Jun 302012
 

Bad outcomes, personality conflicts, communication issues, emotions, and negligence all lead to possible litigation between and among patients and their care providers.  State boards who are tasked with the policing of professions have varying degrees of success.  The Courts and juries dispense verdicts that can be argued to be fair or not.  The system is not perfect.  What is agreed upon is that some lawsuits appear to be frivolous, some have merit, and it is sometimes difficult to determine which are which.

There are some states who have instituted tort reform and these states proclaim that tort reform is great for business.  There are injured patients in every state who have not gotten justice or fairness.  There are frivolous lawsuits.  Both sides of the professional liability issue have their poster cases of justice and injustice, of fairness and unfairness that are held up as examples of where the system has worked or has not worked.  The macro view of tort reform should, in my opinion, be focused on the issue of protecting patients from harm.  Compensating those who have been injured and trying to make them “whole” as much as one can financially.

Health care reform has introduced newer providers into the primary care marketplace.  Nurse practitioners and other physician extenders are being presented as physician replacements to insure access points into the health care system.  The government’s reform is pushing for the training of more mid-level and nursing providers to provide primary care for patients.  This is changing the health care system from “medical care” to “health care”.

One would think that the use of the highest trained and educated individuals to treat patients would result in the best care.  Will reducing the education and training of the primary care personnel in the health care setting result in a lesser quality of care or in bad care?  Will there be patient’s harmed when “medical care” is supplanted by “health care?”  Is this an acceptable or calculated risk under the concept of population medicine?  Medical care can only be provided by physicians (allopathic or osteopathic) who are educated and trained in medicine and can therefor provide medical care to patients.  Physicians may delegate certain duties and functions to other members of the care delivery team.  These physician extenders help the physician take care of patients and help provide care.  The leader of the medical care delivery team must be a physician.  Physicians do, should and must supply the leadership, quality, perspective, and patient advocacy to the care team.  In the arena of public awareness, the term “medical care” is being substituted by “health care”, the disclaimer of  “see or consult with your medical doctor” is changing to ” see or consult with your health care provider.”  Medical care by definition must be provided by a physician (MD or DO) or a physician led care team.

As physicians, we must expand our view of medical care and medical education to include preventive, coordinated, and cost effective care.  This change is inevitable and physicians should and must lead the way.  Nurse practitioners can provide nursing care because that is their training.  Nurses teach nurses.  Nurses have no medical training and cannot provide medical care.  Therefor, a government public relations, legislative, and regulatory campaign to lessen the value of medical training and inflate the value of nursing training in underway.  The medical profession is under assault by the government.  This can be the topic of another discussion.  (medical training, nursing training, medical care, health care)

Non MDs or DOs cannot provide medical care as they have no medical education and have only very limited exposure, if any, to medical training or clinical practice.  Nurse practitioners are trained by nurse practitioners.  Exposure to medical training as well as any clinical exposure is limited if not absent during a Master’s program.  This glaring lack of clinical exposure much less experience is glaringly lacking in the DNP curriculum.  More mid-level providers are being pumped out of programs with fancy bookwork degrees (Master’s and DNP) with little more “clinical” nursing experience than a Registered Nurse.  Many of these programs are through distance learning using a computer and the internet.

National mid-level provider trade associations and state boards of nursing are expanding the scope of practice (or being able to practice to the full extent of licensure and training) with little to no ability of medical boards to define, much less regulate, the practice of medicine by these non-medically trained persons.  State boards of nursing are not regulating the scope of nursing practice, but openly embracing unlimited “nursing” practices.  The IOM study, without any physician input, finds that these mid-level providers can function as primary care access points and provide care as good as a primary care physician.  The government, in PPACA, promotes mid-level, non-medically trained personnel as equal substitutes for primary care access points and as a solution to the projected physician shortage.  Numerous mid-level provider generated “academic” papers tout the equal care, equal outcomes, and, sometimes, superior outcomes of mid-level non-medically trained provider care.  Some of these poorly designed and questionable “studies” are then promulgated and touted as truths to further an agenda.

Everyone has anecdotal tales of over and under treatment, over and under diagnosis, inappropriate referrals for testing and consulting, and damage to patients that occur with mid-level providers who either work independently or in loosely collaborating practice arrangements.

Rather than everyone blindly clamoring for tort reform, as physicians, we should be looking out for those patients who will be harmed by the care provided by this vast wave of unregulated non-medically trained mid-level care givers.  The government is going to use these providers as physician replacements (just look at how the definition of physician has been revised).  The federal government, state boards of nursing, national mid-level trade associations, national policy organizations, and insurance companies are all willing to accept the premise that the care given by these “cheaper” replacements is at least equal to those of physicians.

It is time for the courts and the plaintiff’s bar to look at these individuals and hold them responsible for their actions.  If one truly believes that they are equal to a physician and are licensed to practice as physician replacements and substitutes, they should be held equally accountable and liable as physicians.  Patients should expect that the quality of care received and the liability of the practitioner be the same wherever the care is given.  The liability for the care should not be shifted to the “collaborating” physician when the decisions that lead to negligence are totally within the purview of the treating non-medically trained mid-level provider.  Plaintiff lawyers should be educated to identify and hold accountable the provider responsible and not just look for deep pockets.

Mid-level non-medically trained providers who practice independently or through loosely devised “collaborative” arrangements should have liability insurance coverage equal to or greater than a physician.  The cost of a mid-level’s insurance should be at least the cost of a physician’s liability policy when practicing independently or “collaborating” off site from a supervising or collaborating physician.

When practicing to the “full extent of training and licensure,” non-medically trained mid-level providers who are independent and/or offsite “collaborators” should be held to the standard of care provided by the physician that they are substituting or replacing in the healthcare delivery system.

I cannot see any other stance for true patient advocates to take.  Only by effectively and honestly advocating for equality of patient care and safety, for equality in the quality of care patients deserve or have a right to expect can physicians truly consider themselves patient advocates.

Tort reform, which will disproportionally protect lesser trained personnel providing less quality of care,should be advanced only with full disclosure of all unintended consequences.

I was allowed to read a manuscript on tort reform and a proposed method to make it more reasonable, if that is possible.  I was one of the guest editors to read and comment on this article before selecting it for publishing.  This article will be published in the SMJ (Southern Medical Journal) within a few months.  I would recommend that all read the article and think about what it proposes to level the playing field and reward provider’s quality, experience, compassion, and empathy when outcomes are less than ideal and litigation initiated.  www.smj.org

Jun 292012
 

From the beginning, the Patient Protection and Affordable Care Act of 2010 (PPACA) was consider unconstitutional and an overreach of congressional power.  Passed without any bipartisan support in the Congress and greeted with apparent skepticism by the American public over government control of health care, the PPACA found itself in federal court.  Court rulings were split and put this issue on the fast track to a Supreme Court date.  That issue was tentatively settled this week.  The ruling by the US Supreme Court was surprising in that the act was unconstitutional under the commerce clause and the necessary and proper clause, the non-tax individual mandate “penalty” became an intended “taxing scheme” by Congress.  As a “taxing scheme,” the individual mandate was then able to fit within Congress’ power to tax.  Such is the legal and linguistic prowess of the Supreme Court.  The following is a fairly simplistic and hopefully understandable explanation of the four questions.

The United States Supreme Court decision of Thursday, June 28, 2012, addressed general questions:

Not a Tax!
Tax Anti-Injunction Act
– Under the Tax Anti-Injunction Act, one cannot question the legality or constitutionality of a tax until such tax has been enacted and started to be collected.  Should this (these) questions posed by the opponents of this legislation be precluded from being considered because the Individual Mandate (if a tax) has not started yet been imposed or collected.  The Supreme Court in this opinion stated that for the purposes of the Tax Anti-Injunction Act, the Act did not apply to the PPACA because the requirement for not having insurance under the Individual Mandate was a “penalty” and not a  “tax.”  For this decision, the Court narrowed their focus to the language used in the Tax Anti-Injunction Act and did not base it upon the Congresses taxing power in the Constitution.

Well, Maybe It Is?
Individual Mandate
– Did Congress have the power to impose this activity upon the citizens of the United States? No, it violated the Commerce Clause and the Necessary and Proper Clause of the Constitution (5-4).  While Congress has the power to “regulate” a business or activity that is in existence, they cannot create a new business or activity to regulate.  Requiring individuals to buy health insurance (force individuals to enter into interstate commerce), which they do not presently buy, was not constitutional under the two clauses of the Constitution wherein Congress derives powers to legislate.

Penalty that is not a tax! is a taxing scheme?  That left the third argument of the government, really, the Government’s fallback, Plan C approach of this non-tax is really a “tax.”  Even though the President and Congress clearly and on multiple occasions stated and wrote that the Individual Mandate was really a “penalty.” This penalty was not and could not ever be considered a tax.  There was no way Congress would raise this amount of tax so it must be a penalty.  The Supreme Court held, in this same opinion, that the Individual Mandate is not a tax under the Tax Anti-Injunction Act.  However, the Court ruled that Congress had the power to tax and by a 5-4 vote, the Justices decided that Congress really meant to develop a “taxing scheme” under the Individual Mandate to pay for the expanded health insurance so the choice of terms under constitutional analysis did not stop the majority from deciding that Congress had the power to raise taxes and pass this legislation.

Doesn’t Matter Now
Severability
– Once the Individual Mandate was considered to be within the constitutional power of the Congress to tax, the issue of whether it could be severed from the rest of the PPACA was declared moot.

Okay, Wait Just A Minute There:
Medicaid
– Forcing (requiring) states to participate in expansion of Medicaid programs by threatening to withhold all (existing and new expansion) Medicaid funding was declared to be unconstitutional and a overreach of federal authority.(7-2)  This did not preclude any state from voluntary participation in Medicaid’s program expansion.

The US Supreme Court, found a way to judge the PPACA constitutional, by cobbling together an unlikely alliance (5-4), with Chief Justice Roberts voting with the traditional left leaning justices and then inventing a taxing scheme Congressional intent that allowed the court to say that the ability to tax was within Congress’ Constitutional powers.  Not many saw this coming and I believe it would be considered a Hail Mary by any standard.

There will be unseen ramifications from this decision that come to light between now and the election in November.  Stay tuned!

Feb 252012
 

This week, Feb 26 – March 2, H.R. 452, The “Medicare Decisions Accountability Act”, will be before the U.S. House of Representative Energy and Commerce Subcommittee on Health for mark-up.  HR 452 is sponsored by Rep. Phil Roe (R-TN) and would repeal the Patient Protection and Affordable Care Act (PPACA) created Independent Payment Adviser Board, an unaccounAndre, unelected, politically appointed board with sweeping powers to mandate across-the-board or other targeted reductions to Medicare payments and policy.

Concerns include:  the make-up of this board cannot be a majority of physicians, practicing physicians are prohibited from being board members, and no board member can have any other job.  The spending targets the IPAB are mandated to use are arbitrary, like the SGR, and, even before the board has been appointed, the spending caps have been reduced in the Obama budget.  Almost 40% of those (all hospitals and nursing homes) who receive Medicare dollars have been granted immunity from any cuts until 2020.  Therefore, all cost cutting will be a reduction in physician payments with its resulting limitations on access for Seniors and the disabled.  Congress is giving up control of Medicare to this unelected independent board who will make cost cutting recommendations which, if not acted upon by Congress, will go to the Secretary of Health and Human Services for implementation.

Congress will have voluntarily effectively given up control of the Medicare program to the Executive Branch and regulators.  Obviously in the rush to pass any health related legislation, the last Congress did not think through the unintended consequences of this section of the Patient Protection and Affordable Care Act (PPACA).  For over a decade, an overwhelming bipartisan majority in Congress has seen the fallacy and devastating results of the sustainable growth rate (SGR) formula.  The SGR reoccurring problem is minor compared to the effects of the IPAB.  Inaction and inability of Congress to correct SGR has led to a decade long debacle played out year after year.

One could argue based on program cancellations, an unimaginable number of waivers from the effects of PPACA, the continual increase in actual and projected costs of PPACA, and the many costly mandated Medicare changes as yet unveiled, that PPACA was cobbled together with little thought given to the entire package and its consequences.  The IPAB is one program and section of the PPACA that must be repealed, now.  There are 224 bipartisan co-sponsors of H.R. 452.  This House majority is as large as and far more bipartisan than legislators who voted for PPACA.
If cost cutting is done from the top down and through price controls, many doctors will be forced to limit the Medicare patients they see to remain in business.

Contact your representative and express your opinion on this issue.

 

Feb 152012
 

SMA in conjunction with Auburn Universities Physician Executive MBA program has a meeting in Washington, DC March 18-21, 2012 to explore the conflict between health law and health policy.  The program information is available at SMA.org. Dr. Andy Harris (R, Md 1st) will speak at noon on Monday, March 19, to address the medical issues from a legislative point of view and give an insight into the House’s Doctor Caucus.  The program is very balanced and will leave plenty of time for attendee and faculty interaction.  Look forward to seeing you all there.  To register follow this link to SMA.org

Dec 312010
 

Nurses claim that their medical training of 6-12 weeks (following around another nurse) is enough to allow them unfettered treatment of persons.  With one of the quality and cost issues quoted by many as physician ordering of tests and pharmaceutical.  Quality is not improved by allowing lesser educated and lessor trained personnel unlimited ability to prescribe medications and order expensive tests does not make any $en$e.  With cost an issue, allowing unlimited access to lesser trained and non-medically trained personnel does not make any $en$e.  Physicians must take a stand for their profession and their patients.  Quality Medical Care should not be changed to “health care” administered by whoever!!!!

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