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The Mystery of the Northwestern Settlement - the Plot Thickens

A few weeks ago, we wrote about this curious case. How the Case Stood Northwester University, a prominent research university, settled charges it had mismanaged US government grant funds.  While it did not admit guilt, and specifically exonerated the faculty leader on whose watch the mismanagement allegedly occurred, the settlement and most of its coverage strongly suggested wrongdoing by the faculty member in charge of the scientific conduct of the grants, Professor Charles L Bennett.  While the alleged financial mismanagement was of funds in the mere millions, a relatively small amount as federal fraud cases go, and there were no allegations of anything harmful to patients, or of any research misconduct, the investigation involved multiple federal agencies, including the Federal Bureau of Investigation.  The settlement of charges of financial mismanagement, not research misconduct,  included unfavorable references to Dr Bennett, who as Principal Investigator should have been in charge of the scientific conduct of the grants, but not of their financial management.  Much bigger cases of alleged fraud, involving hundreds of millions of dollars, and potentially harm to patients due to overuse of dangerous drugs or devices, have not involved the FBI, and not included any disparagement of individuals who could have authorized, directed, or implemented the alleged misbehavior. None of the initial press coverage noted the peculiarity of these aspects of the case, nor provided any explanations for them.       Days later, the Cancer Letter published a long article in this case, which is now <a href="http://www.cancerletter.com/articles/20130809">available without a subscription</a>.  This article includes even more curiosities that raise even more questions. Dr Bennett Found Irregularities, Sangoleye Pleaded Guilty, Nobody Noticed In the original media coverage, Dr Bennett was accused based on complaints by a whistle blower.  For example, in an <a href="http://www.suntimes.com/news/21623742-418/northwestern-to-pay-nearly-3-million-to-settle-cancer-research-fraud-suit.html">article</a> in the Chicago Sun-Times, <blockquote class="tr_bq"> A whistleblower suit filed under seal in 2009 by former Lurie Cancer Center worker Melissa Theis first alleged the wrongdoing by Bennett. </blockquote> However, the story in the Cancer Letter suggests Dr Bennett had tried to blow the whistle himself.  First, <blockquote class="tr_bq">Bennett said the allegations that he spent NCI money on dinners and vacations were inaccurate. He said he had encountered administrative irregularities at Northwestern and reported them to compliance officials.</blockquote> In addition, 'I reported administrative issues by Northwestern University with my grants to the university compliance officer in 2006, just prior to my long-term bout with cancer that was diagnosed there,' Bennett said to The Cancer Letter. 'I have never had a single administrative discussion about the matter with anyone.' Specifically, <blockquote class="tr_bq">Bennett’s statement about lax administration of grants at Northwestern appears to be bolstered by an aspect of the scandal that has escaped media attention even as multiple news stories in Chicago and national outlets focused on the settlement. The Cancer Letter has learned that days before the settlement with Northwestern was announced, a former research administrator at the Division of Hematology and Oncology at the university’s medical school pled guilty to felony charges stemming from administration of Bennett’s NCI grants. According to documents filed in the U.S. District Court for the Northern District of Illinois, Feyifunmi Sangoleye, the rogue administrator, set up an elaborate scheme to divert $86,000 to her personal accounts.The proceeds financed a wedding and a honeymoon in Europe, court documents say.</blockquote> The article later included more detail, <blockquote class="tr_bq">Bennett said that he saw irregularities in the actions of the research administrator who handled his Research for Adverse Drug Events and Reports and that he has alerted the administration of the Division of Hematology and Oncology. That same administrator, Sangoleye, pled guilty to larceny and theft, admitting to having embezzled NCI funds from Bennett’s program into a checking account created in the name of a fictitious contractor. According to court documents, Sangoleye created a vendor code for a fictitious entity she called ATSDATA. Then she created 10 false invoices from that entity and paid them with Northwestern’s checks. The checks were sent to the ATSDATA post office box, which Sangoleye had rented, and placed into a bank account she created. Between June 29, 2007, and July 29, 2008, ATSDATA received eight Northwestern checks that added up to $86,000. 'Sangoleye converted the proceeds of the ATSDATA checks to her own use and to the use of another' individual, the plea agreement states. 'I knew nothing about ATSDATA,' Bennett said in response to questions from The Cancer Letter. 'The administrator told me that ATSDATA was the billing address for the University of Illinois Survey Research Laboratory, a formal subcontractor. I did not know that the Survey Research Lab had any particular billing name. I have documented this to Jonathan Licht [chief of Northwestern’s Division of Hematology/Oncology] in 2008.'</blockquote>So in summary, Dr Bennett, who was responsible for the scientific integrity but not the financial management of his grants, reported financial irregularities to Northwestern managers.  These reports lead to a guilty plea by a former Northwestern manager who admitted embezzling money.  However, this guilty plea was anechoic.  It did not appear in any media accounts.  The settlement negotiated between Northwestern University and the government did not acknowledge it.    According to the Cancer Letter, Northwestern managers did not want to discuss the crimes of Sangoleye when the Cancer Letter brought it up, <blockquote class="tr_bq"> Northwestern officials declined to discuss Sangoleye, saying only that she had been employed by the university as a research administrator from February 2006 through August 2009.</blockquote> The Cancer Letter suggested why the university might have had an interest in keeping the Sangoleye crimes and its settlement of the allegations about Dr Bennett apart. <blockquote class="tr_bq">Legal experts say that the final plea agreement between Sangoleye and the government would have weakened Northwestern’s position in negotiating the settlement. The final version of the plea agreement with Sangoleye was filed on July 25, just five days prior to the announcement of the government’s $3 million settlement with Northwestern.</blockquote>Northwestern University might have had an interest in keeping the Sangoleye criminal case and its civil case separate.  However, the government did not obviously have such an interest. Why did the government not address Sangoleye's crimes in the settlement it made with Northwestern University? The Ambiguities of the Named Whistle Blower's Work As we noted in our <a href="http://hcrenewal.blogspot.com/2013/08/the-mystery-of-northwestern-settlement.html">earlier post</a> on this case, the role of the named whistle blower, Melissa Theis, was unclear, especially vis a vis Dr Bennett.  Although Dr Bennett as Principal Investigator of some of the grants involved ought not to have had any direct control of the financial management of the grants, Ms Theis apparently worked in some financial management capacity.  Yet Ms Theis apparently blew the whistle on the university, and on Dr Bennett for alleged financial, not research mismanagement. The Cancer Letter raised new doubts about Ms Theis' role, <blockquote class="tr_bq">Several observers were surprised to see that the relator, Theis, was never employed by the cancer center. According to her 2009 suit, Theis came to Northwestern as a temp two years earlier, in 2007, serving as a purchasing coordinator for the Division of Hematology and Oncology. The division, which is separate from the cancer center, administered all but one of the grants in question, the NIH database shows. After a year, in 2008, Theis was hired as a fulltime employee of the Northwestern Medical Faculty Foundation. The foundation, which runs the medical practice, is also separate from the cancer center. She left Northwestern in October 2008. 'Theis specifically noted that invoices were submitted for consultants and services that were never included in the initial grant budget,' the complaint states. 'Invoices were submitted for consultants and services that were significantly in excess of the amount budgeted for the grant, and many of the consultants and vendors failed to provide detailed information about the actual services rendered.'</blockquote> Again, in the usual practice, such invoices might have been requested by a grant investigator, but the requests would have to have been vetted and then the invoices would have to have been generated by managers, not scientists or physicians.  Who really administered these grants, and why did the settlement minimize the responsibility of university managers while apparently blaming scientists for bad financial management? Dr Bennett's Supporters and Enemies In our <a href="http://hcrenewal.blogspot.com/2013/08/the-mystery-of-northwestern-settlement.html">first post</a> on this case, we had contrasted how the settlement and media coverage of it appeared to heap blame upon Dr Bennett alone, while not attaching any responsibility to his academic supervisor on one hand, or any university managers on the other.  We noted that Dr Bennett, after having been a consultant for Amgen,  had become known as a "pharmascold," a skeptic of pharmaceutical industry practices, and the author of research that suggested one Amgen product was more hazardous than had been previously thought.  His supervisor, on the other hand, had multiple ongoing financial ties to the pharmaceutical industry. The Cancer Letter suggested others were trying to connect related dots. First, in general, <blockquote class="tr_bq">Making enemies is an exhaustively studied side effect of probing the safety of cancer drugs, and during much of the period in question, Bennett was producing more than his standard quota of foes.</blockquote> In particular, <blockquote class="tr_bq">Now, researchers who worked with Bennett on the ESA issues are puzzled by his legal problems. 'Charlie has been an important voice in raising concerns regarding the use of erythropoietin in patients with cancer,' said Anthony Blau, co-director, Institute for Stem Cell and Regenerative Medicine at the University of Washington. 'In particular, his 2008 metaanalysis, published in JAMA, heightened awareness of the issue and helped to reduce the indiscriminate use of erythropoietin in cancer patients.' Blau is a co-author on the <a href="http://jama.jamanetwork.com/article.aspx?articleid=181533">JAMA paper</a> [as noted in our <a href="http://hcrenewal.blogspot.com/2013/08/the-mystery-of-northwestern-settlement.html">previous post</a>.] 'This doesn’t really fit in his picture,' said Michael Henke, a radiation oncologist in Freiburg, Germany, who was the first to stumble across potential problems stemming from overuse of ESAs. 'You might recall, we got in contact in 2003 when our group communicated potential dismal effects of erythropoietin on cancer patients—a story not really appreciated these days because of economic interests,'  Henke said referring to the pioneering paper in The Lancet. Henke was the senior author on the JAMA paper. 'However, Dr. Bennett and we consistently gathered additional data that were finally reported as a meta-analysis in 2008. Consequently, erythropoietin prescriptions dramatically decreased, eventually prolonging or even saving lives of cancer patients.' 'While collaborating, I did learn him as extraordinarily active, alert-eyed colleague who strictly adhered to serious scientific conduct and to the wellbeing of patients.' Henke confesses to wondering whether the many powerful enemies Bennett made in the pharmaceutical and biotechnology industries have struck back. 'We shouldn’t feed paranoia,' Henke said.  'However, given the exclusively positive experience when collaborating with his group, makes me wonder whether this litigation might follow some very particular other issues.'</blockquote> Did Dr Bennett's transformation from a consultant to to a fierce scientific skeptic of the pharmaceutical industry influence the handling of this case, and its media coverage? Summary The coverage by the Cancer Letter underscores our previous concerns, so I will simply repeat the summary from my last post. The settlement by Northwestern University, which was mainly about allegations made against Dr Charles L Bennett, who was not a party to the settlement, was very different that the vast majority of the <a href="http://hcrenewal.blogspot.com/search/label/legal%20settlements">march of legal settlements</a> whose continuation we have frequently discussed. The settlement and its media coverage raised important questions whose answers would be important to the assessment of  our current regulatory and legal response to misbehavior by and within large health care organizations.  Health Care Renewal is about raising such issues by commenting on public information, media reports, and research.  I hope those with capacity to investigate will consider these questions.  Inquiring minds want to know. <div class="separator" style="clear: both; text-align: center;"></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhTN3CIxmIM6GicEB51I-Ob3VrzUm8FD4oH4c689NVpFCg9z4d7CjFHCs-xail6Kkz-rNhZ1TwUo05OfwWOZClh2E-YeFEGZin13pIgwRIAyHLGtb2uOYm3pXbLJoImDMJf99kwTf2E3Rn7/s1600/SherlockHolmes(RMP082013).jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="196" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhTN3CIxmIM6GicEB51I-Ob3VrzUm8FD4oH4c689NVpFCg9z4d7CjFHCs-xail6Kkz-rNhZ1TwUo05OfwWOZClh2E-YeFEGZin13pIgwRIAyHLGtb2uOYm3pXbLJoImDMJf99kwTf2E3Rn7/s200/SherlockHolmes(RMP082013).jpg" width="200" /></a></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiaaBoxJHP1a-4vKQJ-K2QCLeGONuSncMwrZHXm7QlxGpToMSQWfUA8Ynap9x8URrARsYJvEwIE4wUL38ETuPSGQAODJIraz8M9hHw7lu_7KrAzT5KfEXQDC6dkNt7kKVIZcW3iFPoSAwIc/s1600/SherlockHolmes(RMP082013).jpg" imageanchor="1"> </a></div>ADDENDUM (27 August, 2013) - See also <a href="http://brodyhooked.blogspot.com/2013/08/the-fate-of-scientist-who-reveals-drug.html">comments</a> by Dr Howard Brody on the Hooked: Ethics, Medicine and Pharma blog. Roy M. Poses MD in Health Care Renewal

The Mystery of the Northwestern Settlement - the Plot Thickens

A few weeks ago, we wrote about this curious case. How the Case Stood Northwester University, a prominent research university, settled charg...

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Should We Cry for Non-Profit Hospital System CEOs Paid Less than For-Profit CEOs?

Two recent articles (<a href="http://www.modernhealthcare.com/article/20130810/MAGAZINE/308109991">here</a> and <a href="http://www.modernhealthcare.com/article/20130810/MAGAZINE/308109954/pay-for-value">here</a>) in Modern Healthcare providing an update on the compensation of CEOs of non-profit hospital systems raised new questions. The CEOs' Compensation <a href="http://www.modernhealthcare.com/article/20130810/MAGAZINE/308109991">The first article</a> documented the rich compensation of the top paid CEOs of non-profit US hospital systems.  A summary of their total compensation: -  Donald Faulk (now retired), Central Georgia Health System - $8 million -  George Halvorson, Kaiser Permanente - $7.9 million -  Jeffrey Romoff, UPMC - $6.1 million  -  Pat Fry, Sutter Health - $5.2 million -  Gregory Beier (retired), Novant Health  - $5.1 million -  Dr Steve Safyer, Montefiore Medical Center - $5 million -  David Bernd, Sentara - $4.6 million The Usual Talking Points The articles in combination provided the usual talking points as justification for this compensation.   We have noted that nearly every attempt made to defend the outsize compensation given hospital and health system executives involves the same talking points.   We first listed the talking points <a href="http://hcrenewal.blogspot.com/2011/09/talking-points-sans-original-thought-to.html">here</a>, and then provided additional examples of their use <a href="http://hcrenewal.blogspot.com/2011/09/more-repeats-of-talking-points.html">here</a>, <a href="http://hcrenewal.blogspot.com/2012/03/example-of-how-complex-takes-control.html">here</a> <a href="http://hcrenewal.blogspot.com/2012/12/health-care-hired-managers-not-playing.html">here,</a> <a href="http://hcrenewal.blogspot.com/2013/05/executive-compensation-as-legal.html">here</a> and <a href="http://hcrenewal.blogspot.com/2013/06/no-blues-but-lots-of-green-for-st-louis.html">here</a>.   They are: - We have to pay competitive rates - We have to pay enough to retain at least competent executives, given how hard it is to be an executive - Our executives are not merely competitive, but brilliant. So true to form, we found in the Modern Healthcare articles these justifications of the executives multimillion dollar pay. Competition In general, <blockquote class="tr_bq">In interviews, health system directors and executives at the systems where these top-paid executives work defended the compensation packages as necessary to remain competitive....</blockquote> Re UPMC <blockquote class="tr_bq">UPMC spokeswoman Susan Manko described his [that is, Romoff's] pay as competitive for an institution of UPMC's size and complexity.  </blockquote><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> Re Novant</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">Novant spokeswoman Kati Everett said Novant follows IRS rules that call for pay to be compared against the market.... </blockquote><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> Re Sutter</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;">[Sutter Health board of trustees member and chair of the compensation committee Andy] Pansini said the Sutter board set the CEO's salary halfway between the lowest and the highest amount he could earn elsewhere.</div></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;">Also,</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;">He said Sutter's board relies heavily on consultants to compare Fry's compensation against the market. </div></blockquote><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"><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;"></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;"></div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> </div></div></div> Retention  Re Sentara <blockquote class="tr_bq">'Mr Bernd's compensation takes into account his 40-year tenure of leadership at Sentara, with nearly 20 serving as the organization's top executives.</blockquote> Brilliance Re Novant <blockquote class="tr_bq">[Novant spokeswoman Kati Everett said] 'At Novant Health, we recognize (that) our responsibility to serve our community depends on the caliber of talent in our workforce, our leadership group....'</blockquote> Re Sentara <blockquote class="tr_bq">[CEO Bernd's] 'pay reflects his experience, expertise....'</blockquote> Re Sutter <blockquote class="tr_bq">[Pansini] defended [CEO] Fry's compensation as reasonable and necessary to meet Sutter's strategic goals by hiring a skilled executive team.  </blockquote> Explicit Comparison to For-Profit Corporations The articles also introduced one new element.  Some defenders of non-profit hospital CEO compensation explicitly argued that should take into account compensation of for-profit CEOs. This argument was made by "Jill Horwitz, a law professor at the University of California at Los Angeles,' who had "defended paying not-for-profit healthcare executives market rates." <blockquote class="tr_bq">She also noted that not-for-profit systems have to compete with the for-profit sector for top talent. 'This idea that people should be donating their labor is a misunderstanding of charity.'</blockquote> Defenders of CEO compensation at specific health systems also made similar points.  For example, a Kaiser Permanente spokesman explicitly compared his CEO's pay to that given to CEOs of for-profit health plans, <blockquote class="tr_bq">Kaiser spokesman Won Ha, in a written statement, said Halvorson's pay falls short of the average compensation of $14 million, not including option exercises, earned by CEOs of the 12 largest for-profit healthcare systems, which had average 2011 revenue of $37 billion. 'Compensation paid to senior management is substantially less than that of many for-profit health (plans),...'</blockquote> Also, re Sutter, <blockquote class="tr_bq">[board committee chair Pansini noted that when comparing his CEO's pay against the market] That comparison includes other executives of similar not-for-profit health systems, and to a lesser degree, of for-profit systems.</blockquote>  Summary: An Extension, but Still no Clear Justification for the Talking Points The talking points to explain executive compensation in health care are used again and again.  They never seem to be publicly challenged.  However, they should raise some obvious questions. The argument about competition raises several obvious questions.  Why should the top hired managers' pay be only compared to other top managers, and not explicitly to other employees?  Even if the comparison is restricted to other top managers, how can they be used for those at the top of the pay scale for non-profit hospital system CEOs?  How these CEOs' compensation could be dubbed merely competitive, much less "halfway between the lowest and highest amount he could earn elsewhere," is not clear. The retention argument begs the questions of whether any of these managers is really likely to leave, whether they really would be attractive to other organizations at the same or even higher pay, and whether it would really be difficult to find replacements. The brilliance argument raises the question of how brilliance is defined.  Given that it is almost unheard of for a fan of current compensation practices to dub any top manager anything less than brilliant, the obvious question is how can CEOs, like the children of Lake Woebegone, all be above average?   Furthermore, the talking points seem to be in the process of extension, which should raise even more questions. Defenders of CEO pay, usually "spokespeople" or members of boards of trustees, often cite the need for "competitive" pay.  They usually are not clear about with whom they are competing.  Now it seems to be more popular to say that non-profit health care organizations are competing with for-profit corporations, despite the ostensible difference in their natures.  Non-profits are supposed to have a charitable nature and function, to have some sort of mission that serves the greater good.  To support that apparently benevolent purpose, in the US they are exempt from certain taxes, are are able to receive charitable contributions which in turn earn deductions for their givers.  For-profit corporations are in business ostensibly for their owners.  In addition, by now asserting that the non-profit CEOs should be likened to the CEOs of for-profit corporations, the expanded talking points highlight questions that have been raised about how these hired managers are paid. We have previously discussed some pithy critiques of American practices of executive compensation (look <a href="http://hcrenewal.blogspot.com/2013/05/executive-compensation-as-legal.html">here</a> and <a href="http://hcrenewal.blogspot.com/2012/10/more-reasons-to-doubt-how-ceos-are.html">here</a>.) CEO compensation as a multiple of the pay of the average worker has risen 10-fold since the 1960s (see <a href="http://stateofworkingamerica.org/chart/swa-wages-figure-4-ceo-worker-compensation/">this chart</a>). As a consequence, the top 1% and 0.1% of the US income distribution is increasingly and disproportionately made up of executives, that is hired managers, (see the <a href="http://www.epi.org/publication/pay-corporate-executives-financial-professionals/">recent article</a> by Bivens and Mishel[1] for a summary).  Per the article, the income of top corporate executives has grown even faster than that of other members of the top 0.1%.  It seems evident that these rates of growth cannot be explained by increases in the financial performance of their companies.  Furthermore, while it appears that compensation of US health care corporate executives has grown as fast as their brethren, there is no data that US health care has improved at anything like a similar rate.  It may have hardly improved at all.  A recent JAMA article is just the latest example of studies showing that US health is lagging that of other developed countries, although the US spends far more per capita on health care.(2)      Furthermore, there is more and more criticism about how the compensation of top hired managers is set.  Steve Denning's <a href="http://www.forbes.com/sites/stevedenning/2012/02/22/hbr-blows-the-lid-off-c-suite-over-compensation/">blog  post</a> in Forbes summarized a 2012 Harvard Business Review article(3) suggesting that "market-based" compensation schemes mistake top managers for innovative entrepreneurs, when they are mainly simply "bureaucrats"; reward managers for luck rather than skill; and is "inversely related to shareholder returns." Finally, Elson and Ferrere <a href="http://www.thefreelibrary.com/What+is+a+CEO+worth%3F+Don%27t+look+to+peers%3A+peer+group+comparisons+skew...-a0272184752">critiqued </a>the mechanics of how compensation is set.  In particular, while boards of directors may attend to data on compensation of CEOs at other, supposedly comparable corporations, they almost always "choose a package that is in the 50th, 75th, or 90th percentile of their target peer group.  Targeting levels below the 50th percentile is rarely, if ever done."  Thus, boards nearly always act as if their CEO is above average, while by definition, most CEOs cannot be above average.  Why do boards commit this folly?  The authors postulated that suggesting the CEO is less than average "may raise concerns over the executive's position within the company...."  Perhaps boards also fear that labeling the CEO below average may be an admission of below average governance.  Desai suggested that the perverse incentives created by current schemes to compensate managers were a major cause of the 2008 financial meltdown.  As Dennings wrote, <blockquote class="tr_bq">despite the constraints to change, the overcompensation of the C-suite and the financial sector is not sustainable. It causes serious misallocation of capital and talent, repeated governance crises, rising income inequality and an overall decline of the US economy. It obviously cannot continue, if only because, as Margaret Thatcher used to say in a different context, 'Sooner or later you run out of other people’s money'</blockquote> Clearly, in the health care context, the results could be even worse.  Perverse executive compensation could not only lead to misallocation of capital and talent in health care, it could lead to bad health care decisions that could harm patients' and the public's health.  However, there seems to be almost no discussion of, much less research about, much less policy changes addressing perverse incentives for health care managers and their likely ruinously bad effects on people and patients. Such discussion and research is a prerequisite to true health care reform, which would require such policy changes. Meanwhile, I hope at least the next time huge compensation of some health care managers is announced, someone asks the next set of questions after the usual talking points are made.   Roy M. Poses MD in Health Care Renewal References 1.  Bivens J, Mishel L. The pay of corporate executives and financial professionals as evidence of rents in top 1 percent incomes.  J Econ Perspect 2013; 27: 57-78. 2. US Burden of Disease Collaborative.  The state of US health, 1990-2010 burden of diseases, injuries, and risk factors.  JAMA 2013; 310: 591-608.  Link <a href="http://jama.jamanetwork.com/article.aspx?articleid=1710486">here</a>. 3. Desai M. The incentive bubble.  Harvard Business Review, March 2012.

Should We Cry for Non-Profit Hospital System CEOs Paid Less than For-Profit CEOs?

Two recent articles ( here and here ) in Modern Healthcare providing an update on the compensation of CEOs of non-profit hospital systems r...

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The Door Revolves Again: the Former White House Health Reform Czar Goes to Private Equity Firm Looking for Investments Created by Health Reform

Round and round it goes, and when it will stop, nobody knows. Background: The Former Health Care Reform Czar's Past Career It appears that Ms Nancy DeParle, formerly a White House Deputy Chief of Staff, and before then, from 2009 - 2011, the Director of the White House Office of Health Care Reform, has gone through the revolving door again. We raised concerns about Ms DeParle's strong ties to the commercial side of health care at the time she was put in charge of getting health care reform legislation passed (look <a href="http://hcrenewal.blogspot.com/2009/03/meet-new-boss-same-as-old-boss-health.html">here</a>.)  Specifically, her background for shepherding this legislation included being on the boards of directors of three large health care corporations, Boston Scientific, a medical device company, Cerner, a vendor of health care information technology, and Medco, and pharmacy benefits company.   She had previously been on the boards of DaVita, a commercial kidney dialysis care delivery company, and Triad Hospitals, a for-profit hospital system.  At the time, I wondered whether this set of relationships with multiple  health care corporations would lead to "health care reform" that was more about the interests of big health care corporations and their top executives than about us, the people. As it turned out, there is a case to be made that a lot of the health care reform legislation that eventually passed was in the interests of big corporations.  It enabled for-profit <a href="http://hcrenewal.blogspot.com/search/label/health%20insurance">health care insurance</a> companies to continue to dominate the insurance market, and created no "public option" that could have competed with them.  It fostered the development of "accountable care organizations," (ACOs), and thus fostered a wave of <a href="http://hcrenewal.blogspot.com/search/label/concentration%20of%20power">consolidation </a>in the hospital market favoring ever larger hospital systems, including for-profit ones, and the rise of the <a href="http://hcrenewal.blogspot.com/search/label/corporate%20physician">corporate physician</a>.  It pushed the use of commercial health care information technology without requiring these devices' effects on patients to be rigorously assessed, and with no obvious concerns about the <a href="http://hcrenewal.blogspot.com/search/label/healthcare%20IT%20dangers">risks</a> posed by these systems.  It did nothing to stop concentration of power in health care, nothing to support small private practices, small non-profit hospitals, or non-profit health insurance.  While it required more disclosure of <a href="http://hcrenewal.blogspot.com/search/label/conflicts%20of%20interest">conflicts of interest</a> affecting physicians, it did nothing to reduce them, or to combat <a href="http://hcrenewal.blogspot.com/search/label/deception">deception</a> in health care <a href="http://hcrenewal.blogspot.com/search/label/marketing">marketing</a> and <a href="http://hcrenewal.blogspot.com/search/label/public%20relations">public relations</a>, or to reduce <a href="http://hcrenewal.blogspot.com/search/label/manipulating%20clinical%20research">manipulation</a> or <a href="http://hcrenewal.blogspot.com/search/label/suppression%20of%20medical%20research">suppression</a> of clinical research to serve commercial vested interests, or even to combat blatant <a href="http://hcrenewal.blogspot.com/search/label/health%20care%20corruption">health care corruption</a>. A Brief Stop at a Think Tank At any event, Ms DeParle left the government early this year.  She did not immediately go back to the commercial world, however.  Instead, as <a href="http://thehill.com/blogs/blog-briefing-room/news/276789-obama-policy-deputy-nancy-ann-deparle-to-exit-for-brookings-post">reported</a> by The Hill, she went to a think tank. <blockquote class="tr_bq"><div class="p1">Nancy-Ann DeParle, a White House deputy chief of staff and the president's point person on his signature health care law, is leaving the West Wing to join the Brookings Institution. </div><div class="p1"> </div><div class="p2">Brookings president Strobe Talbott announced in a post on Twitter that the longtime Obama staffer would work as a guest scholar for the think tank.</div></blockquote><div class="p2"> </div><div class="p2">Through the Revolving Door to Private Equity </div> That position did not last long, however.  A few days ago, a Wall Street Journal blog <a href="http://blogs.wsj.com/privateequity/2013/08/07/obamas-health-czar-joins-consonance-capital/">announced</a> she was moving again, <blockquote class="tr_bq">As health care-focused private equity firms navigate the nuances of the Affordable Care Act, one such shop, Consonance Capital, has decided to go straight to the source, hiring Nancy-Ann DeParle, the former director of the White House Office of Health Reform.</blockquote> So now she will be with private equity, and in particular, with a private equity firm specializing in, of course, health care: <blockquote class="tr_bq">Consonance has been out targeting between $350 million and $450 million for its debut fund. The fundraising effort appears to have gained traction in recent months. LBO Wire reported in February that the firm had raised $30.3 million for Consonance Private Equity PV LP.  According to a person familiar with the fundraising, the vehicle has gathered as much as $200 million so far from investors including Ohio Public Employees Retirement System, Travelers Insurance and LGT Group. The fund is earmarked for buyouts and recapitalizations of health-care providers, payors, pharmaceutical and specialty distributors and device manufacturers with between $20 million and $150 million in annual revenue.</blockquote> Finally, it seems Ms DeParle will be suited to this new employment opportunity since she knows so much about how the new supposed health care reform will create investment opportunities, <blockquote class="tr_bq"> Ms. DeParle said the changing regulatory environment will give rise to a host of new investment opportunities. 'There’s a lot that’s changing in health care,' said Ms. DeParle. 'There will be millions of new customers for hospitals and health care providers, much stronger demand for health care services....'</blockquote> Summary So to recapitulate, Ms DeParle came from roles as a steward of multiple large health care corporations to lead the health care reform efforts of the executive branch.  In that capacity, she helped to create and enact legislation that she would later say created many "new investment opportunities."  Now, as the legislation is going into operation, she has spun over to private equity to take advantage of these opportunities. This seems to be a great example of why the revolving door is bad for government, health care, and the American public.  People in responsible government positions, in which they are supposed to represent all the people, may be constantly thinking about impressing those who might employ them in the private sector when they leave government service.  What better way to impress these potential employers than to take actions which may later improve these companies'  commercial prospects, whatever effect they may have on us, the people? I am no political scientist, but in my humble opinion, there should be multi year cooling off periods before someone who worked in the commercial world can get a job in a government agency whose work has direct effect on his or her previous employer or industry sector, and before someone who worked in a government agency whose work had direct effect on a particular economic sector can accept a job for a company in that sector.  Now that would be a real reform.

The Door Revolves Again: the Former White House Health Reform Czar Goes to Private Equity Firm Looking for Investments Created by Health Reform

Round and round it goes, and when it will stop, nobody knows. Background: The Former Health Care Reform Czar's Past Career It appears th...

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63% of Physicians are "Very Enthusiastic" about "Limiting Corporate Influence on Physician Behavior," but Will Anyone Notice?

On <a href="http://hcrenewal.blogspot.com/">Health Care Renewal</a>, we have noted how the direct care of patients in the US is increasingly in the hands of large corporations, often for-profit.  We have noted the plight of the <a href="http://hcrenewal.blogspot.com/search/label/corporate%20physician">corporate physicians</a> who swore oaths to put patients first, and now report to managers who put revenue first. Health Care Renewal was hardly the first to raise these issues.  For years, the renowned editor emeritus of the New England Journal, Dr Arnold Relman, has been warning about the effects of the commercial practice of medicine, which once was illegal in most US states, and until 1980 was condemned by the American Medical Association (look <a href="http://hcrenewal.blogspot.com/2007/12/relman-in-jama-on-threats-to-physicians.html">here</a>). Yet in a world in which market fundamentalism (or economism, or neoliberalism) is increasingly dominant, there is little room for the view that turning health care into a business, and having the new health care businesses lead by people who are only interested in increasing short term revenue (<a href="http://hcrenewal.blogspot.com/search/label/financialization">financialization</a>) and increasing <a href="http://hcrenewal.blogspot.com/search/label/executive%20compensation">their own compensation</a> might be bad for patients' and the public's health. However, close reading of a recent article suggests that many physicians "get" this problem, although may be reticent about protesting it.   Summary of the JAMA Article Tilburt et al authored an article published in July, 2013 that focused on physicians views about "controlling health care costs."(1)  They sent a survey to 3900 randomly chosen physicians less than 65 years old and in active practice.  2556 (65%) responded. The survey included questions about who should be responsible for reducing health care costs, and about the physicians' enthusiasm for various means of cutting costs.  The results that got the most publicity were that physicians thought others (trial lawyers, health insurance companies, pharmaceutical and device manufacturers, hospitals and health care systems, patients, and government) were more responsible for controlling costs than physicians.  Nonetheless, the physicians were relatively enthusiastic about potential cost control measures that would improve "quality and efficiency of care," for example, promoting 75% were very enthusiastic about continuity of care, 69% about promoting chronic disease care coordination, and  70% about "rooting out fraud and abuse."  They were also relatively enthused about "improving conditions for evidence-based decisions," for example, 51% were very enthusiastic about "expanding access to quality and safety data," and and 50% about "promoting head-to-head trials of competing treatments" (also known as a type of <a href="http://hcrenewal.blogspot.com/search/label/comparative%20effectiveness%20research">comparative effectiveness research</a>). Strikingly, however, 63% of physicians were "very enthusiastic" about "limiting corporate influence on physician behavior."  The article did not further explain that item. An Almost Unnoticed Result The article's results section noted "some or strong enthusiasm for improving conditions for evidence-based decisions," including "limiting corporate influence on physician behavior." It included no further comments on this issue. The public discussion it generated largely ignored physicians' views on corporate influence.. An accompanying editorial by Dr Ezekiel Emanuel and Mr Andrew Steinmetz (2) called the survey's findings "discouraging" and chided physicians for not having an "all hands on deck" approach to controlling health care costs, stating they "must lead" on this issue, because they "captains of the ship."   It ignored the notion that the physicians may have  thought that their first responsibility was to "individual patients best interests," and thus controlling costs (especially costs that do not accrue directly to patients) should be a secondary concern.  It also belittled their enthusiasm about curbing "fraud and abuse," implying that it was "sufficiently vague" that it "may offer only modest improvements but certainly will not transform the health care system."   Instead, Emanuel and Steinmetz wanted physicians to support six strategies for transforming health care delivery, without citing evidence in support of these strategies.  The Emanuel and Steinmetz editorial ignored the physicians' views on corporate influence. A <a href="http://jordan-inmyhumbleopinion.blogspot.com/2013/07/does-ezekiel-emanuel-think-we-are.html">post</a> on the In My Humble Opinion blog by Dr Jordan Grumet in turn wondered why physicians should support "Ezekiel's fantasies about healthcare [which] are unsubstantiated."  Dr Grumet decried how particularly primary care physicians have been marginalized, and suggested that if Emanuel and Steinmetz want physicians to act like the captains of the ship they perhaps should not dictate their navigation.  But Dr Grumet apparently did not notice that physicians may realize that their captaincy has been challenged by corporate influence.  .    Media coverage in, for example, the <a href="http://www.latimes.com/news/science/sciencenow/la-sci-sn-physicians-costs-20130723,0,6375434.story">Los Angeles Times</a>, <a href="http://www.foxnews.com/health/2013/07/24/who-should-contain-health-care-costs-doctors-weigh-in/">Fox News</a>, and the <a href="http://www.twincities.com/health/ci_23715643/doctors-blame-health-cost-increases-lawyers-insurers-and">Pioneer Press</a> focused on the question of whether physicians were denying a responsibility to control costs, and whether that responsibility was really theirs.  It did not comment on the issue of corporate influence. However, so far the striking result that a large, well conducted survey showed that the majority of physicians support limiting corporate influence on their behavior remains almost completely unnoticed.  Summary We now have some reasonably good data suggesting that the majority of physicians are very troubled by "corporate influences" on them. It could be that they are troubled by the most direct corporate influences, the practice of medicine by physicians who are employees of corporations, often large, and for-profit. Dr Arnold Relman reminded us that physicians used to shun the commercial practice of medicine (look <a href="http://hcrenewal.blogspot.com/2007/12/relman-in-jama-on-threats-to-physicians.html">here</a>).  Yet now increasing numbers of physicians are <a href="http://hcrenewal.blogspot.com/search/label/corporate%20physician">employees of for-profit corporations</a>.  Physicians and other health professionals who sign on as full-time employees of large corporate entities have to realize that they are now beholden to managers and executives who may be <a href="http://hcrenewal.blogspot.com/search/label/mission-hostile%20management">hostile to their professional values</a>, and who are subject to <a href="http://hcrenewal.blogspot.com/search/label/perverse%20incentives">perverse incentives</a> that support such hostility, including the potential for huge <a href="http://hcrenewal.blogspot.com/search/label/executive%20compensation">executive compensation</a>.  It is not clear why physicians seem to be willing to sign <a href="http://hcrenewal.blogspot.com/search/label/contracts">contracts </a>that underline their new subservience to their corporate overlords, and likely trap them within <a href="http://hcrenewal.blogspot.com/search/label/confidentiality%20clause">confidentiality clauses</a> that make blowing the whistle likely to lead to extreme unpleasantness. It could also be that physicians are troubled by slightly less direct corporate influences.  We have blogged about  - <a href="http://hcrenewal.blogspot.com/search/label/suppression%20of%20medical%20research">suppression</a> and <a href="http://hcrenewal.blogspot.com/search/label/manipulating%20clinical%20research">manipulation</a> of clinical research by corporations sponsoring such research to assess their own products and services - <a href="http://hcrenewal.blogspot.com/search/label/deception">deceptive</a> corporate practices like <a href="http://hcrenewal.blogspot.com/search/label/stealth%20marketing">stealth marketing</a> of <a href="http://hcrenewal.blogspot.com/search/label/stealth%20lobbying">stealth lobbying</a> -  financial arrangements among physicians (and other health professionals) and health care corporations (e.g., drug, biotechnology and device corporations) which often seem to deliberately produce <a href="http://hcrenewal.blogspot.com/search/label/conflicts%20of%20interest">conflicts of interest</a> meant to help market products and services, particularly the use of paid "<a href="http://hcrenewal.blogspot.com/search/label/key%20opinion%20leaders">key opinion leaders</a>" as marketers - <a href="http://hcrenewal.blogspot.com/search/label/institutional%20conflicts%20of%20interest">institutional conflicts of interest</a> that involve academic institutions, disease advocacy organizations, and other non-profit groups in corporate marketing and public relations  Furthermore, stories about and criticisms of these issues remain markedly muted in the media, and even more muted in medical and health care scholarship and scholarly journals.  We have attributed this <a href="http://hcrenewal.blogspot.com/search/label/anechoic%20effect">anechoic effect</a> to individual and institutional conflicts of interest, fear of offending conflicted friends, relatives, colleagues and supervisors, and fear of offending the rich and powerful.  Despite the anechoic effect, the article by Tilburt et al suggests that physicians want to reduce corporate influence in medicine.  Yet this evidence of physicians' discomfort with corporate influences itself has been greatly muted by the anechoic effect. While the survey results are reminiscent of opinions I have heard from many physicians, it is striking that there is no perceptible organized movement by physicians against excess corporate influence.  At best, public expression of concerns about excess corporate influence has been muted and fragmented, often relegated to blogs and sometimes derided as coming from malcontents, dissidents, disgruntled employees, and other assorted trouble-makers.  But again it looks like the majority of physicians may (often silently) agree with these "whiners and complainers."  Physicians need to realize that they mostly agree that to fulfill their oaths to put patients first, they have to reduce the influence of rich and powerful organizations, like health care corporations, with other agendas.  Maybe once they realize this, they will be able to start doing something to reduce such influences.  Maybe once they start, they will be able to rethink the notion that direct health care should ever be provided, or that medicine ought to be practiced by for-profit corporations. I submit that we will not be able to have good quality, accessible health care at an affordable price until we restore physicians as independent, ethical health care professionals, and until we restore small, independent, community responsible, non-profit hospitals as the locus for inpatient care. Roy M. Poses MD on Health Care Renewal References 1.  Tilburt JC, Wynia MK, Sheeler RD et al.  Views of physicians about controlling health care costs.  JAMA 2013: 310: 380-388.  Link <a href="http://jama.jamanetwork.com/article.aspx?articleid=1719740">here</a>. 2.  Emanuel EJ, Steinmetz A. Will physicians lead on controlling health care costs? JAMA 2013; 310: 374-375. Link <a href="http://jama.jamanetwork.com/article.aspx?articleid=1719718">here</a>.

63% of Physicians are "Very Enthusiastic" about "Limiting Corporate Influence on Physician Behavior," but Will Anyone Notice?

On Health Care Renewal , we have noted how the direct care of patients in the US is increasingly in the hands of large corporations, often f...

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Doctors now spend more time with computers than they do with patients

This bodes poorly for future physician quality: <blockquote class="tr_bq"><a href="http://www.post-gazette.com/stories/opinion/perspectives/the-doctor-wont-see-you-now-698874/">The doctor won't see you now</a> <a href="http://danielleofri.com/">DANIELLE OFRI</a> Pittsburgh Post-Gazette August 11, 2013 12:03 am <div class="story_byline">By Danielle Ofri </div></blockquote><div class="thisStory"><blockquote>Like the mail carrier or the milkman of yore, the doctor makes rounds every day in the hospital. If it's an academic institution, a bevy of medical students, interns and residents accompany an attending physician from room to room, checking up on the patient, doing a daily physical exam, reviewing the latest test results and highlighting the relevant teaching points. That's been the mainstay of medical education, and that's how my colleagues and I were taught to train the next generation of doctors. Alas, this image would be true today only if a computer terminal were plunked in the bed instead of a patient. A new study in the Journal of General Internal Medicine confirms what any physician or patient could tell you: Doctors spend more time with computers than they do with patients. In fact, computers handily beat out patients: Medical interns spent 40 percent of their day with a computer compared with 12 percent of their day with actual living, breathing patients. (Discussing cases with other health care professionals and educational activities were the other main activities of the day.) ... Nurses are practically chained to their computers these days. A typical outpatient office visit today consists of a doctor focused directly at a screen, and a patient waiting, ahem, patiently, while the doctor thrashes it out with the computer, furiously typing notes, orders and prescriptions, occasionally whacking the side of the computer in frustration.</blockquote> I can assert this is not what the EMR pioneers intended.  They intended health IT to reduce workloads and inefficiencies so clinicians could spend more time performing care.  The tools they prototyped decades ago, unfortunately, are no longer in control of, or serving, the clinicians they intended the tools to serve.  Instead they are largely serving a permanent and growing bureaucracy.  They are, in fact, mis-serving clinicians e.g., through production of reams of legible gibberish (<a href="http://hcrenewal.blogspot.com/2011/02/electronic-medical-records-two-weeks.html">http://hcrenewal.blogspot.com/2011/02/electronic-medical-records-two-weeks.html</a>), clinically mission-hostile designs (<a href="http://www.tinyurl.com/hostileuserexper">http://www.tinyurl.com/hostileuserexper</a>), outright defects (<a href="http://hcrenewal.blogspot.com/search/label/glitch">http://hcrenewal.blogspot.com/search/label/glitch</a>) and marauding hyperenthusiast-extremists pushing the technology on ill-informed management (<a href="http://hcrenewal.blogspot.com/2012/03/doctors-and-ehrs-reframing-modernists-v.html">http://hcrenewal.blogspot.com/2012/03/doctors-and-ehrs-reframing-modernists-v.html</a>). I think the illustration was appropriate; see article link for the artwork. <blockquote class="tr_bq">... For many doctors, nurses and patients, the experience of technology today--particularly the electronic medical record -- makes it feel as though technology is front and center while actual medical care is secondary. The expansion of the EMR has taken us to the point that caregivers hardly need to see a patient at all; the practice of medicine can be entirely virtual. </blockquote></div><div class="thisStory"> </div><div class="thisStory">It can be "virtual" if one wants low quality, that is.  Here's why:</div><div class="thisStory"> <blockquote class="tr_bq">... It was a brazen revolution in the 1890s when Sir William Osler pulled medical students out of the lecture hall and into the ward, with the startling idea that students needed to learn medicine with actual patients. But our technological march has steadily sapped this Oslerian ideal, and our trainees today are missing out on many of the finer points of medicine. Despite the impressive leaps forward in simulation technology, you simply cannot learn the subtleties of assessing a wound, palpating a spleen, asking the right questions, navigating a patient's fears, engendering trust, without actually being with patients.</blockquote> Let me say this bluntly:  most people lacking full medical training cannot grasp this concept.  They do not know what they do not know.  Worse, many non-clinicians I've encountered, especially in the health IT domain, seem to be unable or unwilling will to accept that simple truth (perhaps in part due to the <a href="http://en.wikipedia.org/wiki/Dunning%E2%80%93Kruger_effect">Dunning-Kruger effect</a>). <blockquote class="tr_bq">... And for patients, medical care has become an increasingly isolating experience, as their caregivers seem more beholden to technologies than to their illnesses, which are most certainly not virtual.</blockquote>  Perhaps decreasing patient satisfaction scores might change the current state of affairs? <blockquote class="tr_bq">... We need to rethink the role of technology in medicine, especially the electronic medical record. The new mantra of "patient-centered care" needs to apply equally to our computerized systems. With each new iteration of the EMR, we need to ask ourselves how patients are benefiting, as opposed to whether we are merely satisfying administrative documentation mandates. The EMR needs to exist in service to patient care, not simply as an end in itself.</blockquote> Or, if unable to "exist in service to patient care" due to industry problems, it needs to cease to exist (i.e., be put on hold or put on ice) until it can perform to expectations. </div>-- SS

Doctors now spend more time with computers than they do with patients

This bodes poorly for future physician quality: The doctor won't see you now DANIELLE OFRI Pittsburgh Post-Gazette August 11, 2013 12:03...

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Who Would Have Thought, Comrades, That The Most Severe Form of Attempted Internet Censorship Could Originate in a Community Hospital, Abington Memorial, That Alleges Itself A Non-Profit Public Servant?

<div class="separator" style="clear: both; text-align: center;"></div><div class="separator" style="clear: both; text-align: center;"></div>I would not have thought such an attempt at abridgement of fundamental American rights could originate in a local hospital, until this Motion by the defense in the EHR-related lawsuit initiated by my deceased mother in which I am now substitute plaintiff proved otherwise: <table border="1" cellspacing="0" class="ChamaeleonGrid" rules="all"><tbody><tr class="AlternatingGridItem"><td>75</td><td>E</td><td>4/19/2013</td><td>Motion</td><td>BY ABINGTON MEMORIAL HOSPITAL MOTION TO PROHIBIT COMMENTARY ABOUT THIS LITIGATION TO ANY PUBLIC CONTEXT WITH MEMORANDUM OF LAW WITH SERVICE ON 04/19/2013</td><td>No</td><td>9267260</td></tr></tbody></table> The hospital was attempting to have the Court issue a Motion for Prior Restraint (<a href="http://en.wikipedia.org/wiki/Prior_restraint">http://en.wikipedia.org/wiki/Prior_restraint</a>), including against my writings here in the Healthcare Renewal blog, in a civil matter. In my view this attempt sets a very deleterious precedent for others opposed to hospital practices.  A topic frequently discussed at this blog is <a href="http://hcrenewal.blogspot.com/search/label/imperial%20CEO">imperial management</a>.  Hospital management seems to have now become so arrogant that it apparently believes itself to have supra-Constitutional reach.  This bodes poorly for both patients' and clinicians' rights. How many other hospitals might try this, and not just against parties to litigation, hoping to get a favorable ruling? <blockquote class="tr_bq">Prior restraint (also referred to as prior censorship or pre-publication censorship) is <a href="http://en.wikipedia.org/wiki/Censorship" title="Censorship">censorship</a> imposed, usually by a government, on expression before the expression actually takes place. Prior restraint is often considered a particularly oppressive form of <a href="http://en.wikipedia.org/wiki/Censorship" title="Censorship">censorship</a> in Anglo-American jurisprudence because it prevents the restricted material from being heard or distributed at all.  Prior restraint ... takes an idea or material completely out of the marketplace. Thus it is often considered to be the most extreme form of censorship. ... most of the early struggles for <a href="http://en.wikipedia.org/wiki/Freedom_of_the_press" title="Freedom of the press">freedom of the press</a> were against forms of prior restraint. Thus prior restraint came to be looked upon with a particular horror, and Anglo-American courts became particularly unwilling to approve it, when they might approve other forms of press restriction.</blockquote> Excerpts of plaintiff attorney's legal response are below (full PDF of this civil document is available at <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/Abington_Memorial_Hospital_PL%20response%20to%20DF%20motion%20for%20prior%20restraint.PDF">http://www.ischool.drexel.edu/faculty/ssilverstein/Abington_Memorial_Hospital_PL%20response%20to%20DF%20motion%20for%20prior%20restraint.PDF</a>).  The response was, in fact, largely right out of the U.S. Constitution.   It is stunning that a community hospital, allegedly a servant of the public, would pull the legal stunts described which seem more akin to the methods of the former Soviet Union: <blockquote class="tr_bq">... as the entirety of the blog describes, Dr. Silverstein was troubled with, and expressed his opinion that, the defendant’s counsel’s repeatedly advancing an argument [that the same attorney had made three years prior regarding a medical malpractice case in the very same hospital - ed.] that was soundly rejected by another court [related to Certificates of Merit that delayed proceedings in my mother's case for almost two years - ed.], and the defendant’s failure to reference that case in any substantive way as opposing authority, was, in his protected opinion, malicious and unethical. As above, Dr. Silverstein’s comments on the matter are, as defendant agrees, his beliefs, opinions and viewpoints, all of which are protected speech under the Pennsylvania and United States Constitutions; that defendant’s counsel is dissatisfied with protected speech is not a matter for this court to address. </blockquote> I would expect the defendant's counsel was following the instructions of, or at least was in collaboration with, hospital counsel, hospital senior management and the healthcare system Board of Directors. <blockquote class="tr_bq">... Unhappy that their improper tactics are now being exposed through Dr. Silverstein’s opinions in his blog, defense counsel initially threatened litigation. Now they ask this court to enjoin Dr. Silverstein, via prior restraint, from expressing his views. This extraordinary request comes in spite of the defendant offering nothing but pure speculation as the foundation upon which they ask this Court to strip the plaintiff of his First Amendment rights. ... Their request to strip plaintiff of his First Amendment rights is at odds with the Constitution, the caselaw, and the realities of the jury selection process, which has multiple safeguards in place to remove anyone who may have read and been influenced by Dr. Silverstein’s writings. Importantly, because of the defendant’s procedural tactics, this case, while over two years old, has only just begun discovery and the jury section process is nowhere in the near future. ... The simple fact is that Dr. Silverstein’s blog contains what defendant recognizes are his “beliefs, opinions and viewpoints” and, as such, they are protected. Neither defendant nor its counsel can meet the strict requirements of their unprecedented request to strip Dr. Silverstein of his constitutional rights. Their Motion must be swiftly denied. Dated: 28 May 2013 </blockquote> The court, a civil Court of Common Pleas in this county in Pennsylvania, in fact did promptly make a decision: hospital motion for censorship denied. <table border="1" cellspacing="0" class="ChamaeleonGrid" rules="all"><tbody><tr class="GridItem"><td>182</td><td> </td><td>6/24/2013</td><td>Order</td><td>OF 6/20/13 DANIELE,J MOTION IS DENIED; CC</td><td>No</td><td>9343590</td></tr></tbody></table> The First Amendment lives, at least in Montgomery County, Pennsylvania. However,  as the stories aggregated on this blog and others increasingly show, hospitals' mission of public service increasingly seems to be dying. Attempted use of courts to abridge First Amendment rights by a hospital seems like the pinnacle of abandonment of pretenses of public service and accountability.  Corporate interests come first, not patients.  This is a reason I increasingly am of the belief that hospital management cannot be trusted.  Accordingly, in my opinion, patients - especially acute inpatients - should have 24x7, independent advocates following every aspect of their care, receiving a daily full printout of any electronic records generated, and (if legal) even using one of the many new, small video/audio recording devices in encounters with hospital personnel. "He said/she said" is no longer an option when dealing with a <a href="http://www.youtube.com/watch?v=7SYCCY7TIXo">Сою́з Сове́тских Социалисти́ческих Респу́блик</a> mentality. <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="http://www.youtube.com/watch?v=7SYCCY7TIXo" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="138" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg5mtGnSvjYyo3OqdPT_W46MELuxp57tvQkBFlGY_tams3EFLQs4-uFZalRs3_V0nEKo7ITz59c_97mvjLCTMN0J60tz13RXxh_aWDUL2zzCMpRVH6chjTb9xLJ2NKOYw9LffH2i3PgbK_i/s200/ussr.jpg" width="200" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">Click for Patriotic music!</td></tr></tbody></table> Perhaps Abington Memorial Hospital should consider adopting the rousing music above for their HR morale-building exercises. I was a Medical Resident there in 1985-87.  Like <a href="http://en.wikipedia.org/wiki/Leon_Trotsky">Lev Davidovich Bronshtein</a>, I guess I've been excommunicated for failure of obedience to the Party line. <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/AVvXsEjfMhTPM8UO5Oqbng56M8WS9uOdfP0hfryV9_f6QtOjHPRr0Dlo2Z2P1Dw05u09kyJmXNUl4a8ZXYBdRuWbG7A0p7jR_uD5O7_qVH45g2q0GRFZrA5XxPewq-wzPCllo7DLlUtr2fE5bfII/s1600/amh_id1.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="125" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjfMhTPM8UO5Oqbng56M8WS9uOdfP0hfryV9_f6QtOjHPRr0Dlo2Z2P1Dw05u09kyJmXNUl4a8ZXYBdRuWbG7A0p7jR_uD5O7_qVH45g2q0GRFZrA5XxPewq-wzPCllo7DLlUtr2fE5bfII/s200/amh_id1.jpg" width="200" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">My old residency ID.  I've now been excommuncated.</td></tr></tbody></table> Da Svedanya for now, Comrades! -- SS

Who Would Have Thought, Comrades, That The Most Severe Form of Attempted Internet Censorship Could Originate in a Community Hospital, Abington Memorial, That Alleges Itself A Non-Profit Public Servant?

I would not have thought such an attempt at abridgement of fundamental American rights could originate in a local hospital, until this Motio...

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A War on Patients: Panel Says EHRs Should Not Be Vetted Before Marketing and Deployment

<div style="text-align: center;">"First, do harm - it's a learning experience, and injured or dead patients are just a bump in the road, anyway" - the apparent creed of the healthcare computing hyperenthusiasts </div> Joe Conn and Modern Healthcare published the following article: <blockquote class="tr_bq">Work group says OK to some HIT safety regs (<a href="http://www.modernhealthcare.com/article/20130807/BLOG/308079998?AllowView=VW8xUmo5Q21TcWJOb1gzb0tNN3RLZ0h0MWg5SVgra3NZRzROR3l0WWRMWGJYUDBHRWxyd01qUzMyWmVqNTNzWUpiV3A=">link</a>), Joe Conn, Modern Healthcare, Aug. 7, 2013</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;">What is important is what safety regs the Workgroup said "no" to.  It comes as no surprise:</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>A federally chartered special work group with representatives from three federal agencies has submitted its draft recommendations on establishing a regulatory framework for health information technology. Chief among those recommendations is that <a href="http://www.modernhealthcare.com/section/articles?tagID=66">health IT</a> should not be subjected to pre-market federal regulation, but there were a few exceptions.</blockquote><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> The exceptions are narrow, and are likely already covered as Class III medical devices by FDA (see <a href="http://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/Overview/ClassifyYourDevice/">http://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/Overview/ClassifyYourDevice/</a>):</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">The exceptions under which there should be <a href="http://www.modernhealthcare.com/section/articles?tagID=1136"> FDA</a> regulation, according to the work group, include medical device accessories to be defined as such by the FDA; certain forms of “high risk” clinical decision support systems, such as “computer aided diagnostics,” also to be defined by the FDA; and some “higher risk software” use cases to be defined by the committee's own safety work group.</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;"></div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> They did acknowledge the need for postmarket surveillance:</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">... The group also recommended: developing a federally supported, post-market surveillance system for health IT products “to ensure safety-related decision support is in place,” creating a process for gathering information on safety issues, aggregated at the federal level and establishing a public process for “customer rating of HIT to enhance transparency.” Dr. David Bates [a professor at Harvard Medical School], chairman of the Food and Drug Administration Safety Innovation Act work group, presented the preliminary findings Wednesday at a meeting of HHS' Health Information Technology Policy Committee. </blockquote><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> Let me translate this to plain English:  the health IT systems that go in (and their upgrades and patches) are recommended to be free from pre-marketing regulation and regulatory vetting.  Patients are to be the guinea pigs for testing of the software.  </div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> If patients are harmed or killed, they get the honor of being named as "postmarket surveillance learning cases" who gave their all for the betterment of healthcare information technology.   (Without their consent, but who needs consent to test experimental and unvetted devices on guinea pigs?) Bates did express some liability concerns: <blockquote class="tr_bq">Asked during a question and answer period following his presentation whether the committee had considered the liability implications of its recommendations, Bates said, “It's not something we discussed at length, but it's something we can discuss over the next month.”</blockquote><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> I, on the other hand, as a legal consultant on health IT-related medical errors and evidence tampering, am considering liability issues. Unfortunately, patients would rather be whole than in lawsuits (or dead).  Also, sadly, it's physicians and nurses who will bear the brunt, if not all, of the liability for bad outcomes due to defective IT such as at these two recent posts, with vendor alerts regarding serious flaws of medication and other orders not being retained:</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;"><ul><li><a href="http://hcrenewal.blogspot.com/2013/08/another-health-it-glitch-can.html">Another Health IT "Glitch" - Can Digital Disappearing Ink Kill Patients? - Siemens Safety Advisory Notification #1</a> </li></ul><ul><li><a href="http://hcrenewal.blogspot.com/2013/08/can-digital-disappearing-ink-ehr-glitch.html">Can Digital Disappearing Ink (An EHR "Glitch") Kill Patients? Part 2 - Siemens Safety Advisory Notification #2</a></li></ul><ul><li>and the others posted at this blog at query link: <a href="http://hcrenewal.blogspot.com/search/label/glitch">http://hcrenewal.blogspot.com/search/label/glitch</a></li></ul></div></div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> A clarification for all those proletarians who lack Harvard educations, and for the Workgroup members as well. Allow me to point out that the above manufacturer safety alerts of life-threatening fundamental flaws (involving entered text that "disappears", apparently found in live-patient scenarios, and the other "glitches" that did cause life-threatening errors sometimes en masse involving thousands of patients such as another apparent Siemens debacle at <a href="http://hcrenewal.blogspot.com/2011/11/lifespan-rhode-island-yet-another.html">http://hcrenewal.blogspot.com/2011/11/lifespan-rhode-island-yet-another.html</a>) would likely not have occurred if the systems had been vetted before being turned loose on patients. </div><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;">Finally:  David and panel members, my mother and I thank you profusely.  Oh wait...my mother can't thank you, she's dead from the toxic effects of un-premarket-vetted health IT on simple care processes at the very hospital where I performed my residency two decades ago.</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;"> She might have died a few times before she actually did thanks to other IT "glitches" that cropped up during her recovery from the first one, but I was able to (in one case, by sheer happenstance of showing up at  the right time) discover or provide staff with information to work around additional unvetted-health-IT flaws before those did her in.</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;"> </div><div class="separator" style="clear: both; text-align: center;"></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;">It's taken more than a decade for critical-thinking, unconflicted writers and researchers ("<a href="http://hcrenewal.blogspot.com/2013/02/modern-healthcare-health-it-iconoclasts.html">iconoclasts</a>") to force cybernetics-over-all hyperenthusasts (see <a href="http://hcrenewal.blogspot.com/2012/03/doctors-and-ehrs-reframing-modernists-v.html">here</a>) like Bates and his panel members to own up the risks of health IT at all, e.g. via sites like this blog and <a href="http://www.ischool.drexel.edu/faculty/ssilverstein/cases/">this teaching site</a>. These panel members IMO have their heads buried in sand. Dr. Bates and his panel are, in my opinion, healthcare IT extremists, which is in part the apparent holding of the belief that computers have more rights than patients - and the other beliefs mentioned in this post:  "Another Health IT 'Glitch' - Can Digital Disappearing Ink Kill Patients?" at <a href="http://hcrenewal.blogspot.com/2013/08/another-health-it-glitch-can.html">http://hcrenewal.blogspot.com/2013/08/another-health-it-glitch-can.html</a>.</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><div style="background-color: white; border: medium none; color: black; overflow: hidden; text-align: left; text-decoration: none;"> </div></div></div>

A War on Patients: Panel Says EHRs Should Not Be Vetted Before Marketing and Deployment

"First, do harm - it's a learning experience, and injured or dead patients are just a bump in the road, anyway" - the apparent...

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