The Call for Medical Malpractice Reform as Health Care Reform: Sound and Fury? (Redux & Remix)

In Obama’s speech before Congress, he mentioned (to booming and overwhelmingly Republican applause) the prospect of medical malpractice reform– particularly as it relates to “defensive medicine” and patient safety:

Now, finally, many in this chamber — particularly on the Republican side of the aisle — have long insisted that reforming our medical malpractice laws can help bring down the cost of health care. (Applause.) Now — there you go. There you go. Now, I don’t believe malpractice reform is a silver bullet, but I’ve talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. (Applause.) So I’m proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine. (Applause.) I know that the Bush administration considered authorizing demonstration projects in individual states to test these ideas. I think it’s a good idea, and I’m directing my Secretary of Health and Human Services to move forward on this initiative today. (Applause.)

A few months back we covered the issue of malpractice reform and “defensive medicine” here on HRW.  Not much has changed since then (see below), but as we speak of those things which can make patients safer– including the prospect of doctors and hospitals being subject to suit– this article from the NY Times’ Prescriptions, “A Hospital Hand-Washing Project to Save Lives and Money,” is worth considering. In it, we are told of a study undertaken, for the chief hospital accrediting agency (the Joint Commission), by eight prominent hospitals to ascertain whether or not hospital staff were washing their hands  in accord with the central standards of the World Health Organization and the Centers for Disease Control and Prevention. They were not. Egregiously not. NY Times’ Prescriptions reports:

Hand-washing is considered vital in health care settings to prevent the spread of potentially-infectious pathogens, like Methicillin-resistant Staphylococus aureus. And close attention to such basic hygiene could be a way of reducing the nation’s hospital health care bill by billions of dollars.

To create a baseline, each hospital agreed last spring to carefully measure its current compliance, using trained unidentified observers. To the surprise of many administrators, the hospitals found that caregivers on average washed their hands fewer than half the times they entered or exited a patient’s room.

and that

The low compliance rates, which ranged from about 30 percent to 70 percent at individual hospitals, “are hallmarks of processes that are not in control,” said Dr. Mark R. Chassin, the Joint Commission’s president.

Findings of shockingly poor hand-washing compliance are not new in hospitals. Other studies have produced comparable figures, and the stories of fatal consequences have become tragically routine.

The disease control agency estimates there are 1.7 million infection cases a year in hospitals and that 99,000 patients die after contracting them (although infection may not be the sole cause). It projects the cost of treating those patients at $20 billion a year.

As I say in the post below, “Seemingly, one would define “defensive medicine” as that which a doctor [or hospital] does, which he or she would not do, if solely exercising his or her [or its] discretion without the fear of being sued. Therefore, might I suggest that “defensive medicine” is only excessive if the doctor’s [or hospital's] best estimation of the situation is correct.”

Apparently, contrary to the Joint Commission, the World Health Organization, and the Center for Disease Control and Prevention, the best estimation of a great many hospital staff is that they need not wash their hands.

REDUX, June 09. In case you missed it.

“THE FIRST THING WE DO,  LET’S KILL ALL THE LAWYERS.”
–Wm. Shakespeare, King Henry VI, Part II, (Act IV), Scene 2

[Today's post comes from a Bloomberg.com article I found via Kevin Giordano at http://twitter.com/SHHealthcareLaw -- a great source for Health Law news.]

The familiar refrain of “medical malpractice reform” has once again begun to echo through the popular landscape. It is being proffered as a means of achieving health care reform. But recent studies seem to show, as Bloomberg reports, that we might be better served to look elsewhere:

Protecting doctors from lawsuits may do more to gain political cover for President Barack Obama’s health-care overhaul than to rein in medical costs.

While Obama vowed to address physicians’ malpractice worries in a speech yesterday, annual jury awards and legal settlements involving doctors amounts to “a drop in the bucket” in a country that spends $2.3 trillion annually on health care, said Amitabh Chandra, a Harvard University economist. Chandra estimated the cost at $12 per person in the U.S., or about $3.6 billion, in a 2005 study. Insurer WellPoint Inc. said last month that liability wasn’t driving premiums….

“Medical malpractice dollars are a red herring,” Chandra said in a telephone interview. “No serious economist thinks that saving money in med mal is the way to improve productivity in the system. There’s so many other sources of inefficiency.”

The relative cost figures regarding the costs associated with malpractice are worth noting –as reported by Bloomberg:

About 10 percent of the cost of medical services is linked to malpractice lawsuits and more intensive diagnostic testing due to defensive medicine, according to a January 2006 report prepared by PricewaterhouseCoopers LLP for the insurers’ group America’s Health Insurance Plans.

2 Percent of Spending

The figures were taken from a March 2003 study by the U.S. Department of Health and Human Services that estimated the direct cost of medical malpractice was 2 percent of the nation’s health-care spending and said defensive medical practices accounted for 5 percent to 9 percent of the overall expense.

A 2004 report by the Congressional Budget Office also pegged medical malpractice costs at 2 percent of U.S. health spending and “even significant reductions” would do little to reduce the growth of health-care expenses.

Defensive Medicine

As is, I believe, readily apparent, defensive medicine comprises a great deal of that estimated expense associated with malpractice. It may benefit us to consider for a moment just what defensive medicine is. Seemingly, one would define “defensive medicine” as that which a doctor does, which he or she would not do, if solely exercising his or her discretion without the fear of being sued. Therefore, might I suggest that “defensive medicine” is only excessive if the doctor’s best estimation of the situation is correct.

Bloomberg reports that “The U.S. Institute of Medicine found a decade ago that medical errors kill 98,000 Americans a year” according to Les Weisbrod, president of the Washington-based trial lawyers’ group, the American Association of Justice.

According to Medical News Today, the medical error fatality figures above were supported by “Dr. Chunliu Zhan and Dr. Marlene R. Miller in a research study published in the Journal of the American Medical Association (JAMA) in October of 2003. The Zhan and Miller study supported the Institute of Medicine’s (IOM) 1999 report conclusion, which found that medical errors caused up to 98,000 deaths annually and should be considered a national epidemic.

A study by HealthGrades found more than twice that number in “potentially preventable deaths.”

In a post entitled Surgical Checklist Said to Save Lives & Money, we noted the following:

The use of a basic checklist was shown to be associated with a substantial decrease in surgical deaths and complications. In what the A.P. referred to as a “a large international study of how to avoid blatant operating room mistakes,” researchers found a 47 per cent decrease in death and a more than one third decrease in complications-from 11% to 7%- concomitant with the use of a 19 point checklist designed by the World Health Organization.

A.P reports that regarding the elements on the list (many of which concern matters such as verifying the patient’s identification, marking the area to be incised with a magic marker, discussing patient allergies and surgical team member responsibilities, and accounting for all needles, sponges and instruments after the surgery) U.S. hospitals have been required since 2004 to take some of these precautions. But the 19-item checklist used in the study was far more detailed than what is required or what many institutions do.

The researchers estimated that implementing the longer checklist in all U.S. operating rooms would save at least $15 billion a year. The study, which was conducted in both “wealthy” and “poor” nations in eight city hospitals across the world (including Seattle, Washington), was published in the New England Journal of Medicine; its results were said to have “startled the researchers.”

Finally, it should be noted that as someone with a J.D. after his name who has read more malpractice cases than I care to remember, I don’t claim to be unfettered by professional bias. And to make the case for fact-based reflection upon a subject is not to dismiss the underlying concerns of the subject as unwarranted– it is merely a call for appropriate perspective: given the number of yearly fatalities due to error (not to mention injuries due to the same), I am not prepared to categorize what doctors refer to as “defensive medicine” as a wholly unfounded expense.

As for the Shakespeare quote, “First thing we do, let’s kill all the lawyers,” I’ll leave that in the more than capable hands of Attorney Howard L. Nations:

Those who use this phrase pejoratively against lawyers are as miserably misguided about their Shakespeare as they are about the judicial system which they disdain so freely.

Even a cursory reading of the context in which the lawyer killing statement is made in King Henry VI, Part II, (Act IV), Scene 2, reveals that Shakespeare was paying great and deserved homage to our venerable profession as the front line defenders of democracy.

The accolade is spoken by Dick the Butcher, a follower of anarchist Jack Cade, whom Shakespeare depicts as “the head of an army of rabble and a demagogue pandering to the ignorant,” who sought to overthrow the government.  Shakespeare’s acknowledgment that the first thing any potential tyrant must do to eliminate freedom is to “kill all the lawyers” is, indeed, a classic and well-deserved compliment to our distinguished profession.

Obama’s Speech on Health Care Reform, In its Entirety

In case you missed it, courtesy of MSNBC

Amusing Ourselves to Death, Health Care Edition

As health insurance reform hopes entered a downward spiral in August, a squad of Monday morning quarterbacks blamed Democrats for mismanaging the debate. Turning his attention from the finance to the insurance industry, Matt Taibbi is particularly withering:

There [are] now so many competing ideas about how to pay for the plan and what kind of mandates to include that even after the five bills are completed, Congress will not be much closer to reform than it was at the beginning. “The president has got to go in there and give it coherence,” [former Labor Secretary Robert] Reich concluded.

But Reich’s comment assumes that Obama wants to give the bill coherence. In many ways, the lily-livered method that Obama chose to push health care into being is a crystal-clear example of how the Democratic Party likes to act — showering a real problem with a blizzard of ineffectual decisions and verbose nonsense, then stepping aside at the last minute to reveal the true plan that all along was being forged off-camera in the furnace of moneyed interests and insider inertia.

There are some aspects of the Senate HELP Bill that bear out Taibbi’s cynicism, and I expect more in the Gang of Six’s handiwork. But Taibbi misses the forest of reform for the trees of venal interest group grabs that are embedded in any modern legislative process. (Can he really say that even Baucus’s bill, the worst proposed so far, is so bad that it’s worse than the status quo?)

And can we please back up a bit and consider how industry giveaways develop “off-camera?” Professor Timothy Jost, one of the most authoritative, knowledgeable, and diplomatic voices in the health reform debate, has this to say about the media coverage of health insurance this summer:

I have explained how the bill works at a number of public meetings in recent days and have uniformly met the same response, “no one has laid this out for us before”. The media has done a terrible, an abysmal, an inexcusable, an unethical job of covering reform. They have completely abdicated their job of informing the public in favor of becoming an entertainment industry. The media have attended only to the politics, the controversy, the nuts, and the absurd, and have done almost nothing to let the public know what is at stake and what the legislation does. Consequently, the American people uniformly confess to being confused.

What could bring clarity? Paul Krugman, indispensable in so many other areas of contemporary political debate, offers this frame. He proposes Obama say the following:

“We’re going to make sure that every American has access to the same insurance deals big employers get. We’re going make sure that no American can be denied coverage at a reasonable rate because of previous medical history. And for those Americans who find it hard to afford essential insurance, we’ll provide financial aid.”

“Now, there are a few things we’ll need to do to make this work. We’ll have to require that all large employers either offer coverage to their workers or pay into a fund that helps them get their own insurance. We’ll sign people up for insurance now, even if they’re healthy, because it’s not fair to others if you wait until you’re sick to join the system. And we’ll keep the insurance companies honest by offering people the choice of buying their insurance directly from a public plan.”

“Let me be honest: this won’t come free. But this plan will give Americans the fundamental security of knowing that for the rest of their lives they and their families will have the health insurance they need, insurance that they can’t lose.”

Krugman also addresses the thorny issue of the public option, arguing that it’s crucial to balance an individual mandate to have health insurance with an option to join a public plan. It should be easy for America’s “vast middle class” to see the benefits here, if Obama can break through the carnival of death panel-talk that the media has seized on this summer.

Dr. Collins and the Pope

President Obama’s nomination of Dr. Francis Collins as the new head of the NIH should be unsurprising, given his extraordinary accomplishments in leading the sequencing of the human genome, and fighting for its general accessibility to facilitate research.  Nonetheless, according to the New York Times some apparently object to his appointment due to his public religiosity — these critics demean the merits of his appointment by referring to it as a bone for the religious right.  To the contrary, it should be affirming that the leader of the nation’s research agenda should so publicly value ethical decision-making, especially in a time when we possess the power to accomplish so much that is both extraordinary and potentially destructive of our intrinsic nature as humans.   Whether a public intellectual’s ethical grounding is in religion or a secular philosophy should not become the basis of opposing his leadership; rather, we should celebrate the leader with a firm ethical grounding.

More specifically, religious perspective still has much to contribute to public debate, even when we disagree with that perspective.   Pope Benedict XVI’s June 29, 2009 encyclical, Caritas in Veritate, advocates the Church’s social doctrine, which the Pope presents as being interdisciplinary:

It allows faith, theology, metaphysics and science to come together in a collaborative effort in the service of humanity. It is here above all that the Church’s social doctrine displays its dimension of wisdom. Paul VI had seen clearly that among the causes of underdevelopment there is a lack of wisdom and reflection, a lack of thinking capable of formulating a guiding synthesis, for which “a clear vision of all economic, social, cultural and spiritual aspects” is required. The excessive segmentation of knowledge, the rejection of metaphysics by the human sciences, the difficulties encountered by dialogue between science and theology are damaging not only to the development of knowledge, but also to the development of peoples, because these things make it harder to see the integral good of man in its various dimensions.

Erasmus, Hans Holbein the Younger, 1523

While the Church may not always advance solutions that precisely befit our culture and time, the over-arching philosophy is one that but might provide a useful template for emulation in our own society.  This is particularly relevant as we contemplate whether to create a health care system that would provide universal access to health care in the United States.

Again, the guideposts demarked in Caritas in Veritate speak to the choices that confront us in this perennial public policy debate.  While embracing the value of the market, the Pope suggests that economic activity cannot solve all social problems, thereby requiring that it act in concert with the political community, whose focus should be on achieving the common good.  Driven by commitment to charity and justice, the Pope suggests that “Solidarity is first and foremost a sense of responsibility on the part of everyone with regard to everyone, and it cannot therefore be merely delegated to the State.”  And so I suggest that religiously-grounded social teaching remains relevant to our contemporary debates. We must pursue a system in which each of us has access to health care, which necessarily requires that, in solidarity for our fellow being, those of greater fortune accept the responsibility for those who do not, giving the gift of an opportunity for the basic good of health.

WaPo, Say it Ain’t So: Publisher Katharine Weymouth said to have offered lobbyists paid access to the Washington Post’s “Health Care Reporting and Editorial Staff”

It doesn’t happen often, but I am bereft of the power of speech. Fortunately, POLITICO is not– and as for what they have written? Res Ipsa Loquitur

POLITICO reports that:

Washington Post publisher Katharine Weymouth said today she was canceling plans for an exclusive “salon” at her home where for as much as $250,000, the Post offered lobbyists and association executives off-the-record access to “those powerful few” – Obama administration officials, members of Congress, and even the paper’s own reporters and editors.

The astonishing offer was detailed in a flier circulated Wednesday to a health care lobbyist, who provided it to a reporter because the lobbyist said he felt it was a conflict for the paper to charge for access to, as the flier says, its “health care reporting and editorial staff.”

With the Post newsroom in an uproar after POLITICO reported the solicitation, Weymouth and Executive Editor Marcus Brauchli both said today that they were not aware of the flier or the specifics of what it offered.

“This should never have happened,” Weymouth told Post media reporter Howard Kurtz. “The fliers got out and weren’t vetted. They didn’t represent at all what we were attempting to do. We’re not going to do any dinners that would impugn the integrity of the newsroom.”

“You cannot buy access to a Washington Post journalist,” Brauchli told POLITICO. Brauchli was named on the flier as one of the salon’s “Hosts and Discussion Leaders.”

Brauchli said in an interview that he understood the business side of the Post planned on holding dinners on policy and was scheduled to attend the July 21 dinner at Weymouth’s Washington home, but he said he had not seen the material promoting it until today. “The flier, and the description of these things, was not at all consistent with the preliminary conversations the newsroom had,” Brauchli said, adding that it was “absolutely impossible” the newsroom would participate in the kind of event described in the solicitation for the event.

“Underwriting Opportunity: An evening with the right people can alter the debate,” says the one-page flier. “Underwrite and participate in this intimate and exclusive Washington Post Salon, an off-the-record dinner and discussion at the home of CEO and Publisher Katharine Weymouth. … Bring your organization’s CEO or executive director literally to the table. Interact with key Obama administration and congressional leaders.”

The flier promised the dinner would be held in an intimate setting with no unseemly conflict between participants. “Spirited? Yes. Confrontational? No,” it said. “The relaxed setting in the home of Katharine Weymouth assures it. What is guaranteed is a collegial evening, with Obama administration officials, Congress members, business leaders, advocacy leaders and other select minds typically on the guest list of 20 or less. …

Brauchli emphasized that the newsroom had given specific parameters to the paper’s business staff that he said were apparently not followed. He said that for newsroom staffers to participate, they would have to be able to ask questions and that he would “reserve the right to allow any information or ideas that emerge from an event to shape or inform our coverage.” That directly contradicts the solicitation to potential sponsors, which billed the dinner as “off-the-record.”

Mergers In State Health Reform: Increased Efficacy or More Bureaucracy?

State Delegate Don Perdue told the The Herald-Dispatch, “Health reform has been tried a number of times.  It fails because one agency is not talking to another, because the vision somewhere gets lost in the process.”  One might imagine Delegate Perdue to be referring to health reform in just about any state– and even the federal government.  Are West Virginia legislators so far ahead of our representatives in Washington?  Hopefully not.  As our blog reported last week (Obama Officially Establishes White House Office of Health Reform), President Obama recently signed an executive order with an arguably similar purpose: work with several federal executive branch agencies, states and local officials, and Congress to enact health reform and develop and implement strategic initiatives to strengthen the performance of the health care system.

In Massachusetts, Governor Deval Patrick isn’t having as much luck.  The Boston Globe reports of a letter the Governor wrote to the chair of the state’s Health and education Facilities Authority (HEFA) instructing the agency to merge with the state’s Development Finance Agency by July 1, 2009.  The Governor’s office maintains that the merge will enhance HEFA’s ability to provide tax-exempt financing for hospitals and health facilities (as well as state educational institutions).  Critics see the attempt as a “power grab” and an attack on the safeguards that keep HEFA, and other quasi-public authorities like it, safe from political pressure and “gubernatorial interference.” Read more

Biopharmaceutical Companies Continue to Advance and Invest In Rough Economic Times

A recent press release from the Pharmaceutical Research and Manufacturers of America (PhRMA) reports that pharmaceutical and biotech companies continue to invest substantial amounts of money into research & development, despite the dismal current economic situation.  Research from PhRMA and Burrill & Company shows that “pharmaceutical research and biotechnology companies invested a record $65.2 billion last year in the research and development of new life-changing medicines and vaccines — an increase of roughly $2 billion from 2007.”  There are almost 30,000 medicines in development in the country right now.

In a time when most other industries are struggling and the unemployment rate is the highest it has been in 25 years, it is encouraging to see that the biopharmaceutical industry, one whose existence and success directly impacts the health of our nation, is continuing to invest and advance.  For example, this week we saw Merck make a serious investment through its $41.1 billion merger with Schering-Plough.    In addition, as we posted in December, Merck announced its plan to enter the biosimilars market, which will cost an estimated $1.5 billion.

Biopharmaceutical companies are continuing to spend on R & D, and the great majority of their investments are within the US.  According to “The Biopharmaceutical Sector’s Impact on the U.S. Economy: Analysis at the National, State, and Local Levels”, a study out this month by Archstone Consulting and Dr. Lawton R. Burns, this industry creates millions of US jobs and contributed three times as much to the GDP than the average of other industries and sectors in 2006.

Besides the struggling economy, drug companies face other challenges.  As we recently reported, President Obama’s health reform plan may negatively impact pharmaceutical companies through an increased discount to Medicaid (from 15.1% to 22.1% of avg. manufacturer’s price).   Despite the economic crisis and health care reform changes, it is hopeful to hear the industry’s continued commitment to progress. Said PhRMA President and CEO, Billy Tauzin:

America’s pharmaceutical research and biotechnology companies are not immune to the challenges presented by our current economic crisis.  However, the important work that we do every day in the battle with disease cannot stop. The U.S. is the world’s hotbed of medical innovation, and throughout the country, we remain committed today to finding tomorrow’s cures, despite the incredible challenges that are posed by the current economy.

As the Obama Budget Unfurls, Details About Health Care Reform Emerge

The New York Times has published an article, “Obama Offers Broad Plan to Revamp Health Care” which ably outlines the contours of the emergent health plan–and the way we’ll pay for it. Or at least the way President Obama proposes we’ll pay for it. According to the Times, “Mr. Obama asked Congress to set aside $634 billion in a ‘reserve fund for health care reform.’”

Suffice it to say, for the moment, that there are winners:

Cancer research, a multi-year plan designed to double it; Biosimilars (generic versions of biotech drugs), speeded approval through “a new regulatory pathway” at the Food and Drug Administration;” low-income women, increased access to family planning through Medicaid; and doctors, who will not be subjected to the Medicare cuts in payments scheduled to take effect in 2010 under current law (21% in 2010, 5% for a few years thereafter);

And there are losers:

Drug Companies, an increased discount to Medicaid (from 15.1% to 22.1% of avg. manufacturer’s price); Private Insurers, a cut in payments to Medicare Advantage providers; higher income Medicare recipients, increased prescription drug premiums; Hospitals, a decrease in Medicare payments for those hospitals with a high proportion of re-admits within 30 days of initial release (said to be indicative of  poor initial performance); home health agencies, a $37 billion cut over the next 10 years.

Of course, “loser” is a relative term; and sometimes a gored ox, if it lives, is better than no ox at all. And I would imagine that is easier to bear the loss of  some oxen than it is others: specifically, an increased discount in Medicaid prescription drug pricing, is not the ability of Medicare to bargain for the price of prescription drugs. A topic we wrote about in early January, and a reform which the Obama Health Care campaign plan promised:

“At present, Medicare is itself unable to negotiate drug pricing. In Obama’s campaign health plan, he stated that he would

‘Allow Medicare to negotiate for cheaper drug pricing. The 2003 Medicare Prescription Drug Improvement and Modernization Act bans the government from negotiating down the prices of prescription drugs, even though the Department of Veterans Affairs’ negotiation of prescription drug prices with drug companies has garnered significant savings for taxpayers. Barack Obama and Joe Biden will repeal the ban on direct negotiation with drug companies and use the resulting savings, which could be as high as $30 billion, to further invest in improving health care coverage and quality’ (footnotes omitted).”

My guess is that this is an ox the drug companies are trying to save.

Stimulus Sparks Changes in States’ Approach to Health Care

Today, President Obama will release $15 billion in Medicaid funds to the states according to USA Today.  As further reported by the NY Times, this is only one small portion of the $127 billion states will see over the next two and a half years for health care alone.

Attached to these funds will be the addition of a new category of individuals who qualify for Medicaid.  Stimulus legislation allows “those who are receiving unemployment benefits, their spouses and child under 19,” to now be eligible for Medicaid, reports the Times.  Further, states must abandon the use of any means test when unemployed individuals apply for Medicaid.

The affect this will have on states’ approaches to health care has not gone unnoticed. Republican Governor Mark Sanford (SC) has been a vocal skeptic of such changes to the extent that State Policy Network has described Sanford as fearing that the federal government is taking “yet another step in the march towards a government takeover of health care.”

But it’s not just Republicans that are at odds concerning the plan. Democratic Governor David Paterson (NY) is meeting with state legislators this week to attempt to reach an accord on how New York’s stimulus money will be spent on health care, reports Newsday. State legislators would like to see a share of the stimulus fill recent cuts to hospitals and other health care facilities and programs, but Governor Paterson would rather further reduce those state initiatives in the state budget.

ABC Special Highlights the Need for Education After SCHIP Expansion

ABC aired A Hidden America: Children of the Mountains last Friday with host Diane Sawyer. Children of the Mountains follows the lives of several children growing up in Central Appalachia.

The special raised several crucial issues, but I was struck by the lack of healthcare available to Appalachian children. Sawyer reported that a diet consisting of high-fat, salty foods and massive amounts of soda pop, particularly Mountain Dew, are responsible for a range of adverse childhood and adolescent health conditions.

One of the most serious health conditions addressed by Children of the Mountains is toothlessness. Sawyer explored how the consumption of large quantities of sugary sodas like Mountain Dew causes extensive cavities and tooth decay. Additionally, Appalachian children experience a lack of resources and health insurance coverage that surpasses that of many other low-income Americans.

The expansion of the State Children’s Health Insurance Program signed into law by President Obama last month requires all states to provide dental care to enrollees. While this is encouraging in light of the serious deficiencies in the availability of dental care to Appalachian children, The Kaiser Family Foundation reports that in 2004, 5.4 million uninsured children were eligible for SCHIP or Medicaid but not enrolled.

Read more

New Candidates to Head HHS Emerge, Suspense Mounts

Two additional candidates have emerged as possible nominees to be secretary of health and human services, reports The Washington Post. According to Democratic sources in and around the White House, those candidates are Lloyd Dean and Jack Lew.

Dean is chief executive of San Francisco-based Catholic Healthcare West and was recently named one of the top 25 minority health care executives by Modern Healthcare Magazine. Lew was involved in health care reform during the Clinton Administration and worked in the White House Office of Management and Budget, according to The Post. One small snag, reports The Post, is that Lew was recently confirmed as deputy secretary of state.

Yesterday we reported that Kansas Governor Kathleen Sebelius was at the top of Obama’s list to replace former Senator Tom Daschle as the nominee for U.S. Secretary of Health & Human Services. Sebelius removed herself from consideration for a cabinet position last December, citing the need to reform Kansas’ budget. However, The Wall Street Journal reports that Gov. Sebelius told Ron Pollack, president of Families USA, that she would accept the nomination for secretary of health and human services.

Prolegomena to Prononymity: What’s the Worst that Can Happen?

America needs electronic medical records (EMR). There are plenty of reasons why we are so far behind other nations in consolidating medical data: lack of strong central leadership on the issue, unwarranted faith in markets to produce solutions, and overwhelmed medical professionals who have little if any slack time to put a new system into place. Even as President Obama pushes for investment in EMR, privacy concerns are also slowing down progress:

Lawmakers, caught in a crossfire of lobbying by the health care industry and consumer groups, have been unable to agree on privacy safeguards that would allow patients to control the use of their medical records. . . . The data in medical records has great potential commercial value. Several companies, for example, buy and sell huge amounts of data on the prescribing habits of doctors, and the information has proved invaluable to pharmaceutical sales representatives.

“Health I.T. without privacy is an excellent way for companies to establish a gold mine of information that can be used to increase profits, promote expensive drugs, cherry-pick patients who are cheaper to insure and market directly to consumers,” said Dr. Deborah C. Peel, coordinator of the Coalition for Patient Privacy, which includes the American Civil Liberties Union among its members.

Health IT turns out to be one many areas where a drive for prononymity–that is, the de-anonymizing of records of on- and off-line life–is running up against a wall of wary citizens and consumers. In the health field, I think that resistance is only going to end if we have a robust “backstop” of health care in place so that citizens don’t have to worry about losing all coverage if a digital dossier presents them as a bad risk. (Medicaid as presently constituted does not count.) Far from overwhelming the health care system with pent-up demand, universal health coverage may be a prerequisite for generating support for the type of EMR that will provide us all with far better care.

A trend to prononymity in general should be matched with greater commitment to assuring that it won’t result in particularly harsh results. For example, people should not be denied a job for being identifiable as a Democrat in a blog post, whatever Monica Goodling thinks. Nor should doctor’s notes about a patient’s dark thoughts come back to haunt the patient when she or he applies for medical insurance. And if they do, there should be a genuine insurer of last resort available–not the patchwork of Medicaid and charity care that presently leave so many uninsured people falling through the cracks.

That’s one reason why I advocate the development of a Fair Reputation Reporting Act, which would allow individuals to know the documentary basis of certain key adverse decisions. I summarize the proposal here:

Reputation regulation has become essential because traditional restrictions on data flows inadequately constrain decisionmakers and important intermediaries (including search engines and bulletin boards). . . . Persistent and searchable databases now feed unprecedented amounts of poorly vetted information into vital decisions about employment, credit, and insurance. Rumors about a person’s sexual orientation (or experiences), health status, incompetence, or nastiness can percolate in blogs and message boards.

Even if the First Amendment and anonymity protect the authors of such rumors, affected individuals deserve to know whether certain important decisionmakers rely on them. In limited cases, the intermediary source of the information should also provide the target of a derogatory posting with the opportunity to annotate it. A Fair Reputation Reporting Act would empower individuals to know the basis of adverse employment, credit, and insurance decisions-and to go to their source (and the source of their salience) to demand some relief from digital scarlet letters.

In summary, privacy concerns are only likely to die down if individuals know either 1) that the consequences of a privacy breach are not likely to be severe or 2) that they can find out instances of the improper use of data. In the health care context in the US, neither qualifier holds: the individual insurance market routinely denies care to individuals on the basis of pre-existing conditions, and individuals have little sense of exactly how such determinations are made. Prononymity needs to work both ways: if our health conditions are to be the subject of increasing availability, so too must the decision-making processes that could use that data to our detriment become more transparent.

PS: Market mavens may promote a “Google Health Search” as the optimal solution here. If this 800 pound gorilla can get all the publishers in line to settle their copyright claims, perhaps it has some chance at bringing the medical industry to heel; however, the political power of doctors and insurers dwarfs that of publishers. The concentration of that much data in one company should also provoke some worries.

Health Care and Productivity, a National Cost

Having just returned from my family physician (who stayed open past hours to see me), perhaps you will forgive me if, not feeling well myself, I dwell for a moment upon the cost of illness and inefficiency. Not as a matter of out of pocket cost, per se, but as a matter of macroeconomic cost–a roughshod (I am sick) calculus based upon diminished productivity and national opportunity cost: simply put, if I am busy being sick, I may well have to forego the productivity of work–or I may perform that work at a lesser level ( I suppose this post will tell).

In addition, if my family physician and his staff of two are grudgingly forced to devote numerous hours to a maddening array of paperwork and phone calls (”it gets worse every year”) in an attempt to navigate the various streams of insurance authorizations and payments (”some of it seems designed solely to frustrate and slow or prevent payment”) –he will not be seeing patients. Tomorrow, he will not be seeing patients; he will be trying to catch up on paperwork–as will his staff.

Perhaps then, when we consider that Health Care costs amount to 16% of the GDP, we might also consider that this number does not take into account the difficult to guage loss of national productivity. And although the sickness of one can be the work of another, the exchange does not seem to be an even one as it relates to national production: the doctor functioning, in a sense, as a support and enabler to the productivity of others. Having said that, if that doctor is unavailable (through lack of insurance or remoteness) to remedy the ills of the now unproductive (or the less productive) the nation suffers for it. If the doctor is needlessly enmeshed in tasks, inefficient and ancillary to patient treatment, the nation suffers for it.

One of the first national health lessons this country received came on the heels of World War I.

“With the United States’ entry into the battle, hundreds of thousands of military personnel were drafted and trained for combat. After the war was fought and won, statistics were released from the draft with disturbing data regarding fitness levels. It was found that one out of every three drafted individuals was unfit for combat and many of those drafted were highly unfit prior to military training. Government legislation was passed that ordered the improvement of physical education programs within the public schools.”

“During the period from September 1917 through November 1918, records show that 2,801,635 men were inducted into the Army. Out of the approximately 10,000,000 registered men, roughly 2,510,000 were examined by local draft boards. During the first 4 months of mobilization, roughly one in three men were rejected on physical grounds, but the rejection rate dropped to one in four during the following 8 months.” (p. 149)

Having put forth the effort to remedy such, we were better physically prepared when it came time to fight World War II. We will be fortunate if some cataclysmic event does not lead us now to some statistical reckoning of our “unfit” and “extremely unfit” as regards our national productivity.

I do not point this out as a means of suggesting that we need to actively prepare ourselves for some form of larger global military conflict. But perhaps in some ways the “event” has already occurred, and only the reckoning remains. In his inaugural address President Barack Obama entreated us:

“Let it be told to the future world … that in the depth of winter, when nothing but hope and virtue could survive…that the city and the country, alarmed at one common danger, came forth to meet (it).”

“America, in the face of our common dangers, in this winter of our hardship, let us remember these timeless words. With hope and virtue, let us brave once more the icy currents, and endure what storms may come. Let it be said by our children’s children that when we were tested we refused to let this journey end, that we did not turn back nor did we falter; and with eyes fixed on the horizon and God’s grace upon us, we carried forth that great gift of freedom and delivered it safely to future generations.”

He’s right. We must “come forth to meet it.” We cannot turn back and we cannot falter as we struggle to deliver this hard won gift of freedom to future generations. And it would be best if– as we brave these icy currents in this winter of our hardship– we were not sick. And if we were sick, that we all had doctors. And if we all had doctors, that they were not too busy filling out paperwork designed to frustrate them. As we learned through World War I, as a nation, we simply cannot afford to squander our physical and intellectual capital.

Is the Medicare Advantage Program Really Advantageous

CQ Politics reports that President-elect Obama is committed to the elimination of Medicare Advantage plans. Obama told ABC’s “This Week” that Medicare Advantage plans are an example of cost-cutting government initiatives that do not work.

This is especially interesting in light of the Centers for Medicare and Medicaid Services ordering WellPoint to temporarily suspend enrollment and marketing efforts for its Medicare plans on Monday. The Los Angeles Times reports that the sanctions followed a “sharp” increase in complaints. Reportedly, some customers of WellPoint were unable to receive their prescription drugs while others were overcharged because of computer mistakes.

Along with President-elect Obama, Senate Majority Leader Harry Reid (Nev.) has signaled his intent to “scale back” the Medicare Advantage Program, according to The Hill. Medicare Advantage plans offer health insurance to more than 10 million of the 45 million Medicare beneficiaries. However, the Medicare Payment Advisory Committee reports that Medicare Advantage plans cost the government 13% more per beneficiary on average than Original Medicare in 2008.

Democrats say that $15 billion of the annual $94 billion in subsidies granted to Medicare Advantage plans are the result of “overpayments.”

Surely, any attempt to eliminate Medicare Advantage plans from the Medicare program will be met with fierce opposition from private insurance companies. In response to the threat of elimination, America’s Health Insurance Companies said that the so-called “overpayments” are used to help purchase prescription drug coverage, vision care, and chiropractic services for which Original Medicare does not pay.

There may be some merit to this argument as Original Medicare is lacking in many crucial coverage areas, including dental services which left untreated can be fatal. Thus, it is quite possible that the elimination of Medicare Advantage plans could result in many seniors facing reduced benefits, limited health care choices and higher out-of-pocket costs, according to America’s Health Insurance Companies.