Sunday, June 28, 2009

Medical Malpractice: Tort for Sport


Physicians and plaintiff attorneys have philosophically divergent views on our tort system. I know the attorneys’ views on this issue well. There are lawyers in my family who have prosecuted physicians for alleged medical malpractice. Sometimes, there hasn’t been enough antacids in our house to douse my flaming heartburn after some of our discussions.

Obviously, one reason that lawyers support the current system is because it enriches them. However, there are purists among them who truly believe that the tort system, despite some flaws, is the best means available to pursue justice and to compensate injured people. They point out that the medical profession has been lax to monitor itself and to sanction incompetent physicians. Too many medical mistakes, they claim, are ‘buried’. Without aggressive legal advocacy, what recourse would negligently injured individuals have against the powerful and well financed medical profession? In addition, they argue that the system is a powerful deterrent, which improves medical quality.

While I concede there is a ‘white coat wall of silence’, the argument that our tort system improves medical quality is absurd. Indeed, there is no fair-minded individual who can possibly support it on its merits. It is not designed to narrowly target negligence. It is patently abusive and unfair to conscientious, competent and caring doctors across the country. The system ensnares scores of innocent doctors in order to capture a few rogue practitioners. It’s a hatchet job, when a scalpel should be the right tool.

As a statement of fact, the vast majority of true medical negligence never enters the tort system. These patients are never compensated and the medical perpetrators are never discovered. Additionally, most medical malpractice cases that plaintiff attorneys review are rejected because the lawyer does not feel that negligence has occurred or can be proved, or that the damages are insufficient to merit a legal proceeding. So, the current system only compensates a small fraction of negligently harmed patients. Can we defend a system that only provides relief to only a minority of those who deserve a legal remedy? Would we applaud our government if it provided food stamps to only 10% of those eligible, or would we demand a higher performance level or a new system?

In addition to its failure to reach most potential plaintiffs, the current system also punishes too many innocent doctors. Few other professions can truly empathize with our predicament. Most folks on the job do not fear that they can be successfully prosecuted for doing their job well. Do store clerks, cab drivers, teachers, entertainers, union workers, journalists, zookeepers or candle stick makers punch their time clocks in the morning and worry that they might be sued if an adverse event occurred that was not their fault? Doctors do.

Lawyers state that innocent physicians are ultimately dismissed proving that the system works well. A just outcome, however does not mean that the system is just. Recently, the U.S. government released several Guantanamo prisoners, who were cleared of being enemy combatants, to the island of Palau. Do these new islanders, who were captured in 2001 and endured years of misery, feel that our system is fair and true to American ideals just because they were ultimately exonerated?

I do not suggest that being wrongly sued is similar to being wrongly incarcerated, but there is a parallel theme. The innocent physician who is ultimately dismissed from the case or prevails in court does not feel like a winner. He emerges from his ‘victory’ as a battered and angry practitioner who returns to his practice with renewed cyncism and wariness. His relationships with his patients inevitably suffer and he practices more defensive medicine for legal protection. The current tort system fails in its mission to improve medical quality. Paradoxically, it diminishes quality by generating excessive and medically unnecessary care from worried doctors, which costs money and risks complications.

Lawyers don’t understand why we physicians take litigation on such a deeply personal level. If they lose a case, they shrug it off and move on to the next client. To them it’s just business. Not so, for physicians. When we are unfairly attacked, and our reputations are publically sullied, it becomes a wrenching personal ordeal.

How would lawyers feel if they feared a lawsuit after every case they lost? Would it be fair if innocent attorneys had to spend years and money defending against an outcome that was not their fault? Perhaps, then, they might understand better why we physicians are so hostile to the present system. Of course, if this sweet ironic turnaround occurred, there would be dividends. Attorneys and physicians would then finally be alligned. We could commiserate with each other. We could plot joint strategy for tort reform. We could be allies. And, we could share antacids.

Sunday, June 21, 2009

Obama’s Health Care Program: Breaking Loose or Breaking the Bank?


Would you be comfortable buying a house if you didn’t know the price or weren’t sure you could obtain financing? Of course not, but this is exactly the kind of purchase the government is asking us to support. This past week, the non-partisan Congressional Budget Office threw the Obamians off balance with health care reform cost estimates that were beyond the stratosphere. None of reform plans on the table credibly explain how they will be funded. The public is becoming wary of buying into their Grand Plan on credit. Credit card purchases are easy to make and can seduce us to buy more than we can afford. As many American are learning, these purchases can haunt us and ultimately bury us in debt. President Bush was rightly criticized for signing the Medicare Part D prescription drug program, which deepened our debt. Imagine how reforming the entire health care system could affect the nation’s balance sheet.

First, show me the money. Then, show me the whole pie, not a different piece of it each month. I don’t want to support the June piecemeal proposal when I don’t know what the July, August and September offerings will be. For example, since funds are finite, should I support universal health care coverage today to discover later that there won’t be enough money remaining to pay primary care physicians more money or to fund a cancer vaccine? This incremental approach may be an effective political strategy in the short term, but it risks collapse when the fragile tower collapses.

The administration strategy seems to be to be forge relationships and deals with various stakeholders. The risk is that these deals may not survive when future deals with other interest groups threaten the earlier agreements. This divide and conquer approach can doom the whole effort as interest groups pull back or overtly oppose the president. Despite all of the smiles in front of the cameras and warm handshakes, these groups are all keeping their powder dry. The dilemma is that this gradual contruction of a coalition may not endure, but that presenting the complete health care product now won’t sell.

We have seen how quickly the medical industry groups who were singing Kumbaya at the White House last month started walking away from their ‘commitment’ to decrease medical costs by 1.5% annually for the next decade. Last week we saw the AMA offer a marriage of convenience to the president if he would ‘adjust’ the public option program. Let’s see how cooperative these physicians will be in the coming months when other aspects of the Obama plan come into view. Will the doctors still be under the tent when they realize that there won’t be meaningful tort reform and that that they will be forced to participate in the public option in order to remain a Medicare provider? Other groups - hospitals, insurance companies, the pharmaceutical industry, employers - who are extending the olive branch now may be swinging a club in the future. Obviously, there’s politics on all sides here. No group wants to appear to be an impediment in achieving health care reform. Some of them who are playing nice now are really playing make-believe.

One might have predicted that with a Democratic president, Democratic congressional majorities, a bloated and wasteful health care system and a public that demands reform that the president could push through his plan over a weekend. The obstacles that he is facing, and those yet to come, reinforce the enormous complexity of health care and the power and influence of its players. I wonder whether any other issue, save the Middle East quagmire, is as vexing for the administration.

Some months ago, Tom Daschle gave the president 50-50 odds on achieving health care reform this year. As the president’s approval rating ebbs, and the astronomical costs of reform increase, I think that the odds are getting longer. True, the political stars for Obama on this issue may all be aligned, but the lights are dimming.

Obama has promised to deliver us the whole health care pie. At the end of it all, will he be serving us only some crumbs?

Sunday, June 14, 2009

AMA Opposes Obama Health Care Plan - Breaking News?


Later today, President Obama will address the American Medical Association (AMA) in Chicago. I suppose that if the administration can make soft overtures to Iran, that it can also present its health care plan to physicians. The organization has already expressed its opposition to the president’s public option proposal, at least in its current form, which is regarded either as a panacea or a poison pill, depending upon your health care ideology. Some have accused the AMA of pursuing its own partisan agenda to protect physicians’ incomes rather than sacrificing a few dollars for the greater good. To this charge, issued by Kool-Aide drinking Obamophiles, I say guilty!

Of course, the AMA supports physicians’ interests. Although I am not a member of the organization, I have always regarded it as a physician protector rather than as an advocate for the public interest. It’s history doesn’t inspire confidence that the organization is a paragon of humanitarianism. Recall that over 10 years ago, the ham-handed AMA entered into a product endorsement agreement with the Sunbeam Corporation. Under this arrangement, which was hatched in secret in a back room, the AMA agreed to issue ‘seals of approval’ to various Sunbeam products in return for truckloads of cash. A useful litmus test to gauge if an activity is ethical is to consider if one would be comfortable explaining the action in public. The AMA might consider this strategy if they are asked, for example, to sell its endorsement to the cigarette or alcoholic beverage industries. When the Sunbeam deal was announced, the AMA membership and the public were outraged. (The AMA wasn’t even required to test any of the products it would endorse.) Under a cloud of shame, the AMA withdrew from the corrupt bargain. After this profound breach of ethics, the AMA then faced a breach of contract lawsuit. They lost. The nearly $10 million dollar settlement against them included attorney’s fees and expenses for Sunbeam. The magnitude of this settlement suggests that the AMA must have feared a public trial where more dirt and cobwebs from the back room would have been exposed. Afterwards, high level AMA leaders were tossed and the wounded organization was left to repair its reputation.

Although the AMA is not pure, let’s not pillory them for considering the livelihoods of its members as it adopts health care positions. For those who do take aim at them, there are many other targets that should also be under fire. Many organizations, including the government, have private interests despite lofty mission statements that state a devotion to global goodness.

Do we expect the American Trial Lawyers Association to argue for tort reform, which most of us feel is a just response against metastatic litigation? Are these attorneys, sworn officers of the court, pursuing justice or income preservation? Are we surprised that the American Federation of Teachers and the National Education Association, 2 powerful teachers unions, aren’t demanding that teachers be rewarded for merit instead of for seniority? (They claim that they support merit pay, but then they offer the expected gaping loophole that such a system would have to be ‘fair’.) Are these millions of educators really thinking only of our kids’ welfare? Why doesn’t the U.S. Chamber of Commerce lobby to strike down right-to-work statutes that stifle union organization? Are they against the American worker? Individuals, unions, corporations and countries do not follow the Mother Teresa model where serving humanity is their only mission. This does not mean that they are evil, only that there are considerations of self-interest in human and corporate behavior.

For the AMA, it’s not the art of medicine; it’s the art of the deal. Right now, there’s lots of dealing going on around the country, but don’t count on a ‘Sunbeam’ moment to enlighten us. Undoubtedly, many agreements and negotiations are being whispered in private. Will these conversations ever see the light of day? We can only hope that there are a few whistleblowers among them who will make these back room discussions public. Now, this is the kind of ‘public option’ I can support.

Sunday, June 7, 2009

The Kennedy Health Care Proposal: In Your Dreams


Obama’s health care reform is moving steadily forward, or backward depending upon your point of view. He has reframed the issue entirely, empowered by his political standing and Democratic majorities in both houses of Congress. It is no longer whether there will be a public option (read: government take over), but only over the extent that the government will control our health care system. The GOP are trying to cry doomsday, but their damage control efforts are drowned out by the din of the Democrats. What a difference an election makes.

Senator Kennedy’s new legislative plan will provide health care to all Americans with employers and individuals making mandatory contributions. In this pay or play proposal, if someone does not purchase medical insurance, then the government would extract its pound of flesh through punitive fines. Private insurance companies, like casinos, would be required to pay out a specified percentage of their premiums as health care benefits. So much for the ‘fair competition’ between the government and private insurance plans that we were promised. Physicians and hospitals would be paid at rates higher than the current Medicare reimbursement schedule. In addition, Senator Kennedy’s draft provides new benefits to 10 million disabled Americans and would also expand the Medicaid program.

Assuming that Kennedy’s expansive and expensive government health care proposals are sound, how are we going to pay for them? The $634 billion ‘down payment’ from higher taxes on the wealthy and restraining Medicare growth won’t get anywhere near the goal line. Current estimates put the cost of health care reform in excess of $1 trillion over next decade. Even after all the new taxes are forced upon us, including those not yet proposed, there won’t be enough cash to fund this health care hydra. The government may find that its financial cupboards are bare after a few economic stimulus packages, bailing out and taking over General Motors, rescuing the financial industry, fighting a couple of wars, etc.

Obama recently indicated that he would consider taxing health care benefits, although he opposed this emphatically during his presidential campaign. This was a John Kerryesque moment when he was against taxing health benefits before he was for it. Keep in mind that taxing these benefits, which are more generous in the Northeast would mean transfering health care dollars to the Southwest, where health care plans have less frills and the percentage of uninsured residents is higher. Will New Yorkers, for example, be enthusiastic about subsidizing Texans with their health care tax dollars?

After they tax our health benefits, they will still need billions and billions of additional dollars to feed the health care beast. There’s not much low hanging taxable fruit remaining. Where will they go? The Senate is already considering taxing soda and other sweetened beverages to generate health care cash. What other windfall opportunities will they concoct? A health care tax on beef jerky? Caeser salad? Is this what our best and brightest in Washington have come up with to finance health care? Look what is happening in Massachusettes. Their miraculous medical model of health care is running out of money.

The government will need mile deep pockets. Look for them to raid the coffers of the pharmaceutical companies, medical insurance companies and American taxpayers. While single-payer government run health care remains the dream for many, I hope it will be a dream deferred. Dreams and fantasies are an important part of the human experience, but they can’t pay the bills. Wait a minute. What if our dreams could be taxed? Sure, this has never been done before, but new challenges demand new thinking. Let’s start slow with a modest surcharge on all dreams and daytime reveries. I’ll certainly be paying my fair share since the Kennedy plan and the permutations that will follow will surely give me nightmares.

Monday, June 1, 2009

Obama's Health Care Reform Policy: In Spin We Trust


Politicians speak out of at least three sides of their mouths. This is not just standard double talk, but represents the polished art form of triple talk. First, they tell us what we want to hear. Afterwards, they offer ‘clarifications and adjustments’ (never a flip-flop!) to their original remarks. Thirdly, they spin their views either to the right or left in order to repackage the policy for successful legislative butchering. All the while, they claim that their views have never changed.

President Obama, before the election, assured us that he did not advocate the federal government taking over our health care system, realizing that most Americans would not support this policy. He offered us the safer bromides of expanding health care access, reducing costs and increasing medical quality. Who could oppose these noble objectives? However, campaign slogans such as ‘we need to create the finest public schools in the world’ generate enthusiastic support, but mask the complexity of the issue. Our health care system may be the most intricate and complex quagmire that the president faces. It is a labyrinth that has trapped at least 10 past U.S. presidents. The health care maze has many tempting entrances, but no clear exit strategy. If you listen carefully outside the maze’s main gate, you can still hear faint echoes from Truman, Eisenhower, Kennedy, Nixon and all the rest.

We haven’t heard Obama’s health care reform endgame. Since his inauguration, a public health care plan (read: government single-payer system) is gaining traction in congress, the blogosphere, op-ed pages and with liberal advocacy groups. This very day, Senator Edward Kennedy is expected to offer a proposal that establishes a government plan to ‘compete’ against private insurance companies. Many of us suspect that when the political left says compete, it really means crush. Is Senator Kennedy floating Obama’s trial balloon?

How far will President Obama shift in his health care policies? Judging by his evolving views regarding closing down Guantanamo Bay in 1 year, eliminating military commissions for terrorists and pulling troops out of Iraq in 16 months, I’d say that he has a few football fields of wiggle room available. Just a few weeks ago, President Obama wisely backflipped on his prior promise to release thousands of photographs of abused detainees by U.S. servicemen.

President Obama knows what he wants our new & improved health care system to be, but he hasn’t told us yet. His bold reform strategy is likely to be reduced to incrementalism. He still maintains his hope to pass comprehensive health care reform legislation before the end of this year, but I doubt this is possible. First, like his predecessors, he underestimates the power of the special interests that will oppose and frustrate him at every turn. Every minor reform that he even suggests will generate fierce and sustained opposition from various partisans. Look what already has happened with the brief marriage of convenience between Obama and medical industry? More importantly, if the public grasps the risks of Big Government becoming Big Doctor, then they will stand up and say no. They will reject a system where the government will in effect be making medical decisions, despite the administration's assurance that physicians will be in charge. Americans want real doctors taking caring of them, not spin doctors. Once enlightened, the public will view government medicine as a poison pill and will reject it clearly and emphatically. You won’t hear any doublespeak or spin from them. Won’t it be refreshing to hear folks speaking out of just one side of their mouths? Will you be one of them?

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