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Malpractice, Health Care and


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Title: Malpractice, Health Care and

Malpractice, Health Care and Me
  • Cindy Allen, MSHS, RT-R, RDMS, RVT
  • Clinical Applications Specialist, SonoSite, Inc.
  • Consultant, GCUS

There are no facts, only interpretations."
  • Friedrich Wilhelm Nietzsche
  • 1844  1900

Healthcare Cost Containment
  • Estimated gt 2.4 Trillion dollar industry
  • Hospital charges were 873 billion in 2005,
  • 943 billion in 2006, 70 billion change in
    1-year! Agency for Healthcare Research and
    Quality, 2008
  • 45-47 million uninsured in the US (estimated)
  • collective population of GA, SC, NC, TN, VA,
    KY, MD, DC (estimated 2008)

  • Define liability, negligence and malpractice.
  • Review the etiology of malpractice
  • Identify statistics from the government and
    research articles
  • Recognize areas of risk for ultrasound
  • Suggest improvements in day-to-day flow

  • Professional misconduct encompassing an
    unreasonable lack of skill or unfaithfulness in
    professional or fiduciary duties.

Malpractice Liability
  • Has grown much faster than overall health care
  • Most Common Targets
  • Obstetrics
  • Neurology
  • Emergency room care
  • Konig, Health Care News, January 2006

Bureau of Economic Analysis
  • 1955 - 2005 Household
  • Food ? 22 to 10
  • Eating out - taken for granted.
  • Ready to eat - normal.
  • Staples hold paper together.
  • Spending on health care quadrupled 5 to gt 20
  • 1929 1945 Household
  • Budget - 23 food
  • Ready to eat - luxury.
  • Eating out - rare.
  • Staples - Groceries (flour, sugar. etc.)
  • Health care 4

Medical Negligence
  • Medical negligence is a breach of duty to behave
    reasonably and prudently under the circumstances
    that causes forseeable harm to another.

Errors in Medicine
  • Define the failure of a planned action to be
    completed as intended or the use of a wrong plan
    to achieve an aim
  • To Err is Human Building a Safer Health System.
    Washington, D.C. National Academy Press, 1999

Malpractice Insurance
  • Tort law is the name given to a body of law that
    addresses, and provides remedies for, civil
    wrongs that do not arise out of contractual
    duties. Malpractice Insurance has been referred
    to as a Tort Tax.
  • A person who is legally injured may be able to
    use tort law to recover damages from someone who
    is liable, for those injuries.
  • Torts cover intentional acts and accidents.

Health Care Costs
  • Physicians spent 6.3 billion dollars last year
    on malpractice premiums.
  • The estimate of savings from limiting
    unreasonable awards for non-economic damages
    could reduce healthcare costs 5-9 per year.
  • This would cover 2.4-4.3 million Americans.
  • http//

Medical Claims
  • Only 1.53 of those injured by medical negligence
    file a claim.
  • Estimate 98,000 deaths/year
  • 57-70 of claims result in no payment to the
  • Cost to defend a claim on average 24,669
  • Jury trials average 4.7 million
  • http//
  • Student Doctory Network

Liability ED
  • A 15-year Emergency review
  • Causes/missed diagnoses appendicitis,
    myocardial infarction, fracture, infection,
    aneurysm, and cerebrovascular disease. Ann Emerg
    Med 2007492196.
  • Failure to order indicated tests 58
  • Incorrect interpretation of tests 37
  • Most of the missing tests were imaging, such as
    ultrasound, radiographs, or CT
  • Glauser, Jonathan MD, MBA. The Etiology of
    Malpractice. Emergency Medicine News. Volume
    30(7), July 2008, p 67

Contributing Factors
  • Excessive workload - 23 percent of cases
  • Handoffs - 24 percent of cases with error and bad
  • Lack of supervision
  • Fatigue
  • Patient-related factors
  • In one of six missed diagnoses, test results did
    not reach the correct clinicians.
  • Glauser, Jonathan MD, MBA. The Etiology of
    Malpractice. Emergency Medicine News. Volume
    30(7), July 2008, p 67

Liable for Medical Negligence
  • Duty to provide care
  • Deviation from the Standard of Care
  • Damages - forseeable harm
  • Direct correlation - damages must occur from the
    breach of the alleged standard of medical care.

A liability of malpractice
  • Physician-patient relationship
  • Breach of Standard of Care
  • Most often contested
  • Negligent Act must have cause injury
  • Proximate cause
  • Patient must have sustained an injury

Standard of Care /Three Words
  • Reasonable not extreme, not excessive,
    moderate, not demanding too much possessing good
    sound judgment, well balanced sensible
  • Ordinary common, lacking in excellence, not
    distinguished in any way from others, not above
    but rather below average, somewhat inferior level
    of quality
  • Average typical, usual, a representative type,
    mediocre, run-of-the-mill, so-so, midway between
    the extremes, lack of distinction.

Insurance for the Sonographer
  • SDMS 1M/6M
  • 20 Student
  • 98 Full Time Employed
  • 190 Part-time Employed
  • 293 Self-employed
  • ASE no current offering
  • SVU 1M/3M
  • 29.50 Student
  • 90.00 Full-Time Employed (W-2)
  • 90.00 Part-time Employed (W-2)
  • 176 Self-Employed (1099)

Apology Law
  • Allows health care providers to apologize and
    offer expressions of grief without their words
    being used against them in court.
  • Goal encourage communication
  • Disadvantage court system
  • Virginia has an apology law.

Apology Law
  • More than 30 states have enacted laws making
    apologies for medical errors inadmissible in
    court. Patients may still sue for malpractice
    they simply have to make their case without
    bringing up the apology.
  • American College of Physicians Ethics Manual, 3rd
    ed. American College of Physicians, Philadelphia.
    1993, and Doctors who say they're sorry. May
    22, 2008. New York Times editorial.

Review the etiology of malpractice
  • Objective 2

Etiology of Malpractice
  • Battery injury by assault or inadequate care
  • Negligence below standard of care
  • Wrongful Death
  • Loss of a Chance of Recovery or Survival
  • Res ipsa loquitur (the thing speaks for itself)
  • Lack of Informed Consent (considered battery)

Etiology of Malpractice
  • Abandonment
  • Breach of Privacy and Confidentiality
  • Breach of Contract or Warranty to Cure
  • Products or Strict Liability for Drugs and
    Medical Devices
  • Actions of Health Care Providers

Etiology of Malpractice
  • Negligent Referral
  • False Imprisonment (Restraints)
  • Defamation
  • Failure to Warn or Control (Safety)
  • Negligent Infliction of Emotional Distress

Etiology of Malpractice
  • Failure to Report
  • Infection control
  • Battered children
  • Elder abuse
  • Fraud and Misrepresentation
  • Loss of consortium

Defensive Medicine
  • A 2005 survey of 844 physicians
  • 88 have been sued (National Ave 25)
  • 92 have ordered tests, performed diagnostic
    procedures or referred to specialist for the sake
    of assurance
  • 33 reported using imaging technology in
    clinically unnecessary circumstances.
  • http//

Specific to Sonography
  • Average pay-out 300,000 (1990)
  • Abnormal finding. In 40 of the cases, an
    abnormality was found at delivery
  • Sonography report inaccurate- 67
  • Image quality problems 30
  • Not following ACR guidelines 10
  • Incorrect patient demographic 5
  • Radiologists held liable - 60
  • Brennan, AJR, 1998

Examples of When a Sonographer is Liable
  • Physically molesting a patient.
  • Letting a patient fall, causing injury.
  • Giving the patient or accompanying doctor a wrong
  • Revealing confidential information about the
    contents of the sonogram or disclosing any
    information that has adverse affects on the
  • Clinical Sonography. Roger Sanders and Tom
    Winter. 2007

Recognize areas of risk Specific to Ultrasound
  • Objective 3

  • Shortage of physicians and personnel
  • 6 imaging personnel
  • Shorter exam time expectations
  • Residents are specializing in higher
    reimbursement areas
  • Demand for primary care physicians
  • Retiring physicians creating need

Demands on Physicians/Providers
  • Less time per patient
  • Driven by reimbursement basis fee per service
    (office and outpatient)
  • Learning new computer systems
  • Computer Order Entry Systems
  • Electronic Medical Records
  • PACS
  • Matrix for standard of care

Changes to Residency Programs
  • July 1, 2009 patient load restrictions
  • In 2003, work hours were capped
  • Cost of hospital care and hospital medicine
    groups (HMGs) expected to increase
  • Hospitalist to see more patients
  • Experience level of new graduates expected to
  • No additional reimbursement planned
  • Resident Restrictions. Hospitalist. 2009 13(1)

  • As a delegated, supervised agent, sonographers
    malpractice risk was lower
  • Not considered an independent provider
  • NP, PA, MD, DO, PT
  • Supervised by licensed person ? insulates risk
  • Implication is the employer is responsible if
    employer is named.

As professional image increases
  • Reduction in supervision/requirements
  • Revision from direct to general supervision
  • Focus and attention increases
  • Expectation increases
  • ? supervision, ? risk

Decisions on Image, not on Interpretation
  • Increased reliance on the Ultrasound Image
  • Digitized world
  • Interventions based on Ultrasound image
  • Ultrasound more frequently used in guidance or
    interventional procedures
  • No fail-safe

Preliminary Reports
A Preliminary Report
  • Is not considered legally hazardous as long as
    the sonographer does not attempt to make a
  • If working with a sonologist, the sonologist is
    responsible for correcting the sonographer
    film/techniques gallbladder sludge,
    pseudohydronephrosis, missing pathology not
    moving patient, missing pathology due to
    transducer frequency.
  • Clinical Sonography. Roger Sanders and Tom
    Winter. 2007

Areas of Risk Preliminary Reports AIUM on OB-GYN
  • A preliminary report is a written or verbal
    report released prior to being signed by the
    physician responsible for giving the final

Prelim OB-GYN
  • Preliminary reports for fetal biometry,
    biophysical profiles, and viability can be given
    by a sonographer who is ARDMS-registered in that
    specialty, if the results are normal and the
    final report is complete within 2 hours

AIUM on OB-GYN Prelims.
  • The preliminary report is equivalent to a
    worksheet. Limitations
  • Cannot have recommendations/ impression.
  • Labeled "Preliminary Report."

AIUM on OB-GYN Prelims.
  • A written policy for communicating the
    differences and changes that arise between the
    preliminary and final report must be in place.
  • Verified final reports must be available within
    24 hours of completion of the exam.

Preliminary Reports ICAEL
  • The ICAEL strongly discourages the use of
    sonographer prepared preliminary reports,
    worksheets or verbal reports that would be used
    for the purpose of clinical management.
  • The Newsletter, September 2004, Volume 7, Issue 2

Preliminary Reports Vascular
  • Vascular technologists frequently report
    critically important data that they have
    collected directly to treating physicians for
    their use in the care and treatment of patients.
  • Society of Vascular Technologist and Society of
    Vascular Surgery

Requested changes to Bureau Labor and Statistics
for Vascular
  • SVU and SVS
  • For 2010 Outlook revision
  • Separation from Cardiovascular

Proposed Description of Vascular Technologist
  • Conducts tests, using judgments formed from a
    review of the images and data obtained through
    the testing modalities, to maximize the utility
    of the diagnostic tests. The testing consists of
    noninvasive ultrasound procedures, performed to
    provide diagnostic information regarding the
    physiology and functioning of the patient's veins
    and arteries for diagnostic purposes. Completes
    patients' medical histories, performs a limited
    physical examination, and provides a summary of
    findings to aid the physician in diagnosis and
  • http//

Identify statistics from the government and
research articles
  • Objective 4

Costs of HealthCare
  • In 2008, health care spending in the United
    States reached 2.4 trillion.
  • Keehan, S. et al. Health Spending Projections
    Through 2017, Health Affairs Web Exclusive W146
    21 February 2008.
  • Health care spending is 4.3 times the amount
    spent on national defense.
  • California Health Care Foundation. Health Care
    Costs 101 -- 2005. 02 March 2005.

Gross Domestic Product
  • In 2008, the United States will spend 17 percent
    of its gross domestic product (GDP) on health
  • Keehan, S. et al. Health Spending Projections
    Through 2017, Health Affairs Web Exclusive W146
    21 February 2008.
  • Comparison
  • 10.9 - Switzerland
  • 10.7 - Germany
  • 9.7 - Canada
  • 9.5 - France
  • Organization for Economic Cooperation and

The Uninsured
  • Although estimated 46 million Americans are
    uninsured, the United States spends more on
    health care than other industrialized nations,
    and those countries provide health insurance to
    all their citizens.
  • California Health Care Foundation. Health Care
    Costs 101 -- 2005. 02 March 2005.

  • National surveys show that the primary reason
    people are uninsured is the high cost of health
    insurance coverage
  • The Henry J. Kaiser Family Foundation. Employee
    Health Benefits 2008 Annual Survey. September

Employers Expense
  • Health insurance expenses are fastest growing
    cost for employers.
  • Increased health costs correlate to drop in
    health insurance.
  • 25 of housing problems attributed
  • 1.5 million foreclosures on homes /year

Cost to Employees
  • Workers pay 1,600 more in premiums annually for
    family coverage than they did in 1999.
  • The annual premium a health insurer charges an
    employer for a health plan covering a family of
    four averaged 12,700 in 2008.
  • Workers contribution average 3,400.
  • 12 more than 2007.
  • The Henry J. Kaiser Family Foundation. Employee
    Health Benefits 2008 Annual Survey. September

The Self-insured
  • Approximately 17 million Americans.
  • Individual policy applications rose 18 in fourth
    quarter 2008 with ehealthinsurance (compared to
  • Individual insurance companies are increasing
    rates nationwide 8-56.
  • Julie Appleby, USA Today Friday February 20, 2009

Medical Expense and Bankrupcy
  • A recent study by Harvard University researchers
    found that the average out-of-pocket medical debt
    for those who filed for bankruptcy was 12,000.
  • 68 had health insurance.
  • 50 of all bankruptcy filings were partly due to
    medical expenses.
  • Himmelstein, D, E. Warren, D. Thorne, and S.
    Woolhander, Illness and Injury as Contributors
    to Bankruptcy, Health Affairs Web Exclusive
    W5-63, 02 February , 2005.

More costs to physicians - ICD-10
  • Implementation moved to 2013
  • Requires adoption of 5010 electronic transaction
    standards under the Health Insurance Portability
    and Accountability Act.
  • Estimate average cost of moving to ICD-10 for a
    three-physician practice will be 84,000

Medicare two tier payment
  • Technical Component - Usually the larger of the
    two components
  • Performing an imaging study
  • Usually the larger of the two components
  • Equipment, Supplies
  • Professional Component
  • Interpretation/Report
  • Supervision
  • Liability

Payment Direct Cost
  • Direct cost is the basic cost of performing the
  • Non-physician clinical staff
  • Medical equipment
  • Medical supplies
  • This is a major determinant in how much doctors
    are paid for specific procedures.

Direct Cost
  • When direct cost is high (CT, MRI) due to cost to
    buy, maintain and use, doctors get paid more to
    use it
  • Other variables
  • Time
  • Effort
  • Skill
  • Stress of a procedure
  • Liability insurance expenses

Independent Diagnostic Testing Facilities, IDTF
  • Designed to limit unnecessary utilization of
    imaging services
  • Required a supervising physician on site with
    proficiency in the test being performed
  • Interpreted by many as supervised by a
  • Was not implemented, October 2008.

Three No-Cover Events
  • Jan. 15 2009
  • The Centers for Medicare Medicaid Services
  • End pay for surgeries involving three major
  • Incorrect patient
  • Incorrect body part
  • Incorrect surgical procedure

Complications 2006
  • Complication of device, implant or graft 27.4
    million, 2.9 of nations bill
  • Complications of surgical procedure or medical
    care 14.5 million, 1.5 of nations bill

Implication Hospitalizations 2006
  • Most expensive conditions/percentage of national
  • Coronary artery disease (5.6)
  • 1.2 million stays, 53 Billion
  • Acute Myocardial infarction (3.7)
  • Congestive heart failure (3.5)
  • Pregnancy and delivery (5.1)
  • Newborn infants (4.0)
  • http//

American Recovery and Reinvestment Act of 2009.
  • Provision of 20 billion in health IT adoption
  • Expected transformation of the practice of
    medicine if implemented properly.
  • Establishment of a system of Medicare/Medicaid
    bonuses/penalties to encourage health IT adoption
  • Incentives for health professionals, including
    physicians, who use health IT to a sufficient
    degree and who see a relatively high volume of
  • Goal is to develop health IT standards to improve
    health care quality, efficiency and consistency.
  • Deadline 2014

Radiation Exposure Concerns
  • Informed Consent
  • Risk not mentioned Expert knows best
  • unheard (by the patient) and unspoken (by the
  • Radiation risk understated
  • Equivalent of 500 chest X-Rays (64-slice Cardiac
  • Full Disclosure
  • Comparision to background radiation for year

Institute for Energy and Environmental Research
(IEER) Recommending New Guidelines
  • Women are 52 more likely to get cancer from the
    same amount of radiation dose compared to men
  • A female infant has about a seven times greater
    chance, according to Arjun Makhijani, Ph.D.
  • January 13, 2009

Radiation Exposure
  • Natural Radiation such as radon
  • Average person in the US receives 3 mSv of
    Natural Radiation
  • Chest X-Ray 0.1 mSv or 10 days of natural
  • Mammogram 0.7 mSv or or 3 months
  • Cardiac CT for calcium scoring 2 mSv or 8 months
  • An abdominal/spine CT is 10 mSv or 3 years
  • Millisievert One thousandth of a sievert, the
    unit for measuring ionizing radiation effective
    dose, which accounts for relative sensitivities
    of different tissues and organs exposed to
  • (http//

Non-Clinical Criteria Influencing Hospital Choice
  • Keeping patients informed about treatment both
    during and after visit (77)
  • Conducting scheduled appointments on time(75)
  • Room appearance (66)
  • Ease of scheduling appointments (64)
  • Food and entertainment options in room (63)
  • Value for the money (62)
  • http//

Pending Legislation
  • That I found.

  • H 2245 (Hunt) Medical Imaging
  • Changes name of Board of Radiologic Technology to
    Board of Medical Imaging changes name of Board
    of Radiologic Technology Account to Board of
    Medical Imaging Account defines medical imaging
    modality and related terms creates categories of
    medical imaging modalities revises various
    provisions relating to medical imaging licensees
    and limited X-ray machine operator permittees.
  • 1/16/2009 - Introduced.

New Mexico
  • H 498 (Steinborn) Health Care
  • Relates to health care charges the New Mexico
    medical board with promulgating rules for the
    provision of technical services for medical
    imaging examinations and radiation therapy
  • 02/02/2009 - Introduced. Referred to the House
    Committee on Health And Government Affairs, then
    to the House Committee on Judiciary.
  • The language of this bill creates a second
    regulatory agency on medical imaging without
    repealing the authority of the existing agency.
    Additionally grants blanket exemptions to other
    allied health practitioners.

  • Connecticut
  • H 5635 (Widlitz) The Administration of Ultrasound
  • Concerns the administration of ultrasound
    procedures eliminates the administration of
    ultrasound procedures by nonmedical commercial
  • 01/22/2009 - Introduced. Referred to the Joint
    Committee on Public Health.
  • This bill would prohibit ultrasound for
    entertainment purposes.

Virginia RA House Bill
  • H 1939 (Peace) Radiologist Assistants
  • Provides for the licensure of radiologist
    assistants as individuals who have met the
    requirements of the Board of Medicine for
    licensure as advanced-level radiologic
    technologists and who are authorized to assess
    and evaluate the physiological and psychological
    responsiveness of patients undergoing radiologic
  • 01/14/2009 - Introduced. Referred to the House
    Committee on Health, Welfare and Institutions.
  • 01/26/2009 - Passed by the House. Engrossed.
    To the Senate
  • 01/28/2009 - Referred to the Senate Committee on
    Education and Health.

Virginia RA Senate Bill
  • S 968 (Blevins) Radiologist Assistants. Duplicate
    of H 1939.
  • Provides for the licensure of radiologist
    assistants as individuals who have met the
    requirements of the Board of Medicine for
    licensure as advanced-level radiologic
    technologists and who assess and evaluate the
    physiological and psychological responsiveness of
    patients undergoing radiologic procedures.
  • 01/14/2009 - Introduced. Referred to the Senate
    Committee on Education and Health.
  • 02/03/2009 - Passed by the Senate. To the

  • H 2105 (Cody) Diagnostic Imaging Services 
  • Concerns diagnostic imaging services directs the
    speaker of the house of representatives and the
    majority leader of the senate to convene a work
    group to analyze and identify nationally accepted
    best practice guideline or protocols applicable
    to advanced diagnostic imaging services and any
    decision and support tools available to implement
    the guidelines or protocols.
  • 02/10/2009 - Introduced. Referred to the House
    Committee on Health Care and Wellness.
  • This bill creates a group to study best practices
    and develop recommendations for practice
    guidelines protocols for computed tomography,
    magnetic resonance, positron emissions tomography
    and cardiac nuclear medicine services. These
    guidelines and protocols would apply to these
    imaging services paid for by state purchased
    health care plans.Work group composition does not
    include a radiologic technologist.

Suggest improvements in day-to-day flow
  • Ultrasound is a great place to be!
  • Objective 5

  • In Pictures Jobs That Can Earn More Than
    100,000 Without College
  •   Author Klaus Kneale
  • Ultrasound Technologist
  • 90th Percentile Income 110,000
  • 75th Percentile Income 82,500

Ultrasound reduces costs
  • Limitation to unreimbursed care will encourage
    growth, shying away from procedures.
  • Needle guidance procedures
  • Biopsy guidance
  • Central Line Placement/complications
  • Reducing amount of anesthesia for nerve blocks
  • Foreign body visualization
  • Frees more expensive imaging equipment

Quality vs. Cost
  • Instant decision on patient care
  • Modern day stethoscope
  • Scarce resources
  • Expensive test overuse, abuse
  • Consumer awareness of radiation exposure/use
  • Lawsuits over radiation exposure (peds)

Best protection
  • Imaging equipment performance should be evaluated
    regularly to ensure good image quality.
  • Image phantom checks as suggested.
  • Safety check all cords.
  • Follow manufacture recommendations for transducer

Best Practices
  • Document!!
  • For reimbursement consideration all exams
  • Documentation
  • Completeness
  • Medical necessity

  • Edits/Additions appropriately for your
  • Single line to cross out
  • Add/edit
  • Why
  • Date
  • Initial

Best Protection
  • Follow your hospital/departmental protocol for
    the procedure/exam you are doing.
  • Perform in the manner in which you have been
  • If you have not been trained.

Support Professional Organizations
  • Thank the organizers of professional conferences!
    Support them.

Further Reading
  • Berlin, L. Radiologic errors and malpractice A
    blurry distinction. American Journal of
    Roentgenology. 1895517-522.
  • Health Care News
  • Student doctor Network

Thank you!