Saturday, February 27, 2010

Institute of Medicine Attacks Industry Sponsored Continuing Education

Previewed here. Free registration required.

Some problems.

1) No evidence that continuing medical education serves to improve care or patient outcomes. The doctor has almost no recall of any program or of any reading. His patient experiences are seared in. One goes to a doctor not for book learning but for experience.

2) First Amendment. These doctors forget that the Free Speech Clause is a coin with two sides. One is the freedom to listen to any speech one wishes. The banning of CME programs is unlawful.

3) Conflict of Interest. The alternative to commercial CME is more bureaucracy or putting the $2 billion through medical schools, where the members of the Institute happen to work. We do not appreciate the failure to disclose this conflict of interest in their advocacy.

4) Low Quality Will be Unattractive. Government and other bureaucracies do nothing well. Their low quality and surly service will turn off clinicians.

5) Pretextual. There is no crisis in CME. This witch hunt is one against brand medications. If the sponsors were generic makers, nothing about this subject would have come up.

6) Campaign of doctor intimidation. The taking a pen with a logo may constitute a kick back. The reason? See Item 5.

Saturday, February 20, 2010

Court Overturns Certificate of Merit Requirement for Medmal Claim

The certificate of merit requirement is an absolute shield for the plaintiff lawyer against subsequent misuse of a civil procedure counterclaim or against an ethics complaint with the Disciplinary Counsel for filing a frivolous lawsuit. Striking it down is striking down a lawyer immunity.

Every doctor should put away $10,000 to fund lawsuits and administrative complaints holding plaintiffs, experts, and lawyers accountable.

Thursday, February 18, 2010

Georgia Supreme Court Allows Demand for Med Mal Expert's Own Record of Treatment in Similar Case

In a prior post, it was suggested that the plaintiff expert produce 4 or 5 of his own records on similar case to verify his actual compliance with the proposed standard of care. Any demand for defense expert records should be resisted for the reasons listed in that post. Here.

Click on the title of this post to read the entire review of this decision. And the Condra decision here.

"Consistent with the law in effect at the time, the Court of Appeals upheld the trial court’s ruling excluding the personal practice evidence. However, following Condra, the Georgia Supreme Court remanded the case back to the Court of Appeals to reconsider in light of that decision. Upon reconsideration, the Court of Appeals found that the same reasoning employed by the Supreme Court in Condra would apply to any case where evidence of the physician's personal practices could be construed by the jury as calling into question the credibility of the physician's testimony at trial, irrespective of whether the physician was a standard of care expert. In other words, “evidence that [the treating physician] routinely took the same precaution to guard against infection that he now claimed would not have made a difference in the present case arguably called into question the credibility of such a claim.” Concluding that the exclusion of evidence of the treating physician’s personal practice undermined the jury's ability to fully evaluate his credibility and deprived plaintiff of her substantial right to a thorough and sifting cross-examination, the Court of Appeals ordered a new trial where such evidence would be admissible."

Saturday, February 13, 2010

System Rigged Airtight Against Falsely Accused Doctors - The Hyde Test

The lawyer hierarchy is totally biased against doctors. It will allow no compensation for the falsely accused doctor, despite clear provision in the Hyde Amendment. This is the second such pro-rent seeking, lawyer biased ruling for this extremist court (see United States v. Manchester Farming Partnership, 2003 C09 11 (USCA9, 2003))

That is why the innocent defendant should counterattack the federal prosecutor, the prosecution expert, and any anti-doctor judge, but during the trial itself. Count on there being no restorative justice after the trial is won. That is true despite the fact the lawyer took their high fees and costs at the point of a gun.

It should start with total e-discovery of the personal and work computers of these enemies of clinical care. I had proposed enjoining a prosecution for an agency for which I worked, at my own expense. They decided against the counterattack. They accepted a plea bargain for one quarter the amount in contention and a compliance program for five years. The cost and disruption of the compliance program dwarfed the cost of a totally guilty verdict. They would have been far better off completely losing the case.

The government is the biggest downloader and subscriber to child pornography. If any is found on a thorough forensic examination of the federal prosecutor's computers, each should be reported to the FBI, and to the Office of Professional Responsibility.

Next, organize direct actions by patients and doctors against these vicious predators. It should begin with a boycott of the lawyers by all product and service providers.

These execrable, biased, anti-doctor appellate judges arbitrarily overturned a lower court decision to award the massive legal costs to the doctor.

"In a Jan. 8 decision, the 9th U.S. Circuit Court of Appeals overturned a rare award to a physician for legal fees he spent defending himself in what turned out to be a failed health care fraud prosecution. Nevada otorhinolaryngologist Mark Capener, MD, denied any wrongdoing, and a jury in 2006 acquitted him of criminal fraud charges after a trial judge dismissed most of the claims.

Although appellate judges agreed that Nevada prosecutors committed several mistakes throughout their investigation, the court said the errors did not rise to the level of misconduct that warranted any recompense."


"The court recognized that it is not necessary to prove all three elements of the Hyde test -- that a claim is vexatious, frivolous and in bad faith -- and that in limited circumstances, a lack of investigation can constitute frivolousness. But the government had no reason to believe its theory was false and did its best to pursue a complex case with the expert information it had gathered, judges said.

"Reliance on an expert may well be faulty judgment in a given instance," the court said. But it generally would not constitute misconduct unless prosecutors knowingly depended on mistaken information.

In this case, however, the government interviewed the pathologist who took the samples, and prosecutors' main expert -- while reviewing only the medical and pathology records -- did not point to any need for further investigation of the related slides, the court noted."

Sunday, February 7, 2010

Irresponsible Opioid Prescribing

I received a letter from the Chairman of the Pennsylvania Medical Licensing Board. He endorsed the book, Responsible Opioid Prescribing, by Scott Fishman, with the imprimatur of the Federation of State Medical Boards (click on the title above to order a copy). I suggest the following in response to this garbage.

All out legal counterattack on the enemies of clinical care, including the members of the Licensing Boards, the Federation of State Medical Boards, and any other garbage guideline peddler. The innocent defendant should have no feeling of mercy in defending clinical care from garbage guidelines and attempts at intimidation of the doctor out of pain management. The list below takes dozens of hours a patient, and will deter all but a few specialists. The sponsors should also be named,

Abbott Laboratories
Alliance of State Pain Initiatives
Alpharma Pharmaceuticals LLC
American Academy of Pain Medicine
American Cancer Society
American Pain Foundation
American Society for Pain Management Nursing
Candlelighters Childhood Cancer Foundation
Center for Practical Bioethics
Cephalon, Inc.
Endo Pharmaceuticals*
Federation of State Medical Boards Research and Education Foundation
International Association for Pain and Chemical Dependency
King Pharmaceuticals
Lance Armstrong Foundation
Mayday Fund
National Pain Foundation
Pain and Policy Studies Group, University of Wisconsin
Purdue Pharma L.P.
SAMHSA/CSAT (Substance Abuse and Mental Health Services Administration/Center for Substance Abuse Treatment)

These oppressors of clinical care should be held accountable for their interference with clinical care. If any doctor is persecuted for trying to relieve the chronic and impairing pain, insist that the defense lawyer attack the persecutors.

1) Total e-discovery of all personal and government computers of the licensing board prosecutor, and of all members of the licensing board, and of all policy, responsible officials above them in the department.

2) Demand all pain management records of every member of the licensing board, of Dr. Fishman. If any record, fails to contain any single element listed below, file charges of unprofessional conduct against the doctors and report them, not just to their respective licensing boards, but to the Drug Enforcement Administration.

3) Demand all evidence that the content or quality of records has any correlation with outcome or with any other indicator of quality of care. It does not correlate. These paper shufflers have no justification for their standards.

4) Racial discrimination. The undue burden of this garbage text will cause delays and preclusion of patients in agony. The unnecessary time requirement and high fees will all but exclude everyone on Medicaid. Because people with dark skins are over-represented in such groups, this book is inherently racist. Rich white people can afford to have the requirement met below. Poor darker folks in agony, may rot in agony, this book is implying.

5) Organized medicine should seek to enjoin these garbage guidelines because they will bring pain management to a standstill, and violate the revised ADA.

From the book, the FSMB model policy requires the following. The more difficult the patient, the more time should be allotted. Get into the circumstances of the patient’s difficult life. Just repeat what the patient is saying in reflective listening.

Evaluation: comprehensive history (pain location, character, maximum and minimums, onset, exacerbation, amelioration, effect on sleep, mood, work, relationships, sex, recreation, involvement in litigation), physical examination (definition not established), screening for drug addiction (nothing established as standard, CAGE, drug and alcohol evaluation).

Treatment Planning: objective measurements, multiple functional improvements required, reconditioning, not elimination of pain or big score decreases, revisions of functional treatment plans.

Informed Consent and Agreement to Treatment: collaborative decisions, expected outcomes, goals, informed consent, education about the risks and benefits , need to inform doctor of side effects, use of other medications, changes, time of agreement, consent to communicate with other health providers, where agreement kept, privacy rights, administrative details, missed appointments, single pharmacy use, emergencies, terms of termination, abuse, violating agreement, inappropriate behaviors, no improvement, pregnancy, tolerance, toxicity, overdosing, medication seeking, selling medication, stopping abruptly, limit on replacing lost medication, limit on refills, random urine screens, education on withdrawal and on tolerance, addiction risks and behaviors, single pharmacy, drug interactions, masking, driving, misuse, legal consideration, specifics of prescriptions.

Periodic Review: functional goals, adherence, lab testing, pseudo-addictive behavior from inadequate pain relief, listening, attention to entire patient, referral, adjustment of doses, modification of goals, revisions of agreement, complete documentation with descriptions of risks of actions and of inactions.

Consultation: do early, gather records and data for consultant’s use, request specifics, plan, communicate with consultant, inappropriate patient behavior, listening, non-confrontational approach, avoid talking down, include the patient in decisions, look at contexts, set limits on behavior, maintain safety, terminate with a witness, send letter, tapering of drugs causing withdrawal.

Medical Records: assessment, treatment agreements, education, action plans, outcomes, monitoring, history and physical, test results, consultations, reviews, medications, pain intensity levels, levels of functioning, subjective complaints, objective findings, diagnosis, treatment objectives, discussion of risks and benefits, informed consent, instructions and agreements, plans for review,

Compliance with Controlled Substances Laws and Regulations: The content of the 67 page DEA manual