How dirty medical devices expose patients to infection

It seemed simple enough at the time. In 2009, John Harrison, a 63–year-old oil industry sales manager in Mission, Texas, had surgery to repair the rotator cuff in his right shoulder, a routine procedure that usually requires at most a single night’s stay in the hospital, followed by physical therapy. For Harrison, however, there was nothing routine about the ordeal that ensued.

In the weeks following the surgery, his scar turned bright red, hot to the touch, and oozed thick fluid that looked “like butter squeezed from a bag.” Alarmed, Harrison’s wife, Laura, called The Methodist Hospital in Houston, where the surgery was performed. The doctor urged Harrison to immediately make the seven-hour drive back to Houston for an emergency checkup.

That night, surgeons opened up Harrison’s shoulder and found that infection had eaten away part of his shoulder bone and rotator cuff. Screws and metal hardware surgeons placed in his shoulder had pulled loose. Sutures had come undone. Surgeons cleaned out Harrison’s shoulder, installed two drains and gave him antibiotics to battle the infection.

When Harrison awoke from that surgery, he imagined his nightmare was over. But in reality, it had just begun. Since then, what began as a simple operation has turned into a lengthy struggle that left him for months at a time dependent on hired nurses, unable to dress himself, take a shower, or work, and afraid for his life.

“I’m a pretty tough guy, being in the oil patch,” said Harrison, a soft-spoken man who tends to understate the severity of his ordeal. But the pain “felt like someone hit your shoulder with a baseball bat with a razor blade attached to it.”

Harrison at first blamed himself, thinking he had not taken proper care of his surgical wound. The truth was much worse: Harrison was one of at least seven joint surgery patients at Methodist who acquired dangerous infections during a two-week period. The outbreak led Methodist to close operating rooms and cancel knee and shoulder surgeries while hospital and Centers for Disease Control and Prevention (CDC) investigators searched for the cause.

They found two likely sources in unlikely, yet terrifying, spots — deep inside a hand-held power tool called an arthroscopic shaver, which surgeons use to shave away bone and tissue during surgery, and inside a long narrow metal tube called an inflow/outflow cannula, which is used to irrigate and suction the surgical site.

During the Methodist investigation, the hospital inspected surgical tools with a tiny video camera to make sure places impossible to see with the naked eye were clean. They were not. Inside the cannulas and arthroscopic shavers, the video camera made startling finds. Human tissue and bone were stuck in both devices. The camera also discovered a bristle from a cleaning brush in an arthroscopic shaver.

Further investigation revealed that Methodist had not cleaned the cannulas with brushes, as manufacturer instructions require. Instead, the hospital ran tap water through the instruments.

The case of the dirty arthroscopic shavers, however, was even more frightening. According to accounts by Methodist staff and a government infection control researcher, the hospital followed the cleaning instructions provided by Stryker, the Kalamazoo, Mich. manufacturer of the shavers used on all the infected patients. The instruments had been properly cleaned, but they were still dirty. That set off alarms that would travel through the larger medical community. Dr. Pritish Tosh, a former investigator at the Centers for Disease Control and Prevention Epidemic Intelligence Service, blames the Methodist infections on those dirty devices. “Evidence from the investigation suggests the Methodist infection outbreak was most likely caused by retained tissue…,” Tosh wrote in a paper published in 2011 in the journal Infection Control and Hospital Epidemiology. The bacteria that caused the infections was “likely introduced into the case patients’ joint spaces” by dirty instruments or fluid that passed through them.

Investigators say hospital-acquired infections are notoriously difficult to track to their sources, but Tosh’s account is likely the only explanation Harrison is going to get for why he endured seven follow-up surgeries, but still cannot raise his arm when he wakes up in the morning.

“I’m angry,” said Harrison. “This is 2.5 years. I should be at the time of my life where I need to enjoy it a little bit.” In 2011, Harrison filed a lawsuit against Stryker and Methodist. Early this year, Harrison settled with Methodist for an undisclosed amount. His case against Stryker has been moved to federal court. Harrison’s attorney, Carl Shaw, declined to comment on the lawsuit. Stryker also declined to comment, but paperwork the company filed in court denies Harrison’s claims, arguing among several defenses that the firm’s arthroscopic shavers “conformed with the prevailing standard and customs of the state-of-the-art of the industry.”

A larger problem
Was the Methodist case a fluke? Hardly. Filthy, dangerous medical implements have been showing up in hospitals and outpatient surgery centers with alarming regularity. In 2009, the Department of Veterans Affairs admitted that 10,737 veterans in Florida, Tennessee and Georgia were given endoscopies or colonoscopies between 2002 and 2009 with endoscopes that may have been improperly cleaned. Some of those patients later tested positive for HIV, hepatitis C, or hepatitis B. Several lawsuits filed against the VA by veterans are currently working their way through the courts, and attorneys expect many others to follow. Investigation of a 2008 hepatitis C outbreak that sickened at least six people in Las Vegas revealed that an outpatient surgery center was improperly cleaning endoscopes and reusing biopsy forceps designed for a single use. Following that outbreak, a Centers for Medicare and Medicaid Services (CMS) pilot program inspected 1500 outpatient surgery centers and cited 28 percent for infection control deficiencies related to equipment cleaning and sterilization.

Last summer, the Food and Drug Administration (FDA), which regulates medical devices, held a little-noticed workshop to address concerns regarding dirty devices. Over two days, manufacturers, hospital representatives, and officials from the CDC and FDA described the challenges of thoroughly cleaning complex but reusable medical devices between procedures. Jahan Azizi, a risk management clinical engineer at the University of Michigan Health System, presented the most ominous data and conclusions to the crowd of around 200 government and industry insiders.

“This is unfortunately after lunch, and I apologize for that if you have a weak stomach,” Azizi said, as he described how his team ran a tiny surgical video camera inside 350 surgery-ready suction tips (a common tool surgeons use to suction blood and fluids). All of the suctions tips, Azizi said, contained blood, bone, tissue, even rust.

But what Azizi found next was even more troubling. After discovering the debris, Azizi’s team ran the 350 suction tips through the manufacturer’s recommended cleaning and disinfection processes and reexamined them. All but seven of the suction tips still contained debris. The problem, Azizi claimed, was a design flaw that caused debris to clog out of reach of cleaning brushes.

“I don’t know who approved this or who made this a reusable item, but this is not a reusable or cleanable item,” Azizi said about a particular suction tip, adding that when he cut the tip open, “a handful of stuff came out.” Azizi said he chose suction tips because they are included in almost every tray of instruments surgeons use, but that the lesson is far reaching. “There are a lot of them that are difficult or impossible to clean,” Azizi said.

A critic of the device manufacturing industry, Azizi blames poor manufacturer design for the difficulty of cleaning devices, but experts say bad design is but one of a litany of reasons why dirty instruments are being used on patients. At the FDA workshop, experts pointed to several other reasons, including the proliferation of highly complex surgical instruments, inadequate device testing by manufacturers, and the struggle faced by poorly-paid hospital employees who clean and sterilize devices between procedures, often under pressure from nurses and surgeons who need the devices quickly for the next operation.

It is difficult to know exactly how often dirty instruments are to blame for the infections that plague hospitals, since bacteria can hide anywhere from a doctor’s unwashed hands to a nurse’s dirty scrubs. But experts say it happens far more often than generally understood. “The cases we hear about,” said Dr. Melissa Schaefer, a CDC medical officer, “are only the tip of the iceberg.”

From hand scalpels to robots, high-tech creates new cleaning challenges
Decades ago, medical instruments were almost exclusively made of steel and glass, and many looked like the tools used by a butcher or an auto mechanic. Cleaning these tools was simple, and sterilization required little more than a heavy shot of steam.

The tremendous growth of minimally invasive surgeries in the 1990s, however, brought flexible endoscopes that are passed through tiny incisions to see inside patients. Instruments became smaller, more specialized and complex, with moving parts, tiny holes, and long narrow channels running the length of the implements. Manufacturers turned to materials like tungsten, plastic and other polymers. Progress continues. As surgeons begin to rely on robotics, devices are becoming even more elaborate.

Intricate modern instruments revolutionized surgery, but they have proven difficult to clean. Those tiny internal channels become clogged with unseen tissue and blood. Steam sterilization melts and destroys some modern devices. Instruments made of materials like rubber may not heat all the way through, as many metals do, creating sterilization challenges.

“Cleaning was once a basic factory job,” said Joe Lewelling, vice-president of standards development at the Association for the Advancement of Medical Instrumentation. “Now it’s very complex. It takes a lot of steps. It’s more like a laboratory process.”

Theoretically, if a device is truly impossible to clean, it should never end up on hospital shelves. The FDA, as part of its medical device clearance process, requires device manufacturers to verify that their cleaning instructions are effective. Few in the industry, however, believe the regulation works. Instead of testing their tools in the real world of hospitals, industry veterans say, manufacturers usually hire independent labs to evaluate their cleaning instructions under perfect conditions.

“If the lab can do the test, the lab has done their job for the manufacturer,” Trabue Bryans, a vice president and general manager of the lab company WuXi App Tec, said at an October meeting of the Association for the Advancement of Medical Instrumentation at the FDA. “We have all the time in the world.”

Stryker, the manufacturer of the arthroscopic shavers used in the Methodist infection cases, declined to say whether it tested its reprocessing instructions in hospitals.

The basement
In hospitals, the struggle to clean and sterilize surgical implements usually takes place in the basement, in hot, humid, “central sterile processing” units where employees, some making as little as $8.50-an-hour, work in fast-paced conditions to keep equipment in rotation.

Technicians are responsible for cleaning and sterilizing a vast range of instruments, from the tiniest forceps to intricate modern power tools. At the largest hospitals, as many as 40,000 devices pass through every day.

Charles Hancock, an independent medical device sterilization consultant in New York who has worked in the industry since the 1960s, said some central sterile departments are clean and efficient, while others are dirty and overcrowded with a “dungeon mentality.” Most, he said, are somewhere in the middle.

While instruments are often cleaned and sent back to surgery rapidly — perhaps too rapidly — Hancock said they also sometimes sit around for hours, or days, before they are cleaned, which allows blood and tissue to dry and harden. If a device is improperly cleaned prior to sterilization, the process can bake the blood and tissue on the instrument. With devices in rotation for years, or even decades, Hancock said the number of dirty devices currently in hospital supplies is likely massive.

But even in the best of conditions, many surgical tools are tough to clean. “Sometimes we have to beat the instrument on the table to loosen up the bone,” said Sharon Greene-Golden, a central sterile processing manager at Bon Secours Mary Immaculate Hospital in Newport News, Va., and president-elect of the International Association of Healthcare Central Service Materiel Management (IAHCSMM), which advocates for the central sterile industry.

“Labor and delivery sends trays that look like they have been to a massacre,” Greene-Golden said. “You get instruments that are covered in blood and amniotic fluid. They stink. Everything is terrible about them.”

Dressed in gowns, face shields, and rubber gloves, workers treat every instrument “as if the case had Ebola,” Greene-Golden said. But hospitals across the country have a limited number of tools and frequently pressure central sterile processing units to clean them as fast as possible in order to keep patients moving through profitable surgery suites. Since techs are the low man on the totem pole, it’s hard to push back against nurses and surgical staff.

Worst of all, central sterile techs say doctors and nurses rarely acknowledge their role in successful surgeries. Except when an important person or a doctor’s family member is on the table, that is. “They call and say, ‘Dr. Jones’ wife is having surgery,’” Green-Golden said. “You didn’t call when I was having surgery. You didn’t call when my momma was having surgery.”

The fast pace, low prestige and low pay leads to high staff turnover, sometimes for fast food or retail jobs. For those who stay, there is resentment. Candace Alston, 36, worked as a central sterile processing technician for ten years, at two different Virginia hospitals. While many others rotated through the basement, working a month or two before finding other jobs, Alston stayed. The gore got to her at first, Alston said, but she soon got used to it. “I enjoyed the work. I enjoyed the job,” she said.

Alston finally quit her job in August to study business administration online. The problem was compensation, Alston said, which had increased to $12 an hour, up from $8.50 when she started a decade earlier. “It’s demanding. You have people’s lives in your hands,” she said. “We have a lot of responsibility but not the pay.”

Robert Tremblay, a 27-year-old tech at a Boston hospital, said the job is frantic, especially in decontamination, the first step of device reprocessing, which he likens to “cleaning the dishes before you put them in the dishwasher.” But cleaning medical instruments is much more complex and tedious, Tremblay said, requiring special brushes to remove blood, bone and tissue from the nooks, crevices and channels. Skip one step, and the device is dirty. Does it happen? “All the time,” Tremblay said.

As Tremblay worked at the decontamination sink a few months ago, he cut his finger with a dirty dental pick, and had to be tested for HIV. Most central sterile workers have a similar story. Still Tremblay, who has a biology degree and is working toward a nursing degree, said jobs in the field are plentiful and it’s “better than working at Dunkin’ Donuts.”

If these secrets of central sterile processing are unknown to patients, they are equally mysterious to the doctors who use the equipment. Speaking at the FDA summit last summer, Dr. Daniel Schwartz, a chief medical officer at CMS, said that when he was in private urology practice, he assumed the tools he used were safe. Later, at CMS, Schwartz said he learned about “bio-burden, soil, design issues, and instruments that made it difficult to impossible to clean” and began to worry. “And my guess is most physicians would feel the same way if they heard some of the things that we’re talking about today,” he said.

Central sterile techs play a key role in making sure clean devices make it to surgery suites, yet only New Jersey requires techs to be certified, despite a recent push by IAHCSMM and state organizations. “The people who do your nails, they have to take an infection control course before they can apply for a license,” said Mary Olivera, the director of sterilization at a New York City medical facility and past president of the New York State Association of Central Service Professionals. “Same with a dog groomer. Yet the people who deal with lifesaving equipment, they are required to have zero education.”

Earlier this month, New York State Assemblyman Harry Bronson (D-Rochester) and Sen. Mark Grisanti (R-Buffalo) introduced bills that would require professional certification for central sterile workers. Since 2007, Olivera and others have unsuccessfully pushed bills in the New York state legislature that would mandate licensure or certification. Jo Colacci, government affairs director at IAHCSMM, said hospital employee unions opposed previous bills proposing mandates.

FDA ‘safety review’ reveals problems, then vanishes
The fact that arthroscopic shavers retain tissue between patients is no surprise to Danny Tipei, the owner of Inex Surgical, a large surgical repair company outside Chicago that repairs broken arthroscopic shavers for hospitals and surgical centers. Tipei said it’s common for his technicians to take apart a shaver and find it clogged with flesh or bone.

“It looks like dried fruit, like skin from an apple that you leave for four or five days outside,” Tipei said. “It will be all dried out and twisted. We have tiny forceps that we use to remove it.”

At The Methodist Hospital, however, the infection outbreak and dirty shavers set off government alarms. Maureen Disbot, vice president of quality at Methodist, said the hospital brought in Stryker representatives and showed them how the device was retaining tissue, even after it was cleaned according to instructions. “We actually invited the manufacturer here when we started uncovering our findings, to make sure our interpretations are correct,” Disbot said. After consulting with Stryker, Disbot said the hospital was confident that it followed the manufacturer’s cleaning instructions. The problem, she said, was not the hospital’s cleaning method. Stryker declined to comment on Disbot’s account, but documents it filed in Harrison’s case say any damages resulted from acts or omissions by third parties.

After discovering the dirty instruments, Methodist informed the FDA, which in July of 2009 launched a safety review of arthroscopic shavers. But more than 2.5 years later, the FDA has done little to solve the problem, despite review findings that experts alternatively call “gross” and “scary.” According to FDA spokeswoman Karen Riley, the agency, as part of the safety review, asked arthroscopic shaver manufacturers to study how well their shavers were being cleaned at health care institutions. The FDA declined to make public what the manufacturers found, claiming the information is proprietary. But according to industry insider accounts, the findings showed serious potential for patient harm.

Nigel Wilkinson, senior vice president of regulatory affairs and quality at Massachusetts-based manufacturer Smith & Nephew, which manufactures shavers, presented his company’s findings at the FDA workshop this summer. Wilkinson said Smith & Nephew inspected 72 shavers at eight hospitals and surgery centers, and that all but three of the devices contained “residuals” after cleaning by hospital staff.

Wilkinson said none of the technicians at the medical facilities followed the company’s 11-step instructions, which order imprecise tasks including “scrub interfaces several times using a twisting action if possible.” In a telephone interview, Wilkinson said the investigation showed that many technicians are not properly trained and do not have adequate access to manufacturer instructions.

The company did not, however, investigate whether or not tissue remained even after technicians perfectly followed the company’s instructions. Asked if he thought the company’s shavers currently on the market are clean, he paused. “I would hope so,” he said. “But we’ve got thousands in the marketplace. I could not say what is going on with all of them.”

Azizi, at the University of Michigan Health System, said in addition to surgical suction tips, his team also inspected 15 arthroscopic shavers. He found biological material and other debris in all of them.

Stryker declined to release the results of the arthroscopic shaver study it performed at the request of the FDA, but Rodney Parker, senior manager of clinical sciences at the firm, said the company’s results were similar to Smith and Nephew’s. Despite the Methodist case, Parker said he isn’t worried about the device being a major cause of infections, since it has been on the market for decades. Asked about the dirty devices manufacturers found during the FDA safety review, he said he didn’t know who is to blame. “Is it the cleaning that did it or is it the design that did it? I don’t know,” Parker said. “Can we do a better job at education? Yeah.”

Stryker spokeswoman Tamara Cutler declined to comment further on the issues of cleanliness with the company’s arthroscopic shavers, but forwarded this email message: “As a global medical device company, we work with many regulatory agencies, including the FDA, to ensure our products and practices meet all quality and safety standards.”

In October 2009, five months after the infection outbreak at Methodist, Stryker issued clarified cleaning instructions for their arthroscopic shavers. The process included ten steps, the final one recommending cleaning staff use a digital scope to visually inspect the insides of the handpiece. “If visible soil remains, repeat steps 1-9, focusing on areas that have soil remaining.”

Since the infections, Disbot said Methodist technicians inspect the interior of every shaver with a tiny video camera to make sure it is clean before it is used. “We regret that our patients had this experience,” Disbot said, “but we have done everything and we have now fixed the problem. That’s what we stand on.” But Disbot admits it’s questionable whether or not the lessons learned at a large academic hospital have trickled down to smaller hospitals. “I can’t say that a rural hospital in Michigan knows about Methodist’s work,” she said.

Despite the Methodist infections and the alarming FDA safety review findings, the agency has ordered no system-wide mandatory check of arthroscopic shavers. No products have been recalled. The FDA posted an alert on its website encouraging facilities that use the shavers to evaluate the adequacy of their cleaning procedures, and file a voluntary report to the agency if they find shavers retaining tissue between users. The agency said it has received no further reports of shavers retaining tissue. Manufacturers, including Stryker, also sent warnings to their customers.

Asked why the agency has not done more in the face of evidence on dirty devices, Riley at the FDA said “these are important products that have been used for decades with little evidence of risk to public health as a result of reprocessing.” Further, Riley wrote that “in 2010, there were 2.1 million arthroscopic procedures of the knee performed and yet total adverse events from all causes was 1 percent. This does not merit withdrawal of a valuable device.”

Charles Hancock, the New York private sterilization consultant, claimed Riley’s numbers are meaningless. It’s well-known in the industry, Hancock said, that hospitals frown on staff reporting all but the most obvious and severe adverse events because it draws scrutiny. “No one disputes that,” Hancock. “Those numbers are irrelevant.” The true number, he said, is likely much higher.

Workers in sterile processing units are also agree that dirty devices are a widespread problem. Asked if dirty devices are regularly making their way into surgical suites at some hospitals, Lesa Jackson, a supervisor of sterile processing at St. Luke’s Episcopal Hospital in Houston, said she has no doubt. “Oh yes,” she said. “Yes. Yes.”

Riley at the FDA said the safety review of arthroscopic shavers has been folded into a larger effort to ensure that all medical devices are correctly reprocessed. So far, that effort has resulted in draft agency guidance released last summer suggesting manufactureres develop more robust reprocessing instructions appropriate for the real world hospital environment. The draft also suggests changes to pre-market device testing criteria. The draft guidance, if and when it becomes final (a FDA spokeswoman said it is unclear when the final rules will be released) will serve as a guide for device manufacturers as they seek FDA clearance for new devices.

But the guidance, which the draft points out “does not establish legally enforceable responsibilities,” would have little or no effect on the thousands of devices already being used by surgeons, including the arthroscopic shaver used on John Harrison.

More than 2.5 years after his initial surgery, Harrison’s shoulder looks like it has been hit by shrapnel. He can’t scratch his head. He can’t cast a fishing lure. He may face additional surgeries to bring his range of motion back to what it was before he first went under the knife, a prospect he finds terrifying.

Most of all, he regrets putting his wife, Laura, through the struggle. Harrison said he was delirious on that journey back to the hospital after his initial surgery. Laura drove and talked to him to keep him awake. He was “out of it” for much of the next year, and his caregiving fell to her.

And it was Laura who first learned from doctors about just how much danger Harrison was in. Soon after his second surgery, Harrison wanted to leave the hospital and go home, and did not understand why he couldn’t. That’s when Laura told him what he was facing. “She says, ‘John, we’re not trying to make you better. We’re trying to save your life,’” Harrison recalls. “I took my IV with me, went into the bathroom, and had a good cry.”

for more on this visit

http://www.iwatchnews.org/2012/02/22/8207/filthy-surgical-instruments-hidden-threat-americas-operating-rooms

Contact the lawyers at Ralston, Pope & Diehl for more information.

AAJ calls for transparency of medical industry payments

For Immediate Release: February 16, 2012

Contact: Katie Gommel
American Association for Justice
202-965-3500 x8369
AAJ Press Room

AAJ Calls for Transparency of Medical Industry Payments

Washington, DC—Establishing a reporting requirement that creates transparency of payments from drug and device manufacturers to doctors and hospitals will increase patient safety by reducing conflicts of interest, according to comments submitted today by the American Association for Justice (AAJ) to the Centers for Medicare and Medicaid Services (CMS).

Doctors may knowingly or unknowingly prescribe a drug or recommend a device based on a monetary relationship with a manufacturer, which can result in patients not receiving the best drug or device for their needs.

“We need to eliminate patients’ unnecessary exposure to potentially dangerous drugs and devices,” said AAJ President Gary M. Paul. “Transparency will allow patients to determine whether their physicians have any conflicts of interest and empower them to make an informed decision regarding the drugs or devices they are prescribed.”

With the growing number of drugs and devices manufactured outside the United States, AAJ supports including the reporting of foreign manufacturers’ conflicts of interests with clients based in the United States.

AAJ’s full submitted comments can be found here.

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As the world’s largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. Visit http://www.justice.org/newsroom.

NYT shines light on ALEC and The Big Money Behind State Laws

For years, AAJ has been following the shady backroom dealings of the corporate-funded American Legislative Exchange Council (ALEC). AAJ released a report in May 2010 detailing how ALEC has been ghostwriting the law for big business on behalf of oil, drug, asbestos and insurance interests. Today, The New York Times shines an additional light on ALEC’s activities in an editorial:

The American Legislative Exchange Council was founded in 1973 by the right-wing activist Paul Weyrich; its big funders include Exxon Mobil, the Olin and Scaife families and foundations tied to Koch Industries. Many of the largest corporations are represented on its board.

ALEC has written model legislation on a host of subjects dear to corporate and conservative interests, and supporting lawmakers have introduced these bills in dozens of states. A recent study of the group’s impact in Virginia showed that more than 50 of its bills were introduced there, many practically word for word.

One important point to add to the editorial is the considerable amount of work ALEC has done to tear down the civil justice system around the country. As AAJ’s report highlights, ALEC legislation is exclusively written to provide immunity for its corporate sponsors by eliminating the right of consumers and employees to hold negligent corporations accountable. In fact, ALEC has had a hand in legislation protecting a wide range of corporate interests from big oil companies to chemical manufacturers to Wall Street banks.

Recent anti-civil justice system legislation promoted by ALEC includes a bill introduced in Idaho earlier this year that is solely designed to protect Crown Holdings Incorporated’s bottom line by closing the courthouse doors to workers and their families who suffered the devastating effects of asbestos exposure.

Another bill sold as a “jobs creation bill” in Wisconsin would grant immunity to certain drugs and medical devices manufacturers. The bill does not require the manufacturer to move to Wisconsin and operate there; it just makes it so injured Wisconsin citizens cannot seek justice. In fact, despite Michigan having a law like the one proposed, in 2007 Pfizer closed several facilities and eliminated 2,400 jobs in Michigan. The Wisconsin drug immunity bill (LRB 2890) mimics the ALEC “Drug Liability Act.”

ALEC’s efforts to weaken the civil justice system have not gone unnoticed. Last week, Minn. Gov. Mark Dayton vetoed four tort reform bills and publicly suggested that three of the bills were directly inspired by ALEC. He said, “I’ve found that Minnesotans don’t want their laws written by lobbyists for big corporations.” The Arizona Republic also highlighted in an article that a tort reform bill in the Arizona Senate is based off of ALEC model legislation.

As The New York Times points out, Americans have the right to know who is actually behind legislation that is aimed at limiting their rights:

Lawmakers who eagerly do ALEC’s bidding have much to answer for. Voters have a right to know whether the representatives they elect are actually writing the laws, or whether the job has been outsourced to big corporate interests.

Be sure to read AAJ’s report, Ghostwriting the Law for Corporate America, to learn more about ALEC.

CNN’s Under Covered segment sheds light on the Feres Doctrine

CNN aired a story on the Feres doctrine, an outdated 1950 U.S. Supreme Court decision that prevents active duty military from holding the government accountable for negligent conduct. CNN highlighted the problems with Feres, including how it takes away accountability in military hospitals and, as a result, leaves servicemembers and their families with substandard health care.

For this story, CNN interviewed the reporter from Military Times that broke the story that the U.S. Attorney’s office in Florida is attempting to expand the scope of the Feres doctrine to cover medical malpractice lawsuits involving family members of active duty service members. Andrew Cohen also covered this story in his column for The Atlantic.

AAJ has long railed against the broad application of the Feres doctrine and has fought to protect the rights of servicemembers and their families.

To see the story visit:

http://fightingforjustice.org/content/cnn%E2%80%99s-under-covered-segment-sheds-light-feres-doctrine

for any questions please call the lawyers at Ralston, Pope & Diehl.

DC family’s story advocates the need to focus on patient safety

This month’s Washingtonian features an in-depth article on improving patient safety in hospitals which includes the story of my client’s mother, Frances Barnes.

While recovering from a stroke at Howard University Hospital, Frances complained about leg pain to one of her daughters, Althea Hart. Althea looked at her mother’s legs and noticed an odor coming from the compression stocking on her mother’s legs. After taking them off, she found that parts of her mother’s left foot had turned black. The stockings are supposed to be removed every shift so the patient’s feet can be inspected.

Efforts to reverse the infection failed. Frances’s family moved her to another hospital where they had to perform surgery to remove her lower leg. Frances was moved into a local nursing home where she continued to experience infections and passed away only five months after her daughter discovered her infected black foot.

A DC Department of Health investigation found that nurses had failed to follow doctor orders to remove the compression stockings for 30 minutes following each shift.

Unfortunately, medical errors are all too common; the Institute for Medicine has estimated that 98,000 people a year die due to preventable medical errors. Countless more are injured each year. But even as errors persist, patients are often left in the dark when trying to find information on hospitals’ safety records. Data on medical errors isn’t easy to find and often not linked to a particular hospital. Here is what they found about the DC area:

The current lack of transparency makes it hard for people to figure out which of their local hospitals is safest. The District of Columbia reports on injuries occurring in the city’s hospitals, for example, but doesn’t say at which hospital the problems occurred. The DC Department of Health reported that between 2009 and 2010 there were at least 310 serious injuries in the city’s hospitals, down from 706 in 2008. But those figures may not include all injuries, because it’s not clear whether all hospitals reported all mistakes, as doing so is voluntary. In Maryland, there were about 56,000 preventable complications involving hospital patients between July 2010 and July 2011. Virginia doesn’t detail medical errors.

The only comprehensive source of data on hospital safety is the Medicare Hospital Compare Web site, and that information lags by about a year and mostly captures care of those age 65 and older.

As the article points out, some local DC hospitals are taking steps to improve patient safety, including implementing safety checklists and analyzing near misses. These are good steps. Preventing medical errors needs to be the top priority for all doctors, nurses and hospitals. Reducing errors not only saves lives, it will reduce cost and improve care.

-Catherine Bertram

For more information please contact the lawyers at Ralston, Pope & Diehl L.L.C.

Dentist who used paper clips gets year in jail

A former Massachusetts dentist was sentenced to one year in jail Monday for using paper clips instead of stainless steel posts in root canals.

Dr. Michael Clair pleaded guilty earlier this month to a list of charges, including assault and battery, defrauding Medicaid of $130,000, illegally prescribing medications and witness intimidation.

Prosecutors said Clair sometimes used sections of paper clips when performing root canals in an effort to save money. Some of his patients reported infections and other problems.

Brenda Almeida said her teenage son’s tooth turned black and had to be removed after Clair performed a root canal on him in 2005. She said Clair also performed shoddy dental work on her other two children.

Almeida, who watched Clair get sentenced in Fall River Superior Court Monday, said she was angry about what she considers to be a light sentence.

“He put my kids in pain for months … I hope he rots there,” she said after Judge Richard Moses sentenced Clair to a year in the Bristol County House of Correction.

Prosecutors, who asked for a sentence of five to seven years, declined to comment immediately after the sentence was imposed.

Patient Safety: How To Reduce Your Chance of a Medical Error

Here’s what Consumer Reports and Dr. Peter Pronovost, senior vice president for patient safety and quality at Johns Hopkins Medicine, say patients can do to keep themselves safe when they go to a hospital.
Do your homework. Go to the Web sites Hospital Compare and the Joint Commission and look up hospitals in your Zip code. Based on that information, ask your doctor which ones they trust.
Ask a malpractice lawyer which hospitals are safe.
Find out if the procedure you’re having is one that both your physician and the hospital do often. “You don’t want a doctor or hospital that dabbles in your procedure,” Pronovost says.
Ask if the physician and hospital use a checklist.
When you go to the hospital, have a list of all your medications and medical problems and give it to the doctors and nurses caring for you.
Ask if physicians and nurses have washed their hands before they touch you. You may feel uncomfortable asking this, but it’s for your own safety.
If you have an invasive device in your body, such as a catheter, either you or a family member or a friend should ask every day if you need to have it in your body and when it can be taken out.
Bring a friend or family member with you to be your advocate, ask questions, and record the answers.
This article was reprinted from kaiserhealthnews.org with permission from the Henry J. Kaiser Family Foundation. Kaiser Health News, an editorially independent news service, is a program of the Kaiser Family Foundation, a nonpartisan health care policy research organization unaffiliated with Kaiser Permanente.

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Public Pressure Leads to Carlyle Dropping Forced Arbitration Clause

The American Association for Justice (AAJ) has long fought to prohibit corporations from avoiding accountability by hiding forced arbitration clauses in the fine print of consumer and employee contracts. When Bloomberg broke the story that Carlyle was attempting to take away investors’ rights by including a forced arbitration clause in its proposed IPO filing, AAJ raised concerns with the SEC and brought awareness to the issue.

The media coverage that followed and the news on Friday that Carlyle dropped the forced arbitration clause shows that now more than ever, “the public cares and public scrutiny matters.”

According to the Wall Street Journal:

The decision came after the American Association for Justice, a group of plaintiffs’ lawyers, issued a statement Wednesday calling on the SEC to reject Carlyle’s inclusion of the forced arbitration clause in its IPO, calling the clause a “blatant attempt to skirt accountability,” and a “predatory maneuver to circumvent well-established securities law and force investors into a rigged and biased process.”

The SEC also publicly made clear its unwillingness to allow IPOs to go forward with forced arbitration clauses. As Bloomberg pointed out, this continues the SEC’s decades-long stance. Quoting SEC spokesman John Nester:

“We advised them [Carlyle] that the staff was not prepared to clear the filing with the mandatory-arbitration provision included,” Nester said in an e-mailed statement. “We are pleased they have announced that they plan to remove this provision.”

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Minnesota fails to offer doctor discipline information which is readily available in other states.

Minnesota’s medical board doesn’t provide access to malpractice awards and other records that are readily available in other states.

The brain aneurysm was small, but George “Wes” Bidwell Jr. wanted it repaired before it got any bigger.

So with the 33-year-old warehouse supervisor from St. Paul prepped and ready for surgery that morning in August 2001, Dr. Arturo Camacho grabbed a surgical saw and made his first cut — to the wrong side of Bidwell’s head.

Two hours into the surgery, someone caught the mistake. Camacho switched to the correct side of Bidwell’s head and the repair was done. A year later, Bidwell sued Camacho for malpractice, claiming the wrong-side surgery led to memory problems, seizures and changes to his personality. In 2004, a jury awarded Bidwell $850,000.

Such malpractice findings are increasingly easy to find on websites maintained by medical boards in 19 states, but not in Minnesota, where regulators have resisted efforts to make more information available to people who want to check into the backgrounds of their doctors.

The Minnesota Board of Medical Practice also doesn’t disclose whether doctors have been disciplined by regulators in other states or lost their privileges to work in hospitals and other facilities for surgical mistakes and other problems — information provided in 13 other states.

“This is information that consumers need to know,” said former Minnesota board member Kris Sanda, who led an unsuccessful effort to add more adverse actions to the state’s website. “The more knowledge we have about all of these doctors, the better off we are.”

The Minnesota board does provide complete disciplinary reports on doctors going back to the 1970s. It also provides information on criminal convictions provided by the doctors themselves, but it does not verify that information.

Robert Leach, the board’s executive director, agrees that people have a right to know about their doctors. But he said the board would need legislative approval to offer more information than it currently provides. Under state law, any information obtained by the board as part of a complaint investigation is confidential.

Picking doctors with ‘eyes open’

In 1997, Massachusetts became the first state to use its website to publicly post board and hospital disciplinary actions, malpractice settlements and criminal convictions. The action was mandated by state lawmakers.

Each year, about 600,000 individual users visit the website to gather information on physicians, said Russell Aims, a spokesman for the Massachusetts Board of Registration in Medicine.

“We wanted to make sure the profiles were clear,” Aims said. “That was the whole idea — you can go to one place and you can pretty much find out anything on given physicians.”

In 2009, the Federation of State Medical Boards, a national nonprofit organization that helps state medical boards in their role of protecting the public, recommended that all state websites include information on previous criminal convictions, malpractice histories and disciplinary actions against doctors by state boards and hospitals.

That year, regulators in North Carolina upgraded the state’s website after seeking approval from state lawmakers.

“People want this information, they expect this information and the board said we better do something about it,” said Jean Brinkley, public affairs director for the North Carolina board.

Today, in addition to posting information on a physician’s education and training, North Carolina’s website also displays information on whether a physician has been disciplined by a hospital or medical board, been convicted of a misdemeanor or felony or paid out on a malpractice claim.

Brinkley said the information is not “a guide to good and bad doctors.”

“It makes people aware of issues, so they can go into care with their eyes open,” Brinkley said.

More info in other states

Minnesotans can sometimes learn more about their doctor by visiting websites maintained by regulators in other states. Many physicians are licensed in multiple states because they work in more than one place.

For example, Minnesotans can go to the Florida website and see that the insurer for Dr. Mark H. Montgomery, a physician and surgeon who once practiced in Minnesota, paid more than $1 million in a malpractice case. A jury found Montgomery acted negligently during a tonsillectomy in a Minnesota hospital that resulted in the death of a 3-year-old boy. Minnesota’s website makes no reference to the malpractice case or jury award.

Consumers can visit the New York website and find out that Dr. Tracy E. Napp, a radiologist from Clear Lake, Minn., was fined twice and reprimanded once in the past decade by the New York board for “professional misconduct” after drunken driving arrests in Minnesota. There is no record of board action against her in Minnesota, nor is there a mention of New York’s reprimand on the Minnesota website.

By checking out-of-state websites, Minnesotans can discover that Dr. Naiyer Imam, who received his Minnesota license in 2005, was denied a license in Alabama because he submitted false or misleading information in his application. The moves prompted five other states to take action, and in 2009, North Carolina issued a “letter of concern” to Imam after he misread a CT scan. None of those adverse actions are included in Imam’s profile on Minnesota’s website.

“I can go on the Internet and find out more information about a siding company than I can about a doctor who is going to perform surgery on my 10-year-old daughter,” said Chris Messerly, a medical malpractice attorney in Minneapolis.

Changes blocked in Minnesota

Ten years ago, Sanda led a board task force that recommended adding biographical information, criminal convictions and copies of board discipline and corrective actions to the Minnesota website.

Putting malpractice awards on the website was strongly opposed by the medical community, though it did not object to the other additions, Sanda said. As a compromise, the task force recommended the board collect malpractice data for three years and then study the issue again.

The board was supposed to revisit the malpractice issue, but Leach said it lacked sufficient data to make a decision.

To the Minnesota Medical Association, which represents 10,000 physicians in the state, providing the public with details of every adverse action carries the risk of unfairly harming a doctor’s reputation. “I hope that it doesn’t happen here,” said Dr. David Thorson, chairman of the Minnesota Medical Association’s board of trustees.

The group favors public disclosure only of disciplinary actions by Minnesota regulators.

“The board’s obligation is to evaluate physicians for licensure in a manner that protects the safety of the public,” Thorson said. “We have to assume that the board is doing that.”

Leach said consumers would be confused if the board posted malpractice cases without providing additional data that would help people understand whether a doctor’s malpractice history was above or below state norms.

“If we are going to put this information out to the public we want to do it in the best way possible and we don’t think that just sheer numbers is the best way possible,” he said.

richm@startribune.com • (612) 673-4425 howatt@startribune.com • (612) 673-7192

MINNESOTA BOARD OF MEDICAL PRACTICE
The board oversees physicians, acupuncturists, physician assistants, respiratory therapists and traditional midwives.

Board: 16 volunteers appointed by the governor, of whom 11 are physicians

Number of licensed physicians: 20,036

Employees: 23

2011 fee revenues: $5.4 million

2011 expenditures: $3.9 million

2011 complaints against doctors: 728
credit: http://www.startribune.com/lifestyle/wellness/138752344.html

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