The Republican Landslide and the Affordable Care Act

After their resounding triumph in yesterday’s midterm elections, House Republicans will likely act on their promise to repeal the Affordable Care Act, the health reform bill President Obama signed into law last March.

Their efforts could be blocked by the Democratically controlled Senate or, if necessary, by a veto from the Big O himself. But the Boehners might still get the final say, since they have the power to halt appropriations funding for large swaths of the law.

These realities have health-industry groups, some of whom vigorously supported Democratic efforts to pass the law, cozying-up to the GOP like a Snuggie on a cold winter night.

Private insurers want Congress to nix that $70 billion tax that will be levied against them beginning in 2014. They’d also like lawmakers to permit them to widen the rating bands which cap the amount of money they can charge older enrollees.

Insurers and providers want Congress to add a tort reform rider to the law, preferably one that protects physicians against malpractice lawsuits if they adhere to best practice guidelines. Drug companies want to kill the proposed Independent Payment Advisory Board, whose job it is supposed to be to control the rate of growth in Medicare spending. The Board’s recommendations would, after all, likely include reduced federal spending on prescription drugs which is very bad for their business.

Yet these same groups are worried sick that Republicans might go too far in their zeal to repeal the deal. The baby in the bathwater for these trade groups is the individual mandate: a provision in the law that requires most Americans to carry health insurance.

Many House Republicans detest the mandate, believing it to be an affront to personal liberties or whatever. Of course when providers and insurers look at it, they see an unprecedented revenue bonanza! So they are busy as bees conjuring up alternatives that appease the Boehners and let them cash-in at the same time.

The alternatives they’ve come up with so far include levying higher rates on people that choose not to purchase insurance in the first years after the law goes into effect, and auto-enrolling folks into coverage subsidy programs for which they are eligible. Those woebegone Dems will remind anybody who cares to listen that they considered automatic enrollment before bagging it on account of implementation difficulties and other snafus, but nobody is listening to them right now anyway.

“We’re open to lots of different ideas” for assuring access to affordable coverage, Wes Metheny told the Wall Street Journal recently. An SVP at the Pharmaceutical Research and Manufacturers of America, Metheny added, “we were very supportive of health-care reform last year and there are some good things we think need to stay in place.”

Meanwhile, the folks who penned the Affordable Care Act in the first place are more worried about misguided Republican smart-bomb attacks on selected portions of the law than they are about a full-on repeal.

Those “smart” bombs could destroy the financial underpinnings of their insurance exchanges, for example.

Worse yet would be a situation in which the Feds are left to enforce provisions requiring insurers to cover folks with pre-existing medical conditions even after a “smart” bomb has destroyed the individual mandate. In this nightmare scenario, insurers including Medicare end up with a very sick customer base and no way to spread the costs.

Then again, if past history is any indication, we can rest assured that cooler heads will prevail and our newly elected officials will do the right thing. Riiiight.

Glenn Laffel, MD, PhD, was formerly Senior Vice President for Clinical Affairs at Practice Fusion and is now CEO, HealthResults.

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39 replies »

  1. Thanks for the validation in your last comment, J Richards, and I don’t need Jesus Christ to save me, nor your prayers. It is exactly your comments that condemn Christianity for the failure it has come to be across this planet, that your interpretation of a higher being is just your religion’s only correct point of view. Dismissing the beliefs of billions of other people is the depths of arrogance that soils the image of this country to others. And, I truly do not expect you to understand nor respect my opinion. After all, I don’t embrace your point of view.
    Doesn’t that hole in the peg board get rather tight after a while?
    Anyway, neither party is going to solve the health care crisis in a way the majority of us will appreciate and respect. Because these idiots in DC do not represent the majority of Americans. Hmmm, why do you ask? Because the majority of us aren’t Democrats or Republicans. We are Americans, and the majority of us want negotiation, compromise, and resolution.
    Do any of those concepts get said and tried by anyone in Congress, much less the President, these days!?
    Hell, do any of those concepts get said by major insurance companies as well!?

  2. Nate,
    Care to share whether or not you are a Christian? I suppose I could make some assumptions as you have done. For example, I’m betting you’re probably not a Christian by your tone and the fact that you completely side-stepped any discussion at all of the biblical verses that support the position of helping one another and working together as Jesus commanded. If that is the case, you have my prayers to come to know Christ for only Christ can offer you eternal life.
    As I said I have paid health insurance premiums for the last 22 years and never missed a payment, not once. During the last six years alone I paid roughly between $30,000 and $36,000 in premiums for a family of four as my premiums have gradually gone up from about $5,000 a year to about $6,000 a year over the last six years. During all but the last three of those years, until I suffered a substantial lower back and hip injury while playing racquetball in 2007 (something I did to stay fit), I rarely used my health insurance but for annual physicals. My family has also been very healthy over the last six years, except for the occasional sinus infection and antibiotics. The injury has left me in chronic neuropathic pain and with a constant pain/popping in the hip that makes running (another exercise I used to regularly do for fitness) too painful to do. But still, I support my family and go to work everyday and continue to be productive as “I can do all things through Christ who strengthens me.” (Phillipians 4:13)
    Over the last six years, I have had no hospital stays. From 2007 to 2009 I mainly had three different MRIs of the low back and hip, and a CT scan of my low back, hip, and spine. Like a lot of low back problems and neuropathic pain, it can be difficult to diagnose and treat. In 2009, after two years of very bad pain, I decided that I would go to a top-notch private hospital that was out of network with my private insurance but in reasonable driving distance from my home to get a definitive diagnosis and possibly treatment. The hospital I went to provided me with a diagnosis of both disc tears and Sacroiliac Joint Dysfunction, and physical therapy. (They also wanted to prescribe a host of mind-altering drugs like Klonapin and Neurontin to mask the pain, but I refused them as the kind of work I do requires clear-headedness and extensive thinking and concentration and I don’t believe in masking underlying problems.) Because the hospital I went to was out of network and only covered partially, the out-of-pocket bill to me was about $11,000 (paid for from savings) and my insurance paid about $9,000 towards covered tests and treatments. Since then, I continue to be in pain, even though I continue to regularly do the physical therapy exercises and stretching prescribed by the hospital.
    So, I would estimate the costs to my health insurance company for my whole family over the last six years and for the doctor visits and MRIs and the private hospital I went to multiple times to be about $13,000. So, let’s do the math. If we subtract the roughly $13,000 insurance has had to pay from my premiums of around, say, $33,000, that means that I have paid about $20,000 vs. the insurance companies $13,000 over the last six years alone (not including the healthy 19 years before 2007 where no one in my family had any chronic health problems and we took next to nothing “out of” the system that we paid into.).
    So, that means I am not a “drain on the system” as you would imply, at least based on my math. Now, let me ask you this: What is the point of paying into insurance if you are going to be considered a “drain on the system” anytime you need to use the insurance? Isn’t insurance supposed to be a system in which a large pool of people collectively make regular payments (premiums) every month and they can draw out financial assistance from the “pool” when needed. I mean, if the only purpose in paying premiums is to pay premiums, then why have insurance? Now, let me ask you this, what is the largest “pool” of people in the United States who could possibly pay into an insurance plan/pool? Thinking realistically (as there will always be a small portion who don’t want to contribute anything to any insurance system), that would be MOST of the American people, wouldn’t it? So, by my thinking, we could keep the overall costs lowest by requiring American’s, 18 years and up, to pay into a very large nationwide public insurance pool or plan, perhaps much like we do for the federal unemployment deduction that gets pulled from my paycheck every pay period even though I have never used it.
    But I am not going to debate national health insurance with you, as I am certain I would be wasting my breath. What I will say is that I want to be able to use the health care reform act to save costs, but not in any way that a logical thinking person would say is “unfair”. I have every intention to work till the day I die and pay into the “system” until the time I expire. I have insurance now, but the lone cafeteria plan offered through my work doesn’t support new Health Savings Accounts (HSAs), and it has added costs for pregnancies/deliveries and other types of coverage that my family doesn’t need. In addition, the cafeteria plan I have offers me only a high-premium plan. I would like to see about getting a higher-deductible/lower-premium, no-pregnancy-coverage private plan in 2014 via the new federal insurance exchanges that will be coming online thanks to “Obamacare” (if that’s what you choose to illogically call a bill that was extensively modified by both Democrats and Republicans and the insurance lobbyists and that successfully went through both the House and the Senate). However, I have the pre-existing condition of my back and hip; but thanks to “Obamacare,” I would still be able to shop for and buy a private insurance policy outside of work, via the new federal insurance exchanges that will be offered in 2014, even though I have a pre-existing condition. Then my family would have a private insurance policy that is tied to us directly and not to my current job, and I would pay for it and keep it regardless of where I worked in the future, giving me more economic mobility in the workforce. The cafeteria plans provided by most jobs offer coverage many people don’t want or need. They are just too “one-size-fits-all” and too costly for most average working families, and they are forcibly increased a lot annually, and I have nothing to say about it and there is no real competitive choice for a guy like me to currently make in this supposed “free-market.” What I want is the ability to pay for and get myself and my family our own customized private family insurance policy or individual policies apart from my work’s insurance, regardless of my pre-existing conditions. The insurance exchanges that will start in 2014 would give me that. A reasonable premium for me is one that is about maybe $100 or less than what I pay overall now. I am not looking for a handout or a non-private health insurance plan. The exchanges in 2014 are supposed to be a centralized marketplace focused on encouraging choices and competition (and thus, lower costs) among various private health insurance carriers anyway.
    So, it’s your move, Ace. I have answered your question and done so in detail. Let’s see if you will answer my question about whether or not you are a Christian, especially a practicing one? If so, what do you think Jesus would recommend? I’ll be relieved if you say you are an atheist, because that’s surely how you are behaving.
    I suppose you will resort to avoiding my points altogether or lecturing me about “choosing” to play racquetball to stay fit and the fact that life is full of choices and consequences and it’s your tough luck, totally bypassing any of the salient points I have made. Preemptively, I will say, I only chose to stay fit and exercise. I never expected to or consciously chose to get chronically injured in the process. It was an accident. That’s why they call them accidents. I have continued to work hard and contribute to society in spite of my injuries. So, Nate, as I said, are you a Christian? If so, are you a practicing one? Ever hear of the parable of the Good Samaritan? What kind of neighbor are you, Nate? The kind who passes by the guy in the ditch because you have better things to do? Just remember, some day and some time in your life, if you haven’t already, you will find yourself in that ditch on the roadside. If you are there, and I see you there, I will gladly pull you out and bind your wounds as the Good Samaritan did because that is Jesus has asked me and all of us to do.

  3. Determined MD,
    Why is that a Christian who merely professes his beliefs is automatically labeled as being “holier than thou”? I merely professed what I believe. I can’t help it if what I believe offends you or if you don’t believe as I do. I realize there are indeed many cultural Christians who go to church every Sunday, but who are draped in hypocrisy and could care less about helping others outside of themselves. They claim to be “saved” but they don’t act like it. I apologize for them, but I sincerely don’t believe I am one of them and that I “walk the walk” as well as “talk the talk.”
    I think you made some presumptions about me and my choices that were incorrect. I felt as though you assumed that I was smoking and eating poorly and drinking and now I am one of those irresponsible folks in search of a handout. Sorry to disappoint you, but I eat healthy, I don’t smoke, and I don’t drink. So, if that is the stereotype you have of me personally, it would be incorrect.
    The other thing that you alluded to in your comments was about Republican hypocrisy. As I said in my original post, I am an independent. Jesus was neither a Republican nor Democrat and neither am I. 
    Now, as to your belief that religion does not solve society’s problems, I would agree and disagree with you. Yes, religion in and of itself, does not solve problems, but loving and compassionate religious people do solve more problems than they create. Whether you want to acknowledge it our not, the core tenants of American law and the American people have their roots in the Bible and its teachings, and they put those beliefs into practice every day. And whenever there is a disaster here or abroad, like Katrina or a tsunami, there were numerous of Christian people and religious groups who gave up time, talent, money, food, and other resources to help out. Whenever there is a food bank, organization to help the poor and the hungry or homeless in your community, you had better believe there is some local religious groups that are helping out and making it happen and putting their money where there mouth is. It’s easy, I suppose, to see only the smudges on a slate that is mostly bright white and forget that the slate is still mostly bright.
    I don’t mean to be judgmental sounding when I say this, but I think those who don’t believe in God (which I am guessing you don’t as a lot of doctor’s see themselves as intellectually above believing in God or because they choose to only believe what science and science alone tells them) often look with disdain at any people who fail to live up to the standards they preach, particularly Christians. That way, non-believers can say, “See, I knew I was right to steer clear of this whole God thing as it’s full of a bunch of hypocrites. I’ll keep my money for myself, thank you very much.” You’re right on one count, in a way. Everyone in the world is indeed a sinner and fallen short of God’s perfection, including me.
    No matter how good of a doctor you are or think you are, you will never be as good in your nature as a perfect God. You will die just as I will someday, and you will face God.
    You may think you are off the hook because you choose to label yourself as separate from those “religious hypocrites,” but in reality, you need still God and His forgiveness just as much as everyone does. You just probably don’t want to or can’t admit it because you are a doctor and a “wise man” who in his short time here on this earth feels he already fully understands the universe and its mysteries.
    However high-and-mighty you might think I am being in saying this, I will pray for you. If you don’t actually believe in God, I challenge you to read “The Case For Christ” and the “Case for the Creator”. In the end, it’s about God’s will and our making individual choices that are in alignment with God’s will. For me, the perception I have of God’s will is what Jesus provided and what He said and did as described in the Bible. In everything I do, I must strive to follow His biblical teachings. Sometimes I do good, and sometimes I fall short of what God wants from me. I am not “Holier than thou”. I too need God’s forgiveness every day. Believe me, even as I write this blog, I have to resist that temptation to say something really harsh or rude about medical doctor’s like you, even if it would probably be accurate based on my own experiences. (I’ve seen a few of them in the last three years, you see, and most of them were actually illogical, unwilling to listen, and 100% sure their diagnosis was correct and that every other doctor’s was incorrect, and many were of no help at all in healing me personally.) I don’t want to make your mistake, however, and make the generalization that all doctors are “bad” when there are, in fact, very good doctors out there (and I have seen some of them, and they are helping.). Although, in my opinion, there are lots of mediocre medical doctors, and there are many doctors who are only interested in making lots of money and re-running the same expensive tests and MRIs already run by other doctors just weeks before.
    With all the talk from Republicans about choices, there is no more important choice you can make in your life than choosing Jesus Christ and turning from your sins. Choosing Christ and living His way means eternal life. Not doing so means eternal suffering. That is the ultimate choice with the ultimate consequences.
    J. Richards

  4. You know what I do not get about christianity and this Holier than thou attitude being applied to this issue per above commenter: if religion was a simple answer to this issue, we wouldn’t be dealing with it today. But, religions do not solve community issues in the end, as just like politics, they just become extremism and inflexibility, and if you don’t fit their peg, you are discarded, plain enough.
    This is an issue that has to account for choice and responsibility, and expecting the community to care for all who are infirmed and indigent does not teach independence and action. It is the adage of “catch the fish and the person will not feed himself, but, teach one how to fish, and the benefits will multiple.” People who continue to make poor choices in health care needs and access do not get a free card to get unlimited health care. That is why we have a crisis. Sick people who do not learn from their mistakes do not deserve unlimited treatments. Start with using tobacco and living on fast food. Why should I have to have higher premiums to support this behavior? And, I am a physician and do care, but, am tired of bailing out endless poor behaviors.
    And Republicans are the biggest religious hypocrites of the system. Deeds, not words are what define us. People want to put their faith and hope in a political party that preaches war and intolerance?
    Not the place to start in resolving problems within our borders, eh?

  5. J Richards,
    Care to share what you think a resonable premium would be for your family and how much in claims your family has averaged over the last six years? I’ll give you the benefit of the doubt till you answer but fully expect you want to pay less then what you cost the system, that is how most people view insurance.
    “Republicans and Blue Dog Dems, was it worth it? Were all your creature comforts and wads off payoff money for re-election worth your soul?”
    Anita, your obviously not capable of thinking for yourself, so ask someone why insurance companies would want a reform bill that grows public plans far more then private plans. Some estimates even show millions of people dropping out of private plans and being covered by public plans. Your rant lacks any logic.

  6. “I somehow cannot agree with that simply because the evidence based standards are not there for complex cases and even if they are, they are never 100%.”
    If a group of experts with the benefit of hindsight and time can’t establish a correct course of treatment how can a single physician with time constraints and possibly a budget be expected to. These are the exact cases providers need protection from. There should be a safe harbor for a provider that does what was prudent regardless of the outcome

  7. I am neither a Democrat nor a Republican. I’m just a man with certain beliefs. It’s man’s tendency to try to put people and things into categories (black or white, Republican or Democrat, liberal wuss or right wing nut job, Gator or Bulldog, dog-lover or cat-lover) so that man can make sense of the world around him and create a false sense of belonging and control. I am just an average Christian American guy who does the best he can to take care of my wife and kids and who believes these things regarding health care because I am a practicing Christian:
    I believe Jesus Christ is God Almighty who came in the flesh and died to carry the burden of all mankind’s sin and who rose from the dead so that we might turn to Him as the only way to eternal life and for the forgiveness of our sins before God’s perfect morality. So, as I believe Jesus is God Himself, I have to honor his directives and his Word when it comes to helping out the poor, especially those honest, hard-working citizens and those who simply cannot get or afford health insurance.
    Not helping others who don’t have access to affordable health care is a sin and it’s wrong, plain and simple. Jesus said, “Heal the sick, cleanse the lepers, raise the dead, cast out devils: freely ye have received, freely give.” To me, this one biblical verse among many that is a moral imperative from the creator Himself to care for those who are poor and sick and in need of help. Now, I have heard some hard-hearted folks say that Jesus meant that we each have a personal responsibility (not a government obligation) to take care of the poor and those who cannot afford, say, health care. While we each do have a personal obligation to care for and help others, I would ask you, what is the most efficient and appropriate way for me to help out, say, a neighbor who has cancer and who has lost her job she is now too sick to work? In addressing her financial and medical needs, is it the best and most efficient solution for me to personally go door-to-door asking for cash to help my neighbor pay for her medical costs? Or, is it more efficient and truly helpful for my neighbor and the vast group of others like her to receive healthcare assistance from me indirectly through a government-based health care program or some other large non-profit-non-privatized-pool of insured people that can manage health care on a large scale. Health care is the right of every human being. And yes, there will be those who take advantage of any medical system, private or public. But not every human being without health insurance is a “deadbeat”. Many are people who have pre-existing conditions and have lost jobs in a tough economy and cannot afford to pay expensive COBRA rates to continue their health insurance policies. Many are people working multiple part-time jobs that don’t offer coverage due to their part-time status. Many are people who work but simply don’t make enough money to afford a good health insurance policy. Many are like me, those who have illnesses or been in chronic-injury-causing-accidents that were truly beyond their control (not a result of conscious “choices” as Republicans are fond of saying), and who still go to work every single day and have paid health insurance premiums for the last 22 years (thanks to God) but who have weak HMO private insurance polices (Aetna) offered through work that have very limited coverage and high premiums and high deductibles. I pay about $600 per month for a family of four, just for the premium alone. I would like to be able to shop for my own private policy but I can’t due to the fact that I have pre-existing conditions and the federal health care reform that might allow me to get my own private health insurance policy apart from my job in 2014 now stands a good chance of getting repealed by our congress.
    I know the hard-hearted and the egotists say, “Why should I care whether or not someone else has or doesn’t have health care. After all, I care about me. I have insurance through my job, and I earned it solely through my own efforts, without the help of anyone else?” And that’s where you are wrong. Everything we have in life is there because God either directly or indirectly enables us to have it, including our money. You have been blessed with gifts and talents by God like your mind and initiative and family environment and circumstances that put you in that situation to succeed. If your love of money is keeping you from getting close to God, then Jesus is talking directly to your heart when he said, “It is easier for a camel to pass through the eye of a needle, then it is for a rich man to enter the kingdom of heaven” and “Give up everything you own and come follow me.” God gave you that brain and those circumstances and that will power and that drive and that job to earn that money to help others. Yes, those “others” start with your family. But, if you have enough money left over to buy a big boat or a brand new Mercedes and you don’t truly need expensive items like this, then you are willfully choosing to turn your back on helping others in lieu of your own personal gratifications. Rest assured, you will die and face your creator, just as I will have to do. How will you justify your treatment of others and your turning your back on the poor to God?
    The bottom line is that we need a better sense of community and solidarity and a culture where helping each other out is supported and not mocked. Christians and our citizenry have the obligation to put politics aside and work together for the good of all, for whatsoever we do (or do not do) for the least of our brothers, we do (or do not do) for God Himself. (Matthew 25:31-46)

  8. A November 5th Newsweek article I read this morning “Why Healthcare Reform Will Survive” is the best assessment of the Republican plan for health care reform that I have seen yet.
    The article was written by Wendell Potter, the former insurance insider and head of PR for CIGNA health insurance for 20 years. Potter basically says that the health insurance industry has been working behind the scenes with the GOP and Blue Dog Dems and actually LOVES multiple parts of the “Obamacare” plan that passed the house and the senate, even going so far as to write several portions of the original health care reform bill. For example, Potter says that the health insurance industry actually very much loves the part of the health care reform that requires everyone to buy insurance because they stand to make a huge amount of money in new health insurance clients. The original intent of the provision, when first proposed in the house, was to ensure people who couldn’t afford health insurance at private industry rates to be able to get very low cost public government/Medicare insurance or non-profit health insurance pools that would compete with the private insurance providers. By lobbying to keep that provision requiring people to have to buy insurance, private insurers stand to make a killing now. Of course, private insurers do want Republicans and Blue Dogs to do their bidding when it comes to repealing things that they don’t want in health care reform, like the requirement to provide affordable policies to children and adults with pre-existing conditions who can’t otherwise get insurance. Here’s a good excerpt from the article by Wendell Potter’s “Why Health Care Reform Will Survive”:
    “The real reason insurers want the GOP leading Congress again is not to repeal ‘Obamacare,’ but to try to gut some of the provisions of the law that protect consumers from the abuses of the industry, such as refusing to cover kids with preexisting conditions, canceling policyholders’ coverage when they get sick, and setting annual and lifetime limits on how much they’ll pay for medical care. Insurers also hate the provision that requires them to spend at least 80 percent of premium revenues on medical care, as well as the one that calls for eliminating the billions of dollars that the government has been overpaying them for years to participate in private Medicare plans. (Be on the lookout for a death panel–like fearmongering campaign to scare people into thinking, erroneously, that Granny and Pawpaw will lose their government health care if Congress doesn’t restore those ‘cuts’ to Medicare.)”
    Republicans and Blue Dog Dems, was it worth it? Were all your creature comforts and wads off payoff money for re-election worth your soul?

  9. Paolo – It was always my understanding that health courts, if they come to pass, would be implemented at the state level in place of the state level jury based malpractice system that exists today. I think the feds could be helpful in providing seed money, especially in a tough economy, to help cover start-up costs. As part of the new process, states could also individually pass safe harbor protection from lawsuits if evidence based standards were followed where they exist. Juries should not be deciding these cases if there is a more sensible alternative.

  10. “I’m not a lawyer but, to sue in federal court, I thought there has to be a federal issue involved for the federal court to have jurisdiction. Aren’t most malpractice cases filed in STATE courts and governed by state law?”
    Barry – That’s my point. Medical malpractice is a state issue that can and should be resolved at the state level. If it is resolved at the federal level(by making it a federal offense and setting up federal health courts) you would now be giving people the right to trial by jury (as per the 7th amendment).
    Peter and Margalit – An absolute right to trial by jury made a lot of sense in the 18th century when legal cases where simple and judges were appointed by the king. In today’s complex world it doesn’t always make sense. For example, it is simply not possible to give a jury a crash course in genetics before a complex case of biotech patent infringement. What ends up happening is that there is a well-spoken technical expert saying one thing and another one saying the opposite. The jury chooses whoever sounds more convincing, which tends to be pretty random.
    I think it’s in everybody’s interest (patient and doctor) to have a system that can objectively determine facts in complex technical cases.

  11. Margalit – I don’t think the level of malpractice premiums or whether or not caps on economic damages are in effect have much to do with how much defensive medicine is practiced when the jury based dispute resolution system is so inherently unpredictable from one case to the next even when the issues are similar and the jurisdiction is the same.
    In Europe, doctors generally perceive (correctly) that their probability of being sued for malpractice is essentially zero which makes it much easier for them to practice cost-effective medicine even when they are being paid on a fee for service basis. Ask doctors in the U.S. how their practice patterns would differ from what they are now if they could feel confident that they could treat every patient as though they were family members or friends – offer competent, professional and compassionate care while the perceived probability of being sued for malpractice is zero or close to it.
    We won’t and can’t know whether health courts could reduce defensive medicine significantly or not until we try them and give them at least five years for doctors to gain confidence in the fairness of the system. I think the Health Affairs study is basically worthless because its assumptions and methodology miss the mark. Maybe some of these academics should try asking doctors exactly what it would take to induce them to reduce defensive medicine. They would probably get some useful and worthwhile feedback.

  12. Margalit and Peter –
    While the numerous doctors who comment here can speak for themselves and it would be nice to hear their perspective, my perception is that the current system of dispute resolution is viewed as arbitrary and highly unpredictable from one jurisdiction to another and sometimes even within the same jurisdiction depending on who the lawyer is and the composition of the jury in each particular case. Health court judges could hire experts who have no financial stake in the outcome of the case and are not viewed as either a plaintiff witness or a defense witness. Judges would presumably have the expertise to sort through conflicting scientific claims and there would be no juries. Doctors would perceive that they are more likely to get a fair and objective hearing under this approach and they should be more confident in the process even if the rulings sometimes go against them.
    Even with health courts, I think it could easily take 3-5 years before the new system built up enough credibility and confidence among doctors to induce them to start to reduce defensive medicine. I also suggest that if, in the end, it doesn’t work, we could always go back to the system we have now. It’s wrong to assume that if we switched medical dispute resolution from juries to health courts that we would be stuck with that system forever. It would probably be best if it could be tried in one or two or three states and then replicated elsewhere if the results are positive.
    Defensive medicine is, unfortunately, one of those areas that simply doesn’t lend itself to precise quantification because there are usually other factors involved including local practice pattern culture, patient requests and preferences, and the financial incentives under a fee for service payment model. Out of curiosity, when I had my annual physical a couple of months ago, I asked my cardiologist / PCP what percentage of the utilization ordered by him and his colleagues (it’s a seven doctor group) is attributed to defensive medicine. His answer was that in his practice as well as most other practices that he is aware of in the NYC area, defensive medicine accounts for about 15% of utilization. My own perception is in the high single digits to about 10%. Fixing this is not a silver bullet but it is one of numerous silver pebbles that can help us reduce the healthcare cost growth rate.

  13. Barry,
    I am not certain that things can be as cut and dry as you are suggesting. For example:
    “If a woman of a certain age and risk profile should not get a mammogram according to the evidence because it has more associated risks than benefits and she later develops breast cancer, I don’t think it’s malpractice despite the bad outcome.”
    Did the doctor inform the woman of the risks and benefits? Did she understand? Did the doctor actually evaluate her risk profile, or did the patient or nurse filled the questionnaire, but the doctor never read it? If a new guideline comes out a year after the encounter, and contradicts the original guideline, is it incumbent on the doctor to review all charts and find all the patients affected and notify them?
    And how many situations have such deterministic guidelines accepted by everybody in the field?
    What makes you think that health courts will “be in a position to rule objectively and dispassionately”? Assuming the experts are going to be doctors themselves, and considering that doctors have not been very good at weeding out the bad apples in the past, I seriously doubt the objectivity of such courts will be any better than the lay courts of today.
    As to reducing defensive medicine practices, there was a post here earlier by Paul Levy describing the shame physicians feel when sued. Do you think that a case litigated in front of a tribunal, instead of a jury, will reduce those feelings? And if it doesn’t, then how will defensive medicine be reduced in scope unless, of course, you take away people’s right to sue at all.
    I also still need to see research quantifying how much of health care costs are due to defensive medicine. My suspicion is that most tests are ordered because of time limitations. It is much faster to order something and/or refer to someone than examine the patient, let alone talk to the patient (there is a recent post here about that too).

  14. Not sure what “home rule” in New Jersey has to do with medical malpractice, but if I saw that tort reform did reduce excessive testing/treatment/billing I’d have more support for your position. No where do I see a relationship between tort reform and treatment/billing practice. It’s hard to stop income producing treatment when your life style depends on it, tort reform or not.

  15. “If you were involved in a lawsuit as the injured party would you want your lawyer doing all they could to win, even using sympathy.”
    Peter – We could go back and forth on this for a long time. I never said that medical malpractice doesn’t occur. I have said that I think the medical profession could do a much better job of weeding out the very small percentage of doctors who account for a disproportionate share of malpractice and I would say that I am prepared to live with a system of medical health courts that I advocate to resolve medical disputes in place of juries.
    I’ve also said before that health courts would be especially valuable in reducing the number of failure to diagnose cases and the large amount of defensive medicine associated with trying to avoid being involved in one. If, for example, a doctor explains to a patient that medical evidence does not recommend a PSA test based on his age and risk profile and the patient agrees not to have one done and later develops prostate cancer, I don’t think that constitutes malpractice despite the unfortunate outcome. If a woman of a certain age and risk profile should not get a mammogram according to the evidence because it has more associated risks than benefits and she later develops breast cancer, I don’t think it’s malpractice despite the bad outcome. Doctors should have safe harbor protection from lawsuits in both of these circumstances. Health courts would presumably be in a position to rule objectively and dispassionately and not based on sympathy related to the bad outcome. Juries are more likely to be moved by sympathy for the plaintiff.
    Your argument reminds me of all the people here in New Jersey who fiercely defend so-called home rule and the massive administrative duplication that comes with having so many towns and school districts in a small state and, in the next breath, complain loudly about our high property taxes. Defensive medicine pervades the medical culture and contributes significantly to our high healthcare costs. Health courts could make a positive contribution toward mitigating that problem.

  16. Exactly which John Edward’s case are you talking about Barry? Are you saying defendants’ lawyers are total incompetent goofs who can’t persuade juries and who don’t hire “experts”, neutral or not? If you were involved in a lawsuit as the injured party would you want your lawyer doing all they could to win, even using sympathy. Maybe you’d like to review his legal record and tell me there were no facts just emotion.

  17. I don’t think the ability of a glib trial lawyer like, say, John Edwards, who can skillfully manipulate the emotions of jurors in order to maximize sympathy for his client and win a verdict / award that may be completely unjustified by a dispassionate analysis of the facts of the case is a good or appropriate way to resolve medical disputes. We call it jackpot justice for good reason and the irrationality and unpredictability of it all accounts for why defensive medicine pervades the medical culture. Health courts presided over by judges with specialized knowledge in the area and the ability to hire neutral experts to sort through conflicting scientific claims could bring not only objectivity to medical dispute resolution but more consistency over time and across jurisdictions.

  18. I think the argument that “uninformed jurors” are liable to make dumb decisions is increasingly applicable to most trials.
    I would prefer not to start a process undermining the concept of trial by juries, based on common folks’ inability to understand cases, testimony or proceedings.

  19. “Patent law is another area where uninformed jurors often make really dumb decisions.”
    Paolo, explaining to jurors complicated cases in simple terms is what good lawyers are paid to do. Lawyers also have some control of jury selection. Barry mentions arbitration but does not mention that present arbitration is dictated by the party who has the most to gain from it and that arbitrators are paid (and influenced) by the defending party not injured party.

  20. Paolo – I’m not a lawyer but, to sue in federal court, I thought there has to be a federal issue involved for the federal court to have jurisdiction. Aren’t most malpractice cases filed in STATE courts and governed by state law? Suppose, say, Utah, which has a state legislature that is at least 70% Republican as well as a Republican governor, passed legislation that established health courts and a safe harbor protection against lawsuits related to failure to diagnose claims if evidence based standards were followed. If federal law were silent on issue, couldn’t Utah resolve these cases without involvement by juries? I don’t know but perhaps one of the legal experts out there could weigh in.

  21. Barry – Thanks for the link. The site you mention gives good reasons why the health courts would be useful, but little guidance as to how they could be implemented.
    Even if we put aside any potential criminal aspects, the 7th amendment to the US constitution guarantees trial by jury for civil lawsuits filed in federal court. This applies even to bankruptcy and tax cases where legal (not equitable) remedies are sought. I don’t see how federal law can get around this explicit constitutional right.
    I personally think there are too many trials by jury in too many technical areas where juries are not appropriate. Patent law is another area where uninformed jurors often make really dumb decisions. However, I’m not sure that this can be changed at the federal levl without a major overhaul of the federal justice system, including an amendment to the USC.

  22. I don’t have a solution, Barry, particularly one for the general litigious culture.
    On the other hand I don’t think that publishing a cookbook and encouraging people to follow it in order to defend themselves from litigation is a much better idea than the current version of defensive medicine. It will probably be cheaper, but not necessarily better. We are, I think, arguing the pros and cons of the fire vs. the frying pan.

  23. Margalit – I disagree with you. There are always going to be statistical outlier cases that cannot be identified as such in advance. If a doctor follows evidence based guidelines and a tiny number of patients who are statistical outliers have a bad outcome and the doctor could not reasonably identify the patient as an outlier ahead of time, what is he supposed to do? In the vast majority of cases, bad outcomes are NOT the result of malpractice. I’ve had people in the medical profession who are a lot smarter than I am suggest that the tiny number of statistical outlier cases are exactly those for which the safe harbor protection is needed the most. No system is absolutely perfect and resources are finite. If you have a better fix for the defensive medicine issue, especially as it relates to failure to diagnose claims, and our litigious culture generally, I would like to hear it.

  24. “Safe harbor protections from lawsuits if evidence based standards were followed should probably be a federal law ”
    Barry, I somehow cannot agree with that simply because the evidence based standards are not there for complex cases and even if they are, they are never 100%. If we had evidence based standards that worked every single time, for every single patient, I would agree with your suggestion. Things being what they are, this safe harbor suggestion could do more harm than good.

  25. Paolo – The best source that I’m aware of regarding health courts is at http://www.commongood.org. I note that we already have tax courts and bankruptcy courts and most disputes between stock and bond brokerage firms and their clients are generally resolved through an arbitration process. My perception of the word crime as used in the constitution and its reference to trial by jury involves a deliberate violation of a law and the intent to cause harm to the victim of the crime. That’s not what we have with medical malpractice cases. I also think it is more likely that the states would establish health courts. Safe harbor protections from lawsuits if evidence based standards were followed should probably be a federal law that would take precedence over state law on those specific issues, however. These generally relate to failure to diagnose cases as opposed to, say, botched surgeries. Trying to avoid involvement in a failure to diagnose case probably accounts for a disproportionate share of defensive medicine. The way to do that is to order lots of tests whether you think they are really necessary or not.
    The comment from the senior lobbyist suggesting that there might have been 100 Republican votes in the House if substantive medical tort reform were part of the bill came at a luncheon for investors that I attended recently. He has been around Washington a long time and knows all the major players well.
    Peter – I think a health court approach could include significant simplification of the litigation process. There could be informal preliminary hearings that could offer some guidance as to whether or not a case has merit. Defensive medicine is not nearly the issue in other countries that it is here. Medical tort litigation is one area where it would be to our collective advantage to try to be more like our friends abroad.

  26. “Peter – States that have enacted so-called tort reform have opted for caps on non-economic damages like pain and suffering. That’s not the answer”
    Barry, we all know that non-economic damages is what pays the lawyers for what are very expensive law suits. What system then would you pay lawyers from? If you linked to the site that pointed to reduced malpractice premiums it appears that tort reform has worked for insurance and for doctors, just not for healthcare premium payers or I suspect patients.

  27. Barry – I think that the idea of replacing state juries with some type of technical health courts is a good one. However, I’m not clear on how the federal government could do this on its own? Would these “health courts” be set up by the US DoJ? Would federal law be able to stop state judges from acting against doctors? What do we do with Article III Section 2 of the US Constitution (“Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.”)?
    Do you know of a good proposal/document that goes into the specifics of how this could be done?
    Btw, do you have the source of the story about the “senior lobbyist” who said that tort reform would have carried 100 Republicans to vote for the PPACA?

  28. Once again we are focusing on this on again, off again Health Reform issue.
    If we really want to “bend the cost curve” in Health Care then we need to let the shenanigans play out on Capitol Hill while we all roll up our sleeves and focus on how we can truly engage consumers/patients in managing their health and the health of those they care about BEFORE they become ill. If they are already ill, let’s give them and their caregivers the tools so that they can all be ACTIVE participants in managing the condition.
    It is this concept of Patient Engagement that drives me to organize HealthCamps (http://healthca.mp). Why don’t you come and brainstorm what we can do to practice participatory health care at HealthCampDC (http://bit.ly/hcdc10site) on 2010-11-12. It is taking place right in the backyard of the Capitol.

  29. Any moderate Rebublicans like myself who wish to see AMERICANS finally have health ins and move towards something which covers them have been effectively purged out of the party. Many of The party which rejects Darwin seems to insist that Americans should embrace Survival of the fittest, spit on the poor and have the middle class rely on spaghetti dinners at the local volunteer firehouse to pay for health care.
    I am real sorry, I just seem to run into Republicans who do not want health care for others and instead offer cheap AM radio solutions and have no issues with US Senate candidates who mock Autism, demand elimination of ADA and pledge to keep my wife, kids and myself uninsurable. As we get older they promise to get rid of Medicare in a wild orgy of Muslim/Marxism fantasies blurred by death panel emails with Obama as a pimp attachements.
    I knew I was out of the GOP the moment the President thanked the House and Senate for passing children’s health care during a State of the Union address and the entire GOP delegation sat on their asses with anger.
    I work in health care and most of the uninsured are working at the bottom of the wage scale, which the GOP has campaigned to get rid of. I have been at GOP events where they laugh about why the young need health insurance and the GUVMNINT needs to be out of it. The next day I am busy with young people who are sick or injured. They have told me that there is plenty of health care in the ER for everyone!
    Stem cell research to keep the USA at the top of the research?
    That is the work of Satan.
    Electronic Medical Records?
    That is part of Obama’s one world socialist plan.
    Review salt content of food?
    That is part of Obama and the Guvmint taking away our freedoms.
    The Dems are far from perfect, but at least they have a heart and put up a bill to cover Americans in America that can be of use and improved.

  30. Peter – States that have enacted so-called tort reform have opted for caps on non-economic damages like pain and suffering. That’s not the answer as I’ve said many times. No state that I’m aware of takes medical disputes out of the hands of juries in favor of health courts and/or implemented safe harbor protection for doctors who follow evidence based guidelines when they exist. If those reforms are ever implemented, I suspect that would take a few years and a number of dismissals of failure to diagnose claims before doctors start to have sufficient confidence to reduce defensive medicine. I’m not saying it’s the complete answer to bending the medical cost growth curve but it would be a strong start. Episode pricing, capitation where feasible and price and quality transparency tools available to both patients and referring doctors would also be enormously helpful as would a more sensible approach to end of life care, I believe.

  31. Barry, it appears you think “tort reform” is the missing link keeping us from lower medical costs. Yet in states that have enacted tort reform there is no corresponding reflection in their medical costs, even if malpractice premiums have dropped. It’s clear docs want it all, safe harbor from errors/mistakes/negligence and all the money they can bill for.

  32. A senior lobbyist told a small group recently that if Democrats were willing to take on their trial lawyer friends and support sensible tort reform including using special health courts instead of juries to resolve medical disputes and giving doctors robust safe harbor protection from lawsuits if they follow evidence based guidelines where they exist, there could have been 100 Republican votes in the House for the reform bill. Democrats have long been completely unwilling to take on trial lawyers as even former Democratic senator and presidential candidate, Bill Bradley, has criticized them for. If President Obama is serious about trying to find common ground with Republicans on health reform and other issues, he could start with medical tort reform.

  33. W T F?
    “One thing that the uninformed have not considered is the loss of jobs if the healthcare reform doesn’t happen in the USA ..”
    Sigh. This was already beaten to death, three months ago. OK, once again …
    GEE! If OweBamaCare is so great — why have so many business groups, attacked it with so much vigor?
    A: Because it is absolute CRAP. A legislative mess, thrown together by INCOMPETENT fools. Now under attack on several fronts — a decade of future litigation.
    Dang. OweBama was supposed to “bi-partisan.”
    Total BSer is more like it — Mr. Duplicity/Mendacity/Two-Face.

  34. “Private insurers want Congress to nix that $70 billion tax that will be levied against them beginning in 2014.”
    After they made obscene profits this year, this seems just a bit greedy, no?
    The entire payment structure in the US is flawed by the price freeze. That is something neither party gets.

  35. One thing that the uninformed have not considered is the loss of jobs if the healthcare reform doesn’t happen in the USA. One of the reasons that so many jobs have moved offshore is the lower cost of healthcare. I lived in Argentina last year where you can purchase top shelf healthcare Insurance from Swiss Medical for $1400/yr this include drugs and dental. http://www.swissmedical.com.ar/ Note that Swiss Medical is the best Insurance that you can get in Argentina. Most of the providers in Argentina received their training in the US. If reform is reversed I will be considering moving my company out of the USA, where I can afford to compete in the world marketplace.

  36. Let’s be clear on both party’s agendas, as far as I have witnessed them these past 30 voting years:
    Republicans, who I affectionately call Repugnacants, have been fairly blunt in their goals since Reagan took office: we want your money for us and our cronies, and if you won’t hand it over willingly, then we’ll just find legals ways to take it from you. And, if we can get away with it, illegal ways as well!
    Democrats, as I call Democraps, per their behaviors finally having a majority in Legislative and Executive Branches these past 2 years, have said it differently but come to the same endpoint: we want your money to give it to everybody so we can make them our friends and keep us in office, and if you won’t hand it over willingly, then we’ll find legal ways to take it from you, because we want people to think we care and too many people have too much money anyway. And, if we can get away with it, even if it turns out to be illegal, we’ll just claim we didn’t know any better.
    So, who offends you more? The guy who holds the gun out and tells you to hand over your wallet, or, the guy who holds out his hand to shake it, while he holds a dagger behind his back to stab you when you turn around? Well, they are both criminals, but doesn’t the latter turn your stomach just a tad more? Hence the Democrats utter failure to understand the outrage the majority of Americans showed yesterday. Saying F U with a smile doesn’t make it nicer.
    Yeah, the Repugnacants will find creative ways to make this legislation more pathetic, but, at least they know the public is watching them and is on to their crap! Maybe, just maybe, they might surprise us and do, heaven forbid, the right thing? If they can’t come up with a new war to fight first!!!

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