VA Physician Fails To Appreciate the Gravity of His Conduct

The physician who misplaced so many radioactive seeds in prostate cancer patients, Gary D. Kao, M.D., has admitted to making some errors, but denies that he violated the standard of care owed to his patients. While stating to a senate panel that "we can do better," Dr. Kao also said, "Brachytherapy was and still is an evolving field" (code for Hey, surgery is complicated. What do you want from me?). What's more disturbing, however, is that he "acknowledged that he never informed patients when he missed the prostate or delivered insufficient doses."

Read the full story from the Associated Press here.

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Patients Need To Be Proactive About Getting Test Results From Their Doctors

She wasn't exactly waiting by the phone, but the call was never far from her mind. Linda was anxious and hopeful. She wanted to learn the results of her recent medical tests asap. She wanted to be ok. Most of all she wanted to just move on and get back to living her life with her husband and 12 year old son. She was diagnosed with endometrial cancer years earlier when she and her family lived in a different state. The treatment had been difficult and exhausting, but now she had been cancer free for two years. Linda was in a different place, felt terrific and was optimistic about her future. She was only 44 years old.

Shortly after moving to the Chicagoland area where her husband's job had led the family, Linda sought out a well regarded cancer specialist to screen her, to check for any return of the disease. When she saw her new doctor he preformed a phyical exam, did a pap smear, ordered blood work and CT scans of Linda's chest, abdomen and pelvis to see if the cancer showed up in other parts of her body. The blood work and CT scans were done in short order. All that remained was for Linda to receive the results, for the telephone to ring and a voice on the other end to give her the news.

There was cancer in Linda's lungs. Microscopic endometrial cancer cells had traveled through her body to her lungs and had multiplied and grown. Her new doctor knew that, but that is not what Linda was told when the phone finally rang. Instead, the doctor's nurse on the end of the line told her that everything was fine, that the tests were negative, that she was cancer free. Linda's relief would not last. Nearly a year later she developed a troublesome cough. At first she associated it with her history of allergies and saw her family physician for treatment. Soon though the cough became severe enough that she felt compelled to go the emergency room at a nearly hospital. There a chest x-ray showed "multiple lesions consistent with metastatic cancer." The lesions were more numerous and much larger than they had been a year earlier. Linda was quickly referred to a new cancer specialist who confirmed that she had cancer in her lungs which had spread there from her endometrium. He started her on the chemotherapy treatment that she should have had a year earlier. After a few months the number and size of the cancerous nodules had been reduced signficicantly and her disease was declared stable. That stability did not last, however, and 14 months later Linda died.

After Linda's passing, her husband called me. We hired experts to look at her medical records. They concluded that Linda's cancer doctor failed her by not expeditiously making her aware of the findings from her chest CT scan. His failure to do so, they felt, delayed the start of chemotherapy and very substantially reduced the effectiveness of her treatment. The doctor, and his nurse, cost her years of time with her husband and son.

During the litigation which followed, the defendants could never adequately explain why the true test results were not communicated to Linda. What I found upon investigating was shocking indifference regarding doctor-patient commuincation and arrogance. When I took the deposition of the defendant doctor he told me that he did not think it was particularly important that Linda be informed that her cancer had spread. Apparently, in his mind she was a goner regardless. Here is a portion of his deposition testimony:

Q. What does it mean for cancer to metastasize?

A. It means a spread of cancer from the organ of origin to a distant site in the body.

Q. And when we are speaking of metastatic disease, we are making reference to this spread, this process, correct?

A. Yes.

Q. Finding of cancer spread or metastasis is something a patient should be informed of promptly. Would you agree with that?

A. Depending on the clinical circumstances.

Q. But as a general principle, you would agree with that?

A. I don't -- there are no, you know, general principles. Every case is different.

Q. So there are -- can you give me an example of a circumstance in which it would not be important to communicate promptly to a patient that their cancer had spread or metastasized?

A. If you take, for example, a patient that -- if we can follow the example of [Linda], a patient who metastasized to the lung in July of 1999 and in July of 2001, there is an equivocal X-ray and I plan to follow that with serial X-rays and the metastatic pattern is such that the patient is categorically incurable, I don't have to report that instantly to the patient.

Q. I didn't say instantly. We are talking about promptly.

A. That is what I mean.

The doctor's lack of caring, the nurse's incompetance and the medical facility's lack of procedures for communicating test results to patients took something from Linda and her family. She probably wasn't going to live to a ripe old age, but she was entitled to more time with her family.

It was reported earlier this week that, according to a recent study in the Archives of Internal Medicine, doctors failed to inform patients of abnormal cancer screenings and other test results 1 out of 14 times. This is truly disturbing. Modern medical break-through treatments for cancer and other diseases mean nothing if communication between physicians and their patients breaks down. The medical community obviously has to fix this situation. Patients too need to take the bull by the horns. Many people - especially those awaiting potentially bad news - wishfully assume that no news is good news. When waiting for medical test results, however, you must be aggresively pro-active with your doctor's office. If you do not hear, call. If you are forced to leave a message, call again, and again. Linda was in an especially tough position because she was notified of her test results; only they were not accurately reported to her. Make sure you speak with your doctor, not simply a member of his or her staff. Ask questions too. Doing so should provide you with greater detail about your condition and will serve to test the credibility of the results being reported to you. Also, make sure you schedule a follow up appointment to return to your physician. Whatever the medical concern was, it's a good idea to follow up in person before too long.

Here is a link to some additional advice on this topic:

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Hearing To Be Held In Philadelphia VA Malpractice Case

Hearings are being planned in connection with the malpractice committed at a Philadelphia Veterans Hospital involving brachytherapy. Senator Arlene Specter, who has taken charge in the matter, has said that the case involves "more than medical malpractice." Read the full story in the Philadelphia Inquirer.

How To Protect Yourself Before Undergoing Brachytherapy

A truly horrifying story appeared in Sunday's New York Times about a cancer unit in a veteran's hospital in Philadelphia. According to the story, one of the unit's doctors, Gary D. Kao, M.D., on numerous occasions improperly implanted radioactive seeds in patients with prostate cancer causing serious complications. Usually, during this relatively common procedure known as brachytherapy, a surgeon places radioactive seeds close to a cancerous tumor. The procedure is often done in place of or in conjunction with external beam radiation. According to an investigation by the Times and federal authorities, during brachytherapy Dr. Kao was often placing the seeds in the wrong organ then attempting to cover up his errors.

My reading of the story offered two clues for how patients seeking to undergo this procedure can protect themselves from surgeons like Dr. Kao. The story noted that there was no peer review at the V.A. hospital. All good hospitals have some kind of peer review procedure wherein physicians at the same institution look over each others' shoulders, reviewing one others' work. Bad outcomes are discussed openly and frankly with the goal of avoiding them in the future. Ask your surgeon if the hospital where your surgery is to take place has peer review procedures in place.

The other way you can protect yourself is to ask your surgeon about his or her experience performing that particular procedure. The Times article pointed out that Dr. Kao had a medical degree from an outstanding institution and was board certified in radiation oncology. However, he had "limited experience in brachytherapy."

Avoid Zicam

The U.S. Food and Drug Administration has warned consumers not to use the cold medicine Zicam. It could cause a permanent loss of smell. Read full story here.

Beware The Resident!

As we walked into the doctors' lounge heads turned to meet us. I recognized faces which just a few minutes earlier had been staring (or perhaps glaring) at me from the back of the hospital's conference room. One of the young residents walked over to greet us.

"Great talk. Very interesting topic," he said to me. "But, let me ask you: Say I am concerned that a patient of mine has skin cancer. If I do not order screening tests can I be held liable?"

"Of course," I replied firmly.

"Absolutely," answered the experienced physician next to me. "You must order proper testing if you suspect your patient has cancer!"

Even after years of suing bad doctors for horrible screw-ups I was not quite prepared for the utter stupidity of this young doctor's question. I had just spent about 45 minutes talking to residents about how to avoid committing medical errors in the primary care setting. At the end of my seminar, during which all those present stoically seemed to listen to what I was saying, no one had any questions; not, that is, until I ran into the young resident in the doctor's lounge. What, I wondered, does this young man think about when he sees patients? Is he contemplating providing the least care possible to avoid getting sued? Does he lack the knowledge of what tests are appropriate to assist in diagnosing various diseases and ailments? Is he thinking at all?

Hopefully, the resident that questioned me was an aberrant example of a young physician in training. However, residents tend to be responsible for a large share of medical errors made each year. My advice: avoid residents like the plague. I appreciate that they have to learn. All good physicians were green residents early in their careers. Fine. It is reasonable to allow a resident to see you, take your history and examine you. Just make sure that everything he or she does is repeated by an experienced attending physician. The physicians who are residents will be (or should be) identified on their name badges. If you are unsure whether the doctor treating you is a resident, ask.

Of course, there are good residents out there, but by definition they are always going to be inexperienced. Several years ago I went to the hospital with a dislocated elbow. An experienced emergency department doctor appeared along with a young resident to set it. Thankfully I was sedated, but my wife who was present told me later what happened as my elbow was twisted, pushed and pulled back into place. The young resident became queasy during the process and the attending had to take over.

Be kind and tolerate to young doctors, just make sure an experienced, guiding hand is nearby.

Seeking Medical Care Overseas

A very interesting op-ed piece appears in today's New York Times about the pros and cons of U.S. patients going overseas to receive medical care. The authors note that there is some reason to believe that the care received in many hospitals in other countries is at least equal to that received here. Also, patients usually receive care at much lower cost, which is usually the point of seeking overseas care to begin with. However, the authors smartly note some risks. Patients may be at far greater risk should complications arise. If they find themselves victims of medical malpractice they may be out-0f-luck in seeking compensation for the harms and losses inflicted by a foreign physician.

To read the full article, click here.

New List of Patient Resources

Here is an excellent list of online resources patients can use to learn about their health care providers. The list comes from Victoria Powell, a nurse consultant and blogger in Arkansas.

Medical Discount Cards Are A Scam

Do not allow yourself to be victimized by companies offering so-called medical discount cards. They are a complete scam. Click here to read story from CNN.

Should I Sue My Doctor?

Even a trial attorney must remember that it is no small thing to sue a physician, or anybody else for that matter. Sure, doctors are generally covered by medical malpractice insurance. Still, it's got to be hard not to take getting sued personally. So when should you consider suing your physician?

• When your injury is both permanent and profound. Medical malpractice lawsuits are no small undertakings. They are time consuming and expensive. These cases are won when the person bringing the claim (the plaintiff) can demonstrate that the physician, nurse, or other provider failed to abide by the standard of care, that is failed act as a careful doctor, nurse, etc. would under the same or similar circumstances. To prove what the standard of care required experts must be hired. Also, the plaintiff must prove that the defendant's negligence actually caused the injury. Proving causation usually requires hiring even more experts. All these experts get mighty expensive, so, to put it bluntly, the case has to be worth it. Anyway, all of us ought to be able to endure minor injuries even if caused by another person's error. If a doctor screws up and you get hurt but heal quickly and completely, get over it and move on.

• Soon after you become suspicious about some sort of medical wrongdoing as a cause of the injury or death. In all 50 states there is a time limit on when you can file a medical malpractice lawsuit. In Illinois, you will have two years from the date that you knew or reasonably should have known that you (or your loved one) was the victim of medical wrongdoing. However, the lawsuit cannot be filed more than four years from the exact date of the wrongful conduct or omission. (Remember, all states have different filing deadlines.) This time limiting deadline is longer in Illinois if the injury involved a minor. Two years sounds like a long time, but it really isn't. Your attorney will need to acquire all of your medical records, hire experts and do a thorough investigation before any lawsuit is filed. This takes considerable time, so see an attorney as soon as possible.

• Even if you think your doctor or health care provider made an honest mistake. Many of us like our doctors. I do (except when he makes me wait). But if the injury is severe, or if a family's wage earner dies due to medical negligence, the harms and losses caused by the error need to be compensated. This need is not esoteric, it's real. Medical negligence often deprives victims and their families of the ability to earn a living for themselves and their loved ones. Also, in my experience medical malpractice lawsuits better the practice of medicine generally. I have been told by more than one doctor that while they hate medical malpractice lawsuits generally, they tend to make physicians more careful about the way they go about diagnosing and treating their patients. Many excellent physicians get involved with serving as expert witnesses in order to learn from the mistakes made by others. Exposing errors, especially those types of mistakes that tend to occur over and over again is far better, in my estimation, than sweeping those errors under the rug, or burying them. Medical errors, mistakes, negligence, malpractice all mean exactly the same thing under the law, and all are compensable. A health care provider need not have acted with an intent to do harm (and virtually none do), for his or her conduct to give rise to a medical malpractice lawsuit.

Once you decide to contact a lawyer, contact one with a lot of experience in handling medical malpractice cases. These cases tend to be quite complicated. A lawyer that handles personal injury cases but has little experience with medical malpractice would not be an appropriate person to handle such a case. As when choosing a doctor, use the internet to do your homework when choosing an attorney. Most good, experienced law firms have websites on which they list the kinds of cases they handle and offer a sampling of their successes. Also, attorneys are licensed by state and most states offer the means online for the general public to check the status of an attorney's license. (Illinois' website can be checked by clicking here.) All medical malpractice attorneys should work on a contingency basis, meaning that there is no fee unless your case resolves successfully. Initial consultations should always be free.

Is Online Privacy Overrated?

You and your doctor are partners. You are both responsible for taking care of you. For the patient to carry his or her own weight in this symbiotic relationship, the acquisition of knowledge is key. If you don't learn as much as possible about your particular disease or ailment and the treatment options available you will not be able to contribute to the partnership, the goal of which is your good health. I recently became aware of a very interesting website that helps patients learn about their own health needs by reviewing the detailed health care history of other patients with the same or similar needs. The site is called Patients Like Me. The website takes a counter-intuitive approach toward patient privacy in order to provide what just may be a tremendous service. On the site patients provide each other with detailed descriptions of themselves, their health issues, treatments, symptoms, medications, etc. The idea is that a participating member with say ALS can review the experiences of other patients with ALS in order to get a sense of what worked and what didn't. In this way the information from the community can be shared with your physician to decide upon and tweak a personalized treatment plan. The website allows searches by symptom, disease and particular treatment. According to the site's developers a research team has been retained to post about specific medical studies of interest to the community.

As will services like Google Health, members of the Patients Like Me community arguably give up something in order to participate. Whenever you post personal data on the internet there is a risk that persons that you may not wish to have such information will. That important concern noted, it seems to me that for many patients the reward my well be worth the risk.

Tained Body Tissue Transplants

Read a great article on protecting yourself against receiving tainted body tissue transplants on another attorney's blog. Read the full story at www.medical-attorney-blog.com.