A 'Week of Hell' for a Patient and His Family A Missouri man whose primary care doctors mistakenly told him that he had terminal cancer is suing them for causing him and his family unnecessary pain and suffering, a story in the Kansas City Star, among other news sites, says.[1] In January 2017, Pasquale Michael Fatino was suffering from flulike muscle aches and decided to make an appointment to see his primary care physician in Leawood, Kansas. The physician was traveling that day, however, so Fatino saw the practice's founder, who ordered CT scans. Later that day, Fatima's primary care physician called him with awful news: The scans revealed that he had terminal cancer of the lungs and liver. Fatino was devastated—and so was his family. Immediately, he began putting his affairs in order and making funeral arrangements. He also returned the following day to his physician's office, where a third doctor reiterated the terminal cancer diagnosis. To further confirm his diagnosis, Fatino underwent a painful chest biopsy, which was sent to a specialist at the University of Kansas Cancer Center for review. To Fatino's utter shock, the specialist there told him that he didn't have cancer but most likely sarcoidosis, the growth of tiny collections of inflammatory cells in different parts of the body, which could be treated with a common steroid. Fatima's physician left a message on Fatino's answering machine, echoing the information in the report and apologizing for putting his patient through "at least a week of hell." Fatino was relieved but also very angry. "When they're talking, 'Hey, I'm going to deliver a cancer diagnosis,' they need to be absolutely sure," he says. Still, Fatino's claim against the doctors isn't necessarily a slam dunk. According to at least one legal specialist quoted by the Kansas City Star, "Simply because the doctor's diagnosis later turned out to be incorrect does not necessarily mean the doctor breached the professional standard of care, or behaved unreasonably under the circumstances." That's because "some cancers can be quite difficult to detect or distinguish at various stages, and some benign conditions like cysts can sometimes reasonably be mistaken for cancer." Whether the defendants prevail in Fatino's case remains to be seen. Meanwhile, there was no indication in the news report when or if his suit would move forward. Fessing Up Can Lower Malpractice Risks, Study Says Doctors willing to acknowledge and explain medical errors can significantly reduce their malpractice exposure, according to a study published in the Journal of Patient Safety and Risk Management and reported last month in several news outlets, including the Insurance Journal.[2,3] The research team—led by anesthesiologist and adjunct professor Florence R. LeCraw of Georgia State University—looked at malpractice data at Erlanger Health System, in Chattanooga, Tennessee, both before and after implementation of a program known as "collaborative communication resolution." In contrast to traditional "deny and defend" approaches, the Erlanger program, implemented in January 2009, empowers doctors, staff, and administrators "to communicate openly and transparently about what went wrong and to focus quickly on how such episodes can be prevented in the future," LeCraw explained.[3] The effects of such transparency, researchers found, were encouraging. Compared to preimplementation levels, the average number of new claims decreased by 66%; defense costs went from $41,950 to $20,623 per claim, a dip of 51%; total liability costs slid from $61,430 to $34,851, a 43% decrease; and the median time to resolve a claim shrank from 17 months to 8 months, a 53% reduction. The communication program also reduced the impulse to sue, even in circumstances in which a medical error caused the adverse event. Forty-three percent of such events, researchers found, were resolved by apology alone—this despite the fact that 60% of the patients involved had already secured legal representation. Such improved resolution and liability outcomes, LeCraw says, may prompt doctors and other healthcare providers to support programs like Erlanger's. Is This Medical Review Panel a Help or a Hindrance? Last month, both sides in a dispute over the Bluegrass State's controversial review law presented their arguments before the Kentucky Supreme Court, as a story in the Louisville Courier Journal reports.[4] The proposal was passed by state House and Senate Republicans last year—and signed into law by GOP Gov. Matt Bevin—in order to stem what they viewed as the wave of meritless claims that have served to raise malpractice liability premiums and force doctors out of Kentucky.[4] To offset the alleged trend, the law requires that, before filing a medical malpractice claim in a Kentucky court, plaintiffs first submit their proposed complaint to what's officially known as the Medical Review Panel (MRP). If all parties to the complaint agree to waive the MRP requirement, the dispute may proceed to court; however, if at least one party refuses, the MRP process moves forward.[5] In cases in which the panel decision favors the defendant, the plaintiff nevertheless retains the right to pursue his or her claim in court. At trial, either side may request that the panel's opinion be submitted as evidence, "in the same manner a party would move to admit the testimony of an expert witness."[5] Following the law's implementation on June 29, 2017, a Kentucky woman who claimed that her son was born with severe brain damage as the result of medical errors committed by a Louisville hospital refused to submit to the lengthy review process. Her challenge was upheld last October by Franklin Circuit Judge Phillip Shepherd, who said that the rationale for the law was "strong on speculation but short on rationality." The Bevin administration appealed, and the state's highest court agreed to review the lower court's decision. In its brief to the high court, the administration argued that the review process permitted both sides in a dispute the chance to get "a low-cost, unbiased evaluation of medical malpractice claims before being burdened with onerous litigation costs." This process not only makes plaintiffs with questionable claims "think twice before filing a suit," but it also preserves the right of all plaintiffs to have their day in court if a panel rules against them. But attorneys for the Kentucky woman whose child was seriously injured at birth think that that reasoning doesn't hold up. They argue that, in past rulings, the Kentucky Supreme Court has found that the constitutional right of every citizen to a jury trial can't be "annulled, obstructed, or restricted"—something that in various ways the review panel allegedly does. A ruling by the Kentucky Supreme Court is expected within the next few months. That decision, some think, may hinge on whether allegations of a malpractice crisis in Kentucky are fact-based and on target or misleadingly inflated. In Florida, Some Medical Schools' Physicians Can't Be Sued A three-judge panel in Florida has upheld the constitutionality of a 2011 state law that extended sovereign immunity—which generally shields government agencies from expensive lawsuits—to private universities under certain circumstances, reports a story by the News Service of Florida that was posted on various media outlets, including the website of CBS12.com.[6] After passage of the law, the University of Miami's Miller School of Medicine signed an agreement with the Miami-Dade County Public Health Trust, a government agency that operates Jackson Memorial Hospital. As a result of that agreement and the 2011 law, doctors from the Miller School who provided services at Jackson Memorial were deemed to be shielded from medical malpractice suits. Two lawsuits stemming from incidents at Jackson Memorial, however, tested that legal assumption. In the first incident, which occurred in 2012, a pregnant woman who entered the hospital showing signs of preeclampsia claimed that doctors delayed her C-section, which led to her baby's death. In the second incident 2 years later, a man claimed that he was blinded in one eye during a surgical procedure to remove a benign tumor on the side of his face. "After the lawsuits were filed, attorneys for the university and doctors argued that the cases should be dismissed because of the sovereign-immunity protections in the 2011 law," the news report stated. Florida circuit courts agreed with that argument, causing the plaintiffs to appeal their decisions. In their brief to the 3rd District Court of Appeal, the plaintiffs' attorneys argued, among other things, that lawmakers "cannot constitutionally expand immunity to the university and its employees and agents because they are not state actors subject to state control, they are not funded by the state, and the state is not on the hook for their liability." The appeals court was unconvinced, however, citing earlier court rulings that had permitted sovereign immunity to be extended to private companies and employees. Moreover, in examining the specific agreement between the university and the Miami-Dade County Public Health Trust, the panel of judges noted that the Health Trust's oversight of the university "created an agency relationship" between the two entities "for purposes of providing patient services at Jackson hospital." Because of this agency relationship, the panel concluded, the expansion of sovereign immunity to the university "does not violate [the Florida Constitution]." References : Marso A. Suit: Docs said he had cancer, so he started planning funeral. He didn't have cancer. Kansas City Star. August 22, 2018. Source Accessed September 1, 2018. LeCraw FR, Montanera D, Jackson JP, et al. Changes in liability claims, costs, and resolution times following the introduction of a communication-and-resolution program in Tennessee. Journal of Patient Safety and Risk Management. February 14, 2018. Source. Accessed September 1, 2018. Explaining medical errors cut liability claims 66%: Georgia State Research. Insurance Journal. August 22, 2018. Source Accessed September 1, 2018. Wolfson A. Are medical malpractice review panels just what the doctor ordered—or unconstitutional? Louisville Courier Journal. August 6, 2018. Source Accessed September 1, 2018. Commonwealth of Kentucky Medical Review Panel. About MRPs. 2017. Source Accessed September 1, 2018. Saunders J. Court upholds medical malpractice immunity law. News Service of Florida. August 1, 2018. Source Accessed September 1, 2018. Source
