Posts Tagged ‘Health Care Reform’

Week in Review (April 23 – 29, 2011): The Eye Opener Health and Law Blog

Saturday, April 30th, 2011

From the Editor:

Last week was a busy but productive week for our firm’s blawgers – 6 posts – and we actually practiced law a lot! My personal thanks to our writers for taking the time to post some important pieces on health, safety, medicine and law. To our readers, my continued and sincere thanks as well. While it’s great to pull-out our soapbox and write about stuff we do and are passionate about, it’s incredibly rewarding to have you, our readers, take the time to read what we write. To those who left comments, a special thanks. We really enjoy interacting with you!

Now on to the business at hand. What did we write about that you may find interesting? Here you go.

My Pet Peeves About the New Age Mediation Process

Having been inspired by a fellow blawger from New York, Scott Greenfield, who chided legal bloggers (thus the name “blawgers”) for simply rehashing news and not taking a stand on issues, I wrote a piece called Mediation of Lawsuits: The 5 Top Things that Tick Me Off!

Having recently been through a number of mediations that were enough to pull your hair out because of the silliness that people engage in when they claim they are mediating to get cases resolved, I decided that it was time to take a stand and post a personal rant. While perhaps best understood by lawyers, claims adjusters and mediators, this blawg was not intended just for them. I’ve seen what impact foolish approaches and conduct by the participants to mediation can have on my clients, the injured parties. It was time to sound-off; so that’s what I did. I once again invite anyone who has been a party to a lawsuit mediation to do your own personal sound-off and tell us what it was like for you. It’s your turn to tell us just how much you enjoyed the process and what can be done to make it better. Read the horror story told in our Comments section by one of our Canada readers when she went through a domestic mediation process. Share your thoughts and stories as well.

Health Care: Who’s “Voiceless” When It Comes to Being Heard on Capitol Hill

Guess I had too much time on my hands at the beginning of this week (not really!). I couldn’t help but be inspired by a piece Jason Penn had done last week about how families were so adversely affected by the budget cuts that were made when the government shutdown was looming a few weeks ago. As I was going through my Google Reader early this past week, I came across an Op Ed by a doctor, who was complaining or at least suggesting that the president and congress need to hear more what doctors had to say about health care reform. Having read that, Jason’s piece jumped into my mind and the result was my blawg entitled Health Reform: What voice does the patient have in the debate.

The post brings to light the amount of money being spent by the healthcare industry in its lobbying efforts on health care reform. ObamaCare‘s raison d’etre is explored as well since it is ironic, if not sad, how the story behind all this money, lobbying and legislation seems to have been lost in the rhetoric. More affordable, better and available health care for our citizens? Then why were the most needy among us the victims of back room wheeling and dealing when the time came for budget cuts to save the federal government from closing its doors? I ask the question – who’s voice is being heard – but more important – who’s is not?

FDA approves use of “meningitis drug,” Menactra, for younger children

Hopefully you’ll never need to use this information, but if you do, Jason Penn reported on a condition – meningitis – that can affect not only adults and older children, but infants and toddlers as well. Meningitis is generally defined as an inflammation of the protective membranes covering the brain and spinal cord. Prior to a recent change in position by the FDA, there wasn’t a vaccine available for children under the age of 2. Now, with the FDA’s recent approval, Menactra can be used to vaccinate children from the age of 9 months to age 2.

In addition to this news release, Jason tells parents about the signs and symptoms they should be aware of to spot this condition.

The classic symptoms of meningitis are a high fever, headache and stiff neck. Detection of these symptoms, particularly headache and stiff neck are certainly difficult to detect in infants and toddlers. According to the Centers for Disease Control and Prevention, infants with meningitis may appear slow or inactive, have vomiting, be irritable, or be feeding poorly. Seizures are also a possibility.

To learn more about this important topic, read his piece Meningitis & Your Baby: Three Things to Think About.

Why are children still dying because of venetian blinds?

Sarah Keogh wrote what I believe is a very important piece for parents, grandparents or anyone who has a baby in the house. Years ago we all heard about the horror of parents finding their babies dead from strangulation when their necks became entangled in venetian blinds. Years have passed since those stories made the front page. Well, an update on just how well manufacturers and parents have been doing to avoid such tragedies was recently posted in The New York Times.

In her blawg entitled Window Blinds: Why are Children Still Dying, Sarah tells us the sad truth that these deaths and injuries still continue in our country. Find out what you as a caregiver of a young child need to realize about this product. Maybe you’ve put the cords up high and out-of-reach for your baby. Maybe you’ve taken other steps to avoid such a nightmarish event ever happening in your home and in your life. Unfortunately, many who have done so have still suffered this tragedy. Why? What is being done by manufacturers and the government to prevent these injuries and deaths ? Read Sarah’s piece for the answers and some practical advice you can take to make your home safer for your child.

Hospitals Reporting Methods for “Adverse Events”

We all know by now that if you want to look good to the public, all you have to do is “play with the numbers.” Well, it seems like hospitals have a penchant for doing just that. One of the key “numbers” that advocates of patient health and safety look at is how many “adverse events” take place in any given hospital. An “adverse event,” as you may already know, is – simply put – any harm to a patient as a result of medical care.

In his post this past week, Jason Penn compares some interesting adverse event bookkeeping by hospitals throughout our country. His blawg, The New Enron? Are Hospitals Cooking the Books?, brings to light serious flaws in the way that our medical institutions “count” the number of so-called adverse events taking place within their walls. His research for this piece reveals…

[M]edical errors occur 10 times more than previously thought.Maybe that wasn’t hard hitting enough. Let me try again. How about this: mistakes occur in one out of every three hospital admissions!

Frankly, that strikes me as an astounding and very concerning number. Are the numbers being reported reflecting this? The simple answer is no. Why not? Read Jason’s post and see what reporting systems are in place – or not in place as the case may be. We all remember Enron. Is this the medical version of “making the numbers look good” when they simply are not!

Surgeons and Booze – an Obvious Bad Combination – Who’s Protecting Us?

It doesn’t take a genius to realize that surgeons should not be under the influence when we as patients are “under the knife” What’s not so obvious is just how prevalent this may be in the operating rooms of our country (and throughout the world).

Wondering what the studies have been done by the medical profession to examine this problem? Have any idea what regulations are in place by hospitals to guard against the problem of “hungover surgeons”?

Wonder no more. Jon Stefanuca’s blog this past week, Hungover Surgeons: Watch Out! There’s Nothing Between You and Their Scalpel!,will tell you all you need to know. Jon queries: “Should hospitals regulate for patient safety?” What do you think? Share your comments.

A “Sneak Peak” of the week ahead

Some more good advice is on the way for parents of special needs children. We all know about what a wonderful aide dogs are for the blind. Mike Sanders will share what he’s learned how these canine wonders are being used for kids in need. Suffering from asthma or know someone who is? Jon Stefanuca will be sharing with  you some valuable information on this topic next week. A number of our clients or their now-deceased family members have suffered from this condition. Jon will share a story or two (without revealing protected confidential information) to bring to light just how this medical condition needs to be better recognized and treated by our health care providers before its too late. We all know what a difficult job nursing can be. That being said, Sarah Keogh will be telling us about some very concerning “trends” that are coming to light in this wonderful profession. Stay tuned for this important piece.

We’ll start next week off with a new blawg by our in-house medical specialist, Theresa Neumann. Her post on how important it can be to get a second opinion before you sign-up for a surgery, procedure or test is sitting in the queue just waiting to hit the pages of The Eye Opener – Views and Opinions from the Nash Community.

One Final Note: I wrote in last weekend’s Week In Review that we intended to post a new White Paper by Marian Hogan on a very important topic relating to Patient Controlled Analgesia (PCA). It didn’t happen – because of “my Bad.” I fouled-up and sent the wrong draft of Marian’ s piece to our graphic designer. He did a wonderful job – as usual – of getting it ready – it just wasn’t the right version. The problem is fixed, but my mistake will delay the posting of this important White Paper for another week. Public apology: Sorry, Marian! We’ll make it right soon.


Health Reform: What voice does the patient have in the debate?

Tuesday, April 26th, 2011

Recently, I came across an Op Ed entitled Health Reform Requires Listening to Doctors. The very title suggests that  physicians and the health care system in general don’t have much of a voice in the discussion of health care legislation.

The question struck me – can that really be true? If the medical profession and health care industry are crying “poor us,” as the Op Ed author would suggest, that’s rather disingenuous at best. It’s well-known in today’s world of American politics that one sure way to have a voice is to hire a lobbyist. According to the Center for Responsive Politicsover $1 billion was spent on lobbying related to health care in 2009 and 2010. Who were the big players and payers in the hiring of lobbyists?

CNN Money tells the tale of the tape:

[L]obbyists for 1,251 organizations disclosed that they worked on health care reform in 2009 and 2010, according to the center and an analysis by the Sunlight Foundation. The number of individual lobbyists who reported working on health related legislation last year hit 3,154 in 2010.

Big Pharma topped the list. The Pharmaceutical Research and Manufacturers of America spent $22 million and deployed an army of no fewer than 52 lobbyists, according to the center.

Blue Cross Blue Shield, which used 43 lobbyists, spent $21 million. The biotech company Amgen (AMGNFortune 500) employed 33 lobbyists and spent $10.2 million.

Yet another source, iWatchnews.org, reports the following:

A Center for Public Integrity analysis of Senate lobbying disclosure forms shows that more than 1,750 companies and organizations hired about 4,525 lobbyists — eight for each member of Congress — to influence health reform bills in 2009.

Among industries, 207 hospitals lined up to lobby, followed by 105 insurance companies and 85 manufacturing companies. Trade, advocacy, and professional organizations trumped them all with 745 registered groups that lobbied on health reform bills, illustrating the common Washington strategy of special interests banding together to pool money and increase their influence.

Seems like a whole lot of money was spent by the health care industry to have a voice.

This blog, however, is not intended to address issues relating to the Obama Health Care Reform (or as it is referred to in some circles as ObamaCare). I don’t claim to understand the in’s and out’s of that political football. I’ll leave that for the so-called pundits to address. What does strike me, however, is the travesty that recently played out in the setting of a threatened federal government shutdown.

Health Care Reform – the goal of the President’s Plan

What was the stated purpose and goals of the President’s health care reform? Look no further than the online posting by the White House for the answer:

Health reform makes health care more affordable, holds insurers more accountable, expands coverage to all Americans and makes our health system sustainable.

Sounds good in principle, right? Putting aside all the politics, rancor and ranting surrounding the debate over the specifics of health care reform, don’t you find it rather ironic that when recent budget cuts to avoid a government shutdown were the topic du jour, those who had very little, if any, voice were the people who desperately need can’t afford health care?

Recent Budget Cuts and Who Paid the Price

As I learned last week, when the back room deals were struck, those without a voice were the victims of political expediency.

As our own Jason Penn reported in his blog post, Budget Crisis Avoided, But What About the Babies? Can They Live With $504 Million Less in Funding?:

At the 11th hour, cuts were made, backroom deals were struck, and Washington spoke:  there will be $38 billion dollars trimmed from the federal budget.  On a positive note, federal agencies will remain operational until the end of September. Reason to cheer? Maybe. Before we break out the party hats and noise makers, let’s take a look at how healthcare fared.  The following areas are among those cut:

-         Special Supplemental Nutrition Program for Women, Infants and Children (WIC):  $504 million

-         Community Health Centers:  $600 million

-         Substance Abuse & Mental Health Services Administration:  $45 million

-         Infectious Disease prevention:  $277 million

Total:  $1.426 Billion.  Yes, billion, with a “B”!

Isn’t the answer of who does and who does not have a voice in the bigger picture of health care legislation and so-called fiscal reform self-evident. Who was there in the back rooms of our hallowed halls of Congress protecting those in need of good primary care programs? I suspect that when it’s crunch time, political expedience wins the day. Need cuts to keep a bloated beast alive and floundering? Snatch it from the ones who will be heard the least – the ones who don’t have the ability to spend over $500,000,000 a year for lobbyists so they can have their voice heard.

As Written in the Book of Isaiah the Prophet…

Apparently it’s just “politics as usual.” For all the rhetoric about making primary health care available to all Americans and improving and sustaining programs to deliver critical healthcare to those who need it the most, the voice crying in the wilderness was not loud enough. Maybe, as the Op Ed author claims, everything the medical profession and health care industry has to say is not being heard or at least being accepted. Nevertheless, they have a voice, which is more than can be said for those they claim they want to protect. How many of the enormous lobbying dollars did the medical community and health care industry spend to protect primary care programs from the budget-cutting ax? I suspect we all know the answer.

 

Image source: fromtheleft.wordpress

 

How to Find a Democratic Doctor in Florida – check the sign on their door

Saturday, April 3rd, 2010

Health care reform – no, not tort reform – advocates be aware – especially if you live in Florida.  A new trend or just a single quack?

The NY Times ran a piece yesterday about the now infamous urologist in Florida, Dr. Jack Cassell, who posted a sign on his door that says, “If you voted for Obama, seek urologic care elsewhere. Changes to your healthcare begin right now. Not in four years.”                                  

Well there’s free speech and then there’s outright stupidity.  If there were an award for Quack of the Month, Dr. Cassell would win hands-down.  I understand being opposed to what is commonly now referred to as Omamacare; however, this doctor is over-the-top.

Perhaps my favorite quote in the article is the following:

In an interview with The Orlando Sentinel, he insisted that he would not refuse to treat a patient because of politics. “That would be unethical,” he said.

Unethical?  Surprised he understands the concept.  Perhaps now when we show up at our health care provider’s office, we’ll not only be asked for the usual information such as name, address, health history and chief complaint but also “who did you vote for in the last presidential election?”

Did Dr. Cassell ever hear about exercising his right of free speech through an editorial?  The physician-patient relationship is supposed to be based on trust.  How do you trust a doctor who tells you ‘at his front door’ – you are not welcome here if you are an Obama supporter.

UPDATE:  after posting this, I came across a blog from Anderson Cooper’s 360 inviting comments on this issue.  Yes, I waded in on the topic having seen some of the ‘interesting comments’ by some who agree with Cassell.

My second favorite quote from the Times article reads – “Dr. Cassell, 56, could not be reached for comment. The phone at his office was continuously busy Friday, and the doors were locked before 4 p.m.”  Maybe and hopefully they were locked so early because a large percentage of his patient population is democrat!

Get real, Doc!  Rendering quality care to your patients is what should be happening in your hallowed office, not using your front door as a pulpit for political rhetoric.

Malpractice Reform — New England Journal of Medicine – New Alternatives Analyzed

Friday, April 2nd, 2010

There is a thought-provoking article in the New England Journal of Medicine entitled “Malpractice Reform — Opportunities for Leadership by Health Care Institutions and Liability Insurers,” which was posted online on March 31, 2010.  In essence, the authors suggest that health care institutions and insurers not wait for national tort reform legislation (“a political gridlock”) but rather become leaders in the development of alternative methods for “providing compensation for medical injuries.”

While the concept is somewhat intriguing, the methods discussed are in many instances nothing but a privatization of tort reform at its worst. Each “alternative method” will be examined seriatim.  

The overall concept seems to be rooted in what is commonly referred to as the “disclosure-and-offer” approach.  Three models are discussed: the reimbursement model, the early-settlement model and health courts.

Please refer to the article itself for a more thorough description of these models.  The length of this blog is concerning enough.

In essence, with the “reimbursement model, institutions offer to (as the name denotes) reimburse patients for some out-of-pocket expenses related to the injury and for “loss of time.”  Typically, there are pre-determined limits for each category,which often are $25,000 for expenses and $5,000 for loss of time. Clear cases of negligence, fatal injuries, cases that are the subject of a lawsuit or where an attorney is invovled are excluded from the program.  There is no investigation into “possible provider negligence” in this matters. Patients who accept money do not waive their right to sue.

As a general comment, this plan makes the most sense but does not really deal with the infamously named “malpractice crisis” to any large extent.  First, most cases of medical malpractice that make their way to the courthouse could not conceivably fall within these financial parameters.  If a malpractice lawyer takes on a case with $30,000 in special damages (economic losses such as medical bills and lost wages), that lawyer needs to reassess their intake procedures. Given the economics of costs of litigation (not fees), mandatory reimbursements such as Medicare and Medicaid, liens from private insurers and the like, it would be foolhardy for a lawyer to become involved in such matters since the client’s net recovery would be non-existent.  What does make sense, however, is no-fault reimbursement to patients with minor, non-permanent injuries as a sign of goodwill by the providers of health care.  In that respect, the “reimbursement model” is a good program – given its express limitations.

Another major defect in this “reimbursement model” is the premise that there is no “investigation into possible provider negligence.”  If I am reading this correctly (none of the hospitals with which I am familiar in our geographical area have such plans presently; therefore, I am not certain how this works), the risk manager or claims person simply decides to write-off the loss as potentially a cost-savings measure.  One of the positive features of our current litigation system (when meritorious cases are brought) is that it does serve to correct errors in the health care delivery system.  When a major injury case is brought, many valuable lessons are learned by providers of health care.  Whether there is a “system problem” or just a dangerous method of practice at play, people do (unless they are completely arrogant and/or dense) learn lessons so that other patients do not suffer the same harm. One of the goals of the medical profession in analyzing, handing and resolving cases of medical errors is to identify problems and take steps to correct those problems for future injury avoidance.  An entire essay, rather than a blog, could be devoted (and maybe will be) to this concept of the health care industry policing itself through conscientious, rigorous self-appraisal and correction when wrongs are identified.

The “early-settlement” model is described in the NEJM article as follows: “no preset limits on compensation,” but compensation is not offered unless the institution, “after an expedited investigation, determines that the care was inappropriate.”  Offers may include compensation for all elements of damage – economic as well as non-economic (e.g. pain and suffering) damages.  To accept the money, the patient must agree that such payment constitutes a “final settlement” – thus obviating the bringing of a lawsuit.

More research into this ‘early-settlement” model is called for since the NEJM article does not go into other critical details associated with such an approach.  Since the model was “pioneered by the self-insured University of Michigan Health System,” I intend to devote a separate writing to this program once more research on its possible limitations and efficacy has been accomplished.

Suffice it to say for the present that if such a model precludes attorney involvement, then this is a fatal flaw.  The reason individuals come to a lawyer when tragedy occurs in the medical context is because those of us who specialize in this area of law know and understand (1) what  proper claims should be made and (2) what the fair and reasonable parameters of just compensation are for the victims of medical malpractice.  Sure, one can take a jaded approach and scoff – “All the lawyer wants is a fee and that’s why you are against this model”  Simply not so.  A substantially reduced fee arrangement may well be in order in such instances.  If the client is at least properly represented and the case is handled expeditiously and the compensation is fair and reasonable, then I for one believe that a reduced fee is in order which would further benefit the patient/client.

That’s not the full story, however, when it comes to discussing this so-called model.

In our current system of medical malpractice litigation, the system would work a whole lot better and be much less expensive and be much more efficient if these same principles were applied to the current claims handling practices of insurers and self-insured health care providers.

One of the largest drawbacks  for both the health care system and for the patient/client are the costs associated with medical malpractice litigation.  I recently wrote a blog regarding the issue of costs and their effect on the so-called malpractice crisis.  When clear-cut cases of medical negligence exist and are ignored or denied by risk management or insurance claims  personnel, the costs sky-rocket.  The health care insurer or provider hires counsel at an hourly rate to defend the case.  Discovery in the form of record production, depositions and the like proceed with sickening and dollar-wasting frustration for the plaintiff lawyers and their clients.  Cases slog along unmercifully through the system for months if not years. If you have a clue what you are doing as an experienced medical malpractice lawyer, you have a pretty good sense of what cases have merit and which do not.  Of course, no one is infallible, but for the most part, “good cases almost try themselves.”

Applying the principles of the “early settlement” model to what exists in today’s world of medical malpractice, I suspect that nationally, on an annual basis, billions of dollars would be saved in ridding our system of the needless waste of money in defending cases that should have been resolved early in the process.  Why not take the principles of this model and apply them to what exists in the current system?  That’s what the health insurance industry should have been doing years before now.  Did they need a new “model” to tell them that? If insurers took a more responsible approach by fairly and honestly assessing these cases and did so in an “expeditious” fashion, our courts would not be clogged with needless litigation, the health care industry would save enormous amounts of money, and – most important – patients would be justly and timely compensated.  If only the public knew just how much waste there is in our current system due to the lack of due diligence and timely claims handling, they would perhaps have a more balanced approach to this ‘discussion’ of tort reform.

Institutions and insurers that are responsible in their claims handling practice are not the problem.  Fortunately, in my work for  years as a defense lawyer, I had the privilege of working for one such organization. Unfortunately, they are not in the majority.  I would love to see figures of defense costs (fees and expenses) on those cases that are ultimately settled or unsuccessfully defended.  I have zero doubt that those numbers are staggering.  If those fees and costs were substantially reduced through conscientious and timely claims handling, we might well not be having this discussion of tort reform in the first place.  When critics say blame the plaintiff lawyers – they may have half the phrase right – just not the right adjective.  A fuller discussion of the abject waste due to poor claims handling and delaying tactics by the defense bar is the subject for future consideration.

Finally, the infamous option of the ‘health courts.’  Succinctly stated (in the interest of relative blog-brevity), the essentials are described in part as follows:

A panel of experts, aided by decision guidelines,determines whether the injury was avoidable — a determination that turns on whether the injury would ordinarily have occurred if the care had been provided by the best specialist or an optimal health care system; the avoidability standard is more generous than the negligence standard. For avoidable injuries, the institutionoffers full recompense for economic losses plus an amount for pain and suffering according to a predetermined compensation schedule that is based on injury severity.

Various alternatives for this model are discussed in the NEJM article and include items such as making the program voluntary, permitting limited appeals to some extent and so on.  As one reads further, however, repugnant elements start rearing their ugly heads.  Just some of these components of the ‘health court’ system proposal are (1) waivers of the right to file a lawsuit “as a contractual condition of receiving care,” (2) so-called “decision guidelines,”  and (3) “predetermined compensation schedules.”

Waivers of right to a jury trial as a condition to receiving care screams “void for being against public policy.”  Who is advising a patient in need of care what his or her rights are when signing a waiver. Can’t you just picture the following scenario?  Mr. Jones is clutching his chest in the ED and before care is rendered he’s asked, “Would you like to receive care here?  If so, you will need to sign this waiver form.”

Predetermined schedules of compensation?  Is this a euphemism for contractually created caps?

The NEJM article raises some valid issues and concerns. A great deal more thought of how to fix the system is warranted.  The answer may well  lie in the underlying approach being advocated in the article – malpractice reform should be self-initiating for health care institutions and liability insurers.  They should take a leadership role and not sit passively on the sideline shouting the same old song – “We need caps….Our system is about to crumble…It’s all the fault of the greedy plaintiff lawyers!”  Maybe a new model is in order – grab a mirror and examine how to better police your own claims-handling practices.  Stop wasting everyone’s time and money through poor claims practices.  Expeditiously and honestly assess claims.  Offer fair compensation early in the process.  Maybe if the health care and insurance industries tried fixing their own practices in the framework of the current system of civil justice, these endless calls for restricting injured patient’s rights might stop and the so-called crisis just might be averted.  Ever consider working with the plaintiff malpractice bar….or is just a lot easier blaming them?

N.J. doctors will gain easier access to paperwork via web | New Jersey Business – - NJ.com

Friday, February 12th, 2010

Here’s an encouraging report from the The Star-Ledger’s online  service -N.J. doctors will gain easier access to paperwork via web | New Jersey Business – - NJ.com.

In essence, now that Congress has apparently come to a screeching halt on health care reform, two trade groups for the health insurance industry, America’s Health Insurance Plans and the Blue Cross and Blue Shield Association, have rolled out a plan that will provide “doctors’ offices with a single way of accessing dozens of different health plans administered by five major insurers, including Aetna, UnitedHealthcare and Horizon Blue Cross Blue Shield New Jersey.”  Apparently, these five insurers represent 95% of people in NJ with private insurance.  The plan is similar to one started earlier in Ohio.  ”The program works by using a single website operated by Colorado-based Navinet, which is the nation’s largest healthcare communications network.”

“The ultimate goal is to have state-wide or regional-wide portals that span the country,’’ said Susan Pisano, spokeswoman for America’s Health Insurance Plans.

Christy Bell, senior vice president of healthcare management at Horizon Blue Cross Blue Shield New Jersey, said yesterday during a conference call announcing the program that one physician estimated his office spends between $60,000 and $100,000 a year just handling administrative issues — or required paperwork.

“We think we can remove a quarter to a third of those costs through streamlining and standardization,’’ Bell said.

Who said private industry, when left to its own devices, isn’t smarter and more efficient that Congress?