MEDICINE SAN ANTONIO
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MEDICINE SAN ANTONIO
When doctors say ‘I do’
THE OFFICIAL PUBLICATION OF THE BEXAR COUNTY MEDICAL SOCIETY
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JUNE 2015
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VOLUME 68 NO. 6
San Antonio Medicine is the official publication of Bexar County Medical Society (BCMS). All expressions of opinions and statements of supposed facts are published on the authority of the writer, and cannot be regarded as expressing the views of BCMS. Advertisements do not imply sponsorship of or endorsement by BCMS.
Problem-solving skills honed through two careers, family By Bruce Akright, MD, and Laura Akright, MD..........12
EDITORIAL CORRESPONDENCE: Bexar County Medical Society 6243 West IH-10, Suite 600 San Antonio, TX 78201-2092 Email: editor@bcms.org
‘I would never marry another doctor!’ By Paula Lyons, MD, and Jeffery Meffert, MD ..........14
MAGAZINE ADDRESS CHANGES: Call (210) 301-4391 or Email: membership@bcms.org
BCMS President’s Message ..............................................8
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BCMS Legislative and Advocacy News ..........................10 BCMS News ....................................................................11
Risk Management by TMLT ..........................................................................................................19
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Nonprofit: Moonlight Fund helps burn survivors and their families ..............................................22
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Opinion: Good recordkeeping essential for proving CME credits by Fred H. Olin, MD ..............16
Lifestyle: The DoSeum – new children’s museum hopes to spark a love of learning ..................24
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UTHSCSA Dean’s Message by Francisco González-Scarano, MD ........................................................26 Legal Ease: Do I have to? and How much? Part II of II, by George F. “Rick” Evans ..............................30 Business of Medicine: Costly reflections in the ‘Silver Tsunami’ by Dana A. Forgione, PhD, CPA, CFE ................................................................................................34 BCMS Circle of Friends Services Directory ............................................................................................37 Book Review: ‘Flashback’ Written by Michael Palmer, reviewed by Teresa C. Hayes, MD ..................40 In the Driver’s Seat ..................................................................................................................................43 Auto Review: Ford Escape, by Steve Schutz, MD ..................................................................................44
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4 San Antonio Medicine • June 2015
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San Antonio Medicine is published by SmithPrint, Inc. (Publisher) on behalf of the Bexar County Medical Society (BCMS). Reproduction in any manner in whole or part is prohibited without the express written consent of Bexar County Medical Society. Material contained herein does not necessarily reflect the opinion of BCMS or its staff. San Antonio Medicine, the Publisher and BCMS reserves the right to edit all material for clarity and space and assumes no responsibility for accuracy, errors or omissions. San Antonio Medicine does not knowingly accept false or misleading advertisements or editorial nor does the Publisher or BCMS assume responsibility should such advertising or editorial appear. Articles and photos are welcome and may be submitted to our office to be used subject to the discretion and review of the Publisher and BCMS. All real estate advertising is subject to the Federal Fair Housing Act of 1968, which makes it illegal to advertise “any preference limitation or discrimination based on race, color, religion, sex, handicap, familial status or national orgin, or an intention to make such preference limitation or discrimination.
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BOARD OF DIRECTORS
OFFICERS James L. Humphreys, MD, President Leah Hanselka Jacobson, MD, Vice President Maria M. Tiamson-Beato, MD, Treasurer Adam V. Ratner, MD, Secretary Jayesh B. Shah, MD, President-elect K. Ashok Kumar, MD, Immediate Past President
DIRECTORS Jorge Miguel Cavazos, MD, Member Josie Ann Cigarroa, MD, Member Kristi G. Clark, MD, Member John Robert Holcomb, MD, Member John Joseph Nava, MD, Member Carmen Perez, MD, Member Oscar Gilberto Ramirez, MD, Member Bernard T. Swift, Jr., DO, MPH, Member Miguel A. Vazquez, MD, Member Francisco Gonzalez-Scarano, MD, Medical School Representative Carlos Alberto Rosende, MD, Medical School Representative Carlayne E. Jackson, MD, Medical School Representative Bonnie Harriet Hartstein, MD, Military Representative Rebecca Christopherson, BCMS Alliance President Gerald Q. Greenfield Jr., MD, PA, Board of Censors Chair Donald L. Hilton Jr., MD, Board of Mediations Chair George F. "Rick" Evans Jr., General Counsel
CEO/EXECUTIVE DIRECTOR Stephen C. Fitzer
CHIEF OPERATING OFFICER Melody Newsom
DIRECTOR OF COMMUNICATIONS Susan A. Merkner
COMMUNICATIONS/ PUBLICATIONS COMMITTEE Fred H. Olin, MD, Chair Estrella M.C. deForster, MD, Member Jay S. Ellis Jr., MD, Member Jeffrey J. Meffert, MD, Member Rajam S. Ramamurthy, MD, Member J.J. Waller Jr., MD, Member
6 San Antonio Medicine • June 2015
PRESIDENT’S MESSAGE
Organized medicine seeks the broadest benefits for the majority of its constituents and their patients By James L. Humphreys, MD 2015 BCMS President
As I write this, I am sitting at the Texas Medical Associ-
Legislation is that any of these decisions by the organiza-
ation’s annual TexMed meeting in Austin. I am always im-
tion are carefully thought through and debated before any
pressed to see such a large group of physicians from all
action is taken. There isn’t always a clear-cut best choice
across the state coming together to share common experi-
for everyone when considering how to respond to a pro-
ences and frustrations and seeking solutions. It is thera-
posed bill or Texas Department of Insurance or Medicaid
peutic to see firsthand that you aren’t alone and that you
regulation. That said, a greater effort to make the reason-
have colleagues willing to volunteer their time to serve on
ing behind decisions taken by the organization is necessary
committees and councils for the greater good. We all face
in the name of transparency and better communication to
a lot of complicated issues that we need help with as we try
the membership. Often a strategy that seems foolish or
to have a viable practice in the face of an underfunded and
careless at first glance makes sense if the background for
inefficient healthcare system.
the decision and the possible consequences of not taking
The great challenge for organizations such as TMA is uni-
action are understood.
fying a fractious, territorial and generally difficult con-
If that improved communication can be achieved, it will
stituency. It is altogether too easy to forget that it is an
be that much easier for us to be unified in our efforts to im-
organization of people who genuinely have the intent of steer-
prove the healthcare system for our patients and ourselves.
ing legislative and regulatory agency agendas to the pathway
The more we allow ourselves to be divided and dilute our ef-
of repairing and rethinking the various glitches in our health-
forts with internecine fighting, the more onerous our practice
care delivery system for the broadest general benefit, especially
environments will become.
if a regulatory or legislative effort promoted by TMA seems to go against the niche interests of a certain specialty or geographic region. My personal experience from serving on the Council on
8 San Antonio Medicine • June 2015
James L. Humphreys, MD, is the 2015 president of the Bexar County Medical Society. He is a pathologist with Precision Pathology in San Antonio.
BCMS LEGISLATIVE AND ADVOCACY NEWS
84th
Regular legislative session closes; last First Tuesdays concludes
Rep. Lyle Larson (Dist. 122) (left) and Bill Hinchey, MD, visited during the April 30 Last Thursday event in the Capitol.
Minjarez sworn in as state representative By Mary E. Nava, MBA BCMS Chief Governmental and Community Relations Officer
The final two TMA/BCMS legislative events of the 84th regular session in Austin included a special “Last Thursday” held during TMA’s annual meeting, TexMed, on April 30, and the last “First Tuesdays” event on May 5. A big thanks to the following individuals who participated: Carmen Garza, MD; Pam Hall, MD; David Henkes, MD; Bill Hinchey, MD; James L. Mims, III, MD; Gabriel Ortiz, MD; Raymond Osbourn, MD; Jennifer Rushton, MD; Ryan Van Ramshorst, MD; Courtney Hobza, medical student, and Jennifer Lewis, BCMS Alliance president-elect. The newly elected state representative for Texas House District 124, Ina Minjarez, was sworn in during the week of April 27. Minjarez assumes the seat formerly held by now-Sen. Jose Menendez (Dist. 26). At the time of this writing, the 84th regular legislative session was scheduled to end sine die on June 1. Stay tuned for more information on the session wrap-up and results of bills signed into law or vetoed. A complete wrap-up will be coming soon. Look for additional highlights in the BCMS newsletter, The Weekly Dose. For local discussion on this and other legislative advocacy topics, consider joining the BCMS Legislative and Socioeconomics Committee by contacting Mary Nava at mary.nava@bcms.org.
10 San Antonio Medicine • June 2015
David Henkes, MD (from left); Bill Hinchey, MD; Maegan Collins, legislative staffer in the office of Speaker Joe Straus; Jennifer Rushton, MD, and Jennifer Lewis discussed medicine’s issues during the April 30 Last Thursday visit to the Capitol.
BCMS First Tuesdays participants paused for a photo May 5 with Sen. Jose Menendez (Dist. 26): (back row from left) James L. Mims, III, MD; Menendez; Pam Hall, MD; Ryan Van Ramshorst, MD; (front row from left) Gabriel Ortiz, MD; Carmen Garza, MD; Courtney Hobza; Mary Nava and Raymond Osbourn, MD.
Pausing for a brief visit with Sen. Carlos Uresti (Dist. 19) during the May 5 First Tuesdays were (back row from left) Pam Hall, MD; Mary Nava; Ryan Van Ramshorst, MD; James L. Mims, III, MD; (front row from left) Carmen Garza, MD; Uresti; Raymond Osbourn, MD, and Courtney Hobza.
BCMS NEWS
BCMS WISHES TO THANK ITS CAPITAL CAMPAIGN MAJOR DONORS Thank you to the following major contributors to the BCMS Capital Campaign in support of the medical society’s new building now under construction: As BCMS First Tuesdays participants visited with Shannon Houston, legislative staffer in the office of Rep. Lyle Larson (foreground), Larson approached the mic on the House floor to discuss a bill (seen on TV monitor).
BB&T Bank Favorite Healthcare Staffing Inc. Frost Bank Gastroenterology Consultants of San Antonio H-E-B Mednax/Pediatrix Northside Ford Dealerships/Mark Wood Donations of all amounts are appreciated. Pledges may be paid over multiple years. All donations are 100 percent tax deductible; payable to the Bexar County Medical Library Association, tax ID 74-0510530. For more information, call BCMS at 210-301-4383.
Honoring Our Past ... Building Our Future! A group of pediatricians and subspecialists visited with Eduardo Zerbe, legislative staffer in the office of Rep. Ruth Jones McClendon (Dist. 120), during the May 5 First Tuesdays: (standing from left) Carmen Garza, MD; Zerbe; Ryan Van Ramshorst, MD, and James L. Mims, III, MD.
Construction continues on the site of the new BCMS office building.
Offering congratulations to the new state representative for House District 124, Ina Minjarez, during the May 5 First Tuesdays visit were (from left) Raymond Osbourn, MD; Courtney Hobza; Ryan Van Ramshorst, MD; Minjarez; James L. Mims, III, MD; Carmen Garza, MD; Pam Hall, MD, and Mary Nava.
Architectural rendering of new BCMS office building, 4334 North Loop 1604 West. visit us at www.bcms.org
11
WHEN DOCTORS SAY ‘I DO’
Problem-solving skills honed through two careers, family By Bruce Akright, MD, and Laura Akright, MD
Our journey together began at Southern Methodist University in
gether provided a strong bond, as we shared both the excitement
1975 — meeting in a complex variables math course. We were both
as well as the frustrations of being medical students. We do not
pre-med math majors, and had decided to head into the profession
miss having to scrape ice off a car at 4 a.m. to get in for surgery
of medicine without any real idea what that entailed.
rounds, donating blood for spending money, or having to go to
Both of us really enjoyed being math majors, and with hindsight
laundromats.
we believe what it gave us was an ability to problem-solve that has
After we married in 1977, we shared the same last name. This
served us well in our marriage and our medical careers. We do not
proved difficult during internship and residency in San Antonio with
remember ANY of the complex math we learned, but we do have the
overhead paging and operators who got us mixed up. We have stories
ability to work through difficult and complex situations and prob-
from working at the Robert B. Green and the Bexar County Hospital
lems. Raising three boys and maintaining two careers has provided
that only those of our age would understand. We forged close friend-
an adequate number of problems for us to work with!
ships with fellow interns and residents, and always enjoy catching up and re-sharing those stories.
SCRAPING ICE OFF A CAR
The years of early private practice and raising small children were
We graduated from Washington University School of Medicine
challenging ones. We always seemed to be “juggling.” A major house
in St. Louis in 1980. The experiences we had in medical school to-
fire in 1993 and relocation for a year helped to put things in per-
12 San Antonio Medicine • June 2015
WHEN DOCTORS SAY ‘I DO’
spective, and we worked to simplify our schedules. Both of us had
South Africa and recently in Brazil. Last summer, we were cheering the
orthopaedic injuries related to ski trips and decided that was not the
U.S. team on the Copacabana beach after their victory over Ghana.
sport for us to pursue as a couple. However, our two younger sons
This was at the time the Spurs had just won the NBA Finals, and we
both decided to attend the University of Colorado so the vacations
were wearing our Spurs jerseys in Brazil. We had more people stop us
there obviously had a positive impact.
and cheer with us in every language imaginable! Our journey together has been an amazing one – we never lose
FACING NEW ISSUES
sight of how fortunate we are to be able to practice medicine and
The later years of private practice have had their own issues with
care for people all the years that we have. We work to communicate
focus on technology and reimbursement. By this point in our careers,
and to always try to problem-solve together. There have been chal-
taking care of and communicating with patients is relatively easy
lenges that seemed insurmountable, but our faith is strong, and we
compared to all the other issues we face. We have morning walks
have always believed in each other. We will be celebrating our 38th
with the dogs at 5:30 every day, and that is our time to catch up with
anniversary in June – planning to do so in Venice, one of our fa-
all that is going on.
vorite cities.
We have shared a love of travel since our first trip to Africa in 1983. We have been fortunate to be able to travel to all parts of the world
Bruce Akright, MD, practices at
over the years, and we always have new places we would like to see.
Northeast OB/GYN Associates. Laura
Our boys instilled in us a love for soccer as well since that was the sport
Akright, MD, practices at Northeast
we lived and breathed with them during the teen years. We have been
Endocrinology Associates. Both physi-
able to take our boys to the last three World Cup games in Germany,
cians are BCMS members.
visit us at www.bcms.org
13
WHEN DOCTORS SAY ‘I DO’
Photo courtesy Jeffrey Meffert, MD, and Paula Lyons, MD
‘I would never marry another doctor!’ By Paula Lyons, MD, and Jeffrey Meffert, MD
We met in anatomy lab (tanks No. 19 and No. 21) and liked each other well enough, but it was the long trips to and from Floresville when paired together for the “Psychosocial Aspects of Healthcare” where we got to know each other well enough to agree that to get involved with another physician would be really stupid. Surely the complexities and sacrifices needed in a two-profession household would be far too much to make it work. We enjoyed each other’s company enough that we got over that and decided the only way the U.S. Air Force would keep us together after medical school would be if we were married. It isn’t clear now who pro14 San Antonio Medicine • June 2015
posed to whom but it was likely on a Volksmarsch where one of us said, “I guess we need to get married before the match,” and the other said, “I guess so.”
FIRST BIG DECISION The first big couples’ decision was Jeff deciding to apply for a family practice residency instead of transitional internship. In the residency match now, couples may designate one of the applicants as the “first priority,” after which the other applicant will be matched according to the results of the first. This is especially im-
WHEN DOCTORS SAY ‘I DO’
portant to consider when one residency or preferred location is more competitive than the other. “No one is allowed any time off on this rotation…unless you are getting married, in which case you can have a day off.” At the time, our attending on the inpatient psychiatry service didn’t know we were already planning on getting married. Our classmates were invited to the reception in Jeff ’s parents’ back yard, not knowing we had gotten married that morning because we didn’t want our loan-broke friends to feel obligated to bring presents. Our honeymoon was a Sunday night at La Mansion and a Monday off as our attending reluctantly stood by his flippant comment. Tuesday we chaperoned a ward full of psychiatric patients at a Brackenridge Park picnic which we took as an omen of the challenges we would face trying to balance our married and professional lives. Over the next several years, work and training limited time off together with one of us either in-house, on-call or sleeping off a bad shift all the time. Even after residency is complete, it can be easy to fall into conflicting work and call schedules so that relaxed quality time for the twin professional family, especially once children enter the mix, may be hard to find. Another physician couple we know holds Friday nights sacred (Jeff ’s new boss warned him, “I don’t do Friday call”) as a date night, and this is one way to manage this difficult balance. How did we manage child sick days, doctor appointments, transporting two children to different schools, parent-teacher conferences, school performances, sports events and family vacations? Fortunately, Paula’s schedule was more flexible than Jeff ’s, so it all worked out. And looking back, it was all a blur. We started together in an Air Force Family Practice clinic and when Jeff was transferred to Alaska in an operational medicine position, Paula left the service and worked in a private practice setting until it was time to move back stateside. It can be a significant chal-
lenge to the dual-physician family if one member is in a fulfilling and profitable practice situation while the other needs to move on. Once again a decision must be made as to what is essential, what is survivable, and whose practice takes priority. Reluctant to get involved in another private practice, Paula took a job in urgent care with the expectation that another move was right around the corner. In fact, Jeff spent the last 16 years of his Air Force career moving around San Antonio, and Paula just celebrated her 25th year at Texas MedClinic. Sometimes things work out fine, but the stress of unanticipated or unwanted practice changes will strain any relationship.
LOVE AND PATIENCE A recent British Medical Journal article suggests that rather than having a higher divorce rate, physicians divorce less than the general population as a whole, although how this applies to dual-physician families is not clear. The dual income is nice and removes some of the financial stresses some families suffer, but it comes with the price of uncoordinated long hours, unpredictable ability to be where the family wants you to be, and periodic career upheaval if one partner needs to move. With love and patience it can be done, and we both feel lucky that we “married well.” Speaking of omens, we were married on the day Mount St. Helens blew up, so we can honestly say the “earth moved” on our wedding day. This summer we will continue our occasionally volcanic marriage by celebrating our 35th anniversary in Pompeii. The trip to Italy was carefully planned to be sure we would be back in Texas for the first birthday of our first grandson. This life adventure isn’t over yet. Paula Lyons, MD, is a family medicine practitioner at Texas MedClinic. Jeffrey Meffert, MD, is a dermatologist at the University of Texas Health Science Center San Antonio and a BCMS member. visit us at www.bcms.org
15
OPINION
Good recordkeeping essential for proving CME credits By Fred H. Olin, MD So, you’re at home, it’s a beautiful day, and you happen to look
ethics and/or professional responsibility.”
out the window and see the postman pushing some mail into your
“OK,” you say. “No problem. I’ve gone to several professional
street-side mailbox. It’s the first week of the month, so you know
meetings, grand rounds, and so on, just shouldn’t be a problem.”
that it’s probably mostly one form of junk mail or another: sale
Then you come to the line that says, “Please provide copies of cer-
brochures, “free” meals that just happen to require you to listen to a
tificates to document medical ethics and all other formal hours and
pitch about retirement plans, campaign literature for politicians who
also a log of informal hours, if applicable, which should include dates
think that you live in a completely different district than you actually
and hours completed.” Certificates? Who has certificates? And what
do, maybe a bill or two, and a much-anticipated issue of San Antonio
are “informal” hours? The letter says, “Informal hours include activ-
Medicine. But wait! What’s this? It’s an envelope with the return ad-
ities such as reading journals, attending case conferences, etc.” Wait
dress of the Texas Medical Board! Now, try to convince me that your
a minute. Who writes down the time he spends reading journals?
little heart didn’t skip a beat, or that you didn’t gasp with apprehen-
Come on, guys! Are you serious?
sion. Maybe not as much as you would have if it said Internal Revenue Service, but still…
Turns out that they are.
I received one of those TMB letters not long ago, and it turned
There are some good things in the very small-print copy of the
out to be seemingly benign: I had been chosen, totally at random, to
Texas Administrative Code, Title 22, Part 9, Chapter 166, §Section
confirm that I had obtained (as I had claimed on my registration
166.2 Continuing Medical Education that the TMB is kind enough
form) enough CME credits over my last two-year registration period.
to send to you. For example, if you managed to get more than the
The requirements are that you have to have at least 48 credits every
48 Category 1 credits, you can carry the excess forward and apply
24 months, and that at least 24 of them are AMA/PRA Category 1
them toward the next registration period’s requirements. That’s nice,
or its equivalent from the American Orthopaedic Association, the
and I had 8.25 extras. I made a note.
American Academy of Family Physicians, the Texas Medical Associ-
Anyway, being a compulsive soul, every time I went to a course or
ation, etc. Furthermore, at least two of those 24 must be in “medical
meeting, I made an entry into an Excel spreadsheet. I’ve been doing Continued on page 18
16 San Antonio Medicine • June 2015
OPINION
Continued from page 16
so since 1980 and have nearly 300 meetings of one sort or another
KEEP RECORDS!
on it. So, I took a look at the 2012 to 2014 list, and there were more
If at all possible, get the certificate of attendance, with the appro-
than enough, and there were two hours of ethics, both from the med-
priate language and documentation of the credits allowed, at the time
ical school’s orthopaedic department’s grand rounds. I had certifi-
of the meeting.
cates for the Academy meetings I’d been to, and for all of the online material I had completed, but none from grand rounds. I found out
Don’t lose/misplace the certificates…in fact, maybe make a couple of copies and file them somewhere else.
how to get those and downloaded them. I was checking their list
Be ready a month or two after your biennial registration ends to
against mine and noticed that neither of the ethics lectures was there.
get the letter. It may not happen, but if it does, you’ll be equipped.
Oh, boy! After a bunch of phone calls to some really nice and helpful
Epilogue: A couple of weeks after I wrote this, I received a letter
people at UTHSCSA’s CME office and the orthopaedic department,
from the TMB saying that I had passed their scrutiny, and all was
they finally were able to prove to themselves that I had indeed been
well. This was about five weeks after I had submitted the material.
there and to get that information into their database so that I could download a complete copy to send to the board. All’s well that ends well, right? Well, I don’t really know. I haven’t heard from the board that my stuff was adequate, but it’s only been a month or so since I sent it in. We shall see. Here are today’s lessons:
18 San Antonio Medicine • June 2015
Fred H. Olin, MD, is a semi-retired orthopaedic surgeon who was greatly relieved when he finally got all of that documentation together.
RISK MANAGEMENT
Failure to treat postoperative infection By TMLT Risk Management Department
This closed claim study is based on an actual malpractice claim from Texas Medical Liability Trust (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 physicians’ defensibility. The ultimate goal in presenting this case is to help physicians practice safe medicine. An attempt has been made to make the material more difficult to identify. If you recognize your own claim, please be assured it is presented solely to emphasize the issues of the case.
PRESENTATION A 69-year-old woman was referred to an orthopaedic surgeon for a defect in her Achilles tendon. She was diagnosed with a chronic rupture of the Achilles tendon. The patient was given the options of either living with the defect or undergoing reconstruction to regain strength and function. The patient chose to proceed with the reconstruction. The orthopaedic surgeon — the defendant in this case — performed a repair with transfer of the flexor hallucis muscle. The surgery was uneventful, and the patient was administered a one-time dose of vancomycin post-operatively. Vancomycin was selected because the patient was allergic to penicillin. The patient was discharged the following day with instructions to leave her foot in a splint. She was to follow up with the orthopaedic surgeon within 10 days.
PHYSICIAN ACTION The patient followed up with the surgeon eight days after surgery. She was noted to have some skin irritation and some minimal drainage. Because the wound was slow to heal, the surgeon made the decision to leave the sutures in place for another week. The patient returned a week later, and the sutures were removed. The wound was observed to have some minimal wound granulation and drainage from the incision. These observations of the wound were written in a different handwriting from the surgeon’s, but were not initialed. The surgeon believed that they were in his nurse’s hand-
writing, but he could not be sure. It was also unclear if the entry was what the patient had relayed to the nurse, or if those observations were made by the nurse herself. The patient was fitted with a splint to continue immobilization of the foot and was told to only remove the splint to bathe. She was also advised to complete wet-to-dry dressing changes, to monitor the wound for signs of infection, and to return to the office in four weeks. Nearly one week after this office visit, the patient called the surgeon’s office and received a prescription for ciprofloxacin. The only record of this encounter, which occurred five days after the patient’s last visit, was the pharmacy record. There is no record of the phone call, what was discussed, or the reason for the prescription. Two days later, the patient came to the surgeon’s office complaining that her foot was “feeling hot” and noting a “hole” in the wound. She was not wearing her splint. The patient claimed that she was not advised to do wet-to-dry dressing changes, but instead was told by the surgeon’s nurse to clean the wound with peroxide, then dress with dry gauze. The surgeon examined the wound, noted minimal cellulitis, but did not feel the area was hot. He advised the patient to continue taking ciprofloxacin, discontinue the improper peroxide cleanings, and proceed with wet-to-dry dressing changes. The patient called three days later, while the surgeon was on vacation, to report that the wound drainage was getting worse and now had an odor. The patient was advised to come to the office, and was seen by the surgeon’s partner. This office note was incomplete, only stating: “post-op wound infection, culture taken.” This second surgeon, not realizing the patient had a penicillin allergy, gave the patient a prescription for amoxicillin clavulanate. Fortunately, this mistake was caught by the pharmacy, and another antibiotic was substituted. The patient stated in her deposition that this was what made her lose confidence in the surgeon’s office. She sought treatment from a wound care facility four days later. The wound care physician diagnosed her with full thickness dehiscense, necrotic subcutaneous fatty tissue, and necrotic areas of the tendon in the wound base. Six days later after the patient’s appointment with her surgeon’s Continued on page 20 visit us at www.bcms.org
19
RISK MANAGEMENT
Continued from page 19
partner, the lab results were returned indicating staphylococcus and actinomyces meyeri infections. The patient was called and asked to come to the surgeon’s office that day. She was emergently referred to a plastic surgeon, who admitted her for IV antibiotics and several debridements of the wound.
ALLEGATIONS A lawsuit was filed against the orthopaedic surgeon, alleging that he failed to timely and adequately treat the patient’s post-operative infection. She claimed that function of her lower leg was impaired as a result of the infection and the failed Achilles tendon graft. The patient underwent subsequent surgeries with a plastic surgeon to remove the original tendon transfer due to necrosis of the tissue. Tissue from the patient’s wrist was transplanted to the original surgical site to fill the void left by the removed tissue. The patient claimed the subsequent surgeries resulted in the loss of sensation in her fingers.
LEGAL IMPLICATIONS TMLT consultants who reviewed this case were generally supportive of the orthopaedic surgeon. Infection is a known complication of Achilles tendon repair. There also appeared to be some question of patient compliance. However, all of the consultants had some concerns about the lack of adequate documentation pertaining to justification of the antibiotics chosen. The surgeon’s partner had also missed elements of the documentation, and did not provide detail about why he chose amoxicillin clavulanate. However, the only defendant in this lawsuit was the orthopaedic surgeon who performed the repair.
DISPOSITION This case was settled on behalf of the orthopaedic surgeon.
RISK MANAGEMENT CONSIDERATIONS Although infection is a known complication inherent in any surgical procedure, there were several problems with the surgeon’s documentation that complicated the defense of this case. It is recommended that all phone calls between the patient and physician be documented, particularly calls in which medical advice is given. There was no record of the patient’s call that triggered a prescription for ciprofloxacin, or reason for the change in the treatment plan. Documentation of the patient’s symptoms, description of the
20 San Antonio Medicine • June 2015
wound and any noted changes, and the physician’s reasoning behind treatment not only creates a thorough chart, but in this case, it would have provided additional information to the surgeon’s partner when he saw the patient. Implementing a protocol that requires all staff making entries in the chart to initial or sign their entries will assist in identifying who made the entry in case it needs to be verified at a later date. It is recommended that physicians have a policy and procedure manual for the practice to ensure that all personnel are operating under the same guidelines, as expected by the physician. This may include any routine instructions that are commonly given to patients, such as how to perform a wet-to-dry dressing change. It is further recommended that important instructions to the patient be developed into a handout that can be given to the patient and to document that the handout was given. Patients often become confused when instructions are given in the office, which can make compliance difficult. Should a claim occur, the printed instructions could be used as evidence to show precisely what information was given to the patient. It is appropriate for medication allergies to be consistently and boldly documented on the front of the chart to prevent them from being overlooked. All physicians in the same practice should standardize how allergy information is displayed if they cover for one other. It was fortunate that the pharmacy caught the error before the prescription was filled; however, the error made the patient lose confidence in the practice. A patient and/or the patient’s family are more likely to file a lawsuit if they perceive that the care they are receiving is substandard. 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 2015 TMLT. Texas Medical Liability Trust is a BCMS Circle of Friends sponsor at the platinum level. BCMS does not endorse products or services.
NON-PROFIT
Moonlight Fund helps burn survivors and their families Special to San Antonio Medicine In April 1998, burn survivor Celia Belt walked onto the burn unit at Brooke Army Medical Center (now the San Antonio Military Medical Center) to volunteer her time with burn survivors and their families. Before doing so, she underwent three months of interviews before being allowed access to the unit. She also took part in infectious-disease control and burn-unit training classes required of incoming burn-unit medical personnel. As a volunteer, she spent her time visiting with patients and their families. She also helped facilitate support group meetings on the unit. It did not take long for her to identify a gap in services for the burn community. During this time, she met burn patient Henry Coffeen III. Together they created the Moonlight Fund, a 501(c)3 organization, incorporated in Texas. Their partnership has helped thousands of burn survivors and their families. Henry and Celia were assisted in their efforts by executives at Ernst & Young and burn-unit personnel.
HELP WITHOUT DELAY Emotional, financial and in-kind goods and services all are made available to patients and their families. The fund is the only nonprofit of its kind, offering assistance from the onset of the accident through rehabilitation and into the many years of recovery. The fund provides this help without delay, providing immediate assistance in the hour of need. Original goals for the fund were to manage an organization that was modest on
22 San Antonio Medicine • June 2015
overhead, generous in giving and on call 24/7. Early fundraising efforts included an airshow from 1999 to 2009, with attendance near 20,000 at the final airshow hosted. The events not only provided income for the funds efforts but also a measure of public awareness regarding the needs of those suffering with burn injuries. Due to the large number of wounded soldiers needing handson emotional care, and the move of the Moonlight Fund’s co-founder to the Fort Worth area, the shows were disbanded. Thus, the fund depends on foundation grants, fundraising galas and personal donations to continue its efforts. There exists a substantial lack of services for burn survivors and their families. The average length of a hospital stay is 93 days, and depending on the severity of the injuries, physical and occupational therapy can take several years. Without a good protocol of after-care, many patients find themselves back in the hospital for ongoing surgeries to release scar tissue that otherwise would have been treated by good rehabilitative care. There also exists a need for ongoing counseling for patients and their families. The trauma caused by these life-changing injuries has a long-lasting effect on all involved. Civilian patients often are uninsured or under-insured and do not receive the necessary rehabilitation that is crucial to a full recovery. Active-duty injuries incurred by military personnel due to conflicts abroad also need assistance. Family members many
times find themselves as primary caregivers and need the support of an outside organization, such as the Moonlight Fund. The fund was operating at the onset of the war in the Middle East, and has adapted to the increased needs and added programs to assist new groups of burn and blast survivors. The war has provided for a complex number of injuries, with most patients also suffering from post-traumatic stress syndrome and traumatic brain injuries. The Moonlight Fund steps in to cover any gap in services to wounded soldiers and their families. In 2007, the fund expanded its services to include those burn and blast survivors who have undergone amputations. Moonlight also introduced a retreat program that year, offering a weekend setting for burn and blast survivors hosted in the peaceful surroundings of the Hill Country. Activities such as archery, horseback riding, hiking, skeet shooting and painting classes provide a measure of physical and emotional therapy. Attendees find plenty of opportunities to build comradery and establish friendships. Patients, caregivers and their children learn they are not alone in their struggle to regain their health and wellness. Relaxation massages and yoga sessions are available throughout the weekend. Patients and families have the opportunity to meet others experiencing some of the same struggles. They find it a “safe place” to share their story and gain the emotional healing needed for them to continue in their healing process and prepare them to re-enter the world.
NON-PROFIT
TOP NONPROFIT In 2012, the Moonlight Fund was chosen as the top nonprofit in the United States by the Fisher House/Newman’s Own Foundation. This award was given specifically for the group’s healing retreat program. Over the years, the fund has received many awards and recognitions, yet it is the care of those less fortunate that brings the greatest joy. Today, the Moonlight Fund assists with everything from wound-care supplies, education costs, rehab, counseling, building of ramps and furnishing homes, among other options, while operating with the same founding principles of maintaining the lowest overhead possible and never restricting available funds to those in need. Original cofounder Celia Belt continues to serve as the fund’s executive director. She is supported in her efforts by an active and caring board of directors and a grants manager. Volunteers also play a big part in assisting with the retreats, fundraising and office assistance. Many volunteers are those who have been assisted by the fund in the past. The circle of giving continues with their attentive and dedicated efforts. With the increase in patient requests, the fund held a major fundraiser in 2014, which raised $67,000. This year’s follow-up will be held Sept. 26 at the Eilan Hotel, 17103 La Canterra Parkway. The evening will feature entertainment by aerialists, cirque entertainers and music by the Statesboro Revue band. Guest speaker will be Dale Petroskey, former White House assistant press secretary under President Ronald Reagan. Guests will have the opportunity to meet Shilo Harris, Iraq war veteran, burn survivor and author of the book, Steel Will. For event tickets and more information, go to www.moonlightfund.org or call Celia Belt at 210-445-0971.
Courtesy photos. From the top: A family helped by the Moonlight Fund plays together. Retreatants gather at an Easter event sponsored by the Moonlight Fund. Moonlight Fund executive director Celia Belt speaks at an event attended by U.S. Army Gen. Martin E. Dempsey, chairman of the Joint Chiefs of Staff.
LIFESTYLE
The DoSeum
Courtesy photos - The DoSeum
San Antonio’s new children’s museum hopes to spark a love of learning Special to San Antonio Medicine
Young minds have a new place to grow in San Antonio – The DoSeum. San Antonio’s museum for kids, which opened in early June, offers limitless opportunities for children to discover, explore, create and learn. With world-class exhibits and sustainable, thoughtful architecture, it is poised to be one of the leading children’s museums in the nation. At the DoSeum, nearly 60 percent of the exhibits focus on concepts in science, technology, engineering and math (STEM), while others emphasize literacy and the creative arts to create a diverse learning experience. Education is critical to the success of any city, and the goal of the DoSeum is to spark a love of learning in children that will stay with them as they grow. In every nook of the fascinating space, children will find something to explore, to play with, to puzzle over and to create. 24 San Antonio Medicine • June 2015
Kids will be able to use their inner creativity and curiosity to feed their appetite for learning as they choose from an impressive menu of world-class exhibits that include an interactive robot named Baxter, a spy academy filled with math challenges, an interactive puppet parade, a musical staircase, a children’s river, and a significant outdoor exhibit area with plenty of water features, shade and an ADA-accessible treehouse.
ENVIRONMENTAL SCIENCE The museum will educate by using every inch of the 104,000 square feet of indooroutdoor exhibit space. The building’s sustainable architecture serves as a teaching aid in environmental science. The eco-friendly building is equipped to produce up to 25 percent of the facility’s energy by way of 616 solar panels, to capture approximately 180,000 gallons of HVAC condensate per
year to be used for on-site irrigation, and it will strive to recycle 90 percent of waste materials gathered from daily operations. The DoSeum is set to receive LEED (Leadership in Energy and Environmental Design) Gold certification from the U.S. Green Building Council and is among the most sustainable museums in Texas. “From the day we open our doors, the DoSeum will be one of the most beautiful, exciting and interactive children’s museums in the entire United States,” said Vanessa Lacoss Hurd, chief executive director the DoSeum. “It will be a place where children tap their inner creativity and curiosity, and where science, math, technology and art become a playground for their minds and bodies. Our hope is that the DoSeum will spark a genuine zeal for learning that they will take with them through childhood and beyond.” When planning the design of the building,
LIFESTYLE
one important detail was making sure the space would be accessible to children from all backgrounds. The entire museum is ADA-accessible. Spanish-language signage and graphics are placed throughout the space, and museum-goers will have the option to interact with exhibits in their preferred language. Additionally, the DoSeum will roll out new programs and partnerships in an effort to reach children in every corner of the community. In fall 2015, the Little Doers program will welcome its first class of preschool-age children. The weekly program was inspired by San Antonio’s commitment to quality early childhood education, and it will offer a playbased, rich learning environment specifically targeted to each child’s age and development. These initiatives are just the start of what the DoSeum plans to contribute to the city’s goal of achieving a globally competitive workforce.
The DoSeum will serve as an inclusive community partner, making its extensive educational resources available to local educators. As a trusted resource for schools, the museum will offer professional development resources, provide a learning space to gather, and share educational resources for teachers to turn ideas into action, inside and outside of the classroom.
RENTAL SPACE AVAILABLE In addition to being a space for learning, the DoSeum is equipped with charming rental space available for social and professional events. Proceeds from facility rentals will directly benefit the museum and its educational programming for the community. “Children’s museums can be powerful players in a community’s learning landscape,” said Laura Huerta Migus, executive director of the Association of Children’s Mu-
seums. “They are unique in their ability to convene stakeholders from all sectors who are interested and invested in the success and well-being of children and families.” “The DoSeum will certainly confirm San Antonio’s place in the global network of cities striving to create civic environments for healthy children, empowered parents and vibrant workforces,” she added. The DoSeum is expected to attract more than 400,000 visitors annually to experience its innovative approach to education, and is another influential addition to the cultural corridor along Broadway that includes the Pearl Brewery complex, Witte Museum, Brackenridge Park, San Antonio Botanical Garden, San Antonio Zoo, San Antonio Museum of Art and McNay Art Museum. For more information, please visit TheDoSeum.org. visit us at www.bcms.org
25
UTHSCSA DEAN’S MESSAGE The University Health System Sky Tower will be the site of the Heart Vascular Institute, which will offer multi-disciplinary collaborative care for heart disease. Courtesy photo
HEART VASCULAR INSTITUTE:
A premier partnership in a premier facility By Francisco González-Scarano, MD
The University of Texas School of Medicine and University Health System (UHS) are collaboratively developing a comprehensive Heart Vascular Institute (HVI) that will be a premier model for the care of patients with cardiovascular-related disease. The leadership teams from both institutions are focused on evolving the cardiovascular service line toward a care delivery model that we believe will become the norm in the future. The opening of the new UHS Sky Tower was a major milestone in many areas. First, it supports the population growth in San Antonio and the ability to further develop our healthcare delivery system. Additionally, the Sky Tower also will be the site of our HVI, which will carry multi-disciplinary collaborative care for heart disease to an unprecedented level for our region. According to John Calhoon, MD, CT Surgery Chair and HVI Director, the HVI facility’s design answers the question, “How can we absolutely be the best place for any heart patient?” The HVI will combine the specialties and skillsets that are required for the care of cardiovascular patients. These include the many cardiology subspecialties (invasive, non-invasive, electrophysiology, etc.) as well as cardiothoracic and vascular surgery, anesthesiology, cardiac rehabilitation, imaging, plus the many other diagnostic services, clinical staff and advanced practice providers in26 San Antonio Medicine • June 2015
volved in cardiac care. The HVI will bring them all together to offer a streamlined and seamless inpatient and outpatient solution. Historically, these specialties and subspecialties have worked semi-independently, interacting and consulting with one another in the care of patients, but not working as an integrated team. In this new facility, all cardiovascular and related services will be structured and function as one, to continually improve the patient experience and their outcomes.
CONTIGUOUS PHYSICAL SPACE Chief of the Division of Cardiology, Steven Bailey, MD, who has been deeply involved in the planning process, characterizes it as an extension and expansion of what we have been doing for the past 20 years. Cardiology has worked very closely with the surgical specialists for a long time, but they have never had a contiguous physical space. Dr. Bailey says he expects to see best-in-class outcomes in an environment that lowers costs on what he calls “a global scale.” He also points out we will be the first in the region to do this in a completely comprehensive manner, in a single facility for inpatient and outpatient care. Dr. Calhoon points out that the HVI will care for children as well as adults, calling it a “one-stop shop for cardiac care, for life.”
UTHSCSA DEAN’S MESSAGE Dr. Calhoon, who performs delicate congenital repair procedures as well as bypass surgery and valve replacements on patients of all ages, points out that the focus here is on the entire team and partnering in new ways that are better for the patient. The improved outcomes and efficiencies also will be better for the payors and employers. We have already organized along these lines with the UT Medicine HVI clinic located in the MARC, creating a unique collaboration of cardiology, cardiac surgery and comprehensive cardiac diagnostic services in partnership with UHS. Edward Y. Sako, MD, PhD, who is Vice Chairman, CT Surgery, and Chief of Adult Cardiac Surgery, reiterates Dr. Bailey’s sentiment: This arrangement formalizes something we have been doing for quite some time at a high level of quality. A great example is the UT Medicine/UHS TAVR program (Transcatheter Aortic Valve Replacement), where the cardiologists and cardiac surgeons work side-by-side. Teams composed of cardiologists and CT surgeons provide multi-disciplinary approach in the initial evaluation, diagnostic and rehabilitation processes. They also work together in the hybrid cath lab/operating room located at UHS. The TAVR team was part of the pre-FDA approval process for TAVR devices and procedures, performing the first case in Central and South Texas in 2012.
EXPECTED OPENING The new HVI facility will occupy the first floor of the UHS Sky Tower – approximately 47,000 square feet of space – housing catheterization labs, non-invasive cardiology suites, imaging modalities, echocardiography and electrophysiology. The build-out will take approximately two years, with the opening anticipated soon thereafter. This key piece of the HVI complements the newly finished cardiac and vascular operating rooms and 60 new cardiovascular inpatient beds. Tim Brierty, University Hospital Chief Executive Officer, has been involved in planning the HVI from its conception; he notes that the power of this new operating structure is not just the dayto-day coordination of care, but the fully engaged approach of the providers and the hospital. It is a true integration of all these different services, with both organizations coordinated at a very deep, strategic level. The HVI will also work with “Variable Acuity Units,” a concept that is evolving around a multipurpose hospital room, allowing providers to bring a diverse array of care to the patient, instead of transferring the patient to another unit or floor. The less you have to move a patient — which takes more time, requires more staff time and is more stressful — the better the patient experience. Continued on page 28
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27
UTHSCSA DEAN’S MESSAGE Continued from page 27
Michael Little, MD, Director of Cardiothoracic and Transplant Anesthesiology and also a member of the planning committee, sees this as the next step in the path for cardiac service lines. He points out that we now have eight cardiac anesthesiologists who have all worked very closely in the catheterization laboratory and the operating room with all the cardiologists, surgeons, perfusion specialists and other technicians. The team has established firm relationships among their members, which translates into better communication and trust. This effort serves as a template for the School of Medicine and UHS in partnership by realigning patient care and clinical services from the more traditional departmental lines to focus on the needs of our shared patients. It is the right vision for our shared future. The new structures will better support patient outcomes in a comprehensive, multi-disciplinary manner, as opposed to focusing on supporting individual medical specialty services.
PHILANTHROPIC FUNDING An important part of this strategy will be tracking and reporting outcomes, quality and cost. This is something we have done in many of the service lines, but this new group gives us the opportunity to see a broader perspective that will be crucial to growing and improving
28 San Antonio Medicine • June 2015
the quality of our care. With an estimated cost of $45 million for building out the new facility, only a portion will come from UHS. The remainder will have to be raised philanthropically. As a member of the University Health System Foundation Board, Dr. Calhoon and other board members will be reaching out to community leaders and others to help complete the funding for the new facility. This new, comprehensive Heart and Vascular Institute facility has the potential to truly be one of the best in the country for anyone, of any age suffering from a congenital heart ailment or heart disease of any type. Programs such this are the future of healthcare and an important part of the solution for dealing with the increase in heart disease in San Antonio and South Texas, as well as across the country. The School of Medicine at the UT Health Science Center is committed to making this vision a reality. Francisco González-Scarano, MD, is dean of the School of Medicine, vice president for medical affairs, professor of neurology, and the John P. Howe III, MD, Distinguished Chair in Health Policy at the University of Texas Health Science Center at San Antonio. His email address is scarano@uthscsa.edu.
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(210) 772-7777
LEGAL EASE
‘Do I have to?’ and ‘How much?’ Part II of II By George F. “Rick” Evans
Last month’s article discussed the issue of whether or not a
each judge to decide. The rule doesn’t expressly say you have to
physician can be required to testify in a civil or criminal proceed-
pay the person for his time. It just says the person must be pro-
ing. I hope I answered the question, even if it may not be the
tected against any expenses incurred in complying with the sub-
one you wanted to hear. This month let’s move on and talk about
poena. Some judges will be sympathetic to the argument that a
how much money, if any, you can get if and when you do testify.
doctor who has to cancel all his Monday afternoon patients to give testimony should be compensated for that lost income.
QUESTION TWO
Other judges may feel a rich doctor can afford a few hours to tes-
How much, if anything, can you charge if you testify? To
tify, especially if the other side doesn’t have much money with
answer that we have to first decide if you have to testify because
which to pay for the doctor’s time. There’s simply no clear answer
you’re somehow involved with one of the parties (i.e., a medical
to whether you have the right to be paid for your time. There is,
eyewitness of sorts) or whether you’ve got no relationship at all
however, a strategy you can use which will be discussed later in
with the parties or the case (i.e., when you’re asked to be an
this article.
expert).
Now, let’s assume you’re not involved as a “medical eyewitness”
Let’s assume you are somehow involved. Let’s assume that you
but are just being asked to serve as an expert. As discussed pre-
provided some care at some time to one of the litigants in the
viously, you don’t have to do this. It’s entirely your choice. But
case. To use the phrase from last month’s article, you’re a “medical
if you do, how much can you charge?
eyewitness” to some event and therefore can be compelled to tes-
The short answer is as much as you want – as much as the mar-
tify just like any eyewitness. Things get tricky here. Technically,
ket will bear. In other words, as much as the other side is willing
any of the attorneys to the parties can have you served with a sub-
to pay that you’re willing to accept for your time. There are no
poena to testify and all you’ll get is the few dollars that comes at-
laws, rules or regulations which say how much. It’s up to you.
tached to each subpoena. It’s literally just a few dollars. Seriously.
Now, that said, let me at least give you some guidelines based on
But can you get more or is that all?
almost four decades of experience.
Texas Rule of Civil Procedure 176.7 provides that any person
Experts in any field aren’t impossible to find. They even ad-
who issues a subpoena must take reasonable steps to avoid im-
vertise in many legal publications, on the Internet, in blogs, etc.
posing an expense on the person who must respond to the sub-
So, if you want to be an expert and earn some extra dollars, be
poena. It further states the court may require that a witness be
aware that you can price yourself out of the market. You’re not
compensated for any undue hardship. What that means is up to
irreplaceable. Plus, when an expert charges too much per hour,
30 San Antonio Medicine • June 2015
LEGAL EASE
the expert’s credibility is placed in jeopardy because he starts to
The next time you receive a subpoena or get a call from an at-
look like a paid gun for hire who’ll say anything if the price is
torney asking you to testify, ask yourself if somehow you’re in-
right. Jurors don’t expect you to lose time from your practice for
volved with one of the parties to the case. If you are, you may be
free, but they may question your objectivity if by testifying you’re
a medical “eyewitness” and therefore forced to testify without pay.
raking in two or three times what you earn caring for patients.
But, here’s what you can do.
Many attorneys won’t hire such experts; not because they can’t
Option one: call your medical malpractice insurer, tell them
afford it, but because they know they won’t be credible. So, here
you’ve received a subpoena or a demand to testify regarding one
are some guidelines.
of your patients. They’ll usually be happy to have one of their
I’ve found that many doctors charge about $250 to $350 per
local defense attorneys handle it for you. Ask for the name of the
hour. That’s just an average based on experience. The rarer and
attorney they’re assigning to you, call him, and tell him one of
more specialized the physician, the higher the rate goes. A neu-
two things. One is that you don’t want to testify at all and want
rosurgeon may charge three times that amount and, in some
to avoid it if legally possible. Or, two, that you’re willing to testify
cases, even as much as $1,000 per hour. And some family prac-
but you want to be paid for your time.
tice doctors may charge only $100 or $150 per hour. But, having
If you don’t want to testify at all, you can work with your at-
hired and having deposed hundreds of doctors over the years,
torney to outline all the things that you might truthfully say
throughout the entire country, I can tell you that probably 75
that could actually harm the attorney’s case. If the list is im-
percent of them charge somewhere between $200 and $500 per
pressive enough, the attorney requesting your testimony may
hour. Unless you’re from a relatively rare specialty, charging a lot
well back off when he hears all the downsides to your testimony.
more than $500 will be a little difficult. There is, however, one
Who wants a witness who hurts them? If your testimony looks
small refinement to these general observations as discussed below.
like it may damage the case, the attorney almost assuredly will
Although there are plenty of exceptions to this rule, I’ve found
drop the subpoena.
that, on balance, physicians testifying for the plaintiff tend to
Or, if you are willing to testify but want compensation, your
charge a tad more than those testifying for the defense. Yes, there
attorney can argue Rule 176. Plus, while trying to convince the
are plenty of exceptions, but I’m talking about a general rule.
other side that Rule 176 requires you be paid for your lost in-
Maybe it’s because they think they can afford it. Maybe it’s be-
come, your attorney can further remind opposing counsel that a
cause they think they’re going out on a limb by testifying for the
happy, contented witness will be much easier to work with than
plaintiffs. The difference may not be great but I have found a
one who is hostile. Paid witnesses are happy. Unpaid witnesses
difference. Perhaps something in the neighborhood of $100 or
aren’t. If your rate is reasonable, the other side will typically
even $200 more per hour. By no means is this always the case,
agree. If not, you may get a judge who understands the economic
but it’s happened with enough frequency that I feel confident it’s
burden to you and require the other side to pay for your time.
a legitimate observation worth sharing with you.
Option two: If you don’t want to use an attorney, there’s no reason you can’t do it yourself or have your office manager make
PRACTICAL STRATEGIES No attorney wants to have a witness testify if that witness is mad at them. An uncooperative, recalcitrant witness can easily
the same arguments as outlined above. I just think having a skilled professional do it for you works better, and your med-mal carrier will usually provide one to you free of charge.
harm a case, whereas a contented, happy witness wanting to help can make all the difference in the world. OK, that’s not rocket science, right? But that’s how you can sometimes make sure you get paid even when you may not have a clear right to payment even though Rule 176 requires you be protected against “expense.” Here’s how to do it.
Let me close with a few practical pointers on this subject. Rule 176 also requires that an attorney issuing a subpoena protect the witness against other burdens apart from expense. It specifically provides the witness must be provided “an adequate time for compliance.” If you receive a subpoena on late Continued on page 32 visit us at www.bcms.org
31
LEGAL EASE Continued from page 31
Friday afternoon to testify first thing Monday morning, you can argue this is unreasonable and that you require more advance notice. A judge will likely cut you some slack. Not necessarily weeks of time, but most judges will try to work with your schedule so it won’t wreak havoc with it, especially if you paint it in terms of what it does to your patients rather than how it inconveniences you. When the other side has agreed to pay for your time and you’ve agreed upon a rate, you may want to ask to be paid in advance rather than after the fact. This is particularly true when dealing with attorneys you don’t know and haven’t worked with before. And for law firms that aren’t known to you to be well established and respected. And for lawyers outside of Texas and, frankly, outside your own community. Ask for a retainer that you will keep like a landlord keeps the first month’s deposit. You’ll still bill hourly and, at the very end of your services, you’ll bill from the retainer and refund the balance. Some doctors working as experts will bill at different rates depending on what they’re doing. Not uncommonly, I’ve heard experts bill at one rate for reviewing medical records and writing a report, a slightly higher rate for testifying in deposition, and third, even higher rate, for testifying at trial. Because your hourly rate should be a replacement for the income you lost caring for patients, this stair-step system of rates doesn’t make sense to some juries. Your lost income should be the same regardless of whether you’re setting time aside to review records or to give a deposition. Yet, this happens with enough frequency that you can do it, if you want, without much problem. Some witnesses working as experts like to charge a flat rate for certain events such as giving a deposition or coming to a trial. This rate is fixed regardless of how much time is required. For example, you may decide to charge $3,000 for a deposition whether it takes two hours or 8 hours. The rationale is that, because you don’t know how long the event may take, you have to set aside an entire morning, afternoon, or the full day. If it only takes one hour and you cancelled all afternoon appointments, you might lose money on the deal. There’s no hard and fast rule here. You might charge hourly with the condition that it be no less than “X” amount. Again, the choice is yours and is subject only to the limits of the market place and your imagination. The “other side” is entitled to know how much you charge, how much you’ve been paid, and what other financial arrangements you have with any party that has retained your services.
32 San Antonio Medicine • June 2015
If it’s unusually high, or the income you generate working as an expert is substantial when evaluated over the course of time, expect some harsh cross examination. The other side will challenge you as a paid gun for hire rather than a disinterested, objective expert witness. You can’t charge based on the outcome of a case. Don’t even go there. And your rates can’t vary depending on the outcome of the case. Again someplace you shouldn’t go. So, that’s your primer on whether you have to testify and, if you do, can you require payment for your time and how much you probably can fairly charge. The rules aren’t crystal clear, carved in stone, and easy to apply. But this should give you a good sense of what you can and can’t do. George F. “Rick” Evans Jr., is the founding partner of Evans, Rowe & Holbrook. A graduate of Marshall College of Law, his practice for 36 years has been exclusively dedicated to the representation of physicians and other healthcare providers. Mr. Evans is the BCMS general counsel.
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33
BUSINESS OF MEDICINE
Costly reflections in the ‘Silver Tsunami’ By Dana A. Forgione, PhD, CPA, CMA, CFE
Ten thousand a day. My baby-boom generation is turning age 65 and enrolling in Medicare at the rate of 10,000 a day. My parents’ World War II generation is dying at the rate of 1,000 a day. That’s a 10-to-1 increase in new Medicare beneficiaries. Actually, I’ve only got a little silver on the sideburns — mostly I think I’m losing my hair at the rate of 10,000 strands a day. And what is the cost of this great silver-haired tsunami? And why does it seem so unnoticeable right now? To address the latter first, no tsunami is noticeable as long as it’s out in the open ocean, or general population. It seems like just a slight rise and fall of the ocean level as it passes by. But, when it reaches the shallows near land, it rears up in its devastating force. Such are the baby boomers. We hardly notice their cost, until they hit the Medicare and Social Security rolls. Then 34 San Antonio Medicine • June 2015
their cost begins to show in enormous economic terms.
ADD IT ALL UP So how much are we talking about? The answer: five times the current national debt. That’s right. The national debt (when you count all of it), is about $21.7 trillion. The present value of our future Medicare obligations at current benefit rates is $46 trillion (that’s twice the national debt), and the present value of our Social Security benefits at current benefit rates is $64.3 trillion (another three-times the national debt). So add them together, and they total five-times the national debt. If you add a few other obligations, like federal employee and Veterans Administration retirement and health benefits, all 50 state Medicaid and employee pension, health-
BUSINESS OF MEDICINE
care and other post-retirement benefit obligations, as well as the cost of renovating our 50- to 100-plus-year-old infrastructure (roads, bridges, levees, dams, water, sewer, rail, schools, aviation, transit, etc.), it all adds up to $156.2 trillion. Or, to put it in terms even I can understand, that’s almost twice the entire wealth of everyone in the United States, and works out to $1.3 million per household. Yes, if we were to confiscate all of the wealth of the entire country — from Bill Gates, Warren Buffet, George Soros, the Rockefeller Foundation, the Bill and Melinda Gates Foundation, all the hospital and university endowment funds, your wealth, mine… everyone’s wealth in the entire country — we could meet just a little more than half of these obligations. The entire wealth of the United States is $81.5 trillion. Our obligations are $156.2 trillion. Thirty percent of the population is moving out of the worker column and into the retiree column by 2030. This silver tsunami will swamp our current healthcare provider capacity — especially since many of the providers are in the same baby-boom generation and also will be retiring along with the rest of us. No matter how steeply we cut healthcare payment rates, the total cost will continue to escalate with the aging population.
AN EYE-OPENER For years, the trustees of the Medicare and Social Security Trust Funds have called for a 25 percent cut in benefits. You have experienced the 2 percent Medicare sequestration of your payments. Can you imagine if that went up to a 25 percent sequestration? You would lose a quarter of your Medicare collections. Your patients might self-pay the difference, but only those who were able to afford it. You’ll either have to find significantly lower-cost ways to deliver health services, or major new sources of income, or both. I know this is not all news — but maybe the dollar amounts are a bit of an eye-opener. At the start of the Medicare program, we had eight workers per retiree to support the entitlement programs. Today we are down to about five workers per retiree. By 2030, we will be down to just 2.3 workers per retiree. That is, our kids will have less than half the collective earning power we have right now, when we cannot meet these obligations. And they will have only a quarter of the relative, collective earning power that existed at the time these programs were started. I tell my students, every two of you will be supporting each one of us in our nursing homes. And they frankly won’t have the money to pay for it. Not unless we come up with incredible new sources of wealth.
I had high hopes the shale oil might be a source of wealth that could make a serious difference. But our competitors have not just sat idly by as we raised our oil production. As I’m sure you’ve read in the news, they’ve kept up production to drive oil prices down, to nip our fledgling oil boom in the bud. So while the shale oil development has been the main driver of economic recovery for us, I’m not sure oil is going to be the panacea I had hoped. As I ask folks when I speak at conferences, can you think of any other source of wealth that could come anywhere near $150 trillion? Not even oil produces that much. The high-tech sector? Maybe, but the rest of the world is getting amazingly sophisticated in high-tech innovations, too.
LOOK AT SOUTH KOREA By the way, South Korea has an amazing electronic healthcare payment system. As the physician treats a patient, they log onto a web portal and enter all the salient information. It goes straight to one main computer system where every claim is reviewed by an artificial intelligence (AI) system. After the AI review, 800,000 live claims reviewers give a 100 percent claims review, and payments are sent out in just 15 days. That’s right — they do 100 percent claims review on 2 billion claims a year, and pay in just 15 days. How’s that for high-tech efficiency? In contrast, we waste $200 billion a year in the United States just on inefficiencies in the administration of our healthcare system. I had the privilege of visiting the South Korean command headquarters for their healthcare payment system. It looks like something right off the bridge of the Enterprise on Star Trek (only baby-boomers will appreciate that). They fend off 3,000 hacker attacks a day. And their system is so sophisticated they can immediately trace each attack directly back to its originating computer IP address. Most come from North Korea. Their system is so good, they actually package it and sell it to other countries. We could learn a few high-tech lessons from the South Koreans. So will our energy or technology sectors save us? I don’t know. What I do know is, it’s my generation, and I see a costly reflection in that silver tsunami. Dana A. Forgione, PhD, CPA, CMA, CFE, is the Janey S. Briscoe Endowed Chair in the Business of Health at the University of Texas at San Antonio. He is also an adjunct professor in the School of Medicine, Department of Cardiothoracic Surgery, the Department of Pediatrics, and in the School of Public Health, all at the University of Texas. visit us at www.bcms.org
35
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BCMS CIRCLE OF FRIENDS SERVICES DIRECTORY Continued from page 37 ELECTRONIC MEDICAL RECORDS
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38 San Antonio Medicine • June 2015
Employer Flexible (HHH Gold Sponsor) John Seybold 210-447-6518 jseybold@employerflexible.com www.employerflexible.com
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39
BOOK REVIEW
‘Flashback’ Written by Michael Palmer Reviewed by Teresa C. Hayes, MD The headline said, “‘Resistant’ by Michael Palmer, his last and 20th novel.” After surfing the Internet, I realized that Michael Palmer, MD, died the year before last, at the age of 71. Memories from the 1980s and ‘90s flooded my brain. My bedtime reading materials, in those days, often were Palmer’s books. This prompted me to look up the previous 19 books that he wrote and put them all on my reading list, as a tribute to his memory. The San Antonio Public Library stocks 18 of them. I was not able to locate a copy of “On Call: Original Short Story.” Talk about can’t put a book down: Over the course of three months, book after book, thriller after thriller, I read and, in some cases, re-read, all 18 books. What a roller-coaster ride, absolutely thrilling and entertaining. Palmer’s first novel was “The Sisterhood,” published in 1982. In his early career, Palmer published one novel every three years. He then became quite prolific, publishing a novel every two years and later almost one a year. As I read, I also noticed that the price of a paperback went from $5.99 in the 1980s and early ‘90s to $9.99 currently. The backbone of all his novels is associated with medicine or occurring in a medical environment, which I can’t get enough of, even though I have been spending most of my waking hours in a hospital environment for more than 30 years. It is “Flashback,” the third novel Palmer published in 1988, that I like the best. It was written with sincerity and passion. The story is believable, even after all these years, unlike some of his later novels which seem too far-fetched and so cookie-cutter, on top of having a political tilt to some of the events told in the stories. The plot can be summarized as corporate versus community medicine, sibling rivalry, a pair of pathological liars (father and son), and evildoers, mixed with a dose of romance. At the end, the community banding together won over the corporation. The unfolding of the conspiracy began when a young boy continued to suffer flashbacks related to his surgery, months after a “routine” operation for hernia. The new doctor in town took an interest in the boy’s case (and the boy’s mother), and subsequently uncovered a whole string of suspicious incidents linking a successful surgeon and the anesthesiologist he always worked with. Twist after twist, this book will keep you up even though you have a real hospital to go to in the morning. By the way, if you are going to check out the author’s books, don’t make the mistake I made. I checked out “The Thread” by a Michael Palmer and trust me, a thriller, it is not. This Michael Palmer is a poet and, as far as I know, is alive and well. There is also a Michael. A. Palmer, who authors naval histories, in case you come upon this name during your search. Teresa C. Hayes, MD, is a pediatric pathologist in San Antonio and a BCMS member.
40 San Antonio Medicine • June 2015
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Ancira Dodge 10807 IH-10 West Ingram Park Auto Center 7000 NW Loop 410
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Mercedes-Benz of San Antonio 9600 San Pedro Ave. * Ancira Volkswagen 5125 Bandera Rd.
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43
AUTO REVIEW
Ford Escape traces lineage to Kuga
By Steve Schutz, MD
If you’re like most car buyers in the United States, you’ve never heard of the Ford Kuga. The Kuga is an important vehicle, though, not for what it is but for what it became. First, a little background. When Alan Mulally, perhaps the most consequential American automotive executive of the last 25 years, took the reins at the Ford Motor Co. in 2006, he instituted his now-famous One Ford plan. The essence of One Ford is that instead of building different vehicles around the world for the same market segment, one vehicle should be built, whenever possible. Like a lot of things, it was easy to say but hard to do. Mulally did it before his retirement from the company in 2014. Enter the Ford Kuga. While Ford sold the Escape compact SUV in North America, it sold a similarly sized Kuga compact SUV in Europe. They were two very different vehicles, which ultimately were designed to appeal to the same customers. A new Kuga launched in Europe in 2008, and when the Escape was due for replacement in 2012, One Ford meant that the Kuga would be 44 San Antonio Medicine • June 2015
sold in North America as the Escape.
FRESH, NEW LOOK How did that go? In a word, well. In 2007, a strong sales year in the United States, Ford sold about 166,000 Escapes. After rebadging the European Kuga as the new Escape, Ford moved an astounding 296,000 units in 2013, a comparable sales year. Ford has done the same thing with the Fusion, Focus and Fiesta with similar results. And this year, we’re seeing a new full-size van, the Transit, replacing the venerable E-series. Is nothing impossible with One Ford? Umm, yes. There will be no “One Ford-ing” the F-150 pickup, which will stay purely American and will not be changed to make it more attractive in France, or Thailand, or Brazil, or anywhere. Anyway, back to the Kuga/new Escape, which looks much more modern than the old Escape. It’s a testament to how dreary the previous Escape looked that its Kuga successor appeared remarkably fresh and new when it debuted in 2012 even though it was already four years old. And it still looks good
today, with an angular and aerodynamic design that seems like it might have inspired the ultra-cool Range Rover Evoque. The interior of the Escape is standard issue Mulally-era Ford, with good materials and clear attention to detail combined with a sharply modern vibe. The use of black or gray as the predominant color along with an abundance of metallic accents won’t appeal to everyone, but the cabin of the Escape is nothing if not tasteful. And then there’s My Ford Touch, a touch screen-driven user interface that controls the audio, HVAC, phone and navigation systems. Yes, you can work it with voice commands, but the screen is small so using that can be a distraction. You get used to it in time, but it could be more user friendly. The term compact SUV means that the Escape is not big, and that fact is reflected in the interior, which is roomy enough to seat four comfortably with space for your gear under the rear hatch. But asking three people to share the back seat will not result in happiness for those three passengers, and it’s
AUTO REVIEW
worth noting that there’s only 34.3 cubic feet of storage space behind the rear seats (68.1 if you fold down those seats). For the record, that’s comparable to its main competitors, the Honda CRV and Toyota RAV-4. A six-speed automatic transmission and front-wheel drive come standard, and all Escapes except the S can be had with all-wheel drive (AWD). The base engine is a normally aspirated 2.5-liter four-cylinder with 168 HP and respectable fuel efficiency (22 mpg city/31 highway). The SE and Titanium come standard with an EcoBoost — in Fordspeak, that means the engine has turbocharging and direct injection — 1.6-liter engine
good for 178 HP and 23 mpg city/32 highway. Optional on the SE and Titanium Escapes is the best engine, a 2.0-liter four-cylinder EcoBoost motor that pumps out 240 HP but still gets 22 mpg city/30 highway.
HANDS-FREE HATCH Pricing ranges from just over $22,000 for a stripped model that no one but a lab courier would ever drive to over $35,000 for a loaded Titanium version. We don’t have space here to delineate the various trim packages and options available on the Escape, but as always, BCMS Auto Program director Phil
Hornbeak can fill you in on those details. One notable option is the hands-free hatch, which allows you to open the hatch by kicking your foot below the rear bumper. I thought it was gimmicky at first, but with time I found myself using it frequently. Thank you, Ford. Mulally’s One Ford program makes a lot of sense, but could easily have resulted in cars that customers didn’t want. So far that hasn’t happened, and instead we’ve been treated to nice vehicles from other regions of the world that work fine here. Such is the case with the Ford Escape, nee Kuga. Steve Schutz, MD, is a board-certified gastroenterologist who lived in San Antonio in the 1990s when he was stationed here in the U.S. Air Force. He has been writing auto reviews for San Antonio Medicine since 1995. For more information on the BCMS Auto Program, call Phil Hornbeak at 3014367 or visit www.bcms.org. visit us at www.bcms.org
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HELP WANTED Bexar County Medical Society members for BCMS Communications/ Publications Committee. Should have little or no experience, be willing to brainstorm, eat supper at the BCMS office once each month, and participate in free-wheeling, stimulating discussions to produce the magazine you’re reading at this moment. For information, call Susan Merkner at
210-582-6399. 46 San Antonio Medicine • June 2015