Health Care Torts - Winter 2001

Introduction to Health Care Torts

History Of Medicine - The Two Threads

Shamanism

Greco-Roman Rationalism

Shamanism

Oldest Medicine

Primitive Tribes

Alternative Medicine

Integrates Religion And Medicine

Persists Even Today In So Called Modern Cultures

Explicitly Ministers To The Psyche And The Body

Often Sophisticated Rituals And Herbals

Driven By Myths

Trial And Error And Careful Observation

Some Cure, Most Do Not

Leviticus

Public Health Code

Rules Reduce Food Poisoning

Useful Pharmacopeia

Ethnobotany

Study Of Plants Used By Ritual Healer

Many Drugs Have Been Discovered This Way

Witches Used Foxglove - Digitalis

Medicinal Chemists

Refine And Modify Botanicals

Greco-Roman Rationalism

Galen And Successors

Driven By Rational Theories

Religion Is Left To Priests

Observations Forced To Fit Into The Theory

Plato Was Terrible About This

Mistakes Are Not Corrected

Persisted Until 16th Century

Hospitals as Religious Institutions

Started in Europe in the Middle Ages

Some of the Oldest Institutions in Continuous Operation

Run by Nursing Sisters

For the Poor

More Egalitarian in the United States

Nursing Only

Church Did Not Sanction Medical Care

Goal Was to Alleviate Suffering

Ease the Transition to Heaven

Most Died From Their Illnesses

Only the Very Sick Entered

Excellent Environment for Infectious Diseases

Changed With Technology in the 1880s

Scientific Medicine

Not The Philosopher's Scientific Method

The Imperative To Disprove Theories

The Full Disclosure Of Information

Science Is Constantly Questioning And Rethinking

Paracelsus

Philippus Aureolus Theophrastus Bombastus Von Hohenheim

Early 16th Century

Transition From Alchemy

Experiments And Systematic Observations

Antimony

Anatomy And Function

Andreas Vesalius

Mid 16th Century

Accurate Anatomy

William Harvey

Early 17th Century

Flow Of The Blood And Operation Of The Heart

Edward Jenner

Smallpox

Major Killer

Wiped Out The Indigenous Peoples

1798 - Published His Book On Cowpox

John Snow

Cholera In London

Broad Street Pump

Proved Cholera Is Waterborne

1854

Ignaz Philipp Semmelweis

Childbed Fever

Fellow Medical Student Died

Controlled Studies

1849

Louis Pasteur

Scientific Method

Germ Theory

Vaccination For Rabies

Pasteurization

1860s-1880s

William Morton

Dentist

Ether Anesthesia

1846

Joseph Lister

Antisepsis

1867-1880s

Listerine

Koch - 1880s

Koch's Postulates

Agent Must Be Present In Every Case;

Agent Must Be Isolated From The Host And Grown In Vitro [In A Lab Dish];

Agent Must Cause Disease When Inoculated Into A Healthy Susceptible Host; And

Agent Must Be Recovered Again From The Experimentally Infected Host.

Limitations

Organic Chemistry - 1880s

German/Swiss Dye Industry

Bayer

Hoffman La Roche

Ciba

Became Drug Chemistry

Modern Public Health

Food Sanitation

Water

Sewage

Life Expectancy Goes from 25 - 50+ fast

Slowly Rises to 76.5

Modern Medicine and Surgery

Medicine Starts to Work

Surgery Can Be Precise

Patients Do Not Get Infected

Professionalism Starts to Matter

What is a Quack if Nothing Works?

Why Train if Training Does Not Matter?

Schools of Practice - Pre-Science

Allopathy

Opposite Actions

Toxic and Nasty

Homeopathy

Same Action as the Disease Symptoms

Tiny Doses

Less Dangerous

Naturopaths, Chiropractors, Osteopaths, and Several Other Schools

Legal Consequences

No Testimony Across Schools of Practice

Different from Medical Specialties

Surgery, Internal Medicine, Pediatrics

All Same School of Practice - Allopathy

All Same License

Cross-Specialty Testimony Allowed

Locality Rule

The Profession - 1870s

Most Medical Schools are Diploma Mills

No Bar to Entry to Profession

Small Number of Urban Physicians are Rich

Most Physicians are Poor

Cannot Make Capital Investments

Training

Medical Equipment and Staff

Physicians Push for State Regulation

Why regulate Medical Practice?

Protection of Licensees

Quality of Care

Availability of Care

Fair Pricing

Governmental Interests

Protection of Licensees

Critique from the Left

Paul Starr - Social Transformation of American Medicine

Critique from the Right

Milton Friedman

"Hostile" v. "Friendly" Licensing

Not Incompatible with Other Goals

Quality and Availability of Care

Require Training

Exclude Unorthodox Practitioners

Discipline Incompetent or Impaired Docs

Subsidize Indigent Care with Required Treatment Mandates

EMTALA

Medicare/Medicaid Non-Discrimination Rules

Fair Pricing

Sustain Prices to Assure Supply

Prevent Monopoly Pricing

Prevent Gouging Based on Patient's Limited Bargaining Position

Emergency Conditions

Emotional Vulnerability

Lack of Knowledge

Governmental Interests

Cross-Subsidize Government Programs

Tax the Profession

Political Influence of Professionals

Draw on Professional Expertise

Traditional Public Health

Traditional Mental Health

Hospital-Based Medicine

Started With Surgery

Medical Laboratories

Bacteriology

Microanatomy

Radiology

Services and Sanitation Attract Patients

Internal Medicine

Obstetrics Patients

Reformation of Hospitals

Paralleled Changes in the Medical Profession

Began in the 1880s

Shift From Religious to Secular

Began in the Midwest and West

Not As Many Established Religious Hospitals

Today, Religious Orders Still Control A Majority of Hospitals

Tuberculosis Control - 1900

The Major Killer

Koch And Pasteur

Sanatoria

Pasteurization Of Milk

Disease Control Of Dairy Herds

Antibiotics

Sulfa Drugs In The 1930s

Penicillin

Alexander Flemming - 1928

Purified By Chain And Florey In 1939

Streptomycin - 1944

First Antituberculosis Drug

Selman Abraham Waksman - 1944

(Coined The Term Antibiotic

Post WW II Technology

Ventilators (Polio)

Electronic Monitors

Intensive Care

Shift From Hotel Services to Technology Oriented Nursing

Post World War II Medicine

Conquering Microbial Diseases

Vaccines

Antibiotics

Chronic Diseases

Better Drugs

Better Studies

Leukemia

Hospitals Shift From Nuns to Paid Staff

Advantages of Nuns

Work Cheap

Work Long Hours

Well Organized and Disciplined

Keep Physicians In Line

Supply Plummets

Replaced With Paid Staff

Not Many Nuns Even In Religious Hospitals

Implications of Staffing Changes

Old Days

Charitable Immunity

No Independent Liability for Nurses

No Liability for Physicians

After Professionalization

Demise of Charitable Immunity

Liability for Nursing Staff

Negligent Selection and Retention Liability for Medical Staff

Joint Commission on Accreditation of Hospitals

1950s

Now Joint Commission on Accreditation of Health Care Organizations

American College of Surgeons and American Hospital Association

Split The Power In Hospitals

Medical Staff Controls Medical Staff

Administrators Control Everything Else

Enforced By Accreditation

Contemporary Hospital Organization

Classic Corporate Organizations

CEO

Board of Trustees Has Final Authority

Part of Conglomerate

Medical Staff Committees

Tied To Corporation by Bylaws

Headed by Medical Director

Constant Conflict of Interest/antitrust Issues

Hospital Economics - Old Days

Patients Are Necessary

More Patients Meant More Money

Docs Admit Patients

Insurance Was So Generous It Cross-subsidized Indigent Care

Hospitals Have High Fixed Costs

Capital Costs

Not Built on the Donations of the Faithful Anymore

Ancillary Services

Lab, Etc., Must Be up for Even One Patient

Nursing Can Be Cut Back, but Only by Closing Units

Pretty Hard to Get Excited About Malpractice Risks Unless You Can Fill Every Bed in the Hospital

Value of An Admitting Physician

Only 2 Cases a Day, Average Stay a Week

Each Case Is Worth $15,000 to the Hospital Over the Week

10 Beds Filled at Any One Time

Take a Month Off, Have a Few Slow Days, Say Only 400 Patients a Year.

$6,000,000 a Year

If You Are Sloppy, They Just Stay in the Hospital Longer

Right to Die - Old Days

Technological Imperative

Every Day

Every Procedure

Every Increasing Stage of Intensive Care

Big Money

Just Making It Past Midnight Might Be Worth Another $2,000.

Physicians Owning Hospitals

Was Unethical to Own a Hospital

Conflict of Interest

Exception for Small Towns

Changed When Hospitals Made Money

Characteristic of Medical Ethics

Lawyer Ethics Are Also Pretty Flexible

HCA Was The Model - Interesting Times

Physician Practices Pre-1990

Sole Proprietorships

Partnerships

Mostly Small

Some Large Groups

First Organized As Partnerships

Then As Professional Corporations

Shaped by Corporate Practice Laws

Corporate Practice of Medicine

Physicians Working for Non-physicians

Concerns About Professional Judgment

Cases From 1920 Read Like the Headlines

Banned In Most States

Missouri Is Very Lax

Real Concern Was Billing By A Non-physician

Impact of Corporate Bans

Physicians Do Not Work for Hospitals

Contracts Governed by Medical Staff Bylaws

Sham of "Buying" Practices

Physicians Contract With Most Institutions

Charade of Captive Physician Groups

Managed Care Companies Contact With Group

Group Enforces Managed Care Company's Rules

Physicians Can Be As Ruthless As Anyone

Where Do Physicians Get Business?

Just Like Lawyers Outside of Texas

No Referral or Finders Fees

Unlike Lawyers, Docs Generally Do Not Pay Them Because of Real Penalties

Goodwill, No Grief on Peer Review

Now Patients Are Controlled by Managed Care Organizations

Now Shaped by Stark and Fraud and Abuse

Cannot Pay Incentives for Referrals

Cannot Have Ownership Interests That Give the Doc an Incentive to Refer

Cannot Sell Patients to the Highest Bidder

Medical Staff Privileges

Physicians are Independent Contractors

Hospitals Are Not Vicariously Liable for Independent Contractor Physicians

Hospitals Are Liable for Negligent Credentialing and Negligent Retention

Hospitals Can Be Liable if the Physician is an Ostensible Agent

Medical Staff Bylaws

Contract Between Physicians and Hospital

Not Like the Bylaws of a Business

Selection Criteria

Contractual Due Process For Termination

Negotiated Between Medical Staff and Hospital Board

State Actor Hospitals

Special Concerns About Due Process and Equal Protection

Cannot Delegate Some Decisions to Special Groups

Cannot Require Medical Society Membership

May Be Restricted on Requiring Board Certification

All Hospitals Must Follow General Anti-discrimination Laws

Review Criteria

Decision Rests With Board of Directors

Review Is Done by Medical Staff Committee

Increasing Pressure to Use Independent Reviewers

Medical Education

There Are Impostors

Medical Licenses

Verify With Every State

Problem With Liars

Postgraduate Training

Most Hospitals Require Board Certification

Board Certified Physicians Control The Process

Reduces Liability for Negligent Selection

Letter From Residencies

Evidence of Board Certification

"Board Eligible"

References From Other Hospitals

Every Hospital You Ever Applied to

Circumstances of Terminations

Withdrawn Applications

Should Check

Review of Privileges

Privileges Can Be Limited

Can Require Supervision

Can Refuse to Renew Privileges

Can Terminate Privileges

Can Do an Emergency Suspension

Acceptable Grounds for Termination

Competence

Judgment

Getting Along With Others

Economic Credentialing

What Is the Impact of Adverse Privilege Determinations?

If Every One Uses the Same Criteria and Relies on Previous History, You Are Dead

Parallel Action

The National Practitioner Databank

National Clearing House

Why Have One?

Problem of Liars

Malpractice And Peer Review

Will It Be Opened up?

Managed Care Pressures on Hospitals

DRGs

Capitation

Negotiated Reimbursement

Still Need Butts in Beds

Must Get Them Out Quick and Cheap

Death Can Be Very Cheap

Right to Die - Yes Please Do!!

Managed Care Pressures on Docs

When is Denying Care Cheaper?

What is the Timeframe Issue?

Insurers Now Control the Patients

Employee Model

Contractor Model

De-selection

Financial Death

No Due Process

New Challenges

Aging Population

Emerging Infectious Diseases

Antimicrobial Failure

New Agents (HIV, Ebola)

How To Pay For Health Care

How To Deliver Health Care

Medical Business Organizations