Law Med Blog

Anesthesiologist As Expert Witness: Murray Trial Lessons How Not To [VIDEO]

November 07, 2011 lawmed 1 Comment

Expert witness testimony in both criminal and civil litigation is necessary both to explain highly technical or specialized evidence presented to a jury, and to establish the Standard of Care (SOC) by which a defendants actions are judged. In the case of the SOC, expert witness testimony alone establishes its content. However it is the jury that accepts, or rejects, the testimony and settles on the appropriate SOC. One can then easily imagine that an expert’s testimony often determines the guilt, innocence, and/or liability of a defendant. It is very important stuff which requires accuracy and an unbiased presentation.

To that end, most all professional societies have established guidelines for the qualification and testimony of experts within their profession. These guidelines tend to have common requirements: The expert must be qualified as the profession defines it, and; The expert should be neutral and unbiased in their testimony as to the … (Continued…)

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$2.4 M Verdict: Nurse Failed To Report Patient Change

November 03, 2011 lawmed No comments

On June 27, 1996, 71-year-old Pearl Cominsky entered Holy Redeemer Hospital in Meadowbrook, Pa., for an elective knee replacement. The surgery progressed normally and the patient was placed in a monitored bed on a telemetry floor post-op where she suffered a devastating cardiovascular event and later died. Originally, in a medical malpractice lawsuit filed by her husband, the plaintiff’s theory of the case was that Cominsky’s psychiatric medications, one of which was the potentially dangerous Clozaril, interacted with her anesthetic and/or her post-operative pain medication, causing her cardiovascular collapse. The original claim cited a failure by a psychiatrist, surgeon and anesthesiologist to order close post-operative monitoring due to these potential interactions as a causative factor in the death of Cominsky.

However, as discovery in the case progressed, it became apparent that adequate monitoring had taken place, but the results were not properly reported to the patient’s physicians, despite a … (Continued…)

$260K For Retained Surgical Sponge

May 26, 2011 lawmed 1 Comment

On March 26, 2008, Justin Bartle, 26, underwent a resection of a portion of his bowel. The procedure was performed by a colorectal surgeon, Dr. Fred Boehmke, at Sisters of Charity Hospital, in Buffalo, NY. Boehmke was assisted by another surgeon, Dr. William Heyden. A surgical pad was left in Bartle’s abdomen and caused an infection, and required additional surgery for removal.

In a medical malpractice action Bartle sued Boehmke; Boehmke’s practice, Amherst Colon & Rectal Surgery; Heyden; and the hospital. Bartle alleged that Boehmke and Heyden failed to properly perform the surgery, that nurses failed to properly assist the surgeons, that the failures constituted malpractice, that the hospital was vicariously liable for the actions of Heyden and its nurses, and that Amherst Colon & Rectal Surgery was vicariously liable for Boehmke’s actions.

Bartle’s later dropped the claim against Heyden. The matter proceeded to a trial against the remaining defendants, … (Continued…)

Federal Report On Baltimore Hospital Stent Procedures Raises Fraud Questions

December 07, 2010 lawmed No comments

Investigators question whether doctor’s relationship with stent maker encouraged unnecessary medical procedures.

By Tricia Bishop, The Baltimore Sun

While Dr. Mark Midei was allegedly implanting unnecessary cardiac stents in hundreds of patients at a Towson hospital, stent manufacturer Abbott Laboratories was paying for crab and barbecue feasts at his Monkton home and building a business strategy around the Maryland cardiologist’s high output, according to a federal report being released today.

Abbott, a $30 billion-a-year, Chicago-based pharmaceutical firm, ranked Midei among its top-volume doctors in the Northeast and made plying him with research money and “VIP trips” part of its business plan in late 2008 — about the time Midei’s usage of Abbott-brand stents soared, the report said.

The 170-page document contains the findings of a months-long investigation by the U.S. Senate Committee on Finance into allegations of inappropriate and potentially harmful cardiac procedures performed by Midei at St. Joseph Medical … (Continued…)

St. Joe’s In Baltimore Pays $22 Million In Unnecessary Stent Scheme

November 10, 2010 lawmed No comments

We’ve reported previously on the scandal at St. Joseph’s Medical Center just outside of Baltimore, Md. where Dr. Mark Midei has been accused of performing hundreds of unnecessary cardiac stents. Now St. Joe’s has settled federal charges that they were involved in an illegal kick-back scheme with MidAtlantic Cardiovascular Associates and Midei by coughing up $22 million. We now know that 3 cardiologists were whistleblowers working with the federal government who brought about the investigation.

From the Baltimore Sun:

St. Joseph Medical Center has agreed to pay $22 million to settle federal claims that it engaged in a decade-long kickback scheme with Pikesville cardiology group MidAtlantic Cardiovascular Associates, which was co-founded by Dr. Mark G. Midei — the cardiologist accused of performing hundreds of unwarranted medical procedures at the Towson hospital.

Included in the settlement, which was announced Tuesday by the Maryland U.S. attorney’s office, is the repayment of

… (Continued…)

Hospital Policies Can Create a Standard of Care and Surprise Liability

September 27, 2010 lawmed No comments

Many health care workers might read their hospital’s policy and procedure manual in bits and pieces as the need arises, relying on fellow staff members to provide guidance as to ‘how things are done’. They do so at their, and the hospital’s, peril. Institutional policies and procedures quite often create a ‘local’ standard of care which if violated allow claims of negligence which otherwise might not be valid. It does not matter if an individual is doing things the way they have ‘always’ been done and the same way that the rest of the staff does them. If the P & P manual says things are to be done another way, patients can hold you to it.

An excellent example of how a specific hospital policy can wreak havoc with the professional is contained in our series on Dr. Bernstein and the Maryland Board of Physicians. This article will … (Continued…)

Unidentified Second Maryland Hospital Under Investigation For Unnecessary Procedures

September 23, 2010 lawmed No comments

The Maryland Department of Health and Mental Hygiene is investigating a second unnamed Maryland hospital to determine if unnecessary medical procedures were performed on patients.

“We’ve asked the Office of Health Care Quality to do an on-site review, a utilization review of another hospital. If I wanted to name the hospital, I would have named it in the report. That’s an ongoing investigation and at this point, we are maintaining that confidentiality,” said Maryland Health Department Secretary John Colmers.

St. Joseph Medical Center in Towson came under state investigation after it was revealed that nearly 600 patients may have had unnecessary coronary artery stents placed by a cardiologist at St. Joe’s. He is no longer there.

Dr. Mark Midei, former head of the cardiac lab at St. Joseph, is accused of placing stents in hundreds patients who did not need them, and the data shows the Towson hospital is among … (Continued…)

ASA Response To NY Times A-Bomb Editorial On CRNA Supervision: Paradigm Shift?

September 09, 2010 lawmed 2 Comments

As we said it would, the response to a NY Times Editorial on study data supporting the removal of all remaining Medicare regulations which require supervision of Certified Registered Nurse Anesthetists (CRNA) in order to obtain reimbursement, has heated up. Remember, these are purely insurance regulations which do not create laws which require CRNA practice to be supervised….only laws which allow for Medicare reimbursement for CRNA services if supervised by an MD in states which have not opted out of the requirement. Currently 15 states HAVE opted out and Colorado is on the precipice of being the 16th. The American Society of Anesthesiologists (ASA) has fought a hard turf battle to keep independent CRNA practice to a minimum.

Indeed ‘supervision’ and ‘medical direction’ are terms born of the insurance industry, not of the health care community. Actual state practice laws vary in their requirements from total independent practice in … (Continued…)

NYT CRNA Editorial Hits The Fan: Drops an A-Bomb

September 08, 2010 lawmed 1 Comment

Yesterday, the New York Times published an editorial commenting on a recent study which came to the conclusion that Certified Registered Nurse Anesthetists (CRNA) deliver safe, independent anesthesia care, which is made no safer when medical supervision by an anesthesiologist or surgeon is mandated. The study wrapped up with a recommendation that the Medicare state optional supervision requirement be universally dropped, as it has been in 15 states.

The Editorial was masterful in its simplicity, and in its A-Bomb (our new coined phrase- Anesthesia Bomb): Risk from anesthesia is “minuscule” regardless of whether a CRNA or MD administers it. CRNAs cost a lot less to train and employ and health care reform makes this a serious consideration.

The A-Bomb’s fallout has only just begun and is sure to spread in this long fought, down and dirty turf war imposed by the American Society of Anesthesiologists.

First from Capital Hill: TheHill.com… (Continued…)

Anesthesia Standard of Care: Dr. Bernstein, the ASA, Maryland Board of Physicians, and Random GPS Locations: Part 4

August 30, 2010 lawmed 1 Comment

READ PARTS ONE – TWO and THREE FIRST!! Read the series in order and in one place on our Anesthesia Standard of Care page.

We last addressed the biased testimony of the expert witnesses, and peer review physicians, Dr.’s Lyles and Forbes, who both relied upon American Society of Anesthesiologists published “standards” as the basis for their testimony. As we noted, such testimony would never be allowed in a court of law since professional organizations or societies do not determine the standard of care, rather the standard of care is determined, through expert testimony, to be the care which the average practitioner would provide when similarly situated. But, as we pointed out, this case comes under administrative law where the rules of evidence are very different and almost anything goes.

Now, back to the hearing taking place before the Maryland Board of Physicians:

Bernstein called two expert witnesses, Timothy Gilbert, … (Continued…)

Sponge Count Erroneously ‘Correct’ And Sponge In Abdomen? Surgeon Cannot Claim Nurses To Blame In TN.

August 28, 2010 lawmed No comments

We recently talked about res ipsa loquitur in an offbeat and roundabout way. Now let’s take a real case from current court proceedings which relate to the fact pattern of another case we also previously discussed.

Dr. Richard Geer (no kidding) operated on the late Clyde Deuel on August 22, 2006 to remove a pancreatic mass. As is common in an open abdominal procedure, surgical lap pads (special cotton mesh towels with a strip of fiber that shows up on x-ray) were utilized. In addition to surgical instruments, suture needles and other devices, lap pads are part of the surgical count. At the end of the procedure, before the abdomen is closed up, all items that are part of the surgical count must be accounted for. Prior to beginning the operation all items are counted and the count is recorded. During the procedure if items are added to the … (Continued…)

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Investigators question whether doctor’s relationship with stent maker encouraged unnecessary medical procedures.

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