healthy4u: AMA

"Doctors' Dissatisfaction With EHRs May Be Early Warning of Deeper Quality Problems" - And Some Common Sense on EHRs and Clinician Distraction and Time-Wasting

The following article was published regarding physician dissatisfaction with EHRs, referencing a RAND study on EHRs commissioned by the American Medical Association: <a href="http://cnsnews.com/news/article/susan-jones/doctors-dissatisfaction-ehrs-may-be-early-warning-deeper-quality-problems-0">http://cnsnews.com/news/article/susan-jones/doctors-dissatisfaction-ehrs-may-be-early-warning-deeper-quality-problems-0</a> <blockquote class="tr_bq">Doctors' Dissatisfaction With EHRs May Be 'Early Warning of Deeper Quality Problems' October 18, 2013 - 10:17 AM By Susan Jones</blockquote><blockquote> Electronic health records (EHRs) are a source of frustration to many physicians, says a new study conducted by the RAND corporation and commissioned by the American Medical Association. Electronic health records are a source of frustration to many physicians, according to a study on physician satisfaction sponsored by the American Medical Association. The findings could serve as an "early warning of deeper quality problems developing in the health care system," the AMA said. The <a href="http://www.rand.org/pubs/research_reports/RR439.html" target="_blank">study</a>, conducted for AMA by the RAND Corporation, found that doctors who perceived themselves or their practices as providing high-quality care reported better professional satisfaction. Electronic health records (EHRs) were a source of both promise and frustration, the Rand study found. Although physicians tend to like the concept of EHRs, those surveyed said that current EHR technology interferes with face-to-face discussions with patients; requires physicians to spend too much time performing clerical work; and degrades the accuracy of medical records by encouraging template-generated doctors' notes.</blockquote> I believe the title should have been "Doctors' Dissatisfaction With EHRs Is A Warning of Deeper Quality Problems".  The academic-style fudge words "may be" and "early" are disposable. <blockquote class="tr_bq">"Physicians [i.e., all of them - ed.] believe in the benefits of electronic health records, and most do not want to go back to paper charts," said Dr. Mark Friedberg, the study's lead author and a RAND scientist. "But at the same time, they report that electronic systems are deeply problematic in several ways. Physicians are frustrated by systems that force them to do clerical work or distract them from paying close attention to their patients." </blockquote> Dr. Friedberg commits a faux pax symptomatic of an amateur scientist (or of a politician).  That is, making a statement that seems to speak for all physicians, and then for "most" physicians.  Clearly he didn't interview "most" physicians.  I know many who see the EHR as bureaucratic invasion of little clinical utility, and would gladly dump the poorly-engineered EHRs foisted on them that "interfere with face-to-face discussions with patients; require physicians to spend too much time performing clerical work; and degrade the accuracy of medical records" for good old-fashioned paper, supplemented perhaps with document imaging systems that make the notes available anywhere, anytime. <blockquote>... Health and Human Services Secretary Kathleen Sebelius has said that EHRs will lead to "more coordination of patient care, reduced medical errors, elimination of duplicate screenings and tests, and greater patient engagement in their own care."</blockquote> Sebelius is parroting others; there is little or no robust evidence supporting such a grandiose assertion (or, typical of today's politicians, she's simply lying; the reader can decide which). For 2014, some commonsense observations and recommendations on EHRs: 1) The pioneers in the 1950's and 1960's developed systems and experimented with their use in an environment far freer of the bureaucratic need for massive amounts of ultra-taxonomized data than today, where visits were not forced to be time-limited for "productivity", and where clinical notes were pithy and terse, as they were for patient care, not bureaucratic satiation.  The pioneers likely could not have conceived of what clinicians are being called on to enter manually, in 2014.  (I was taught Medical Informatics by some of those pioneers.) 2) The pioneers never intended to add uncompensated burdens onto clinicians.  They intended to help clinicians practice medicine more smoothly, not in a time-starved and robotic, slave-to-the-machine fashion. 3) The health IT industry and its health IT designers, and the largely medically-incompetent data processing/merchant computing personnel in hospital IT departments, appear to have not cared less about these real-world HIT issues - as evidenced by their products - until the pressure was put on by users, resulting in studies of IT safety by the Institute of Medicine (<a href="http://hcrenewal.blogspot.com/2010/10/cart-before-horse-again-institute-of.html">http://hcrenewal.blogspot.com/2010/10/cart-before-horse-again-institute-of.html</a>) and of IT usability by NIST (<a href="http://hcrenewal.blogspot.com/2010/12/nist-provides-healthcare-it-industry.html">http://hcrenewal.blogspot.com/2010/12/nist-provides-healthcare-it-industry.html</a>) in just the past few years. With these factors in mind: <blockquote class="tr_bq">... AMA noted that some medical practices are experimenting with ways to reduce physician frustration by hiring additional staff members to perform many of the tasks involved in using electronic records, such as data entry. </blockquote> Actually, the use of clinicians as computer data-entry clerks was the real experiment, an experiment whose failure is becoming increasingly apparent.  The "experiments" with hiring of data entry clerks should be made official healthcare policy as follows:  1)  Physicians and nurses should be relieved of the burden of data entry into computer interfaces (as opposed to merely viewing) nearly entirely.  Data entry cannot be done under the real-world conditions of patient care in 2014, for most specialties, without compromising the focus on patient care (let alone clinician morale).   2) Considering the hundreds of millions per organizations spent on theses systems, a pool of data entry clerical staff can well be afforded, hired and trained to transcribe data into computers from clinicians' paper notes, using specialized forms where necessary.   3) Those same paper notes can be rapidly imaged into a document management system (e.g., Documentum, <a href="http://www.emc.com/enterprise-content-management/documentum-platform.htm">http://www.emc.com/enterprise-content-management/documentum-platform.htm</a>; I managed a pharmaceutical department of ~55 people and a $13 million budget using such a system) and made available before transcription.  The note images can also serve as a supplement to data viewing screens in the EHR, which at least in 2014 are themselves poorly engineered from the perspective of optimal presentation of information. 4) The workflows for such arrangement are known to me; I created such an environment in a busy invasive cardiology department, a critical care area performing more than 6000 procedures/year and responsible for 25% of the organization's revenues - fortunately having been able to neutralize and marginalize an IT department seemingly hellbent, perhaps through ignorance, on sabotaging the effort.  See "Essential Value of Medical Informatics Expertise in High-Risk Areas: an Invasive Cardiology Example" at <a href="http://cci.drexel.edu/faculty/ssilverstein/cases/?loc=cases&sloc=Cardiology%20story">http://cci.drexel.edu/faculty/ssilverstein/cases/?loc=cases&sloc=Cardiology%20story</a>.  The offloading of data entry by clinicians into the computer, and the use of special paper forms for the clinicians, worked exceptionally well in allowing the clinicians to focus on what really matters most - patient care. 5) If healthcare organizations insist on direct clinician data entry, then clinicians' time doing so should be fairly compensated.  Lawyers generally earn from $250/hr and up for profession-related clerical work, like creating legal briefs and letters.  I think physicians should do at least as well.  (If readers believe clinicians should take on this considerable burden and not be fairly compensated, I'd like to hear why.) 6) If healthcare organization leaders truly believe the EHR hyper-enthusiasts, the expense of the clericals will be far offset by the "billions and billions" saved by these systems.        a) If they don't believe the EHR hyper-enthusiasts, they should be far more skeptical of implementing such systems and imposing the mission-robbing burdens on their clinicians in the first place. 7) These measures will free industry resources for doing what really matters most in clinical care, namely, health IT robustness (freedom from error, security, etc.) and optimal presentation of information customized for the needs of the many different clinical specialties and subspecialties. -- SS

"Doctors' Dissatisfaction With EHRs May Be Early Warning of Deeper Quality Problems" - And Some Common Sense on EHRs and Clinician Distraction and Time-Wasting

The following article was published regarding physician dissatisfaction with EHRs, referencing a RAND study on EHRs commissioned by the American Medical Association:http://cnsnews.com/news/article/sus…

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02 Jan 2014

American Medical Association finally on board with EHR views expressed on this blog since 2004

<div style="text-align: center;">- Posted on the Healthcare Renewal Blog May 17, 2013 -</div> It seems to have taken awhile, but organized medicine seems to finally be recognizing that today's commercial health IT is not quite the revolutionizing, transformative, plug-and-play panacea to healthcare's ills it is often touted as: <blockquote class="tr_bq">AMA Wire May 15, 2013 <a href="http://www.ama-assn.org/ams/pub/amawire/2013-may-15/2013-may-15-general_news1.shtml">AMA board chair: HHS should address EHR usability issues immediately</a> The government needs to act quickly to remedy the impaired usability of electronic health records (EHR) if the technology's touted benefits are to be realized, AMA Board of Trustees Chair Steven J. Stack, MD (left), told officials during a federal hearing last week. "The AMA and most physicians believe that, done well, EHRs have the potential to improve patient care," Dr. Stack, an emergency physician in Lexington, Ky., said during his 30-minute <a class="pdf" href="http://www.ama-assn.org/resources/doc/washington/ehr-meaningful-use-testimony-03may2013.pdf" target="_blank">testimony</a>. "At present, however, these EHRs present substantial challenges to the physicians and other clinicians now required to use them." He emphasized that many of today's EHR systems require significant changes before they can deliver the promised outcomes. Referring to Medicare's meaningful use program, he pointed to undesired consequences of pushing EHR systems on physicians before the technology was completely ready for prime time.</blockquote> "Immediately" is strong language. I note that the phrase "health IT done well" is a term I've been using since 1998 at my now-Drexel-based health IT teaching website at <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/cases">http://www.ischool.drexel.edu/faculty/ssilverstein/cases</a>, as well as at this blog. Penned by me at my aforementioned Drexel graduate teaching site, originally housed on AOL, in 1998 and still appearing in its main essay: <blockquote class="tr_bq"><div class="MsoNormal">... While clinical IT is now potentially capable of achieving many of the benefits long claimed for it such as improved medical quality and efficiency, reduced costs, better medical research and drugs, earlier disease detection, and so forth, there is a major caveat and essential precondition:  the benefits will be realized only if clinical IT is done well.  For if clinical IT is not done well, as often occurs in today’s environment of medical quick fixes and seemingly unquestioning exuberance about IT, the technology can be injurious to medical practice and biomedical R&D, and highly wasteful of scarce healthcare capital and resources.  </div><div class="MsoNormal"> </div>Those two short words “done well” mask an underlying, profound, and, as yet, largely unrecognized (or ignored) complexity.  This website is about the meaning of "done well" in the context of clinical computing, a computing subspecialty with issues and required expertise quite distinct from traditional MIS (management information systems, or business-related) computing.</blockquote> (I have more recently switched to the easier-to-parse terminology of "good health IT" vs. "bad health IT" after discussions with Dr Jon Patrick at U. Sydney during my visit Down Under last summer, <a href="http://hcrenewal.blogspot.com/2012/08/my-presentation-to-health-informatics.html">http://hcrenewal.blogspot.com/2012/08/my-presentation-to-health-informatics.html</a>.) I've also heard "not ready for prime time" before.  It is a phrase I used in speaking with a New York Times reporter that then appeared in the Oct. 8, 2012 NYT article "The Ups and Downs of Electronic Medical Records" (<a href="http://www.nytimes.com/2012/10/09/health/the-ups-and-downs-of-electronic-medical-records-the-digital-doctor.html?pagewanted=2">http://www.nytimes.com/2012/10/09/health/the-ups-and-downs-of-electronic-medical-records-the-digital-doctor.html?pagewanted=2</a>) by Milt Freudenheim, October 8, 2012, where I am quoted and this blog cited: <blockquote class="tr_bq">... Critics are deeply skeptical that electronic records are ready for prime time. “The technology is being pushed, with no good scientific basis,” said Dr. Scot M. Silverstein, a health I.T. expert at Drexel University who reports on medical records problems on the blog <a href="http://hcrenewal.blogspot.com/">Health Care Renewal</a>. He says testing these systems on patients without their consent “raises ethical questions.” </blockquote> The AMA Board chair went on to opine: <blockquote class="tr_bq">"Attempting to transform the entire health system in such a rapid and proscriptive manner has compelled providers to purchase tools not yet optimized to the end-user's needs and that often impeded, rather than enable, efficient clinical care," he said. He noted that physicians are "prolific technology adopters" but that adoption of EHR systems has required federal incentives because the technology still is "at an immature stage of development."</blockquote> My near-exact terminology has been that the technology is still experimental. <blockquote class="tr_bq">"EHRs have been and largely remain clunky, confusing and complex," he said.</blockquote> Perhaps he read my ten-part series on the health IT mission hostile user experience at this blog, at <a href="http://www.tinyurl.com/hostileuserexper">http://www.tinyurl.com/hostileuserexper</a>. <blockquote class="tr_bq">According to a <a class="external" href="http://www.americanehr.com/blog/2013/03/himss13-ehr-satisfaction-diminishing/" target="_blank">recent survey</a> by AmericanEHR Partners, physician dissatisfaction with EHR systems has increased. Nearly one-third of those surveyed in 2012 said they were "very dissatisfied" with their system, and 39 percent said they would not recommend their EHR system to a colleague—up from 24 percent in 2010.</blockquote> A survey I posted about in Jan. 2010 is here:  "An Honest Physician Survey on EHR's", <a href="http://hcrenewal.blogspot.com/2010/01/honest-physician-survey-on-ehrs.html">http://hcrenewal.blogspot.com/2010/01/honest-physician-survey-on-ehrs.html</a> <blockquote class="tr_bq">Dr. Stack spoke at a "listening session" hosted by the Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC), a division of the U.S. Department of Health and Human Services (HHS). The agencies coordinated the session to examine how a marked increase in code levels billed for some Medicare services might be tied to the increased use of EHRs. Dr. Stack noted that some Medicare carriers have begun denying payment for charts that are too similar to other records. "In this instance, even when clinicians are appropriately using the EHR, a tool with which they are frustrated and the use of which the federal government has mandated under threat of financial penalty, they are now being accused of inappropriate behavior, being economically penalized, and being instructed ‘de facto' to re‐engineer non‐value‐added variation into their clinical notes," he said. "This is an appalling Catch‐22 for physicians."</blockquote> "Mandated under threat of financial penalty" has been one of my stated "cart before the horse" issues with HITECH (e.g., <a href="http://hcrenewal.blogspot.com/2010/10/cart-before-horse-again-institute-of.html">http://hcrenewal.blogspot.com/2010/10/cart-before-horse-again-institute-of.html</a>). <blockquote class="tr_bq">Dr. Stack advised officials that three key actions are necessary to rectify these issues with EHR systems: <ul type="disc"><li>The ONC promptly should address EHR usability concerns raised by physicians and add usability criteria to the EHR certification process.</li><li>CMS should provide clear and direct guidance to physicians concerning use of EHRs for documentation, coding and billing. </li><li>Stage 2 of the meaningful use program should allow more flexibility for physicians to meet requirements as EHR systems are improved. </li></ul>The AMA will continue to work with federal agencies to improve EHR systems and the Medicare meaningful use program.</blockquote> I've been calling for usability evaluation to be added to the certification process, including in comments during public comment periods to HHS, for some time. What the AMA Board Chair is apparently missing, though, is health IT safety.  They should perhaps read my post on the recent ECRI Institute Deep Dive Study on health IT risk - itself based on a report in their own AMNews (<a href="http://amednews.com/" target="_blank">amednews.com)</a> publication ("Peering Underneath the Iceberg's Water Level: AMNews on the New ECRI Deep Dive Study of Health IT Events", <a href="http://hcrenewal.blogspot.com/2013/02/peering-underneath-icebergs-water-level.html">http://hcrenewal.blogspot.com/2013/02/peering-underneath-icebergs-water-level.html</a>). I don't think any prudent person would consider a 9-week study of 36 hospitals with volunteered reports of 171 health information technology-related problems, where eight of the incidents reported involved patient harm and three may have contributed to patient deaths, information to ignore. -- SS

American Medical Association finally on board with EHR views expressed on this blog since 2004

- Posted on the Healthcare Renewal Blog May 17, 2013 -It seems to have taken awhile, but organized medicine seems to finally be recognizing that today's commercial health IT is not quite the revolutio…

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17 May 2013

AMA says EHRs create 'appalling Catch-22' for docs - And just how many experts does it take to screw in a light bulb, anyway?

(NOTE:  this post, being about minor matters like death and financial mayhem, is particularly and unusually [even for me] biting and lacking in euphemisms and political correctness.  If you are easily offended and want the latter, and/or believe we all need to be 'nice' about banal issues like patient injury and death, fraud, and other minor matters, click here:  <a href="http://www.disney.com/">http://www.disney.com</a> and skip the post below.) You were warned. --------------------------------------- At some point, so-called EHR "experts" and pundits need to stop being accommodated for their having ignored years of warnings, complaints, "anecdotes" -a particularly egregious term that comes from those who don't understand risk management, especially academics of the echo chamber-egghead subspecies (<a href="http://hcrenewal.blogspot.com/2011/08/from-senior-clinician-down-under.html">link</a>) - and other signs that health IT is not a beneficent, omniscient gift from the <a href="http://en.wikipedia.org/wiki/Lords_of_Kobol">Lords of Kobol.</a> (The latter is a pun on the business-IT programming language Cobol, of course.) Instead, they simply need to be ridiculed for being stupid. I will do so:  folks, you have been, and remain, stupid: <table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhZE95zecrMVRB1bq9q2g01AUsab2c67jIhlE-ARIcXChO_6KSU5IP-c2sQpFyO-MiKOXWOOrpyAZAeWR-1L3VIpsiYWG_2dldo8bUN1af4BuG8p24xo2u2V_pTviw9_w3ZMLvXbAvwG9Zo/s1600/cow3.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="150" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhZE95zecrMVRB1bq9q2g01AUsab2c67jIhlE-ARIcXChO_6KSU5IP-c2sQpFyO-MiKOXWOOrpyAZAeWR-1L3VIpsiYWG_2dldo8bUN1af4BuG8p24xo2u2V_pTviw9_w3ZMLvXbAvwG9Zo/s200/cow3.jpg" width="200" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">The Bovine Stare of Incomprehension (click to enlarge)</td></tr></tbody></table> The Bovine Stare of Incomprehension describes the reactions I've gotten over the years to many warnings about health IT.  It was like talking to a cow. So now there's this: <blockquote class="tr_bq"><a href="http://www.govhealthit.com/news/ama-says-ehrs-create-appalling-catch-22-docs">AMA says EHRs create 'appalling Catch-22' for docs</a> May 03, 2013 | Tom Sullivan, Editor As the healthcare industry moves to EHRs, the medical record has essentially been reduced to a tool for billing, compliance, and litigation that also has a sustained negative impact on doctors' productivity, according to Steven J. Stack, MD, chair of the American Medical Association’s board of trustees. </blockquote> Gee, they're only realizing and complaining about that - now?  In 2013? <blockquote class="tr_bq">“Documenting a full clinical encounter in an EHR is pure torment,” Stack said during the CMS Listening Session: Billing and Coding with Electronic Health Records on Friday. </blockquote> (What, the "pure torment" in such a mission-critical function only started with the most recent patches installed last month on the nation's EHRs?  EHRs were just dandy until then?) It's nice to know in May 2013 that “documenting a full clinical encounter [essential to avoid injurious and even lethal mistakes, I anecdotally note - ed.] in an EHR is "pure torment”, several years into an accelerated "National Program for HIT in the HHS" costing hundreds of billions of dollars. I guess sites like this blog, <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/cases/">this site</a> extant since 1998, and <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/cases/?loc=cases&sloc=readinglist">other materials</a> written over the years by backwards stubborn health IT iconoclast fear-mongering Luddites were beyond the comprehension level of - those now proffering the exact same pronouncements. <blockquote class="tr_bq">EHRs are also driving the industry toward charts that look remarkably similar because they’re based on templates created by the technology vendors — that includes often using the same words. And that threatens to make doctors appear to be committing fraud by the practice of record cloning, or cutting and pasting from one record to another, when they are not, in fact, acting fraudulently. </blockquote> I guess putting patients in mortal danger from note cloning (and to those too stupid to understand why that is, get off your rear end and look it up, I'm not going to spoon-feed you) is a step better than acting fraudulently... <blockquote class="tr_bq">Alongside the federal mandate to implement an EHR under threat of a monetary fine, that creates what Stack called “an appalling Catch-22 for physicians.” Put another way: The government mandates that doctors use an EHR, the EHR vendors’ templates can sometimes create an appearance of fraud and that, in turn, opens the door for payers to decline reimbursement or, even worse, the government to prosecute doctors for the crime.</blockquote> I guess actual fraud is just anecdotal. <blockquote class="tr_bq">As dire as that sounds, it's an exception that belies the unproven perception that EHRs perpetuate fraud. “Upcoding does not necessarily equate to fraud and abuse,” said Sue Bowman, AHIMA’s senior director of coding and compliance at the same event. “This is an area where more study is needed. We really need to know the causes. Further research is needed on the fraud risk of using EHRs.”</blockquote> Sure, let's study while rolling this stuff out as frantically as we can.  We'll fix it later -- and Jesus, I guess, will heal and reanimate any patients actually harmed by the technology (<a href="http://hcrenewal.blogspot.com/2013/02/peering-underneath-icebergs-water-level.html">link</a> to ECRI Institute Deep Dive Study: 36 hospitals!  Nine weeks!  171 health information technology-related problems voluntarily reported!  Eight injuries!  Three possible deaths!  All mere "anecdotes", of course). <blockquote class="tr_bq">Indeed, Jacob Reider, MD, CMO of ONC, explained that the government and industry do not have good data right now proving whether or not EHRs trigger fraud and abuse.</blockquote> Per the IOM, the same industry does not have good data on harms levels.  (The previous link to a recent small ECRI "Deep Dive" study's probably the most robust we've got on that score, and the figures are not encouraging). So - let's review - <ul><li>poor data on harms, </li><li>poor data on benefits, </li><li>poor data on fraud and abuse.</li></ul>  The logical, ethical course of action thus is: <table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgzFC_WsPusjorZPhSFY5JNJs4lrt-V5x8PZiENWJVqP7gPQUwxbtq0bhjwtsjUvHuXdwrMUrEOAhghWrHjEV5pRduQIHRcyj9uMkKL4OC1x87NkSBUQTkZ2MFlroX8uK0YIz8pxcKCC1jP/s1600/homer-simpson.gif" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgzFC_WsPusjorZPhSFY5JNJs4lrt-V5x8PZiENWJVqP7gPQUwxbtq0bhjwtsjUvHuXdwrMUrEOAhghWrHjEV5pRduQIHRcyj9uMkKL4OC1x87NkSBUQTkZ2MFlroX8uK0YIz8pxcKCC1jP/s200/homer-simpson.gif" width="165" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">D'OH!  LET'S ROLL THE TECHNOLOGY OUT AS FAST AS WE CAN, AND PENALIZE NON-ADOPTERS BESIDES!</td></tr></tbody></table> See how simple logic, ethics and clear thinking can be? <blockquote class="tr_bq">“There is concern that some doctors are using the EHR to obtain payments to which they are not entitled,” said Mickey McGlynn of Siemens Medical Solutions and HIMSS EHR Association. “Any fraud is an important issue and we, as the vendor community, take that very seriously.”</blockquote> Only after independent whistleblower investigations by <a href="http://www.publicintegrity.org/health/medicare/cracking-codes">Fred Schulte of the Center for Public Integrity ("Cracking the Codes")</a>, and by <a href="http://www.nytimes.com/2012/09/22/business/medicare-billing-rises-at-hospitals-with-electronic-records.html?_r=0">New York Times reporters Reed Abelson and Julie Creswell</a>, that is... <blockquote class="tr_bq"> AMA’s Stack offered a triptych of suggestions to CMS and ONC: address EHR usability concerns, provide guidance on EHR use for coding and billing, and make meaningful use stage 2 more flexible for providers. “My purpose is not to denigrate EHRs,” Stack said, explaining that he believes CMS and ONC are genuinely trying to better the current situation.</blockquote> Nice to have <a href="http://en.wikipedia.org/wiki/Caspar_Milquetoast">Caspar Milquetoast </a> on the side of EHR criticism. Knock knock, anyone home, McFly? <table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhtRtjpOxhXTclN2k84gzTCHH0QfGVK4EArboCbP3IGByDNyfeuK8KnsHHBwxufCjhZMfBaX_fi2c3IJcMZ0Ld8LH_e9O9fNum3CO4Vrr-U1ZhuGyPRyBVFK3qZ_kYUNFkVGqyPAHOgcBZO/s1600/hello-mcfly1.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="177" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhtRtjpOxhXTclN2k84gzTCHH0QfGVK4EArboCbP3IGByDNyfeuK8KnsHHBwxufCjhZMfBaX_fi2c3IJcMZ0Ld8LH_e9O9fNum3CO4Vrr-U1ZhuGyPRyBVFK3qZ_kYUNFkVGqyPAHOgcBZO/s320/hello-mcfly1.jpg" width="320" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">Knock knock, anyone home, McFly?</td></tr></tbody></table> Today's EHR systems, for the aforementioned reasons above and more, deserve denigration for patients' sake. <blockquote class="tr_bq"> There are efforts underway, within the government and industry, to more comprehensively understand the unintended consequences of EHR implementation.</blockquote> But let's keep rollin' em out, anyway.  Wheeee!  What fun! Class action attorneys, are you listening? -- SS

AMA says EHRs create 'appalling Catch-22' for docs - And just how many experts does it take to screw in a light bulb, anyway?

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05 May 2013

AMA News Article Offers Incomplete (and Thus Misleading) Advice on the Legal Risks of EHRs and other Clinical IT

An article was published in the AMA News by Alicia Gallegos, AMA Medical News staff, entitled "Legal risks of Going Paperless." While it is not clear if these are the official views of the AMA leadership, the article is interesting nonetheless. It should perhaps have been entitled "Some of the Legal Risks of Going Paperless, excluding the ones that make the health IT industry look bad:" <a style="font-weight: bold;" href="http://www.ama-assn.org/amednews/2012/03/05/prsa0305.htm"> </a><blockquote><a style="font-weight: bold;" href="http://www.ama-assn.org/amednews/2012/03/05/prsa0305.htm">Legal Risks of Going Paperless</a> AMA News March 5, 2012 Electronic medical records are meant to save time and money, but they also can create liability issues for doctors. By Alicia Gallegos, amednews staff. Defense attorney Catherine J. Flynn knows how electronic medical records can overwhelm — and often change — the course of a medical liability lawsuit. In one of her cases, a New Jersey doctor being sued for medical negligence has been accused by a plaintiff’s attorney of modifying a patient’s electronic history. A printing glitch caused the problem, Flynn said, but the accusation has meant extra time and defense costs. Computer screen shots were reviewed, more evidence was gathered and additional arguments were made. “This has taken a life of its own, and we’ve done virtually no discovery on the medical aspects of the case,” she said. “The cost of the e-discovery alone is in excess of $50,000.”</blockquote> This is a variation on the theme of plaintiff's lawyers being the cause of EHR problems as I wrote at "<a href="http://hcrenewal.blogspot.com/2012/02/those-goddamn-trial-lawyers-are-to.html">Plaintiff's Trial Lawyers Are to Blame for EHRs That 'Tattle' on Doctors - And Harm Patients</a>." <blockquote>System breaches. Modification allegations. E-discovery demands. These issues are becoming common courtroom themes as physicians transition from paper to EMRs, legal experts say. Not only are EMRs becoming part of medical negligence lawsuits, they are creating additional liability.</blockquote> Missing is the problem that is most important of all: health IT system defects, poor user interfaces, unreliability, data loss, etc. causing or contributing to medical malpractice that results in patient harm or death. (An example that I personally observed and reported to the FDA MAUDE database is <a href="http://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfmaude/Detail.CFM?MDRFOI__ID=1729552">here</a>; there are numerous others in this blog.) <blockquote>Data breaches are among the most common reasons that electronically stored information lands doctors in court, said Lisa Gallagher, senior director for privacy and security at the Health Information and Management Systems Society, which advocates health information technology</blockquote> Most common perhaps (a big problem unto itself), but not the most clinically significant problem. Yet the AMA article goes on about this issue for many paragraphs; it's the prime focus of the article. <blockquote>A 2011 ruling in New York highlights how e-discovery creates a burden for doctors. During a lawsuit against St. Luke’s Hospital Roosevelt Center, a debate arose about whether the plaintiff should be allowed access to screen shots from a doctor’s computer. Joan Bowman, who sued the hospital for wrongful death on behalf of her husband, wanted to see a computer template used to aid physicians in diagnoses. The hospital said the request was overly broad and oppressive. But the Supreme Court of the State of New York ordered the release of the screen shots. “Defendant doctors testified that they utilized these materials in coming to their diagnosis,” Judge Alice Schlesinger wrote. “It is not a stretch to allow counsel to see and understand these materials.” At this article’s deadline, the hospital’s attorney had not returned messages seeking comment. The case sets a precedent, said Susan Dennehy, Bowman’s attorney. “If others want to see screen shots from records, I think they’ll rely on this case,” she said. “It was important to see where the template led you if you put in an inaccurate chief complaint.”</blockquote> Note the "spin" about the "burden for doctors" of eDiscovery. To the pundits and voluntary adopters: you have gotten what you asked for. To the non-pundit clinicians forced to use health IT: I hate to say this, but you've gotten screwed. The article then offers a laundry list of how to avoid EHR-related liability: <blockquote>... As the number of electronic medical records increases, so do certain legal risks, medical liability experts say. Common mistakes doctors make with EMRs and how attorneys recommend that physicians reduce their liability risks: Mistake: EMRs allow users to move quickly through patient records, but cutting and pasting information makes it easy to paste incorrect information. Recommendation: Refrain from copying and pasting EMR data, and be cautious when moving from one patient’s record to the next. Mistake: Computer programs can help doctors make a differential diagnosis, but the templates don’t often include every possible symptom and corresponding medical condition. Recommendation: Doctors should not become overly dependent on electronic diagnosis aids. Electronic systems are no substitute for hands-on diagnosis. Mistake: Because EMRs allow physicians to move through patient charts much more quickly than paper charts, attorneys are noticing that some doctors are not being thorough when writing notes electronically. Recommendation: Physicians should keep meticulous electronic notes on each patient and take time to document each chart. Mistake: Some practices can fail to safeguard electronic patient data. Recommendation: Practices should encrypt all information on computer devices and have policy that discourages employees from taking portable devices out of the office. Mistake: A system may not clearly indicate changes to records. Recommendation: Physicians should install systems that show transparency when modifications are made and/or have a program lockout period where no more modifications can be made to a record. Mistake: Doctors may fail to follow notification requirements in the event of a data breach. Recommendation: Be clear on what your state law requires when a data breach occurs, and make sure employees follow the rules immediately. Mistake: Doctors may destroy or delete electronic records when a lawsuit is possible. Recommendation: If doctors suspect they are being sued, they must preserve all electronic data related to the patient in question, including emails, phone messages and computer records.</blockquote> Missing is this, as is well-covered by almost 8 years of posts on this blog, and elsewhere: <blockquote> Big mistake: Doctors and hospitals buy and implement experimental technology approved by nobody, of uncertain quality to the point of <a href="http://sydney.edu.au/engineering/it/%7Ehitru/index.php?option=com_content&task=view&id=91&Itemid=146">losing or corrupting data</a>, often with glass-tube black-and-white TV user interface modernity. Such technology is "errorgenic", i.e., it promotes "use error", can mislead, and can promote medical errors. Recommendation: Hold off until the industry has gotten its act together.</blockquote> Also missing from the AMA News article is the fact that physicians and hospitals use health IT at their <a href="http://hcrenewal.blogspot.com/2012/02/hospitals-and-doctors-use-health-it-at.html">own risk</a>, even if the IT is "certified." This article is clearly pregnant with omissions and spin that reveal a pro-health IT bias. -- SS

AMA News Article Offers Incomplete (and Thus Misleading) Advice on the Legal Risks of EHRs and other Clinical IT

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06 Mar 2012

Three Golden Parachutes and Some Unexpected Sequels

Golden parachutes are an always fascinating aspect of executive compensation in health care.  I have collected three relatively recently revealed stories about golden parachutes given to government and non-profit hospital system CEOs, at least two of which involve unexpected, and also fascinating sequels.  They will appear in order of the apparent size of the parachutes. Santa Clara Valley Health and Hospital System Santa Clara Health and Hospital System is a county (government) system of moderate size in California.  Last week, the compensation given its outgoing CEO in 2010 was <a href="http://www.bizjournals.com/sanjose/blog/2012/01/ex-santa-clara-county-health-chief-kim.html">revealed</a> by the San Jose Business Journal: <blockquote>Former Santa Clara Valley Health and Hospital System CEO Kim Roberts walked away with an impressive chunk of change when she abruptly left the job in February 2010. According to a city and county salary report released from the State Controllers Office, the position earned a little over $1 million that year. A county spokeswoman confirmed that the total included accrued vacation, sick leave and other payments Roberts was entitled to. The salary was the highest in the Bay Area for public employees in 2010. </blockquote> Note that <blockquote>Roberts was hired as CEO in March 2007 with a five-year contract. The agreement included a starting salary of $285,744 with annual salary adjustments, severance and other benefits.</blockquote> The issue here is that Ms Roberts was the CEO of a local government run health system. Traditionally, the pay given to people in such positions is closely scrutinized by politicians and tax payers, and hence is usually less than that given out by private, non-profit hospital systems, much less for-profit ones. Nonetheless, while it appears that Ms Roberts got something more than $700,000 worth of compensation beyond her usual salary in her last year, the nature of this compensation, and the justification for it is unclear. Erlanger Health System The <a href="http://timesfreepress.com/news/2012/jan/10/brexler-erlanger-trustees-ok-728000-severance-deal">story</a> that got my attention appeared two days ago in the Chattanooga Times-Free Press: <blockquote>After more than a month of negotiations, Erlanger trustees reversed a previous vote and approved a controversial $728,000 severance package for outgoing CEO Jim Brexler. Trustees voted 4-4 against the same severance package in December but voted 5-4 to approve it during a 30-minute meeting Monday morning.</blockquote> More detail about the package: <blockquote>The approved agreement provides 15 months of severance for Brexler, worth about $713,000. He also keeps his Erlanger health coverage for 18 months, paying his employee portion, a benefit worth about $15,000.</blockquote> This story is actually a complex sequel. We <a href="http://hcrenewal.blogspot.com/2011/01/making-their-numbers-examples-of.html">discussed</a> CEO compensation at Erlanger Health System, an academic medical center affiliated with the University of Tennesse, a year ago. At that time, we noted that a substantial bonus given to then CEO Jim Brexler was based on favorable financial results in the previous year, but did not apparently take into account the more recent decline in the system's finances. That bonus was justified by the typical paean to the leadership's "real expertise in health care" by one member of its board. By last month, however, Erlanger's finances had deteriorated dramatically. A Free Press <a href="http://timesfreepress.com/news/2011/dec/22/1222-a1-erlanger-considers-layoffs">article</a> then stated, <blockquote>Erlanger hospital employees have been asked to take 12 days off in the next two months, consider voluntary buyouts and face possible layoffs as Chattanooga's only public hospital bleeds money. The hospital has lost more $6 million in the last five months, half of that in November.</blockquote> The reason for this accelerating misfortune deterioration remain unexplained. Apparently, CEO Brexler had decided to depart, for also unclear reasons, two months earlier: <blockquote>In October, the hospital announced CEO Jim Brexler would retire at the end of the year.</blockquote> At that time, the board had voted to give him the severance package described above, but then suddenly began to reconsider after how bad things were became clear: <blockquote>The board voted earlier this month not to give Brexler a more than $700,000 severance package, but the issue may be brought back up, board members have said.</blockquote> It was unclear whether the decline in Erlanger's finances had to do with its relationship with another troubled hospital, Hutcheson Medical Center, as described in another Free Press <a href="http://timesfreepress.com/news/2012/jan/02/hutcheson-continues-to-bleed-money">article</a>: <blockquote>Despite a new board, new management and the infusion of a $20 million line of credit, a struggling North Georgia public hospital continues to lose money. Erlanger at Hutcheson, formerly known as Hutcheson Medical Center, lost more than $9 million in the first five months of the 2012 fiscal year, which began in July. It lost the most -- $2.7 million -- in September. Hutcheson board Chairman Corky Jewell could not be reached for comment last week. The hospital's administrator, Debbie Reeves, and other management personnel were not in the office the week between Christmas and New Year's, according to spokeswoman Haley Johnson. The publicly funded hospital in Fort Oglethorpe had been losing about $1 million a month, defaulted on a $35 million bond and laid off 75 employees in fiscal year 2011. In May, Erlanger Health System took over management of the hospital and extended up to $20 million in credit to it.</blockquote> Apparently inflated compensation to Hutcheson's CEO was also a subject of <a href="http://hcrenewal.blogspot.com/2011/01/more-on-hospital-executives.html">one of our posts </a>from about a year ago. At that time, we wrote, "despite a major financial loss, lay-offs and service discontinuations, and a bond default," the CEO got "bonus and incentive compensation" in 2009. So, to summarize, despite major financial problems, Hutcheson Medical Center's CEO got a bonus and incentive compensation in 2009. As its situation got worse, it was taken over in some sense by Erlanger Health System, whose CEO also got a bonus despite increasing financial problems in 2010. Thereafter, the finances of Erlanger really declined, its CEO announced his retirement, and still will collect a golden parachute. Thus Erlanger Health System's golden parachute for its outgoing CEO symbolizes the anti-gravitational powers of executive compensation. While lavish executive pay is often justified by short-term financial results, health care executives seem to be able to just keep collecting more and more until they have to flee. Health care seems to more and more be run for the benefit of self-interested insiders. Also, this case demonstrates how skeptical we ought to be of the breathless praise for health care executives and managers and the uncritical touting of their latest advances and initiatives.  (By the way, we posted <a href="http://hcrenewal.blogspot.com/2011/09/another-hospital-putting-on-ritz.html">here</a>, just before it became apparent how badly Erlanger's finances were collapsing, about its breathless advertisement of a "new service excellence program" for Erlanger employees run by the Ritz-Carlton hotel chain.  One wonders whether the attention to the peripheral ahead of core responsibilities this denoted could have been one reason for the system's decline.)  And we are just working our way up to our big case.... University of Chicago Medical Center This story actually dates back to 2009, but was first revealed briefly in late 2011, <a href="http://www.beckershospitalreview.com/compensation-issues/northwestern-memorial-ceo-dean-harrison-made-97m-in-2010.html">in Becker's Hospital Review</a>, <blockquote>The other three highest-paid hospital CEOs in Chicago in 2010 include the following: • James Madara, MD, and Ken Sharigian, University of Chicago Medical Center: $7.9 million Note: This includes severance for Dr. Madara, who resigned in Oct. 2009. Mr. Sharigian served as the interim in 2010.</blockquote> A little more detail came out in a side-bar to a <a href="http://chronicle.com/article/On-Campuses-the-Income-Gap/129980">story</a> on executive compensation in higher education by the Chronicle of Higher Education: <blockquote>James L. Madara, dean of the school of medicine and chief executive of the medical center, U. of Chicago Total compensation: $7,038,944 Mr. Madara’s base salary was $1.3-million, and he received $2.5-million in severance pay.</blockquote> There was also a hint of why this was so interesting: <blockquote>Mr. [sic] Madara stepped down after seven years as dean and three as chief executive to return to the faculty. He resigned amid controversy over his management decisions, such as a plan to redirect medical-center patients to neighboring hospitals, according to local news reports. </blockquote> A little digging shows there was more to it than that. Recall our recent <a href="http://hcrenewal.blogspot.com/2012/01/us-presidential-candidates-financial.html">post</a> that discussed the "Urban Health Initiative," a program ostensibly meant to direct some patients, allegedly mainly poor patients, to more appropriate health care venues, allegedly away from the Emergency Department of the university medical center, and again allegedly to make room for patients who need and whose insurance can pay for more lucrative services. By February, 2009, the Wall Street Journal <a href="http://online.wsj.com/article/SB123577975486997825.html">reported</a> that <blockquote>In February, two high-ranking doctors quit their administrative posts to protest the plan, saying it could lengthen already long waiting times for patients who visit the ER.</blockquote> In particular, <blockquote>The two doctors who gave up their administrative posts in Chicago were Dr. Vanden Hoek, who stepped down as interim chief of emergency medicine, and pulmonology researcher Joe G.N. Garcia, who had been chairman of medicine. The doctors still can practice medicine at the hospital. About a dozen other doctors from the emergency room and other departments had signed a letter of protest over the hospital administration's plan to reduce the number of beds available to emergency patients in the ER and other units.</blockquote> Three months later, as <a href="http://www.chicagobusiness.com/article/20090502/ISSUE01/100031705/u-of-c-docs-attack-ceos-finance-focus">reported</a> by Chicago Business, <blockquote>Some University of Chicago Medical Center faculty members are accusing CEO James Madara of putting hospital finances ahead of research and teaching. A letter delivered to Dr. Madaar last month and signed by 76 faculty members asserts that, since adding the hospital CEO title in 2006, Dr. Madara has lost focus on his role as a dean of the Hyde Park medical center's vaunted research and academic enterprise. A preocccupation with hospital profits and an 'insular management style' have 'disenfranchised' the faculty, the letter says. </blockquote> By that month, <a href="http://online.wsj.com/article/SB123681502175301913.html">according to the Wall Street Journal</a>, <blockquote>More than 190 doctors at the University of Chicago Medical Center signed a letter to trustees protesting plans to reduce the number of beds available to emergency patients as 'unnecessarily risky' and a threat to patient safety.</blockquote> The plan was put on hold by the university president a few days later. Dr Madara resigned in August. So, somewhat like the case above, this involved a hospital system CEO who got a very large golden parachute after leaving under fire, not for declining revenue, but for his role in overseeing a program of questionable ethics, one possibly bad for patients, and having lost the confidence of some important proportion of his medical faculty. He did not, however, go off quietly into the night. His next stop was Leavitt Partners (as noted in <a href="http://www.ama-assn.org/ama/pub/news/news/ama-names-new-evp-ceo.page">this AMA press release</a>), founded by former President George W Bush administration Secretary for Health and Human Services James Leavitt. As we noted <a href="http://hcrenewal.blogspot.com/2011/10/former-us-secretary-of-health-and-human.html">here</a>, <a href="http://leavittpartners.com/">Leavitt Partners</a> advertises that it "advises clients that invest in health care and food safety." It does not publicize its client list, but that list apparently includes Alliance Health Networks, whose press release noted that Leavitt Partners "will help it expand its presence in the US health industry and beyond "(look <a href="http://www.healthcareitnews.com/news/alliance-health-networks-gets-boost-leavitt-partners">here</a>); and Connextions, Inc, whose press release noted that it would work with Leavitt Partners to " refine existing health insurance exchange models for federal and state governments, as well as private sector organizations that are navigating health care reform law," (look <a href="http://www.businesswire.com/news/home/20110614005331/en/Connextions-Leavitt-Partners-Enter-Agreement-Bring-Health">here.</a>)  Mr Leavitt joined the board of Medtronic last year (look <a href="http://www.bizjournals.com/twincities/news/2011/10/17/medtronic-board-leavitt-fda.html">here</a>).  Then, however, he got back into the CEO business.  While still maintaining <a href="http://leavittpartners.com/team/dr-james-madara">a role at Leavitt</a>, in 2011, per the <a href="http://www.ama-assn.org/ama/pub/news/news/ama-names-new-evp-ceo.page">AMA release</a>, <blockquote>The American Medical Association (AMA) today named James L. Madara, M.D., as its new Executive Vice President and Chief Executive Officer. Dr. Madara will assume leadership of the nation’s oldest and largest physician group on July 1.</blockquote> That news release noted his past positions, <blockquote>the Thompson Distinguished Service Professorship and deanship at the University of Chicago Pritzker School of Medicine, where he was the longest serving Pritzker dean in the last 35 years. Subsequently, he added the responsibility of CEO of the University of Chicago Medical Center, bringing together the university’s biomedical research, teaching and clinical activities. </blockquote> Perhaps not surprisingly, it did not mention the controversies at the medical center that preceded his resignation, nor his sizable golden parachute, nor his ongoing role at Leavitt Partners. So, the American Medical Association claims to represent all US physicians and their values. It turns out that its current Executive Vice President and CEO is a former hospital system CEO who departed under fire with a golden parachute beyond any severance package a practicing or academic physician would dream about.  He also is a former and current consultant with a firm lead by one of our better recent examples of beneficiaries of the revolving door.  We have come a long, and the wrong way since the AMA asserted, "the practice of medicine should not be commercialized, nor treated as a commodity in trade." (See <a href="http://hcrenewal.blogspot.com/2007/12/relman-in-jama-on-threats-to-physicians.html">this post</a>.) This story is not just about the ridiculous compensation given to health care executives, and how this provides perverse incentives and suggests that many health care leaders have become insiders who put their self-interest ahead of the health care mission. This story is also about the connectedness of these insiders, and how they appear to control nearly every part of health care. The Moral of the Stories Maybe if I write this often enough, it will get some notice.... health care organizations need leaders that uphold the core values of health care, and focus on and are accountable for the mission, not on secondary responsibilities that conflict with these values and their mission, and not on self-enrichment. Leaders ought to be rewarded reasonably, but not lavishly, for doing what ultimately improves patient care, or when applicable, good education and good research. On the other hand, those who authorize, direct and implement bad behavior ought to suffer negative consequences sufficient to deter future bad behavior. If we do not fix the severe problems affecting the leadership and governance of health care, and do not increase accountability, integrity and transparency of health care leadership and governance, we will be as much to blame as the leaders when the system collapses.

Three Golden Parachutes and Some Unexpected Sequels

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12 Jan 2012

AMA, Deluded on Health IT, Begs For Doctor Penalty Extension - Not Penalty Termination

The American Medical Association (AMA) has become worse than useless: <blockquote>AMA urges issuance of EMR penalties be delayed <a href="http://library.cqpress.com/cqweekly/login.php?requested=%2Fcqweekly%2Findex.php&PHPSESSID=199il1erbvjc117chl5h4pauo7">Congressional Quarterly</a>'s CQ Weekly (3/14, Zeller) reports that "Congress strongly believes that electronic medical records will bring down the cost of healthcare, so much so that it has passed two laws providing incentives for doctors who upgrade their systems and levying penalties on those who don't." But, the American Medical Association is urging that the penalties be delayed. Notably, the association "says a Government Accountability Office study released in February bolsters its point that the two laws create competing incentives that contradict each other." [Just our <a href="http://www.gallup.com/poll/145238/congress-job-approval-rating-worst-gallup-history.aspx">sub-15%</a> approval rating Congress at work - ed.] The article adds that the Department of Health and Human Services "announced that doctors will face penalties of 1 percent of their Medicare fees if they don't start issuing electronic prescriptions this year," which the AMA says would be a waste because physicians would buy e-prescribing software that they would discard when they install records systems in 2012. [Lest they face other Medicare penalties for non-"meaningful use" of EMR's - ed.] </blockquote> Aside from the Congressional mayhem created by conflicts between e-Prescribing and EMR coercion laws, if the AMA were not completely useless, and truly represented physicians (and patients), they'd be pushing not for a delay in penalties, but for their abolition. This would help return HIT to a sensible voluntary path from the path of irrational exuberance it's now on. -- SS<a name="S2"> </a>

AMA, Deluded on Health IT, Begs For Doctor Penalty Extension - Not Penalty Termination

The American Medical Association (AMA) has become worse than useless:AMA urges issuance of EMR penalties be delayedCongressional Quarterly's CQ Weekly (3/14, Zeller) reports that "Congress strongly be…

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14 Mar 2011

Effort to Make Health Insurance Reimbursement Fairer Lead by Director of Insurance Company Accused of Unfair Practices

We previously <a href="http://hcrenewal.blogspot.com/2009/01/unitedhealth-and-ingenix-settles.html">discussed</a> a legal settlement of charges that UnitedHealth's Ingenix subsidiary manipulated its database of payments to physicians so as to reduce its and other insurers' payments to "out-of-network" physicians.  One aspect of the settlement was a new initiative to better determine such payments.  Now that effort has been caught up in the web of conflicts of interests that has ensnared health care.  As <a href="http://www.syracuse.com/news/index.ssf/2010/03/su_professor_hired_to_rid_heal.html">reported</a> by the Syracuse (NY) Post-Standard, <blockquote>[New York state Attorney General Andrew] Cuomo obtained $100 million in settlements from 13 insurers, including Excellus, that used the defective reimbursement data supplied by Ingenix, a subsidiary of United Health, the nation’s second biggest insurer. Cuomo’s investigation showed insurers such as Excellus used that data to shortchange New York consumers by as much as 28 percent.</blockquote> Also, the settlement included <blockquote>money ... to create FAIR Health Inc., a New York City-based nonprofit that is supposed to come up with a new, fair reimbursement system that will be used by insurers nationwide. FAIR Health has contracted with SU [Syracuse University] to help create that database.</blockquote> The effort was lead by SU Professor Deborah Freund, "a distinguished professor of public administration and economics. She also is an adjunct professor of orthopedics and pediatrics at Upstate Medical University." However, <blockquote>Freund also happens to be listed on the health insurance company’s payroll. Excellus paid Freund $61,378 last year for serving on its board of directors, according to a financial report Excellus filed with the state last week. After The Post-Standard spent several days investigating her ties to the insurance company, Freund quit the Excellus board Friday afternoon.</blockquote> The Post-Standard noted, <blockquote>But some consumer advocates said it was odd that a paid director of Excellus, one of the companies targeted in Cuomo’s investigation, was playing such an important role. [Art] Levin, of the Center for Medical Consumers, said it was ironic that one of the people helping to fix a payment system riddled with industry conflicts of interest may have had a conflict of her own. 'This makes no sense whatsoever given that Excellus is part of the settlement,' Levin said. Chuck Bell, programs director of Consumers Union, publisher of Consumer Reports and an outspoken supporter of the payment reform project, was unaware of Freund’s ties to Excellus. 'I think it’s a concern because consumers do want this to be an entity that is independent of the insurance industry,' Bell said.</blockquote> Among Freund's defenders was <blockquote>Dr. Nancy Nielsen, immediate past president of the American Medical Association and a board member of FAIR Health, [who] said the AMA looked closely at Freund’s qualifications and her Excellus affiliation. She said the doctors’ group concluded her expertise is important to the project and was comfortable that there were enough safeguards in place to avoid any conflicts. Nielsen said FAIR Health would have independent experts not tied to the insurance industry review any recommendations from Freund’s research team.</blockquote> But to add another level of irony, and perhaps conflict of interest, the Minneapolis - St Paul Business Journal just <a href="http://twincities.bizjournals.com/twincities/stories/2010/03/01/daily1.html?surround=lfn">announced</a> <blockquote>The American Medical Association will use an electronic health records system from Ingenix, the company said Monday. The Eden Prairie health care information technology said its Web-based CareTracker software will run on an AMA platform currently in beta testing with the Michigan State Medical Society and will launch nationwide later this year. The platform is touted as a way to improve patient care, clinical efficiency and make administration simpler. CareTracker is the first such system that the AMA will provide to physicians online. 'Ingenix and the AMA will help doctors adopt health IT systems that reduce time spent on administrative tasks and enable them to devote more of their time to patient care,' said Bill Miller, Ingenix executive vice president of health care delivery systems, in a news release. 'Ingenix CareTracker integrates patient medical records and e-prescribing tools into the physician’s workflow. By selecting CareTracker for its platform, the AMA is helping physicians make smarter, more practical decisions about technologies to support their practice.'</blockquote> Although we often discuss conflicts of interests involving physicians or health care academics who moonlight for drug and device companies, and the effects of these relationships on clinical research and medical education, it seems like the pervasive web of conflicts of interest in health care has entangled just about every kind of health care organization, health care decision-maker, and health care opinion leader. Thus, we need to be extremely skeptical of just about everyone and every organization claiming to provide health care related goods and services, or whose goal is to improve any aspect of health care. The danger is that such skepticism will lead to cynicism and distrust. At the least, comprehensive, detailed disclosure of all even indirectly relevant financial and other relationships by all health care decision-makers and opinion leaders at any level, whether they be individuals or organizations, would make it somewhat easier to assess their decisions and opinions.

Effort to Make Health Insurance Reimbursement Fairer Lead by Director of Insurance Company Accused of Unfair Practices

We previously discussed a legal settlement of charges that UnitedHealth's Ingenix subsidiary manipulated its database of payments to physicians so as to reduce its and other insurers' payments to "out…

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22 Mar 2010

AMA And Almost 100 Physician Societies Sound Off To CMS On Health IT, Use "F" Word

In a remarkable development, the American Medical Association and nearly one hundred other physician specialty societies submitted a letter to CMS on Mar. 15 (in PDF at <a href="http://www.ama-assn.org/ama1/pub/upload/mm/399/meaningful-use-comments-15mar2010.pdf" target="_blank">http://www.ama-assn.org/ama1/pub/upload/mm/399/meaningful-use-comments-15mar2010.pdf</a>). These organizations wish to prevent physicians from purchasing ill conceived and poorly designed HIT that does not support better practice. The organizations also express deep concern about ominous reporting requirements and overly aggressive timelines, the latter an issue I've written about repeatedly such as in my formal reply to ONC's "Proposed Establishment of Certification Programs for Health Information Technology" <a href="http://hcrenewal.blogspot.com/2010/03/on-oncs-proposed-establishment-of.html">at this link</a>. The entire letter is available at the PDF link above and is quite lengthy, but the section of the letter that immediately caught my eye is this: <blockquote>... Aggressive timelines and criteria during the initial stage of the incentive program will only serve to undermine this effort. Some government officials have relayed that complex measures and high reporting thresholds are needed to discourage EPs ["eligible professionals" eligible for ARRA money -ed.] from switching back to the use of paper during this transition to EHRs. We are very troubled by this assertion. Physicians are deeply supportive of and committed to incorporating well-developed EHRs into their practices to improve quality of care delivery, enhance patient safety, as well as support practice efficiencies. [Some are - many are not - perhaps the medical specialty societies need to stop acting as if they speak for all physicians - ed.] It is also very unlikely that after physicians make a significant up front investment in health IT and changes to their workflow that they will revert back to manual processes. </blockquote> That assertion, in fact, is not quite true, as in "Failure, De-installation Of EHRs Abound" <a href="http://www.modernhealthcare.com/apps/pbcs.dll/article?AID=/20071030/FREE/310300002/0/FRONTPAGE#">here</a>. However, coercion through ominous reporting requirements is not going to improve adoption rates and will undermine HIT efforts as well, for example via physician fear of the uses to which the data will be put by a coercive, authoritarian-leaning government. Now comes what I believe is the most critical passage where the "F" word ("failure") is used: <blockquote> We believe that the larger concern should be deterring the purchasing of costly EHR products that fail to improve physician workflow, patient care, and practice needs. Industry experts have cited that such failures have adversely affected EHR adoption rates ranging from 50 to 80 percent. [<a style="font-weight: bold; font-style: italic;" href="http://www.tinyurl.com/hostileuserexper">Mission hostile health IT</a> falls into that category - ed.] </blockquote> Note the acknowledgment of healthcare IT failure. The letter was a bit weak in the area of <a href="http://hcrenewal.blogspot.com/2010/02/fda-on-health-it-adverse-consequences.html">patient safety related to HIT</a>. Further, it presented physicians as monolithic eager adopters of HIT (a characterization that is most assuredly false), and minimized the issue of the messiness and Murphy's Law nature of IT installation and maintenance that often make IT a nightmare. The fact, however, that a letter from the major medical societies challenged the irrational exuberance and beliefs in technological determinism that surround health IT (i.e., that computerization 'automagically' fosters improvement), and used the "failure" word is itself somewhat astonishing. I was not inventing anything when I began <a href="http://www.tinyurl.com/healthITfailure">writing about HIT difficulties over ten years ago</a> using the "failure" word, merely reporting the obvious (to those sober about IT) from observation and reports of many colleagues. It's good to see the rest of the medical world start to catch up with common sense. -- SS Addendum: the letter was also signed by the following groups: American Academy of Dermatology Association American Academy of Family Physicians American Academy of Home Care Physicians American Academy of Neurology Professional Association American Academy of Ophthalmology American Academy of Otolaryngology – Head and Neck Surgery American Academy of Pain Medicine American Academy of Physical Medicine and Rehabilitation American Academy of Sleep Medicine American Association of Clinical Endocrinologists American College of Cardiology American College of Chest Physicians American College of Gastroenterology American College of Obstetricians and Gynecologists American College of Osteopathic Family Physicians American College of Osteopathic Internists American College of Osteopathic Surgeons American Academy of Pediatrics American College of Physicians American College of Radiation Oncology American College of Rheumatology American College of Surgeons American Gastroenterological Association American Geriatrics Society American Medical Association American Osteopathic Academy of Orthopedics American Osteopathic Association American Psychiatric Association American Society for Clinical Pathology American Society for Gastrointestinal Endoscopy American Society for Radiation Oncology American Society of Anesthesiologists American Society of Clinical Oncology American Society of Hematology American Society of Nephrology American Society of Plastic Surgeons American Thoracic Society American Urological Association Heart Rhythm Society Infectious Diseases Society of America Joint Council of Allergy, Asthma and Immunology Medical Group Management Association North American Spine Society Renal Physicians Association Society for Cardiovascular Angiography and Interventions Society for Vascular Surgery Society of Hospital Medicine The Endocrine Society Medical Association of the State of Alabama Alaska State Medical Association Arizona Medical Association Arkansas Medical Society California Medical Association Colorado Medical Society Connecticut State Medical Society Medical Society of Delaware Medical Society of the District of Columbia Florida Medical Association, Inc. Medical Association of Georgia Hawaii Medical Association Idaho Medical Association Illinois State Medical Society Indiana State Medical Association Iowa Medical Society Kansas Medical Society Kentucky Medical Association Louisiana State Medical Society Maine Medical Association MedChi, The Maryland State Medical Society Massachusetts Medical Society Michigan State Medical Society Minnesota Medical Association Mississippi State Medical Association Missouri State Medical Association Montana Medical Association Nevada State Medical Association New Hampshire Medical Society Medical Society of New Jersey New Mexico Medical Society Medical Society of the State of New York North Carolina Medical Society North Dakota Medical Association Ohio State Medical Association Oklahoma State Medical Association Oregon Medical Association Pennsylvania Medical Society Rhode Island Medical Society South Carolina Medical Association South Dakota State Medical Association Utah Medical Association Wisconsin Medical Society Vermont Medical Society Medical Society of Virginia Washington State Medical Association West Virginia State Medical Association Wyoming Medical Society

AMA And Almost 100 Physician Societies Sound Off To CMS On Health IT, Use "F" Word

In a remarkable development, the American Medical Association and nearly one hundred other physician specialty societies submitted a letter to CMS on Mar. 15 (in PDF at http://www.ama-assn.org/ama1/pu…

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17 Mar 2010

The Role of the RUC in Medicare's Price-Fixing and Rationing Remains Anechoic

An important part of the noisy and contentious debate about health care reform in the US centers on the role of the government as a provider of health insurance. Some on the left want a government "single-payer" plan to be the only health insurance available. Some left of center want a government "public option" health insurance plan to be available, particularly to those who have trouble obtaining commercial insurance. Some on the right want none of it, and sometimes note that the existing government single-payer plan for the elderly and disabled, Medicare, has important faults that would only become more significant if the plan is extended or duplicated. Yet even critics of Medicare on the right do not seem to want to talk about what may be its worst fault. The latest example, an <a href="http://online.wsj.com/article/SB20001424052970204488304574435464052451436.html">op-ed piece by Dr Scott Gottlieb</a>, appeared in the Wall Street Journal yesterday. Dr Gottlieb's main point was that health care rationing by either government or private insurers is inevitable, but that "government does it in far more byzantine and arbitrary ways." In particular, <blockquote>Consider the $450 billion Medicare program. It provides a model for—indeed its bureaucracy could well end up running—the 'public option' health plan that Mr. Obama wants to offer all Americans under the age of 65. In recent years, Medicare's staff has been aggressively restricting coverage for costly treatments. This often means limiting access to the costliest technologies. To do this Medicare relies on its rationing and pricing systems. </blockquote> Gottlieb then cited several examples, "tortured decisions concerning the use of implantable defibrillators," and "the travails of the pharmaceutical company Spracor and its drug Xopenex, an innovative respiratory medicine that competes with the chemically distinct and much cheaper generic albuterol." Finally Gottlieb decried Medicare's decision making processes applied to costly technologies as "impenetrable." His summation was <blockquote> There's nothing inherently wrong with a program like Medicare seeking value for taxpayers. But it shouldn't make up the rules as it goes. </blockquote> Let me first say that I actually agree with Dr Gottlieb's main points. Any government or private health insurance plan ought to seek value for its money. However, how it does so ought to be rational, based on understanding of medicine and the clinical context, and transparent and accountable to the patients on whose behalf such plans pay. "Covert rationing" (as has been well discussed in the <a href="http://covertrationingblog.com/">Covert Rationing Blog</a>) raises worries that decisions are being made just to save money, not to improve value, and even that decisions are being made without informed consideration of the clinical context, or based on the self-interest of the decision makers, or even that decisions may result from bribery and corruption. But if Dr Gottlieb is so concerned about Medicare rationing care as a result of opaque and unaccountable decision making, why is he not more concerned about how Medicare controls the prices of physicians' services than about its decisions about a few expensive, high-tech and infrequently used treatments? We have written again and again about how Medicare has allowed decisions about what physicians are paid for providing various services to be made de facto by an opaque private committee run by the American Medical Association. This decision-making process has lead to relatively generous payments for procedures, versus miserly payments for "cognitive services," (that is, "evaluation and management services," or for physicians interviewing, examining, and counseling patients, making diagnoses, predicting prognoses, and making decisions about treatment.) The resulting perverse incentives are a major reason that primary care has become increasingly unavailable, and for our expensive patterns of care dominated by high-technology and invasive procedures. More detail quoted from <a href="http://hcrenewal.blogspot.com/2009/06/letter-from-ruc-and-my-reply.html">a previous post </a>appears below. <blockquote>As we have discussed, the US Medicare system determines what it pays physicians using the <a href="http://www.ama-assn.org/ama/pub/physician-resources/solutions-managing-your-practice/coding-billing-insurance/medicare/the-resource-based-relative-value-scale/overview-of-rbrvs.shtml">Resource Based Relative Value System (RBRVS)</a>. This system determines the pay for every kind of medical encounter according to a complex formula that is supposed to account for physicians' time and effort, physicians' practice expense, and the cost of malpractice insurance. The components of physicians' effort assessed are, in turn, technical skill and physical effort; the required mental effort and judgment; and stress due to the potential risk to the patient.To keep the system, which was started in 1990, current, requires addition of new kinds of encounters, which means encounters involving new kinds of procedures, and updating of the estimates of various components, including physicians' time and effort. To do so, the Center for Medicare and Medicaid Services (CMS) relies almost exclusively on the advice of the RBRVS Update Committee (RUC). The <a href="http://www.ama-assn.org/ama/pub/physician-resources/solutions-managing-your-practice/coding-billing-insurance/medicare/the-resource-based-relative-value-scale/the-rvs-update-committee.shtml">RUC</a> is a private committee of the AMA, touted as an "expert panel" that takes advantage of the organization's First Amendment rights to petition the government. Membership on the RUC is allotted to represent specialty societies, so that the vast majority of the members represent specialties that do procedures and focus on expensive, high-technology tests and treatments. However, the identities of RUC members are secret, as are the proceedings of the group.This opaque and unaccountable process has resulted in increases outstripping inflation in fees paid for procedures, while fees paid for 'cognitive" medicine,' i.e., for primary care, and for services that involve diagnosis, management of acute and chronic disease, counseling, coordination of care, etc, but not procedures, have lagged inflation. The effects of the RUC have been amplified by the unexplained tendency of commercial managed care and health insurance to track the RBRVS system when making their own payments to physicians.For further details about the RUC, see these posts on Health Care Renewal (<a href="http://hcrenewal.blogspot.com/2007/03/on-disparities-between-reimbursement-of.html">here</a>, <a href="http://hcrenewal.blogspot.com/2007/12/is-sustainable-growth-rate-main-problem.html">here</a>, <a href="http://hcrenewal.blogspot.com/2008/05/payments-for-patient-centered-medical.html">here</a>, <a href="http://hcrenewal.blogspot.com/2008/07/can-we-fix-medicare-while-pretending.html">here</a>, and <a href="http://hcrenewal.blogspot.com/2008/12/no-such-ruc-new-england-journal-takes.html">here</a>) and important articles by Bodenheimer et al,(1) and Goodson.(2) By the way, why the US Center for Medicare and Medicaid Services (CMS) relies de facto exclusively on the RUC to control the RBRVS system, and why the AMA made the RUC into a secret organization apparently beholden only to the organization's proceduralist members are unanswered questions. </blockquote>Our most recent posts about the RUC are <a href="http://hcrenewal.blogspot.com/2009/02/what-ruc-again-one-of-worlds-most.html">here</a>, <a href="http://hcrenewal.blogspot.com/2009/06/letter-from-ruc-and-my-reply.html">here</a>, and <a href="http://hcrenewal.blogspot.com/2009/08/sgim-urges-chuck-ruc.html">here</a>. Other bloggers, notably including Dr Robert Centor on <a href="http://www.medrants.com/">DB's Medical Rants</a>, have criticized the RUC. The Society of General Internal Medicine seems to be the only medical society that has criticized the RUC (see <a href="http://hcrenewal.blogspot.com/2009/08/sgim-urges-chuck-ruc.html">this post</a>). Yet even ostensibly conservative and libertarian pundits who decry price-fixing and rationing by Medicare have ignored this vivid and important example of opaque and unaccountable price-fixing and rationing. And ostensibly liberal proponents of public options and single-payer systems have not explained how they would make their rationing more rational, transparent, and accountable, or how simply insuring more patients under Medicare-like programs would not result in even higher costs, poorer access, and worse quality. The lack of discussion of the RUC remains one of the more striking examples of the <a href="http://hcrenewal.blogspot.com/search/label/anechoic%20effect">anechoic effect</a>. Failing to address why our costs are so high, are access is so poor, and our quality is so challenged will make it likely that any supposed reform effort will only make these problems worse. References 1. Bodenheimer T, Berenson RA, Rudolf P. The primary care-specialty income gap: why it matters. Ann Intern Med 2007; 146: 301-306. Link <a href="http://www.annals.org/cgi/content/full/146/4/301">here</a>. 2. Goodson JD. Unintended consequences of Resource-Based Relative Value Scale reimbursement. JAMA 2007; 298(19):2308-2310. Link <a href="http://jama.ama-assn.org/cgi/content/short/298/19/2308">here</a>.

The Role of the RUC in Medicare's Price-Fixing and Rationing Remains Anechoic

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02 Oct 2009

SGIM Urges "Chuck the RUC"

This week, <a href="http://www.sgim.org/">Society of General Internal Medicine </a>(SGIM) members received the 5 August, 2009, Update in Health Policy that urged we "chuck the RUC," (quoted in its entirety below, italics added for emphasis): <blockquote> Who will assign the value of primary care services? Chuck the RUC! How does Medicare determine physician payment rates? The answer to this question is a core element of the ongoing debate about health care reform. Changing how Medicare sets payment rates for physicians is especially critical since Medicare rates also guide the rates set by private insurers. Since 1992, Medicare has paid physicians according to the Resource Based Relative Value Scale (RBRVS), a fee schedule that multiplies relative values for physician services by a conversion factor to determine the amount of payment. The Centers for Medicare and Medicaid Services (CMS) has historically used the Relative Value Scale Update Committee, or RUC, as the sole source of recommendations. This committee within the AMA performs broad reviews of the RBRVS every five years. Twenty three of the RUC's twenty nine members are appointed by major national medical specialty societies, including those that account for high percentages of Medicare expenditures for procedures. All meetings are closed and discussions are confidential. The over-representation of procedure-driven subspecialties and under-representation of generalist physicians in the RUC has contributed to the current undervalued cognitive services (especially for primary care) and over-valued reimbursement for procedures. In March 2007, the Medicare Payment Advisory Commission (MedPAC) identified the RUC process as a major reason for undervalued primary care services and a significant contributor to the crisis in primary care. MedPAC has recommended that an independent expert panel of economists, technology experts, physicians and private citizens be created to supplement the RUC's recommendations to CMS regarding fee schedules. Health reform discussions have included moving MedPAC into the executive branch and giving it authority to review and recommend Medicare payment policy, thus reducing the RUC's influence. Not surprisingly, both the AMA and the American College of Surgeons have opposed this proposal. Groups representing primary care physicians, including SGIM, are in favor of this proposal which could ensure fair and unbiased assignment of work RVUs to all the service codes used by physicians. We believe that this will correct the payment inequalities of the current fee scale and ultimately renew trainees' interest in primary care. In the coming weeks, SGIM may ask you to act on this issue and contact your legislators to urge them to support these transformative proposals for primary care. Please monitor your e-mail for action alerts and be prepared to act. </blockquote> We have previously posted (most recently <a href="http://hcrenewal.blogspot.com/2009/06/letter-from-ruc-and-my-reply.html">here</a> in considerable detail) about the perverse incentives given US physicians by the payment schedule dictated by the US Medicare system. These incentives have been largely responsible for the increasingly dire status of primary care/ generalist care in the US. Revisions to the Resource-Based Relative Value System (RBRVS) disproportionately reward physicians for performing procedures and diagnostic tests instead of talking with, examining, thinking about, diagnosing, recommending decisions for, and counseling patients. The US Center for Medicare and Medicaid Services (CMS) uses the RBRVS Update Committee (RUC) de facto as its sole source for advice on revising the system. The RUC is dominated by representatives of medical societies whose members predominantly perform procedures and do diagnostic tests. The RUC is secretive. The identities of its individual members are difficult to ascertain. Its proceedings are secret. Thus, the RBRVS updating process run by the RUC is opaque, unaccountable, and not representative of patients and "cognitive" physicians. The result of this process has been perverse incentives that have driven up health care costs without obvious improvements in quality or outcomes. I applaud SGIM for being the first medical society to challenge how the RUC controls payments to physicians, and the perverse incentives the RUC process has generated. As the Update above says, meaningful health care reform in the US will not occur unless we address the perverse incentives that drive up costs without improving care.

SGIM Urges "Chuck the RUC"

This week, Society of General Internal Medicine (SGIM) members received the 5 August, 2009, Update in Health Policy that urged we "chuck the RUC," (quoted in its entirety below, italics added for emph…

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07 Aug 2009

Why Did US Physicians Give Up Their Ability to Enforce Their Own Professional Standards?

In his recent review of Dr Ezekiel Emanuel's book, (Healthcare, Guaranteed: A Simple, Secure Solution for America,) Dr Arnold Relman, Editor-Emeritus of the New England Journal of Medicine, <a href="http://www.nybooks.com/articles/22798">discussed </a>the history of the deprofessionalization of American physicians. <blockquote> The behavior of US physicians has been changed by the commercialization of medical care, and this too has increased costs. US medical practice has traditionally relied on fee-for-service, which has always given it some of the attributes and incentives of a business. However, the American Medical Association (AMA) maintained for many years that medical practice was a profession, not a business. The AMA's ethical guidelines therefore advised physicians to limit their income to reasonable earnings from the care of patients, and to refrain from advertising and from entering financial arrangements with drug and device manufacturers. Those restrictions were lifted after the US Supreme Court decided in 1975 that lawyers, and by extension members of other professions, including physicians, are engaged in interstate commerce and therefore must be subject to antitrust law (from which they had largely been exempt).(1) This decision had an enormous effect on the medical profession, but its consequences have received relatively little public attention. Although the courts did not initiate the commercialization of medicine, they certainly accelerated it and gave it legal justification. In 1980, after medical organizations lost some costly antitrust trials, in which they were accused of such offenses as limiting doctor fees or denying staff privileges, the AMA changed its ethical guidelines, declaring medicine to be both a business and a profession. This lowered the AMA's barriers to the commercialization of medical practice, allowing physicians to participate in any legal profit-making business arrangement that did not harm patients. Nearly a half-century ago, Stanford economics professor Kenneth Arrow, later a Nobel laureate, convincingly argued that medical care cannot conform to market laws because patients are not ordinary consumers and doctors are not ordinary vendors. He said that sick or injured patients must rely on physicians in ways fundamentally different from the price-driven relation between buyers and sellers in an ordinary market. This argument implied that, contrary to the assumptions of antitrust law, market competition among physicians cannot be expected to lower medical prices. And since physicians influence decisions to use medical services far more than patients do, the volume and types of services provided to patients—and hence total health costs—need to be controlled by forces other than the market, such as professional standards and government regulation. But Arrow's argument was largely ignored in the rush to exploit health care for commercial purposes that ensued after the passage of Medicare and Medicaid in 1965.(2) </blockquote> Writing about the decline of physicians' professionalism in 2007 [ Relman AS. Medical professionalism in a commercialized health care market. JAMA 2007; 298: 2668-2670. [link <a href="http://jama.ama-assn.org/cgi/content/full/298/22/2668">here</a>) ], Dr Relman had briefly alluded to the effect of the 1975 Supreme Court decision, (see our post <a href="http://hcrenewal.blogspot.com/2007/12/relman-in-jama-on-threats-to-physicians.html">here</a>): <blockquote>The law also has played a major role in the decline of medical professionalism. The 1975 Supreme Court ruling that the professions were not protected from anti-trust law undermined the traditional restraint that medical professional societies had always placed on the commercial behavior of physicians, such as advertising and investing in the products they prescribe or facilities they recommend. Having lost some initial legal battles and fearing the financial costs of losing more, organized medicine now hesitates to require physicians to behave differently from business people. It asks only that physicians' business activities should be legal, disclosed to patients, and not inconsistent with patients' interests. Until forced by anti-trust concerns to change its ethical code in 1980, the American Medical Association had held that 'in the practice of medicine a physician should limit the source of his professional income to medical services actually rendered by him, or under his supervision, to his patients' and that 'the practice of medicine should not be commercialized, nor treated as a commodity in trade.' These sentiments reflecting the spirit of professionalism are now gone. </blockquote> It seems to me that Dr Relman has elucidated one of the "missing links" that help explain the current sorry state of physicians' core values, and the broader continuing health care crisis. I am amazed that this bit of history seems to have been so thoroughly forgotten. Dr Relman did write about it before 2007, but in publications that few physicians and other health care professionals were likely to see. Other than Dr Relman, almost no one writing in the medical and health care literature seems to have interest in this issue. (It has been discussed in the Journal of Health Politics, Policy and Law, and the Stanford Law Review by M. Gregg Bloche, but these unfortunately also could have easily been missed by nearly all physicians and health care professionals.) So we have another example of the anechoic effect. Yet in my humble opinion, every physician and health care professional ought to know that the profession once foreswore the commercialization of medical practice, but gave up on its ability to police its own conflicts of interest after the US Supreme Court decided that professionals are subject to anti-trust law. But knowing this important bit of history raises more questions than it answers: <ul><li>The Supreme Court decision apparently involved interpretation of law, not the constitution. Therefore, why didn't organized medicine pursue a change in the law that would allow physicians to continue to enforce their traditional professional values? </li><li>The Supreme Court decision was primarily directed at lawyers, not physicians. Since the decision, to my knowledge, the law profession has maintained strict rules about conflicts of interest. (For example, no legal CME is sponsored by corporations whose products they seek to have the attendees favor.) Why did the decision wreck physicians' but not lawyers' abilities to regulate their own conflicts of interest? </li><li>The Supreme Court decision only affects US law. Why have physicians in other countries also abandoned their traditional values about commercial entanglements? </li><li>Why did this application of US antitrust law have such significant effects during an era when antitrust enforcement in health care was generally declining? (Insurance companies and hospitals that dominate local markets have not feared antitrust enforcement.)</li><li>Why did only Dr Relman and Prof Bloche seem to care about this up to now?</li></ul> Inquiring minds want to know.... And answering these questions might bring us back on the path of true medical professionalism. Hat tip to Merrill Goozner <a href="http://www.gooznews.com/node/2971">in the GoozNews blog</a>. References (from Relman) 1. Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975). 2. Kenneth J. Arrow, "Uncertainty and the Welfare Economics of Medical Care," The American Economic Review, Vol. 53, No. 5 (December 1963).

Why Did US Physicians Give Up Their Ability to Enforce Their Own Professional Standards?

In his recent review of Dr Ezekiel Emanuel's book, (Healthcare, Guaranteed: A Simple, Secure Solution for America,) Dr Arnold Relman, Editor-Emeritus of the New England Journal of Medicine, discussed …

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26 Jun 2009

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