Monthly Archives

September 2012

Not-So-Informed Consent

By | Blog, Medical Malpractice, Uncategorized | 7 Comments

Most medical providers are familiar with the concept of informed consent in which a patient gives permission for a medical or surgical procedure after achieving an understanding of the relevant facts and risks involved. It’s a basic procedure that should have basic results, but with the recent ruling of the Wisconsin Supreme Court in the case of Jandre v. Physician’s Insurance Co. of Wisconsin, those basics are getting increasingly complex.

This spring, the Supreme Court ruled in favor of plaintiffs Thomas W. Jandre and Barbara J. Jandre after events that had taken place in an emergency room in 2003. On June 13 of that year, Thomas Jandre presented to the ER after experiencing 20 minutes of slurred speech, facial weakness on his left side and dizziness. He was treated by Dr. Therese Bullis, who established differential diagnoses including among other things Bell’s palsy, stroke and Multiple Sclerosis. After ordering a CT scan, which returned negative for hemorrhagic stroke, Dr. Bullis diagnosed Jandre with a-typical Bell’s palsy, prescribed medication for him and instructed him to follow up with his primary care physician within a week. Three days later, Jandre saw his primary care physician and was diagnosed with resolving Bell’s palsy. Eight days after that visit, Jandre suffered a massive stroke. And, due to the fact that Dr. Bullis had not informed him that additional tests were available for detecting a stroke, the courts ruled in favor of Jandre who plead a violation of informed consent.

It’s a rare thing today to find a medical malpractice case that doesn’t involve informed consent. Because it requires no expert testimony and is based solely on what a person would want to know as a patient, it is completely subjective. Medical practitioners are at the mercy of what a court believes a “reasonable” patient should have known before the incident occurred, and are thus subjected to the jury’s speculative opinion. Unfortunately this has led to inconsistent verdicts in which physicians are not found to have been negligent in their treatment, but are still in violation of informed consent. And until the court system establishes more concrete laws on the subject, there is little that can be done to change the outcomes.

There is, however, one thing that could change each situation dramatically, and that is proper documentation.

The best way to combat informed consent violations is to put everything in writing. Not only must you have the proper discussions that outline every possible scenario for a patient, you also must put it in writing. By taking detailed notes of the discussion, a physician can at least have proof that certain options were discussed with each patient and that he or she understood the possible outcomes. Each medical provider should also create a patient consent form to be signed by the patient prior to treatment. This form should include the name of the procedure, the physician performing the duty, an outline of the risks and benefits, any alternatives that were discussed, and that the patient had the opportunity to ask any questions. Not only should this form be signed by the patient, it also should include the signatures of both a personal witness and another health care provider involved in the treatment. It may also be beneficial to have the patient initial after each paragraph to ensure extra credibility.

While informed consent will likely remain a subjective topic among the courts, physicians can do themselves a huge favor simply by getting everything in writing. At Gutglass, Erickson, Bonville & Larson, we encourage you as a medical provider to do your best to inform your patients of all possible treatments and outcomes and then to get it on paper. Doing so could make an incredible difference should the subject come up in a legal situation.

So, do your part to take good notes and know that if you need excellent legal representation for any medical malpractice claim, we at Gutglass, Erickson, Bonville & Larson would be happy to offer a free case evaluation. Call us today!  


Accountable Care Organizations and Medical Professional Liability: What's the Connection?

By | Blog, Insurance Law, Medical Malpractice | One Comment

As attorneys who represent a variety of clients from the medical and insurance industries, we at Gutglass, Erickson, Bonville & Larson find it interesting when a topic surfaces that combines the two.

With the election year being in full swing and health care being one of the main topics, the Patient Protection and Affordable Care Act is being debated at great length. While the details of the act remain a mystery to most of the public, there are a few aspects that have increased awareness regarding patient protection.

Through the PPACA (otherwise known as Obamacare), accountable care organizations (ACOs) are being developed in order to increase the quality of health care services available to patients. Each ACO groups together health care providers including primary care physicians, specialists, nurses and hospitals and gives them a financial budget from which to collectively care for a patient. The goal is to achieve better coordination among the groups and eliminate unnecessary treatments through a more streamlined health care process. If the financial goals are achieved, the savings are shared among the care providers. According to the PPACA, the expectation is that integrating care will increase productivity and decrease expenses leading to favorable outcomes for both the providers and the patients.

While we’ll leave the politics and our opinion aside, we will talk about how this relates to the insurance companies who focus on medical professional liability (MPL). With the ACO structure, health care providers will be integrating their procedures, meaning that MPL policy writers would have to account for changes in the frequency and severity of claims when pricing coverage. If the coordinated care does what it is designed to do, medical errors would decrease and standards of care would increase. One would decrease claims while the other could increase them, and policy writers would have to account for the change in frequency and nature.

There also is the potential for claims from patients to increase due to the number of “non-critial” procedures that will be eliminated through the ACO process. With cost and time savings being the goal, more exploratory tests and exams would be eliminated, which could potentially lead to more claims filed by patients if they are misdiagnosed.

Some industry analysts theorize that as ACOs look to control costs and consolidate efforts, many insurance companies could suffer as niche markets take a backseat by being incorporated into larger programs. Those smaller companies who focus on certain geographical locations also could be at risk as the coverage is rolled into greater policies.

At Gutglass, Erickson, Bonville & Larson, we are experienced in both medical malpractice defense and insurance defense, which is why we find this process particularly interesting. Truly, changes in the industry are taking place, and we need to pay close attention this fall as our nation’s leadership is determined. The result of this presidential election will most likely determine whether or not these trends remain moving forward or are stopped altogether. Either way, it should be interesting.

For now, however, know that we at Gutglass, Erickson, Bonville & Larson will continue to keep providing excellent representation to you whether you are a health care provider, medical insurance professional or any number of our clients in other areas. Our goal is to simply keep doing our job and roll with the laws as they change making sure we know what they are and how to handle them.

For a free case evaluation, call us today!