san antonio medicine june 2015

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SAN ANTONIO

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When doctors

say“I do!”

4 San Antonio Medicine • June 2015

When doctors say ‘I do’Problem-solving skills honed throughtwo careers, familyBy Bruce Akright, MD, and Laura Akright, MD..........12

‘I would never marry another doctor!’By Paula Lyons, MD, and Jeffery Meffert, MD ..........14

BCMS President’s Message ..............................................8

BCMS Legislative and Advocacy News ..........................10

BCMS News ....................................................................11

Opinion: Good recordkeeping essential for proving CME credits by Fred H. Olin, MD ..............16

Risk Management by TMLT ..........................................................................................................19

Nonprofit: Moonlight Fund helps burn survivors and their families ..............................................22

Lifestyle: The DoSeum – new children’s museum hopes to spark a love of learning ..................24

UTHSCSA Dean’s Message by Francisco González-Scarano, MD ........................................................26

Legal Ease: Do I have to? and How much? Part II of II, by George F. “Rick” Evans ..............................30

Business of Medicine: Costly reflections in the ‘Silver Tsunami’

by Dana A. Forgione, PhD, CPA, CFE ................................................................................................34

BCMS Circle of Friends Services Directory ............................................................................................37

Book Review: ‘Flashback’ Written by Michael Palmer, reviewed by Teresa C. Hayes, MD ..................40

In the Driver’s Seat ..................................................................................................................................43

Auto Review: Ford Escape, by Steve Schutz, MD ..................................................................................44

MEDICINETHE OFFICIAL PUBLICATION OF THE BEXAR COUNTY MEDICAL SOCIETY • WWW.BCMS.ORG • $4.00 • JUNE 2015 • VOLUME 68 NO. 6

SAN ANTONIO

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BOARD OF DIRECTORS

OFFICERSJames L. Humphreys, MD, PresidentLeah Hanselka Jacobson, MD, Vice PresidentMaria M. Tiamson-Beato, MD, TreasurerAdam V. Ratner, MD, SecretaryJayesh B. Shah, MD, President-electK. Ashok Kumar, MD, Immediate Past President

DIRECTORSJorge Miguel Cavazos, MD, MemberJosie Ann Cigarroa, MD, MemberKristi G. Clark, MD, MemberJohn Robert Holcomb, MD, MemberJohn Joseph Nava, MD, MemberCarmen Perez, MD, MemberOscar Gilberto Ramirez, MD, MemberBernard T. Swift, Jr., DO, MPH, MemberMiguel A. Vazquez, MD, MemberFrancisco Gonzalez-Scarano, MD, Medical School RepresentativeCarlos Alberto Rosende, MD,

Medical School RepresentativeCarlayne E. Jackson, MD, Medical School RepresentativeBonnie Harriet Hartstein, MD,

Military RepresentativeRebecca Christopherson, BCMS Alliance PresidentGerald Q. Greenfield Jr., MD, PA, Board of Censors ChairDonald L. Hilton Jr., MD,

Board of Mediations ChairGeorge F. "Rick" Evans Jr., General Counsel

CEO/EXECUTIVE DIRECTORStephen C. Fitzer

CHIEF OPERATING OFFICERMelody Newsom

DIRECTOR OF COMMUNICATIONSSusan A. Merkner

COMMUNICATIONS/PUBLICATIONS COMMITTEEFred H. Olin, MD, ChairEstrella M.C. deForster, MD, MemberJay S. Ellis Jr., MD, MemberJeffrey J. Meffert, MD, MemberRajam S. Ramamurthy, MD, MemberJ.J. Waller Jr., MD, Member

As I write this, I am sitting at the Texas Medical Associ-

ation’s annual TexMed meeting in Austin. I am always im-

pressed to see such a large group of physicians from all

across the state coming together to share common experi-

ences and frustrations and seeking solutions. It is thera-

peutic to see firsthand that you aren’t alone and that you

have colleagues willing to volunteer their time to serve on

committees and councils for the greater good. We all face

a lot of complicated issues that we need help with as we try

to have a viable practice in the face of an underfunded and

inefficient healthcare system.

The great challenge for organizations such as TMA is uni-

fying a fractious, territorial and generally difficult con-

stituency. It is altogether too easy to forget that it is an

organization of people who genuinely have the intent of steer-

ing legislative and regulatory agency agendas to the pathway

of repairing and rethinking the various glitches in our health-

care delivery system for the broadest general benefit, especially

if a regulatory or legislative effort promoted by TMA seems

to go against the niche interests of a certain specialty or geo-

graphic region.

My personal experience from serving on the Council on

Legislation is that any of these decisions by the organiza-

tion are carefully thought through and debated before any

action is taken. There isn’t always a clear-cut best choice

for everyone when considering how to respond to a pro-

posed bill or Texas Department of Insurance or Medicaid

regulation. That said, a greater effort to make the reason-

ing behind decisions taken by the organization is necessary

in the name of transparency and better communication to

the membership. Often a strategy that seems foolish or

careless at first glance makes sense if the background for

the decision and the possible consequences of not taking

action are understood.

If that improved communication can be achieved, it will

be that much easier for us to be unified in our efforts to im-

prove the healthcare system for our patients and ourselves.

The more we allow ourselves to be divided and dilute our ef-

forts with internecine fighting, the more onerous our practice

environments will become.

James L. Humphreys, MD, is the 2015 president of the Bexar

County Medical Society. He is a pathologist with Precision

Pathology in San Antonio.

PRESIDENT’SMESSAGE

Organized medicine seeks the broadest benefits for the majority of its constituents and their patientsBy James L. Humphreys, MD2015 BCMS President



BCMS LEGISLATIVE ANDADVOCACY NEWS

The final two TMA/BCMS legislative events ofthe 84th regular session in Austin included a special“Last Thursday” held during TMA’s annual meeting,TexMed, on April 30, and the last “First Tuesdays”event on May 5. A big thanks to the following individuals who par-

ticipated: Carmen Garza, MD; Pam Hall, MD;David Henkes, MD; Bill Hinchey, MD; James L.Mims, III, MD; Gabriel Ortiz, MD; Raymond Os-bourn, MD; Jennifer Rushton, MD; Ryan VanRamshorst, MD; Courtney Hobza, medical student,and Jennifer Lewis, BCMS Alliance president-elect.The newly elected state representative for Texas

House District 124, Ina Minjarez, was sworn in dur-ing the week of April 27. Minjarez assumes the seatformerly held by now-Sen. Jose Menendez (Dist. 26).At the time of this writing, the 84th regular leg-

islative session was scheduled to end sine die on June1. Stay tuned for more information on the sessionwrap-up and results of bills signed into law or vetoed.A complete wrap-up will be coming soon. Look foradditional highlights in the BCMS newsletter, TheWeekly Dose.

For local discussion on this and other legislativeadvocacy topics, consider joining the BCMS Leg-islative and Socioeconomics Committee by contact-ing Mary Nava at [email protected].

84th Regular legislative session closes; last First Tuesdays concludes Minjarez sworn in asstate representative By Mary E. Nava, MBABCMS Chief Governmental and Community Relations Officer

Rep. Lyle Larson (Dist. 122) (left) and Bill Hinchey, MD, vis-ited during the April 30 Last Thursday event in the Capitol.

David Henkes, MD (from left); Bill Hinchey, MD; MaeganCollins, legislative staffer in the office of Speaker Joe Straus; Jen-nifer Rushton, MD, and Jennifer Lewis discussed medicine’s issuesduring the April 30 Last Thursday visit to the Capitol.

BCMS First Tuesdays participants paused for a photo May 5with Sen. Jose Menendez (Dist. 26): (back row from left) JamesL. Mims, III, MD; Menendez; Pam Hall, MD; Ryan VanRamshorst, MD; (front row from left) Gabriel Ortiz, MD; Car-men Garza, MD; Courtney Hobza; Mary Nava and Raymond Os-bourn, MD.

Pausing for a brief visit with Sen. Carlos Uresti (Dist. 19) duringthe May 5 First Tuesdays were (back row from left) Pam Hall, MD;Mary Nava; Ryan Van Ramshorst, MD; James L. Mims, III, MD;(front row from left) Carmen Garza, MD; Uresti; Raymond Os-bourn, MD, and Courtney Hobza.

visit us at www.bcms.org 11

BCMS NEWS

As BCMS First Tuesdays participants visited with ShannonHouston, legislative staffer in the office of Rep. Lyle Larson (fore-ground), Larson approached the mic on the House floor to discussa bill (seen on TV monitor).

A group of pediatricians and subspecialists visited with EduardoZerbe, legislative staffer in the office of Rep. Ruth Jones McClen-don (Dist. 120), during the May 5 First Tuesdays: (standing fromleft) Carmen Garza, MD; Zerbe; Ryan Van Ramshorst, MD, andJames L. Mims, III, MD.

Offering congratulations to the new state representative forHouse District 124, Ina Minjarez, during the May 5 First Tuesdaysvisit were (from left) Raymond Osbourn, MD; Courtney Hobza;Ryan Van Ramshorst, MD; Minjarez; James L. Mims, III, MD;Carmen Garza, MD; Pam Hall, MD, and Mary Nava.

BCMS WISHES TO THANK ITS

CAPITAL CAMPAIGNMAJOR DONORS

Thank you to the following major contributors to theBCMS Capital Campaign in support of the medical so-ciety’s new building now under construction:

BB&T BankFavorite Healthcare Staffing Inc.

Frost BankGastroenterology Consultants of San Antonio

H-E-BMednax/Pediatrix

Northside Ford Dealerships/Mark Wood

Donations of all amounts are appreciated. Pledgesmay be paid over multiple years. All donations are 100percent tax deductible; payable to the Bexar CountyMedical Library Association, tax ID 74-0510530.

For more information, call BCMS at 210-301-4383.

Honoring Our Past ...Building Our Future!

Construction continues on the site of the new BCMSoffice building.

Architectural rendering of new BCMS office building,4334 North Loop 1604 West.


WHEN DOCTORSSAY ‘I DO’

Our journey together began at Southern Methodist University in

1975 — meeting in a complex variables math course. We were both

pre-med math majors, and had decided to head into the profession

of medicine without any real idea what that entailed.

Both of us really enjoyed being math majors, and with hindsight

we believe what it gave us was an ability to problem-solve that has

served us well in our marriage and our medical careers. We do not

remember ANY of the complex math we learned, but we do have the

ability to work through difficult and complex situations and prob-

lems. Raising three boys and maintaining two careers has provided

an adequate number of problems for us to work with!

SCRAPING ICE OFF A CARWe graduated from Washington University School of Medicine

in St. Louis in 1980. The experiences we had in medical school to-

gether provided a strong bond, as we shared both the excitement

as well as the frustrations of being medical students. We do not

miss having to scrape ice off a car at 4 a.m. to get in for surgery

rounds, donating blood for spending money, or having to go to

laundromats.

After we married in 1977, we shared the same last name. This

proved difficult during internship and residency in San Antonio with

overhead paging and operators who got us mixed up. We have stories

from working at the Robert B. Green and the Bexar County Hospital

that only those of our age would understand. We forged close friend-

ships with fellow interns and residents, and always enjoy catching up

and re-sharing those stories.

The years of early private practice and raising small children were

challenging ones. We always seemed to be “juggling.” A major house

fire in 1993 and relocation for a year helped to put things in per-

Problem-solving skills honedthrough two careers, family

By Bruce Akright, MD, and Laura Akright, MD



spective, and we worked to simplify our schedules. Both of us had

orthopaedic injuries related to ski trips and decided that was not the

sport for us to pursue as a couple. However, our two younger sons

both decided to attend the University of Colorado so the vacations

there obviously had a positive impact.

FACING NEW ISSUESThe later years of private practice have had their own issues with

focus on technology and reimbursement. By this point in our careers,

taking care of and communicating with patients is relatively easy

compared to all the other issues we face. We have morning walks

with the dogs at 5:30 every day, and that is our time to catch up with

all that is going on.

We have shared a love of travel since our first trip to Africa in 1983.

We have been fortunate to be able to travel to all parts of the world

over the years, and we always have new places we would like to see.

Our boys instilled in us a love for soccer as well since that was the sport

we lived and breathed with them during the teen years. We have been

able to take our boys to the last three World Cup games in Germany,

South Africa and recently in Brazil. Last summer, we were cheering the

U.S. team on the Copacabana beach after their victory over Ghana.

This was at the time the Spurs had just won the NBA Finals, and we

were wearing our Spurs jerseys in Brazil. We had more people stop us

and cheer with us in every language imaginable!

Our journey together has been an amazing one – we never lose

sight of how fortunate we are to be able to practice medicine and

care for people all the years that we have. We work to communicate

and to always try to problem-solve together. There have been chal-

lenges that seemed insurmountable, but our faith is strong, and we

have always believed in each other. We will be celebrating our 38th

anniversary in June – planning to do so in Venice, one of our fa-

vorite cities.

Bruce Akright, MD, practices at

Northeast OB/GYN Associates. Laura

Akright, MD, practices at Northeast

Endocrinology Associates. Both physi-

cians are BCMS members.



We met in anatomy lab (tanks No. 19 and No. 21) and liked

each other well enough, but it was the long trips to and from Flo-

resville when paired together for the “Psychosocial Aspects of

Healthcare” where we got to know each other well enough to agree

that to get involved with another physician would be really stupid.

Surely the complexities and sacrifices needed in a two-profession

household would be far too much to make it work. We enjoyed

each other’s company enough that we got over that and decided

the only way the U.S. Air Force would keep us together after med-

ical school would be if we were married. It isn’t clear now who pro-

posed to whom but it was likely on a Volksmarsch where one of

us said, “I guess we need to get married before the match,” and

the other said, “I guess so.”

FIRST BIG DECISIONThe first big couples’ decision was Jeff deciding to apply for a

family practice residency instead of transitional internship. In the

residency match now, couples may designate one of the applicants

as the “first priority,” after which the other applicant will be

matched according to the results of the first. This is especially im-

‘I would never marry another doctor!’By Paula Lyons, MD, and Jeffrey Meffert, MD

Photo courtesy Jeffrey Meffert, MD, and Paula Lyons, MD



portant to consider when one residency or preferred location is

more competitive than the other.

“No one is allowed any time off on this rotation…unless you

are getting married, in which case you can have a day off.” At the

time, our attending on the inpatient psychiatry service didn’t know

we were already planning on getting married. Our classmates were

invited to the reception in Jeff ’s parents’ back yard, not knowing

we had gotten married that morning because we didn’t want our

loan-broke friends to feel obligated to bring presents. Our honey-

moon was a Sunday night at La Mansion and a Monday off as our

attending reluctantly stood by his flippant comment. Tuesday we

chaperoned a ward full of psychiatric patients at a Brackenridge

Park picnic which we took as an omen of the challenges we would

face trying to balance our married and professional lives.

Over the next several years, work and training limited time off

together with one of us either in-house, on-call or sleeping off a

bad shift all the time. Even after residency is complete, it can be

easy to fall into conflicting work and call schedules so that relaxed

quality time for the twin professional family, especially once chil-

dren enter the mix, may be hard to find. Another physician couple

we know holds Friday nights sacred (Jeff ’s new boss warned him,

“I don’t do Friday call”) as a date night, and this is one way to man-

age this difficult balance.

How did we manage child sick days, doctor appointments, trans-

porting two children to different schools, parent-teacher confer-

ences, school performances, sports events and family vacations?

Fortunately, Paula’s schedule was more flexible than Jeff ’s, so it all

worked out. And looking back, it was all a blur.

We started together in an Air Force Family Practice clinic and

when Jeff was transferred to Alaska in an operational medicine po-

sition, Paula left the service and worked in a private practice setting

until it was time to move back stateside. It can be a significant chal-

lenge to the dual-physician family if one member is in a fulfilling

and profitable practice situation while the other needs to move on.

Once again a decision must be made as to what is essential, what is

survivable, and whose practice takes priority.

Reluctant to get involved in another private practice, Paula took

a job in urgent care with the expectation that another move was

right around the corner. In fact, Jeff spent the last 16 years of his

Air Force career moving around San Antonio, and Paula just cele-

brated her 25th year at Texas MedClinic. Sometimes things work

out fine, but the stress of unanticipated or unwanted practice

changes will strain any relationship.

LOVE AND PATIENCEA recent British Medical Journal article suggests that rather than

having a higher divorce rate, physicians divorce less than the general

population as a whole, although how this applies to dual-physician

families is not clear. The dual income is nice and removes some of

the financial stresses some families suffer, but it comes with the

price of uncoordinated long hours, unpredictable ability to be

where the family wants you to be, and periodic career upheaval if

one partner needs to move. With love and patience it can be done,

and we both feel lucky that we “married well.”

Speaking of omens, we were married on the day Mount St. Helens

blew up, so we can honestly say the “earth moved” on our wedding

day. This summer we will continue our occasionally volcanic marriage

by celebrating our 35th anniversary in Pompeii. The trip to Italy was

carefully planned to be sure we would be back in Texas for the first

birthday of our first grandson. This life adventure isn’t over yet.

Paula Lyons, MD, is a family medicine practitioner at Texas Med-

Clinic. Jeffrey Meffert, MD, is a dermatologist at the University of

Texas Health Science Center San Antonio and a BCMS member.


So, you’re at home, it’s a beautiful day, and you happen to look

out the window and see the postman pushing some mail into your

street-side mailbox. It’s the first week of the month, so you know

that it’s probably mostly one form of junk mail or another: sale

brochures, “free” meals that just happen to require you to listen to a

pitch about retirement plans, campaign literature for politicians who

think that you live in a completely different district than you actually

do, maybe a bill or two, and a much-anticipated issue of San Antonio

Medicine. But wait! What’s this? It’s an envelope with the return ad-

dress of the Texas Medical Board! Now, try to convince me that your

little heart didn’t skip a beat, or that you didn’t gasp with apprehen-

sion. Maybe not as much as you would have if it said Internal Rev-

enue Service, but still…

I received one of those TMB letters not long ago, and it turned

out to be seemingly benign: I had been chosen, totally at random, to

confirm that I had obtained (as I had claimed on my registration

form) enough CME credits over my last two-year registration period.

The requirements are that you have to have at least 48 credits every

24 months, and that at least 24 of them are AMA/PRA Category 1

or its equivalent from the American Orthopaedic Association, the

American Academy of Family Physicians, the Texas Medical Associ-

ation, etc. Furthermore, at least two of those 24 must be in “medical

ethics and/or professional responsibility.”

“OK,” you say. “No problem. I’ve gone to several professional

meetings, grand rounds, and so on, just shouldn’t be a problem.”

Then you come to the line that says, “Please provide copies of cer-

tificates to document medical ethics and all other formal hours and

also a log of informal hours, if applicable, which should include dates

and hours completed.” Certificates? Who has certificates? And what

are “informal” hours? The letter says, “Informal hours include activ-

ities such as reading journals, attending case conferences, etc.” Wait

a minute. Who writes down the time he spends reading journals?

Come on, guys! Are you serious?

Turns out that they are.There are some good things in the very small-print copy of the

Texas Administrative Code, Title 22, Part 9, Chapter 166, §Section

166.2 Continuing Medical Education that the TMB is kind enough

to send to you. For example, if you managed to get more than the

48 Category 1 credits, you can carry the excess forward and apply

them toward the next registration period’s requirements. That’s nice,

and I had 8.25 extras. I made a note.

Anyway, being a compulsive soul, every time I went to a course or

meeting, I made an entry into an Excel spreadsheet. I’ve been doing

OPINION

Good recordkeeping essential for proving CME credits

By Fred H. Olin, MD

Continued on page 18


so since 1980 and have nearly 300 meetings of one sort or another

on it. So, I took a look at the 2012 to 2014 list, and there were more

than enough, and there were two hours of ethics, both from the med-

ical school’s orthopaedic department’s grand rounds. I had certifi-

cates for the Academy meetings I’d been to, and for all of the online

material I had completed, but none from grand rounds. I found out

how to get those and downloaded them. I was checking their list

against mine and noticed that neither of the ethics lectures was there.

Oh, boy! After a bunch of phone calls to some really nice and helpful

people at UTHSCSA’s CME office and the orthopaedic department,

they finally were able to prove to themselves that I had indeed been

there and to get that information into their database so that I could

download a complete copy to send to the board.

All’s well that ends well, right? Well, I don’t really know. I

haven’t heard from the board that my stuff was adequate, but it’s

only been a month or so since I sent it in. We shall see. Here are

today’s lessons:

KEEP RECORDS!If at all possible, get the certificate of attendance, with the appro-

priate language and documentation of the credits allowed, at the time

of the meeting.

Don’t lose/misplace the certificates…in fact, maybe make a couple

of copies and file them somewhere else.

Be ready a month or two after your biennial registration ends to

get the letter. It may not happen, but if it does, you’ll be equipped.

Epilogue: A couple of weeks after I wrote this, I received a letter

from the TMB saying that I had passed their scrutiny, and all was

well. This was about five weeks after I had submitted the material.

Fred H. Olin, MD, is a semi-retired orthopaedic sur-

geon who was greatly relieved when he finally got all of

that documentation together.

OPINION

Continued from page 16


RISK MANAGEMENT

Failure to treat postoperative infection

By TMLT Risk Management Department

This closed claim study is based on an actual malpractice claim

from Texas Medical Liability Trust (TMLT). This case illustrates how

action or inaction on the part of physicians led to allegations of pro-

fessional liability, and how risk management techniques may have ei-

ther prevented the outcome or increased the physicians’ defensibility.

The ultimate goal in presenting this case is to help physicians practice

safe medicine. An attempt has been made to make the material more

difficult to identify. If you recognize your own claim, please be as-

sured it is presented solely to emphasize the issues of the case.

PRESENTATIONA 69-year-old woman was referred to an orthopaedic surgeon for

a defect in her Achilles tendon. She was diagnosed with a chronic

rupture of the Achilles tendon. The patient was given the options of

either living with the defect or undergoing reconstruction to regain

strength and function. The patient chose to proceed with the recon-

struction. The orthopaedic surgeon — the defendant in this case —

performed a repair with transfer of the flexor hallucis muscle.

The surgery was uneventful, and the patient was administered a

one-time dose of vancomycin post-operatively. Vancomycin was se-

lected because the patient was allergic to penicillin. The patient was

discharged the following day with instructions to leave her foot in a

splint. She was to follow up with the orthopaedic surgeon within 10

days.

PHYSICIAN ACTIONThe patient followed up with the surgeon eight days after surgery.

She was noted to have some skin irritation and some minimal

drainage. Because the wound was slow to heal, the surgeon made the

decision to leave the sutures in place for another week.

The patient returned a week later, and the sutures were removed.

The wound was observed to have some minimal wound granulation

and drainage from the incision. These observations of the wound

were written in a different handwriting from the surgeon’s, but were

not initialed. The surgeon believed that they were in his nurse’s hand-

writing, but he could not be sure. It was also unclear if the entry was

what the patient had relayed to the nurse, or if those observations

were made by the nurse herself. The patient was fitted with a splint

to continue immobilization of the foot and was told to only remove

the splint to bathe. She was also advised to complete wet-to-dry dress-

ing changes, to monitor the wound for signs of infection, and to re-

turn to the office in four weeks.

Nearly one week after this office visit, the patient called the sur-

geon’s office and received a prescription for ciprofloxacin. The only

record of this encounter, which occurred five days after the patient’s

last visit, was the pharmacy record. There is no record of the phone

call, what was discussed, or the reason for the prescription.

Two days later, the patient came to the surgeon’s office complain-

ing that her foot was “feeling hot” and noting a “hole” in the wound.

She was not wearing her splint. The patient claimed that she was not

advised to do wet-to-dry dressing changes, but instead was told by

the surgeon’s nurse to clean the wound with peroxide, then dress with

dry gauze. The surgeon examined the wound, noted minimal celluli-

tis, but did not feel the area was hot. He advised the patient to con-

tinue taking ciprofloxacin, discontinue the improper peroxide

cleanings, and proceed with wet-to-dry dressing changes.

The patient called three days later, while the surgeon was on vaca-

tion, to report that the wound drainage was getting worse and now

had an odor. The patient was advised to come to the office, and was

seen by the surgeon’s partner. This office note was incomplete, only

stating: “post-op wound infection, culture taken.” This second sur-

geon, not realizing the patient had a penicillin allergy, gave the pa-

tient a prescription for amoxicillin clavulanate. Fortunately, this

mistake was caught by the pharmacy, and another antibiotic was sub-

stituted. The patient stated in her deposition that this was what made

her lose confidence in the surgeon’s office. She sought treatment from

a wound care facility four days later. The wound care physician di-

agnosed her with full thickness dehiscense, necrotic subcutaneous

fatty tissue, and necrotic areas of the tendon in the wound base.

Six days later after the patient’s appointment with her surgeon’s



RISK MANAGEMENT

partner, the lab results were returned indicating staphylococcus and

actinomyces meyeri infections. The patient was called and asked to

come to the surgeon’s office that day. She was emergently referred to

a plastic surgeon, who admitted her for IV antibiotics and several

debridements of the wound.

ALLEGATIONSA lawsuit was filed against the orthopaedic surgeon, alleging that

he failed to timely and adequately treat the patient’s post-operative

infection. She claimed that function of her lower leg was impaired

as a result of the infection and the failed Achilles tendon graft.

The patient underwent subsequent surgeries with a plastic surgeon

to remove the original tendon transfer due to necrosis of the tissue.

Tissue from the patient’s wrist was transplanted to the original sur-

gical site to fill the void left by the removed tissue. The patient

claimed the subsequent surgeries resulted in the loss of sensation in

her fingers.

LEGAL IMPLICATIONSTMLT consultants who reviewed this case were generally support-

ive of the orthopaedic surgeon. Infection is a known complication

of Achilles tendon repair. There also appeared to be some question

of patient compliance. However, all of the consultants had some con-

cerns about the lack of adequate documentation pertaining to justi-

fication of the antibiotics chosen.

The surgeon’s partner had also missed elements of the documen-

tation, and did not provide detail about why he chose amoxicillin

clavulanate. However, the only defendant in this lawsuit was the or-

thopaedic surgeon who performed the repair.

DISPOSITIONThis case was settled on behalf of the orthopaedic surgeon.

RISK MANAGEMENT CONSIDERATIONSAlthough infection is a known complication inherent in any sur-

gical procedure, there were several problems with the surgeon’s doc-

umentation that complicated the defense of this case.

It is recommended that all phone calls between the patient and

physician be documented, particularly calls in which medical advice

is given. There was no record of the patient’s call that triggered a pre-

scription for ciprofloxacin, or reason for the change in the treatment

plan. Documentation of the patient’s symptoms, description of the

wound and any noted changes, and the physician’s reasoning behind

treatment not only creates a thorough chart, but in this case, it would

have provided additional information to the surgeon’s partner when

he saw the patient.

Implementing a protocol that requires all staff making entries in

the chart to initial or sign their entries will assist in identifying who

made the entry in case it needs to be verified at a later date.

It is recommended that physicians have a policy and procedure

manual for the practice to ensure that all personnel are operating

under the same guidelines, as expected by the physician. This may

include any routine instructions that are commonly given to pa-

tients, such as how to perform a wet-to-dry dressing change. It is

further recommended that important instructions to the patient

be developed into a handout that can be given to the patient and

to document that the handout was given. Patients often become

confused when instructions are given in the office, which can make

compliance difficult. Should a claim occur, the printed instructions

could be used as evidence to show precisely what information was

given to the patient.

It is appropriate for medication allergies to be consistently and

boldly documented on the front of the chart to prevent them from

being overlooked. All physicians in the same practice should stan-

dardize how allergy information is displayed if they cover for one

other. It was fortunate that the pharmacy caught the error before the

prescription was filled; however, the error made the patient lose con-

fidence in the practice. A patient and/or the patient’s family are more

likely to file a lawsuit if they perceive that the care they are receiving

is substandard.

The information and opinions in this article should not be used

or referred to as primary legal sources nor construed as establishing

medical standards of care for the purposes of litigation, including ex-

pert testimony. The standard of care is dependent upon the particular

facts and circumstances of each individual case, and no generalization

can be made that would apply to all cases. The information presented

should be used as a resource, selected and adapted with the advice

of your attorney. It is distributed with the understanding that neither

Texas Medical Liability Trust nor Texas Medical Insurance Company

is engaged in rendering legal services. © Copyright 2015 TMLT.

Texas Medical Liability Trust is a BCMS Circle of Friends sponsor at

the platinum level. BCMS does not endorse products or services.



NON-PROFIT

In April 1998, burn survivor Celia Belt

walked onto the burn unit at Brooke Army

Medical Center (now the San Antonio Mili-

tary Medical Center) to volunteer her time

with burn survivors and their families.

Before doing so, she underwent three

months of interviews before being allowed

access to the unit. She also took part in in-

fectious-disease control and burn-unit train-

ing classes required of incoming burn-unit

medical personnel. As a volunteer, she spent

her time visiting with patients and their fam-

ilies. She also helped facilitate support group

meetings on the unit.

It did not take long for her to identify a

gap in services for the burn community.

During this time, she met burn patient

Henry Coffeen III. Together they created the

Moonlight Fund, a 501(c)3 organization, in-

corporated in Texas. Their partnership has

helped thousands of burn survivors and their

families. Henry and Celia were assisted in

their efforts by executives at Ernst & Young

and burn-unit personnel.

HELP WITHOUT DELAYEmotional, financial and in-kind goods

and services all are made available to patients

and their families. The fund is the only non-

profit of its kind, offering assistance from the

onset of the accident through rehabilitation

and into the many years of recovery. The

fund provides this help without delay, pro-

viding immediate assistance in the hour of

need. Original goals for the fund were to

manage an organization that was modest on

overhead, generous in giving and on call

24/7.

Early fundraising efforts included an air-

show from 1999 to 2009, with attendance

near 20,000 at the final airshow hosted. The

events not only provided income for the

funds efforts but also a measure of public

awareness regarding the needs of those suf-

fering with burn injuries. Due to the large

number of wounded soldiers needing hands-

on emotional care, and the move of the

Moonlight Fund’s co-founder to the Fort

Worth area, the shows were disbanded. Thus,

the fund depends on foundation grants,

fundraising galas and personal donations to

continue its efforts.

There exists a substantial lack of services

for burn survivors and their families. The av-

erage length of a hospital stay is 93 days, and

depending on the severity of the injuries,

physical and occupational therapy can take

several years. Without a good protocol of

after-care, many patients find themselves

back in the hospital for ongoing surgeries to

release scar tissue that otherwise would have

been treated by good rehabilitative care.

There also exists a need for ongoing coun-

seling for patients and their families. The

trauma caused by these life-changing injuries

has a long-lasting effect on all involved.

Civilian patients often are uninsured or

under-insured and do not receive the neces-

sary rehabilitation that is crucial to a full re-

covery. Active-duty injuries incurred by

military personnel due to conflicts abroad

also need assistance. Family members many

times find themselves as primary caregivers

and need the support of an outside organi-

zation, such as the Moonlight Fund. The

fund was operating at the onset of the war in

the Middle East, and has adapted to the in-

creased needs and added programs to assist

new groups of burn and blast survivors. The

war has provided for a complex number of

injuries, with most patients also suffering

from post-traumatic stress syndrome and

traumatic brain injuries. The Moonlight

Fund steps in to cover any gap in services to

wounded soldiers and their families.

In 2007, the fund expanded its services to

include those burn and blast survivors who

have undergone amputations. Moonlight

also introduced a retreat program that year,

offering a weekend setting for burn and blast

survivors hosted in the peaceful surroundings

of the Hill Country. Activities such as

archery, horseback riding, hiking, skeet

shooting and painting classes provide a meas-

ure of physical and emotional therapy. At-

tendees find plenty of opportunities to build

comradery and establish friendships. Pa-

tients, caregivers and their children learn they

are not alone in their struggle to regain their

health and wellness. Relaxation massages and

yoga sessions are available throughout the

weekend. Patients and families have the op-

portunity to meet others experiencing some

of the same struggles. They find it a “safe

place” to share their story and gain the emo-

tional healing needed for them to continue

in their healing process and prepare them to

re-enter the world.

Moonlight Fundhelps burn survivors and their families

Special to San Antonio Medicine

NON-PROFIT

TOP NONPROFITIn 2012, the Moonlight Fund was chosen

as the top nonprofit in the United States by

the Fisher House/Newman’s Own Founda-

tion. This award was given specifically for the

group’s healing retreat program. Over the

years, the fund has received many awards and

recognitions, yet it is the care of those less

fortunate that brings the greatest joy.

Today, the Moonlight Fund assists with

everything from wound-care supplies, edu-

cation costs, rehab, counseling, building of

ramps and furnishing homes, among other

options, while operating with the same

founding principles of maintaining the low-

est overhead possible and never restricting

available funds to those in need. Original co-

founder Celia Belt continues to serve as the

fund’s executive director. She is supported in

her efforts by an active and caring board of

directors and a grants manager. Volunteers

also play a big part in assisting with the re-

treats, fundraising and office assistance.

Many volunteers are those who have been as-

sisted by the fund in the past. The circle of

giving continues with their attentive and

dedicated efforts.

With the increase in patient requests, the

fund held a major fundraiser in 2014, which

raised $67,000. This year’s follow-up will be

held Sept. 26 at the Eilan Hotel, 17103 La

Canterra Parkway. The evening will feature

entertainment by aerialists, cirque entertain-

ers and music by the Statesboro Revue band.

Guest speaker will be Dale Petroskey, former

White House assistant press secretary under

President Ronald Reagan. Guests will have

the opportunity to meet Shilo Harris, Iraq

war veteran, burn survivor and author of the

book, Steel Will.

For event tickets and more information,

go to www.moonlightfund.org or call Celia

Belt at 210-445-0971.

Courtesy photos. From the top: A family helped by the Moonlight Fund plays together.Retreatants gather at an Easter event sponsored by the Moonlight Fund. MoonlightFund executive director Celia Belt speaks at an event attended by U.S. Army Gen.Martin E. Dempsey, chairman of the Joint Chiefs of Staff.


LIFESTYLE

Young minds have a new place to grow in

San Antonio – The DoSeum.

San Antonio’s museum for kids, which

opened in early June, offers limitless oppor-

tunities for children to discover, explore, cre-

ate and learn. With world-class exhibits and

sustainable, thoughtful architecture, it is

poised to be one of the leading children’s mu-

seums in the nation. At the DoSeum, nearly

60 percent of the exhibits focus on concepts

in science, technology, engineering and math

(STEM), while others emphasize literacy and

the creative arts to create a diverse learning

experience.

Education is critical to the success of any

city, and the goal of the DoSeum is to spark

a love of learning in children that will stay

with them as they grow. In every nook of the

fascinating space, children will find some-

thing to explore, to play with, to puzzle over

and to create.

Kids will be able to use their inner creativ-

ity and curiosity to feed their appetite for

learning as they choose from an impressive

menu of world-class exhibits that include an

interactive robot named Baxter, a spy acad-

emy filled with math challenges, an interac-

tive puppet parade, a musical staircase, a

children’s river, and a significant outdoor ex-

hibit area with plenty of water features, shade

and an ADA-accessible treehouse.

ENVIRONMENTAL SCIENCEThe museum will educate by using every

inch of the 104,000 square feet of indoor-

outdoor exhibit space. The building’s sus-

tainable architecture serves as a teaching aid

in environmental science. The eco-friendly

building is equipped to produce up to 25

percent of the facility’s energy by way of 616

solar panels, to capture approximately

180,000 gallons of HVAC condensate per

year to be used for on-site irrigation, and it

will strive to recycle 90 percent of waste ma-

terials gathered from daily operations. The

DoSeum is set to receive LEED (Leadership

in Energy and Environmental Design) Gold

certification from the U.S. Green Building

Council and is among the most sustainable

museums in Texas.

“From the day we open our doors, the Do-

Seum will be one of the most beautiful, ex-

citing and interactive children’s museums in

the entire United States,” said Vanessa Lacoss

Hurd, chief executive director the DoSeum.

“It will be a place where children tap their

inner creativity and curiosity, and where sci-

ence, math, technology and art become a

playground for their minds and bodies. Our

hope is that the DoSeum will spark a gen-

uine zeal for learning that they will take with

them through childhood and beyond.”

When planning the design of the building,

The DoSeumSan Antonio’s new children’s museum hopes to spark a love of learning Special to San Antonio Medicine

Courtesy photos - The DoSeum


LIFESTYLE

one important detail was making sure the

space would be accessible to children from

all backgrounds. The entire museum is

ADA-accessible. Spanish-language signage

and graphics are placed throughout the

space, and museum-goers will have the op-

tion to interact with exhibits in their pre-

ferred language. Additionally, the DoSeum

will roll out new programs and partnerships

in an effort to reach children in every corner

of the community.

In fall 2015, the Little Doers program will

welcome its first class of preschool-age chil-

dren. The weekly program was inspired by

San Antonio’s commitment to quality early

childhood education, and it will offer a play-

based, rich learning environment specifically

targeted to each child’s age and development.

These initiatives are just the start of what the

DoSeum plans to contribute to the city’s goal

of achieving a globally competitive workforce.

The DoSeum will serve as an inclusive

community partner, making its extensive ed-

ucational resources available to local educa-

tors. As a trusted resource for schools, the

museum will offer professional development

resources, provide a learning space to gather,

and share educational resources for teachers

to turn ideas into action, inside and outside

of the classroom.

RENTAL SPACE AVAILABLEIn addition to being a space for learning,

the DoSeum is equipped with charming

rental space available for social and profes-

sional events. Proceeds from facility rentals

will directly benefit the museum and its ed-

ucational programming for the community.

“Children’s museums can be powerful

players in a community’s learning land-

scape,” said Laura Huerta Migus, executive

director of the Association of Children’s Mu-

seums. “They are unique in their ability to

convene stakeholders from all sectors who are

interested and invested in the success and

well-being of children and families.”

“The DoSeum will certainly confirm San

Antonio’s place in the global network of cities

striving to create civic environments for

healthy children, empowered parents and vi-

brant workforces,” she added.

The DoSeum is expected to attract more

than 400,000 visitors annually to experience

its innovative approach to education, and is

another influential addition to the cultural

corridor along Broadway that includes the

Pearl Brewery complex, Witte Museum,

Brackenridge Park, San Antonio Botanical

Garden, San Antonio Zoo, San Antonio Mu-

seum of Art and McNay Art Museum.

For more information, please visit The-

DoSeum.org.


UTHSCSADEAN’S MESSAGE

The University of Texas School of Medicine and UniversityHealth System (UHS) are collaboratively developing a comprehen-sive Heart Vascular Institute (HVI) that will be a premier modelfor the care of patients with cardiovascular-related disease. Theleadership teams from both institutions are focused on evolving thecardiovascular service line toward a care delivery model that we be-lieve will become the norm in the future. The opening of the new UHS Sky Tower was a major milestone

in many areas. First, it supports the population growth in San An-tonio and the ability to further develop our healthcare delivery sys-tem. Additionally, the Sky Tower also will be the site of our HVI,which will carry multi-disciplinary collaborative care for heart dis-ease to an unprecedented level for our region. According to JohnCalhoon, MD, CT Surgery Chair and HVI Director, the HVI fa-cility’s design answers the question, “How can we absolutely be thebest place for any heart patient?” The HVI will combine the specialties and skillsets that are re-

quired for the care of cardiovascular patients. These include themany cardiology subspecialties (invasive, non-invasive, electrophys-iology, etc.) as well as cardiothoracic and vascular surgery, anesthe-siology, cardiac rehabilitation, imaging, plus the many otherdiagnostic services, clinical staff and advanced practice providers in-

volved in cardiac care. The HVI will bring them all together to offera streamlined and seamless inpatient and outpatient solution. His-torically, these specialties and subspecialties have worked semi-in-dependently, interacting and consulting with one another in thecare of patients, but not working as an integrated team. In this newfacility, all cardiovascular and related services will be structured andfunction as one, to continually improve the patient experience andtheir outcomes.

CONTIGUOUS PHYSICAL SPACEChief of the Division of Cardiology, Steven Bailey, MD, who has

been deeply involved in the planning process, characterizes it as anextension and expansion of what we have been doing for the past20 years. Cardiology has worked very closely with the surgical spe-cialists for a long time, but they have never had a contiguous phys-ical space. Dr. Bailey says he expects to see best-in-class outcomesin an environment that lowers costs on what he calls “a global scale.”He also points out we will be the first in the region to do this in acompletely comprehensive manner, in a single facility for inpatientand outpatient care. Dr. Calhoon points out that the HVI will care for children as

well as adults, calling it a “one-stop shop for cardiac care, for life.”

HEART VASCULAR INSTITUTE:A premier partnership in a premier facility

By Francisco González-Scarano, MD

The UniversityHealth System SkyTower will be the siteof the Heart VascularInstitute, which willoffer multi-discipli-nary collaborativecare for heart disease.Courtesy photo

visit us at www.bcms.org 27visit us at www.bcms.org 27


Dr. Calhoon, who performs delicate congenital repair proceduresas well as bypass surgery and valve replacements on patients of allages, points out that the focus here is on the entire team and part-nering in new ways that are better for the patient. The improved

outcomes and efficiencies also will be better for the payors and em-ployers. We have already organized along these lines with the UTMedicine HVI clinic located in the MARC, creating a unique col-laboration of cardiology, cardiac surgery and comprehensive cardiacdiagnostic services in partnership with UHS.Edward Y. Sako, MD, PhD, who is Vice Chairman, CT Sur-

gery, and Chief of Adult Cardiac Surgery, reiterates Dr. Bailey’ssentiment: This arrangement formalizes something we have beendoing for quite some time at a high level of quality. A great ex-ample is the UT Medicine/UHS TAVR program (TranscatheterAortic Valve Replacement), where the cardiologists and cardiacsurgeons work side-by-side. Teams composed of cardiologists andCT surgeons provide multi-disciplinary approach in the initialevaluation, diagnostic and rehabilitation processes. They alsowork together in the hybrid cath lab/operating room located atUHS. The TAVR team was part of the pre-FDA approval processfor TAVR devices and procedures, performing the first case inCentral and South Texas in 2012.

EXPECTED OPENINGThe new HVI facility will occupy the first floor of the UHS Sky

Tower – approximately 47,000 square feet of space – housingcatheterization labs, non-invasive cardiology suites, imaging modal-ities, echocardiography and electrophysiology. The build-out willtake approximately two years, with the opening anticipated soonthereafter. This key piece of the HVI complements the newly fin-ished cardiac and vascular operating rooms and 60 new cardiovas-cular inpatient beds. Tim Brierty, University Hospital Chief Executive Officer, has

been involved in planning the HVI from its conception; he notesthat the power of this new operating structure is not just the day-to-day coordination of care, but the fully engaged approach of theproviders and the hospital. It is a true integration of all these dif-ferent services, with both organizations coordinated at a very deep,strategic level. The HVI will also work with “Variable Acuity Units,” a concept

that is evolving around a multipurpose hospital room, allowingproviders to bring a diverse array of care to the patient, instead oftransferring the patient to another unit or floor. The less you haveto move a patient — which takes more time, requires more stafftime and is more stressful — the better the patient experience.




Michael Little, MD, Director of Cardiothoracic and TransplantAnesthesiology and also a member of the planning committee, seesthis as the next step in the path for cardiac service lines. He pointsout that we now have eight cardiac anesthesiologists who have all

worked very closely in the catheterization laboratory and the operat-ing room with all the cardiologists, surgeons, perfusion specialistsand other technicians. The team has established firm relationshipsamong their members, which translates into better communicationand trust. This effort serves as a template for the School of Medicine and UHS

in partnership by realigning patient care and clinical services from themore traditional departmental lines to focus on the needs of our sharedpatients. It is the right vision for our shared future. The new structureswill better support patient outcomes in a comprehensive, multi-disci-plinary manner, as opposed to focusing on supporting individual med-ical specialty services.

PHILANTHROPIC FUNDINGAn important part of this strategy will be tracking and reporting

outcomes, quality and cost. This is something we have done in manyof the service lines, but this new group gives us the opportunity to seea broader perspective that will be crucial to growing and improving

the quality of our care.With an estimated cost of $45 million for building out the new fa-

cility, only a portion will come from UHS. The remainder will haveto be raised philanthropically. As a member of the University Health

System Foundation Board, Dr. Calhoon and other board members willbe reaching out to community leaders and others to help complete thefunding for the new facility.This new, comprehensive Heart and Vascular Institute facility has

the potential to truly be one of the best in the country for anyone, ofany age suffering from a congenital heart ailment or heart disease ofany type. Programs such this are the future of healthcare and an im-portant part of the solution for dealing with the increase in heart dis-ease in San Antonio and South Texas, as well as across the country.The School of Medicine at the UT Health Science Center is commit-ted to making this vision a reality.

Francisco González-Scarano, MD, is dean of theSchool of Medicine, vice president for medical affairs,professor of neurology, and the John P. Howe III, MD,Distinguished Chair in Health Policy at the Universityof Texas Health Science Center at San Antonio. Hisemail address is [email protected].


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LEGAL EASE

Last month’s article discussed the issue of whether or not a

physician can be required to testify in a civil or criminal proceed-

ing. I hope I answered the question, even if it may not be the

one you wanted to hear. This month let’s move on and talk about

how much money, if any, you can get if and when you do testify.

QUESTION TWOHow much, if anything, can you charge if you testify? To

answer that we have to first decide if you have to testify because

you’re somehow involved with one of the parties (i.e., a medical

eyewitness of sorts) or whether you’ve got no relationship at all

with the parties or the case (i.e., when you’re asked to be an

expert).

Let’s assume you are somehow involved. Let’s assume that you

provided some care at some time to one of the litigants in the

case. To use the phrase from last month’s article, you’re a “medical

eyewitness” to some event and therefore can be compelled to tes-

tify just like any eyewitness. Things get tricky here. Technically,

any of the attorneys to the parties can have you served with a sub-

poena to testify and all you’ll get is the few dollars that comes at-

tached to each subpoena. It’s literally just a few dollars. Seriously.

But can you get more or is that all?

Texas Rule of Civil Procedure 176.7 provides that any person

who issues a subpoena must take reasonable steps to avoid im-

posing an expense on the person who must respond to the sub-

poena. It further states the court may require that a witness be

compensated for any undue hardship. What that means is up to

each judge to decide. The rule doesn’t expressly say you have to

pay the person for his time. It just says the person must be pro-

tected against any expenses incurred in complying with the sub-

poena. Some judges will be sympathetic to the argument that a

doctor who has to cancel all his Monday afternoon patients to

give testimony should be compensated for that lost income.

Other judges may feel a rich doctor can afford a few hours to tes-

tify, especially if the other side doesn’t have much money with

which to pay for the doctor’s time. There’s simply no clear answer

to whether you have the right to be paid for your time. There is,

however, a strategy you can use which will be discussed later in

this article.

Now, let’s assume you’re not involved as a “medical eyewitness”

but are just being asked to serve as an expert. As discussed pre-

viously, you don’t have to do this. It’s entirely your choice. But

if you do, how much can you charge?

The short answer is as much as you want – as much as the mar-

ket will bear. In other words, as much as the other side is willing

to pay that you’re willing to accept for your time. There are no

laws, rules or regulations which say how much. It’s up to you.

Now, that said, let me at least give you some guidelines based on

almost four decades of experience.

Experts in any field aren’t impossible to find. They even ad-

vertise in many legal publications, on the Internet, in blogs, etc.

So, if you want to be an expert and earn some extra dollars, be

aware that you can price yourself out of the market. You’re not

irreplaceable. Plus, when an expert charges too much per hour,

‘Do I have to?’ and ‘How much?’Part II of IIBy George F. “Rick” Evans

LEGAL EASE

the expert’s credibility is placed in jeopardy because he starts to

look like a paid gun for hire who’ll say anything if the price is

right. Jurors don’t expect you to lose time from your practice for

free, but they may question your objectivity if by testifying you’re

raking in two or three times what you earn caring for patients.

Many attorneys won’t hire such experts; not because they can’t

afford it, but because they know they won’t be credible. So, here

are some guidelines.

I’ve found that many doctors charge about $250 to $350 per

hour. That’s just an average based on experience. The rarer and

more specialized the physician, the higher the rate goes. A neu-

rosurgeon may charge three times that amount and, in some

cases, even as much as $1,000 per hour. And some family prac-

tice doctors may charge only $100 or $150 per hour. But, having

hired and having deposed hundreds of doctors over the years,

throughout the entire country, I can tell you that probably 75

percent of them charge somewhere between $200 and $500 per

hour. Unless you’re from a relatively rare specialty, charging a lot

more than $500 will be a little difficult. There is, however, one

small refinement to these general observations as discussed below.

Although there are plenty of exceptions to this rule, I’ve found

that, on balance, physicians testifying for the plaintiff tend to

charge a tad more than those testifying for the defense. Yes, there

are plenty of exceptions, but I’m talking about a general rule.

Maybe it’s because they think they can afford it. Maybe it’s be-

cause they think they’re going out on a limb by testifying for the

plaintiffs. The difference may not be great but I have found a

difference. Perhaps something in the neighborhood of $100 or

even $200 more per hour. By no means is this always the case,

but it’s happened with enough frequency that I feel confident it’s

a legitimate observation worth sharing with you.

PRACTICAL STRATEGIESNo attorney wants to have a witness testify if that witness is

mad at them. An uncooperative, recalcitrant witness can easily

harm a case, whereas a contented, happy witness wanting to

help can make all the difference in the world. OK, that’s not

rocket science, right? But that’s how you can sometimes make

sure you get paid even when you may not have a clear right to

payment even though Rule 176 requires you be protected

against “expense.” Here’s how to do it.

The next time you receive a subpoena or get a call from an at-

torney asking you to testify, ask yourself if somehow you’re in-

volved with one of the parties to the case. If you are, you may be

a medical “eyewitness” and therefore forced to testify without pay.

But, here’s what you can do.

Option one: call your medical malpractice insurer, tell them

you’ve received a subpoena or a demand to testify regarding one

of your patients. They’ll usually be happy to have one of their

local defense attorneys handle it for you. Ask for the name of the

attorney they’re assigning to you, call him, and tell him one of

two things. One is that you don’t want to testify at all and want

to avoid it if legally possible. Or, two, that you’re willing to testify

but you want to be paid for your time.

If you don’t want to testify at all, you can work with your at-

torney to outline all the things that you might truthfully say

that could actually harm the attorney’s case. If the list is im-

pressive enough, the attorney requesting your testimony may

well back off when he hears all the downsides to your testimony.

Who wants a witness who hurts them? If your testimony looks

like it may damage the case, the attorney almost assuredly will

drop the subpoena.

Or, if you are willing to testify but want compensation, your

attorney can argue Rule 176. Plus, while trying to convince the

other side that Rule 176 requires you be paid for your lost in-

come, your attorney can further remind opposing counsel that a

happy, contented witness will be much easier to work with than

one who is hostile. Paid witnesses are happy. Unpaid witnesses

aren’t. If your rate is reasonable, the other side will typically

agree. If not, you may get a judge who understands the economic

burden to you and require the other side to pay for your time.

Option two: If you don’t want to use an attorney, there’s no

reason you can’t do it yourself or have your office manager make

the same arguments as outlined above. I just think having a

skilled professional do it for you works better, and your med-mal

carrier will usually provide one to you free of charge.

Let me close with a few practical pointers on this subject. Rule 176 also requires that an attorney issuing a subpoena

protect the witness against other burdens apart from expense.

It specifically provides the witness must be provided “an ade-

quate time for compliance.” If you receive a subpoena on late

visit us at www.bcms.org 31visit us at www.bcms.org 31



LEGAL EASE

Friday afternoon to testify first thing Monday morning, you

can argue this is unreasonable and that you require more ad-

vance notice. A judge will likely cut you some slack. Not nec-

essarily weeks of time, but most judges will try to work with

your schedule so it won’t wreak havoc with it, especially if you

paint it in terms of what it does to your patients rather than

how it inconveniences you.

When the other side has agreed to pay for your time and you’ve

agreed upon a rate, you may want to ask to be paid in advance

rather than after the fact. This is particularly true when dealing

with attorneys you don’t know and haven’t worked with before.

And for law firms that aren’t known to you to be well established

and respected. And for lawyers outside of Texas and, frankly, out-

side your own community. Ask for a retainer that you will keep

like a landlord keeps the first month’s deposit. You’ll still bill

hourly and, at the very end of your services, you’ll bill from the

retainer and refund the balance.

Some doctors working as experts will bill at different rates de-

pending on what they’re doing. Not uncommonly, I’ve heard ex-

perts bill at one rate for reviewing medical records and writing a

report, a slightly higher rate for testifying in deposition, and third,

even higher rate, for testifying at trial. Because your hourly rate

should be a replacement for the income you lost caring for pa-

tients, this stair-step system of rates doesn’t make sense to some

juries. Your lost income should be the same regardless of whether

you’re setting time aside to review records or to give a deposition.

Yet, this happens with enough frequency that you can do it, if

you want, without much problem.

Some witnesses working as experts like to charge a flat rate for

certain events such as giving a deposition or coming to a trial.

This rate is fixed regardless of how much time is required. For

example, you may decide to charge $3,000 for a deposition

whether it takes two hours or 8 hours. The rationale is that, be-

cause you don’t know how long the event may take, you have to

set aside an entire morning, afternoon, or the full day. If it only

takes one hour and you cancelled all afternoon appointments,

you might lose money on the deal. There’s no hard and fast rule

here. You might charge hourly with the condition that it be no

less than “X” amount. Again, the choice is yours and is subject

only to the limits of the market place and your imagination.

The “other side” is entitled to know how much you charge,

how much you’ve been paid, and what other financial arrange-

ments you have with any party that has retained your services.

If it’s unusually high, or the income you generate working as

an expert is substantial when evaluated over the course of time,

expect some harsh cross examination. The other side will chal-

lenge you as a paid gun for hire rather than a disinterested, ob-

jective expert witness.

You can’t charge based on the outcome of a case. Don’t even

go there. And your rates can’t vary depending on the outcome

of the case. Again someplace you shouldn’t go.

So, that’s your primer on whether you have to testify and, if

you do, can you require payment for your time and how much

you probably can fairly charge. The rules aren’t crystal clear,

carved in stone, and easy to apply. But this should give you a

good sense of what you can and can’t do.

George F. “Rick” Evans Jr., is the founding partner of

Evans, Rowe & Holbrook. A graduate of Marshall Col-

lege of Law, his practice for 36 years has been exclusively

dedicated to the representation of physicians and other

healthcare providers. Mr. Evans is the BCMS general counsel.



BUSINESS OFMEDICINE

Ten thousand a day. My baby-boom generation is turning age 65

and enrolling in Medicare at the rate of 10,000 a day. My parents’

World War II generation is dying at the rate of 1,000 a day. That’s

a 10-to-1 increase in new Medicare beneficiaries. Actually, I’ve only

got a little silver on the sideburns — mostly I think I’m losing my

hair at the rate of 10,000 strands a day.

And what is the cost of this great silver-haired tsunami? And why

does it seem so unnoticeable right now? To address the latter first, no

tsunami is noticeable as long as it’s out in the open ocean, or general

population. It seems like just a slight rise and fall of the ocean level as

it passes by. But, when it reaches the shallows near land, it rears up in

its devastating force. Such are the baby boomers. We hardly notice

their cost, until they hit the Medicare and Social Security rolls. Then

their cost begins to show in enormous economic terms.

ADD IT ALL UPSo how much are we talking about? The answer: five times the

current national debt. That’s right. The national debt (when you

count all of it), is about $21.7 trillion. The present value of our fu-

ture Medicare obligations at current benefit rates is $46 trillion

(that’s twice the national debt), and the present value of our Social

Security benefits at current benefit rates is $64.3 trillion (another

three-times the national debt). So add them together, and they total

five-times the national debt. If you add a few other obligations, like

federal employee and Veterans Administration retirement and

health benefits, all 50 state Medicaid and employee pension, health-

Costly reflections inthe ‘Silver Tsunami’By Dana A. Forgione, PhD, CPA, CMA, CFE


BUSINESS OFMEDICINE

care and other post-retirement benefit obligations, as well as the

cost of renovating our 50- to 100-plus-year-old infrastructure

(roads, bridges, levees, dams, water, sewer, rail, schools, aviation,

transit, etc.), it all adds up to $156.2 trillion. Or, to put it in terms

even I can understand, that’s almost twice the entire wealth of every-

one in the United States, and works out to $1.3 million per house-

hold. Yes, if we were to confiscate all of the wealth of the entire

country — from Bill Gates, Warren Buffet, George Soros, the Rock-

efeller Foundation, the Bill and Melinda Gates Foundation, all the

hospital and university endowment funds, your wealth, mine…

everyone’s wealth in the entire country — we could meet just a little

more than half of these obligations. The entire wealth of the United

States is $81.5 trillion. Our obligations are $156.2 trillion.

Thirty percent of the population is moving out of the worker col-

umn and into the retiree column by 2030. This silver tsunami will

swamp our current healthcare provider capacity — especially since

many of the providers are in the same baby-boom generation and

also will be retiring along with the rest of us. No matter how steeply

we cut healthcare payment rates, the total cost will continue to es-

calate with the aging population.

AN EYE-OPENERFor years, the trustees of the Medicare and Social Security Trust

Funds have called for a 25 percent cut in benefits. You have experi-

enced the 2 percent Medicare sequestration of your payments. Can

you imagine if that went up to a 25 percent sequestration? You

would lose a quarter of your Medicare collections. Your patients

might self-pay the difference, but only those who were able to afford

it. You’ll either have to find significantly lower-cost ways to deliver

health services, or major new sources of income, or both. I know

this is not all news — but maybe the dollar amounts are a bit of an

eye-opener.

At the start of the Medicare program, we had eight workers per

retiree to support the entitlement programs. Today we are down to

about five workers per retiree. By 2030, we will be down to just 2.3

workers per retiree. That is, our kids will have less than half the col-

lective earning power we have right now, when we cannot meet

these obligations. And they will have only a quarter of the relative,

collective earning power that existed at the time these programs

were started. I tell my students, every two of you will be supporting

each one of us in our nursing homes. And they frankly won’t have

the money to pay for it. Not unless we come up with incredible

new sources of wealth.

I had high hopes the shale oil might be a source of wealth that

could make a serious difference. But our competitors have not just

sat idly by as we raised our oil production. As I’m sure you’ve read

in the news, they’ve kept up production to drive oil prices down,

to nip our fledgling oil boom in the bud. So while the shale oil de-

velopment has been the main driver of economic recovery for us,

I’m not sure oil is going to be the panacea I had hoped. As I ask

folks when I speak at conferences, can you think of any other source

of wealth that could come anywhere near $150 trillion? Not even

oil produces that much. The high-tech sector? Maybe, but the rest

of the world is getting amazingly sophisticated in high-tech inno-

vations, too.

LOOK AT SOUTH KOREABy the way, South Korea has an amazing electronic healthcare

payment system. As the physician treats a patient, they log onto a

web portal and enter all the salient information. It goes straight to

one main computer system where every claim is reviewed by an ar-

tificial intelligence (AI) system. After the AI review, 800,000 live

claims reviewers give a 100 percent claims review, and payments are

sent out in just 15 days. That’s right — they do 100 percent claims

review on 2 billion claims a year, and pay in just 15 days. How’s

that for high-tech efficiency? In contrast, we waste $200 billion a

year in the United States just on inefficiencies in the administration

of our healthcare system. I had the privilege of visiting the South

Korean command headquarters for their healthcare payment sys-

tem. It looks like something right off the bridge of the Enterprise

on Star Trek (only baby-boomers will appreciate that). They fend

off 3,000 hacker attacks a day. And their system is so sophisticated

they can immediately trace each attack directly back to its originat-

ing computer IP address. Most come from North Korea. Their sys-

tem is so good, they actually package it and sell it to other countries.

We could learn a few high-tech lessons from the South Koreans.

So will our energy or technology sectors save us? I don’t know.

What I do know is, it’s my generation, and I see a costly reflection

in that silver tsunami.

Dana A. Forgione, PhD, CPA, CMA, CFE, is the

Janey S. Briscoe Endowed Chair in the Business of Health

at the University of Texas at San Antonio. He is also an

adjunct professor in the School of Medicine, Department

of Cardiothoracic Surgery, the Department of Pediatrics,

and in the School of Public Health, all at the University of Texas.


THANK YOU to the large group practices with 100% MEMBERSHIP in BCMS and TMA

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The headline said, “‘Resistant’ by Michael Palmer, his last and 20th novel.” After surf-

ing the Internet, I realized that Michael Palmer, MD, died the year before last, at the

age of 71. Memories from the 1980s and ‘90s flooded my brain. My bedtime reading

materials, in those days, often were Palmer’s books. This prompted me to look up the

previous 19 books that he wrote and put them all on my reading list, as a tribute to his

memory. The San Antonio Public Library stocks 18 of them. I was not able to locate a

copy of “On Call: Original Short Story.”

Talk about can’t put a book down: Over the course of three months, book after book,

thriller after thriller, I read and, in some cases, re-read, all 18 books. What a roller-coaster

ride, absolutely thrilling and entertaining. Palmer’s first novel was “The Sisterhood,”

published in 1982. In his early career, Palmer published one novel every three years. He

then became quite prolific, publishing a novel every two years and later almost one a

year. As I read, I also noticed that the price of a paperback went from $5.99 in the 1980s

and early ‘90s to $9.99 currently. The backbone of all his novels is associated with med-

icine or occurring in a medical environment, which I can’t get enough of, even though

I have been spending most of my waking hours in a hospital environment for more than

30 years.

It is “Flashback,” the third novel Palmer published in 1988, that I like the best. It was

written with sincerity and passion. The story is believable, even after all these years, unlike

some of his later novels which seem too far-fetched and so cookie-cutter, on top of having

a political tilt to some of the events told in the stories. The plot can be summarized as

corporate versus community medicine, sibling rivalry, a pair of pathological liars (father

and son), and evildoers, mixed with a dose of romance. At the end, the community band-

ing together won over the corporation. The unfolding of the conspiracy began when a

young boy continued to suffer flashbacks related to his surgery, months after a “routine”

operation for hernia. The new doctor in town took an interest in the boy’s case (and the

boy’s mother), and subsequently uncovered a whole string of suspicious incidents linking

a successful surgeon and the anesthesiologist he always worked with. Twist after twist,

this book will keep you up even though you have a real hospital to go to in the morning.

By the way, if you are going to check out the author’s books, don’t make the mistake

I made. I checked out “The Thread” by a Michael Palmer and trust me, a thriller, it is

not. This Michael Palmer is a poet and, as far as I know, is alive and well. There is also

a Michael. A. Palmer, who authors naval histories, in case you come upon this name

during your search.

Teresa C. Hayes, MD, is a pediatric pathologist in San Antonio and a

BCMS member.

BOOK REVIEW

‘Flashback’Written by Michael PalmerReviewed by Teresa C. Hayes, MD


Gunn Acura11911 IH-10 West

Cavender Audi15447 IH-10 West

Cavender Buick17811 San Pedro Ave.(281 N @ Loop 1604)

Batchelor Cadillac11001 IH-10 at Huebner

Cavender Cadillac7625 N. Loop 1604 East

Tom Benson Chevrolet9400 San Pedro Ave.

Gunn Chevrolet12602 IH-35 North

Ancira Chrysler10807 IH-10 West

Ingram Park Auto Center7000 NW Loop 410

Ancira Dodge10807 IH-10 West


Northside Ford12300 San Pedro Ave.

Cavender GMC17811 San Pedro Ave.

Gunn GMC16440 IH-35 North

*Fernandez Honda8015 IH-35 South

Gunn Honda14610 IH-10 West(@ Loop 1604)

*Gunn Infiniti

12150 IH-10 West

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*North Park Lexus611 Lockhill Selma

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*North Park

Lincoln/ Mercury9207 San Pedro Ave.


Mercedes-Benzof Boerne

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*Mini Cooper

The BMW Center8434 Airport Blvd.

Ancira Nissan10835 IH-10 West

Ingram Park Nissan7000 NW Loop 410

Ancira Ram10807 IH-10 West


North Park Subaru9807 San Pedro Ave.

Cavender Toyota5730 NW Loop 410

*Ancira Volkswagen5125 Bandera Rd.


If you’re like most car buyers in the UnitedStates, you’ve never heard of the Ford Kuga.The Kuga is an important vehicle, though,not for what it is but for what it became.First, a little background. When Alan Mu-

lally, perhaps the most consequential Amer-ican automotive executive of the last 25years, took the reins at the Ford Motor Co.in 2006, he instituted his now-famous OneFord plan. The essence of One Ford is thatinstead of building different vehicles aroundthe world for the same market segment, onevehicle should be built, whenever possible.Like a lot of things, it was easy to say buthard to do. Mulally did it before his retire-ment from the company in 2014.Enter the Ford Kuga. While Ford sold the

Escape compact SUV in North America, itsold a similarly sized Kuga compact SUV inEurope. They were two very different vehi-cles, which ultimately were designed to ap-peal to the same customers. A new Kugalaunched in Europe in 2008, and when theEscape was due for replacement in 2012,One Ford meant that the Kuga would be

sold in North America as the Escape.

FRESH, NEW LOOKHow did that go? In a word, well. In 2007,

a strong sales year in the United States, Fordsold about 166,000 Escapes. After rebadgingthe European Kuga as the new Escape, Fordmoved an astounding 296,000 units in2013, a comparable sales year. Ford has donethe same thing with the Fusion, Focus andFiesta with similar results. And this year,we’re seeing a new full-size van, the Transit,replacing the venerable E-series. Is nothingimpossible with One Ford? Umm, yes. Therewill be no “One Ford-ing” the F-150 pickup,which will stay purely American and will notbe changed to make it more attractive inFrance, or Thailand, or Brazil, or anywhere.Anyway, back to the Kuga/new Escape,

which looks much more modern than theold Escape. It’s a testament to how dreary theprevious Escape looked that its Kuga succes-sor appeared remarkably fresh and new whenit debuted in 2012 even though it was al-ready four years old. And it still looks good

today, with an angular and aerodynamic de-sign that seems like it might have inspired theultra-cool Range Rover Evoque.The interior of the Escape is standard issue

Mulally-era Ford, with good materials andclear attention to detail combined with asharply modern vibe. The use of black orgray as the predominant color along with anabundance of metallic accents won’t appealto everyone, but the cabin of the Escape isnothing if not tasteful. And then there’s MyFord Touch, a touch screen-driven user in-terface that controls the audio, HVAC,phone and navigation systems. Yes, you canwork it with voice commands, but the screenis small so using that can be a distraction.You get used to it in time, but it could bemore user friendly. The term compact SUV means that the

Escape is not big, and that fact is reflected inthe interior, which is roomy enough to seatfour comfortably with space for your gearunder the rear hatch. But asking three peopleto share the back seat will not result in hap-piness for those three passengers, and it’s

AUTO REVIEW


Ford Escape traces lineage to Kuga By Steve Schutz, MD

worth noting that there’s only 34.3 cubic feetof storage space behind the rear seats (68.1 ifyou fold down those seats). For the record,that’s comparable to its main competitors,the Honda CRV and Toyota RAV-4.A six-speed automatic transmission and

front-wheel drive come standard, and all Es-capes except the S can be had with all-wheeldrive (AWD). The base engine is a normallyaspirated 2.5-liter four-cylinder with 168 HPand respectable fuel efficiency (22 mpgcity/31 highway). The SE and Titaniumcome standard with an EcoBoost — in Ford-speak, that means the engine has turbocharg-ing and direct injection — 1.6-liter engine

good for 178 HP and 23 mpg city/32 high-way. Optional on the SE and Titanium Es-capes is the best engine, a 2.0-literfour-cylinder EcoBoost motor that pumpsout 240 HP but still gets 22 mpg city/30highway.

HANDS-FREE HATCHPricing ranges from just over $22,000 for

a stripped model that no one but a labcourier would ever drive to over $35,000 fora loaded Titanium version. We don’t havespace here to delineate the various trim pack-ages and options available on the Escape, butas always, BCMS Auto Program director Phil

Hornbeak can fill you in on those details.One notable option is the hands-free

hatch, which allows you to open the hatchby kicking your foot below the rear bumper.I thought it was gimmicky at first, but withtime I found myself using it frequently.Thank you, Ford.Mulally’s One Ford program makes a lot

of sense, but could easily have resulted in carsthat customers didn’t want. So far that hasn’thappened, and instead we’ve been treated tonice vehicles from other regions of the worldthat work fine here. Such is the case with theFord Escape, nee Kuga.

Steve Schutz, MD, is aboard-certified gastroenterol-ogist who lived in San Anto-nio in the 1990s when he wasstationed here in the U.S. Air

Force. He has been writing auto reviews for SanAntonio Medicine since 1995.For more information on the BCMS

Auto Program, call Phil Hornbeak at 301-4367 or visit www.bcms.org.

AUTO REVIEW



HELP WANTEDBexar County Medical Societymembers for BCMS Communications/

Publications Committee. Should have

little or no experience, be willing to

brainstorm, eat supper at the BCMS

office once each month, and partici-

pate in free-wheeling, stimulating

discussions to produce the magazine

you’re reading at this moment.

For information, call Susan Merkner at

210-582-6399.

san antonio medicine june 2015

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