Cincinnati on the Ohio January/February 2002
Is Medical Care a Right?
The Annual meeting of the Association of American Physicians and Surgeons (AAPS) met recently in Cincinnati, across the Ohio River from the Blue Grass country, to discuss whether Medical Care is a Right. Robert Cihak, MD, radiologist, author and columnist of an e-journal, was presiding. Jane Orient, MD, internist, author and Executive Director of the AAPS, opened the conference with a presentation of the basic constitutional issues of rights andprivilege. The Constitution of the United States protects natural and unalienable rights to life, liberty and property. Aright is something one possesses free and clear that can neither be created nor revoked by government. In contrast, aprivilege is an entitlement granted by government that has the power to limit, restrict or revoke that privilege at its own discretion or whim. The government may not rightfully deprive some people of rights in order to bestow privileges on others.
If government grants a “right” – which is actually a privilege – to medical care, then the government has the power to ration and regulate medical care, force patients to pay for others’ car, and to abrogate patients’ protected rights to choose their physicians and contract for care they deem necessary in accordance with the highest standard of medical practice.
If medical care is a right, then there is no right to buy your own care or your own health insurance, provide or receive truly personal or confidential care, set your own fees based on value provided, practice according to your own best judgment, profit from prudent use of resources or profit from investment in drug research.
In other countries that have various forms of socialized medicine, there have never been enough financial resources to pay for optimum care. Governments in Europe and elsewhere seemingly have an unlimited ability to tax, with rates of 40 to 80 percent on income as it is earned, and 15 to 20 percent of income as it is spent (sales or value-added taxes). If healthcare costs were allowed to float to patient demands or 15 to 25 percent of GDP, there would be no funds left for food and shelter, much less for the ingenuity of humankind to improve the plight of mankind. Hence, a large share of the money has to come from physicians and other providers who are required to give their services at a reduction of income. This has been likened to indentured servant-hood.
The Social Security Act of 1965 (PL89-97) Section 1801 reads “Nothing in this title shall be construed to authorize any federal officer or employee to exercise any supervision or control over the practice of medicine.” Today there are thousands of laws, 132,000 pages of federal regulations and many written and unwritten policies that do just that. There are medical organizations that are proposing a single payer – ultimately the government that utilizes absolute control since private monopolies are not allowed. The UK proposed to limit doctor visits to five per year and antibiotic prescriptions to three per year. The proposal failed but did point out the power bureaucrats would like to impose over our profession, forgetting that the patients ultimately suffer. Can single payer please everyone? It will please fewer patients over time. It may please the passengers of Southwest Airlines whose motto tells it all: All of our passengers fly First Class.
Physicians for a National Health Plan were invited to present their point of view at the AAPS forum. They did not respond to the invitation. Dean Clancy, a full time staffer to the House Majority Leader, addressed the group and responded to questions by video from Washington, D.C. He outlined proposals that congress is considering, including enrolling every child in Medicare up to age 18, then again at age 65. Mr. Clancy also pointed out that the Robert Wood Foundation keeps increasing the number of uninsured in this country from 30 to 37 million, to 40+ million, with one estimate as high as 60 million. The Cato Institute suggests the number is closer to 15 million.
Kathryn A Serkes, Square One Media Network President and AAPS Public Relations Counsel, stated that Capitol Hill sees doctors and hospitals as villains and most doctors as crooks. Who do people blame for cost increases in healthcare? A recent public poll indicates that 33 percent feel they are doctor and hospital related, 32 percent maintain they are caused by insurance companies, 16 percent blame government rules and regulations and 14 percent feel they are due to medication costs.
Support for Universal Access to Health Care comes from 57 percent of academia and 87 percent of the public. A Strategic Health Source poll found that Americans want it all. They want more and better care at less cost, 86 percent want more choice, 79 percent want tax credits, 50 percent support a government-run system.
Serkes calls this a political war based on distortion of facts. Single Payer Mythology includes: Better Health; Emphasis on Prevention; Physician Autonomy; Saving Money; Equitable Access; and Universal Coverage.
She cautioned us to be aware of these “Socialized Medicine” talking points used by proponents of “Single Payer:” The market has failed; Payments will change but care will not; It’s our money – we should control it; US health care system is NOT the best; There should be public stewardship of payment; We must have cost controls; Limit specialists who eat up the dollars; Opponents (such as doctors) will lie to prevent socialized medicine from happening.
Serkes concluded that proponents of socialized medicine will use any tactic to achieve their goals. They are forming a number of alliances, organizing grass roots groups, piggybacking with various groups (e.g., disability groups, American Public Health Assn, ANA), using spokesmen from academia and other professions and supporting students in public debate – all to influence law makers.
Robert Oldham, MS II, Former Congressional Intern in Tom Delay’s office stated that he was more conservative than other interns curious of his point of view. He felt the perception on Capitol Hill is that the AMA is a conservative group. Mr Oldham stated that about 70 to 80 percent of entering medical students are pro-government. A physician from the audience stated that the public wants the government out of healthcare and that medical students need to be informed of this.
Healthcare in Socialized Systems
Louis Omdahl, RN, a nurse manager, described her observations of Government Medicine practiced in Russia. Since1983, medicine has been organized regionally. In 1991 they tried health insurance, believing there must be a better way than government payment. Russia is behind not only in general healthcare, but in preventive care as well. Care for the elderly is almost nonexistent. The average woman has seven abortions because she cannot afford birth control. Russians view American programs that depict 911 as fantasy or propaganda. Evidently, this is viewed as being too far fetched when you cannot get any care at all. A Russian emigrant called 911 and was surprised when he was taken to the hospital. He only wanted a shot of morphine for his chest pain. They see the TV program ER as a spoof. In Russia, 60 percent of rural areas still do not have water or sewers. The average physician makes about $100 per month.
Robert Gervais, MD, a Board Certified Ophthalmologist practicing in Phoenix, told of how Medicare (HCFA) closed his surgical center. Although he had met all licensing criteria during his many years of operating, he was reviewed in1999. A month later, he received a report advising him that certain deficiencies needed to be corrected within six working days. Although he attempted to accomplish six months of work in six days, his center was closed on December 26, 1999. He was without income until May 24, 2001, when his center was reopened. He thinks his comments on the morality of government medicine may have angered the reviewer.
He also reported on healthcare in Canada, where he was schooled and trained. He sees welfare medicine as the complicated system where everyone is forced to buy everyone’s healthcare but his own. The question should be, “Why must the government be in our examining room?” The Canadian government has maintained that there is unlimited healthcare available. However, to prevent cost escalation, the government must control the cost of the examination. All provinces with socialized systems have local budgets. Rationing occurs to meet this budget. A patient Dr Gervais knew had an abnormal chest x-ray, showing a possible carcinoma, and was given an appointment to obtained a CT scan several months later. However, since the patient knew the radiologist, the scan was done the next day. Gervais also noted that 50 percent of Canadians live within 50 miles of the US border, which gives them one non-governmental option. 480-981-1345 Email: email@example.com
Restoring Private Insurance. Why Employer-Based Insurance Failed
Gerry Smedinghoff, Director of Actuarial Services for TriWest Healthcare Alliance in Phoenix, spoke concerning Public vs Private Healthcare. The Healthcare Industry is the only sector of the economy that is failing, and there is nothing employers can do about it. The categories of healthcare that have decreased in cost over the past 10 years include liposuction, breast implants and laser eye surgery. None are covered by employer-sponsored health plans; patients have complete control and responsibility for their use. There are no categories of employer-sponsored healthcare that have decreased in cost in the last ten years because doctors and patients have ignored the laws of economics in making healthcare decisions for more than 50 years. Doctors and patients are no more above the laws of economics than pilots and skydivers are above the laws of gravity. By defying the laws of economics, costs have increased 124 percent above CPI since 1957; technology is assumed to increase cost; quantity or LOS is decreasing; time spent increases with waits for patients, physician and payment; choices are decreasing for patients and physicians; and trust is virtually nil from a patient, physician or HMO viewpoint. If laws of economics had been followed, these all would have been reversed.
We have a Jim Crow Health Care System with a privileged class and a disenfranchised class. With private goods (food, clothing, car, house, etc.), everyone chooses what they want, when they want it. No one suffers from another’s choice. With public goods (roads, laws, healthcare), no one chooses; everyone gets the same thing in the same way. This could be called Rational Ignorance: “I don’t know; and I don’t care.” This has minimal consequences if we’re talking about motor oil or soft drinks, but has huge consequences when we progress to education, retirement, and healthcare.
Responsibility for healthcare gradually shifted from the employer in the 1950s to the federal government in the 1960s, with Medicare and Medicaid and a Marxist labor theory of value. Responsibility shifted to managed care in the 1970s because of the perception that physicians were irresponsible, getting rich by keeping patients sick. People actually believed in one-stop shopping that would provide all services to all people in all places at all times at the highest quality at the best price. Smedinghoff then cited a number of historical HMO model disasters that were responsible for healthcare’s shift to PPOs in the 1980s. Healthcare was thought to be suffering high costs because of the lack of economies of scale. However, economies of scale do not work when there is no market choice by patients, no synergy (illegal in healthcare) and no savings accrued from the large healthcare mergers we have witnessed. If economies of scale would work, then General Motors should have the cheapest healthcare costs, which it doesn’t.
In the 1990s, the era when Managed Care flourished, physicians were not only considered incompetent, but even dangerous. Physicians were profiled by actuaries, accountants and utilization reviewers. However, managed care is more accurately defined as medical care managed by people who have no knowledge of medicine or contact with the patient. This has progressed to Capitation, a complete reversal in roles. Actuaries, trained in risk management, tell doctors how to practice medicine, while doctors, trained in medicine, are forced to manage risk. Managed care causes huge inefficiencies with pre-certification delays, oversight with utilization review, inspection with retrospective case reviews and reworks with second opinions and claims. Overproduction causes government interference with HIPAA, forcing defensive medicine and the poor design of RBRVS, CPT, and DRGs.
Smedinghoff states we need simple solutions for a complex world. He suggests we tear down the wall of segregation – assign the IRC and ERISA to the dustbin of history. Transform healthcare from a public choice to a personal and private choice, and return responsibility to the patient. “Just as war is too important to be left to the generals, and just as the education of your children is too important to be left to the government, your health is way too important to be left to your employer.”
Greg Scandlen, A Senior Fellow at the National Center for Policy Analysis, who publishes a weekly newsletter,Health Policy Week, feels that health benefits in the 21st Century are moving to Defined Contribution Plans. He believes that Managed Care was based on the false premise that fee-for-service medicine was inflationary. Many factors are now forcing the change. The 25-years cost-containment effort is no longer effective due to the diversity and mobility of the changing workforce with its growing regulations such as COBRA, HIPAA, PBOR, et al. There is increasing patient dissatisfaction, not just in the US but throughout the world. The safety net is frayed with the uninsured and increasing Medicare fiscal problems. Patients are educating themselves and managing their medical information through the internet. Medical Services cannot be managed through a single payer in the era of Genome nano-technology.
As the annual rate of growth continues to increase, one must wonder if the US spends too much or too little on healthcare. Although the government and others think we spend too much, the public still feels we spend far too little. How much change is needed? Eighty percent of most countries feel we need fundamental changes in the healthcare system. The UK, Australia, Canada, and the US are similar in this regard. In Canada, the 80 percent happiness at the inception of government medicine has since decreased to 20 percent. The core problem is that these systems rely on third-party payment and will ration care to keep patients from getting the care they desire.
Scandlen feels we must unify the consumer and the payer. We must know the costs of coverage. We need more direct pay with pay stubs. We need more choice of plans, providers and benefits. There must be equal tax treatment for non-employed insured. There must be better information, now feasible through the internet, that should also integrate resources, as well as allocate spousal benefits and tax credits with more accountability to both plans and providers. We must move to individual ownership, allowing employers to contribute to individual premiums with portability and continuity of care. There is less need for regulation. We must reform insurance market regulations, roll back state mandated benefits, rate restrictions and repeal the premium tax.
There has to be public policy change, including an expansion of MSAs. The worst conservatives are those on Capitol Hill who only think of modifying the liberal agenda. They have nothing unique or original. In short, we must develop a new way of thinking about financing healthcare.
The Rest Of The Story
That was just the first half day of a three-day meeting. Other presentations were equally informative. One was by Jim Redden, an investigative reporter for the Portland Tribune and author of the chilling book, SNITCH CULTURE — How Citizens are Turned into the Eyes and Ears of the State. A review of this book will appear in an upcoming issue. Sally Satel, MD, a psychiatrist and author of the PC, MD – How Political Correctness is Corrupting Medicine, also gave a presentation. Her book was reviewed in the September/October 2001 issue of this journal.
The Knock on the Door: Fraud & Abuse; Audits & Prosecutions
One of the more important presentations each year is from Andrew Schlafly, Esq, legal counsel for the AAPS. He presented one horror story after another of the governmental prosecution of physicians. Although most of these prosecutions are without substance, each one does destroy a colleague’s professional life, practice, license, and sometimes costs him his family. Unfortunately, our professional organizations are frequently with the prosecutor, on the government’s side.
We had a follow-up report from Jeff Rutgard, MD, who presented his case last year after spending five years in prison for alleged billing errors – not following the AMA-HCFA codes. He now has obtained faculty and other evaluations of all his charts. All supported his operations as well as the charges. Through the Freedom of Information Act, he was able to obtain the billings of the other ophthalmologists in his area, who all used the same codes for which he was prosecuted. As you may recall, he and his associate’s 22,000-patient practice was eliminated, and he was fined the entire lifetime medical earnings of his surgicenter, or $16 million. After the appellate judge stated there were no significant errors in his practice and no complaints from his patients, the case was returned to the trial judge. However, Dr Rutgard was unable to find an attorney that would go up against the judge that handed down the first ruling against him. He wanted another hearing to clear his name so he could get his medical license back. The attorneys, however, alleged that if they went up against the ruling of the trial judge, that was essentially thrown out by the appellate judge, they would lose future cases with this judge. As you may recall, the billing clerk that reported Dr Rutgard, subsequently told a different story in another trial. Tom Dawson, the next speaker, stated that the government knew what they wanted in using a soft approach to Rutgard’s employees who changed their story when confronted with a conspiracy action from Rutgard.
Two years ago we heard about the Doctor Vargo case. The authorities followed her in a plane and indicted her for having large billings in her military clinic. The government was compelled to withdraw its criminal case against her. She was then sued in civil action. The AMA News reported that the case was now settled, without explanation from the state, and she did not have to pay any fines, only six years of attorney fees. No professional reasons were given. She is prevented from commenting on her case. Every year we hear of several cases of medical fraud or false claims which are, in fact, nothing more than government harassment in an otherwise civil society.
The final session on Saturday was the Administrativectomy: The High-Tech, Patient-Friendly, Third-Party Free Practice. David MacDonald, DO, presented Healthcare, A New Perspective. His organization, the American Association of Patients/Providers (Medical Care Giver) has reached the DECISION POINT: They are out of all contracts with all HMOs and insurance carriers. No more malpractice premiums. They don’t use AMA/HCFA codes. Being accused of being CLUELESS in SEATTLE, he continues to recruit members from industry and business leaders throughout the west. The last speaker on Saturday was Thomas Dorman, MD, an Israeli Paratrooper in the 1956 Sinai Campaign, medical doctor from Edinburgh University in Scotland, and Editor of a hard-hitting Newsletter, Fact Fiction & Fraud in Modern Medicine. He gave an interesting presentation on administrativectomy with many pointers on how physicians can regain control of their destiny by eliminating all administrators.
I feel that this conference brings us to the front lines of medical practice every year, preparing us for the real leadership we need for our profession. The intrusiveness of HIPAA is not fully appreciated by the rank and file membership. When this law is fully implemented by April 1, 2003, all physicians will essentially be criminals. The only question remaining is, when will you be caught. Nearly all participants strongly recommended that all doctors be out of Medicare, Medicaid or any other government program by this date if they don’t want to face financial ruin and possibly time in prison.
This conference is also about one-third the cost of the CMA Leadership Conference in La Quinta which I have attended in the past. But it points in nearly the opposite direction. An AMA member reported that the AMA lost another 26,000 members last year. During this dues-paying season, I’m approached almost daily as to whether it is now time to throw in the towel with CMA and our local society. I still feel it’s best to work from within. Most of the physicians where I practice have already given up on the AMA. It’s time for a change in direction. Are we up to it or will we become, in the 21st Century, indentured servants to the government that was founded to protect our freedoms and not enslave us?
On the beginning of life, the right to not be born, assisted suicide and racial profiling in medicine March/April 2002
When is a Human Being a Human Being?
In his current editorial, Robert Jacoby, the editor of the Journal of the American Medical Writers Association(AMWA) and medical writer at John Hopkins, states the embryonic stem (ES) cell research debate has as its epicenter one fundamental question: When does the physical dimension of a human being begin via sexual reproduction?
The answer lays a foundation for the current discussions of ES cell research. He says we should avoid such misleading terms as “pre-embryo” or “fertilized egg.” When mature gametes, the oocyte and the spermatozoon, become a zygote, a new, genetically distinct human organism is formed. The diploid number of chromosomes (46) is restored; chromosomal sex is determined. The unique mingling of paternal and maternal chromosomes produces a new variation of the human species as cleavage of the zygote initiates an embryo, and a new human being is brought into physical existence. Once this is understood as the foundation of the embryonic stem cell, then agendas can appear, be they moral, political, ethical or philosophical.
Declaration of Rights vs The Concept of Wrongful Birth
From France, the nation that gave the world the Declaration of the Rights of Man, lawyers representing a child with Down’s Syndrome successfully sued doctors because the condition had not been detected using ultrasound, and consequently an abortion had not been performed.
Dr Cihak and Dr Glueck, in their electronic journal, The Medicine Men, on World Net Daily, report that French obstetricians were “refusing to carry out ultrasound scans on pregnant women” after a court found they could be liable, should a disabled child be born.
Instead of ordering too many tests and procedures to guard against future legal action, they’re refusing to act at all. The authors mention a similar lawsuit filed in this country several years ago, which made the list of “wackiest lawsuits of the year” because it conflicted with everyday experience and common sense. The authors point out that from the Nazis to the communists, the law was always on the side of those who declared that some lives were not worth living.
The lawyers in the French case claimed that the baby wanted to be killed in the womb. Cihak and Glueck feel there is a continuum between the courtroom in civilized France, the deeds of the Nazis, the totalitarians and the jihadists. Although not obvious, the connection between “wrongful birth” and mass murder perverts itself when not killing becomes a crime.
Racial Profiling in Medicine
Sidney Goldstein, head of cardiovascular medicine at Henry Ford Hospital in Detroit, states in his editorial in theMedical Tribune, that African-American patients with heart failure do not experience the same benefits that whites do when treated with ACE inhibitors or beta blockers. ACE inhibitors reduced the hospitalization rate for whites but not African-Americans, who require higher doses of ACE inhibitors to reach a target blood pressure. Beta blockers reduced mortality in whites, but not in African Americans.
This racial disparity is not unique in cardiology. African-Americans with hepatitis C infections also have poorer responses to treatment. Certain diseases, such as sickle cell anemia in African-Americans or Tay-Sachs disease in Ashkenazi Jews, are confined to specific gene pools. In a recent US census, almost seven million people identified themselves as members of more than one race.
Thus, racial profiling will be necessary for clinical studies so that the appropriate therapy can be administered. Until the Human Genome Project gives us power to uncover the true origins of genetic variations, a “Jewish female with …” can be described as a “BRCA1 female.”
Dr Miguel Faria, Editor of the Medical Sentinel, reviews the data from Physician-Assisted Suicide in Oregon. In 2000, 21 terminally ill people chose to use Oregon’s assisted dying law, three more than the previous year. All 21 had health insurance, and 17 were receiving hospice care. Ten were males, 11 were females, all were Caucasians.
For the third year in a row, loss of autonomy, rather than pain, was the reasons all 21 patients gave for using Oregon’s law; fear of loss of control was listed by nearly all patients. “The option of a dignified, hastened death gives terminally ill people the hope and comfort to carry on,” said Barbara Coombs Lee, president of Compassion in Dying Federation… Reminds me of my pathology professor who recounted, over the autopsy table, the story of a man who wanted to be buried in his Cadillac. As the car was lowered into the ground with the wealthy man draped in a black body bag in the driver’s seat, an observer at the side of the grave remarked, “Man, ain’t that living.” Or today’s version, “the hope and comfort to carry on.”
A Cruise to Die For
NewsMax.com reports that euthanasia advocate Dr. Philip Nitschke, wants to anchor a Dutch registered death ship off the Australian coast in international waters. Since euthanasia is illegal in Australia, he is offering to kill terminally-ill patients. According to this report, “This idea is an extension of Dutch doctor Rebecca Gompert’s plan to launch a baby-killing ship and anchor it off the coasts of nations where abortion is illegal.”
A huge judgment over end-of-life pain is compounded by bad legislation May/June 2002
A number of County Medical Society Journals have focused on Assembly Bill 487, the law that went into effect on January 1, 2002, in response to a court judgment in an elder-abuse case for $1.5 million. The amount was reduced by the trial judge to $250,000.
My barrister friends tell me this means that either the judge felt the verdict was so preposterous that he reduced it to the lowest amount that would avoid an appeal, or that he deemed the judgment to be without merit and reduced it as low as he thought sustainable given the emotional situation.
Although there may be issues not recorded in the available reports, Barbara Feiner, the Editor-in-Chief of the Southern California Physician, gave the most complete account. It appeared that William Bergman entered the emergency room for chronic excruciating pain caused by four compression fractures. He was a frail, 85-year-old, lifelong smoker with COPD. He was admitted and given morphine, diazepam and promethazine. When his breathing became uneven, with episodes of apnea, his physician switched to 25–50 mg of Demerol IV every three hours PRN. The nurses rated his pain on a 1–10 scale and gave him the prescribed doses two or three times a day, charting by exception.
A chest film and bronchoscopy revealed probable lung cancer, but Bergman declined further testing and returned home for hospice care. His physician added a Fentanyl patch. Due to increasing pain over the next two days, the hospice nurse obtained an order for liquid morphine and more patches from a physician Bergman had seen in the past. His pain was alleviated and he died the next day.
The family filed a complaint with the Medical Board, which felt the pain care was inadequate but took no action. The family then sued the hospital and physician alleging elder abuse. Ben A Rich, JD, PhD, an associate professor of bioethics at UC Davis School of Medicine, stated that “to prevail in such a claim for elder abuse, the Bergman family would have to persuade a jury by a preponderance of the evidence that the defendants’ conduct was not merely negligent but reckless.”
When the jury awarded the Bergman family $1.5 million, the California Legislature was not far behind: Assembly Bill 487, signed by the governor on July 4, 2001, requires physicians to complete 12 continuing education hours in pain management and end-of-life care by the end of 2006.
The American Academy of Pain Medicine (AAPM) remains opposed to the final version of the bill and feels this was a knee-jerk reaction. “This is the first time in California that the legislature has specified topics of CMEs for licensure,” says Executive Medical Director Philipp Lippe, MD. “This can quickly become a slippery slope. What will the legislature require next year? Bioterrorism CMEs?”
Dr. Lippe also notes, “When a regulatory organization creates a standard, it is written in stone and can’t be changed. Given the rapid advances in this area of medicine, we wanted to see more flexible ways to make assessments such as guidelines, protocols or physician parameters. That would have accomplished the same goal without tying the physician’s hands to a strict codification.”
Feiner and coauthor Andrea Hecht feel the Bergman case will be debated in the medical community for years. At issue:
1) How nurses chart pain and convey information to physicians.
2) Whether a physician’s approach to pain control meets board-defined standards of care.
3) How patients describe their pain to their nurses and physicians vs. their complaints to family members.
4) How physicians advise patients and family members about their responsibility to speak up about pain levels.
5) Whether a case like this ultimately proves to be a new strategy for trial attorneys to seek damages beyond the $250,000 MICRA cap on pain and suffering.
Robert McElderry, CMA Lobbyist writing in San Francisco Medicine, states that not only must pain be relieved, but the law establishes a firm ceiling to deter any physician from prescribing “excessive pain medications” by subjecting them to potential charges of unprofessional conduct.
If we prescribe less than an ill-defined minimum or more than a firmly described maximum, or any amount in between which does not relieve pain, does this law make criminals of all who treat patients for pain? It excuses radiologists as non-treating physicians. But many pain complaints come from patients who have been manipulated on hard x-ray tables.
We know there is a lot of pain and hurt in the world. C. S. Lewis, in his book on pain, has two chapters that discuss pain transmitted by neurons. The rest of the book is about the hurts and pains of life that no pain medication will relieve. We have all seen unconscious patients whom the family feels must be suffering. They recoil in horror when a painful stimulus is given to demonstrate there is no pain response. One must remind the family that while they feel the pain of seeing their loved one in this condition, the patient is not experiencing pain.
When a family is told that their loved one has cancer, they feel the pain as much or more than the patient. I made a home visit to a patient recovering from a Whipple procedure who stated he was not having any pain, and that the Fentanyl patches were more than adequate. The very next day, I received a call from the hospice nurse requesting a doubling of the strength of the patches. When I mentioned that the patient had told me he had no pain, she asked me if I understood his diagnosis? “He has cancer!” she said, which of course I knew. This nurse was having more pain than the patient.
The big push for physician-suicide laws came about so that patients wouldn’t feel severe terminal pain. Reviews of the cases in Oregon regarding patients who chose to be put to death revealed that not one mentioned pain as the primary reason for the decision.
Yes, life is painful. It is painful for the patient, spouse, family, friends, relatives and the doctor treating the patient. And, we are all guilty of not relieving pain. We may be guilty of prescribing too little or prescribing too much; however, in our mortal world, whatever we prescribe will never be “right.”
Neither will it be pain free if the legislators play at being the medical school faculty or the doctor in practice. Potentially, we can all be prosecuted and become felons. Yet we struggle with the patient in relieving his or her pain. When the lawmakers who define felonies are hostile to our profession, patients with pain are the primary losers. No longer is it a shared relationship; it has become adversarial.
Our best defense is simply to take that 12-hour course — such a pittance since most of us attend the medical grand rounds in our hospitals or at UCD, take a Medical Letter or New England Journal of Medicine or JAMA quiz, and attend one or more professional meetings for more than 100 hours per year in CME.
And in all patient-care situations, let us not forget to turn to the spouse, family and friends, tell them we know they’re having pain and trouble with their feelings, but that this is okay. It’s usually harder on the family than on the patient.
As this was going to press, I received a copy of Pain Management Principles and Guidelines from a member of the California Assembly. This card also listed types of drugs, drug formulations, their doses, frequency, route of administration, and side effect management. If all items listed were codified by the legislature, this would give over a hundred causes of actions against almost any physician who treated a patient with pain. Guilt would appear obvious and no expert testimony would seem to be required.
Physicians and Public Opinion July/August 2002
Harris Interactive, best known for the Harris Poll, has a special report in Southern California Physician on “Why Public Opinion on Healthcare Changes.” They suggest that there are at least nine forces that trigger these changes. They recommend that those who want to increase public support for policies or positions they favor, should consider all of them.
- Personal experiences related to the cost, quality and service of providers and insurers are of fundamental importance.
- Both the volume and nature of medical coverage can change public opinion dramatically
- Advertising and advocacy campaigns (e.g., the Harry and Louise TV campaign in 1994 turned the public against the Clinton healthcare plan).
- Impact of events on public opinion. (e.g., after Sept 11, chemical and biologic weapons leaped in importance while the salience of Medicare reform, patients’ bill of rights or Medicare drug benefit has probably receded.
- Physicians conversing with patients are an important conduit of anecdotes and horror stories, on such topics as managed care, to the media, Congress and legislatures.
- Political issues and attacks during an election campaign, “Saving Medicare” in 1998 was an issue for one candidate which forced it to be addressed by the other.
- Out of pocket costs have a big impact, rather than total costs. The costs of employers providing healthcare benefits is the least important to the public because they do not believe their wages and salaries are lower because health insurance is part of their total compensation. As employers increase the cost of health insurance to their employees over the next two years, Harris Interactive predicts an increase in the public’s hostility to the healthcare system.
- The aging baby boomer population has a higher expectation of the healthcare system, increasing the gap with reality.
- The public believes they should have decent, quality care at an affordable cost and the security that it will be there when they need it. This increases the gap between perception and the reality of a secure, long-term future of both employee benefits and Medicare.
- The unfortunate conclusion is that very likely public dissatisfaction with the healthcare system will increase over the next several years.
Russell Jackson interviews a number of physicians on “How Physicians Can Influence Public Opinion.” The report notes “physicians have played an important role in shaping pubic attitudes, particularly in conversations with their patients.” He cautions physicians to not use their “bully pulpit” to increase their incomes.
Max Stearns, MD, Oxnard urologist and immediate past president of the Ventura County Medical Association, says, “I don’t think it’s the physician’s role to lobby every patient who comes into the office. Our purpose is to give appropriate and scientific advice to patients about their healthcare – and the healthcare system, unfortunately, impacts on that greatly.” He also notes that another problem many physicians run into is that organized medicine isn’t actually all that organized. We must also make sure our efforts don’t backfire. “We still make 2-½ times what the average person makes,” he notes. “We’re not going to garner a lot of sympathy over our incomes.”
According to Lytton Smith, MD, president of the Orange County Medical Association and a family practitioner at Yorba Linda’s California Heritage Medical Group, the problem with criticism of the current system is coming up with a credible alternative. “The hardest part, as we become antagonistic toward the system, is to understand what will replace it. If we destroy the system in place, what will fill the vacuum?”
Daniel B Borenstein, MD, a Los Angeles psychiatrist and immediate past president of the American Psychiatrist Association, agrees. “Employees have become accustomed to early-dollar healthcare, which has been part of the problem from the onset. It will take a major educational effort to help employees understand that health insurance should be for catastrophic illness, certain screening exams and well baby care.”
Anmol S Mahal, MD, a Fremont gastroenterologist and vice chair of the CMA Board of Trustees, quotes surveys that patients are suspicious of the healthcare system as a whole – including doctors in general. He also feels the biggest problem patients have with the healthcare system is access – even for the insured with waits days and weeks for appointments. “It’s a great thing consumers are better informed.” but it “sometimes takes more time to answer their questions … you have to redirect their impression of things all the time. They get information from innumerable sources, not all of which are accurate. So we spend a lot of time trying to repair the damage.”
Marie G Kuffner, MD, a UCLA anesthesiologist and CMA past president, states that “quite honestly, physicians never speak with one voice. There are physicians out there who think the present system is so bad that the only thing that will fix it is a single-payer system. There are other physicians out there whom vehemently disagree with that position… . What’s lacking today – which saddens me deeply – is what used to be the fraternity of medicine… . We were all the same, treating patients, doing our thing. Today, so much of medicine is a business, which has been forced upon us, and some physicians have lost sight of their noble and idealistic early feelings about medicine… . Patients have become so used to the entitlement of medicine and to somebody else paying for it that they simply cannot abide paying for what they want… . Complicating matters is physicians’ lack of time to educate patients on the inequities of the healthcare system.” Should physicians relinquish their opinion-shaping role to others outside the system? Dr Kuffner feels we have to find other avenues and reflects on her talk to the Rotary Club that week. She concludes: “If physicians really have a message, they need to get out to their pulpits wherever they are and be more involved in the community.”
In the San Diego Physician several issues back, James T Hay, MD, President of the San Diego County Medical Society, suggested that members talk to their patients. He then followed his own advice. Evert P. van de Ven, former executive vice president Novellus Systems, responded by putting his story in writing. The patient, a native of the Netherlands, offered to help us avoid “national health” in any way he could. Dr Hay was moved by this personal account of his and his wife’s family’s experience.
Van de Ven states that the Dutch government started to promote socialized medicine about 30 years ago. Presently, everything related to healthcare is government-controlled, including physician compensation, hospital budgets, medication prices, even the hours (36 per week) healthcare workers are allowed to work. The Government also controls the medical schools and limits admissions. Although 30% of the population has additional insurance from work, it is no benefit to the patient because the government goes to great lengths to make sure that everybody gets the same low level treatment. Here is the summary of three of the five cases he recites.
- A 78-year-old female with TIA’s was seen by a neurologist who ordered an MRI. During the six-week wait, she had a stroke with paralysis on the right. The family physician arrived within two hours but was unable to get her admitted to a hospital. It was Saturday and not enough beds and personnel were available. Patients are not allowed to call an ambulance except for an accident. A physician has to check the patient, make a diagnosis and check for hospital and specialist availability before an ambulance can be called.
- A 79-year-old female with CHF and insulin-dependent diabetes ran out of Zaroxolyn and gained weight. She had a myocardial infarction and was hospitalized. She received no treatment and was sent home to die. Today, she is doing fairly well thanks to Zaroxolyn from the United States. Van de Ven’s discussion with pharmacists highlighted a serious problem: Strict pricing limits the availability of medicine. Price restrictions were implemented after the government decided that the pharmaceutical companies were charging too much. The result has been a significant reduction of medicines available and reluctance of pharmaceutical companies to go through the approval process for costly new medications.
- A 77-year-old female broke her hip in an assault and had to wait until the next year for a hip replacement. The reason given for the delay was that the local hospitals had reached the quota for hip transplants for the year and had to wait several months for the next allotment.
Van de Ven concludes: “It is amazing how a good, well-run medical system can be ruined in a few decades by ignorance and increased government control. The only thing done to limit the suffering of the elderly was to legalize euthanasia and allow physicians to prescribe a ‘suicide pill.’ “
Recreating Private Practice September/October 2002
UCDMC – One of America’s Best Hospitals
Congratulations to UCD Medical Center for being recognized in six categories in the US News annual survey of America’s Best Hospitals.
It’s Hard to Break Old Habits
The American Medical Writers Association reports on the problems encountered when attempting to set up scientific communication offices in 12 of the 15 independent states of the former Soviet Union. These offices are to produce accurate and timely health bulletins for public health practitioners, policy-makers, the general public and the mass media, in an effort to improve health status. “The dissemination and effective use of timely and accurate health information is critical to pubic health practice throughout the world. In these New Independent States . . . the style of information sharing and scientific communication continued to reflect the tradition of the Soviet Union, which was characterized by information being protected rather than shared and by a ‘data-sent-upward, orders-sent-downward’ attitude toward communication. Thus, health professionals in the Soviet system were encouraged to gather and hold information rather than to share it with colleagues or clients.”
Recreating Private Practice from the Bottom Up
Robert J Cihak, MD, a syndicated columnist and editorial board member of the Association of American Physicians and Surgeons’ Medical Sentinel, states that Medicare reform, from the top down, has little hope. He sees greater hope of reform from the bottom up. “More and more physicians are seeing through the smoke and mirrors of the current managed care and government systems. Physicians in all parts of the country are firing their managed care plans and managers. Many doctors and patients around the country are re-creating truly private medical practice. By cutting out the insurance company middlemen, doctors and patients are doing an end run around insurance company bureaucracies. The SimpleCare.com nonprofit organization that originated in the Seattle area and many other independent doctor organizations around the country are developing parallel tactics. Doctors and patients deal directly with each other on the basis of trust, instead of each having an army of accountants, analysts, police and regulators looking over their shoulders and casting distrustful glances at the other side.”
Has America Lost Faith in its Physicians?
George H Koenig, MD, a neurosurgeon, asks in the San Mateo County Medical Association Bulletin, “Has America Lost Faith in its Physicians?” He expounds, “In many ways ours is a peculiar, inconsistent society. We vehemently criticize Congress, yet overwhelmingly reelect our representatives. We regard television as utterly inane, but won’t miss our favorite sitcom. We are critical of medical care, but invariably love our physicians . . . we forsake local merchants for Safeway and Home Depots; we replace individually-owned pharmacies with Longs and Walgreens and personal relationships are increasingly sacrificed for cheaper, impersonal, mass-market conveniences, while we complain the loss of customer service. America loves a good deal. When Senator Kennedy proclaimed health care a right, every politician and bureaucrat gleefully agreed with little, if any, real dissent or consultation with the medical community. It is in this context that physicians have struggled. What we provide is truly essential and completely dissimilar from other services, also labeled essential. There is simply no way we can meaningfully withhold what we do. And so when managed care came into being, we not only didn’t revolt, we actually felt obligated to make it work! When Medicare . . . slashed reimbursements, we cooperated without much dissent. . . . When patients demand every bit of the care to which they perceive themselves entitled, we acquiesce. When politicians mandate for more in-patient services than society can afford to provide, we acquiesce. And when managed care challenged our long-standing patient-doctor relationships, we acquiesced again. . . .” Koenig then responds to his own question stating that patients have not lost faith in us. “[But they] are awaiting our answer. Let us not disappoint them.”
First, let us redefine ourselves as physicians and not as providers. We should not allow insurance carriers to blur the distinction between MDs/DOs and lesser providers who have a tenuous relationship with their customers, our patients. Second, patients are our partners and need to understand what interferes with the care we try to give. Then, let us act collectively.
Designer Doctors for All
Philip R Alper, MD, internist in Burlingame, draws from the British Medical Journal to recount the history of Nazi medicine and the character of German doctors during the third Reich. Without this documentation, he would not have believed that physicians could lead all other professional groups in their acceptance of Nazism. He notes, “The reward to German physicians for their loyalty was prompt and concrete: an 11% income increase between 1933 and 1934 during the depths of the depression. . . . Doctors actually vied with one another for places in the Nazi extermination apparatus. Articles in the German medical literature were based on experiments on human beings. And organized medicine cooperated fully with the Nazi government. . . . Hitler had no problem in creating designer doctors to suit his own purposes.”
Alper then argues, “Today, in America, we are in the process of designing new doctors for our own times. Traditional medical values are challenged as inadequate and antiquated. Government, academia, employers, insurers, policy experts and editorialists, and some physicians are all busy redefining the physician’s role. The most basic departure from tradition is an insistence that the needs of groups of patients – called populations – take precedence over the needs of individual patients.”
Alper recounts “Physicians as Double Agents,” (JAMA 9/23/98) which concluded “. . . that managed care is here to stay; and, essentially, let’s get on with the job of designing doctors to fit the new circumstances. . . . This expanded role envisioned for physicians includes not only responsibility for all the populations of patients served by all the managed care entities . . . but also . . . to their health care teams . . . as well as to the plans themselves.” The physician will abandon “credibility and trust largely based on professional mystique and prestige” and substitute “credibility and trust based on data and documented evidence of effective treatment.”
Alper then questions “will American physicians embark on the slippery slope of abandoning total loyalty to each patient for a perceived greater good? . . . Will we eventually find ourselves the instruments of some tyranny?”
He recalls the story of Jules, an engineer in Israel’s high-tech industry, who defined the qualifications for a long list of jobs with conceptual exactitude. There was only one problem: his paragons did not exist in real life. Hiring came to a standstill. Jules was transferred to the library.
He concludes, “By analogy, I think America’s doctors and our patients are safe. The nondoctors and nonpracticing doctors who are furiously telling us what we should believe and how we should work are asking more than is humanly possible. It’s not an edifying thought, but the security of our profession and our patients may lie less in our virtue than in the ineptitude of our managers.”
Practice Peculiarities November/December 2002
Employee Patients, Employee Plaintiffs
I once had an employee request that I examine her, including a pelvic exam, as she said her previous physician employer had done. I told her I couldn’t conceive of it and she couldn’t understand why not. A recent guest article in the Kern County Medical Society Bulletin by Daniel K Klingenberger, Esq, an attorney in labor and employment law, itemizes the reasons:
Whether the motivation to provide treatment is altruistic or financial, well-meaning or selfish, the inherent exposure to liability is compounded when the patient is an employee. The increased liability arises from many sources.
- A physical evaluation or procedure or any act that involves the employee disrobing in any way may include claims of sexually harassment, assault or battery, invasion of privacy and failure to diagnose.
- The risk is virtually the same no matter the gender of the physician or the employee.
- The physician-employer is not protected by having a witness or assistant in the room. In fact, one employee observing a co-employee compounds the problem.
- Trusted employees have the greatest access to other patient complaints and prior claims.
- Injuries arising in the course and scope of employment are generally covered by the workers’ compensation insurance which creates another layer of concern: serious and willful claims are generally not covered by insurance.
- State and federal law prohibit employers from making medical inquiries, except under narrow circumstances. These restrictions are incompatible with a physician’s role to make every medical inquiry and run tests.
- Keeping employee medical records separate from other patient medical records and from other employees creates another layer of liability.
Remember you always have your employer hat on, even when you’re wearing the white coat. Always keep the roles separate.
Physicians: Without them, Hospitals would go Bankrupt
Remember the old adage that a Physician without a hospital in which to practice will not survive? This may not be true today. However, the average doctor (internist, family physicians, OB/GYN) provides about $1.5 million in revenue to the hospital per year. Figures range from a low of nearly 2/3 million dollars for pediatricians, to about one million dollars for psychiatrists, pulmonologists, gastroenterologists, to about two million dollars for general, orthopedic, vascular and neurosurgeons, to a high of three million dollars for cardiovascular surgeons. (www.merritthawkins.com)
Corpses & Cleavage – Media & Medicine
Benjamin Pezzillo, in Southern California Physician, describes misconceptions of forensic pathology as engendered by actresses portraying medical examiners at a crime scene. During interviews and tours through the coroner’s office, Pezilla found no consensus as to how this role might be dramatized. However, one medical examiner contended that the coroner’s office is one of the most misunderstood of all government organizations. It seems that “doctors are the worst audience,” writing letters concerning technical inaccuracies. Meanwhile, the media business “goes back to the sponsors and the fact that they need viewers to sell their products. And to get viewers, you need to entertain folks. It is this very necessity that probably leads to our most egregious examples of medical falsehoods.” The author concludes that perhaps the physician’s role in helping Hollywood with its portrayal of the medical profession is to offer constructive opinions whenever possible.
In the same issue of Southern California Physician, staff writer Dina Burwell discusses how “Physicians and medical examiners butt heads on death certificates.” A physician who lost a patient to breast cancer faced a quandary: If he cited cancer as the cause of death, the medical examiner could reject his findings. The temptation is to insert something safe, such as heart disease, to avoid interference from the ME. Kenneth V Iserson, MD, an emergency physician and director of the bioethics program at the University of Arizona College of Medicine and author of Death to Dust: What Happens to Dead Bodies?, alleges that 15 to 20 percent of US death rates are inaccurate. “We are basing our public-health policy and research dollars – hundreds of millions of dollars – on what we think is happening to Americans,” he says. “But in many cases, we don’t know. We can’t autopsy everybody. In fact, the number of autopsies being performed is dropping dramatically because pathologists aren’t being reimbursed … . We need to go back to the old way of requiring hospitals to perform autopsies and reimbursing the pathologist for the costs.”
Not addressed in this article was citing parallel diseases, when the certificate only requests the sequential cause of death. For instance, consider my patients with lifelong cigarette abuse and progressive COPD for 30 years, cor pulmonale for 10 years and respiratory failure for 5 years, who die of a cerebral stroke or myocardial infarction. The sequence of terminal heart or brain disease occupies several lines, including lines for time frames. There is only one short line for all other significant illnesses, with no room for time correlations. The form should be revised to reflect the primary disease that impacted the patient’s life. This would have equal or even greater public health and scientific research importance as the terminal event.
Dying for Your Business
Dina Burwell has another article concerning Skeletons in the Closet – the popular gift shop housed within the Los Angeles Country Coroner’s Office – which sells a variety of to-die-for novelties for the discriminating (or slightly warped ) consumer. “We offer everything from body bags to toe-tag key chains,” says store manager Salene Limon. Founded by Marilyn Lewis, Skeletons has lived a healthy life for almost a decade, initially selling employee T-shirts out of a closet. When employees, their relatives and friends began asking for more coroner-related items, Lewis added skeletons and more than 50 products: scrub tops with the coroner’s seal ($18), undertaker boxer shorts ($15), toe-tag key chains with “This could be you… . Please don’t drink and drive” ($5), a skull business card holder ($12). Skeletons now attracts lots of warm bodies, especially tourists who hear about it through the Discovery and Travel Channels. Proceeds go to the Youthful Drunk Driver Visitation Program through which convicted 16- to 20-year-old drunk drivers visit the morgue for an up-close-and-personal-look at roadway remains. The program, which has raised nearly $2 million, boasts an excellent success rate, with few repeat offenders. www.lacoroner.com
Christianity, with a Twist
In another issue of Southern California Physician, writer Nicole states that urban physicians should understand the beliefs of their Pentecostal patients. Samuel Solivan was plagued with brain tumors that impaired his vision, hearing and cognition. Physicians and psychologists told his parents he was mentally retarded and would never approach the intelligence level of his peers. After multiple surgeries and a year of electroconvulsive therapy, physicians ultimately gave up on him.
Although Solivan does not say his doctors were wrong about him, he attributes his spiritual encounters with Pentecostals for taking him from a nearly illiterate 8th grader to service in the US Air Force, college, obtaining a PhD, becoming a professor and authoring a book on theology.
Pentecostalism and glossolalia, the ecstatic utterances in tongues, is found in Tibetan Buddhist chants and American Indian prayer songs. It occurred rarely in the Christian church from the second to the nineteenth century. Its renaissance came at the start of the 20th Century, when a Bible study group in Topeka, Kansas, began to speak in tongues after reading the story of the Pentecost. Pentecostalism has had a strong Latino following since 1906, when African-American preacher William J Seymour was inspired by a vision to lead a revival in Los Angeles’ Azusa Street neighborhood. Pentecostalism’s attraction to Latinos has varied explanations, economics looming large among them. As a healing-centered faith, it is an attractive alternative to those who cannot afford health insurance or access health care. In an article in the Journal of Religion and Society last year, Hector Avalos, a professor of religious studies at Iowa State University, explains “faith healing, even if it does not always produce desired effects, at least does not cost as much as a conventional system that may be equally ineffective.” Seymour concludes that Pentecostals are growing at the rate of 55,000 a day worldwide. If you are engaged in health care work, you’re going to quickly run into Pentecostals.