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Hospital defense maliciousness, aided and abetted by attorneys who ignore the ABA and Pennsylvania's Ethical Rules of Conduct Regarding "Candor Towards the Tribunal"

At Healthcare Renewal we've written of hospitals' deviations from the core mission of compassionate, ethical and safe patient care, towards profiteering at patient's and the community's expense. What we haven't written about is maliciousness. At my Feb. 2013 posts about my late mother's (now my) lawsuit regarding injury and death that involved EHR problems, namely "<a href="http://hcrenewal.blogspot.com/2013/02/the-lengths-hospital-will-go-to-in.html" target="_blank">The lengths a hospital will go to in order to protect their EHR - Motion for Reconsideration of Denial of Motion for Reconsideration of Denial of Objections</a>"   and   "<a href="http://hcrenewal.blogspot.com/2013/02/more-on-lengths-hospital-will-go.html" target="_blank">More on the lengths a hospital will go through to protect their EHR from discovery</a>", I'd opined that the defense's repeated position that individual Certificates of Merit [COMs] were required naming or otherwise "identifying by specialty" every single licensed professional for whom the parent hospital was being held vicariously liable was contradicted by state law and procedure. I'd posted this as an example: <blockquote class="tr_bq">From the official publication of the Civil Procedure Rules Committee in the state [of PA], effective a decade ago: <div style="text-align: center;"><img border="0" height="310" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg0U6lMWpjedAb5GxPK8VKdmEN5cCoppS1TRPf228O7KvGm60pqw9uTO7kDyM7PFH3T-3hntaHlXp4PBRHB2SVcrtj3I_KWJNd1pnWyqorZ1PymkMNcwjVXxCy3bofu1Gstkqu0aPlRju5H/s1600/COM_rule.jpg" width="320" /></div> </blockquote>Such a single COM for vicarious liability had been timely filed at the outset of the case in 2010, as well as a COM for direct hospital liability. Yet the defense persisted in their multiple-COM position, filing a Motion for Reconsideration of a denial of their COM position, an "emergency" petition for review with Superior Court of PA not certified for appeal by the local judge that was also denied (not even heard), a Motion for Reconsideration of the denial of the initial Motion for Reconsideration, "protective orders" for witnesses to prevent their being deposed, and even a complaint that the judge of record had no authority to let the first Motion for Reconsideration expire on its own, which they do if not responded to in 30 days.  This all ate up time. Except they "forgot" to tell the judge that their COM argument had been thrown out several years prior by the U.S. District Court in these parts - same defendant, same defense attorney.  (More on this lack of mandatory Candor Before the Tribunal below.) Instead of candor, defense attorney <a href="http://www.marshalldennehey.com/attorneys/carolyn-b-digiovanni" target="_blank">Carolyn B. DiGiovanni</a> of the lawfirm <a class="l" href="http://www.marshalldennehey.com/">Marshall Dennehey Warner Coleman Goggin</a> filed motions - like this one of 12/6/2010 below - seeking to have the court strike the vicarious liability COM as "inadequate under the rules" and get the organization off the hook for vicarious liability for its agents/employees, that I cite directly.  Emphases mine: <blockquote class="tr_bq">... 16. In the instant [current, i.e., Silverstein v. AMH - ed.] case, Plaintiff chose to file only one Certificate of Merit on her vicarious liability claim against Abington Memorial Hospital, which is insufficient under the Rules. [Well, no, actually; it was precisely what the rules called for.  See below - ed.] 17. Despite the fact that Rule 1042.3(a)(2) specifically addresses those situations involving vicarious liability, Plaintiff has failed to comply with the mandates of Rule 1042.3(a)(2) that a separate Certificate of Merit must be filed pursuant to (a)(1) as to the other licensed professionals for whom the vicarious Defendant is responsible. 18. In the present case, although Plaintiff filed a Certificate of Merit, Plaintiff did not file a timely Certificate of Merit which supports her direct claims of liability against the agents, employees and/or subcontractors for whom she claims Defendant, Abington Memorial Hospital, is vicariously liable, in accordance with the Pennsylvania Rules of Civil Procedure. 19. As Plaintiff has failed to timely produce [multiple - ed.] Certificates of Merit which satisfy the mandates of Pa.R.C.P. 1042.3 within sixty (60) days of the filing of the Complaint, entry of partial judgment of non pros [non-prosecution - ed.] on Plaintiffs claim for vicarious liability is warranted as a matter of law. 20. Accordingly, Defendant, Abington Memorial Hospital, files the instant Motion seeking to strike the Certificate of Merit and for the entry of partial judgment of non pros on Plaintiffs claim for vicarious liability pursuant to Pa. R Civ. P. 1042.7.</blockquote> The truth of the above claims was certified in writing to the local court: <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/AVvXsEhq46clni_Csv7jW5Rb3a9xVy45OgA5lqmEVlB8RfeWiiMF7Tj7Bxs2SMNmcQq9lnjiTiOXiMU-TyP92eoft22wWqqK_PcK9WeDhpc-OjrlbmHE_igM47n0XuB-z81Uek7KppvdVGBnYoXK/s1600/sworn.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhq46clni_Csv7jW5Rb3a9xVy45OgA5lqmEVlB8RfeWiiMF7Tj7Bxs2SMNmcQq9lnjiTiOXiMU-TyP92eoft22wWqqK_PcK9WeDhpc-OjrlbmHE_igM47n0XuB-z81Uek7KppvdVGBnYoXK/s400/sworn.jpg" width="327" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">"I, Carolyn B. DiGiovanni, Esquire, Attorney for Defendant, Abington Memorial Hospital, verifies that the facts set forth in the Motion or Defendant, Abington Memorial Hospital to Strike Certificate of Merit and for Entry of Partial Judgment of Non Pros Pursuant to Rule 1042.6 are true to the best of her knowledge, information and belief. If the above statements are not true, the deponent is subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities."  (Click to enlarge)</td></tr></tbody></table> This <a href="http://legal-dictionary.thefreedictionary.com/Attorney+Misconduct">legal misconduct</a> kept the case mired in procedure for several years, with no Discovery conducted (except the defense helping themselves to my mother's medical records): <blockquote class="tr_bq">Legal misconduct: Behavior by an attorney that conflicts with established rules of professional conduct and is punishable by disciplinary measures.. </blockquote> This nonsense is finally over. The judge has explicitly denied any further Motions for Reconsideration of the Certificate of Merit issue, and  has granted a Motion to Compel both Discovery (including all EHR metadata) in 30 days, and depositions within 45 days. (If we discover that EHR problems were causing other injuries or deaths, it may be time for a visit to the DA's Office of this jurisdiction.) Here's what I believe ended this matter, a revelation showing what I believe is hospital defense maliciousness regarding the rights of the injured and deceased (e.g., my mother, who died in June 2011, might have been able to participate in her own trial if these delays had not occurred): My mother's (now my) attorney recently discovered  a 2006 case in U.S. District Court of Eastern Pennsylvania, Stroud vs. Abington Memorial Hospital, where the same defense for the same hospital tried exactly the same COM attack tactic, and were denied.   The Stroud case was presented to the Silverstein court just a few weeks ago. The Stroud decision of August 2008 is at this link:  <a href="http://www.gpo.gov/fdsys/pkg/USCOURTS-paed-2_06-cv-04840/pdf/USCOURTS-paed-2_06-cv-04840-3.pdf">http://www.gpo.gov/fdsys/pkg/USCOURTS-paed-2_06-cv-04840/pdf/USCOURTS-paed-2_06-cv-04840-3.pdf </a>. One of the defense attorneys in that case was the selfsame Carolyn B. DiGiovanni  (then at law firm <a href="http://www.whiteandwilliams.com/" target="_blank">White & Williams LLP</a> according to the Lexis-Nexis transcript), now acting as principal counsel in the 2010 case Silverstein vs. Abington Memorial Hospital: <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/AVvXsEhK2b8_IFBea2gzMXdUMcvUvXjcI0gkLiU30MAcy1Z9D53WmALLG_xsSKktcQzUgKhn38pZijQl5gDdmBAYGMVSRDfleFWzqKYY4SHNJnDLXrcOHGCedmDE_QK98Z6YchLWJeW1aXnPOQNb/s1600/lexisnexis.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="400" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhK2b8_IFBea2gzMXdUMcvUvXjcI0gkLiU30MAcy1Z9D53WmALLG_xsSKktcQzUgKhn38pZijQl5gDdmBAYGMVSRDfleFWzqKYY4SHNJnDLXrcOHGCedmDE_QK98Z6YchLWJeW1aXnPOQNb/s400/lexisnexis.jpg" width="336" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">Stroud v. AMH, Aug. 2008.  A familiar lawyer name.  Click to enlarge.</td></tr></tbody></table> In Stroud in Aug. 2008 the U.S. District Court of Eastern PA concluded: <blockquote class="tr_bq">... II. Motion as to Vicarious Liability Claims Based on Other Actors’ Conduct Hospital also seeks judgment in its favor as to any vicarious liability claims of negligence against the Hospital that Plaintiff might bring based on the actions of any Hospital personnel other than Defendant McAllister. Hospital takes the position that Plaintiff did not timely file any certificates of merit (“COM”) to support such claims except as to Dr. McAllister and, therefore, that any vicarious liability claims for the acts of any nurse, physician (other than Dr. McAllister), or other personnel should be dismissed.  After careful review of the Pennsylvania certificate of merit rule, however, we conclude that Plaintiff is in compliance. ... We do not believe more [than one COM -ed.] is required of Plaintiff. The parties put forth differing interpretations of the Rule and its official “Note.” We read the first sentence of the “Note” following <a href="http://www.pacode.com/secure/data/231/chapter1000/s1042.3.html" target="_blank">Rule 1042.3(a)(2)</a> to reiterate that a COM (the contents of which is described in subsection (a)(1)) is required as to a particular defendant even when the plaintiff is bringing a claim of vicarious liability as described in subsection (a)(2) against that defendant. We do not read it to require that a COM be filed as to a non-party [i.e., parties to whom the hospital is charged with vicarious liability for their actions such as employees and contractors - ed.]. We observe that the Note clearly states that the expert statement underlying the COM “is not required to identify the specific licensed professionals who deviated from an acceptable standard of care.” [ Pa. R. Civ. P. 1042(a)(2) Note.]  It would be incongruous for a plaintiff to be relieved of having his expert detail specific negligent individuals in his or her supporting written statement yet be required to simultaneously file separate COMs as to those individuals.  While the Hospital directs our attention to the Note that accompanied a prior version of this rule as authority for its interpretation of the intention of the rule, we find it more persuasive that the Pennsylvania Supreme Court, by order entered on February 11, 2005, specifically re-wrote the Note to subsection (a)(2) — the only apparent change to this rule at that time. We believe that the Court’s decision to delete a provision that explicitly stated that COMs “must be filed as to the other licensed professionals whether or not they are named defendants in the action” (emphasis added) must be given effect. We conclude that where the conduct of other licensed professionals who are not named as defendants in the action is the basis for a claim of vicarious liability against a named defendant [i.e., hospital - ed.] (for whom a COM is filed), no further COM [beyond one - ed.] is required. This interpretation is bolstered by the fact that the Form COM provided in Pa. R. Civ. P. 1042.8 [now <a href="http://www.pacode.com/secure/data/231/chapter1000/s1042.9.html">1042.9</a> - ed.] contemplates the certificate naming a “Defendant” (in the blank line following the title “Certificate of Merit as to”). We also note that, in the case discussed by Plaintiff in his opposition, Yee v. Roberts, 878 A.2d 906 (Pa. Super. Ct. 2005), the Superior Court reiterated that a timely-filed COM was necessary as to a claim of vicarious liability against a dental partnership but did not suggest that an additional COM would have been necessary as to the non-party employee (identified by her first name in the complaint) whose conduct was alleged to be negligent. </blockquote> In other words, the Certificate of Merit argument proffered by the hospital and its defense in 2010-2013, including the same Carolyn B. DiGiovanni who'd heard with her own ears and seen with her own eyes the same contention denied in 2008 (a contention that helped keep Silverstein vs. AMH in the incipient pleading stages with no Discovery for years) was entirely frivolous. Remarkably, the existence of the 2008 Stroud decision as above was never divulged to the current local PA court, in what appears to me to be a violation of the intent if not the letter of the ABA and <a href="http://www.pacode.com/secure/data/204/chapter81/s81.4.html" target="_blank">PA Rules of Professional Conduct for attorneys</a>: <blockquote class="tr_bq"><h4>PA Rule 3.3. Candor Toward the Tribunal.</h4> (a)  A lawyer shall not knowingly:    (1)  make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;    (2)  fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or     (3)  offer evidence that the lawyer knows to be false. </blockquote>Not only was the Aug. 2008 Stroud case decision on COMs "known to the lawyer", it was a case in which they had been directly and professionally involved. Obviously, mentioning the 2008 Stroud decision at the outset would likely have been entirely destructive - right from day 1 - of any claim that multiple COM's on vicarious liability were needed in 2010. In the face of the aforementioned 2008 Stroud v. AMH decision, this type of filing and the deliberate lack of Candor Toward the Tribunal was malicious, in my opinion, to delay proceedings - quite disrespectful of my injured and now deceased mother and to my own rights as substitute plaintiff. The judge's latest decision ordering an end to this court procedural misuse is <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/Silverstein%20-%20Denying%20Def%27s%20Motion%20for%20Reconsideration%20of%20Denial%20of%20Earlier%20Motion%20(00261356).PDF" target="_blank">at this link</a>.  The judge seemed somewhat angry: <blockquote class="tr_bq">... When the Superior Court of Pennsylvania denied Defendant's petition for review, Silverstein v. Abington Mem. Hosp.,No. 99 EDM 2012, as we explained in the January 13 order, we considered the [Certificate of Merit] matter concluded. Specifically, our order found that the alternative request for reconsideration had been "deemed denied" or "expired" as well, citing Stephens v. Messíck,7gg A.2d793, 801 (Pa. Super. Ct.2002) ("A motion for reconsideration appeals to the court's discretion . . . . Normally, motions for reconsideration expire on their own . . . .").  Undeterred, Defendant, on February 1,2013, filed a motion for reconsideration of our denial of the motion for reconsideration of our denial of the "Motion of Defendant, Abington Memorial Hospital, to Strike Certificate of Merit and for Entry of Partial Judgment of Non Pros [got that? - ed.]  pursuant to pa.R.C.P . 1042.7,and sent us a copy of the second motion for reconsideration.... We now, however, in the hope of putting the matter to rest, order as follows: 1) Defendant's motion for reconsideration of our denial of Defendant's earlier motion for reconsideration is deníed. We pause to comment that the theory espoused in Defendant's "reply" to plaintiff's answer in opposition to the second motion for reconsideration-that we declined to entertain Defendant's first motion for reconsideration based on the erroneous belief we had no jurisdiction to do so - is incorrect .  [This lawyer was trying to tell a judge what he could and could not do - ed.] ... This Court, at least this jurist, will entertain no further requests for reconsideration of the subject matter of these motions and orders, barring contrary direction from a higher authority,  and we encourage the parties not to file any such further requests. [The reconsideration 'requests' came solely from the defense, I add - ed.] By the Court, <a href="http://judgepedia.org/index.php/Joseph_A._Smyth,_Jr.">Joseph A. Smyth, Jr.</a> </blockquote> Thank God, because I was fully expecting, barbershop-mirror style, a "Motion for Reconsideration of Denial of Motion for Reconsideration of Denial of Motion for Reconsideration." Sadly, this is the hospital where I'd completed my residency in 1987 with solid recommendations - including for a medical informatics postdoc that helped give me my current expertise - from its current Chief Medical Officer, then a residency program director. This form of hospital defense abuse - frivolously and with malice trying to stall or evade court process guaranteed to citizens in the Constitution, especially when they are frail and may soon die - must not be permitted. Finally, I observe that perhaps <a class="l" href="http://www.marshalldennehey.com/">Marshall Dennehey Warner Coleman Goggin</a> needs to provide better CLE instruction on the PA and ABA Rules of Professional Conduct. -- SS April 11, 2013 addendum: <blockquote class="tr_bq">Health Leaders Media April 5, 2013 <a href="http://www.healthleadersmedia.com/print/TEC-290834/HIT-Errors-Tip-of-the-Iceberg-Says-ECRI" target="_blank">HIT Errors 'Tip of the Iceberg,' Says ECRI </a> Healthcare systems' transitions from paper records to electronic ones are causing harm and in so many serious ways, providers are only now beginning to understand the scope.  [I understood the scope years ago as reflected in my writings - ed.] Computer programs truncated dosage fields, leading to morphine-caused respiratory arrest; lab test and transplant surgery records didn't talk to each other, leading to organ rejection and patient death; and an electronic systems' misinterpretation of the time "midnight" meant an infant received antibiotics one dangerous day too late. These are among the 171 health information technology malfunctions and disconnects that caused or could have caused patient harm in a report to the ECRI Institute's Patient Safety Organization. Thirty-six participating hospitals [a small number indeed - ed.] reported the data under a special voluntary program conducted last year. Karen Zimmer, MD, medical director of the institute, says the reports of so many types of errors and harm got the staff's attention in part because the program captured so many serious errors within just a nine-week project last spring.  [Including 8 injures and 3 possible deaths in just 9 weeks as I wrote at "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">here</a> - ed.] The volume of errors in the voluntary reports was she says, "an awareness raiser." "If we're seeing this much under a voluntary reporting program, we know this is just the tip of the iceberg; we know these events are very much underreported." ... ECRI is currently evaluating a similar, and much larger list of reports from many of the 800 hospitals that contract with ECRI's PSO services. </blockquote> It's about damn time someone looked at EHR-related mishaps seriously. -- SS April 13, 2013  Addendum: This hospital is apparently insured via a consortium of 8 regional nonprofit hospitals: <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/AVvXsEg-h4Ohnz-YG8f1Rw2VKdgQ8yFbgsCtux3TKF7a9xKlqmVup4VCvE_1INF7VQ1bH-fTxcbZrkyD5fYrM8yz9MqnRD9SnT8qlDMU0G2-JI7eYSmR1rKShbNR1QBOPaVRaJYGXOQyBmBACVTu/s1600/Amh_insurance.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="113" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-h4Ohnz-YG8f1Rw2VKdgQ8yFbgsCtux3TKF7a9xKlqmVup4VCvE_1INF7VQ1bH-fTxcbZrkyD5fYrM8yz9MqnRD9SnT8qlDMU0G2-JI7eYSmR1rKShbNR1QBOPaVRaJYGXOQyBmBACVTu/s400/Amh_insurance.jpg" width="400" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">(Click to enlarge)</td></tr></tbody></table><div class="separator" style="clear: both; text-align: center;"></div> The frivolous filings (including several that were hundreds of pages long) and legal misconduct likely cost insurer <a href="http://www.hoovers.com/company-information/cs/company-profile.Cassatt_Rrg_Holding_Company.cc00729a143fc7f3.html">Cassatt RRG</a> a small fortune, a disgrace for charitable organizations to have their funds wasted in this manner for defense lawyer enrichment.  I feel Cassatt needs to know about this, so I will inform them. -- SS April 18, 2013 Addendum: From my counsel on 4/16 I am informed the defense lawfirm is upset at this posting.  I have, being a reasonable author, offered through my counsel to consider revisions if defense would identify statements they believe non-factual, along with a basis of claims of non-factuality.  Nothing has been received in response. -- SS

Hospital defense maliciousness, aided and abetted by attorneys who ignore the ABA and Pennsylvania's Ethical Rules of Conduct Regarding "Candor Towards the Tribunal"

At Healthcare Renewal we've written of hospitals' deviations from the core mission of compassionate, ethical and safe patient care, ...

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WALK THE WALK

<div class="MsoNormal"><o:p>WALK THE WALK</o:p></div><div class="MsoNormal"> </div><div class="MsoNormal">For some time a jeremiad theme has been dominant in the psychiatric sector of the <a href="http://hcrenewal.blogspot.com/2009/01/academic-industrial-complex.html">academic-industrial complex</a>. Blockbuster psychiatric medications are going off patent, the pipeline is viewed as alarmingly empty, and several corporations are scaling back or even abandoning their research programs in this area. Analyses of the reasons range from the <a href="http://www.ncbi.nlm.nih.gov/pubmed/17080187">enlightened</a> to the <a href="http://www.ncbi.nlm.nih.gov/pubmed/?term=22837348">pragmatic</a> to the <a href="http://www.psychiatrictimes.com/all/editorial/psychiatrictimes/pdfs/KrystalPresidentsLetter2012.pdf">pedantic</a> to the <a href="http://www.thecarlatcmeinstitute.com/blog/2011/08/has-stephen-stahl-gone-off-the-deep-end-you-decide/">foolish</a>. Everyone predicts that things will turn bleak in academic clinical research if the corporate spigot is turned off.</div><div class="MsoNormal"> </div><div class="MsoNormal">Lost in the wailing is a clear understanding that the defecting corporations are acting out of their own enlightened self interest. For 50 years, no fundamentally incisive innovations have occurred, so the defectors are telling the academics to get their act together in respect of better understanding disease mechanisms. Trouble is, too many academic clinical investigators have devolved into key opinion leaders promoting corporate marketing messages at the expense of generating original clinical science. Now they are squawking about being caught with their pants down.</div><div class="MsoNormal"> </div><div class="MsoNormal">The latest academic psychiatrist to opine about this issue is Steven Hyman at Harvard Medical School. In a new commentary that has just <a href="http://www.dana.org/news/cerebrum/detail.aspx?id=41290">appeared</a>, Dr. Hyman talks up his favorite theme of translational medicine, which sounds lovely until you perceive that he has no contemporary examples of same in psychopharmacology. It’s all airy rhetoric. Dr. Hyman is not just a Harvard professor – he is a former Director of the National Institute of Mental Health (NIMH). Then he was Provost at Harvard under President Larry Summers. Now he is Director of a psychiatric research center at Harvard. </div><div class="MsoNormal"> </div><div class="MsoNormal">Someone else who noticed Dr. Hyman’s new <a href="http://www.dana.org/news/cerebrum/detail.aspx?id=41290">commentary</a> is our fellow blogger Dr. John M. (Mickey) Nardo across at <a href="http://1boringoldman.com/">1Boringoldman.com</a>. His take on the Hyman piece is right on target. Basically, the Hyman commentary is a hortatory fantasy that we can all do better by buying in to his vision of interdisciplinary research, pooling the efforts of academia, industry, and government. Problem is, his vision hasn't worked so far. Here is an example.</div><div class="MsoNormal">   </div><div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in;">Towards the end of his term as NIMH Director, Dr. Hyman set the ball rolling for new centers cast in his mold of translational research. Dr. Nardo <a href="http://1boringoldman.com/index.php/2013/04/05/whither-the-crisis/">mentioned</a> “… a bunch of centers that haven’t produced very much.” The model of such failed centers is the one that existed at Emory University under the direction of Charles Nemeroff. It was called the Emory-GlaxoSmithKline-NIMH Collaborative Mood Disorders Initiative 5U19MH069056 (Principal Investigator Charles Nemeroff). It was conceived with all the right buzzwords about innovative models of drug discovery and translational benefit for patients through partnerships of academic centers with commercial drug makers (the Request for Applications (RFA) actually used this language). From the start, the Initiative was poorly managed and it never lived up to its billing. </div><div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in;"> </div><div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in;">Annual Progress Reports from the Initiative to NIMH, obtained through a FOIA request, reveal unacceptably low scientific productivity, and lack of leadership to promote the intended scientific synergies among laboratories. When I assessed the overall productivity of this project four years after the end of the first 5-year funding period, it was apparent that the U.S. taxpayer received little value for the $5.3 million investment by NIMH. Only 7 original scientific publications could be attributed to the federal support (that count excludes a host of potboiler review articles and other academic padding). Five of these 7 originated from a single participating laboratory at Emory. The NIMH component, under Dennis Charney, also was a serious underperformer.</div><div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in;"> </div><div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in;">The collaborating drug company GlaxoSmithKline obtained valuable preclinical information from the Emory laboratories, much of which has never been published even though federal funding supported the work. If the data are being treated as confidential proprietary information by GSK, then that posture would be contrary to the spirit of the original RFA. Maybe GSK just decided it was worthless data. In addition, GSK benefited from the conduct of a Phase II clinical trial of one of their candidate drugs in posttraumatic stress disorder (PTSD), even though this study returned a negative result. Even worse, the trial did not meet the stated criteria of the RFA. It was not based on any well founded theory of PTSD. Instead, it was a routine, exploratory study of a new compound. Because the study design did not permit strong inference, nothing substantive was learned from the negative result. This Phase II trial could have been performed better and less expensively by GSK itself as a normal business activity. GSK certainly did not need scarce NIMH dollars for this routine, early Phase II trial. The Emory-GSK-NIMH Initiative added no scientific value.</div><div class="MsoNormal" style="margin-bottom: .0001pt; margin-bottom: 0in;"> </div><div class="MsoNormal">Notwithstanding the clear evidence of under-productivity, NIMH under Director Thomas Insel, MD, continued the Initiative for all 5 years of the original funding period, and then renewed the Initiative for a second 5 year period at an increased funding level under a new P.I., Helen Mayberg, M.D. Dr. Mayberg is a respected clinical scientist, but she is not a psychiatrist, she is not a psychopharmacologist, and she has no track record of research in the priorities announced by the RFA. What actually is going on? Did NIMH just hand a favor to Dr. Insel’s former employer, Emory University, to the tune of another $6 million?</div><div class="MsoNormal"> </div><div class="MsoNormal">One lesson of this episode is that the chatter by federal scientific administrators (Hyman, Insel) about translational research strategies and innovative models of drug discovery is mostly vacuous rhetoric. The RFA was an imprudent conceit to begin with, having no base in solid clinical science, and this expensive Initiative failed catastrophically to meet its grandiose objectives. It is ironic that Dr. Hyman presumes to scold and sermonize to the field yet again about translational research, as it was he who set the ball rolling in the first place for the disastrous Emory-GlaxoSmithKline-NIMH Collaborative Mood Disorders Initiative. Last time I looked, nobody has been held accountable for the failure of the Initiative. Where is NIMH Director Thomas Insel when we need him to set standards of accountability and ethics?</div><div class="MsoNormal"> </div><div class="MsoNormal">So, the next time you hear academic psychiatrists lamenting how bad it is, remind them about this scandalous example of waste and mismanagement of federal research funding. Cleaning up cesspools like this would be a step to unblocking the drug development pipeline. And we need leaders who walk the walk, not just talk the talk.</div><div class="MsoNormal"> </div>

WALK THE WALK

WALK THE WALK For some time a jeremiad theme has been dominant in the psychiatric sector of the academic-industrial complex . Blockbuster ps...

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Another Sign of Resistance? - Doctors Sue Hospital Systems Alleged to Put Money Ahead of Mission

In two recent instances, physician groups have filed lawsuits against hospital systems alleging that managers were directly putting revenue ahead of patient welfare.  Although so far this is all about allegations, and nothing has been decided in courts of law, the details provided in the current news coverage are disturbing. We will present the cases in the order that news reports were published. Prime Healthcare Services California Watch <a href="http://californiawatch.org/dailyreport/doctors-claim-prime-hospital-kept-them-patients-18850">reported</a> on a lawsuit filed against Prime Healthcare Services, a California based for-profit hospital system that has got its share of unfavorable media coverage.  In summary, <blockquote class="tr_bq">A dozen Southern California doctors are accusing the leadership of a Prime Healthcare Services hospital of refusing to notify them about their patients because they won’t engage in profit-driven practices, according to a request for a restraining order filed this week. The San Bernardino County physician group suing Chino Valley Medical Center and its director say it has been asked to needlessly admit patients from the emergency room into hospital beds, <a href="https://www.documentcloud.org/documents/628144-prime-case-ex-parte-app-for-tro-03-27-13.html" target="_blank">according to the lawsuit filed Wednesday</a> in San Bernardino County Superior Court. The group’s doctors also have been urged to document patient conditions as more complex or severe than they are, the filing says. <a href="https://www.documentcloud.org/documents/628145-prime-complaint-03-26-13.html" target="_blank">The doctors suing the hospital maintain</a> that both practices are meant to drive up hospital bills. The result of their refusal to go along, they say, is that they’re not receiving what they characterize as legally mandated notifications when their patients land in the hospital.  The physicians have asked the judge to lift the alleged freeze in communication, saying it puts fragile patients in danger. </blockquote> The article described one particularly concerning incident <blockquote class="tr_bq">[The lawsuit] ... claims one patient with a serious breathing condition was admitted without her doctor’s knowledge. During her stay, Chino Valley staff operated to remove her gallbladder. 'Because (Inland) was not contacted, no doctor gave the required pulmonary clearance nor did the patient receive proper respiratory treatment prior to surgery,' the lawsuit says. The suit alleges that such practices put patients 'at serious risk of injury and even death.' </blockquote> The article also described allegations that at the root of the problem was the hospital system's management's insistence on revenue ahead of all other concerns: <blockquote class="tr_bq">The physician group suing Chino Valley holds contracts with about a dozen managed care firms that expect group doctors to handle local members’ care in the case of a hospitalization. The Inland doctors say that instead, they’ve been stonewalled. In their lawsuit, they say the silence is a result of their refusal to follow the direction of the hospital’s president and chief medical officer, Dr. James Lally, a defendant in the case. Lally suggested that the physicians document serious medical conditions, such as a certain type of pneumonia that Medicare pays hospitals a premium to treat, the suit says. Lally also discouraged doctors from putting patients on 'observation' status, according to the suit. That means a doctor will monitor a patient’s condition, rather than sending him or her home or admitting the patient to a hospital bed. The lawsuit alleges that Lally prefers doctors to admit patients into the hospital so the hospital can receive 'significantly higher Medicare reimbursements.'</blockquote> This is not the first time that Prime has been accused of mischief: <blockquote class="tr_bq"><a href="http://californiawatch.org/prime" target="_blank">A yearlong California Watch series</a> documented high rates of lucrative and severe medical conditions at Prime hospitals, as well as an aggressive approach to admitting ER patients into hospitals, rather than treating them in the ER and sending them home. State hospital data analyzed by California Watch showed that Prime hospitals <a href="http://californiawatch.org/health-and-welfare/chain-profits-admitting-er-patients-11561" target="_blank">admitted about 63 percent of Medicare-funded ER patients</a> into hospitals in 2009, compared with 39 percent at the state’s other leading for-profit chain, Tenet Healthcare Corp. In response, Prime said the analysis 'utterly fails to consider the medical basis for admissions.' The U.S. Justice Department is investigating Prime’s billing practices, <a href="http://californiawatch.org/dailyreport/prime-hospital-chain-acknowledges-it-faces-2-federal-investigations-18801" target="_blank">according to a document the chain filed</a> as part of a hospital purchase plan. Dr. Prem Reddy, founder of the Ontario, Calif.-based chain, has overseen rapid growth since Prime’s 2001 start as the company expanded into a coast-to-coast 21-hospital chain.</blockquote> Also, <blockquote class="tr_bq">Prime Healthcare has been criticized for aggressively admitting paying patients since its founding. <a href="http://californiawatch.org/health-and-welfare/their-own-words-making-emergency-care-profitable-10738" target="_blank">Reddy once referred to an ER as a 'gold mine,'</a> according to court testimony from the medical director of the first hospital taken over by the Prime founder. The reference, which the medical director said during a 2005 trial, was to numerous Kaiser and Medicare patients who could be admitted for further care. Another doctor told the Orange County Board of Supervisors in 2006 that when Prime took over Huntington Beach Hospital, doctors were urged to admit insured patients with maladies as minor as a headache.</blockquote> Yet, Prime Healthcare <a href="http://www.primehealthcare.com/About-Us/Mission-Vision.aspx">claims</a> to honor the value of compassion: <blockquote class="tr_bq"> We provide an environment that is caring and conducive to healing the whole person physically, emotionally and spiritually. We respect the individual needs, desires and rights of our patients.</blockquote> Dignity Health Our second story comes from Nevada <a href="http://www.lasvegassun.com/news/2013/apr/03/doctors-allege-shuttling-patients-among-hospitals-/">courtesy</a> the Las Vegas Sun.   It involves Dignity Health, a multi-state non-profit health system.  The story basics are: <blockquote class="tr_bq">Two former St. Rose Dominican Hospital emergency room doctors say they were forced to transfer patients from one St. Rose hospital to another so its owners and their boss could profit — at the expense of patient safety. The doctors allege in similar lawsuits that the frequent patient transfers among the three St. Rose hospital campuses — Rose de Lima and Siena in Henderson and San Martin in the southwest valley — put profit ahead of patient care. When they resisted, they say they were retaliated against and eventually fired. The 3-year-old ambulance company that was used to shuttle patients was partly owned by both the hospital company and the director of the emergency department at the Siena campus at the time, Dr. Richard Henderson. According to their lawsuits, Henderson pushed hard in emails to ER doctors to promote patient shuttling and authorized bonuses to doctors who transferred the most patients to other St. Rose facilities.</blockquote> Again, there was one telling incident: <blockquote class="tr_bq">Both lawsuits invoke the case of a gravely sick 16-day-old baby who arrived at St. Rose de Lima hospital, where a doctor determined the child needed pediatric critical care services at the Siena campus and requested a Henderson Fire Department unit for transport. But according to the lawsuits, Henderson ordered that Community Ambulance transport the child instead. He made the request despite longer wait times for Community Ambulance compared to Henderson Fire Department’s quicker response times of 10 minutes or less, according to the lawsuits.</blockquote> This article also described how money allegedly came before patient care: <blockquote class="tr_bq">The court papers include email exchanges between Henderson and the other doctors in the ER group. In a November 2010 email, he discusses ways to punish doctors who do fewer patient transfers and reward those who tally more transfers: '(T)op quarter $1,000, next quarter $500. Bottom quarter up or out talk at annual evaluation.' In other words, according to doctors who received the email, Henderson proposed that doctors would be divided into strata based on who recommended the most transfers, with the top group winning bonus money while those who performed the least would eventually be terminated. Transferring patients was such a priority that doctors were ordered to fill out non-transfer forms, explaining a decision not to transfer patients. In another email, Henderson expressed concern that doctors were too quick to rule out transfers: 'How do you weed out the people that call a runny nose ‘unstable for transfer’? The performance we (admin) are looking for are transfers. Suggestions?' A former member of the medical staff put it this way: There was constant pressure to transfer transfer transfer.'</blockquote> Note that Dignity Health was until recently called Catholic Healthcare West (look <a href="http://www.fiercehealthcare.com/story/catholic-healthcare-west-curbs-religious-ties-expand/2012-01-23">here</a>).  It still <a href="http://www.dignityhealth.org/Who_We_Are/Our_Mission_Vision_And_Values/index.htm">claims </a>the mission: <blockquote class="tr_bq"> We are committed to furthering the healing ministry of Jesus. We dedicate our resources to: <ul><li>Delivering compassionate, high-quality, affordable health services;</li><li>Serving and advocating for our sisters and brothers who are poor and disenfranchised; and</li><li>Partnering with others in the community to improve the quality of life.</li></ul></blockquote>Note also that under its former name, Catholic Healthcare West has received our previous attention, for accusations that it overcharged uninsured patients (look <a href="http://hcrenewal.blogspot.com/2005/10/lawsuit-alleges-catholic-healthcare.html">here</a>),  which it later settled (look <a href="http://hcrenewal.blogspot.com/2006/06/business-based-prescription-for-health.html">here</a>), and for settling a lawsuit claiming the system filed false Medicare claims (look <a href="http://hcrenewal.blogspot.com/2006/06/business-based-prescription-for-health.html">here</a>).  Summary  Just another day at the office....  Here are two more examples of how large health care organizations, in this case, large hospital systems, seem to put short-term revenue ahead of all other concerns, and in particular, ahead of patient welfare.  In both cases, the alleged practices seemed to make a mockery of the hospital systems high-flown mission or values statements.  In both cases, the hospital systems had records of past questionable behavior.  Yet many hospital systems have grown rich and powerful, and made their leaders personally rich, by trading on their reputation for community care and service, and marketing their warm and fuzzy missions and values.  Over the years, we have documented over and over how leadership of health care organizations have subverted their organizations' missions and the values of health care professionals.  Yet for a long time, many health care professionals just kept their noses to their grindstones, ignoring what was going on or suffered in silence.  Now at least a few have broken the silence.  Health care professionals and society at large needs to hold large health care organizations' leadership accountable for their missions, and push out leaders who put their own pocketbooks and their organizations' revenue ahead of patients' and the public's health.

Another Sign of Resistance? - Doctors Sue Hospital Systems Alleged to Put Money Ahead of Mission

In two recent instances, physician groups have filed lawsuits against hospital systems alleging that managers were directly putting revenue ...

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More Signs of Organized Resistance? - Proposed Legislation for More Hospital Leadership Accountability

This year we note the beginning of action against the power of large health care organizations lead by hired executives and cronies who seem to put their self-interest and self-enrichment ahead of patients' and the people's health.  In 2013 we noted no confidence votes by medical school faculty (<a href="http://hcrenewal.blogspot.com/2013/01/at-university-of-miami-faculty-without.html">here</a>), and university faculty (<a href="http://hcrenewal.blogspot.com/2013/03/nyu-faculty-vote-no-confidence-in-their.html">here</a>) against academic leaders perceived as putting their power and wealth ahead of core values, actions by a state governor (<a href="http://hcrenewal.blogspot.com/2013/02/another-reason-for-hope-concern-about.html">here</a>) and a big city mayor (<a href="http://hcrenewal.blogspot.com/2013/03/the-push-back-continues-mayor-of.html">here</a>) against local health care systems perceived as putting their executives' enrichment ahead of their services to patients, and a union labor action (<a href="http://hcrenewal.blogspot.com/2013/03/the-market-made-us-do-it-increasing-low.html">here</a>) against a health care system perceived as putting executive enrichment ahead of adequate health insurance for low level employees.  We have posted about numerous examples of hospital (and other health care organization) executives receiving <a href="http://hcrenewal.blogspot.com/search/label/executive%20compensation">compensation</a> far out of proportion to any realistic measure of their organizations' performance or positive effects on patients' or the public's health, and seemingly skimmed off the top of these organizations' budgets. Now Modern Healthcare has <a href="http://www.modernhealthcare.com/article/20130330/NEWS/303309961/calif-bill-challenges-tax-exemption-for-profitable-not-for-profit">reported</a> about a bill in the California legislature aimed at supposedly not for profit hospitals that put money ahead of patients: <blockquote class="tr_bq">Officials with the California Nurses Association say the proposed law—AB 975—is an attempt to bring more accountability to money-making hospitals that use tax exemptions to turn tidy profits and give hefty salaries to executives.</blockquote> Furthermore, <blockquote class="tr_bq"> Charles Idelson, spokesman for the California Nurses Association, said many profitable tax-exempt hospitals have lost the public's trust in recent years by making profits their top mission and paying salaries that allow executives to buy yachts while 'chipping away' at less-profitable services for women, children, the poor and mentally ill. 'What this bill does is, it really is an effort to increase transparency and make hospitals more accountable to the communities that they purport to serve,' Idelson said. 'Hospitals that are meeting their charity care obligation should welcome this process and understand that it is an opportunity to rebuild some of the public trust that they have lost through their other policies and practices.'</blockquote> Hospital Leaders Deploy Talking Points, Including Logical Fallacies  Perhaps predictably, hospital executives are not so happy: <blockquote class="tr_bq"><div id="storyGraf2">'This is less about good public policy than it is about politics,' said Michael Hunn, chief executive for southern California hospitals at Providence Health & Services, which has five hospitals in the state. 'I would hate to see a political agenda further harm those that are marginalized in society,' Hunn said. 'No matter what the legislative and political process is, we need to keep in mind the human beings that it is our responsibility to care for.'</div></blockquote><div id="storyGraf2"> </div><div id="storyGraf2">Note that Providence Health & Services is the ostensibly non-profit Catholic hospital system accused of putting paying executives multi-million dollar compensation ahead of giving low level employees minimally adequate health insurance as we posted <a href="http://hcrenewal.blogspot.com/2013/03/the-market-made-us-do-it-increasing-low.html">here</a>.  According to the <a href="http://www.guidestar.org/FinDocuments/2011/510/216/2011-510216586-08d12748-9.pdf">organization's latest 990 form</a>, Mr Hunn got $1,576,978 total compensation in 2011.  So one wonders which human beings he is feeling most responsible for?  Note also that the unsubstantiated allusion to a "political agenda," appears to be an <a href="http://www.nizkor.org/features/fallacies/appeal-to-ridicule.html">appeal to ridicule</a>, "a fallacy in which ridicule or mockery is substituted for evidence in an 'argument.'"  We have noted before how public relations flacks working for top executives of health care organizations seem to be very good at using such <a href="http://hcrenewal.blogspot.com/search/label/logical%20fallacies">logical fallacies</a>.  The argument Mr Hunn made seems essentially identical to an argument used against a lawsuit to end the tax exemption of a huge Pennsylvania hospital system that has apparently angered the communities which it is supposed to serve while paying its executives millions (look <a href="http://hcrenewal.blogspot.com/2013/03/the-push-back-continues-mayor-of.html">here</a>).</div><div id="storyGraf2"> </div><div id="storyGraf2">In addition, </div><div id="storyGraf2"> </div><div id="storyGraf2"> <blockquote class="tr_bq">Jan Emerson-Shea, spokesman for the California Hospital Association, said the bill's union backers were hiding their real agenda with 'red herring' issues like highly compensated executives and the superficial dissonance of not-for-profit organizations with healthy margins. ''Not-for-profit hospital' doesn't mean that you don't make a profit--all hospitals need to make a profit to keep the doors open,' Emerson-Shea said</blockquote></div><div id="storyGraf2"><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> </div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;">Of course, that last assertion is not true.  Non-profit organizations need to avoid sustaining repeated losses to keep their doors open, but do not need to make any surplus to do so.  And the issue was not whether hospitals make small surpluses, but whether they behave like for-profit corporations, especially in regard to how well they pay hired executives.  So while protesting "red herrings," one spokesperson for hospitals, presumably for hospitals' hired executives, seemed to be arguing that the only alternative to a very large surplus and a very large reserve is a deficit.  By ignoring another obvious alternative, having a small surplus and a small reserve, this argument thus is derived from the logical fallacy known as the <a href="http://www.nizkor.org/features/fallacies/false-dilemma.html">false dilemma</a>.  The spokesperson also seemed to be arguing that a deficit inevitably leads to bankruptcy.  Of course prolonged deficits might lead to bankruptcy, but a single deficit would not necessarily do so.  Thus we see the logical fallacy known as the <a href="http://www.nizkor.org/features/fallacies/slippery-slope.html">slippery slope</a>. Note further that the argument used by the California executive here was again essentially identical to an argument used against a lawsuit to end the tax exemption of a huge Pennsylvania hospital system that has apparently angered the communities which it is supposed to serve while paying its executives millions.  So it looks like once again the hired executives and their public relations operatives have their talking points in line.   (See this <a href="http://hcrenewal.blogspot.com/2013/03/the-push-back-continues-mayor-of.html">pos</a>t, from which our argument about the logical fallacies employed first in Pennsylvania came.)</div></div> Summary It really is beginning to look like there is some sort of trend, albeit still small, towards organized resistance against the hired executives and cronies who have made themselves rich from large health care organizations, putting their self-interest and enrichment apparently before taking care of patients and serving the public's health.  As we have said ad infinitum.... 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.

More Signs of Organized Resistance? - Proposed Legislation for More Hospital Leadership Accountability

This year we note the beginning of action against the power of large health care organizations lead by hired executives and cronies who seem...

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The Market Made Us Do It: Increasing Low Level Employees' Health Plan Deductible While Paying Executives Millions

A small <a href="http://kuow.org/post/striking-providence-hospital-workers-criticize-nonprofit-ceo-s-6-million-pay">news item </a>from the Seattle public radio station, KUOW, provides our latest example of the contrasts between how hired executives and "regular" employees are treated even at non-profit health care organizations, and between these organizations' actions and their stated missions.  Hospital Employees Strike Against Reductions in their Health Insurance The report was about a small job action going on at a single hospital.  Ironically, the strike is over the employees' own health insurance.  <blockquote class="tr_bq">Along with housekeepers, nursing assistants and other staff, surgical technologist Bob Wilson is a member of the Service Employees International Union local 1199NW. 'You see all the guys on TV that hand the doctor the scalpel? That’s me,' he said from the picket line on Friday. 'We’re out here because we think we deserve affordable health care.' The union and Providence St. Peter have been in contract negotiations since last summer. SEIU represents about one fourth of the hospital's employees. In January, employees' health insurance changed. The union says the higher deductibles and out of pocket expenses hurt for a union whose median member makes $31,000 a year. I’m forgoing care,' Wilson said. 'I’m not going and seeing a doctor unless I absolutely have to. A lot of people here at Providence are doing the same thing: They’re trying to save their money.'</blockquote> An<a href="http://www.huffingtonpost.com/mary-kay-henry/health-care-strike_b_2923621.html"> piece</a> on the Huffington Post further described the strikers' concerns about the new health plans' deductible amounts: <blockquote class="tr_bq">The employees' new $3,000 annual deductible for families is 10 percent of the average worker's pay and a sharp boost from the $750 yearly deductible in their previous health plan.</blockquote> Millions for Hired Managers  The first contrast is between the strikers' relatively low pay and modest insurance coverage with the compensation given to the hospital system's top managers.  Per KUOW, <blockquote class="tr_bq">Providence St. Peter is part of Providence Health & Services. The Catholic organization runs hospitals in five western states. Its headquarters is in Renton.</blockquote> Furthermore, <blockquote class="tr_bq">The union says Providence can afford to do better given what it pays its CEO, John Koster. The union just learned of Koster’s 2011 pay on Thursday after reading Providence’s latest filing with the IRS. Providence reported Koster’s compensation as $6.4 million, up from $3.1 million in 2010.</blockquote> Also, <blockquote class="tr_bq">Providence’s IRS filing reveals that 19 employees of the Catholic ministry earned at least $1 million in 2011. Eight of those employees earned at least $2 million. The top five executives earned more than $3 million each.</blockquote> Note further that the <a href="http://www.guidestar.org/FinDocuments/2011/510/216/2011-510216586-08d12748-9.pdf">organization's filing </a>acknowledged that some of its most highly compensated employees received "first-class or charter travel," "tax indemnification and gross-up payment[s]," discretionary spending account[s]," "housing allowance[s] or residence[s] for personal use," and "payments for business use of personal residence."  Serving the "Poor and Vulnerable?" The second contrast is between the hospital system's stated mission and how it treats different kinds of employees.  The <a href="http://www2.providence.org/phs/Pages/default.aspx">Providence Health & Services web-site</a> states: <blockquote class="tr_bq">Providence Health & Services is a not-for-profit Catholic health care ministry committed to providing for the needs of the communities it serves – especially for those who are poor and vulnerable. Providence Health & Services continues a tradition of caring that the Sisters of Providence began more than 155 years ago.</blockquote> It does not seem unreasonable to claim that low level employees making about $31,000 a year given a health plan with a $3,000 deductible are likely to become poor and vulnerable were they to be unlucky enough to sustain any major illness or injury. The Market Made Us Do It However, instead of considering its mission, Providence Health & Services spokespeople invoked the market as justification for its less than generous health plan versus its exceedingly generous pay of top managers.   In an email to KUOW, "Providence officials" described its contract offer and health plan as "competitive with other health care providers." Regarding its compensation practices, <blockquote class="tr_bq"> In an email, Providence spokeswoman Colleen Wadden said Providence sets its compensation the same way, whether it’s for housekeepers or executives: Base salaries are set at the middle of the market.</blockquote> Note that we have discussed the "market made me do it" justification for huge executive compensation from health care organizations as a talking point that is used again and again by public relations operatives and board members (e.g., look <a href="http://hcrenewal.blogspot.com/2013/02/non-profit-hospital-executive-salaries.html">here</a>).  Its use in this case, though, is particularly unfortunate.  Summary In this example, we have a huge health system (with over $3.6 billion in revenue in 2011) whose mission is to be a "Catholic health care ministry" that serves the "poor and vulnerable" also claiming that the almighty market means it must pay its executives more than one hundred times what it pays its lowliest employees, compensate them with first class travel, tax gross-ups, and so forth.  Moreover, presumably this dictatorial market also makes sure this ministry cannot provide its lowliest employees with health insurance that seems sufficient to prevent them from becoming poor and vulnerable should a severe illness strike.   Maybe Providence Health & Services executives and public relations people should read what one prominent Catholic theologian wrote (<a href="http://www.vatican.va/roman_curia/pontifical_councils/hlthwork/documents/XXVIIConferenzaPCPS.pdf">here</a>, and see <a href="http://hcrenewal.blogspot.com/2012/11/should-health-care-be-commodity.html">this post</a>) about the market in health care: <blockquote class="tr_bq">Hospitals and other facilities 'must rethink their particular role in order to avoid having health become a simple 'commodity,' subordinate to the laws of the market, and, therefore, a good reserved to a few, rather than a universal good to be guaranteed and defended,' </blockquote> That theologian was the current Pope Emeritus, Benedict XVI.  So this is a new, vivid example of how leaders of big health care organizations may preach about the mission while acting to put their own self-interest way ahead of that mission.  As we have said until blue in the face,... 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.

The Market Made Us Do It: Increasing Low Level Employees' Health Plan Deductible While Paying Executives Millions

A small news item from the Seattle public radio station, KUOW, provides our latest example of the contrasts between how hired executives and...

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The Push Back Continues: the Mayor of Pittsburgh Sues UPMC Claiming it is No "Public Charity"

There is another indication that push back against the power of large health care organizations is getting more significant. In February, 2013, we <a href="http://hcrenewal.blogspot.com/2013/02/another-reason-for-hope-concern-about.html">noted</a> that the Governor of the state of Connecticut publicly criticized lavish executive compensation at a small regional hospital system, compensation partially fueled by government funded health insurance payments, and in contrast to hospitals' claims that insufficient reimbursement was driving them to poverty.    The Suit Challenging the Charitable Status of UPMC Now the outgoing Mayor of Pittsburgh has launched a lawsuit challenging the status of huge, nominally non-profit health system UPMC as a public charity.  A summary of the arguments comes from an <a href="http://www.post-gazette.com/stories/local/neighborhoods-city/upmc-pittsburgh-stake-positions-for-court-fight-on-nonprofit-status-680393/">article</a> in the Pittsburgh Post-Gazette.  First, in the state of Pennsylvania, a Supreme Court description set out a test to determine if a particular organization is a public charity, the status the UPMC currently claims: <blockquote class="tr_bq">The Supreme Court's 1985 ruling involving the Hospital Utilization Project (or HUP) set out a test that requires that a purely public charity must fulfill all five of the test's points that it: advances a charitable purpose; donates or renders gratuitously a substantial portion of its services; benefits a substantial and indefinite class of persons who are legitimate subjects of charity; relieves the government of some of its burden; and operates entirely free from private profit motive. That ruling was reaffirmed by the Supreme Court in April in a case involving an Orthodox Jewish summer camp in Pike County that was found to not deserve its property tax exemption.</blockquote><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> The city's lawyer, E.J. Strassburger of Strassburge Mckenna Gutnick & Gefsky, argued that UPMC does not pass that test:</div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"><a href="http://www.post-gazette.com/stories/local/neighborhoods-city/upmc-pittsburgh-stake-positions-for-court-fight-on-nonprofit-status-680393/#ixzz2OezY8Lbc" style="color: #003399;"></a> </div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> <blockquote class="tr_bq">Mr. Strassburger wrote, first and most strongly, that 'it seems virtually certain that UPMC would fail to carry its burden of proving that it satisfies the fifth prong of the HUP test by 'operating entirely free from profit motive.'' He cited UPMC's nearly $1 billion surplus over the last two years and $3 billion in reserves as evidence of this, and that UPMC 'is carefully structuring its operations to prioritize profits-generation over charity.'</blockquote> Also,  <blockquote class="tr_bq">In addition, Mr. Strassburger wrote that UPMC does not 'advance a charitable purpose' in part because UPMC 'maintains an 'open admissions policy' in name only' and it does not make all of its health care available to everyone, regardless of ability to pay.</blockquote> Furthermore, <blockquote class="tr_bq">the review says UPMC fails to provide sufficient charity care, operates far-flung international operations that are losing money, and has closed operations in poor communities only to open or expand into richer ones. But it also cites what it terms 'excessive' benefits of UPMC executives, including CEO Jeffrey Romoff's $5.9 million salary; the fact that more than 20 employees are paid more than $1 million; UPMC's corporate jet; Mr. Romoff's 'lavish'  Downtown headquarters (which it claims includes a private chef, chauffeur and private dining room).</blockquote><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"></div></div> The Post-Gazette also sought the advice of experts, <blockquote class="tr_bq">Nicholas Cafardi, dean emeritus and professor at Duquesne University's Law School, said he believes the argument that UPMC is not free from a private profit motive is the strongest one in Mr. Strassburger's review, in part because of how far-flung UPMC has become. 'The more they do that gets them away from their core purpose, the more they open themselves up to the argument that they aren't doing charity,' he said. In addition, Mr. Cafardi said, UPMC's extensive advertising campaign --sometimes directly against rival Highmark -- makes it look like the organization is operating for profit. 'A lot of things like that make them look like they're operating for a private profit,' he said. 'You advertise because you're in competition. That's the private profit motive.' Gary M. Grobman, former head of the nonprofit Pennsylvania Jewish Coalition and author of 'The Pennsylvania Nonprofit Handbook,' said UPMC would have a fight on its hands. 'Based on what [Mr. Strassburger] has written, which may or may not be true, it seems some staff at the hospital are paid quite well and some decisions are made based on achieving as much revenue as possible instead of providing as much charity as possible,' he said. 'And if all of that is true, they don't deserve their not-for-profit status.'</blockquote> So the main issues brought up by the city are similar to issues we have raised about numerous nominally non-profit health care organizations.  We have shown that many particular organizations appear not to act like charities when they appear to put short-term revenue ahead of the organization's mission, a process sometimes called <a href="http://hcrenewal.blogspot.com/search/label/financialization">financialization</a>, and put <a href="http://hcrenewal.blogspot.com/search/label/executive%20compensation">lavish compensation of top hired managers </a>ahead of the organization's general financial well-being; and when their leadership appears to <a href="http://hcrenewal.blogspot.com/search/label/mission-hostile%20management">subvert the organization's mission</a>. The UPMC Response versus Anger in the Community Of course, UPMC public relations disagreed with the premises of the lawsuit: <blockquote class="tr_bq">'We think the 13-page memo that a local law firm wrote for the City is very weak and reaches its conclusions entirely based on opinion, not fact,' UPMC spokesman Paul Wood wrote. 'Rather than responding to partisan politics and blatant union pandering by the Mayor, UPMC looks forward to demonstrating in a court of law that we meet all five prongs of the HUP test and that our hospitals easily qualify for the tax-exempt status they unquestionably deserve. Interestingly, by hiring an outside law firm the City is prepared to waste millions of dollars of taxpayer funds on an unsuccessful attempt to pursue this case.'</blockquote> Note that the unsubstantiated allusions to "partisan politics" and "pandering" appear to be an <a href="http://www.nizkor.org/features/fallacies/appeal-to-ridicule.html">appeal to ridicule</a>, "a fallacy in which ridicule or mockery is substituted for evidence in an 'argument.'"  We have noted before how public relations flacks working for top executives of health care organizations seem to be very good at using such <a href="http://hcrenewal.blogspot.com/search/label/logical%20fallacies">logical fallacies</a>. Mr Wood also scoffed at the naive notion that having a $1 billion surplus and $3 billion in reserves means the organization operates like a business:   <blockquote class="tr_bq">Mr. Wood wrote that 'numerous people have tried to distort the meaning of that component to attain a political result.' 'It does not mean a nonprofit shouldn't strive to have a positive operating margin -- organizations that don't do that go out of business,' he added.</blockquote> Note that Mr Wood seems to be arguing that the only alternative to a very large surplus and a very large reserve is a deficit.  By ignoring another obvious alternative, having a small surplus and a small reserve, his argument thus is derived from the logical fallacy known as the <a href="http://www.nizkor.org/features/fallacies/false-dilemma.html">false dilemma</a>.  He also seemed to be arguing that a deficit inevitably leads to bankruptcy.  Of course prolonged deficits might lead to bankruptcy, but a single deficit would not necessarily do so.  Thus he also employed the logical fallacy known as the <a href="http://www.nizkor.org/features/fallacies/slippery-slope.html">slippery slope</a>.  On the other hand, a Post-Gazette columnist <a href="http://www.post-gazette.com/stories/opinion/sally-kalson/mayor-v-moneybags-upmc-could-be-beloved-if-it-put-patients-over-profits-and-perks-680646/">showed</a> the depth of community concern over the role of UPMC: <blockquote class="tr_bq">Someone in power is taking official action against the biggest corporate bully in town. Can I get an Amen? In fact, I can get many Amens, and that says a lot about the behavior of the region's dominant hospital system. Has there ever been a 'charity' so disliked and mistrusted by the people it's supposed to serve and the people it employs? You rarely hear anyone say 'I cannot stand CARE,' or 'I despise Doctors Without Borders.' But you hear it all the time about UPMC, notwithstanding the jobs it creates, the medical innovations it advances, the life-saving care its doctors deliver and its commitment of $100 million for the Pittsburgh Promise scholarship fund. With all that to its credit it should be beloved, but the opposite is true. Not helping matters is its corporate public relations, which is increasingly tone deaf. In an emailed response to the mayor's announcement, UPMC spokesman Paul Wood said the lawsuit 'appears to be based on the mistaken impression that a non-profit organization must conduct its affairs in a way that pleases certain labor unions, certain favored businesses, or particular political constituencies.' No, Mr. Wood. It's based on the correct impression that a nonprofit hospital's top priority should be the patients, not building a monopoly. And that a $10 billion system with a billion-dollar surplus and $2 billion to $3 billion in reserves should be taking care of many more indigent sick people than UPMC has been treating -- especially when it owns land that a Post-Gazette investigation valued at $1.6 billion, even as it enjoys a $20-million tax break every year, underwritten by the good citizens of Pittsburgh and Allegheny County. You can try blaming the SEIU organizing campaign or your arch-enemy, Highmark the insurer, or politics, but this is so much bigger than any of those things. And the public knows it.</blockquote> Keep in mind that the current discussion of UPMC in the media focuses on very recent events.  On Health Care Renewal, we have <a href="http://hcrenewal.blogspot.com/search/label/UPMC">posted frequently</a> over the last eight years about problems with the leadership of UPMC.  We <a href="http://hcrenewal.blogspot.com/2005/05/guilty-pleas-in-another-hospital.html">started </a>in 2005 with their inability to prevent a fraud  perpetrated by some UPMC middle managers. In 2008, we <a href="http://hcrenewal.blogspot.com/2008/11/questions-of-benefits-vs-risks-for-upmc.html">discussed </a>the apparent mismanagement of the highly touted UPMC liver transplant program.    <a href="http://hcrenewal.blogspot.com/2009/02/healthcare-it-blamed-in-patient-death.html">Starting in 2009</a>, and continuing <a href="http://hcrenewal.blogspot.com/2013/03/when-human-error-causes-ehr-downtime.html">through 2013</a>, InformaticsMD chronicled how the leadership has presided over health care information technology so problematic that it has been <a href="http://hcrenewal.blogspot.com/2009/02/healthcare-it-blamed-in-patient-death.html">blamed for patient deaths</a>.  In 2009, we<a href="http://hcrenewal.blogspot.com/2009/09/upmc-fouls-another-one-off.html"> noted</a> sanctions against UPMC's public relations.   In 2010, we <a href="http://hcrenewal.blogspot.com/2010/05/at-upmc-dealings-with-board-members.html">noted</a> conflicts of interest and apparent self-dealing and nepotism affecting the UPMC board of trustees and UPMC executives.  Summary For at least a generation, health care leaders and health policy makers have been pushing for consolidation of health care organizations in the name of efficiency.  We now have a health care system dominated by fewer, larger organizations, and whatever efficiencies have been produced mainly seem to have benefited organizational insiders.  Maybe now, though, some are beginning to remember that monopolists - starting at least with John D Rockefeller, I believe - have historically touted their ability to improve efficiency and rationality.  The results, however, have been higher prices and poorer results for everyone else.  Hospitals and hospital systems have been particularly good at getting away with the efficiency argument despite the fact that health care prices in the US have been soaring ever since the "vertical integration" craze in the early 1990s.  I believe such organizations have been getting away with this nonsense because of their revered status within their communities.  Now, however, as huge hospital systems drive up prices and make their top executives rich, maybe we will remember Theodore Roosevelt's warnings about trusts and malefactors of great wealth. There is no good evidence that large hospitals and even larger hospital systems take better care of patients, or provide better teaching and research.  Not only should we question whether huge hospital systems like UPMC are public charities, we should wonder how we ever let them get so big, and proceed to break up these new sorts of "trusts."

The Push Back Continues: the Mayor of Pittsburgh Sues UPMC Claiming it is No "Public Charity"

There is another indication that push back against the power of large health care organizations is getting more significant. In February, 20...

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Boulder Community Hospital computer records back on line - but something does not add up

This post is in followup to my March 20, 2013 post "<a href="http://hcrenewal.blogspot.com/2013/03/boulder-community-hospital-computer.html" target="_blank">Boulder Community Hospital computer system crash: Either you're in control of your information systems, or they're in control of you</a>". At a March 24, 2013 Denver Post article "<a href="http://www.denverpost.com/news/ci_22858267/boulder-community-hospital-computer-records-back-line" target="_blank">Boulder Community Hospital computer records back on line</a>" the following statements are made: <blockquote class="tr_bq"> The computer system that Boulder Community Hospital uses to manage patient records, which had been down for almost two weeks, is now up and running again, hospital officials said Saturday. Meditech, the system used by the hospital to manage patient records, went down March 12 and affected the hospital, its Foothills campus, eight laboratories and six imaging centers. It was put back into full service at about 3 p.m. Friday, according to hospital spokesman Rich Sheehan. Sheehan said an investigation showed the outage was a result of a malfunction in one of the main computer servers ... the hospital has replaced the hard drives for the server that failed and are inspecting the remaining servers ... [the failure] resulted in the system being unable to access patient information. The malfunction affected both the primary server and a backup server kept off-site.</blockquote> <div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> </div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;">A hard drive failure led to a two-week outage of an entire EHR system and its offsite backup server?  A mission-critical system in a hospital is so fragile that a hard drive failure caused a two week outage? If so, that itself shows, at best, poor overall system design with regard to reliability and redundancy (any server worth its salt has hard drives in a failure-tolerant configuration e.g., <a href="http://en.wikipedia.org/wiki/RAID" target="_blank">RAID</a>), but also is not quite credible on its face.  A remote server should not be taken down by the failure of a local server.  I suspect the failure was more than just a hard drive failure, including software bugs or configuration errors, mass hardware and/or network failure, or even sabotage.</div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> </div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;">The following statement also lacks believability on its face:</div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> </div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"><blockquote class="tr_bq">... All patient data was recovered except for an eight-hour period the day of the outage. Sheehan said the hospital had to re-create, re-enter and validate the patient information for that eight-hour period before the system could resume normal operations.</blockquote><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> </div></div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;">If an information system is down for two weeks, there's two weeks worth of data lost.</div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> </div><blockquote class="tr_bq"><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;">... Sheehan said the hospital has replaced the hard drives for the server that failed and are inspecting the remaining servers. The hospital is also now doing data backups every four hours as opposed to every six hours, and is planning on doing hourly backups by the end of the week.</div></blockquote><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> Replacing a failed hard drive is an inadequate precaution.  A 'system redundancy makeover' seems in order for when the next hard drive fails.   Hard drives have a very well known MTBF (<a href="http://en.wikipedia.org/wiki/Mean_time_between_failures" target="_blank">mean time between failure</a>) and annual failure rate.  (The very Seagate ST3750528AS hard drive in the PC I am typing this blog post on has an Annualized Failure Rate of 0.34%, per the manufacturer's publicly-available literature.)  <blockquote class="tr_bq">... An independent consulting firm also has been hired to conduct an investigation. The hospital said it expects a report within a few weeks. </blockquote> As other organizations are using Meditech products, Joint Commission Safety Standards (as I wrote in a 2009 JAMA letter to the editor "Health Care Information Technology, Hospital Responsibilities, and Joint Commission Standards" available <a href="http://jama.jamanetwork.com/article.aspx?articleid=184302" target="_blank">at this link</a>) call for sharing the results of that report with other organizations.  I had discussed this letter numerous times with senior Joint Commission leadership.</div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> Will sharing of the independent consultant firm's report happen?  Probably not. However, rest assured the Plaintiff's attorneys of Colorado will request it in malpractice suits that arose during the time period of outage. </div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> </div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;">-- SS</div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> </div>

Boulder Community Hospital computer records back on line - but something does not add up

This post is in followup to my March 20, 2013 post " Boulder Community Hospital computer system crash: Either you're in control of...

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