HealthLawProf Blog

Editor: Katharine Van Tassel
Akron Univ. School of Law

A Member of the Law Professor Blogs Network

Friday, March 7, 2014

Using Fear of Lawyers to Train Medical Students is Costing a Lot of Money!

The running joke of the Disney Monsters,Inc. movies is that there really are monsters in little kids' closets, but they aren't dangerous.  Too often in medical education, lawyers and law suits are used as "monsters in the closet" to scare medical students into paying attention.  This, I suggest, has become very expensive.   A recent post in the Harvard Bill of Health blog by former medical student Deborah Cho quite accurately describes how little accurate information medical students get about the law--and how much they come to dislike and mistrust lawyers.   Although I haven't seen research tracking how often the phrase "or you will get sued" is used in instructing medical students, but based on my experience it may be among the most common phrases they hear.  Without even addressing the vast literature suggesting that postive instruction is at least as instructive as negative, I contend we just can't afford the malpractice bogeyman.

The question now is what can be done about?   Tort Reform won't solve this problem--because it will never eliminate the possibility of being sued.  But maybe a change in medical education will.   The first step towards change is to realize that words and attitudes matter--drumming in a constant fear of being sued cannot help but affect how doctors see their work.

 

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March 7, 2014 in Cost, Health Care Costs, Health Care Reform, Health Economics, Health Law, Malpractice Liability Reform, Medical Malpractice, Physicians | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 10, 2013

Disability Accommodation and Board Certification

Accommodations for people with disabilities in professions remains controversial.  In medicine as in law, courts defer to the judgments of professional organizations regarding appropriate qualifications.  An illustration is a recent district court ruling in Pennsylvania that it is not a reasonable accommodation to alter the multiple choice format for the examination for Board certification in pediatrics. Rawdin v. American Bd. of Pediatrics, 2013 WL 5948074 (E.D.Pa).  This decision is troubling both for its understanding of disability and for its deference to the board certification process.

According to the district court, Rawdin was "by all accounts, an excellent pediatrician."  Yet Rawdin had a cognitive disability resulting from earlier surgeries for a brain tumor--a disability that affected his ability to process remembered information out of context in a manner that would enable him to succeed on tests in the multiple choice format.  Despite several tries, Rawdin could not pass the board certification exam given by the American Board of Pediatrics (ABP).  Because of his failure to obtain Board certification, Rawdin was dismissed from his positions in the Neonatology Department of the Children's Hospital of Philadelphia (CHOP), where he had served for 5 years and become the Assistant Director of CHOP's nursery, held a faculty post, and was part of the Academic Clinician Track at the University of Pennsylvania School of Medicine.  Rawdin brought suit against the ABP under Title III of the ADA seeking alternative testing as an accommodation.  The district court held that Rawdin was not a person with a disability under the ADA (as amended by the ADAAA) and that, even if he qualified for statutory protection, the accommodation he sought was not reasonable because it would be a fundamental alteration of the ABP testing procedure.

The court's ruling against Rawdin rested primarily on the determination that his disability did not bring him within the statutory protection of the ADA.  As the case arose after the effective date of the ADAAA, the court applied the amendments' more expansive standard for determining disability.   The court agreed that Rawdin's memory processing difficulties are a mental impairment and that test taking is a major life activity. However, the court still concluded that Rawdin was insufficiently affected to meet the statutory standard, reasoning that his cognitive processing abilities were at least average for the general population and so his limitation was not substantial.  This comparison--between Rawdin's abilities and the general population, not between Rawdin's abilities had he not had the brain tumor and Rawdin's abilities as affected by the tumor and its treatment--was not changed by the EEOC in light of the ADAAA.   Interpretations such as this illustrate the irony of the ADA, even as amended by the ADAAA:  there are many who could work successfully or meaningfully access accommodations but who remain unprotected by the ADA even in its amended form.

Although the Rawdin court's determination that Rawdin did not warrant statutory protection was sufficient for its decision, the court also reached out to state that Rawdin's request to that the Board certification exam in essay form was not a reasonable accommodation.  In thus concluding, the court judged that the ABP was an academic institution and thus deferred to the ABP's claim that a multiple choice examination was the best way to assess competence in the field.  The court also concluded that developing a different exam would impose an undue hardship on the ABP.

The Rawdin court also chose to reach the issue of whether altering the format of the exam was a reasonable accommodation, even though it was unnecessary to its resolution of the case.  Deferential to the ABP as to an academic institution, the court concluded that its determination that changes in the exam format would lower standards should be respected.  The court also judged that the requested accommodation would be a fundamental alteration of the Board certification process. 

The decision's deference to professional determinations is not surprising.  However, if the court's description of Rawdin's excellence as a neonatologist is accurate, it illustrates the problematic costs of the ABP's approach.

[LPF

 

December 10, 2013 in Disabilities, Physicians, Policy | Permalink | Comments (0) | TrackBack (0)

Thursday, May 30, 2013

Are Health Care Providers Deliberately Misunderstanding HIPAA--And if So What You Can Do About it?

Ever since HIPAA was implemented in 2002, it has been used by health care providers to make life more difficult for patients by preventing their family members from being with them in care areas and by refusing to share information with those the patient wants to be kept informed.   This has caught the interest of the U.S. House Energy and Commerce Sub-Committee  has been holding hearings into various consumer issues regarding HIPAA.  I think this review is long overdue--and that  HHS is well aware of how providers are misusing HIPAA. The problems are so prevalent that the HHS website actually has a myth-buster section

So what can a family do?  A good step is to be skeptical when told that something is being done "because of the law."  As I have explained again and again to health care providers and lawyers, “If you think something that a) the patient or his family wants or b) is in the best interests of his care is prohibited by HIPAA, you don’t understand HIPAA.”  Ask for clarification from the hospital's lawyer--will you get that person on first call?  Maybe not, but be persistent.

 Inform yourself on the HHS website.  There is also a very useful FAQ section that addresses questions like, “is it illegal for a family member to pick up a prescription for a patient” (no) and  It starts with an over-all statement of principle: “The Privacy Rule provides federal protections for personal health information held by covered entities, and gives patients an array of rights with respect to that information. At the same time, the Privacy Rule is balanced so that it permits the disclosure of personal health information needed for patient care and other important purposes.”

Moreover, there is no provision in HIPAA that requires or allows a health provider to step in as “guardian of privacy” for a patient who is not conscious or competent.  When there is an identifiable surrogate decision maker, that person can make any decision about disclosure that the patient could have made himself.   And, no, there need not be any written document expressly allowing sharing of information with the surrogate.  Moreover, if a person has legal authority to make medical decisions, then he is entitled to review the medical records so that the decision can be an informed one.

At this point, more than ten years later, it’s reasonable to wonder if some of these “misunderstandings” are fostered by the fact that they make things easier for the providers in that it limits time consuming questions—like, “why isn’t my mother receiving pain medication?”  or “what are our options for Mom’s care?”  Certainly the posts in this nursing blog suggests that’s the case.  Here’s my favorite from Ortho-RN, “We usually don't allow family in the recovery room... I don't feel it's a place where family belongs.. No privacy, totally in HIPPA violations. Families like to be nosey and watch other things, and things do not always go smoothley...” (sic) Here’s another insight into how  providers see their obligations

 A brief foray into common sense should demonstrate the absurdity of these restrictive interpretations.  The  premise should be that outside a few narrow health & safety exceptions,  no one other than the patient is in a better position to decide who can and cannot have information about the medical care being provided.  And keeping family members away because of the risk they will see "other patients" is an absurdity.  None of us have the right to receive health care in complete seclusion.  Maybe high profile patients can pay for private wings—but all of us are stuck with the reality that in going to receive health care we may well be seen by other people, including those who know us. Finally, health care providers themselves are not entitled to protection from the observations and questions of family and friends about the care of their loved ones.  Could there be times during an emergency when the team can't stop and talk.  Sure.  But if these would be reasonable requests for information from the patient, then they are reasonable from the people the patient trusts most to protect his interests. 

 

 

May 30, 2013 in Health Law, HHS, HIPAA, Hospitals, Nurses, Physicians, Policy, privacy | Permalink | Comments (0) | TrackBack (0)

Saturday, May 25, 2013

Lessons About Medical Error Learned Watching I Love Lucy.

It's no secret that the night staff of a hospital are both over-worked and over-tired.   Nor is it any secret that many medical errors occur at night.  But until we look at the totality of the human factors making up medical error, we are unlikely to make significant headway in addressing it.  A review of the literature suggests that the reason isn't a lack of understanding about the factors which cause human errors, it's concern about the cost of addressing them.

The authors of a recent study in the Journal of the American Medical Association titled, Relationship Between Occurrence of Surgical Complications and Hospital Finances conclude that not only aren’t hospitals doing all they can to reduce medical errors, they actually have no financial incentives to do so.  

I'd suggest that financial incentives are behind ineffective efforts to address the issues of staff over-work and the inherent dangers of intermittent shift work.

 It's no surprise that another widely reported recent study has found that reductions in the hours medical residents work has not resulted in increased patient safety.   The study authors conclude that this is because although residents worked less hours, they did not have a reduced work load So, like Lucille Ball in the chocolate factory, the trying to cram more work in the same amount of time increased resident error.  

The findings of that study need to be seen in combination with the vast amount of scientific research on the increase in errors caused during night shifts.   A recent study of nurses working night shifts showed that “on average, the error rate increase 6% after the second night shift in a row, 17% after the third successive night shift and an astounding 35% higher on the fourth night shift.”  See also this and this article by the Joint Commission.  Although no one disputes the reality that human beings perform best in the day time, every hospital must be fully staffed 24 hours a day.  The information is both anecdotal and research based.   But no one seems to be listening.

 An article in Nursing World  does an excellent job of using available research to describe the scope of the problem, but implies that it can be effectively addressed by nurses proactively paying more attention to their sleep patterns.  It advises nurses working the night shift to “take control of sleep.”  In fact the NSF “recommends that nurses wear wrap around sunglasses when driving home so the body is less aware that it is daylight.”    This advice ignores the scientific reality that humans are not as effective or alert at night as they are in the day time.  Nor does it consider the human reality that medical shift workers do not have the luxury of using their days to sleep.  Like everyone else living in a diurnal world, they must cope with the tasks of family and daily living.

 Techniques like wearing dark glasses may work in making a shift to a new rhythm--like travelling to another time zone.   But given the unlikeliness of medical staff to convert to a  permanent change in their circadian rhthyms, as if they were working in a submarine (and that doesn’t work very well either)  the answer is to address the reality that humans are less effective at recognizing problems and completing complex tasks at night.   But that’s not where the problem solving is going. 

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May 25, 2013 in Cost, Effectiveness, Health Care, Health Care Costs, Health Care Reform, Health Economics, Health Law, Hospital Finances, Hospitals, Insurance, Medical Malpractice, Nurses, Patient Safety, Payment, Physicians, Policy, Public Health, Quality, Quality Improvement, Reform, Research, Science and Health, Substance Abuse | Permalink | Comments (0) | TrackBack (0)