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

Bradford Winters bwinters at JHMI.EDU
Wed Jul 6 20:53:31 UTC 2016


The med mal tort system is just an economy that transfers $ from one group to another and along the way $ disappears into everyone's pockets till it is gone.

Sent from my iPhone

On Jul 6, 2016, at 4:45 PM, Peter Dayton MD <pdayton at COMCAST.NET<mailto:pdayton at comcast.net>> wrote:

Winning is everything in tort law, that is how the bills get paid. I try to tell my partners this all the time  as they look to the courts for scientific vindication of their actions. You colleagues fight for that wiggle room so they can win. My partners just settled a late onset group b strep sepsis case in mediation that had absolutely nothing to do with what they did or did not do but the baby has significant impairment. $1,000,000.00 worth of redistribution …the cost of doing business. I have always been puzzled on the rules of evidence and why I can only rely on my training, experience and what I consider a “authoritative source”. I had a lawyer request a visit to my office one time to examine my library. It worked in my favor as he was taken back that Prosser’s volume on Torts, Florida rules on civil procedure and several Emanuel Outline books were sitting on my shelf.

The tort bar unfortunately is the 4th unregulated branch of government in my opinion. All one needs to do is look at asbestos litigation to see the abuse of the system. The only satisfaction is knowing Mr. Scruggs  is in jail for thinking he was above the law. Walt Olson’s book The Rule of Lawyers talks about such abuse in the tort bar. Dr. Benton you are a perfect person to act as a judge in such a system as in patent law mechanical engineer Judges try the complex technical issues. This may not the right forum for such discussions but the mechanisms of dispute resolution in this country are very costly, inefficient and often unjust. Med mal should be resolved in specialized courts with trained judges like patent law. I have many experiences trying to educate a lay jury on something as complicated as the pathophysiology of placentation in a bicounuate uterus and how that facilitates the renin cascade causing toxemia. ( actual example). You said it right “jurors decide not so much on what the expert witnesses, lawyers, judges or statutes tell them, but rely instead on what their total life experience has told them, in their gut, is the 'right' thing to do. And once their gut tells them, they will rationalize around to make the evidence presented somehow fit this decision their gut has made for them.” Defense counsel understands that facts start to become meaningless in people with terrible injuries which is why my partners settled this case despite 3 pediatric ID experts concluding this was a classic late onset group B sepsis event. The reality was the exposure to the “gut feelings of a jury” were clearly less predictable than the resolution in mediation despite the merits. This is in large part why most physicians don’t trust the courts to give them a fair shake and why there is overtreatment ,over testing and iatrogenic injuries. Negligent behavior in everyday living is one thing but adjudication of highly technical medical care is in my opinion another.
Dr. Benton I am sure you do fight with your legal faculty on this subject. What about the $500 injury or the $2000 injury. Take a case like that to a lawyer and see how the system help resolve those issues. It doesn’t because the process is far too costly. I am not advocating abandonment of the jury system or for the defense bar , I am just trying to illustrate the system is broken much like our healthcare system is broken by its bureaucracy. We talk about patient centric care so what about client centric care? Where the system works to help clients as efficiently as possible? Just a thought.

Pete


From: Phillip Benton, MD, JD [mailto:pgbentonmd at aol.com]
Sent: Tuesday, July 5, 2016 11:44 PM
To: IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG<mailto:IMPROVEDX at list.improvediagnosis.org>; pdayton at COMCAST.NET<mailto:pdayton at comcast.net>
Subject: Re: [IMPROVEDX] Whistleblower Lawsuit Claims Misdiagnosis, Cover-Up At KU Hospital | KCUR


Peter,

Your thinking is where I wish everyone's thinking could be. I have practiced medicine since 1962 – 10 years as a GP then 30+ years as an orthopedic spinal surgeon before forced to retire by a hand injury. Having to wait three years for the orthopedic residency I wanted, I went to an Emory Law School where I have taught as Adjunct Prof. for the last 25 years, teaching especially Medical Malpractice.

I fight all the time with the other adjuncts (full-time defense and full-time plaintiffs lawyers) that the standard of care should be evidence-based Clinical Practice Guidelines as published by specialty societies. But lawyers practicing full-time prefer it the way it is, because outcome (winning) depends more on advocacy skills than on scientific truth. "Winning on the merits is a little bit better than losing" and "The standard of care is how medicine is practiced, not how it should be practiced" is commonly heard from lawyers on both sides. While the statutes of most states do state that acceptable care should be that of a "reasonable prudent physician under similar conditions and like surrounding circumstaces," to establish the SOC Defense routinely has multiple local practicing physicians explain to the jury that "what was done is what many or most of ususually do in this situation" (the 'community practice standard') or, is 'what textbooks and and and published science says is one way to do it (the "respectable minority" school)". Unfortunately, existing published EBM science, from journals or textbooks, cannot be introduced into evidence in to bolster the expert witness of either side, but only to contradict or impeach the opposing party's expert on cross-examination.

It is true that the jury is to decide what is in fact the 'standard of care,' and it is the job of counsel's expert under oath to help them to understand/decide what that standard is. The other "facts" the jury (not the judge, who is the finder of law, not facts") also must determine (i.e., what really happened here?), and then in deliberation apply the law (as the judge has just explained to them in his ' jury charge') to these facts they have found, and come up with a "just" (fair) decision as to whether the plaintiff deserves compensation and how much.

This is the idyllic concept of common-law jury trials in civil court practice. But studies have shown that jurors decide not so much on what the expert witnesses, lawyers, judges or statutes tell them, but rely instead on what their total life experience has told them, in their gut, is the 'right' thing to do. And once their gut tells them, they will rationalize around to make the evidence presented somehow fit this decision their gut has made for them. Other factors may include the likability of the parties or the witnesses, but they may allow bias in these evaluations too if they can better justify their gut's decision. Using all of this to your clients benefit is called 'good advocacy.'

But if we all keep trying to make EBM the SOC - someday we'll get there.
PGB, MD, JD



-----Original Message-----
From: Peter Dayton MD <pdayton at COMCAST.NET<mailto:pdayton at COMCAST.NET>>
To: IMPROVEDX <IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG<mailto:IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG>>
Sent: Tue, Jul 5, 2016 10:54 am
Subject: Re: [IMPROVEDX] Whistleblower Lawsuit Claims Misdiagnosis, Cover-Up At KU Hospital | KCUR

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<mailto:pgbentonmd at aol.com?>]
Sent: Monday, July 4, 2016 5:47 PM
To: IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG<mailto:IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG>; pdayton at COMCAST.NET<mailto:pdayton at COMCAST.NET>
Cc: guyw at uic.edu<mailto:guyw at uic.edu>
Subject: Re: [IMPROVEDX] Whistleblower Lawsuit Claims Misdiagnosis, Cover-Up At KU Hospital | KCUR





Please correct ACOC to ACOG.

PGB


-----Original Message-----
From: Phillip Benton, MD, JD <pgbentonmd at aol.com<mailto:pgbentonmd at aol.com>>
To:
Cc: guyw <guyw at uic.edu<mailto: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<mailto:pdayton at COMCAST.NET>>
To: IMPROVEDX <IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG<mailto: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<mailto:lee.tilson at GMAIL.COM?>]
Sent: Sunday, July 3, 2016 6:37 PM
To: IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG<mailto: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<mailto: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<http://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<mailto: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<mailto: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<tel:914-522-2116>



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