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 4th, 2009 by Dr. Val Jones in Primary Care Wednesdays
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Dr. Val’s note: My friend and co-blogger Alan Dappen is going to prepare a series of posts to expose the convoluted billing and procedural tactics that primary care physicians adopt to survive the ever decreasing reimbursements that would otherwise put them out of business. Below is his introductory post – others will follow each Wednesday morning here at Better Health. Enjoy!
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The Doctor’s Huddle
By Alan Dappen, M.D.
On the great gridiron of healthcare, the team of primary care providers is leaning inward, supportively embracing one another. They have huddled together for 15 years, calling plays against their opponent, the Insurance Team. The two-minute warning has sounded and the Physician Team is losing. The Physician’s play book pieces together strategies culled from cocktail party conversations, doctor conventions, office staff meetings, back hallways of hospitals, online blogs, and a plethora of practice management magazines; routinely circulated offering grand strategies to teaching doctors how to tackle the Insurance Team. The rising mantra is “Hit them again! Harder! HARDER!”
This game began in the 1980s, when concerns that rapidly inflating healthcare costs would consume all the U.S. gross national product within the foreseeable future unless something was done. Insurance companies lobbied regulators and advertised to the public not to socialize healthcare. Most people sighed relief when laws were passed granting insurance companies broad powers to regulate the price of care. Little did these politicians realize that they inadvertently were “socializing” care by handing the keys to the health care gold mine to Team Insurance’s privatized, for-profit model.
Up until this point, the healthcare system had experienced 40 years of run-away costs. Patients with insurance hadn’t worried about the costs of care. Inside of this cash rich environment, many important innovations occurred but employers, who subsidized most of the cost, questioned the sustainability of paying for it. All the while, physicians, hospitals, pharmaceutical companies, and medical suppliers eagerly reassured the patients: “Since you aren’t worried about the price, then no one else should worry about it either. We’ll pass the bill to the insurance company–they pay what we ask.”
This modus operandi came to a screeching halt in the late ‘80s, when the aforementioned game began, and Team Insurance was allowed to fix prices via preferred provider contracts. Insurance providers understood that the key to these contracts was not to change the rules for patients, who needed to perceive their care as virtually free so that they would continue to seek care.
Instead, Team Insurance spelled out new game rules in contracts for physicians, where the physicians “negotiated” to accept roughly 50% of their customary rate in order to be listed in the insurance company’s Preferred Provider Directories. These rules were never acceptable to physicians. Docs refusing to sign contracts rudely were awakened by the new world order when 95% of their trusted clients refused to return until they could say, “Yes we are preferred providers.” And, “Yes, all you have to pay us is your co-pay.”
Patient expectations remained unchanged. Quality of service, patience, time to explain oneself, attention to wellness, review of multiple issues, meaningful personal relationships, prescriptions, detailed explanations of risks and benefits of treatments, reviews of other possible ideas in a differential diagnosis, labs, call backs with results, and introductions to specialists were never connected to a price for patients before. After all, haven’t physicians had spent 40 years reassuring patients, “Don’t worry your silly little head about the price.” This time the boomerang came right back at physicians who suddenly were demanded to deliver all the same service for half the price.
The power of “owning” the patient for a $20 co-pay is not lost upon the insurance team. Every year, as they hand out new contracts, these insurance companies congratulate their preferred doctor players for their work, quality, and dedication and try to not rub in the following truth, “We own the doctor and we own the patient. Any doctor who dares not sign our next annual contract for less money will find themselves without patients. Remember, for the patient the big thing that counts is that you can say yes to the $20.00 co pay. Now sign on the dotted line.”
Every “negotiated” dollar saved from paying Team Physician means smiles all around for Team Insurance and their fans (shareholders.) Price fixing initially did control costs, but only for about five years. The U.S. now is back on the trajectory of health care pricing doubling every 7-10 years.
So what’s going on in those primary care huddles? The game plays are called out: “More work, less money, patient demands, protection from malpractice, keep smiling … Somehow we’re going to make somebody cough up our money …Hit them again harder! Let’s do it! On one, break.”
Up next, I’ll show you some of the plays physicians have put into place to survive. And why you the patient might feel like the football. Play along, with us. Hup one, Hup two, hike!
Until next time, I remain yours in primary care,
Alan Dappen, M.D.
January 28th, 2009 by Dr. Val Jones in Opinion, Primary Care Wednesdays
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By Steve Simmons, M.D.
When I graduated from the University of Tennessee’s Medical School sixteen years ago, my last act as a student was to take the Oath of Hippocrates with my classmates and 98% of the other medical students graduating in the United States that year. This oath still resonates within me today and connects me to all physicians reaching back over 2,500 years to the time of Hippocrates.
Implicit in an oath is the understanding that the profession chosen will require more sacrifice than the average vocation, that the occupation’s rewards should be more than a paycheck, and that a paycheck would impart less value than the enrichment gained from nobly serving others. The high standard which society holds physicians to is still accurately described by the Hippocratic Oath. Regardless of what changes seep into our profession from outside influences, doctors will always be held to the ideals written in the Hippocratic Oath.
When I was a young medical student, the hope that becoming a physician would bring value and meaning to my life was more rewarding than thoughts of job security or financial stability. This helped propel me and my classmates through many long nights of study. One sentiment oft-heard in my medical school, and I suspect many medical schools today, was that no one would put up with ‘this’ just for money–usually stated prior to a re-doubling of the effort to get past a particularly challenging task. Painful physical effort often was required, such as waking at 3AM to make hospital rounds, or spending 24-hour long shifts stealing naps and bathroom breaks, sometimes even working over 100 hours a week during demanding rotations. Steven Miles, a physician bioethicist, wrote, “At some level, physicians recognize that a personal revelation of moral commitments is necessary to the practice of medicine.”
I would proffer that few students would endure the sacrifices necessary to graduate without understanding this point.
In Paul Starr’s 1982 book, The Social Transformation of American Medicine, he stated that in the future the goal of the health industry would not be better health, but rather the rate of return on investments. This unfortunately has come to pass. Arguably, medicine now is controlled by CEOs and other executives in the health industry — individuals who are not expected to take an oath. Physicians, remaining loyal to the Oath, are an unwitting weak and junior partner in today’s health care industry. Worse, doctors are now employees, often seen as interchangeable parts with one doctor considered no different than another. Third party providers in the health care industry fail to place any value on the personal interactions between doctor and patient. It may be better that the CEOs of health insurance companies are not required to take an oath, since many are on record, admitting loyalty to the share-holder alone with profits their first consideration.
Before the Great Depression, only 24% of the U.S. medical school graduates were given the Oath at graduation. Does this suggest they were less ethical? I don’t think so. I believe the increased use of the Oath demonstrates a growing awareness on the part of our educators that business has taken a controlling interest in the practice of medicine and that their graduates should be reminded that society still expects them to deliver on the noble promises of the past. Hippocrates’ Oath helped pry medicine away from superstition and the controlling interests of Greece’s priesthood in the fifth century B.C. Hippocrates plotted a course towards science using inductive reasoning while his Oath anchored his fledgling art on moral truths unassailable even today. I suspect he would see little difference between those profiting within the priesthood of his day and those monopolizing healthcare today. He would find familiarity in those putting forth their difficult-to-decode rules of reimbursement, recognizing these rules as intentionally confusing, pejorative, and detrimental to patients and physicians alike while profiting those few in control.
How would Hippocrates advise today’s students and physicians when shown how monetary realities have finally subsumed us all? He might remind us that money was not our motivation in pursuing this career and show us how a return to the reverence for our art, embodied by the Oath, could become a modern conveyance to the ideals of the past. By regaining our reverence for what motivated and guided us through medical school and residency we should find ample courage to do whatever is necessary. Much is needed to wrest control of today’s broken healthcare system from those making huge profits…. and an oath can remind us why it is important.
Until next time, I remain yours in primary care,
Steve Simmons, MD
January 21st, 2009 by Dr. Val Jones in Primary Care Wednesdays
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By Alan Dappen, M.D.
“Doc, you’re the best! You saved my life, and my wife’s. You delivered my kids and brought them through sickness — time and again. I trust you, and can confide in you … Hey, wait a minute … Are you still a Preferred Provider?”
This is a statement I heard all too often as a primary care doctor beholden to third-party providers. When a long-time patient asked this question, I felt like the mythological Damocles, who precariously sat beneath a sword suspended by a horse hair, for if I answered “No” to that question of “Are you a Preferred Provider” the sword would fall, swiftly.
No matter skill, knowledge, talent, caring, quality, experience, price or level of trust of their current primary care practitioner, 90-95% of patients who ask “Are you my preferred provider?” paradoxically will exit one primary care provider’s office to entrust the decisions of their day-to-day health care to another physician picked by their insurance company, even though this new doctor may be a stranger who signs a contract to do the job for less money.
For decades now patients have been led, like lemmings, by the belief that the vast majority of healthcare is virtually free because they have health insurance usually wholly and partially funded by someone else, like their employers of the government. Furthermore, patients trust that the providers of this health insurance know what is best for their care.
Because someone else is footing the bill, we as patients have absolved ourselves of the responsibilities associated with finding and consuming good care. Instead, the hope of getting what appears to be virtually free health care trumps all other considerations of care, whether it is quality, level of expertise, convenience or accessibility. Few of us are immune to wanting to get something for less, or better yet, something for nothing. This behavior leads to moral hazards, which are most easily explained by the WIFM (“What’s in it for me”) concept, and best exemplified by the way we eat at a buffet, drink at an open bar, or most recently by how the banks flocked to the sub-prime market to make easy, big money.
In health care, these moral hazards mean patients do not hold themselves accountable for finding the quality of care they desire at a price that makes sense. Instead, patients often rush for more health care believing that more care is better care; or to specialists because this means more competent care; or to more tests because this translates to more comprehensive results; and finally to more drugs and more treatments because these mean a longer, happier life. And patients do so because they believe their care is “free.”
Most patients are loathe to believe the numerous studies contradicting many of these beliefs. Due to the set up of the current “free” care healthcare system, patients are shielded from the actual costs of care, so they do not carefully consider these costs when assessing care. Take, for example, that a new chemotherapy drug for colon cancer cost $40,000, and yet only adds an average 1.5 months onto a patient’s life. Or that the newest brand name antidepressant costs 6 times more than its older, generic cousin (Prozac), with no evidence that it works any better. And finally, consider this example: a 70 year-old man with severe, irreversible chronic end-stage heart and renal failure, who has been bed-ridden for 3 months with numerous deep bed sores, and whose family demands “keep him alive no matter the cost.”
Unfortunately, the WIFM game doesn’t end with the patient. Imagine the beauty of running a business when all your customers say, “Don’t worry, just send the bill to Mom (the employer) and Dad (the government) and they’ll pick up the tab.” It is not rocket science to understand how this led physicians to a business model that guaranteed customers as long as they played by the providers’ rules; nor to understand how drug companies produce more and more “me too” drugs that offer no advantages over generic precursors but cost 6 times more; nor to see primary care physicians moving to specialization, with little difference in training compared to primary care while doubling or tripling fees; nor insurance companies keeping 30-40% of all collected money for “administration, policing, and profits,” and their executive team pocketing exorbitant rewards, like the United Health Care CEO who amassed almost $2 billion in just a few years. How dare he?!
This then is the systemic toxic effects of our health care system. The moral hazard of free healthcare binds us into one big dysfunctional family. Whatever happens, let’s make sure someone else is paying for care.
Here’s the rub: insurance has a social value for protection against large or chronic, recurring costs to help ensure your financial well-being. Primary care, on the other hand, is something all of us need, on average 1-2 hours a year and a can cost the patient as little as $300. What minimal cost to pay for staying healthy today, building for a healthy tomorrow, and ideally decreasing our need for more expensive healthcare later on. Yet few are willing to pay only a little bit today for their day-to-day care – no matter its level of quality, accessibility or convenience, unless it is “free.” So, in a world of moral hazards, what is going to happen to typical primary care?
Stay tuned and we’ll review the dirty little secrets primary care plays to survive and why it really does matter to you.
Until next time, I remain yours in primary care,
Alan Dappen, M.D.
