February 9th, 2009 by Dr. Val Jones in Health Policy
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By Jeff Segal, M.D.
I often attend health policy discussions. I am usually the only physician in the room. My colleagues lament they just do not have time to make their voices heard. As healers, our first duty is to care of the sick and disabled; and to provide comfort when we have little else to offer. I hope the public will listen to one doctor’s voice.
We have many problems to solve: access to healthcare for the uninsured; affordable premiums for those with coverage; outcomes that provide value and keep patients safe. These goals can be realized.
Let me set the stage for a proposed solution; one that can easily complement any number of other proposals.
This year, tens of thousands of physicians will receive a sobering letter. The summons will claim the doctor recklessly, negligently, and with wanton disregard for safety injured his patient. The poor doctor will not recognize this butcher in print and might not even remember the patient, now a plaintiff. The doctor will never forget this day. And this day will have expensive consequences for all of his future patients.
Fear of litigation is ubiquitous. The experience is so odious we physicians will do almost anything to avoid repeating it. We will order tests, perform procedures, and recommend referrals, all to prevent sitting in front of a jury. As one ER physician put it, “I will scan patients until they glow if it will keep me out of court.” And there are 800,000 of us who are fully capable of ordering just as many tests and referrals as the fictional TV character, Dr. Gregory House. We euphemistically label it defensive medicine.
Defensive medicine eludes easy definition, but it is pervasive. Some defensive tests provide value to the patient. Some paradoxically put the patient in harm’s way. Most of the time, no value accrues, just cost and inconvenience.
Combine defensive medicine with a sub-critical mass of health information technology, and the formula is complete for overpriced, idiosyncratic, fragmented care. That said, we can harness the tremendous emotional energy surrounding litigation for more positive ends, benefiting all stakeholders. Let me explain.
Healthcare is a partnership between stakeholders (patients, physicians, and payers); each with different needs and wants.
Patients want lower health insurance premiums without sacrificing timely access to physicians or safety. If something untoward happens, they do not want to lose their home.
Physicians want protection against meritless lawsuits, lower professional liability premiums, and to be front and center in developing the care pathways for managing patients. If they deliver superior outcomes, they want to be paid more.
Payers (insurance carriers, business, and the government) want care delivered in the most cost-effective way possible.
These goals are not mutually exclusive.
We proposed a model which relies on a contractual interaction between the various stakeholders. Patients (consumers) purchase a modified health insurance policy. That policy includes transferring a potential future right to sue – to the payer- or more accurately- to a neutral third party. In exchange, the patient receives not only health insurance, but a disability and life insurance policy. If a patient is injured, he receives a near-term predictable remedy. Not a lottery jackpot, but enough to carry on. He also pays a lower premium. And the system guarantees implementation of health information technology, including patient safety systems.
The payer (neutral third party) now has the ability to sue the doctor down the road if something goes wrong. To minimize any untoward outcomes, payers enter into an agreement with physicians. If the doctor follows cost-effective algorithms, developed bottom up with substantial physician input, the physician is effectively immunized from litigation. If these algorithms are not followed, the doctor could document why. It is only the combination of the physician ignoring the pathways, associated with a breach in the standard of care causing damages, that puts the physician at risk for litigation. Some or all of an award from such litigation could be passed back to the patient.
Physicians would be armed with knowledge of how to predictably avoid an adversarial legal process. The conventional tort system remains as a backstop incentivizing the doctor to voluntarily embrace efficient best practices. Care will be more consistent and patients will be safer. Dollars will be saved.
How much? We ran a sophisticated financial analysis on such a proposal. The system saves enough cash to bundle the disability and life insurance policies at no extra cost; pay for health information technology infrastructure and maintenance; with enough money left over to buy a health insurance policy for every uninsured American. The model ran Monte Carlo simulations that demonstrated if physicians are properly incentivized to follow efficient best practices, there is enough money left over to prefund these initiatives. Monte Carlo simulation is a computer model that generates thousands of probable future outcomes. The simulation looks at a number of inputs combined in ‘‘random’’ order. As a result, it is designed to account for the uncertainty inherent in complex systems such as health care.
The simulation concludes that by providing a formula for decreasing frequency of litigation, patients can paradoxically be safer, have better access to care, and have broader remedies if they are injured. Where the conventional tort system arguably has failed, namely in maximizing patient safety and making those who are injured whole, a reformed system that more often than not keeps doctors out of court could succeed.
While on first blush, the system is financed by decreasing or eliminating the practice and the costs of defensive medicine, the opportunity is much broader. Intertwined with the concept of defensive medicine, but separate, is savings associated with implementation of efficient best practices. Across the country there is considerable variation in practice patterns. This variation imposes considerable costs without a requisite improvement in outcomes. For example, at the population level, Medicare patients with severe chronic illness in higher-spending regions receive more care than those in lower-spending regions but do not have improved patient survival, quality of life, or access to care. In fact, their outcomes appear worse.1 It is reasoned that embracing best practices would improve clinical outcomes at a lower cost; in other words, improve patient safety at a lower cost. Although pay-for-performance programs have been proposed as one way to coax physicians to embrace efficient best practices, an equally powerful incentive would include a solution to litigation.
This model has been vetted and received warmly by those on the left and the right. I want to address three concerns.
In the model, what happens to dangerous doctors? Most doctors who are sued are not repeat offenders. To the extent individual physicians pose a recurrent danger, their care would be reviewed, and action would be taken, on an administrative level.
Isn’t the model cookbook medicine? No. Almost no clinical algorithm is applicable 100% of the time. Nonetheless, physicians must use their judgment 100% of the time. Physicians need latitude to deviate from algorithms. The proposed model allows such deviation if, in the physician’s clinical judgment, it is the right thing to do. There, the physician has contemplated the algorithm and consciously avoided its use with his patient. In such a setting, he is presumably doing so because he believes it is in his patient’s best interest. Such deviation will not trigger litigation.
How will plaintiff’s attorneys react? This model has been reviewed by a number of seasoned veterans. To their credit, those surveyed find much to like, preferring a bottom-up contract based approach to a top-down legislative dictate. Further, the current paradigm is a high stakes, high risk, long term game of poker. By the time a case gets to trial, an attorney has spent tens of thousands, sometimes hundreds of thousands, of his own money. He has to hire experts, attend depositions, file motions, and more. And, he often loses in court. If the system were more predictable and transactional, even attorneys could find a great deal to cheer about.
The outline sketched above just scratches the surface. There are many more details. We live in a time of great change. Any model that earns the support of physicians, patients, payers, and attorneys might actually be the change we have been waiting for.
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1. Fisher E, Wennberg D, Stukel T, Gottlieb D, Lucas F, Pinder E. The implications of regional variations in Medicare spending. Part 2: health outcomes and satisfaction with care. Ann Intern Med. 2003;138:288–298.
Dr. Segal, a neurosurgeon, is the founder and CEO of Medical Justice Services.
Medical Justice Services is a member organization of Center for Health Transformation.
February 6th, 2009 by Dr. Val Jones in Audio, Expert Interviews, Health Policy
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Tommy Thompson
The recent peanut butter/salmonella outbreak offers another opportunity to reflect on the underlying budget crisis and staff shortage at the Food and Drug Administration. I interviewed Tommy Thompson, former Secretary of Health and Human Services, about what the peanut butter debacle tells us about the FDA inspections of our food supply.
You may listen to our conversation by clicking on the play button, or read a summary below. Enjoy!
[Audio:http://blog.getbetterhealth.com/wp-content/uploads/2009/02/tommythompsonpeanutbutter.mp3]
Dr. Val: Has this recent outbreak influenced how the FDA tracks food ingredients?
Thompson: No it hasn’t. We have a serious food problem in America because the FDA is understaffed. There have been too many outbreaks of food poisoning – everything from listeria on cucumbers and onions to salmonella infections from ice cream and peanut butter. Approximately 82 million people experience an episode of food poisoning each year, 350,000 of them require treatment in a hospital and 8,000 die. People don’t seem to realize what a large problem food poisoning is until there is a new outbreak. The recent peanut butter contamination affected between 700-800 different food products.
Americans need to realize that the FDA is severely understaffed and cannot do the inspections necessary to protect all of our food. I’ve been harping about this for a long time. When I was Secretary of HHS I was able to increase the number of inspectors by 100%, but since I left the funding was decreased and the numbers of inspectors is back to the level when I started.
There are 64,000 venues that the FDA has to inspect, and there are only 700 inspectors. It is geographically and mathematically impossible to do all the inspections. The FDA is responsible for inspecting 80% of our food supply while the department of agriculture does the rest. The department of agriculture has 7000 employees and 6000 venues that they have to inspect. Just compare the resource differential between the FDA and the department of agriculture and you see the serious constraints under which the FDA operates.
The department of agriculture inspects every meat processing factory every day. But an FDA inspector may get to a food processing plant only once every 6 or 7 years.
Dr. Val: Wow, that’s enlightening and also terrifying at the same time.
Thompson: Yes, it really is. We inspect less than 1% of the food coming into America. The amount of imported food continues to increase as the number of inspectors decreases. We have some serious problems with our food supply and it’s about time that congress recognized this.
The FDA is doing the best job they can, and yet they are regularly criticized by the media. When you consider their limitations, they’re doing a heck of a good job with the resources they have.
Dr. Val: So what do we need to do to improve this situation?
Thompson: The FDA needs a larger budget, we need to get more inspectors out there, we need updated testing technology, but we also need a more modern law that would require food processing plants to file an affidavit with the FDA to ensure that their food is safe. There’s very little supervision of these companies.
Dr. Val: Is there anything the public can do to petition the government to increase funding to the FDA so they can inspect our food properly?
Thompson: There’s a coalition to improve the quality of food inspections at FDA and I’m a part of that. There are people in congress who are working on introducing legislation to provide the FDA the resources necessary to hire more inspectors, and to require affidavits of safety from food processing plants.
Dr. Val: Do you think Dr. Joshua Sharfstein will become the new FDA commissioner?
Thompson: Sharfstein is being considered for a position at FDA, whether it’s commissioner, assistant commissioner, or chief of staff I don’t know.
Dr. Val: Do you have any advice for the new FDA commissioner, whoever it is?
Thompson: Yes. In addition to lobbying for increased funding to support more inspector positions, he or she should consider appointing a special commissioner of food that would report directly to the Secretary of Health and Human Services. The new FDA commissioner should focus on getting medicines and new drugs to market. In 2008 we had fewer new drugs get to market than any year since 1981. The entire FDA is overworked, the responsibilities are great, and congress meddles too much in their affairs, though that may change now that the democrats control both houses and the presidency.
The staff at FDA are becoming demoralized because every time they make a decision someone in congress criticizes them for it. Then they become reluctant to make decisions at all.
February 5th, 2009 by Dr. Val Jones in Health Policy, Opinion
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Merrill Goozner has been speculating about who will be nominated as the new Secretary of HHS. He reviewed his most likely candidates (David Cutler or David Blumenthal), and threw in a “dark horse” potential nominee: Ken Thorpe (whom I’ve interviewed several times on this blog and spent time with during Obama’s inauguration ceremony).
Tommy Thompson told me that the nominee is likely to be a current or former democratic governor (such as Kathleen Sebelius or Howard Dean).
But I’ve been pondering the “long shot” question and think that Goozner may have missed a more obvious choice – someone who works with Ken Thorpe at the Partnership to Fight Chronic Disease: former Surgeon General Dr. Richard Carmona.
Here are the 10 reasons why Richard Carmona would be a smart choice for Secretary of HHS (in random order):
1. He was confirmed by the senate as Surgeon General in 2002 and lived under their scrutiny during his term of service, meaning he has no hidden secrets, tax or nanny problems likely to embarrass Obama and could be confirmed rapidly – perhaps in under a week.
2. He has forged extensive good relationships with both parties over the course of his tenure as Surgeon General and is known internationally.
3. He has been the CEO of a large, public health system (including hospitals, Medicare and Medicaid clinics, nursing homes, and emergency medical systems in Arizona).
4. He has been a paramedic, nurse, and physician and understands the healthcare system from the inside out.
5. He has a track record of leadership in prevention, preparedness, health disparities, health literacy, global health and health diplomacy. He has worked on both sides of the aisle, including assisting Senator Kennedy with issues of disability and socio-economic determinants of health.
6. He is Hispanic, which adds additional diversity to the Obama leadership team.
7. He has experience managing local, state and federal health programs, including significant experience in immigration and border health issues.
8. He demonstrated competency and leadership as manager of the US Public Health Service of over 6000 uniformed public health officers both nationally and internationally.
9. He has extensive military experience, and is a combat-decorated Vietnam veteran. He maintains a strong relationship with military surgeons general and the department of defense.
10. The fact that he is a political independent might actually provide a middle ground for parties with differing agendas in health reform.
Is point number 10 a deal breaker? It may be, but Obama could look farther and do much worse. And while the clock is ticking and credibility is paramount (as Maggie Mahar wrote, “Reform needs to be overseen by someone who is perceived as being above suspicion—purer than Caesar’s wife”) I think the Obama/Biden team needs to take a closer look at Dr. Carmona. He’s actually the most experienced, low risk candidate under discussion – and could truly hit the ground running at HHS. And wouldn’t it be nice to have a physician who is also a health policy expert with advanced managerial experience at the head of the healthcare reform table?
February 4th, 2009 by Dr. Val Jones in Audio, Expert Interviews, Health Policy
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Many Americans have been surprised and disappointed by Senator Tom Daschle’s withdrawal as HSS Secretary nominee. I asked Tommy Thompson, former Governor of Wisconsin and the 7th U.S. Secretary of Health and Human Services, what he made of this. You may listen to our full conversation by clicking on the podcast arrow, or read a shortened summary below. Enjoy.
[Audio:http://blog.getbetterhealth.com/wp-content/uploads/2009/02/tommythompsondaschle.mp3]
Dr. Val: Tom Daschle’s withdrawal as HHS Secretary nominee has been a real shock for most people. Some are saying that without Daschle’s influence, healthcare reform will take a back seat to other economic priorities this year. What do you think?
Thompson: I don’t think that will happen because we’re in such dire need of reform that even without Tom Daschle there’s going to be a tremendous transformation of the healthcare system this year. Two healthcare bills are already undergoing the legislative process, and one is ready to be signed into law – the expansion of SCHIP, the insurance plan to cover poor children. The second bill involves the expansion of COBRA, which allows unemployed individuals to buy in to their previous employer’s health insurance plan.
But beyond this, the new stimulus package has 20 billion dollars set aside for health IT infrastructure – to create an electronic medical record for all Americans and beef up broadband access. There will also be a lot of money set aside for preventive health initiatives – to help Americans become healthier so they won’t need as many medical services.
Of course, Senator Kennedy is pushing for a “play or pay” plan modeled after Massachusetts’ law. There will be a lot of pressure to get this done quickly due to his ailing health. So you can bet your bottom dollar that the healthcare system that we know today is going to be changed so considerably that I doubt if you’ll recognize it a year from now.
Dr. Val: Do you have any idea who might replace Tom Daschle as HHS Secretary nominee?
Thompson: I’ve been hearing a lot of names. Governor Kathleen Sebelius from Kansas is very much in the running. Howard Dean’s name has also come up. Overall I do think it will be a governor or former governor who gets the position.
Dr. Val: What sort of person would have the skills for the job?
Thompson: I think a governor is the ideal person for the job because they already have experience running both state and federal programs – both initiating and managing them.
Dr. Val: Do you think that being a physician could be an advantage as well?
Thompson: There are so many physicians in the department that I don’t believe that being a physician adds or detracts from the position. Being the Secretary of HHS is an administrative position and although doctors have many skills, I’m not sure that running a large agency of over 67,000 employees with a budget of over 600 billion dollars is something that most doctors have the experience to do well.
Dr. Val: Do you think Daschle made the right choice to withdraw?
Thompson: Tom Daschle is a friend of mine. I think he’s an honorable person and I think he would have made an outstanding Secretary of HHS. I’m sorry he’s withdrawn, but the debate about his taxes was splashy enough to be affecting the stimulus bill and diverting attention from it. So I think overall it was probably the right thing to do.
Dr. Val: What’s the most important thing for the American people to know about the Daschle case?
Thompson: They should know that there is no double standard between people in power and those not in power. All of us are equal in the eyes of the law, and we’re a country of laws, not of men. We’re all responsible for our own personal decisions, and that includes paying our taxes.
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See KevinMD’s excellent round up of further thoughts about Tom Daschle.
