January 23, 2008

You Can Have Your License Revoked For That?

It's hard to see the truth when the truth is uninteresting, long, or contained in PDF.  What's left is the interesting untruth, which then becomes truth.

And then we all have a big problem.

Close to home (and to the area almost completely responsible for the housing collapse) comes the case of Dr. Edward Sanders who, according to the Marin Independent Journal, had his license revoked because, among other reasons:

In its filing, the medical board said Sanders' failure to order periodic eye exams for the patients to whom he was giving Seroquel was an "extreme departure from the standard of care."

It is my clinical opinion that eye exams are unnecessary.  It is a fact that most psychiatrists don't even know what slit lamp actually is, let alone order it for the majority of Seroquel patients.  And, therefore, I am absolutely certain that those two facts alone make it impossible that his actions were a departure from the standard of care, let alone an extreme departure.

Let's be forensically rigorous.  The law doesn't ask if the treatment is bad, it asks if there's malpractice, as defined:

  1. breach of standard of care-- what a "reasonable minority" of docs would do
  2. a harm occurred

Not majority-- minority.  If 20% of docs think slit lamp is unnecessary, and they have at least a quasi-united voice on that matter, it is not negligence.  And regardless of whether 100% of docs do it 100% of the time: unless someone actually got a cataract, it's not a lawsuit.

Further: it isn't what docs think, it's what they do.  Example: it is now almost universally accepted that blood sugars should be monitored for antipsychotics.  However, this is not in any way close to a universal practice. So it's not negligent.  I'd argue that if blood sugars were monitored even once a year, it's not even a discussion of negligence.  It sucks, there should be some punching, but not a finding of negligence.

And again: if they didn't actually develop diabetes, there is no malpractice.

So for the Board to discipline Sanders for, among other things, the lack of eye exams, seems preposterous.

Which brings us to the question for today: was this news story wrong, or was the licensing board out to get him?

II.

I looked up the Board's Edward Sanders Decision (PDF: reserve 30 min for downloading.)  If the information there is to be believed, Dr. Sanders was clearly up to some nonsense.  Billing for visits he never conducted, acting as payee for patients on SSI, altering records he sent to the Board (NB: don't ever do that, it's a trap; when the subpoena for the records comes, they already have a copy.)

But, unfortunately, contained within that document are a number of "Acts and/or ommissions" which, while nominally wrong, are things I see doctors do routinely, without malice: coaching patients not to work more than X hours because it would sabotage their disability payments; billing for a diagnosis that the patient (theoretically) had, but was not what was being treated (from memory, don't quote me: billing for urinary tract infection but being treated for asthma, but had both). For example, the payment is the same regardless of diagnosis.  I can't tell you how many psychiatrists bill "296.3" (depression) as a default.

Having it all mixed together-- indeed, in not restricting the case to the things which are clearly wrong-- the Board does itself a disservice by appearing to be engaged in a vendetta/witch hunt, etc.

Indeed, a cursory reading of the Decision could very well leave one with the distinct impression that the thing he did wrong the most-- the thing that the Board talked about the most-- was prescribing Seroquel and Abilify:

[Sanders] was not surprised to learn [from the Department of Human Services invesitgator] that was the largest prescribing physician of Seroquel in California.
Well, someone has to be, right?  And unless you're accusing him of kickbacks (which they are not) then it shouldn't be in there.

So, for what it is worth-- and it is worth nothing-- my opinion is that (if the information in the Decision is accurate) the Board seems to have had legitimate problems with Sanders, but they were not well articulated or focused in their Decision.

III. 

That's reality, anyway, and as long as it took me to look all this up and write this post is twenty times longer than anyone in America will ever spend on researching the actual facts of his case now, post Decision.

Which means that we all just swallowed the Blue Pill: the only remaining accessible document about the Sanders case is the news article, which equalizes Medi-Cal fraud with prescribing Seroquel without an eye exam.

And so it goes, another bit of preposterousness becomes true.

Welcome, as the magus said, to the real world.









Comments

Humm, while I agree with yo... (Below threshold)

January 23, 2008 8:37 PM | Posted by Steve : | Reply

Humm, while I agree with your overall post, I'm not so sure this is a simple negligence action (and if it were, it's: duty, breach, causation, damages). Since medical professionals are highly regulated, I suspect (without knowing the state law regs) that the standard is in fact higher; hence the typical notion of customary care. Anyways, there's no doubt that the tide has turned against Pharma as you've documented. See: http://pharmalot.com/2007/05/a_big_spike_in_seroquel_lawsui/ for the latest. I think the CATIE trial was just another piece of data (however biased) that is working against Pharma. That said, are the atypicals (let's leave aside clozaril) really better? I mean, what would you rather have: metabolic syndrome or TD? At least the latter is not associated with early death.

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Ermmm.. I'm a medical malpr... (Below threshold)

January 23, 2008 9:50 PM | Posted by Craig: | Reply

Ermmm.. I'm a medical malpractice defense attorney by trade, and I'm not sure where you got your definition of negligence, but it's not one I've heard of in any jurisdiction. The actual [okay, perhaps slightly paraphrased] definition of medical negligence is "failing to do that which a reasonably prudent physician would do in the same or similar circumstance" [or NOT doing that which a reasonably prudent physician would have done in the same or similar circumstances"]. A finding of liability for medical negligence requires a finding that the negligence in question was the "proximate cause" of the alleged injury, which is, basically, that the act complained of led, in a natural series of events, to the injury AND that such injury was reasonably foreseeable based on the negligent acts.

Okay, fine, this is a pretty pedantic post, but I wanted to clarify your definitions that serve as the basis for your blog entry. If I had a psychiatrist client who was sued for failing to perform an eye exam, it would be a no-brainer -- I'd get an expert in the same field to testify that it was not the standard of care to perform them, and that would just about be that. No way a jury would find liability in such a situation.

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By and large I agree with m... (Below threshold)

January 24, 2008 3:22 PM | Posted by Judd: | Reply

By and large I agree with most of what's in the post . . .but I'll point out that the definition of "negligence" does NOT depend on a finding of harm. Negligence is just one of four elements required to make a finding of "liability" (the others are duty, causation, and injury/harm). Negligence, by itself, is merely a finding of a a departure from the standard of care. One can be "negligent" (ie., failing to treat suspected temporal arteritis while awaiting biopsy) without causing injury (ie, blindness). There's no liability, of course, without causing injury or harm, but the concepts are seperate at tort.

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In response to the comm... (Below threshold)

January 25, 2008 12:17 AM | Posted by Alone: | Reply

In response to the comments above (or below): am I mangling the definition of negligence and/or standard of care? Sort of yes, I'll admit, but...

What I should have said is that you need a harm to have a negligence case. Correctly, you have to show that the doctor's negligence led to (proximate cause of) a harm. I admit that that was both unclear and misleading as I had written it. So, to summarize, you can't sue your doctor just because he sucks; he has to have harmed you by his sucking. (no jokes.)

But standard of care is different matter altogether. The standard used to be what a "reasonably competent doctor" would do in one's local area. This is no longer true; medicine is a nationalized sport with nationalized rules, so you're measured against a "reasonably competent doctor" in the country, not Marin county. No one seems to want to believe this, but it is true. It's why experts are allowed to testify in other states in which they are not licensed.

Furthermore, while generally you're measured against a "reasonably competent" doctor of your specialty, if you do something outside your specialty, then you are judged against that other specialty. Dr. Sanders, in this post, is not actually a psychiatrist, but should he get sued, he'll be held to the standard of care in psychiatry. (i.e. he can't say, "well, that's how we GP's practice down here in Marin.")

Finally: let me assure everyone that "respectable minority" does set the standard, though state to state the term differs ("considerable number" "two schools of thought" etc.) (See Chumbler v. somebody, 6th circuit 1974.) And, at heart, it is obvious: when practice is not rigidly defined and people differ (say, giving antidepressants in bipolar) as long as a "respectable minority" of docs would have done it, then... This is one reason we have dueling experts in the first place.

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I'm an attorney, though not... (Below threshold)

January 25, 2008 12:18 AM | Posted by Anonymous: | Reply

I'm an attorney, though not med mal, but I'm not sure where you got your information. Standard of care is always in relationship to others in your locality (hence the term "locality rule") and not

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never mind... (Below threshold)

January 25, 2008 12:39 AM | Posted by Anonymous: | Reply

never mind

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People deserve good life an... (Below threshold)

June 28, 2011 4:54 PM | Posted by HartmanSHEREE: | Reply

People deserve good life and credit loans or just auto loan will make it much better. Because freedom is grounded on money state.

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