This week ProPublica, an investigative reporting agency serving the public interest reported on doctors who receive big payments from pharmaceutical manufacturers. The article and its findings were reported nationally on National Public Radio earlier this week and reveals that many of the doctors on Big Pharma's payroll lack credentials such as board certification or have been reprimanded or sanctioned for misconduct by their states' medical boards. The story tells the shocking tale of several doctors who received payments ranging from $85,000 to a whopping $225,000 for speeches and other activities to promote drugs and other products who were sanctioned for improper conduct. The ProPublica investigation thus far has turned up hundreds of doctors who were sanctioned by state medical boards but who the industry continues to use as "experts" in their fields.

The most useful aspect of the ProPublica article is its public database of doctors who were paid by Big Pharma. The database can be searched by state. Running a search limited to Maryland physicians generated a list of 650 doctors who in total were paid more than $6 millions for consulting, speeches and other activities to promote drugs or industry interests.  The alphabetical list contains the names, amounts paid, and by what companies. Some doctors received triple digit payments.

We encourage our readers to take a look at the ProPublica story and search its database for physicians to see if yours is on there.  What this says about your physician is obviously up to you to decide.  According to the article, the data compilation is at its infancy and many more names will be compiled in the months and years to come. The article also notes the following about the data:

"ABOUT THIS DATA

The data below come directly from the disclosure web sites of 7 pharmaceutical companies. More than 70 other drug companies have yet to disclose similar payments. Receiving payments does not mean that a health professional has done anything wrong. Read more about the data and its limitations."

Mark Midei, M.D., the interventional cardiologist at the center of allegations that he performed more than 500 unnecessary stenting procedures on patients while at St. Joseph's Medical Center in Towson will hold a press conference with his attorney, Stephen Snyder, at 10:30 a.m. today. This will be the first time the public will hear any comments from him or his attorneys as to the allegations against the physician.

We will be listening closely to what is likely to be nothing more than the typical "I am certain I will be exonerated by a jury and I am looking forward to my day in court." Overcoming the deluge of charges and opinions of his own colleagues, who reviewed the records of his procedures and advised hundreds and hundreds of patients that they should not have received the stents Dr. Midei implanted, will be a feat not even Stephen Snyder can pull off.

Stay tuned for our analysis of this press conference and other events that affect our clients and others similarly situated.

Although Belsky, Weinberg & Horowitz is handling these claims, we are taking a very cautious and methodical approach to dealing with our clients' needs.  Our first concern is that our clients get the cardiac re-evaluations they need to gain piece of mind about their health.  No amount of money will return a person's good health.  Our job is to ensure that before any settlements are reached or demands are made, that our clients understand completely the nature and extent of their cardiac conditions, and that we understand the short term and long term consequences of having a stent implanted that cannot be removed and is unnecessary.  Many people are or were taking Plavix, and the stents themselves release anti-clotting medications into the bloodstream.  It is also known that people who have stents are more prone to developing additional blockages at the situs of the stent.  These are all issues that we are dealing with and have engaged cardiology experts to advise us on and consult with our clients.

Please contact us should you have further questions.

Every once in a while, we report on verdicts from other jurisdictions.  The following Chicago trial verdict was obtained by Kenneth Chessick, M.D., J.D., who described his verdict on one of the American Association for Justice listservs as follows:

"On Friday, a Cook County jury deliberated 2.5 hours after a two week trial, and they awarded $3,662,221 to the father, mother, and five brothers and sisters of an African-American two year old boy, who died during a fatal two hour fifteen minute ordeal at the ER at Advocate Trinity Hospital in Chicago. The hospital was the sole defendant, and the case was tried under the legal principle of Res Ipsa Loquitur.  The baby was brought at the ER to treat his first and only grand mal seizure by his EMT mother and Paramedic father. After control of his seizures, the baby was transported to x-ray for a CT Scan. The portable EKG, blood pressure, and pulse oximeter he was on negligently ceased to function, nobody noticed his hypoventilation.  A dead baby, which nobody noted was dead, was returned to the ER.  His cardiac arrest likely existed for greater than an estimated five minutes, and when identified, he was unable to be resuscitated.

The Maryland Court of Special appeals on Tuesday reversed a Baltimore City trial judge's entry of summary judgment against several medical malpractice plaintiffs after determining the appropriate remedy for a defective certificate of qualified expert is dismissal and not summary judgment. In Powell v. Breslin (No. 181, Sept. Term 2009), the appellate court ruled that the intent of the legislature was to require dismissal without prejudice in such circumstances, even though the specific statutory provision setting forth the criteria for a valid expert certificate did not expressly provide the remedy of dismissal for certificate deficiencies.

The case involved wrongful death and survival claims brought against a vascular surgeon, an anesthesiologist, the physicians' groups, and Good Samaritan Hospital. The lawsuit alleged the anesthesiologist was negligent in either improperly administering an epidural anesthetic or that the anesthesiologist and vascular surgeon were negligent in failing to take action to avoid the progression of a spinal hematoma which ultimately lead to the patient's death. The Statement of Claims was amended twice, the second of which added as a defendant the vascular surgeon who performed the surgery for which the epidural anesthesia was administered. At that time, plaintiffs' counsel refiled a Certificate of Qualified Expert signed by an anesthesiologist attesting that the vascular surgeon deviated from standards of care and proximately caused the decedent's injury and death.

The anesthesiology expert was deposed and testified that he wasn't familiar with the standards of care applicable to vascular surgeons, and that he was not familiar with what training or experience vascular surgeons would have to allow them to diagnose and treat epidural hematomas. The vascular surgeon and his group filed a motion for summary judgment, which the trial court granted, finding that because the motion was based on facts not contained in the record, the court believed it was required to treat it as a motion for summary judgment in accordance with Maryland Rule 2-501. The remaining defendants ultimately settled their cases with the plaintiffs before trial, but an appeal was taken on the grant of summary judgment in favor of the surgeon and his group because the entry of judgment as opposed to dismissal precluded the plaintiffs from refiling their case and correcting the certificate deficiencies.

The court considered various sections of the Maryland Malpractice Claims Act, which sets forth the statutory scheme for health claims arbitration. It concluded that when reading the various sections in harmony, dismissal was clearly the appropriate remedy. It also reviewed the most recent appellate decisions involving allegedly defective certificates and found unanimity in those opinions that dismissal was the appropriate sanction for inadequate expert certification. In the end, the appeals court ruled that despite the Maryland Rule that states that the motion must be treated as one for summary judgment, the Act superceded the rule under the circumstances.

The plaintiffs had also challenged the constitutionality of the Act, claiming it was void for vagueness. The court avoided that issue by stating that since the case resolved on nonconstitutional grounds, the constitutional issue would not be addressed.

The certification statute has proven an illusive and poorly drafted law which has resulted in the dismissal of many legitimate cases, many on Draconian and rather ridiculous grounds. For years, practitioners filed the most basic of certificates without an accompanying report, and that process was accepted by the parties' counsel and the courts as standard procedure. Then suddenly, in 2005, the Court of Special Appeals issued D'Angelo v. St. Agnes Healthcare (in which this writer was plaintiffs'/appellants' counsel), setting the stage for strict scrutiny of certificates for both form and substance by trial and appellate courts.

Suddenly, acceptable certificates became unacceptable and many cases were dismissed "without prejudice" even though, in reality, they were dismissed "with prejudice" because they could not be refiled due to expiration of the statute of limitations. The standards for expert certification were tightened even further by a series of Court of Appeals opinions that were cited in the subject Powell case (Walzer & Konits), yet the trial and appellate courts seem to almost universally ignore that plaintiffs frequently suspect malpractice but cannot prove a case until their records are obtained, questions are asked of the defendants at depositions, and the experts are provided with a complete set of medical facts to consider. Although the courts have made clear they don't condone a "shoot first and sort it out later" approach, they seem to expect some clairvoyance by plaintiffs' experts and counsel. And while the courts have emphasized that the certification is a preliminary opinion and that's all the statute requires, the scrutiny of the experts' opinions upon "out of the gate" defense motions to dismiss for certificate deficiencies have been so extensive and harsh that "preliminary opinion" really seems to mean a definitive, permanent and unchangeable opinion.

Please contact the attorneys at Belsky, Weinberg & Horowitz with any questions should you have a malpractice claim or question you wish reviewed.

An article in today's Wall Street Journal discusses the failure of physicians to consider and communicate abnormal test results and the prevalence generally of diagnostic errors, which account for approximately 40% of all malpractice claims and cost "insurers an average of $300,000 per case to settle." The article continues by citing data from a variety of studies that  primary care doctors are "overwhelmed" by test result abnormalities that are not  communicated to their patients or are otherwise discounted as within the margin of laboratory error and are not given indepedent significance.

One study conducted by the Veterans Health Administration found that when a primary care doctor and a specialist both get test results, each assumes the other will follow up with the patient and the end result is no communication with the patient at all.  A perfect example of a disaster waiting to happen is a male patient who sees a primary care doctor and a urologist for complaints associated with an enlarged prostate, a commonly experienced problem in men over 50.  Sometimes the urologist may order blood work, while at other times he may rely on a patient's representation that his primary care doctor already ran blood work months earlier and reported no abnormalities.  The urologist will sometimes rely on the patient's report of normal results and will not ask the primary care doctor for the results.

A standard test for male patients over the age of 40 is the "Prostate Specific Antigen" test or PSA. While primary care physicians may focus on results that fall outside certain numeric thresholds established by the lab as abnormal (typically +2.5-4 ng/ml), urologists are more concerned with the "velocity" of PSA increase from one test result to another even if the results are outside the abnormal parameters for the patient's age.  If the urologist doesn't have all the test results, he will never be in a position to consider the full extent of the PSA velocity which can result in a disastrous failure to diagnose prostate cancer, the 2^nd leading cause of male death in the United States.

There are many other examples that result in failure of physicians to coordinate and diagnose major medical problems due to erroneous assumptions and pure failures to coordinate and communicate with other treating physicians.

Patients who believe no news is good news and who are anxious to learn their results need to be their own best advocates and call for test results and insist on answers and information no matter what the doctor's temperament or attitude. They should get copies of all test results from all of their doctors, and ensure that their other doctors receive the same results.

From a purely practical standpoint, if a doctor is impossible to get a hold of or has a disinterested attitude, the patient should run and not walk away from that doctor and choose a provider who is compassionate, caring, and has a manageable patient load.  Sitting in the waiting room, watching the length of time it takes to see the doctor after arrival for the consultation, and the time the doctor spends with the patient during the visit are all good indicators of the doctor's patient load but are not conclusive. Some physicians are great at small talk, but when they don't know what's in the patient's chart or ask basic questions about the patient's health that they should otherwise know from reading the chart in advance of the consultation, these are ominous signs that should be heeded.

The point of all this is that malpractice claims arising from doctor oversight of diagnostic information is prevalent and can be avoided by efforts on both sides of the physician-patient relationship. Patients need to ask questions, call their physicians, seek prompt care, not wait for their symptoms to disappear, follow physician instructions to get tested, and comply with their physicians' prediagnostic instructions for test and procedure preparation. Likewise, physicians must communicate with their patients, pay attention to test results, consider the patient's clinical symptoms, not simply discount abnormalities as within "the margin of laboratory error" and coordinate patient care with other specialists who are involved.

Medical malpractice claims serve a deterrent effect against negligent medical care and also arguably result in the practice of defensive medicine where unnecessary tests and procedures are performed out of fear that something will be missed and the doctor will be sued. Although healthcare costs are at the forefront of the public debate, a recent Harvard study finds that malpractice claims and defensive medical care represent a very minimal part of the overall healthcare costs in the United States. If the choice is defensive medicine over better and more careful healthcare, the choice seems self-evident.

Belsky, Weinberg & Horowitz understands the issues patients are faced with and the results of improper medical care. We have a team of highly trained and credentialed lawyers and a support staff whose track record for excellent results and client compassion make the difference in claim outcomes. Please contact us if you are considering a claim, or simply if you are confused over the course of your healthcare. Although we are not physicians, we can guide you in the right direction to get the answers you need and deserve. We will offer our advice in the hope we can help just one person avoid a malpractice claim.