Posted by: justransparency | April 10, 2014

Consumer Reports Weighs In on Medical Errors.

Consumer Reports May 2014 edition reports that “medical errors are linked to 440,000 deaths each year.”  This is a frightening statistic that is FOUR TIMES the previously widely reported statistic of 100,00o deaths per year published by the Institute of Medicine.  Importantly, the article offers tips on what patients can do to stay safe in the hospital:

1. Have a friend or family member with you to be your advocate.

2. Before a planned hospitalization learn as much as you can about what to expect while at the hospital.

3. If something goes wrong, keep a journal documenting what is happening.

It also includes a rating of Top Scoring hospitals based on safety.  This is the type of rating system that can incentivize hospitals to improve.  For example, statistics demonstrate that pneumonia patients in top-scoring hospitals are at least 40% less likely to die within 30 days of admission than similar patients in low-scoring hospitals.  Who would not want to know this when deciding which hospital to go to for treatment?

As I have written before in this blog, the reason that cars are safer and that highway deaths are at all time lows is because automobile manufacturers are rated on the safety of their cars.  This information is available to all consumers via numerous web sites.  Once we get to the point where all hospitals are rated based on safety, and consumers appreciate that they have important choices in which hospital they can go to, we will be on the “road” to a safer medical system.



Posted by: justransparency | November 23, 2013

The Biggest Mistake Doctors Make. A MUST Read.


Mistake (Photo credit: Wikipedia)

The Wall Street Journal recently reported on the biggest mistakes doctors make on November 18, 2013.  This may be the most important article on this topic I have read in years.  It begins with discouraging news – “medical errors lead to permanent damage or death for as many as 160,000 patients each year, according to researchers at Johns Hopkins University.”  (Every time I read data on deaths and injuries from medical errors, the numbers continue to increase.)  Diagnostic errors appear to be the main problem, which cause considerable harm or death 85% of the time.   The article includes a chart that delineates the “common biases” that cause doctors to make incorrect diagnosis.  It reads like a script of every medical malpractice case I have ever settled or tried.  

Our firm recently settled a tragic medical malpractice case that exposed almost all of the biases discussed in the WSJ article.   It involved the death of a 19  year old girl who presented to the ER at 4:30 am with complaints of severe, stabbing chest pain.  This followed a week of gastrointestinal illness, that had improved before admission to the ER.  However, the ER doctors heard that she had vomiting and diarrhea that week (not that it improved) and quickly assumed her “chest pain” was really  “upper abdominal pain” and not a sign of a heart problem (which was pericariditis).  [CONFIRMATION BIAS].  Besides, they thought, ER doctors see GI illnesses all the time in the ER  [AVAILABILITY], and pericariditis is rather rare.  [ZEBRA RETREAT].  They gave her fluids because they figured she must be dehydrated, even though fluids did not improve her condition [ANCHORING].  Sadly, this only increased the pressure on her heart, which actually had a treatable virus that they ignored.  They also assumed that because she was a slender teenage girl, she may have anorexia [GENDER BIAS & ATTRIBUTION ERROR].  They never bothered to ask her pediatrician who called into the ER whether she had any psychiatric history [UNPACKING PRINCIPLE].  The ER doctors admitted her to the pediatric floor and figured that she would be further evaluated there, so there was no need to further investigate her deteriorating condition in the ER.  [NEED FOR CLOSURE].  When she arrived on the in-patient floor, the residents and interns who took over assumed she must have a GI problem because that’s what the ER attending assumed and they pumped her with even more fluids.  [BANDWAGON EFFECT & DIAGNOSIS MOMENTUM.]   Her heart condition went undiagnosed and untreated for 15 hours in the hospital while they exacerbated her condition with copious amounts of fluids.  Eventually, she went into cardiac arrest and died.  A cardiologist was never contacted . . .  until after she went into cardiac arrest.  

These problems are all variations on a theme.  Doctors will usually take the path to a diagnosis that is easiest, efficient, and expeditious.   This is a dangerous habit for many professions, whether you are a doctor, a structural engineer, or a lawyer.  The good news is that this largely can be solved by asking – “How can I prove myself (and others) wrong?”  Our poor teenager was doomed the moment she set foot in the ER because no one asked that question. 

So what can you do for yourself and your family?  See the WSJ chart.  In short, get your story out, ask lots of questions, and do NOT assume that things are happening as you would expect.  For example, if you do not learn the result of a test result, do not assume it is reassuring.  Think of yourself as a “partner” with your physician in your health care decisions.  And,  when you are prepared to accept a diagnosis from a doctor that does not seem right, ask yourself:

“How can I prove myself wrong?”‘

Posted by: justransparency | October 28, 2013

More to the Point Below.

Another recent article in the New York Times emphasizes why patients are afraid to ask the questions to the answers they need to know.  (See post “Never (Should Be) Too Awkward to Ask” below.)  She discusses her own personal path through the medical care system, an area where numerous patients are misdiagnosed.

The author refers to a recent experiment where a group of adults was asked to make a decision while contemplating an expert’s claims.  A functional M.R.I. scanner gauged their brain activity as they did so. The results showed that when confronted with the expert, it was as if the independent decision-making parts of many subjects’ brains “switched off.”  They simply ceded their power to decide to the expert.

The author also reports that the neuroscientist Tali Sharot conducted a study in which she asked volunteers what they believed the chances were of various unpleasant events’ occurring — such as developing Parkinson’s disease.  She then told them what the real chances of such an event happening actually were.  “What she discovered was fascinating.  When the volunteers were given information that was better than they hoped or expected — say, for example, that the risk of complications in surgery was only 10 percent when they thought it was 30 percent — they adjusted closer to the new risk percentages presented.  But if it was worse, they tended to ignore this new information.”

These studies demonstrate three major reasons why patients are not more actively engaged in, and educated about, their own or family member’s medical care:

1.    We believe that all health care providers are experts incapable of making any mistakes and don’t want to ask seemingly rude questions.

2.    We are prone to anxiety, stress and fear that distort our choices and make us subject to “tunnel vision” and therefore less likely to inquire about information we don’t want to hear.

3.    We have a natural tendency toward optimism and to hear only the information we want to hear and focus on anything that agrees with the outcome we want. 

As the author of the Times article points out, we need to “switch our brains back on” when it comes to health care.   We must be as assertive and investigatory about our medical care as we are about the new cars we purchase.  No one walks into a dealership these days without having researched the reliability, safety, and pros and cons of purchasing a particular vehicle.

Despite best intentions, mistakes, miscommunications, and forgetfulness happens in the best and busiest hospitals all across the country.  The inquisitive and educated patients are the ones doing their part to ensure that the health care system works as intended.  


Posted by: justransparency | October 14, 2013

Never (Should Be) too Awkward to Ask.

This from a recent Wall Street Journal article:  “It’s a simple enough request, but for patients and families who feel vulnerable, scared or uncomfortable in a hospital room, the subject can be too intimidating to even bring up with a doctor or nurse.”

I ask readers to select which of the following questions the WSJ article is referring to:

1.  To a surgeon:  Is one of the potential risks of the operation that I could become permanently disabled or die?

2.  To a nurse: Are you sure you are giving my father the right medication?

3.  To a resident physician trainee:  Will you be doing the operation or will the surgeon be doing it?

4.  To an ER physician:  Did you consult with a cardiologist about whether my EKG really is normal?

5.  To any hospital staff person:  Have you washed your hands?

If you guessed No. 5, you are correct.  The question that seems the least threatening of all of these questions is not asked.   However, despite the fact that infections cause 100,000 deaths per year, according to this article, and that hospital staff comply with hygiene protocols only 50% of the time, patients never ask about hand washing.  The reasons are not shocking.  Many patients assume it is not necessary to ask that question.  However, even if told about the importance of asking this question, they still refrain from asking it out of fear of seeming rude, or appearing like a “needy, problem patient.”  Will this question induce eye rolling and a huffs from certain health care providers?  Yes, of course.  It is important not to let that stop you?  Yes . . . of course.

In fact, the other questions are even much more critical to ask given the flawed and dangerous state of our medical system, but  are very rarely asked for the same reasons.  If patients can’t get themselves to ask whether a staff person has washed his hands, how are they ever going to prevent a life-threatening mistake by asking a question such as whether they or their loved one are being given the right drug?  It is important to understand that the old ways of trusting doctors and nurses to do the right thing every time has gone the way of black and white TV shows.   Not because they intend to cause harm, but because carelessness is an epidemic in our busy, fractured, health care system.

It is a new and very dangerous world and the educated and assertive patients are the ones doing their part to ensure that the health care system works as intended.  These are the patients who increase their chances of  spending next Thanksgiving fighting family for the last juicy drumstick, and not spending it in a hospital room fighting a preventable infection.

Posted by: justransparency | August 13, 2013

Tenet Purchases MetroWest Medical Center.

Vanguard Health Systems Inc., the parent company that owns MetroWest Medical Center in Framingham and St. Vincent Hospital in Worcester, is being sold.   Tenet Healthcare Corp. of Dallas is buying the Nashville, Tennessee based Vanguard (a national network of 28 hospitals and facilities) for about $1.8 billion.   This is part of what the New York Times reported as part of the biggest wave of mergers since the 1990s, a development that is creating “giant hospital systems that could one day dominate American health care.” 

Hopefully, by combining, hospitals can reduce costs and devote more financial resources to investing in patient safety measures like electronic medical records.  In many cases, corporate mergers are good.  They can lead to innovations.   It is important that out-of-state hospitals bring new ideas in patient care in order to better serve the patient population that depends upon that hospital to save lives.   In order to do so, it is important for foreign state hospital systems that operate in numerous states not to be out of touch with the community they serve and not to put profits over safety.   This is one way to reduce the nearly 100,000 death due to preventable medical errors each year.

Posted by: justransparency | June 28, 2013

Bar moves to stem skepticism as med-mal reforms take effect.

The following article was recently published in Lawyers Weekly.

MBA gets seat on panel overseeing process

The Massachusetts Bar Association has taken action to head off lingering skepticism over the landmark medical liability reform known as “disclosure, apology and offer.”

Aimed at settling medical-malpractice claims, the law is off to a slow start after going into effect six months ago. Proponents remain enthusiastic about its potential, including one plaintiffs’ lawyer who lobbied to get the MBA a seat on the organization spearheading the reforms in an effort to ensure they do not result in an end run around attorneys.

Last year, three principal groups — the MBA, Massachusetts Medical Society and Massachusetts Academy of Trial Attorneys — struck a deal on enabling legislation that provides for a 150-day pre-litigation period following a required notice to providers of a patient’s intent to sue (unless the statute of limitations is nearing); the sharing of all pertinent medical records between patients and providers; full disclosure of medical errors by providers; and the inadmissibility in court of statements of apology by providers (unless they later make a contradictory statement under oath).

The twofold hope was that malpractice claims could be quickly and satisfactorily resolved before costly and lengthy litigation, and that open disclosure and discussion of medical errors — in contrast to the medical community’s acknowledged “deny-and-defend” posture — would help reduce future mistakes.

“When you put all your mistakes on the table, it forces you to look at it and say, ‘This happened. How do we prevent it from happening again?’” said Jeffrey N. Catalano, a plaintiffs’ attorney at Todd & Weld in Boston and proponent of the model in Massachusetts known as “Communication, Apology and Resolution,” or CARe. “That used to only happen with the filing of a lawsuit.”

However, the approach has been slow to get off the ground. The state’s largest medical professional liability carrier, CRICO, has received 45 of the now requisite pre-litigation notices since the law took effect in November but has successfully resolved only one, said Elizabeth A. Cushing, the company’s vice president of claims.

Cushing said she expects more cases to settle before their 150-day notice periods conclude. Other claims have been denied, and in some instances, she said, 150 days was not enough time to evaluate certain claims, and patients exercised their right to file a lawsuit.

Rachel E. Moynihan, a professional liability defense attorney at Morrison Mahoney in Boston, said the only effect she has seen so far is the driving up of defense costs on the front-end.

According Moynihan, as soon as a claim letter arrives, limited discovery and the engagement of experts take place “at the outset.”

“This is necessary as our response letters are potentially leading to a tipping of our defense as we respond to the claimant, without even having the benefit of a plaintiff’s expert letter or full discovery,” she said.

Further, Moynihan said, the “true breadth” of the admissibility or inadmissibility of a response to a claim is not known until there is judicial review on the subject. “Specifically, we don’t know if any response or apology could be used as an inconsistent statement — which can have a chilling effect. At this point, I would think anyone on defense counsel side is weary of making precedent on this issue.”

Both Cushing and Moynihan stressed that it is hard to pass judgment since the law is still so new; the very first 150-day pre-litigation notice periods are only recently concluding.

James G. Wagner, a litigator at Conn, Kavanaugh, Rosenthal, Peisch & Ford in Boston, expressed concern over the legislation shortly after it took effect. He said his concern has been neither allayed nor confirmed.

Wagner has a nursing home client with 200 facilities nationwide that implemented a similar voluntary program about two years ago. It is not yet clear whether the policy has avoided claims, he said, though “doing the right thing” is always a good idea.

The experience of the University of Michigan Health System, which served as a model for Massachusetts, is promising. A decade after a disclosure, apology and offer program was put into place, the Michigan health system reports that its opening-to-closing time for claims and legal costs are both down by half; the severity of claims is rising by just 2.6 percent compared to 10 percent nationally; and it has just over 100 pre-suit claims and lawsuits pending, down from more than 260 in July 2001.

More important, Catalano said, is the potential for the CARe model to reduce medical errors. According to statistics Catalano cited, such errors result in 100,000 to 200,000 deaths a year; those resulting in harm but not death cost society $29 billion to $38 billion in future care, treatment and medications.

“Anything that reduce[s] medical injuries, without reducing patient rights, is a good thing,” Catalano said.

However, other plaintiffs’ lawyers fear that the approach will, indeed, put patients’ rights at risk.

“I’m an optimist about how it’s going to work,” said Melissa A. White, a registered nurse and plaintiffs’ attorney at Pasquale & White in Boston. “Others don’t seem to be quite as optimistic. There’s distrust among the plaintiffs’ bar that health care providers won’t see it through.”
‘Perspective of counsel’

In an effort to ensure the integrity of the process, Catalano successfully lobbied for MBA representation on the board of the Massachusetts Alliance for Communication and Resolution following Medical Injury, or MACRMI, a group that is helping implement the CARe model and developing best practices to be used by health care providers across the state.

“Originally, the alliance didn’t have a lawyer who could represent the diversified interests of the bar in order to ensure that patients’ legal rights are adequately represented,” said Catalano, who will serve as the MBA’s first representative on the alliance. “There is that potential for skepticism, which is why it’s so important for the MBA to be a participant.”

Just as some plaintiffs’ lawyers fear the CARe model is designed to cut them out of the process, Catalano told the MBA House of Delegates that some insurers suspected a hidden agenda when he began lobbying to join MACRMI. But in a later interview with Lawyers Weekly, Catalano stressed that the group overall was receptive to including MBA representation.

“We’re very interested in having the perspective of counsel,” said Alan C. Woodward of the Massachusetts Medical Society. “That’s a critical piece to make sure attorneys are engaged and they understand this approach and the benefits of this approach. It’s clearly the right thing to do for patients, and it’s obviously what you would want as a patient. There’s always people questioning the motivations, but my perspective is it’s always better to be inclusive.”

Suffolk University Law School professor Gabriel H. Teninbaum was an initial critic of the medical liability reforms — particularly the lack of a requirement advising injured patients to seek legal advice — and is comforted by Catalano’s efforts.

“No doubt, there are those who would rather not have a patient safety advocate participate in MACRMI, and it’s precisely for that reason that folks like Jeff Catalano are needed,” Teninbaum said. “It’s vital to make sure that patient safety and consumer rights advocates are part of this ongoing conversation, not just hospital executives and insurance companies.”

Catalano said making sure that patients are encouraged, not discouraged from getting a lawyer will be one of his main objectives on MACRMI. Patients who are harmed or lose a loved one due to a medical error are very vulnerable, he said, and might be willing to accept “a small amount of money that seems like a lot of money when it is first offered.”

A lawyer can help those claimants understand what their long-term costs will be and what is truly fair, Catalano said.

“It’s important to have a lawyer at the table,” White agreed, “not to be an antagonist or subvert the process, but to counsel patient through process.”


Published: 9:34 am Wed, June 12, 2013 9:34 am Wed, June 12, 2013
By Brandon Gee Massachusetts Lawyers Weekly

Posted by: justransparency | May 25, 2013

Just Transparency In Action.

Massachusetts Bar Association

Massachusetts Bar Association (Photo credit: Wikipedia)

A recent news article demonstrate how health care providers are now focusing on just transparency because transparency is just.  As reported in the Boston Globe recently, Brigham & Women’s Hospital is is publishing its own mistakes in a monthly online newsletter “Safety Matters” for its 16,000 employees. The purpose is to encourage staff to speak openly about their mistakes and propose solutions to help make sure errors are not repeated.  “Open faced transparency is really valuable to staff at an institution because it causes them to know themselves better,” said Paul O’Neill, a member of the Lucian Leape Institute at the National Safety Foundation.  Janet Barnes, executive director of compliance for the Brigham, said that “[Y]ou want [patients] to come here and feel safe and not to come in the door  and worry.”

That is the fundamental purpose of the Massachusetts Alliance for Communication and Resolution Following Medical Injury (MACRMI).  The Alliance consists of the

Massachusetts Medical Society, hospitals, medical malpractice insurance companies, and patient advocacy groups.  This Alliance seeks to improve patient safety through increased disclosure and transparency.  As a testament to their commitment, they recently elected me to the Alliance as a representative of the Massachusetts Bar Association.  My role will be to help the program pursue its noble goal of increasing disclosure ad compensation for patients who are injured by medical errors, while ensuring that patient rights are protected during the process.  Most importantly, as the program purports, patients who are offered compensation must be encouraged to get legal representation.  A lawyer will ensure that patients get the right answers, obtain sufficient compensation for on-going medical treatment and medication, and negotiates with the health care insurance companies to reduce the amount insurers may seek from any compensation that is offered.

I am excited to a part of this new frontier of patient safety and look forward to helping to develop a more collaborative process that benefits the patient soon after they are injured by medical errors, and not years later.

Posted by: justransparency | April 1, 2013

Impact and Expectations of the New Medical Malpractice Laws.

Safety is the child of transparency and disclosure. The new medical negligence laws that are part of the Massachusetts Health Care Reform Act strongly promote that maxim. These new laws are described succinctly as the “Apology Law” and “Notice Law.” As vice-president of the Massachusetts Bar Association, I had the opportunity to work with other trial attorneys and the Massachusetts Medical Society in drafting this legislation. These laws are the result of an unprecedented collaboration between the medical and legal communities following numerous meetings over the course of a year that included dramatic last-minute negotiations. These statutes, which are described more fully in the attached article I wrote and which was published by the American Society of Professionals in Patient Safety, encourage transparency and disclosure when medical errors occur.  They thereby pave the way for improvements in patient safety and earlier resolution and compensation for those who have been harmed. They also create means for both the health care provider and the patient to begin early emotional healing following medical errors and injuries.  I invite your questions and comments.

Posted by: justransparency | March 18, 2013

The Pitfalls of Medical Hierarchies.

It is common knowledge that there is a hierarchy in medicine. Nurses are on the front line, with doctors at the top.  This is necessary for an institution to run efficiently.  This hierarchy is supposed to allow nurses to go up the ladder when they are presented with a patient who needs immediate attention by someone with a different skill set. Nurses need to be comfortable with this hierarchy for this system to work right.  Questioning or expression of concern by a nurse to a physician should be welcomed, not challenged. Unfortunately, this is not how it works.

Nurses are reticent to challenge doctors out of fear of receiving a scolding or retribution. Even when nurses raise concerns about patients to doctors, they are often treated as if they are overreacting. Meanwhile, the patient needs attention, not a power play, and suffers the potential for harm in this dynamic.  (BTW, if nurses are afraid to question doctors, consider how the patients feel.)

This pitfall was brought to light in a recent New York Times article by Theresa Brown, an oncology nurse.  She reports that “Modern health care is complex, highly technical and dangerous, and the lack of flexible, dynamic protocols to facilitate communication along the medical hierarchy can be deadly.”  She then reminds us that preventable medical errors kill 100,000 people a year.

Hospitals disseminate charts and graphs depicting the hierarchy.  However, too few explain to the staff how this is really supposed to work.  One example that Ms. Brown references of an institution that does teach this is the University of Virginia.  There, medical and nursing students are taught to respect each other’s areas of expertise and contributions to the shared mission.

We have a long way to go before this way of thinking become universally accepted in medicine.  In the meantime, patients must be aware of this pitfall lest they rely on their nurses to be their advocates.  Some may have been shamed into submission to actually do so.

Posted by: justransparency | August 12, 2012

Fairness in the New Medical Malpractice Laws.

It is an irrefutable maxim that fairness is the child of transparency and disclosure.

The new medical malpractice laws that are part of the health care reform act signed by Governor Patrick adhere to that maxim.  Certainly, the new laws create many questions and concerns about the impact they will have on patients and their legal rights when harmed by medical errors.  Some are concerned that this law will act as yet another impediment to achieving justice.  Those of us who represent victims of medical negligence are already too familiar with the pain of our clients being denied justice – they feel as though they have been betrayed by both the legal and medical systems.  For this reason, when the Massachusetts Bar Association and Massachusetts Academy of Trial Attorneys observed that more unjust obstacles were slipped into the draft health care bill last year, we took an unprecedented measure.  We reached out to the Massachusetts Medical Society to see if we could work out a compromise.  We invited them to sit down with us to hear our concerns.  They listened thoroughly and worked diligently with us over a period of seven months to hammer out the new law.  The resulting law is one that puts patients first and promotes patient safety.

Importantly, it is also a law that enhances, not inhibits, patient legal rights.  First, it requires that when an error or mistake occurs, that the health provider must inform the patient of what happened.  Consequently, any law that requires disclosure of mistakes to the patient is something to exalt.  It codifies what the American Medical Association Code of Ethics and Joint Commission have not been able to achieve on a wide spread basis, full disclosure.

Some are concerned that the bill allows for an apology and admission of mistake or error to be excluded from evidence at trial.  However, additional language was added by the MBA and MATA that ensure that the truth ultimately comes out at trial.  Before explaining that provision, however, it is important to understand the history.

For years, the MBA and MATA argued against the original version of the apology bill at State House hearings and during private meetings with legislators.  The original bill stated that if the physician apologized and informed the patient of the “mistake and error” such apologies and admissions would not be admissible in evidence, EVER!  The consequences of such a law would have been devastating.  The best and often only source of information as to what happened to a patient is from the health care provider himself.  Medical records almost never tell the full story.  As a result, under the original language the health care provider would have been able to disclose what happened in detail and have that admission excluded forever, contravening well established rules of evidence regarding admissions by a party.  By having that excluded, he would never be held responsible and the patient would not be able to obtain compensation for a legitimate admitted mistake that caused actual harm.  As my young son who attended one of the hearings at the State House that I testified at said, “That would be like breaking your neighbor’s window with a baseball, but only admitting to it if you don’t have to pay for a new one.”  It also would have been the final nail on a coffin of truth and transparency.

The single most important part of this bill, the brain child of Leo Boyle, is that if the health care provider OR HIS EXPERT, in litigation deviates from the truth that was told to the patient, then the admission of the apology AND the mistake is admissible.  In short, the health care provider must stick to the truth, always. It is easy to see how this law will encourage more settlements.  Previously, the system permitted if not encouraged obfuscation and deflection.  It fostered a culture of “deny and defend” that permeated all health care facilities.   This new law requires full disclosure and prohibits gamesmanship later.  This law forbids attorneys and insurers for health care providers from defending the  indefensible cases, and licenses them to facilitate just resolutions for deserving victims.

Perhaps most important is the fact that this law will surely improve patient safety.  Those of us who represent patients are familiar with the Institute of Medicine conclusion from 1999 that errors cost nearly 100,000 lives per year.  Recently,  Sanjay Gupta, Chief Medical Correspondent for CNN, reported in the New York Times that the number is probably closer to 200,000 lives per year.  Less well known is that medical errors resulting in harm and not death cost Massachusetts nearly $260 million per year, which cost is borne by tax payers because the vast majority of these people do not sue.  Meanwhile, 90 percent of medical errors are not reported by hospitals.   As reported in the NY Times in January, a study revealed that hospital employees recognize and report only one out of seven errors, accidents and other events that harm Medicare patients while they are hospitalized.

We hope and expect that this new law that requires full disclosure will nurture an environment of learning, not secrecy, to prevent the same types of errors from happening to someone else.

This law is a bold move by many brave physicians, legislators, attorneys and the Governor who saw an opportunity for Massachusetts to forge ahead on new open frontier of justice and safety, instead of traveling down the same old pot-hole filled road blocked with obstacles to truth.

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