The Elder Law Forum

The Elder Law Forum by Professor Michael Myers Editor's Note: The Elder Law Forum is a public service of the University of South Dakota School of Law, an extension of the SENIOR LEGAL HOTLINE available at no cost to persons 60 and older at 605-677-6343 and during regular business hours. The Elder Law Forum delivers information and educational material by radio, a weekly newspaper column, and Law School research papers placed on the USD School of Law Web site. Professor Myers teaches Elder Law at the School of Law.

Dark parallels

among church,

physicians, hospitals

Heresy notwithstanding, the media has disclosed some dark parallels between the Catholic church, organized medicine, and modern hospitals. Each has been allowed to function within a "culture of secrecy," to the detriment of those they profess to serve.

As an Irish Catholic I have winced at the church's legal maneuvering, its multi-million-dollar settlements, and its expressions of atonement after decades of allowing priest-pedophiles to prey upon the sexually vulnerable. A juggernaut of lawsuits, media attention, and public reaction finally penetrated the bishops' lockbox of personnel files, to the dismay of its faithful.

As a former Mercy Health System lawyer and Mayo-St. Mary's Hospital CEO who now advocates for older patients, I have both participated in and railed against healthcare's "conspiracy of silence."

Thus, I read with insight the Sioux Falls Argus Leader's three-part series written by Kevin Dobbs titled the "Culture of Silence," describing how "South Dakota's Secret System Puts Patients at Risk."

He quotes Dr. Sydney Wolfe of Public Citizen as stating, "You (South Dakota) have a state with little meaningful oversight. If people really knew that, they wouldn't tolerate it." Public Citizen compiles lists of questionable doctors and how they've been disciplined. Until pressured for months by the Argus, South Dakota had been the only state that refused to release its records.

The series prompted a call to the USD Senior Legal Helpline (1-800-747-1895; from a colleague whose mother is scheduled to undergo orthopedic surgery.

"The Dobbs series really bothered me," he said. "You mean I can't find out if mother's surgeon has been sued or has had his hospital privileges terminated?"

"No," I advised. Federal law requires hospitals to report such information to a national data bank; but only hospitals have access to the data. Patients, and the public generally, are barred from obtaining such background information.

"So, we are relying upon the hospitals to screen the doctors they allow to treat us?" he asked.

"Completely," I responded. South Dakota law prevents patients, even injured patients, from learning what the hospital knew before appointing a physician to its medical staff. The "gag" law is a tribute to the power of the state's medical lobby.

Like the Catholic church, South Dakota hospitals and medical staffs, with the blessing of the South Dakota Legislature, are saying: "Trust us! We will take care of our own!"

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