Sunday, December 16, 2007

Medical Futility Blog

I don't know how I missed it, but here (better late than never) is a link to Prof. Thad Pope's estimable Medical Futility Blog, which does a nice job of tracking legal developments and the on-going political and scholarly debate over what to do (if anything) about claims for "futile" treatment.
posted by Tom Mayo, 12:03 PM | link

Health reform: the time for happy chatter is over

Robert Samuelson -- Newsweek columnist and Washington Post op-editorialist -- had a typically fine piece in last Thursday's Post. Here's the nub of his argument:

We're told that the uninsured are our biggest health-care problem, but they aren't. Runaway health spending is. although politicians pay lip service to that, what they really enjoy is increasing spending.

It's understandable because expanding benefits is so much more politically rewarding than trying to control them. Everyone believes in adequate health care; people should have it when they need it. Politicians cater to these beliefs. But the intellectual and even moral laziness of this approach results in an invisible abdication of political responsibility. We are letting the unchecked rise in health spending determine national priorities. Consider:

  • Health spending already totals more than $2 trillion annually, about 16 percent of national income (gross domestic product). By 2030, it could easily exceed 25 percent -- one dollar out of four -- projects the Congressional Budget Office.
  • There's a massive transfer of income from young to old. Americans 65 and older now represent about an eighth of the population and account for about a third of all health spending. By 2030, their population share will be about a fifth, and they could account for nearly half of health spending, the Centers for Medicare and Medicaid Services has found.
  • Neither the government nor the private sector has succeeded in controlling health spending. From 1970 to 2005, average spending per Medicare beneficiary rose 8.9 percent a year. For similar services, spending for Americans with private health insurance rose 9.8 percent annually over the same period. The small difference may reflect cost shifting. When Medicare imposes price controls, doctors and hospitals increase prices for privately insured patients.

Samuelson argues for changes that illuminate rather than obscure the costs of care -- by increased cost-sharing by Medicare beneficiaries, a dedicated federal health-care tax to pay for all federal health programs (as the costs go up, the tax goes up), and elimination of the federal tax subsidy for employer contributions to employee health benefit plans. This is hardly new stuff: all of these ideas have been kicking around for years, and most health care economists seem to agree that cost control won't be possible without reducing the role of third-party payors and putting more of the cost of care on consumers.

Samuelson's contribution to the debate is to point out that the debate so far is largely missing a very big -- possibly the big -- point. Here's why:

These proposals would inflict "pain," and candidates who embraced them would invite political ruin. There's a consensus for evasion that most politicians echo. The impulse is to focus on a simpler problem -- say, the uninsured. In some ways, this is less serious than it seems. About 40 percent of the uncovered are young (18 to 34); most are healthy and don't need much care.

But for all the uninsured, the cost of coverage is a major obstacle. Health care is ultimately a political issue of making choices. Our present politics aims to camouflage the costs and skew the choices. Until we change that, our debates will lead to dead ends.

posted by Tom Mayo, 11:36 AM | link

Monday, December 03, 2007

ACP publishes advance copy of major health reform policy statement

Intending to be a major player in the 2008 debate over health reform and universal coverage, the American College of Physicians has posted an advance copy of an article that will appear in its January 1, 2008, issue of Annals of Internal Medicine: "Achieving a High-Performance Health Care System with Universal Access: What the United States Can Learn from Other Countries." Full-text is available for free here. It's 21 pages long, heavy on statistics, and an indispensable critical analysis of our system's strengths and weaknesses.

On the crucial question of how to achieve universal coverage, the ACP basically punts, presumably because the country isn't (and may never be) politically ready for a single-payer system:

Universal health care insurance is necessary to ensure that everyone within the United States has access to needed health care services of high quality. The federal government should assure that all persons within the borders of the United States also have access to health care services without undue financial barriers and that health care services provided are adequately reimbursed. The ACP recommends two alternatives: a system funded solely or principally by government (federal and states), commonly known as a single-payer system, or a pluralistic system that incorporates existing public and private programs with additional guarantees of coverage and with sufficient subsidies and other protections to assure that coverage is available and affordable for all. The ACP has [elsewhere] proposed a step-by-step plan that would achieve universal coverage while maintaining a pluralistic system of mixed public and private sector funding.
Here's how it ends:

Summary and Conclusions

Health care in the United States has many positive features and in many respects is superb compared with health care anywhere else in the world. Those with adequate health insurance coverage or sufficient financial means have access to the latest technology and the best care. However, as this paper points out, the U.S. health care system is inefficient and inconsistent: Health care quality and access vary widely both geographically among populations, some services are overutilized, and costs are far in excess of those in other countries. Moreover, the United States ranks lower than other industrialized countries on many of the most important measures of health.

Current international comparisons of measures of health (life expectancy at birth, infant mortality, and deaths per 100 000 for diseases of the respiratory system and for diabetes) indicate that population health in the United States is not better than in other industrialized countries despite the greater U.S. expenditures (58). The experience and innovations of health care systems in other countries provide many lessons as the United States tries to improve its health system. Among these lessons are the value of an orientation and emphasis on patient-centered primary care and the importance of assuring a well educated physician workforce that meets the country's need for primary care physicians.

The quality and accessibility of health care in the United States could be improved by adopting reimbursement programs like those in other countries that provide substantial rewards based on performance on quality metrics and care coordination rather than solely on the volume of services provided. These payment systems together with national workforce planning might also help address the impending primary health care workforce shortages in the United States. Universal and compulsory health insurance coverage could eliminate many of the disparities and inequities in the United States. Expanded use of health information technology and substantial governmental investments and support for a health information technology infrastructure with appropriate patient privacy protections could enhance health care decision making by physicians and patients and would bolster the growing movement for consumer-directed health care. These are some of the lessons we can learn from other industrialized countries.

Other lessons for a more efficiently functioning health care system include achieving lower administrative costs by standardizing coverage and insurance transactions; providing coverage through publicly funded programs rather than private insurance; and automating transactions among providers, patient, and insurers. This article does not address many other issues in depth. Topics for further in-depth analysis include the costs and impact of malpractice liability insurance, determination of prescription drug prices, differences in medical education (including costs and student debt), financing long-term care, and physician earnings and income. The United States may also benefit by examining how other countries manage end-of-life care, determine the distribution of health care resources, and make decisions on coverage and benefits.

The ACP has offered a series of recommendations to achieve a well-functioning health care system. All Americans should have access to a primary care physician and should have a patient-centered medical home for their ongoing, continuous,
comprehensive, and coordinated care. All Americans should have health insurance coverage that includes preventive and primary care services, as well as protection from catastrophic health care costs. Federal health policy should support the patient-centered primary care model. The United States lacks a national health care workforce policy. It should provide for sufficient support for the infrastructure required to educate and train an adequate supply of health professionals that would properly meet the nation's health care needs, including primary and principal care physicians that are trained to manage care of the whole patient. Workforce planning should specify an appropriate mix of physicians between primary and specialty care and describe the policies required to achieve that goal. Public and private investments in research must continue to support advances in basic and clinical medical science as well as in health services research. Other ACP recommendations call for financial incentives to encourage quality improvement and reduction of avoidable medical errors, support for a health information technology infrastructure to assist patients and physicians in making informed decisions about the appropriate use of health care services, and use of technology to achieve a more efficient health care system.

The main lesson of this article is that many countries have better functioning, lower cost health care systems that outperform the United States. We must learn from them.

posted by Tom Mayo, 9:57 PM | link

Sunday, December 02, 2007

New York City Law Review Issues Call for Papers on Health Care

The New York City Law Review announces a call for papers for its spring symposium, "Critical Condition: What's Ailing Health Care in America?" This event will be held Friday, March 28, 2008, at the Association of the Bar of the City of New York's Meeting Hall in Midtown Manhattan.

The Symposium will look at two critical questions: (1) Can international human rights frameworks help the United States overcome obstacles to universal coverage? and (2) Can innovative litigation expand coverage to vulnerable populations? Given that the 2008 general election has already placed health care as a central campaign theme, now is a critical time to evaluate the practical litigation and policy models for providing access to the uninsured and vulnerable populations, says Matthew Monroe, one of the symposium's organizers. For more details on the symposium and how to make topic submissions, visit:
posted by Tom Mayo, 8:02 PM | link

AHLA Health Lawyers Weekly, Nov. 30

Some interesting stuff in the Health Lawyers Weekly this time around:

Top Stories

Articles & Analyses

Current Topics

(c) 2007, American Health Lawyers Association. Reprinted by permission.
posted by Tom Mayo, 7:40 PM | link

Informed consent & SCOTUS: A tale of two doctrines

Interesting paper . . .

The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines
Case Western Reserve University - School of Law
Texas Law Review, Vol. 86, No. 2, December 2007
Case Legal Studies Research Paper No. 07-28


The Supreme Court has taken very different approaches to the question whether individuals have a right to make autonomous medical treatment choices, depending on the context. For example, in cases concerning the right to choose “partial-birth” abortion and the right to use medical marijuana, the Supreme Court reached radically different results, based on radically different reasoning.

More recent developments, including last Term's decision in Gonzales v. Carhart, have only highlighted the doctrinal confusion and the need for a resolution. In light of this pressing need, the goal of this Article is to view all of the constitutional cases touching on medical treatment decisions as one body of doctrine, as no other scholar has done. And indeed, this new perspective reveals that there are in fact two distinct lines of constitutional doctrine touching on the right to make medical treatment decisions: the “public health” line of cases, which emphasizes the police power of the state over individual rights, and the “autonomy” line of cases, which emphasizes individual bodily integrity and dignitary interests. Those lines of cases have grown up in parallel, appearing to represent airtight doctrinal categories while in fact addressing the same fundamental question. In addition, courts have applied varying degrees of deference to legislative determinations of medical fact without any logical consistency, perhaps based on largely superficial determinations about what type of case is before it.

This Article concludes that a constitutional right to protect one's health should be consistently recognized; that the recognition of this right should not be artificially limited by excessive deference to legislative findings of medical fact; and that this right will have to be carefully balanced against the state's real and legitimate interest in regulating the practice of medicine to protect the public.
posted by Tom Mayo, 2:13 PM | link

Top Ten Health Law Stories in 2008: FDA

There's no denying either the urgency of the FDA's mess or the bipartisan political appeal of the issue of food and drug safety. Consider this lead from the New York Times' Nov. 29 article on the latest report describing the agency's woes:

The nation’s food supply is at risk, its drugs are potentially dangerous and its citizens’ lives are at stake because the Food and Drug Administration is desperately short of money and poorly organized, according to an alarming report by agency advisers.
The report can be found here. (If the lack of an easily navigable website is any indication of agency disorganization, the FDA must be the poster child for agency chaos. This report is almost impossible to find using any of the links on the website. Then again, considering the devastating critique contained in the report, maybe the powers-that-be are trying to make it hard to find.)

Here are some of the major findings:

If that's not enough to make your Post Toasties wilt, I don't what is . . . .

posted by Tom Mayo, 12:28 PM | link

Health care law (including public health law, medical ethics, and life sciences), with digressions into constitutional law, poetry, and other things that matter