Category: Health Policy

Burden of Pain

May 5, 2023

BY JAY JOSHI

We’re seeing a trend of late, where matters in healthcare once deemed to be civil in nature are turning criminal. We see it for nearly every polarizing health issue, from abortion to opioids. And it’s affecting vulnerable patients the most.

We have two separate systems in place, civil and criminal, because we have different standards of behavior. Civil laws determine whether undue harm was caused by one party to another. Criminal laws determine whether someone committed a crime. The threshold is distinctly different. If someone is caught driving ten miles over the designated speed limit, that person committed a civil infraction of traffic laws. But if someone is caught speeding well in excess, say thirty or forty miles over the speed limit, while driving recklessly, that person committed a crime. The extent of the violation determines the applicable law. That’s why traffic laws have distinct civil and criminal laws.

The same logic applies to healthcare. We have civil penalties for undue harm or malpractice and we have criminal penalties for crimes that transpire in the clinical context. The difference between the two, for something to go from civil to criminal, is mens rea, or a requirement of criminal intent.

Criminal intent implies certain violations were committed deliberately – literally as an act of crime. Normal civil violations, such as malpractice claims, offer physicians protection against liability. That protection doesn’t apply for criminal violations. And that’s the point. It explains why the sudden push by regulators, prosecutor offices, and federal agents to investigate otherwise civil matters as criminal is so pernicious.

I Have Some Silly Questions

Apr 18, 2023

BY KIM BELLARD

Last year I used some of Alfred North Whitehead’s pithy quotations to talk about healthcare, starting with the provocative “It is the business of the future to be dangerous.” I want to revisit another of his quotations that I’d like to spend more time on: “The silly question is the first intimation of some totally new development.”

I can’t promise that I even have intimations of what the totally new developments are going to be, but if any industry lends itself to asking “silly” questions about it, it is healthcare. Hopefully I can at least spark some thought and discussion.

In no particular order:

Why do we prefer to spend money on care when people are no longer healthy than we do on keeping them healthy?

The U.S. healthcare system well known for being exorbitantly expensive while delivering rather mediocre results. Everyone laments it but we keep throwing more money into the system that is producing these results.

We’d be smarter to invest in upstream spending. Like making sure people get enough to eat, with foods that are good for us. We’d rather spend money on diabetes or obesity drugs rather than addressing the root causes of each disease. Or like making sure the water we drink, the air we breathe, the things we eat, aren’t polluted (how many toxins or microplastics have you ingested today?). Not to mention reducing poverty, improving education, or fixing social media.

We know the kinds of things we should do, we say we want to do them, but we lack the political will to achieve them and the infrastructure to ensure them. So we end up paying for our neglect through our ever-more expensive healthcare system. That’s silly.

Why is everything in healthcare so expensive?

Coverture – Could History Repeat?

Apr 17, 2023

BY MIKE MAGEE

All eyes were on Wisconsin – not last week, but in 1847. That’s when Wisconsin newspaperman and editor of the Racine Argus, Marshall Mason Strong, let loose in a speech on the disturbing trend to allow women the right to buy and sell property. It seems the state had caught the bug from their neighbor, Michigan, which was considering loosening coverture laws.

“Coverture” is a word you may not know, but should. It was a series of laws derived from British Common Law that “held that no female person had a legal identity.” As legal historian Lawrence Friedman explained, “Essentially husband and wife were one flesh; but the man was the owner of that flesh.” From birth to death, women were held in check economically. A female child was linked by law to father’s entitlements. If she was lucky enough to be married, she lived off the legal largesse of her husband. They were one by virtue of marriage, but that one was the husband, as signified by taking his last name.

The practice derived from British law. Women were held in matrimonial bondage in England with the aid of ecclesiastical courts and the officiating presence and oversight of an Episcopalian clergyman. This meant control over getting married as well as well as the capacity to escape a marriage marred by abuse or desertion. Not that there was much call for divorce. Britain was a divorceless society. The richy rich occasionally could be freed by a special act of Parliament. But this was exceedingly rare. Between 1800 and 1836, there were less than 10 divorces granted per year in England. For the unhappy rest, it was adultery or desertion.

The divorceless society held for the first half of the 19th century in most of the states below the Mason-Dixon line, with South Carolina being the most restrictive. But every New England state had a general divorce law before 1800, as did New York, New Jersey and Tennessee. “Grounds” (which varied from state to state) were presented in an ordinary lawsuit by the innocent party.

Demand for divorce grew as America grew in the first half of the 19th century. With mobility came hardship and “odious abuse’, and increasing recognition that “a divorceless state is not necessarily a state without adultery, prostitution and fornication. It is certainly not a place where there are no drunken, abusive husbands.” And then there was the issue of property rights and its ties to economic growth in this still young nation.

America was rich in land, which rapidly translated into a fast-expanding smallholder middle-class. Relationships could shift on a dime, resulting in property disputes and threats to the legitimacy of children and one’s heirs. The numbers of land owners, fueled by westward expansion were enormous, and each had a stake in society. When push came to shove, economics won out over Puritan instincts – but not without a fight.

Obesity is crippling the US, but there are solutions

Apr 13, 2023• 2

By STEPHANIE TILENIUS

Well over a third of Americans are obese — and the percentage keeps growing at a staggering rate. Over the last twenty years, obesity prevalence grew from 30% to 42 % of the US population and rates of severe obesity nearly doubled. If we don’t make serious changes to our healthcare system, it’s scary to think where we’re headed in a few short years.

The fact is, obesity is far from a cosmetic condition. It can be a devastating disease and was classified as such by the American Medical Association in 2013. Obesity is the leading risk factor for deadly diseases like type 2 diabetes, heart disease, stroke, and at least 13 types of cancer.

If we don’t stop the obesity epidemic in its tracks now, we’re in for a world of hurt. People’s lives, the healthcare system, and, by extension, the US economy could be headed for collapse if we continue to ignore it. Cardiometabolic conditions like obesity, heart disease, stroke, and diabetes cost the US healthcare system upwards of $500 billion a year in healthcare costs and another $147 billion in lost workforce productivity for heart disease and stroke alone.

And yet private and government-sponsored health plans are dragging their feet to address obesity head on. They know most people jump from health plan to health plan every few years, so they’re willing to take the chance that their members with obesity won’t develop high-cost complications soon enough to justify treatment now. And yet treatment could reverse the effects of obesity and downstream chronic disease, saving lives and billions of dollars in the long run.

Trump As Catalyst For Legal and Cultural Reform

Apr 5, 2023

BY MIKE MAGEE

Former President Donald Trump’s indictment this morning reinforces most Americans’ belief that “No man is above the law.” But few of us have taken the time to explore what that statement means when it comes to building a healthy nation, and why we believe it.

How do you create a healthy nation?

This is at once a very simple and a very complex question. It is at the heart of successful and failed nation building.

It applies equally to a self-assessment of our approach to rebuilding Germany and Japan as part of the Marshall Plan after WW II, and to our own struggles with autonomy and disparity in America where our very beginnings were (and continue to be) marred by a history of enslavement of blacks, forced migration and cultural destruction of Native Americans, and subjugation of women.

The law, a blend of agreed upon rules, regulations and boundaries, arose in layers over time, and reflected the communities where they emerged. Our own American legal system, on which we relied to launch this nation-building exercise in 1776, is dynamic and continues to evolve to this day.

As legal historian Lawrence Friedman wrote, “Despite a strong dash of history and idiosyncrasies, the strongest ingredient in American law at any given time is the present – current emotions, real economic interests, and concrete political groups.” It is then “a study of social development unfolding through time…”

When building a nation, some countries like France and Germany, relied on written codified rules, statutes or “rational instruments” on which they leaned to create order and to base decisions. But our laws, upon which this nation was built, if they have a basis, were descendant from British law.

Can American Democracy Pass The Trump Stress Test?

Mar 31, 2023• 1

BY MIKE MAGEE

As we enter a new and potentially historic week, with a former President doing his best to reignite a Civil War in our nation, we do well to take a breath and reread James Madison’s words from Federalist No. 51. But first, a few words of history.

When it came to checks and balances in this new national experiment in self governance, the Founders, while establishing three co-equal branches, left one of those branches the task of defining by practice its own power and influence.

The new Constitution in 1787 awarded one branch, the elected Congress, the daunting power to impeach, convict and remove representatives or appointed federal officials for due cause up to the President himself. But it also empowered a second branch, the Executive, through its President, veto power to check legislative excesses and the privilege of initiating appointments to the federal judiciary. Only the third branch of the government, the Judiciary, was left deliberately “elastic,” destined to grow into “the triangle of power.”

Thirteen years later, on February 17, 1801, Congress was forced to break a tie in the Electoral College vote, resolving a Constitutional crisis and declaring a victor in one of “the most acrimonious presidential campaigns” in U.S. history. Thomas Jefferson was awarded the victory, and John Adams acquiesced and was sent packing a month later. But two days before he departed, Adams unloaded multiple appointments of circuit justices and justices of the peace which the U.S. Senate quickly confirmed on March 3rd. In the rush, Adam’s Secretary of State, John Marshall (soon to become Chief Justice Marshall of the Supreme Court under President Jefferson) didn’t have time to complete a final necessary step, delivering the commissions, to some of the appointees.

A big data COVID train wreck

Mar 13, 2023• 1

BY ANISH KOKA

If there was any doubt the academic research enterprise is completely broken, we have an absolute train wreck of a study in one of the many specialty journals of the Journal of the American Medical Association — JAMA Health.

I had no idea the journal even existed until today, but I now know to approach the words printed in this journal to the words printed in supermarket tabloids. You should too!

The paper that was brought to my attention is one that purports to examine the deleterious health effects of Long COVID. A sizable group of intellectuals who are still socially distancing and wearing n95s live in fear of a syndrome that persists long after a person recovers from COVID. There are any number of papers that argue a variety of putative mechanisms for how an acute COVID infection may result in long term health concerns. This particular piece of research that is amplified by the usual credentialed suspects on social media found “increased rates of adverse outcomes over a 1-year period for a PCC (post-COVID conditions) cohort surviving the acute phase of illness.”

In this case PCC (Post-COVID conditions), is the stand-in for Long COVID, and leading commentators use this paper to explicitly state that heart attacks, strokes and other major adverse outcomes doubled in people post-COVID at 1 year…

It is a crazy statement, and anyone regurgitating this has no business commenting on any scientific papers. Let me explain why.

In order to find out about the potential ravages of long COVID researchers need to be able to compare outcomes between those who were infected with COVID and now have long covid to those who were never infected with COVID. At this point finding a large enough group of people that never had covid is impossible, because everyone in the world will have been infected with COVID many, many times. It’s also really hard to define the nebulous long COVID because a study after study finds no clear objective markers of the disease.

Matthew’s health care tidbits: Oh, the DEA makes me sigh….

Mar 7, 2023

Each time I send out the THCB Reader, our newsletter that summarizes the best of THCB (Sign up here!) I include a brief tidbits section. Then I had the brainwave to add them to the blog. They’re short and usually not too sweet! –Matthew Holt

I have always thought that the dual role of the Drug Enforcement Agency (DEA) was an anachronism that severely hampers America’s complex relationship with pharmaceuticals. Congress deems some medicines legal and regulates them via the FDA, and deems others illegal and tells the DEA and other law enforcement agencies to attempt to control their supply. Leaving aside the basic futility of this task, somehow DEA was also given the task of regulating the prescribers of legal prescription (and non-prescription) drugs–in particular those around controlled substances.

This has led to decades of DEA-led persecution of doctors, patients and even convenience store clerks in the name of reducing the diversion of opiates and methamphetamines. Of course going after any of these folks is much easier and less risky than hunting a Mexican cartel or busting real criminals, so it’s easy to see why the DEA has taken that approach. Has it worked in reducing the supply of opiates? Maybe. Has it had any impact on the opiate crisis? Not really. Have a whole lot of patients been caught in the crossfire? Yup.

Now the DEA is moving onto the next phase–re-regulating the online prescribing of controlled substances that was liberalized at the start of the public health emergency in 2020. As you can imagine, their proposals are not exactly bursting with reason.

The DEA is essentially banning all controlled prescribing without a face to face visit first. This is despite the fact that the demand for those mental health medications increased dramatically during the pandemic as rates of depression and anxiety went up by a factor of three. While you can argue that in 2021 and 2022 some online services (notably Cerebral) may–and I stress may–have crossed the over-prescribing line for ADHD and other conditions, there’s no evidence that what happened is any worse than the in-person care that the DEA has been inadequately overseeing for decades. More importantly, those online services have already pulled out of those exact therapeutic markets the DEA is alarmed about. Who is left providing online ADHD care? Local clinicians and reputable services. And of course DEA knows full well, and is doing nothing about, the lack of access to mental health professionals that existed long before the increase in demand.

Is there any reason to suspect DEA will improve the quality of the system dealing with these medications? Highly doubtful. There are two current examples suggesting why not. First, due to the increased demand from the pandemic induced mental-health crisis and production problems at pharma company Teva, there’s a massive shortage of ADHD medication already. The DEA could help patients out here, but have declined to increase production quotas–sending millions of patients and their parents on a wild goose chase hunting down pharmacies with actual supply of Adderall and related meds.

Secondly, the DEA wants to also ban the the online prescribing of another drug , buprenorphine, which is used to help wean patients with substance use disorder off opiates and other substances. OK, so there’s a one month grace period here but essentially this is a short-sighted ban that will directly lead to patients going to the black market to acquire opiates, leading to more addiction and death.

My conclusion is that the DEA should be removed from its oversight of licensed clinicians and that role be given to FDA or HHS. At the least these proposed regulations should be abandoned and rolled back to what we have now. The only good news is that there is still time to comment on the regulations. I went and did so and I hope you will too. Patients have suffered enough already.

Ecology Rescued the AMA and Medical Professionalism Beginning in 1870. Will technology and science rescue the profession once again?

Mar 6, 2023

BY MIKE MAGEE

Medicine does not exist in a vacuum. The trusting relationships that underpin it function within an ever-changing environment of shifting social determinants. This is not new, nor surprising.

Consider for example the results of their 1851 survey of 12,400 men from the eight leading U.S. colleges had to be shocking. The AMA was only four years old at the time and being forced to acknowledge a significant lack of public interest in a physician’s services. This in turn had caused the best and the brightest to choose other professions. There it was in black and white. Of those surveyed, 26% planned to pursue the clergy, 26% the law, and less than 8% medicine.

It wasn’t that doctors with training (roughly 10% of those calling themselves “doctor” at the time) lacked influence. They had been influential since the birth of the nation. Four signers of the Declaration of Independence were physicians – Benjamin Rush, Josiah Bartlett, Lyman Hall, and Mathew Thorton. Twenty-six others were attendees at the Continental Congress. But making a living as a physician, that was a different story.

During the first half of the 19th century, the market for doctoring went from bad to worse. Economic conditions throughout a largely rural nation encouraged independent self-reliance and self-help. The politics of the day were economically liberal and anti-elitist, which meant that state legislatures refused to impose regulations or grant licensing power to legitimate state medical societies. Absent these controls, proprietary “irregular medical schools” spawned all manner of “doctors” explaining why 40,000 individuals competed for patients by 1850 – up from 5000 (of which only 300 had degrees) in 1790.

The ecology of 1850’s medicine couldn’t be worse. The marketplace was a perfect storm – equal parts stubborn self-reliance, absence of licensure to promote professional standards, diploma mills that showed little interest in scientific advancement, and massive unimpeded entry of low quality competitors.

The legitimate doctors in those early days saw 5 patients on a good day. Horse travel on poor roads, and the absence of remote systems for communication, meant doctors had to be summoned in person to attend a birth or injury. And patients lost a day’s work to travel all the way to town for a visit of questionable worth. The direct and indirect costs for both doctor and patient were unsustainable. As a result, most doctors had multiple careers to augment their income.

Let’s Do Public Health Better

Feb 28, 2023• 1

BY KIM BELLARD

Eric Reinhart, who describes himself as “a political anthropologist, psychoanalyst, and physician,” has had a busy month. He started with an essay in NEJM about “reconstructive justice,” then an op-ed in The New York Times on how our health care system is demoralizing the physicians who work in it, and then the two that caught my attention: companion pieces in The Nation and Stat News about reforming our public health “system” from a physician-driven one to a true community health one.

He’s preaching to my choir. I wrote almost five years ago: “We need to stop viewing public health as a boring, not glamorous, small part of our healthcare system, but, rather, as the bedrock of it, and of our health.”

Dr. Reinhart pulls no punches about our public health system(s), or the people who lead them:

…the rot in public health is structural: It cannot be cured by simply rotating the figureheads who preside over it. Building effective national health infrastructure will require confronting pervasive distortions of public health and remaking the leadership appointment systems that have left US public health agencies captive to partisan interests.