MDA-97 MDAdvisor Winter 10:Layout 1 1/4/10 10:57 AM Page 1

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THE OPPORTUNITY TO LEAD NATIONAL HEALTH REFORM | BUILDING HOSPITALS PROTECTING MEDICARE FOR DOCTORS En jo y Senator Joseph F. Vitale Commissioner Heather Howard Congressman Rodney Frelinghuysen ra ct m www BUS ma i yo MDAd I S I T ed i G IN ET T u I N ic ESS G I N l, Insu T H ph ysi i w ca e E .MD O WAY n- de w F O i li F ma M vi PR sh l AC ab e E MDAd T ranc I te C D s I NG ICI Ad v o pt h o MED na g ci t ch no l i o I N on l C r l f I N i E E? an V me di OL t er UM is y e co E 1 • an ta a I S em e in e SUE –p vi a C s ti r a HAVE ILLNESS: TRAVEL PREPARING FOR CHANGE: SEIZING THE OPPORTUNITIES OF HEALTH MAKE THE CONNECTION: THE WORK nt i po Flaurence Alexis Patricia A. Costante Steve Adubato, PhD og nd s omp at i ca cl e o pa nu e FR EE ge nt , r ns y l en t m H MED s I i i G H an d s on li d ore pr o any C O u me S o T I re ce O no c CA F s n C A co m R of h, u E L d fe FU ne .c di E w TO t bs cr L re gul I TE N of i G s me l by SENATE PRESIDENT CODEY’S POINT OF VIEW | HIV TESTING GAMMA KNIFE | TELEMEDICINE T ch UR mu ch iv ca l HE C A T D a RA V H I io n A VEL in g Ne N S C a om / N va il I M N B ip tio V un G U O MDAd G y L O MOD U rge ME re se at o 2 L E • RN al I O S w S is sue s, ic U ME E MD 3 G ab l m DI • S C MDA UM I Y . N at io y r M n E E J R or e 2009 ar c erse op e Adv v up da a ns , . h t d n io y. su ch i re V vi sor ta O L so r UM n E 1 • I te s, v ge S U E 2 ie w, at • S P RI NG b a . 2 0 0 8 y s Tw A L o E A Pr DING in ces P s ROV Ro a IDE d, R S u O ite F M 2 E DI • C Law A L P r enc RO FE ev S “ i S l IO Wh e, re i n NAL NJ co al e 0 gni L l n IA 86 a Th B yo e J l t t t t a c s ea he hei r o 4 r IL z ea n ea 8 s r h at ITY d k i d u l o r ng b ee p New t e t A • ’ T er m s e w ’re es p ’y a s h INSURA 88 wh en r s h s r e of t s M o i wh o of Ne w t t o h 8 d E h p es y D f J p i comm . -3 a er MDA ” d A t s r o n nd he he w s y s 5 i s on NC 5- ey e n i r a i v J xem Ch c b e 555 a er . a dva E t i d d es e h e N i t n n a lt IN s s uca it ai e . J t a h ho n m p 1 y s ted NEW s w , e g m r t l c , ’ h I ify a s • tio m l b ar ou l g r e J he a y a e w e e x E n ou t e w ld s r n J e, w d t sp t e s e E o ce e c o RSEY n o w r a & l b st on t y s hc . r a nt y e . M l l a ome h c t a C sor n e ou e n h r a e elp DA e g n i E rs d e r cog e p c O in s r dv e in r of th m , a i g o , a n an t i nized MD u l a e h e t n t l l co g us t he he t d hi s E tag r p e M d m o t ach Adv wo w f o p h t i eo wo r ne a s t i f fo c i d r b et c c e r r n d e ie st r en e r a ld an li l g o n i g the n J. o t d- . p ve ce , e. in tag e It hys cl Il n ir c d n u f o r p ass z i t o A a l e E o b m e i e r a w e k ci xc ut a x e f y es a l h t d st e ev e m celle s s ns, e le a o m s d r el o i nd e s s l a c i d a nc h , me n n y a p ing i a w s l a p e y nce nd d o h in d a ica effo n a ed nd n a r t Me w g i l d i e t u b e v i d c r d fa d t a h t l a e h s. ed ic e b c cil t e el i o o s ne i d i ca m ie ve o t t i p es u m m Aw t e er a c io e N h c u ople a n a t n ha nd rd i w to yt , s t ® . E r o G opi i S H j k a W i r f o a b t A o o m p o n a u n n h o e rt bo u d d in p y d u a e v d e d o o a u h e t i in s t - n it a p m n a p l c ge ce lp u n e h n e p den l th re l o i y n r ro I fu gh g e d n n j e y r t o r r m g d u r r s e a e e e - s e i d v t s t l o a ’ p u o H in x ts , c e s heir v ’s i

s LETTER FROM THE EDI TOR o e ly le o t n n d r p a r u t t e h c . - t , a w p i a i r t e g “ d r C v E c i e h c S n co e rt t c e n ti o e a o c o p m al g a w h r e a h ow i a o dv e t n e cl p t n e i o m u e d s ph to i Se n gov w r p a f cr S and ke wh i can e e c na n e e f o u t p p t i r ss i e r e ers i y w n h a s m h h C x it n f k t th n s e t y r h i w n y k g a t o cel at r u ugura at , l a o i i r a . i b e e e n a c S eep e y c io un n ” s t p N a n w MD I t y c u i n i r w s l to r n a n e r ns , e t n u T w e o th t budget e s p l n r r i th i e h w B m t ly i t s ts en ” v t o yp d y i i l i c f e r he , s e e t o ss. quen l o w ur n i e a u o h S o w ad it e r t a pl s r a c y B a r a r e t m t ur o ted . r e im e i c m io u tr t a l b e n br ea c cu c nd i E r a J It o a a to s s s n r e H e y a c h nc h ight ea h n ’ t e di vic w e n s n wi y y p e m em i m d h r l o a w l o a u T m p r e a t pe rs e r tu d B s d s i a u o op l tori out G o e. n i tm s n f l e l l s e i s h e m e b a r e l “ u de w l s i g o a o e w g r a se r a s sy l p p g e ov a n . pu r e n t a t ex t s me , b s T b re i e N y l e i b t e t c he n il an n ev n A o d r l a h al l d of . t m e . i f he ou . – ’ n l e hi ernor e i n o an i ic s l i l pe C y f bl c h w s i t s o m pr ov p n r o F icy I u M t e i e i c pa t l e S n B o n pa i s w a s i l l i c f thi i ns g m o l a a r n t i of t a h n r a n k d t to t oa sh i b ou o l g n c to . i c D a nd o h r o c n e i sc i g n jo e f o th w n n ssu t r s i t vi c J l s I t e i ry v r n th t a i , n s C i i s a e rd i u i a h p g r e s r ” m th y a i d y i c et r t n o n s d ivi n C c n a s ti a h u ta t x i o t o o p p o p an e of e h t h l t a t e r p e n u e he a e fo S c e , e o i the c i s h hi a e h o s l m a a h w ysic t c d s s i s e t l me . a t c ’y e c n, r n , ri i s e m a o i f i p g F a b o s N f r e s o ua n tt a mp G e re of ca m o i b e m a e w s r C i f MD f i D “ e e e w ve h g e n o n l f a e t r l p er s o e ti i e l p n h th y v o s a t u n s l r , ia s a is e n l r e c d h e a e i r d w u s ex a s l h g i e o t to ta t i e o r h e u d ou g l pa m l b D e v l s w r n i n n ’ u nc ba Ad u rt i e t t , p s i d i e s s A e A , a r io a n b a t l e s e J t of r e- el r re c e l t , n r u li v y wa - i . n pol c y c s l d h l ti ut e n a i r n f p ck l th l n c in gh c t i i n y u u A t our n o o o t n e ec ma v e c e e n rta i h vi a r b o o f m ra e v e n g n o e l f e l b to s o f an tc l f d s nt ’s a t tf a r o l c re h c i r e a t so we r u t e e t a e ti e r u cti e a a m r MD A rl l u h o si u i a r h o m o i ed e H so e h C n nti n of y l ’s c j y f the t i o l y a p b e , e h t l e t or u o n l r g e c p o n s ce d a ea h t f a S a tre a re s o p h r i a h a p e r co xp r n ’s e l ve h e a by n ou ow a r f m n t w y l p u s D e p a a c r li B o i w a l o phi rs s y c h t l no p nd e e b s a e e p u h n s co f nti e e g n e dv r . r l a e p e i s r an i t r a i l ra r e t a p s d e d a y d d p a c tm a ys g un h t i i r c l i n t J b nd s i c t e sn o i t h v r w h h l nge as a n hes e e i t nues b t c n o o i k e a a h t e r on a i uge e e a we s . o a e s t v v t a n s der e a i w en i e e n m w s s u . o f i o de dn no n n i el e a n v r ce n d o t sy to n o e a ar i s l l g d r o l n e e n n e e a l y y l s s - - - - t t r t t t f . , ’ l l a S P Ch l MDAd o a o h d n in at p p k o e ai c r ad ic e o r h a w o t ma r r i a e a t v wi LETTER FROM THE CHAIRMAN & CEO u v ly an A. e n i n , l t d r r u o & t C b ag i e h T h t y h p a h s C w w t e h r p m i g e b e l r o C o in t o s e e h e r h r o e h s h d a n i E e a n v e p p a t t l a g t e I an o O c al a i o i l s . d l n s d t t s t r e p n t i f m h e r s C N h h t i c e w c t u t c in e u i r e r a c e c i s n e s . e e e t s o e r u t f o e a a t n e c a r I o a c s s an w r i n c c re o r g t s i t W e t e a e h s r o s y h p s a s n e u o me J h c e e t s n i e i – an e h r i w a r a n i n g i i e r s a e h a f d n n y, l b n se C i r f s e o d f d h t t t n a , t . d r o s o o e h c i o h n a u ya p i w p f t t s m e i o d l m i u h c t r m a v E t r c i o n h u s p o h l h 2 r u g s n p a i l . t a t s i a m v e c p s i t c 0 a n e a t n i t t o n a i p l a r s c 1 . x i m d n n l a p e g B t e b l b u p o o s t aw e n o r o 0 a y h e t h n e im u f c e r y r i a i t m r m s r n e o it c o a h r i e o n i w e w t o h a M t y. t a p n i f i i d e e n t a t s t e h t u e s n u n m l l i a l i n i h e h t l N n k n s r a i d A D g l n e p p i a c o n e y e g h e r u b 2 r n e i t e at d d n f w o s f o , d e e 0 a y e d b w e a h e i s e d t 1 l t io ye e s i a t h r i f a s a a 0 J M m g n u v n h g o o s a fo t n n m e i t G l e r , o s i s o h a i D s w d e h c w h t a i r n r r t a t c n o i r b - s w o c A s h e an e l o c n e e e f n e o a v l a h e v e r D f e l l a e e t t k o o h I . y d a t r e h t n e f s i h a h h m n d V d i w a w t h g d n r , e g n h c p m a g I A n e e b i S a i l e t i r t t u c e v l n g r n OR e l l h o o e t t r a u a b t a n g o p e i m e p x a e e i g e h m r f s l i t a n s t n o l r o . e s ica s l l r c i d e g m ab h t w t n e n n As i t n e e e r , d e u s l i r h C yd a e w i t i e o r v o r y e e p e t i t i e t eh t h i s i a n l o f s c w i n no a eh i es a l a , i t ni a a .s i i i r g d e n 1 a y s s s s s - t r I l l l MDA-97 MDAdvisor Winter 10:Layout 1 1/4/10 10:57 AM Page 2

Dear Editor: MDADVISOR With the continuous developments in medicine and A Journal for the New Jersey Medical Community technology, and ever-changing recommendations in prac - PUBLISHER PATRICIA A. COSTANTE, FACHE tice standards, physicians are bombarded by information. S

Chairman & CEO T This often leaves the burden of sifting through all the MDAdvantage Insurance Company of New Jersey information related to the business of healthcare up to the N E S PUBLISHING & BUSINESS STAFF T practice administrator. T CATHERINE E. WILLIAMS N One of the greatest services practice administrators N Senior Vice President E can bring to their physicians is a condensed report on MDAdvantage Insurance Company of New Jersey O M C

business-related issues. The business of healthcare is E JANET S. PURO Vice President – more than just dollars and cents; it encompasses a G

MDAdvantage Insurance Company of New Jersey 0 broad number of topics, including risk management, D 1 E THERESA DIGERONIMO L government regulations, payer contracts and all the related 0 Copy Editor 2

legal issues that affect medical practices. MDAdvisor has W MORBELLI RUSSO & PARTNERS 1 LETTERS FROM THE EDITOR-IN-CHIEF AND THE MDADVANTAGE CHAIRMAN & CEO grown into an outstanding and reliable resource for New R O ADVERTISING INC. E T Jersey physicians and practice administrators on these N EDITORIAL BOARD 4 THE NEXT FOUR YEARS IN NEW JERSEY K types of topics. | By Ray Bateman N HENRY H. SHERK, MD, Editor-in-Chief I At each of our monthly Board of Directors meetings, C PAUL J. HIRSCH, MD, Deputy Editor W A 6 CONFIDENTIAL LITIGATION STRESS MENTORING: I place a timely and significant business topic on the STEVE ADUBATO, PhD CAROL V. BROWN , PhD THRIVING IN THE FACE OF LITIGATION agenda. Often, those topics come straight from MDAdvisor . PETE CAMMARANO | By Barry Bub, MD Typically, I provide a synopsis of the issue and reference STUART D. COOK, MD the source so that the physicians can go back and read GERALD N. GROB , PhD 12 NEW JERSEY LAW GIVES JUDGES OPTIONS REGARDING THE MENTALLY ILL the entire article if they are interested. A good example JEREMY S. HIRSCH, MPAP JOHN ZEN JACKSON, Esq. | By Senator Gerald Cardinale of this can be found in the fall 2009 issue of MDAdvisor . PUBLISHED BY MDADVANTAGE ® The article written by Leonardo M. Tamburello, Esq., INSURANCE COMPANY OF NEW JERSEY 16 ANNOUNCING THE 2010 EDWARD J. ILL EXCELLENCE IN MEDICINE AWARD S “Dangers Abound for Out-of-Network Providers Who Rou - Two Princess Road, Suite Two, | By Janet S. Puro, MPH, MBA tinely Waive Coinsurance,” provided relevant information Lawrenceville, NJ 08648 www.MDAdvantageonline.com 22 A CULTURAL HISTORY OF FETAL ALCOHOL SYNDROME on an important aspect of the business of medicine that I Phone: 888-355-5551 • Fax: 609-896-8150 | By Janet Golden, PhD want the physicians in my practice to understand. [email protected] I believe that MDAdvantage is providing an invaluable Material published in MDAdvisor represents only the 30 DISCLOSURE AFTER AN ADVERSE EVENT PART 2: COMMON LAW DUTIES resource to its policyholders and other healthcare opinions of the authors and does not reflect those of the editors, MDAdvantage Holdings, Inc., MDAdvantage | By Scott T. Heller, Esq. providers in New Jersey by publishing MDAdvisor . Insurance Company of New Jersey and any affiliated com panies (all as “MDAdvantage”), their directors, officers 39 PREPARE FOR CHANGE: IT’S ALL ABOUT BRANDING or employees or the institutions with which the author is Sincerely, affiliated. Furthermore, no express or implied warranty or | By Steve Adubato, PhD any representation of suitability of this published material is William G. Hyncik made by the editors, MDAdvantage, their directors, officers or employees or institutions affiliated with the authors. William G. Hyncik The appearance of advertising in MDAdvisor is not a Director guarantee or endorsement of the product or service of the advertiser by MDAdvantage. If MDAdvantage ever endors - Princeton Orthopaedic Associates, PA es a product or pro gram, that will be expressly noted. Letters to the editor are subject to editing and abridgment. MDAdvisor (ISSN: 1947-3 61 3 (print); ISSN: 1937-0660 (online)) is published by MDAdvantage Insurance Company of New Jersey (“MDAdvantage”). Printed in the USA. Subscription price: $48 per year; $14 single copy. Copyright © 2009 by MDAdvantage. POSTMASTER: Send address changes to MDAdvantage Insurance Company of New Jersey, Two Princess Road, Suite Two, Lawrenceville, NJ 08648. For advertising opportunities, please contact MDAdvantage at 888-355-55 51. 2 MD ADVISOR | WINTER 2010 MD ADVISOR 3 MDA-97 MDAdvisor Winter 10:Layout 1 1/4/10 10:57 AM Page 4 W E I V

F need immediate unraveling attention. Reducing state election over their opposition may well be a plus for the

O income tax rates (as promised by Governor Christie) can new governor.

T help, but the onerous state inheritance tax laws are Governor Christie has to recognize that desire for

N big- money items that no governor, so far, has been able change was in the voting air last November as he defeated I to change or abolish. Governor Corzine by more than 100,000 votes. One of the O

P There are also plenty of regional issues that need to changes needed is to get Democrats and Republicans be addressed. Can the casino and horse industries be working together to tighten up the operation of New Jer - brought to the table with decisions to have them both, at sey’s ship of state. Here, the early signs of Christie’s day’s end, be successful? Can the Newark Prudential Center objectives are encouraging. He has appointed prominent and the East Rutherford Izod Arena have combined Democrats to his transition team. His first post-election TH E man agement to help each succeed? And what can a new meetings were in Newark and Woodbridge, accompanied governor do to get the outside-ugly Meadowlands by Democrats. As a native New Jerseyan, bred in the state’s political system, he should have little trouble befriending the Democrats who control the legislature. NEXT The most successful past Garden State governors have worked well with the opposition – those relationships are known to the new gov ernor. In fact, the new governor could be well served by emulating the two-party cooper - ative smoozing of former Democrat Governor Dick Hughes. FO UR From the public’s perspective, our new governor has one major quality – the desire and ability to rid New Jersey of its reputation of being lax in law enforcement. In the past, Christie’s crime-busting put misbehaving public officials YEAR S (Republican and Democrat) in jail – putting criminals in jail IN NEW JE RSEY Xanadu shopping plaza-entertainment center open and turned out to be his biggest campaign asset. While taxes * Photos of Chris Christie from www.christiefornj.com running? led all other issues in the campaign, voters ranked dishon - Political second-guessing is a cottage industry in esty of government officials high on a list of concerns. New Jersey. Most Christie critics thought his campaign Chris Christie has one more advantage going his way. By Ray Bateman lacked focus and ran headlong and unsuccessfully into The worldwide recession seems to have bottomed out. As expensive nasty campaigning from the New Jersey Educa - our U.S. economy begins to strengthen, states like New Can a new Republican governor, with a Democrat- leads the list of awesome problems. A top priority is to tion Association, other New Jersey unions and Governor Jersey will quickly see significant increases in sales and controlled legislature, begin to solve New Jersey’s overwhelm - stop the out-of-state migration of successful Jersey families Corzine himself. His campaign ads focused on silly items income tax revenues. That can’t come too soon for a state ing problems in his four years as chief executive of our Garden who can’t afford to die here and of average-income families like Christie’s bad driving record, a loan to a colleague – looking at an $8 billion deficit in 2010-2011! State? A confident Chris Christie says yes and candidly who can’t afford to live here. The new governor must try and even his overweight body! Corzine spent his usual Ray Bateman is a former State Senate President and admits some of the tough calls he must make could result to develop a business-friendly atmosphere, ASAP. The multi-million dollars that were aided and abetted by longtime legislator in New Jersey. He is a former Chairman in a one- term governorship. He says he can handle that! business-not-wanted signals must be removed. Better sev eral million dollars spent by the labor unions. of the New Jersey Sports and Exposition Authority A number of his critics were impressed by Christie’s urban schools, a Governor Christie campaign objective, Yes, the gubernatorial election campaign was a and former Chairman of the Raritan Valley Community impromptu election-night speech in which he said he was a now need his “fix them” attention. Cutting the costs of tough one for the winner – but it left Chris Christie Col lege Board of Trustees. New Jersey guy who wants his kids and grandkids to live state, county and local government, a high priority, will without the kind of campaign commitments that could and prosper in New Jersey, as he has. be difficult, but necessary. Keeping our busy highway hamper his difficult upcoming gubernatorial decisions. It’s good that New Jersey’s new, young (48) governor, infra structure in good working condition will be impossi - The unions, and especially the New Jersey Education Chris Christie, is an upbeat Jersey guy – because our state ble without significant capital infusion. Putting a lid on Association, spent millions in quite bitter attacks on has a basketful of the toughest problems and challenges huge public pension and health costs is also a significant Christie. As Governor Christie looks to hold down the facing any state in the nation. challenge. huge costs of public pensions and public health benefit Here are a few of the immediate issues facing the new In addition, the myriad of laws and court decisions plans, for example, the usually dominant voices of union governor. Having the country’s highest state property taxes that have red-taped New Jersey’s home building industry leaders will not be at the head of the table. Winning the

4 MD ADVISOR | WINTER 2010 MD ADVISOR 5 MDA-97 MDAdvisor Winter 10:Layout 1 1/4/10 10:58 AM Page 6

CONFIDENTIAL LITIGATION STRESS MENTORING: * THRIVING IN THE FACE OF LITIGATION INTRODUCTION By Barry Bub, MD By Robert B. Goley

There is a side effect of medical malpractice litigation that G is rarely discussed, often disguised and tactfully hidden. It is IN LIS R TEN the impact that a malpractice case has on the personal and FE IN professional life of the defendant physician. F G Being involved in a lawsuit and having one’s personal U S integrity challenged are unnerving experiences for anyone. For the doctor, however, being accused of medical negli - Who are the physicians most likely to benefit from the gence strikes an even deeper cord – his or her professional mentoring program? Those physicians who may be harboring H integrity. Many physicians silently and privately endure a stress without displaying overt symptoms, such as substance

E myriad of emotions, feeling as though they are being abuse or abnormal psychological behavior. Dr. Bub’s goal is S A subjected to a slow, deliberate and painful dissection to provide mentoring to candidates who, in addition to support E L called “the discovery process.” The patient, someone from family and friends, often need skilled, professional

S I

N who once trusted the doctor, now has a lawyer who contends assistance. His approach works best with physicians who S

G that the doctor caused or inflicted life-altering harm. By are open to the idea of transforming a situation of adversity

O virtue of the legal system, the physician finds himself or into an experience that can yield positive personal and L herself an unwilling defendant, professional growth. thrust into an unfamiliar trauma “The mission of Bub’s Litigation Stress A good example of the

situation that is like no other. Mentoring program is to provide positive type of physician who qualifies as

The typical physician is an appropriate candidate is

A reinforcement toward improving

understandably fearful about seen in a situation that I

M personal and professional relationships.”

U being perceived as vulnerable encountered with a defendant

A R T or weak and often does not several years ago. A locally actively seek help. Barry Bub, MD, a physician advocate prominent physician had endured the strain of a long liti - and advisor, has taken an innovative approach to helping gation process, and his trial was finally beginning. During physicians by providing them with an outlet of individualized jury selection, the stress that he had been harboring for “mentoring” that they can trust. In his article that follows more than three years began to unravel into expressions of this introduction, Dr. Bub talks about his method of self-doubt and anxiety. The doctor turned to me, his claim teaching physicians how to thrive in the face of litigation. representative, and asked, “Do you think that I should have His mentoring program, conducted by telephone, told my wife about this case? I was too embarrassed to tell encourages physicians to talk about how they feel and to her long ago, and now I regret it; the stress has caused a come to terms with the impact of stress on their lives terrible strain on my marriage.” and relationships. Dr. Bub is not interested in, nor does The mission of Bub’s Litigation Stress Mentoring program he discuss, the details of the underlying case with the is to provide positive reinforcement toward improving * For the purpose of clarity, the author has used the feminine gender when defendant. He focuses exclusively on the person. Con - personal and professional relationships. The program also referring to the physician client and versations between Dr. Bub and the physicians are com - stimulates a positive side effect: Well-adjusted physicians the masculine gender when referring pletely confidential. make better defendants. to himself as the physician mentor.

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Mishaps are like knives, that either serve us or cut us, as we grasp them by the blade or the handle. ~James Russell Lowell

Although it is never far from the Litigation Stress Mentoring pro - THE APPROACH physician’s consciousness as a possibili - vides such a service. In addition, As Albert Einstein said: “In the middle of difficulty lies It is not therapy. The client is encouraged to consult a ty, the reality of a malpractice lawsuit however, for those who are open to opportunity.” The Litigation Stress Mentoring program psychiatrist or psychotherapist, when indicated, which can can still hit hard. Some physicians are it, the program offers a unique aims to help defendant physicians find that opportunity. be a valuable adjunct to the mentoring program. seriously distressed and traumatized teaching component that enables The program shifts the goal from “How do I win?” to ”How by the experience. Others are simply the physician to utilize her personal do I emerge a winner regardless of the legal outcome?” PRINCIPLES OF TRAUMA GUIDING THE stressed and respond with weary res - experience to improve communica - The program shifts the client’s focus from areas in MENTORING PROCESS ignation, annoyance or frustration. Vir - tion and patient care. This adds an which she has little control (i.e., the courtroom) to ones in In her book, Trauma and Recovery, Judith Herman, tually all, sooner or later, experience element of deep healing and mean - which she has great power and control (i.e., self-care, PhD, writes: “The responses to trauma are best understood strong emotions as the process drags ing to an otherwise purely traumatic healing and sustained happiness). Because the nature of as a spectrum of conditions rather than a single disorder. on. The admonition “It’s just business” experience, raising the possibility of trauma is to shatter beliefs, create loss and cause suffering, They range from a brief stress reaction that gets better by doesn’t ring true for those who are vic - long-term well-being and success. healing , not merely coping, is the appropriate response. itself and never qualifies for a diagnosis, to classic or simple tims of litigation. Being sued is a very The mentor assists the client to mourn losses, build post-traumatic disorder, or to the complex syndrome of personal experience – when one’s financial security, self- WHY OFFER THE PROGRAM? healthy beliefs and create meaning from the experience. prolonged, repeated trauma.” 4 Viewed in this light, it can respect, reputation, integrity and well-being are threat - Many journal articles and programs provide advice With skilled telephone mentoring, role play and case be appreciated that serious medical mistakes or litigation ened, how can it be anything else? on how to cope with litigation. Regardless of the approach review, the physician learns to understand the nature of can be experienced as traumatic rather than merely stressful. During times of adversity, it is normal, human instinct to taken and despite her worst fears, the typical defendant her trauma, suffering and losses, as well as how to apply reach out for support. The physician’s instinct is no differ - physician manages to cope without major financial disaster newfound communication skills to her work. ent. In one survey of family physicians, 63 percent of or loss of practice. Most cases are eventually dropped or respondents who had made a serious mistake expressed settled, and only a small percentage end up in court. Of PRACTICALITIES the desire for someone to talk to. 1 these, most are won by the defendant. Still, the toll on Implementation of the Litigation Stress Mentoring pro - In their excellent book on litigation stress, Charles and spirit and well-being may be high. Self-esteem takes a gram is quite simple. When a physician wishes to participate, Frisch note: battering, and other scars remain. Not surprisingly, the she contacts the mentor directly via phone or email. She Insurance,Inc. physician defendant may be left feeling fearful, angry, and the mentor schedule a one-hour telephone mentoring ...... After a bad outcome, they [working physicians] often cynical and defensive. Feelings such as these adversely session. Should she be an MDAdvantage-insured practi - Specializing in feel isolated, alone and in need of acceptance by oth - affect communication and relationships, perhaps tioner, the insurer is notified for verification and billing ers and of a vote of confidence in their abilities. Con - accounting for the doubling of the risk for a subsequent purposes. The insurer covers up to four sessions. The Medical & Professional Liability Coverages 3 sultation with an older, more experienced clinician can law suit within the following year. content of these sessions is totally confidential and is not Absecon Office: Vineland Office: Absecon500 East Office: Absecon Boulevard Vineland1450 E. Chestnut Office: Avenue help them gain greater objectivity and understanding Most physician defendants pin their hopes on win - shared with either the legal team or the insurer. The mentor 500 EastP.O. Absecon Box 365 Boulevard 1650Building E. Chesnut 5, Suite BAvenue Post OfficeAbsecon, Box NJ 365 08201-0365 BuildingP.O. Box 5, 1270 Suite B and thus begin the healing process from within. Having ning the lawsuit, yet in reality there is no real winning. consciously avoids discussing details of the case, choosing Absecon,Phone: NJ (609) 08201-0365 641-3000 P.O.Vineland, Box 1270 NJ 08362-1270 Fax: (609) 641-2355 Vineland,Phone: (856) NJ 08362-1270 692-4500 someone with them as they suffer their way out of the There is no compensation for angst and loss of time and instead to focus on the client’s reaction to the experience. Phone: (609) 641-3000 Fax: (856) 692-7079 Fax: (609) 641-2355 Phone: (856) 692-4500 shock and distress of the experience is a simple human income. After the initial sense of relief wears off, the At the conclusion of the series, the physician is asked to pro - 1(888) OKGLENNFax: (856) 692-7079 but incomparable aid in their reclaiming their integrity physician is back to coping with typical day-to-day stress - vide confidential feedback to the insurer and is invited to as persons and professionals. After any serious life es. Nothing has occurred that might sustain happiness continue working with the mentor on a fee-for-service basis. event, support from others helps a person open up to and well-being. The mentor (this author) is an experienced, older regain emotional equilibrium. 2 physician with extensive training in Gestalt psychotherapy, chaplaincy, psychological trauma, physician health and communication. The work is health-oriented and positive.

www.glenninsurance.com

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VALIDATION represents a potential litigant and where they are treated The standard recommendation talk with a friend, by the judicial process as perpetrators rather than trauma “As the client becomes more skilled, spouse or colleague therefore inappropriately sends a victims. The long litigation process with its inherent dis - listening becomes interesting to her, message that the issue does not rise to a level that warrants tortions of justice has the tendency to retrigger trauma and the warm reception skilled intervention. (one client describes this as “tearing open the wound”). she receives from her patients The mentor carefully creates a bubble of safety as becomes heart-warming and affirming.” Consider the following real-life situations and their he practices confidential, nonjudgmental listening. 1 Newman, M. (1996). Emotional impact of mistakes on family potential for disastrous consequences: physicians. Archives of Family Medicine, 5, 71 –75. CREATION OF HEALING CONNECTION 2 Charles, S., & Frisch, P. (2005). Adverse events, stress and A urologist is in shock as he frantically races in his car at The relationship between mentor and client is liti gation . New York: Oxford University Press. 80 mph to the emergency room to speak with the family authentic and is established on trust and partnership. ATTENTION TO THE SPIRIT of a patient who has just died unexpectedly. Sessions are never scripted; the encounters are based Trauma is not just psychological; many physicians 3 Frisch, P., Charles, S., Gibbons, R., et al. (1995). Role of previous totally on the client and where she is in her process and find themselves dispirited by the litigation process. One claims and specialty on the effectiveness of risk-management education for office-based physicians. Western Journal of A surgeon lies awake half the night worrying about a the practicalities of her work and life. This relationship is the particularly clear and inclusive description of spirituality is Medicine, 163, 346 –350. lawsuit. He oversleeps and then grabs two Ambien initial step in the client’s reconnection with society at large. this: Spirituality points to our interiors, our subjective life, tablets, thinking they are vitamin tablets, as he rushes as contrasted to the objective domain of material events 4 Herman, J. (1992). Trauma and recovery. London: Pandora. off to surgery. He then falls asleep while operating. EMPOWERMENT and objects. Our spirituality is reflected in the values and 5 Higher Education Research Institute of California. (n.d.). A Judith Herman has observed: “The core experiences ideals that we hold most dear, our sense of who we are national study of college students’ search for meaning and An obstetrician, with a waiting room full of patients, is of psychological trauma are disempowerment and dis - and where we come from, our beliefs about why we are purpose. www.spirituality.ucla.edu/faq.html. stunned at being served notice of a fourth lawsuit. connection from others. Recovery, therefore, is based here – the meaning and purpose we see in our lives – and Dazed and bewildered, she wanders off, and the rest of upon the empowerment of the survivor and the creation our connectedness to each other and to the world the day is a blur. of new connections. Recovery can only take place within the around us. 5 context of relationships; it cannot occur in isolation.” 4 For this An aspect of the mentoring process extends beyond A psychiatrist is devastated when his patient on antide - reason, litigation support is very different from litigation psyche and intellect. The mentor offers the client an pressants commits suicide. mentoring . Support, per se, implies holding up that which opportunity to examine what is truly important and to utilize is weak. With mentoring, support is lateral – leaning a painful experience to help others. As the client While it can be very helpful, comforting and reassuring against, engaging, partnering and challenging when nec - becomes more skilled, listening becomes interesting to her, to talk with a confidant or spouse after such traumatic essary. The former aggravates learned helplessness; the and the warm reception she receives from her patients experiences, such a conversation does not replace skilled, latter, with the client sharing in setting the agenda, stim - becomes heart-warming and affirming. Isolation is professional assistance. In addition, the spouse is often ulates resiliency and strength. replaced with connection. Instead of being stilted, hostile or affected as well. As the wife of one physician defendant The mentor challenges disempowering, unrealistic rigid, communication becomes authentic and sensitive, and said: “When my husband was sued, two people didn’t and erroneous beliefs such as: “I should be perfect,” “I’m because this communication centers on listening and under - sleep that night.” a terrible physician,” “I shouldn’t complain” or “I don’t standing, it results in an upward spiral of mutual healing. Now you can reach more than The mentor offers therapeutic validation of his client’s have time to take care of myself.” He then introduces Barry Bub, MD, is a family physician, author, 10,000 New Jersey physicians and trauma, when applicable, and in the process demonstrates fresh perspectives that empower the physician to make Gestalt psychotherapist, volunteer chaplain and educator. his understanding of the client’s experience. He explains the choices that support a healthy and fulfilling life. He is on the adjunct staff at Temple University and vol - healthcare professionals with just one call. nature of psycho-spiritual trauma and later in the process unteers at a free clinic where he teaches professionalism 1-888-355-5551 teaches the Trauma-Healing Cycle (trauma » losses » suffering REORIENTING TO THE PRESENT to medical students, trains staff and offers psycho-spir - » listening » healing). Each stage is examined in relationship As the two engage, the mentor draws the client into itual support and counseling to patients. to the client’s experience and application to work. the present – away from the recriminations of the past Robert B. Goley is Senior Vice President, Claims and the fears of the future. The telephone sessions tend and Risk Management at MDAdvantage Insurance CREATION OF SAFETY to be lively and stimulating. This combination of pleasur - Company of New Jersey. Physicians who are traumatized instinctively seek safety able study in the present, while creating meaning for the Speak with Janet Puro to learn about and connection, yet they have to continue working in an future, introduces an element of happiness – a taste of advertising opportunities with MDAdvisor, environment that is threatening – where every patient what is possible. or e-mail her at [email protected].

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O New Jersey Law Gives Judges T

N Options Regarding the Mentally Ill I With the passage of S-735 in August of 2009, New Jersey own mother. This former inmate had been in the Trenton O By: Senator Gerald Cardinale has joined New York, California, Florida and 30+ states in State Prison Vroom Building, a prison facility for the criminally P recognizing that involuntary, outpatient commitment is a insane that has medical personnel, including psychiatrists, viable tool to help many mentally ill individuals lead more who attempt to stabilize and/or treat the inmates. Ninety normal and productive lives, and, at the same time, days earlier, he had been judged unfit to stand trial for impose less of a burden on their families and others. the attempted murder of a police officer. At this hearing, Prior law in New Jersey gave judges only two options the psychiatrist testified that the prisoner was worse: non- when dealing with the mentally ill: institutionalization or competent, and a danger to himself and others, if released. release. Judges were understandably reluctant to order so The judge nevertheless released the prisoner, as his mother drastic a remedy as institutionalization, except in the most offered to take him home to Massachusetts, thereby saving extreme cases. This reluctance led to the release back into the cost of incarceration. society of many schizophrenics and others suffering In 2004, together with the Treatment Advocacy Center, severe mental disorders. I drafted S-1640. It was modeled after “Kendra’s Law” in Judges’ decisions to release these individuals often New York State. Kendra was a young woman who had been led to a revolving door syndrome. Mentally ill people were pushed in front of a subway train by a mental patient. That involved in incidents, leading the police and/or crisis patient had been repeatedly released back into society by intervention teams to place them in a psychiatric setting. the New York State judicial system. The New York Legisla - Public defenders would then demand their release with, ture stood up to the problem and in 1999 passed Kendra’s in most cases, little or no treatment rendered. Too often, Law, which essentially provided an additional option. after a number of such cycles, and a progression of the Instead of institutionalization, New York judges could order disease, the incidents became more and more serious. involuntary outpatient treatment. They could encourage Some years ago, I became aware of an over-zealous patient compliance with the threat of institutionalization. In judge who held hearings in a number cases where noncompliant patients of locations throughout the state of “Pr io r law in had previously been left on their own New Jersey – and not all were new jersey g ave j udges to struggle with their diseases, courtrooms. They were also held only two options treat ment could be ordered in a less in pris ons and mental institutions. when dealing with restrictive environment. This approach the mentally ill: This judge released institutional - institutionalization worked well in New York. ized mental patients by the hun - or release .” When I circulated the original draft dreds against the advice of treat - of the New Jersey bill, 38 out of 40 ing psy chiatrists. Many of these individuals ended up senators became co-sponsors. The bill then received the harming themselves, becoming homeless and/or com - support of the New Jersey Psychiatric Association, as well mitting crimes. as former patients, police chiefs and friends and families of The consequences of these release decisions were individuals who had previously refused treatment. Such an often heartbreaking. At a legislative hearing before New outpouring of support should have led to immediate Jersey’s Judiciary Committee, a grieving mother recounted pas sage, but it did not. how the judge had released her previously institutionalized There are always many naysayers. Some are motivated son against all the psychiatric evidence. Upon release, by real disagreement, and some by selfish, often monetary, her son wandered onto a highway, was struck by a car and considerations. Others are motivated by a blind obsession was killed. Another egregious release by this same judge, with political dogma. Opponents marshaled their forces also contrary to the psychiatric evidence offered at the at a number of legislative hearings. They talked about hearing, led to a former inmate attempting to murder his stig matizing, about civil rights and about the cost of treating

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these folks. Initially, they were able to hold up progress. months and thereafter on an annual basis. If the court In subsequent versions of the bill, Senator Richard sees a necessity for more frequent evaluations in a Codey and I joined forces. We worked to answer all the partic ular case, it can so order. objections, and S-735 was signed into law last summer and At every step in the process, the individual is entitled is now being implemented. The bill is more complex than to legal representation and confidentiality. However, the original version as a result of legislative compromise the biggest plus in our new law is the requirement that but will do the job that is needed. Here is how it works: professional assessments guide the judges’ determina - The person who consents to treatment will receive it, as tions. The law is being phased in over a period of three previously. There are many institutional and community- years. Seven counties, designated by the Commissioner based treatment options available. Those who are evaluated of Health & Human Services, will be added each year until and determined to be in need of treatment but refuse it will all 21 counties are in the program. be processed carefully and thoroughly. It was a tough legislative process, but both mentally Individuals can enter the process through referrals by ill individuals and society will reap the benefits. Many family or by police officers, providers, emergency personnel lives, previously thrown away, will become productive; or the courts. They will be assessed by screeners and treatment many families’ burdens will be lifted. New Jersey has providers who will recommend inpatient or outpatient finally come to a solid and workable solution to the treatment. The court must review and approve the treatment prob lems posed by our mentally ill, both to themselves based on appropriate professional input. For admitted and to society. patients, the court must review treatment progress after Senator Gerald Cardinale (R) has served in the New three months and then annually. For outpatients, the court Jersey State Senate since 1982, and represents the must review treatment progress at six months, at nine 39th Legislative District. He is a dentist by profession.

ORTHOPAEDIC SURGEONS OF NEW JERSEY Medical Liability Insurance Purchasing Alliance, Inc.

New Discounts on Medical Malpractice Insurance Available Exclusively for Orthopaedic Surgeons of New Jersey Members! OSNJ is pleased to announce exclusive discounts for its members. The discounts are offered by MDAdvantage Insurance Company of New Jersey and are available to current insureds and new applicants who meet its underwriting criteria. The discounts are significant: • 12.5% for Orthopaedic Surgeons (Excluding Spine); Orthopaedics – Office and Surgical Assisting (Excluding Spine); and Orthopaedics – Office Only • 7.5% for Orthopaedic Surgeons – Including Spine or Assisting in Spine Surgery Most full-time Orthopaedic Surgeons (Excluding Spine) would qualify for a discount of $4,939 to $9,685 per year, with a majority of physicians receiving a discount of $6,586 per year. The discount dol lar amounts are based on the current premiums being paid. In order to qualify for the discounts, physicians must be current members of OSNJ and must join the OSNJ Medical Liability Insurance Purchasing Alliance, Inc. For more information or to apply for membership, go to http://www.njos-osnj.org/purch_alliance.htm.

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EDWARD J. ILL PHYSICIAN’S AWAR D® Presented to a New Jersey physician who merits recognition for distinguished service as a leader in the medical profession and in the community.

Denise V. Rodgers, MD , is the Provost and Executive Vice President for the University of Medicine and Dentistry of New Jersey (UMDNJ). She is also a Professor of Family Medicine at the UMDNJ – Robert Wood Johnson Medical School (RWJMS). Dr. Rodgers has overall responsibility for the educational, research and clinical activities occurring in all eight of the schools of UMDNJ. She has a strong interest in inter-professional education and healthcare as a mechanism to improve patient outcomes. Dr. Rodgers is particularly interested in leveraging the resources of UMDNJ as a statewide asset to improve the health of all New Jersey residents, with special attention to minority and underserved populations. Before becoming Executive Vice President, Dr. Rodgers served as University Chief of Staff for UMDNJ. She served as Senior Associate Dean for Community Health at Denise V. Rodgers, MD UMDNJ-Robert Wood Johnson Medical School from 1997 to 2005. Before coming to RWJMS, Dr. Rodgers was Professor and Vice Chair in the Department of Family and Community Medicine at the University of California, San Francisco (UCSF). She was also Director of the UCSF-San Francisco General Hospital (SFGH) Family Practice Residency Program and Chief of Service in Family and Community Medicine at SFGH. Dr. Rodgers received her bachelor of arts degree from Oberlin College. She graduated from Michigan State University College of Human Medicine and completed her family medicine training in the Residency Program in Social Medicine at Montefiore Medical Center in the Bronx. Dr. Rodgers is board certified in family medicine and is a diplomate of the American Academy of Family Physicians.

PETER W. RODINO, JR., CITIZEN’S AWAR D® Presented to a citizen or group of citizens of New Jersey who merits recognition for distinguished ANNOUNCING THE 2010 service in advancing and promoting the health and well-being of the people of our state. ® Major General Maria Falca-Dodson is the Commander of the New Jersey Air EDWARD J. ILL EXCELLE NCE IN ME DICI NE AWAR DS National Guard, which includes two Air Wings, the 108th Wing at McGuire Air Force Base and the 177th Fighter Wing in Atlantic City. General Falca-Dodson has direct responsibility for the New Jersey Air National Guard full-time operations. Major General Falca-Dodson served for seven years as the Deputy Adjutant General for the State of New Jersey, where she was responsible for daily oversight and manage - ® The Edward J. Ill Excellence in Medicine Awards are ment of more than 8,300 members of the New Jersey Army and Air National Guard, as awarded annually to honor those exemplary physicians and well as state operations of the department, which included management of a $93.5M leaders whose dedication to education, research and budget. She was responsible for the stationing of a Weapons of Mass Destruction Civil public service has significantly impacted the delivery of Support Team in New Jersey, part of the senior team responsible for the oversight of the Major General Maria Falca-Dodson federal mobilization and deployment of 85 percent of the New Jersey Army and Air healthcare in New Jersey and around the world. This event National Guard, team leader for the base realignment and closure process resulting in suc - debuted in 1939 at the annual meeting of the Academy of cessful retention of the flying mission at the 108th WG, construction and development of the By Janet S. Puro, MPH, MBA Medicine of New Jersey and has been sponsored by Homeland Security Center of Excellence including the state-of-the-art Joint Operations MDAdvantage Insurance Company of New Jersey since Center, development of the New Jersey National Guard Reconstitution process and increas - ing funding for Post-traumatic Stress Disorder (PTSD) and the development of a grant pro - 2004. The awards are named after Edward J. Ill, MD, a gram and fundraising initiative of the National Guard State Family Readiness Council of New New Jersey physician who was a pioneer in promoting Jersey. Major General Falca-Dodson has participated in multiple overseas deployments con tinuing education in ways that set the national standard. and was the deployed Med ical Commander, Task Force Fuertos Caminos, Panama, 1993. Major General Falca-Dodson was also a significant force in New Jersey healthcare. She served as Vice President of the MIIX Healthcare Group from 1997 to 2002, where *Please see page 20 for awards dinner details. she consulted for numerous hospitals, healthcare organizations and physicians. Before holding that position, she served as Assistant Commissioner for the New Jersey Depart - ment of Health's Division of Health Care Systems Analysis. During her tenure at the Department of Health, Major General Falca-Dodson was instrumental in initiating a statewide Cardiac Quality Project, implementing the first sweeping reforms in certificate of need in 20 years and assisting with the creation of the network of Maternal Child Health Consortia in New Jersey. She earned her BSN from The College of New Jersey and her MA in administration from Central Michigan University.

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VERICE M. MASON COMMUNITY SERVICE LEADER AWARD OUTSTANDING MEDICAL EXECUTIVE AWARD Presented to an organization that demonstrates an extraordinary commitment to improving Presented to an executive in a medically-related organization or field, who is usually, the health and welfare of the citizens of New Jersey; and to an individual representing that but not necessarily, a layperson and who has demonstrated exceptional leadership in organization who has personified, led and/or provided the vision for that organization. the enhancement of patient care and medical practice in New Jersey.

Martin A. Finkel, DO, FAAP , is a Professor of Pediatrics, and co-founder of the Monsignor Robert Sheeran assumed the presidency of Seton Hall in 1995 and inaugu - Child Abuse Research Education & Service (CARES) Institute at the University of rated an era of growth and transformation that is unprecedented in the university’s 154-year Medicine and Dentistry of New Jersey’s School of Osteopathic Medicine. The CARES history. Under his stewardship, Seton Hall has achieved higher rankings, stronger peer recog - Institute informs best practices in the delivery of medical and mental health diag - nition and greater national prestige. Monsignor Sheeran’s educational vision is evident in the nostic and treatment services to abused and neglected children. Dr. Finkel is an inter - pioneering and thriving programs at the graduate and undergraduate levels, as well as in the national and pioneering authority on the medical evaluation of child sexual abuse. fact that there are more applications and higher-quality admissions to Seton Hall than ever. Dr. Finkel was the architect of New Jersey’s statewide network of regional Major initiatives have marked his administration. A number of new doctoral programs in child abuse diagnostic and treatment centers, the first such system in the United nursing and the sciences have been instituted. The graduate School of Health and Medical States established by statute. He is the author of the first scientific paper in the Sciences has rapidly expanded in enrollment and placement of graduates in critical health - medical literature on the healing and interpretation of acute genital and anal trauma care services statewide. In 2007, Monsignor Sheeran dedicated a new $35 million Science Martin A. Finkel, DO, FAAP as well as the first paper on the association of genital signs and symptoms fol - Monsignor Robert Sheeran and Technology Center. From the mid-1990s through today, one of Monsignor Sheeran’s lowing sexual contact in girls. His textbook Medical Evaluation of the Sexually critical concerns has been to upgrade the technological infrastructure of the university to Abused Child: A Practical Guide , now in its third edition, was published in 2009 facilitate 21st-century teaching and learning. Another priority of his administration has been by the American Academy of Pediatrics and is a standard reference for the field. to foster wide diversity among the campus workforce, which today mirrors the face of New Dr. Finkel has been on the national board of the American Professional Society Jersey, the New York metropolitan area and the world. Under his leadership, the university on the Abuse of Children, where he had oversight for the development of national conducted its most successful capital campaign in history, raising $153 million. standards regarding medical terminology and the interpretation of medical find - Monsignor Sheeran’s peers have recognized him by electing him Vice President of the ings. Dr. Finkel was appointed by six governors to co-chair with the Commissioner Association of Catholic Colleges and Universities as well as chair of the Board of Directors of the of Children and Families, New Jersey’s Task Force on Child Abuse and Neglect. Association of Independent Colleges and Universities in New Jersey. He has also been an active member of numerous civic, corporate and non-profit boards and committees over many years. Now in his 14th year as president of Seton Hall, Monsignor Robert Sheeran has com - OUTSTANDING MEDICAL EDUCATOR AWARD missioned a new strategic plan, the third of his presidency, to lay the foundation for advances in every aspect of academic and community life for the next decade. In June 2010, Presented to a medical educator who has made an outstanding contribution to graduate or he will step down from the position after serving with distinction for 15 years. undergraduate medical education in New Jersey.

Marjorie C. Brandriss, PhD , earned a BA degree in biology cum laude from Cor - nell University and a PhD in genetics and microbiology from M.I.T., where she also OUTSTANDING MEDICAL RESEARCH SCIENTIST AWARD did postdoctoral work. She is a Professor of Microbiology at New Jersey Medical FOR CLINICAL RESEARCH School and has been a faculty member of the Department of Microbiology and Presented to an individual who has made important contributions in clinical or translational Molecular Genetics for more than 28 years. Throughout this time, she has taught research leading to advances in disease therapy. both first and second year medical students and trained graduate students in her lab - oratory. Since 2001, she has been the Director of the medical microbiology course John B. Kostis, MD , is the John G. Detwiler Professor of Cardiology, a Professor of for second year medical students, which, in 2005, became integrated with the Medicine and Pharmacology and Chairman of the Department of Medicine at UMDNJ second year immunology course. Students frequently comment that the course Robert Wood Johnson Medical School. He is also Founding Director of the Cardiovascular should serve as a template for other preclinical courses and that Dr. Brandriss should Institute of New Jersey, Adjunct Professor of Biomedical Engineering, Rutgers University Marjorie C. Brandriss, PhD give training sessions on how to be an effective course director. She also plays a lead - and Chief, Medical Service at Robert Wood Johnson University Hospital. ership role in efforts to evaluate and strengthen the medical school curriculum and Dr. Kostis received his medical degree from the Medical School of the Aristoteleion Uni - has made major contributions to student affairs and academic integrity committees. versity of Thessaloniki, Greece (first in academic standing five consecutive years) and received Dr. Brandriss is well-known for her skills in organizing and running her course, his doctoral degree from the University of Athens. He received his postgraduate education at which students welcome and appreciate. She feels strongly that students should the Brooklyn-Cumberland Medical Center and the University of Pennsylvania, where he focus on the course material and not be distracted by organizational issues. Her stu - was Assistant Professor of Medicine. Dr. Kostis has served as Chief of the Division of dents quickly sense her commitment to their education. One of her goals as Course John B. Kostis, MD Car diovascular Dis eases and Hypertension at Robert Wood Johnson Medical School and Director has been to help students appreciate the importance of the basic science as Chief of the Coronary Care Unit, the Cardiac Catheterization Laboratories, the Non- that underlies clinical medicine. Dr. Brandriss developed case-based discussion Invasive Lab oratories and Chief of Cardiology at Robert Wood Johnson University Hospital. groups in which fourth year medical students write infectious disease cases that the Dr. Kostis developed state-of-the-art tertiary cardiology in New Brunswick, established students use to introduce the second years to case analysis and differential diagnosis. clinical research in cardiology at Robert Wood Johnson Medical School, participated in the This innovation has received rave reviews from the junior students who welcome the study and development of over 100 pharmacologic agents and devices and held leadership peer interaction and get a glimpse of what lies ahead for them as fourth year stu - positions in large clinical trials sponsored by the NIH and the industry. He has lectured dents. The senior students derive much satisfaction in their role as teachers and use by invi tation at over 150 medical schools and international meetings in the U.S. and in over the experience to hone the teaching skills the students will need as residents. 40 countries in North and South America, Europe, Asia and Africa. He has given lectures by Dr. Brandriss’s dedication to teaching has been recognized by the UMDNJ Foun - invitation at the plenary sessions of the American Heart Association, the American College dation, which in 2003 bestowed on her its Excellence in Teaching award. She is a of Car diology, the American Society of Hypertension and the Northeast Lipid Association. He recipient of the UMDNJ Master Educator Award and was awarded membership in is immediate past President of the Eastern Regional Chapter of the American Society of the Master Educator Guild, the highest educational honor given by the university. Hypertension and of the Northeast Lipid Association. Dr. Kostis has published six books, one translated into German, over 300 papers and chapters and over 250 abstracts.

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OUTSTANDING MEDICAL RESEARCH SCIENTIST AWARD FOR BASIC BIOMEDICAL RESEARCH Presented to an individual who has carried out biomedical research leading to important advances in biotechnology or in the understanding of disease processes.

Sidney Pestka, MD , is Chairman and Professor of the Department of Micro - biology, Molecular Genetics and Immunology at RWJMS-UMDNJ; and is Chief Scientific Officer of PBL Biomedical Laboratories. After medical school, he joined the laboratory of Dr. Marshall W. Nirenberg, where Dr. Pestka was part of the team who deciphered the genetic code and protein synthe - sis at NIH. In November 2009, he received the “NIH Molecular Biology Medal for Con - tributions to Deciphering the Genetic Code and the Mechanism of Protein Synthesis.” In 2002, Dr. Pestka received the National Medal of Technology from President George W. Bush, who presented Dr. Pestka with the award for scientific and technologic accomplishment, citing his “pioneering achievements that led to the Sidney Pestka, MD development of the biotechnology industry, to the first recombinant interferons for the treatment of cancers, leukemias, viral diseases such as hepatitis B and C, and multiple sclerosis; to fundamental technologies leading to other biotherapeutics; and for basic scientific discoveries in chemistry, biochemistry, genetic engineering and molecular biology from protein biosynthesis to receptors and cell signaling.” He has received many other awards, such as the Harvard University Warren Alpert Prize and the Lemelson-MIT Lifetime Achievement Award. Of Dr. Pestka's many scientific discoveries, most well-known are his pioneering achievements in developing the human alpha and beta interferons. These proteins are an extremely powerful part of the body's defenses in the fight against cancer and viral diseases. The interferons are used for the treatment of viral diseases, such as chronic hepatitis B and chronic hepatitis C; for cancers such as malignant melanoma, colon, kidney and bladder cell carcinoma and some leukemias; and multiple sclerosis. Dr. Pestka’s many achievements have made extraordinary impacts upon and benefits to humanity. The uses of interferon continue expanding and will make an even greater impact on humanity in the future.

AWARDS DINNER INFORMATION:

This year’s awards dinner will be held on Wednesday, May 5, 2010, at the Hyatt Regency Princeton. Profits from the awards dinner will be donated to a medical student scholarship fund, with the goal of distributing three scholarships in 2010. For additional information on the awards program and this year’s honorees, please visit our website at www.EJIawards.org. To order tickets, place an ad in this year’s awards journal or make a contribution, please contact the Edward J. Ill Excellence in Medicine Foundation at 609-803-2350 or at [email protected].

Janet S. Puro, MPH, MBA, is Vice President, Business Development and Corporate Communications, at MDAdvantage Insurance Company of New Jersey .

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ACULTURAL HISTORY OF FE TAL ALCOHO L SYNDR OME*

On May 31, 1977, Americans met Melissa – the first child with Fetal Alcohol Syndrome (FAS) to appear on network television news. Dr. Kenneth Lyons Jones, a pediatrician specializing in genetics and dysmorphology and one of the coauthors of the article that first named FAS, described Melissa for viewers as the camera zoomed in on her face, showing what FAS “looked like.” The next day, the National By Janet Golden, PhD Institute on Alcohol Abuse and Alcoholism (NIAAA) and the * This article is drawn from the author’s book entitled Message in a Bottle: The National Council on Alcoholism announced that women Making of Fetal Alcohol Syndrome. who had more than two drinks a day during pregnancy Harvard University Press, 2005.

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risked giving birth to damaged babies. Today, an historical look at FAS, now designated as one of the Fetal Alcohol Spectrum Disorders, has much to teach us about how new scientific findings shape medical practice and public knowledge. Named in 1973, FAS is a pattern of birth defects that occurs as a result of extremely heavy maternal alcohol use in pregnancy. As described by the Centers for Disease Control and Prevention, FAS is characterized by “abnormal facial features, growth problems and central nervous system (CNS) problems. People with FAS can have problems with learning, memory, attention span, communication, vision or hearing. They might have a mix of these problems. People with FAS often have a hard time in school and trouble getting along with others.” 1 Certainly, at its core, FAS is a birth defect of the mind. Alcohol exposure in utero causes a range of disorders, collectively known as Fetal Alcohol Spectrum Disorders, or FASDs, of which FAS is the most severe. Many experts believe that alcohol is the most common cause of mental retardation in the United States and may be responsible for up to 5 percent of all congenital abnormalities. (As studies continue and data are compiled, the latest infor - mation can be found at http://www.cdc.gov/ncbddd/fas.) The term Fetal Alcohol Syndrome first appeared in a 1973 article written by Jones and David W. Smith that was published in the Lancet. This article followed an earlier publication that described the shared anomalies of eight unrelated children whose mothers were chronic alcoholics. 2 Further research and surveys of the medical literature, most notably a French medical journal article describing 127 children born to alcoholic women, helped confirm the assertion that alcohol was a teratogen. 3 The finding raised questions for scientists regarding the timing of exposure, possible cofactors and the critical MANY EXPERTS BELIEVE THAT “ trimester. New questions for clinicians included: Should ALCOHOL IS THE MOST COMMON pregnant women drink? If so, how much could they safely CAUSE OF MENTAL RETARDATION drink? Given that generations of healthy children had IN THE UNITED STATES AND been born after exposure to alcohol in utero: Was FAS found only in the offspring of severely alcoholic women? MAY BE RESPONSIBLE FOR UP TO Or was there some risk at lower levels of consumption? 5 PERCENT OF ALL CONGENITAL With a growing number of women drinking alcohol, and ABNORMALITIES. thus a growing number of women with alcohol-related ” problems, these questions took on some urgency. The article naming FAS appeared just six months after the Supreme Court ruling in Roe v. Wade . Not

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sur prisingly then, abortion was soon proposed as a solution below which alcohol caused no harm, and thus, despite a to FAS. In 1974, the Lancet published an article from an paucity of evidence indicating that low-to-moderate use American physician asking, “Would Dr. Jones and his asso - caused damage, an emerging cadre of experts suggested ciates tell us specifically if they now recommend abortion of no consumption could be considered safe. The first official ‘severe chronically alcoholic’ pregnant women?” The doctors warning came in 1977 from the NIAAA, stating that “the replied that the risk of adverse outcome was of sufficient pregnant woman who has six or more drinks a day – magnitude to “merit serious consideration of early termi - upwards of 3 ounces of alcohol – runs a significant risk of nation of pregnancy by such women.” 4 Time magazine producing a child with birth defects.” At the time, the reported that doctors were warning prospective mothers to evi dence suggested that FAS occurred among the off - stop drinking heavily and “to consider having abortions if spring of women whose alcohol intake amounted to NEW MONEY-SAVING MEMBER BENEFIT FROM AAP NJ! 5 7 they became pregnant while addicted to alcohol.” On “eight to ten drinks or more per day.” Shortly after the We are pleased to offer NJ Chapter members a 20% discount on Medical Malpractice Premiums. The ABC Evening News , anchor Barbara Walters made the NIAAA warning, Food and Drug Administration (FDA) discount is offered by MDAdvantage and is available to both current insureds AND new applicants who 6 same observation. However, as political opposition to Commissioner Donald Kennedy asked the Department meet its underwriting criteria. abortion mounted, physicians, as well as news anchors and of the Treasury’s Bureau of Alcohol, Tobacco and Firearms Depending on insurance rates, most full-time Pediatricians would qualify for a discount of at least $1,800 news magazine reporters, became more reticent, eventually (BATF) to consider placing warning labels on alcoholic bev - and up to $3,600 per year (available to part-timers as well), with the majority of Pediatricians receiving a falling into silence. erage containers. Subsequently, Senator Strom Thurmond dis count of $2,500. As abortion became politically contested and new data introduced legislation calling for warning labels – some - suggested risks at lower levels of exposure to alcohol than thing he had been doing since 1967. The beverage industry To take advantage of the discount, you must be a current AAP NJ Chapter Member and join the AAP NJ first thought, FAS shifted from being a medical issue to responded with effective lobbying and persuaded the Purchasing Alliance, Inc. Pediatricians with no surgery and minor surgery designation as well as physicians being a public health matter and one seen as best managed BATF to use education rather than regulation. 8 with subspecialties related to pediatrics are eligible for this discount. by warning all women to cease drinking during pregnancy. While Congress debated but failed to enact labeling Visit www.aapnj.org for more information! Terms and Conditions Apply. Neither clinicians nor scientists could determine a level legislation, state and local governments as well as the NIAAA took action. Some locales mandated warning posters in bars and liquor stores, high school health education classes started incorporating information about FAS, and the BATF in conjunction with the NIAAA knowledge of the risks of drinking during pregnancy for While the legal discourse on FAS was reaching a distributed an informational pamphlet featuring America’s the mother of the plaintiff, Michael Thorp, to have known crescendo in the late 1980s and early 1990s, another theme favorite doctor, Rex Morgan, MD. Perhaps as a result of not to indulge. After four days of deliberation, the jury began to sound: Those with FAS were dangerous. Press media attention to the problem, some women halted found in favor of the James B. Beam Distilling Company. accounts of “adoption nightmares” that ended with lawsuits their drinking during pregnancy, although the data noted Jurors interviewed after the trial blamed Mrs. Thorp for her against agencies that hid information about medical that the number of babies born with alcohol-related birth son’s problems. 10 Shortly after this case, Michael Dorris problems, and especially FAS, helped spur this transformation. defects was climbing, probably an artifact of increased pub lished The Broken Cord , a prizewinning account of the Children with FAS were portrayed as toxic carriers of the surveillance and reporting rather than a significant life of his adopted son with FAS. Dorris’ work helped to fix social pathologies of their mothers. 13 The media ignored change in incidence. 9 Clearly, severely alcoholic women blame on mothers, and in interviews he mused about the the successful efforts of adoptive parents to organize and needed more than a public health warning. advantages of jailing pregnant women. 11 Propelling this find services for their children and of the individuals with A new era began when Congress eventually passed interpretation was the eruption of moral panic over FAS diagnoses who had fulfilling and meaningful lives. the 1988 Alcoholic Beverages Labeling Act, requiring crack/cocaine use. News of arrests and trials of pregnant More importantly, attention shifted to criminals diagnosed warning labels on alcoholic beverages regarding the pos - drug- and alcohol-abusing women began to fill the airwaves. with FAS. Political leaders, judges and law enforcement officials sible negative effects of alcohol intake during pregnancy Pregnancy policing threatened the autonomy of redefined FAS from a congenital condition to a “devil- and while driving and operating machinery. At that point, medical practitioners as well as the rights of individual made-me-do-it” defense, cynically employed by hardened attention shifted from warnings to blame. A 1989 lawsuit women. As a result, the American Medical Association criminals seeking to escape the consequences of their tested the question of whether a company could be held (AMA ) spoke out against the plan to compel women to actions. liable for failure to warn. The defendant, James B. Beam follow medical advice by threatening them with deten - In 1992, 15 years after Dr. Jones’ first appearance on tel - Distilling Company, walked a fine line, unwilling to admit tion or the loss of their children. In 1990, the AMA Board evision, he appeared on Nightline with Ted Koppel. The that drinking during pregnancy could cause birth defects of Trustees argued that doctors should not have a legal show opened with a teaser about “an argument that goes but also reminding jurors there was sufficient public duty to seek court-ordered obstetrical interventions. 12 back to the womb” and offered a portrait of a killer who was

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provided with in-patient substance abuse treatment that 5 Medicine: Liquor and babies. (1975, July 14). Time, 106 , 36. does not threaten them with the loss of their children? 6 Walters, B. (Anchor). (1977, June 1). ABC Evening News Can healthcare insurers be required to offer sufficient [Television broadcast]. New York: American Broadcasting coverage for substance abuse and mental health treat - Company. ment? Even when insurers provide chemical dependency 7 benefits to their large purchasers, the rules often do not National Institute on Alcohol Abuse and Alcoholism. (1978). Third special report to the U.S. Congress on Alcohol and require a specific level of coverage – making inpatient Health. Rockville, MD: U.S. Department of Health, Education services unavailable or of limited duration. In addition, and Welfare. most states have extremely limited Medicaid coverage 8 for treatment of chemical dependency. Golden, J. (2005). Message in a bottle: The making of fetal alcohol syndrome. Cambridge, MA: Harvard University Press. FAS has had many meanings over the years: a medical discovery, a public health problem, a matter of political 9 Prager, K., Malin, H., Spiegler, D., Van Natta, P., & Placek, P. J. discussion, a media phenomenon, a morality tale about (1984). Smoking and drinking behavior before and during motherhood and a legal claim. Over time, the medical pregnancy of married mothers of live-born infants and stillborn infants. Public Health Reports, 99 , 117 –127; see also, Fetal Alcohol definition has grown more precise as scientific research Syndrome—United States, 1979 – 1992. (1993). Morbidity and has helped to elucidate precisely how alcohol affects the Mortality Weekly Report , 42 : 339 –341. developing brain. But something must be added to that 10 definition: FAS is a birth defect, and it is an indication that Miletich, S. (1989, May 18). Jim Beam not at fault in tragedy, jury says. Seattle Post-Intelligencer , p. A1. alcohol-abusing women are not getting needed treatment. These women don’t need warnings; they need effective 11 Dorris, M. (1989). The broken cord: A family’s ongoing struggle medical and social intervention. If we provide it, we can with Fetal Alcohol Syndrome. New York: HarperCollins. “brain damaged as a fetus, abused as a child.” Next came abusers had become a bio-underclass. prevent their deaths and the births of babies with Fetal 12 American Medical Association, Board of Trustees. (1990). a clip of Jones excerpted from a request-for-clemency The debates over the meaning of FAS caused many Alcohol Syndrome. Legal interventions during pregnancy. JAMA, 264 , 2663 –2670. video sent to California Governor Pete Wilson on behalf of to lose sight of the alcohol-abusing women whose own Janet Golden, PhD, is a specialist in medical history, 13 convicted double-murderer Robert Alton Harris. Jones is lives were cut short by their drinking. Studies of women women’s history, children’s history and American social See, e.g. , Rather, D. (Anchor). (1992, November 11). CBS Evening News [Television broadcast] New York: Columbia heard saying, “His mother was a chronic alcoholic.” 14 Jones giving birth to alcohol-affected babies revealed shock - history and is a Professor in the history department at Broadcasting; Klein, D. (1988, January 5). Adoption gone and the other medical experts failed to persuade Wilson to ingly high death rates. One physician running an FAS clinic Rutgers University. awry: Psychotic child disrupts a household. Washington Post , halt the execution. Wilson responded to the pleas with a in Seattle estimated that 75 percent of the mothers of his p. Z10; Stidham, I. (1996, November 24). Couple want their 1 Centers for Disease Control and Prevention. lengthy statement deploring prenatal alcohol abuse but patients were missing or dead within five years of giving adoption of boy annulled. Tampa Tribune , p. 1 Metro. (2009 [updated]). Fetal Alcohol Spectrum Disorders. 16 calling for the “exercise of personal responsibility by those birth. A report on Native American children with FAS 14 www.cdc.gov/ncbddd/fasd/facts.html. Koppel, T. (Anchor). (1992, April 15). Nightline [Television 15 capable of exercising it.” FAS, Wilson seemed to say, published in 2000 found a maternal mortality rate of 23.1 broadcast]. New York: American Broadcast Company. 2 did not diminish Harris’ capacity to understand the conse - percent and referred to an admittedly small German Jones, K. L., Smith, D. W., Ulleland, C. N., & Streissguth, P. (1973). Pattern of malformation in the offspring of chronic 15 quences of his actions – a finding clearly at odds with medical study in which 11 of 60 mothers of children with FAS Excerpts from Wilson’s message on clemency. (1992, April alcoholic mothers. Lancet, 1 , 1267 –1271; Jones, K. L., & 17 17). San Francisco Chronicle, p. A12. experts. Harris died in the gas chamber in 1992, becoming (18.3 percent) had died by a 10-year follow-up. In Smith, D. W. (1973). Recognition of the Fetal Alcohol the first individual executed in California since 1967. addition to excess mortality, these women, like other Syndrome in early infancy. Lancet, 2 , 999 –1001. 16 Clarren, S. K. (1982). The diagnosis and treatment of Fetal The 1973 article helped set in motion a huge worldwide alcohol abusers, suffered from terrible physical and Alcohol Syndrome. Comprehensive Therapy, 8, 45. 3 Lemoine, P., Harousseau, H., Borteyru, J. P., & Menuet, J. C. scientific research effort; supplied the momentum for the psychological disorders linked to drinking. Yet the women’s (1968). Les enfants de parents alcooliques: Anomalies 17 Burd, L., Cox, C., Fjelstad, K., & McCulloch, K. (2000). Screening local, state and federal crusades warning women against deaths and suffering went largely unnoticed. observées: A propos de 127 cas. Quest Médical, 25 , 476 –482; for Fetal Alcohol Syndrome: Is it feasible and necessary? drinking during pregnancy; and furnished the evidence for Even today, ideas about preventing FAS too often See also , Jones, K. L., Smith, D. W., Streissguth, A. P., & Addiction Biology, 5, 127 –139. forcing alcoholic beverage manufacturers to place warning remain rooted in easy fixes such as warning labels, rather Myrianthopoulos, N. C. (1974). Outcome in offspring of chronic alcoholic women. Lancet, 1 , 1076 –1078; Warner, R. labels on bottles. Yet, in the Harris case and others, medical than in the harder, costlier, more challenging task of helping H., & Rosett, H. L. (1975). Effects of drinking on offspring: expertise was rejected. Public sympathy for victims of FAS women with alcohol problems. Alcohol-abusing women An historical survey of the American and British literature. had turned to public scorn for their mothers and fear of face numerous barriers to treatment, such as the lack of Journal of Studies on Alco hol, 36 , 1395 –1420. those who were diagnosed with the syndrome. As prenatal childcare, the cost of treatment, the opposition of family 4 Sturdevant, R. (1974). Offspring of chronic alcoholic women substance abuse became a national scourge during the members and, of course, their own denial of the problem. and response by Jones, K. L. and Smith, D. W. Lancet, 2 , 349. “crack panic” of the 1990s, the offspring of substance Such barriers raise a host of questions. Can women be

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The subject of disclosure after an adverse medical event is one that too often is avoided entirely until such an event occurs and then is discussed only in hushed voices behind closed doors. This three-part series openly discusses the facts, the fears and the realities of this aspect of practicing medicine in the belief that forewarned is forearmed. In the previous issue of MDAdvisor (Fall 2009), the first article in this series explored the present New Jersey statu - tory plan under the Patient Safety Act (PSA), supplemented by state agency regulations, directed toward prevention and prompt disclosure of adverse events. This second arti cle explains how a common law duty of disclosure, inde - pendent of statutory requirements, affects a physician’s dis closure obligations following an adverse event. The third article will address frequently asked questions regarding disclosure.

Disclosure After An ADVERSE EVENT Part 2: COMMON LAW DUTIES

COMMON LAW A basic understanding of common law is helpful in this discussion. Common law evolves from decisions made and followed by courts over time. Court opinions are often pub - lished and may be relied upon later by other courts facing similar controversies. The courts tend to follow established By Scott T. Heller, Esq. legal precedents unless good reason for change is presented. Lower courts are bound to follow the decisions of higher courts. In New Jersey, the trial courts (Superior Court) follow decisions made by the Appellate Division. Both courts follow precedent set by the Supreme Court of New Jersey.

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seek to apply to lack of disclosure following an adverse by fines, temporary suspension or permanent revocation of event include fraud, lack of informed consent and license, as well as other penalties. 7 Hence, any perceived informed refusal. benefit from misleading a patient concerning an adverse These legal doctrines have evolved from the physician’s event is vastly outweighed by the potential costs. ethical duties of candor and respect for patient autonomy. 2 The courts recognize that a doctor stands in a position Are there any situations in which a patient can seek of trust with respect to patients, forming a “fiduciary punitive damages from a doctor? rela tionship” that requires the doctor to act in the best Currently, patients can seek punitive damages for interests of the patient. 3 “fraudulent concealment of evidence” when doctors alter or destroy medical records, and patients are therefore FRAUD hampered in their efforts to prove malpractice claims. In Fraud generally involves a statement of material fact, one such case, a chiropractor caused injury to a patient by known to be untrue at the time it is made, with the intent inappropriate cervical manipulations. The chiropractor that it be relied upon by another party, that the other destroyed his original office records and created new party relies upon and suffers harm as a result. 4 records in an effort to conceal his negligence. The jury How is common law different from statutory law? events are those that result in death or loss of a body awarded only $421.75 in compensation for the physical Statutes are laws enacted by Congress or state leg - part, or disability or loss of bodily function lasting more What might be the consequences of a lawsuit injury but another $500,000 in punitive damages for fraudulent islatures. Statutes regarding adverse medical events may than seven days or still present at the time of discharge from claiming fraud? concealment of evidence. Although the punitive damages impose duties to disclose information that are greater, less the facility. Some preventable adverse events, such as Fraud is an intentional act, unlike negligence. Public were reduced by the judge, this case illustrates the poten - than or equivalent to common law requirements. Federal wrong-sided surgery, may result from negligent acts or policy prohibits insurance companies from insuring tially devastating impact of a fraud claim. 8 and state agencies create regulations to supplement and omissions. However, other examples of preventable any one for intentional misconduct. This means that the In addition, if a doctor performs “ghost surgery” in enforce statutory requirements. New Jersey’s Patient Safety adverse events in the PSA regulations include patient cost of defending a case in which fraud is the only claim place of the authorized physician, the patient may obtain Act (PSA) is an example of statutory law. falls, which can occur even in the absence of negligent against a doctor might have to be paid by the individual compensatory damages for any injury and punitive dam - acts or omissions by healthcare providers. Therefore, doctor out of his or her personal assets. This could cost ages for “battery,” which is the intentional, unauthorized How is the common law disclosure duty different from the the term “preventable” is not necessarily equated with the doctor tens of thousands of dollars for his or her touching of another person. 9 Patient Safety Act duty? individual negligence. Instead, the PSA’s primary goal defense, even if the doctor wins . Alternatively, an The failure to timely disclose an iatrogenic injury also The common law duty to obtain informed consent to is to find and correct errors and other “system failures” in insurance company might pay for the doctor’s defense constitutes sufficient basis to extend the two-year statute of continue care after an adverse event exists at all times in all an effort to prevent such occurrences. (See Part I of this but reserve the right to deny coverage for any award limitations that generally applies to negligence claims settings, even when the statutory requirements of the PSA series for more details.) related to fraud. involving adult patients. New Jersey courts have ruled may not currently apply. For example, the PSA presently In contrast, the common law duty to disclose an Any judgment or settlement in favor of the patient that the two-year period does not commence until the applies only to adverse events that occur in hospitals, adverse event is triggered whenever a reasonable patient would certainly have to be paid by the doctor out of patient learns that his or her injury may be due to the fault nursing homes, ambulatory surgery centers, psychiatric would deem that information “material” to his or her personal assets. In fact, if the jury members found that of another person or entity. 10 In one such case, a cancer hospitals and other “health care facilities licensed by the decision about whether or not to continue care with that fraud occurred, they would review the doctor’s personal patient who suffered burns during the course of radiation State of New Jersey” – the PSA does not apply, however, to doctor or facility or which treatment course to follow. If a assets to determine appropriate financial punitive treat ment did not learn the true cause of her injury until five private office settings that do not meet that definition. 1 failure to disclose material information results in harm to dam ages (up to $350,000 or five times the amount of any years later when she overheard a doctor discussing her care Nevertheless, under common law, every doctor is required a patient, an award to the patient may follow under the compensatory damages awarded for the injury, whichever with other physicians say, “This is what happens when the to disclose information that a reasonable patient would common law doctrine of informed consent. Even though is greater). 5 radiologist puts a patient on the table and goes out and has consider “material” to his or her future healthcare decisions, the event was not deemed “serious” or “preventable,” A fraud claim by a patient in a civil suit could also a cup of coffee.” In such circumstances, New Jersey courts regardless of where the adverse event occurs. such that disclosure was not required under the PSA trig ger investigations by both the healthcare facility and have allowed otherwise untimely negligence claims to To illustrate, the PSA requires notification to the patient statutory law, the common law duty of obtaining the Board of Medical Examiners (BME). In fact, judgments proceed and have entertained the possibility of a claim and state only if an adverse event occurs in a licensed informed consent to the continuation of care may compel and settlements in favor of patients in civil suits must be for fraudulent concealment based on the lack of verbal facility and is deemed both “preventable” and “serious” disclosure. reported to the Medical Practice Review Panel of the dis closure. 11 as defined by that statute and its regulations. The term BME pursuant to statutory law. 6 “preventable” means an event that could have been What common law doctrines might apply to The Medical Practices Act empowers the Board of LACK OF INFORMED CONSENT/REFUSAL antic ipated and prepared against but occurs because of an disclosure of adverse events? Medical Examiners to investigate “fraud, deception, false Lack of informed consent and informed refusal are two error or other system failure. Serious preventable adverse Common law doctrines that patients’ attorneys might pretense” or other “dishonesty” and to punish such acts other common law doctrines that patients’ attorneys may

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seek to apply following an adverse event. the physician is to provide adequate information for the The attending physician testified that he told the provider and course of care was not given to them by the patient to make informed choices. 14 If a reasonable patient’s family the above facts. He noted the event and attending physician. What defines a claim of lack of informed consent? patient would deem the occurrence of an adverse event its cause on the chart but did not document the notification Informed consent generally requires physicians to disclose “material” to future healthcare decisions, including of the family. The family members claimed they were not The Result: information that reasonable patients would find “material” choice of provider or facility, then the informed con - told about the collapsed lung, chest tube insertion or The jury found unanimously in favor of the attending to their choice among healthcare providers and reasonable sent/refusal doctrines apply. massive bleeding, only that a “small bleeder” had occurred cardiac surgeon on the informed consent (disclosure) medical alternatives, including non-treatment for their Other information, such as the availability of treat - and had been repaired. They claimed that the attending claim and in favor of the assistant surgeon on the claim con dition(s). Generally, to show lack of informed consent, ment and monitoring to minimize risks of future harm, is surgeon failed to provide them with information that of negligence relating to his chest tube insertion. The the patient must prove that: also important to patients and may be necessary to meet would have been “material” to a reasonable person in plaintiffs appealed, but the jury’s verdict was upheld by 1 — he or she was not given information a reasonable informed consent/refusal requirements for further care deciding whether to permit the defendant doctors and the Appellate Division and affirmed by the Supreme patient (not physician) would deem “material,” to health - after the adverse event. 15 For example, if a surgeon hospital to continue to care for their mother. More specif - Court of New Jersey. On June 25, 2007, the Supreme care decision(s), nicked an organ adjacent to the one on which he or she was ically, the family members claimed that if they had been Court of New Jersey decided Liguori v. Elmann, et al. , 2 — the omitted information would have caused a reasonable operating, such as the common bile duct during gall - told the true cause and extent of their mother’s injury, essentially confirming that doctors may be sued for lack person to choose a different course of care or action, bladder surgery, this would create a new or increased risk they would have deemed the facility’s staff incapable of of informed consent to the continuation of care after an 3 — the undisclosed risk occurred and of postoperative complications, requiring monitoring, addressing the patient’s needs in a competent fashion. adverse event, if it is alleged that the event was not dis -

“THE FOUNDATION UPON WHICH THE INFORMED CONSENT AND INFORMED REFUSAL DOCTRINES REST IS THE RIGHT OF EVERY PATIENT TO DETERMINE WHAT RISKS HE OR SHE MAY OR MAY NOT BE WILLING TO ACCEPT IN THE COURSE OF MEDICAL CARE. ”

4 — resulted in harm. These four elements form the basis testing and/or additional care. The doctor would have a They would then have transferred her from an “unsafe closed and additional harm thereby resulted. However, for an award to the patient. 12 duty to inform the patient about that event and warn him environment” in time to prevent the subsequent the court declined to create a common law “fraud or or her of the new or increased risk, as well as signs or devel opment of a deep, infected bedsore due to alleged deceit-based cause of action” against physicians for an What is the basic legal premise of informed refusal? symptoms that might suggest the need for immediate nursing malpractice, which contributed to sepsis and the alleged post-surgical misrepresen tation. 16 Informed refusal typically involves the failure of a physician evaluation and exploration or repair surgery. patient’s death two months later. In short, they claimed a to warn a patient of potential risks of refusing a recom - lack of adequate disclosure of the adverse event Discussion: mended course of treatment or monitoring of a medical A CASE STUDY INVOLVING A POST-ADVERSE EVENT deprived them of the chance to prevent subsequent The basis for the Supreme Court’s decision was the condition. This doctrine may apply if a physician fails to DISCUSSION additional harm. absence of any harm to the patient resulting from the dis close an event, injury or other material information that alleged fraud of the attending physician, which was “separate would have caused a reasonable person to agree to the The Facts: The Allegations: and distinct” from the harm resulting from the allegedly recommended treatment or monitoring that the unin - A cardiac surgeon performed a successful quadruple The patient’s family sued the assistant surgeon for negligent chest tube insertion by the assistant. formed patient refused. 13 bypass on a 71-year-old woman. Hours later, she suffered negligence in his insertion of the chest tube, claiming it The jury accepted the attending physician’s account of a collapsed lung. The attending cardiac surgeon, in the ultimately caused the patient’s death. The family also his postoperative conversation with the patient’s family. Might informed consent/refusal be required in order midst of another bypass, sent an assistant surgeon to sued the attending cardiac surgeon for fraud based on However, had the jury believed the plaintiffs, an award to continue care after an adverse event? insert a chest tube. The assistant inserted the tube but his alleged misrepresentation to the family regarding the could have been entered against the doctor for lack of The foundation upon which the informed consent and unknowingly lacerated the heart. The attending physician’s cause and extent of injury to his patient, claiming this also informed consent to the continuation of care after the informed refusal doctrines rest is the right of every patient partner later explored the patient in the operating room, contributed to her death. The trial judge dismissed the adverse event, resulting in some part of the injuries suffered to determine what risks he or she may or may not be willing finding and repairing a small hole in the left ventricle. The fraud claim but permitted the plaintiffs to sue the attending and the alleged wrongful death of the patient. Because this to accept during the course of medical care. The New Jersey partner told the attending physician that the chest tube physician for lack of informed consent to the continuation was an “informed consent” claim, an award would have Supreme Court has stated that the doctor-patient relationship was the likely cause of the hole he repaired. The patient of care by the defendants based on the plaintiffs’ contention been paid by the doctor’s malpractice insurance company, should not be analogous to that of parent and child; rather, was comatose but stable. that information material to their choice of healthcare along with the cost of the doctor’s defense, but could also

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licensed by the State of New Jersey is required to make retained. Even if the PSA confidentiality provision does not a disclosure to the patient if the misread is deemed apply to the disclosure, documentation of the disclosure pre - “pre ventable” and results in serious injury as defined by pared at the request of counsel will usually be protected the PSA. Mandatory or voluntary disclosures to both the from discovery by patient attorneys under the attorney- patient and state are protected by the PSA’s confidentiality client privilege. 20 Both client and counsel can decide at a provision. later time whether to maintain that privilege or waive it In contrast, a doctor who misreads an x-ray in a pri - and use that documentation to try to prevent or defend vate office that is not a healthcare facility licensed by the against a claim of fraud or lack of informed consent to the State of New Jersey is not required by the PSA to make a continuation of care. dis closure to the patient or to submit a patient-safety report and root-cause analysis to the state. However, that ADVERSE EVENT DISCLOSURE FACTS doctor may still have a duty of disclosure to the patient To determine how the law may apply to the disclosure under the doctrine of informed consent. A reasonable of an adverse event, ask yourself these questions: patient would probably deem the failure to recognize a disease or injury on an x-ray “material” to his or her decision 1) Did the event occur in a healthcare facility licensed by whether or not to continue under the care of that doctor the State of New Jersey? If so, then provisions of the or what course of treatment to pursue. Since the PSA’s Patient Safety Act (PSA) apply. have resulted in a substantial increase in the doctor’s made during disclosure of an adverse event. This statu - disclosure obligations currently do not extend to such a mal practice premium or perhaps even non-renewal. tory law promises that neither the documents pre - private office, the PSA’s confidentiality provision does not 2) If the PSA applies, was the adverse event both “serious” The New Jersey Supreme Court did not say how it pared by a healthcare facility’s patient safety commit - protect a disclosure to that patient. 19 and “preventable” as defined by that statute? If so, then would decide a case in which there were injuries from the tee as part of a process of self-critical analysis nor oral disclosure to the patient and state is mandatory but alleged fraud that were “separate and distinct” from the statements made to a patient, family or guardian will be: Why would anyone disclose an adverse event if con fidential. Otherwise, disclosure is voluntary but still injuries attributed to the alleged negligence. However, 1 — ”subject to discovery or admissible as evidence confidentiality may not apply? confidential under the PSA. other states, including New York, do permit claims against or otherwise disclosed in any civil, criminal or administrative Disclosure after an adverse event, even without physicians for post-surgical fraud when injuries resulting action or proceeding, or promise of confidentiality, may be the physician’s best 3) Regardless of whether the PSA applies or mandates from the fraud are deemed “separate and distinct” from 2 — considered a public record.” 18 defense against a potential claim for fraud or lack of disclosure, would a reasonable patient consider the the harm resulting from negligence. However, this protection conflicts with other law and has informed consent to the continuation of care. If the doctor information relating to the adverse event “material” to his In one such case, a defendant doctor cut spinal nerves not yet been guaranteed in all circumstances by the in the private office makes a disclosure regarding the or her future healthcare decisions, including choice of in surgery. He allegedly told the patient the resulting numb - courts, as discussed in Part I. misreading of the x-ray, at worst he or she may be sued provider? If so, then the common law duty of disclosure ness in her face and shoulder was “transient” and required for negligence but should not be sued for fraud or lack of applies. If the PSA does not also apply, then no confiden - only therapy to resolve. Years later, she learned from another Does the common law disclosure duty offer informed consent to continued care of the patient. tiality exists; however, disclosure may still be your best doctor that the nerves had been cut, but by then it was too confidentiality like the Patient Safety Act? However, if, after learning of the misreading, the doctor means of preventing a claim based on lack of informed late for any surgical repair. The New York court permitted No. The PSA statute was drafted precisely to strike a fails to disclose it, and the patient suffers additional harm, consent to the continuation of care – or even fraud. the patient to sue the doctor for negligence for the initial delicate balance between the state’s desire to gather the patient will claim the additional harm could have cutting of the nerves and for fraud due to the alleged information needed to help reduce serious, preventable been avoided with timely disclosure. Such harm might Who should I call for advice on disclosure if an inten tional withholding of the true nature and source of her adverse events, the patient’s right to be informed of such include the loss of the chance to cure the disease or adverse event occurs? injury, which deprived her of the chance of timely surgical events and the need for confidentiality in order to injury that the misreading doctor later recognized but Call your insurance company. Your representative will repair. 17 Therefore, patients’ attorneys are actively seeking encourage such disclosures to the patient and state by failed to disclose. retain counsel who can help you understand your legal obli - such a case to bring before the New Jersey courts in the healthcare facilities and physicians. If the doctor intentionally withholds or misleads the ga tions. In addition, the documentation you prepare for hope of expanding physician liability to include fraud in However, the common law duty of disclosure has patient about the findings on the x-ray, and as a result the your lawyer is likely to be shielded from the patient or his or such settings. Fraud claims would put doctors’ personal evolved from ethical principles and court decisions patient suffers subsequent additional harm, a fraud claim her lawyer under the attorney-client privilege. Further, assets at risk and might compel some to settle negligence upholding the patient’s right of autonomy under the seeking punitive damages may be filed. To prevent many facilities have disclosure policies and teams to help claims that are otherwise medically defensible cases. doctrine of informed consent. No confidentiality exists such claims, a doctor should not only make a disclosure physicians with the process of explaining an adverse event for disclosure of adverse events under the informed consent but also document all communication to the patient to a patient and/or the family. Meet team members now so CONFIDENTIALITY doctrine if the PSA does not also apply. For example, a outside the patient’s chart. If the doctor calls his or her that, if and when an adverse event occurs, you will be The Patient Safety Act offers protection for statements doctor who misreads an x-ray in a hospital or other facility insurance company, it is likely that counsel will be better pre pared to respond immediately.

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Most patients understand that adverse events are accidental. Whether you inform patients promptly and respond to their questions, or fail to do so, is seen by PREPARE FOR CHANGE: patients as intentional conduct on your part. Rather than avoiding the patient due to fear of litigation, embar - It’s All About Branding rassment or other reasons, try to recognize and make the best use of what may be your only opportunity to discuss The status quo is no longer the adverse event with your patient, answer his or her enough“, and so you must proactively questions and perhaps prevent litigation. Otherwise, the find new ways to be creative and think patient may seek answers from other doctors or attorneys ‘outside the box’ if you expect to who may criticize your care. affirmed in part, reversed in part at 172 N.J. 537 (2002). survive this time of upheaval in the healthcare industry . Although this article has offered factual information 5 ” about common law and statutory law in regard to the report - N.J.S.A. 2A:15 – 5.9, 5.14. ing of adverse events, this should not to be construed as legal advice. To properly protect yourself, you should 6 N.J.S.A.17:30D – 17. contact your insurance company and seek the advice of legal counsel immediately following an adverse event in 7 N.J.S.A. 45:1 – 21 (b). order to meet your legal obligations to the patient and facility, while protecting yourself, your colleagues and your 8 Rosenblit v. Zimmerman , 166 N.J. 391 (2001). By Steve Adubato, PhD facility from further legal consequences. Healthcare providers should also be familiar with the 9 Perna v. Pirozzi , 92, N.J. 446 (1983). facility’s disclosure team, with the policy and procedure for revealing adverse events and with the resources available to 10 N.J.S.A. 2A: 14 – 2; Lopez v. Swyer , 62 N.J. 267 (1973). assist physicians and patients through this ordeal. These actions should be taken before making disclosures of any 11 Lopez v. Swyer , 115 N.J. Super. 237 (App. Div. 1971). See adverse event to a patient, family member, guardian, gov - also, Mazza v. Winters , 95 N.J. Super. 71 (App. Div. 1967). ernment agency, professional board or other person or entity. The final article in this three-part series will appear in an 12 Mathies v. Mastromonaco , 160 N.J. 26 (1999). upcoming issue of MDAdvisor . This final article will address frequently asked questions regarding disclosure following 13 Battenfeld v. Gregory , 247 N.J. Super. 538, 551 (App.Div. 1991). an adverse event. Hyperlinks to each article in this series The old adage “The only constant is change” is truer than perceptions are tied to how you, as a healthcare professional, will be available after their date of publication in the online 14 Mathies, supra, at 38-39. ever in life and in business. My last column focused on brand yourself and your organization. issues of MDAdvisor . exactly why change is so challenging and what leaders in Scott Heller, Esq., is a partner with Giblin & Combs, 15 Mathies v. Mastromonaco, 160 N.J. 26 (1999). See also, the medical community can do to embrace and lead BUILDING A BRAND LLC in Morristown, New Jersey, and a certified civil trial www.Ashrm.org. change. There is another aspect of change, however, that I’ve been thinking a lot about branding these days. attorney. must also be addressed – preparing for change so that Beyond all the jargon around the concept of branding, 16 Liguori v. Elmann, et al., 191 N.J. 527 (2007). you are not paralyzed by its sudden appearance. In other there are some very practical issues to be considered by 1 N.J.S.A. 2H:12 – 25 (a). words, as healthcare professionals, when the world is hospitals and healthcare professionals – especially those 17 Simcuski v. Saeli, 44 N.Y. 2d. 442 (1978). changing around you, you cannot keep doing the same who may be managing on a tight budget. 2 AMA Professional Code of Ethics. (2001, June 17). See also , thing and expect a different result. The status quo is no Certainly, building the brand of your hospital, med - AMA Code of Medical Ethics Opinions 10.01 (Fundamental 18 N.J.S.A. 26:2H – 12.25 (f),(g); N.J.A.C. 8:43E – 10.9. longer enough, and so you must proactively find new ical center or simply your own name as a physician is all Ele ments) and 10.15 (The Physician-Patient Relationship). ways to be creative and think “outside the box” if you about building a reputation in the marketplace. This is as 19 N.J.S.A. 26:2H – 12.25 (a), (c), (f), (g), (k). expect to survive this time of upheaval in the healthcare important for you as it is for Starbucks, Nike or Coca-Cola. 3 Howard v. UMDNJ , 172 N.J. 537 (2002). industry. Much of preparing for change is connected to You make a strategic communication mistake, however, when 20 N.J.S.A. 2A:84A – 20, R.Evid. 504. how you view your role in a constantly evolving industry, you view branding as something that’s done “when we have 4 Howard v. UMDNJ , 338 N.J. Super. 33, 39 (App. Div. 2001), and, more importantly, how your patients view you. These the money and resources.” Successful branding is about so

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seen when someone walks through the door, that first impression has a great impact on how your organiza - tion is branded and perceived. You can have the best logo or slogan, but if the person greeting your patients when they walk through the door is grumpy and has a bad atti tude, your organization’s brand will take a direct hit.

3 — If you are in private practice, you must be sure that you are leading your team of nurses and medical professionals in an enthusiastic, passionate and highly committed fashion. You must constantly be building relationships, identifying the needs of those you serve and bringing that information back by communicating with key staff members who need to implement any necessary changes in your practice. If an organization’s most visible leader (aka you) is a poor communicator, the slickest ads or even the best website isn’t going to make up for this major weakness. Your practice’s brand reputation is influenced more by the person perceived to be tied most directly to the organization than by any other factor.

Branding is about so much more than simply reacting to much more than advertising and marketing, especially change as it comes your way. Branding is about being when it comes to an industry that is so uncertain. Successful prepared – being proactive and finding new ways to branding is really about how everyone in the organization continually reinvent yourself and your organization. Given communicates to patients and their families. With this in today’s difficult economic conditions, the organizations mind, consider the following: and medical professionals who consistently brand them - selves as respected, reliable and responsive will be in a 1 — Make sure that, beyond the facts and figures that much better position to survive and ultimately thrive in you use to promote your hospital or medical practice, the future where change is a certainty. you have at least one compelling personal story about Steve Adubato, PhD, is a four-time Emmy Award- an individual whose life has been greatly affected by winning anchor for Thirteen/WNET (PBS) and is a media your organization. Instead of telling that story simply analyst for MSNBC. He is a motivational speaker and through words, create a two-to-four-minute video testi - Star-Ledger columnist who has written extensively on monial that makes the person come alive. Have him or doctor-patient communication. her talk about how you, your hospital or organization improved his or her life. Make sure that video is placed prominently on your organization’s website and is easily accessible.

2 — Ensure that the initial contact that any patient has with your organization is a positive one. From the person at the front desk welcoming patients and their families to the receptionist who answers the phone to the signage

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c/o MDAdvantage Two Princess Road, Suite 2 Lawrenceville, NJ 08648

STRAIGHT FROM THE TOP: Straight talk about medical professional liability insurance with Patricia Costante, Chairman & CEO of MDAdvantage. Q: With the recent turmoil and volatility in the market, what is the current financial position of your company? A: MDAdvantage does not invest in equities and has always been committed to investing prudently. We’ve added more than $10 million dollars to policyholders’ surplus each year for the last four years, and are confident that MDAdvantage is financially prepared to handle all known and future claims. Q: You say that your company is available 24/7? What does that mean to me? A: We are dedicated to keeping our physicians safe 24/7, it’s that simple. We have claim professionals available to help you every day of the year, at any hour, ready to provide advice and guidance through the entire claims process. Q: There are a lot of medical professional liability insurance companies out there. How can I be sure I’m getting the best value from you? A: Easy, just compare! We offer flexible coverage and payment options, complimentary CME-accredited seminars and workshops, e-learning courses, on-site practice assessments and more. Our rates are very competitive and our customer service is second to none. Plus, there is no buy-in and no up-front costs to switch to our company . Ask your broker for more details. Have a question or comment about medical professional liability insurance in New Jersey? Get your answer STRAIGHT FROM THE TOP. E-mail PATRICIA COSTANTE directly at Costante @mdanj.com.

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