Supreme Court Score Card

Well, the good people of SCOTUS just wrapped up their term and now get a nice long summer vacation. (Or a long rest-of-life vacation, if you’re Justice Souter.) But nurse & lawyer are still hard at work! Of the 83 cases decided by the Supreme Court this term, these lucky 7 addressed health care-type issues. For the next week, Lawyer will review one case each day with a brief summary and an even briefer opinion!

Wyeth v. Levine: Oooh, remember this one from the early days of Nurse & Lawyer? The question was whether a drug company could be sued for damage caused by the on-label use of an approved drug. (In other words, for insufficient warnings on the label.) The drug company says that being FDA-approved should give them protection. But the patient – who lost an arm, by the way, to a gnarly infection — prevailed! The FDA requirements represent a MINIMUM – and are not sufficient to get the manufacturer off the hook.

Lawyer says: Patient Protection Win!

paging dr. rich!

USA has a new show called “Royal Pains” about a fired ER doc who starts a concierge practice in the Hamptons. Wha’ts up with these guys?

Nurse: The show is careful to make its protagonist a “good guy”– in addition to accepting lavish accommodations and bars of gold, he treats a dog walker and a fisherman, pro bono, and he contemplates the conflict between making money and doing good out loud, on camera. so i think they’re aware of the issues, and trying to kind of. . . skirt it?

There’s some interesting stuff out there, including USA’s page on the subject, and a bunch of blogs. (see this one, and another)

Some Issues:

**Does conceirge medicine create a two-tiered health system, with better care for the wealthy?

Lawyer: We have two-tiered systems in all kinds of other things. Is it wrong to run a private school? Is it wrong to be a lawyer in a firm instead of a public defender? One could argue that those types of services are just about as essential as medicine, and we’re perfectly fine with allowing people to pay huge amounts of money for exclusive service even though there’s a less-awesome public option available for everyone.

Nurse: But some would argue that health care is a human right, and paying for much better care is somehow icky. Should you be able to butt in line in the ER of a private hopital if you’re rich simply because the poor people could go somewhere else?

**Can people receive better care, including preventive care and chronic disease management, when it’s not based on insurance payments?

Nurse: I’ll tell you right now, yes.

Lawyer: It looks like in at least some states (Maryland, Washington), insurance commissioners have contemplated stepping in, claiming that charging a flat rate for unlimited services constitutes running an insurance company. And that sounds pretty much wrong to me. Insurance companies assume risk, right? And anyway, isn’t the whole point of this that it operates outside of insurance?


**Some PCP’s are switching to this model and dropping longtime patients who won’t pay a large retainer. Is this unethical?

Lawyer: Isn’t it always kind of unethical to drop patients without referring them to another clinician who can treat them?

It’s a difficult question because if resources were unlimited (i.e. there were plenty of doctors), then I wouldn’t see any issue with it. But we’re facing a shortage in a lot of places already, and if we’re talking about universal health care, it will be an even bigger shortage. (Is this where we renew the call for nurse practitioners to fill more of that role?)

Is it possible that there might be some middle ground?Doctors who treat the masses, but reserve a certain number of appointments for VIP patients, and/or work certain hours as in-house doctors and fancy places, but still maintain a practice a few days a week? It looks like this might create trouble with insurance companies, who won’t “share” the docs?

Nurse: General medicine is not a popular choice these days because specialties pay much better.

Lawyer: But then again, is it not better to be a g.p. to the rich only then to say fuck it, I’m gonna run a Ponzi scheme? Or be a plastic surgeon who specializes in nose jobs? At least this way, a small cadre of patients are being taken out of the waiting rooms of the remaining doctors.

For that matter, does someone who has the abilities needed have some moral duty to go to medical school because we have a shortage of doctors? It would be hard to argue that they do. But if if you’re arguing that a doctor has a duty to be a GP to anyone who needs one, aren’t you more or less saying the same thing?

Nurse: Well, not exactly, but I do think there may be a reasonable sense of duty. I feel like I’m answering a call of duty in a way by being a nurse when we have a nursing shortage.

**There’s a professional organization for docs with this type of practice. They have some interesting stuff on their site, www.simpd.org.

Lawyer: But the simpd site does oppose adoption of electronic health records. Which was interesting — it makes sense that for a doctor who basically works solo, it would be a different process than for a large hospital, but honestly, I can’t get behind it. bring a laptop, Dr. Richy Rich. If you charge so much, then you should be able to afford the software.

This is bad on so many levels.

Check out this super-scary article from the Times: at a VA hospital, one of the doctors made an astounding number (92. That’s ninety-two) of errors in performing a procedure to implant radiation seeds as treatment for prostate cancer before regulators finally got their asses in gear. The doc made various efforts to cover up his mistakes, rather than, for instance, seeing more training or deciding that that was not a procedure he ought to continue to perform.

Let’s take an index of failings here: 1. The doc himself. 2. The hospital staff who structured the cancer unit such that there was no peer review — nobody was watching this guy. 3. The VA, for investigating briefly and deciding that no error had been made, since the surgeon involved had revised his operating plan before leaving the OR to match more closely with what he actually ended up doing. (This needs to be allowed so that doctors can change their plans based on what they find when they get in there, but apparently they don’t need to document a good reason for the change? Anyone?) 4. The joint regulatory commission for accrediting the hospital even AFTER the beginnings of this deep failing had been uncovered. 5. The Nuclear Regulatory Commission for failing to notice/care about any big problems until recently.

All of this is deeply disturbing — but what gets me the most is that most of these patients were not told of any error or even failure of the procedure. The surgeon reported that everything was fine.

In a recent post, we discussed the possibilities for reducing medical malpractice suits. But I gotta say, if ever there was a place for one, this is it. Maybe I can use this as a mental test for any future ideas about reducing suits: could we still sue this A-hole? I don’t know enough about law yet to know if there’s the possibility of any criminal charges here, but pretty much everyone involved was certainly  negligent. What’s going to happen now? I don’t know. I wouldn’t be surprised to see some of these patients come forward to sue the doctor, the hospital, the whole VA — for damages.

I have a question for you nurse-types out there: should the other doctors involved in fixing some of these mistakes (e.g. a urologist called in to remove seeds from a patient’s bladder while he was still under anesthesia) and/or nurses who assisted with the procedure have followed up more aggressively to make sure these errors were properly reported and corrected?

Go NYT and reporter Walt Bogdanich for digging this out. Way to go, America. Treating your veterans with real care here. Now just waiting to see if anyone actually gets held accountable.