Whistleblower Lawsuit Claims Misdiagnosis, Cover-Up At KU Hospital | KCUR

Edward Winslow edbjwinslow at GMAIL.COM
Tue Jul 5 15:54:49 UTC 2016


Might I suggest that we are getting a little off topic here?

I'm surprised that no one referenced the CTE controversy, when Dr. Omalu
evidently discovered a new diagnosis and was then "mistreated" by his peers
and other entities, trying to discredit him.
I thought Helene's question initially asked about retaliation against Dr.
Tilzer and whether a missed diagnosis could be "covered up" in a modern EMR.

I would suggest that the tangent on "expert witness:" and legal issues is
interesting, but not necessarily  really related to the question.

Best
Ted

On Tue, Jul 5, 2016 at 10:24 AM, Leonard Berlin <lberlin at live.com> wrote:

> Gentlemen:
>
> The standard of care (SOC)* is NOT what MOST* physicians would do or not
> do under the same or similar circumstances!
>
> In all 50 of the United States,  the SOC is *conduct that a reasonable,
> or prudent*, physician would do, under the same or similar circumstances.
>
>
> Practice bulletins, parameters, etc. issued by the specialty societies, do
> indeed *influence* the SOC.  Likewise, although there is *no document,
> journal article, or textbook that establishes the SOC,* but they, too,  *may
> influence* the SOC.  Of course, in a medical  malpractice lawsuit, it is *the
> jury *(with the "assistance" of the opposing expert witnesses' testimony)
> that decides what the SOC should have been, and whether the
> defendant-physician adhered to or breached the SOC,  in a given case.
>
> Lenny Berlin, MD, FACR
> Skokie, IL
>
>
>
> ------------------------------
> Date: Tue, 5 Jul 2016 10:15:46 -0400
> From: pdayton at COMCAST.NET
> Subject: Re: [IMPROVEDX] Whistleblower Lawsuit Claims Misdiagnosis,
> Cover-Up At KU Hospital | KCUR
> To: IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG
>
> Dr.  Benton I would not agree respectfully, that *"standard of care" does
> not have to best-practice evidence-based medicine, but only has to be at
> least what most other physicians do* in the same or similar situation or
> that the  logical extension of this: *medical errors, even those that can
> cause death, are acceptable practice so long as all doctors make the same
> errors.*
>
>
>
> I think the standard of care does have to be evidence based.  Most , not
> all, physicians have a professional responsibility to continuing education
> to learn and apply new evidence based “standards” in their everyday
> practice. *what most other physicians do* in the same or similar situation
>  is practice evidence based medicine. The whole push by specialty societies
> developing evidence based practice guidelines like with ACOG Practice
> Bulletins. The recent one #163 Screening for Fetal Aneuploidy ( May 2016)
>  ( Replacing Practice Bulletin Number 77, January 2007) is a great example.
> These bulletins come with a disclaimer “The information is designed to
> aid practitioners in making decisions about appropriate obstetric and
> gynecologic care. These guidelines should not be construed as dictating an
> exclusive course of treatment or procedure. Variations in practice may be
> warranted based on the needs of the individual patient, resources, and
> limitations unique to the institution or type of practice.“ They do have a
> powerful influence in what the standard of care is. If physicians are not
> up to date that is their responsibility and I think what are all trying to
> prevent in patient safety and quality.
>
>
>
> Here is the example:
>
> *“Summary of Recommendations and Conclusions*
>
> *The following recommendations and conclusions are based on good and
> consistent scientific evidence (Level A):*
>
> ·        *Women who have a negative screening test result should not be
> offered additional screening tests for aneuploidy because this will
> increase their potential for a false-positive test result.” *
>
> ·
>
> ·        Most physicians are not lawyers so their defensive medicine
> posture is to over test and over treat. This evidence based guideline
> establishes what “*most other physicians do* in the same or similar
> situation” and strongly influences what “*most other physicians do* in
> the same or similar situation”.
>
> So the  standard of care would not be breached if one missed the diagnosis
> of fetal aneuploidy in a patient with a negative screening test, normal
> course of prenatal care and normal ultrasound. It might be breached if one
> offered a more invasive test , amniocentesis, in the face of a normal
> screening test and caused an iatrogenic infection with loss of the child. I
> would agree there is wiggle room but gross deviation from these guidelines
> really does constitute breach and “ most other physicians “ will adhere to
> these guidelines.
>
> *I would respectfully disagree with the  inference that “**medical
> errors, even those that can cause death, are acceptable practice so long as
> all doctors make the same errors.” **is somehow wrong. We are doing that
> now but not intentionally. Anyone who has been in practice for a reasonable
> amount of time knows what we did 25 years ago is not what we do now. All of
> us have committed medical error causing death while practicing  acceptable
> evidenced based medicine current at the time we were delivering care that
> is in  retrospect not the best care we could have provided. Hindsight is
> always going to be 20:20.  As an expert in many cases I give my opinion as
> to what the standard of care is based on my training, experience and my
> relentless study of my specialty literature however I can never apply a
> current standard to an event that happened 6 or 8 years ago. All of us were
> offering a dangerous test amniocentesis with a 1:200 fetal loss rate to
> anxious patients even with isolated alpha-fetoprotein screening was normal.
> Everyone was offering it as the “gold standard”  back in a day and that was
> a gross error and disservice to patients and killed a lot of kids. Thank
> God those days are gone but the point is we all make errors that are
> acceptable unless someone other than God has all the answers.  *
>
> *I enjoy the dialog!*
>
>
>
>
>
> Peter M Dayton MD
>
> 14 Palm Ct.
>
> Stuart , FL 34996
>
> 772-288-0361 Home
>
> 772-285-4020 Cell
>
> I Peter 3:15
>
>
>
> *From:* Phillip Benton, MD, JD [mailto:pgbentonmd at aol.com]
> *Sent:* Monday, July 4, 2016 5:47 PM
> *To:* IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG; pdayton at COMCAST.NET
> *Cc:* guyw at uic.edu
> *Subject:* Re: [IMPROVEDX] Whistleblower Lawsuit Claims Misdiagnosis,
> Cover-Up At KU Hospital | KCUR
>
>
>
>
>
> Please correct ACO*C* to ACO*G*.
>
> PGB
>
>
> -----Original Message-----
> From: Phillip Benton, MD, JD <pgbentonmd at aol.com>
> To:
> Cc: guyw <guyw at uic.edu>
> Sent: Mon, Jul 4, 2016 5:38 pm
> Subject: Re: [IMPROVEDX] Whistleblower Lawsuit Claims Misdiagnosis,
> Cover-Up At KU Hospital | KCUR
>
>
>
> Peter,
>
> The ACOG specialty society Expert Witness Affirmation is a step in the
> right direction to assure Truth, but it has its own built-in contradictions
> that can prevent this. Specifically, bullet # 6 mentions "generally
> accepted standards in use at the time" and bullet # 7 requires that
> testimony be "complete, objective and scientifically based."
>
>
>
> These are in conflict when physicians in practice are not up to date on in
> the evidence-based scientific literature,viz, it has been known for years
> that inadvertent intravascular injection of Marcaine (as used in regional
> anesthetic blocks or epidural anesthetic/steroid injections) can cause
> fatal arrhythmias including cardiac arrest, especially in patients with
> pre-existing cardiac disease. Yet, there is no Joint Commission or state
> law requirement that Pain Clinics where these injections are done be
> prepared to diagnose and treat such complications. It is *not the
> "standard of care"* to know about and be prepared to diagnose and treat
> this complication, *because most pain clinics don't* have cardiac
> monitors or defibrillators, and do not have on hand the effective antidote
> of the 20% lipid infusion solution routinely used in hospital
> hyper-alimentation. This knowledge, and the necessary equipment and
> supplies for diagnosis and treatment*, are standard in hospital
> anesthesia departments* ("lipid rescue crash cart") but not in
> free-standing pain clinics (presumably because it's an optional extra
> expense). Put another way, the *"standard of care" does not have to
> best-practice evidence-based medicine, but only has to be at least what
> most other physicians do* in the same or similar situation. The logical
> extension of this: *medical errors, even those that can cause death, are
> acceptable practice so long as all doctors make the same errors.*
>
>
>
> Sadly, all *taxpayers/patients* fund half the medical research today and
> all of the NIH/NLM archival-retrieval system (Entrez-PubMed) making *EBM
> instantly available, for free*, even  on our smart phones -  but there is *no
> rule that physicians must make use* of this life-saving best-practice
> information source. Why do patients not deserve the benefit of the free
> physician CME that patients/taxpayers are required by law to pay for?
> PGB, MD-JD
>
>
>
> -----Original Message-----
> From: Peter Dayton MD <pdayton at COMCAST.NET>
> To: IMPROVEDX <IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG>
> Sent: Mon, Jul 4, 2016 2:14 pm
> Subject: Re: [IMPROVEDX] Whistleblower Lawsuit Claims Misdiagnosis,
> Cover-Up At KU Hospital | KCUR
>
> This whole line of discussion seems to be at odds with a Just Culture. Sad
> to see administrators and colleagues behaving in such a way.  The EMR
> secures physicians signatures and if there are appropriate security measure
> where passwords are not know by anyone but the licensee it should not be
> possible to sign someone else’s signature on a report. Again that is more a
> function of password security and security policy than the EMR. Our IT
> people force a reset every 90 days for access to our EMR which drives me
> nuts but it is a necessary evil.
>
>
>
> I am very aware of Dr. Rand’s case and the issues of expert testimony in
> med mal cases. I have been doing expert work for many years and the
> disciplinary process the respective professional societies are imposing is
> designed to stop egregious statements made in front of lay juries by expert
> witnesses.  The position of the societies is that their reputation is on
> trial as well as the experts always are certified by their respective
> boards and present their opinions to lay juries as a member of the
> respective societies. After practicing OB for 27 years and looking at
> dozens of cases some experts give a fair and honest opinion and some say
> outrageous statements inconsistent with medical evidence. I was once
> accused of missing the diagnosis of IUGR on a 16 week ultrasound,
> understanding that fetal growth is very uniform in the first half of
> pregnancy so a supposed missed diagnosis is in fact an appropriate
> assignment of gestational age in a patient with irregular menses. There are
> several notorious “experts” well known to both the plaintiff and defense
> bar. Tort lawyers have a short list of go to experts on various cases. That
> is why my work has evolved into 10% plaintiff and 90% defense work. I call
> it as I see it. Defense counsel like me to look at cases so they know it
> their client has exposure and should settle because in my experience a lot
> of cases have real standing unfortunately. The American Congress of OB/GYN
> has a “Witness Affirmation Statement “ and has a code of ethics :
>
>
>
> *Expert Witness Conduct and Responsibilities*
>
> Fellows who serve as expert witnesses for either the plaintiff or
> defendant are expected to adhere to the professional principles outlines in
> ACOG's *Expert Witness Affirmation*, available on the ACOG website.  In
> brief, ACOG expects Fellows testifying as expert witnesses to:
>
> ·        Tell the truth.
>
> ·        Evaluate all facts and medical care thoroughly, fairly, and
> impartially.
>
> ·        Include all relevant information.
>
> ·        Limit evidence and testimony to subjects about which they have
> knowledge and relevant experience.
>
> ·        Refrain from criticizing or condemning care that meets generally
> accepted standards in use at the time of the incident.
>
> ·        Refuse to endorse practice that does not meet generally accepted
> standards.
>
> ·        Ensure that testimony is complete, objective, and scientifically
> based.
>
> ·        Strive to provide evidence that will help the court achieve a
> fair outcome.
>
> ·        Distinguish between an adverse outcome and substandard care.
>
> ·        Make an effort to determine whether alleged substandard care
> caused the adverse outcome.
>
> ·        Submit testimony for peer review if asked.
>
> ·        Refuse to accept compensation that depends on the outcome of the
> case.
>
> If you are currently involved in litigation or if you are sued in the
> future, be sure your attorney knows about ACOG's *Expert Witness
> Affirmation*.  If an expert witness testifies on your behalf, he or she
> should sign the affirmation.  Your attorney can use the affirmation to
> bolster the expert's qualifications and credibility.  If the plaintiff's
> expert witness has not signed the *Expert Witness Affirmation*, your
> attorney can raise this in cross-examination.  If the plaintiff's expert
> witness has signed the affirmation, your attorney can, nevertheless,
> cross-examine on the expert's failure to adhere to the affirmation's
> requirements.
>
> Other societies have similar processes. This does break down when a formal
> complaint is made by members to the college about an expert’s testimony. A
> formal sanction or reprimand for egregious statements will hold physicians
> accountable and in effect take them out of the “hired gun loop” . I files
> such a claim many years ago and it went nowhere.
>
>
>
>
>
> Peter M. Dayton MD
>
> Medical Director of Patient Safety and Quality
>
> Martin Health Systems
>
> 1815 Kanner Highway
>
> Stuart FL 34994
>
> 772-285-4020 cell
>
> 772-288-2999 fax
>
> 1 Peter 3:15
>
>
>
> *From:* Lee Tilson [mailto:lee.tilson at GMAIL.COM <lee.tilson at GMAIL.COM?>]
> *Sent:* Sunday, July 3, 2016 6:37 PM
> *To:* IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG
> *Subject:* Re: [IMPROVEDX] Whistleblower Lawsuit Claims Misdiagnosis,
> Cover-Up At KU Hospital | KCUR
>
>
> No, not that I know of.
> Have you heard of how the American Assoc of Neurosurgeons retaliated
> against Dr. Robert Rand? Or other neurosurgeons? Or how a chair that tried
> to get rid of a fraudulent doctor was punished? Retaliation occurs all the
> time. Details and circumstances are different. The goal and effect is the
> same: silencing whistleblowers.
> Feel free to call.
> Lee Tilson.
> 313 550 7500
>
>
>
> On Sun, Jul 3, 2016, 6:24 PM HM Epstein <hmepstein at gmail.com> wrote:
>
> Thanks, Lee. Beyond the retaliation angle, how easy is it for one doctor
> to insert the names of other doctors into an EHR indicating they "concur"
> with a Dx without the other doctors knowing or agreeing? Has anyone heard
> of this happening before?
>
>
> hmepstein.com
>
> @hmepstein <https://twitter.com/hmepstein>
>
> Mobile: 914-522-2116
>
>
>
> On Sun, Jul 3, 2016 at 5:25 PM, Lee Tilson <lee.tilson at gmail.com> wrote:
>
> I am familiar with a few instances of retaliation against people  who
> attempted to expose misdiagnosis or mistreatment.
>
>
>
> The circumstances were somewhat different. The underlying story is the
> same.
>
>
>
> Feel free to contact me if you think this would be helpful.
>
>
>
> Lee Tilson
>
>
>
> On Sat, Jul 2, 2016 at 2:34 AM, HM Epstein <hmepstein at gmail.com> wrote:
>
> Please read the following summary and I'd appreciate the group's feedback.
>
>
>
> The former chair of pathology at KU Hospital filed a whistleblower lawsuit
> against his current hospital claiming the current head of pathology
> misdiagnosed a patient with a lethal form of cancer, surgeons removed an
> unidentified organ, the lab discovered that the removed organ was
> essentially cancer-free, and then that the pre-surgery sample was also free
> of cancer, covered it up and never told the patient who still thinks they
> have to be on guard against a lethal form of cancer.
>
>
>
> The paragraph I would like your opinion on is deep in the article:
>
>
>
> "In September, Tilzer informed KU Hospital’s chief medical officer and
> risk management officer that the hospital needed to conduct a “root cause
> analysis” of the mistake to make sure it wouldn’t happen again. The chief
> medical officer responded that the original diagnosis was correct because
> two other pathologists signed the report. But Tilzer says the two other
> pathologists did not agree with the original diagnosis, “and the chair
> simply wrote their names in the electronic medical record.”"
>
>
>
> First, is it easy for one doctor to fake the signatures of other doctors
> in the EMR without being discovered? And while the accused pathologist
> finally admitted her error, it appears the hospital hasn't done so nor had
> the patient been notified. Therefore no root cause analysis has been done.
>
>
>
> So, is this a crazy outlier situation or is it a common occurrence?
>
>
>
> Thank you.
>
>
>
> Best,
>
> Helene
>
>
>
>
> http://kcur.org/post/whistleblower-lawsuit-claims-misdiagnosis-cover-ku-hospital#stream/0
>
>
>
> *-- *
>
> *hmepstein.com <http://hmepstein.com> *
>
> *@hmepstein*
>
> *Mobile: 914-522-2116*
>
>
>
> *Sent from my iPhone*
>
>
>
>
>
>
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>
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-- 
*Edward B, J. Winslow, MD, MBA*
Home 847 256-2475; Mobile 847 508-1442
edbjwinslow at gmail.com
winslowmedical.com

"The only thing new in the world is the history that you don't know"
       Harry S. Truman, 33rd President of US (1945-1953)


"... it can be argued that underinvestment in assessing the past is likely
to
lead to faulty estimates and erroneous prescriptions for future action."
        Eli Ginzberg, 1997






Moderator: David Meyers, Board Member, Society to Improve Diagnosis in Medicine


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