Another Hospital Death Due To “Alarm Fatigue”

alarm clock.jpgLast summer, a 60-year old man died at UMass Memorial Hospital. Apparently, for an hour before the man’s death, alarm bells were ringing indicating that the patient had a fast heart rate and potential breathing problems. But the alarms went unanswered.
The incident was only reported to state officials this spring and, according to The Boston Globe, the man’s death is being investigated as another case of “alarm fatigue.”
“Alarm fatigue” is a catchall term for a growing phenomenon in hospitals. It can describe situations where doctors and nurses shut off an incessantly ringing monitor to avoid its unpleasant sound, as well as situations where an alarm goes off audibly but it is either consciously or unconsciously ignored by health care providers who have become desensitized to its tone.

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Lawyer Who Serves As Advocate Against Elder Abuse Wins MacArthur Grant

MEmacarthue08_1316465640.jpgLast week, the MacArthur foundation announced this year’s winners of their $500,000 grants (commonly known as their “genius grants”). One of the recipients, Marie-Therese Connolly, is a lawyer who has devoted her life to combating elder abuse and neglect.
A graduate of Northeastern University School of Law right here in Boston, Connolly was working in the Department of Justice in the late 1990s when a Government Accountability Office (GAO) investigation uncovered abuses of patients at many nursing homes nationwide. In response, President Clinton directed the DOJ to create what became known as the Elder Justice and Nursing Home Initiative and Connolly was put in charge.
In an interview with NPR’s Morning Edition, Connolly said she hopes the award will bring greater attention to the plight of the abused elderly. Connolly stated that 1 in 10 Americans over the age of 60 is the victim of abuse or neglect. Among elderly with dementia, the rate of abuse is even higher. A staggering forty-seven percent of elderly with dementia suffer abuse. And only about one in twenty-five incidents of elder abuse is reported or investigated.
Congratulations to Connolly on this great honor. Advocates against elder abuse and neglect have made a lot of progress in the past decade but much remains to be done.

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Link Roundup (Now With Great Graphic!)

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  • Earlier this week, I blogged some of my feelings on the death penalty. The post centered around the epistemic problem of how we can ever really know the man (or woman) we’re executing is innocent. This morning, at Above The Law, Elie Mystal blogged his own polemic against the death penalty, one that put aside the question of actual innocence of some Death Row inmates and that focused on how contrary to human dignity the administration of the death penalty is. As Mystal wrote, “The state of Georgia MURDERED an unarmed man last night, and we’re debating whether or not they considered all of the relevant evidence? We’re debating the process by which Georgia came to the conclusion it had the right to terminate the life of another man? This is what passes as civilized? Freaking Batman — who is a lawless vigilante — won’t murder a defenseless Joker even after Batman personally witnesses the Joker killing hundreds, and we applaud Batman for his heroic restraint.” Given Mystal’s position on the death penalty and his challenge to us to look the death penalty in the eye, I am sure that Mystal was happy to see the news that Texas is abolishing the customary last meal for death row inmates. The ritual of the last meal is something that makes the death penalty look a lot more humane than it is.

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Massachusetts Think Tank Issues Hackneyed White Paper On Tort Reform

think-tank.jpgLast week, The Pioneer Institute, a Massachusetts think tank, issued a white paper dubiously entitled, “Innovative Medical Liability Reform: Traditional and Non-Traditional Methods,” in an effort to persuade Beacon Hill to adopt tort reform measures that include caps on non-economic damages and protections for medical malpractice insurers that would enable the insurers to pay out medical malpractice settlements and verdicts over time, rather than in lumpsums. The paper is notable not for its contributions to the debate over health care reform, but for the way it parrots the canards of the tort reform movement and shifts focus from the core of health care spending.
Interestingly, nowhere in the white paper is there any mention of the fact that several thousand Massachusetts residents are killed annually by preventable medical errors. It doesn’t really help your crusade to protect doctors and insurance companies when you point out that doctors kill more than 100,000 Americans annually through medical malpractice. Nor does the paper discuss the fact that many deaths due to medical malpractice are preventable. For example, the use of a 19-step surgical checklist has been shown by to reduce medical malpractice by forty-seven percent but only one-fifth of hospitals require the use of such a checklist.
The stated goal of the Pioneer Institute’s Health Care Initiative is “cost containment” and reduction in health care costs. But, as any regular reader of this blog knows, trying to reduce health care costs by changing medical malpractice law is a doomed project since the insurance payouts and legal costs associated with medical malpractice lawsuits amount to one-half of one percent (0.5%) of our total health care spending. When you throw in a generous estimate of the costs of so-called “defensive medicine,” the total cost expended on medical malpractice amounts to $45.6 billion. $45.6 billion sounds like a big number, but when you consider that we spend 16 percent of our $14 trillion GDP on health care costs, you realize that it’s a relative drop in the bucket. And a lot of that spending on medical malpractice is necessary — to compensate the patients who have been maimed by medical malpractice and the families of those who have been killed by it.
The white paper claims, “There is widespread agreement that the majority of tort systems across the country are driving up the cost of health care….by increasing the cost of medical malpractice premiums.” But the cost of medical malpractice premiums are included in the $45.6 billion price tag recently published in the journal Health Affairs. And numerous studies have shown that medical malpractice premiums have not fallen in states that have enacted medical malpractice tort “reform.” This is paradoxical, but the price of medical malpractice premiums, like most insurance premiums, is driven primarily by the investment performance of insurance companies, not payouts on losses. Furthermore, the medical malpractice industry is hardly some shining example of perfect competition, as many states only have several firms issuing policies.
If you were serious about bringing down the cost of health care, you would focus on something other than medical malpractice, such as the fee-for-service model of our health care system that gives hospitals a financial incentive to conduct wasteful tests and procedures.
Medical malpractice “reforms,” like caps on damages, will compound the injury suffered by the victims of medical malpractice. And doctors will not see savings in malpractice insurance costs. The only ones who will benefit will be the insurance companies.
Medical malpractice “reform” is a perennial topic on Beacon Hill. Let’s hope that our legislators don’t buy the snake oil this session.

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The West Memphis 3, The Death Penalty, And What Juries Get To See And Hear

West Memphis Three.jpgThe other night I watched “Paradise Lost: The Child Murders At Robin Hood Hill.” I was spurred to watch the movie by the fact that the three men accused of the horrific murders were released on August 19, after winning the right to a new trial on appeal, and by the fact that the “Paradise Lost” documentary is critically acclaimed (ranking number twenty-four on this New York Times list of the top documentaries and ranking highly on law professor Alberto Bernabe’s list of the top legal documentaries).
After watching the documentary, I found myself agnostic about the three defendants’ actual guilt or innocence. But what I found most remarkable about the documentary was the fact that the pieces of evidence that I found most telling were from candid moments captured by the ever-present cameras, candid moments of the sort you never see when a witness is giving a formal performance on the witness stand, as well as pieces of evidence which a jury would never get to hear, due to the rules of evidence. The whole documentary made me reflect on what a little glimpse that juries get of the actual facts, of the reality of a situation.
In watching “Paradise Lost,” the most important pieces of “evidence,” from my perspective, were from moments that the jury did not see or hear and, indeed, some pieces of evidence that a judge would never let a jury see or hear. For example, as the jury was out deliberating, the documentary crew captured a scene between Jason Baldwin and his lawyer in which the lawyer asked Baldwin in effect, “Do you think that [co-defendant] Damien Echols could have done it? Do you think he was capable of killing three boys?” Baldwin, Echols’ best friend, equivocated and he said he didn’t know. For me, that was damning. The fact that someone’s best friend would not say that it would be impossible for his friend to carry out such a heinous set of acts, made me doubt the actual innocence of Echols.
Interestingly, a jury would never in a million years get to hear that admission of Baldwin’s. In a criminal case, a defendant can introduce evidence of his good character to show that he never would have committed a crime that he was accused of, but the prosecution cannot do the same: the prosecution cannot use evidence of a defendant’s character to show the defendant had a moral capacity for committing a crime. (By clicking here, you can check out Federal Rule of Evidence 404 (“Character Evidence Generally”); most states have a cognate rule of evidence).
The other pieces of “evidence” that I found most telling in the “Paradise Lost” documentary were the candid moments that the documentary crew spent with witnesses outside the courtroom. For instance, the documentary crew captured John Mark Byers, step-father of one of the victims, on a firing range, acting out fantasies of sadistic revenge against the accused murderers. Later, come trial time, the defense team unearthed some inconsistencies in Byers’ statements to police and used the inconsistencies and other facts to argue that Byers may have been involved in the boys’ murders. They called Byers to the stand, and daringly pointed the finger at him. On the witness stand, Byers presented as a meek and mild-mannered man. But the scene of him on the firing range, articulating exactly what he’d do to the accused murderers if he were to lay his hands on them – the type of candid scene where a witness lets his hair down, the type of scene that a jury never gets to see – made me think strongly that Byers might have been capable of the type of violence involved in the murders.
Perhaps the starkest example of how differently witnesses can act on the stand, when they know they are being watched, compared to their every day life came in an interview with the mother of one of the murdered boys. The woman, prior to an on-the-air news interview being commenced was all-golly-gee-I’m-going-to-be-on-TV. Rather than a bereaved mother, she looked like an excited teeny bopper feverish at the thought of having her face plastered over all of the local television sets. As the camera man counted down, “In 3-2-1,” prior to the news team’s going live, the woman’s demeanor changed completely and she became a bereaved mother. The hyper-perky publicity hound side of her personality was sickening and destructive of her credibility. But it’s something a jury would never get to see: a jury almost always sees only the public face, the mask the witness wears during the public performance of testifying.
While our process gives the jury a picture of reality that is often too small and narrow, it is also prone to errors of showing the jury too much: of allowing jurors to hear evidence that is absolutely misleading and irrelevant. “Paradise Lost” illustrated this tendency perfectly with the “expert” testimony of a correspondence school PhD in the occult who essentially was put in front of the jury to convince them that Ecchols and Baldwin were satanists and therefore murderers. Even in today’s world of Daubert and Kumho Tire, many courts abdicate their role as gatekeepers and let in charlatans as experts, without looking closely at their methodologies. The testimony of such quack experts is unfortunately all-too-common in death penalty cases. The other day the Supreme Court ordered a stay of the execution of African-American death row inmate Duane Buck, based on the fact that a psychological expert, Walter Quijano, was allowed to testify at the sentencing phase of Buck’s trial that black and Hispanic convicts are more dangerous than other convicts.
Our system’s tendency to let dangerously misleading evidence in front of jurors was also on my mind recently, as I read the news of how a suspect in a high-profile violent robbery in Woburn, MA was arrested and identified based on an unusual ankh tattoo sported by the robber. When such evidence of an unusual identifying characteristic is presented to a jury, it is normally very powerful. The jury tends to reason that, if one in a million people has such a peculiar tattoo, the odds of the defendant being the wrong man are one in a million. But in fact, this is a statistical fallacy known as “the prosecutor’s fallacy.” The actual odds of the defendant being the right man based on the tattoo are much lower: they are one in however many people out there have the same tattoo. Nevertheless, I know of no jurisdiction where a defendant can have a judge charge the jury to be wary of this fallacy. The evidence that the jury receives inevitably presents a distorted view of the world.
I came away from “Paradise Lost” nauseated by the murders and uncertain of whether Ecchols or Baldwin were involved. Even considering some of the new DNA evidence that has been unearthed in their cases, I am uncertain whether Ecchols and Baldwin are actually innocent.
I also came away convinced, more than ever, that the criminal process can never provide the certitude necessary to prevent the execution of the innocent. Juries get to see too little and too much of the reality of what happened outside the courtroom for us to presume they can render infallible verdicts.
Dahlia Lithwick had an excellent article in Slate today, pointing out how Republicans like Rick Perry are skeptics about government’s ability to do run anything – from a health care system to public works projects – but that they are absolutists when it comes to the government’s ability to discern guilt or innocence with enough certainty to kill the convicted.
But it’s not just Republicans who are prone to overrate the capacities of our judiciary. It’s also lawyers, lawyers who are so intimately familiar with the wonderful beauty of parts of our system of justice, that they believe boundlessly in our system’s capacities. It was a law professor after all, John Henry Wigmore, who famously declared that, “Cross-examination is the greatest engine for the search for truth.” When, for whatever reason, we fall prey to the idea that we can reach from the well of a courtroom to the pure reality of events that transpired outside of that courtroom, we risk the state-sanctioned murder of an innocent man.
PS: I would love to see some experts on professional responsibility, such as Professor Bernabe, give us their take on the ethics of the defense team’s allowing such unrestricted behind-the-scenes access.

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How Can Doctors Be Both Overworked and Overpaid?

stress.jpgThe headlines are hard to reconcile. This week, the journal Health Affairs published an article showing that American doctors are paid more per service – in some cases double! – than any of their foreign counterparts. American primary care physicians are paid approximately seventy percent more per office visit than doctors in other developed countries. And American specialists rake in even more: US orthopedic surgeons earn approximately 120 percent more for a hip replacement than surgeons in other countries. The study went on to find that these higher fees earned by American doctors are not connected to higher practice costs (such as malpractice premiums, rent, office staff salary). It’s no wonder that our doctors are, far and away, the world’s best paid.
Yet a week earlier, the Mayo Clinic published a study finding widespread burnout among young physicians.
How is it that doctors are both handsomely paid and burned out on their profession?
I think the answer ties into some of my recent posts on abolishing licensure requirements for lawyers.
The medical and legal professions’ regulation of their members is a carryover of the medieval guild system in which artisans were required to be guild members in order to ply their trade. The guild system operated primarily for the benefit of those at the top of the profession – the master craftsmen. The others involved in the guild system – apprentices and journeymen – worked long and hard to pay their dues.
Medicine is the same way. Young residents work 100 hour weeks to pay their dues and work their way up. Doctors in the early stages of their careers work long hours to build up practices on their own, or to cover for older doctors if they are part of a group practice. Finally, in the last leg of their careers, many older doctors simply kick back and cash their large paychecks.
And those large paychecks are possible only when a guild system artificially constricts entry into the medical profession. The fact that many young doctors are concluding that the rat race is not worth it and that we have a looming shortage of primary care physicians suggests that the guild system is broken in medicine. The solution – one which would lower our health care costs as well as improve the happiness of medical professionals – is to let medicine be practiced by more than those who went to medical school.

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First, Let’s Deregulate All The Lawyers

kill all the lawyers.jpgIn late July, in response to a forthcoming book arguing that anyone should be able to practice law, I wrote “Should Lawyers Need Law Licenses?” in which I conceded that there was no defensible argument for laws prohibiting the “unauthorized practice of law.”
A month later, The New York Times’ editorial page caught up with me. In a staff editorial entitled “Addressing the Justice Gap,” The Times advocated for the deregulation of the legal profession, arguing that such a move would enable low income Americans to obtain legal representation.
The Times is undoubtedly correct on this score. I stand by my original post. Unlike a doctor – whose malpractice might leave you maimed or paralyzed – legal malpractice generally only results in a financial injury or loss. Thus, were we to allow anyone to practice law so long as he carried sufficient malpractice insurance, consumers would not be harmed by the entry of lesser legal practitioners into the market.
It’s probably not something we’ll see in our lifetime. But that doesn’t mean the idea is wrong.

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We Spend The Most On Health Care And Have The Least To Show For It In Terms Of Patient Safety

Hospital Mistake Lawyers.jpgIt’s a familiar theme: Americans spend the most on health care, and often get the least in return. Last December, I blogged about how we spend the most per patient on dialysis treatment and have the world’s highest dialysis mortality rate.
Now, from medicalcodingandbillingcertification.net, comes a new infograph that sets out how our hospitals are among the world’s most unsafe, despite our spending the most on health care. (H/t Andrew Sullivan). The infograph breaks down the reason why US hospitals rank last out of 19 developed countries in preventable hospital deaths.
You stand a 1 in 300 chance of dying in an American hospital due to medical error. (By way of contrast, the average American stands a 1 in 10,000,000 chance of dying in a plane crash).
In American hospitals, 1 in 7 hospital-acquired infections lead to death, while in Europe only 1 in 122 do so. 99,000 people die due to hospital-acquired infections in the US each year. American doctors only wash their hands about one-quarter of the number of times that they should.
The long hours of medical residents are another reason why American hospitals lag in safety. Residents who work five or more 24 hour shifts in a month are seven times as likely to make a medical error as their peers. Also, doctors leaving the hospital after a 24-hour shift are 168% more likely to be in a car accident on their way home.
Sometimes you get what you pay for. In American health care, we don’t.

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