Lamson, Dugan and Murray, LLP, Attorneys at Law

August Reflections on the “July Effect”

Posted in Uncategorized

thumbnailNow that we are safely in mid August, I feel comfortable addressing the so called “July effect” without causing a mass exodus of hospital patients from their hospital beds.  What is the July effect you ask?  It’s the alleged rise in medical mistakes that coincidentally (or not) coincides with the increase of new medical residents at teaching hospitals starting July 1.

While there is some research that mortality rates increase in July, opinions are mixed as to whether this rise can be attributed to the influx of first time residents.  Although a review of the research from 2011 showed the mortality rate rising in July, the research did not account for July being a more active month for patients.  In addition, the research included data from before the federal government’s limitation of resident work hours.

Even so, experts suggest close supervision and better collaboration between nurses, senior residents, fellows and attending physicians as residents transition from student to doctor.  As pointed out by Theresa Brown, an oncology nurse writing for the New York Times, nurses are a valuable resource to physicians that are often overlooked.  The value of a team approach cannot be overstated – especially in July.

Malpractice Payments Decrease

Posted in Medical Malpractice, Risk Management, Tort Reform

Lawsuit form with a stethoscopeAccording to a new study appearing in the Journal of the American Medical Association, in the past ten years, the rate of medical malpractice claims resulting in some sort of payment has seen a drastic reduction.

The study examined data from the National Practitioner Data Bank and the American Medical Association’s Physician Masterfile to identify trends in the frequency of claims against doctors over a 19 year time period ending in 2013.  The results indicated that claims resulting in payment have been decreasing since the early 2000s at the rate of approximately 6 %.

However, it was not all good news.  The median payment made increased by over 60 % until about 2007.  But even this bad news had a silver lining: the trend then reversed and began declining by about 1 % per year.

How true this holds in Nebraska and the Midwest is questionable as the study only examined certain counties in California, New York, Illinois, and the states of Tennessee and Colorado.  Colorado saw decreases for internists (20 percent), and small increases for general surgeons (13 percent) and ob-gyns (11 percent).

Why you shouldn’t view your spouse’s PHI (and share with a coworker).

Posted in Health Care Law, HIPAA, HITECH, Risk Management

iStock_000004391035SmallRecently, a federal court judge dismissed a lawsuit that an Ohio woman filed claiming that a hospital did not safeguard her EMR (electronic medical records).

In an interesting twist, the woman alleged that her husband, who worked at the hospital, was able to access her EMR and share them with a co-worker.  This was not just any co-worker.  Allegedly, it was a co-worker with whom the husband was having an affair.

In what can, at best, be classified as a moral victory, the judge held that while an invasion of privacy may have occurred, there was no evidence that the hospital violated the law.

The woman’s theory was that the hospital had falsely represented that it properly safeguarded EMR in order to obtain funding under HITECH (Health Information Technology for Economic and Clinical Health Act), which encourages hospitals to use electronic records.  She claimed that the hospital should have been more diligent in checking for security breaches.

In dismissing her claim, the court held that there was nothing in HITECH that required the hospital to check for breaches more often.

The takeaway? This underscores the importance of having safeguards in place to limit who can access a patient’s EMR.  There is a specific federal regulation which requires just such a thing.  According to 45 C.F.R. 164.312 (a)(1), a covered entity must implement technical policies and procedures for systems that maintain electronic PHI to allow access only to those persons or software programs that have been granted access rights.

It’s HIPAA time!

Posted in Disciplinary Actions, HIPAA, Risk Management

iStock_000004391035SmallI thought I’d spend the next few blogs discussing the joy that is HIPAA compliance.  Previously, I blogged about two NMC employees who had been fired after viewing the protected health information of Dr. Richard Sacra, one of the patients treated at the NMC for ebola.  The potential fines and penalties that come with a HIPAA violation likely played a large role in these firings.

But let’s start from the very beginning.  Who does HIPAA apply to?  It applies to “covered entities.”  Which naturally begs the question, what is a covered entity? A covered entity is a health care provider who transmits any health information in electronic form in connection with a “covered transaction.”

Simply stated, if a medical clinic/provider furnishes, bills or receives payment for health care in the normal course of business, and sends any covered transactions electronically, then it is a covered entity.

Thankfully, the government has created a number of websites discussing what types of providers are covered entities.  Look here.  And here.  Unfortunately, even with these websites offering assistance, HIPAA compliance can be a difficult regulatory maze.  Questions regarding HIPAA are best left to a qualified professional.  Stay tuned as we break HIPAA down in the weeks to come.

Selfies are fun (unless you are performing surgery)!

Posted in Disciplinary Actions, Health Care Law, HIPAA, Medical Malpractice

Let’s be honest.  Selfies are fun.  They are great ways of capturing the moment.  Like my daughter and I on the merry-go-round at FunPlex this summer.  Selfies can also get you in lots of trouble. I can honestly say I have  never had a doctor or other health care provider ask whether taking a selfie during surgery is a good idea.  It’s not.  As some doctors in China recently discovered.

20140925_184437Here are a few reasons why it is a bad idea:

– HIPAA does not approve;

– Plaintiffs’ lawyers would certainly not approve;

– your hospital/clinic/employer would not approve;

– your patient probably did not approve (i.e., provide informed consent); and

– your own lawyer certainly would not approve.

The selfie-happy doctors in China were reprimanded and docked three months of pay, a slap on the wrist compared to what could have happened.  The moral of this story: save your selfies for somewhere other than the OR!


Contracts for Doctors

Posted in Health Care Law, Medical Malpractice, Risk Management

It is not unusual for a doctor to be asked to sign a contact governing his or her employment and/or ownership of a business as a doctor.  The issues to consider in reviewing these contracts are many:

–          Med mal insurancethumbnail

–          Staffing (nurses, assistants, etc)

–          Provision of medical equipment

–          Billing

–          Compensation structure

–          Employee versus owner

–          Non complete clauses

–          Non solicitation clauses

–          Scope of practice

These issues are critical not just to peace of mind, compensation, and productivity, but for your own protection as well.  For example, if a doctor switches from one practice to another, there is a very real risk that the doctor could be left uninsured for medical malpractice purposes.  There are two different types of malpractice insurance: occurrence policies and claims made policies.  If you switch from one policy type to another without obtaining a very specific “rider” you could find yourself on the uninsured end of a malpractice lawsuit.  The real point here is to consult a qualified professional before signing any contract.  Your peace of mind, and liability, could depend on it.

Black box to be used to record surgery?

Posted in Health Care Law, HIPAA, Litigation Tips, Medical Malpractice, Nebraska Hospital-Medical Liability Act, Risk Management

Bladeless scalpelsSurgeons: how would you like every move of the surgeries you perform recorded with a “black box” type device?  Such a device would make a record of every movement during a surgery, and potentially, provide real-time feedback to identify mistakes.  Not only would it record the surgery itself, it could record every word uttered by the medical team during a surgery.

The potential and hopeful benefits include improved results and reduced complications.  Surgeons could study film of their procedures with an eye towards improvement.  In other words, the “black box” would be used as an educational tool.

The obvious downside: potential malpractice claims.  Having a contemporaneous recording of every move, every cut, every action could be a surgeon’s worst nightmare in the event of a malpractice lawsuit.  This could actually increase the number of malpractice claims.

One solution: rules or regulations which strictly limit the recordings to educational/peer review use and specifically prevent them from being produced or used during litigation.  This type of protection is provided by the Health Care Quality and Improvement Act for peer review information.  Why not extend it to the use of the “black box?”

“Landmark” Informed Consent Case: Physician Not Liable

Posted in Health Care Law, Medical Malpractice

In a case decided in June of 2014 described as “landmark,” the Washington Supreme Court held in favor of a physician as to claims of lack of informed consent.

Generally, informed consent addresses the need for a physician to advise the patient of the risks, benefits and alternatives to certain treatment or procedures for a medical condition before the care is undertaken.  The usual standard is then that a reasonably prudent patient under similar circumstances would not have consented to the treatment if so informed.

The subject medical care concerned a woman who had an initial positive lab test finding for a yeast infection.  However, because the woman was feeling better, her physician believed the lab result was a false-positive.  Two days later, more precise testing resulted in confirming the reliability of the original test and noting a potentially fatal type of infection in the patient’s blood.  The patient became worse, was hospitalized and died of kidney failure.  The physician was sued for failing to obtain informed consent due to not providing the potential for the more fatal lab result and associated treatment options.

After the jury ruled in favor of the physician, on appeal the Washington Supreme Court held that “a health care provider who believes the patient does not have a particular disease cannot be expected to inform the patient about the disease or possible treatments for it.”  Or, you don’t have to advise about things you don’t think are present, even though they may be.

Ebola in Texas!

Posted in Health Care Law, Medical Malpractice

HeadEarlier, I blogged about two NMC employees being fired for viewing Dr. Sacara’s medical records without authorization.  Dr. Sacara had been treated for Ebola at NMC.

Recently, a man in Texas was diagnosed with Ebola.  This is different from Dr. Sacara, who was being treated at NMC for Ebola.  In other words, NMC knew of Dr. Sacara’s condition.  The Texas patient contacted Ebola in Liberia, traveled to the United States without any symptoms, fell ill, and visited an emergency room.

The emergency room actually released him from its care.  It did this despite taking a travel history from the patient and learning he had recently been to Liberia, an Ebola hotspot.

Evidently, this travel history was not communicated to the decision-makers, as the Ebola-positive patient was released with a prescription for antibiotics.  He returned to the greater community at large.

CNN’s Chief Medical Correspondent, Dr. Sanjay Gupta described the situation as follows: the patient’s travel history “was not acted upon in an appropriate way.” A nurse did ask the question and he did respond that he was in Liberia and that wasn’t transmitted to people who were in charge of his care,” Gupta said. “There’s no excuse for this.”

This case raises a number of important questions:

Of the duty of a hospital to take an appropriate history and act on that history.

Of the liability of the hospital if, however unlikely it may be, members of the public contract Ebola after the patient was released.

Of the patient’s potential claim against the hospital if his chances of survival were decreased due to the hospital releasing him while he was Ebola positive.

Ebola in Omaha leads to firing of two NMC employees

Posted in Uncategorized

iStock_000004391035SmallThe Omaha World Herald has recently reported that two employees from the Nebraska Medical Center were fired for viewing Dr. Rick Sacra’s medical records.  Dr. Sacra is the doctor-missionary who contracted the Ebola virus while treating others afflicted with the virus in Africa.


According to the Medical Center, “based on the results of the investigation conducted, two employees no longer work for the organization and other corrective action has been taken.”


Unauthorized viewing of another’s medical records is a violation of HIPAA, the Health Insurance Portability and Accountability and Act, which protects medical records from unauthorized disclosure.


Dr. Sacra was the third American missionary who contracted Ebola while in Africa and returned to the United States for treatment.  He landed in the Medical Center’s hi-tech bio-containment unit.


This only underscores how serious HIPAA compliance is.  Not only can employees lose their job, but fines from range from $100 – $50,000 per violation, with a cap of $1,000,000.00.