Accident & Injury Law in Texas

Archive for the ‘Medical Malpractice’ Category

Here’s another great article about tort reform myths which was written just after the 2003 tort reform legislation was passed.

Here’s an excerpt:

The purpose of Proposition 12′s severe restrictions on victims’ rights was to lower malpractice insurance premiums, which had seen double-digit increases. In Texas, as elsewhere, the tort reformers exploited the rate hikes as part of a scare campaign to sell reform. However, the facts show that the legal system is not driving insurance rates. Tort actions at the state level – meaning personal-injury lawsuits, everything from product liability to traffic accidents to libel have fallen 5 percent in nine years, according to the National Center for State Courts.

More specifically, malpractice filings declined nationally by about 4 percent between 1995 and 2000. And while a recent analysis of the Medicare population estimated that medical errors kill 131,000 people annually, making it the fourth leading cause of death, medical suits are only 5 percent of personal-injury filings, with product liability cases another 5 percent. Plaintiffs lose 60 percent of product cases and 70 percent of malpractice suits.

Not only are socially significant lawsuits like malpractice and product liability a small fraction of the legal picture but numerous studies show that capping damages doesn’t affect insuance premiums. One survey examined insurance rates between 1985 and 1998, then ranked the states according to the severity of their restrictions on lawsuits. Increased severity did not produce lower rates. In Texas, where malpractice filings dropped 20 percent in the nine years before Proposition 12, the liability picture has been little improved by its passage. About a third of doctors will see a decrease of 12 percent after cumulative increases of 147 percent. The rest will either get no relief or double-digit increases.

According to J. Robert Hunter, Federal Insurance Administrator under Presidents Ford and Carter, caps don’t work because liability rates reflect not litigation costs but the insurance industry’s own practices. During good times, insurers write policies even for the worst risks to generate cash for investment. When the stock market tanks, rates climb steeply to cover losses. The current liability crisis, Hunter notes, coincided with the market downturn that began in the summer of 2001. And since the insurance cycle is international, the “hard market” also drove up premiums in Canada, Australia and France. And those countries have totally different legal systems, Hunter says.

…

The numbers show that lawsuits are an insignificant cost both to businesses and to health providers, for whom they represent less than 2 percent of spending. In short, the lawsuit-abuse crisis is a hoax.

Here’s a great article about how tort reform is unlikely to cut health care costs.

Here’s some of the article:

The health economists and independent legal experts who study the issue, however, don’t believe that’s true. They say that malpractice liability costs are a small fraction of the spiraling costs of the U.S. health care system, and that the medical errors that malpractice liability tries to prevent are themselves a huge cost– both to the injured patients and to the health care system as a whole.

“It’s really just a distraction,” said Tom Baker, a professor at the University of Pennsylvania Law School and author of “The Medical Malpractice Myth.” “If you were to eliminate medical malpractice liability, even forgetting the negative consequences that would have for safety, accountability, and responsiveness, maybe we’d be talking about 1.5 percent of health care costs. So we’re not talking about real money. It’s small relative to the out-of-control cost of health care.”

Insurance costs about $50-$60 billion a year, Baker estimates. As for what’s often called “defensive medicine,” “there’s really no good study that’s been able to put a number on that,” said Baker.

Contrary to Rick Perry’s claims, a recent analysis by Atul Gawande in the New Yorker found that while Texas tort reforms led to a cap on pain-and-suffering awards at two hundred and fifty thousand dollars, which led to a dramatic decline in lawsuits, McAllen, Texas is one of the most expensive health care markets in the country. In 2006, “Medicare spent fifteen thousand dollars per person enrolled in McAllen, he finds, which is almost twice the national average — although the average town resident earns only $12,000 a year. “Medicare spends three thousand dollars more per person here than the average person earns.”

The Texas Medical Board is pursuing legal action against a doctor who treated patients at a now-closed Austin clinic for autism and other disorders, citing patient care violations, negligence and failure to safeguard patients against potential complications.

The board is asking a state administrative judge to recommend a penalty against Dr. Jesus Caquias, who also has a private family medicine practice in Brownsville, after it could not agree with Caquias on a disciplinary action. An administrative law judge recommends penalties to the board, which has the final say.

Caquias was a doctor at CARE Clinics at 4201 Bee Cave Road, which was raided last year by IRS and FBI agents. Court documents say agents had probable cause to believe the clinic, owned by Kazuko Grace Curtin, could have been the site of fraud and other federal violations of federal law. Computers and records were seized so agents could examine insurance billing records, among other items.

The board’s March 31 complaint against Caquias alleges that he treated three patients at the clinic with intravenous chelation therapy — a controversial treatment that uses chemicals to sweep metals from the body — without documenting symptoms, assessments and monitoring.

The board’s complaint said Caquias also worked with a CARE Clinic that Curtin opened in Tampa, Fla., where prescriptions and medical orders went out under his signature without his permission on an autistic child, demonstrating “a lack of proper diligence in his professional practice.”

Caquias said that the patients’ complaints were drummed up by an out-of-state resident who got the patients’ names from an article on the clinics. The patients were happy with their care, he said: “I think it’s the suppression of alternative medicine.”

At a meeting this month, the board disciplined two other doctors in the Austin area.

The board ordered Dr. Kenneth Lee Armstrong, a family practice doctor in Round Rock, to take courses in physician-patient boundaries and treating psychiatric disorders. Armstrong phoned a patient repeatedly to suggest and arrange meetings outside his, office, the board said.

The board also fined Dr. Louis William Apostolakis, a plastic surgeon, $1,000 for selling a prescription bleaching cream in violation of a state law. Apostolakis said Texas is one of few states with such a prohibition.

“The law that exists in Texas is an ill-advised law that protects pharmacies at the expense of consumers,” ‘ Apostolakis said. “I will abide by said law but firmly disagree with the premise.”

Three Austin doctors were among 70 physicians disciplined earlier this month by the Texas Medical Board, including two who are on board-imposed-probation and no longer practice medicine — but could again someday.

Dr. Daniel J. Di Bona was already serving a 10-year probation stemming from a substance abuse order and problems practicing because of side effects of medication and numerous medical problems, the board said. Di Bona voluntarily ended his internal medicine practice in March 2008 to safeguard the public, the order said.

The board said that Di Bona is on disability and that he requested a voluntary suspension “in lieu of further disciplinary proceedings” and to preserve other work options.

The suspension stays in force until he can demonstrate to the board that he can practice safely.

Di Bona’s current problems are medical, and “he hopes to regain his health and practice again,” said his lawyer, Michael Sharp of Austin.

The board issued a public reprimand and $1,000 fine to Dr. Emily Jane Sandbach, who practiced internal medicine but is teaching college-level biology. Sandbach was under a five-year probationary order in connection with an episode of depression in 2004, the board said. She failed to meet all of the terms of her probation, prompting the order.

Sandbach did not return a call left at her college office.

The board also ordered family practice doctor Richard John Wiseman to take’ a medical record-keeping course and pay a $1,000 fine for prescribing and dispensing a compounded thyroid hormone to a patient without proper labeling, record-keeping or a pharmacy license.

“This situation was simply an instance of providing patients easier access to specifically formulated compounded hormone medications, which are not readily available at most pharmacies,” Wiseman’s lawyer, Tony Cobos, said. “In the vast majority of states, physicians can in fact dispense medications from their office. Unfortunately, Texas is more restrictive in that regard, and Dr. Wiseman chose to resolve it (the board’s case) voluntarily rather than to expend fees and resources.”

The Texas Medical Board fined Dr. Philip W. Caterbone of Pflugerville $1,000 for a record-keeping violation. He was among 75 doctors disciplined at the board’s meeting this month.

The board’s order said that Caterbone, who is engaged in family practice, failed to document the progress notes from a patient’s visit in September 2008.

Three years ago, the maker of a surgical clip called the Hem-o-lok issued an urgent recall notice warning doctors to stop using the fasteners on living kidney donors. It said the clips could dislodge in their bodies, with “serious, even life-threatening consequences.”

Experts say deaths resulting from missed recalls are the result of a major weakness in the nation’s system for recalling thousands of medical devices routinely implanted in people’s bodies, from screws and plates to artificial knees and hips.

“There is no system for being informed of what the problems are with the products you have in your body. Even your physician may not know,” said Terry Fadem, president of the Biomedical Research and Education Foundation in Philadelphia.
Unlike the auto industry, medical equipment makers have no centralized system for tracking products throughout their life span. That means in some instances, manufacturers do not have an easy way of knowing where problematic devices are or which patients got them.

Meanwhile, the number of items implanted is soaring, as is the number of recalls. Nearly 2,500 medical devices were recalled for potential safety problems in fiscal 2008, according to the Food and Drug Administration. That was nearly double the number reported the previous year and a 164 percent increase since 2000.

In 2006, surgeons implanted a million hip and knee replacements, according to the American Academy of Orthopaedic Surgeons. That number is expected to quadruple by 2030.

Fadem’s foundation and other groups have been pushing for years for better tracking of devices, hoping to create something like the patient registries used in Sweden, England and Australia to keep tabs on artificial joints.

Health care overhaul legislation being considered in Congress includes a proposal to set up the nation’s first comprehensive medical device registry. Doctors say its primary use would be to uncover safety problems, but it could also be used to find patients quickly during a recall.

The. FDA currently requires comprehensive tracking of only 14 types of devices, including pacemakers, mechanical heart valves and breast implants. The agency says it is working toward better registration and tracking of other devices.

Manufacturers trace many other medical products only as far as the distributor. Finding them again is not always easy, particularly after they have been implanted into someone’s body. Hospitals record the model and lot numbers of implants, but that information is often buried deep in billing records or log books.

Manufacturers send out thousands of letters about recalls, and the FDA puts the information online, but the warnings can go unnoticed.

More than 1,000 such recall notices were sent out in the first seven months of 2009 involving devices such as tracheal tubes, catheters, pacemakers, prosthetic hips, screws, pain pumps and pieces of artificial spine. More than 1,00 were ranked as “Class 1″ recalls by the FDA, which involve a defect serious enough to create a “reasonable probability of adverse health consequences or death.”

Premier Inc., an alliance of 2,200 U.S. hospitals, said it examined one recent recall and found that even after a device with a potentially dangerous flaw was pulled from the market, doctors at more than 40 hospitals implanted it in at least 50 patients.

The FDA has been laying the groundwork for a registry of patients with artificial joints, which are more prone to breakage than other types of implants. The agency is also working on a system that would make tracking easier by associating each device with an ID number.

The Texas Medical Board sanctioned six Austin-area doctors, including a Marble Falls psychiatrist who the board said had a sexual relationship with a recent patient with a history of childhood sexual abuse and then violated the patient’s confidentiality by telling his fiancee. The fiancée called the patient and insulted her, according to the board’s order.

Dr. Barlow Smith, 79, of Marble Falls was among the 131 doctors the board sanctioned in August, a record number exceeding the previous high of 99 sanctions in August 2006, board spokeswoman Jill Wiggins said. She attributed the rise to an increase in complaints.

Smith’s lawyer, Nina Willis, said Smith was not disciplined for sexual misconduct but only for breaching patient confidentiality. She said he should be praised for a stellar 45-year career and not be written about because of a “minor disciplinary action.”

Wiggins said the board reprimanded Smith for two violations: the confidentiality breach and unprofessional conduct for having sex with a recent patient. Doctors have more power in sexual relationships with patients, which is a reason such involvement is forbidden, Wiggins said. Although the patient had stopped seeing Smith, she was in his care recently enough that the board found a violation of its rules and the health and safety code, Wiggins said.

In addition to the reprimand, the board fined Smith $3,000 and ordered him to take a professional boundaries course.

The board also ordered that:

• Psychiatrist Sergio H. Luna of Austin be monitored by another doctor for a year and take courses in record keeping, child psychiatry and prescribing. The order said he failed to document sufficiently the justification for medications he prescribed to a 7-year-old boy. Neither Luna nor his lawyer returned a call.
• Family practice doctor Chad F. Babcock of Austin pay a $2,000 fine and take courses in ethics and professional boundaries after determining that he treated and prescribed drugs to a friend without keeping adequate records or establishing a professional relationship. Lawyer Tony Cobos said Babcock acted out of compassion to help an uninsured friend and did no harm.
• Family practice doctor Scott Patterson Liggett of Marble Falls take courses in record keeping, diabetes treatment and communicating for not checking a diabetic patient’s blood sugar while at the office. The patient went to the emergency room the next day and was hospitalized for two days, an outcome that might have occurred anyway, the order said. Neither Liggett nor his lawyer returned calls.
• San Marcos psychiatrist Theodore Dake Jr. take a record-keeping course for failing to keep adequate records on a patient. “This was a very minor infraction, and I had to hire an attorney and an expert witness that cost me nearly $25,000,” he said.
• Internal medicine doctor David Weeks of Austin take a record-keeping course because he failed to sufficiently document justification for billing a patient for services that went beyond preventative care. Weeks, who declined to comment, refunded the charges.

The state dental board gives the public “inaccurate, incomplete, and inconsistent data,” about Texas dentists and other dental profes
sionals, a long-standing problem that a state audit released last week says weakens the Texas State Board of Dental Examiners’ ability to police dental professionals.

The report by the State Auditor’s Office notes that unreliable and inaccurate data were recurring themes in the most recent audits — in June 2002 and August 2005 — and could hamper the agency’s ability to make enforcement and licensing decisions.

For the public, inaccurate information means that some dentists the board has disciplined are shown as having clean records on the board’s Web site, the audit says. “This puts the public at risk of receiving services from licensees who have committed repeated violations.”

The board’s site shows only whether a dental professional has been disciplined; a public records request is required to find what the person did and what the penalty was.

Various data the board reports to the state about its licensing and disciplinary actions are inaccurate, the audit said.

That’s despite the, fact that the agency spent $118,000 in 2005 on an automated system, activated in 2007, which was designed to improve accuracy. It didn’t work as expected, the agency said, so now the board has obtained money from the Legislature to buy a $644,000 system to fix the problems, according to the audit.

The audit makes a series of recommendations to strengthen accuracy, including using edit checks and other data verification measures.

Auditors making spot checks of internal records identified three complaint records against dentists that the agency listed as “resolved” even before they were received and five complaints that were closed before an investigation was completed. The agency used five different database systems for licensing and enforcement that have various inherent weaknesses and inconsistencies, the audit said. All had missing, contradictory or incorrect information, the audit said, and the agency on its own stopped using one of them.

The 2005 audit said staff members lacked a system to determine whether disciplined dentists were actually doing what the board ordered, and this week’s audit indicates that the problem persists.

“The Enforcement Division assigned one employee part-time to have sole responsibility for ensuring that board-ordered sanctions are enforced,” the new audit said, saying the person relies on “a reminder note previously placed on an electronic calendar.”

“The Agency intends to manually track the compliance cases until it implements a reliable information system. This process and the use of multiple lists rather than one comprehensive list increases the possibility that cases that need Agency follow-up will not be addressed.”

The audit said the dental board reported unreliable information on eight, or 67 percent, of 12 key performance measures that auditors tested for in fiscal year 2008. State Auditor John Keel said the unreliability rate was “on the high end” of performance problems auditors see. He considered the audit “tough but fair” and said he was pleased the agency acknowledged the report’s accuracy.

During the first quarter of the current budget year, the auditors noted an improvement at the agency, saying it reported reliable results for four, or 57 percent, of seven performance measures.

Becky Murphy’s boss Dr. Russell Boone was found stealing her health insurance number to buy painkillers for a year.  She reported him and was pretty upset that he was put on a probation and continued to practice even after he plead guilty to possession of a controlled substance by fraud.  His attorney is negotiating a settlement with the Texas State Board of Dental Examiners, and Murphy is confused as to why since he committed a felony.

However, the dental board is known for being extremely lax in all their decisions.  For example, Dr. Shephen Durbin who videotaped his female employees getting undressed only received a probate suspension.  The board also gives out probate suspensions to dentists who in other states are having their licenses revoked.

In contrast the Texas Medical Board is more harsh and has suspended 56 doctors in two years.  The dental board usually just gives out fines with few follow ups, and the few follow ups that are made have been found to be flawed enforcement and weak oversight of dental professionals.

Even with the inadequacy of the dental board’s performance, this year they are receiving an extra one million dollars in funding.  Louis Leichter, Boone’s attorney and a frequent defense lawyer for other dentists, believes that Boone’s treatment and suspended probation is fair enough.  Murphy however does not because Boone could end up with a clean record  and she believes that from law enforcement of the dental board the system is skewed to shield doctors.

A Missouri doctor who relocated to Austin after a series of professional and legal tangles is seeking to practice medicine in Texas.

Dr. Alexander Kalk — whose application to practice in Texas has been pending since May 31, according to the Texas Medical Board — faces disciplinary action before the Missouri Board of Healing Arts. A hearing On the allegations against him was postponed last Wednesday so he could negotiate a possible settlement with the board over the six-count complaint, said Tina Steinman, the board’s executive director.

“We’re settling for some type of, discipline,” which could include Kalk’s surrender of his medical license in Missouri or some lesser action, Steinman said.

The Missouri board investigated Kalk, who is about 39 and reported graduating from Tufts University School of Medicine in Boston, and accused him of violating Missouri drug laws by not keeping narcotics and other dangerous drugs secure at his St. Louis-area office. The board’s allegations also include unprofessionalism, incompetence, negligence and unethical behavior.
It accuses him of sending threatening e-mails to a possible contractor; writing checks to employees that later bounced; berating employees and patients; inappropriately examining a female patient with no female nurse present and offering to help remove the patient’s underwear; making a false, police report in 2006; and, for a time, living at his medical office, failing to bathe for a week and wearing the same clothes without washing them for seven days.

Kalk, lists an address in Austin as his current residence on the Texas application.

In December 2006, an investigator with the Missouri Bureau of Narcotics and Dangerous Drugs visited Kalk’s office, then in Creve Coeur, Mo., and found that he lacked records, locks and security over narcotics and other controlled substances, said Mike Boeger, interim administrator of the narcotics board.
“He basically had no log of what he received or dispensed,” Boeger said. “It was a bad security violation.”

The narcotics board put Kalk on probation for five years in 2008 so he could no longer buy or stock controlled drugs at his practice, Boeger said. He could still prescribe drugs.

“He closed his practice and moved away,” Boeger said.

Also in 2006, Kalk was arrested on a charge of filing a false police report. He was found guilty in 2008 and fined $500 but is appealing, according to the circuit clerk’s office in St. Louis.

The false report was mentioned in the board’s complaint as “an offense which involves moral turpitude.”

The board hopes to resolve the negotiations with Kalk “in a week or two,” Steinman said. Texas Medical Board spokeswoman Jill Wiggins said she could not comment on pending applications.