Wayne J. Guglielmo, MA
February 20, 2014
For Drug-Dealing Doctor, Up to 200 Years in Jail?
In late 2013, patient Courtney Canter brought a medical malpractice suit against California family physician Julio Gabriel Diaz, 64, known in some circles as the “Candy Man” for his willingness to supply his patients with a seemingly endless stream of controlled substances. In her suit, Canter claims that Diaz “got her addicted to drugs by overprescribing medications,” according to an article that went national on December 23.[1] The action, filed in Santa Barbara Superior Court, also names as plaintiffs Walgreens, CVS Caremark, and Long’s Drugs.
Canter isn’t the only person allegedly injured by Diaz, who in early 2012 was arrested on a variety of federal drug trafficking charges. In their arrest affidavit, prosecutors identified 11 patients who had died of drug overdoses while under Diaz’s care. The most recent death occurred after a male patient was said to have been prescribed more than 2000 pills in 6 weeks. But Diaz wasn’t charged with these deaths; instead, he pleaded guilty to several lesser crimes, including prescribing drugs to women in exchange for sex.
The severity of her addiction, Canter says, became painfully apparent after she fell down a flight of stairs. By that point, she claims, she was so physically and psychologically impaired she was forced into “hospitalizations, detoxification, and rehabilitation.”
Besides a pending medical malpractice case, the Candy Man also faces a new set of criminal charges, according to an Associated Press story appearing in the Huffington Post.[2] On January 9, Diaz pleaded guilty to 11 felony counts, although once again prosecutors have not brought charges against him in connection with the 11 patients who died from overdoses while under his care.
“You can achieve a just sentence by making the court aware of such deaths without necessarily charging or proving them,” said Assistant US Attorney Ann Luotto Wolf. What Wolf seems to be implying here is that even when not part of the actual charges, background information that paints a certain picture of the defendant can lead the court to hand down a more severe sentence than it might otherwise do.
Diaz is scheduled to return to court for sentencing on June 2. If the judge throws the book at him, he could face up to 200 years in jail and up to $10 million in fines.
Verbal Consent Helps Defend Oregon Medical Center
For the parents of a boy who lost his testicles during a 2009 surgery at Oregon Health & Science University, Portland, January 23, 2014, was a crushing legal defeat. After 6 days of trial, jurors required just 6 hours to conclude that doctors had obtained the necessary parental consent before proceeding with a single surgery to relocate both of the boy’s undescended testicles, points out a story on OregonLive.com, the Website of the Oregonian newspaper.[3]
In their suit, the plaintiffs had denied giving the medical center their written consent for a single-surgery procedure. Instead, they claimed, their written consent was for a 2-surgery procedure only, which their research convinced them would pose the smallest risk for their son losing his testicles.
But at trial, the medical center argued that surgeons “received the couple’s verbal consent to use the technique that was in the best interests of the boy — a technique that “could only be known once surgeons began operating and assessed the location of the testicles.”
In siding with the medical center, jurors refused to award the $1.4 million that the plaintiffs had sought for both their son’s medical expenses — including the twice-monthly testosterone injections he will need, beginning at age 11 years, for the rest of his life — and his later psychological trauma from such situations as gym locker rooms and moments of intimacy.
Health Reformers’ Nod to Malpractice Reform
Nearly 4 years after it was signed into law, the Affordable Care Act (ACA) has lost none of its ability to split the room, leaving proponents and detractors glaring at each other and promising to take their case to the public during 2014’s midterm elections.
But little of that debate is likely to center on medical malpractice reform, and for a good reason: Despite its other controversial provisions, the ACA largely sidestepped the question of such reform. Instead, it contains 2 relatively modest liability-related provisions, including the allocation of $25 million to support state-based malpractice and patient safety demonstrations. (The second provision extends federal malpractice protections to free clinics’ nonmedical personnel.)
This $25 million initiative — administered by the Agency for Healthcare Research and Quality — has now yielded a variety of findings, which have been set out in a group of papers included in the January issue of the journal Health Affairs.
In his introduction to the issue, Editor-in-Chief John K. Iglehart[4] identifies the common theme of the 5 liability-related articles. “Overall, the papers accentuate a movement that has been gathering momentum for a decade: the placement of a greater emphasis on patient safety, and open communication about medical errors and near misses, and fair compensation when patients are injured, rather than continued reliance on lengthy and bitter court battles.”
The lead article, for example, examines ways to encourage and support the implementation of what are known as “communication-and-resolution programs” (CRPs).[5] For hospitals and other healthcare organizations adopting the CRP model, the focus is 3-fold: identify medical injuries promptly; disclose them to patients compassionately; and resolve them quickly and fairly through patient engagement, explanation, and, where appropriate, apology and compensation.
Although none of these steps necessarily involves changing existing laws, researchers say, policy-makers can nevertheless ease the transition to CRP though several simple measures. One of these is addressing “the reputational and economic concerns of healthcare providers” who acknowledge their error and offer an apology. Among other concrete proposals, the authors suggest “clarifying practices governing National Practitioner Data Bank reporting.”
Further articles dig deeper into the weeds of CRP and other programs. In one study, for instance, researchers examined Ascension Health’s implementation of a “full-disclosure protocol” — a policy of open communication with patients and families about unexpected medical events — at 5 labor-and-delivery demonstration sites.[6] After careful training and buy-in from a variety of stakeholders — including doctors, hospitals, and liability insurers — “the rate of full disclosure had increased by 221 percent” after 27 months, researchers said.
Malpractice Reform Efforts Hit a Time Crunch
The clock is ticking for Georgia lawmakers who would like to revamp the state’s medical malpractice system, explains a January 14 posting on Georgia Health News.[7]
The time crunch is the result of a legislative session that has been shortened to accommodate party primaries, which will be held in May.
GOP State Senator Brandon Beach has been pushing his liability reform bill for 2 years, but both he and his party’s leadership know that it faces long odds during a short session.
The reason? Beach would like to replace the state’s current mechanism for resolving med-mal claims with an administrative system resembling Georgia’s existing workers’ compensation board. Under such a system, injured parties “would have their cases judged by a board of medical, legal, and business professionals rather than a jury of…[their] peers.” Reorganizing the process in this way, Beach argues, would help to reduce healthcare costs, in large part by reducing the practice of defensive medicine. If passed, Georgia’s Patient Compensation Board, as it would be called, would be the first in the nation.
But Georgia’s trial lawyers think Beach’s proposal flouts the constitution, denying “medical malpractice claimants their right to a jury trial.”
If the 2 sides are ever to work out a compromise, one thing is virtually certain: It’ll take a lot longer than 3 months to do so.