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SILVERSTEIN v. ABINGTON MEMORIAL HOSPITAL: MOTION TO PROHIBIT COMMENTARY ABOUT THIS LITIGATION TO ANY PUBLIC CONTEXT: Do computers have more rights than patients?

Herein is an issue of potential <a href="http://en.wikipedia.org/wiki/Internet_censorship">Internet censorship</a> and/or attempted <a href="http://en.wikipedia.org/wiki/Prior_restraint">prior restraint</a> of the rights of a citizen to express him/herself freely:<br /><br />At my post "<a href="http://hcrenewal.blogspot.com/2013/04/hospital-defense-maliciousness-aided.html">Hospital  defense maliciousness, aided and abetted by attorneys who ignore the  ABA and Pennsylvania's Ethical Rules of Conduct Regarding "Candor  Towards the Tribunal</a>" I wrote about how a defense attorney in a case I unfortunately am substitute plaintiff in, that involving EHRs and the injury and the death of my mother, violated the requirement under the Code of Conduct of lawyers to exhibit candor before the tribunal, and perhaps <b>18 Pa.C.S. §4904 relating to unsworn falsification to authorities</b> as well.<br /><br />As also mentioned, the lawfirm was displeased, but did not respond to my offer to consider amending any factually erroneous assertions at that post.<br /><br />Now here is their response:<br /><br /><table border="1" cellspacing="0" class="ChamaeleonGrid" rules="all"><tbody><tr class="AlternatingGridItem"><td>4/19/2013</td><td>Motion</td><td>BY  ABINGTON MEMORIAL HOSPITAL MOTION TO PROHIBIT COMMENTARY ABOUT THIS  LITIGATION TO ANY PUBLIC CONTEXT WITH MEMORANDUM OF LAW WITH SERVICE ON  04/19/2013</td></tr></tbody></table><b><br /></b>The Motion text is <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/Silverstein%20-%20Def%27s%20Motion%20to%20Prohibit%20Commentary%20about%20this%20Litigation%20%2800262678%29.pdf">here</a> in PDF (it is a public document available to anyone on the Montgomery County, PA Prothonotary website).<br /><br />The court has yet to rule on this new motion and Substitute Plaintiff's (me) replies.<br /><br />I will, of course, abide by the Court's decision.<br /><br />First: I note that I have been writing about issues of <i><b>court </b><b>process</b></i>, not the substance of the case's actual issues.   I think citizens have a right to know about process in their courtrooms.  I am also Joe Public, exercising my rights to freedom of expression; I am not an attorney breaking some rule of case publicity.  I am not even the suit's initiator.  What rule(s) am I breaking, exactly, I'd like to know from the Defense.<br /><br />Further, in my opinion, considering that multiple authorities including the <b>Institute of Medicine of the National Academies</b> (<a href="http://hcrenewal.blogspot.com/2011/11/iom-report-on-health-it-safety-nix-fda.html">link</a>), <b>FDA</b> (<a href="http://hcrenewal.blogspot.com/2010/08/smoking-gun-internal-fda-memorandum-of.html">link</a>), <b>Joint Commission</b> (<a href="http://hcrenewal.blogspot.com/2008/12/joint-commission-sentinel-events-alert.html">link</a>), <b>ECRI Institute</b> (<a href="http://hcrenewal.blogspot.com/2013/02/peering-underneath-icebergs-water-level.html">link</a>), <b>National Institute of Standards and Technology</b> (<a href="http://hcrenewal.blogspot.com/2011/10/nist-on-ehr-mission-hostile-user.html">link</a>), <b>AHRQ-Agency for Healthcare Research and Quality at HHS itself </b>(<a href="http://healthit.ahrq.gov/HealthITHazardManagerFinalReport">link</a>) and others have written about risks of health IT to patients and the need for far more study and data on the issue, in my view there is a compelling public interest in being informed about the progress of this lawsuit.<br /><br />We have not reached the day yet, I hope, when computers have more rights than patients.<br /><br />I note that if the involved lawfirm, Marshall Dennehey Warner Coleman Goggin, would stick to the Rules of Conduct for attorneys, it would seem they have nothing to fear.<br /><br />I note the remarkable statement about "<i>unjustified and malicious personal attacks against Moving Defendant and defense counsel</i>", i.e., pointing out exactly what they did.  Namely, fail to provide <b>the required Candor towards the Tribunal </b>regarding the undisclosed 2008 <u>Stroud v. AMH</u> decision on COM's, known to them (same hospital, same counsel) at the time multiple, frivolous contrary claims about COM's to harm my mother's case were made to the courts from 2010 to just recently in 2013.  <br /><br />In fact, that statement itself may be an example of legal misconduct - rendering false charges and certifying them in writing to a court as true.  I note that I didn't write the <b><a href="http://www.pacode.com/secure/data/204/chapter81/s81.4.html">Rules of Professional Conduct for attorneys</a></b>; attorneys did, including <b>Rule 3.3: "Candor before the Tribunal" </b>whose obvious violation and my pointing it out is certainly not an "u<i>njustified and malicious personal attack."</i><br /><br />As far as "fair trials" go - their stated concern in this latest filing - the defense should have thought about that before breaking the aforementioned Rule of Professional Conduct, causing numerous delays.  (I wonder how many med mal cases with proper paperwork are stalled more than 2 years before Discovery even begins - the case was filed 7/16/2010.)<br /><br />It seems to me that my mother deserved to be alive at the time of her fair trial ("<a href="http://en.wikipedia.org/wiki/Justice_delayed_is_justice_denied"><i>Justice delayed is justice denied</i></a>.")  I would certainly like to know if the Defense thinks otherwise.<i><br /></i><br /><br />-- SS<br /><br /><b>Apr. 19, 2013 Addendum: </b><br /><br />As noted at Wikipedia regarding what appears to be a <a href="http://en.wikipedia.org/wiki/Prior_restraint">Motion for Prior Restraint</a>:<br /><br /><blockquote class="tr_bq"><b>Prior restraint</b> is often considered a particularly oppressive form of <a href="http://en.wikipedia.org/wiki/Censorship" title="Censorship">censorship</a> in Anglo-American jurisprudence because it prevents the restricted  material from being heard or distributed at all. Other forms of  restrictions on expression (such as actions for <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Libel" title="Libel">libel</a> or <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Slander_and_libel#Criminal_libel" title="Slander and libel">criminal libel</a>, <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Slander" title="Slander">slander</a>, <a href="http://en.wikipedia.org/wiki/Defamation" title="Defamation">defamation</a>, and <a href="http://en.wikipedia.org/wiki/Contempt_of_court" title="Contempt of court">contempt of court</a>)  implement criminal or civil sanctions only after the offending material  has been published. While such sanctions might lead to a <a class="mw-redirect" href="http://en.wikipedia.org/wiki/Chilling_effect_%28term%29" title="Chilling effect (term)">chilling effect</a>, legal commentators argue that at least such actions do not <i>directly</i> impoverish the <a href="http://en.wikipedia.org/wiki/Marketplace_of_ideas" title="Marketplace of ideas">marketplace of ideas</a>.  <b>Prior restraint, on the other hand, takes an idea or material  completely out of the marketplace. Thus it is often considered to be the  most extreme form of censorship.</b> The <a class="mw-redirect" href="http://en.wikipedia.org/wiki/United_States_Supreme_Court" title="United States Supreme Court">United States Supreme Court</a> expressed this view in <i><a class="mw-redirect" href="http://en.wikipedia.org/wiki/Nebraska_Press_Assn._v._Stuart" title="Nebraska Press Assn. v. Stuart">Nebraska Press Assn. v. Stuart</a></i> by noting:</blockquote><br /><blockquote class="tr_bq"><blockquote class="templatequote"><div class="Bug6200">The thread running through all these cases is that  prior restraints on speech and publication <b>are the most serious and the  least tolerable infringement on First Amendment rights</b>. A criminal  penalty or a judgment in a defamation case is subject to the whole  panoply of protections afforded by deferring the impact of the judgment  until all avenues of appellate review have been exhausted. Only after  judgment has become final, correct or otherwise, does the law's sanction  become fully operative.</div></blockquote><blockquote class="templatequote"><div class="Bug6200"><b>A prior restraint, by contrast and by definition,  has an immediate and irreversible sanction. </b>If it can be said that a  threat of criminal or civil sanctions after publication 'chills' speech,  prior restraint 'freezes' it at least for the time.</div></blockquote></blockquote><br /><blockquote class="tr_bq">Also, most of the early struggles for <a href="http://en.wikipedia.org/wiki/Freedom_of_the_press" title="Freedom of the press">freedom of the press</a> were against forms of prior restraint. Thus prior restraint came to be  looked upon with a particular horror, and Anglo-American courts became  particularly unwilling to approve it, when they might approve other  forms of press restriction.</blockquote><br />-- SS

SILVERSTEIN v. ABINGTON MEMORIAL HOSPITAL: MOTION TO PROHIBIT COMMENTARY ABOUT THIS LITIGATION TO ANY PUBLIC CONTEXT: Do computers have more rights than patients?

Herein is an issue of potential Internet censorship and/or attempted prior restraint of the rights of a citizen to express him/herself fre...

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Healthcare computing 'glitch' time again: 15 patients possibly given wrong antibiotic after lab error at Regina General Hospital

Just another computer "<a href="http://hcrenewal.blogspot.com/search/label/glitch">glitch</a>", that innocuous euphemism for a catastrophe-promoting IT defect, this time causing patients to receive the wrong antibiotics:<br /><br /><blockquote class="tr_bq">Regina Leader-Post<br />April 17, 2013 <br /><br /><b><a href="http://www.leaderpost.com/patients+possibly+given+wrong+antibiotic+after+error+Regina+General+Hospital/8252890/story.html#ixzz2QsfL7BoJ">15 patients possibly given wrong antibiotic after lab error at Regina General Hospital</a> </b><br /><br />Fifteen patients in southern Saskatchewan were potentially treated  with the wrong antibiotic stemming from a lab error at Regina General  Hospital, the Regina Qu'Appelle Health Region announced Tuesday.<br /><br />According  to the RQHR, lab reports between late January and late March  erroneously deemed Clindamycin would effectively treat the patients'  infections <b>when those bugs were actually resistant to the drug.  <span style="color: red;"><i>[The biological bugs, not the cybernetic bugs, that is - ed.]</i></span></b><br /><br />Only  one of the 15 patients suffered adverse effects. The 15th patient, an  adult male, experienced short-term negative effects but has since been  switched to another antibiotic. Citing patient confidentiality, the  health region would not elaborate on the man's condition.<br /><br />Dr. Jessica  Minion, a medical microbiologist in the General Hospital's laboratory,  said a <b>computer glitch </b>caused the faulty reports between Jan. 23 and  March 28. </blockquote><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"></div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"><br />Need I add that this "glitch" could very easily have killed people?<br /><br /><blockquote class="tr_bq">Minion added she and other medical staff will now cross-check  lab reports against lab tests after a change has been made within the  computer system.</blockquote><br />Wait - if the "glitch" is fixed, why is cross-checking still needed?  Doesn't sound like there's much confidence in this computing system...<br /><br /><blockquote class="tr_bq">The lab became aware of the problem on March 28  when the doctor treating the man who experienced problems notified the  hospital, Minion said. Lab staff then sifted through records and  determined a total of 15 people had been prescribed Clindamycin since  the erroneous reports began Jan. 23. </blockquote><br />Clindamycin itself is not an innocuous drug, with many potential serious <a href="http://www.drugs.com/sfx/clindamycin-side-effects.html">side effects</a>.<br /><br /><blockquote class="tr_bq">"It  was a very identifiable mistake that was being made in the computer  system, and there is a very clear trail of who exactly it affected," she  said. <b>"So we are quite confident that we have identified everybody that  would have been affected."</b></blockquote><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"><br />Only by the grace of God, none of those affected are six feet (2 meters) under, either due to their primary infections or drug adverse events from a drug they should never have been given.<br /><br />At least this time the oft-heard refrain "<a href="http://hcrenewal.blogspot.com/search/label/Patient%20care%20has%20not%20been%20compromised">but patient safety was not compromised</a>" was not proffered. </div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"><br /></div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;">-- SS</div></div>

Healthcare computing 'glitch' time again: 15 patients possibly given wrong antibiotic after lab error at Regina General Hospital

Just another computer " glitch ", that innocuous euphemism for a catastrophe-promoting IT defect, this time causing patients to re...

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Guest Post: the Slow Grind of Justice

<br /> <br /><div class="MsoNormal"> <i><span style="background-color: white; color: blue; font-size: xx-small;">Health  Care Renewal presents a guest blog by Steve Lucas, a retired  businessman who formerly worked in real estate and construction who has a  long standing interest in business ethics, and has long observed the  health care scene.</span></i></div><div class="MsoNormal"><br /></div><div class="MsoNormal">The March 14, 2013 Akron Beacon Journal print edition highlights what I am sure Mercy  Medical Center hopes is the end of a long legal battle with Aultman Health Foundation. </div><div class="MsoNormal"><br /></div><div class="MsoNormal">Cheryl Powell <a href="http://www.ohio.com/business/ohio-supreme-court-throws-out-aultman-s-appeal-in-battle-with-rival-mercy-hospital-1.380889">writes</a> in <i style="mso-bidi-font-style: normal;">"High court throws out appeal by Aultman"</i> highlights the Ohio Supreme Courts dismissal of Aultman’s suit brought in regards to a 2010 court ruling that Aultman pay Mercy $6.1 million for unfair business practices.  </div><div class="MsoNormal">A review of that legal action can be found on <a href="http://hcrenewal.blogspot.com/2010/06/guest-post-hospital-passing-that-low.html">this Health Care Renewal post</a>.</div><div class="MsoNormal"><br /></div><br /><blockquote class="tr_bq"><div class="MsoNormal">The legal battle centers on 'secret ´bonuses paid to select brokers for switching employers from other insurance plans to Aultman’s insurance company, AultCare.</div><div class="MsoNormal"><br /></div><div class="MsoNormal">Aultman Hospital is AultCare’s only in-network hospital in Canton.'</div></blockquote><br /><div class="MsoNormal"><br /></div><div class="MsoNormal">It is important to remember that AultCare is an aggressive for-profit insurance company.</div><div class="MsoNormal"><br /></div><br /><blockquote class="tr_bq"><div class="MsoNormal">At the end of the two-month trial in Stark County Common Please Court, jurors decided Aultman should pay Mercy more than $6.1 million in damages for engaging n a pattern of corrupt activity by influencing brokers with money.</div><div class="MsoNormal"><br /></div><div class="MsoNormal">'Evidence during the trial showed that for a period of time, brokers weren’t allowed to disclose the payments to anyone, even the clients they represented.</div><div class="MsoNormal"><br /></div><div class="MsoNormal">Aultman officials have said the confidentiality requirement was dropped in 2004, well before Mercy filed its lawsuit.</div></blockquote><br /><div class="MsoNormal"><br /></div><div class="MsoNormal">We see an all too familiar behavior pattern: someone sensing that he or she is about to be caught drops an activity and then feigns innocence for our past transgressions. How often have we seen a drug company sign a consent agreement only then to return to court to sigh another consent agreement? How often are we told that an activity was committed by a low level sales person and that person is no longer with the company?</div><div class="MsoNormal"><br /></div><br /><blockquote class="tr_bq"><div class="MsoNormal">Aultman has continued to criticize the case Mercy filed, calling it a waste of resource for the non-profit health-care organizations.</div><div class="MsoNormal"><br /></div><div class="MsoNormal">'We have always felt that this case was not positive for our community, that resources were shifted in a way that was not beneficial to the community' [the attorney representing Aultman, Allen] Schulman said. 'I don’t think that it serves the community well.'</div><div class="MsoNormal"><br /></div><div class="MsoNormal">[ Mercy President and Chief Executive Thomas] Cecconi said Mercy felt an obligation to fight Aultman’s business practices for the community’s sake.</div></blockquote><br /><div class="MsoNormal"><br /></div><div class="MsoNormal"><b>Conclusion</b></div><div class="MsoNormal"><br /></div><div class="MsoNormal">Once again we find the use of the legal system perverted by one party in an effort to gain a business advantage over another entity.</div><div class="MsoNormal"><br /></div><div class="MsoNormal">Aultman has used its non-profit status to shield the activities of a for-profit insurance subsidiary.  Perhaps someone thought that no one would sue a large non-profit hospital for the actions of the subsidiary.</div><div class="MsoNormal"><br /></div><div class="MsoNormal">Aultman used the tired old refrain that “we don’t do that anymore” as a defense for past business practices that garnered questionable profits. This after the fact admission does not absolve them of responsibility for those actions.</div><div class="MsoNormal"><br /></div><div class="MsoNormal">When all else fails Aultman uses the appeal that it reflects badly on the community. It really does not matter that they were the ones who engaged in this activity. Additionally they make the claim this will result in a decline in resources available when they profited from the original activity.</div><div class="MsoNormal"><br /></div><div class="MsoNormal">These are old concepts to HCR readers. The use of the legal system, from law suits being filed against those who would blow the whistle, to grinding out appeals to bleed a person or organization dry, all in an effort to protect a questionable or even illegal activity. In this case there is still the issue of Mercy’s legal fees involved in Aultman’s appeal.</div><div class="MsoNormal"><br /></div><div class="MsoNormal">Smaller markets are seeing a consolidation of hospitals and medical practices. The opportunity for one party to take advantage of this is growing as patients and doctors are presented with limited opportunities to seek appropriate medical care. When the hospital owns the insurance company, and your care will be dictated by the policy available through only one company, the opportunity for abuse has to be acknowledged. </div><div class="MsoNormal"><br /></div><div class="MsoNormal">Mercy has begun to grow again by offering the community a less corporate medical experience. Interestingly, Mercy and Aultman have collaborated on securing scarce oncology drugs. It appears some doctors still feel it is about caring for the patient, and less about loyalty to a corporate logo.</div><div class="MsoNormal"><br /></div><div class="MsoNormal"></div><div class="MsoNormal">Steve Lucas</div><div class="MsoNormal"><br /></div>

Guest Post: the Slow Grind of Justice

Health Care Renewal presents a guest blog by Steve Lucas, a retired businessman who formerly worked in real estate and construction who...

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Fred Schulte: "GOP senators call for overhaul of electronic health records program"

Fred Schulte, investigative reporter at the Center for Public Integrity (<a href="http://www.publicintegrity.org/authors/fred-schulte">link to bio</a>), has authored a new article worth reading in its entirety:<br /><br /><blockquote class="tr_bq"><a href="http://www.publicintegrity.org/2013/04/16/12508/gop-senators-call-overhaul-electronic-health-records-program">GOP senators call for overhaul of electronic health records program</a><br />Lawmakers say Obama's $35 billion initiative pushing health information technology isn't working.<br /><br />Six U.S. Senators are calling for an overhaul of the federal  government’s $35 billion plan for doctors and hospitals to switch from  paper to electronic medical records, <b>citing concerns from patient  privacy to possible Medicare billing fraud.</b><br /><br />The <a href="http://www.thune.senate.gov/public/index.cfm/files/serve?File_id=0cf0490e-76af-4934-b534-83f5613c7370">report</a> issued Tuesday by the half-dozen Republicans concedes that many  lawmakers and medical experts believe the digital systems can reduce  health care costs and improve the quality of care by reducing  duplicative testing and cutting down on medical errors.  <span style="color: red;"><i><b>[Eventually, and with great effort the details of which many in the field lacking appropriate education and expertise are painfully unaware - ed.]</b></i></span><br /><br />But the report asserts that the Obama administration’s push to use  billions of dollars in stimulus money helping doctors and hospitals buy  digital systems <b>needs to be “recalibrated.”</b><br /><br />“Now, nearly four years after the enactment…and after hundreds of  pages of regulations implementing the program,” the document says, “we  see evidence that the program is at risk of not achieving its goals and  that $35 billion in taxpayer money is being spent ineffectively in the  process.”</blockquote><br />I've been calling for a "recalibration" (i.e., a cessation of putting the cart before the horse) and slowing down, for years.  See for instance my July 2010 post "<b>Meaningful Use Final Rule: Have the Administration and ONC Put the Cart Before the Horse on Health IT?</b>" and its hyperlinks at <a href="http://hcrenewal.blogspot.com/2010/07/meaningful-use-final-rule-have.html">http://hcrenewal.blogspot.com/2010/07/meaningful-use-final-rule-have.html</a>.<br /><br /><blockquote class="tr_bq">Among the report’s conclusions:<br /><ul><li>Despite expectations of cost savings, the digital systems may be increasing unnecessary medical tests and billings to Medicare.</li><li>The government has not demanded that the various digital systems be  able to share medical information, a critical element to their success.</li><li>Few controls exist to prevent fraud and abuse. Many doctors and  hospitals are receiving money by simply attesting that they are meeting  required standards.</li><li>Procedures to protect the privacy of patient records are <b>“</b>lax and may jeopardize sensitive patient data.”</li><li>It remains unclear whether doctors and hospitals that have accepted  stimulus funding will be able to maintain the systems without  government money.</li></ul></blockquote><br />I have as an even larger concern the quality and fitness (and hence safety) of today's health IT systems.  In what may be the first robust study, the findings as I have pointed out on this blog are of great concern:<br /><br /><blockquote class="tr_bq">Health Leaders Media<br />April 5, 2013<br /><a href="http://www.healthleadersmedia.com/print/TEC-290834/HIT-Errors-Tip-of-the-Iceberg-Says-ECRI" target="_blank">HIT Errors 'Tip of the Iceberg,' Says ECRI </a><br /><br /><b>Healthcare systems' transitions from paper records to electronic ones  are causing harm and in so many serious ways, providers are only now  beginning to understand the scope.</b> <span style="color: red;"><i><b> [I understood the scope years ago as reflected in my writings - ed.]</b></i></span><br /><br />Computer programs truncated dosage fields, leading to morphine-caused  respiratory arrest; lab test and transplant surgery records didn't talk  to each other, leading to organ rejection and patient death; and an  electronic systems' misinterpretation of the time "midnight" meant an  infant received antibiotics one dangerous day too late.<br /><br />These are among the 171 health information technology malfunctions and  disconnects that caused or could have caused patient harm in a report to  the ECRI Institute's Patient Safety Organization. <b>Thirty-six  participating hospitals</b> reported the data under a special voluntary  program conducted last year.<br /><br />Karen Zimmer, MD, medical director of the institute, says the reports of  so many types of errors and harm got the staff's attention in part <b>because the program captured so many serious errors within just a nine-week project last spring.  <i><span style="color: red;">[Including 8 injures and 3 possible deaths in just 9 weeks as I wrote at </span></i></b><i><span style="color: red;"><span style="color: black;">"</span></span></i><span style="color: red;"><i>Peering Underneath the Iceberg's Water Level:  AMNews on the New ECRI Deep Dive Study of Health IT Events</i><i>"</i></span><b><i> <a href="http://hcrenewal.blogspot.com/2013/02/peering-underneath-icebergs-water-level.html">here</a> <span style="color: red;">- ed.]</span></i></b><br /><br />The volume of errors in the voluntary reports was she says, "an awareness raiser."<br /><br />"If we're seeing this much under a voluntary reporting program, <b>we know this is just the tip of the iceberg; we know these events are very much underreported."</b><br /><br />... ECRI is currently evaluating a similar, and much larger list of  reports from many of the 800 hospitals that contract with ECRI's PSO  services. </blockquote><br />The fact that only GOP Senators so far have made this call is perhaps somewhat surprising, considering the abuse that side of the aisle often takes for being pro-business and anti-citizen rights. <br /><br />On the other hand, hospital accidents are a truly non-partisan issue.  A Democrat or Republican (or member of any other poitical party), and their loved ones, are all in the same boat.<br /><br />As this point in time, I recommend any patient have a strong advocate following everything done, not done, supposed to be done, not supposed to be done, med and allergy lists and fulfillment, action on lab and imaging reports, etc. -- importantly, <i><b>not depending on IT-dependent clinicians to do so.</b></i><br /><br />-- SS

Fred Schulte: "GOP senators call for overhaul of electronic health records program"

Fred Schulte, investigative reporter at the Center for Public Integrity ( link to bio ), has authored a new article worth reading in its ent...

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Hospital defense maliciousness, aided and abetted by attorneys who ignore the ABA and Pennsylvania's Ethical Rules of Conduct Regarding "Candor Towards the Tribunal"

At Healthcare Renewal we've written of hospitals' deviations from the core mission of compassionate, ethical and safe patient care, towards profiteering at patient's and the community's expense.<br /><br />What we haven't written about is maliciousness.<br /><br />At my Feb. 2013 posts about my late mother's (now my) lawsuit regarding injury and death that involved EHR problems, namely "<a href="http://hcrenewal.blogspot.com/2013/02/the-lengths-hospital-will-go-to-in.html" target="_blank">The lengths a hospital will go to in order to protect their EHR - Motion for Reconsideration of Denial of Motion for Reconsideration of Denial of Objections</a>"   and   "<a href="http://hcrenewal.blogspot.com/2013/02/more-on-lengths-hospital-will-go.html" target="_blank">More on the lengths a hospital will go through to protect their EHR from discovery</a>", I'd opined that <b>the defense's repeated position that individual Certificates of Merit [COMs] were required naming or otherwise "identifying by specialty" every single licensed professional for whom the parent hospital was being held vicariously liable was contradicted by state law and procedure.</b><br /><br />I'd posted this as an example:<b> </b><br /><br /><blockquote class="tr_bq"><span style="font-size: small;"><b><span style="font-weight: normal;"><span style="font-family: inherit;">From the official publication of the Civil Procedure Rules Committee in the state [of P</span></span></b><span style="font-weight: normal;"><span style="font-family: inherit;"><span style="font-size: small;">A]</span></span></span><b><span style="font-weight: normal;"><span style="font-family: inherit;">, effective a decade ago:</span></span></b></span><br /><br /><div style="text-align: center;"><img border="0" height="310" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg0U6lMWpjedAb5GxPK8VKdmEN5cCoppS1TRPf228O7KvGm60pqw9uTO7kDyM7PFH3T-3hntaHlXp4PBRHB2SVcrtj3I_KWJNd1pnWyqorZ1PymkMNcwjVXxCy3bofu1Gstkqu0aPlRju5H/s1600/COM_rule.jpg" width="320" /></div><br /></blockquote>Such a single COM for vicarious liability had been timely filed at the outset of the case in 2010, as well as a COM for direct hospital liability.<br /><br />Yet the defense persisted in their multiple-COM position, filing a Motion for Reconsideration of a denial of their COM position, an "emergency" petition for review with Superior Court of PA not certified for appeal by the local judge that was also denied (not even heard), a Motion for Reconsideration of the denial of the initial Motion for Reconsideration, "protective orders" for witnesses to prevent their being deposed, and even a complaint that the judge of record had no authority to let the first Motion for Reconsideration expire on its own, which they do if not responded to in 30 days.  This all ate up time.<br /><br />Except they "forgot" to tell the judge that their COM argument <i>had been thrown out several years prior by the U.S. District Court in these parts - same defendant, same defense attorney.</i>  (More on this lack of mandatory <b>Candor Before the Tribunal</b> below.) <br /><br />Instead of candor, defense attorney <a href="http://www.marshalldennehey.com/attorneys/carolyn-b-digiovanni" target="_blank">Carolyn B. DiGiovanni</a> of the lawfirm <a class="l" href="http://www.marshalldennehey.com/">Marshall Dennehey Warner Coleman Goggin</a> filed motions - like this one of 12/6/2010  below - seeking to have the court strike the vicarious liability COM as  "inadequate under the rules" and get the organization off the hook for  vicarious liability for its agents/employees, that I cite directly.  Emphases mine:<br /><br /><blockquote class="tr_bq">... 16. In the instant <span style="color: red;"><i><b>[current, i.e., Silverstein v. AMH - ed.]</b></i></span> case, Plaintiff chose to file only one Certificate of Merit on her  vicarious liability claim against Abington Memorial Hospital, <b>which is insufficient under the Rules. <span style="color: red;"><i>[Well, no, actually; it was precisely what the rules called for.  See below - ed.]</i></span></b><br /><br />17.  Despite the fact that Rule 1042.3(a)(2) specifically addresses those  situations involving vicarious liability, Plaintiff has failed to comply  with the mandates of Rule 1042.3(a)(2) <b>that a separate Certificate  of Merit must be filed pursuant to (a)(1) as to the other licensed  professionals for whom the vicarious Defendant is responsible.</b><br /><br />18.  In the present case, although Plaintiff filed a Certificate of Merit,  Plaintiff did not file a timely Certificate of Merit which supports her  direct claims of liability against the agents, employees and/or  subcontractors for whom she claims Defendant, Abington Memorial  Hospital, is vicariously liable, in accordance with the Pennsylvania  Rules of Civil Procedure. <br /><br />19. As Plaintiff has failed  to timely produce<span style="color: red;"><i><b> [multiple - ed.] </b></i></span><u>Certificates</u> of Merit which satisfy the mandates of  Pa.R.C.P. 1042.3 within sixty (60) days of the filing of the Complaint,  entry of partial judgment of non pros <span style="color: red;"><i><b>[non-prosecution - ed.] </b></i></span>on Plaintiffs claim for vicarious liability<b> is warranted as a matter of law.</b><br /><br />20.  Accordingly, Defendant, Abington Memorial Hospital, files the instant  Motion seeking to strike the Certificate of Merit and for the entry of  partial judgment of non pros on Plaintiffs claim for vicarious liability  pursuant to Pa. R Civ. P. 1042.7.</blockquote><br />The truth of the above claims was certified in writing to the local court:<br /><br /><br /><table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhq46clni_Csv7jW5Rb3a9xVy45OgA5lqmEVlB8RfeWiiMF7Tj7Bxs2SMNmcQq9lnjiTiOXiMU-TyP92eoft22wWqqK_PcK9WeDhpc-OjrlbmHE_igM47n0XuB-z81Uek7KppvdVGBnYoXK/s1600/sworn.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhq46clni_Csv7jW5Rb3a9xVy45OgA5lqmEVlB8RfeWiiMF7Tj7Bxs2SMNmcQq9lnjiTiOXiMU-TyP92eoft22wWqqK_PcK9WeDhpc-OjrlbmHE_igM47n0XuB-z81Uek7KppvdVGBnYoXK/s400/sworn.jpg" width="327" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">"I, Carolyn B. DiGiovanni, Esquire, Attorney for Defendant, Abington Memorial Hospital, verifies that the facts set forth in the Motion or Defendant, Abington Memorial Hospital to Strike Certificate of Merit and for Entry of Partial Judgment of Non Pros Pursuant to Rule 1042.6 <b>are true to the best of her knowledge, information and belief</b>. If the above statements are not true, the <b>deponent is subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities."</b>  (Click to enlarge)</td></tr></tbody></table><br />This <a href="http://legal-dictionary.thefreedictionary.com/Attorney+Misconduct">legal misconduct</a> kept the case mired in procedure for several years, with no Discovery conducted (except the defense helping themselves to my mother's medical records):<br /><br /><blockquote class="tr_bq"><i><b>Legal misconduct: </b>Behavior by an attorney that conflicts with established rules of  professional conduct and is punishable by disciplinary measures.</i>. </blockquote><br /><u><i><b>This nonsense is finally over.</b></i></u><br /><br />The judge has explicitly denied any further Motions for Reconsideration of the Certificate of Merit issue, and  has granted a Motion to Compel both Discovery (including all EHR metadata) in 30 days, and depositions within 45 days.<br /><br />(If we discover that EHR problems were causing other injuries or deaths, it may be time for a visit to the DA's Office of this jurisdiction.)<br /><b><br /></b><b>Here's what I believe ended this matter, a revelation showing what I believe is hospital defense maliciousness regarding the rights of the injured and deceased </b>(e.g., my mother, who died in June 2011, might have been able to participate in her own trial if these delays had not occurred):<br /><br />My mother's (now my) attorney recently discovered  a 2006 case in U.S. District Court of Eastern Pennsylvania, <u>Stroud vs. Abington Memorial Hospital</u>, <b>where the same defense for the same hospital tried exactly the same COM attack tactic, and were denied.   </b>The <u>Stroud</u> case was presented to the <u>Silverstein</u> court just a few weeks ago.<br /><br />The Stroud decision of August 2008 is at this link:  <a href="http://www.gpo.gov/fdsys/pkg/USCOURTS-paed-2_06-cv-04840/pdf/USCOURTS-paed-2_06-cv-04840-3.pdf">http://www.gpo.gov/fdsys/pkg/USCOURTS-paed-2_06-cv-04840/pdf/USCOURTS-paed-2_06-cv-04840-3.pdf </a>.<br /><br />One of the defense attorneys in that case was the selfsame <b>Carolyn B. DiGiovanni </b> (then at law firm <a href="http://www.whiteandwilliams.com/" target="_blank">White & Williams LLP</a> according to the Lexis-Nexis transcript), now acting as principal counsel in the 2010 case <u>Silverstein vs. Abington Memorial Hospital</u>:<br /><br /><br /><table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhK2b8_IFBea2gzMXdUMcvUvXjcI0gkLiU30MAcy1Z9D53WmALLG_xsSKktcQzUgKhn38pZijQl5gDdmBAYGMVSRDfleFWzqKYY4SHNJnDLXrcOHGCedmDE_QK98Z6YchLWJeW1aXnPOQNb/s1600/lexisnexis.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhK2b8_IFBea2gzMXdUMcvUvXjcI0gkLiU30MAcy1Z9D53WmALLG_xsSKktcQzUgKhn38pZijQl5gDdmBAYGMVSRDfleFWzqKYY4SHNJnDLXrcOHGCedmDE_QK98Z6YchLWJeW1aXnPOQNb/s400/lexisnexis.jpg" width="336" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">Stroud v. AMH, Aug. 2008.  A familiar lawyer name.  Click to enlarge.</td></tr></tbody></table><br /><br />In <u>Stroud</u> in Aug. 2008 the U.S. District Court of Eastern PA concluded:<br /><br /><blockquote class="tr_bq">... II. Motion as to Vicarious Liability Claims Based on Other Actors’ Conduct<br /><br />Hospital also seeks judgment in its favor as to any vicarious liability claims of negligence against the Hospital that Plaintiff might bring based on the actions of any Hospital personnel other than Defendant McAllister.<br /><br />Hospital takes the position <i>that Plaintiff did not timely file any certificates of merit (“COM”) to support such claims except as to Dr. McAllister</i> and, therefore, <b>that any vicarious liability claims for the acts of any nurse, physician (other than Dr. McAllister), or other personnel should be dismissed. </b><br /><br />After careful review of the Pennsylvania certificate of merit rule, however, we conclude that Plaintiff is in compliance. <b>... We do not believe more <span style="color: red;"><i>[than one COM -ed.]</i></span> is required of Plaintiff.</b><br /><br />The parties put forth differing interpretations of the Rule and its official “Note.” We read the first sentence of the “Note” following <b><a href="http://www.pacode.com/secure/data/231/chapter1000/s1042.3.html" target="_blank">Rule 1042.3(a)(2)</a></b> to reiterate that a COM (the contents of which is described in subsection (a)(1)) is required as to a particular defendant even when the plaintiff is bringing a claim of vicarious liability as described in subsection (a)(2) against that defendant.<br /><br /><b>We do not read it to require that a COM be filed as to a non-party [<span style="color: red;"><i>i.e., parties to whom the hospital is charged with vicarious liability for their actions such as employees and contractors - ed.].</i></span></b><br /><br />We observe that the Note clearly states that the expert statement underlying the COM “is not required to identify the specific licensed professionals who deviated from an acceptable standard of care.” [ Pa. R. Civ. P. 1042(a)(2) Note.]  <b>It would be incongruous for a plaintiff to be relieved of having his expert detail specific negligent individuals in his or her supporting written statement yet be required to simultaneously file separate COMs as to those individuals.  </b><br /><br />While the Hospital directs our attention to the Note that accompanied a prior version of this rule as authority for its interpretation of the intention of the rule, we find it more persuasive that the Pennsylvania Supreme Court, by order entered on February 11, 2005, specifically re-wrote the Note to subsection (a)(2) — the only apparent change to this rule at that time. <b>We believe that the Court’s decision to delete a provision that explicitly stated that COMs “must be filed as to the other licensed professionals whether or not they are named defendants in the action” (emphasis added) must be given effect.</b><br /><br /><b>We conclude that where the conduct of other licensed professionals who are not named as defendants in the action is the basis for a claim of vicarious liability against a named defendant <span style="color: red;"><i>[i.e., hospital - ed.]</i></span> (for whom a COM is filed), no further COM <span style="color: red;"><i>[beyond one - ed.</i></span>] is required.</b> This interpretation is bolstered by the fact that the Form COM provided in Pa. R. Civ. P. 1042.8 <b><i><span style="color: red;">[now</span> <a href="http://www.pacode.com/secure/data/231/chapter1000/s1042.9.html">1042.9</a> <span style="color: red;">- ed.]</span></i></b> contemplates the certificate naming a “Defendant” (in the blank line following the title “Certificate of Merit as to”). We also note that, in the case discussed by Plaintiff in his opposition, Yee v. Roberts, 878 A.2d 906 (Pa. Super. Ct. 2005), the Superior Court reiterated that a timely-filed COM was necessary as to a claim of vicarious liability against a dental partnership but did not suggest that an additional COM would have been necessary as to the non-party employee (identified by her first name in the complaint) whose conduct was alleged to be negligent. </blockquote><br /><br />In other words, the Certificate of Merit argument proffered by the hospital and its defense in 2010-2013, including the same Carolyn B. DiGiovanni who'd heard with her own ears and seen with her own eyes the same contention denied in 2008 (a contention that helped keep Silverstein vs. AMH in the incipient pleading stages with no Discovery for years) was entirely frivolous.<br /><br /><b>Remarkably, the existence of the 2008 Stroud decision as above was never divulged to the current local PA court</b>, in what appears to me to be a violation of the intent if not the letter of the ABA and <a href="http://www.pacode.com/secure/data/204/chapter81/s81.4.html" target="_blank">PA Rules of Professional Conduct for attorneys</a>:<br /><br /><blockquote class="tr_bq"><h4>PA Rule 3.3. <i>Candor Toward the Tribunal</i>.</h4> (a)  A lawyer shall not knowingly:<br /><br />   (1)  make a false statement of material fact or law to a  tribunal or fail to correct a false statement of material fact or law  previously made to the tribunal by the lawyer;<br /><br />   <b>(2)  fail to disclose to the tribunal legal authority in the  controlling jurisdiction known to the lawyer to be directly adverse to  the position of the client and not disclosed by opposing counsel; or </b><br /><br />   (3)  offer evidence that the lawyer knows to be false. <br /><br /><br /></blockquote>Not only was the Aug. 2008 Stroud case decision on COMs "known to the lawyer", <i>it was a case in which they had been directly and professionally involved.</i><br /><br />Obviously, mentioning the 2008 Stroud decision at the outset would likely have been entirely destructive - right from day 1 - of any claim that multiple COM's on vicarious liability were needed in 2010.<br /><br />In the face of the aforementioned 2008 <u>Stroud v. AMH</u> decision, this type of filing and the deliberate lack of <i><b>Candor Toward the Tribunal</b></i> was malicious, in my opinion, to delay proceedings - quite disrespectful of my injured and now deceased mother and to my own rights as substitute plaintiff.<br /><br />The judge's latest decision ordering an end to this court procedural misuse is <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/Silverstein%20-%20Denying%20Def%27s%20Motion%20for%20Reconsideration%20of%20Denial%20of%20Earlier%20Motion%20(00261356).PDF" target="_blank">at this link</a>.  The judge seemed somewhat angry:<br /><br /><blockquote class="tr_bq">... When the Superior Court of Pennsylvania denied Defendant's petition for review, Silverstein v. Abington Mem. Hosp.,No. 99 EDM 2012, as we explained in the January 13 order, we considered the [Certificate of Merit] matter concluded.<br /><br />Specifically, our order found that the alternative request for reconsideration had been "deemed denied" or "expired" as well, citing Stephens v. Messíck,7gg A.2d793, 801 (Pa. Super. Ct.2002) ("A motion for reconsideration appeals to the court's discretion . . . . Normally, motions for reconsideration expire on their own . . . .").<b> </b><br /><br /><b>Undeterred, Defendant, on February 1,2013, filed a</b> <b>motion for reconsideration of our denial of the motion for reconsideration of our denial of the "Motion of Defendant, Abington Memorial Hospital, to Strike Certificate of Merit and for Entry of Partial Judgment of Non Pros <span style="color: red;"><i>[got that? - ed.]</i></span> </b> pursuant to pa.R.C.P . 1042.7,and sent us a copy of the second motion for reconsideration....<br /><br />We now, however, in the hope of putting the matter to rest, order as follows: 1) Defendant's motion for reconsideration of our denial of Defendant's earlier motion for reconsideration <b><u>is deníed</u>.</b><br /><br />We pause to comment that the theory espoused in Defendant's "reply" to plaintiff's answer in opposition to the second motion for reconsideration-that we declined to entertain Defendant's first motion for reconsideration <b>based on the erroneous belief we had no jurisdiction to do so</b> -<b> <u>is incorrect</u> .  <span style="color: red;"><i>[This lawyer was trying to tell a judge what he could and could not do - ed.]</i></span></b><br /><br />... This Court, at least this jurist, <u><b>will entertain no further requests for reconsideration</b></u> of the subject matter of these motions and orders, barring contrary direction from a higher authority,  and we encourage the parties not to file any such further requests. <span style="color: red;"><i><b>[The reconsideration 'requests' came solely from the defense, I add - ed.]</b></i></span><br /><br />By the Court, <a href="http://judgepedia.org/index.php/Joseph_A._Smyth,_Jr.">Joseph A. Smyth, Jr.</a> </blockquote><br />Thank God, because I was fully expecting, barbershop-mirror style, a "<b>Motion for Reconsideration of Denial of Motion for Reconsideration of Denial of Motion for Reconsideration</b><i>."</i><br /><br />Sadly, this is the hospital where I'd completed my residency in 1987 with solid recommendations - including for a medical informatics postdoc that helped give me my current expertise - from its current Chief Medical Officer, then a residency program director.<br /><br /><b>This form of hospital defense abuse - frivolously and with malice trying to stall or evade court process guaranteed to citizens in the Constitution, especially when they are frail and may soon die - must not be permitted. </b><br /><br />Finally, I observe that perhaps <a class="l" href="http://www.marshalldennehey.com/">Marshall Dennehey Warner Coleman Goggin</a> needs to provide better CLE instruction on the PA and ABA Rules of Professional Conduct.<br /><br />-- SS<br /><b><br /></b><b>April 11, 2013 addendum:</b><br /><br /><blockquote class="tr_bq">Health Leaders Media<br />April 5, 2013<br /><a href="http://www.healthleadersmedia.com/print/TEC-290834/HIT-Errors-Tip-of-the-Iceberg-Says-ECRI" target="_blank">HIT Errors 'Tip of the Iceberg,' Says ECRI </a><br /><br /><b>Healthcare systems' transitions from paper records to electronic ones are causing harm and in so many serious ways, providers are only now beginning to understand the scope.</b> <span style="color: red;"><i><b> [I understood the scope years ago as reflected in my writings - ed.]</b></i></span><br /><br />Computer programs truncated dosage fields, leading to morphine-caused respiratory arrest; lab test and transplant surgery records didn't talk to each other, leading to organ rejection and patient death; and an electronic systems' misinterpretation of the time "midnight" meant an infant received antibiotics one dangerous day too late.<br /><br />These are among the 171 health information technology malfunctions and disconnects that caused or could have caused patient harm in a report to the ECRI Institute's Patient Safety Organization. <b>Thirty-six participating hospitals</b> <span style="color: red;"><i><b>[a small number indeed - ed.]</b></i></span> reported the data under a special voluntary program conducted last year.<br /><br />Karen Zimmer, MD, medical director of the institute, says the reports of so many types of errors and harm got the staff's attention in part <b>because the program captured so many serious errors within just a nine-week project last spring.  </b><b><i><span style="color: red;">[Including 8 injures and 3 possible deaths in just 9 weeks as I wrote at </span></i></b><i><span style="color: red;"><span style="color: black;">"</span></span></i><span style="color: red;"><i>Peering Underneath the Iceberg's Water Level:  AMNews on the New ECRI Deep Dive Study of Health IT Events</i><i>"</i></span><b><i> <a href="http://hcrenewal.blogspot.com/2013/02/peering-underneath-icebergs-water-level.html">here</a> <span style="color: red;">- ed.]</span></i></b><br /><br />The volume of errors in the voluntary reports was she says, "an awareness raiser."<br /><br />"If we're seeing this much under a voluntary reporting program, <b>we know this is just the tip of the iceberg; we know these events are very much underreported."</b><br /><br />... ECRI is currently evaluating a similar, and much larger list of reports from many of the 800 hospitals that contract with ECRI's PSO services. </blockquote><br />It's about damn time someone looked at EHR-related mishaps seriously.<br /><br />-- SS<br /><br /><b>April 13, 2013  Addendum:</b><br /><br />This hospital is apparently insured via a consortium of 8 regional nonprofit hospitals:<br /><br /><br /><table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-h4Ohnz-YG8f1Rw2VKdgQ8yFbgsCtux3TKF7a9xKlqmVup4VCvE_1INF7VQ1bH-fTxcbZrkyD5fYrM8yz9MqnRD9SnT8qlDMU0G2-JI7eYSmR1rKShbNR1QBOPaVRaJYGXOQyBmBACVTu/s1600/Amh_insurance.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="113" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-h4Ohnz-YG8f1Rw2VKdgQ8yFbgsCtux3TKF7a9xKlqmVup4VCvE_1INF7VQ1bH-fTxcbZrkyD5fYrM8yz9MqnRD9SnT8qlDMU0G2-JI7eYSmR1rKShbNR1QBOPaVRaJYGXOQyBmBACVTu/s400/Amh_insurance.jpg" width="400" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">(Click to enlarge)</td></tr></tbody></table><div class="separator" style="clear: both; text-align: center;"><b></b></div><br />The frivolous filings (including several that were hundreds of pages long) and legal misconduct likely cost insurer <a href="http://www.hoovers.com/company-information/cs/company-profile.Cassatt_Rrg_Holding_Company.cc00729a143fc7f3.html">Cassatt RRG</a> a small fortune, a disgrace for charitable organizations to have their funds wasted in this manner for defense lawyer enrichment.  I feel Cassatt needs to know about this, so I will inform them.<br /><br />-- SS<br /><br /><b>April 18, 2013 Addendum:</b><br /><br />From my counsel on 4/16 I am informed the defense lawfirm is upset at this posting.  I have, being a reasonable author, offered through my counsel to consider revisions if defense would identify statements they believe non-factual, along with a basis of claims of non-factuality.  Nothing has been received in response.<br /><br />-- SS

Hospital defense maliciousness, aided and abetted by attorneys who ignore the ABA and Pennsylvania's Ethical Rules of Conduct Regarding "Candor Towards the Tribunal"

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WALK THE WALK

<br /><br /><div class="MsoNormal"><o:p><u>WALK THE WALK</u></o:p></div><div class="MsoNormal"><br /></div><div class="MsoNormal">For some time a jeremiad theme has been dominant in the psychiatric sector of the <a href="http://hcrenewal.blogspot.com/2009/01/academic-industrial-complex.html">academic-industrial complex</a>. Blockbuster psychiatric medications are going off patent, the pipeline is viewed as alarmingly empty, and several corporations are scaling back or even abandoning their research programs in this area. Analyses of the reasons range from the <a href="http://www.ncbi.nlm.nih.gov/pubmed/17080187">enlightened</a> to the <a href="http://www.ncbi.nlm.nih.gov/pubmed/?term=22837348">pragmatic</a> to the <a href="http://www.psychiatrictimes.com/all/editorial/psychiatrictimes/pdfs/KrystalPresidentsLetter2012.pdf">pedantic</a> to the <a href="http://www.thecarlatcmeinstitute.com/blog/2011/08/has-stephen-stahl-gone-off-the-deep-end-you-decide/">foolish</a>. Everyone predicts that things will turn bleak in academic clinical research if the corporate spigot is turned off.</div><div class="MsoNormal"><br /></div><div class="MsoNormal">Lost in the wailing is a clear understanding that the defecting corporations are acting out of their own enlightened self interest. For 50 years, no fundamentally incisive innovations have occurred, so the defectors are telling the academics to get their act together in respect of better understanding disease mechanisms. Trouble is, too many academic clinical investigators have devolved into key opinion leaders promoting corporate marketing messages at the expense of generating original clinical science. Now they are squawking about being caught with their pants down.</div><div class="MsoNormal"><br /></div><div class="MsoNormal">The latest academic psychiatrist to opine about this issue is Steven Hyman at Harvard Medical School. In a new commentary that has just <span style="background-color: white; background-position: initial initial; background-repeat: initial initial;"><a href="http://www.dana.org/news/cerebrum/detail.aspx?id=41290">appeared</a></span>, Dr. Hyman talks up his favorite theme of translational medicine, which sounds lovely until you perceive that he has no contemporary examples of same in psychopharmacology. It’s all airy rhetoric. Dr. Hyman is not just a Harvard professor – he is a former Director of the National Institute of Mental Health (NIMH). Then he was Provost at Harvard under President Larry Summers. Now he is Director of a psychiatric research center at Harvard. </div><div class="MsoNormal"><br /></div><div class="MsoNormal">Someone else who noticed Dr. Hyman’s new <span style="background-color: white; background-position: initial initial; background-repeat: initial initial;"><a href="http://www.dana.org/news/cerebrum/detail.aspx?id=41290">commentary</a></span> is our fellow blogger Dr. John M. (Mickey) Nardo across at <span style="background-color: white; background-position: initial initial; background-repeat: initial initial;"><a href="http://1boringoldman.com/">1Boringoldman.com</a></span>. His take on the Hyman piece is right on target. Basically, the Hyman commentary is a hortatory fantasy that we can all do better by buying in to his vision of interdisciplinary research, pooling the efforts of academia, industry, and government. Problem is, his vision hasn't worked so far. Here is an example.</div><div class="MsoNormal">   </div><div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in;">Towards the end of his term as NIMH Director, Dr. Hyman set the ball rolling for new centers cast in his mold of translational research. Dr. Nardo <span style="background-color: white; background-position: initial initial; background-repeat: initial initial;"><a href="http://1boringoldman.com/index.php/2013/04/05/whither-the-crisis/">mentioned</a></span> “… a bunch of centers that haven’t produced very much.” The model of such failed centers is the one that existed at Emory University under the direction of Charles Nemeroff. It was called the Emory-GlaxoSmithKline-NIMH Collaborative Mood Disorders Initiative 5U19MH069056 (Principal Investigator Charles Nemeroff). It was conceived with all the right buzzwords about innovative models of drug discovery and translational benefit for patients through partnerships of academic centers with commercial drug makers (the Request for Applications (RFA) actually used this language). From the start, the Initiative was poorly managed and it never lived up to its billing. </div><div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in;"><br /></div><div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in;">Annual Progress Reports from the Initiative to NIMH, obtained through a FOIA request, reveal unacceptably low scientific productivity, and lack of leadership to promote the intended scientific synergies among laboratories. When I assessed the overall productivity of this project four years after the end of the first 5-year funding period, it was apparent that the U.S. taxpayer received little value for the $5.3 million investment by NIMH. Only 7 original scientific publications could be attributed to the federal support (that count excludes a host of potboiler review articles and other academic padding). Five of these 7 originated from a single participating laboratory at Emory. The NIMH component, under Dennis Charney, also was a serious underperformer.</div><div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in;"><br /></div><div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in;">The collaborating drug company GlaxoSmithKline obtained valuable preclinical information from the Emory laboratories, much of which has never been published even though federal funding supported the work. If the data are being treated as confidential proprietary information by GSK, then that posture would be contrary to the spirit of the original RFA. Maybe GSK just decided it was worthless data. In addition, GSK benefited from the conduct of a Phase II clinical trial of one of their candidate drugs in posttraumatic stress disorder (PTSD), even though this study returned a negative result. Even worse, the trial did not meet the stated criteria of the RFA. It was not based on any well founded theory of PTSD. Instead, it was a routine, exploratory study of a new compound. Because the study design did not permit strong inference, nothing substantive was learned from the negative result. This Phase II trial could have been performed better and less expensively by GSK itself as a normal business activity. GSK certainly did not need scarce NIMH dollars for this routine, early Phase II trial. The Emory-GSK-NIMH Initiative added no scientific value.</div><div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in;"><br /></div><div class="MsoNormal">Notwithstanding the clear evidence of under-productivity, NIMH under Director Thomas Insel, MD, continued the Initiative for all 5 years of the original funding period, and then renewed the Initiative for a second 5 year period at an increased funding level under a new P.I., Helen Mayberg, M.D. Dr. Mayberg is a respected clinical scientist, but she is not a psychiatrist, she is not a psychopharmacologist, and she has no track record of research in the priorities announced by the RFA. What actually is going on? Did NIMH just hand a favor to Dr. Insel’s former employer, Emory University, to the tune of another $6 million?</div><div class="MsoNormal"><br /></div><div class="MsoNormal">One lesson of this episode is that the chatter by federal scientific administrators (Hyman, Insel) about translational research strategies and innovative models of drug discovery is mostly vacuous rhetoric. The RFA was an imprudent conceit to begin with, having no base in solid clinical science, and this expensive Initiative failed catastrophically to meet its grandiose objectives. It is ironic that Dr. Hyman presumes to scold and sermonize to the field yet again about translational research, as it was he who set the ball rolling in the first place for the disastrous Emory-GlaxoSmithKline-NIMH Collaborative Mood Disorders Initiative. Last time I looked, nobody has been held accountable for the failure of the Initiative. Where is NIMH Director Thomas Insel when we need him to set standards of accountability and ethics?</div><div class="MsoNormal"><br /></div><div class="MsoNormal">So, the next time you hear academic psychiatrists lamenting how bad it is, remind them about this scandalous example of waste and mismanagement of federal research funding. Cleaning up cesspools like this would be a step to unblocking the drug development pipeline. And we need leaders who walk the walk, not just talk the talk.</div><div class="MsoNormal"><br /></div>

WALK THE WALK

WALK THE WALK For some time a jeremiad theme has been dominant in the psychiatric sector of the academic-industrial complex . Blockbuster ps...

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Another Sign of Resistance? - Doctors Sue Hospital Systems Alleged to Put Money Ahead of Mission

In two recent instances, physician groups have filed lawsuits against hospital systems alleging that managers were directly putting revenue ahead of patient welfare.  Although so far this is all about allegations, and nothing has been decided in courts of law, the details provided in the current news coverage are disturbing.<br /><br />We will present the cases in the order that news reports were published.<br /><br /><b>Prime Healthcare Services</b><br /><br />California Watch <a href="http://californiawatch.org/dailyreport/doctors-claim-prime-hospital-kept-them-patients-18850">reported</a> on a lawsuit filed against Prime Healthcare Services, a California based for-profit hospital system that has got its share of unfavorable media coverage.  In summary,<br /><br /><blockquote class="tr_bq">A dozen Southern California doctors are accusing the leadership of a  Prime Healthcare Services hospital of <i>refusing to notify them about  their patients because they won’t engage in profit-driven practices</i>,  according to a request for a restraining order filed this week.<br /><br />The San Bernardino County physician group suing Chino Valley Medical  Center and its director say it has been <i>asked to needlessly admit  patients from the emergency room</i> into hospital beds, <a href="https://www.documentcloud.org/documents/628144-prime-case-ex-parte-app-for-tro-03-27-13.html" target="_blank">according to the lawsuit filed Wednesday</a> in San Bernardino County Superior Court. The group’s doctors also have  been <i>urged to document patient conditions as more complex or severe than  they are</i>, the filing says.<br /><br /><a href="https://www.documentcloud.org/documents/628145-prime-complaint-03-26-13.html" target="_blank">The doctors suing the hospital maintain</a> that <i>both practices are meant to drive up hospital bills</i>. The result of  their refusal to go along, they say, is that they’re not receiving what  they characterize as legally mandated notifications when their patients  land in the hospital.<br /><br /> The physicians have asked the judge to lift the alleged freeze in communication, saying it puts fragile patients in danger. </blockquote><br />The article described one particularly concerning incident <br /><br /><blockquote class="tr_bq">[The lawsuit] ... claims one patient with a serious breathing condition was admitted  without her doctor’s knowledge. During her stay, Chino Valley staff  operated to remove her gallbladder.<br /><br />'Because (Inland) was not contacted, no doctor gave the required  pulmonary clearance nor did the patient receive proper respiratory  treatment prior to surgery,' the lawsuit says.<br /><br />The suit alleges that such practices put patients 'at serious risk of injury and even death.' </blockquote><br />The article also described allegations that at the root of the problem was the hospital system's management's insistence on revenue ahead of all other concerns:<br /><br /><blockquote class="tr_bq">The physician group suing Chino Valley holds contracts with about a  dozen managed care firms that expect group doctors to handle local  members’ care in the case of a hospitalization.<br /><br />The Inland doctors say that instead, they’ve been stonewalled. In  their lawsuit, they say the silence is a result of their refusal to  follow the direction of the hospital’s president and chief medical  officer, Dr. James Lally, a defendant in the case.<br /><br />Lally <i>suggested that the physicians document serious medical  conditions, such as a certain type of pneumonia that Medicare pays  hospitals a premium to treat</i>, the suit says.<br /><br />Lally also discouraged doctors from putting patients on 'observation'  status, according to the suit. That means a doctor will monitor a  patient’s condition, rather than sending him or her home or admitting  the patient to a hospital bed.<br /><br />The lawsuit alleges that Lally <i>prefers doctors to admit patients into  the hospital so the hospital can receive 'significantly higher Medicare  reimbursements.'</i></blockquote><br />This is not the first time that Prime has been accused of mischief:<br /><br /><br /><blockquote class="tr_bq"><a href="http://californiawatch.org/prime" target="_blank">A yearlong California Watch series</a> documented high rates of lucrative and severe medical conditions at  Prime hospitals, as well as an <i>aggressive approach to admitting ER  patients into hospitals</i>, rather than treating them in the ER and sending  them home.<br /><br />State hospital data analyzed by California Watch showed that Prime hospitals <a href="http://californiawatch.org/health-and-welfare/chain-profits-admitting-er-patients-11561" target="_blank">admitted about 63 percent of Medicare-funded ER patients</a> into hospitals in 2009, compared with 39 percent at the state’s other  leading for-profit chain, Tenet Healthcare Corp. In response, Prime said  the analysis 'utterly fails to consider the medical basis for  admissions.'<br /><br />The U.S. Justice Department is <i>investigating Prime’s billing practices</i>, <a href="http://californiawatch.org/dailyreport/prime-hospital-chain-acknowledges-it-faces-2-federal-investigations-18801" target="_blank">according to a document the chain filed</a> as part of a hospital purchase plan. Dr. Prem Reddy, founder of the  Ontario, Calif.-based chain, has overseen rapid growth since Prime’s  2001 start as the company expanded into a coast-to-coast 21-hospital  chain.</blockquote><br />Also,<br /><br /><br /><blockquote class="tr_bq">Prime Healthcare has been criticized for <i>aggressively admitting paying patients</i> since its founding. <a href="http://californiawatch.org/health-and-welfare/their-own-words-making-emergency-care-profitable-10738" target="_blank">Reddy once <i>referred to an ER as a 'gold mine,'</i></a> according to court testimony from the medical director of the first  hospital taken over by the Prime founder. The reference, which the  medical director said during a 2005 trial, was to numerous Kaiser and  Medicare patients who could be admitted for further care.<br /><br />Another doctor told the Orange County Board of Supervisors in 2006  that when Prime took over Huntington Beach Hospital, doctors were <i>urged  to admit insured patients with maladies as minor as a headache.</i></blockquote><br />Yet, Prime Healthcare <a href="http://www.primehealthcare.com/About-Us/Mission-Vision.aspx">claims</a> to honor the value of compassion:<br /><br /><blockquote class="tr_bq"> We provide an environment that is caring and conducive to healing the  whole person physically, emotionally and spiritually. We respect the  individual needs, desires and rights of our patients.</blockquote><br /><b>Dignity Health</b><br /><br />Our second story comes from Nevada <a href="http://www.lasvegassun.com/news/2013/apr/03/doctors-allege-shuttling-patients-among-hospitals-/">courtesy</a> the Las Vegas Sun.   It involves Dignity Health, a multi-state non-profit health system.  The story basics are:<br /><br /><blockquote class="tr_bq">Two former St. Rose Dominican Hospital emergency room doctors say  they were <i>forced to transfer patients from one St. Rose hospital to  another so its owners and their boss could profit — at the expense of  patient safety.</i><br /><br />The doctors allege in similar lawsuits that the  frequent patient transfers among the three St. Rose hospital campuses —  Rose de Lima and Siena in Henderson and San Martin in the southwest  valley — put profit ahead of patient care. When they resisted, they say  they were retaliated against and eventually fired.<br /><br />The 3-year-old  ambulance company that was used to shuttle patients was<i> partly owned by  both the hospital company and the director of the emergency department</i>  at the Siena campus at the time, Dr. Richard Henderson. According to  their lawsuits, Henderson pushed hard in emails to ER doctors to promote  patient shuttling and authorized bonuses to doctors who transferred the  most patients to other St. Rose facilities.</blockquote><br />Again, there was one telling incident:<br /><br /><br /><blockquote class="tr_bq">Both lawsuits invoke the case of a gravely sick 16-day-old baby who  arrived at St. Rose de Lima hospital, where a doctor determined the  child needed pediatric critical care services at the Siena campus and  requested a Henderson Fire Department unit for transport.<br /><br />But  according to the lawsuits, Henderson <i>ordered that Community Ambulance  transport the child instead. He made the request despite longer wait  times for Community Ambulance</i> compared to Henderson Fire Department’s  quicker response times of 10 minutes or less, according to the lawsuits.</blockquote><br />This article also described how money allegedly came before patient care:<br /><br /><br /><blockquote class="tr_bq">The court papers include email exchanges between Henderson and the  other doctors in the ER group. In a November 2010 email, he discusses  ways to <i>punish doctors who do fewer patient transfers and reward those  who tally more transfers</i>:<br /><br />'(T)op quarter $1,000, next quarter  $500. Bottom quarter up or out talk at annual evaluation.' In other  words, according to doctors who received the email, Henderson proposed  that <i>doctors would be divided into strata based on who recommended the  most transfers</i>, with the top group winning bonus money while those who  performed the least would eventually be terminated.<br /><br />Transferring patients was such a priority that <i>doctors were ordered to fill out non-transfer forms, explaining a decision not to transfer patients.</i><br /><br />In  another email, Henderson expressed concern that doctors were too quick  to rule out transfers: 'How do you weed out the people that call a runny  nose ‘unstable for transfer’?<i> The performance we (admin) are looking  for are transfers.</i> Suggestions?'<br /><br />A former member of the medical staff put it this way: There was <i>constant pressure to transfer transfer transfer.'</i></blockquote><br />Note that Dignity Health was until recently called Catholic Healthcare West (look <a href="http://www.fiercehealthcare.com/story/catholic-healthcare-west-curbs-religious-ties-expand/2012-01-23">here</a>).  It still <a href="http://www.dignityhealth.org/Who_We_Are/Our_Mission_Vision_And_Values/index.htm">claims </a>the mission:<br /><br /><blockquote class="tr_bq"> We are committed to furthering the healing ministry of Jesus. We dedicate our resources to: <br /><ul><li>Delivering compassionate, high-quality, affordable health services;</li><li>Serving and advocating for our sisters and brothers who are poor and disenfranchised; and</li><li>Partnering with others in the community to improve the quality of life.</li></ul></blockquote>Note also that under its former name, Catholic Healthcare West has received our previous attention, for accusations that it overcharged uninsured patients (look <a href="http://hcrenewal.blogspot.com/2005/10/lawsuit-alleges-catholic-healthcare.html">here</a>),  which it later settled (look <a href="http://hcrenewal.blogspot.com/2006/06/business-based-prescription-for-health.html">here</a>), and for settling a lawsuit claiming the system filed false Medicare claims (look <a href="http://hcrenewal.blogspot.com/2006/06/business-based-prescription-for-health.html">here</a>).  <br /><br /><b>Summary</b><br /><br /> Just another day at the office....  Here are two more examples of how large health care organizations, in this case, large hospital systems, seem to put short-term revenue ahead of all other concerns, and in particular, ahead of patient welfare.  In both cases, the alleged practices seemed to make a mockery of the hospital systems high-flown mission or values statements.  In both cases, the hospital systems had records of past questionable behavior.  Yet many hospital systems have grown rich and powerful, and made their leaders personally rich, by trading on their reputation for community care and service, and marketing their warm and fuzzy missions and values.  <br /><br />Over the years, we have documented over and over how leadership of health care organizations have subverted their organizations' missions and the values of health care professionals.  Yet for a long time, many health care professionals just kept their noses to their grindstones, ignoring what was going on or suffered in silence.  Now at least a few have broken the silence.  Health care professionals and society at large needs to hold large health care organizations' leadership accountable for their missions, and push out leaders who put their own pocketbooks and their organizations' revenue ahead of patients' and the public's health.  <br /><br />

Another Sign of Resistance? - Doctors Sue Hospital Systems Alleged to Put Money Ahead of Mission

In two recent instances, physician groups have filed lawsuits against hospital systems alleging that managers were directly putting revenue ...

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