Unmasked, Undone

See also:

• New York Personal Injury Law Blog
• Kevin, M.D.

Days of Fame

Flea’s fall sobering for other bloggers | Boston Globe | 5.31.07

If there was any remaining doubt, the settlement of Natick pediatrician and medical blogger['s]…malpractice trial removed any illusion that blogging could be done anonymously.

Under the name [the] Flea…posted opinions on his case and the plaintiff’s lawyer, described his preparations for it and the defense strategy, and commented on the jurors. Today’s Globe story details how the plaintiff’s lawyer asked him on the stand if he was Flea. The case, which was settled the next day…

Dr. Kevin Pho, a Nashua, NH, internal medicine physician who blogs under his own name on Kevin, M.D., called the situation sobering.

…

Eric Turkewitz, a lawyer who writes the New York Personal Injury Law Blog, posts today that he’d been fascinated by Flea’s blog…”[t]he subject was, simply put, irresistible,”…”I know that I found his activity fascinating, not only for its raw content, but also for the walking-a-high-wire-without-a-net danger of what he was doing.”

…

David E. Williams, says on his Health Business Blog that he won’t debate Lindeman’s case but gives this endorsement[,]‘ “[l]et me just say that Rob is a fantastic pediatrician and a wonderful human being…[i[f you have kids and live anywhere near Natick, MA you should consider choosing him as their physician…”

Dr. Tim Sturgill, an emergency physician in Sacramento…his blog, symtym.

The Flea’s case will be remembered for many reasons. He has earned a place in legal textbooks and the armentarium of discovery and trial tactics. The merits of his case will never be known—no doubt sealed as part of the settlement. His “anonymous” actions, on his blog, gave his opposition suffiicient leverage to threaten character trumping merit before the jury. And the tragedy of a twelve-year-old’s death should never be lost, no matter what the cause. The plaintiff had a victorious day in court because the defendant had his days of fame in the blogosphere.

This case, hopefully, brought about a necessary death in the medical blogosphere—the death to the notion that anonymity and privacy are protected by an anonymous name. Also, death to the notion that removing content or taking down a blog is necessarily protective, see here and here.

Fleased

Blogger unmasked, court case upended | Boston Globe | 5.31.07

As Ivy League-educated pediatrician…sat on the stand in Suffolk Superior Court this month, defending himself in a malpractice suit involving the death of a 12-year-old patient, the opposing counsel startled him with a question.

…

Shortly before the end of his second day on the witness stand…[opposing counsel] asked him whether he had a medical blog, she recalled. He said he did. Then she asked him if he was Flea. He said he was.

The exchange may have been lost on jurors, but…[opposing counsel] had telegraphed that she was ready to share [defendant]’s blog—containing his unvarnished views of lawyers, jurors, and the legal process—with the jury.

The next day, the case was settled.

The Flea	The Flea’s Real Persona

Arrogance, ignorance, or both? The defendant’s most potent defense was his character—a character the Flea so thoroughly impeached—case over and settled. Hosea 8:7. For they sow the wind And they reap the whirlwind.

Related: The Flea Circus

Lost Reality

Lost Chances for Survival, Before and After Stroke | NYT | 5.28.07

Many patients with stroke symptoms are examined by emergency room doctors who are uncomfortable deciding whether the patient is really having a stroke — a blockage or rupture of a blood vessel in the brain that injures or kills brain cells — or is suffering from another condition. Doctors are therefore reluctant to give the only drug shown to make a real difference, tPA, or tissue plasminogen activator.

…

Many hospitals say they cannot afford to have neurologists on call to diagnose strokes, and cannot afford to have M.R.I. scanners, the most accurate way to diagnose strokes, for the emergency room.

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“I label this a national tragedy or a national embarrassment,” said Dr. Mark J. Alberts, a neurology professor at the Feinberg School of Medicine at Northwestern University.

…

In those awful moments when she realized she had had a stroke, Dr. Fite, unlike most patients, knew what to do. She told the ambulance crew to take her to…one of the Houston stroke centers…asked if she was sure she wanted the drug…[d]id she want to risk bleeding in the brain? Dr. Fite did not hesitate…”I would rather die of a hemorrhage in the brain than be left completely paralyzed in my right side.”

BTW, where are the stroke centers and the legions of neurologists and neurosurgeons willing to deal with strokes and the full spectrum of natural and therapeutic complications? It seems that neurologists are the first to act surprised about the very illness that would seem to put them on a par with cardiologists. Perhaps if they acted as aggressive as the cardiology community in responding to the stroke emergency they would be less prone to label a “lost reality” as “lost chances.”

Third Rail

Bipartisan Bills Introduced in Congress To Enable Funding of Special Health Courts | PRNewswire | 5.24.07

WASHINGTON, May 24 /PRNewswire/ — Common Good, the nonpartisan legal reform coalition, announced today that identical bipartisan bills have been introduced in both the U.S. Senate and the U.S. House of Representatives that would enable states to create special health courts on a pilot project basis. Advancing an idea developed by Common Good and researchers from the Harvard School of Public Health, the bills authorize funding for states to create alternative administrative health systems, including health courts, on a pilot project basis.

Fair and Reliable Medical Justice Act

Senate Sponsors:

• Michael Enzi (R-WY)
• Max Baucus (D-MT)

House Sponsors:

• Jim Cooper (D-TN)
• Mac Thornberry (R-TX)

Coalition:

• American Academy of Family Physicians
• American College of Obstetricians and Gynecologists
• American Osteopathic Association
• Consumers Advancing Patient Safety
• The Joint Commission
• National Committee for Quality Assurance
• Progressive Policy Institute

It will be very interesting to see where this goes with the coming change in administrations and elections in 2008. Will healthcare, finally, be front and center in the political debates? Or will it just be the third rail once again.

MRI Black-Boxed

MRI Contrast Agents Draw Warning | WSJ | 5.24.07

WASHINGTON — The Food and Drug Administration said it is asking manufacturers of certain contrast agents used in patients undergoing magnetic resonance imaging, or MRI, scans to place a black-box warning on the agents’ packaging.

The FDA said the warning, which would apply to five gadolinium-based contrast agents — including ones made by General Electric Co.’s health-care unit and a Bayer AG unit — would state that patients with severe kidney insufficiency are at risk of developing a debilitating and potentially fatal disease known as nephrogenic systemic fibrosis, or NSF. A black-box warning is the FDA’s strongest drug warning.

See also:

• FDA’s Questions and Answers on Gadolinium-Based Contrast Agents
• eMedicine on Nephrogenic Fibrosing Dermopathy (NFD) (also known as nephrogenic systemic fibrosis, NSF)

The gadolinium-based contrast agents now join the CT contrast agents in terms of potential complications. Looks like the ED consent forms for contrast now need to include the GBCA warnings for those “emergent” MRAs.

The Flea Circus

I was rather late to the Flea controversy over his malpractice trial. In fact, I recall seeing just his initial post about the plaintiff’s attorney prior to his site’s take-down. He has quite a following among personal injury attorneys (including posts that have PDFs of his site prior to the take-down):

• Medical Malpractice Trial Starting For Med-Blogger
• Med-Blogger, On Trial For Malpractice, Takes Down Trial
• Med-Blogger Flea, Previously Live-Blogging His Trial, Takes Down Entire Site
• The Flea is Back. Read about this Pediatrician’s first day of trial
• The Flea Explains their Trial Strategy
• The Flea tells us what juries really care about
• The Flea Outlines the Plaintiff’s Complaint against him

I believe the Flea is learning how costly “free speech” can be. I have to agree with the attorneys here, this is about as foolish a manner a physician could act prior to and during a trial—he’s going to be the textbook example for years to come. He waved several red flags in front of the bull…and the bull charged. One of the red flags:

Big Brother is Mining

Doctors, Legislators Resist Drugmakers’ Prying Eyes | WP | 5.22.07

Seattle pediatrician Rupin Thakkar’s first inkling that the pharmaceutical industry was peering over his shoulder and into his prescription pad came in a letter from a drug representative…that Thakkar was causing his patients to miss more days of school than they would if he put them on…a more expensive brand-name…

Many doctors object to drugmakers’ common practice of contracting with data-mining companies to track exactly which medicines physicians prescribe and in what quantities — information marketers and salespeople use to fine-tune their efforts.

The American Medical Association…makes millions of dollars each year by helping data-mining companies link prescribing data to individual physicians. It does so by licensing access to the AMA Physician Masterfile, a database containing names, birth dates, educational background, specialties and addresses for more than 800,000 doctors.

Randolph Frankel, a vice president at IMS Health Inc., the Connecticut-based health-data-mining company that challenged the New Hampshire law, said the more a drug representative knows about a physician, the easier it is to provide information that meets the needs of the doctor’s practice.

“We are about more information and more education, and not less,” said Frankel, whose company had operating revenue of $1.75 billion in 2005, not all of it from sales to drugmakers. “The vast majority of physicians welcome these people as part of the overall educational process about drugs and their use. And any doctor in the country can close the door to these sales reps. It doesn’t require legislation to do that.”

Prescription Restraint Law Declared Unconstitutional in New Hampshire | IMS Health

Federal Judge in the US District Court in Concord, New Hampshire has ruled that the state’s “Prescription Restraint Law” is unconstitutional, since it restricts commercial speech which is protected under the First Amendment. The ruling by Judge Paul Barbadoro overturned a state law which imposed criminal penalties on the commercial use of provider-identifiable prescription information. (Judge’s rulling in PDF)

Strong reason never to rejoin the AMA. Commercial speech v. physician privacy—this will be appealed. The constitutional four-part test:

1. Is the expression protected by the First Amendment?
2. Is the asserted governmental interest substantial?
3. Does the regulation advance the governmental interest asserted?
4. Is the regulation more extensive than is necessary to serve that interest?

Invasion of physician privacy to obtain prescribing practices may constitute a substantial governmental interest if it can be shown that marketing based upon such invasions increases the cost of prescription drugs paid for by the government. The cost of prescription drugs is an ever increasing governmental interest. Another issue may well be the intrusion of a third-party (the pharmaceutical companies, the AMA) into the privacy of the privileged physician-patient relationship.

Music is Stopping

Another hospital adopts patient discharge plan | LAT | 5.19.07

Hollywood Presbyterian Medical Center, accused of dumping a homeless paraplegic patient on a skid row street, announced Friday that it would adopt the same discharge rules for the homeless as Kaiser Permanente agreed to this week to resolve criminal charges and lawsuits by the Los Angeles city attorney.

City Atty. Rocky Delgadillo said his office has an “active and ongoing” investigation [and "t]his announcement by itself doesn’t impact our investigation,”…he hopes all hospitals adopt the protocols and that some “bad actors” may need monitoring.

You don’t want to be the last hosptial standing when this music stops…

Dismissive Death

Tale of last 90 minutes of woman’s life | LAT | 5.20.07

In the emergency room at Martin Luther King Jr.-Harbor Hospital, Edith Isabel Rodriguez was seen as a complainer

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The 43-year-old mother of three had been released from the emergency room hours earlier, her third visit in three days for abdominal pain. She’d been given prescription medication and a doctor’s appointment.

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Parked in the emergency room lobby in a wheelchair…she fell to the floor…writhing in pain, for 45 minutes, as staffers worked at their desks and numerous patients looked on…[a] janitor cleaned the floor around her as if she were a piece of furniture…[a] closed-circuit camera captured everyone’s apparent indifference…her boyfriend unsuccessfully tried to enlist help from the medical staff and county police…a 911 dispatcher…balked at sending rescuers to a hospital…alerted,…police stepped in…and prepared to take her to jail…[s]he died before she could be put into a squad car.

Anyone who has worked in a busy urban Emergency Department has seen this. It is very easy to fall into the trap of trivializing the perception of pain, the behavioral response to pain, and the return visits to the Emergency Department for the “same complaint.” This appears very bad for King–Harbor, this woman died a system–death and a dismissive–death at multiple levels over a protracted period of time.

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