The Most Unlucky Doctor

Recently one of my clients became frustrated with me for insisting that he take several burdensome steps to comply with federal privacy laws. He argued that my fear of being sued in connection with a wrongful disclosure was paranoid. Clearly, he’d never heard of the Shipley case.

In 2005, a New York high school student died of injuries sustained in an automobile accident. The next day, a medical examiner performed an autopsy during which he removed the boy’s brain and placed it in formalin in a jar. He labelled the jar with the teenager’s name and put it in a cabinet in the autopsy room.

About six weeks later, students from the teenager’s high school happened to take a field trip to the mortuary. During a tour of the autopsy room, some of the students saw the jar holding their friend’s brain. Horrified and upset, the students notified the boy’s family.   The family sued the medical examiner and the jury returned a $1 million verdict. After many years of legal wrangling, the appellate court threw out the verdict and the family’s complaint. Because one judge dissented from the majority ruling, the case may yet continue.

I’m not trained in the science of probability. I don’t know how many times that mortuary gives tours. I don’t know how many students participate in the tours or how many schools in the area send students on these tours. Yet, I’m pretty sure that it was extremely unlikely that a group of students from the deceased’s high school would visit the very room in the very mortuary where their friend’s brains sat in plain view in a jar on which a physician had legibly written the boy's name.

I’d bet that the doctor in this case has changed his method of storing body parts. Probably, like me, he’s become hyper-vigilant about such matters. Are we both paranoid?

A nationally known psychologist who treats attorneys recently said, “It’s not your imagination that someone is out to get you all the time.” He claims that lawyers experience “justifiable paranoia.” Is justifiable paranoia a mental illness? If the paranoia is “justifiable,” should it be treated? Does the public want lawyers who aren’t concerned about serious, but unlikely, potential problems?  

Do lawyers, like other professionals, have an obligation to warn of remote but serious risks? For example, do you want your doctor to give you a pill for a minor headache without telling you that there’s one chance in a million that it will kill you? Don’t you have the right to make an informed choice about your medications? Who is going to bear the consequences if your luck runs out the moment you take that pill? I’m sure that the doctor and the drug company will be upset, but for you it’s the end of the line.

A couple of years ago, a dentist attending one of my legal workshops spoke with me during the break. Shaking his head, he said, “I told my partners that our documentation was inadequate. I told them that if we were sued, we wouldn’t be able to defend ourselves. They told me I was stupid and that in all the years they’d been in practice they’d never been sued. They refused to change anything. Well, we were sued and we lost big time. Who’s stupid now?”

Because I hear and read about these types of experiences constantly, I will continue to warn folks of the unlikely but costly result of ignoring legal pitfalls. Am I paranoid? An alarmist? Perhaps Clint Eastwood asked the better question in Dirty Harry.  As you look down the barrel of this .44 Magnum, the most powerful handgun in the world, you've gotta ask yourself one question: “Do I feel lucky?”  

I Was Getting Woozy

Years ago, I decided to conquer my fear of heights.   I was tired of the dizziness and nausea that gripped me at the mere sight of a step ladder.  To beat that beast, I decided to take a hot air balloon ride.  I persuaded a friend from church to go with me. 

As we climbed into the balloon basket, the Captain offered each of us a big glass of champagne.  The offer made me a bit suspicious and even more queasy so I declined.  I would soon regret that decision.

Once we were airborne, the Captain whipped out a clipboard with forms.  In big bold letters appeared the words “RELEASE OF LIABILITY.”  Apparently a lawyer who was being paid by the word had drafted the 20-page document.  After spending most of the balloon ride studying the release, I realized that it required us to acknowledge that we were engaging in extremely reckless behavior and that we would likely be killed, maimed, or disfigured before the trip was over.  Our signatures on the document would release the captain and “any and all other persons known and unknown” from any liability in connection with our insane decision to get in this balloon. At this point in the flight, with houses below us looking like Monopoly game pieces, I obviously had little choice but to sign the release. 

Staring at the RELEASE, I thought of Moore v. Webb, a 1961 Missouri case.  Lucille Moore was the mother of five children.  She went to see her dentist because one upper tooth was cracked and another one had a loose filling.  She had lost several teeth over the years “from the effects of childbearing.”  (I imagine her kids were teenagers at the time).  Her dentist referred her to an oral surgeon to remove the teeth he could not save. 

Mrs. Moore testified that the oral surgeon took her to “a little place where they drape you and lay you back.”  A “nurse” appeared and gave her a shot that made her “woozy.”  Just before she passed out, a “girl” came in and told her to sign a paper, described as a “formality”.  Mrs. Moore further testified that when she awoke, “my mouth was empty.  I just went hysterical.”  She sued the oral surgeon for pulling teeth without her consent.

Upholding the jury verdict for Mrs. Moore, the Judge, also apparently paid by the word, ruled that the “circumstances surrounding the transaction negative any idea that she signed the paper understandingly or executed any knowing consent by signing the document.  She was under the influence of a narcotizing drug and was going to sleep.”  In short, the release she signed after getting woozy was no good.

The Moore case teaches us that consent obtained from an impaired patient is useless.  Also, if possible, the provider should obtain consent at least 24 hours before providing the treatment.  This gives the patient time to think about her decision. 

As for me, I wanted more information about the “reckless” language in the balloon release. I asked the Captain whether he personally knew folks who had been killed in hot air balloons.  He said that the biggest problem was drunk hunters.  They sometimes try to shoot down hot air balloons.  If a bullet hits the fuel tank, we would all disappear in a huge fireball that would send us straight to the hereinafter.

Hearing this news flash, and realizing that we were flying over rural Chatham County in deer season, my stomach lurched and my knees grew weak.  I spent the rest of the flight on hunter alert – a difficult task when looking for people who are wearing camouflaged clothing and makeup while playing hide and seek with deer.  In the midst of this panic, I did have one comforting thought.  The fireball would incinerate the release.  All hope was not lost.

Of course the hot air balloon ride did nothing to rid me of my fear of heights – if anything, it’s worse now. I decided not to ask for a refund.  After all, the Captain had my signature on the release.

Documentation Woes

The North Carolina Court of Appeals recently upheld the Dental Board's decision to discipline a dentist for inadequate charting. After reviewing the dentist's charts, the Board found that there were instances in which the dentist failed to document the reason for prescribing the medication ordered. The Board ruled that the standard of care requires dentists to document the indication for all medications.

The Dental Board has enacted rules requiring a dentist to chart the following:

1. Patient's full name, address and treatment dates,
2. Patient's nearest relative or responsible party,
3. Current health history,
4. Diagnosis of condition,
5. Specific treatment rendered and by whom, and
6. Name and strength of any medications prescribed, dispensed, or administered and the quantity and date provided.

 The Board also recommends the following:

1. Documenting treatment plans,
2. Retaining radiographs, study models, other diagnostic aides, and
3. Retaining the patient's financial records and insurance claim forms.

You will note that the above rules do NOT require the dentist to document the reason for prescribing a medication. The Board admitted that its rules did not address the issue but it argued that failing to document the reason for prescribing a medication constitutes professional negligence. Since the Board has legal authority to discipline dentists who do not meet the standard of care, the Board argued that it had authority to discipline the dentist in the case before the court.

The very same issue arose in a 1996 Colorado case in which the court sided with the Board. However, in North Carolina, our courts typically rule that the law which specifically addresses an issue controls. Clearly, the Dental Board documentation rule is more specific than the standard of care language. Disregarding that tradition, our Court took the side of the Dental Board.

The Dental Board in other cases has demanded more documentation than its rule requires. It has disciplined dental professionals for failing to:

1. Document the fact that they have told the patient about an unexpected finding or event such as a root tip left after an extraction,
2. Record the date of patient health histories,
3. Record periodontal pocket depths,
4. Record the fact that they have informed the patient about the risks, benefits and alternatives to treatment plans,
5. Document the name of the provider who treated the patient,
6. Document the reason for extracting a tooth, and
7. Document clear indications for prescribing narcotics.

Perhaps the Dental Board could consider amending its rule to state that dental professionals must meet the standard of care in their charting. The rule would then state that required documentation includes, "but is not limited to the following." Such an amendment would alert the dentist that the items listed in the rule were not the only things that must be charted.  Such an amendment would also allow enforcing updates to the standard of care without having to go through the process of amending the documentation rule each time the standard changes.  

I understand that the dentist in this case is asking our State Supreme Court to reverse the decision of the Court of Appeals. I will keep you updated on the case. Meanwhile, dentists and other health care providers should remember that their documentation must include the reason for any treatment rendered, including medications.

The Disappearing Insurance Policy

Like you, I cringe each time I read about another computer data breach. How can the government require me to secure sensitive electronic data when the U.S. Department of Defense can't measure up to the job? It hardly seems fair that the Defense Department gets off with a bit of bad publicity while a small dental office or law firm gets jammed up for millions of dollars when the computer mafia strikes. To protect ourselves from liability, many of us purchase insurance coverage.  But is that coverage worthless?

 

A few years ago, IBM hired a company to transport and store computer tapes containing personal information of IBM employees. The data fell off the truck transporting it and was stolen. There is no evidence that the thieves have used the data. IBM notified its employees and paid for identity theft protection services. It then went after the data transporting company to recoup its $6 million in expenses. That was when the data company learned that its insurance company would not cover the loss. The insurance company argued, among other things, that it only covered "personal injury" losses. Because there was no proof that the data had been used, it claimed that there was no personal injury. Sadly, the court agreed. As for me, I would consider the loss of $6 million to be a significant personal injury.

 

In another case, a California hospital system suffered a data breach affecting 32,500 patients. It settled the patients' claims for over $4 million. Afterwards the hospitals' insurance company argued in court that the hospitals' failure to follow reasonable data protection standards invalidated the insurance policy. To me this sounds like a car insurance company refusing to pay a claim because its insured was driving carelessly.  Unfortunately, the court agreed with the insurer. The hospitals ended up paying huge premiums for useless insurance coverage, even more money in attorney fees and court costs in its case against the insurance company, millions to settle the patients' lawsuits, and a fortune to defend themselves against prosecution from state and federal privacy regulators. Ultimately, their patients will bear these losses in the form of more expensive health care.

 

Other cyber liability insurance policies exclude coverage for hacks perpetrated by foreign governments. Also, they do not cover data breaches resulting from failing to update software or failing to properly encrypt data. Things become even more complicated when your data is stored on the "cloud" and thieves get your data by hacking the cloud. Will your insurance policy step in on your behalf? Will the "cloud" company protect you?

 

In one of the largest publicized data hacks, the Sony Corporation faced 58 class action lawsuits after criminals stole data of 77 million customers. Zurich American, Sony's insurer, initially refused coverage. Only after much litigation and expense were the parties able to settle the case.  

 

One lesson from these and other similar cases is that you must have your attorney carefully review any cyber-liability policy before you sign on the dotted line. Another lesson may be that you absolutely must have a skilled IT consultant who is familiar with federal privacy standards. As for me, I'm reverting to paper documentation whenever possible.  The real lesson from these cases is that there's no way to win this battle.

Adding Insult to Injury

A state Psychology Board recently hit one of its psychologists with a penalty that was perfectly tailored for the charges leveled against him.  It revoked his license for a minimum of five years.  It further held that if, by some unexpected turn of events, this doctor managed to get his license back, he would never be allowed to treat females.  It finally ruled that if he did get his license back, his practice would always be monitored by a Board-approved mental health professional.  By now, you can probably figure out the nature of some of the charges against Dr. A. 

From the mid-1980’s through 1996, Dr. A. provided psychotherapy to a female patient, referred to as “Client G.”  He initiated a sexual relationship with her from 1994-96.  The sex took place during weekly sessions.  The doctor billed the patient for those sessions.  While treating and having sex with her, he also made her a co-facilitator of a psychology group for sexually abused women.  He presented her to the group “in a way that suggested that Client G had qualifications as a mental health professional.”  I’m sure he billed for these sessions as well.  The Board also found that during this same period of time, Dr. A had an affair with Client R.

Meanwhile, Dr. A was also treating clients "S" and "M."  These women participated in group sessions for sexual abuse victims who had developed post-traumatic stress disorder.  On one occasion Dr. A called S to ask her to help M who was suicidal at the time.  The Board ruled that telling S that M was suicidal violated M’s privacy.  Dr. A argued that he made the call in an effort to save M’s life.  The Board dismissed this argument.

On appeal, Dr. A argued that it was error to allow “patient advocate” Board members to participate in hearing his case.  His state’s Psychology Licensing Act requires three board members to be members of the public “who are not mental health professionals.” Unfortunately, the statute refers to these members as “patient advocates.”  The Court threw out this defense because Dr. A offered no evidence of “specific bias or prejudice” on the part of these Board members.  

In a last ditch effort to save his license, Dr. A argued that Dr. Woodrow, one of the psychologist board members, should not have participated in his hearing.  He claimed that she was biased against him because she had treated patient “G.”  The evidence showed that almost 30 years before the hearing, Dr. Woodrow treated G.  However, she did not remember G and did not have records of her treating G. The Court found that this was not evidence of bias.

It’s hard to find a worse example of psychologist-patient abuse.  Dr. A chose a patient whom the Board described as “very vulnerable,” initiated a sexual relationship with her, charged her for the privilege of having sex with him, cheated on her, and had her misrepresent herself when she “facilitated” a group of sex abuse victims.  It is fortunate that the Board took this man’s license.  One can only hope he never gets it back.