QUICK READS: Healthcare Law in the News

After resisting the urge, I signed up for a Twitter account – @SteveKabler. One of the nice things about Twitter is that it gives you quick access to all sorts of different news. Here are some of the articles I found this week related to med mal, social media and new legislation:

MEDICAL MALPRACTICE

SOCIAL MEDIA AND MEDICINE

I’ve run a couple of posts about the impact of social media on medicine in the past month. Here are a couple of other interesting articles:

MEDICAL REGULATION

Apparently, the Missouri Board of Registration for the Healing Arts claims it is too difficult to discipline physicians. A new law aims to change that: “Legislature Sends Doctor Discipline Bill to Governor.” I’m most interested in the fact that Missouri hasn’t summarily suspended a doctor in 25 years! Colorado suspended more than 150 between 2000 and 2009 alone.

QUICK READS: Healthcare Law In the News

Here are a few good articles related to healthcare law nationally and locally.

QUALITY OF CARE ISSUES:

HEALTH CARE LEGISLATION

Different Approaches Raise Similar Concerns for Docs

Yesterday’s Wall Street Journal had two articles side-by-side discussing trends in spinal surgery and gynecology that I found interesting. The articles raise issues that spinal surgeons and Ob/Gyns should be aware of and could lead to more medical malpractice claims and Colorado Medical Board complaints.

The first article — Concerns Rise About Rate of Spinal Stenosis Surgery – WSJ.com — discusses rise in complex spinal surgery over the past eight years. The article points out that although spinal decompression surgeries decreased from 2002 through 2007, surgeries combining decompression with fixation or other procedures increased more than 15-fold during that time. As a result the complication rates have more than doubled. The author of a JAMA study cited in the WSJ article attributes the rise in complex procedures to financial motives (the complex surgery typically costs almost 400% more than simpler procedures) and marketing by device manufacturers. The increase in multi-procedure surgeries may signal a shift toward riskier, more expensive procedures. When complications occur, a neurosurgeon who performs a riskier, more complex surgery may have a find themselves not only defending HOW the surgery was performed, but also defending WHY the procedure was performed.

Meanwhile, Ob/Gyns appear to be moving the other direction — less treatment — but also potentially more regulatory and liability issues. The companion article — Questioning Need for Routine Pelvic Exam – WSJ.com — discusses the evolving standards regarding the recommended frequency for pelvic exams in asymptomatic women. The cited study indicates that pelvic exams in healthy, asymptomatic women may be of no use and may deter women from regular visits to their gynecologist. Although the ascribed motive is different than that for the complex spinal surgery, not performing a pelvic exam may end up resulting in more issues for Ob/Gyns. If a routine pelvic exam would have detected a problem, and isn’t performed …, well we know where that goes. So in this case, if something goes wrong, a gynecologist may find herself or himself defending why the examination WAS NOT performed. Thus, an Ob/Gyn may actually protect themselves by performing an otherwise non-indicated examination. I personally dislike the concept of defensive medicine, but that is, unfortunately, where we are.

Colorado’s Proposed New Rules for Front Range Medical Malpractice and Business Lawsuits

Last week the Colorado Supreme Court held hearings on the proposed “Civil Access Pilot Project” which proposes new, streamlined procedures for two types of lawsuits: 1) medical malpractice actions, and 2) certain types of “business” litigation. If approved by the Supreme Court, the pilot program will apply to cases filed in five Front Range jurisdictions (Jefferson County, Denver, Adams County, Arapahoe County and Boulder County) for two years after the effective date. After that period, presumably a decision will be made whether to adopt the rules statewide. The new rules will affect physicians and other health care providers in medical malpractice and business lawsuits, health care and medical malpractice lawyers, and plaintiffs. The new procedures will not apply to Colorado state medical board cases.

Assuming the proposed rules are adopted in their current form, they represent a departure from the current civil rules. According to Law Week Colorado, the Colorado Medical Society is concerned that the new rules will make it more difficult to defend themselves in medical malpractice cases. This concern appears to be based on the new expert witness rules applicable to medical malpractice cases. For example, the new rules require that the parties produce expert reports simultaneously, rather than allowing a defense expert to respond to the plaintiff’s expert. The “simultaneous disclosure” provision is similar to the procedure used in medical board cases, and does present a significant issue for doctors defending their care. The new rules also will require that expert witnesses submit a complete, signed report, with all supporting material, and a host of other information typically requested in discovery.

Significantly, the new rules prohibit expert depositions, and limit expert witnesses to one per side per specialty. This provision is especially troublesome for cases involving multiple providers, as it may limit a party’s ability to choose their own experts. The proposed rules contemplate that physicians of the same specialty will share a single expert “unless the parties are able to demonstrate a lack of commonality.” Another interesting provision does not count treating providers towards the expert limit, as long as their opinions are limited to their own evaluation, diagnosis, care and treatment. A defendant physician will be permitted to testify on his or her own behalf, and also have an expert witness. It is possible that the new rules will be a positive change if enforced properly and minimize the time and expense of litigation. However, it may hamper a doctor’s defense in medical malpractice cases.

A copy of the proposed Civil Access Project Rules can be viewed here.

Copyright Miller | Kabler, P.C., Attorneys-at-Law