November/December 2008

CE: Brain injuries often result from seniors’ falls

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

The uncooperative plaintiff and the reasons for his case-threatening behavior

By Patricia Iyer, MSN, RN, LNCC
© 2008 The Medical-Legal News

Penny marketing: A “cheap” entrepreneurial tool

This article was written for nursing-based consultants, but is applicable to many professions.

By Dorajane Apuna, BSN, MA, RN, CCM, CNLCP
© 2008 The Medical-Legal News

Bar-coded meds: Is the new solution a problem?

• The Gist: Circumventing the bar code system could lead us back to the same drug errors that compelled the switch to bar codes in the first place.

© 2008 The Medical-Legal News

Do bar-coded drugs improve patient safety? They should, except when nurses deliberately circumvent the bar codes.
A study in the July/August issue of the Journal of the American Medical Informatics Association found that such work-arounds occurred with 4.2% of patients and with 10.3% of drugs charted.
The study was reported in the September issue of Nursing2008.
The study found that nurses may work around the bar-codes either for convenience or because they are forced to thwart the system when the system itself hampers proper procedure.
The study cited 31 reasons why nurses back-doored the system. Some top reasons were: 1) bar codes were unreadable, 2) patient ID bands were unreadable or missing, 3) the medicines were not bar-coded, 4) drugs were physically far away, 5) wireless connections were lost, 6) problems existed with patients in contact isolation and 7) various emergencies.
The article also noted that nurses sometimes carried prescanned medicines on their carts or carried copies of patient ID bands. The study called for better integration of bar code technology with real-world problems. •

Peer review committees, health data reporting laws, may not immunize records

• The Gist: The records reviewer and the party requesting records should be aware of the verbiage and case holdings pertinent to medical records.

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

In a Tennessee case a district court has held that medical records made in the normal course of a nursing home’s business are not privileged from discovery merely because they are handed off to a peer review committee or used as factual background in reporting to higher regulatory authorities.
The case, Brown v. Sun Healthcare Group, Inc., 2008 WL 1751675 (E.D. Tenn. 2008), gives four examples of how records are not immune from plaintiffs’ eyes. Defendants raised four theories to try to block plaintiffs from acquiring medical records, but were defeated on all.
• First, the court said: “reports prepared in the normal course of business by defendants relating to the care of Mr. Brown are not protected merely because they have been provided to a peer review committee.” The defense had argued that a Tennessee Peer Review Law privileged the records.
• The court next found that a somewhat tricky distinction can exist between copies made by a peer review committee and the copies’ originals. The court said: “We interpret the ‘otherwise available’ language [from the peer review law] to mean that information that is available from a source other than the committee does not become privileged simply by being acquired by the review committee.” Thus, when an alternate source for peer-review documents exists, the non-peer review documents are not privileged and the defendant may have to produce them. That is, while copies of non-privileged records may become privileged (because the copies were made by the review committee), the originals that came from outside the committee would not be privileged. The court noted: “Rather, the copies of the documents in the possession of a peer review committee are protected, but the documents may still be obtained from the original source, the defendants.”
• The defendants in Brown then argued that a state health data reporting act (HDRA), which required the filing of corrective actions or unusual events with the state, protected the records. The court said no and said that only the reports filed with the state are immune, not records supportive of the reports. The court said: “Accordingly, the Court finds that any incident reports, corrective action reports, or amendments to either, filed with the Tennessee Department of Health are protected under the HDRA, but only those specific documents.”
• The defendants lastly tried to claim the records were privileged under part of the Social Security Act (42 U.S.C. § 1395i-3(b)(1)(B) and § 1396r(b)(1)(B)) relating to the internal records of quality assurance committees. The court again ruled against the defendants by reasoning that this act protected a quality assurance committee’s own records, but not those submitted to it in its investigations. The court said: “Accordingly, the Court finds that the privilege created under the SSA applies only to the committee’s own records, including its minutes, internal working papers, and statements of conclusions, not to documents generated outside the committee and submitted to the committee for its review. •

Digitizing records? Check with your state bar first

© 2008 The Medical-Legal News

Much of the legal world is racing to rid itself of paper records, but a word of caution may be in order — tossing paper may violate ethics rules.
In a recent issue of the ABA Journal (September 2008, pg. 30), an article reported on ethics opinions by three state bar associations that all warn attorneys about the dangers of discarding paper files after digitizing them.
According to the Journal, Arizona’s Committee on the Rules of Professional Conduct recently said that an electronic version of a document is not the same as an original and advises that paper copies be maintained at least until attorneys’ clients OK the disposal of the paper.
The article said Florida’s ethics commission came to a similar conclusion and advised that documents be kept in a manner that has the clients’ best interests in mind.
A New York ethics committee instructed lawyers, when handling documents electronically, to make sure that e-documents cannot be inadvertently destroyed or altered, and that unaltered paper documents can be re-generated at any time. The ethics committees were largely concerned with fairness to clients, according to the story. •

New approach to juries

© 2008 The Medical-Legal News

The 7th Circuit Bar Association recently released the results of a three-year study of 50 civil trials that tested seven new concepts of jury strategy. The survey was reported in The National Law Journal of Sept. 29.
The new concepts tested, according to the article, were 1) allowing juries to ask questions of witnesses (in writing), 2) limiting presentations by lawyers, 3) giving jurors instructions before evidence was presented, 4) always using 12 jurors, 5) permitting lawyers to make statements to jurors between witness testimony during the evidentiary part of the trial, 6) using questionaires from jurors in the selection (voir dire) process, and 7) giving jurors guidance about how to deliberate.
According to the article, both jurors and judges were more satisfied with the trial process, and said it was fairer. Jurors said they felt better informed.
The survey can be found •

Some not-so-run-of-the-mill healthcare cases

© 2008 The Medical-Legal News

The September 2008 issue of the Legal Eagle Eye Newsletter ( reported on four medical cases with unusual twists.
• In an Ohio case, a truck driver was discharged from a hospital after an outpatient procedure. He had been given 4 mg of Dilaudin and told not to drive. The patient walked out of the hospital, climbed into a tractor-trailer truck and left. A nurse called police to warn that the patient was driving. An appeals court upheld the nurse’s actions and the resulting probable cause that police had to pull over and arrest the driver.
• While sexual exploitation in healthcare settings is usually thought of as the forceful advances of a healthcare worker onto a vulnerable dependent adult, submissive behavior is also sexual exploitation. In an Iowa case, a female CNA, presumably for her own pleasure, allowed a 90-year-old man with behavioral problems to fondle her.
• In another case, from Nevada, a nurse did not chart herself as being a witness to a substitute decision-makers consent before life support was withdrawn from a patient. Two witnesses are required in Nevada, and two were present, but the nurse did not document herself as one of them. The lack of documentation was critical, as the case went to the state supreme court and the court ruled that the consent form was invalid.
• In a Louisiana case, a nursing home, without any consultation with a decedent’s family, had the decedent buried. The home’s administrator knew who the family was and how to contact them. The court awarded about $5,000 in disinterment expenses and $5,000 in mental anguish damages. •

Peer-reviewed doc wins $360M, then $33M, then $0

• The Gist: The good-faith behavior of the peer-review personnel played well to the court. The obvious concern for patient safety was also a large factor.

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

A recent appeals case, Poliner v. Texas Health Systems, 2008 WL 2815533 (C.A.5 Texas), overturned a district court case where a doctor had won $33 million after he was given hospital restrictions (an abeyance) for 29 days while a peer-review committee did an investigation on him. The district court jury had awarded him $360 million, but the district court lowered it to $33 million.
The doctor, Lawrence Poliner, was suspended for about five months after the restriction/abeyance period and after the peer-review body concluded that he had mishandled numerous procedures. According to the court record the committee “reviewed 44 cases, and concluded that Poliner gave substandard care in more than half.”
The spark that began the internal investigation was a heart attack surgery in which Poliner made a misdiagnosis. The heart patient later had grave complications and had to be treated by one of Poliner’s colleagues in order to save his life.
Poliner’s medical judgment was questioned in four other procedures and brought to the attention of the Presbyterian Hospital of Dallas’ clinical risk review committee. An investigation then ensued.
The district court found that the peer review committee members and hospital were immune from damages for the five-month suspension under the federal Health Care Quality Improvement Act (HCQIA), but the court allowed the question of immunity for the shorter restriction/abeyance period to go to a jury.
The lower court said a question existed as to whether Poliner had agreed to the abeyance period or whether it had been forced on him — thus creating a “summary suspension.” Poliner had argued that he was not a “present danger” to patients as was required, under hospital rules, for implementation of a summary suspension. The jury was not told of the peer review body’s findings, however.
Poliner’s case rested on defamation, unfair trade practices and several torts. Poliner had lost about $10,000 in actual income during the short restriction period.
The jury found the doctor had suffered defamation and related mental anguish, and awarded $90 million in defamation damages, $110 million in punitive damages and $160 in other damages. The district court ordered a remittitur of damages, however, fixing damages at $33 million.
The appeals court, in reversing the judgment, essentially held that the HCQIA is strongly concerned with patient safety and said: “We conclude that, as to both peer review actions [the short 29-day abeyance period was implemented in two stages], the belief that temporarily restricting Poliner’s cath lab privileges during an investigation would further quality health care was objectively reasonable.”
The court also said that HCQIA does not concern itself with hospital bylaws, as argued by Poliner, but “national standards.”
The court pointed out that peer-review committees may sometimes be wrong, but so long as any investigations are done in the interest of patient safety, reviewers are immune from money damages. The reviewers need only make a “reasonable effort to obtain” the facts.
And to explain HCQIA a bit the court reiterated that peer review immunity is only for money damages. “The doors to the courts remain open to doctors who are subjected to unjustified or malicious peer review, and they may seek appropriate injunctive and declaratory relief in response to such treatment.”
Because the appeals court tossed out Poliner’s case, it did not need to address the issue of why the jury awarded such large damages. •

Lawyer survey: Civil system is “broken,” discovery pricey, costs force settlements

© 2008 The Medical-Legal News

In a survey by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System, 83% of 1,500 lawyers said that trial costs, not a case’s merits, dictate settlement.
The survey was reported in the September issue of the National Law Journal. Most respondents said civil cases are often simply not filed because of high costs, and about one-fourth said the civil system is “broken.” The attorneys cited high discovery costs (especially electronic) as an area for improvement. They said too many local discovery rules existed and that judges do not impose discovery sanctions often enough. •

Jury awards $3.5M for 45 minutes of pain and suffering, $1.5M for 6-days consortium

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

The widow of the brother of Kentucky’s former governor was awarded $5 million in August after a botched elective surgery in 2003.
Hans Poppe, a Louisville plaintiff attorney and the lead attorney for the widow, said Norman Gene Carroll, brother of former governor Julian Carroll, had undergone elective surgery to insert a deep brain stimulating device to help alleviate his Parkinson’s symptoms.
While on the operating table, and with his head ratcheted securely into a positioning frame, Carroll began having trouble breathing. He had developed a venous air embolism. He told his doctors, but his procedure was not terminated and his condition deteriorated. Carroll then, while conscious, went into cardiac arrest and suffered for 45 minutes before lapsing into a coma. Carroll lived for six days until his wife took him off life support.
Poppe said, “Treatment (for venous air embolism) is very simple — lower the head below the heart. The patient was complaining of shortness of breath, chest pain and difficulty breathing. The procedure wasn’t terminated and over the course of 45 minutes the situation went from bad to worse.”
“Complicating the issue was the fact that the patient was in a head frame that restricted access to the mouth and prevented anesthesia from quickly intubating. They couldn’t get the frame off quickly enough and there was testimony the surgeon may have been turning the screws the wrong way.”
“When they finally got the patient intubated they couldn’t confirm the tube was properly placed because there was no carbon dioxide reading on the monitor. The surgeon performed a tracheotomy and cut the anterior jugular vein. Only then did they realize no one had turned on the carbon dioxide monitor.”
The jury awarded Carroll’s widow $3.5 million for 45 minutes of Carroll’s conscious pain and suffering and $1.5 million for the six days of loss of consortium while her husband was in a coma. Kentucky does not permit awards of loss of consortium after death occurs.
According to the Louisville Courier-Journal, Shannon Ragland, publisher of the Kentucky Trial Court Review, said the pain and suffering award was very high considering the short amount of time Carroll suffered — “though it was a horrible way to go.”
Ragland also told the Courier-Journal that the $1.5 million consortium award (for six days of life) was the largest for a widow in Kentucky since the Review began tracking such data in 1997. •

$9.8M for hairdresser made paraplegic

© 2008 The Medical-Legal News

In October a woman was awarded what possibly is the largest medical malpractice verdict in Fayette Co., Ky., according to the Lexington Herald-Leader. Latricia Satterwhite underwent heart surgery to repair a mitral valve in 2006. The cannula to the blood pump was allegedly misplaced, causing brain and spinal cord damage. A $9.8 million verdict was returned. About $4.5 million was awarded for pain and suffering and about $4.4 million for future medical bills. •

Vaccines: are they helping us or harming us?

© 2008 The Medical-Legal News

Vaccines have made the news recently, with many of the reports and cases contradictory.
The latest credible study looking at the link between childhood vaccinations and autism has found no causal link, according to a study in a September issue of PLoS One, (Public Library of Science).
Yet, the Georgia Supreme Court ruled in early October that an autism-caused-by-thimerosal case could go forward. The plaintiff parents (Marcelo and Carolyn Ferrari) had claimed that a vaccine made by Wyeth caused their son’s autism. The state high court said in a unanimous decision that the federal National Childhood Vaccine Injury Compensation Act did not pre-empt state law. Seven other state courts have ruled otherwise. The Georgia court said the federal statute does not pre-empt all design defect claims, according to an Oct. 6 Associated Press story.
The Legal Intelligencer reported on Sept. 9 that a state court judge ruled in Wright v. Aventis that claims against vaccination makers are precluded under the National Childhood Vaccine Injury Compensation Act. The legal theories of defective design and failure to warn were involved. The court said plaintiffs may still prevail if they can show that a vaccine maker 1) engaged in fraud in dealing with the FDA, 2) withheld information related to a vaccine’s safety or 3) was negligent in the manufacturing of the drug.
In other vaccine news, also reported by the AP, a St. Louis man (Cortez Strong) had his legal victory against a polio vaccine maker upheld by an appeals court. The court permitted an $8.5 million judgment with $2.8 million for prejudgment interest. Strong claimed to have contracted polio in 1987 just after a second dose of the vaccine, Orimune, made by American Cyanamid (now part of Wyeth). Orimune was discontinued in 2000. •

Ask Pat Bemis

© 2008 The Medical-Legal News

Q: I am writing a booklet for legal nurse consultants on defense exams. Can you tell me what rights I have as the author?
A: As the author of an original work, you own the copyright. As owner of the copyright, you are granted certain rights by law. It is illegal for anyone to violate those rights.
The rights include the right to:
• make copies and sell the copies;
• prepare derivative works;
• display and perform the work publically.
According to U.S. law, the copyright is the immediate property of the author when the original work is recorded in a fixed form, such as put into print or recorded. The copyright then continues throughout the lifetime of the author and for 70 years past his death. You may affix the copyright symbol (©) to your work or write (for example, with the word “copyright”) that the work is copyrighted. There are no special words to use.
Be aware that if the work is ordered or commissioned for use by another or prepared by an employee within the scope of employment, the work is often considered a “work for hire.” The copyright of a work for hire is owned by the employer or the person who ordered or commissioned the work.
You don’t have to register your work to own the copyright. However, registering your work is affordable and has advantages. For example, the facts of the copyright are a public record and you receive a certificate of registration. Registered works may be eligible for damages and attorney’s fees in a successful litigation of copyright infringement.
If you wish to bring a lawsuit for infringement, you will need to register your work. You can register your work through the Electronic Copyright Office (eCO) online system. Details are available on the internet at The filing fee is $35. You can file through the mail or electronically. Electronic filing provides the fastest processing time, online tracking and payment by electronic means. You can even upload some works as electronic files.
The practice of sending yourself a copy of your work is often referred to as a “poor man’s copyright.” The idea was that the date on the postmark on the unopened envelope would prove that the author wrote the work before the postmarked date. There is no provision in the copyright laws for this practice and it is not a substitution for registering your work.
The copyright law started in the mid-15th century in England soon after the invention of the printing press. President George Washington signed the first copyright bill into law under the U.S. Constitution. The first book registered was The Philadelphia Spelling Book by John Barry. The law has been updated throughout the years to accommodate new media. If you are interested in the history and myths of the copyright laws go
As always, I am available to answer your questions. You can reach me by email or by phone at (321) 633-4610. •

Pat Bemis

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