist denied improper motive and fought Smith at every turn.

Smith, after many different peer review hearings and court proceedings, won most of his arguments.  This most recent decision addresses his attempt to recover some of his attorney’s fees.  The California statute that governs peer review, Business and Professions Code section 809, includes a provision entitling a prevailing party to recover attorneys fees where that party convinces the court that the opponent’s conduct “in bringing, defending, or litigating the suit was frivolous, unreasonable, without foundation, or in bad faith”.  There was no dispute that Dr. Smith was a substantially prevailing party, so the issue was whether SCH’s legal actions were frivolous, unreasonable, without foundation or in bad faith.  In a fairly vague and cursory decision, the trial court denied Dr. Smith’s motion for attorney’s fees.  The court of appeal, noting the lack of interpretive case law and the vagueness of the statute undertook to better explain how the attorney’s fees statute should work and when and under what circumstances a prevailing party may recover fees.

In brief, the court said that the four criteria [frivolous, unreasonable, without foundation or in bad faith] are separate alternatives, that is, a prevailing party is entitled to attorney’s fees if he/she can show any one of the four criteria are met.  The court also worked at better defining the terms, each of which are fairly ambiguous, and held that frivolous, unreasonable, without foundation are objective standards to be determined by the court, while bad faith is a subjective standard, requiring evidence of the party’s reasons for acting as it did.  The court also held that even if a party has evidence that its conduct was not frivolous, unreasonable, without foundation, if it acted in bad faith [i.e. with an improper motive], attorney’s fees must be awarded to the prevailing party.  In the Smith case in particular, the court determined that SCH’s conduct was not frivolous, unreasonable or without foundation, but that it might have been in bad faith.  The court of appeal remanded the case back to the trial court for an additional hearing on the specific question of bad faith.

As I note above, the decision is quite long, and given the ambiguity of terms like frivolous, unreasonable, without foundation or bad faith, I’m sure parties, lawyers, and courts will continue to struggle with how to apply the statute and this decision to actions in the future.  And of course it is important to note that the attorney’s fees provision applies to any prevailing party, not just a prevailing physician.  Hospital medical staffs that take peer review actions and later prevail in litigation over their actions are entitled to seek fees under the statute just as a prevailing physician may do.

Finally, it is important to remember that there is a strong regulatory bias in favor of conducting peer review, which offers very strong immunities and protections to peer reviewing individuals and institutions.  It is quite rare for a physician to successfully unearth facts that show a peer review action to have been so improper that the physician is entitled to relief from the courts.  The Smith case, with the contemporaneous business dealings occurring at the same time as the peer review actions is a highly unusual fact pattern.  I often find myself trying to calm and educate an angry physician who is involved in a peer review dispute and wants to “sue everybody”.  The facts needed to make such a strategy viable are rare indeed.  After 30 years I’m still waiting for such a case to walk in my door.

The manual appropriately admonishes reviewers that they are not an advocate for the Board or the physician.  Their job is to determine whether [in their educated opinion] there was a departure from the accepted “standard of practice”.  For enforcement purposes, whether a departure is considered “simple” or “extreme” is quite important.  As you will see below, the Board equates a simple departure with “ordinary negligence”, and an extreme departure as “gross negligence”.  The governing statute admonishes the Board to pursue discipline for any single episode of gross negligence, but only for multiple instances of simple negligence [see California Business and Professions Code §2234].  As a practical matter, what constitutes simple versus extreme [or gross] are matters of degree entirely in the eyes of the beholder.  Unfortunately, this turns out to be equally true about the difference between single and multiple departures, but that can be a topic for another day.

On the issue of simple versus extreme departures, the new manual explains this as follows:

Negligence is the failure to use that level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful physicians would use in the same or similar circumstances.  A negligent act is often referred to as a “simple departure” from the standard of care.

Gross negligence, on the other hand, is defined as “the want of even scant care” or “an extreme departure from the standard of care”.  Gross negligence can be established under either definition, both are not required.  The difference between gross negligence and ordinary negligence is the degree of departure from the standard of care.

One of the things not terribly great about this guidance is the mixture of terms.  The statute refers to negligence and gross negligence and all civil cases and controlling law on malpractice refer to negligence and apply it to the “standard of care”.  Here the Board has mixed in references to simple and extreme departures, which are then defined as simple negligence and gross negligence.  And the Board chooses to alter the term “standard of care” to “standard of practice”.  At the risk of splitting hairs, in the law changing terms can often lead to confusion or misunderstanding of the correct application of the law.  I don’t know why the Board has chosen to complicate and depart from the traditional and statutorily controlling terms of negligence, gross negligence and standard of care.

In any event, my main focus here is to point out that the difference between simple negligence and gross negligence [or simple departures and extreme departures] is all a matter of degree, which is entirely subjective.  While physicians and lawyers can imagine cases so clearly on one end of the spectrum or the other, that they are clearly simple or extreme, an awful lot of medical mistakes are in the large, middle gray zone.  These mistakes in the gray zone fuel bitter and important disagreements among experts and their clients about whether the conduct in question was simple or gross negligence.  Unfortunately, if the case ends up at a disciplinary hearing, it is an administrative law judge, with no medical training, who has the job of sorting out these competing theories of how to define the conduct, with significant consequences riding on the decision.

In the distant past [just as I was entering practice], the Medical Board would have panels of physicians conduct the administrative hearings, in essence like a medical staff peer review.  It’s easy to see how this would lead to better informed decisions as surely fully trained physicians are better able to understand and distinguish conflicting medical testimony describing and characterizing medical care.  It is also easy to see [given the time and money involved] why the system has evolved away from that practice and shifted to single administrative law judges.  It seems kind of a shame that the state cannot find the resources to go back to panels of physicians to hear these cases.  I think the outcomes would be far better if that could be done.

This series of steps further demonstrates how California is drifting on the issue of physicians with substance abuse problems. Since shutting down the diversion program, California has not come up with any coherent way of dealing with impaired physicians. My own experience, and I believe the experience of the old diversion program is that many impaired physicians, if given the proper assistance and structure, and if appropriately motivated, can achieve long lasting sobriety and resume safe and effective medical practice, to everyone’s benefit. The current absence of an appropriate program for impaired physicians in California creates a gaping hole in the State’s handling of this problem. Efforts to enact new legislation that would create a newer [better?] version of diversion have been talked about but no substantive action has taken place to date. This seems another expression of the dysfunction of our state government.