Saturday, January 11, 2025

Is it not Time For Implementing Health Courts?

    Is the US tort system, particularly in medical malpractice cases, driven by economic considerations or ethical principles? The system is always plagued by inconsistent verdicts, leading to questions of judicial parity and fairness. Some would argue and believe the system is "rigged," meaning the odds are stacked against certain parties, and outcomes are predetermined due to this failed morality.

    One key factor influencing these outcomes is economics. Plaintiff attorneys in medical malpractice cases often prioritize cases with the potential for large financial awards ("big-ticket items"), sometimes exceeding $60,000. This focus on profitability can lead to the neglect of valid malpractice claims with smaller potential payouts ("penny cases"), denying some patients the justice they so clearly deserve.

    This economic imbalance raises concerns about the impartiality of the system, despite assurances from organizations like the American Bar Association (ABA) and the Trial Lawyers Association (ATLA). While these organizations acknowledge imperfections, they maintain the system's fundamental soundness is just...or so they tell us

    In response to these concerns, various tort reforms have been proposed, including malpractice award caps, etc. However, these measures have not proven to be a long-term solution. Another less favored proposed solution is the implementation of health courts and specialized tribunals for medical malpractice cases. While a majority of Americans support this concept, organizations like the ATLA and ABA oppose it, potentially due to concerns about their own influence. They often dismiss health courts as flawed and even harmful, sometimes associating them with "socialistic views," without providing substantial evidence of these views or unilateral assertions.

    The core issue at stake is the conflict between economic incentives and ethical considerations in the pursuit of justice. Obviously, economics are a driving force, so is no surprise our current system is perceived as favoring cases with high financial stakes, potentially denying justice to those with less lucrative claims. This author advocates for health courts as a viable solution & alternative in our judicial system to create a more equitable system, prioritizing fairness and impartiality regardless of economic or social background. The ultimate goal is to eliminate the current system's perceived contempt, unpredictability, and unfairness. Thus, health courts offer a path toward restoring integrity in our flawed and dysfunctional judicial system.

Thursday, January 9, 2025

The Haunted Waters of our Healthcare: Our System's Flying Dutchman--a Captainless Ship

    

    The legend of the Flying Dutchman, a captainless & spectral ship doomed to endlessly sail the seas, has haunted maritime folklore for centuries. But this ghostly tale finds an eerie echo in a far more tangible realm: our healthcare system. Like the Dutchman, our healthcare system often feels like a fragmented, perilous voyage, fraught with hidden dangers and elusive destinations.

A Ship Without a Port

    The Flying Dutchman is cursed to never find port, forever adrift. Similarly, many patients find themselves lost in the labyrinth of healthcare, unable to find a clear path to effective, affordable care. They are tossed about by a sea of specialists, referrals, and insurance complexities, never reaching the safe harbor of true well-being.

Hidden Reefs and Treacherous Currents

    The Dutchman's journey is fraught with peril, sudden storms, and unseen obstacles. Our healthcare system, too, is full of hidden reefs: unexpected costs, bureaucratic hurdles, and gaps in coverage. Patients must navigate treacherous currents of confusing policies and procedures, often facing financial ruin or inadequate care.

A Desperate Crew

    The crew of the Flying Dutchman is often depicted as ghostly figures, trapped in their endless voyage. In our healthcare system, patients can feel equally isolated and desperate. They may face chronic illness, debilitating conditions, or the crushing weight of medical debt, feeling abandoned and adrift in a system that should be their lifeline.  

The Illusion of Control

    The Dutchman's captain, according to some legends, is driven by a desperate desire to overcome the odds, even at the cost of his soul. Our healthcare system often presents a similar illusion of control. We are told that with the right insurance and the right doctors, we can conquer any health challenge. But the reality is often far different, with patients feeling powerless against the vast and complex machinery of the system.

A Call for Change

    The tale of the Flying Dutchman serves as a warning, a reminder of the dangers of hubris and the power of fate. Our healthcare system, too, needs a course correction. We must strive to create a system that is not a source of fear and frustration, but a true beacon of hope and healing. Like a ship in need of a safe harbor, our healthcare system requires reform, compassion, and a commitment to serving the needs of all those who navigate its waters. Only then can we avoid the fate of the Dutchman and create a healthcare system that truly delivers on its promise of health and well-being.



Tuesday, January 7, 2025

Know Thyself--Your Market Value's Worth

    Early in my career, fresh from escaping an unsupportive toxic work environment, I had a memorable phone interview with a solo surgeon. He was looking for a PA to join his practice, which had been running for over 37 years. I’d almost forgotten about the written ad I’d responded to weeks prior, assuming he’d moved on or my qualifications weren’t a match. Then, out of the blue, I received a message on my answering machine. He wanted me to call him back—on a Saturday—for a preliminary chat before potentially flying me out to an onsite face-to-face interview.

Law #71 of Puerto Rico-- PA Engaged Advocacy Matters

   


    Seven years after its enactment, Puerto Rico's Ley #71 remains a deeply divisive and restrictive obstacle to the optimal practice of medicine within the Commonwealth. This legislation continues to hinder our ability to provide care in a manner we believe best serves our patients. Despite the efforts of organizations such as AAMPR, AAPA, and PAHL to enhance our professional standing, this detrimental legislation has yet to be repealed or amended.

    As we approach 2025, it is evident that sustained advocacy by Physician Assistants (PAs) is crucial to overcome the entrenched political obstacles and outdated, misinformed perceptions surrounding our role within the team-based medical model. Now, more than ever, unwavering commitment and active engagement in this challenging struggle are essential, particularly given the substantial financial resources invested by hospitals, insurance companies, and local nursing and physician groups in lobbying against our interests. We must, however, maintain a steadfast resolve in our ability to influence the narrow legislative agenda of their elected officials, a force that should not be underestimated by any member of our community involved in this process.

    To effectively address this issue and move forward, we must consolidate our efforts and amplify our voices alongside those who understand and support our profession. It is important to remember our history of successful lobbying efforts both within the United States and internationally. This advocacy demands not only patience but also unwavering determination, embracing even the smallest gains within the political arena as we advance our cause and interests among all stakeholders.

    Furthermore, current industry trends, including the expansion of scopes of practice, affirm the influence of our voices and the progress we have made. Our five-decade history of providing high-quality medical services and improving access to care underscores our contributions to the healthcare landscape. However, passivity and a spectator stance in this debate would allow other stakeholders to dictate our professional destinies.

    PAs are uniquely positioned to lead and influence critical decisions by actively participating in these discussions rather than relinquishing these opportunities. By acting decisively and with a clear understanding of our professional calling, we must seize these pivotal moments to continuously and positively shape the delivery of healthcare within Puerto Rico's severely strained healthcare system.

Friday, July 12, 2024

METADATA: A New Legal Foe to contend with.

Designer Microsoft.com 

      One of the greatest changes in the practice of medicine in recent years has been the introduction of the electronic medical record (EMR). A change heralded by many with significant promises, and welcoming enthusiasm at the time. However, this was not the case, especially when we started seeing “The Law of Unintended Consequences” play itself out in many allegations of medical malpractice across the country.  

      Thus, for many the good old days of the paper chart comfort and safety vanished rapidly from the charting landscape shortly thereafter. As we knew it, our former world of paper charting practices was turned inside out, and all because of a new unanticipated legal risk exposure introduced by this new technology—metadata. Plaintiff attorneys began and are still using EMR audited metadata to bolster their electronic discovery, much like they used to when subpoenaing paper charts to determine a case's merits; or to see if it was or is worthwhile to pursue. 

        Metadata is commonly defined as “data about data” by techno-savvy folks, that is, non-med-malpractice attorneys. Conversely, to med-mal attorneys is the data encrypted (attached) to an EMR that describes the file in its totality.  Basically, meaning the extra “hidden” (encoded) information that is created and embedded every time a chart is opened, amended, revised, or edited.  Essentially, this is tracking the author’s usage or “footprints” in a timeline fashion of a patient’s electronic medical record. Metadata is particularly important in healthcare litigation because it firmly establishes the “who,” “what,” “where,” “why,” “when,” and in many cases the “how,” basically analogous to someone’s fingerprints (1).  In other words, metadata shows the author’s log-on/log-off times, the dates & times of what was reviewed, revised, amended, added, or deleted, and for how long the chart was “open”.  This makes all electronic interactions not only documented and time-tracked, but ultimately discoverable too; therefore, potentially increasing the legal vulnerability of an EMR user.  

      Plus, this raises the risk/possibility of fraud allegations against the provider if the services rendered vs. billed are questionable by the EMR audit trail. These time stamps of clinical activity under Federal law are discoverable and admissible in most jurisdictions in civil trials (Williams vs. Sprint— United Management Co. 2005, WL2401626, D. Khan, Sep 29th, 2005). Legal experts believe the increased usage and spread of EMRs have reshaped the medical liability landscape by altering the way American courts will determine the Standard of Care.  

      Moreover, patient treatment errors may be unproven or unclear, yet the collective weight of time-care stamps discrepancies in alleged med-mal cases could be so heavy that in itself could render the case difficult to defend as many legal scholars as possible and theorists observe.  While discrepancies in general do not necessarily mean negligence, they certainly can call into question the provider's credibility rather easily.

 It is imperative for medical professionals to carefully and timely chart patient records because metadata is making note of their every move.  

      Often times that’s all it takes in some juror’s mind…which story is the most credible one, the plaintiff’s or the defenses?  

Resources Researched: 

1. Blake, Carter, Note- EMRs: A Prescription for Medical Malpractice Liability? Vaid, J. Enterprises & Technology, L 385 (2011), Vol. XVII, Number 4. 

2. Kern, Steven, Hidden Malpractice Dangers in EMRs, Med Scape Business of Medicine, Dec 3, 2010 (589724), www.medscape.com assessed October 30th, 2015. The 2015 MAPA

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