Atlanta Medical Malpractice Lawyer Blog

Who among us wasn't nagged incessantly by their mothers to "wash your hands."? Who among us wasn't sent away from the dinner table because we hadn't washed our hands? Is there anything more basic to hygiene than hand washing?

Well, it turns out that people who work in hospitals - doctors, nurses, orderlies - aren't very good at hand washing. A recent article in The New York Times referred to studies that showed that hospital workers wash their hands only around 30% of the time they are with patients. In one recent study employees were secretly videotaped. Not even 10% washed. What would your mother say?

The Center for Disease Control estimate than 1 out of every 20 hospital patients acquires an infection while in the hospital. Many of those infections are resistant to antibiotics Nationwide, hospital acquired infections cost over $30 billion, leading to nearly 100,000 patient deaths per year. Hospital borne infections can never be completely eliminated, but their incidence can be greatly reduced by such simple things - - you guessed it, hand washing. By the way, if you ever see a doctor in a hospital wearing a tie, make him take it off. The dangling tie picks up and transmits germs, and you can't exactly wash a tie between patients.

It says much about our medical system, and our society, that hospitals are forced to virtually spy on doctors and nurses to make sure they wash. At North Shore University Hospital in New York, a teaching hospital with over 800 beds, video cameras are used to check on everyone who enters an intensive care room, just to make sure hands are washed. There are even companies that give workers electronic badges to track the number of times hands are washed. Radio frequency chips and undercover hand washing checkers are also employed. This is serious business.

Some facilities have resorted to bribery to or public humiliation. There are actually hand washing coaches, and rewards like free pizza and coffee coupons are handed out. A non-washer can get a "red card". Hospitals are trying all kinds of technology and gimmicks to promote basic hand hygiene. But we, as consumers, can and should be proactive. If you are in the hospital, as a patient or a visitor, and you see someone who hasn't washed after coming into a patient room, say something.

And don't forget to ask the doctor to take off his tie.

Politicians talk incessantly about insuring the long term viability of Medicare. However, there is a critical, immediate problem that impacts the ability of Medicare recipients to obtain necessary services.

Medicare is intended to provide Americans over 65 with medical care. Theoretically, it is supposed to cover most services, with the doctors being paid directly by Medicare. Part B of Medicare, which covers doctors' services, requires patient co-pays which can be covered by one of the various supplemental Medicare plans available.

The problem is that more and more doctors are not willing to accept new Medicare patients for the very simple reason that the amounts Medicare pays them are insufficient to cover the cost of the services. A recent survey of 100 primary care doctors in Colorado showed that two thirds of them would either refuse to take on new Medicare patients or limit the types of services they may provide.

In researching this topic the one thing that became clear is just how confusing the entire reimbursement system works. Medicare gives doctors three choices: (1) physician must accept 80% of the Medicare approved amount for each service, and can collect the other 20% as a co-pay from either the patient or the patient's supplemental insurance; (2) physician can charge 115% of allowed charges, with Medicare paying less than under option (1) and the physician can attempt to collect the balance from the patient or supplemental insurance; or (3) "opt-out" of Medicare and not accept any Medicare payments for any patient, and the patient does not get any reimbursement from Medicare. The physician and patient actually have to sign a contract agreeing to those terms. With the opt-out the physician is free to charge as much or as little as s/he deems appropriate.

All three options are bad. The first and second provide the doctors with very small payments. The doctors who take option 2 can end up with a little more if they are able to actually collect the balances due from the patients. Option 3 simply will not work for most Medicare recipients who cannot afford to pay market rates for medical care.

To make matters worse, the reimbursement rates paid to doctors has actually decreased over time. Under current federal law, Medicare payments to physicians were scheduled to go down by 26.5% on January 1, 2013. At the last minute Congress prevented that decrease. This has become a yearly event: the law requires adjustments to Medicare payments and Congress overrides the law in order to prevent catastrophic decreases that would adversely affect the ability of all Medicare patients to obtain medical treatment.

Even though the 26.5% decrease was avoided, the "sequester", the required reduction in spending by all branches of government caused by the inability of Congress to actually govern like they are supposed to, has resulted in a 2% reduction in payments in medical providers as of April 1, 2013. Given the thin margin medical providers were already working on, that amount is significant. Indeed, a major cancer practice in New York announced that it was no longer going to see one-third of its patients.

Doctors are not getting paid enough by Medicare to see patients who need their help. Our seniors deserve better.

Medicine, like most other things in life, has become increasingly complex. That complexity has resulted in increased specialization. While hyper-specialization often results in doctors looking at body parts rather than at the patient as a whole, there are times when no one but a highly trained specialist should be consulted.

Ovarian cancer is one disease which requires a super specialist. A recent study has revealed that two-thirds of women diagnosed with ovarian cancer in the United States do not receive optimal care. There are no consistently accurate screening tests yet for ovarian cancer, so this type of cancer is frequently not diagnosed until it has already spread.

Ovarian cancer usually requires surgery followed by chemotherapy. A complete hysterectomy is almost always performed, a surgical procedure that gynecologists do on a regular basis for non-cancer patients for a variety of reasons. The surgical procedure for cancer, however, is different. Not only are the reproductive organs removed, but the surgeon must painstakingly remove every visible cancerous cell (ovarian cancer cells are said to look like rice crispies), in a process known as debulking. This is not something that the ordinary gynecologist does on a regular basis.

Gynecologic oncologists are gynecologists who receive specialized training in dealing with gynecologic cancers. They receive surgical training above and beyond the training received by regular Obstetrician/Gynecologists. They are also trained specifically in establishing chemotherapy programs for gynecologic cancers. Like most surgical procedures, the more often the surgeon performs the debulking procedure the better the expected results. Practice may not make perfect, but it sure helps.

Based upon experience, ovarian cancer specialists at major cancer centers have established protocols for treating ovarian cancer, based upon type and stage. Among the newer treatments is delivering chemotherapy directly into the abdomen through ports rather than the more typical intravenous chemotherapy treatments. These protocols provide women with the best possible outcomes. Unfortunately, a recent study confirmed that most ovarian cancer patients are treated by OB/GYNs rather than gynecologic oncologists, and that most of those patients do not receive care that follows the guidelines established by the cancer centers. The failure to follow the established protocols and guidelines can have devastating results. The five year survival rate for one type of ovarian cancer is 35% for patients who receive optimal care from a gynecologic oncologist who follows the protocols but only a 25% five year survival rate for patients whose treatment does not follow the guidelines.

Many women undoubtedly rely on their regular OB/GYN to care for their cancer. Other women do not live near a major medical center where gynecologic oncologists practice. What is disturbing is that too many OB/GYNs do not refer their ovarian cancer patients to physicians who can give the type of care that provides the best possible long term results.

The bottom line is clear: a patient who is diagnosed with ovarian cancer should be treated by a gynecologic oncologist at a major medical center where ovarian cancer surgery is regularly performed.

Anyone can be the victim of medical malpractice; even doctors. In a remarkable Op-Ed piece published in the New York Times on February 20, 2013, Dr. Frederick S. Southwick, a professor of Medicine at the University of Florida in Gainesville, wrote about how he lost his leg to medical error, and how his wife almost died due to medical error. The point of Dr. Southwick's article is that the same careful processes and quality controls utilized by major American companies need to be applied to medical care, and that by utilizing such processes and controls many medical errors can be eliminated, saving lives and billions of dollars.

In Dr. Southwick's case, he had Achilles tendon surgery many years earlier. The surgeon put a cuff on Dr. Southwick's leg to prevent bleeding during the procedure, but kept the cuff on too long, permanently injuring blood vessels which, years later, resulted in amputation. In that case, a simple timer built into the cuff could have warned the surgeon to release the cuff early enough to prevent any injury. Dr. Southwick's wife almost died because of delayed decision-making, poorly coordinated care and a medication error. Dr. Southwick's wife survived, barely, only after a new physician was brought in care for her.

Dr. Southwick, who authored a book Critically Ill: A 5-Point Plan to Cure Healthcare Delivery, argues that by incorporating quality controls and available efficiencies, and by adopting specific protocols, many, many medical errors can be avoided.

One type of quality control - - limitations on the number of hours resident doctors can work - - came into existence only because of the tragic death in 1984 of Libby Zion, the 18 year old daughter of author Sidney Zion. Libby was a patient in New York Hospital, a major teaching hospital in Manhattan. Following a detailed investigation and a medical malpractice lawsuit, it was determined that Libby had been followed and treated by residents, graduate doctors in training, who had been on duty for 36 straight hours. Having residents work for over 24 hours at a stretch, and over 100 hours in a week, was a standard practice in hospitals throughout the United States. For anyone who spent all-nighters in college it is pretty obvious that a person working 24 hours, in a row, much less than 36 hours in a row, is going to be much more likely to commit errors than someone working not going to be at the top of his game and much

After many years Sidney Zion's advocacy finally achieved one of his goals. In 1987, New York mandated that residents not work more than 24 consecutive hours and not more than 80 hours per week, but that was a standard not universally accepted. Patient safety and the number of hours residents should be permitted to work remains a subject of discussion by the Institute of Medicine and others.

The Georgia General Assembly has just considered the most pernicious attack yet on the right of injured patients to have their case decided in a court of law by a jury of their peers. SB 141 is the brainchild of Patients for Fair Compensation, a trade group, and was introduced by a State Senator who is the president of CEO of the Greater North Fulton Chamber of Commerce. There are no patients behind these groups, only industry.

SB 141 proposes replacing an injured patient's right to sue for medical malpractice with an administrative agency similar to the Workers Compensation Board. The law would set up a very complex system whereby every asserted malpractice claim would be reviewed by, among others, a panel of doctors. The proposed system would, allegedly, help avoid costly medical errors and allow more patients to be compensated for their injuries. These panels would be the only remedy for someone injured by medical malpractice.

Opposition to SB 141 comes from both sides of the medical malpractice arena. It would not surprise anyone to learn that attorneys who represent victims of medical malpractice would oppose the law since it would deprive our clients of their constitutional right to trial by jury. Joining the trial lawyers are the Medical Association of Georgia and MAG Mutual Insurance Company. The Medical Association represents more than 7,000 physicians who practice in Georgia. MAG Mutual insures the vast majority of Georgia physicians against medical malpractice claims. Thus, the people who sue the doctors and the people who defend those lawsuits find themselves working together. Clearly, the doctors think that SB 141 would end up costing them more time and money than the current system.

One so-called justification for creating the board is that it would give people an opportunity to bring claims if they cannot afford an attorney. Since attorneys work these cases on a contingency fee basis, and don't get paid if they lose, they are careful in selecting which cases to take. It costs lawyers a lot of money out of their own pockets if they lose a case. What is unsaid is that for every medical malpractice case we accept, we reject at least 99 other cases. In effect, our firm and other plaintiffs' attorneys effectively cull out the most of the allegations of medical malpractice. Under the proposed plan, all 100 of those claims could be filed and the system would become bogged down in baseless claims.

SB 141 is bad for patients and it is bad for doctors. It was tabled until next year, and we can expect its ugly head to rear once again.

Fortunately, more likely than not the proposed law violates the Georgia Constitution and would not be enforced even if passed by the General Assembly. This conclusion is based upon the decision of the Georgia Supreme Court in Atlanta Oculoplastic Surgery v. Nestlehutt, in which the court held that there is a constitutional right to trial by jury in medical malpractice cases.

We are bombarded with advertisements from hospitals such as "Come to our hospital, we're the best", or "come to our hospital, you won't get better care anywhere." Those types of ads are usually called puffery. However, there is one type of hospital ad that is highly deceptive.

Hospitals constantly tout the quality of their doctors, that they are unequaled and highly competent. The average person reading those ads is led to believe that the hospitals vetted the doctors, doing some type of due diligence to confirm that the doctor is, in fact, superior. The average person is also led to believe that the hospital stands behind those doctors if something goes wrong. Unfortunately, the average person beliefs are wrong.

For a doctor to be able to perform services in a hospital, the doctor must have privileges. They submit applications that summarize their education, training and experience. They will get privileges if the hospital finds them to be qualified. However, having privileges is not equivalent to being a great or superior doctor. Thus, the fact that the hospital is touting "their doctors", it is still buyer beware. You can't assume that the doctor is good just because he provides services at a hospital that advertises.

Even more concerning is that the advertisements somehow imply that the hospitals are responsible if one of "their doctors" commits medical negligence. Nothing could be further from the truth. The law in Georgia is that hospitals are responsible for the actions of their employees, but are not responsible for the actions of independent contractors who work at the hospital. So if a doctor is negligent and injures a patient, both the doctor and the doctor's employer bear responsibility. What makes a doctor an employee rather than an independent contractor? The Internal Revenue Service has detailed rules for making that determination, at least for tax purposes. But under Georgia law, there is a simple basic test: If the doctor gets a paycheck from the hospital, s/he is an employee. If the paycheck comes from anywhere else, the doctor is not an employee.

Most of us would think that when we walk into an emergency room that the doctors who work there work for the hospital. In fact, the ER doctors are usually employed by a company which in turn has a contract to supply the hospitals with an adequate number of doctors. If something goes wrong, it is the ER company, and not the hospital which is liable for the injury, and not the hospital.

Hospitals further try to protect themselves by putting signs in the ER that the doctors are independent contractors, and they may also put some type of disclaimer in the forms that the patient fills out and signs upon arrival in the ER. How many people coming to the ER when they are sick or injured focus on those signs and disclaimers? Lawyers - - maybe. Everyone else - - unlikely. Even if a patient understands the significance of those signs and documents, the reality is that patients really have no choice other than get up and try another hospital emergency room.

The bottom line is that hospital ads are just like all other advertisements: they are trying to sell a product. Don't rely on them. Go to a well-respected hospital, assuming there is one near you. Hope you get a good emergency room doctor, and do your homework to choose your doctor, even if you end up in the hospital.

Intelligent people differ on whether the new Affordable Health Care Act, also called "Obamacare," is good for our country. In this posting I hope to address one of the criticisms of Obamacare, namely, that somehow the government will have a say in deciding the medical care you receive and will prevent your doctor from doing what s/he believes is in your best interest. Those same people in essence argue that private insurance somehow does not interfere with the doctor-patient relationship that currently exists.

For years, critics of universal health care programs have argued that the government will come between you and your doctor. The argument is that the government will somehow have a say in what tests the doctor can order, what medicines the doctor can prescribe, what procedures should be performed. The best way to test those claims is to examine how the how the two government-sponsored health care programs, Medicare and Medicaid, actually work.

Everyone over 65 years of age is covered by Medicare Part A which covers hospital bills. Medicare Part B, which is voluntary but which almost everyone takes, covers doctor bills. What Medicare does not do is prevent a patient from going to the doctor of his/her choice. As long as the doctor registers with Medicare, which all doctors can do, Medicare will pay for the doctor's services. Further, Medicare does not restrict the types of tests, treatments, etc. that the doctor performs. That is between you and your doctor. Medicaid, which covers the indigent, works in a similar fashion.

There is a major problem with Medicare, however. Medicare pays doctors based on services rendered. The reimbursement rates have been going down steadily, so that doctors are receiving less than they used to. As a result, many doctors are refusing to accept new Medicare patients.

On the other hand, those of us with private health insurance often find that our insurance companies refuse to pay for prescriptions, tests and procedures ordered by our doctors. People who work for insurance companies decide whether a test or treatment is necessary. In other words, it doesn't matter that your doctor thinks a test or procedure is necessary, it is a stranger who holds the purse strings who effectively makes the decision.

Insurance companies also restrict you to seeing certain doctors. Every insurance plan has "in-network" doctors who have contracts with the insurance company setting forth the amount that the insurance company will pay for any particular office visit, test or procedure. If your insurance plan changes, your doctor may no longer be "in-network". In that situation, you would have to either change doctors or pay most if not all of the doctor's bills. Unlike with Medicare, private health insurers force you to use their doctors, whether they are good or bad, whether you like them or not, and it doesn't matter if you've been seeing the same doctor for 20 years whom you trust and with whom you have a great relationship.

Similarly, insurance companies limit the medications you can get. The insurance company decides if there is a cheaper medication for what ails you, and if there is they will likely refuse to pay for the drug ordered by your doctor. Once again, it is the insurance company that is making medical decisions that impact your life.

There are valid criticisms of Obamacare, but interference in the doctor-patient relationship is not one of them.

Medicine is considered a science. But it takes the skill and experience of a doctor to interpret the scientific evidence in order to diagnose and treat our illnesses. Doctors rely on medical history, physical examination and tests. How your doctor interprets the evidence is the key to diagnosis and treatment. Yet, different doctors looking at the same set of facts may come to different conclusions. Often, the patients has to sort out what doctors tell them and figure out whose opinion to rely on.

Medical decision making depends on many factors, including interpretations from the behind the scene doctors; radiologists and pathologists. Radiologists interpret x-rays, CT scans, MRIs, and other tests that produce a visual image. Pathologists look at specimens, blood, tissue and organs in order to identify disease processes. For example, if a lump on a breast is identified, a portion of it will be cut out and sent to a pathologist who will report on whether there is cancer or not. However, two pathologists might interpret the sample differently. The same thing happens with radiologists. Two radiologists can look at the same image and come to opposite conclusions. Obviously you aren't going to ask that every x-ray, CT scan or MRI be read by two or more radiologists. But, as Patrick Malone recommends, it is a good idea to get a second opinion where: (1) the test is read as normal "but your body is telling you that something is wrong"; (2) the report reflects uncertainty on the part of the radiologist; (3) the report doesn't address the reason for the test; and (4) the report is generated by a general radiologist, rather than a sub-specialist radiologist.

Another area where second opinions are vital is when surgery is involved. First and foremost, make sure you have a good surgeon. All surgeries have inherent risks. Complications from general anesthesia, risk of infection and bad outcomes happen all the time. If a doctor is recommending surgery, ask a second surgeon for his or her recommendation.

Another thing to check before going under the knife is to find out all about your surgeon and his/her qualifications. In Georgia, the Composite Board of medicine has a web site where you can check out where your doctor went to medical school, where s/he was trained, the type of special training the doctor has and if the doctor is board certified. See our February 6, 2013 posting for additional information about choosing a doctor.

If you know a nurse who works in the hospital, ask her about the doctor. Nurses see the doctors every day. They know how the doctors treat their patients, and the nurses who work in the operating rooms see the surgeons at work every day. In recommending a surgeon, your primary care physician usually relies on the surgeon's reputation, although we had one case where the only reason a doctor gave for calling in the particular specialist was that he had the specialist's cell phone number. Before you let a doctor cut you open, do your homework.

The drug industry is huge. Over 3 billion prescriptions are filled in the United States every year. Drugs are advertised on television and in magazines. Have you listened to all the bad side effects that are rattled off on TV, or read the two pages of information in magazine advertisements. The fact is that the drug companies are advertising to us, the consumer. We, in turn, ask our doctors to prescribe the latest and greatest thing. The problem is that the latest is often far from the greatest.

There are some drugs that have been in use for decades, work perfectly well, and are relatively inexpensive. Yet, the drug companies are constantly pushing the "new and improved" drugs. Sometimes they are better; sometimes not. But the reason the drug companies constantly push new drugs is the huge profit that those drugs generate. New drugs can be patented. That means no one else can sell the generic version of that drug for the life of the patent.

A huge problem is that many of the drugs that are approved today may be withdrawn in a year or two after unexpected and dangerous side effects, or even deaths, are reported. While the drug companies test new drugs and present their findings to the Food and Drug Administration (FDA) for approval, it is often not until a drug is widely disseminated that problems may become known. This has occurred time and time again, often with dire consequences for patients injured by these drugs. That's the reason there are major drug lawsuits, such as the ones involving Vioxx which is thought to have caused 60,000 deaths from problems not discovered until five years after the drug was introduced. Many other drugs, such as Chantix, Phen-fen and Yaz, once thought completely safe, were later found to have very serious side effects that resulted in tens of thousands of serious injuries. If there is an existing drug that does the same thing that as the new drug your doctor wants to give you, ask for the older one. Let someone else be the guinea pig. Of course, if a new drug is the only treatment for an illness, you may have no choice, especially if you have a serious illness.

Aside from drugs that are dangerous in and of themselves, there are times when doctors prescribe drugs for "off label" use. Drug companies develop and tests drugs for limited purposes. FDA approval is given for only the particular uses for which the drug was tested, and the drug companies are permitted to advertise the drug only for those specified purposes. Your doctor, however, is not similarly restricted. Once a drug is FDA approved, any doctor can prescribe that drug for anything under the sun. There are often sound reasons for such off label use. For example, Neurontin was developed as an anti-seizure medication. Over time, physicians realized that Neurontin worked as a non-narcotic pain reliever, and it is now widely used for that purpose.

Unfortunately, doctors sometimes prescribe drugs for off label use where there is little evidence that the drug is effective for that use. The internet makes it easy to check if the drug is for an approved use or not. If the drug is for an off label use, ask your doctor why it was prescribed for you.

Another major problem is drug interactions. The reason your doctor always asks what drugs you are taking is to make sure that the combination of drugs will not cause new problems. That is a good reason to always bring a list of your medications and doses to every doctor's appointment. Also, try to use one pharmacy to buy your drugs. The pharmacist can frequently spot a potential problem with drug interactions. That only works if the same pharmacy fills all your prescriptions.

There are bad doctors, just as there are bad lawyers, bad accountants, and bad congressmen. It is extremely difficult to find out if your doctor is "bad". There are some clear indicia that a doctor may not be the right one for you.

Every state has a medical board that licenses physicians. In Georgia, it's the Composite Board of Medicine. There is a public website where basic information about every doctor can be found: education, training, hospital affiliations, specialty boards. If the doctor has been disciplined by the Medical Board there is a link to the public discipline, although in our experience the Medical Board conveniently fails to put all of their published orders on the website and makes you call the Board to get the document. Unfortunately, those public discipline records are few and far between. Those records may tell us that a doctor had a drug or alcohol problem. Sometime, but rarely, you can find an instance in which a doctor actually harmed a patient.

Besides the negative information that can be found on the Board's website is some potentially useful information. In Georgia you can find out where the doctor went to college, where he or she went to medical school and the training the doctor received after medical school. There are plenty of good doctors who didn't go to Harvard medical school. What is vitally important is what type of training the doctor received and whether the doctor is "board certified". Training for a doctor is a residency, where the new doctor works under the direct supervision of a fully trained doctor, called an attending, and gets on the job training. Over the training period the young doctor is given more and more responsibility.

A doctor can hang out a shingle after a single year of internship, which is not much at all. You do not want to go to that doctor. You want to go to a doctor who has completed a full residency, the length of which varies with the specialty. A doctor who has completed a residency program and has a certain amount of training is eligible to become "board certified". There are 24 boards generally recognized by the medical community. To become board certified the doctor, after completing specialized training, must take both an oral and written examination. Only by passing those exams can the doctor be boarded.

There are many "boards" that a doctor can list on his resume that are not generally recognized by the medical profession. The American Board of Medical Specialties will tell you whether your doctor is certified and, if so, in which specialties. If the doctor lists a board not on that list, that doctor is not considered "boarded". While there are some very competent doctors who are not certified, your first choice should to a doctor who is board certified by a recognized board.

Non-boarded doctors can be dangerous. We have seen instances in which a doctor who trained to be an emergency room doctor (but who did not complete that training), decided to do plastic surgery. The reason we know about those doctors is because the victims of their malpractice came to us for assistance. Frequently those doctors prey on the Spanish speaking community who are happy to find a medical practice where everyone speaks their language. The patients who had plastic surgery from that doctor were at great risk.

You can try to find out if the doctor has been sued more than once. But again, that information is hard to come by. The Georgia Medical Board requires some disclosure about settlements or judgments, but not much information can be gleaned from that report. Just because a doctor has been sued, however, does not mean that she is not a good doctor, since many malpractice cases end up with the doctor winning. It is just something that every patient should be aware of.

Some doctors are great to talk to. They ask questions, they listen and they think. That's exactly how all of us want our doctors to act. Unfortunately, there are far too many doctors, who do not fall within that category. Patrick Malone has a number of suggestions on how to talk to doctors in order to get the best possible care.

Doctors are very busy. As insurance reimbursements decrease, from both private insurers and Medicare/Medicaid, doctors are forced to see more patients every day in order to make a living. That means the doctor has less time to talk, examine and diagnose each patient he sees. It is all too easy for the doctor to miss something the patient says, or fails to note what could be an important symptom.

A number of patient advocates recommend that the patient prepare a written (preferably typed) list of all the issues to be covered at the appointment and that several copies of the list be brought to the appointment. A copy of the list be should be handed to everyone the patient sees and the patient should insist that the list be put into her chart. That way you can be sure that all of your concerns will be discussed and that nothing will fall between the cracks. Most doctors will appreciate your efforts since it will make for a more efficient appointment.
Next, you should take away from the doctor's office certain information, at the very least, including: (1) a list of tests that were done and why; what medications are being started, for how long you will take them and what they are for, what you should expect the medications to do and how long it will take to get to that stage; (3) what medications are being stopped, and why; (4) problems to look out for before your next appointment; and (5) the date of your next appointment. Armed with this information, you will be better able discuss any issues that may arise after you leave the doctor's office.

Another issue that we all have is trying to reach the doctor. It is the rare doctor who will give you her contact information and welcome calls at all hours. More common is that your only contact is the doctor's office (or his answering service) where you will either have to leave a message or, if you are very fortunate, speak to a nurse. That may be enough on most occasions, but there are times when you believe you need to speak to a doctor. Our only advice is: DON'T BE SHY.

Get as many contact numbers as possible. In addition to the office phone number, get the fax and email address for the office. Ask your doctor what happens if you have a problem after hours. Get her cell phone number if you can. If not, at the very least get her email address.

Most people will not want to bother their doctor at night. Even if you get hold of the doctor, he won't have the benefit of examining you, something crucial to every diagnosis. If you are sick enough to need to call the doctor at night, then you're probably sick enough to go to the emergency room. Many medical issues can wait to the next morning, but sometimes a few hours can mean the difference between life and death.

"Team up with the best primary-care doctor you can find."

Medicine in the 21st century is highly compartmentalized. Most doctors are highly specialized: cardiologists, pulmonologists, surgeons, gynecologists, urologists, orthopedists, oncologists to name the most common. Hyper specialization is the trend. For example, not so long ago general surgeons performed breast surgery. Now there are specialists who restrict their surgical realm to breast surgery. These specialists have a narrow focus and they tend to treat a part of the body rather than the whole patient.

The primary care doctor or "PCP", who gives you an annual checkup and who is the person you go to when you are sick, is different. The primary care doctor is a generalist. These physicians are trained in either Family Medicine or Internal Medicine. But for the most part they do the same thing: take care of their patients over a period of years. They are the only doctors in the system who really get to know their patients.

Besides their role as the doctor patients see first and who generally treat their patients, PCPs have two crucial roles in patient care. First, it is generally the primary care physician who decides which specialists her patients need to see. Many insurance plans actually require that the patient receive a referral from the primary care physician in order to see a specialist. Many situations require referrals to more than one specialist. After the specialist sees the patient a report is prepared and sent to the primary care doctor. Because the specialists take care of specific parts of the body or specific types of diseases, a single physician is necessary to be the quarterback of the team, to analyze all of the data and recommendations from the physicians, and then to guide the patient through the entire process. It is the job of the PCP to put the pieces of the puzzle together because the odds are none of the other doctors will even see all the pieces, much less solve the puzzle.

Unfortunately, if you need to be hospitalized your primary care doctor will more likely than not be kept out of the loop and will be unable to direct your treatment. It used to be that a hospitalized patient would most likely be seen by his PCP. Internists had hospital privileges and they made rounds to check on their patients. That doesn't happen any longer. For the last ten years PCPs simply do not have the time to see patients in hospitals. Insurance reimbursement rates are so low that the doctors need to spend all their time in the office seeing patients. If they went to the hospital every day they would have trouble making ends meet. As a result, very few primary care physicians now have hospital privileges. Very often if a doctor wants a patient to be admitted to the hospital he will tell the patient to go the emergency room where he will be seen by a doctor who knows nothing about him.

The role of quarterback has been transferred to a group of doctors known as "hospitalists." Hospitalists are internal medicine doctors who work either for the hospital or for a company that has a contract with a hospital. Hospitalists are called to the emergency room to admit patients, and they are supposed to oversee the care of the patient while in the hospital.

In theory the hospitalist should fill the role formerly occupied by the primary care doctor, i.e., coordinating care among specialists and being responsible for the overall wellbeing of the patient. In practice, however, the supposed continuity of care is absent. Hospitalists work in shifts. In some practices they work seven days on and seven days off. Unlike the PCP who once retained responsibility for his/her patient throughout the patient's hospitalization, it is likely that such responsibility will remain with a single doctor.

We will discuss the ways to deal with this issue in a future entry.

Most of the time will correctly diagnose their patients and provide appropriate treatment. However, like all human beings, doctors can make mistakes. Most of the time mistakes in diagnosing are not a big deal. But, there are times when a wrong diagnosis can have serious, indeed fatal consequences.

Patrick Malone recommends that whenever you go to the doctor with an illness or injury, ask one crucial question: Doctor, what else could it be? That is not a question that most of us would be comfortable asking. Will the doctor think that we don't trust his judgment? Will we insult the doctor by asking the question? Ask it anyway!

Pushing the doctor into thinking about your case may be a matter of life or death. Doctors sometimes think they know what is wrong with you, and ignore the facts that don't fit within their diagnosis. Recently we represented an individual who had every single symptom of a major heart attack: sharp pain in his chest that came on suddenly and traveled down his left arm together with shortness of breath, and the worst pain he had ever had in his life, pain that wasn't helped with pain medication. He was driving a truck far from home. He called EMS and was taken to the nearest hospital. The doctor who saw him performed one test that gave him reason to think it was not a heart attack despite the fact our client had all the classical symptoms. Yet, after the doctor ruled out the other possibilities he thought of, he decided that our client just had a bad case of indigestion. Eight hours after our client arrived in the emergency room the doctor finally repeated the earlier tests which confirmed a massive heart attack. The only reason that the doctor ultimately did the second round of tests is that our client's daughter, a registered nurse, arrived at the hospital and insisted that the tests be done. Because of the time delay, the opportunity to do things which would have lessened the impact of the attack passed. As a result, the damage was much more severe than it would have been and our client is now unable to work and has an internal defibrillator which shocks him when his heart goes out of sync.

Our client had the unfortunate experience of being treated by a doctor who was mediocre at best. Our client was in too much pain to think clearly, so it was only after his daughter arrived at the hospital that the important "what else could it be" question was asked. If our client had had an advocate in the hospital right away, odds are that he would have been diagnosed hours earlier, with a much better outcome.

It is human nature that when we think we know an answer to something that it is very hard for someone to change our minds. Once a doctor makes an initial diagnosis, it is psychologically difficult for that doctor to admit making a mistake. As patients and patient advocates, it is our job to make sure that the doctor has thought through our situation, that the proper tests have been ordered and that all of the evidence fits in with the conclusion. This is called evidence based medicine which, unfortunately, is not used by all doctors.

What do you do if you think your doctor hasn't thought through your case and you're concerned that he's missing something? Simple. Go see another doctor. Get a second opinion. It is your absolute right to fire your doctor if you're unhappy. It's your health, it's your life and you and only you are responsible for it.

Having now represented individuals injured as the result of medical error for ten years (following 25 years doing corporate litigation), I now have a degree of insight into the medical profession that few non-medical professionals will likely obtain. That knowledge has led me to the conclusion that everyone must take an active role in the health care decisions that ultimately may impact their very lives.

I recently read a book by Patrick Malone, a highly regarded attorney who represents individuals injured by medical error entitled "The Life You Save: Nine Steps to Finding the Best Medical Care-and Avoiding the Worst" (Da Capo Lifelong Books 2009) which I heartily recommend that everyone read. Please note that Kaplan & Lukowski, its attorneys and staff have no professional connection to Mr. Malone and receive no compensation for recommending his book.

We believe that the material contained in Mr. Malone's book is important since we all deal with the medical profession and we all need to be proactive in protecting our health. In this series of posts we will summarize the important points outlined by Mr. Malone.

The first step is to make sure you have all of your medical records. We all know that doctors and hospitals keep records of our visits. What is less well known is that you have the absolute right to obtain a full and complete set of your own medical records. The only way to insure that all of your medical records are available for future use is to obtain and keep copies yourself. How many of us have lived in different cities? How many of us have changed doctors, often because our health insurance changed? How many of us have gone to doctors who have died or whose practices have closed? Only by making sure that we get and keep copies of our medical records can we be sure that they will be available in the future.

Why, one may ask, is it important for my doctors to have my old medical records? The simple answer is the changes in our medical history can be crucial. How does an EKG compare with one taken a few years earlier? A doctor can view the same EKG differently depending on whether it represents a change from the earlier test, or whether it is similar. A doctor will want to know if blood tests results have changed over time. Have your bad cholesterol numbers gone up or down? A man's PSA level may be within normal range, but still reflect a significant increase from levels seen a few years earlier. It is these types of changes in our medical history that are important to our doctors, and the only way to make sure that our doctors have those records is to get and keep a full set for yourself.

Any doctor will tell you that your medical history is probably the most important element in determining diagnosis and treatment. Do not expect your doctor to know your medical history. It's your responsibility to make sure that all of your doctors know your medical history.

Physicians are required to meet the "Standard of Care", ("SOC"). In Georgia, that means that degree of care and skill which, under similar circumstances, is ordinarily employed by the medical profession. In other words, the physician must perform services in a manner consistent with the prevailing medical standards. One question that crops up regularly is what standards apply; in other words, which group of doctors should performance be measured against. Unfortunately, this definition can allow doctors to provide less than optimal care.

By way of example, doctors receive their training in residency. The length of such residency varies from specialty to specialty. For example, general surgeons do a five year residency while Obstetrics and Gynecology (OB/GYN) is a four year residency. The general surgical resident focuses exclusively on performing surgery while the OB/GYN resident does obstetrics and non-surgical gynecology in addition to surgical procedures. Simply stated the general surgeon has significantly more surgical training than the typical OB/GYN, and there is no reason that OB/GYNs should not receive adequate surgical training. In fairness, it should be noted that there are OB/GYNs, in particular doctors who specialize in gynecologic cancer, who do post-resident fellowships and obtain additional surgical training.

This difference in training can means that undertrained gynecologists may not employ the safest method of performing surgery. By way of example, a gynecologist's training for performing a laparoscopic hysterectomy may not include identifying and protecting the ureter, which is the tube that connects the kidney to the bladder. As a result, there are numerous cases in which the ureter is cut.

If you ask a gynecologic oncologist, who has additional surgical training how to perform the surgery, they will tell you that it is essential that the ureter be identified and protected. That is the way the operation should be done. Yet, if you ask gynecologists who lack additional training, they will tell you that the surgeon who doesn't identify and protect the ureter is still within the standard of care because that is the way the typical gynecologist does the surgery.

What does this mean for the patient? First, the patient of the undertrained gynecologist is not getting the best available care. That patient has an increased risk for a urethral injury and, more likely than not, would not be successful in a medical malpractice case, at least in Georgia, because the undertrained surgeon did the procedure the same way that all of the other undertrained gynecologists do the procedure.

What needs to be done is to better train the gynecologists who do these procedures. The same holds true for other physicians who perform surgery for which their training is less than optimal. Better training, using established procedures, will go much farther in protecting patients than any medical malpractice lawsuit.