July/August 2008

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Causation testimony by nurses in med mal cases?
Doctors’ traditional witnessing domain may yield to Daubert

• The Gist: Several nursing profession and judicial factors may be coming together to more frequently allow causation testimony by nurses.

© 2008 The Medical-Legal News
By Dan Clifford, publisher

In a recent case, the Supreme Court of Oklahoma held that a nurse expert witness could testify as to what caused a patient to develop bedsores in a medical malpractice case. At first blush the case, Gaines v. Comanche County Medical Hospital,[1] could be dismissed as a straw in the wind or easily debated, and indeed its holding was very narrow, but a number of factors come together in the case to erode the traditional view that medical causation testimony is only within the domain of physicians and can never be within that of nurses.

Introduction and factors favoring nurses on causation
The first sign of shifting sands in expert testimony that favors nurses comes from the U.S. Supreme Court’s Daubert case. While cases where nurses are allowed to speak to causation are few and far between,[2] the science-based approach to witnessing urged by Daubert and the Federal Rules of Evidence is not violated in such cases, and may in fact give preference to nurses’ opinions over that of physicians’ in some instances on some topics. Acceptance — and more importantly, understanding — of Daubert is growing, along with Daubert’s requirement that courts apply “good science” to the admitting of testimony in place of older, more rigid and questionable, criteria. This bodes well for nurses. Second, the concept of who can testify is open to wide interpretation under Daubert, as overlap in professions or knowledge is sometimes needed in order to define whether an expert is similarly situated to the issue. Third, the traditional idea that doctors can speak to causation solely because they are trained in “differential diagnosis” is a fallacy in some fact patterns — namely where causative factors are external to the body. Fourth, testimony by physicians is not always as science-based or accurate as common acceptance might have it. Fifth, at least one case disallowing a nurse to speak to causation must be carefully re-read, and last, the profession of nursing is moving quickly away from its subservient “Florence Nightingale” roots and into a genuine evidence-based profession of its own as shown by the surge in evidence-based nursing practice, the nursing standards of care (which are based on research, experience and imply causality) and the federal government’s recognition of certain treatment areas as being within nurses’ domain…

CE: Delegation: Facts and guidelines

© 2008 The Medical-Legal News
By Frances W. Sills, RN, MSN, ARNP

Challenges in today’s healthcare systems are making greater demands on the registered nurse to have the knowledge and critical thinking skills to effectively delegate to others. The dynamics in this continuously changing climate and the nursing profession compel the individual RN to be vigilant and action-oriented regarding changes that address nursing practice and RN delegation.
This CE offering will address the process of delegation as it applies in most states and territories of the U.S. It is important to understand that some states may have different definitions, regulations or directives regarding delegation. The RN must be familiar with his or her state’s board of nursing and the state practice act to ascertain state-specific differences.
RNs are accountable to the public for providing cultural, competent, safe and effective nursing care for patients in a variety of settings across the continuum of healthcare. In each setting, RNs function as essential members…

“Upcoding” nets possible prison term for doctor

• The Gist: Coding and billing fraud cases are becoming more common as the government seeks to crack down on reimbursement overpayments.

© 2008 The Medical-Legal News

A West Virginia physician was convicted by a jury in mid-June of 29 counts of fraud for billing insurers for services he did not perform, according to the Charleston Daily Mail.
Dr. John C. Sharp, 67, was found guilty of “upcoding” and could face up to 10 years in prison and a $250,000 fine on each count, or $7.25 million.
The prosecution accused Sharp of bilking Medicare, Medicaid, and worker’s comp out of $570,000 over an eight-year period.
Because of the large number of medical records involved, reviewers did a random sampling, according to The Pocahontas Times. The defense argued that such samples are not absolute. The defense also countered that some upcoding may have come from staff’s clerical errors, and that Sharp’s patients were especially sick and elderly, so as to put his extra charges for them outside normal reimbursement parameters, thus making him a legitimate “outlier.”
The prosecution noted that Sharp billed for office visits at too-high rates, billed for prolonged services, billed for office visits he did not do and had been audited on three previous occasions and told each time to correct the problems, according to The Times. •

Can an expert witness be sued when he retracts?

• The Gist: Experts often do not see the transcripts of opposing depos until the last minute — a risky situation.

© 2008 The Medical-Legal News

A Utah couple is suing their own expert witness because they say he backed out of his expected testimony, according to an article in amednews.com, April 14; Pace v. Swerdlow, 519 F.3d 1067 (Utah, 2008).
Thomas and Karol Pace sued Barry Swerdlow, MD, after he allegedly changed his opinion about the cause of the Paces’ daughter’s death from breast augmentation surgery, causing them to lose the case.
The couple has sued Swerdlow for breach of contract, breach of good faith and fair dealing, negligent misrepresentation and several other torts.
According to amednews.com, Swerdlow said he had not seen the deposition of the doctor against whom he was to testify before his own deposition. This fact is in dispute. Swerdlow amended his plaintiff-friendly stance once he saw the deposition, and decided the defendant doctor had been within the standard of care.
The case highlights the hotseat an expert can be in when torn between loyalty to the hiring party and what he feels are professional ethical standards for assessment of a colleague.
The case may wind up at the state’s supreme court. While expert witnesses are given lawsuit immunity from the opposing side, same-side immunity has not been conclusively decided. •

Florida Supreme Court upholds wide accessibility of adverse incident records

• The Gist: Florida voters clearly want to know what is going on with providers, and their supreme court agreed with them.

© 2008 The Medical-Legal News
By Dan Clifford, publisher

The Florida Supreme Court in March upheld that peer review documents and those relating to adverse medical incidents are open to discovery and that such records made before passage of a new amendment are retroactively accessible.
Florida voters had overwhelmingly approved amendment 7 (Patients’ Right to Know About Adverse Medical Incidents) to their constitution in November 2004. The amendment conformed with HIPAA in that patient names would be redacted. The amendment opened up risk management documents, credentialing documents, quality assurance documents and those relating to medical negligence and intentional acts that caused, or could have caused, death or injury to patients. The amendment was not limited to just those documents that must be reported to the government.
Florida then passed section 381.028 of the Florida Statutes to put the amendment into law. Lawsuits followed that challenged the constitutionality of the new statute, claiming it too narrowly interpreted the broader voted-on amendment.
One big issue was whether or not existing records could be requested retroactively (in medical cases filed and underway before the amendment passed). The court deferred to the language of the amendment, and said it clearly applied to existing records.
Some hospitals had argued that they had a vested right in the possession of any records before the amendment passed, thus triggering a due process violation. The court rejected this reasoning stating that the mere expectation of continuance of legislative policy does not confer a right, like with a title.
Additionally, the high court took umbrage at 381.208’s restrictions that: 1) only “final” incident reports were discoverable (as opposed to all); 2) only records relating to a “substantially similar” incident to the requesting patient could be released; 3) adverse event records were still excluded; and 4) the requesting patient could only access records from a healthcare provider that had served the patient. The court rejected, as violating the amendment, and severed, these parts of the statute, effectively making records access quite broad.
The court noted that “the chief purpose of Amendment 7 was to do away with legislative restrictions on a Florida patient’s access to a medical provider’s history of facts, neglects or defaults because such history may be important to a patient.”
The two cases reviewed by the high court were Notami Hospital of Florida, Inc. v. Bowen, 927 So. 2d 139 (Fla. 1 Dist. 2006) and Florida Hospital Waterman, Inc. v. Buster, 932 So. 2d 344 (Fla. 5 Dist. 2006).
The court, quoting from Buster, went on to say: “We believe amendment 7 heralds a change in the public policy of this state to lift the shroud of privilege and confidentiality in order to foster disclosure of information that will allow patients to better determine from whom they should seek healthcare, evaluate the quality and fitness of healthcare providers currently rendering service to them, and allow them access to information gathered through the self-policing processes during the discovery period of litigation filed by injured patients or the estates of deceased patients against their healthcare providers.” •

Big awards: Highlights of low-quality care

• The Gist: Could breaches in duty be any more obvious? The attorney or records reviewer may not always have to look far to find egregious slips in standards of care.

© 2008 The Medical-Legal News

The June 2008 issue of the Legal Eagle Eye Newsletter(www.nursinglaw.com) had several med mal cases of note:
In a case that settled for almost $4 million, a hypoglycemic newborn was put on a peripheral line instead of a central line to deliver dextrose. The infant retained fluids and suffered injuries. The nurse was faulted for not noticing the infant’s deteriorating condition over the two-day period that the infant was on the line.
In a Florida case, nurses abruptly took a diabetic patient off of her IV insulin drip without weaning her off gradually. The patient herself knew her insulin was dropping at 7 p.m. after eating her dinner. She alerted a nurse. The nurse told the patient to go back to bed and that she was not scheduled to have her blood tested until 9 p.m. The test was never taken and the patient died of cardiac arrest at 9:30. Award: $8.8 million.
A teenage boy in Georgia had his broken femur repaired by an orthopedist. The orthopedist apparently did not notice that the popliteal artery was damaged. At midnight the boy said his leg was numb. At 8 a.m. — the next day — the nurse noted the leg was cool to the touch, had no pulse and that the boy was in great pain. No report was made to the doctor. The leg later had to be amputated. Award: $24.5 million.
Death by dentures: In an Indiana case, a woman was intubated without her partial denture being removed. Damage resulted. After removal of the tube, the lodged denture caused bleeding and aspiration, leading to a second intubation (with the hidden denture still in the pharynx) which lead to a worsening condition and shock. Award: $938,000.
A Passy Muir Speaking Valve was ordered for a patient in Michigan. Without orders, a staff nurse totally unfamiliar with the device installed it and choked the patient to death. Award: $975,000. •

Dumping patients to become more expensive

© 2008 The Medical-Legal News

Los Angeles recently passed a city ordinance making it a misdemeanor crime to “dump” discharged patients at locales other than their homes, according to Modern Healthcare (2008-06-16).
Because CMS must stop reimbursements for five years to any hospital convicted of a misdemeanor crime, a single incident of dumping could devastate a hospital’s income, particularly those with a lot of indigent patients. Critics say the CMS does not have to stop payments just for violations of local ordinances.
The other tricky wrinkle in complying with the ordinance: Where does a hospital drop off a homeless patient? •

Tools cleaned in hydraulic fluid

© 2008 The Medical-Legal News

In 2004, 3,600 patients at two Duke University hospitals were exposed to surgical instruments that had been mistakenly cleaned with hydraulic fluid, according to the Raleigh News and Observer (June 19).
The two hospitals, Duke Raleigh and Durham Regional, part of the Duke University Health System, settled confidentially with patients who suffered from health problems. Plaintiffs claimed infections, immune-system problems, inflammatory response problems and loss of consortium.
The law firm of HensonFuerst represented the plaintiffs.
According to raleigh.injuryboard.com, the patients had to try to tie the incident to their mostly autoimmune illnesses, despite a Duke-commissioned study that suggested no connection existed.
Duke notified patients of their exposure in January 2005.
About 70 patients have filed suits against Steris Corp., of Mentor, Ohio, and Cardinal Health of Dublin, Ohio, for their roles in the hydraulic fluid mix-up. Steris is a maker of sterilization washers and Cardinal is a distributor of medical and surgical supplies.
According to a 2005 News and Observer story, the fluid was drained from an elevator at a Duke hospital and put into old barrels marked Mon-Klenz, the name of the detergent. Amazingly, both products have a maple syrup color. The barrels were not discarded promptly and were eventually and mistakenly put back into commerce. Though the barrels were not sealed, staff accepted the barrels without question back at the hospital. Staff later noted trouble with the tool washing machines and complained that the tools were so slick they had to be wiped and rewashed. •

Finding full texts of guidelines, articles

© 2008 The Medical-Legal News
By Beth Zorn, Co-moderator, LNCExchange

Clinical guidelines: Go the website of the organization that promulgated the guideline — many times the guidelines are available at no cost. If you need an older version of the guideline, call the organization. Examples:
• “Guidelines for Infectious Disease Specialists serving as Expert Witnesses,” Clinical Infectious Diseases. 5/15/2005 v. 40 No. 10 pgs. 1393-1394 is athttp://www.idsociety.org/search. aspx?q=Expert. Google the entire site to find out if it is in full text somewhere on the internet.
• ECRI (www.ecri.org) now has full text clinical guidelines in their Health Care Standards Online — it is a paid subscription (about $500 per year), but worth it for firms that do a lot of med mal.
If the clinical guidelines are published in a journal, find the site and follow suggestions below for locating the article.

Peer-reviewed journal articles: I always start with MD Consult due to its large collection of full text articles which can be downloaded at no cost. It is a paid annual subscription, but with the special rate for medical-legal professionals, it is well worth it (contact me if you need the details about this).
• Use the “advanced search” function of Google scholar — this will give you the internet sites in which an article is available in full text —sometimes at no cost; many times for a fee ranging from $10 to $40 per article.
• Go to the online site for the journal and search for back issues — sometimes older articles are available at no cost; other times there is a fee.
• Visit a local medical library and find and copy the article.
• Request the article via interlibrary loan at your public library.
• Use an article retrieval service. The best I know of is Leroy Ellenberger’s athttp://www.riggsconsulting.net/retrieval.
Below are some sites for obtaining full text articles, which frankly, I have not investigated much but am passing them along:
• http://highwire.stanford.edu/lists/freeart.dtl
• www.lib.uiowa.edu/hardin/md/ej.html
• www.doaj.org/
• www.freemedicaljournals.com/
• www.medical-journals.com/
• http://findarticles.com/p/articles/mi_qa3689
• www.publist.com/
http://web.dohms.gov.ae/medlib/remote/newJournals.htm.

Beth Zorn is a nurse consultant at a law firm in Rochester, N.Y.; elzorn@faraci.com.

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