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This Week In Texas: Mignon McGarry's Memos

By Mignon McGarry
TOA Legislative Advocate
TOA Online Version: All Memos

Wednesday, April 14, 2010

The April 13th runoff results are in.  Two Texas House incumbents lost but one prevailed.  Three contests determined general election challengers for incumbents and three races were for open seats.  Don't forget about the three special elections in legislative districts for May 8th.  Those lineups have been set as well.

Democratic Primary runoffs:

House District 76: Naomi Gonzalez defeated incumbent Rep. Norma Chavez (D-El Paso).  There is no Republican in the race, so Gonzalez is the Representative-elect. 

Congressional District 14 –In the race to determine who will challenge Congressman Ron Paul (R-Surfside), Galena Park Chief-of-Police Robert Pruett defeated attorney Winston Cochran.

Republican Primary runoffs:

Texas Supreme Court: Judge Debra Lehrmann defeated Rick Green.  Lehrmann will face Democrat Justice Jim Sharp in November.

State Board of Education: Marsha Farney defeated Brian Russell.  Farney will face Democrat Judy Jennings in November.

House District 14: Rep. Fred Brown (R- Bryan) defeated challenger Buddy Winn.  Brown will return to the House because there is not a Democrat in this race. 

House District 47: In the battle for the right to challenge incumbent Rep. Valinda Bolton (D-Austin) in November, Paul Workman defeated Holly White Turner.

House District 52: In the battle to face incumbent Rep. Diana Maldonado (D-Round Rock) in November, Larry Gonzales defeated John Gordon.

House District 66: In the race to succeed former Rep. Brian McCall (R-Plano), Plano businessman Van Taylor defeated former Plano City Council member Mabrie Jackson. Taylor is the Representative-elect because no Democrat filed in this district.  McCall resigned his seat so there will be a special election on May 8 to fill the remainder of his current term.  Both Taylor and Jackson filed to run in the special election.

House District 83: Incumbent Rep. Delwin Jones (R-Lubbock) was defeated by accountant Charles Perry.  Perry is the Representative-elect because no Democrat filed. 

House District 84: In the race to replace retiring Rep. Carl Isett (R-Lubbock), John Frullo defeated Mark Griffin.  Frullo will face Democrat Carol Morgan in November's general election.

House District 127: In the race to replace retiring Rep. Joe Crabb (R-Kingwood), Humble school board president Dan Huberty defeated Dr. Susan Curling.  Huberty will take on Democrat Joe A. Montemayor in the general election.

House District 149: Jack O'Connor defeated Dianne Williams to win the right to face incumbent Rep. Hubert Vo (D-Houston) in the general election.

Congressional District 15 - Eddie Zamora of McAllen defeated former State Representative Paul B. Haring for the right to challenge Congressman Ruben Hinojosa (D-Mercedes) this November. 

Congressional District 17 – Bryan businessman Bill Flores defeated Waco businessman Rob Curnock for the right to take on Congressman Chet Edwards (D-Waco) in the General Election.

Congressional District 20 – San Antonio attorney Clayton Trotter defeated San Antonio business owner Jamie Martinez.  Trotter will take on Congressman Charlie Gonzalez (D-San Antonio) in November. 

Congressional District 23 – Congressman Ciro Rodriguez (D-San Antonio) will face San Antonio attorney/businessman Quico Canseco in the General Election.  Canseco defeated Will Hurd of Helotes  in the Republican Primary Run-off. 

Congressional District 27 – Corpus Christi computer consultant Blake Farenthold got  defeated Corpus Christi realtor James Duerr.  Farenthold will be the November challenger to Congressman Solomon Ortiz, Sr. (D-Corpus Christi). 

Congressional District 30 – DeSoto pastor Stephen Broden defeated Dallas attorney Shelton Goldstein to win the right to challenge Congresswoman Eddie Bernice Johnson (D-Dallas) in the general election.

Special Elections

There will be four candidates on the May 8 special election ballot to replace former Sen. Kip Averitt (R-Waco). The Texas Secretary of State certified three Republicans and one Democrat for that ballot.  The candidates include former state Sen. David Sibley, retired Army Lt. Col. Brian Birdwell and Burleson businessman Darren Yancy, all Republicans, and Democrat Gayle Avant, a Baylor University political scientist.

As noted earlier in this memo, Mabrie Jackson and Van Taylor filed to face each other once more in a May 8 special election to fill the current term of former Rep. Brian McCall (R-Plano).  Since Taylor won the runoff election, Jackson may choose to withdraw from the special election since the winner would only represent the district until January.

Eric Johnson, winner of the March Democratic primary in House District 100, was the only candidate to file for the May 8 special election called to fill the vacancy created by the resignation of former Rep. Terri Hodge (D-Dallas).  Hodge, who has pleaded guilty to tax-evasion charges, halted her re-election bid during the primary campaign and resigned earlier this year.  Under Texas law, Johnson can begin serving as the new representative for District 100 as soon as his victory is certified.

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TMLT Risk Management Department: Failure To Diagnose Infection

The following closed claim study is based on an actual malpractice claim from TMLT. This case illustrates how action or inaction on the part of physicians led to allegations of professional liability, and how risk management techniques may have either prevented the outcome or increased the physician's defensibility. The ultimate goal in presenting this case is to help physicians practice safe medicine. An attempt has been made to make the material less easy to identify. If you recognize your own claim, please be assured it is presented solely to emphasize the issues of the case.

Presentation
A 29-year-old woman came to the emergency department (ED) with back pain after slipping on a wet floor at work. She was diagnosed with a lumbar strain and given prescriptions for hydrocodone, carisoprodol, and naproxen. The patient was also instructed to follow up with an orthopedic physician. Her medical history included surgery for a herniated nucleus pulposis at age 17 as well as a history of Crohn's disease and Hepatitis C.

Physician action
The orthopedic physician first saw the patient three days after her ED visit, and diagnosed her with a strain of the lower back. He recommended conservative therapy, including continued medications and physical therapy for two weeks. Initially the patient showed improvement. However, after two months she reached a plateau and her condition deteriorated with increasing back pain. The orthopedist ordered an MRI of the spine and a discogram. These tests revealed a right paracentral disc protrusion and an L4-5 posterior annular tear/fissure with concordant provocative low back pain. A trial of epidural steroid injections provided partial relief but no lasting improvement. The orthopedist recommended a laminectomy. A second opinion was obtained, and it was determined that the patient was a good candidate for surgery.

At the preoperative visit it was noted that the patient was under the care of a psychiatrist who was treating her for depression. It was also noted that the orthopedist was concerned about further depression after the procedure. The risks and possible complications from surgery were discussed with the patient and an informed consent document was signed. Preoperative orders included prescriptions for cefazolin and dexamethasone. The patient underwent posterior laminectomy, foramenectomy and discectomy at L4-5 with posterior lumbar interbody fusion with autologous bone graft and BAK cage at L4-5. No surgical complications were noted. Portable x-rays taken intraoperatively and postoperatively showed the placement of the cages with bone graft to be proper and stable.

The patient was seen in the orthopedist's office three days after surgery, where it was noted that the "…wound looks excellent, no evidence of infection."

At an office visit four days later she was noted to have a chest cold with low-grade fever, a slight amount of blood-tinged wound drainage, and some swelling at the top of the incision. During the next follow-up visit, the orthopedist documented erythema and swelling at the top of the incision and intermittent fevers, which were thought to be from the patient's cold. An early stitch abscess was diagnosed at this visit and treated with cephalexin 500 mg qid.

Three days later the top part of her incision had dehisced and purulent drainage was noted. Her sedimentation rate was normal at 11, C-reactive protein was normal at <1.0, and her white blood count was normal at 7.0 with normal differential. She was admitted for irrigation and debridement of her wound. The orthopedist's operative report indicated a superficial infection with no evidence of fascial penetration. Cultures were obtained that grew methicillin-resistant Staphylococcus aureus (MRSA), resistant only to penicillin. The patient was discharged but readmitted the next day with a fever up to 105 degrees and increased pain. The orthopedist performed another debridement and exploration with removal of all sutures. The dissection was carried down to the interbody fusion with cultures taken at every level. These cultures again grew MRSA, and an infectious disease physician was consulted. The patient received cefazolin in the hospital and was discharged to home on oral minocycline.

The orthopedist next saw the patient in follow up 13 days later where she complained of a tender incision. The wound was aspirated and the cultures returned negative. Her medication was changed from minocycline to trimethoprim-sulfamethoxazole DS twice a day for the next 15 days. In two subsequent visits the wound drainage subsided. However, she continued to have a fever and axillary and inguinal lymphadenopathy was noted. An infectious disease physician was again consulted.

The patient was admitted to the hospital on two more occasions for wound debridement performed by the orthopedist. She later sought care from another orthopedic surgeon with eventual resolution of the wound. The patient continues to complain of back pain and disability.

Allegations
A lawsuit was filed against the orthopedic surgeon. The primary allegation was failure to timely diagnose and properly treat the patient's postoperative wound infection. A claim of vicarious liability was also filed against the defendant's group practice.

Legal implications
The consultant opinions in this case were essentially supportive. Three orthopedic physicians who reviewed the records all felt that the patient had adequate preoperative treatment and underwent an appropriate procedure. It was stated that infections are a predictable complication of surgery and hospital admissions in spite of all efforts to avoid them. As such, the occurrence of an infection does not represent a deviation from the standard of care.

One orthopedist was concerned that the patient was being treated for the infection as an outpatient. He stated that the treatment of a serious postoperative infection requires surgical debridement as often as necessary to keep the operative site clean. Additionally cultures should be obtained frequently to allow monitoring of the bacterial flora and the sensitivities. His estimation was that the defendant did not react rapidly enough or aggressively enough when the first indications of infection became apparent.

Several comments were made throughout the review that the defendant's notes were at times difficult, if not impossible, to read.

Disposition
This case was taken to trial, and the jury found in favor of the plaintiff. The jury also found the group practice was not responsible for the actions of the orthopedic surgeon.

Risk management considerations
The Physician Insurers Association of America collects closed claim data from malpractice carriers throughout the United States. In their latest Data Sharing Report, orthopedic surgery ranked fifth in the specialties with the highest total of paid claims. There were 862 claims closed in 2005 for orthopedic surgery. The most prevalent and expensive misadventure for claims closed between 1985 and 2005 was improper performance of a procedure. The fourth and fifth most prevalent misadventures were failure to supervise or monitor case and failure to recognize a complication of treatment. (1)

Risk management in the surgical practice is often a challenge because of the limited amount of time surgeons have to interact with their patients. The time to develop a trusting relationship with patients is before, not after, an adverse outcome. Therefore surgeons must make the most of each preoperative patient encounter to build patient-physician rapport. In addition, a legible and complete medical record becomes extremely important evidence in a lawsuit. Juries rely on the chart as the accurate account of the patient's care.

Source
1. PIAA Cumulative Data Sharing Report. 052 Edition; January 1, 1985 to December 31, 2002.

The information and opinions in this article should not be used or referred to as primary legal sources nor construed as establishing medical standards of care for the purposes of litigation, including expert testimony. The standard of care is dependent upon the particular facts and circumstances of each individual case and no generalization can be made that would apply to all cases. The information presented should be used as a resource, selected and adapted with the advice of your attorney. It is distributed with the understanding that neither Texas Medical Liability Trust nor Texas Medical Insurance Company is engaged in rendering legal services. © Copyright 2010 TMLT.

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Latest Additions To The TAPA Website

Ambiguous language could rive up rather than curtail health care cost
http://www.tapa.info/html/newsroom/2010/03_17_2010.html

Texas-sized tort reform
http://www.tapa.info/html/newsroom/2010/03_08_2010.html

Texas medical malpractice law survives challenge
http://www.tapa.info/html/newsroom/2010/03_15_2010.html

See Newsroom for past articles
http://www.tapa.info/html/Newsroom.html

Bills We Oppose (for harmful bills defeated in the most recent legislative session)
http://www.tapa.info/html/Bills_we_Oppose.html

Improving Access to Care

Reforms Produce Dramatic Gains in Access to Care  ( for stats and charts chronicling post reform physician growth)
http://www.tapa.info/html/Improving_Access.html

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API-C: Wrong Site Surgery - Continuing Problems

By:  Sherri Morrison, RN, CPHQ
Risk Manager, American Physicians Insurance Company (API)
www.api-c.com

The American Academy of Orthopaedic Surgeons (AAOS) originally published a report on wrong site surgery in September 1997, with a revision dated February 1998.  The AAOS recognized the importance of addressing this problem and called for national involvement to reduce and hopefully eliminate these events.

The Joint Commission followed with the Sentinel Event Program and National Patient Safety Goals to address the problem.  Universal protocol was implemented in order to prevent wrong site, wrong procedure, wrong person surgery. All accredited organizations are required to use a preoperative verification process and surgical site marking process. Since inception of the Joint Commission's Sentinel Event program, there has been a total of 867 cases reported as of September 30, 2009.¹

The Joint Commission issued two National Patient Safety Goals on January 1, 2003 to target wrong site surgery:

Goal 1 – To improve the accuracy of patient identification by using two patient identifiers and a "time-out" procedure before invasive procedures.² 

Goal 4 – To eliminate wrong-site, wrong-patient, and wrong-procedure surgery using a preoperative verification process to confirm documents and to implement a process to mark the surgical site and involve the patient/family.²

Both goals remain on the 2010 list of National Patient Safety Goals.  Wrong site surgery most commonly occurs in orthopaedic, general surgery, urological and neurosurgical procedures.  By using root cause analysis, the Joint Commission found the top causes of wrong site surgery to be communication failure (70%), procedural noncompliance (64%) and leadership (46%).³

According to the Physician Insurers Association of America (PIAA), wrong-site, wrong-patient surgery remains on the top 10 most prevalent medical misadventure.  The average indemnity payout in wrong site misadventure is $84,508.

There are several methods for eliminating wrong site surgery.  Some of these methods include:

1. The surgeon, in consultation with the patient and their family, should mark the site with permanent marker in the pre-operative area.

2. During spine surgery, intraoperative x-ray should be marked at the exact level to prevent surgery done on the wrong vertebral level.

3. Nursing staff in the pre-procedure area should do a verification of the right patient, procedure and correct marking of surgical site before the patient leaves the area.

4. In the operating room the surgical team should perform a "time-out" to confirm patient identity, correct procedure, site and include a double check of the patient's record and x-rays.

All surgical teams should adhere to universal protocol standards on all cases. Team members involved in the care of the patient should not be afraid to communicate with other members and raise any questions or concerns that need resolving before proceeding with the case.

Let's dig a little deeper and imagine the following scenarios which result from ‘minor' communication differences:

§ Physician legibility on orders and consent form not ideal. Is the surgery for "CTS" carpal tunnel syndrome or cubital tunnel syndrome?  Carpal tunnel release was done when the planned procedure was cubital tunnel release, even though it was the correct arm.

§ What do you call those fingers and the thumb?  Is it the thumb and first, second, third and fourth finger? Or, is it the thumb, second finger, third finger, fourth finger and fifth finger?  If you took a poll of the staff in your operating room, you would probably identify a potential risk right away because even different medical professionals often use different terminology. According to the coding guidelines and medical dictionary references digits of the hand are referred to as:

o    First finger = Thumb

o    Second finger  =  Index finger

o    Third finger =  Middle finger

o    Fourth finger = Ring finger

o    Fifth finger = Little finger

Consider adding these suggestions to your facility protocol:

§ Have all staff clarify which digit by noting the name of the finger (thumb, index, middle, ring, or little) along with the ‘number' of the finger.  Everyone understands thumb, index, middle, ring, or little while first, second, third, fourth and fifth can be confusing.

§ Patients should not be moved from the pre-operative area until the physician has arrived and checked-in with the patient as evidenced by the surgeons initials on or adjacent to the operative site.  Errors occur when surgeons are rushed and patients are prepped prior to arrival of the surgeon

¹Joint Commission. Sentinel event statistics as of September 30, 2009.  Available at:  http://www.jointcommission.org/SentinelEvents/Statistics.

²Joint Commission on Accreditation of Healthcare Organizations. 2003 JCAHO National Patient Safety Goals.  Available at: http://www.jcrinc.com/26813/newsletters/3746/.

³Joint Commission. Root causes of wrong site surgery. Available at http://www.jointcomission.org.

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Worth Repeating: Will Orthopaedic Patients Be Misled?

By Donna Parker
EVP, Texas Orthopaedic Association

Texas Board of Chiropractic Examiners

RULE 71.15 RECOGNIZED SPECIALTIES

On August 13, 2009, the Board adopted new rule 71.15 to "contain a listing of those areas of chiropractic practice that the Board has officially recognized as being a legitimate chiropractic specialty field of practice. Recognition of a chiropractic specialty by the Board is a multi-step process in which the Board reviews an application from a recognized organization that represents the specialty area." Texas Chiropractic Board Report – August 2009

Chiropractors around the country have added these specialty areas such as nutrition, acupuncture and homeopathy to "aid their patients in overcoming back pain, knee pain, neck pain, and hip pain." Chiropractors have also added areas such as "preventive health care and anti-aging to ease or help prevent arthritis pain and osteoarthritis; pain management techniques to improve coping skills; sports medicine, and chiropractic neurology for post-stroke care and central nervous system rehabilitation."

The TBCE minutes suggest that rule 71.15 was created and published because national organizations and academies had asked to be recognized in Texas as a "Chiropractic Specialty." Some of the academies or associations certifying chiropractic specialties on a national level include Chiropractic & Anti-Aging, Chiropractic & Pain Management, Chiropractic Radiology, Chiropractic & Homeopathy, Chiropractic Neurology, Chiropractic Pediatrics, Chiropractic Sports Medicine and . . . Chiropractic Orthopedics.

The Texas Board of Chiropractic Examiners Adopts Rule Concerning Recognized Specialties

On March 12, 2010, the Texas Board of Chiropractic Examiners published an adopted rule in the Texas Register concerning recognized specialties (35 Tex. Reg. 2156). Under the adopted rule, chiropractic orthopedics will be listed as a recognized specialty. The rule also outlines the qualifications and continuing education requirements for this specialty.

Chiropractic Radiology was one of the first specialties in Texas to be "recognized" by the TCBME. Chiropractic Acupuncture and Chiropractic Neurology have also been listed as specialties. One could definitely argue that the Texas public could be very confused or misled by chiropractors calling themselves radiologists, orthopedists or claiming their medical specialty is neurology. The Texas Occupations Code section states that a licensee shall not participate in "the use of any form of public communication which contains a false, fraudulent, misleading, deceptive, or unfair statement of claim, or which has the tendency or capacity to mislead or deceive the general public."

After checking with other physician organizations, it seems that to effectively address this issue we need to identify patients with stories of being deceived by the titles used by limited licensed health care providers. If your patients believed the chiropractor they saw was a physician and/or (particularly) an orthopedic surgeon, please let us know as this information can be given to the Texas Attorney General Consumer Protection Division and there can be a request for relief filed.

Contact: Donna C. Parker at 512-370-1505 or donna@toa.org

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