Iowa Edict - Wrong-Site, Wrong-Patient, Wrong-Procedure Errors

Question: How is negligence determined in personal injury cases?

Steve Lombardi — Fri, 25 Nov 2011 05:00:41 -0600

Question: How is negligence determined in personal injury cases?

Does negligence have to be established in order to collect damages in any personal injury case?

]]>Answer: Negligence is a legal concept that establishes whether or not a party can be at fault and thus have to pay for someone else's damages. Yes, you have to prove someone was negligent in order to have any possibility of collecting damages. So what is negligent behavior? Negligent behavior is a breach of a recognized standard created by law, agreement of the parties or recognized behavioral standards.

Statutes and Black Letter Law: The statutory law states that everyone must stop at a stop sign. If you run the stop sign you are negligent.

Common Law: If you behave in such a way as to increase the risk of injury to another knowing injury is likely then you can be found to have been negligent.

Contract: General contractors agree by way of a written agreement (the contract) to supervise the construction site and to make sure every subcontractor is abiding by OSHA's rules and regulations. If the GC knows a sub is not following OSHA rules/regs or fails to monitor whether the subs are adhering to OSHA rules they can be found to be negligent.

Criminal Law: Criminal law says if I walk up and punch you in the nose I'm guilty of assault and battery. If I walk up to one guy but hit another due to my being too drunk to make a straight punch, then I'm probably negligent. That's a standard that can be applied to civil law to find you acted negligently.

Professional Standards: Professionals are held to a standard created and recognized by other professionals and the associations that govern their conduct.

These are not all the ways standards are found in the civil law, but it will give you some idea of how standards are determined to exist and therefore formulate the basis for determining negligent conduct.

Honesty and fairness have nothing to do with insurance defense - HONEST!

Steve Lombardi — Tue, 19 Apr 2011 05:00:36 -0600

Before talking to the insurance adjuster or defense attorney or the case mismanager remember this from I Claudius, don't touch the figs.

The premise held by most clients is that this system of law is fair. They'll say they want only to be treated fairly. When representing themselves they make the assumption that when defense lawyers talk to you they will be fair. Well I'm here to tell you, you had better not trust in being treated fairly. I mean exactly that and it has nothing to do with whether or not the defense lawyer or the insurance company is dishonest. They don’t have to be “honest” and they aren’t trying to be “fair”. Fact is they are hoping you aren’t smart enough to ask the right questions so they don’t have to not answer you. You think I’m kidding? Hell no. I’m not and I can prove I’m right. Here let me prove it to you.

Defense work has nothing to do with treating people fairly. If it did you could come up with the name of at least one defense lawyer who has said in the past, "I don't think you're asking for enough, can I pay you more?" Or, "Did you know you're entitled under the law to be paid more for your damages?” Go ahead find me one insurance company representative that has said that in the entire history of insurance. Go ahead, think real hard; I can wait, go ahead and think harder.

Umnnn dee dum, dee-dum... Have you remembered one? No? I didn't think so. I've not heard anything like that in 30 years.

Updated: This is too funny. I had a link to an insurance company's YouTube ad and they actually took it down so I could not tag them with how deceptive it is. Can you believe it? Yeah that's what they do. They advertise when they need more money, lie to you the premium payer and then when we lawyers point it out they take down what they said to erase the lie. That's reality folks, that's the insurance industry.

]]>For defense lawyers to represent the interests of insurance companies the DL (that's industry jargon for defense lawyer) must take advantage of every mistake you make, to exploit every bit of ignorance you have and to use every misconception you think about this being about fairness.

In other words the defense lawyer's job is to treat you in a way to take advantage of your ignorance of the law as well as your mistakes. Frankly because this isn't about fairness their job is to treat you unfairly. Ethically they can, do and must treat you unfairly as most people think about the idea of fairness.

Fairness dictates honestly and with openness and candor. But ethics require the lawyer to maintain confidences provided by the client. I as your lawyer have to be candid and open with my client and if you're my client I act ethically. But the insurance company's lawyer isn't your lawyer and you the injured person aren't his client. So candor isn't going to be happening between the two of you. That's not the hand of a friend reaching out to shake your hand; the handshake being a sign of friendship, but this one is not one from a friend. Never confuse friendliness with friendship. The two are not one and the same.

The defense attorney or the insurance company representatives are like the slithering snake that delivers the poison being slipped into the wine goblet from which the injured drink. Now you understand the legal concept of "fairness".

Should We Hire Pilots Who Get It Right 95% Of The Time?

Steve Lombardi — Fri, 01 Apr 2011 05:00:48 -0600

Wrong Site Surgery Day

We’ve spent the week covering wrong-site-procedure-patient surgeries and I’m going to conclude this issue by closing out the week with a list of current news about the subject. I have friends and clients who are doctors; some do surgery and I would never want this to happen in their OR. To eliminate never-events we have to talk about what’s wrong in the OR and then act to correct it. Like the pilot who just flew the plane I was on, I’m not interested in Delta hiring a guy that gets it right 95 or even 99% of the time. I want a pilot in the cockpit who gets it right 100% of the time. So if you’re a surgeon and think this is all nonsense I want you think about the pilot analogy and how that might affect your decision to fly with an error prone pilot.

Have a good weekend and here are the articles of interest.

]]>Urologist defends practice
Las Vegas Review - Journal
"You have to be on the side of the patient when it comes to safety. ... for $1.25 million after he operated on the wrong side to fix an obstructed ureter. ...

Riddled With Metal by Mistake in a Study
Sarasota Herald-Tribune
That process, known as 510(k), takes less time than the procedure used to ... Neither its manufacturer nor the FDA could explain what went wrong with the ...

'Never events' happen dozens of times a year
Allentown Morning Call
"Sometimes, believe it or not, the patient is wrong," when a doctor asks about the procedure to be done, Clarke said. Misperception also causes mistakes, ...

Safety Isn't An Accident
FireEngineering.com
It is a standard procedure with your dispatch center that this alarm will ... you perform a rapid patient assessment--ABCs are good and the patient responds ...

Surgical Mistakes More Common Than Patients Believe
U.S. Politics Today
In order to gain the patient's consent, the physician has a duty to explain all of the known risks and potential side-effects of the procedure. ...

Medical board suspends Las Vegas physician's license
Las Vegas Review-Journal
The procedure, often used to test for prostate cancer, is invasive, ... In a 2002 case, a woman sued Kaplan after he operated on the wrong side during a ...

Surgery Centers Await Federal Rules on Quality Reporting
Becker's ASC Review
One or both of the federal quality initiatives may include patient ... timing and situations involving wrong site, side, patient, procedure or implant. ...

Wrong-Site Blocks Vex OR Safety Efforts
Anesthesiology News
“As anesthesiologists, we do a time-out before we do any procedure on the patient, whether it's placing a central line or putting in an acute regional pain ...

Gazette has its own approach to wrong-site surgery story | The ...
There has been a lot of discussion and debate about our coverage of a wrong-site surgery at Adena Regional Medical Center in the past few weeks.
www.chillicothegazette.com/.../Gazette-has-its-own-approach-...

Hospital mistakes could lead to wrong-site surgeries for patients ...
However, there are instances where doctors and staff commit what is known as a " wrong-site surgery". There is not a lot of reliable data that tracks the ...
www.ohmedicalmalpracticeattorneys.com/.../hospital-mistakes-...

Gazette has its own approach to wrong-site surgery story
Chillicothe Gazette
There has been a lot of discussion and debate about our coverage of a wrong-site surgery at Adena... Scioto County -- the focus of news reports during a recent visit by Gov. Recent headlines from the Middle East and Japan have worried investors. ...
See all stories on this topic »

Dr. Mark R. Chassin, MD, FACP, MPP, MPH Health Reform and Quality ...
This, you could put up a slide for wrong-site surgery, for surgical site ... Wrong-site surgery, surgical site infection, medication errors. ...
www.jointcommission.org/.../Transcript_for_web_Chassin_at_...

Failed Surgery - Law
In many cases further surgery will be needed, while some will be left with long- term or permanent damage. This is particularly true of wrong-site surgery ...
goarticles.com/article/Failed-Surgery/4352805/

Anesthesiologists Increasingly Responsible for Wrong-Site Procedures
Becker's ASC Review
By Rachel Fields | March 17, 2011 Anesthesiologist error is to blame for an increasing number of wrong-site procedures, according to a report by General Surgery News. Data from Pennsylvania's Patient Safety Authority showed the share of errors ...

Twitter / WSYX ABC 6: SPECIAL: Victim of Wrong-S ...
SPECIAL: Victim of Wrong-Site Surgery Talks to ABC6: CHILLICOTHE, Ohio -- The victim of a wrong-site surgery at ... http://bit.ly/eDbjQO.

Preventing Wrong Site Surgery
Preventing Wrong Site Surgery. Purpose: These training sessions are intended for individuals who have responsibility for training staff on prevention of ...

Anesthesiology News - Wrong-Site Blocks Vex OR Safety Efforts
The true incidence of wrong-site surgery may be substantially higher because these errors are generally self-reported and are not always anonymous, ...

Operating room: Enter at your own risk!, a humor column by Fred Gehrung
The Keene Sentinel
True, the chance of a surgeon taking a scalpel to the wrong limb or organ is remote, but if I'm involved, “remote” is unacceptable. Last year in the US, “remote” translated into about 80 cases of what is termed, “wrong site surgery. ...

Adena Responds to Wrong-Site Surgery Reports - Welcome to WTTE FOX ...
WTTE FOX 28 Columbus - Adena Responds to Wrong-Site Surgery Reports - CHILLICOTHE, Ohio -- An ABC6 Investigation Series into a wrong-site surgery at the ...

Patient Involvement in Surgical Site Marking May Not Reduce Incidence of Wrong ...
Becker's ASC Review
By Jaimie Oh | March 10, 2011 Research results suggest patient participation in surgical site marking may not be reliable or helpful in decreasing the chances of wrong-site surgery, according to a study published in the Journal of Patient Safety. ...

Adena's CEO responds to recent media coverage - News - Adena ...
In recent days, Adena has appeared on TV news because of a wrong-site surgery that occurred last month. This negative news coverage may continue for reasons ...

Someone call a lawyer, I may have just had an aneurysm.

Steve Lombardi — Wed, 30 Mar 2011 05:17:01 -0600

Yesterday we covered the list of never-events in medicine. Today we cover what our parents should have taught us before we were five-years-old; which is why after a mistake you offer a sincere apology. Whoever they are, the Leapfrog Group advises doctors and hospitals about what to do when the S-H-T-F and the surgical team operates on the wrong-patient, does the wrong procedure or cuts the patient on the wrong body part. Follow my lead and read what they publish about these grossly negligent errors.

The Leapfrog Group offers four actions as industry standards following a never event:[3]

apologize to the patient
report the event
perform a root cause analysis
waive costs directly related to the event

]]>^ "Half of US hospitals reporting to Leapfrog say they won't bill for a “never event”". The Leapfrog Group. September 26, 2007. http://www.leapfroggroup.org/media/file/Release_-_Adoption_of_Leapfrog_Never_Events_Policy_2007.pdf. Retrieved October 19, 2010.

^ "Serious Reportable Events (SREs): Transparency & Accountability are Critical to Reducing Medical Errors". National Quality Forum. October 1, 2008. http://www.qualityforum.org/pdf/news/prSeriousReportableevents10-15-06.pdf. Retrieved October 19, 2010.

^ "Factsheet Never Events". The Leapfrog Group. March 27, 2008. http://www.leapfroggroup.org/media/file/Leapfrog-Never_Events_Fact_Sheet.pdf. Retrieved October 19, 2010.

Leapfrog says it's their belief a sincere apology is in everyone's best interest. Yeah I’d have to agree. But why do you have to tell grownups to apologize after they operated on the wrong patient? You mean the surgical staff doesn't just apologize? What's wrong with this picture?

Here is what that group says: "It is Leapfrog’s belief that it is within the best interest of all parties involved for the hospital staff to give a verbal apology and explanation of the known circumstances surrounding the never event to the patient and/or family affected. Research indicates that patients who are victims of adverse events feel the most anger when they perceive that no one is willing to take responsibility for what has happened. A sincere apology from the responsible hospital staff can help to heal the breach of trust between doctor/hospital and patient and may reduce the hospital’s risk of liability. (When Things Go Wrong: Responding to Adverse Events. Mass Coalition for the Prevention of Medical Errors. Boston, 2006)"

Oh come on, please stop you're making me laugh. You mean you had to do research to know a patient who just had the wrong side of their skull removed might be angry? Really, I would have never guessed. Your group has to tell grownups that a sincere apology is necessary? Is this a joke? If you have to tell a grownup to apologize it will never be sincere. Give me a break.

Leapfrog then goes on to say: "According to the National Quality Forum, “the primary reason for identifying a standardized set of serious reportable events that would be mandatorily reported is to facilitate public accountability for the occurrence of these adverse events in the delivery of
healthcare.” (Serious Reportable Events in Healthcare: A Consensus Report. NQF. 2002) Since the U.S. health care system does not currently have one national reporting program in place, the
Leapfrog Group asks hospitals to choose at least 1 of 3 reporting options: the Joint Commission, a state reporting program, or a Patient Safety Organization. It asks that the hospital reports to its chosen entity within 10 days of its self determination that a never event has occurred."

Never events are for all practical purposes on the same par as quasi-criminal behavior. They are grossly negligent events that sloppy surgical teams make and ignorant ones refuse to acknowledge setting the stage for further errors that destroy lives. If the legal system has to tell a criminal to apologize to its victim then they deserve incarceration, not the loot they just stole.

Someone call a lawyer, I may have just had an aneurysm.

To read more about the Apology Shield follow this link to posts by Steve Lombardi.

What the heck is a "never-event"?

Steve Lombardi — Tue, 29 Mar 2011 05:03:14 -0600

A never-event is a mistake that is categorized as one that should never happen. Although they are defined as mistakes that happen in medicine, they are equally applicable to other professions. Wikipedia has a pretty nice list of the never-events and the action recommended to be taken after one occurs. These events and recommendations are from the National Quality Forum. I've posted the SRE's or Serious Reportable Events on my lawfirm's website. It is a five page document that lists the never-events in categories including surgical, patient protection events, case management, environmental and criminal events. Go to the extended page to see the list.

Hospital infections seen as 'winnable battle'
Columbia Daily Tribune
The National Quality Forum, a Washington, DC-based not-for-profit group, has developed a list of “never events” — 27 incidents, such as wrong-site surgery, that should never happen in health care. The list includes surgery performed on the wrong body ...
See all stories on this topic »

]]>As defined by the National Quality Forum and commonly agreed upon by health care providers, the 28 never events are:

Artificial insemination with the wrong donor sperm or donor egg
Unintended retention of a foreign object in a patient after surgery or other procedure
Patient death or serious disability associated with patient elopement (disappearance)
Patient death or serious disability associated with a medication error (e.g., errors involving the wrong drug, wrong dose, wrong patient, wrong time, wrong rate, wrong preparation or wrong route of administration)
Patient death or serious disability associated with a hemolytic reaction due to the administration of ABO/HLA-incompatible blood or blood products
Patient death or serious disability associated with an electric shock or elective cardioversion while being cared for in a healthcare facility
Patient death or serious disability associated with a fall while being cared for in a healthcare facility
Surgery performed on the wrong body part
Surgery performed on the wrong patient
Wrong surgical procedure performed on a patient
Intraoperative or immediately post-operative death in an ASA Class I patient
Patient death or serious disability associated with the use of contaminated drugs, devices, or biologics provided by the healthcare facility
Patient death or serious disability associated with the use or function of a device in patient care, in which the device is used or functions other than as intended
Patient death or serious disability associated with intravascular air embolism that occurs while being cared for in a healthcare facility
Infant discharged to the wrong person
Patient suicide, or attempted suicide resulting in serious disability, while being cared for in a healthcare facility
Maternal death or serious disability associated with labor or delivery in a low-risk pregnancy while being cared for in a health care facility
Patient death or serious disability associated with hypoglycemia, the onset of which occurs while the patient is being cared for in a healthcare facility
Death or serious disability (kernicterus) associated with failure to identify and treat hyperbilirubinemia in neonates
Stage 3 or 4 pressure ulcers acquired after admission to a healthcare facility
Patient death or serious disability due to spinal manipulative therapy
Any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances
Patient death or serious disability associated with a burn incurred from any source while being cared for in a healthcare facility
Patient death or serious disability associated with the use of restraints or bedrails while being cared for in a healthcare facility
Any instance of care ordered by or provided by someone impersonating a physician, nurse, pharmacist, or other licensed healthcare provider
Abduction of a patient of any age
Sexual assault on a patient within or on the grounds of the healthcare facility
Death or significant injury of a patient or staff member resulting from a physical assault (i.e., battery) that occurs within or on the grounds of the healthcare facility

Let's take a time-out for wrong-site surgery day

Steve Lombardi — Mon, 28 Mar 2011 05:00:01 -0600

Like the five stages of death to begin figuring out what we are doing wrong and then to completely avoid wrong-site, wrong-patient and wrong-procedure surgery we first have to get past denial and shame about it. Do not make the mistake of thinking these "never-events" just happen, these never-events can be avoided, if we will only start talking about it when it does happen. One way to avoid these embarrassing mistakes is to read the chart and to perform a time-out before the surgery. It may seem too basic, but that’s why these mistakes are occurring; because surgeons and surgical staff need to go back to the basics. If anyone on the surgical team has a problem with doing the time-out they ought to be put in a time-out away from the surgical team.

That said, here are this week’s news items about wrong-side surgery.

SPECIAL REPORT: Wrong-Site Surgery
ABC6OnYourSide.com
Insiders tell ABC6 News that this isn't the first time a "wrong-site surgery" has been performed at the Adena Medical Center in Chillicothe. This, despite Ohio being one of the first states to develop a universal protocol of pre-surgcial procedures to ...
See all stories on this topic »

]]>Pennsylvania Patient Safety Authority Data Shows Patients with ... - Wrong-Site Surgery Update: To answer the question of how much progress is being made in the wrong-site surgery project, the Authority did a comprehensive ...
www.newschannel5.com/.../pennsylvania-patient-safety-author...

Safety Checklists Cut Down on Hospital Mortality Rates: Study
AboutLawsuits.com
In December, a study by European researchers published in the New England Journal of Medicine found that checklists in operating rooms not only prevented wrong-site surgery mistakes, but it also cut in-hospital mortality in half. ...
See all stories on this topic »

PubMed Result - Operating room briefings and wrong-site surgery. J Am Coll Surg. ... 14: Blanco M, Clarke JR, Martindell D. Wrong site surgery near misses and actual ...
www.ncbi.nlm.nih.gov/pubmed//pubmed?db...link...

Safety First - Minnesota Medicine - In the 1920s, a patient had a one in 10 chance of surviving a procedure such as an .... Across the state last year, 31 wrong-site procedures took place. ...

Quarterly Update: Progress in Preventing Wrong-Site Surgery in ... - Another 11 (28%) had wrong-side local anesthetic injections by orthopedic surgeons. Nine patients had wrong-site procedures: eight were wrong-site ...
patientsafetyauthority.org/ADVISORIES/.../2011/.../39.aspx

Doctors can and should learn from their mistakes - Baltimore Sun (blog)
They included such things as operations on the wrong side of the brain, dropping instruments into surgical wounds, lacking enough or appropriate tools. Malpractice lawsuits were a growing concern back then and were a threat to doctors' reputations. ...
See all stories on this topic »

The 'never events' list 2011-12 : Department of Health - Publications - Wrong site surgery (existing); Wrong implant/prosthesis (new); Retained foreign object post-operation (existing); Wrongly prepared high-risk injectable ...
www.dh.gov.uk/en/Publicationsandstatistics/.../DH_124552

How to Prevent Wrong-Site Surgery - The information contained in this video is for informational purposes only. The makers of the video accept no liability for the content of the video or for ...
www.outpatientsurgery.net/.../how-to-prevent-wrong-site-surg...

Steps to Prevent Wrong Site Surgery in West Virginia - Page 1 of ... - Although hospitals have procedures in place to prevent wrong site surgery, these kinds of surgical errors still occur. If you or a loved one has been the ...
www.mileylegal.com/.../steps-to-prevent-wrong-site-surgery-i...

Every Clamp Counts | Perioperative Nursing News - Read more about The Joint Commission Center for Transforming Healthcare projects on handoffs, hand hygiene, surgical site infections and wrong-site surgery ...
news.nurse.com/article/20110207/OR01/110209013

Wrong-Ankle Surgery Ends in $500K Settlement for Plaintiff - OutpatientSurgery.net
An orthopedic surgeon in Massachusetts agreed to pay $500000 to settle a wrong-site surgery malpractice suit brought by a 55-year-old woman on whom he had ...
See all stories on this topic »

Wrong Patient Wrong Side Policy Free Ebooks (pdf , doc , xls and ... - Found 11 files for wrong patient wrong side policy. ... Just because a wrong site, wrong side, wrong patient, wrong procedure or wrong implant surgery ...
ebookbrowse.com/search/wrong-patient-wrong-side-policy?...

BBC - West Essex PCT - Never Event wrong site surgery: Wrong side endarterectomy performed to right side. Site: Princess Alexandra Hospital. Date: 27.10.09 ...
news.bbc.co.uk/local/essex/hi/people_and.../9389846.stm

Use of an anatomic marking form as an - AHRQ Patient Safety Network - Use of an anatomic marking form as an alternative to the Universal Protocol for Preventing Wrong Site, Wrong Procedure and Wrong Person Surgery. ...
psnet.ahrq.gov/resource.aspx?resourceID=20364

Data, Technology & Analytics Fuse in Patient Safety Push - R & D Magazine
... incomplete patient information, administering the wrong medication due to miscommunication between physicians and pharmacists, and wrong-site surgery. ...
See all stories on this topic »

Data, Technology & Analytics Fuse in Patient Safety Push - R & D Magazine ... incomplete patient information, administering the wrong medication due to miscommunication between physicians and pharmacists, and wrong-site surgery. ... See all stories on this topic »

The Apology Shield - Who came up with this idea?

Steve Lombardi — Fri, 25 Feb 2011 05:00:14 -0600

I received a call from a reporter wanting to discuss the series I wrote on the medical apology shield. Like Participation Trophies the Apology Shield is society acting as if a lie is somehow the truth because enough people wish the lie were the truth. To prepare for the interview I read my old posts and once again I'm reminded of the Bush Era and its glorification of dishonest living coupled with its evil cousin greed. It makes me wonder aloud; who the brainless twit is that came up with the idea of the apology shield in professional negligence cases. They should be hung, drawn and quartered.

I do appreciate that good professionals make honest mistakes and that some professionals really are sorry for the hurt and inconvenience they have caused the client and patient. So trust me when I say I'm not picking on anyone.

When we talk about justice in America we're really talking about justice brought about by the people, not by judges who are tools of the establishment or prosecutors who are are equally tools of the establishment or the wardens or the police officers.
William Kunstler

]]>What is the apology shield?

Learn how this plays out in court and you'll see this is State-sanctioned lying. Here is how it works. The legislature passes a law that says if a doctor or other professional makes a professional mistake, they can apologize to the patient and the apology can't later be admitted into evidence if they are sued. The idea came about because insurance companies discovered that some doctors who actually meant it were apologizing to patients and when they did the patients were less likely to sue the doctors for malpractice. Not wanting to miss an opportunity to make more money the insurance industry quickly donated money to every political war chest they could mail a check to and suggested a law that allowed unapologetic doctors to apologize and to be shielded. This they considered to be a good idea because it added to the float.

The legislators then thought: If we can get campaign donations for passing this law it must be a good idea! So they crafted laws that say: if a professional makes a mistake, and then the doctor apologizes to the patient; the patient's and the patient's attorney can't later use it in court as evidence of wrongdoing. Well shucks Gomer that's brilliant! How much will you donate to my campaign?

Clip 1: "The Aura of Legality" (length 2:03)
The clip begins at 1:17:53 with Kunstler saying, "And that's the terrible myth..." It ends at 1:19:56 with the phrase "...without that pretense."

In theory it sounded good to the Scarecrow, but anyone giving this idea two seconds of thought quickly sees the practical, legal and moral problems with it. It's state sanctioned lying and encourages all the bad doctors who make the worse mistakes to offer a disingenuous apology and then to later take the stand (under oath) and to lie about having made a mistake. What moron came up with the idea to actually vote this out of a legislative committee?

TEN REASONS WHY THE APOLOGY SHIELD IS BAD STATE POLLICY, UNCONSTITUTIONAL AND IMMORAL

The apology shield is wrong for many reasons some of which include:

1. It's the Court's allowing State sanctioned lies and holding them out to the jury as if the apology were the truth while helping hide professional mistakes.

2. Apologies made under cover of the apology shield encourages fake apologies.

3. State sanctioned apology-lies hide from our view those doctors that genuinely wish to apologize, while encouraging those that aren’t sorry to lie.

4. The apology shield has the affect of hiding the truth and shielding lies.

5. The apology shield allows doctors, their attorneys and the Judges to suborn perjury.

6. The apology shield encourages those doctors who aren't sorry to offer a fake apology.

7. The fake apology makes patients distrust all apologies; no matter how genuine.

8. Laws such as the fake apology make citizens distrust the law, the political process, the Courts and everyone that is involved. They create the appearance of impropriety and foster less not more confidence in the political and legal process.

9. The apology shield allows professionals that take the stand to lie. Here is how: they make a mistake, then tell the patient they are sorry for making a medical error, then take the stand and under oath claim to the jury they did nothing wrong. Isn’t that a state sanctioned lie?

10. If after nine reasons you haven't understood why the apology shield is wrong perhaps you need to go back and read the Ten Commandments.

There is a good reason why I admire William Kunstler and his cadence of thought. Attorney Kunstler said it best when he said, just because it's legal doesn't make it right or moral. "And that's the myth of organized society, that everything that is done through the established system is legal. ... It makes people believe that there is an order to life and a system...

In this speech that is believed to have taken place in February, 1970, William Kunstler talks about what he thinks is the "terrible myth" of organized society: Because people trust the established legal system, they tend to accept its outcomes without much consideration. Citing several examples, Kunstler concludes that governments have used the law to put people to death throughout history, because this "aura of legality" is a very powerful thing and "all tyrants learn that it is far better to do this thing through some semblance of legality than to do it without that pretense."

This speech is as great or greater than those of President Kennedy or the Rev. Martin Luther King's greatest speeches. Because as he says all tyrants learn that it is far better to do this one thing through some semblance of legality than to do it without that pretense. And that's what we have with the apology shield, a pretense of truth, and the elevation of a lie.

http://www.youtube.com/watch?v=UL7Ct_urpUY

POV - Documentaries with a point of view, IPTV, The Terrible Myth

Brainy Quote, William Kunstler

To read this series on the apology shield follow these links:

Why Should I Apologize?, September 22, 2009
"I'm very sorry.", but really I'm not., September 23, 2009
An Apology Free From Risk, Isn't Really An Apology, September 24, 2009
How To Expose The Fake Medical Apology, September 25, 2009
Fixing Medical Malpractice by Fixing the Truth - The Apology Shield Law is like a fixed race.

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2. APOLOGY SHIELD, THE EMPORER'S NEW CLOTHES | Lombardi Law Firm

Oct 1, 2009 ... At Lombardi Law we make it a point to blog about the issues that affect those who are effected by accidents. Call us for a FREE evaluation ...
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3. Apology Shield: Detecting Truth with a Broken Lie Detector ...

Sep 26, 2009 ... At Lombardi Law we make it a point to blog about the issues that affect those who are effected by accidents. Call us for a FREE evaluation ...
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4. Apology Shield Examined - Why we apologize. | Lombardi Law Firm

Sep 24, 2009 ... At Lombardi Law we make it a point to blog about the issues that affect those who are effected by accidents. Call us for a FREE evaluation ...
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5. A Patients Understanding of the Medical Apology from Behind the ...

Sep 23, 2009 ... Thus, with the passage of a law, the apology shield, apology exclusion ... With the enactment of the apology shield state legislatures have ...
www.lombardilaw.com/.../a-patients-understanding-of-the-medical-apology- from-behind-the-shield.cfm - Cached

6. How to expose the fake apology under the Medical Apology Shield ...

Sep 25, 2009 ... At Lombardi Law we make it a point to blog about the issues that affect those who are effected by accidents. Call us for a FREE evaluation ...
www.lombardilaw.com/.../how-to-expose-the-fake-apology-under-the- medical-apology-shield.cfm - Cached

7. Apology Shield: Communist Styled, Government Sanctioned Official ...

Oct 3, 2009 ... At Lombardi Law we make it a point to blog about the issues that affect those who are effected by accidents. Call us for a FREE evaluation ...
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8. AFTER MAKING A MISTAKE WHY SHOULD PROFESSIONALS APOLOGIZE ...

Oct 5, 2009 ... And then there is the apology shield and what it teaches young doctors and medical students. How do the young people in society interpret ...
www.lombardilaw.com/.../after-making-a-mistake-why-should-professionals- apologize.cfm - Cached

9. WHY SHOULD I APOLOGIZE? - Page 1 of 41 | Lombardi Law Firm

Sep 23, 2009 ... Tomorrow I'd like to talk about the medical community's character when it comes to the apology shield. The apology shield is a sign of the ...
www.lombardilaw.com/blog/why-should-i-apologize.cfm - Cached

10. Wrong-Site, Wrong-Procedure and Wrong-Patient Surgical Malpractice ...

Fifth Wrong-Site Surgery at RI Hospital · AFTER MAKING A MISTAKE WHY SHOULD PROFESSIONALS APOLOGIZE? Apology Shield: Communist Styled, Government Sanctioned ...
www.lombardilaw.com/.../what-do-you-do-when-youve-experienced-a- wrongsite-wrongpatient-or-wrongprocedure-surgical-error.cf... - Cached - Similar

Oops! Did you say left or right kidney?

Steve Lombardi — Thu, 03 Feb 2011 05:15:17 -0600

Interesting paper on wrong-site surgery in ARCH

In today’s blog we have an interesting reference paper on wrong-site, wrong-patient and wrong-procedure surgeries. The Renal & Urology News site has an interesting article dated January 5, 2011 titled, Wrong-Site, Wrong-Patient Surgeries Found to Persist, By Ann w. Latner, JD. In the article Ms. Latner discussed a study that considered the insurance losses for 6,000 patient errors in Colorado between 2002 and 2008. Imagine this is only Colorado. The causes might surprise you. They seem to be confinded mostly to diagnosis errors and communication issues. Errors of judgment accounted for 85% and a failure to use the “time-out” process accounted for 72% of the cases. It’s a good read and it would be nice if during 2011 the U.S. health care system would have no wrong-site, wrong-patient and wrong-procedure mistakes.

The Archives of Surgery site is here. Wrong-Site and Wrong-Patient Procedures in the Universal Protocol Era and can be found in volume 145, no. 10 from October 2010 issue of ARCH. Here is the abstract to the article.

]]>Philip F. Stahel, MD; Allison L. Sabel, MD, PhD, MPH; Michael S. Victoroff, MD; Jeffrey Varnell, MD; Alan Lembitz, MD; Dennis J. Boyle, MD; Ted J. Clarke, MD; Wade R. Smith, MD; Philip S. Mehler, MD

Arch Surg. 2010;145(10):978-984. doi:10.1001/archsurg.2010.185

Objective: To determine the frequency, root cause, and outcome of wrong-site and wrong-patient procedures in the era of the Universal Protocol.

Design: Analysis of a prospective physician insurance database performed from January 1, 2002, to June 1, 2008. Deidentified cases were screened using predefined taxonomy filters, and data were analyzed by evaluation criteria defined a priori.

Setting: Colorado.

Patients: Database contained 27 370 physician self-reported adverse occurrences.

Main: Outcome Measures Descriptive statistics were generated to examine the characteristics of the reporting physicians, the number of adverse events reported per year, and the root causes and occurrence-related patient outcomes.

Results: A total of 25 wrong-patient and 107 wrong-site procedures were identified during the study period. Significant harm was inflicted in 5 wrong-patient procedures (20.0%) and 38 wrong-site procedures (35.5%). One patient died secondary to a wrong-site procedure (0.9%). The main root causes leading to wrong-patient procedures were errors in diagnosis (56.0%) and errors in communication (100%), whereas wrong-site occurrences were related to errors in judgment (85.0%) and the lack of performing a "time-out" (72.0%). Nonsurgical specialties were involved in the cause of wrong-patient procedures and contributed equally with surgical disciplines to adverse outcome related to wrong-site occurrences.

Conclusions: These data reveal a persisting high frequency of surgical "never events." Strict adherence to the Universal Protocol must be expanded to nonsurgical specialties to promote a zero-tolerance philosophy for these preventable incidents.

Author Affiliations: Departments of Orthopaedic Surgery (Dr Stahel), Neurosurgery (Dr Stahel), and Internal Medicine (Drs Boyle and Mehler), Denver Health Medical Center and University of Colorado School of Medicine, Denver; Department of Patient Safety and Quality, Denver Health Medical Center (Drs Sabel and Mehler); Department of Biostatistics and Informatics, University of Colorado (Dr Sabel); Colorado Physician Insurance Company, Denver (Drs Victoroff, Varnell, Lembitz, Boyle, and Clarke); and Department of Orthopaedic Surgery, Geisinger Medical Center, Danville, Pennsylvania (Dr Smith).

It is what it is... but why?

Steve Lombardi — Thu, 20 Jan 2011 04:16:32 -0600

Okay today is bitch and moan day at the Edict and I’m choosing wrong-site, wrong-procedure and wrong-patient surgeries to B&M about, but in a constructive way. This is how to keep the lawyers at bay and away. It's pretty simple really.

All you need to do is a time-out, sort of like you expect a pilot to do the run-up before takeoff and you’ll avoid most mistakes. Now it's becoming pretty well known that some doctors are tacitly refusing to be told what to do and aren't doing the time-out. I’m guessing the resistance has much to do with the fact most patients don’t die from a wrong-whatever surgery so there isn’t the same emphasis or shame as there is with a plane crash due to pilot error. Or maybe pilots are more willing to do the run-up check list because an error will probably kill them as well as the passengers. Whatever the reason it’s foolishness in the worst way.

]]>In today’s blog we have an interesting reference site about wrong-site, wrong-patient and wrong-procedure surgeries. The Renal & Urology News site has an interesting article dated January 5, 2011 titled, Wrong-Site, Wrong-Patient Surgeries Found to Persist, By Ann w. Latner, JD. In the article Ms. Latner discussed a study that considered the insurance losses for 6,000 patient errors in Colorado between 2002 and 2008. Imagine this is only Colorado. The causes might surprise you. They seem to be confinded mostly to diagnosis errors and communication issues. Errors of judgment accounted for 85% and a failure to use the “time-out” process accounted for 72% of the cases. It’s a good read.

Wrong-Site and Wrong-Patient Procedures in the Universal Protocol Era

Analysis of a Prospective Database of Physician Self-reported Occurrences

Philip F. Stahel, MD; Allison L. Sabel, MD, PhD, MPH; Michael S. Victoroff, MD; Jeffrey Varnell, MD; Alan Lembitz, MD; Dennis J. Boyle, MD; Ted J. Clarke, MD; Wade R. Smith, MD; Philip S. Mehler, MD

Arch Surg. 2010;145(10):978-984. doi:10.1001/archsurg.2010.185

Objective To determine the frequency, root cause, and outcome of wrong-site and wrong-patient procedures in the era of the Universal Protocol.

Design Analysis of a prospective physician insurance database performed from January 1, 2002, to June 1, 2008. Deidentified cases were screened using predefined taxonomy filters, and data were analyzed by evaluation criteria defined a priori.

Setting Colorado.

Patients Database contained 27 370 physician self-reported adverse occurrences.

Main Outcome Measures Descriptive statistics were generated to examine the characteristics of the reporting physicians, the number of adverse events reported per year, and the root causes and occurrence-related patient outcomes.

Results A total of 25 wrong-patient and 107 wrong-site procedures were identified during the study period. Significant harm was inflicted in 5 wrong-patient procedures (20.0%) and 38 wrong-site procedures (35.5%). One patient died secondary to a wrong-site procedure (0.9%). The main root causes leading to wrong-patient procedures were errors in diagnosis (56.0%) and errors in communication (100%), whereas wrong-site occurrences were related to errors in judgment (85.0%) and the lack of performing a "time-out" (72.0%). Nonsurgical specialties were involved in the cause of wrong-patient procedures and contributed equally with surgical disciplines to adverse outcome related to wrong-site occurrences.

Conclusions These data reveal a persisting high frequency of surgical "never events." Strict adherence to the Universal Protocol must be expanded to nonsurgical specialties to promote a zero-tolerance philosophy for these preventable incidents.

Author Affiliations: Departments of Orthopaedic Surgery (Dr Stahel), Neurosurgery (Dr Stahel), and Internal Medicine (Drs Boyle and Mehler), Denver Health Medical Center and University of Colorado School of Medicine, Denver; Department of Patient Safety and Quality, Denver Health Medical Center (Drs Sabel and Mehler); Department of Biostatistics and Informatics, University of Colorado (Dr Sabel); Colorado Physician Insurance Company, Denver (Drs Victoroff, Varnell, Lembitz, Boyle, and Clarke); and Department of Orthopaedic Surgery, Geisinger Medical Center, Danville, Pennsylvania (Dr Smith).

And in related news we have several stories. Mount Sinai School of Medicine held a conference for wrong-site surgery training at Goldwirm Auditorium on January 5, 2011 (good for them); the DrScore Blog talks about it in Measuring medical center quality performance on January 7, 2011; and HIPAA Exams has several posts on the subject that are worth reviewing.

How Does Wrong Site Surgery Happen? Surgery is a huge event in most people’s lives. The great risk and cost that are often involved in a...
Surgery on Wrong Patient Doctors and surgeons are required to follow the best practices of their profession to treat their patients. However, sometimes, this...
The Dangers of Wrong Site Surgery Individuals who must undergo surgery to cure certain ailments may have fears about surgery. In many cases, these concerns are...
The Dangers of Wrong Site Surgery Individuals who must undergo surgery to cure certain ailments may have fears about surgery. In many cases, these concerns are...
Plastic Surgery: The Top Signs of a Procedure Gone Wrong Before you get any plastic surgery done, you should take care to research your doctor to help ensure that you...

There is a related news story by an Orlando attorney that I’ll post the link to below. I don’t think this post provides much in the way of safety information but its there for what it is.

Medical Malpractice – Leads to The Death of a Patient | Orlando ...
By admin
With the appointment of each and every additional staff the chances of doing mistakes increases. Before proceeding further you must be familiar with some acts of medical malpractice- · Wrong site surgery · Wrong diagnosis ...
Orlando Personal Injury Lawyer - http://www.orlando-personalinjury.com/

Do voters and corporate America play on a level field?

Steve Lombardi — Wed, 19 Jan 2011 06:20:23 -0600

Is the legal system rigged against people; and in favor of big business or does it just seem that way?

People believe the law has the ability to go whichever way the judge wants to decide the case. It’s what people refer to as result-oriented reasoning. If you want a certain result you pick these legal principles and the result is possible. That’s how people view the law and frankly its how most lawyers and judges do, except we don’t admit it publicly. Today’s case has a result that most people will find offensive in that the proof required to prove a fact seems watered down in favor of an insurance company winning. If we asked the court to believe what this insurance company did, we'd lose ten out of ten times.

Judge says John Kline home’s former insurer doesn’t have to pay bank, Register, January 7, 2011

]]>Let’s put this issue in perspective: Most people assume that if they came into court accused by an insurance company of not having paid their homeowner’s insurance premium, that proof would required a cancelled check to show you did mail a check. That’s true for people but apparently not for an insurance company. In this case the insurance company’s proof was simply the description of a computerized mailing system. The insurance company was not required to show an actual paper letter putting the mortgage company on notice, as an additional insured, of nonpayment of premium. That seems odd to me because if I suspect that sometime in the future I may have to prove mailing, I keep an actual copy of the signed letter and stamped envelope. As an example I think of making income tax estimated payments. I copy the check and the coupon along with the actual stamped envelope. I assume just saying my system is set up to send it out should be good enough, won't be good enough to prove the "fact".

1984: We are there; the law now finds machines are more believable than humans.

In Polk County, Iowa there is a case Federal Insurance Co., aka Chubb Group vs. Two Rivers Bank. The issue being argued would result in an insurance company paying a bank for the losses it suffered on a mortgage when the insured’s house caught fire. The insurance company and the bank were suing over whether notice that the insured hadn’t paid the premium had been made. The bank said it never received a notice of cancellation; the insurance company said while it couldn’t produce a copy of the letter putting the bank on notice of nonpayment, that the computer system was set up to send a notice and therefore proof of notice is the system itself. Here in my words was the Chubb’s argument: “Even though we can’t prove it, we think we did and as an insurance company, that’s proof enough.” This sounds an awful lot like the gibberish left over from the tort reform era. If an insurance company as a system says the sky fell on a certain day then unless you can prove the sky didn’t fall on that day, then as a human, you lose. Remember the insurance industry claimed there were thousands and thousands of frivolous lawsuits and that lawyers were getting rich off of worthless cases by using a contingent fee contract. Of course that made no sense because a frivolous case is worth nothing, and one-third of nothing is, drum-roll please, NOTHING, NADA, ZILCH. How does one get rich off of nothing? That’s possible only on Wall Street, not Main Street. Let’s get to the instant case because it involves a developer, a house fire, premium notices, an insurance policy and a notice of nonpayment of premium that no one can produce.

The housing meltdown saga continues to reverberate throughout the courtrooms of America and in that respect Iowa is no different. Developers of housing tracts and commercial buildings found themselves naked when the tide turned south and as the economic waters receded some bills just didn’t get paid. What if one of those bills was a homeowner’s insurance premium payment? What if that bill never got paid; even though there was a mortgage, what then? If the premium payment wasn’t made by the homeowner, but there was a mortgage, wouldn’t you think the insurance companies would have to send a notice advising the mortgage company of the nonpayment and soon occurring lapse? This is a pretty important issue because once the policy lapses, there is no insurance and the bank’s loan is at risk of a complete loss. If the house burns to the ground and there is no insurance to rebuild it the mortgage is almost worthless. It's worth the market value of the foundation and land minus the cleanup costs. You get the picture I’m sure.

Doesn't anyone just pick up the phone? A simple phone call and none of us would be reading this, there would be no lawsuit and the lawyers and judge would all be fishing of the dock of some bay.

So in the end the insurance company wouldn’t pay, they refused to pay the bank for its portion; and the bank then sued the insurance company because, as it plead its case, we didn’t receive a lapse notice. How can we make a premium payment if we, the bank, don’t know the insured isn’t making the premium payment? Isn’t that what the additional insured provision is all about?

Off to the Polk County Courthouse we go.

So how does the bank prove a nonevent? They can’t. The rules of evidence should point in the direction of the insurance company to prove it served a notice of nonpayment. To do so should be easy; at least you’d think so since it allegedly sent a piece of paper to the bank. Proof would seem as easy as showing a copy of the piece of paper, but nothing is easy for humans when insurance companies are involved with paying money. And this case proves my point. Even though the insurance company couldn’t produce the copy of the cancellation notice they won the point and the case and get to keep the dough.

Common sense would tell us a different rule of evidence should be applied.

Shouldn’t the burden be in the party that sent the notice; because after all they control the evidence? In that vein wouldn’t proof that an actual paper notice was sent, (just keep a copy), be required to be sent to the mortgage company that insures the property? You’d think so now wouldn’t you? But that’s not what this case holds. Apparently a mailing system that can’t produce a copy of the actual notice but is set up to show what it thinks it did trumps human testimony that bank employees are paid to open paper mail and to process it; mail that was never received. Frankly I don’t understand the ruling, but I wasn’t in the courtroom and didn’t hear the evidence. I can almost guarantee that if I were the judge the result would have been different.

Here is from the Des Moines Register’s article about such a case:

Evidence introduced during the Federal Insurance trial disclosed that bank officials were subpoenaed to appear before a federal grand jury in August 2009. No indictment has been filed.

During the trial, Two Rivers lawyers argued that no bank employee received a cancellation notice and that a search for the notice turned up nothing. As a result, the lawyers contend, state law requires that the insurance company be held liable for a prorated share of the mortgage loss and for legal fees.

But Federal Insurance responded that although it cannot provide specific proof that the lender received notice, its elaborate mailing system in New Jersey provided "a presumption of receipt by Two Rivers."

Hutchison agreed with Federal Insurance, adding that the testimony and evidence presented by Two Rivers failed "to prove that it is entitled to any judgment against the defendant."

"The bank did not have a reliable policy for maintenance of important documents, including those related to insurance matters," Hutchison wrote. "Unlike Federal's automated system which guarantees a document is mailed, Two River's document-handling procedures are not automated. They are entirely dependent upon human compliance with unwritten and discretionary procedures."

Insurance companies are powerfully and all knowingly arrogant. Their unstated mantra is “We win and you lose.” No wonder people are pissed off. From a layperson’s point of view this result makes little sense. Saying your computers must have sent it wins out in court over humans that say they didn’t receive the notice of cancellation. If the rules apply equally to policy holders then I should be able to come to court and describe a computerized mailing system that guarantees premium payments have been sent and that should trump the insurance company saying no payment has been received. This makes little sense to me. I for one would appeal this ruling.

The insurance industry shields itself by using us, the lawyers, to do its dirty work. So stop wondering why people in general simply hate us. We aren't the messengers; we are seen as the King's assassins. Any one that thinks otherwise is suffering from delusion. The only question I want answered is how do we quit the Monarchy?

To read the decision underlying this case follow this link to my lawfirm website. (At the time of posting this my site was down so I'll fix and add the link at a later time.)

Where public policy collides with the practice of medicine and libel law

Steve Lombardi — Mon, 03 Jan 2011 06:10:49 -0600

Today the question presented would be something like this:

Should the medical examiner be reporting physicians to the Iowa Board of Medicine concerning standard of care issues? Or, if an Iowa ME sees questionable deaths is it his/her duty to report it to the Iowa Board?

According to a Des Moines Register article wirtten about a libel suit between the Woodbury County Medical Examiner [ME] and a surgeon this ME did just that; he reported to the Iowa Board of Medical Examiners something he questioned and the lawsuit was ‘tossed’ by Judge Reade. But I don’t think that’s completely accurate. I believe the suit is still alive although portions of it have been ruled upon in a way that is adverse to the plaintiff, but favorable to the defendant. The ME reported a doctor for what he thought were standard of care issues. I’ve not completely read the decision but will guess the main issues were immunity from suit.

Okay, I’ve located the opinion and I’ll add this link and add the decision to my site under defamation. The Order is 40 pages long. I can see both sides of this argument. On the one side you have the ME’s role as a government official and medical doctor protecting citizen patients. On the other side you have a doctor spending a considerable amount of money, $200,000, defending himself against the charges. No one will be happy with this controversy.

Here is the Judge's conclusion from page 39 by the Court.

]]>c. Conclusion

The court concludes, as a matter of law, that Dr. Carroll did not act with actual malice in publishing the statements in the Letter. Dr. Reeder puts forth no evidence that Dr. Carroll knew his statements were false. Nor is there “‘sufficient evidence to permit the conclusion that [Dr. Carroll] in fact entertained serious doubts as to the truth of his publication.’” Barreca, 683 N.W.2d at 123 (quoting Caveman Adventures, 633 N.W.2d at 762). Because he did not publish the statements with actual malice, Dr. Carroll’s statements in the Letter are qualifiedly privileged. For the same reason, he also is immune from civil liability for the statements pursuant to Iowa Administrative Code r. 653-22.2(2)(f). Accordingly, the court shall grant the Motion to the extent it seeks summary judgment with respect to Dr. Reeder’s libel and false light claims.12

Is this matter concluded? Probably not, the case is probably still alive in the sense that there are other claims/issues to be resolved. Here is why. The plaintiff sued under three different theories of liability: 1. Slander. 2. Libel. 3. False light invasion of privacy. Here is a quote from U.S. Judge Linda Reade’s opinion that wold indicate the case remains active.

In the Complaint, Plaintiff asserted claims against Defendant Thomas Carroll, M.D., (“Dr. Carroll”) for slander, libel and false light invasion of privacy. On April 6, 2009, Dr. Carroll filed an Answer (docket no. 10), in which he denied the substance of the Complaint and asserted affirmative defenses.

From a practical standpoint parts of the case have been decided, but it appears from the decision there are portions of the claim that have not. I'll keep my eye out for a conclusion. Stay tuned.

Medical Malpractice Insurance Myths and Other Distortions of Truth

Steve Lombardi — Wed, 15 Sep 2010 06:39:33 -0600

The title of Reuters news item (September 7, 2010) as reported by Maggie Fox, “Malpractice Liability Costs U.S. $55.6 Billion: Study” is to focus of today's blog. Simply put it's not accurate. There are three things wrong about this report.

The title is inaccurate.
The assumptions the reporter expects readers to make are erroneous.
The conclusions she reaches are absurd and I challenge her to prove just one.

The Title

The title implies that a study finds malpractice costs alone amount to $55.6 Billion. That’s not even close to being true. She made the mistake of not reading enough about the study and what it does show. The actual study reports these “costs” include: defensive medical practices such as extra tests and scans, in addition to administrative costs, payments to patients harmed by practice outside the standard of care, and attorney’s fees for these patients; all account for 2.4 percent of the annual U.S. healthcare expenditure, as reported by Michelle Mello of the Harvard School of Public Health.

]]>Professor Chandra, economist from the Harvard Kennedy School of Government, concurs with Professor Mello stating that, “Our study demonstrates that both these simplifications are wrong—the amount of defensive medicine is not trivial, but it’s unlikely to be a source of significant savings.”In addition, Professors Mello and Chandra’s team have concluded that tort reform “would be unlikely to cut overall healthcare spending much.”

The False Assumption: All test included in the study were unnecessary and ordered only because doctors feared being sued.

Really? Where did you get that statistic from and how did they measure unnecessary diagnostic tests? How can anyone make that conclusion? It's based totally on self reporting that points the blame away from the medical professional claiming to be violating the law and committing fraud. It's what we call self-serving. Maybe there are unnecessary diagnostic tests being performed, but not because of lawsuits. If they are unnecessary then the tests are being ordered to inflate the bill - to make money.

And who can say what is unnecessary? If that conclusion of the test being unnecessary is being made after the test comes back and shows no condition, again it's self serving. Let the doctors start making that declaration before they order the test. Any doctor ordering tests unnecessarily knows it's not necessary when he orders it. So let he/she say it and risk not being paid for doing it. What we do know is that if the doctors admitted non medical related tests were ordered and performed, then it means they are admitting to wholesale fraud of the medical system.

WHO IS COMMITTING FRAUD?

Who said they ordered unnecessary tests? Which doctors admitted that fact? Give me just one name. Did you ask for names? Why not, that’s the real story. Are you trying to hide fraud? Bob Woodward is definitely DOA. RIP Bob.

98,000 people die every year from preventable medical errors; the equivalent of two 737’s crashing every day. The best way to have fewer medical malpractice claims is to reduce the number of medical errors. A safer patient means lower health care costs.

The bottom line is the incentive to do more tests results in bigger payouts to the medical service provider. Capping malpractice awards serves no one except those in the medical community who make all the mistakes. Good doctors aren't asking for a free pass. Experts, including Warren Buffet, argue that the increase in malpractice premiums is a reflection of the insurance cycle and not a reaction to tort liability.

When did you last try a medical malpractice case? How many injured patients have you even interviewed; or is that a side of the story you want told. Whatever happened to unbiased journalism?

The Emperor Has No Clothes

But to be complete in what the readers are allowed to consider, let’s assume Reporter Fox is correct in assuming doctors are ordering diagnostic tests in a majority of cases, just because they are afraid of being sued. That assumption also assumes the tests are not necessary, but are being ordered to just protect the doctor against a lawsuit. If we assume that, then we also have to assume the billing statement to Medicare, Medicaid, BCBS and all other health insurers are fraudulent. In other words if those tests aren’t medically necessary, then they are being ordered for reasons other than medical necessity; and that’s just plain wrong, illegal and subjects all of us to spending health care dollars in a nonproductive manner. To make that assumption we have to assume all insurance claims examiners are to dumb to catch on to these tests not being medically necessary for health care. Find me one medical claims examiner who will admit to allowing the payment of a claim for unnecessary medical care. Just one.

You have to be ignorant of the system to write this story. Has Reporter Fox ever read her own health insurance plan language? I doubt it; because if she had she would know health insurance plans cover only those tests designated and found to be medically necessary. To argue otherwise is naive at best.

The Big Assumption That Can't Be Proven

Previously I offered to assist anyone in the insurance industry that can prove wholesale medical billing fraud, such as Reporter Fox seems to believe exists, if they will simply step forward with the evidence to prove what they allege I’m all ears. I offer that to claims examiners because they have all the evidence that Fox claims exists, they aren't paid very well and I figure they can use the millions of dollars this whistleblower case will bring to their bank account.

If reporters can prove this claim of unnecessary diagnostic tests then they should prove it with investigative reporting that identifies doctors and claims examiners rather than trying for a cheap grab at an eye catching headline. And if they can not prove it, then they should stop reporting irresponsibly.

So far no one has stepped forward. The big assumption continues to sell news papers, but produces not one name. As I said earlier, the emperor has no clothes.

The Real Issue

The real issue that is avoiding discussion is how to teach responsible professionalism and at the same time avoid errors. It doesn’t matter if it’s medicine, law, accounting, engineering or manufacturing we are all responsible for our mistakes and to advocate for allowing professionals to avoid being held responsible for their mistakes is to invite more, not fewer, professional errors. That is irresponsible from a professional and economic standpoint. For journalists to advocate for reforms without responsibility is indicative of a industry suffering a terminal illness.

Malpractice Liability Costs U.S. $55.6 Billion: Study
Harvard School of Public Health, Michelle Mello
Harvard Kennedy School, John F. Kennedy School of Government, Amitabh Chandra, Professor of Public Policy
American Association of Justice, Medical Malpractice Fact

Listen... Here that? "Ka-Ching" What is it?

Steve Lombardi — Thu, 12 Aug 2010 06:01:00 -0600

That's the sound of your $$ in the insurance adjuster's pocket. To the insurance industry it's called promoting the float. The float is the money they keep while you wait. It's insurance wealth that belongs to you, but insurance uses it during the delay that they create. Ka-chingggggggggggg!!! Thanks!

Insurance Lullaby: Ka-ching, ka-ching, ka-ching! Insurance Executives: Thank you juries! We fooled you again. Remember we're not to blame, it's those trial lawyers! The ones trying to help you! Oops sorry I wasn't supposed to remind you. We're your good neighbor; you know the one's you're in good hands with! Smile! Bigger ka-ching!

Sorry, when it comes to the insurance industry I love being sarcastic. A lady wrote asking me if the insurance adjuster can unilaterally assign her 50% fault for the accident even though she was not ticketed and the other driver received a citation for failing to yield the right-of-way. The adjuster believes a driver is automatically at fault, no matter what, and he deducts 50% from the property damage. My advice is pretty straightforward and simple. He's trying to delay paying you. Can you say ka-ching?

Today let's talk about the American styled insurance that protects the float by promoting delay. When you're in an accident you need to know how to protect your claim. Because if you don't protect your claim by keeping the facts straight, you allow the adjuster to promote the float through their delaying a fair resolution. You may be honest, but don't be dumb and allow the adjuster to maladjust your case.

]]>Keep in mind that when talking to the insurance adjusters know your facts and stick to your version of the facts. Don't allow the adjuster to twist your words by directing the conversation and massaging the facts while painting you into a corner. Write your story out ahead of the interview. Think through what happened and what you intend to say. Don't fall into the trap of believing just because you're honest the adjuster will give you a check for showing up to play the insurance game; because chances are he's playing by a different set of rules. His game has a goal of winning, not discoverying the truth. Winning to him is not paying what you deserve. Winning to an insurance adjuster isn't about paying a fair amount. They'd laugh at that one. After all how do you think their bonues are calculated? Let's get to today's question.

A lady wrote to me asking whether the insurance adjuster can just deduct 50% for her fault even though she was not ticketed and the other driver received a citation for failing to yield the right-of-way. My advice is to the point.

Dear ____________, Thanks for writing to me. If you weren't ticketed (given a citation) then I see no reason why you would be at fault. I'm going to guess that the insurance company’s adjuster is saying that you struck the trailer, meaning you did not have control of the intersection and therefore the other guy had the right-of-way. Your observation that he sped up trying to get control of the intersection becomes that much more important. Coming to an intersection you’re supposed to slow down and assess the traffic situation; not speed up and yell damn the torpedoes.

Everyone has the right to assume the other guy will obey the law.

Stick to your argument that he sped up. He did not have the right of way, he had a duty to yield; instead of slowing down at the intersection he sped up; he was ticketed; you had the right of way, you were not ticketed. You simply have to argue that you are free from fault.

If he won't pay you will have no choice but to hire a lawyer and sue. If your only claim is for property damage less than $5,000.00 then you can sue in small claims court. If the driver or passengers were hurt and sought medical attention then you probably should sue in district court. Have you already told him there was no personal injury? If so I would think the adjuster has accomplished at least half of his goal; to pay you as little as possible.

You may need to hire a lawyer. Good luck.

Steve Lombardi

Now let's end today with a good laugh. Watch this video of a wedding couple gone wrong. It's a video created for an insurance company.

Who in Iowa goes to a parade to be stampeded by horses?

Steve Lombardi — Fri, 23 Jul 2010 08:30:00 -0600

The Fourth of July parade in Iowa’s Bellevue was upended when runaway horses trampled 24 people, killing one and injuring the other 23. It is said to have to do with the bridle of one horse rubbing another. The driver lost control and the rest is history.

Related media coverage:

Caught on Tape: Horses' Rampage at Parade Kills 1, Injures Others - Chicago Tribune
July 4th Horse Stampede Saddens Iowa - Injury Board Blog Network: St. Cloud, MN

They will loudly proclaim that no one should sue! No way, no how; after all that would be un-American! Wouldn't it?

Well that’s exactly what I’m going to suggest. After all who considers going to a parade to get killed or maimed by a stampede of horses? Hell, no one does. To those who say horses do unexpected things I say, so what, who cares and what difference does it make that a horse acts without reason? The object that acted without control was entered into a parade and within a few feet of people sitting in lawn chairs. And, it was predictable.

Think this is the first time horses have stampeded the crowd at a parade?

]]>If the measure of when a lawsuit should be filed is what works for the entertainment of those spectators who aren’t trampled then what is the filing standard when a pit bulls rip the face off of an infant? Aren’t they thought by some to be America’s pet signifying independence of the pit bull owners? Give the pit bull owners a side arm and they can be enlisted to shoot out-of-control horses.

Let’s have a parade of pit bulls and other vicious animals we consider part of the American culture. How about a herd of buffalo, wouldn’t they make a cool parade. One thousand stampeding buffalo trampling everything and everyone in sight along hometown America. Or how about sharpshooters with guns that can take out elephants traipsing along the parade route just in case an animal steps out of line; that would work.

You see it doesn’t matter what you and I think is American or un-American. When it’s you that gets trampled and then maimed or your spouse or child killed it’s all about doing what is right by them; and that is what an integral part of the American tapestry is.

Do otherwise and you might as well have your next parade in Red Square.

One killed, 23 injured after spooked horses trample crowd at Bellevue parade, July 4, 2010

UPDATE: One dies after horses' rampage at Iowa July 4 parade - A pair of runaway horses in harness crashed into a Fourth of July parade float and collapsed, ending a rampage that injured nearly two dozen people and killed one, people at the parade said Monday. July 5, 2010

Horses take off, injure 24 people at Bellevue parade - Two runaway horses raced along a Fourth of July parade route in a small Mississippi River town in eastern Iowa on Sunday, trampling children who were in the street picking up candy and injuring 24 people, police said.