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Medical Malpractice: It Isn’t Limited To Hospitals

October 1, 2014

Over the years, many in the medical profession have pushed for so-called tort reform measures, which would alter the country’s civil justice system so that it is tilted in its favor. Lobbyists have made efforts to limit liability for medical negligence claims. But when it comes to the medical industry regulating itself, similar strategies are nonexistent. Though we usually don’t discuss celebrity deaths on this blog, we have discussed the many deaths arising from surgeries performed in clinics as opposed to hospitals. Just this past February, we covered the story of Richard Kaul, a doctor who was stripped of his medical license after he was found to be performing complex back surgeries without having been trained in the field.

In mid-September, the New York Times reported that an ear, nose, and throat (ENT) specialist who was “not authorized to practice medicine” at Yorkville Endoscopy was present in the room in which Joan Rivers went into cardiac arrest–while on the sedative Propofol–shortly before she passed away. Witnesses present at Yorkville Endoscopy when Rivers was admitted claim that this ENT specialist was “identified as an observer, not a doctor” and that she carried a bag with her. Staff members at the clinic assumed this woman was a makeup artist who would be touching up the comedian’s face after the outpatient operation. Rivers had apparently told friends that she would be having her procedure done in a clinic as opposed to a hospital “to avoid the publicity a hospital visit could bring,” but this proved to be a risky choice.

As we reported in February while writing about the Richard Kaul case, clinics are notoriously easy to operate with very limited oversight from regulators. According to reports, Kaul’s practice housed only one operating room in New Jersey, “was not subject to inspection or licensure by the state Department of Health,” due to its small size. Like Kaul, Rivers’ doctor, Lawrence Cohen, had faced at least one malpractice suit in the past. In 2003, Cohen performed an endoscopic operation on a retired physician, who (according to court documents) “had not knowingly consented to the procedure, which led to complications.”According to an article in the New York Post, these complications included severe pneumonia that kept the patient homebound for the rest of his life.

A spokesperson for Yorkville Endoscopy claims that this earlier treatment was an emergency procedure, unlike Rivers’ elective surgery. She goes on to assert that despite the fact that Yorkville is a clinic and not a hospital, it has “the same level of lifesaving devices as any hospital emergency room or operating room and was fully equipped to respond to a cardiopulmonary emergency.” A critic of such clinics, Frank Federico of the Institute for Healthcare Improvement, argues that in the event of an emergency, a hospital “might better manage the patient,” adding, “[Clinics] are trying to do more, and they are trying to do it at lower costs.”

There is no doubting the fact that doctors do noble and honorable work, but it would be irresponsible not to point out flaws that exist in the regulatory powers that are meant to provide oversight and keep patients safe. The public needs (not to mention deserves) greater vigilance when it comes to licensing doctors and stricter standards regarding unauthorized individuals being present in an operating room (news stories have reported that the unidentified ENT specialist took a cell phone self-portrait with Rivers while she was anesthetized). This is only the latest in a long line of articles we have published in which we advocate for tighter regulation (in the pharmaceutical industry, energy drinks, and among automakers). All too often, however, the burden falls upon attorneys to respond after a tragedy has already occurred to enact meaningful change.

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