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Pain is undertreated in the American health-care system at all levels: physician offices, hospitals, long-term care facilities. The result is needless suffering for patients, complications that cause further injury or death, and added costs in treatment overall. The health-care system's failure to respond to patient pain needs corrective action. Excuses for such shortcomings are simply not acceptable any longer.Physicians have long been accused of poor pain management for their patient. The term “opiophobia” has been coined to describe this remarkable clinical (...) aversion to the proper use of opioids to control pain. If the professional mandate of the health-care professional is to relieve suffering, then physicians are falling far short of their obligations by accepting myths about the use of opioids in the face of evidence to the contrary. (shrink)

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Physicians and institutional providers face expanding liability exposure today, in spite of state tort reform legislation and public awareness of the costs of malpractice for providers. Standards of practice are evolving rapidly; new medical technologies are being introduced at a rapid rate; information is proliferating as to treatment efficacy, patient risk, and diseases generally. Tort standards mirror this change. As medical standards of care evolve, they provide a benchmark against which to measure provider failure. The liability exposure of physicians is (...) affected by the generation of data, including outcomes data usable to profile physician practice, and statistical data that allows for predictions as to treatment efficacy, and patient prognosis; obligations to inform patients and third parties of risk created by contagious disease and other sources of harm; obligations of physicians to disclose risks that the provider creates for the patient; obligations to disclose conflicts of interest arising out of the practice setting; and duties arising from new epidemiological knowledge. (shrink)

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The physician–patient relationship is anchored in trust. Historically the relationship has been a paternalistic one, with the patient expected to trust the physician's training and skills in doing what is “best” for the patient. But medical knowledge has expanded, as have treatment options and knowledge of the risks of treatment. The physician must now possess volumes of specialized knowledge about procedures and treatments, side effects and alternatives, drugs and their contraindications. Information has become a companion to trust. The patient, while (...) still dependent on the physician's expertise, now wants information about choices and hazards in treatment. Expanded choice has made the patient a consumer of healthcare and its risks rather than a passive recipient of treatment from the professional. (shrink)

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Medicine is still largely a pre-Darwin, pre-Newton enterprise…. We do not yet understand the underlying mechanisms of the major illnesses which plague humanity, and therefore much of what is done in the treatment of illness must still be empirical, trial and error therapy. We are compelled by our limitations to resort to shoring things up, applying halfway technology, trying to fix things after the fact.

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We live in an anxious world, riddled with unpredictable threats to our safety and unexpected hatreds directed toward us. It is easy to obsess on the terrors around us, about which we can do little, and lose perspective on the real and sometimes devastating risks that we encounter in our daily lives. These everyday risks need to be regularly revisited — to remind ourselves that they can be reduced with the application of sharp minds, careful scholarship, and political will.Medical errors (...) in the American health-care system are just such a problem. The risk of death or serious injury at the hands of the American health-care system is not trivial, as we have learned over the past few years as the health-care establishment has acknowledged the level of iatrogenic injury in the system. If, as the Institute of Medicine reported in To Err Is Human, as many as 100,000 people every year are dying in hospitals, clinics, and doctors’ offices as the result of actions or omissions that could have been avoided, then this is a social problem of great magnitude and one that the law must try to correct. (shrink)

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This article proposes ethical — and legal — accountability for lawyers representing clients such as private equity (PE) firms who create ownership structures for nursing home systems. Using PE ownership as a case study, I will show that nursing home residents are often harmed and Medicaid costs inflated. I propose private law provides tools to compel such accountability, through (1) aiding and abetting doctrines and (2) fiduciary doctrines that require that the fiduciary be responsible for its vulnerable beneficiaries, not just (...) ethically but for damages and equitable relief. I further propose that the teaching of Professional Responsibility needs to be changed to force law students to consider the effect of legal practice on third parties in situations like health care financing. (shrink)

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Health-care provider liability has again taken center stage in American political debate, but with an ironic twist. In the seventies, physicians wanted tort reform, but they measured such reform solely by a reduction in both the risk of being sued and the size of any judgment a plaintiff could win. Malpractice reforms in many states in the seventies therefore capped damages, reduced contingency awards to lawyers, and restricted other tort rules to limit plaintiff success. Today physicians are conflicted. They want (...) an increase in liability exposure — not for themselves, but for managed care plans. We have therefore ended up with a series of overlapping debates, with the same debaters taking contradictory positions. Should managed care organizations—until now protected by ERISA preemption from liability—be liable? Physicians say yes. But should physicians be protected from the threat of suit, which they argue acts as an in terrorem device that drives disclosure of medical errors into hiding? (shrink)

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