All posts by Darryl S. Weiman, M.D., J.D.

In the Courtroom

Futile Care—Ethical and Legal Considerations

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Darryl S. Weiman, M.D., J.D.

Standards and Ethics Committee Newsletter for the ECTSS

What should the health care provider do when the patient or the patient’s family requests that life-prolonging care be started or continued when there is no reasonable expectation that the care would be helpful? These types of demands are not unusual and are based on the ethical principles of autonomy and self-determination. It is legally accepted that patients can refuse treatment; does the law recognize their right to demand care based on the same principles?

“Futile care” is medical care or treatment for a patient when there is no reasonable hope of a cure or benefit. Physicians are sometimes faced with a situation when the patient (or the patient’s family) requests care that the physician believes is futile and may even be harmful. No State requires a physician to provide care that he believes to be futile, but the physician’s judgment may be subject to second guessing, and he may be served with a medical malpractice or wrongful death suit.

There are mainly two reasons that patients and families push for care that is against their physician’s advice. The first rests on religious or cultural reasons where the family believes that everything should be done to preserve life, even if prolonged suffering is the result. In some cases, such as “brain death”, the religion may not recognize the medical definitions. In some religions, death only occurs when the heart and lungs have stopped working. This is why New York and New Jersey have religious exceptions for their “brain death” statutes.

The second reason is related to a lack of understanding as to the limits of medical care. This leads to false beliefs that care given can reverse what the medical professionals know to be an irreversible situation. This scenario is usually managed with regular meetings with the family with discussions as to what reasonable outcomes can be expected. However, even with improved communications, the family may continue to request “futile” care.

Fear of legal ramification usually leads to honoring the family’s request. As a result, cost of care goes up and limits are placed on scarce medical resources.

To help physicians deal with these difficult clinical situations, some states have enacted laws to protect providers who may decide to not honor a family’s request for futile care.

Texas has a model for how to approach this difficult clinical scenario, but not all states have this type of “safe harbor” statute relating to futile care. In Texas, when a patient or family demands care that the physician believes is futile, the law requires the care-giver to get a second opinion from another physician. When this is done, the person providing the second opinion should see and examine the patient and review the medical records. The second opinion should

then be documented in the medical records and the family should be informed as to the opinion. In most cases, the opinion will be consistent with the first physician’s opinion but that may not be the case.

If the second opinion is in agreement with the family or patient, that physician should then take over the care of the patient. If the second opinion agrees that the care requested would be “futile” then the family or patient will either need to change their opinion or continue to request the care in question.

If, after hearing the second opinion, the family still wants the “futile” care to be given, the physician should obtain a consult from the hospital’s Ethics Committee. The committee should then review the medical records and examine the patient. Usually the ethics opinion will agree with the physician. If the family still is pushing for the “futile” care, then the physician and the hospital should offer to try to transfer the patient to another facility which would be willing to provide the care in question. This attempt to transfer the patient is unlikely to be successful as most other hospitals will not want to deal with a “futile care” conflict.

If all of the steps outlined in the Texas statute are done, then the physician will have a “safe harbor” under the law to not provide the requested care; he would even be allowed to withdraw care that he deems to be futile. The family will still be allowed to bring a medical malpractice or wrongful death suit, but they will be unlikely to win.

The underlying intent of the process outlined in the Texas law is to allow the family to come to grips with the gravity of their loved one’s situation. Once they realize that the medical staff is in agreement, they are likely to back off from their demands for further, unwarranted, care.

There are situations, usually in the trauma scenario, where there is not enough time to meet the requirements of the futile care statute. For example, patients who have sustained blunt chest trauma and present with no cardiac rhythm often get a resuscitative thoracotomy in the emergency department even though the mortality is significant and those who survive have horrible neurologic outcomes (Powell DW, Moore EE, et. al., Journal of the American College of Surgeons, August 2004). The recommendations of the Powell article are to stop doing these thoracotomies for any patient with blunt chest trauma who was getting prehospital cardiopulmonary resuscitation for longer than five minutes even though not doing the thoracotomy may lead to medical malpractice actions related to the “loss of chance” for survival.

Although the “Futile Care” statute will afford some protections to the physician and hospital, they may still have to experience the financial and other expenses of defending their actions. No one wants to be the first case to test the law since it is uncertain if the courts will deem the law to be constitutional or not. It is possible to argue that the law is unconstitutional as it may deprive a person of “life, liberty, or property” without “due process of law.” A further constitutional argument against the law can be based on the “equal protection” clause of the Fourteenth Amendment; if one person is treated, then all can claim the “right” for the same treatment.

New therapies for acute life-threatening illnesses such as ventricular assist devices, organ transplants, coronary and valvular interventions, have led to increases in the need for intensive care (ICU) beds. As a result, there are times where there is not enough ICU beds to meet the demands of the patient population that could benefit from that environment.

To optimize the use of scarce medical resources, there should be a push to educate the public and health care providers about futile care alternatives such as palliative care (keeping the patient comfortable). Education should also focus on reasonable discussions on end of life issues such as “advanced directives” and “power of attorney for health care issues.” It might also be useful to educate health care providers on the ethical, and legal, issues relating to providing, or not providing care which is costly and unlikely to provide a reasonable hope of meaningful recovery.

One of the first things that needs to be done is provide a clear definition of what constitutes “futile care” and what strategies can be done to more effectively use the ICUs or emergency rooms scarce resources.

There are few cases that have gone to court to decide on the “futility” issue. This is probably because few physicians and hospitals are willing to face the costs and possible reputational damage for removing life-sustaining treatment over the protests of the patient or family. Although most judicial rulings have upheld the physicians’ judgment, some have not.

In medicine, it is often said that “when God puts his hands on, take yours off.” This saying is applicable to the situation where the requested care is deemed to be futile. However, withdrawing care is problematic as no one wants the aggravation of defending his actions in courts of law or courts of public opinion.

Affordable Care Act

Health Care Reform: The Laws May Soon Be Changing

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Darryl Weiman, M.D., J.D.

Despite the passage of the Affordable Care Act (ACA), people are still paying ever higher prices for, what appears to be, a lesser quality of care. Physicians are also struggling. It has been estimated that 13% of practice expenditures are dealing with insurance billing and reimbursement. It is not surprising that, with republicans now in control of the White House and both the House and Senate that plans are being made to replace many aspects of “Obamacare.”

In fact, under the “One Big Beautiful Bill” recently passed and signed into law, the insurance companies will no longer be able to keep patients in narrow networks with limited choices as to physicians and health care facilities.1 This is the first of what may be far reaching changes for health care.

Both republicans and democrats agree that health care costs are too high and that there are too many people that are not covered by health care insurance. Both the Affordable Care Act passed during the Obama administration and several plans being discussed by the republicans have remarkably similar goals. If the republicans follow through on their promise to “repeal and replace” the Affordable Care Act, then they must carefully tailor their plan to (1) decrease costs of health care, (2) allow everyone to have access to some form of health insurance, (3) allow patients to have choices in tailoring their individual plans, (4) place an emphasis on preventative care so as to keep more patients out of the hospital, and (5) have some medical malpractice tort reform.

There were several good ideas embedded in the Affordable Care Act. For example, pre-existing conditions are no longer used to deny a person health care coverage. Small businesses (defined as a business with less than 50 employees) are given tax credits for up to 50% of employee premiums. The cut-off age for young adults covered by their parents’ insurance was raised to 27. This was especially good for recent college graduates who were finding it difficult to get jobs in the depressed economy.

The ACA also eliminated the “donut hole” for Part D medication expenditures in January 2025. Now, any medication expenditure over $2,000 is covered by Medicare.

Lifetime caps on health insurance expenditures were eliminated by the ACA. Previously, insurers could cut off patients whose bills exceeded a certain amount. With the ACA, insurers had to keep paying for health care so long as the patient was not dead.

Under the ACA, all insurance plans had to include preventative care without co-pays by 2018. Preventative care is important in keeping patients with chronic conditions out of the hospital where the costs are highest.

There are several models being presented as to what might replace the ACA and it is worthwhile looking at some of these ideas. Whichever plan they choose, it would be wise for the Congress to keep the good aspects of the ACA in place if they are to garner broad-based support.

As physicians, we need to keep up with what is being debated in Congress and the White House so we can better support the ideas that would be best for our patients.

Here are some thoughts on what a new health plan might incorporate.

Most republican plans will eliminate the community rating where everyone in a community are charged the same premiums. The community rating was needed to keep premiums down for people with pre-existing conditions, but it forced others to pay higher premiums. Also, mandatory benefits in the ACA health plans forced people to pay for benefits they would never use. The republicans argue that people should not have to pay for plans mandating care for such things as in-vitro fertilization, cosmetic surgery, and abortions. The ACA required this coverage so that the higher premiums could be used to offset the costs of patients who needed these benefits and other benefits that few would use.

There are several other ideas that are being discussed to make health care insurance more affordable. For example, vouchers of $5,000 for the purchase of health insurance with tax-free dollars would allow people to shop for policies that would meet their budget and needs. This would not require a large bureaucracy; it would only require the people to process the forms and police the system for fraud. People would have a vested interest in their health care policy and, hopefully, the free market would decrease the costs. The use of vouchers would be a good way for those with pre-existing conditions to purchase policies without having everyone else pay higher premiums for coverage for things they would never need.

Currently, the states regulate health care insurance. This leads to large cost disparities. If people could cross state lines to buy insurance, then they could shop for the best deals to meet their needs. I believe the Commerce Clause would allow Congress to pass a law to allow for this. This would probably lead to an overall decrease in premiums as the insurers would have to compete with more companies in other states.

Another way to cut health care costs is to put people in charge of their own routine care. One way to do this is to let people set up health savings accounts where tax free dollars are used to pay for routine care. Medical providers will have to compete for these dollars by offering the best service for the lowest price. Once the free market is back in play, drug companies, hospitals, and providers will not be able to raise prices without losing patients.

The health savings accounts should not be used for over-the-counter remedies and there would be tax penalties for those patients who make non-medical withdrawals.

Premiums for health insurance should be tax deductible. If companies can do it (and they can) then individuals should be allowed to do this also. This would allow most of the 176 million enrolled in company owned plans to buy their own insurance and force the companies to compete by offering supplemental tax-free compensation to allow the consumer to buy more

insurance if they see the need. This would be another way to allow those with pre-existing conditions to get coverage without having everyone else pay higher premiums.

Health coverage should be portable. Employees should be able to control their own health plans and should be able to take these plans with them from job to job. This would force employers to treat their workers better since the worker would not be locked into the job for fear of losing their health care insurance.

Health care insurance should be like other insurance i.e., auto, life, home, and fire. The plans would be private property, and they would allow for maximum choice. They should be flexible and creative, allowing the consumer to buy a policy they deem necessary to meet their needs. This would remove big business, labor unions, and politicians from the health insurance business and let the free market control the costs.

Updating Medicare by allowing each senior $250,000 to purchase some form of elder care insurance would encourage older patients and their caregivers to shop for their own health care. Again, it is hoped that the free market would lead to decreased costs as this patient population would be empowered to look for the best deals.

Unfortunately, under the Affordable Care Act, many providers stopped caring for Medicare and Medicaid patients as the costs exceeded the payments the providers were getting for providing this care. If the government would allow charitable care to be tax deductible, health care providers would be more inclined to treat the low income or uninsured patient. This would be much cheaper than having these patients rely on the ER for their primary care. It would also lead to a predictable continuity of care which would be beneficial for the patients and the providers. Providers who have patients for the long term are more likely to reap the benefits of managing chronic conditions in the out-of-hospital setting.

The Affordable Care Act had no provisions pertaining to tort reform. Most republican plans recognize that tort reform is critical if health care costs are to be decreased. Malpractice insurance is costly. For some specialties, premiums can be over $200,000 per year and these costs are transferred to the patients. Defensive medicine as a strategy to defend against potential malpractice claims raises the cost of health care for everyone. Estimated costs for defensive medicine is about $124 billion per year and each year, this estimate is going up.

Some states limit the payment for non-economic damages in a malpractice suit to control malpractice premiums. Some states may soon try to take malpractice claims out of the hands of juries by using alternative forms of resolution such as Health Courts.

Limiting attorneys’ fees is another strategy being looked at to decrease the costs of malpractice premiums, but attorneys are lobbying against this; since many legislators are themselves attorneys, this would be an uphill battle.

The ACA was over 2,000 pages long and was very complex. The republican plan should not try to fix everything at once. They should start with some laws that are understandable and

allow some choice for the patients. The providers also need some protection to keep all the cost cuts from falling on their shoulders.

No matter what elements are incorporated in a republican plan, it looks like they recognize the fundamental fact that optimal health care is a very personal experience between the patient and his provider. This experience must be affordable, and patient centered.

We should study the details of any new health care plan. The patients and their providers should lobby for what is best for them. 1 Bobby Jindal, Wall Street Journal, August 1, 2025.

1 Bobby Jindal, Wall Street Journal, August 1, 2025.

In the Courtroom

Advice and Consent for Article III Judges

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Darryl S. Weiman, M.D., J.D.

Since the re-election of President Trump, several federal district courts have issued national injunctions which have blocked several of his executive orders. The United States Supreme Court finally stepped in and ruled that the federal district courts could not issue national injunctions. Any district court injunction could only apply to the parties involved in that court’s jurisdiction. How did we get to the point that the courts felt they could wield such enormous power?

Article II, section 2 of the United States Constitution states the president “…shall nominate and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme court.” Eventually, all Article III judges had to go through a confirmation process in the Senate. Not surprisingly, with the increasing politicization of the courts, the importance of placing judges whose judicial philosophy is consistent with the president’s has become paramount. Issues such as health care, abortion, freedom of religion, political speech, gun control, results of an election, and affirmative action have become so contentious that control of the Supreme Court and the lower federal courts as political tools has taken on critical importance.

It used to be that the legislative powers as defined in Article I of the Constitution were vested in the Congress and the executive power, under Article II, was outlined for the President. Judicial power was defined in Article III and was meant to keep the executive and legislative bodies from extending their designated powers and from taking freedoms designated to the states and the people in the Bill of Rights and subsequent amendments. This was the intent of separation of powers and the concept of federalism.

Over the last few decades, it has become clear that the courts are making more decisions relating to legislation and to executive powers. As such, the politics of judicial appointments have become increasingly contentious with the minority party resorting to the filibuster to block a presidential appointment that they felt would be detrimental for their legislative goals. With the filibuster, the minority party only needed to muster 41 votes to block a nomination instead of a majority of 51.

Since the filibuster is not part of the Constitution, how did this procedural rule come to take on such importance? Dating back to the 1830’s, a simple majority in the Senate was not enough to confirm a judicial appointee. This was due to a senate procedural rule which allowed for a “filibuster”—defined as a “dilatory tactic, esp. prolonged and often irrelevant speechmaking, employed in an attempt to obstruct legislative action” (Black’s Law Dictionary, seventh edition). The Constitution allows the House and Senate to set their own rules, and, in the Senate, a rule was made to allow for a debate to continue for an unlimited time. The only way to end the debate was for passage of a motion for “cloture” which required a three-fifths majority of the senators duly sworn. With the present senate, this meant that 60 senators are required to pass the motion for ending the debate.

In its original form, the filibuster allowed for a group of senators to speak for as long as they could on the senate floor to prevent a cloture vote from ever taking place. This tactic can still be done today; if the vote for cloture is very close, the minority can prevent any voting on an issue if the filibuster is on-going in hopes of garnering more votes for their position.

To keep the senate from becoming completely paralyzed from the one issue being filibustered, subsequent rules allowed for the issue to be tabled if it is obvious that there are not enough votes for cloture. This allowed for other business to be done while the issue generating the filibuster is effectively blocked.

The history of Senate confirmation of Article III judges is interesting and is worth reviewing.

The Constitution does not specify how many votes are needed to confirm a judicial nominee. Numbers for confirmation are enumerated in other areas of the Constitution such as ratifying a treaty (2/3 majority), voting to convict someone who has been impeached (2/3 majority), expelling one of its members (2/3 majority), and concurring on a proposed Constitutional Amendment (2/3 majority). Since no number is specified, the Advice and Consent role is, arguably, met with a simple majority vote.

Over the years, there were several threats to end the filibuster, especially as it related to judicial appointments. The move to end this procedural tool was called the “nuclear option” although many people preferred to call it the “constitutional option” as they claimed the Constitution only required a majority vote to meet the requirements of “advice and consent.”

The first opinion written in support of ending the filibuster was done in 1917 by Thomas Walsh, a Democratic senator from Montana. Walsh argued that each new Senate could write its own procedural rules and did not have to abide by the rules of previous terms. These rules could be put in place with only a majority vote.

In 1957, then Vice President Richard Nixon wrote an opinion stating that the Constitution allows for the presiding officer of the Senate—the Vice President—to override Senate rules with subsequent rules put in place with only a majority vote. No action was taken on this written opinion.

The first Senator to use the term “nuclear option” was Trent Lott, a Republican from Mississippi. Lott coined the term during President George W. Bush’s first term after the Democrats blocked several of the President’s judicial nominees. Lott used the term because he recognized that it was a last resort and would probably result in negative consequences for both sides.

Bill Frist, a former heart surgeon and then senate Majority leader, threatened to use this nuclear option later in 2005 in hopes of ending Democratic filibusters of judicial nominees of

President Bush. A group of seven Democratic and seven Republican Senators, later referred to as the “Gang of 14,” joined to oppose both the nuclear option and the filibusters of judicial nominees except in rare circumstances. The seven Democrats agreed to vote for confirmation of most of the pending nominees and, in turn, the seven Republicans agreed to vote against the nuclear option. The Republicans in the Gang of 14 recognized that the Democrats might someday become the majority party in which case the Republicans would need the filibuster for unacceptable nominees of a Democratic president. Senator Frist agreed to honor this compromise.

Despite the long history looking to end the filibuster, it remained as a procedural option to block a presidential judicial nominee unless at least 60 senators supported him. Things finally changed in November 2013 when Harry Reid let the Senate vote to change the cloture rule. Senator Reid pushed for the nuclear option because of frustration with the Republicans who had blocked three of President Obama’s nominations to the United States Court of Appeals for the District of Columbia. By a 52 to 48 vote, the filibuster cloture requirement was changed for all nominations, except for justices of the Supreme Court, to only require a majority. All Republicans, the minority at that time, and three Democrats voted against the change. The three Democrats recognized that the change could dilute their power when the Republicans became the majority and they were right.

When Antonin Scalia died, President Obama nominated Merrick Garland to replace him on the Supreme Court. The Republicans held off on hearings for the nomination in hopes of winning the 2016 presidential election and then getting their own nominee. The Democrats, believing they would win the election, did not push for the necessary hearings thinking they would get their appointment when Hillary Clinton became president.

With the surprising win of Donald Trump, the Republican strategy turned out to be correct. Neil Gorsuch was nominated for the position and, predictably, the constitutional option was passed so that the Republicans could assure confirmation of the appointment. It was foreseeable that the Republicans would extend the option to include nominations to the Supreme Court when it became obvious they would not get cloture on the threatened filibuster. At least for now, any nomination for a judgeship in an Article III court, even a Supreme Court justice, will only need a majority vote in the Senate for confirmation.

With the politicization of judicial appointments, it is not surprising that some federal judges felt they had the power to block some executive orders and new laws with the injunction power until such time that the cases were litigated and appealed. Since the litigation could take years, they were effectively blocking the laws until a more favorable President could be elected.

This change in confirming justices for the Supreme Court and other Article III judges will have significant importance for health care providers as the constitutional questions of parts of the Affordable Care Act, such as the Independent Payment Advisory Board, and other health care related issues make their way to the Court. All health care providers need to stay informed to be better able to advocate for their patients’ best interest.

In the Courtroom

The American Law Institute and Informed Consent Doctrine

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For the Newsletter for the Eastern Cardiothoracic Surgical Society Standard and Ethics Committee

As mentioned in a previous newsletter, the American Law Institute (ALI) has published a recommendation that medical malpractice law should change the requirements of negligence from reliance on customary care i.e., care that a reasonable physician would do if faced with the same or similar circumstances, to a requirement to use guidelines based on evidence-based practice. A physician not following guidelines would then have the burden of proof shifted to him to show why the guidelines were not followed.

The ALI, which is composed of lawyers, judges, and other legal scholars, based their recommendation on the premise that patients would be better served if their care was based on the guidelines which were formulated by medical experts based on best evidence. I have commented on this recommended change in a previous newsletter.

Not surprisingly, the ALI has also taken a stance on the law of informed consent. Traditionally, the states have taken two approaches in determining what information the health care providers would need to present to the patient, or the patient’s surrogate, so that an informed decision can be made. In both approaches, the patient needs to be given “material” information. Unfortunately, the ALI did not clarify what the “material” information should be in both approaches.

In both approaches, the patient must be allowed to ask questions and the provider should answer the questions to the best of his ability.

Many patients have limited knowledge of medical issues so it is a challenge for the provider to know how much information should be conveyed so that adequate informed consent can be given. The provider-oriented duty to disclose was dependent on the community standard to disclose what a reasonable physician within the community would disclose under the same or similar circumstances.

In “provider-centered jurisdictions, information is ‘material’ if it would be shared by ‘competent…medical providers of the same type in similar circumstances’”1 The provider-centered approach has been criticized for being too paternalistic and at odds with the concept of patient autonomy being paramount in medical ethics.

Recognizing that the community standard tended to protect physicians by limiting standard disclosures which may not have been in the patients’ best interest, the D.C. Circuit Court of Appeals changed the duty to disclose standard in the case of Canterbury v. Spence2.

In Canterbury, a patient was undergoing a laminectomy for back pain. He fell out of bed and became paralyzed. Spence sued because he had not been told of this possible complication.

The surgeon had not told Spence about this possible complication because it was rare (1%) and he believed that Spence would not have consented for this indicated procedure if this possibility was raised.

The D.C. Circuit decided that the following would be “material” information needed for the patient (or designated surrogate) for an informed consent to occur. The provider would need to disclose “(1) the condition being treated; (2) the nature and character of the proposed treatment or surgical procedure; (3) anticipated results; (4) recognized possible alternative forms of treatment; and (5) recognized serious possible risks, complications and anticipated benefits…”3 (emphasis added)

In the “patient-centered jurisdictions, information is ‘material’ if a reasonable person, in what the provider knows or should know to be the patient’s position, would likely attach significance to the information in deciding whether to consent to the treatment.”4 Tennessee uses this patient-centered approach.

The patient-centered approach has been adopted by most states and by the American Medical Association. Unfortunately, these required disclosures are vague and undefined. The ALI had an opportunity to clarify these “material” issues, but they chose not to.

For some reason, the ALI has not chosen to push for the patient-centered approach for informed consent despite the legal push for this doctrine. In the Reporters’ Notes, ALI suggests that current medical professionals are being trained in medical ethics and are now aware of the importance of patient autonomy and professional practice is now following the patient-centered approach even where the state law allows for physician-centered practice.

I think the ALI is not being realistic if it believes that the provider-centric and patient-centric approaches will equally embrace the goal of patient autonomy and self-determination as to informed consent.

No matter which approach is used for the patient consent process, the ALI still leaves unresolved consequences of providers’ failure to comply with the patient’s direction. If the physician does a procedure for which he does not have consent, he would be liable for negligence in New York; but the same case would be a battery in Georgia. The ALI could have clarified this area of legal confusion, but they did not.

Also, it is still unclear how the law should handle the situation where the physician does not provide the medical care that the patient does consent to. This is the murky area of futile care. Most states will not compel physicians to provide care they deem to be futile, but they may still face a malpractice suit alleging failure to provide competent care. Again, the ALI does not weigh in on this issue, so providers need to familiarize themselves with the law in their state. The lack of uniformity of the laws makes providing care even more difficult than it already is.

What about the situation where the patient (or the surrogate) makes it clear that the patient should not be told any bad news about his medical condition? This is not a rare occurrence in some religions or cultures. The ALI could have clarified this issue, but they did

not. For now, if the patient (or surrogate) opts out of the consent process, then a quick call to a judge may need to be done. The judge may even give the decision-making power back to the physician; a complete turn back to the medical paternalism of the past. Very ironic.

What if a patient asks the surgeon about his level of expertise dealing with the recommended surgical procedure? In most states, surgeons are not required to reveal specific information about themselves, but in Johnson v. Kokemoor, the court held that the physician may have to disclose this information if a reasonable person would need this information to give informed consent.5 In Johnson, Johnson ended up a quadriplegic after Kokemoor, a neurosurgeon, clipped an aneurysm of the posterior basilar artery. Johnson argued that she should have been referred to a more experienced surgeon.

The ALI did nothing to clarify as to the “materiality” of this type of question.

I predict that the ALI will eventually succumb to the push to make the informed consent process using the patient-centered approach to avoid any chance of reverting back to medical paternalism.

As to futile care, be sure you know the laws of your state to avoid being sued for denial of care under the “loss of chance” doctrine.

Darryl Weiman, M.D., J.D.

1 Restatement (Third) of Torts: Medical Malpractice section 12 (c)(1) (Am.L. Inst., Tentative Draft No. 1, 2023). 2 Canterbury v. Spence, 464 F2d 772 (DC Cir 1972). 3 Id. 4 Restatement (Third) of Torts: Medical Malpractice section 12(c)(1) (Am. L. Inst., Tentative Draft No. 1, 2023). 5 Johnson v. Kokemoor, 545 NW2d 495 (Wis 1996).

Surgical Education

Educating Future Physicians

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The role of medical schools in educating our physicians of the future has undergone some significant changes over the last 25 years. For most of the twentieth century, many medical schools had their own hospitals and the faculty were tasked with teaching and research. Most of the clinical activities were focussed on the difficult cases and there was little incentive to see and treat more patients other than to generate income for research and teaching activities. The academic faculty were salaried and the salary was not related to the generation of clinical income.

Medical schools would often provide faculty to the the charity hospitals and Veterans hospitals where medical students and residents would get exposure to patients. Teaching and training was at a high level; the faculty could focus on the patients as could the trainees and there was no rush to see more patients. Care was thoughtful and teaching was meaningful.

Just a few decades ago, it was common for professors to have dedicated teaching rounds either in the mornings or in the evenings and often on weekends. Residents and medical students would present recent cases and there would then be questions, using the Socratic method, where care was discussed in detail. The trainees were taught to think like doctors. They learned professionalism, mainly from emulating their mentors. There was no rush to see more patients and there was no limit on the time spent with each patient.

Often, these teaching sessions were followed by actual rounds where the trainees and the attending would actually see, examine, and discuss the patient’s findings. The patients and their families would look forward to these sessions as they felt they were getting individualized attention by the “best” and they were fulfilling their role of helping to educate the future generation of physicians. It was a “win-win” situation.

When the government got involved in health care with programs like Medicare and Medicaid, physicians and hospitals learned there was money to be made under the “fee for service model.” The more patients seen and procedures done, the more income was generated. Third party payers followed the model of the government and costs skyrocketed.

As the costs of health care continued to rise, forms of managed care took on increasing importance to limit these rising costs. Medical schools and their teaching hospitals found that they were ill-equipped to compete in this type of market. In the 1990’s, it was thought that many medical schools along with their teaching hospitals would have to close as they were not competitive with the private and public hospitals. In an effort to survive, medical schools decided to expand their faculty practices.

Based on the recommendations of paid outside consultants, most of the medical schools decided to change their business model away from the scholarly model of research, teaching, and clinical care of the complex patient. The expansion of the clinical practice was done in two ways. The first was to have their academic faculty see more patients and they did this with financial incentives. The second was to join with public and private hospitals and use the clinicians in those facilities to help generate income to help keep the medical schools solvent.

The attending teaching rounds had to be shortened or even curtailed so that more time could be spent in seeing patients and generating more income. The education component was no longer valued and the teacher’s income was dependent on his clinical practice. Some schools would provide some salary support for educational activities and research but not nearly to the level as it was prior to the advent of “managed care.”

The medical schools supplied the hospitals with resident coverage and with clinical faculty whose credentials could be used as a marketing tool for the hospitals and practice plans. The new clinical faculty were given academic titles from the medical schools and they were given access to residents who would help take care of the patients so that the faculty could see more patients and generate more income.

With this new model predicated on generating more clinical income for the school and the hospitals, it was foreseeable that the scholarly activities related to teaching students and doing research would suffer. Clinical dollars were being spent to keep the medical centers solvent and subsidies ear-marked for research and teaching declined.

By the beginning of the twenty-first century, a career as an academic physician was becoming far less interesting. Funding opportunities for research were declining, teaching activities were not being rewarded, and income was being tied to clinical activities alone. In fact, many medical schools began to hire new faculty whose sole role was to practice medicine and generate clinical income. Investigator-teachers and clinician-teachers were no longer high priorities for medical school hiring even though they were essential for the schools to meet their original missions of research and education.

Sometimes, the missions of the hospitals and the medical schools conflicted. On these occasions, it was common for one or the other entity to hire their own providers without the shared input that was the original intent of the mergers. Since the academic titles bestowed were the province of the school as was the use of the residents, some new hospital hires found that some of their expected benefits were not forthcoming as promised. Also, the medical schools could not hire their own faculty unless they got buy-in from the hospital and practice plan up front; otherwise, the new faculty could find himself without a clincal venue in which to practice.

Older physicians like to think of themselves as the last of the “triple threat” clinicians; they have made meaningful contributions as health care providers, researchers, and teachers. Their younger colleagues are more likely to think of them as “dinosaurs” doomed to extinction. It does not matter who is right as we are still faced with the problem of young, bright, and dedicated medical students and residents who should be provided with the education and training they deserve.

It is time to recognize that we owe our future generations a dedicated medical workforce interested in advancing medical knowledge, teaching, and enforcing the standards of care our people have come to expect. We must resolve our conflict between medical education and the new environment of health care delivery dependent on generating income and cost containment.

The missions of the hospitals and clinics are different from the missions of the universities as it relates to a professional education. If we do not resolve this conflict, training physicians will become no more than an apprenticeship which is the way it was prior to the advent of university-based medical schools. Proprietary medical schools did not work very well in the past which is why the original Flexner report recommended a switch to university based medical education. If America is to continue providing the best health care in the world, educating future providers must be a high priority. The American Public deserves no less.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016. 

In the Courtroom

The Standard of Care

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In order to prevail in a medical malpractice action, the plaintiff must show, by a preponderance of evidence standard, that the defendant owed a duty of care to the plaintiff, the defendant was negligent in providing that care, the plaintiff was injured, and the legal cause of the injuries was the negligent care. All four of these elements must be shown for the plaintiff to win.

The most compelling type of medical malpractice case is the failure to diagnose a life-threatening condition which results in the death of the patient. Myocardial infarction, aortic dissection, certain malignancies, and neurologic injuries represent these types of cases. If the provider can show that he considered these types of conditions and he took steps to make the diagnosis, then he will likely win even if the diagnosis is missed.

There are false positives and false negatives for all diagnostic tests and the courts recognize this. In general, expert testimony is needed to confirm or deny that the provider did what a reasonable provider would do if faced with the same or similar circumstances. Expert testimony is required because most people do not have the knowledge or experience needed to make decisions on standards of care by themselves. Under the law, an expert can be used to educate the trier-of-fact to better understand the evidence or determine a fact in issue.

In most states and in the federal courts, an expert witness must be qualified by knowledge, skill, experience, training, or education so that he can testify in the form of an opinion or otherwise. Before an expert is allowed to testify, the court must act as a gatekeeper to determine if the expert’s testimony will substantially assist the trier-of-fact. The factors that the court will use in making this determination are (1) whether the scientific evidence has been tested, (2) whether the evidence has been subjected to peer review and publication, (3) whether a potential rate of error of the evidence is known, (4) whether the evidence is generally accepted in the appropriate scientific community, and (5) whether the expert’s research in the applicable field has been conducted independent of the litigation. These factors come from the Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1994) holdings which relate to what an expert witness is allowed to testify about in a malpractice action.

Prior to Daubert, the federal courts used the “generally accepted” standard which originated from Frye v. United States 293 F. 1013 (D.C. Cir. 1923). In Frye, the court held that novel scientific testimony is admissible in federal courts if the testimony had been “generally accepted” in the appropriate scientific community where it had originated; expert testimony must be based on scientific methods that were reasonably used and accepted. Most states then came on board with this standard and it had been used for over 70 years.

Most states and the federal Courts have adopted the holdings of Daubert but some have not. There are still 13 states which follow the standard of Frye.The Frye standard is a much easier to meet than Daubert. The courts that use the “generally accepted” standard reason that the jury should be allowed to rule on the relevance of the testimony and there should be no prior screening by a judge.

The “standard of care” is defined by statute in most states. For example, in Tennessee, it is “the recognized standard of professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the defendant practices or in a similar community at the time of the alleged injury or wrongful act occurred.” Most states do not have the community standard element that is in the Tennessee statute.

In medical practice, there are many conditions which now have recommendations for care and treatment. These recommendations come from committees comprised of recognized experts in the field. I was at a lecture for continuing legal education where a well-known plaintiff’s attorney stated that, as far as he was concerned, the “best practices” paradigms recommended by these committees were now the “standards of care” and any health care provider who did not follow the paradigms was committing medical malpractice. He was wrong.

Most, if not all, of the publicized treatment recommendations have a disclaimer which recognizes that it is up to the treating clinician to decided on the proper care of a particular patient. The law has not changed; the standard of care is still the care that would be provided by a reasonable physician who is faced with the same or similar circumstances. If a reasonable clinician would not have followed the committee’s recommendations, then the standard of care may still have been met.

Here is an example where the paradigm may not be the standard of care. Under the committee recommendations, a person who presents to the hospital with an acute coronary syndrome should be given morphine, oxygen, aspirin and nitrates. According to the above mentioned plaintiff’s attorney, a person not getting all elements of this treatment regimen would be the victim of malpractice. However, physicians would not give morphine to a person with a low blood pressure or to someone who is allergic to the drug. A patient who has severe chronic obstructive pulmonary disease may stop breathing if given supplemental oxygen. A person who has gastrointestinal bleeding or is allergic to aspirin should not be given that drug. We know from TV commercials that a person on Viagra or Cialis should not take nitrates as that could lead to a sudden dangerous drop in blood pressure.

Opposing attorneys will try their best to discredit the expert witness on cross-examination and they have many weapons in their arsenal to accomplish this goal. One strategy is to let the jury know how much has already been paid to review the medical records, study deposition testimony and answers to interrogatories, and how much is being charged per hour to do the reviews, give testimony at depositions, and testify at trial. The amounts can be substantial and many professionals make a significant income performing as an expert witness. If it can be shown that a particular witness has been paid a lot of money, then the jury may conclude that his opinion is being bought; the credibility of the witness will suffer accordingly.

Although there are many other ways to attack an expert on cross-examination, one of the best is to show the jury that he may not be an expert at all. This can be done by exposing weaknesses in the expert’s curriculum vitae. A national survey of 2.6 million resumes done in 2003 showed that 41 percent lied about their work experience and 23 percent lied about their credentials or licenses. A surprising 41 percent lied about their education (Thomas A. Buckhoff, Preventing Fraud by Conducting Background Checks, CPA J., Nov. 2003). Opposing attorneys now routinely check the backgrounds of medical expert witnesses and they will even look at social media sites to see if they can find some incriminating information that can be used to attack their credibility.

If it can be shown that the medical expert was willing to embellish on his qualifications, it is logical to assume he has embellished his medical opinions, also.

There are few trial lawyers that can show superior knowledge to the expert in the medical field under discussion. After all, they are lawyers and it is unlikely they have ever treated an actual patient. Book knowledge is just not enough to be a good physician and that is probably why it is called the “practice of medicine.” By practicing, you are hopefully improving your knowledge and skill as a physician all the time.

If the physician can show he used his best clinical judgment at all times while caring for the patient, he will likely win his case even if the results were not good. Physicians are forced to make judgments, some of which do not work out well for the patient. These decisions are made with the best data available; they cannot rule out every single diagnosis or provide perfect care. The courts and the juries recognize this and will generally rule in favor of the physician who has used his best judgment and done it in a timely fashion. The physician can be his own best medical expert witness in this regard.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016. 

Affordable Care Act, In the Courtroom

You Can Have Your Cake

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The United States Supreme Court will soon have a decision on Masterpiece Cakeshop v. Colorado Civil Rights Commission. The decision is one of the most anticipated in the present term of the Court as it examines the rights of creative professionals to withhold their services based on religious objections. The Court must decide based on what seems to be a conflict of free speech and free exercise of religion, both provided under the First Amendment of the Constitution, and anti-discrimination law.

The facts of the case are as follows. In July 2012, Charlie Craig and David Mullins decide to get married. It was to be a same-sex marriage which, at that time, was not recognized in Colorado. They planned to be married in Massachusetts and then have a reception at a Denver restaurant. In anticipation of the Denver reception, they went to Masterpiece Cakeshop in Lakewood Colorado where they hoped to purchase a cake designed for them by the bakery’s owner.

The bakery owner, Jack Phillips, was a self-professed cake artist who was known for his elaborate cake creations for weddings and other celebrations. He was also a devout Christian who had a history of not baking any goods for any Halloween or bachelor party (sexual in nature?) themes. Since Mr. Phillips had strong religious objections to same sex marriages, he refused to design a cake that would be part of either a wedding or a marriage. Interestingly, he was willing to make them baked goods for any shower, birthday, or other occasion that was not related to the wedding. He was also willing to sell them a cake off the shelf but he just could not participate in creating a new, unique cake for the reception itself.

Craig and Mullins filed a complaint with the Colorado Civil Rights Commission against Masterpiece Cakeshop alleging they were discriminated against based on their sexual orientation. Phillips argued that his artwork was a form of speech and he could not be compelled to participate in the expression needed to make the cake. He also argued that he could not be compelled to make a cake that would impair his free exercise of religion.

The case was first heard by an administrative judge who rejected both the free speech and free exercise of religion claims. The judge reasoned that since there was no particular design or message requested by Craig and Mullins, then there could be no free speech right to deny the request.

The original decision was confirmed on appeal to the state civil rights panel. This panel then ordered Phillips to design wedding cakes for any subsequent same-sex weddings so long as he does this for opposite-sex couples. He was also ordered to provide training for his staff in regard to the state’s anti-discrimination law.

The Colorado Court of Appeals upheld this decision stating that Phillips would not be conveying a message in support of same-sex marriage just because he was following the state’s law.

Phillips followed the ruling of the courts by choosing to stop making any wedding cakes at all. This had a significant effect on his business but it allowed him to follow his religious tenets.

Phillips appealed to the Colorado Supreme Court but they declined to hear the case. However, the Supreme Court of the United States granted a review.

The issue confronting the Court is the right of artistic individuals to create works of art that are consistent with their religious convictions. One of the main hurdles for this argument is to convince the Court that custom cakes made by a self-professed “cake artist” is truly an artistic expression. One of the amicus briefs in support of Phillips includes color photos of custom cakes made for numerous occasions. Since art is in the eye of the beholder it is hard to predict how the justices will rule on this argument.

Another brief coming from then Acting Solicitor General Jeffrey Wall argues that the First Amendment protects Phillps from having to participate in any ceremony that would violate his religious beliefs. This brief is narrowly written to include only the anti-bias law relating to same-sex marriages and is clear to exclude discrimination base on race. The brief states, “[a] state’s ‘fundamental, overriding interest’ in eliminating private racial discrimination—conduct that ‘violates deeply and widely accepted views of elementary justice’—may justify even those applications of a public accomodations law that infringes on First Amendment freedoms.”

Craig and Mullins contend that any business that makes a product and is open to the public must be willing to sell to any customer. Phillips was willing to sell any cake on display in the bakery but he was not willing to use his artistic skills to make a special one relating to the same-sex marriage.

The recent Supreme Court decision of Obergefell v. Hodges 576 U.S. (2015) held that all states must recognize and license same-sex marriages. This decision rested on the Fourteenth Amendment which the majority felt protected gay couples who were trying to get married and have those marriages recognized in all of the states. In dicta, Justice Kennedy did note that “many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” Will Kennedy decide that there may be a religious exception for artists who have religious convictions contrary to the written law? There is precedent for this holding in the Affordable Care Act where certain religious orders were exempted from having to provide birth control services in their mandated insurance coverage for their employees. Will the Court write in a religious exception for artists to allow them not to use their artistic skills for religious reasons?

The case is coming down as a conflict between the First and Fourteenth Amendments. Since this battle is dealing with a highly contentious social issue, I would predict that the Court will have a very narrow holding; it is likely they will rule only on a product based on artisitic expression and they may even limit it to artistic cake makers. If they are broad in their decision, then any store owner may decide to turn away customers for any reason so long as they can show that their product has some sort of artistic expression. This would likely lead to more litigation to clarify the decision.

Obergefell was a close decision with Kennedy coming down on the side of the majority. It is likely that he will be the one to cast the deciding vote in Masterpiece Cakeshop.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016. 

In the Courtroom

Apologies May Not Be Enough

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Taking care of sick people can be a messy business and sometimes things don’t turn out as planned. When things go bad, the natural tendency of the physician taking care of the patient is to distance himself from the case; it is difficult to talk with the patient and the family when there is the threat of pending litigation.

Avoiding discussions of patient harm comes from the mindset that this harm is likely to result in a medical malpractice suit and it is best to not say anything that may be used for negative effect in the future, especially a statement that may be construed as admitting fault. In fact, it used to be common for malpractice insurers to encourage their physicians to “deny and defend” against any possibility of being accused of negligence in a possible lawsuit.

The thought of apologizing for a bad result was anathema; the apology may be the first indication that something has gone wrong and may be interpreted by the patient as physician negligence. Even if the apology could not be used as evidence of negligence, it may cause the patient to look for other evidence that they can use. Even without any other obvious evidence, the apology itself may be enough for the patient to file a suit and then look for other evidence during the discovery phase.

However, the lack of forthright communication may lead to anger which makes a malpractice lawsuit more likely in the long run. It is this theory that led many states to look at ways to increase physician-patient communication in hopes of decreasing the number of medical malpractice lawsuits. The goal was to resolve cases before they reached the level of litigation.

Under the theory that more physician communication may lead to a decrease in lawsuits, at least 37 states and the District of Columbia have enacted “apology laws” which encourage doctors to apologize to patients and their families whenever the patient has been harmed. Under these laws, the “apology” cannot be used as an admission of liability in any future malpractice action; these laws were meant to encourage physicians to show compassion and sympathy; when the patients saw that their physicians cared, the belief was they would be less likely to sue.

Unfortunately, the data is mixed as to whether or not the “apology laws” have led to a decrease in malpractice lawsuits. A study done by Benjamin McMichael, a postdoctoral scholar at Vanderbilt’s Owen Graduate School of Management showed, “In general, the results are not consistent with the intended effect of apology laws, as these laws do not generally reduce either the total number of claims or the number of claims that result in a lawsuit.” (Sorry Is Never Enough: The Effect of State Apology Laws on Medical Liability Risk)

There are thirty states and the District of Columbia which protect partial apologies; these are apologies that do not contain any admissions of liability for negligent actions. There are seven states that protect full apologies; these are apologies that may contain statements or expressions of fault, mistakes, and liability. The seven states which are known to protect full apologies are Washington, Colorado, Connecticut, Arizona, Georgia, South Carolina, and Vermont, and It looks like Ohio has just joined this group.

In a recent decision, the Ohio Supreme Court (Stewart v. Vivian, Slip Opinion No. 2017-Ohio-7526), held that the State’s apology law included acknowledgements that the patient’s care may have fallen below the standard of care. The Court stated, “expressing apology is a statement that expresses a feeling of regret for an unanticipated outcome of the patient’s medical care and may include an acknowledgement that the patient’s medical care fell below the standard of care.”

The case of Stewart v. Vivian, came from a lawsuit filed against Dr. Rodney Vivian after the death of Mr. Stewart’s wife. The wife had committed suicide after being admitted to a psychiatric unit at a hospital in Batavia, Ohio. Even though Mrs. Stewart was on a suicide watch, she was still able to hang herself during a period when she was not being observed. When Dr. Vivian later spoke to the family, he expressed what he claimed were statements of sorrow but the family felt the statements also expressed more than just sympathy and should be allowed into evidence as an admission of liability. Dr. Vivian denied that his statements admitted any negligence but the family was willing to testify, under oath, that he did.

The legal issue centered on whether or not Ohio’s “apology law” included an admission of fault. If the court believed that the law did not include admissions of fault, then the family would be allowed to testify on what they believed Dr. Vivian told them during his “apology.” The trial court ruled that Dr. Vivian’s apology could not be submitted in evidence even if the apology had an admission of negligence.

On the malpractice case, the trial court ruled in favor of Dr. Vivian. The family appealed claiming that the Court should have let them testify as to what they felt was conveyed in Dr. Vivian’s apology.

On appeal, the 12th District Court of Appeals held that Dr. Vivian’s statements were properly kept from the jury because the law was ambiguous and the dictionary definition of “apology” may or may not include an admission of fault. This ruling seemed to conflict with a previous ruling from the State’s Court of Appeals in the 9th District which concluded that the law did not include an “admission of fault.” (Davis v. Wooster Orthopedics & Sports Medicine, Inc.). Since there was a split at the Appellate Court level, the State Supreme Court stepped in and resolved the issue by agreeing with the Appellate Court. In Ohio, the “apology law” now includes admissions of negligence and it was proper for the trial court to keep all of Dr. Vivian’s statements of sympathy from the jury, even if negligence had been admitted.

The states that do not have any apology laws include Alaska, Nevada, New Mexico, Kansas, Minnesota, Illinois, Kentucky, Arkansas, Mississippi, Alabama, New York, and Rhode Island.

Since not all states with “apology laws” include admissions of fault, it would be wise for a physician making an apology to know which rule applies to his State. It would also be prudent for a physician expressing sympathy, condolence, or an apology, to pick his words very carefully. He should also make a note in the chart reflecting his thoughts at the time of the conversation; what the family claims they heard may be different from what the physician may claim he was trying to express; usually when there is a fact conflict like this, it is a matter for the jury to decide. Dr. Vivian was protected under his State’s law. Other physicians may not be so fortunate.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016. 

Affordable Care Act, Surgical Education

Not Enough Academic Faculty

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A friend of mine who is an Assistant United States Attorney recently called me to ask for help. He was trying to get a primary care provider and was unable to find any group in town that was willing to take on new patients. I was taken aback by this request since his insurance, as a federal government employee, was probably pretty good. Fortunately, I was able to make a phone call and get him an appointment with one of the groups in town; it is one of the perks of being in practice in the community for a long period of time.

The plight of this attorney made me reflect on the increasing mismatch between the ever growing patient population coupled with the rapidly rising patient population reaching the age where health care is often needed, compared to the number of health care providers.

A recent report from the Association of American Medical Colleges entitled The Complexities of Physician Supply and Demand: Projections from 2015 to 2030, predict that there will be a shortfall in primary care providers in the range of 7,300 to 43,100 by 2030.

Projected shortfalls in non-primary care providers is even more worrisome; the range predicted is between 33,500 and 43,100 with most of the deficit accruing from the surgical subspecialties. With our current methods of training new surgeons we are only able to keep up with the attrition rate of surgeons retiring or dying. With the United States population predicted to grow about 12% between now and 2030, this will amount to about 40 million more people with no increase in the number of surgeons that can take care of them.

It can be argued that increasing the number of Nurse Practitioners and Physician Assistants can help with the patients needing primary care providers. However, these providers cannot do what surgeons do. In the population over 65, which is projected to grow by 55% by 2030, many operations are needed on an urgent or emergent basis. There may not be enough trained surgeons to meet the needs of our country. We either need to train more surgeons or admit that some patients who need surgery will not be able to get it.

I am painfully aware of how difficult it is to convince bright college students to consider medicine as a career. Even my two daughters have told me that they are just not interested in working day and night as I have done. Nor are they willing to make the sacrifices necessary to get the education and training required for the profession. It seems that many students who may have been interested in a career as a physician or other type of health care provider are now looking at careers in investment banking, law, business, or the computer sciences.

Recent data shows that the average retirement age for a surgeon has dropped to 57 years. Many explanations for this drop are being given, but the most likely reasons relate to the increased overhead costs emanating from the Affordable Care Act (ACA) coupled with the decreases in payments being given by the third party payers. There comes a point where the hard work of being a physician just does not seem to be worth the income earned. Of course, there are many non-financial rewards of helping someone who is sick, but these rewards are not be enough to pay the bills of staying in practice and raising a family.

Another recent survey from the Association of Academic Health Centers (AAHC) revealed that impending faculty shortages may lead to a crisis in training the next generation of health care providers. Without enough teachers, there will not be enough trained health professionals to take care of the patients flooding the system. This will add to the impending shorages described above.

The influx of “Baby Boomer” patients is not the only problem. A recent article in the Wall Street Journal (WSJ November 21, 2017, VA Chief Wants More Private Health Care) describes a new strategy where veterans will be allowed to seek care in the private sector instead of using the VA’s hospital system. This may lead to 10 million more patients seeking care in an already over-stressed system where getting an appointment to see a provider is already very difficult. There is no data to show that VA physicians will migrate to the private sector to help ameliorate the shortage in providers.

There are several reasons which may account for this lack of faculty. First, the level of interest in academic careers is decreasing among those who are now entering the health professions. There are significant disparities between the salaries of those who go into private practice, industry, and academics. The cost of getting a medical education is high and the debt facing recent graduates is a driver to choose a private practice career instead of an academic one. The average debt for a graduating medical student in 2015 was $180,000!

Of those who participated in the AAHC survey, 20% reported that they will have to make changes in their training programs in order to make ends meet. There will be fewer training programs for radiology, rehabilitation medicine, allergy, pediatric pulmonary medicine, anatomy, and pharmacology. There will also be cut-backs in medical school class size and other residency training programs. Of all the strategies listed by the survey participants, “limiting student enrollment” was most often cited.

Of major concern, a decrease in nursing school enrollment was listed most often as the area where cutbacks in enrollment would be made. In a hospital setting, you have to have the nurses to take care of the patients. Physicians cannot admit patients to beds that are not staffed by nurses.

It is clear that we need to train more health care providers if we are to adequately care for the anticipated rise in the number of patients needing care. It is also clear that we just do not have enough teachers to adequately train the people looking to go into health care as a profession.

Hiring physicians from other countries is an option, but steps will need to be taken to assure that those providers have the education, knowledge, and training that we have grown to expect in our system.

Since most of the training of the health care work force is dependent on funding from the government, there needs to be ongoing communication from the schools and the government to come up with a strategy to build and sustain our health care educational pipeline. This is a national interest and yet, not much is being written about it in the national press. It is time for this pending crisis to be brought forth in the public arena so that our children and their children will not be left with too few physicians, nurses, and other ancillary health care personnel to take care of them when they need it. This problem will not be fixed overnight.

 

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016. 

In the Courtroom

Different States; Different Suits

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It is commonplace to hear advertisements both on television and radio where some legal firm is looking for clients who may have been injured by some “bad drug” such as a blood thinner which may have caused a bleeding problem, a faulty medical device such as meshes used for hernia repair, or for patients who may have developed mesothelioma from exposure to asbestos. The more clients they can get to sign up with their firm, the larger the possible settlement will be. Since these lawyers are usually working on a contingency, their share of the settlement is likely to be very large.

A recent Supreme Court decision will now make it more difficult for these plaintiff attorneys to reap a single large payday; instead, they will have to litigate in each state where a group of patients may have been harmed or they will need to bring the suit where the manufacturer is incorporated or where it is headquartered.

In Bristol–Meyers Squibb Co. v. Superior Court of California, San Francisco County, Et. Al., a group of plaintiffs, many of whom were California residents and some who were allegedly injured in other states, brought suit claiming that they were injured by Plavix, a blood thinner. The legal issue centered on the State’s jurisdiction for the nonresident plaintiffs. Bristol-Meyers Squibb (BMS) tried to get the nonresidents’ claims removed from the suit because of lack of personal jurisdiction in the State. The Court ruled that there was enough activity by the defendant to allow for general jurisdiction by the California Courts. In order for general jurisdiction to attach, it must be where the defendant corporation is deemed to be at home. This could only be where the defendant is headquartered or incorporated. Since BMS was incorporated in Delaware and headquartered in New York, general jurisdiction should not have attached so the Court got this legal issue wrong and BMS appealed.

The Court of Appeals agreed with BMS and found that California did lack general jurisdiction but the Court went on to hold that California did have specific jurisdiction over the claims brought by the nonresident plaintiffs. In order to have specific jurisdiction, the defendant needs to have a connection with the forum and the specific claims at issue. Was the connection enough to force BMS to defend itself in California for the injuries claimed by plaintiffs who were not injured in California? Previous jurisprudence seemed to require that there must be a connection between the forum and the specific claims at issue. How could the claims of nonresidents be connected with BMS activities in California?

The California Supreme Court felt that BMS’s contacts with the State were enough to allow for specific jurisdiction over the nonresidents’ claims because these claims were similar to the residents’ claims and because BMS had sufficient activities in the State to support jurisdiction. They relied on the fact that BMS had contracted with a California company, Mckesson, to distribute Plavix nationally.

The United States Supreme Court took the case on appeal and they held that the California courts did not have this specific jurisdiction because the suit of the nonresidents did not “arise out of or relate to the defendant’s contacts with the forum.” The Court held that the contract with Mckesson was just not enough to force BMS to defend itself against the nonresident plaintiffs.

The decision in Bristol–Meyers Squibb does not say what will need to be done if there is more than one defendant each headquartered or incorporated in different States, but the logical conclusion is that there will need to be separate suits for each defendant. This may make comparative fault issues very difficult to decide and is likely to lead to crossclaims and counterclaims. This will likely increase the costs of litigating these types of cases.

In a dissenting opinion, Justice Sotomayer stated that this decision will make it much more difficult for plaintiffs to hold corporations accountable for conduct that is uniform around the country. She wrote that it “does not offend ‘traditional notions of fair play and substantial justice,’” International Shoe, 326 U.S., at 316, to permit plaintiffs to aggregate claims arising out of a single nationwide course of conduct in a single suit in a single State where some, but not all, were injured.” In essence, Sotomayer believes the decision will overturn the holding of International Shoe which allowed States to go after corporations that did substantial business in their State. However, the holding still allows the States to have jurisdiction, but they can only fight for those who were injured in their State. It looks like International Shoe will still have a role in this type of litigation.

With this decision, plaintiffs will only be able to bring a legal action in the State where they were injured or in the defendant’s state of incorporation or where the defendant is headquartered. This means that actions which could have been decided in one court may now have to be divided with each interested State litigating the same type of case in their own jurisdiction. This division of cases could lead to very different results and will significantly add to the costs of the firms who are bringing suit in the first place; court costs, expert witness fees, time spent by the lawyers dealing with each court, will be multiplied by the number of States in which there are plaintiffs alleging injury.

In general, plaintiff’s attorneys do not like to bring suit in the defendant’s home State as they feel those courts are more likely to be favorable to the corporation. It is common practice for plaintiffs to bring suit in a forum which they feel will be more receptive to their cause. Bristol–Meyers is likely to make forum shopping by plaintiffs more difficult.

Of course, plaintiffs can try to start a “class action” on a national level, but that has a whole set of rules that can be difficult to meet. This is especially evident when different plaintiffs are looking for different remedies or when there are different attorneys looking to represent different plaintiffs.

With the decision in Bristol–Meyers Squibb, plaintiffs will no longer be able to consolidate a legal action in a State in which only some of them have been injured. This will hold even if the plaintiffs who were injured in different States are suing the same company for the same type of conduct that is alleged in the forum State. In the future, the only type of mass action that will be allowed will have to be brought on the defendant’s home turf. This will be to the disadvantage of the plaintiffs who would prefer the case to be heard by a more favorable State court and will make it more difficult for the plaintiff who may have to deal with a jurisdiction far from his home State.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016.