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

Elias Peter pheski69 at GMAIL.COM
Sat Jul 9 01:37:45 UTC 2016


As a PCP, it was not rare for me to discuss an issue with more than one consultant. They did not always agree. 

I was taught to phrase it: “After discussion with Dr. X (or Drs. X and Z), my plan is…”  I can’t claim I always did this.

The times I felt it appropriate to specify the advice I received, were those occasions where the advice was what to do between the time of the discussion and the time the patient saw the consultant, in which case I was as specific as possible and made sure a copy was sent to the consultant.

It’s hard for me to imagine a rule that will apply perfectly in every circumstance.

Peter


> On 2016.07.08, at 11:19 AM, Leonard Berlin <lberlin at LIVE.COM> wrote:
> 
> David,
> 
> There may be some middle ground here.  My objection  deals not with the first half of your sentence:  "I have reviewed the case with Dr X, Y, and Z," which in itself does, as you say, documents what YOU did and with whom you consulted, in reaching your conclusions.  Up to that point, you are reporting actual facts.  I see nothing unethical or morally wrong with that.  My objection deals with your additional phrase, "they agree with my assessment.”  Here is where I believe we get into very questionable territory, as you are essentially putting words in their mouths that they may have,  or may not have,  spoken.  Two people can have a discussion, and can walk away with different opinions as to what was said, (see below) or what was meant by what was said; this happens not infrequently, and is not due to dishonesty:  it's due to human nature. We  talk to someone, and our interpretation and memory of what exactly was said simply differs from what the other party remembers and interprets what was said.  
> 
> In my opinion, there is nothing wrong in stating fact  number one  -- you spoke to Dr. X.  After speaking with X, you went ahead and did, or did not do, something medically.  That's fact number two.  Maybe Dr. X encouraged you to do what you did, maybe he agreed with you reluctantly, maybe he actually disagreed somewhat.  X's recollection of what he said or meant may well be different from you thought he said or meant.  You may be honest, but simply misinterpreted the meaning of his words.  Happens all the time!  
> 
> In short, mentioning that you spoke to Dr. X is factual and may well belong in the EHR.  But what Dr. X said, or inferred, or suggested, or meant, does not belong in the EHR, unless he himself co-signs the record.
> 
> Finally, let me add the following for your consideration:
> 
> From Golub. JAMA 1998;280:929. Curbstone Consultations: "A physician, who is in a noisy, crowded hallway enroute elsewhere, or is button-hold outside his office, i.e. "on the curb," may be distracted from offering the kind of thoughtful opinion that may come from a formal consultation or thorough discussion."
> 
> From Anonymous:  First old gentleman:  Is this Wembley?
>                                     Second old gentleman:  No. Thursday.
>                                      First old gentleman:  You are?  Let's go and have a drink.
> 
> Lenny
> 
> 
> 
> Date: Fri, 8 Jul 2016 13:07:59 +0000
> From: d.katz at MAIL.UTORONTO.CA
> Subject: Re: [IMPROVEDX] Whistleblower Lawsuit Claims Misdiagnosis, Cover-Up At KU Hospital | KCUR
> To: IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG
> 
> Helene - I am not aware of anyone who has abused this but would imagine it would be rather easy if one was dishonest. 
> Leonard - I'm not really sure how as an MRP I could possibly avoiding putting other doctors names (either directly or indirectly i.e. Discussed with cardiologist on call) in my notes and have them be complete. I practice in Canada where the fear of lawsuit is much less but regardless we use notes primarily as a communication tool amongst physicians. When I consult other services not in house in the middle of the night and have a phone conversation I know that they are not going to have a dictated note in the system by the morning and the only way that the people taking over in the morning will be aware of this conversation is by including it in my note. In my opinion I would be unnecessarily compromising patient care to never document these conversations because it identifies another physician. 
> Another example would be trainees who discuss with their staff over the phone. In my opinion it is very important to include in their notes that they have discussed a case with their attending. This information is key in both a legal sense and to relay to other services that this is more than an R1 opinion. 
> I could come up with a million more examples. I don't see how mentioning other physicians and their opinions in notes is avoidable while maintaining a complete medical record. 
> 
> On Jul 8, 2016, at 8:31 AM, Leonard Berlin <lberlin at LIVE.COM <mailto:lberlin at live.com>> wrote:
> 
> David,
> I'm sorry to say this, but in my strong opinion, your policy of writing a note that states “I have reviewed the case with Dr X, Y, and Z and they agree with my assessment,”  is unethical and morally wrong!  Your note (and it's the same thing when a radiologist renders a radiographic interpretation) should reflect YOUR opinion, and YOUR OPINION ONLY!  If Dr. X, Y, or Z want to join you in sharing a common opinion, fine, let them do so by co-signing the report or EHR entry.   Otherwise, I do not believe you have the right to use a colleague's name in YOUR note or report. Even if you ask a colleague's opinion as to whether you can include his or her name in one of your notes or reports, that colleague would be hurting him- or her self by saying "yes," because the words you use would be YOUR words, and not THEIR words, which may coincide or may not coincide (either deliberately or inadvertently) with each other's.    
> As for EHRs, I believe every medical facility should establish a policy that prohibits a physician from stating that  another physician agrees (or disagrees) with the writer's opinion.  However, of course, should the other physician wish to be included by  co-signing the entry, that would be permitted.
> 
> Lenny Berlin MD, FACR
> 
> Date: Fri, 8 Jul 2016 00:03:54 -0400
> From: hmepstein at GMAIL.COM <mailto:hmepstein at gmail.com>
> Subject: Re: [IMPROVEDX] Whistleblower Lawsuit Claims Misdiagnosis, Cover-Up At KU Hospital | KCUR
> To: IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG <mailto:IMPROVEDX at list.improvediagnosis.org>
> 
> Thank you, David. It's interesting because once something is in writing, it takes on a power that is hard to dispel. Think of all of the news articles that misstate studies, or overstate them and then the public believes them for years. A record that states that you discussed a case with Drs. X, Y & Z is admissible in court and probably more powerful than those doctors' memories that they did or didn't discuss it with you. While I'm certain you've never abused this kind of note-taking, do you think others have? Best,
> Helene
> 
> hmepstein.com <http://hmepstein.com/>
> @hmepstein <https://twitter.com/hmepstein>
> Mobile: 914-522-2116 <>
> On Wed, Jul 6, 2016 at 10:54 AM, David Katz <d.katz at mail.utoronto.ca <mailto:d.katz at mail.utoronto.ca>> wrote:
> Helene,
>  
> While there is strong security to avoid people surreptitiously logging in as someone else, in the systems that I use there is nothing stopping you from dictating a note that says “I have reviewed the case with Dr X, Y, and Z and they agree with my assessment.” In fact I do this truthfully all the time. Those doctors are not notified in any way that their name is used and only if they happen to read my note would they know that I used their names.
>  
> David
>  
> From: HM Epstein <hmepstein at GMAIL.COM <mailto:hmepstein at GMAIL.COM>>
> Reply-To: Society to Improve Diagnosis in Medicine <IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG <mailto:IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG>>, HM Epstein <hmepstein at GMAIL.COM <mailto:hmepstein at GMAIL.COM>>
> Date: Wednesday, July 6, 2016 at 10:27 AM
> To: "IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG <mailto:IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG>" <IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG <mailto:IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG>>
> 
> Subject: Re: [IMPROVEDX] Whistleblower Lawsuit Claims Misdiagnosis, Cover-Up At KU Hospital | KCUR
> 
>  
> Thank you all who addressed my questions about security in EMR's as related to the article I shared. Given the level of security and passwords that most of you have mentioned are in place at your institutions, I wonder how this pathologist at KU Hospital was able to add to the record that two doctors concurred with her diagnosis when they hadn't. And how they were cited in the record without knowing. If it's as difficult as most of you say, then I wonder whether or not the whistle blower is wrong about these two doctors and if perhaps they just changed their story when they realized the original diagnosis was incorrect.
>  
> As to the question regarding whether this case was an outlier or a more common occurrence, my question was about the hospital's active role in denying any misdiagnosis and supporting the pathologist who covered her tracks. Retaliation is a big juicy topic but is just one more example of how a hospital or medical center can cover their tracks. 
>  
> Peter Dayton's reference to the CRP and the subsequent change in captain and copilot culture brings up an excellent point. That happened because there were too many instances of danger to passengers because of pilot error or misbehavior. 
>  
> Does medicine needs a similar change in culture when it comes to openly admitting mistakes, changing the processes by which staff can report these mistakes and the administration investigate and improve procedures? Or, for the most part, is the culture already changing and KU Hospital is an outlier?
>  
> Best,
> Helene
>  
> -- 
> 
> hmepstein.com <http://hmepstein.com/> 
> @hmepstein
> Mobile: 914-522-2116 <>
>  
> Sent from my iPhone
> 
> 
> 
> 
> 
> On Jul 4, 2016, at 5:12 PM, Peter Dayton MD <pdayton at COMCAST.NET <mailto:pdayton at comcast.net>> wrote:
> Ed you are right ! Ego and the old code of silence is part of our culture. Hope we can change that like they did in the airline industry. After the disaster in Tenerife the industry got serious about cockpit resource management or CRP. That changed the Captain- Co Pilot role interaction  which helped in great part to make airlines a high reliability institution.
>  
> 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: Edward Winslow [mailto:edbjwinslow at gmail.com <mailto:edbjwinslow at gmail.com>] 
> Sent: Monday, July 4, 2016 3:04 PM
> To: Society to Improve Diagnosis in Medicine <IMPROVEDX at list.improvediagnosis.org <mailto:IMPROVEDX at list.improvediagnosis.org>>; Peter Dayton MD <pdayton at comcast.net <mailto:pdayton at comcast.net>>
> Subject: Re: [IMPROVEDX] Whistleblower Lawsuit Claims Misdiagnosis, Cover-Up At KU Hospital | KCUR
>  
> As Peter noted, if passwords are kept private (A Cultural norm?), adding a signature is impossible in most EMRs. In the "big" EMRs, I think that every time a chart is accessed the accessor and time of access are stamped.
> While I would hope that systems and physicians are above retaliation I have seen several instances where people who place an institution in an unfavorable light are retaliated against. Even in systems that are supposed to be well-intentioned and patient centric, instances come about. One physician who presented a paper on a single institution errors in echocardiographic diagnoses was let go. The institutional reps said that there were multiple reasons why she was let go, but the ball dropped very shortly after the ASE presentation. (http://www.medpagetoday.com/cardiology/atherosclerosis/24337 <http://www.medpagetoday.com/cardiology/atherosclerosis/24337>).
> I would estimate that, unfortunately, retaliation is not as uncommon as we would hope it would be. Certainly the lay public doesn't know if, or how often it occurs.
>  
> On Mon, Jul 4, 2016 at 9:08 AM, Peter Dayton MD <pdayton at comcast.net <mailto:pdayton at comcast.net>> wrote:
> 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 <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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