Managing Your Practice

The author reports no financial relationships relevant to this article.

CASE 1 ObGyn fails to scrutinize test results

A woman consulted board-certified ObGyns during the first trimester of her pregnancy and informed one of them that she had recently been given a diagnosis of measles, but was unsure whether the illness was German (rubella virus) measles. The physician examined her and ordered a rubella titer. The results, he noted, “were indicative of past infection.” Instead of performing further testing, he told the patient she “had nothing to worry about because she had become immune to German measles as a child.”¹

Soon after birth, her child was diagnosed as suffering from congenital rubella syndrome, including eye lesions, heart disease, and auditory defects.¹

Apparently, the physician had failed to consider whether the positive test result was indicative of current, rather than past, infection—and failed to perform further testing to determine whether the titer was falling, stable, or rising.

Is he legally liable for this omission?

The physician in this case violated a simple tenet: If a test is ordered, the clinician must be able to interpret the results or order further testing to ensure that the patient is given valid advice. This physician’s error was compounded by the fact that the patient had notified him of the potential for fetal injury.

Would he be held accountable in a court of law?

The answer to that question depends on:

• the state in which the case arose, and the laws in effect at the time of the incident
  
• the action initiated by the plaintiff and her attorneys, which may involve “wrongful birth,” “wrongful life,” or other allegation
  
• the time that transpires between the genetic test (or diagnostic test, such as a rubella titer) and the legal case—in other words, the statute of limitations. In some cases, this period encompasses the time elapsed between omission of a test (or birth of a child) and the filing of a legal claim.
  

In this article, I highlight three pertinent legal cases and the lessons to be learned. Because national legal case reporters generally publish opinions from appellate courts, they usually focus on determinations of law, with factual determinations and decisions on liability remanded back to the trial court.

For the purposes of this article, I assume that the facts in the judicial opinion are correct, but focus on legal principle.

Detectable genetic disorders have increased exponentially

Almost any health-care provider encounters patients who have inheritable disease. Cases have arisen against an oncologist for failure to convey to the patient the potential for genetic transmission of colonic polyposis and against a surgeon for failing to warn a young breast cancer patient that she may carry genes that predispose her offspring to ovarian cancer. But the highest-risk category is reserved for the obstetrician, who must, on a daily basis, consider the need for appropriate screening and proper counseling about the availability of genetic testing that may enable the patient to avoid passing catastrophic disease to her children.

 

This responsibility is complicated by a dramatic increase in the number of genetic tests. Few areas of medical practice have expanded as rapidly as prenatal genetic testing and counseling. Forty years ago, an obstetrician—or even a nurse—might have discussed the risks of pregnancy at an advanced age, as well as a few possible genetic abnormalities. Today, certified genetic counselors are employed by many clinics and even private practices, and more than 1,000 disorders—as many as 1,300, by some reports—can be detected by the proper test.

Although most of these disorders are uncommon, several dozen or so are more prevalent and, therefore, regularly tested for. They include cystic fibrosis, Down syndrome, and neural tube defects, as well as diseases associated with certain religious, racial, or ethnic groups, such as thalassemia (Mediterranean, Asian, or African heritage), Tay-Sachs (Eastern European or Ashkenazi Jewish descent), and sickle cell disease (African-American ancestry).

Ethical complexity makes resolution difficult

Legal actions are bound to increase as technology evolves, particularly when a child is born with a genetically transmissible disorder that could have been identified with proper counseling and testing. These legal actions are particularly difficult to resolve because they involve complex ethical issues. For example, in “wrongful birth” actions, the parents often allege that they would not have conceived a child if they had known that it might be afflicted with a certain trait or illness, or that they would have terminated the pregnancy if they had learned of the disorder in a timely fashion.

In most of these cases, the plaintiffs are the parents. In a few states, however, successful actions have been brought by the child (“wrongful life”), who, some contend, essentially claims that nonexistence would be better than life with a serious congenital condition. They usually seek the extraordinary expense associated with the condition, as well as other damages.

Similar actions have been brought by children, and parents of children, with acquired conditions such as congenital rubella syndrome, as in the opening case. In that scenario, the parents’ case was declined by attorneys because their state of residence did not allow actions for wrongful birth or wrongful life. The state courts subsequently changed the law to allow wrongful birth actions, but by the time the parents learned of the change in the law, the statute of limitations had expired. They therefore added the attorneys as defendants, alleging that they failed to recall the parents when the law changed, in time to file their lawsuit. By the time the case finally reached the state’s supreme court, the law had changed again, and the child was allowed to proceed with a wrongful life action.

CASE 2 Physician mistakes patient’s tissue for fetus’s

Before becoming pregnant, a woman experienced several medical problems that prompted her and her husband to seek genetic testing and counseling. Testing revealed that she had a balanced translocation of chromosomes 11 and 22.²

After conceiving, the woman underwent chorionic villus sampling, which indicated that the fetus was probably a female with the same chromosomal condition as the mother—therefore, she would develop normally. The mother also underwent several ultrasonographic tests to rule out fetal abnormalities and was told that imaging showed a normally developing fetus.

The woman went on to deliver a boy, and genetic testing revealed that he had trisomy 22, with severe, permanent disabilities.² The parents sued.

Were the woman’s health-care providers liable?

This case prompts a number of questions:

• Did the physicians seek confirmation that the tissue studied was fetal?
  
• Did they counsel the parents about the possibility that maternal genetic material might be recovered during sampling? If so, did they consider that possibility when the specimen was identical to the mother’s?
  
• How is it possible that, on subsequent ultrasonographic evaluations, the male sex of the fetus was not noted? If it was noted, did it register with the providers that the result was inconsistent with the genetic studies?
  

These questions were not addressed in the court opinion, but they could have had a significant impact on the final outcome of the case. Although the court allowed some aspects of this case to go forward, damages were limited to the costs of the pregnancy and—for reasons not disclosed—that claim was dismissed. If the delivery had been complicated, however, those costs could have been substantial.

Despite the dismissal, which was a favorable turn of events for the physicians, they almost certainly lost substantial work time and experienced the emotional roller-coaster ride that accompanies being sued—not to mention the revelation that they may have harmed a patient.

 

CASE 3 Physician fails to complete testing

The mother of a developmentally delayed daughter delivered another child. Before she conceived, however, she and her husband consulted a physician (a pediatrician) to find out whether there was a genetic reason for the daughter’s developmental delay and the mental retardation of another child, the girl’s half-brother.³ The physician wrote in her notes: “? Chromosomes + fragile X” to indicate testing planned for the daughter.

The testing was performed at a medical center and reported to be normal. The physician relayed this finding to the parents, but failed to mention that fragile X testing had not been conducted. Because they had discussed fragile X testing during the initial consultation, the mother assumed it had been performed and was included in the normal results.³

The latest child was also developmentally delayed, and subsequent testing revealed that all three children were positive for fragile X syndrome. The parents sued, alleging that the physician was negligent for failing to perform the genetic test, and claiming that they would not have conceived another child if they had known of the daughter’s fragile X status.

Are their claims reasonable?

Despite a state statute that prohibited wrongful birth and wrongful life actions that allege that the pregnancy would have been terminated if the parents had known of the genetic impairment, the state supreme court allowed this case to proceed because the issue was whether the mother would have avoided conception. The plaintiffs also argued that the claim did not exceed the statute of limitations. Their reasoning: Although the medical care had been provided more than 4 years earlier (the limitation period), the injury did not occur (i.e., action did not “accrue”) until conception of the child.

Perhaps most telling was the court’s statement that, “[O]ur decision today is informed by the practical reality of the field of genetic testing and counseling; genetic testing and diagnosis [do] not affect only the patient. Both the patient and her family can benefit from accurate testing and diagnosis. And, conversely, both the patient and her family can be harmed by negligent testing and diagnosis.”³

Establishing degree of harm is especially difficult

As you might imagine, allegations involving potential pregnancy termination arouse intense emotions on both sides of the abortion debate. The determination of damages is equally contentious. Among the issues that may arise at the time of trial:

• How much is a parent harmed by the birth of a child with hereditary disease?
  
• Should damages be offset by the benefit of having any child, even if the child is not “normal”?
  
• How do you measure the value of a life with Down syndrome, for example, compared with no life at all?
  
• Should damages include the cost of raising the child, including additional medical expenses, which can be substantial?
  

These and many other serious questions have faced judges and legislators for more than 30 years, and are expected to remain controversial for the foreseeable future.

Assigning blame for genetic disease is difficult

The arguments in cases involving genetic testing often differ from those made when a fetus sustains injury. In the latter, the injury may be caused by the provider—e.g., after administration of a cytotoxic drug during pregnancy or because of induction of labor at a seriously miscalculated gestational age. Legal actions associated with such injury are widely accepted.

In cases involving genetic counseling, however, the disease is not caused by the practitioner. Rather, the plaintiff alleges that the affected child was born because the provider failed to:

• properly counsel the patient not to conceive
  
• offer the parents the option of terminating the pregnancy or
  
• successfully prevent or terminate a pregnancy.
  

At present, quite a few states allow parents to proceed when the action is for what most courts and commentators call “wrongful conception”—i.e., when negligent preconception advice, or a lack of advice, leads to conception and birth of a normal, but unplanned child (this also applies to negligent contraception and sterilization procedures). Actions for wrongful birth are not as widely accepted. Some courts have allowed recovery of some damages for these actions, whereas others have prohibited them, based on state common law principles or existing statutes. And actions by the child—so-called wrongful life actions—are allowed in only a very few states (California, Washington, and New Jersey), and damages are limited even more strictly.⁴

It would be unwise to base one’s conduct on existing law, which is unpredictable. The law can change if a judge determines that a prior opinion was incorrect, a statute was unconstitutional, or a particular injury justifies compensation. Legislative bodies also can change with an election, and the statutes can be amended. The best strategy for you to deal with this uncertainty? Provide comprehensive prenatal care of the highest quality.

 

Lessons learned

Among the lessons to be gleaned from these cases are:

• Be sure that you understand the limits of any test that you order, and convey those limits to the patient.
  
• When you inform a patient about a planned test, that test should be completed. If it is not, explain the failure to perform the test (or the lost result, etc.) to the patient so that she can act accordingly. In that regard, a laboratory or other facility can be held liable for a negligently performed test or, as was the case in one lawsuit, a sperm bank may be liable for failing to inform the recipient of donor sperm that the donor had a positive family history of renal disease (i.e., autosomal-dominant polycystic kidney disease).⁵
  
• Be aware that, as the amount of information available in the popular literature and on the Web expands, patients will come to question their care more often. An example: A patient recently brought an action against her health-care provider because vitamins containing folate were discontinued shortly before she became pregnant, and the child was born with a neural tube defect.⁶
  
• Most court cases, including those cited in this article, are based on the credibility of witnesses recollecting events. Well-documented, legible records written contemporaneously with an event are of enormous benefit in cases involving sometimes widely divergent recollections. When health care meets appropriate standards and is well documented in the records, most plaintiffs’ attorneys will not undertake what can be protracted and expensive litigation. When they do, the health-care provider usually prevails.
  

The bottom line? You are more obligated than ever to continue your medical education—not so much to avoid lawsuits, although that is certainly a possible benefit—but to ensure that the care you provide remains current, injury is avoided, and the patient’s concerns are properly addressed.

The author reports no financial relationships relevant to this article.

CASE 1 ObGyn fails to scrutinize test results

A woman consulted board-certified ObGyns during the first trimester of her pregnancy and informed one of them that she had recently been given a diagnosis of measles, but was unsure whether the illness was German (rubella virus) measles. The physician examined her and ordered a rubella titer. The results, he noted, “were indicative of past infection.” Instead of performing further testing, he told the patient she “had nothing to worry about because she had become immune to German measles as a child.”¹

Soon after birth, her child was diagnosed as suffering from congenital rubella syndrome, including eye lesions, heart disease, and auditory defects.¹

Apparently, the physician had failed to consider whether the positive test result was indicative of current, rather than past, infection—and failed to perform further testing to determine whether the titer was falling, stable, or rising.

Is he legally liable for this omission?

The physician in this case violated a simple tenet: If a test is ordered, the clinician must be able to interpret the results or order further testing to ensure that the patient is given valid advice. This physician’s error was compounded by the fact that the patient had notified him of the potential for fetal injury.

Would he be held accountable in a court of law?

The answer to that question depends on:

• the state in which the case arose, and the laws in effect at the time of the incident
  
• the action initiated by the plaintiff and her attorneys, which may involve “wrongful birth,” “wrongful life,” or other allegation
  
• the time that transpires between the genetic test (or diagnostic test, such as a rubella titer) and the legal case—in other words, the statute of limitations. In some cases, this period encompasses the time elapsed between omission of a test (or birth of a child) and the filing of a legal claim.
  

In this article, I highlight three pertinent legal cases and the lessons to be learned. Because national legal case reporters generally publish opinions from appellate courts, they usually focus on determinations of law, with factual determinations and decisions on liability remanded back to the trial court.

For the purposes of this article, I assume that the facts in the judicial opinion are correct, but focus on legal principle.

Detectable genetic disorders have increased exponentially

Almost any health-care provider encounters patients who have inheritable disease. Cases have arisen against an oncologist for failure to convey to the patient the potential for genetic transmission of colonic polyposis and against a surgeon for failing to warn a young breast cancer patient that she may carry genes that predispose her offspring to ovarian cancer. But the highest-risk category is reserved for the obstetrician, who must, on a daily basis, consider the need for appropriate screening and proper counseling about the availability of genetic testing that may enable the patient to avoid passing catastrophic disease to her children.

 

This responsibility is complicated by a dramatic increase in the number of genetic tests. Few areas of medical practice have expanded as rapidly as prenatal genetic testing and counseling. Forty years ago, an obstetrician—or even a nurse—might have discussed the risks of pregnancy at an advanced age, as well as a few possible genetic abnormalities. Today, certified genetic counselors are employed by many clinics and even private practices, and more than 1,000 disorders—as many as 1,300, by some reports—can be detected by the proper test.

Although most of these disorders are uncommon, several dozen or so are more prevalent and, therefore, regularly tested for. They include cystic fibrosis, Down syndrome, and neural tube defects, as well as diseases associated with certain religious, racial, or ethnic groups, such as thalassemia (Mediterranean, Asian, or African heritage), Tay-Sachs (Eastern European or Ashkenazi Jewish descent), and sickle cell disease (African-American ancestry).

Ethical complexity makes resolution difficult

Legal actions are bound to increase as technology evolves, particularly when a child is born with a genetically transmissible disorder that could have been identified with proper counseling and testing. These legal actions are particularly difficult to resolve because they involve complex ethical issues. For example, in “wrongful birth” actions, the parents often allege that they would not have conceived a child if they had known that it might be afflicted with a certain trait or illness, or that they would have terminated the pregnancy if they had learned of the disorder in a timely fashion.

In most of these cases, the plaintiffs are the parents. In a few states, however, successful actions have been brought by the child (“wrongful life”), who, some contend, essentially claims that nonexistence would be better than life with a serious congenital condition. They usually seek the extraordinary expense associated with the condition, as well as other damages.

Similar actions have been brought by children, and parents of children, with acquired conditions such as congenital rubella syndrome, as in the opening case. In that scenario, the parents’ case was declined by attorneys because their state of residence did not allow actions for wrongful birth or wrongful life. The state courts subsequently changed the law to allow wrongful birth actions, but by the time the parents learned of the change in the law, the statute of limitations had expired. They therefore added the attorneys as defendants, alleging that they failed to recall the parents when the law changed, in time to file their lawsuit. By the time the case finally reached the state’s supreme court, the law had changed again, and the child was allowed to proceed with a wrongful life action.

CASE 2 Physician mistakes patient’s tissue for fetus’s

Before becoming pregnant, a woman experienced several medical problems that prompted her and her husband to seek genetic testing and counseling. Testing revealed that she had a balanced translocation of chromosomes 11 and 22.²

After conceiving, the woman underwent chorionic villus sampling, which indicated that the fetus was probably a female with the same chromosomal condition as the mother—therefore, she would develop normally. The mother also underwent several ultrasonographic tests to rule out fetal abnormalities and was told that imaging showed a normally developing fetus.

The woman went on to deliver a boy, and genetic testing revealed that he had trisomy 22, with severe, permanent disabilities.² The parents sued.

Were the woman’s health-care providers liable?

This case prompts a number of questions:

• Did the physicians seek confirmation that the tissue studied was fetal?
  
• Did they counsel the parents about the possibility that maternal genetic material might be recovered during sampling? If so, did they consider that possibility when the specimen was identical to the mother’s?
  
• How is it possible that, on subsequent ultrasonographic evaluations, the male sex of the fetus was not noted? If it was noted, did it register with the providers that the result was inconsistent with the genetic studies?
  

These questions were not addressed in the court opinion, but they could have had a significant impact on the final outcome of the case. Although the court allowed some aspects of this case to go forward, damages were limited to the costs of the pregnancy and—for reasons not disclosed—that claim was dismissed. If the delivery had been complicated, however, those costs could have been substantial.

Despite the dismissal, which was a favorable turn of events for the physicians, they almost certainly lost substantial work time and experienced the emotional roller-coaster ride that accompanies being sued—not to mention the revelation that they may have harmed a patient.

 

CASE 3 Physician fails to complete testing

The mother of a developmentally delayed daughter delivered another child. Before she conceived, however, she and her husband consulted a physician (a pediatrician) to find out whether there was a genetic reason for the daughter’s developmental delay and the mental retardation of another child, the girl’s half-brother.³ The physician wrote in her notes: “? Chromosomes + fragile X” to indicate testing planned for the daughter.

The testing was performed at a medical center and reported to be normal. The physician relayed this finding to the parents, but failed to mention that fragile X testing had not been conducted. Because they had discussed fragile X testing during the initial consultation, the mother assumed it had been performed and was included in the normal results.³

The latest child was also developmentally delayed, and subsequent testing revealed that all three children were positive for fragile X syndrome. The parents sued, alleging that the physician was negligent for failing to perform the genetic test, and claiming that they would not have conceived another child if they had known of the daughter’s fragile X status.

Are their claims reasonable?

Despite a state statute that prohibited wrongful birth and wrongful life actions that allege that the pregnancy would have been terminated if the parents had known of the genetic impairment, the state supreme court allowed this case to proceed because the issue was whether the mother would have avoided conception. The plaintiffs also argued that the claim did not exceed the statute of limitations. Their reasoning: Although the medical care had been provided more than 4 years earlier (the limitation period), the injury did not occur (i.e., action did not “accrue”) until conception of the child.

Perhaps most telling was the court’s statement that, “[O]ur decision today is informed by the practical reality of the field of genetic testing and counseling; genetic testing and diagnosis [do] not affect only the patient. Both the patient and her family can benefit from accurate testing and diagnosis. And, conversely, both the patient and her family can be harmed by negligent testing and diagnosis.”³

Establishing degree of harm is especially difficult

As you might imagine, allegations involving potential pregnancy termination arouse intense emotions on both sides of the abortion debate. The determination of damages is equally contentious. Among the issues that may arise at the time of trial:

• How much is a parent harmed by the birth of a child with hereditary disease?
  
• Should damages be offset by the benefit of having any child, even if the child is not “normal”?
  
• How do you measure the value of a life with Down syndrome, for example, compared with no life at all?
  
• Should damages include the cost of raising the child, including additional medical expenses, which can be substantial?
  

These and many other serious questions have faced judges and legislators for more than 30 years, and are expected to remain controversial for the foreseeable future.

Assigning blame for genetic disease is difficult

The arguments in cases involving genetic testing often differ from those made when a fetus sustains injury. In the latter, the injury may be caused by the provider—e.g., after administration of a cytotoxic drug during pregnancy or because of induction of labor at a seriously miscalculated gestational age. Legal actions associated with such injury are widely accepted.

In cases involving genetic counseling, however, the disease is not caused by the practitioner. Rather, the plaintiff alleges that the affected child was born because the provider failed to:

• properly counsel the patient not to conceive
  
• offer the parents the option of terminating the pregnancy or
  
• successfully prevent or terminate a pregnancy.
  

At present, quite a few states allow parents to proceed when the action is for what most courts and commentators call “wrongful conception”—i.e., when negligent preconception advice, or a lack of advice, leads to conception and birth of a normal, but unplanned child (this also applies to negligent contraception and sterilization procedures). Actions for wrongful birth are not as widely accepted. Some courts have allowed recovery of some damages for these actions, whereas others have prohibited them, based on state common law principles or existing statutes. And actions by the child—so-called wrongful life actions—are allowed in only a very few states (California, Washington, and New Jersey), and damages are limited even more strictly.⁴

It would be unwise to base one’s conduct on existing law, which is unpredictable. The law can change if a judge determines that a prior opinion was incorrect, a statute was unconstitutional, or a particular injury justifies compensation. Legislative bodies also can change with an election, and the statutes can be amended. The best strategy for you to deal with this uncertainty? Provide comprehensive prenatal care of the highest quality.

 

Lessons learned

Among the lessons to be gleaned from these cases are:

• Be sure that you understand the limits of any test that you order, and convey those limits to the patient.
  
• When you inform a patient about a planned test, that test should be completed. If it is not, explain the failure to perform the test (or the lost result, etc.) to the patient so that she can act accordingly. In that regard, a laboratory or other facility can be held liable for a negligently performed test or, as was the case in one lawsuit, a sperm bank may be liable for failing to inform the recipient of donor sperm that the donor had a positive family history of renal disease (i.e., autosomal-dominant polycystic kidney disease).⁵
  
• Be aware that, as the amount of information available in the popular literature and on the Web expands, patients will come to question their care more often. An example: A patient recently brought an action against her health-care provider because vitamins containing folate were discontinued shortly before she became pregnant, and the child was born with a neural tube defect.⁶
  
• Most court cases, including those cited in this article, are based on the credibility of witnesses recollecting events. Well-documented, legible records written contemporaneously with an event are of enormous benefit in cases involving sometimes widely divergent recollections. When health care meets appropriate standards and is well documented in the records, most plaintiffs’ attorneys will not undertake what can be protracted and expensive litigation. When they do, the health-care provider usually prevails.
  

The bottom line? You are more obligated than ever to continue your medical education—not so much to avoid lawsuits, although that is certainly a possible benefit—but to ensure that the care you provide remains current, injury is avoided, and the patient’s concerns are properly addressed.

The author reports no financial relationships relevant to this article.

CASE 1 ObGyn fails to scrutinize test results

A woman consulted board-certified ObGyns during the first trimester of her pregnancy and informed one of them that she had recently been given a diagnosis of measles, but was unsure whether the illness was German (rubella virus) measles. The physician examined her and ordered a rubella titer. The results, he noted, “were indicative of past infection.” Instead of performing further testing, he told the patient she “had nothing to worry about because she had become immune to German measles as a child.”¹

Soon after birth, her child was diagnosed as suffering from congenital rubella syndrome, including eye lesions, heart disease, and auditory defects.¹

Apparently, the physician had failed to consider whether the positive test result was indicative of current, rather than past, infection—and failed to perform further testing to determine whether the titer was falling, stable, or rising.

Is he legally liable for this omission?

The physician in this case violated a simple tenet: If a test is ordered, the clinician must be able to interpret the results or order further testing to ensure that the patient is given valid advice. This physician’s error was compounded by the fact that the patient had notified him of the potential for fetal injury.

Would he be held accountable in a court of law?

The answer to that question depends on:

• the state in which the case arose, and the laws in effect at the time of the incident
  
• the action initiated by the plaintiff and her attorneys, which may involve “wrongful birth,” “wrongful life,” or other allegation
  
• the time that transpires between the genetic test (or diagnostic test, such as a rubella titer) and the legal case—in other words, the statute of limitations. In some cases, this period encompasses the time elapsed between omission of a test (or birth of a child) and the filing of a legal claim.
  

In this article, I highlight three pertinent legal cases and the lessons to be learned. Because national legal case reporters generally publish opinions from appellate courts, they usually focus on determinations of law, with factual determinations and decisions on liability remanded back to the trial court.

For the purposes of this article, I assume that the facts in the judicial opinion are correct, but focus on legal principle.

Detectable genetic disorders have increased exponentially

Almost any health-care provider encounters patients who have inheritable disease. Cases have arisen against an oncologist for failure to convey to the patient the potential for genetic transmission of colonic polyposis and against a surgeon for failing to warn a young breast cancer patient that she may carry genes that predispose her offspring to ovarian cancer. But the highest-risk category is reserved for the obstetrician, who must, on a daily basis, consider the need for appropriate screening and proper counseling about the availability of genetic testing that may enable the patient to avoid passing catastrophic disease to her children.

 

This responsibility is complicated by a dramatic increase in the number of genetic tests. Few areas of medical practice have expanded as rapidly as prenatal genetic testing and counseling. Forty years ago, an obstetrician—or even a nurse—might have discussed the risks of pregnancy at an advanced age, as well as a few possible genetic abnormalities. Today, certified genetic counselors are employed by many clinics and even private practices, and more than 1,000 disorders—as many as 1,300, by some reports—can be detected by the proper test.

Although most of these disorders are uncommon, several dozen or so are more prevalent and, therefore, regularly tested for. They include cystic fibrosis, Down syndrome, and neural tube defects, as well as diseases associated with certain religious, racial, or ethnic groups, such as thalassemia (Mediterranean, Asian, or African heritage), Tay-Sachs (Eastern European or Ashkenazi Jewish descent), and sickle cell disease (African-American ancestry).

Ethical complexity makes resolution difficult

Legal actions are bound to increase as technology evolves, particularly when a child is born with a genetically transmissible disorder that could have been identified with proper counseling and testing. These legal actions are particularly difficult to resolve because they involve complex ethical issues. For example, in “wrongful birth” actions, the parents often allege that they would not have conceived a child if they had known that it might be afflicted with a certain trait or illness, or that they would have terminated the pregnancy if they had learned of the disorder in a timely fashion.

In most of these cases, the plaintiffs are the parents. In a few states, however, successful actions have been brought by the child (“wrongful life”), who, some contend, essentially claims that nonexistence would be better than life with a serious congenital condition. They usually seek the extraordinary expense associated with the condition, as well as other damages.

Similar actions have been brought by children, and parents of children, with acquired conditions such as congenital rubella syndrome, as in the opening case. In that scenario, the parents’ case was declined by attorneys because their state of residence did not allow actions for wrongful birth or wrongful life. The state courts subsequently changed the law to allow wrongful birth actions, but by the time the parents learned of the change in the law, the statute of limitations had expired. They therefore added the attorneys as defendants, alleging that they failed to recall the parents when the law changed, in time to file their lawsuit. By the time the case finally reached the state’s supreme court, the law had changed again, and the child was allowed to proceed with a wrongful life action.

CASE 2 Physician mistakes patient’s tissue for fetus’s

Before becoming pregnant, a woman experienced several medical problems that prompted her and her husband to seek genetic testing and counseling. Testing revealed that she had a balanced translocation of chromosomes 11 and 22.²

After conceiving, the woman underwent chorionic villus sampling, which indicated that the fetus was probably a female with the same chromosomal condition as the mother—therefore, she would develop normally. The mother also underwent several ultrasonographic tests to rule out fetal abnormalities and was told that imaging showed a normally developing fetus.

The woman went on to deliver a boy, and genetic testing revealed that he had trisomy 22, with severe, permanent disabilities.² The parents sued.

Were the woman’s health-care providers liable?

This case prompts a number of questions:

• Did the physicians seek confirmation that the tissue studied was fetal?
  
• Did they counsel the parents about the possibility that maternal genetic material might be recovered during sampling? If so, did they consider that possibility when the specimen was identical to the mother’s?
  
• How is it possible that, on subsequent ultrasonographic evaluations, the male sex of the fetus was not noted? If it was noted, did it register with the providers that the result was inconsistent with the genetic studies?
  

These questions were not addressed in the court opinion, but they could have had a significant impact on the final outcome of the case. Although the court allowed some aspects of this case to go forward, damages were limited to the costs of the pregnancy and—for reasons not disclosed—that claim was dismissed. If the delivery had been complicated, however, those costs could have been substantial.

Despite the dismissal, which was a favorable turn of events for the physicians, they almost certainly lost substantial work time and experienced the emotional roller-coaster ride that accompanies being sued—not to mention the revelation that they may have harmed a patient.

 

CASE 3 Physician fails to complete testing

The mother of a developmentally delayed daughter delivered another child. Before she conceived, however, she and her husband consulted a physician (a pediatrician) to find out whether there was a genetic reason for the daughter’s developmental delay and the mental retardation of another child, the girl’s half-brother.³ The physician wrote in her notes: “? Chromosomes + fragile X” to indicate testing planned for the daughter.

The testing was performed at a medical center and reported to be normal. The physician relayed this finding to the parents, but failed to mention that fragile X testing had not been conducted. Because they had discussed fragile X testing during the initial consultation, the mother assumed it had been performed and was included in the normal results.³

The latest child was also developmentally delayed, and subsequent testing revealed that all three children were positive for fragile X syndrome. The parents sued, alleging that the physician was negligent for failing to perform the genetic test, and claiming that they would not have conceived another child if they had known of the daughter’s fragile X status.

Are their claims reasonable?

Despite a state statute that prohibited wrongful birth and wrongful life actions that allege that the pregnancy would have been terminated if the parents had known of the genetic impairment, the state supreme court allowed this case to proceed because the issue was whether the mother would have avoided conception. The plaintiffs also argued that the claim did not exceed the statute of limitations. Their reasoning: Although the medical care had been provided more than 4 years earlier (the limitation period), the injury did not occur (i.e., action did not “accrue”) until conception of the child.

Perhaps most telling was the court’s statement that, “[O]ur decision today is informed by the practical reality of the field of genetic testing and counseling; genetic testing and diagnosis [do] not affect only the patient. Both the patient and her family can benefit from accurate testing and diagnosis. And, conversely, both the patient and her family can be harmed by negligent testing and diagnosis.”³

Establishing degree of harm is especially difficult

As you might imagine, allegations involving potential pregnancy termination arouse intense emotions on both sides of the abortion debate. The determination of damages is equally contentious. Among the issues that may arise at the time of trial:

• How much is a parent harmed by the birth of a child with hereditary disease?
  
• Should damages be offset by the benefit of having any child, even if the child is not “normal”?
  
• How do you measure the value of a life with Down syndrome, for example, compared with no life at all?
  
• Should damages include the cost of raising the child, including additional medical expenses, which can be substantial?
  

These and many other serious questions have faced judges and legislators for more than 30 years, and are expected to remain controversial for the foreseeable future.

Assigning blame for genetic disease is difficult

The arguments in cases involving genetic testing often differ from those made when a fetus sustains injury. In the latter, the injury may be caused by the provider—e.g., after administration of a cytotoxic drug during pregnancy or because of induction of labor at a seriously miscalculated gestational age. Legal actions associated with such injury are widely accepted.

In cases involving genetic counseling, however, the disease is not caused by the practitioner. Rather, the plaintiff alleges that the affected child was born because the provider failed to:

• properly counsel the patient not to conceive
  
• offer the parents the option of terminating the pregnancy or
  
• successfully prevent or terminate a pregnancy.
  

At present, quite a few states allow parents to proceed when the action is for what most courts and commentators call “wrongful conception”—i.e., when negligent preconception advice, or a lack of advice, leads to conception and birth of a normal, but unplanned child (this also applies to negligent contraception and sterilization procedures). Actions for wrongful birth are not as widely accepted. Some courts have allowed recovery of some damages for these actions, whereas others have prohibited them, based on state common law principles or existing statutes. And actions by the child—so-called wrongful life actions—are allowed in only a very few states (California, Washington, and New Jersey), and damages are limited even more strictly.⁴

It would be unwise to base one’s conduct on existing law, which is unpredictable. The law can change if a judge determines that a prior opinion was incorrect, a statute was unconstitutional, or a particular injury justifies compensation. Legislative bodies also can change with an election, and the statutes can be amended. The best strategy for you to deal with this uncertainty? Provide comprehensive prenatal care of the highest quality.

 

Lessons learned

Among the lessons to be gleaned from these cases are:

• Be sure that you understand the limits of any test that you order, and convey those limits to the patient.
  
• When you inform a patient about a planned test, that test should be completed. If it is not, explain the failure to perform the test (or the lost result, etc.) to the patient so that she can act accordingly. In that regard, a laboratory or other facility can be held liable for a negligently performed test or, as was the case in one lawsuit, a sperm bank may be liable for failing to inform the recipient of donor sperm that the donor had a positive family history of renal disease (i.e., autosomal-dominant polycystic kidney disease).⁵
  
• Be aware that, as the amount of information available in the popular literature and on the Web expands, patients will come to question their care more often. An example: A patient recently brought an action against her health-care provider because vitamins containing folate were discontinued shortly before she became pregnant, and the child was born with a neural tube defect.⁶
  
• Most court cases, including those cited in this article, are based on the credibility of witnesses recollecting events. Well-documented, legible records written contemporaneously with an event are of enormous benefit in cases involving sometimes widely divergent recollections. When health care meets appropriate standards and is well documented in the records, most plaintiffs’ attorneys will not undertake what can be protracted and expensive litigation. When they do, the health-care provider usually prevails.
  

The bottom line? You are more obligated than ever to continue your medical education—not so much to avoid lawsuits, although that is certainly a possible benefit—but to ensure that the care you provide remains current, injury is avoided, and the patient’s concerns are properly addressed.

DR. NEEDHAM is a family physician in Santa Monica, Calif. He teaches a course on net present value at the annual meeting of the American Academy of Family Physicians.

If you've ever wondered whether you should buy a DXA machine or start offering botox in your practice, read on: Learning how to calculate the net present value of that venture would go a long way toward helping you figure out if it's truly a good move.

For all their training and experience in clinical decision making, physicians are no better than anyone else at making business decisions if they lack the necessary quantitative tools.

And yet, I've seen plenty of my colleagues invest their time and money in significant practice-changing ventures without first rigorously evaluating them, only to wonder a year later why they aren't making any money.

The most common mistake is making decisions, not blindly, but partially blindly. I'm referring to the physician who decides to buy a dual-energy x-ray absorptiometry machine because the age and demographic profile of his or her patient population would seem to make the purchase a no-brainer. But there are a lot more factors to consider besides the ideal patient population.

Why do I recommend using a net present value (NPV) equation in particular? Because it's a fairly straightforward way to take into account the risk and opportunity costs of any venture.

The first step is figuring out cash flow. For example, say the DXA machine you're eyeing costs $100,000 and is good for 10 years of use before it needs to be replaced. Let's say that payers will reimburse you $100 for each scan. And based on your patient population, you may estimate that you will be performing x number of scans per year.

Next, figure out what the cost of each of those scans will be. If you have to hire a technician, factor in his or her salary and benefits, the cost of that person's training, and the cost of any supplies. In addition, consider what the marketing costs will be.

The second step is figuring out opportunity costs. Will be you be giving up time or space, or both? Reading DXA scans doesn't take much time, but space may be an issue. If you place the machine in an exam room, what is the opportunity cost of giving up that space? Will it reduce the number of patients who can be seen each hour?

Sometimes the opportunity costs may not be as obvious as you think. Take the example of a colleague of mine who is considering adding colonoscopy to his practice.

Let's assume that, on average, Medicare reimbursement is $225, and that he can perform two colonoscopies per hour. Factor in the time that it takes to travel to and from the colonoscopy center—as well as the inevitable no-shows—and it may appear that the opportunity costs of providing colonoscopy are too great.

That would certainly be the case if his time could instead be spent seeing four patients per hour at $110 each, without the travel time. On the other hand, when he is away at the colonoscopy center, perhaps an exam room is freed up for a colleague to see more patients, a factor that may shore up the deal, at least in a large practice.

The third step is to evaluate what that cash flow is worth to you over time. Let's say you expect $20,000 in income from the DXA scanner each year for the next 10 years. Ask yourself: Is $20,000 a year worth $100,000 to me now? Calculating the discount rate—which is your estimate of the risk of your project—can help answer that question. So let's say much of your practice's patient population comprises postmenopausal women. But there are 10 other physicians in your area, as well as a few hospitals, that offer DXA scanning, so there is no shortage of competition. In this case, the discount rate is quite high.

The fourth step is doing a sensitivity analysis, which is a way of testing your estimates.

After you've made estimates in good faith, you may then discover that your discount rate is 12%. In other words, you're not super confident, but the venture isn't a flier either. Based on that estimate, you find that your NPV is $200,000, which is more than what you expect to pay for the machine, a favorable finding. The higher the NPV is over the initial cash investment, the more confident you can be that you will make money. The beauty of this NPV number is that it can then be used to compare projects, say one that may last 3 years versus another that will last 10 years.

 

You can also go back and change your assumptions and see how the changes alter the NPV. If Medicare reimbursement for DXA scans is reduced by 10%, for example, or if the number of scans you expected to perform each year is cut by 10%, what does that do to the NPV? If it veers into the red, don't do the deal.

A low NPV may give you bargaining power. In negotiations with the DXA machine vendor, a low NPV will substantiate why you're will to pay only $70,000 for the machine, or you may more clearly see the wisdom of purchasing a lightly used, refurbished machine instead.

Physicians don't tend to calculate NPV because it's time consuming, and it's not as challenging or as exciting as a clinical problem. But a lot of money may ride on it and it will help you know if your financial intuition is correct.

My advice: Go online, learn about net present value.

Crunch the numbers yourself, or hire someone to do it for you. But be aware of all the tools at your disposal before you cut that check.

DR. NEEDHAM is a family physician in Santa Monica, Calif. He teaches a course on net present value at the annual meeting of the American Academy of Family Physicians.

If you've ever wondered whether you should buy a DXA machine or start offering botox in your practice, read on: Learning how to calculate the net present value of that venture would go a long way toward helping you figure out if it's truly a good move.

For all their training and experience in clinical decision making, physicians are no better than anyone else at making business decisions if they lack the necessary quantitative tools.

And yet, I've seen plenty of my colleagues invest their time and money in significant practice-changing ventures without first rigorously evaluating them, only to wonder a year later why they aren't making any money.

The most common mistake is making decisions, not blindly, but partially blindly. I'm referring to the physician who decides to buy a dual-energy x-ray absorptiometry machine because the age and demographic profile of his or her patient population would seem to make the purchase a no-brainer. But there are a lot more factors to consider besides the ideal patient population.

Why do I recommend using a net present value (NPV) equation in particular? Because it's a fairly straightforward way to take into account the risk and opportunity costs of any venture.

The first step is figuring out cash flow. For example, say the DXA machine you're eyeing costs $100,000 and is good for 10 years of use before it needs to be replaced. Let's say that payers will reimburse you $100 for each scan. And based on your patient population, you may estimate that you will be performing x number of scans per year.

Next, figure out what the cost of each of those scans will be. If you have to hire a technician, factor in his or her salary and benefits, the cost of that person's training, and the cost of any supplies. In addition, consider what the marketing costs will be.

The second step is figuring out opportunity costs. Will be you be giving up time or space, or both? Reading DXA scans doesn't take much time, but space may be an issue. If you place the machine in an exam room, what is the opportunity cost of giving up that space? Will it reduce the number of patients who can be seen each hour?

Sometimes the opportunity costs may not be as obvious as you think. Take the example of a colleague of mine who is considering adding colonoscopy to his practice.

Let's assume that, on average, Medicare reimbursement is $225, and that he can perform two colonoscopies per hour. Factor in the time that it takes to travel to and from the colonoscopy center—as well as the inevitable no-shows—and it may appear that the opportunity costs of providing colonoscopy are too great.

That would certainly be the case if his time could instead be spent seeing four patients per hour at $110 each, without the travel time. On the other hand, when he is away at the colonoscopy center, perhaps an exam room is freed up for a colleague to see more patients, a factor that may shore up the deal, at least in a large practice.

The third step is to evaluate what that cash flow is worth to you over time. Let's say you expect $20,000 in income from the DXA scanner each year for the next 10 years. Ask yourself: Is $20,000 a year worth $100,000 to me now? Calculating the discount rate—which is your estimate of the risk of your project—can help answer that question. So let's say much of your practice's patient population comprises postmenopausal women. But there are 10 other physicians in your area, as well as a few hospitals, that offer DXA scanning, so there is no shortage of competition. In this case, the discount rate is quite high.

The fourth step is doing a sensitivity analysis, which is a way of testing your estimates.

After you've made estimates in good faith, you may then discover that your discount rate is 12%. In other words, you're not super confident, but the venture isn't a flier either. Based on that estimate, you find that your NPV is $200,000, which is more than what you expect to pay for the machine, a favorable finding. The higher the NPV is over the initial cash investment, the more confident you can be that you will make money. The beauty of this NPV number is that it can then be used to compare projects, say one that may last 3 years versus another that will last 10 years.

 

You can also go back and change your assumptions and see how the changes alter the NPV. If Medicare reimbursement for DXA scans is reduced by 10%, for example, or if the number of scans you expected to perform each year is cut by 10%, what does that do to the NPV? If it veers into the red, don't do the deal.

A low NPV may give you bargaining power. In negotiations with the DXA machine vendor, a low NPV will substantiate why you're will to pay only $70,000 for the machine, or you may more clearly see the wisdom of purchasing a lightly used, refurbished machine instead.

Physicians don't tend to calculate NPV because it's time consuming, and it's not as challenging or as exciting as a clinical problem. But a lot of money may ride on it and it will help you know if your financial intuition is correct.

My advice: Go online, learn about net present value.

Crunch the numbers yourself, or hire someone to do it for you. But be aware of all the tools at your disposal before you cut that check.

DR. NEEDHAM is a family physician in Santa Monica, Calif. He teaches a course on net present value at the annual meeting of the American Academy of Family Physicians.

If you've ever wondered whether you should buy a DXA machine or start offering botox in your practice, read on: Learning how to calculate the net present value of that venture would go a long way toward helping you figure out if it's truly a good move.

For all their training and experience in clinical decision making, physicians are no better than anyone else at making business decisions if they lack the necessary quantitative tools.

And yet, I've seen plenty of my colleagues invest their time and money in significant practice-changing ventures without first rigorously evaluating them, only to wonder a year later why they aren't making any money.

The most common mistake is making decisions, not blindly, but partially blindly. I'm referring to the physician who decides to buy a dual-energy x-ray absorptiometry machine because the age and demographic profile of his or her patient population would seem to make the purchase a no-brainer. But there are a lot more factors to consider besides the ideal patient population.

Why do I recommend using a net present value (NPV) equation in particular? Because it's a fairly straightforward way to take into account the risk and opportunity costs of any venture.

The first step is figuring out cash flow. For example, say the DXA machine you're eyeing costs $100,000 and is good for 10 years of use before it needs to be replaced. Let's say that payers will reimburse you $100 for each scan. And based on your patient population, you may estimate that you will be performing x number of scans per year.

Next, figure out what the cost of each of those scans will be. If you have to hire a technician, factor in his or her salary and benefits, the cost of that person's training, and the cost of any supplies. In addition, consider what the marketing costs will be.

The second step is figuring out opportunity costs. Will be you be giving up time or space, or both? Reading DXA scans doesn't take much time, but space may be an issue. If you place the machine in an exam room, what is the opportunity cost of giving up that space? Will it reduce the number of patients who can be seen each hour?

Sometimes the opportunity costs may not be as obvious as you think. Take the example of a colleague of mine who is considering adding colonoscopy to his practice.

Let's assume that, on average, Medicare reimbursement is $225, and that he can perform two colonoscopies per hour. Factor in the time that it takes to travel to and from the colonoscopy center—as well as the inevitable no-shows—and it may appear that the opportunity costs of providing colonoscopy are too great.

That would certainly be the case if his time could instead be spent seeing four patients per hour at $110 each, without the travel time. On the other hand, when he is away at the colonoscopy center, perhaps an exam room is freed up for a colleague to see more patients, a factor that may shore up the deal, at least in a large practice.

The third step is to evaluate what that cash flow is worth to you over time. Let's say you expect $20,000 in income from the DXA scanner each year for the next 10 years. Ask yourself: Is $20,000 a year worth $100,000 to me now? Calculating the discount rate—which is your estimate of the risk of your project—can help answer that question. So let's say much of your practice's patient population comprises postmenopausal women. But there are 10 other physicians in your area, as well as a few hospitals, that offer DXA scanning, so there is no shortage of competition. In this case, the discount rate is quite high.

The fourth step is doing a sensitivity analysis, which is a way of testing your estimates.

After you've made estimates in good faith, you may then discover that your discount rate is 12%. In other words, you're not super confident, but the venture isn't a flier either. Based on that estimate, you find that your NPV is $200,000, which is more than what you expect to pay for the machine, a favorable finding. The higher the NPV is over the initial cash investment, the more confident you can be that you will make money. The beauty of this NPV number is that it can then be used to compare projects, say one that may last 3 years versus another that will last 10 years.

 

You can also go back and change your assumptions and see how the changes alter the NPV. If Medicare reimbursement for DXA scans is reduced by 10%, for example, or if the number of scans you expected to perform each year is cut by 10%, what does that do to the NPV? If it veers into the red, don't do the deal.

A low NPV may give you bargaining power. In negotiations with the DXA machine vendor, a low NPV will substantiate why you're will to pay only $70,000 for the machine, or you may more clearly see the wisdom of purchasing a lightly used, refurbished machine instead.

Physicians don't tend to calculate NPV because it's time consuming, and it's not as challenging or as exciting as a clinical problem. But a lot of money may ride on it and it will help you know if your financial intuition is correct.

My advice: Go online, learn about net present value.

Crunch the numbers yourself, or hire someone to do it for you. But be aware of all the tools at your disposal before you cut that check.

One day last month, I noticed that the plastic carpet protector under my desk chair was disintegrating. When I pulled it up to replace it with a new one I got quite a surprise: The patch of carpet it had been protecting was considerably brighter and cleaner than the rest of the carpeting in my office.

Sometimes it takes a jolt like that to remind us to take a good look at our office furnishings. I discovered that a lot more than a carpet protector needed replacing. We tend not to notice gradual deterioration. Carpets fade and dull with constant traffic and cleaning. Wallpaper and paint accumulate dirt, stains, and damage. Furniture gets dirty and dented.

In particular, you might be surprised by the condition of your waiting room if you haven't been out there for awhile. I certainly was. The wallpaper was smudged behind chairs, where patients had rested their heads. There were stains and pen marks on the chairs' upholstery, and the frames were scratched and worn. The well-trafficked carpet was stained, faded, and pulled.

Even if you don't find anything obvious, it is wise to check periodically for subtle evidence of age. Find some patches of carpeting and flooring under desks and compare them with the exposed areas.

You also might want to look at the décor itself. Is it dated and just plain old looking? Any interior designer can determine when a space was last decorated, simply by the color and style of the materials used. If your office is stuck in the 1980s, it's probably time for a change.

Your next vacation would be a great time to make those changes. You'll come back to a new, fresh environment.

Start by reviewing your color scheme, and consider changing it if you're tired of it, or if, as mentioned, it's hopelessly out of date. Wallpaper and carpeting should be long-wearing industrial quality. The paint should have a high-quality “eggshell” finish to facilitate cleaning, and it should be professionally applied.

If you've grown tired of your wall decorations, now would be a good time to replace at least some of them. This need not be an expensive proposition. If you or a family member is an artist or photographer, consider framing some of the best work. Or invite local artists to display some of their work on your walls.

Furniture is another important consideration. You may be able to resurface and reupholster what you have now, but if not, shop carefully. Beware of products that are promoted specifically to physicians, as they tend to be overpriced.

Get recommendations from colleagues and others, and never shop solely on price. If you shop online, factor in shipping costs, which can be considerable for furniture. Don't be afraid to ask for discounts. You won't get them if you don't ask.

Plants, in my opinion, are important in any indoor environment. They help you, your employees, and your patients feel less cut off from the outside world. If you are hesitant to take on the extra work of plant upkeep, a corporate plant service will rent you the plants, keep them healthy, and replace any that begin to wither.

As I've mentioned in previous columns, consider joining a state or community business/industry association. They maintain lists of merchants willing to give discounts, and they enable you to find other members looking for similar furniture, which could land all of you a big quantity discount.

This is also a good time to clear out old textbooks, magazines, and files you haven't opened in years. And get your building's maintenance crew in to fix any nagging plumbing, electrical, or heating/air conditioning problems that may have developed.

Finally, spruce-up time is an excellent opportunity to take a look at your medical equipment. We've all seen vintage offices containing gadgets that were new when the office opened decades ago, with no modernization in the interim. Would you want to be treated by those physicians? Neither would your patients, for the most part. Patients want cutting-edge technology. Consider replacing your obsolete equipment, even if it “still works okay.”

One day last month, I noticed that the plastic carpet protector under my desk chair was disintegrating. When I pulled it up to replace it with a new one I got quite a surprise: The patch of carpet it had been protecting was considerably brighter and cleaner than the rest of the carpeting in my office.

Sometimes it takes a jolt like that to remind us to take a good look at our office furnishings. I discovered that a lot more than a carpet protector needed replacing. We tend not to notice gradual deterioration. Carpets fade and dull with constant traffic and cleaning. Wallpaper and paint accumulate dirt, stains, and damage. Furniture gets dirty and dented.

In particular, you might be surprised by the condition of your waiting room if you haven't been out there for awhile. I certainly was. The wallpaper was smudged behind chairs, where patients had rested their heads. There were stains and pen marks on the chairs' upholstery, and the frames were scratched and worn. The well-trafficked carpet was stained, faded, and pulled.

Even if you don't find anything obvious, it is wise to check periodically for subtle evidence of age. Find some patches of carpeting and flooring under desks and compare them with the exposed areas.

You also might want to look at the décor itself. Is it dated and just plain old looking? Any interior designer can determine when a space was last decorated, simply by the color and style of the materials used. If your office is stuck in the 1980s, it's probably time for a change.

Your next vacation would be a great time to make those changes. You'll come back to a new, fresh environment.

Start by reviewing your color scheme, and consider changing it if you're tired of it, or if, as mentioned, it's hopelessly out of date. Wallpaper and carpeting should be long-wearing industrial quality. The paint should have a high-quality “eggshell” finish to facilitate cleaning, and it should be professionally applied.

If you've grown tired of your wall decorations, now would be a good time to replace at least some of them. This need not be an expensive proposition. If you or a family member is an artist or photographer, consider framing some of the best work. Or invite local artists to display some of their work on your walls.

Furniture is another important consideration. You may be able to resurface and reupholster what you have now, but if not, shop carefully. Beware of products that are promoted specifically to physicians, as they tend to be overpriced.

Get recommendations from colleagues and others, and never shop solely on price. If you shop online, factor in shipping costs, which can be considerable for furniture. Don't be afraid to ask for discounts. You won't get them if you don't ask.

Plants, in my opinion, are important in any indoor environment. They help you, your employees, and your patients feel less cut off from the outside world. If you are hesitant to take on the extra work of plant upkeep, a corporate plant service will rent you the plants, keep them healthy, and replace any that begin to wither.

As I've mentioned in previous columns, consider joining a state or community business/industry association. They maintain lists of merchants willing to give discounts, and they enable you to find other members looking for similar furniture, which could land all of you a big quantity discount.

This is also a good time to clear out old textbooks, magazines, and files you haven't opened in years. And get your building's maintenance crew in to fix any nagging plumbing, electrical, or heating/air conditioning problems that may have developed.

Finally, spruce-up time is an excellent opportunity to take a look at your medical equipment. We've all seen vintage offices containing gadgets that were new when the office opened decades ago, with no modernization in the interim. Would you want to be treated by those physicians? Neither would your patients, for the most part. Patients want cutting-edge technology. Consider replacing your obsolete equipment, even if it “still works okay.”

One day last month, I noticed that the plastic carpet protector under my desk chair was disintegrating. When I pulled it up to replace it with a new one I got quite a surprise: The patch of carpet it had been protecting was considerably brighter and cleaner than the rest of the carpeting in my office.

Sometimes it takes a jolt like that to remind us to take a good look at our office furnishings. I discovered that a lot more than a carpet protector needed replacing. We tend not to notice gradual deterioration. Carpets fade and dull with constant traffic and cleaning. Wallpaper and paint accumulate dirt, stains, and damage. Furniture gets dirty and dented.

In particular, you might be surprised by the condition of your waiting room if you haven't been out there for awhile. I certainly was. The wallpaper was smudged behind chairs, where patients had rested their heads. There were stains and pen marks on the chairs' upholstery, and the frames were scratched and worn. The well-trafficked carpet was stained, faded, and pulled.

Even if you don't find anything obvious, it is wise to check periodically for subtle evidence of age. Find some patches of carpeting and flooring under desks and compare them with the exposed areas.

You also might want to look at the décor itself. Is it dated and just plain old looking? Any interior designer can determine when a space was last decorated, simply by the color and style of the materials used. If your office is stuck in the 1980s, it's probably time for a change.

Your next vacation would be a great time to make those changes. You'll come back to a new, fresh environment.

Start by reviewing your color scheme, and consider changing it if you're tired of it, or if, as mentioned, it's hopelessly out of date. Wallpaper and carpeting should be long-wearing industrial quality. The paint should have a high-quality “eggshell” finish to facilitate cleaning, and it should be professionally applied.

If you've grown tired of your wall decorations, now would be a good time to replace at least some of them. This need not be an expensive proposition. If you or a family member is an artist or photographer, consider framing some of the best work. Or invite local artists to display some of their work on your walls.

Furniture is another important consideration. You may be able to resurface and reupholster what you have now, but if not, shop carefully. Beware of products that are promoted specifically to physicians, as they tend to be overpriced.

Get recommendations from colleagues and others, and never shop solely on price. If you shop online, factor in shipping costs, which can be considerable for furniture. Don't be afraid to ask for discounts. You won't get them if you don't ask.

Plants, in my opinion, are important in any indoor environment. They help you, your employees, and your patients feel less cut off from the outside world. If you are hesitant to take on the extra work of plant upkeep, a corporate plant service will rent you the plants, keep them healthy, and replace any that begin to wither.

As I've mentioned in previous columns, consider joining a state or community business/industry association. They maintain lists of merchants willing to give discounts, and they enable you to find other members looking for similar furniture, which could land all of you a big quantity discount.

This is also a good time to clear out old textbooks, magazines, and files you haven't opened in years. And get your building's maintenance crew in to fix any nagging plumbing, electrical, or heating/air conditioning problems that may have developed.

Finally, spruce-up time is an excellent opportunity to take a look at your medical equipment. We've all seen vintage offices containing gadgets that were new when the office opened decades ago, with no modernization in the interim. Would you want to be treated by those physicians? Neither would your patients, for the most part. Patients want cutting-edge technology. Consider replacing your obsolete equipment, even if it “still works okay.”

Pain, brain injury due to ruptured uterus

A woman now pregnant with her third child—who had delivered her other two children by cesarean section—presented at the hospital with painful contractions 1 week before a scheduled cesarean section. Because her cervix was dilated only 1 cm, it was decided to monitor her cervical dilation until it indicated active labor and then perform a cesarean section.

Her contractions continued. Despite pain medication, she complained of pain at the “10+” level. Fetal monitoring became difficult and an emergency cesarean section was performed. The baby was found floating freely in the abdominal cavity because the uterus had ruptured. He suffered catastrophic injuries caused by a hypoxic–ischemic brain injury and will require assistance in all activities of daily living.

Patient’s claim The cesarean section should have been performed sooner. Also, the complaints of pain should have been investigated further.

Doctor’s defense Waiting for cervical dilation before proceeding to cesarean section was proper.

Verdict $5 million Minnesota settlement; part was used to purchase an annuity, and part was placed in a supplemental needs trust.

Wrong ovary removed? Judge dismisses case

A 42-year-old woman complaining of abdominal pain underwent a cholecystectomy and oophorectomy. During the surgery, the surgeon discovered that the right ovary, which was supposed to be removed, was densely adherent to the pelvic side wall. In order to leave the patient with some ovarian function, he decided to just “loosen” the right ovary and remove the left ovary, which was also diseased. The right ovary was removed in a later surgery.

Patient’s claim She alleged medical battery for removal of the left ovary, to which she had not consented. Also, failure to remove the right ovary required her to undergo additional surgery.

Doctor’s defense Consent for the surgery included authorization to perform medically indicated procedures. By removing the left ovary instead of the right one, the surgeon hoped the patient could maintain some ovarian function.

Verdict $175,000 Tennessee verdict on the battery issue. The trial judge granted the defendant’s motion for JNOV (judgment notwithstanding the verdict) and ruled there could be no medical battery. He found that (1) all experts stated that both ovaries were diseased and needed to be removed, (2) it was medically necessary to remove the left ovary, and (3) the patient had authorized any medically indicated procedure. The court dismissed the case. An appeal was pending.

Baby is entrapped by cervix; no OB to help

A 25-year-old woman presented at the hospital in preterm labor. Her ObGyn was contacted at home and prescribed medications. There was no obstetrician at the hospital when the patient’s water broke and the baby was found to be in a footling breech position. Delivery of the baby—at 23 5/7 weeks and 2 lb—began 5 minutes later, but the head became entrapped by the cervix, leading to asphyxiation. The ObGyn arrived nearly 1 hour later and completed the delivery.

Patient’s claim The mother claimed wrongful death and conscious pain and suffering of the infant, as well as negligent infliction of emotional distress for herself. Also, the ObGyn should have left immediately for the hospital when he was first contacted.

Doctor’s defense The initial information given to him did not indicate that a rapid delivery was about to occur. The second contact came after the infant had died, and the defendant left immediately for the hospital. Also, it was unlikely the infant would have been born alive because of the early gestational age.

Verdict Initially, a $175,000 verdict against the hospital for intentional infliction of emotional distress and a defense verdict for the ObGyn were returned in Illinois. The latter was overturned on appeal, and a second trial returned a $700,000 verdict for emotional distress.

Did infection cause child’s brain damage?

A woman in her 24th week of pregnancy presented with protracted vomiting and other symptoms of hyperemesis gravidarum. Her treating ObGyns ordered a peripherally inserted central line for the infusion of fluid, after which the patient was cared for at home by a home health nurse. Neither the physicians nor the nurse noticed that the central catheter had caused an infection. The patient went into septic shock but recovered. The child, however, was born with severe brain damage and requires 24-hour care, which he receives at home.

Patient’s claim The undiagnosed infection caused the fetal injury in utero.

Doctor’s defense The child’s condition was genetic and unrelated to the infection.

Verdict Michigan defense verdict.

Death following endometrial ablation

A 51-year-old woman weighing between 270 and 290 lb was to undergo endometrial ablation to control heavy menstrual bleeding. To increase her hematocrit for the surgery, her internist treated her with iron infusions. The patient told the anesthesiologist who reviewed her medical history and current physical health that, despite her weight, she could climb stairs and walk several blocks without shortness of breath. She rejected spinal anesthesia, and the anesthesiologist decided surgery could proceed safely.

 

About 40 minutes into the surgery, the gynecologist noticed the patent’s leg moving slightly. He then used a nerve stimulator to produce additional movement. Vital signs remained stable. The anesthesiologist administered a paralyzing agent, and the patient’s heart rate decreased 5 minutes later. The patient then died, apparently due to an embolism.

Plaintiff’s claim (1) Inappropriate hormone therapy from the gynecologist caused the need for endometrial ablation. (2) A significant fibroid made her a poor candidate for endometrial ablation. (3) A more thorough workup, including chest radiograph, echocardiogram, pulmonary function test, and arterial blood gas analysis, should have been performed by the anesthesiologist before surgery.

Doctor’s defense (1) There was no negligence involved. (2) Additional tests would not have provided helpful information. (3) Additional tests would not have changed the clinical plan.

Verdict California defense verdict.

Pain, brain injury due to ruptured uterus

A woman now pregnant with her third child—who had delivered her other two children by cesarean section—presented at the hospital with painful contractions 1 week before a scheduled cesarean section. Because her cervix was dilated only 1 cm, it was decided to monitor her cervical dilation until it indicated active labor and then perform a cesarean section.

Her contractions continued. Despite pain medication, she complained of pain at the “10+” level. Fetal monitoring became difficult and an emergency cesarean section was performed. The baby was found floating freely in the abdominal cavity because the uterus had ruptured. He suffered catastrophic injuries caused by a hypoxic–ischemic brain injury and will require assistance in all activities of daily living.

Patient’s claim The cesarean section should have been performed sooner. Also, the complaints of pain should have been investigated further.

Doctor’s defense Waiting for cervical dilation before proceeding to cesarean section was proper.

Verdict $5 million Minnesota settlement; part was used to purchase an annuity, and part was placed in a supplemental needs trust.

Wrong ovary removed? Judge dismisses case

A 42-year-old woman complaining of abdominal pain underwent a cholecystectomy and oophorectomy. During the surgery, the surgeon discovered that the right ovary, which was supposed to be removed, was densely adherent to the pelvic side wall. In order to leave the patient with some ovarian function, he decided to just “loosen” the right ovary and remove the left ovary, which was also diseased. The right ovary was removed in a later surgery.

Patient’s claim She alleged medical battery for removal of the left ovary, to which she had not consented. Also, failure to remove the right ovary required her to undergo additional surgery.

Doctor’s defense Consent for the surgery included authorization to perform medically indicated procedures. By removing the left ovary instead of the right one, the surgeon hoped the patient could maintain some ovarian function.

Verdict $175,000 Tennessee verdict on the battery issue. The trial judge granted the defendant’s motion for JNOV (judgment notwithstanding the verdict) and ruled there could be no medical battery. He found that (1) all experts stated that both ovaries were diseased and needed to be removed, (2) it was medically necessary to remove the left ovary, and (3) the patient had authorized any medically indicated procedure. The court dismissed the case. An appeal was pending.

Baby is entrapped by cervix; no OB to help

A 25-year-old woman presented at the hospital in preterm labor. Her ObGyn was contacted at home and prescribed medications. There was no obstetrician at the hospital when the patient’s water broke and the baby was found to be in a footling breech position. Delivery of the baby—at 23 5/7 weeks and 2 lb—began 5 minutes later, but the head became entrapped by the cervix, leading to asphyxiation. The ObGyn arrived nearly 1 hour later and completed the delivery.

Patient’s claim The mother claimed wrongful death and conscious pain and suffering of the infant, as well as negligent infliction of emotional distress for herself. Also, the ObGyn should have left immediately for the hospital when he was first contacted.

Doctor’s defense The initial information given to him did not indicate that a rapid delivery was about to occur. The second contact came after the infant had died, and the defendant left immediately for the hospital. Also, it was unlikely the infant would have been born alive because of the early gestational age.

Verdict Initially, a $175,000 verdict against the hospital for intentional infliction of emotional distress and a defense verdict for the ObGyn were returned in Illinois. The latter was overturned on appeal, and a second trial returned a $700,000 verdict for emotional distress.

Did infection cause child’s brain damage?

A woman in her 24th week of pregnancy presented with protracted vomiting and other symptoms of hyperemesis gravidarum. Her treating ObGyns ordered a peripherally inserted central line for the infusion of fluid, after which the patient was cared for at home by a home health nurse. Neither the physicians nor the nurse noticed that the central catheter had caused an infection. The patient went into septic shock but recovered. The child, however, was born with severe brain damage and requires 24-hour care, which he receives at home.

Patient’s claim The undiagnosed infection caused the fetal injury in utero.

Doctor’s defense The child’s condition was genetic and unrelated to the infection.

Verdict Michigan defense verdict.

Death following endometrial ablation

A 51-year-old woman weighing between 270 and 290 lb was to undergo endometrial ablation to control heavy menstrual bleeding. To increase her hematocrit for the surgery, her internist treated her with iron infusions. The patient told the anesthesiologist who reviewed her medical history and current physical health that, despite her weight, she could climb stairs and walk several blocks without shortness of breath. She rejected spinal anesthesia, and the anesthesiologist decided surgery could proceed safely.

 

About 40 minutes into the surgery, the gynecologist noticed the patent’s leg moving slightly. He then used a nerve stimulator to produce additional movement. Vital signs remained stable. The anesthesiologist administered a paralyzing agent, and the patient’s heart rate decreased 5 minutes later. The patient then died, apparently due to an embolism.

Plaintiff’s claim (1) Inappropriate hormone therapy from the gynecologist caused the need for endometrial ablation. (2) A significant fibroid made her a poor candidate for endometrial ablation. (3) A more thorough workup, including chest radiograph, echocardiogram, pulmonary function test, and arterial blood gas analysis, should have been performed by the anesthesiologist before surgery.

Doctor’s defense (1) There was no negligence involved. (2) Additional tests would not have provided helpful information. (3) Additional tests would not have changed the clinical plan.

Verdict California defense verdict.

Pain, brain injury due to ruptured uterus

A woman now pregnant with her third child—who had delivered her other two children by cesarean section—presented at the hospital with painful contractions 1 week before a scheduled cesarean section. Because her cervix was dilated only 1 cm, it was decided to monitor her cervical dilation until it indicated active labor and then perform a cesarean section.

Her contractions continued. Despite pain medication, she complained of pain at the “10+” level. Fetal monitoring became difficult and an emergency cesarean section was performed. The baby was found floating freely in the abdominal cavity because the uterus had ruptured. He suffered catastrophic injuries caused by a hypoxic–ischemic brain injury and will require assistance in all activities of daily living.

Patient’s claim The cesarean section should have been performed sooner. Also, the complaints of pain should have been investigated further.

Doctor’s defense Waiting for cervical dilation before proceeding to cesarean section was proper.

Verdict $5 million Minnesota settlement; part was used to purchase an annuity, and part was placed in a supplemental needs trust.

Wrong ovary removed? Judge dismisses case

A 42-year-old woman complaining of abdominal pain underwent a cholecystectomy and oophorectomy. During the surgery, the surgeon discovered that the right ovary, which was supposed to be removed, was densely adherent to the pelvic side wall. In order to leave the patient with some ovarian function, he decided to just “loosen” the right ovary and remove the left ovary, which was also diseased. The right ovary was removed in a later surgery.

Patient’s claim She alleged medical battery for removal of the left ovary, to which she had not consented. Also, failure to remove the right ovary required her to undergo additional surgery.

Doctor’s defense Consent for the surgery included authorization to perform medically indicated procedures. By removing the left ovary instead of the right one, the surgeon hoped the patient could maintain some ovarian function.

Verdict $175,000 Tennessee verdict on the battery issue. The trial judge granted the defendant’s motion for JNOV (judgment notwithstanding the verdict) and ruled there could be no medical battery. He found that (1) all experts stated that both ovaries were diseased and needed to be removed, (2) it was medically necessary to remove the left ovary, and (3) the patient had authorized any medically indicated procedure. The court dismissed the case. An appeal was pending.

Baby is entrapped by cervix; no OB to help

A 25-year-old woman presented at the hospital in preterm labor. Her ObGyn was contacted at home and prescribed medications. There was no obstetrician at the hospital when the patient’s water broke and the baby was found to be in a footling breech position. Delivery of the baby—at 23 5/7 weeks and 2 lb—began 5 minutes later, but the head became entrapped by the cervix, leading to asphyxiation. The ObGyn arrived nearly 1 hour later and completed the delivery.

Patient’s claim The mother claimed wrongful death and conscious pain and suffering of the infant, as well as negligent infliction of emotional distress for herself. Also, the ObGyn should have left immediately for the hospital when he was first contacted.

Doctor’s defense The initial information given to him did not indicate that a rapid delivery was about to occur. The second contact came after the infant had died, and the defendant left immediately for the hospital. Also, it was unlikely the infant would have been born alive because of the early gestational age.

Verdict Initially, a $175,000 verdict against the hospital for intentional infliction of emotional distress and a defense verdict for the ObGyn were returned in Illinois. The latter was overturned on appeal, and a second trial returned a $700,000 verdict for emotional distress.

Did infection cause child’s brain damage?

A woman in her 24th week of pregnancy presented with protracted vomiting and other symptoms of hyperemesis gravidarum. Her treating ObGyns ordered a peripherally inserted central line for the infusion of fluid, after which the patient was cared for at home by a home health nurse. Neither the physicians nor the nurse noticed that the central catheter had caused an infection. The patient went into septic shock but recovered. The child, however, was born with severe brain damage and requires 24-hour care, which he receives at home.

Patient’s claim The undiagnosed infection caused the fetal injury in utero.

Doctor’s defense The child’s condition was genetic and unrelated to the infection.

Verdict Michigan defense verdict.

Death following endometrial ablation

A 51-year-old woman weighing between 270 and 290 lb was to undergo endometrial ablation to control heavy menstrual bleeding. To increase her hematocrit for the surgery, her internist treated her with iron infusions. The patient told the anesthesiologist who reviewed her medical history and current physical health that, despite her weight, she could climb stairs and walk several blocks without shortness of breath. She rejected spinal anesthesia, and the anesthesiologist decided surgery could proceed safely.

 

About 40 minutes into the surgery, the gynecologist noticed the patent’s leg moving slightly. He then used a nerve stimulator to produce additional movement. Vital signs remained stable. The anesthesiologist administered a paralyzing agent, and the patient’s heart rate decreased 5 minutes later. The patient then died, apparently due to an embolism.

Plaintiff’s claim (1) Inappropriate hormone therapy from the gynecologist caused the need for endometrial ablation. (2) A significant fibroid made her a poor candidate for endometrial ablation. (3) A more thorough workup, including chest radiograph, echocardiogram, pulmonary function test, and arterial blood gas analysis, should have been performed by the anesthesiologist before surgery.

Doctor’s defense (1) There was no negligence involved. (2) Additional tests would not have provided helpful information. (3) Additional tests would not have changed the clinical plan.

Verdict California defense verdict.

The author reports no financial relationships relevant to this article.

CASE #1 Suit filed after trauma during home delivery

The facts of the matter. Two parents, whose child was injured during a home delivery, sued the supervising nurse and their obstetrician. An expert witness for the plaintiffs testified that the defendant OB departed from the standard of care under the circumstances. The OB settled the case.

Later, the OB filed a complaint with ACOG’s grievance committee, in which he detailed factual misrepresentations that he claimed were made by the physician–expert witness during that expert’s testimony. (The defendant OB and the expert witness were both members of ACOG.)

The expert witness then sued the OB….

Physician–expert witnesses in medical malpractice litigation have come under increasing scrutiny in recent years. Specifically, many observers worry about “hired guns” who support the testimony of a plaintiff or a defendant in the face (and at the expense) of prevailing medical evidence. That concern is particularly salient in obstetrics, where the cause of a bad outcome that can lead to litigation—such as neurologic birth injury—is, in many cases, still unknown and where malpractice insurance coverage comes at high cost. Many lawsuits often attribute such injury to inappropriate intrapartum management, especially in times of fetal distress, even though leading pediatric neuroepidemiologists have long argued that many of these injuries may be the result of unavoidable antepartum events.¹ On the other hand, improper testimony from expert witnesses for the defense may prevent legitimate cases from proceeding.

Medical societies build a place for complaints

Commentators have encouraged medical societies to create venues in which members can bring complaints about the appropriateness of expert witness testimony by other physicians.² ACOG has established guidelines in its Code of Professional Ethics for members who serve as an expert witness:

…before offering testimony, the obstetrician–gynecologist must thoroughly review the medical facts of the case and all available relevant information…

and, then, during trial:

…the obstetrician–gynecologist testifying as an expert witness must have knowledge and experience about the range of the standard of care and the available scientific evidence for the condition in question during the relevant time and must respond accurately to questions about the range of the standard of care and the available scientific evidence.³

If a member of ACOG considers a fellow member to have violated one of these, or any other, provision of the code, and any litigation has ended, a complaint can be initiated before its grievance committee.

A federal court of appeals recently supported the ability of a professional society to discipline members who violate the society’s code of conduct,⁴ but such processes can still be subject to judicial review.

Here are three cases that describe professional societies’ role in the oversight of physician–expert witnesses. The cases also reveal how physicians use those review systems and how expert witnesses attempt to rebuff complaints made against them.

CASE #1 continued Birth trauma

The controversy. As described, the physician–expert witness sued the defendant OB after he filed a complaint with ACOG against that expert witness. The suit alleged:

• interference with business contracts— he claimed that ACOG’s grievance committee procedure impaired his ability to obtain more expert witness-related work
  
• defamation—the complaint damaged his reputation before his peers in ACOG.
  

The expert witness suggested that it would have been more proper for the defendant OB to forward the complaint to the trial court in which the malpractice action took place or to his employer.

What was the outcome? A federal district court ruled for the defendant OB. It found that the OB’s statement to the ACOG grievance committee was not, for a number of reasons, defamatory:

• The complaint constituted a long statement of the obstetrician’s opinions that was supported by a number of underlying facts
  
• The complaint was submitted to the grievance committee as part of ACOG’s established procedure and was not communicated to other third parties; no apparent effort to intentionally harm the reputation of the expert witness could be inferred.
  

 

The court also dismissed the charge of interference with business contracts because, in its jurisdiction, such a claim required an intentionally malicious motive.

To the contrary, according to the court, the defendant OB “limited himself to advancing a confidential complaint to a peer group in which both parties were members, which might have remained confidential but for” the present litigation.⁵

CASE #2 Revision of a ventricular shunt

The facts of the matter. A lawsuit charged two neurosurgeons with malpractice in managing a ventricular shunt in a patient who had hydrocephalus. The plaintiff’s expert witness, a neurosurgeon, testified in a deposition that:

• the standard of care for managing a patient after a surgical shunt revision wasn’t met
  
• communication between the two neurosurgeons was faulty
  
• he “had difficulty believing” statements made by one of the defendants in the medical chart after the patient’s health declined.
  

After the case, a complaint was brought by one defendant to the North Carolina Medical Board (the licensing authority in the state where the expert witness was licensed) that charged the expert witness with unprofessional conduct for misrepresenting the applicable standard of care and testifying, without corroborating evidence, that a physician had falsified a medical record.

The controversy. At a hearing, the medical board agreed that the expert witness engaged in unprofessional conduct on all counts. It revoked his medical license.

The expert witness appealed the decision to the local state court.

That court found no basis for disciplining the expert for his testimony about the applicable standard of care or the communication between the neurosurgeons. It did uphold the charge of testifying improperly that the defendant had falsified medical records.

The medical board altered its punishment, suspending the expert witness’s medical license for 1 year. The expert witness then appealed this suspension to the North Carolina Court of Appeals.

What was the outcome? The appeals court concluded, after “careful review of the record,” that “the substantial record of evidence does not permit an inference that [the expert witness] made an entirely unfounded statement” about the medical record.

The court held that the expert witness’s opinions were based on a review of multiple aspects of the case, including imaging results and reports of the patient’s behavior. According to the court, “these observations provided a good faith evidentiary basis” for the expert’s opinion. The court reversed the medical board’s suspension of the expert witness’s license.⁶

CASE #3 Poor care after CVA

The facts of the matter. In a medical malpractice action, a group of physicians were charged with negligence in their care of an elderly diabetic patient who suffered a cerebrovascular accident. During the trial, the plaintiff’s expert witness testified that the defendant physicians’ actions did not meet the standard of care. Ultimately, the case was decided in favor of the defendants.

Afterward, the defendant physicians forwarded a complaint to their state physicians’ association (of which the expert witness was not a member), claiming that the expert witness’s testimony was inappropriate and recommending disciplinary action to prevent the profession “from being terrorized by similar experts.”

The controversy. The expert witness sued the defendants and the state physicians’ association to stop the grievance process, claiming defamation, interference with contract, conspiracy, and other counts. The defendant physicians and the physicians’ association countered that the lawsuit should be dismissed because state and federal laws grant immunity to members of medical peer review committees when there is no evidence of intentional fraud.

The trial court agreed with the defendant physicians. The expert witness appealed.

What was the outcome? The court of appeals overturned the trial court’s opinion. It found that state and federal laws do not clearly provide immunity to the defendants.

The court held that the statutes protecting peer review committees were constructed to help evaluate and improve “the quality of health care rendered by providers of health services”—protection that does not necessarily extend to testimony in a malpractice case. The appeals court also found that the state medical association is not afforded immunity “in its role as an examiner of the quality of a non-member physician’s judicial testimony.”

 

Ultimately, the court determined that the case could go forward to assess whether there was any validity to the charges made by the expert witness.⁷

Tips on filing a complaint

Oversight of physician–expert witnesses is becoming more prevalent among professional specialty societies, state medical societies, and state medical licensing boards. Depending on the region, state, or locale, a physician who notes inappropriate testimony by an expert witness—on behalf of a plaintiff or defendant—may have a better opportunity now to file a complaint with a professional grievance committee established in a pertinent venue.

The cases here teach important lessons for physicians considering bringing a complaint to a grievance committee:

• A physician who files a complaint should be certain not to make unsupported claims or inflammatory statements, or breach any confidentiality provisions in the grievance process
  
• Complainants’ actions should be well documented because they may be subject to judicial review later
  
• Physicians should refrain from bringing a complaint against an expert witness to any organization with which that witness is not affiliated because a court might view the role of the organization in that situation differently
  
• An expert witness who believes that he (or she) has been improperly accused of wrongdoing might not be able to appeal the decision of a professional society to an external court, but he can seek judicial review of actions that affect his medical license and may be able to bring a personal lawsuit in extreme cases of illegal accusation.
  

For groups managing such a review process:

• The grievance process should be organized to avoid favoring either party; it should allow both sides to present their opinions and supporting evidence before a set of impartial observers
  
• An appropriate opportunity should be available for internal appeal
  
• Although a professional conduct committee can regulate expert witness-related work of its members, that authority may not extend to non-members.
  

The author reports no financial relationships relevant to this article.

CASE #1 Suit filed after trauma during home delivery

The facts of the matter. Two parents, whose child was injured during a home delivery, sued the supervising nurse and their obstetrician. An expert witness for the plaintiffs testified that the defendant OB departed from the standard of care under the circumstances. The OB settled the case.

Later, the OB filed a complaint with ACOG’s grievance committee, in which he detailed factual misrepresentations that he claimed were made by the physician–expert witness during that expert’s testimony. (The defendant OB and the expert witness were both members of ACOG.)

The expert witness then sued the OB….

Physician–expert witnesses in medical malpractice litigation have come under increasing scrutiny in recent years. Specifically, many observers worry about “hired guns” who support the testimony of a plaintiff or a defendant in the face (and at the expense) of prevailing medical evidence. That concern is particularly salient in obstetrics, where the cause of a bad outcome that can lead to litigation—such as neurologic birth injury—is, in many cases, still unknown and where malpractice insurance coverage comes at high cost. Many lawsuits often attribute such injury to inappropriate intrapartum management, especially in times of fetal distress, even though leading pediatric neuroepidemiologists have long argued that many of these injuries may be the result of unavoidable antepartum events.¹ On the other hand, improper testimony from expert witnesses for the defense may prevent legitimate cases from proceeding.

Medical societies build a place for complaints

Commentators have encouraged medical societies to create venues in which members can bring complaints about the appropriateness of expert witness testimony by other physicians.² ACOG has established guidelines in its Code of Professional Ethics for members who serve as an expert witness:

…before offering testimony, the obstetrician–gynecologist must thoroughly review the medical facts of the case and all available relevant information…

and, then, during trial:

…the obstetrician–gynecologist testifying as an expert witness must have knowledge and experience about the range of the standard of care and the available scientific evidence for the condition in question during the relevant time and must respond accurately to questions about the range of the standard of care and the available scientific evidence.³

If a member of ACOG considers a fellow member to have violated one of these, or any other, provision of the code, and any litigation has ended, a complaint can be initiated before its grievance committee.

A federal court of appeals recently supported the ability of a professional society to discipline members who violate the society’s code of conduct,⁴ but such processes can still be subject to judicial review.

Here are three cases that describe professional societies’ role in the oversight of physician–expert witnesses. The cases also reveal how physicians use those review systems and how expert witnesses attempt to rebuff complaints made against them.

CASE #1 continued Birth trauma

The controversy. As described, the physician–expert witness sued the defendant OB after he filed a complaint with ACOG against that expert witness. The suit alleged:

• interference with business contracts— he claimed that ACOG’s grievance committee procedure impaired his ability to obtain more expert witness-related work
  
• defamation—the complaint damaged his reputation before his peers in ACOG.
  

The expert witness suggested that it would have been more proper for the defendant OB to forward the complaint to the trial court in which the malpractice action took place or to his employer.

What was the outcome? A federal district court ruled for the defendant OB. It found that the OB’s statement to the ACOG grievance committee was not, for a number of reasons, defamatory:

• The complaint constituted a long statement of the obstetrician’s opinions that was supported by a number of underlying facts
  
• The complaint was submitted to the grievance committee as part of ACOG’s established procedure and was not communicated to other third parties; no apparent effort to intentionally harm the reputation of the expert witness could be inferred.
  

 

The court also dismissed the charge of interference with business contracts because, in its jurisdiction, such a claim required an intentionally malicious motive.

To the contrary, according to the court, the defendant OB “limited himself to advancing a confidential complaint to a peer group in which both parties were members, which might have remained confidential but for” the present litigation.⁵

CASE #2 Revision of a ventricular shunt

The facts of the matter. A lawsuit charged two neurosurgeons with malpractice in managing a ventricular shunt in a patient who had hydrocephalus. The plaintiff’s expert witness, a neurosurgeon, testified in a deposition that:

• the standard of care for managing a patient after a surgical shunt revision wasn’t met
  
• communication between the two neurosurgeons was faulty
  
• he “had difficulty believing” statements made by one of the defendants in the medical chart after the patient’s health declined.
  

After the case, a complaint was brought by one defendant to the North Carolina Medical Board (the licensing authority in the state where the expert witness was licensed) that charged the expert witness with unprofessional conduct for misrepresenting the applicable standard of care and testifying, without corroborating evidence, that a physician had falsified a medical record.

The controversy. At a hearing, the medical board agreed that the expert witness engaged in unprofessional conduct on all counts. It revoked his medical license.

The expert witness appealed the decision to the local state court.

That court found no basis for disciplining the expert for his testimony about the applicable standard of care or the communication between the neurosurgeons. It did uphold the charge of testifying improperly that the defendant had falsified medical records.

The medical board altered its punishment, suspending the expert witness’s medical license for 1 year. The expert witness then appealed this suspension to the North Carolina Court of Appeals.

What was the outcome? The appeals court concluded, after “careful review of the record,” that “the substantial record of evidence does not permit an inference that [the expert witness] made an entirely unfounded statement” about the medical record.

The court held that the expert witness’s opinions were based on a review of multiple aspects of the case, including imaging results and reports of the patient’s behavior. According to the court, “these observations provided a good faith evidentiary basis” for the expert’s opinion. The court reversed the medical board’s suspension of the expert witness’s license.⁶

CASE #3 Poor care after CVA

The facts of the matter. In a medical malpractice action, a group of physicians were charged with negligence in their care of an elderly diabetic patient who suffered a cerebrovascular accident. During the trial, the plaintiff’s expert witness testified that the defendant physicians’ actions did not meet the standard of care. Ultimately, the case was decided in favor of the defendants.

Afterward, the defendant physicians forwarded a complaint to their state physicians’ association (of which the expert witness was not a member), claiming that the expert witness’s testimony was inappropriate and recommending disciplinary action to prevent the profession “from being terrorized by similar experts.”

The controversy. The expert witness sued the defendants and the state physicians’ association to stop the grievance process, claiming defamation, interference with contract, conspiracy, and other counts. The defendant physicians and the physicians’ association countered that the lawsuit should be dismissed because state and federal laws grant immunity to members of medical peer review committees when there is no evidence of intentional fraud.

The trial court agreed with the defendant physicians. The expert witness appealed.

What was the outcome? The court of appeals overturned the trial court’s opinion. It found that state and federal laws do not clearly provide immunity to the defendants.

The court held that the statutes protecting peer review committees were constructed to help evaluate and improve “the quality of health care rendered by providers of health services”—protection that does not necessarily extend to testimony in a malpractice case. The appeals court also found that the state medical association is not afforded immunity “in its role as an examiner of the quality of a non-member physician’s judicial testimony.”

 

Ultimately, the court determined that the case could go forward to assess whether there was any validity to the charges made by the expert witness.⁷

Tips on filing a complaint

Oversight of physician–expert witnesses is becoming more prevalent among professional specialty societies, state medical societies, and state medical licensing boards. Depending on the region, state, or locale, a physician who notes inappropriate testimony by an expert witness—on behalf of a plaintiff or defendant—may have a better opportunity now to file a complaint with a professional grievance committee established in a pertinent venue.

The cases here teach important lessons for physicians considering bringing a complaint to a grievance committee:

• A physician who files a complaint should be certain not to make unsupported claims or inflammatory statements, or breach any confidentiality provisions in the grievance process
  
• Complainants’ actions should be well documented because they may be subject to judicial review later
  
• Physicians should refrain from bringing a complaint against an expert witness to any organization with which that witness is not affiliated because a court might view the role of the organization in that situation differently
  
• An expert witness who believes that he (or she) has been improperly accused of wrongdoing might not be able to appeal the decision of a professional society to an external court, but he can seek judicial review of actions that affect his medical license and may be able to bring a personal lawsuit in extreme cases of illegal accusation.
  

For groups managing such a review process:

• The grievance process should be organized to avoid favoring either party; it should allow both sides to present their opinions and supporting evidence before a set of impartial observers
  
• An appropriate opportunity should be available for internal appeal
  
• Although a professional conduct committee can regulate expert witness-related work of its members, that authority may not extend to non-members.
  

The author reports no financial relationships relevant to this article.

CASE #1 Suit filed after trauma during home delivery

The facts of the matter. Two parents, whose child was injured during a home delivery, sued the supervising nurse and their obstetrician. An expert witness for the plaintiffs testified that the defendant OB departed from the standard of care under the circumstances. The OB settled the case.

Later, the OB filed a complaint with ACOG’s grievance committee, in which he detailed factual misrepresentations that he claimed were made by the physician–expert witness during that expert’s testimony. (The defendant OB and the expert witness were both members of ACOG.)

The expert witness then sued the OB….

Physician–expert witnesses in medical malpractice litigation have come under increasing scrutiny in recent years. Specifically, many observers worry about “hired guns” who support the testimony of a plaintiff or a defendant in the face (and at the expense) of prevailing medical evidence. That concern is particularly salient in obstetrics, where the cause of a bad outcome that can lead to litigation—such as neurologic birth injury—is, in many cases, still unknown and where malpractice insurance coverage comes at high cost. Many lawsuits often attribute such injury to inappropriate intrapartum management, especially in times of fetal distress, even though leading pediatric neuroepidemiologists have long argued that many of these injuries may be the result of unavoidable antepartum events.¹ On the other hand, improper testimony from expert witnesses for the defense may prevent legitimate cases from proceeding.

Medical societies build a place for complaints

Commentators have encouraged medical societies to create venues in which members can bring complaints about the appropriateness of expert witness testimony by other physicians.² ACOG has established guidelines in its Code of Professional Ethics for members who serve as an expert witness:

…before offering testimony, the obstetrician–gynecologist must thoroughly review the medical facts of the case and all available relevant information…

and, then, during trial:

…the obstetrician–gynecologist testifying as an expert witness must have knowledge and experience about the range of the standard of care and the available scientific evidence for the condition in question during the relevant time and must respond accurately to questions about the range of the standard of care and the available scientific evidence.³

If a member of ACOG considers a fellow member to have violated one of these, or any other, provision of the code, and any litigation has ended, a complaint can be initiated before its grievance committee.

A federal court of appeals recently supported the ability of a professional society to discipline members who violate the society’s code of conduct,⁴ but such processes can still be subject to judicial review.

Here are three cases that describe professional societies’ role in the oversight of physician–expert witnesses. The cases also reveal how physicians use those review systems and how expert witnesses attempt to rebuff complaints made against them.

CASE #1 continued Birth trauma

The controversy. As described, the physician–expert witness sued the defendant OB after he filed a complaint with ACOG against that expert witness. The suit alleged:

• interference with business contracts— he claimed that ACOG’s grievance committee procedure impaired his ability to obtain more expert witness-related work
  
• defamation—the complaint damaged his reputation before his peers in ACOG.
  

The expert witness suggested that it would have been more proper for the defendant OB to forward the complaint to the trial court in which the malpractice action took place or to his employer.

What was the outcome? A federal district court ruled for the defendant OB. It found that the OB’s statement to the ACOG grievance committee was not, for a number of reasons, defamatory:

• The complaint constituted a long statement of the obstetrician’s opinions that was supported by a number of underlying facts
  
• The complaint was submitted to the grievance committee as part of ACOG’s established procedure and was not communicated to other third parties; no apparent effort to intentionally harm the reputation of the expert witness could be inferred.
  

 

The court also dismissed the charge of interference with business contracts because, in its jurisdiction, such a claim required an intentionally malicious motive.

To the contrary, according to the court, the defendant OB “limited himself to advancing a confidential complaint to a peer group in which both parties were members, which might have remained confidential but for” the present litigation.⁵

CASE #2 Revision of a ventricular shunt

The facts of the matter. A lawsuit charged two neurosurgeons with malpractice in managing a ventricular shunt in a patient who had hydrocephalus. The plaintiff’s expert witness, a neurosurgeon, testified in a deposition that:

• the standard of care for managing a patient after a surgical shunt revision wasn’t met
  
• communication between the two neurosurgeons was faulty
  
• he “had difficulty believing” statements made by one of the defendants in the medical chart after the patient’s health declined.
  

After the case, a complaint was brought by one defendant to the North Carolina Medical Board (the licensing authority in the state where the expert witness was licensed) that charged the expert witness with unprofessional conduct for misrepresenting the applicable standard of care and testifying, without corroborating evidence, that a physician had falsified a medical record.

The controversy. At a hearing, the medical board agreed that the expert witness engaged in unprofessional conduct on all counts. It revoked his medical license.

The expert witness appealed the decision to the local state court.

That court found no basis for disciplining the expert for his testimony about the applicable standard of care or the communication between the neurosurgeons. It did uphold the charge of testifying improperly that the defendant had falsified medical records.

The medical board altered its punishment, suspending the expert witness’s medical license for 1 year. The expert witness then appealed this suspension to the North Carolina Court of Appeals.

What was the outcome? The appeals court concluded, after “careful review of the record,” that “the substantial record of evidence does not permit an inference that [the expert witness] made an entirely unfounded statement” about the medical record.

The court held that the expert witness’s opinions were based on a review of multiple aspects of the case, including imaging results and reports of the patient’s behavior. According to the court, “these observations provided a good faith evidentiary basis” for the expert’s opinion. The court reversed the medical board’s suspension of the expert witness’s license.⁶

CASE #3 Poor care after CVA

The facts of the matter. In a medical malpractice action, a group of physicians were charged with negligence in their care of an elderly diabetic patient who suffered a cerebrovascular accident. During the trial, the plaintiff’s expert witness testified that the defendant physicians’ actions did not meet the standard of care. Ultimately, the case was decided in favor of the defendants.

Afterward, the defendant physicians forwarded a complaint to their state physicians’ association (of which the expert witness was not a member), claiming that the expert witness’s testimony was inappropriate and recommending disciplinary action to prevent the profession “from being terrorized by similar experts.”

The controversy. The expert witness sued the defendants and the state physicians’ association to stop the grievance process, claiming defamation, interference with contract, conspiracy, and other counts. The defendant physicians and the physicians’ association countered that the lawsuit should be dismissed because state and federal laws grant immunity to members of medical peer review committees when there is no evidence of intentional fraud.

The trial court agreed with the defendant physicians. The expert witness appealed.

What was the outcome? The court of appeals overturned the trial court’s opinion. It found that state and federal laws do not clearly provide immunity to the defendants.

The court held that the statutes protecting peer review committees were constructed to help evaluate and improve “the quality of health care rendered by providers of health services”—protection that does not necessarily extend to testimony in a malpractice case. The appeals court also found that the state medical association is not afforded immunity “in its role as an examiner of the quality of a non-member physician’s judicial testimony.”

 

Ultimately, the court determined that the case could go forward to assess whether there was any validity to the charges made by the expert witness.⁷

Tips on filing a complaint

Oversight of physician–expert witnesses is becoming more prevalent among professional specialty societies, state medical societies, and state medical licensing boards. Depending on the region, state, or locale, a physician who notes inappropriate testimony by an expert witness—on behalf of a plaintiff or defendant—may have a better opportunity now to file a complaint with a professional grievance committee established in a pertinent venue.

The cases here teach important lessons for physicians considering bringing a complaint to a grievance committee:

• A physician who files a complaint should be certain not to make unsupported claims or inflammatory statements, or breach any confidentiality provisions in the grievance process
  
• Complainants’ actions should be well documented because they may be subject to judicial review later
  
• Physicians should refrain from bringing a complaint against an expert witness to any organization with which that witness is not affiliated because a court might view the role of the organization in that situation differently
  
• An expert witness who believes that he (or she) has been improperly accused of wrongdoing might not be able to appeal the decision of a professional society to an external court, but he can seek judicial review of actions that affect his medical license and may be able to bring a personal lawsuit in extreme cases of illegal accusation.
  

For groups managing such a review process:

• The grievance process should be organized to avoid favoring either party; it should allow both sides to present their opinions and supporting evidence before a set of impartial observers
  
• An appropriate opportunity should be available for internal appeal
  
• Although a professional conduct committee can regulate expert witness-related work of its members, that authority may not extend to non-members.
  

[email protected]

Accepting credit cards in your office—both for capturing charges immediately at the time of service and for billing residual balances—has huge advantages. But how do you arrange for credit card processing at your office at the best possible price?

Several processing services are available. Which one you choose will depend not only on cost, but on what specific services you need.

It will also depend on what cards you wish to take. MasterCard and Visa require you to establish a merchant account through an intermediary, but American Express and Discover give you the option of applying directly to them.

Your current bank is probably the easiest intermediary to turn to, but many offer credit card services as part of a package that will include other merchant services you may or may not need.

Another option is an independent sales organization (ISO), which is essentially a broker who represents one or more card processors. An ISO will set up and serve your office but, like a bank, will not do the actual processing itself: It outsources that job to a third-party credit card processor.

If your state or city has a small business and trade association, ask if it offers credit card processing at discount prices.

Consider only processors that provide excellent customer service. Call colleagues and ask which banks or processing companies they use, and ask each candidate company for a list of the medical offices they already serve. Call some of those offices and ask questions: How difficult is it to reach customer support? Are problems handled quickly? How does the provider deal with “chargebacks” (charges later disputed by the cardholder)?

Question the processors about their level of support: Are their phones staffed 24 hours a day? Do they charge for support, either monthly or per call?

Compare prices carefully. Some providers charge application fees of up to $200, and these may be nonrefundable even if you change your mind. You may also be asked to pay setup or account activation fees, Internet processing fees, customer support fees, etc. As always, be sure you have a complete understanding of all the charges you will incur before making your decision and signing a contract.

The principal equipment cost will be for the terminal, which is the machine used to swipe cards. Basic terminals typically cost between $150 and $300; terminals with printers are $200 to $600; and wireless terminals can run from $600 to $1,000. Leases start at $35 a month and rise from there, depending on the sophistication of the terminal and the length of the lease.

The primary ongoing fee is the “discount rate” or “swipe rate,” a percentage the provider takes off the top of each transaction. Ask about reduced rates for high volume, or for total receipts higher than a specified amount per month.

Watch out for extra charges, such as “per transaction” fees and monthly transaction summary preparation fees. Such fees may be negotiable or even waivable, although the company may not volunteer that information.

Beware of long-term leases with early-termination fees. If you are unhappy with your service, you don't want to have to pay a hefty charge for the privilege of changing companies. Also watch out for a trick borrowed from the consumer credit card industry: low introductory rates that increase significantly after a few months or a year.

Find out how long it takes for receipts to be deposited to your account, as this can vary widely. A marginally lower swipe rate won't be worth it if you don't have the use of your money for months.

Finally, if you're not using a bank or financial company you know well, make sure the company is legitimate. Contact the Better Business Bureau to check its status. And if the company is based primarily on the Internet, make sure that you get a physical address and phone number, plus recommendations from existing clients.

[email protected]

Accepting credit cards in your office—both for capturing charges immediately at the time of service and for billing residual balances—has huge advantages. But how do you arrange for credit card processing at your office at the best possible price?

Several processing services are available. Which one you choose will depend not only on cost, but on what specific services you need.

It will also depend on what cards you wish to take. MasterCard and Visa require you to establish a merchant account through an intermediary, but American Express and Discover give you the option of applying directly to them.

Your current bank is probably the easiest intermediary to turn to, but many offer credit card services as part of a package that will include other merchant services you may or may not need.

Another option is an independent sales organization (ISO), which is essentially a broker who represents one or more card processors. An ISO will set up and serve your office but, like a bank, will not do the actual processing itself: It outsources that job to a third-party credit card processor.

If your state or city has a small business and trade association, ask if it offers credit card processing at discount prices.

Consider only processors that provide excellent customer service. Call colleagues and ask which banks or processing companies they use, and ask each candidate company for a list of the medical offices they already serve. Call some of those offices and ask questions: How difficult is it to reach customer support? Are problems handled quickly? How does the provider deal with “chargebacks” (charges later disputed by the cardholder)?

Question the processors about their level of support: Are their phones staffed 24 hours a day? Do they charge for support, either monthly or per call?

Compare prices carefully. Some providers charge application fees of up to $200, and these may be nonrefundable even if you change your mind. You may also be asked to pay setup or account activation fees, Internet processing fees, customer support fees, etc. As always, be sure you have a complete understanding of all the charges you will incur before making your decision and signing a contract.

The principal equipment cost will be for the terminal, which is the machine used to swipe cards. Basic terminals typically cost between $150 and $300; terminals with printers are $200 to $600; and wireless terminals can run from $600 to $1,000. Leases start at $35 a month and rise from there, depending on the sophistication of the terminal and the length of the lease.

The primary ongoing fee is the “discount rate” or “swipe rate,” a percentage the provider takes off the top of each transaction. Ask about reduced rates for high volume, or for total receipts higher than a specified amount per month.

Watch out for extra charges, such as “per transaction” fees and monthly transaction summary preparation fees. Such fees may be negotiable or even waivable, although the company may not volunteer that information.

Beware of long-term leases with early-termination fees. If you are unhappy with your service, you don't want to have to pay a hefty charge for the privilege of changing companies. Also watch out for a trick borrowed from the consumer credit card industry: low introductory rates that increase significantly after a few months or a year.

Find out how long it takes for receipts to be deposited to your account, as this can vary widely. A marginally lower swipe rate won't be worth it if you don't have the use of your money for months.

Finally, if you're not using a bank or financial company you know well, make sure the company is legitimate. Contact the Better Business Bureau to check its status. And if the company is based primarily on the Internet, make sure that you get a physical address and phone number, plus recommendations from existing clients.

[email protected]

Accepting credit cards in your office—both for capturing charges immediately at the time of service and for billing residual balances—has huge advantages. But how do you arrange for credit card processing at your office at the best possible price?

Several processing services are available. Which one you choose will depend not only on cost, but on what specific services you need.

It will also depend on what cards you wish to take. MasterCard and Visa require you to establish a merchant account through an intermediary, but American Express and Discover give you the option of applying directly to them.

Your current bank is probably the easiest intermediary to turn to, but many offer credit card services as part of a package that will include other merchant services you may or may not need.

Another option is an independent sales organization (ISO), which is essentially a broker who represents one or more card processors. An ISO will set up and serve your office but, like a bank, will not do the actual processing itself: It outsources that job to a third-party credit card processor.

If your state or city has a small business and trade association, ask if it offers credit card processing at discount prices.

Consider only processors that provide excellent customer service. Call colleagues and ask which banks or processing companies they use, and ask each candidate company for a list of the medical offices they already serve. Call some of those offices and ask questions: How difficult is it to reach customer support? Are problems handled quickly? How does the provider deal with “chargebacks” (charges later disputed by the cardholder)?

Question the processors about their level of support: Are their phones staffed 24 hours a day? Do they charge for support, either monthly or per call?

Compare prices carefully. Some providers charge application fees of up to $200, and these may be nonrefundable even if you change your mind. You may also be asked to pay setup or account activation fees, Internet processing fees, customer support fees, etc. As always, be sure you have a complete understanding of all the charges you will incur before making your decision and signing a contract.

The principal equipment cost will be for the terminal, which is the machine used to swipe cards. Basic terminals typically cost between $150 and $300; terminals with printers are $200 to $600; and wireless terminals can run from $600 to $1,000. Leases start at $35 a month and rise from there, depending on the sophistication of the terminal and the length of the lease.

The primary ongoing fee is the “discount rate” or “swipe rate,” a percentage the provider takes off the top of each transaction. Ask about reduced rates for high volume, or for total receipts higher than a specified amount per month.

Watch out for extra charges, such as “per transaction” fees and monthly transaction summary preparation fees. Such fees may be negotiable or even waivable, although the company may not volunteer that information.

Beware of long-term leases with early-termination fees. If you are unhappy with your service, you don't want to have to pay a hefty charge for the privilege of changing companies. Also watch out for a trick borrowed from the consumer credit card industry: low introductory rates that increase significantly after a few months or a year.

Find out how long it takes for receipts to be deposited to your account, as this can vary widely. A marginally lower swipe rate won't be worth it if you don't have the use of your money for months.

Finally, if you're not using a bank or financial company you know well, make sure the company is legitimate. Contact the Better Business Bureau to check its status. And if the company is based primarily on the Internet, make sure that you get a physical address and phone number, plus recommendations from existing clients.

Last month, I outlined the advantages of accepting credit cards in your office, both for capturing charges immediately at the time of service and for billing residual balances which come in later. (If you missed that column, you can find it at www.skinandallergynews.com

This month, I'll discuss the nuts and bolts of acquiring credit card processing for your office at the best possible price.

Several sources of processing services are available. Which you choose will depend not only on cost, but on which specific services you need.

It will also depend on which cards you wish to take. MasterCard and Visa require you to establish a merchant account through an intermediary, but American Express and Discover give you the option of applying directly to them.

Your current bank is probably the easiest intermediary to turn to, but many offer credit card services as part of a package that will include other merchant services you may or may not need.

Another option is an independent sales organization (ISO), which is essentially a broker who represents one or more card processors. An ISO will set up and service your office but, like a bank, will not do the actual processing itself: It outsources that job to a third-party credit card processor.

If your state or city has a small business and trade association, ask if it offers credit card processing at discount prices. This is a particularly good option in many areas.

Consider only processors that provide excellent customer service. Call colleagues and ask which banks or processing companies they use, and ask each candidate company for a list of the medical offices they already service. Call some of those offices and ask hard questions: How difficult is it to reach customer support? Are problems handled quickly? How does the provider deal with “chargebacks” (charges later disputed by the cardholder)?

Also question the processors closely about their level of support: Do they have phones staffed 24 hours a day? Do they charge for support, either monthly or per call?

Compare prices carefully. Some providers charge application fees of up to $200, and they may be nonrefundable, even if you change your mind. You may also be asked to pay setup or account activation fees, Internet processing fees, customer support fees, etc. As always, be sure you have a complete understanding of all the charges you will incur before making your decision and signing a contract.

The principal equipment cost will be for the terminal, the machine used to swipe cards. Basic terminals typically cost between $150 and $300, terminals with printers are $200 to $600, and wireless terminals can run from $600 to $1,000. Leases start at $35 a month and rise depending on the sophistication of the terminal and the length of the lease.

The primary ongoing fee is the “discount rate” or “swipe rate,” a percentage the provider takes off the top of each transaction. Some processors charge different rates for in-person transactions and for mail/telephone/Internet transactions. If you plan to sell products via mail order on your Web site, you'll want to ask about that. Ask about reduced rates for high volume or for total receipts higher than a specified amount per month.

Watch out for extra charges, such as “per transaction” fees and monthly transaction summary preparation fees. Such fees may be negotiable or even waivable, although the company may not volunteer that information.

Beware of long-term leases with early termination fees. If you are unhappy with your service, you don't want to have to pay a hefty charge for the privilege of changing companies. Also watch out for a trick borrowed from the consumer credit card industry: low introductory rates that increase significantly after a few months or a year.

Find out how long it takes for receipts to be deposited to your account, since this can vary widely. A marginally lower swipe rate won't be worth it if you don't have the use of your money for months after the transaction.

If your office will be selling merchandise over the Internet, you will need either a secure server that can encrypt credit card information or a processing company that provides secure ordering, or (preferably) both.

Finally, if you are not using a bank or financial company you know well, make sure it is legitimate. Contact the Better Business Bureau to check the company's status. And if the company is based primarily on the Internet, as happens more and more frequently, make sure you get a physical address and phone number, plus recommendations from existing clients.

Last month, I outlined the advantages of accepting credit cards in your office, both for capturing charges immediately at the time of service and for billing residual balances which come in later. (If you missed that column, you can find it at www.skinandallergynews.com

This month, I'll discuss the nuts and bolts of acquiring credit card processing for your office at the best possible price.

Several sources of processing services are available. Which you choose will depend not only on cost, but on which specific services you need.

It will also depend on which cards you wish to take. MasterCard and Visa require you to establish a merchant account through an intermediary, but American Express and Discover give you the option of applying directly to them.

Your current bank is probably the easiest intermediary to turn to, but many offer credit card services as part of a package that will include other merchant services you may or may not need.

Another option is an independent sales organization (ISO), which is essentially a broker who represents one or more card processors. An ISO will set up and service your office but, like a bank, will not do the actual processing itself: It outsources that job to a third-party credit card processor.

If your state or city has a small business and trade association, ask if it offers credit card processing at discount prices. This is a particularly good option in many areas.

Consider only processors that provide excellent customer service. Call colleagues and ask which banks or processing companies they use, and ask each candidate company for a list of the medical offices they already service. Call some of those offices and ask hard questions: How difficult is it to reach customer support? Are problems handled quickly? How does the provider deal with “chargebacks” (charges later disputed by the cardholder)?

Also question the processors closely about their level of support: Do they have phones staffed 24 hours a day? Do they charge for support, either monthly or per call?

Compare prices carefully. Some providers charge application fees of up to $200, and they may be nonrefundable, even if you change your mind. You may also be asked to pay setup or account activation fees, Internet processing fees, customer support fees, etc. As always, be sure you have a complete understanding of all the charges you will incur before making your decision and signing a contract.

The principal equipment cost will be for the terminal, the machine used to swipe cards. Basic terminals typically cost between $150 and $300, terminals with printers are $200 to $600, and wireless terminals can run from $600 to $1,000. Leases start at $35 a month and rise depending on the sophistication of the terminal and the length of the lease.

The primary ongoing fee is the “discount rate” or “swipe rate,” a percentage the provider takes off the top of each transaction. Some processors charge different rates for in-person transactions and for mail/telephone/Internet transactions. If you plan to sell products via mail order on your Web site, you'll want to ask about that. Ask about reduced rates for high volume or for total receipts higher than a specified amount per month.

Watch out for extra charges, such as “per transaction” fees and monthly transaction summary preparation fees. Such fees may be negotiable or even waivable, although the company may not volunteer that information.

Beware of long-term leases with early termination fees. If you are unhappy with your service, you don't want to have to pay a hefty charge for the privilege of changing companies. Also watch out for a trick borrowed from the consumer credit card industry: low introductory rates that increase significantly after a few months or a year.

Find out how long it takes for receipts to be deposited to your account, since this can vary widely. A marginally lower swipe rate won't be worth it if you don't have the use of your money for months after the transaction.

If your office will be selling merchandise over the Internet, you will need either a secure server that can encrypt credit card information or a processing company that provides secure ordering, or (preferably) both.

Finally, if you are not using a bank or financial company you know well, make sure it is legitimate. Contact the Better Business Bureau to check the company's status. And if the company is based primarily on the Internet, as happens more and more frequently, make sure you get a physical address and phone number, plus recommendations from existing clients.

Last month, I outlined the advantages of accepting credit cards in your office, both for capturing charges immediately at the time of service and for billing residual balances which come in later. (If you missed that column, you can find it at www.skinandallergynews.com

This month, I'll discuss the nuts and bolts of acquiring credit card processing for your office at the best possible price.

Several sources of processing services are available. Which you choose will depend not only on cost, but on which specific services you need.

It will also depend on which cards you wish to take. MasterCard and Visa require you to establish a merchant account through an intermediary, but American Express and Discover give you the option of applying directly to them.

Your current bank is probably the easiest intermediary to turn to, but many offer credit card services as part of a package that will include other merchant services you may or may not need.

Another option is an independent sales organization (ISO), which is essentially a broker who represents one or more card processors. An ISO will set up and service your office but, like a bank, will not do the actual processing itself: It outsources that job to a third-party credit card processor.

If your state or city has a small business and trade association, ask if it offers credit card processing at discount prices. This is a particularly good option in many areas.

Consider only processors that provide excellent customer service. Call colleagues and ask which banks or processing companies they use, and ask each candidate company for a list of the medical offices they already service. Call some of those offices and ask hard questions: How difficult is it to reach customer support? Are problems handled quickly? How does the provider deal with “chargebacks” (charges later disputed by the cardholder)?

Also question the processors closely about their level of support: Do they have phones staffed 24 hours a day? Do they charge for support, either monthly or per call?

Compare prices carefully. Some providers charge application fees of up to $200, and they may be nonrefundable, even if you change your mind. You may also be asked to pay setup or account activation fees, Internet processing fees, customer support fees, etc. As always, be sure you have a complete understanding of all the charges you will incur before making your decision and signing a contract.

The principal equipment cost will be for the terminal, the machine used to swipe cards. Basic terminals typically cost between $150 and $300, terminals with printers are $200 to $600, and wireless terminals can run from $600 to $1,000. Leases start at $35 a month and rise depending on the sophistication of the terminal and the length of the lease.

The primary ongoing fee is the “discount rate” or “swipe rate,” a percentage the provider takes off the top of each transaction. Some processors charge different rates for in-person transactions and for mail/telephone/Internet transactions. If you plan to sell products via mail order on your Web site, you'll want to ask about that. Ask about reduced rates for high volume or for total receipts higher than a specified amount per month.

Watch out for extra charges, such as “per transaction” fees and monthly transaction summary preparation fees. Such fees may be negotiable or even waivable, although the company may not volunteer that information.

Beware of long-term leases with early termination fees. If you are unhappy with your service, you don't want to have to pay a hefty charge for the privilege of changing companies. Also watch out for a trick borrowed from the consumer credit card industry: low introductory rates that increase significantly after a few months or a year.

Find out how long it takes for receipts to be deposited to your account, since this can vary widely. A marginally lower swipe rate won't be worth it if you don't have the use of your money for months after the transaction.

If your office will be selling merchandise over the Internet, you will need either a secure server that can encrypt credit card information or a processing company that provides secure ordering, or (preferably) both.

Finally, if you are not using a bank or financial company you know well, make sure it is legitimate. Contact the Better Business Bureau to check the company's status. And if the company is based primarily on the Internet, as happens more and more frequently, make sure you get a physical address and phone number, plus recommendations from existing clients.

Baby’s death in infancy blamed on difficult birth

A woman who was receiving prenatal care from a family medicine practice had a positive 1-hour glucose test, but never took the 3-hour glucose test. She later went into preterm labor and delivered a child vaginally at 34 to 36 weeks’ gestation. Shoulder dystocia occurred during delivery and a nuchal cord was present. An attempt to reduce the cord failed, and it was clamped and divided. Although the child was born depressed, he was resuscitated successfully. He later was diagnosed with hypoxic–ischemic encephalopathy. His neurological status degenerated, and he died at 3 months.

Patient’s claim Negligence occurred in several areas: failure to order a 3-hour glucose test; failure to refer the patient to an OB; failure to order a tocolytic to stop premature labor; and use of too much force to reduce the nuchal cord.

Doctor’s defense An OB consult was not required as this pregnancy was not high-risk; tocolytic treatment was not indicated; and a problem with the cord integrity caused its rupture, not excessive force. Also, a sonogram on the first day of life showed periventricular leukomalacia, indicating that a hypoxic event had occurred in utero and caused the hypoxic–ischemic encephalopathy.

Verdict Illinois defense verdict.

Did the forces of labor cause Erb’s palsy?

During a delivery marked by shoulder dystocia, the McRoberts maneuver and suprapubic pressure were used. The infant suffered injury to her brachial plexus, resulting in paralysis of the brachial plexus, shoulder, and upper arm on the right side. The child now receives physical therapy for her injury, which has caused her to be left-side dominant.

Patient’s claim The delivering physician used excessive pressure. Shoulder dystocia should have been expected because of the large fetal size.

Doctor’s defense The physician claimed that he had handled the dystocia properly and avoided possible brain damage. He also argued that the shoulder dystocia could not have been predicted. The brachial plexus injury was caused by the natural forces of labor, which were especially pronounced because the mother weighed 350 pounds.

Verdict Pennsylvania defense verdict.

Severe retardation after troubled delivery

A woman pregnant with her third child presented at a hospital in the early stages of labor. Her second child had been delivered by cesarean section. The morning after her admission, a physician noted that the pregnancy was at term and characterized by a failed trial of labor and cephalopelvic disproportion. He recommended that the woman undergo cesarean section due to failure to progress. Fetal heart tracings were within normal limits.

The woman was given general anesthesia and underwent a nonemergency cesarean section, during which uterine dehiscence was found. The child was pale, floppy, and bradycardic, lacked respiration, and had an initial Apgar score of 1.

Patient’s claim A first-year resident not fully trained in obstetrics observed repetitive decelerations on the fetal heart tracings. An emergency cesarean section should have been performed more than 2 hours before the actual delivery because of nonreassuring fetal monitor strips and evidence of uterine rupture. The child suffered hypoxic–ischemic encephalopathy, resulting in brain damage and severe mental retardation.

Doctor’s defense The doctor maintained that he had seen the child’s head during delivery, with no myometrial membranes covering it, and had used a catheter to suction the infant to prevent aspiration of meconium. The child was depressed at birth due to the anesthesia administered to the mother, but recovered and had a normal Apgar of 7 at 5 minutes after meconium was suctioned from the airway.

The physician also argued that the infant had a normal neonatal course and was moved to a regular nursery, where he thrived. He did not suffer hypoxia, multiple organ failure, or seizures during the neonatal period. Febrile seizures at 21 months resulted from a seizure disorder not related to an injury at birth.

Verdict $300,000 Illinois verdict against the physician; $4 million settlement with the hospital.

Did delay in diagnosis alter cancer outcome?

After finding a lump in her breast, a 28-year-old woman went to her ObGyn, who ordered a biopsy but did not obtain the biopsy results or follow up. Four months later, the woman consulted a second physician and was diagnosed with breast cancer. She underwent lumpectomy, chemotherapy, and radiation.

Patient’s claim Her cancer diagnosis was delayed because of the inaction of the first ObGyn, decreasing her chances of survival from 80% to 40%.

 

Doctor’s defense He was not negligent. Also, the delay did not significantly alter the outcome.

Verdict $750,000 Georgia verdict.

Hysterectomy results in vesicovaginal fistula

After a total abdominal hysterectomy and bilateral salpingo-oophorectomy, a woman in her late 30s experienced 3 weeks of “nonstop” urination and leakage. She was diagnosed with a vesicovaginal fistula and referred to a urologist, who confirmed the fistula by cystography. Her incontinence continued.

During open surgical repair 3 months after the hysterectomy, a suprapubic catheter was placed in the patient’s bladder and a Foley catheter in her urethra. The catheters were removed a few weeks later.

Following surgery, the patient experienced urinary tract infections, bladder infections, and incontinence. A cystogram revealed a vesicovaginal fistula from the middle area of the bladder into the vagina. A second Foley catheter was inserted. Four months later, surgery to repair the fistula and lysis of adhesions was mostly successful.

Patient’s claim A laceration that occurred during the hysterectomy led to a vesicovaginal fistula. Also, despite the apparent success of the final surgery, she continues to suffer urinary urgency, frequency, and pain.

Doctor’s defense Not reported.

Verdict $525,000 settlement, paid by the physician’s insurer and his practice.

Baby’s death in infancy blamed on difficult birth

A woman who was receiving prenatal care from a family medicine practice had a positive 1-hour glucose test, but never took the 3-hour glucose test. She later went into preterm labor and delivered a child vaginally at 34 to 36 weeks’ gestation. Shoulder dystocia occurred during delivery and a nuchal cord was present. An attempt to reduce the cord failed, and it was clamped and divided. Although the child was born depressed, he was resuscitated successfully. He later was diagnosed with hypoxic–ischemic encephalopathy. His neurological status degenerated, and he died at 3 months.

Patient’s claim Negligence occurred in several areas: failure to order a 3-hour glucose test; failure to refer the patient to an OB; failure to order a tocolytic to stop premature labor; and use of too much force to reduce the nuchal cord.

Doctor’s defense An OB consult was not required as this pregnancy was not high-risk; tocolytic treatment was not indicated; and a problem with the cord integrity caused its rupture, not excessive force. Also, a sonogram on the first day of life showed periventricular leukomalacia, indicating that a hypoxic event had occurred in utero and caused the hypoxic–ischemic encephalopathy.

Verdict Illinois defense verdict.

Did the forces of labor cause Erb’s palsy?

During a delivery marked by shoulder dystocia, the McRoberts maneuver and suprapubic pressure were used. The infant suffered injury to her brachial plexus, resulting in paralysis of the brachial plexus, shoulder, and upper arm on the right side. The child now receives physical therapy for her injury, which has caused her to be left-side dominant.

Patient’s claim The delivering physician used excessive pressure. Shoulder dystocia should have been expected because of the large fetal size.

Doctor’s defense The physician claimed that he had handled the dystocia properly and avoided possible brain damage. He also argued that the shoulder dystocia could not have been predicted. The brachial plexus injury was caused by the natural forces of labor, which were especially pronounced because the mother weighed 350 pounds.

Verdict Pennsylvania defense verdict.

Severe retardation after troubled delivery

A woman pregnant with her third child presented at a hospital in the early stages of labor. Her second child had been delivered by cesarean section. The morning after her admission, a physician noted that the pregnancy was at term and characterized by a failed trial of labor and cephalopelvic disproportion. He recommended that the woman undergo cesarean section due to failure to progress. Fetal heart tracings were within normal limits.

The woman was given general anesthesia and underwent a nonemergency cesarean section, during which uterine dehiscence was found. The child was pale, floppy, and bradycardic, lacked respiration, and had an initial Apgar score of 1.

Patient’s claim A first-year resident not fully trained in obstetrics observed repetitive decelerations on the fetal heart tracings. An emergency cesarean section should have been performed more than 2 hours before the actual delivery because of nonreassuring fetal monitor strips and evidence of uterine rupture. The child suffered hypoxic–ischemic encephalopathy, resulting in brain damage and severe mental retardation.

Doctor’s defense The doctor maintained that he had seen the child’s head during delivery, with no myometrial membranes covering it, and had used a catheter to suction the infant to prevent aspiration of meconium. The child was depressed at birth due to the anesthesia administered to the mother, but recovered and had a normal Apgar of 7 at 5 minutes after meconium was suctioned from the airway.

The physician also argued that the infant had a normal neonatal course and was moved to a regular nursery, where he thrived. He did not suffer hypoxia, multiple organ failure, or seizures during the neonatal period. Febrile seizures at 21 months resulted from a seizure disorder not related to an injury at birth.

Verdict $300,000 Illinois verdict against the physician; $4 million settlement with the hospital.

Did delay in diagnosis alter cancer outcome?

After finding a lump in her breast, a 28-year-old woman went to her ObGyn, who ordered a biopsy but did not obtain the biopsy results or follow up. Four months later, the woman consulted a second physician and was diagnosed with breast cancer. She underwent lumpectomy, chemotherapy, and radiation.

Patient’s claim Her cancer diagnosis was delayed because of the inaction of the first ObGyn, decreasing her chances of survival from 80% to 40%.

 

Doctor’s defense He was not negligent. Also, the delay did not significantly alter the outcome.

Verdict $750,000 Georgia verdict.

Hysterectomy results in vesicovaginal fistula

After a total abdominal hysterectomy and bilateral salpingo-oophorectomy, a woman in her late 30s experienced 3 weeks of “nonstop” urination and leakage. She was diagnosed with a vesicovaginal fistula and referred to a urologist, who confirmed the fistula by cystography. Her incontinence continued.

During open surgical repair 3 months after the hysterectomy, a suprapubic catheter was placed in the patient’s bladder and a Foley catheter in her urethra. The catheters were removed a few weeks later.

Following surgery, the patient experienced urinary tract infections, bladder infections, and incontinence. A cystogram revealed a vesicovaginal fistula from the middle area of the bladder into the vagina. A second Foley catheter was inserted. Four months later, surgery to repair the fistula and lysis of adhesions was mostly successful.

Patient’s claim A laceration that occurred during the hysterectomy led to a vesicovaginal fistula. Also, despite the apparent success of the final surgery, she continues to suffer urinary urgency, frequency, and pain.

Doctor’s defense Not reported.

Verdict $525,000 settlement, paid by the physician’s insurer and his practice.

Baby’s death in infancy blamed on difficult birth

A woman who was receiving prenatal care from a family medicine practice had a positive 1-hour glucose test, but never took the 3-hour glucose test. She later went into preterm labor and delivered a child vaginally at 34 to 36 weeks’ gestation. Shoulder dystocia occurred during delivery and a nuchal cord was present. An attempt to reduce the cord failed, and it was clamped and divided. Although the child was born depressed, he was resuscitated successfully. He later was diagnosed with hypoxic–ischemic encephalopathy. His neurological status degenerated, and he died at 3 months.

Patient’s claim Negligence occurred in several areas: failure to order a 3-hour glucose test; failure to refer the patient to an OB; failure to order a tocolytic to stop premature labor; and use of too much force to reduce the nuchal cord.

Doctor’s defense An OB consult was not required as this pregnancy was not high-risk; tocolytic treatment was not indicated; and a problem with the cord integrity caused its rupture, not excessive force. Also, a sonogram on the first day of life showed periventricular leukomalacia, indicating that a hypoxic event had occurred in utero and caused the hypoxic–ischemic encephalopathy.

Verdict Illinois defense verdict.

Did the forces of labor cause Erb’s palsy?

During a delivery marked by shoulder dystocia, the McRoberts maneuver and suprapubic pressure were used. The infant suffered injury to her brachial plexus, resulting in paralysis of the brachial plexus, shoulder, and upper arm on the right side. The child now receives physical therapy for her injury, which has caused her to be left-side dominant.

Patient’s claim The delivering physician used excessive pressure. Shoulder dystocia should have been expected because of the large fetal size.

Doctor’s defense The physician claimed that he had handled the dystocia properly and avoided possible brain damage. He also argued that the shoulder dystocia could not have been predicted. The brachial plexus injury was caused by the natural forces of labor, which were especially pronounced because the mother weighed 350 pounds.

Verdict Pennsylvania defense verdict.

Severe retardation after troubled delivery

A woman pregnant with her third child presented at a hospital in the early stages of labor. Her second child had been delivered by cesarean section. The morning after her admission, a physician noted that the pregnancy was at term and characterized by a failed trial of labor and cephalopelvic disproportion. He recommended that the woman undergo cesarean section due to failure to progress. Fetal heart tracings were within normal limits.

The woman was given general anesthesia and underwent a nonemergency cesarean section, during which uterine dehiscence was found. The child was pale, floppy, and bradycardic, lacked respiration, and had an initial Apgar score of 1.

Patient’s claim A first-year resident not fully trained in obstetrics observed repetitive decelerations on the fetal heart tracings. An emergency cesarean section should have been performed more than 2 hours before the actual delivery because of nonreassuring fetal monitor strips and evidence of uterine rupture. The child suffered hypoxic–ischemic encephalopathy, resulting in brain damage and severe mental retardation.

Doctor’s defense The doctor maintained that he had seen the child’s head during delivery, with no myometrial membranes covering it, and had used a catheter to suction the infant to prevent aspiration of meconium. The child was depressed at birth due to the anesthesia administered to the mother, but recovered and had a normal Apgar of 7 at 5 minutes after meconium was suctioned from the airway.

The physician also argued that the infant had a normal neonatal course and was moved to a regular nursery, where he thrived. He did not suffer hypoxia, multiple organ failure, or seizures during the neonatal period. Febrile seizures at 21 months resulted from a seizure disorder not related to an injury at birth.

Verdict $300,000 Illinois verdict against the physician; $4 million settlement with the hospital.

Did delay in diagnosis alter cancer outcome?

After finding a lump in her breast, a 28-year-old woman went to her ObGyn, who ordered a biopsy but did not obtain the biopsy results or follow up. Four months later, the woman consulted a second physician and was diagnosed with breast cancer. She underwent lumpectomy, chemotherapy, and radiation.

Patient’s claim Her cancer diagnosis was delayed because of the inaction of the first ObGyn, decreasing her chances of survival from 80% to 40%.

 

Doctor’s defense He was not negligent. Also, the delay did not significantly alter the outcome.

Verdict $750,000 Georgia verdict.

Hysterectomy results in vesicovaginal fistula

After a total abdominal hysterectomy and bilateral salpingo-oophorectomy, a woman in her late 30s experienced 3 weeks of “nonstop” urination and leakage. She was diagnosed with a vesicovaginal fistula and referred to a urologist, who confirmed the fistula by cystography. Her incontinence continued.

During open surgical repair 3 months after the hysterectomy, a suprapubic catheter was placed in the patient’s bladder and a Foley catheter in her urethra. The catheters were removed a few weeks later.

Following surgery, the patient experienced urinary tract infections, bladder infections, and incontinence. A cystogram revealed a vesicovaginal fistula from the middle area of the bladder into the vagina. A second Foley catheter was inserted. Four months later, surgery to repair the fistula and lysis of adhesions was mostly successful.

Patient’s claim A laceration that occurred during the hysterectomy led to a vesicovaginal fistula. Also, despite the apparent success of the final surgery, she continues to suffer urinary urgency, frequency, and pain.

Doctor’s defense Not reported.

Verdict $525,000 settlement, paid by the physician’s insurer and his practice.