Archive for the ‘medical errors’ Category

Why Doctors Should Not Testify to Nursing Standards of Care by Pat Iyer

Thursday, January 28th, 2010
Nurses are the appropriate expert witnesses in nursing malpractice cases

Nurses are the appropriate expert witnesses in nursing malpractice cases

The Illinois case called Sullivan V. Edward Hospital, 806 NE 645 (Ill. 2004) involved a man who climbed over side rails and was found on the floor with a head injury. The plaintiff attorney supplied a physician as the liability expert. He was critical of the nursing care by stating the nurse should have restrained the patient. He also testified the nurse “missed the diagnosis of delirium completely.”

Until the early 1980s, it was commonplace for physicians to testify about the nursing standard of care. Although this still occurs in some venues, it is becoming much less common. The status of nursing has changed. Not only do physicians no longer have the special knowledge required to testify in all cases of nursing malpractice, but their use as experts may create problems that could be avoided by using nurses as experts in nursing malpractice cases. Nursing and medicine are two distinct professions albeit with some overlapping functions.

The plaintiff won the Sullivan case; the defense appealed. The Sullivan case was appealed to the Illinois Supreme Court. The Illinois Trial Lawyers supported the position of the plaintiff, and the American Association of Nurse Attorneys also submitted an amicus curiae brief in support of the dense. The Illinois Supreme Court held the plaintiff’s physician expert was not competent to testify about the standard of care of a nurse.

In many venues, affidavits of merit and expert witness reports should be prepared by a person in the same specialty as the defendant. An affidavit signed by a physician who is critical of a nurse could be challenged on the grounds that the physician is not in the same specialty. Even though nurses and physicians closely interact with each other, and have a few areas of overlapping responsibilities, they function in two distinct specialties. Woe be it to the nursing expert who utters anything in a deposition or trial that sounds critical of a doctor. The predictable flow of questions follows:

Q: Nurse, you did not go to medical school, right? You did not complete a residency in (name of specialty), right?

Legal nurse consultants may assist an attorney develop questions to challenge the qualifications of a physician who is offered as a liability expert witness in a nursing malpractice case:

  • Are you eligible to sit for the nursing exam?
  • Are you are a member of any nursing professional association?
  • Have you ever worked as a nurse?
  • Do you have any firsthand knowledge of nursing practice other than for observations made in patient care settings?
  • Do you teach in a school of nursing?
  • Do you hold any nursing certification?
  • Have you written any nursing texts?

A series of “no” answers helps to establish that the archaic practice of allowing physicians to testify about nursing standards of care should be laid to rest.

Part of this post was based on Butler, K. Nursing: Qualifications for Testifying on Standard of Care, Journal of Legal Nurse Consulting, Fall 2004

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Why inexperienced people make mistakes

Tuesday, January 26th, 2010

A group of residents eagerly perform complex surgery in the middle of the night while the attending surgeons who are supposed to supervise them are happily sleeping at home. Why is this very real scenario a bad idea? Why do interns, residents, nurses, and others make errors that injure patients? The answer lies in learning theory.

The Dreyfus Model of Skill Acquisition used by Pat Benner, a nursing theorist, breaks knowledge into two components: “techne” and “phronesis”. Techne knowledge is book knowledge: the information that is captured from procedural or scientific knowledge. The student must be given safe and clear directions on how to proceed, as there is no previous experience on which to draw. For example, a student nurse I supervised discovered her patient was short of breath. She attributed the symptom to anxiety, talked to the patient about her concerns, and held her hand. A more experienced person would have applied oxygen.

The second kind of knowledge is phronesis, which is acquired through learning in the practice setting. A nurse who makes a series of rapid decisions during an emergency draws on phronesis. The rapid response team members in hospitals are made up of experts who use this kind of knowledge.

The evolution of the expert practitioner passes through stages

The evolution of the expert practitioner passes through stages

Benner’s model of expertise, which is based on the Dreyfus model, describes how an individual may pass through five stages in developing expertise. Not everyone reaches the proficient or expert stage.

The novice rigidly adheres to rules or plans, has little situational perception and can’t make judgments. This individual is learning skills in clinical settings and must be closely supervised when delivering patient care.

The advanced beginner is a new graduate. The person functions with limited situational perception (the ability to put clues together to make decisions) and has difficulty discriminating between what is important.

The competent practitioner can see his or her actions within a broader context, and is capable of making sounder judgments. Conscious deliberate planning takes place along with standardized and routine procedures.

The proficient individual sees the situation holistically rather than in terms of its component parts. This individual more readily makes decisions, perceives differences from the normal pattern of a patient, and functions better with ambiguity. The proficient person has learned from experience and has an easier time making decisions.

The expert practitioner no longer relies on rules, guidelines or maxims, and intuitively grasps what is important in a situation. A registered nurse with expert knowledge may well exceed the knowledge of inexperienced physicians and may save a patient’s life by insisting on evaluation, diagnostic testing, change in medication, or another needed course.

A clinically experienced person enters a new healthcare setting as a new employee without knowledge of the politics, procedures, and policies. It takes time to learn “how we do it here.”

And thus we face the dilemma in health care: an inexperienced person will not learn without the opportunity to do so. He or she has to start somewhere. Yet, we don’t want that person to learn on us, our mother or father or child. When my husband had a triple bypass three months ago, the cardiac surgeon at Johns Hopkins proactively told us that he performed surgery. He said he had people in the operating room helping him, but he did the surgery. We were relieved to hear that.

A fair number of medical or nursing malpractice cases that come into Med League involve errors made by inexperienced people, whether they are new employees or new healthcare practitioners. Here are my suggestions:

  1. Attorneys handling medical or nursing malpractice cases should be careful to determine the level of experience of the defendant. Determine the degree of supervision that should have been provided versus what was actually provided.
  2. Ask about the orientation program the new employee should have received. Determine how much orientation staff agency employees received.
  3. Ask the defendant if he or she sought help. Some of us, whether because of age, culture, or personality, would rather try to solve problems without help. This can be a recipe for disaster.
  4. If you or a loved one needs care, seek the most experienced practitioner or hospital you can find.
  5. If you or a loved one detects the person assigned to your care seems unfamiliar with your needs or medical equipment, insist that individual seek help from a more experienced person. Be an advocate for safety.
  6. If you or a loved one needs surgery in a teaching hospital, insist that the attending physician be present. You may even cross off the consent form that allows residents and interns to perform parts of the surgery.

What do you think? How should inexperienced people learn? Send us a comment.

Parts of this blog post came from Moniaree Parker Jones, “Nursing Expertise: A Look at Theory and the LNCC certification Exam”, Journal of Legal Nurse Consulting, Spring 2007. Other parts came from the School of Hard Knocks.

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First Impressions by Pat Iyer

Monday, January 18th, 2010

One of my friends (Sara*) told me she ran into trouble on a substitute teaching job. It seemed the teacher disliked Sara based on her initial impression, and requested that Sara not return to the school. Sara was devastated and showed me a letter she wrote expressing concern about this comment. She asked my advice on what she should do.

negative first impressions sow seeds of discontent

negative first impressions sow seeds of discontent

The expression, “You never get a second chance to make a first impression” applies to all aspects of life. It applies to the patient who approaches the crowded check in desk of the busy emergency department. Is he greeted warmly, or is he seen as an intrusion? Do healthcare providers remember the patient may be scared, in pain, hungry or confused?

Have you had the experience of approaching a receptionist desk in a doctor’s office and having difficulty getting attention? Have you felt like you were an intrusion on the conversations going on behind the desk?

Have you ever felt like a diagnosis instead of a patient? In August 1996, my husband had a colonoscopy that revealed a large colon cancer. He was sent with a requisition form directly to the x-ray department to have a barium enema. The requisition form’s diagnosis stated “colon CA”. I sat next to my stunned husband; we had only a few minutes to absorb the news of his diagnosis. There was a technician responsible for getting him into the waiting area of the radiology department. One of her colleague asked her if she was ready to go to lunch. She called out, “No, I have to do a CA patient now.” I felt like someone had punched me in the stomach as I now realized my husband was branded as a CA patient.

None of these first impressions are cause for a medical malpractice suit but they set up a climate. An opportunity for establishing a caring environment is lost. If any mistake is made that causes harm, there are no credits in the bank- no kindly feelings towards the healthcare provider.

I advised Sara to make two copies of her letter and go to the school to express her concern about what had happened with the teacher. She learned, to her gratitude, that there were many positive comments in her file. She had made positive first impressions on lots of other teachers. What started as a negative experience turned into an opportunity for her to become of aware of how highly others regarded her.

* name changed

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Emergency Medicine On Board

Monday, January 11th, 2010

I was sleeping on a flight to Brazil when my husband woke me up and told me a passenger needed medical attention. I walked to the back of the plane where a middle age Brazilian man was holding his chest. Through an interpreter, I found out he had chest pain. He looked pale and frightened; his pulse was rapid.

Giving medical care on an airplane

Giving medical care on an airplane

I asked the flight attendant if she could give him oxygen. She produced an oxygen tank and mask; there was nothing else I could do. The ambulance met the plane in Sao Paulo and he vanished from my life.

Be sure to fly with any medication you might need on a an emergency basis- nitroglycerin, inhalers, and so on. The story below made me think of my Brazilian experience. She discusses the medical and legal aspects of rendering care on a plane.

One physician learns firsthand that you are never really off-duty: An emergency on a flight teaches a young doctor that she’s never off duty by Laura Syndman MD

I met Brent after he was dead.

Neighboring passengers later told me that he took one bite of his sandwich and then his head dropped back. It wasn’t until 10 minutes later, when his wife tried unsuccessfully to wake him, that anybody realized anything was wrong.

I was sitting in Business Class with my parents – a trip to France to celebrate my near-completion of my Intern year in Internal Medicine (just 2 weeks of night float still to go). About 15 minutes after passengers were allowed to unbuckle their seatbelts, a flight attendant ran to the front of the plane, grabbed an AED and raced back down the aisle to Coach.

I was sitting across the aisle from my father, who had 30+ years of medical experience under his belt in comparison to my 11.5 months. “Should we go back there?” I asked, but my father said they would call for a doctor if they needed one.

I decided to check it out anyway.

Behind the curtain was a scene I will never forget: a man lying in the aisle with his feet towards the front of the plane, one flight attendant doing mouth-to-mouth, one doing chest compressions and a third attaching the AED pads. I tapped the last flight attendant on the shoulder, “Do you need help? I’m a doctor.”

“We’re fine,” he said, which surprised me. I wasn’t expecting that. Granted, I was in baggy pants, sneakers and a hooded sweatshirt, but was it protocol to decline help from a physician in a medical emergency aboard an aircraft?

Read more at http://tinyurl.com/yes4cay

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Is the Government Interested in Medical Error? Based on a chapter by Carol Armenti JD MA

Wednesday, January 6th, 2010

writing prescriptionThere is little question that government interest in medical error is economic rather than benevolent for even the legislative language of medical malpractice speaks, not to the injuries caused to the patient, but to the government’s budget. When the New Jersey Legislature enacted “The Patients First Act,” ironically, it spoke not to the rights of the patients, but to medical malpractice insurance. “The State’s healthcare system and its residents’ access to healthcare providers are threatened by a dramatic escalation in medical malpractice liability insurance premiums, which is creating a crisis of affordability in the purchase of necessary liability for our healthcare providers. . .” 1

Apparently the New Jersey Legislature found the appropriate response to escalating premiums was not to prevent harm but to reform tort liability. The Legislature took the position that tort reform ensures “that healthcare services continue to be available and accessible to residents of the State and to enhance patient safety at healthcare facilities.” 2

New Jersey is not alone in passage of tort reform legislation, which responds to patients suffering medical harm by increasing the burden on plaintiffs’ bar, thereby protecting physicians from suit. While obvious financial self-preservation motivates much of the tort reform rhetoric instigated by healthcare providers and insurers, patient advocates who sometimes speak the language of tort reform may be motivated by other self-interests.

With a myopia driven by the personal pain of the patient, or the patient’s family members, patient advocates lobby for reforms which will promote emotional healing. Advocates may attempt to teach physicians to feign sympathy in exchange for release-exacted transparency by assuaging their hearts. Transparency rarely requires additional quid pro quo. In such scenarios medical error may be admitted and specious regrets conveyed, but no commitment to prevent further occurrence of the medical error results. See how a medical malpractice suit can make a difference at http://t8mzr.th8.us

What do you think? Is the government really interested in saving lives?

1. N.J.S.A. 2A:53A-38(b).
2. 13. N.J.S.A. 2A:53A-38(f).

Taken from “Preventing Healthcare-Acquired Conditions Means Never Having to Say You’re Sorry” by Carol Ann Armenti, MA, JD in Patricia Iyer and Barbara Levin, (Editors), Medical Legal Aspects of Medical Records, Second Edition, 2010. Contact us for ordering information.

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Obtaining Diagnostic Imaging for a Potential Medical Malpractice Claim based on a chapter by Peter Berge JD, MPA, PA

Wednesday, December 30th, 2009
films are crucial in failure to diagnose cases

Films are crucial in failure to diagnose cases

The liability of a failure to diagnose or delay in diagnosis case often rests on the information revealed by a diagnostic test. Both defense and plaintiff attorneys and their experts will be interested in what the test showed. Computerized axial tomography (CT) scans and magnetic resonance imaging (MRI) are usually stored in digital form. Obtaining those scans on a CD-ROM disk provides significant flexibility, especially when more than one expert will be reviewing the images. Plain radiographs (x-ray films) are becoming more commonly available in digital form. Where diagnostic images can be obtained on disk, they should be. It is more efficient to copy and mail a CD-ROM than to package and send large and ungainly packages of films, much less to send those films from one expert to another. Such files are usually provided with an integrated viewing program, such as those based on the Digital Imaging and Communications in Medicine (DICOM [TM]) standard. If not, a number of viewers are available as “freeware” for download from the internet.

Mammograms are most often available only on film, and copies are usually not suitable for expert review due to degradation in image quality. Original mammogram films should be obtained early in the evaluation and handled carefully, as they are often key to claims of delayed diagnosis of breast cancer.

Obtaining diagnostic fetal ultrasound images may present a challenge. Copies are not likely to be of suitable quality for expert review, and providers will sometimes vigorously resist attempts to obtain the original paper images, including opposing motions for pretrial discovery to require their production. It is sometimes possible to obtain digital copies of the original images. Although this can be costly, it is probably less so than engaging in extended motion practice, or paying an expert to go to the potential defendant’s facility to examine the original documents. Cases have been won and lost on the quality and interpretation of diagnostic tests. Be sure to make every effort to safeguard original films. Experts must be instructed on methods of returning films to the appropriate location. Sadly, cases have been won and lost on misplaced films.

Modified from Peter Berge, JD, MPA, PA “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, March 2010. Contact us for ordering information.

Read more about Med League’s services in medical record analysis.

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Illegible Medical Records based on a chapter by Peter Berge JD, MPA, PA

Wednesday, December 23rd, 2009
Waht is the name of the drug?

What is the name of the drug?

In 2009, people’s lives still hinge upon correct interpretation of handwritten records. Some handwritten records are virtually, or actually, illegible. The prescription above was written for Femara. Premarin was dispensed and harmed the patient who received it.

Plaintiff’s and defense attorneys and other reviewers should be familiar with state laws or regulations that permit the patient (or her representative) to require the healthcare provider to provide a timely transcription of notes. Defense attorneys are not likely to require transcriptions as they are representing the provider, who (if required) would voluntarily produce them. This can be very helpful in expediting the evaluation of otherwise opaque records in the setting of pretrial investigation. If transcriptions were not obtained during the investigative phase, they should be demanded after suit is filed if there is any doubt as to the interpretation of notations.

Regardless of when transcriptions were created, it is important for plaintiff’s counsel during depositions to verify the accuracy of the transcription. It is surprisingly common to find errors in transcription, especially when it turns out that opposing counsel provided the document without verifying the content with the witness.

Defense counsel will often have the advantage of direct access to defendants for assistance in deciphering medical records, except when dealing with the records of individuals with separate counsel. When in doubt, it is prudent to have the client interpret any handwritten notations of questionable legibility. There will be times, however, when the healthcare provider has no more idea of what the note says than the attorney does. While computerized records have some flaws, they eliminate guessing with people’s lives.

Modified from Peter Berge, JD, MPA,  PA. “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, 2010.

Contact us for ordering information.

Read more about Med League’s services in medical record analysis.

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Reviewing Medical Records in a Potential Medical Malpractice Claim by Peter Berge Esq.

Wednesday, December 2nd, 2009

Analysis of medical records should be done by a knowledgeable person

Analysis of medical records should be done by a knowledgeable person

Once medical records are in hand, someone has to review them. Who should review them, and in what sequence, depends on numerous factors. In the case of a plaintiff’s attorney, if the attorney has a solid knowledge of the medical issues involved in the case, and particularly when the records are not voluminous, it may make sense for the attorney to initially assess the records. If the attorney has managed several similar claims and is well-versed in the subject matter, the initial evaluation may be all that is needed to determine whether to send the records directly to a testifying expert. Defense counsel or risk management personnel presented with a claim would be well-served by familiarizing themselves with the records prior to sending them out to an expert or consultant.

Even when an attorney has in-depth knowledge of the medical and legal issues involved in a claim, the volume of the records in relation to the attorney’s work load may dictate that a legal nurse consultant (LNC) conduct an initial review, organize the records, create a time line and summarize the issues. Likewise, if the attorney is not very knowledgeable about the medicine involved, it is helpful to have an LNC review the material, perform any medical research needed, and provide a report and recommendation to the attorney. Aside from saving the attorney numerous hours in review and research, this approach has the benefit of readying the records for review by a medical expert. With the records already organized and summarized, the expert or experts may be able to review the material more efficiently, providing some savings to the attorney and client.

Modified from Peter Berge, “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, in press.

The Second Edition of this text will be released in March 2010. Want to save money by buying at the prepublication price? Send an email to ML@medleague.com and in the subject line type “Notify me Medical Records 2 E.”

Read more about Med League’s services in medical record analysis.

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Which Medical Records are Crucial to Evaluate a Medical Malpractice Claim? by Peter Berge Esq.

Monday, November 30th, 2009

Which medical records do you need to screen a case?

Which medical records do you need to screen a case?

Several factors should be considered by a plaintiff’s attorney when deciding which records to request while evaluating a potential medical malpractice claim. They include the likelihood that the attorney will pursue the case, the volume (and potential cost) of the records and the available resources (whether those of the attorney or the client) to pay the cost, and the nature of the information that will be required to establish the viability of the case. Be aware of any state-specific laws that regulate what the provider may charge to supply a copy of the chart.

When a specific deviation or a particular type of deviation is alleged or suspected, the reviewer must be familiar with the materials that will be needed to thoroughly assess the claim. If a failure to screen for colon cancer is alleged, for instance, the chart of the primary care physician may be sufficient to reveal the deviation and—if it contains reports from the surgeon and oncologist—to assess causation and injury as well. In cases of delayed diagnosis of breast cancer or negligence in interpretation of prenatal ultrasound studies, it is likely that original images of the diagnostic study in question (such as mammography, breast ultrasound or fetal ultrasound) will be required.

When in doubt, the reviewer should consult with the expert who will ultimately be asked to certify or otherwise assess the validity of the claim or the expected testifying expert or experts. The facts of each case will determine whether full certified copies of all records are needed, or whether abstracts may be sufficient. Full certified copies of medical records relating to where the alleged medical malpractice occurred are needed to complete an evaluation of the merits of a claim.

Another factor for plaintiff’s counsel to take into account is whether or not there is a short statute of limitations. When there remains less than six months to investigate a claim, it may be prudent to err on the side of a wider scope of record requests rather than requesting them piecemeal, except when the expected testifying expert is very clear about what would be necessary to provide a definitive opinion as to deviation and causation. A liability expert will have limited need to review voluminous medical records for care rendered after the care alleged to be negligent. A discharge summary may suffice.

A host of records may be relevant in a specific case. Depending on the circumstances of the claim the attorney should examine

• hospital, emergency room, or emergency center records where the injury was initially treated,
• emergency medical services records (ambulance or medical intensive care unit/MICU),
• hospital records that relate to treatment and surgery,
• records of physicians and specialists who examined or treated the plaintiff before and after the incident,
• outpatient imaging (x-rays, MRI scans, CT scans, and so forth),
• any outpatient labs where blood work or other tests (EMG, EKG, and so forth) were done,
• inpatient and outpatient rehabilitation records including physical therapy, occupational therapy, and so forth,
• outpatient pain treatment centers,
• the actual radiographs and reports that relate to the injury,
• the actual pathology specimens and reports that relate to the injury,
• billing records,
• visiting nurse home care records,
• mental health, substance abuse records and HIV records,
• autopsy report, and
• nursing home records.

Modified from Patricia Iyer and Jane Barone, “Obtaining and Organizing Medical Records”, and Peter Berge, “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition, in press
The Second Edition of this text will be released in March 2010. Want to save money by buying at the prepublication price? Send an email to ML@medleague.com and in the subject line type “Notify me Medical Records 2E.”

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Hospital Professional Liability Claims on the Rise by Pat Iyer

Monday, November 2nd, 2009

A retained clamp is a never event

A retained clamp is a never event

This is from Business Insurance, October 20, 2009.

According to the 10th annual Hospital Professional Liability and Physician Liability Benchmark Analysis, the number of hospital professional liability claims is increasing and is expected to increase by 1% per year. The study, released by Aon Corp. and the American Society for Healthcare Risk Management, both based in Chicago, polled more than 1,500 facilities to examine trends in claims and loss costs related to hospital and physician professional liability. The study attributes the rise in claims to the economic downturn, less public sympathy toward health care providers, and a 2008 rule that prevents the Baltimore-based Centers for Medicare and Medicaid Services from reimbursing hospitals for certain errors known as “never events” because they are considered preventable and should never happen.

“Worsening economic conditions in 2008 may have influenced individuals to assert claims against hospital systems,” Erik Johnson, health care practice leader for Aon’s Actuarial and Analytics Practice and author of the analysis, said in a statement. The frequency of hospital liability claims had been decreasing for about a decade before this year, the study said. Claims severity, which includes indemnity and defense costs, is now projected to increase 4% per year. Hospital loss costs per occupied bed, which is a major part of the total cost of risk, is anticipated to rise 5% in 2010, according to the study.

One-quarter of all claims and about 24% of hospitals’ professional liability costs are connected to hospital-acquired conditions such as infections, medication errors, objects left in the body after surgery and pressure ulcers, the study said. The market for health care industry professional liability coverage likely will remain stable for the rest of the year, but pricing is expected to increase in 2010, Aon said.

Pat says:
The AON study points out that ¼ of claims are related to “never events”. The never events defined by CMS are deemed outcomes that should not occur. The unwillingness of public and private payors to pay for what is defined as bad care leading to a bad outcome puts financial teeth behind efforts to improve patient safety and care. The definition of these outcomes clarifies concepts of liability. It becomes easy for the medical malpractice attorney to argue that there was a deviation from the standard of care when such an outcome occurs. Who could argue that operating on the wrong limb is acceptable or that leaving a clamp behind is okay? The AON study is important in that it shows the shifting trends. Those in hospitals who are reluctant to implement change, or take a strong position with recalcitrant staff who don’t want to change, need to know that the financial consequences of unsafe patient care will continue. The AON study confirms what we see in the nursing and medical malpractice world-seriously injured people wanting answers to questions and for the system to change so that someone else is not hurt.

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