Tag Archives: legal system
Posted on 12. Jun, 2013 by wisdom.
In a recent blog post I discussed how a few new videos have appeared in recent months related to oral and maxillofacial surgery Videos Related to Oral and Maxillofacial Surgery. The American Association of Oral and Maxillofacial Surgeons (AAOMS) has also updated several sections of their website in the last year or so. They now have a section titled Orthodontics and Oral Surgery where they have videos related to showcasing various techniques that oral and maxillofacial surgeons and orthodontists perform. In addition they have updated and written a new page titled “Culture of Safety“. The page is a welcome addition and discusses how safety is the number one priority in the oral and maxillofacial surgery office.
Now I wanted to take a moment to respond to this page and some other developments I have seen lately across the blogosphere.
1) The first point to address relates to the issue of safety versus appropriate treatment. Much of the of the motivation for my website was based on the fact that it was never discussed to me back in 2006 that no scientific evidence supported or refuted third molar extraction. In addition, many of the complications that can occur from wisdom teeth extraction were conveniently not mentioned. Furthermore, AAOMS was actively promoting the extraction of healthy wisdom teeth. AAOMS in September, 2007, placed a 4-page advertisement supplement in USA Today urging the extraction of wisdom teeth without mentioning any possible risks and complications that could occur from their removal. In 2010, they held a third molar conference with the intent of the press conference to provide media with a chance to write articles and perhaps discuss on a TV news segment the potential problems with leaving healthy impacted wisdom teeth in hence why they should be removed. (see Third Molar Multidisciplinary Press Conference, Multidisciplinary Conference on Third Molars (Wisdom Teeth) , and Wisdom Teeth Removal Controversy) It is only recently in late 2011, that AAOMS reversed course (see Advocacy White Paper on Third Molar Surgery by AAOMS )
Hence, my one of my motivations was to get people to question whether or not removing healthy impacted wisdom teeth is the correct treatment choice or not. AAOMS seemed to be promoting a strategy of having most wisdom teeth extracted and not mentioning any scientific evidence to patients and failing to disclose many of the risks, so I was frustrated. In order to help to get people to think about risks and benefits of third molar surgery I looked a numerous articles and lawsuits to find some data. This is discussed on the complication, death, and lawsuit pages in most detail.
Now in my mind the idea of safety and the idea of appropriateness of treatment are two separate distinct issues.
2) The second point to address is on the culture of safety discussed to occur in AAOMS offices. The webpage states
“While the culture acknowledges that as human beings, we are all capable of making mistakes, it further holds that we are capable of recognizing our errors and identifying ways to prevent them from happening again.”
In my mind it is great to see openness and transparency about this issue. Unfortunately, in my experience as described in 1) AAOMS seems to have a history of not being transparent and open about many issues. When I was conducting research on wisdom teeth on the internet prior to my surgery in 2006, many of the relevant facts I would have like to know were not at all open and easily available. I have created an extensive complications page in order to determine if I had overlooked anything that could have caused me to have a 24/7 headache since 2 days after having 4 wisdom teeth extracted. The question that always ran through my mind when I was conducting this research was isn’t it important for treating clinicians to know what problems in the past have occurred so they can be better rectified in the future. Unfortunately, I was not seeing any large effort of this underway at the time of the updating the bulk of the complications page a few years ago.
AAOMS discusses creating transparency and establishing accountability. Unfortunately they seem to be ignoring the main reason as to why a culture of safety has been slow to come about in medical practice which is due to the legal system. I have discussed alternatives to the medical legal system before. Kevin from the popular KevinMD.com blog has recently written a post on improving patient safety.
“…[while] openly talking about errors needs to come from inside the medical world, she neglects another important factor: the medical malpractice system. It’s confrontational, a quality that impedes openness. It’s also why some hospital lawyers encourage opaqueness after adverse events, not only within the medical community, but to patients as well…until our malpractice system encourages that same transparency and ceases to be adversarial, any gains in patient safety will continue to be limited.”
I have also talked about this issue before when I talk about the U.S. Legal and Medical Malpractice where I say
“Understand that the current medical malpractice climate in the U.S. provides very little incentive for health care professionals, physicians, and hospitals to disclose errors, learn from them and improve quality, and apologize to patients that have been injured. Patients and doctors need to be in an environment where they can work together that is mutally beneficial”
In the past AAOMS has focused on trying to get legislation passed that limits non-economic damage caps nationally to $250,000 see
The War on Healthcare: Patients Who Hate Doctors. I wondered to myself why the focal point is not on trying to get legislation passed that will change the medical malpractice system to some other form.
On the culture of safety page AAOMS has the following quote
“The culture of safety concept was first conceived by the aviation industry. In the 1970s, the industry suffered a number of accidents attributable to human error. In response, the industry changed its standards and operations drastically. By implementing cross training, checklists, and better communication channels for now-empowered crewmembers, the safety record of the aviation industry today is an enviable one.”
As I have mentioned before in this post alternatives to the medical legal system the airline industry is very different than the health care industry as the doctor usually does not have his or her health and well being on the line. When a pilot operates a plane if it crashes they might get hurt or killed, so they have a strong incentive to correct any mistakes. In the case of a surgery, if the surgeon makes a mistake only the patient may get hurt or killed, so I suggested a way to have doctors have more skin in the game so to speak.
Nonetheless, it is nice to see some efforts being undertaken to attempt to improve quality and patient care.
Posted on 02. Jun, 2012 by wisdom.
An interesting article is written by Lia Mulligan titled “You Can’t Say That on Television: Constitutional Analysis of a Direct-to-Consumer Pharmaceutical Advertising Ban,” which appeared in the 2011 issue of the American Journal of Law and Medicine (vol. 37, pages 444-467).
In the article it is mentioned that the average american will watch around 16 hours of pharmaceutical advertisements on TV a year. As mentioned I believe before on this blog the U.S. and New Zealand are the only 2 countries in the world that even allow direct to consumer pharmaceutical advertising (DTCA).
I personally do not like this type of advertising and neither do some of my friends. We often make fun of the advertisements when they come on TV as they sometimes can be quite silly.
The article mentions in 1969 when the FDA first issued regulations for DTCA there were four main principles that had to be followed
- truthful information that does not mislead the public in any way
- a balance of both risks and benefits of the advertised product
- relevant, material information about the product that relates to its intended uses
- every risk associated with the advertised product’s use
As you can imagine every risk associated can be a lot of risks. Hence in 1997 the FDA began drafting guidance to replace every risk with only major risks and had to list other sources where viewers could find all the risk information.
There is then some discussion in the article about how when consumer see advertising about a particular drug they may then yes actually ask there doctor for this drug and their physician may then feel pressured into meeting this request.
The author then mentions that some consumers can be misled by pharmaceutical advertisements to think that certain disorders are much more prevalent in society than they really are in reality. Hence many feel DTCA is deceptive. The author then mentions some studies which show that DTCA motivates consumes to seek out unnecessary medical care by seeing doctors and getting prescription drugs which they really don’t need.
The author goes into a lot of legal issues and cases and mentions the Citzens United ruling.
I found the end and the final comment of this article to be the most intriguing.
“When a person fills a prescription and pays his co-pay, the remainder of the cost is charged to his insurance company. That cost, in one instance, can be absorbed by the individual’s premium. Over time, with more and more prescription purchases charging more and more money to insurance companies, that cost is no longer offset by one individual’s insurance premium—it is spread amongst tbe group of people who are paying into the insurance policy. In effect, an individual making a “purchase” by filling a prescription is making a consumer choice for the entire group of which he is a part….”
“When that ‘insurance company’ is the federal or state government, by way of Medicare or Medicaid, each instance of unnecessary care causes taxpaying citizens to suffer economically, and the nation’s economy declines as a whole….there is no reason why everyday consumers should be bombarded with advertisements about prescription drugs whose prices must be paid by the entirety of society. This is the inherent difference between prescription drug advertising and every other type of product advertising in this country, and it ought to be recognized in our legislative and judicial systems.”
Posted on 18. Feb, 2012 by wisdom.
On my site I discuss numerous issues with the current legal system and how this relates to the medical system with a focus on third molar (wisdom teeth) removal. See http://www.teethremoval.com/legal_system_medical_malpractice, http://www.teethremoval.com/legal_standpoint.html, and http://www.teethremoval.com/dental_malpractice.html.
One issue is that there are a host of different damage caps (non-economic ‘pain and suffering’ awards) in different states throughout the United States. This can sometimes limit the amount a patient can receive even if there was gross negligence by the dentist or oral surgeon. Hence this can prevent fair compensation from being awarded.
Another issue with the legal system is that sometimes when patients suffer complications and problems due to negligence they will not be able to sue due to the case not being able to get a very large settlement amount. In addition, these legal cases can drag on for years and years and take a toll on the health of the patient and the doctor.
Unlike in the airline industry for pilots, doctors don’t have their own skin in the game so to speak. If a pilot crashes a plane then the pilot may be seriously injured or even die along with the passengers. When a doctor performs a poor surgery that patient is the only one who suffers.
In order to have doctors have more skin in the game and to help restore trust between doctors and patients I feel that the current legal system in the U.S. should be altered substantially.
One such solution I was thinking about recently would just be to get rid of lawyers in cases where patients suffer pain and lasting complications from surgery.
For example, perhaps an oral surgeon was to charge $5,000 to remove 4 wisdom teeth (much higher than the prices currently today in the U.S.). The patient would then bring cash or a check to the surgeon and enter into an agreement with the oral surgeon. This agreement would stipulate that if the patient was still having lasting pain and problems as a result of a complication from the surgery (which could be reasonably proven or shown) than the surgeon would be required to pay the patient something like 20 times the amount of the surgery and hence pay them $100,000.
Now one would ask how the surgeon would make any money with such an arrangement? Well the surgeon would have to make sure they do a good job and would have substantially more incentive to improve quality than they do now where they have real money tied to real negative outcomes on the line.
Of course the surgeon would hopefully only have a small number of cases like 2 or 3 % that resulted in a lasting complication from the surgery where they would have to pay out. If this is the case then they would still come out well ahead and make money.
Of course lawyers would not like it if they were no longer involved in malpractice cases and certainly insurance companies want to be involved as well. Even so the current system does not provide enough incentive for doctors to improve quality and for mutual trust to be formed.
Another solution more in tune with the current system I have been thinking about to help make sure you receive quality care when having wisdom teeth removed is just to bring in a bunch of cash and pay or oral surgeon substantially more than the rate he charges. At the end of the day I feel most people are motivated by seeing a bunch of cash which they can have if they do a good job. So if you are looking to help improve your chances to having a good outcome with oral surgery you way want to think about paying your surgery much more than he or she charges.
Posted on 19. Sep, 2011 by wisdom.
Dr. Maurice Bernstein on his Bioethics Discussion Blog has an interesting discussion going on about people who hate doctors and their reasons. Reading through the large number of responses located at http://bioethicsdiscussion.blogspot.com/2005/06/i-hate-doctors.html , a common theme emerges: those who are well educated and particularly those with a PhD really hate those with an MD degree.
This is no surprise to me as the current American healthcare system pits patients vs. doctors in a battle.
Here a few snippets from the comments:
1 of the comments:
“I hate arrogant, sadistic, amoral, money-grubbing scumbags, and unfortunately, it seems far too many of these types have weaseled their way into the medical profession. I am one of the millions of people with chronic pain in this country who is at the “mercy” of the American medical profession, and thus cannot get my pain treated.”
Another comment snippet:
“Yes it is true, WAKE UP AMERICA…!! THERE ARE MORE DEATHS IN THE US EVERY YEAR, DUE TO “MEDICINE” & DOCTORS…THAN IN ANY WAR GOING ON!!
THAT is why people “hate” “Dr.s”…becuase they are Killing people!!! They & the AMA are also arrogant, narrow minded & dumb. To think that drugs & only drugs are going to heal somebody & to block out ALL other modes of healing from the practice ie: alternative modes such as Herbs, Accupuncture, Supplements etc…is Assinine, & totally insane!”
“It’s clear that medicine is only about money, about making a buck, about making as much profit as possible for the least amount of risk.”
Yet another snippet
“Lying to prevent malpractice when a heartfelt, humble apology would do? Then it goes too far. Exactly how does an apology protect, legally, against a suit? That’s utter nonsense and yet another backwards step in the entire health care crisis. We are fast approaching a time IMO when the general public will go to war against the health care system.”
As eloquently put by someone who suffered a chronic headache after having wisdom teeth removed just like myself
“In our society, protection from liability is primary, profit is secondary, preserving the posterity and ego of the medical profession is tertiary, and treating the patient is somewhere further down priority chain.”
Hence it is absolutely no surprise that when you go on to American Association of Oral and Maxillofacial Surgeons (AAOMS) Grassroots Action Center http://capwiz.com/aaoms/home/ the first thing you see is Urge Congress to Reform the Medical Malpractice System.
Well that sounds like a good idea especially if you review my site and can clearly see how too little is being provided to patients who have been injured by a doctor in terms of a non-economic damage award and only around 2% to 3% of patients who suffer from negligent care even file a lawsuit http://www.teethremoval.com/legal_system_medical_malpractice
In my case I had my wisdom teeth extracted after I just turned 20 and was extremely healthy and was never told that scientific evidence does not support the removal of healthy wisdom teeth. Nor was I told sufficient information to make an informed choice. Even so due to the the U.S. legal system that rewards doctors for malpractice I never received any compensation for my injuries.
In fact AAOMS and also the American Medical Association are trying to support something called HEALTH Act (S. 218/H.R. 5). See also http://www.teethremoval.com/legal_standpoint.html and http://www.gpo.gov/fdsys/pkg/BILLS-112hr5ih/pdf/BILLS-112hr5ih.pdf for further description.
The quick important details is from http://www.citizenvox.org/2011/05/11/hr5-medical-malpractice-gop-patient-rights/
“H.R. 5, which would give virtual liability immunity to the medical industry for reckless conduct. Included in its repertoire is a national $250,000 cap on non-economic damages, restrictions on punitive damages against pharmaceutical and medical device companies that engage in reckless conduct, limits on the time period for a patient to file a lawsuit to seek compensation for injuries and other obstacles that would deter meritorious cases from going forward.“
I encourage you to review the complications that can happen from wisdom teeth removal and you will come to the same conclusions as I have that a $250,000 pain and suffering damage award for particularly young patients in some instances is extremely unfair, unjust, and downright ridiculous.
Numerous physician groups such as as the AMA and AAOMS in the U.S. have clearly demonstrated that they DO NOT care about their patients.
I urge you my fellow Americans to contact Congress and tell them you WILL NOT TOLERATE H.R.5 AS IT TAKES AWAY YOUR RIGHTS PROTECTED BY THE CONSTITUTION.
Write to your Representative and make it known.
Here is some AC / DC – War Machine to help set the tone.