Med Mal News

Big Award for Deaf Patient Denied Interpreter at Doctor's Office

A New Jersey jury says a doctor must pay a deaf patient $400,000 for refusing to hire an American Sign Language interpreter for her visits, thereby violating her rights under the federal Americans with Disabilities Act and Rehabilitation Act and New Jersey's Law Against Discrimination. The federal anti-discrimination statute applies to hospitals and doctors that receive federal funding, including those whose patients are covered by Medicare and Medicaid.

The doctor in question, rheumatologist Robert Fogari, saw the complaining deaf patient for treatment of lupus approximately 20 times, over a 20-month period. When the patient asked Dr. Fogari to hire a sign language interpreter so that she could understand what he wanted to tell her, he declined, citing the fact that it would have cost him between $150 and $200 per visit to pay such an interpreter. (The doctor was paid only $49 per visit by the patient's insurer.) Dr. Fogari said that he felt he communicated adequately with the patient through written communications with her civil-union partner and verbal communication with the couple's 9-year-old daughter. The patient, however, said she was not made fully aware of what her treatment entailed or of what risks she was exposing herself to. After she complained several times to the doctor, Dr. Fogari told the patient she should go see another physician. The jury found that this amounted to retaliation against the patient for requesting that her rights be respected; half of the $400,000 verdict was awarded as punitive damages. Dr. Fogari's malpractice insurance carrier reportedly declined to defend its insured or to cover the verdict because the case did not involve a question of quality of care.

Medical Helicopter Crashes, Killing Four

The ninth U.S. medical helicopter this year to crash and kill some or all of its passengers and crew went down in a field in Illinois on Oct. 16. It was carrying the pilot, a nurse, a paramedic and a one-year-old patient, all four of whom died at the scene. The baby, who had been suffering seizures, was being moved from a hospital in Sandwich, IL, to a hospital near Chicago when the accident occurred. Preliminary investigation indicated the helicopter, operated by Air Angels Inc., a medical emergency transportation service, might have struck a support wire for a radio tower.

Coercive Tactics Toward Potential Class Members Reap Sanctions

A judge has fined an upstate New York mental health facility for threatening former patients with release of their confidential medical information if they failed to opt out of a class action against the company. The underlying case against SLS Residential Inc. alleges patients were subjected to mental and physical abuse while in the facility. Southern District Judge Stephen Robinson found that 80 potential class members were contacted by their own former therapists and told their records would be released if they took part. “These calls were not the result of inadvertence, misplaced good intentions, or even the product of rogue employees who took it upon themselves to manipulate class members,” Judge Robinson said. “Rather, it was a scheme designed and implemented by the very highest managers at SLS who are, not incidentally, named defendants in this lawsuit.” The facility was ordered to pay $35,000 in sanctions. The court ordered all defendants to cease contacting former patients concerning the case.

Colorectal Testing in Older Americans Not Recommended

The U.S. Agency for Healthcare Research and Quality has published new recommendations of the U.S. Preventive Services Task Force regarding preventive testing for colorectal cancer. The recommendations, which can be found online or in the Nov. 4, 2008, issue of the Annals of Internal Medicine, are a departure from previous advice, which said most older patients should be regularly screened for colorectal cancer. The new recommendation is that people between 50 and 75 years of age get screening but that, after 75, only particularly healthy individuals should be tested. Most people over 75 should not be tested, say the authors, because the risks of the screening itself may outweigh any life-extending potential. The recommendations of the U.S. Preventive Services Task Force may be found at: http://www.ahrq.gov/clinic/uspstf08/colocancer/colors.htm.

CMS Clarifies Guidance on 'Standing Orders'

On Oct. 24, the Centers for Medicare and Medicaid Services (CMS) issued a memorandum clarifying its position on the use of “standing orders” for medication in hospitals. CMS had released the official version of its update to the State Operations Manual (SOM) for the SOM Hospital Appendix A on Oct. 17. (Transmittal 37, CMS Manual System, Publication 100-07, State Operations Provider Certification.) This manual contained what some industry leaders thought was a problematic instruction, which told hospitals that most orders for drugs and biologicals should be documented and signed by a practitioner responsible for the care of the patient. This was seen as a prohibition on others in the hospital administering medications during emergencies, like when an asthmatic patient enters the emergency room and needs immediate help from medications to restore normal breathing. The Oct. 24 memorandum clarifies the issue by stating:

The use of standing orders must be documented as an order in the patient's medical record and authenticated by the practitioner responsible for the care of the patient ' but the timing of such documentation should not be a barrier to effective emergency response, timely and necessary care, or other patient safety advances. We would expect to see that the standing order had been entered into the order entry section of the patient's medical record as soon as possible after implementation of the order (much like a verbal order would be entered), with authentication by the patient's physician.

The Joint Commission, in a statement issued Oct. 30, said of CMS's explanation of what it really expects of hospitals: “This clarification was sought by The Joint Commission and brings CMS' interpretation of standing orders into alignment with The Joint Commission's view on how to facilitate the timely treatment of certain patients, particularly those who need medications, not previously ordered, to be administered within brief timeframes.”

The clarification is available at: http://www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLet ter09-10.pdf.

Big Award for Deaf Patient Denied Interpreter at Doctor's Office

A New Jersey jury says a doctor must pay a deaf patient $400,000 for refusing to hire an American Sign Language interpreter for her visits, thereby violating her rights under the federal Americans with Disabilities Act and Rehabilitation Act and New Jersey's Law Against Discrimination. The federal anti-discrimination statute applies to hospitals and doctors that receive federal funding, including those whose patients are covered by Medicare and Medicaid.

The doctor in question, rheumatologist Robert Fogari, saw the complaining deaf patient for treatment of lupus approximately 20 times, over a 20-month period. When the patient asked Dr. Fogari to hire a sign language interpreter so that she could understand what he wanted to tell her, he declined, citing the fact that it would have cost him between $150 and $200 per visit to pay such an interpreter. (The doctor was paid only $49 per visit by the patient's insurer.) Dr. Fogari said that he felt he communicated adequately with the patient through written communications with her civil-union partner and verbal communication with the couple's 9-year-old daughter. The patient, however, said she was not made fully aware of what her treatment entailed or of what risks she was exposing herself to. After she complained several times to the doctor, Dr. Fogari told the patient she should go see another physician. The jury found that this amounted to retaliation against the patient for requesting that her rights be respected; half of the $400,000 verdict was awarded as punitive damages. Dr. Fogari's malpractice insurance carrier reportedly declined to defend its insured or to cover the verdict because the case did not involve a question of quality of care.

Medical Helicopter Crashes, Killing Four

The ninth U.S. medical helicopter this year to crash and kill some or all of its passengers and crew went down in a field in Illinois on Oct. 16. It was carrying the pilot, a nurse, a paramedic and a one-year-old patient, all four of whom died at the scene. The baby, who had been suffering seizures, was being moved from a hospital in Sandwich, IL, to a hospital near Chicago when the accident occurred. Preliminary investigation indicated the helicopter, operated by Air Angels Inc., a medical emergency transportation service, might have struck a support wire for a radio tower.

Coercive Tactics Toward Potential Class Members Reap Sanctions

A judge has fined an upstate New York mental health facility for threatening former patients with release of their confidential medical information if they failed to opt out of a class action against the company. The underlying case against SLS Residential Inc. alleges patients were subjected to mental and physical abuse while in the facility. Southern District Judge Stephen Robinson found that 80 potential class members were contacted by their own former therapists and told their records would be released if they took part. “These calls were not the result of inadvertence, misplaced good intentions, or even the product of rogue employees who took it upon themselves to manipulate class members,” Judge Robinson said. “Rather, it was a scheme designed and implemented by the very highest managers at SLS who are, not incidentally, named defendants in this lawsuit.” The facility was ordered to pay $35,000 in sanctions. The court ordered all defendants to cease contacting former patients concerning the case.

Colorectal Testing in Older Americans Not Recommended

The U.S. Agency for Healthcare Research and Quality has published new recommendations of the U.S. Preventive Services Task Force regarding preventive testing for colorectal cancer. The recommendations, which can be found online or in the Nov. 4, 2008, issue of the Annals of Internal Medicine, are a departure from previous advice, which said most older patients should be regularly screened for colorectal cancer. The new recommendation is that people between 50 and 75 years of age get screening but that, after 75, only particularly healthy individuals should be tested. Most people over 75 should not be tested, say the authors, because the risks of the screening itself may outweigh any life-extending potential. The recommendations of the U.S. Preventive Services Task Force may be found at: http://www.ahrq.gov/clinic/uspstf08/colocancer/colors.htm.

CMS Clarifies Guidance on 'Standing Orders'

On Oct. 24, the Centers for Medicare and Medicaid Services (CMS) issued a memorandum clarifying its position on the use of “standing orders” for medication in hospitals. CMS had released the official version of its update to the State Operations Manual (SOM) for the SOM Hospital Appendix A on Oct. 17. (Transmittal 37, CMS Manual System, Publication 100-07, State Operations Provider Certification.) This manual contained what some industry leaders thought was a problematic instruction, which told hospitals that most orders for drugs and biologicals should be documented and signed by a practitioner responsible for the care of the patient. This was seen as a prohibition on others in the hospital administering medications during emergencies, like when an asthmatic patient enters the emergency room and needs immediate help from medications to restore normal breathing. The Oct. 24 memorandum clarifies the issue by stating:

The use of standing orders must be documented as an order in the patient's medical record and authenticated by the practitioner responsible for the care of the patient ' but the timing of such documentation should not be a barrier to effective emergency response, timely and necessary care, or other patient safety advances. We would expect to see that the standing order had been entered into the order entry section of the patient's medical record as soon as possible after implementation of the order (much like a verbal order would be entered), with authentication by the patient's physician.

The Joint Commission, in a statement issued Oct. 30, said of CMS's explanation of what it really expects of hospitals: “This clarification was sought by The Joint Commission and brings CMS' interpretation of standing orders into alignment with The Joint Commission's view on how to facilitate the timely treatment of certain patients, particularly those who need medications, not previously ordered, to be administered within brief timeframes.”

The clarification is available at: http://www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/SCLet ter09-10.pdf.