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Summary: Just because a doctor’s action or inaction fell below the standard of care does not mean that he or she was negligent.

I watched the first episode of “Monday Mornings,” a television series that was on TNT created by David E. Kelley.  Mr. Kelley has created or been involved in various series including: (1) Ally McBeal; (2) Boston Legal; (3) Boston Public; (4) Chicago Hope; (5) Doogie Howser, M.D.; (6) LA Law; and (7) Picket Fences. This show involved five surgeons in a hospital and explored their professional and personal lives.

The reason I am writing a post on this episode is based on a scene involving peer review of one doctor’s case.  The most common educational setting for this review and discussion is known as Morbidity and Mortality (“M&M”).  This is where physicians discuss other doctors’ behavior or analyze an adverse event.  The information gleaned during M&M is not discoverable in most states.  The reason is to have open communication and enable doctors to learn from their mistakes and try to prevent future ones.  Doctors are going to be less forthcoming with regard to errors they have made if what they say can be used in a medical malpractice case.

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Summary: It is not “do unto others before they do it to you” but rather “do unto others as you would have them do unto you.”  In other words, treat people as you would like to be treated.

I attended an ex parte hearing last Thursday at which time I was given the San Diego County Bar Association’s (SDCBA) Attorney Code of Conduct and the United States Constitution.  Now, I do not believe I was singled out since: (1) I do not think that I have a reputation as a reprobate; and (2) opposing counsel was also given one [I don’t think she falls into the reprobate category either].

I called the SDBCA to inquire whether all of the judges were handing out these booklets.  I was informed that the SDCBA handed these out to their members (I’ve never received one until now).  Somehow, some of the booklets got into the hands of a judge and she was sharing the information (I’m thinking, with good reason).

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Summary: Expert Witnesses – The Expensive Necessity in Medical Malpractice Lawsuits

Remember the song “Mammas Don’t Let Your Babies Grow Up To Be Cowboys” by Ed Bruce?  One part of the song’s lyrics is as follows, “Mamas’ don’t let your babies grow up to be cowboys.  Don’t let ’em pick guitars or drive them old trucks.  Let ’em be doctors and lawyers and such.”  I agree, but I would take it one step further.  I say, let them be expert witnesses.  They will be set for life.

As a practicing medical malpractice attorney, I only work with the most highly qualified and competent doctors to obtain opinions regarding the necessary elements of medical malpractice: (1) standard of care; (2) causation; and (3) damages.  These doctors have all graduated from some of the most reputable institutions and are board certified in their specialty.  I have the upmost respect for (most) all of them.  However, wow, are they expensive!

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Summary: A law was passed in California in 1975 (Medical Injury Compensation Reform Act, also known as “MICRA”) which, among other things, limited the amount of money awarded for non-economic damages (pain, suffering, emotional distress, etc.) to $250,000 in medical malpractice cases. There was no clause included which adjusted the amount for inflation which means, at this point, that $250,000 is worth about $60,000 now.

I initially addressed this issue in Post #7 published in July of 2012 entitled “Here’s Why the California Cap on Non-economic Damages Is Archaic.” I discussed it again in October of 2012 in Post #14 entitled “Until the California Supreme Court Takes a Gander, the California Cap on Non-economic Damages Will Stay Firmly in Place.” Finally, I dealt with it in July of 2013 in Post #28 which was an addendum to Posts 7 and 14.  I would ask that you read those for background on the reasoning behind this cap and why the law is so wrong.

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Summary: I had a Colonoscopy back in 2012, and I thought that I would tell you about my experience.

I started going to my Primary Care Physician a short time after I returned from Colorado in 2004.  Among other things, she advised that I should get a colonoscopy by the time I turned 60.  About once a year, she would bring it up and I would dutifully nod.  Finally, last July, she asked about it again and I said, “You told me I just needed to do it by the time I turned 60.”  She then replied something like, “YOU’RE GOING TO WAIT UNTIL YOU’RE 60?”  Lovely woman but a bit of a temper.  Anyway, I assured her that I would get it done.  However, I kept putting it off, dragging my feet, taking my time, until I realized that the big SIX ZERO was looming.  By the time I called to make an appointment, I could not get one until eleven days past my birthday.  Close enough.

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Summary: A law was passed in California in 1975 (Medical Injury Compensation Reform Act, also known as “MICRA”) which, among other things, limited the amount of money awarded for non-economic damages (pain, suffering, emotional distress, etc.) to $250,000 in medical malpractice cases. There was no clause included which adjusted the amount for inflation which means, at this point, that $250,000 is worth about $60,000 now.

I initially addressed this issue in Post #7 published in July of 2012 entitled “Here’s Why the California Cap on Non-economic Damages Is Archaic.” I addressed it again in October of 2012 in Post #14 entitled “Until the California Supreme Court Takes a Gander, the California Cap on Non-economic Damages Will Stay Firmly in Place.” I would ask that you read those for background on the reasoning behind this cap and why the law is so wrong.

I am bringing this up simply because it is now July of 2018 and you may be wondering if something has happened since. Well, nothing helpful.

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Summary: Just Don’t Do It (Phalloplasty Surgery)!

Although I have no personal knowledge of this, I have heard that, when men go to the restroom, they check out each other’s penis size.  I would be inclined to think this is true since where else would men get the idea that they are too small?

Having said that, there was a porn star in the late ‘60s to late ‘80s, one John C. Holmes, who  starred in over 2,000 porn movies.  Stories varied as to the length of his penis, anywhere from 12-5/8″ long to 13-1/2″ long.  At the height of his career, Holmes claimed to have had his penis insured by Lloyd’s of London for $14 million, claiming that he was insured “for $1 million an inch”.  Thus, maybe it is the legendary Mr. Holmes who fueled the “need” for men to make their penises larger.

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CAN WE SAY “ MEDICAL MALPRACTICE WAITING TO HAPPEN?”

By: Patricia I. James

There is a private group that oversees physician training in the United States called the Accreditation Council for Graduate Medical Education ( “ACGME”). One aspect of its duties has to do with the number of hours a physician can work in a shift.

In 2011, when mounting evidence showed exhausted residents, that is, doctors in training, were endangering patients and themselves, work restrictions of no longer than 16 hour shifts were put in place. However, earlier this year, the ACGME, in its infinite wisdom, decided that, as of July 1, 2017, these first year residents are allowed to work 24 hours without a break and, sometimes as long as 28 hours, if a particular transition between doctors demands it.

The ACGME defended its position by stating that “[t]he Task Force [review panel] has determined that the hypothesized benefits associated with the changes made to first-year resident scheduled hours in 2011 have not been realized and the disruption of team-based care and supervisory systems has had a significant impact on the professional education of the first-year resident, and effectiveness of care delivery of the team as a whole.” This conclusion was based on “over 4,200 hours formulating the new requirements, including systematically reviewing over 1,000 published articles and extensive input from all stakeholders.”

One of the task force members, Dr. Anai Kothari, said that the cap would occasionally prevent doctors from seeing a treatment or surgery through from beginning to end. Patients want to know “you are the doctor taking care of them.”

I don’t know about you, but I would rather know that my doctor was well rested before seeing my surgery through. Granted, I surmise that a first year resident is not going to be the one actually operating on me. However, why would I want someone even assisting a surgery who was on hour 27 of his or her 28 hour shift?

The ACGME further supported its position by stating, through its chief executive, Thomas Nasca, that “[t]raining to become a practicing physician can be compared to training for a marathon. With enough experience comes resilience and the ability to perform under expected, sometimes challenging conditions.”

Of note is the fact that the American Medical Student Association, the Committee of Interns and Residents and the Public Citizen’s Health Research Group all oppose the change. The director of the latter, Dr. Michael Carome, has stated that “[s]tudy after study shows that sleep-deprived resident physicians are a danger to themselves, their patients and the public. It is disheartening to see the ACGME cave to pressure from organized medicine and let their misguided wishes trump public health.

Charles Czeisler, a professor at Harvard’s Brigham & Women’s hospital, stated that “[i]t is very well established that staying awake for 24 hours severely degrades performance.” In one trial, Czeisler and his colleagues found that first year resident working in the intensive care unit for 24 hours or more made 36 percent more serious medical errors than those working shorter shifts. At times, the Harvard researchers found residents sleeping while standing up.

The ACGME added that “it is important to note that 24 hours is a ceiling, not a floor. Residents in many specialties may never experience a 24-hour clinical work period.”

First, the 24 hours is not a ceiling since they are allowing up to a 28 hour shift. Second, even though some residents may never have to work a 24 hour shift, what matters is those who do. Obviously, as set forth above, some of these resident are working in the intensive care unit. INTENSIVE CARE UNIT? ARE YOU SERIOUS?

I’m guessing here but I think if ACGME’s chief executive Thomas Nasca was in intensive care, he would opt for a fresh faced resident about one hour into their shift as opposed to a resident who was crawling into the last hours of their shift.

Now, perhaps, as Mr. Nasca said, with enough experience working 24 to 28 hour shifts, the residents will develop that resilience. However, what about the patients/guinea pigs (a subject of research, experimentation, or testing) who are treated until they attain that resilience? Personally, I would opt but how would I know? Is this something that is going to be included in a consent form, a disclosure that some of the team that is going to be treating the patient might be working over 16 hours? I wonder how small that print will be on the form, assuming it is included (which I doubt).

I don’t know what to tell you. This is scary. It really does not take a study to figure out that working more than 16 hours (or maybe even 12 hours) is going to lead to mistakes because no one is going to give their best performance when they are exhausted. However, the ACGME has spoken so we will have to live (or die) with it.

Dear Readers,

Having perused this post, what do YOU think?

PJ
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Written by: Patricia I. James**

This post starts where Post 27 left off.

Ms. Rowling did in fact file suit, not against Russell Solicitors but rather against the lawyer, Chris Gossage, and his wife’s (former?) best friend, Judith Callegari. However, it was settled out of court. Russell Solicitors “agreed to reimburse Rowling’s legal costs and to make a “substantial” donation to The Soldiers’ Charity, which helps former military personnel and their families.” (http://www.theweek.co.uk/uk-news/54397/jk-rowling-wins-big-charity-donation-after-pen-name-leak).

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Written by :  Patricia I. James**

In Post #7, I wrote about the cap of $250,000 on non-economic damages in California.  Basically, I said that it was an unfair cap that had not been revised since it was established in 1975.

In Post #14, I wrote that, if the Gavello case went to the California Supreme Court, it might find that the cap was unconstitutional.  I did not give that much hope but it was a thought.