Court-ordered treatment for patient in persistent vegetative state.

Terry Schiavo has been in a "persistent vegetative state" for 13 years (I think the American Academy of Neurology would call this a "permanent vegetative state"). Her guardian is her husband, who has petitioned the courts in Florida for permission to withdraw her feeding tube and allow his wife to die a natural death. Her parents opposed the petition, as do the approximately 27,000 e-mailers who have allegedly asked the Governor to intervene. Jeb Bush has now done that, at least informally, by sending a letter to the judge who will hold a hearing on the husband's petition on September 11th. Gov. Bush has asked for the appointment of yet another guardian to look into the treatment decisions being made by Terry's husband. Meanwhile, Terry has developed what CNN describes as "a severe total body infection," and the court ruled on Tuesday that the infection must be treated aggressively between now and the Sept. 11th hearing date.

It seems extraordinary that a PVS patient's life-threatening infection has to be treated aggressively over the objection of her husband and guardian, especially if the trial court is only trying to preserve its jurisdiction long enough to have a hearing and rule on the pending petition to establish a date and time for the withdrawal Terry's feeding tube. If so, this ruling surely represents the triumph of form over substance, considering all of the legal proceedings that have previously occurred and the legal status of the case as of Tuesday.

The fact is, this is not the husband's first foray into court to get an order allowing his wife to die a "natural death." The Second District Court of Appeal has already ruled that life-sustaining treatment should be withdrawn pursuant to the guardian's request. The court was then asked by Terry's parents to order a hearing to determine whether "new treatment offers sufficient promise of increased cognitive function in Mrs. Schiavo's cerebral cortex-- significantly improving the quality of Mrs. Schiavo's life--so that she herself would elect to undergo that treatment and would reverse the prior decision to withdraw life-prolonging procedures." The appellate court granted their request on Oct. 17, 2001, and ordered a hearing. The hearing was held between Oct. 11 and Oct. 22, 2002, and on Nov. 22, 2002, the Florida Circuit Court entered the following order:

Accordingly, it is
ORDERED AND AJDUDGED that the Motion for Relief from Judgment filed herein by Robert and Mary Schindler, Respondents, be and the same is hereby denied.
In the event the Motion for Relief from Judgement is denied, the Mandate also requires this court to follow the dictates of the prior Mandate of the Second District Court of Appeal and "enter an order scheduling the withdrawal of life- support". Accordingly, it is
FURTHER ORDERED AND ADJUDGED that Michael Schiavo, as Guardian of the Person of Theresa Marie Schiavo, shall withdraw or cause to be withdrawn the artificial life-support (hydration and nutrition tube) from Theresa Marie Schiavo at 3:00 p.m. on January 3, 2003.

On June 6 of this year, the Second District Court of Appeal affirmed the trial court's ruling, ending its opinion with this language:

At the conclusion of our first opinion, we stated:

In the final analysis, the difficult question that faced the trial court was whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after ten years in a persistent vegetative state that has robbed her of most of her cerebrum and all but the most instinctive of neurological functions, with no hope of a medical cure but with sufficient money and strength of body to live indefinitely, would choose to continue the constant nursing care and the supporting tubes in hopes that a miracle would somehow recreate her missing brain tissue, or whether she would wish to permit a natural death process to take its course and for her family members and loved ones to be free to continue their lives. After due consideration, we conclude that the trial judge had clear and convincing evidence to answer this question as he did.

Schiavo I, 780 So.2d at 180. Nothing in these proceedings has changed this conclusion. The extensive additional medical testimony in this record only confirms once again the guardianship court's initial decision.
On remand, following the issuance of our mandate, the guardianship court should schedule another hearing solely for the purpose of entering a new order scheduling the removal of the nutrition and hydration tube.

According to CNN, the Florida Supreme Court declined to review this decision in an order handed down last week.

So: what's left for the trial court to do? The Court of Appeal has twice affirmed trial court rulings that the guardian's decision is amply supported by the record and that Terry Schiavo should be allowed to die. The parents have fought a desperate battle to alter the outcome based upon their mistaken belief that their daughter's PVS can be treated and they will get her back. The guardianship court has no discretion, as I read the June 6 order of the appellate court, to do anything other than enter its own order to set a date for the withdrawal of Terry's feeding tube. No legal question remains concerning the appropriateness of this husband to serve as guardian or the appropriateness of his decision to withdraw life support from his wife. Meanwhile, physicians are under a court order to stave off the inevitable with aggressive therapy so that Terry Schiavo can be allowed to die of malnutrition or dehydration, instead of dying from the infection that is ravaging her body, while an opportunistic governor succumbs to the temptation to turn that body into a political football. This is nuts.

Comparing prescription drugs.

The New York Times editorializes today that pharmaceutical manufacturers should not be allowed to bring a new drug to market unless it can show that the drug is superior to those already on the market. Without comparative data, "patients and doctors . . . rely mostly on intuition, trial and error, or the salesmanship of the drug makers." Medical superiority is often not the point of a new drug, the editorial continues. "In many cases, a manufacturer introduces a new patented product that is little different from an existing drug that is losing patent protection and whose price will thus be plummeting. The manufacturer typically implies that the new drug is better, a tactic that causes many doctors to prescribe it. . . . Congress is making moves toward reform with legislation that would provide modest sums for federal health agencies to sponsor research on the comparative effectiveness of top-selling prescription drugs. The drug industry opposes the bills. But at a time when prescription drug costs are escalating and consumers are deluged with commercials touting one drug or another, it is vital to provide objective, reliable information on what works best." PhRMA's site is down this morning, but I'll be back with their comment on the pending legislation later.

Texas and uninsured children.

In yesterday's Fort-Worth Star-Telegram writer Mitch Mitchell provided excellent coverage of the SCHIP scandal in Texas. We are second only to California in the amount of federal health-insurance assistance for children that we've lost. By refusing to allocate $$ for the health needs of uninsured kids, the state loses matching funds from Washington, to the tune of $618 million. Granted, we've had budget deficit to deal with recently, but (A) that doesn't explain our failure to take advantage of the availability of these funds when the state was flush, and (B) even in the current budgetary crisis mode, we are spending billions and billions on other things, just not on the health needs of poor children. Quotes from two legislators pretty well sums up the mindset in Austin:

State Sen. Jane Nelson, R-Lewisville, said legislators fought hard to minimize the budget crisis's negative effect.

"If money were available to match the federal dollars in the health care arena, I believe we would draw down those available federal dollars," said Nelson, chairwoman of the Senate Health and Human Services Committee. "But we have other services, like education, that we had to fund."

But state Rep. Garnet Coleman, D-Houston, said that if lawmakers wanted the state to get more federal CHIP funding, they wouldn't have cut the program.

"This is a philosophical difference," said Coleman, a member of the House Public Health Committee. "These folks have chosen to cut children rather than cut other things, and it's not a priority for them. The reason it's not a priority is because poor children don't make campaign contributions and poor children don't vote. This is not rocket science. You either want to cover kids or you don't."

Thanks to the Kaiser Family Foundation for this lead. Following health policy developments has never been easier than it is by subscribing (for free) for the KFF updates. Click here to find out how.

Medicare reform bill.

The Kaiser Family Foundation picked up a report (requires paid subscription) from today's Wall Street Journal that Sen. Grassley (Republican chair of the Senate Finance Committee) has pulled his staff out of the conference committee negotiations over the House and Senate Medicare reform bills. His complaint: not enough time is being devoted to rural health issues. Earlier reports on the process indicated that this promises to be the largest package of Medicare amendments since its inception in 1965, but Grassley's on-again-off-again relationship with Ways and Means Committee chair Bill Thomas highlights one of many schisms on the Republican side.

Dallas Morning News blogatorial page.

Congrats and a high-five to the editorial board of the Dallas Morning News for letting it all hang out on their new DMN daily, a blog-like page on their web site. Now, if only there were an RSS feed . . . .

Conjoined twins.

Two brothers from Egypt who are joined at the tops of the their heads (a condition known as "craniopagus") are scheduled to be separated in a 2-day procedure at Children's Medical Center of Dallas later this fall. The medical, human, and ethical issues are explored sensitively and well in a special-section insert written by medical reporter Laura Beil in today's Dallas Morning News.

Health care industry's federal fines at record pace.

According to a Wall Street Journal article reprinted in today's St. Lous Post-Dispatch, "[i]n the last three fiscal years, the government has amassed $4.21 billion in fines, settlements and restitution payments from its health-care probes, well more than the $3.29 billion it collected in the previous 10 years combined":

This year, the federal government is poised to collect more than $2 billion in payments from HCA Inc., Abbott Laboratories, AstraZeneca PLC, Bayer AG, Guidant Corp., GlaxoSmithKline PLC, Tenet Healthcare Corp. and Pfizer Inc.

More settlements are expected. Schering-Plough Corp. anticipates more than $150 million in liability from investigations by U.S. attorneys in Boston and Philadelphia into alleged marketing violations. Fred Hassan, who took over as Schering-Plough's chief executive in April, has said that he's holding "constructive dialogue" with the prosecutors and that he's ready to settle the issue.

This would be a good time to invest in a law firm with a good white-collar and complex civil practice . . . .

Medicare HMOs under the spotlight in South Florida.

South Florida, one of the last places where managed care organizations can make a pretty healthy profit in the Medicare+Choice program, and where competition for enrollees is intense, is also where CMS is watching marketing campaigns and the beahvior of HMO execs very closely. In an article in today's Miami Herald, it's reported that Medicare -- which dinged CarePlus for its marketing practices -- has now sent a letter of reprimand to CarePlus' CEO for incomplete and potentially misleading comments made last month to the Miami Herald in connection with a story about the Medicare fine. The marketing abuses included a claim that CarePlus offered unlimited pharmacy benefits (they should have said "unlimited generic pharmacy benefits") and their failure to state "that disabled Medicare beneficiaries, not just seniors could enroll in the Medicare+Choice HMOs."

Non-heartbeating [organ] donors.

Canada is now engaged in a very healthy debate over whether to initiate protocols to harvest organs from non-heartbeating donors (NHBD), according to a story in Thursday's Ottawa Citizen. The concept involves a return to the days before "brain death" criteria had been developed, at least in those cases in which waiting for brain death may result in the degradation of the viability of the transplantable organs. The protocol, some version of which is in place in many transplant centers around the U.S., involves disconnecting a patient from life support, waiting for a nominal period of pulseness and apnea, declaring death according to traditional cardiopulmonary criteria, and then harvesting the organs. The ethical questions have to do with two features of the protocol: (1) A drug (phentolamine, e.g.) is administered to dilate blood vessels and maximize blood flow and oxygenation, but dilation may lower blood pressure, perhaps catastrophically, raising the question whether death is being induced by the regitine. If the regitine is causing death, is the procedure homicide? (2) How long should surgeons wait after the termination of life support before declaring (to borrow a widely adopted state-law standard for declaring death) that circulatory and pulmonary functions have irreversibly stopped? The longer the surgeons wait, the more damage is done to the organs. An article in the current issue of the Canadian Medical Association Journal argues that the protocol could increase the supply of transplantable organs dramatically. But, as the redoubtable Margaret Sommerville stated in the news article, "I know the pressure to get organs for donation. . . . But we must be very careful that we're not fudging the criteria of death for the purposes of organ transplantation. . . . If they're suggesting nearly dead is as good as dead then there's a big problem in it. . . . The Criminal Code says any shortening of life, no matter how small, is murder." In this day and age of passive euthanasia, terminal sedation, and physician-assisted suicide, the lines are getting blurrier all the time. This is one opportunity for some needed clarity.

Medicare prescription drug benefit.

As noted repeatedly in this space, Congress is currently fighting over the details of a projected $400-billion-Medicare-prescription-drug-benefit-that-we-can't-really-afford. In an editorial today, the Christian Science Monitor appears to say they wouldn't mind seeing the benefit enacted if only Congress would get around to trimming the budget in some eminently trimmable ways (as recently reported by the Government Accounting Office). It's a thought, ain't it?

Medicare to Pay for Major Lung Operation.

The Medicare program has approved a controversial procedure (discussed here earlier this week) that offers significant relief from symptoms for many emphysema sufferers, though at a very high price (~ $60,000 per procedure). The CMS press release on their coverage decision for lung volume reduction surgery is here.

International notes from all over.

France. In addition to Germany, whose health care reform plans were mentioned here last month, France's Jacques Chirac has acknowledged that his country's death toll from Europe's current heat wave -- which France's government minister for the elderly estimates will reach 10,000 -- will prompt a government review of the health system's "insufficiencies."

Canada. As reported in the Toronto Globe and Mail this morning, Steffi Woolhandler et al. have an article in today's New England Journal of Medicine that says the U.S. health system's overhead expenses $450 billion per year, triple that of Canada, and the gap appears to be growing. They attribute our overhead to the costs of maintaining a fractured private system of health care finance and delivery. After calculating each country's expenditures to a common currency and recalculating the difference based upon per capita expenditures, the real difference is said to be $209 billion. (See abstract here; full text requires subscription) Even if Henry Aaron of Brookings is correct (extract) that Woolhandler's group has overestimated our overhead expenses by $50 billion, the difference is striking. More fundamentally, however, he questions whether the exercise is a significant one for purposes of developing health care policy. A comparison of dollars spent on administrative expenses, or any other category of health care spending, ignores something fundamental about the health care system of any country, including ours:

"More fundamentally, the administrative structure of any nation’s health care system, and certainly those of Canada and the United States, evolves out of its political history and institutions. The U.S. health care administration, weird though it may be, exists for fundamental reasons, including a pervasive popular distrust of centralized authority, a federalist governmental structure, insistence on individual choice (even when, as it appears to me, choice sometimes yields no demonstrable benefit), the continuing and unabated power of large economic interests, and the virtual impossibility (during normal times in a democracy whose Constitution potentiates the power of dissenting minorities) of radically restructuring the nation’s largest industry — an industry as big as the entire economy of France. For these reasons, careful scrutiny of how the United States administers its health care system, with an eye to how it can be improved within the limits imposed by history, politics, and economics, is useful. But analytically flawed comparisons with other nations, whose systems differ greatly from our own and that we are most unlikely to emulate, may titillate policymakers and others but provide them with little useful guidance."

The same issue of NEJM has a piece by Detsky & Naylor entitled, "Canada's Health Care System -- Reform Delayed" (extract). It is a useful political and social history of Canada's national Medicare system, often held up by health-reform advocates as a model worth emulating by the U.S. Taking a page from Henry Aaron, a reader would be wise not to try to draw explicit policy conclusions for the United States from Canada's experience. For example, the constitutional structure of Canada's system

"puts the authority for taxation largely in the federal sphere but the management of health care systems under provincial jurisdiction. The inevitable byproduct of this division of powers is recurrent squabbling among levels of government about health care. Because the federal government has very limited powers to promulgate legislation or regulations that control provincial health services, it can lead only by persuading the provinces to accept conditions on funds that it transfers to them. If the provinces fail to comply with the conditions set by the federal government, the only recourse is to impose financial penalties by withholding portions of the transfer payments. Most provinces, in turn, have resisted the imposition of conditions on federal transfers, and the resulting negotiations among provinces and with the federal government are usually intense. As a result, Canada’s health care system is best described as a collection of plans administered by the 10 provinces and 3 territories, each differing from the others in some respects but similarly structured to meet the federal conditions for funding. The simplicity of the five federal conditions is arguably one of the beauties of the Canadian system. They are the provision of all medically necessary services (defined as most physician and hospital services), the public administration of the system, the portability of coverage throughout Canada, the universal coverage of all citizens and residents, and the absence of user charges at the point of care for core medical and hospital services."

Detsky & Naylor also point out that

"[t]he system is unique in the world in that it bans coverage of these core services by private insurance companies, allowing supplemental insurance only for perquisites such as private hospital rooms. This ban constrains the emergence of a parallel private medical or hospital sector and puts pressure on the provinces to meet the expectations of middle-class
Canadians."

Interestingly, CanadaEast.com reports today that the Canadian Medical Association has joined a case before the Canadian Supreme Court challenging Medicare's government monopoly. CMA says it isn't advocating the creation of a private-care option, which is being advocated by others in the suit, but instead wants stirct guidelines to limit the long waits Canadian patients sometimes have to endure before getting care covered by Medicare. The alternative that CMA wants is a right to go outside the province or even outside the country (guess where?) at home-province expense once the maximum waiting period has been exceeded. Stay tuned . . . .

Pediatric drug testing.

This is a good Associated Press article that reports the unsurprising news that the FDA believes pediatric drug testing has made drugs safer for children (according to an article published in today's JAMA) (abstract only; full text requires subscription). What makes this newsworthy is the checkered history of such testing, from being almost nonexistent to being required by the FDA for many drugs to being declared beyond the FDA's statutory authority to being authorized by Congress last year.

Organ transplant shortage.

This is the public-health version of the saying "no good deed goes unpunished." Fewer young people's organs are available for transplant over the past decade or so, a trend that is fueled in part by a salutary trend: a decrease in the number of young people who die from trauma, according to a story in today's New York Times (no permanent link available at this time). In a related story, Randi Hutter Epstein reports on the diplomacy required to persuade parents to donate their child's organs for transplant.

JCAHO.

It's a rare day when JCAHO revokes a fully accredited hospital's accreditation. I have found only one so far, but I've only checked the larger states on the JCAHO "Quality Check" page, where you can find the accreditation status and accreditation history of various health care organizations. Modern Healthcare's "Daily Dose" reports that Greater Southeast Community Hospital in Washington, D.C., has lost its appeal of JCAHO's June revocation decision, but GSCH was never more than conditionally accredited.

Patient Privacy Rules Bring Wide Confusion.

HIPAAmen.

Antitrust claims of medical residents.

I've always thought that the medical residents' antitrust challenge to the National Resident Matching Program -- in which hospitals and graduates alike agree not to compete for positions but to accept the computer-generated pairings -- had considerable merit. Here's one analyst's take on the plaintiffs' theory:

"The antitrust lawsuit against the ACGME claims that the Match is anticompetitive because it eliminates the influence of free markets on salaries. Although the Match does not technically fix prices, it prohibits residency programs from making offers outside of the Match. This rule wipes out the market for medical residents and undermines price competition, because it prevents students from negotiating with the different hospitals. Without an offer in hand, students have no power to negotiate with the programs, and programs do not need to compete for residents through salary or other monetary benefits. Programs are also deterred from increasing salaries to compete for students, because they cannot be guaranteed that the students whom they really want (and whom they believe are worth a higher price) will be matched with them. Therefore, programs have, in effect, set a flat salary of roughly $40,000 for all members of house staff throughout the country, irrespective of the specific demand for their labor." (Sanders Chae, "Is the Match Legal?", 348 N. Eng. J. Med. 352 (2003) (extract; full text requires subscription))

At the same time, it is difficult to imagine the staffing chaos -- and the impact on the availability of much needed health care services -- that would be produced by a market-driven, frankly competitive system in which no one knows where all the residents will be working until June 30. Apparently the defendants think there might be some merit in those claims, as well. Of course, inconvenience and higher costs are not defenses to an antitrust suit, but they find support in various courts' analyses of the "procompetitive effects" of otherwise anticompetitive behaviors and can provide reasons to take the defenses very seriously. Here's the same analyst's view of the "procompetitive" defense:

"Specifically, the Match appears to increase the choice of residency programs for medical students by allowing them to interview at multiple programs. It also prevents insiderism and thus might enhance diversity."

According to an article by Neil Lewis in today's New York Times, they are trolling the halls of Congress looking for legislative protection from potentially devastating monetary damages. (A spokesman for the Association of American Medical Colleges, one of the defendants, denies any such implication and insists that the legislation is being sought precisely because they believe the suit has no merit.) In addition to generating fees for lobbyists and defense attorneys, the antitrust suit appears to have had another impact as well. The governing board of the Match voted at their May meeting to delay implementation of a new policy that would require all participating institutions to register all of their positions with the Match ("only" about 80% are currently listed), a policy that could have the effect of compounding the antitrust injury -- if any -- currently produced by the Match. There is a nonfrivolous argument that the Match does not produce antitrust injury, as explained by the same NEJM analyst:

"Antitrust claims under Section 1 must show that the restrictive practice has anticompetitive consequences, such as an inefficient transfer of wealth due to higher prices, a reduction in output, or a diminished quality of goods or services.4,5 It is not obvious that teaching hospitals are underpaying residents in order to transfer wealth from resident to hospital as excess revenue or profit. However, there may be a transfer of wealth when residents care for the private patients of attending physicians who do not participate substantially in resident training. It is also hard to believe that the Match reduces output by decreasing the amount of health care that teaching hospitals provide. Indeed, low salaries might increase output by enabling teaching hospitals to hire more residents, leading to more health care. A final difficulty is that Medicare pays salaries through a fixed sum paid to the hospitals. If Medicare would not provide higher salaries in a freemarket system, the Match might not be responsible for low salaries."

If you're interested in Dr. Chae's full analysis, address reprint requests to Dr. Chae at the Department of Medicine, Columbia University College of Physicians and Surgeons, 622 W. 168th St., New York, NY 10032, or at sanderschae@post.harvard.edu.

Rationing health care.

Two articles in today's New York Times raise provocative questions of health-care rationing and justice. One story is about Zell Kravinsky, a multimillionaire (well, he was a multimillionaire before he gave away $45 million to various foundations) who more recently donated one of his kidneys to a complete stranger. His wife has threatened to divorce him if Zell doesn't tone down his altruistic tendencies, and even his mother disapproves: "You can give money, you can give service. Body parts are quite another thing." Zell's explanation is strictly a utilitarian one: "No one should have a vacation home until everyone has a place to live . . . . No one should have a second car until everyone has one. And no one should have two kidneys until everyone has one."

In the second article, "New Therapies Pose Quandary for Medicare," Gina Kolata discusses medical therapies that could benefit tens of thousands of Medicare beneficiaries but at a cost of (as the late Carl Sagan would have said, in a different context) "billions and billions," indeed at a price that would dwarf the projected price tag for the prescription drug benefit currently being debated in conference by Congress. As Kolata puts it: "The federal Medicare program is expected to decide this week whether to pay for an aggressive and expensive lung operation that could offer a lifeline to tens of thousands of elderly patients. But health economists and medical experts say the treatment, however alluring, is part of an unsettling trend: new and ever pricier treatments for common medical conditions that are part and parcel of aging — procedures that could potentially benefit tens of thousands of patients, at a total cost that would far exceed the kind of prescription drug benefit now being considered by Congress. The questions, these experts say, are how much Medicare can or should pay, and whether cost-effectiveness should enter into the decisions." The chief medical officer for the Centers for Medicare and Medicaid Services, which administers the Medicare program, is quoted as saying "he understood that the costs of new technologies can be staggering. But he adds that cost has traditionally not been a consideration in deciding what to cover. 'If the technology was effective, we would find a way to pay for it,' he said. 'There is no dollar value per life per year at which Medicare would decline to pay.' But," adds Kolata, "costs are mounting."

Cryonics.

So: Alcor, the cryonics firm that has Ted Williams' body frozen in Scottsdale, now admits that they mistakenly decapitate the Splendid Splinter despite his family's expressed wishes to keep him in one piece. (See story) And Alcor's ex-COO posted pictures of Williams' head on the Web. And this COO is ready to testify as to all sorts of shoddy practices concerning the handling of DNA (including Williams'), human remains, and body parts. Meanwhile, a Boca Raton firm, Suspended Animation, has applied for the necessary permits to become Florida's first cryonics facility for humans. (See story) As reported by Popular Mechanics, the technical problems of freezing and thawing something the size and density of a human body are mind-boggling. This raises the question whether it is unethical to sell this service at this time, even with appropriate informed-consent disclosures, or should the regulators just let the suckers continue to be gyped.

Single-payer national health insurance redux.

As noted here on Tuesday, the Physicians' Working Group for Single-Payer National Health Insurance published their recommendations for such a plan in this week's JAMA (abstract only; full text requires subscription). Yesterday's Seattle Post-Intelligencer thoughtfully recommended that the debate should begin on the key questions posed by the doctors' group's recommendations ("Doctors diagnose health care woes":

"[JAMA editorialized that] 'American health care system and the American society face a real problem and are compelled to search for an answer.' . . . In the way of such an answer lie many questions. If we were to tax ourselves to provide a certain level of health care for everyone, what would that level be? How would that be decided and by whom? Who pays for what's not covered and how? Much disease is preventable through proper nutrition and behavior, while a huge portion of health care costs are incurred in the last months of life. Would public funding of health care necessitate a public policy debate on how the funding is allocated? Could an American national health plan be designed to offer the benefits of other nations' programs without the shortcomings? . . . The physicians have opened what should be a healthy -- and long overdue -- debate on an issue that literally touches everyone's life."

How much better a response to the doctors than the knee-jerk opposition of the AMA itself (as opposed to its mostly and almost always editorially independent journal, JAMA) and editorialists such as Jerry Heaster of the Kansas City Star. Heaster writes in today's paper that the announced decrease in physician reimbursements from the Medicare program next year, against the backdrop of Congressional debate over a $400-billion-Medicare-drug-benefit-we-really-can't-afford, highlights the ineptitude of the government when it comes to running really big, complex programs. He ends on a sourly populist note: "There are three ways to do things: the right way, the wrong way and the government way. This is a good example of the government way."

Okay, fine, Congress is blowing it big-time with this budget-busting drug benefit, and they have shown contempt, if not bad faith, in their dealings with physicians in recent years (and even going back some years before that, truth be told). But how much can we know about the operation of a national single-payer system from the history of a government program that is engrafted upon a market-based system? How, in other words, can Medicare possibly get out of the budgetary hole and regulatory morass it is in when it has to coordinate the functioning and financing of its benefits with an otherwise investment-driven and employer-dominated system? Maybe it will turn out that in the long run a single-payer system is a pig in poke and shouldn't be attempted. But we won't know unless there is honest debate on the kinds of important questions identified by the Seattle PI's editorial board, rather than chest-beating and snidely anti-government sloganeering.

More on stem cell research and cloning.

In addition to the three-fer in the Mayo Clinic Proceedings mentioned here yesterday, the New England Journal of Medicine had its own three-fer on this topic in its July 17 issue. The NEJM offers full text articles, with rare exceptions, for subscribers only, so all I can give you here are links to the abstracts, which are available to the public for free.

Prometheus's Vulture and the Stem-Cell Promise, by Nadia Rosenthal, Ph.D.

Review Article: Nuclear Transplantation, Embryonic Stem Cells, and the Potential for Cell Therapy, by Konrad Hochedlinger, Ph.D., and Rudolf Jaenisch, M.D.

Edtorial: Legislative Myopia on Stem Cells, by Jeffrey M. Drazen, M.D.

Boutique medicine.

According to a story in the Aug. 11 Boston Globe, Tufts-New England Medical Center will open a "concierge" or "boutique" primary care practice for patients who have the $1,800 to pay annually for access to longer appointments and quieter waiting rooms. The hospital system says the extra income will help subsidize the primary care it offers to all patients regardless of ability to pay and help stem operational losses that totaled over $12 million last year. As noted here on August 5, Washington's Commissioner of Insurance recently ruled such arrangements illegal. The Globe reports: "Blue Cross & Blue Shield of Massachusetts, Tufts Health Plan, and Medicare, the federal insurance program for the elderly, currently contract with concierge practices, but they are wary."

Not-for-profit conversion gone wild.

A report in today's Baltimore Sun says that federal investigators have subpoenaed records of CareFirst BlueCross/BlueShield in connection with the aborted attempt by Maryland's largest health insurer and its officers to convert the company to a for-profit corporation and sell itself to WellPointHealth Networks in California. The 15-page subpoena is directed at CareFirst, the Maryland Insurance Administration, and the law firm that represented CareFirst and its CEO. The federal probe follows upon the heels of a 352-page report by Maryland Insurance Administration Commissioner Steven B. Larsen in March, which accused the CEO and others officers of CareFirst of deception, conflicts of interest, mismanagement and flagrant attempts to profit personally from the proposed sale.

Stem cell research.

If you're not a microbiologist, or if you've just been out of touch with stem-cell issues for the past 6 months, getting back up to speed on the science of stem-cell research and the regulatory issues and ethical debate can be a daunting matter. The August issue of the Mayo Clinic (no relation) Proceedings can get you on top of the issue in an hour.

First, there is "An Overview of Stem Cell Research and Regulatory Issues" by Christopher R. Cogle, MD; Steven M. Guthrie, BS; Ronald C. Sanders, MD; William L. Allen, JD; Edward W. Scott, PhD; and Bryon E. Petersen, PhD. -- a good overview of the science and the public-policy debate.

Second, there's a commentary by Neil D. Teise, MD on "Stem Cell Research: Elephants in the Room," described as an "exceedingly personal" commentary on "issues of scientific methods and sociopolitical situation that impact the science."

Finally -- and likely to generate the most interest in political circles because of the prominence of some of the authors -- there's another commentary by William P. Cheshire, Jr; Edmund D. Pellegrino; Linda K. Bevington; C. Ben Mitchell; Nancy L. Jones; Kevin T. FitzGerald; C. Everett Koop; and John F. Kilner entitled "Stem Cell Research: Why Medicine Should Reject Human Cloning." Although the authors "enthusiastically affirm the importance of medical research and ardently support the goal of healing people," they conclude:

"To rewrite medical ethics to permit human cloning would ensnare physicians in a perilous compromise of professional standards. To acquiesce to human embryonic cloning would be to disregard, to an unprecedented degree, the value of new human life. Human cloning would also represent a decided step toward the devaluing of humanity universally because justifications of human cloning research disturbingly imagine a category of dismissable human
life. Such a designation is utterly foreign to the Hippocratic ethic, which respects human beings at all stages of life."

Arguing for a total and permanent ban on both reproductive and research cloning, the authors go beyond the majority position of the President's Council on Bioethics, whose report last July called for a permanent ban on "cloning-to-produce-children" and offered a split decision on "cloning-for-biomedical-research," with 10 members calling for a 4-year moratorium and 7 members supporting "cloning-for-biomedical-research now, while governing it through a prudent and sensible regulatory regime."

Single-payer national health insurance.

This week's JAMA has published a "Proposal of the Physicians' Working Group for Single-Payer National Health Insurance" (abstract; full article requires paid subscription). The challenge, as they see it, is to get the richest country on earth to finance basic health care for all Americans, including the 41 million without health insurance. Here's how: "We endorse a fundamental change in US health care—the creation of an NHI program. Such a program, which in essence would be an expanded and improved version of traditional Medicare, would cover every American for all necessary medical care. An NHI program would save at least $200 billion annually (more than enough to cover all of the uninsured) by eliminating the high overhead and profits of the private, investor-owned insurance industry and reducing spending for marketing and other satellite services." As reported by Modern Healthcare's "Daily Dose, the AMA itself remains opposed to a single-payer national plan.

"Promotion" of off-label drug use?

Good story from the Associated Press on a whistleblower suit in Boston that accuses Parke-Davis and its parent, Warner Lambert (all part of Pfizer now) of various nefarious and underhanded activities to encourage physicians to prescribe Neurontin "for unapproved uses such as relieving pain, headaches, and psychiatric illnesses." (Additional details about the alleged marketing abuses are described in an article in the Indianapolis Star.) Prescribing for an off-label use is perfectly legal, but manufacturers may not "promote" approved drugs for off-label uses. "Promotion," as the article makes clear, is a vague term, which allows for some leeway. Up to a point, we should welcome off-label uses, which are a cornerstone of medical progress, and who better than the manufacturer to know how the drug might be used in addition to its approved uses? But the law clearly expresses a preference for manufacturers to develop their theories about approved drugs through formal clinical trials and resubmission of data to the FDA to expand the claims for which the drug may be marketed. It will be interesting to see where the district court draws the line between innovation and patient safety.

Medical error and poor penmanship.

Medical error in general -- medication error in particular -- is undoubtedly a complex systemic problem, but one of the more obvious sources of the problem is the bad handwriting of many physicians. They are not alone, of course, with their poor penmanship, but few of us can kill someone with an undecipherable scrawl. The solution? Tens of millions of dollars of computer wiring and hardware installations per hospital to support a Palm-Pilot-based system of medical data entry, starting with the physicians and medical students who write the progress notes and medication orders, according to a story in today's Los Angeles Times (free subscription required). It's too soon for this to be the standard of care, but that time is coming, so hospitals can pay now or they can pay later, but they are going to have to pay.

Medicare reform.

Finally, someone is starting to focus on the inability of private health plans to provide Medicare benefits -- including the drug benefit under consideration by a conference committee in Congress -- at anything remotely resembling lower costs (to beneficiaries or to the Medicare program itself). According to an article in today's New York Times, out-of-pocket expenses for Medicare enrollees in existing private health plans have doubled since 1999. Anyone who thinks privatizing the Medicare program will be a panacea for projected budget increases, especially in light of the-pharmacy-benefit-we-really-can't-afford, needs to take a look at the report that the Times' article was based upon, which was issued today by the Commonwealth Fund.

Doctor listings on the Web.

An article in today's Washington Post makes the point that if health plans (and I assume some hospitals, as well) can't keep their on-line list of physicians cleansed of doctors who are deceased or who have been disciplined for sex-related felonies, what does this tell us about their on-going peer-review?

Living organ donors.

An Associated Press story today (published in The Cleveland Plain Dealer and probably a thousand other places as well) makes the point that (a) more donors come from living donors than from cadavers and (b) the transplant "system" is not doing a very good job of collecting and tracking data or providing meaningful and accurate informed-consent disclosures concerning risk.

Health reform and Harry Truman.

As students in my health law class know, the current health care woes of the U.S. are part of a familiar pattern, dating back to the beginning of the 20th century. By the time Harry Truman became president, he was sufficiently concerned that he included universal health care coverage in his first message to Congress. A story in today's Lawrence (Kan.) Journal-World is a nice reminder of Truman's worries for our system and the similarities between then and now.

Health care coverage for the college-bound.

Excellent discussion in the New York Times today about the ins and outs of health care plans for college students. Even though most college-aged students are fairly young and pretty healthy, it pays to pay attention to the fine print, especially if you plan to rely on one of the parents' employer-provided family coverage, and most especially if that's a managed care plan, which can have some severe limits on non-emergency out-of-network care.

Health care reform.

Scott Burns' nationally syndicated column ran a particularly good story August 7th on health care as a "bet-the-country-sized problem." Here are the numbers:

The unfunded liabilities of Medicare, according to the latest generational accounting figures from economists Jagadeesh Gokhale and Kent Smetters, now amount to $35.5 trillion. That's about five times the $7.2 trillion unfunded liability of Social Security. It's also about 10 times the Treasury debt held by the public.

Worse, the Medicare liability is growing with the speed of a nasty cancer. It will increase by $1 trillion more by next year's presidential election, dwarfing the recognized federal deficit. Then it will grow $5 trillion more by the presidential election of 2008.

There's also so good stuff here from John Wennberg's "Dartmough Atlas of Health Care," showing that "geography is destiny" when it comes to what sorts of health care services you get.

Medical staff issues.

Modern Healthcare's Daily Dose reported last week on a decision that holds that "[t]he medical staff of 222-bed Community Memorial Hospital of San Buenaventura, Ventura, Calif., is a legal entity and may sue the hospital's board over a new code of conduct and control of a $250,000 bank account. . . . The physicians contend the code of conduct and a new conflict-of-interest policy threaten the medical staff's independence and ability to police quality. . . . Hospital attorney Lowell Brown of the Los Angeles office of Foley & Lardner said, 'The question remains: Who gets to run the hospital -- the medical staff or the board?'"

Medical retainer fee (a/k/a "boutique medicine") nixed in Washington.

As reported in the Puget Sound Business Journal (Seattle), the Commissioner of Insurance in the state of Washington has determined that the growing practice of physicians charging patients a retainer for premium access (responses on nights and weekends, office appointments on short notice, etc.) violates the state's insurance laws. In two draft technical assistance advisories, the deputy commissioner of insurance ruled that such arrangements are, in effect, insurance, because "[t]he fee is paid by the patient regardless of the amount of services provided [and] even if no services are provided. These arrangements result in a transfer of risk and, in essence, are insurance agreements." Actually, the transfer-of-risk/insurance element of the analysis seems weird to me. In what sense do the doctors take on risk? The care isn't pre-paid with the retainer; only access is pre-paid. The patient's health insurer is going to be tapped for the care, and no part of the insurer's risk is being shifted downstream to the physician. Granted, there is some risk that the demand for services at any given time might outstrip the physician's ability to schedule, but that's not a financial risk, is it? The higher the utilization, the higher the fees for the physician. I'm not sure I see any insurance element in this arrangement at all. On the other hand, I think Troy Brennan's ethical analysis of these arrangements in the New England Journal of Medicine (Volume 346:1165-1168 -- April 11, 2002) (subscription required for full text) is spot on: "[T]he development of luxury primary care might be seen as a crystallizing event. The medical community must be prepared to step forward with ideas and programs that ensure an equitable distribution of health care services. No matter how innovative and attractive luxury primary care is to some patients and physicians, it poses questions about equity. We should identify ways in which luxury primary care can be regulated by the medical profession (perhaps by mandatory cross-subsidies and careful monitoring of the prevalence of such care), while also addressing other threats to access. The questions that luxury primary care poses should remind us that as physicians we have a commitment to the equitable distribution of health care and therefore a duty to address market innovations that could leave some patients without access to care." Thanks to health lawyer Jeff Sconyers for bringing this decision to my attention.

Abortion funding.

According to the San Antonio Express-News, "[s]ix Planned Parenthood affiliates can continue to perform abortions with privately raised funds in Texas without jeopardizing $13 million in annual state funds, under a temporary injunction granted by a federal judge Monday." The court's injunction effectively stays a recent state law that would otherwise have gone into effect on Sept. 1. See also article in Austin American-Statesman. Hate to admit it, but I am coming up dry in my search for a bill number on this budget item . . . .

Stem cell research.

Celgene Cellular Therapeutics broke ground yesterday on a facility that will harvest stem cells from placentas and umbilical cords, thus sidestepping the moral morass produced by harvesting stem cells from embryos or fetal tissue, according to an article in today's Monroe (La.) News Star. NIH has the next move: where do these stem cell lines fit within the President's research-funding policies announced two years ago this month?

Brain surgery.

And while I'm on the subject of technological challenges to "human nature," consider the article in today's L.A. Times entitled "New surgery to control behavior". There are examples -- and this might be one of them -- of technology that makes us more human, not less.

Gene therapy.

A thought-provoking piece on germ-line therapy appeared in today's issue of The (Melbourne) Age. Bill McKibben's article is based upon his forthcoming book, the apocalyptically entitled, Enough: Genetic Engineering and the end of Human Nature, and ends with this paragraph: "Right now our technology is advanced enough to make us comfortable, but not so advanced that it has become us. We have enough insight from Darwin and Freud and Watson and Crick to allow us to understand some of what drives us, but we’re not yet completely reduced to hardware. We have Prozac for the incapacitated and pain-ridden, but it’s not encoded in our genes. We have enough medicine to give most of us a good shot at a long life, but not so much as to turn us into robots. We are suspended somewhere between the prehistoric and the Promethean. Closer to the Promethean. Close enough." McKibben's argument, which relies to a considerable degree on assumptions about our shared understanding of the notion of "human nature," reminds me of the position of Dr. Leon Kass, chairman of the President's Council on Bioethics, whose most recent book, The Beginning of Wisdom: Reading Genesis, was reviewed quite respectfully in yesterday's New York Times (subscription required).

Med mal insurance crisis.

The GAO's new report on the med mal insurance crisis should be required reading for anyone (including me) who has said med mal recoveries aren't the real culprit behind rising premiums - it's the business cycle combined with myopic and greedy insurance companies' business plans. Turns out it is both and a lot more, too.

Medicare drug benefit.

The conference committee proceeding to hammer out a prescription drug benefit for Medicare keeps getting messier and messier. Forget for a moment that the price tag -- conservatively estimated at $400 billion a year -- is a budget buster. And put aside the notion that the drug benefit will go to the 90% of seniors above the federal poverty line as well as the 10% below. (I don't know where it makes sense to draw the line on this entitlement -- 10% above the poverty line? 25% above? -- but at this price, and in these economic times, you'd think Congress would show a little more interest in targeting this benefit to help those who most need it, not to senior whose incomes can cover drug costs, or whose retirement health plans already include a drug benefit.) Now the plot thickens as conferees deal with the impasse over prescription-drug reimportation. As reported in The Washington Post, the House bill would allow reimportation from Canada and two dozen other countries, while the Senate version would allow reimportation only from Canada. The Boston Globe and others report that 53 senators have signed a letter that says the House version is a deal-breaker for them, and the drug industry trade organization PhRMA supports the senators' position. PhRMA says it's a safety issue: we don't know how those drugs have been stored and transported, and substandard handling practices can reduce the potency of the drugs. The FDA and its parent agency, DHHS, also have historically opposed reimportation on safety grounds. (A nice review of reimportation is in the Sept./Oct. 2002 issue of FDA Consumer magazine.) In addition to the safety issues, PhRMA has another concern that the senators aren't talking about: the impact of "importing foreign government's price controls" on the pharmaceutical industry's bottom line and ultimately on its R&D budgets. Thus, PhRMA "urge[s] Congress and the Administration to . . . overturn foreign governments' price controls on prescription medicines. Foreign governments' policies . . . lead to free-riding on American consumers and reduce the pace of development of new medicines." Using Rep. Bernie Sanders' analysis of drug company profitability (as reported by Forbes), the concern about slashing R&D budgets does seem a bit overdrawn. Reliance on Forbes' numbers has been challenged by the conservative Buckeye Institute, but even by their reckoning, industry profits were at 18.3%. Buckeye was taking aim at a Public Citizen report that pegged industry profitability at a rollicking 33%; Sanders' numbers reflected a more conservative calculation of 18.6%. Even at 18%, industry profits are robust. The policy question for Congress is how much of a hit the industry can take and still produce new drugs that benefit us all.

Duke's transplant woes.

The Raleigh News & Observer reports in an article today that Duke's transplant program was given a clean bill of health by the regional CMS office in Atlanta. At issue were a lack of coordination between the transplant center and the regional organ procurement organization, as well as problems with dialysis equipment that were discovered after the death of Jesica Santillan last summer. The story is an interesting representation of today's health care system in a microcosm: Duke states that its goal "is to maintain the highest safety standards for the benefit of our patients and staff," while the paper notes that "[a]t risk were the hospital's Medicare and Medicaid reimbursements, which make up 40 percent of its revenues." Duke's chances of losing Medicare/Medicaid certification are about equal to my chances of setting the Major League Baseball home run record, but the publicity alone, let alone the theoretical possibility, tends to focus the institution wonderfully.

Dumb and DOMA.

President Bush, in his news conference on Wednesday, July 30, put his "compassionate conservative" principles out in full view by stating that we should be tolerant of gays and lesbians (despite his reference to them as "sinners" -- that must be the compassionate side of Dubya), while at the same time stating that administration lawyers are looking into the legal steps necessary to make sure that "marriage" is a status that will be reserved to opposite-sex couples as a matter of federal law. Putting aside the most likely explanation for this comment -- that he was appealing (or pandering, as you like it) to his conservative base -- and taking his words at face value, exactly what the lawyers are looking into is a bit of a mystery. Maybe a constitutional amendment, though clean-up hitter and press secretary Scott McClellan did not take the bait on that one at his daily press briefing on Thursday. (By the way, kudos to the White House press office for a fully functional search engine and an indexed press briefing feature on their web page. In terms of functionality, the Bush crew got off to a slow start, but the availability and functionality of retrievable White House comments is now excellent.) As many have noted, the 1996 Defense of Marriage Act ("DOMA") already establishes (i) that "marriage" means opposite-sex unions for purposes of federal statutes, rules, benefits, and programs and (ii) that states do not have to give full faith and credit to any other state's legal decrees to the contrary. It's hard to see how all this would have come up, at least at this time, if it weren't for the Supreme Court's decision in Lawrence v. Texas, which not only struck down Texas' Penal Code provision on homosexual sodomy but also ruled that the states' police powers need more than a purely moral basis to pass even rational-basis review by the federal courts.

Pediatric drug testing.

According to an article in the Philadelphia Inquirer, the Senate voted yesterday to approve a bill (S. 650) that would require drugmakers to include children in the study of drugs intended to be used in minors. Last year a district court invalidated an FDA rule that would have done the same thing on the ground that it was not authorized by statute. The Senate's action yesterday is one step toward providing solid statutory support for such a requirement, which is long overdue.

Letterman.

If you caught David Letterman last night, you know he featured the 7/22 N.Y. Times headline, "Astronomers Report Evidence of 'Dark Energy' Splitting the Universe". I'm positive that Dave -- a regular reader of HealthLawBlog -- picked up this item from Tuesday's blawg.

Medical error reporting legislation.

According to an article in today's "Daily Dose" from Modern Healthcare, the Senate Health, Education, Labor and Pensions Committee approved "[a] bill that would set up a voluntary, nonpunitive system for medical-errors reporting . . . 20-0 . . . today. . . . Under the Senate bill, HHS would oversee the creation of a national database to aggregate information on medical errors." See S. 720 for more details, including a complete legislative history.

Physicians and antitrust.

The FTC settled yet another physician case -- the 10th in 20 months according to and article in Modern Healthcare's "Daily Dose." The FTC has all the details about the case against a Baton Rouge IPA and their consultant on its web page. As has been noted in this space before, as tempting as it is to deal with managed care organizations through a little old-fashioned price-fixing, and despite the Supreme Court's recent cases weakening the foundations of the per se doctrine, this is still the classic antitrust offense.

Insuring against punitive damages.

As reported in the July 22 Texas Lawyer, a panel of the 2nd Court of Appeals in Fort Worth has voted 2-1 that insuring for punitives does not violate public policy. The case is Westchester Fire Insurance Co. v. Admiral Insurance Co. This could be a really big deal, if the Texas Supreme Court takes the case, no matter which way they go on this issue.

German health care reform.

Today's Wall Street Journal (requires subscription) reports that Germany's health system is about to be reworked, if a government plan passes the legislature: "The overall costs of the health system wouldn't be much reduced. Instead, for the first time, patients would be charged small fees for treatments, hospital stays and medicine. Sick pay and certain dental expenses would no longer be covered by the public system. . . . The annual burden on the system would be cut by about €10 billion ($11.3 billion) starting next year and by as much as €23 billion annually by 2007, the government said. Health care payments would fall to 13% as a percentage of gross wages by 2006, from 14.4% today, according to the plan. Health care is the biggest social expenditure after pensions. . . . The measures would also go some way toward opening up the health care industry to private insurers and to more competition. . . . But the package stops short of allowing health insurance providers to choose the hospitals or doctors with which they have contracts. The current system has fixed contracts between hospitals and providers, an arrangement some analysts say stifles competition and hurts quality." Interesting that -- coming from very different starting points -- both the German government and the U.S. House and Senate are looking to privatization and increased competition to meet the soaring demands of ever-more-costly health insurance plans.

If you're feeling a little low, this won't help.

You have to love the copy desk chief who writes the headlines in the "Science" section of the N.Y. Times. My favorite headline, until this morning, was "Mass Found in Elusive Particle; Universe May Never Be the Same" (June 5, 1998). Over my morning cup of coffee today, however, I stumbled across this gem: Astronomers Report Evidence of 'Dark Energy' Splitting the Universe. Kind of makes me think Buffy was on to something.

Universal coverage.

Jacob Hacker has an interesting piece in the July 20 Boston Globe. It starts:

STILL SMARTING FROM defeat, a leading activist ruefully explained why once-promising plans to expand health coverage had failed. Health legislation, he said, affected ''powerful group interests'' and was easy fodder for scare-tactic attacks. ''All these fears, some justified, some exaggerated, and some altogether fanciful,'' he said, ''produced such a confusion of group conflicts that only a clear recognition of the need... might have overcome it, and that clear recognition was lacking.''

All this would be an incisive assessment of the demise of the Clinton health plan in 1994-if, that is, it hadn't been offered in 1930, and if its author, the social reformer Isaac Max Rubinow, hadn't in fact been talking about the failure of the first campaign for expanded insurance in the late 1910s.

He goes on to mount a spirited defense of "play or pay" - requiring employers to contribute to an insurance fund if they do not provide health benefits for their employers, which he argues is a Clinton-era idea whose time might have come.

Medicare Rx benefit.

Good article in today's New York Times about the competing House and Senate bills to reform Medicare. The Kaiser Foundation's Daily Health Policy report, as usual, lays out the issues nicely, adds a discussion of "dual eligibles," and picks up on some coverage and commentary from other newspapers around the country.

Hospital billing inquiry.

On July 16, House Energy and Commerce Committee Chairman Billy Tauzin (R-LA) and Oversight and Investigations Subcommittee Chairman James Greenwood (R-PA) sent letters to 20 hospitals and hospital systems. As reported in the July 17 Wall Street Journal (requires subscription), the investigation is into "hospital billing practices that often require uninsured patients to pay rates that far exceed what other payers, including the government and HMOs, are charged. . . . The committee also asked the hospitals to disclose their charity-care practices and how they go about identifying financially needy patients who may need help." Assuming the hospitals are all forthcoming about this massive request for data, it promises to be a fascinating proceeding. As the WSJ article puts it: "At the heart of the congressional investigation is the thorny issue of 'charges,' which are the retail prices that hospitals list for their services. According to the letter, these rates are 'often inflated far beyond [the hospitals'] actual costs and reasonable profit.' Some payers are able to negotiate discounts and pay far less, but 'individual uninsured patients are expected to pay this full, undiscounted "sticker" price,' the congressional letter said. Added [a committee spokesperson]: 'In some cases, it appears that the very people who can least afford it are paying the full sticker price for hospital services.'" I sure hope we see a report coming out of all this.

[Self-]analyze this.

Today's on-line health edition of The Wall Street Journal has an article in its "Science Journal" (requires subscription) about evolutionary psychology and mate selection. Evolutionary psychologists claim that the better looking a woman is, the more she expects from a mate in terms of status, wealth, and power. It works the other way around, too, hence the "trophy wife" title for this theory. (Anna Nicole and J. Howard Marshall are the poster kids for this one.) It turns out that Cornell researchers have an alternative explanation that explains the data even better: we look for mates who have traits that we see in ourselves (i.e., "likes attract"). The article concludes: "There's only one problem with the notion that we look for mates who resemble ourselves: We generally stink at self-evaluation. 'People tend to be blissfully unaware of their incompetence,' concludes a study by Cornell and University of Illinois at Urbana-Champaign scientists in the journal Psychological Science. 'Where they lack skill or knowledge, they greatly overestimate their expertise and talent, thinking they are doing just fine when, in fact, they are doing quite poorly.'" This may explain why deans like student evaluations as much as they do.

Human tissue barbarity.

A story in today's Austin American-Statesman reports that a San Marcos father specified that his teenaged son's heart, corneas, and bones -- which were harvested while the father was out of the country -- should be donated without profit. When the Red Cross and the eye bank determined that they couldn't guarantee that someone wouldn't make a profit off his son's parts, both firms shipped the parts back: "In a FedEx package came his son's corneas, packed in a preserving solution. In a cooler filled with dry ice Roberts found his son's femurs, kneecaps, hip bones and shoulder blades. His son's heart was in a jar." Nice touch. Granted, the dad was somewhat naive about the workings of the human-tissue industry, and his request undoubtedly put the organizations in a bit of a bind - one that their disclosure forms were drafted to avoid, by putting donor families on notice that some firm or person down the line might make a profit from the donated body parts. But was this the way to handle it? As the peripatetic Art Caplan is quoted as saying: "'Repugnant doesn't capture it,' he said. 'The decision to do that is as serious a breach with the public as you can find. If you want to stop people from donating organs, return them to a funeral home.'"

Poetry and medicine.

Last evening's "All Things Considered" had a wonderful piece about the author of Singular Intimacies: Becoming a Doctor at Bellevue, Dr. Danielle Ofri. [If you follow the link to NPR, be sure to click on the audio version of the story; the "transcript" provided on that page is woefully incomplete.] Among other things, hospital teaching rounds includes some time for poetry, in this case "Gaudeamus Igitur," a truly magnificent poem by John Stone, a cardiologist at Emory and a fine poet. This poem is one of the highlights every year in my Law, Literature & Medicine class, and I strongly recommend it to anyone reading this blog. It's here.

Valium turns 40.

"Mother's little helper" . . . "Executive excedrin" . . . one of the "dolls" popped by the characters in Jackie Susann's Valley of the Dolls . . . as pointed out in an article in today's Duluth News Tribune, this is the year iconic Valium (diazepam) turns 40. Although Valium is not intended for chronic use, by 1978 American's were downing 2.3 billion tablets a year. Highly useful, but highly abusable, it's the drug that makes me think my generation knows what it's talking about when it worries that our culture has become too dependent on mood altering drugs to get us (and our kids) through the day.

Children's hospitals' growth spurt.

Today's Boston Globe has a very interesting piece about the growth spurt in children's hospitals in Boston, LA, Buffalo, Indianapolis, Miami, New York, Phoenix, San Jose, Rochester (N.Y.), Chicago, and Denver. They might also have mentioned Dallas - have you driven by Children's Medical Center at Motor Street and Medical Center Drive recently?

Medicaid services for the dead.

Kaisernetwork.org's daily report mentions an article in the Memphis Commerical Appeal that Medicaid auditors have found 1,997 instance over the past five years in which the Medicaid program was charged $159,896 for services provided to patients who had died. Some or all of this might be computer error (at least faulty data entry) but any cases that are accurately reported obviously fall outside the standard of "medically necessary" care. Patients who are "brain dead" continue to receive services if they are organ donors, but those expenses are paid by the Organ Procurement Organization, not by health insurance programs (public or private). Brain dead patients will sometimes remain on life-support in the hospital for hours or sometimes days, until the family is more comfortable with the concept or more accepting of their loss, or until out-of-town family members can assemble at the bedside. I've always assumed that hospitals eat those charges rather than try to get reimbursed for them, and in any event, if this were the explanation, there'd be more money involved than $80 per patient (on average). So either Tennessee has a lot of data entry clerks who need to be retrained (or a lot of forms that need to be reformatted) or it's literally pay-back time for these hospitals.

Conjoined twins.

Last week's failed attempt to separate the 29-year-old sisters from Iran, Ladan and Laleh Bijani, has spawned a lively international bioethics debate that is described in a story by Denise Grady in today's New York Times. Dr. Mark Siegler's flip-flop on the issue is especially worth pondering. Is he right that a 50% chance of survival is too low for the surgeons ethically to perform the requested separation when the surgery wasn't necessary to treat a life-threatening condition? How relevant is the label "elective" as a description of the surgery, which was so deperately sought by the twins, whose competence cannot really be debated?

In vitro fertilization.

There is a useful summary of current IVF practices in an article in today's New York Times. This is a fast-moving field, and law and ethics are largely driven by technology (and commerce), which makes this sort of report especially useful.

Medicare reform. Why should we be surprised? The Washington Post reports today that the Medicare not-exactly-comprehensive-prescription-drug-benefit-that-we-still-can't-afford bills (S. 1, H.R. 1) have "become a magnet for dozens of unrelated provisions benefiting hospitals, doctors, medical equipment companies and an array of other health care interests." Citing "many [provisions] dropped into the legislation in the small hours of June 27, just before Senate passage [that] would benefit [chiropractors,] marriage counselors, the weight-management industry, rural ambulance services, Hawaii's Medicaid program and doctors in Alaska." Stating the obvious, but something that needs to be said anyway, the Post writes: "the legislation proved to be an irresistible target for an army of health care lobbyists lured by the first major Medicare bill to move through Congress in three years."

Abortion - minors. On Thursday, July 10, Florida's Supreme Court struck down that state's parental-notification law, which requires a minor who wants an abortion either (1) to notify their parents or (2) to obtain a judicial order that declares (i) that the minor is sufficiently mature to make her own reproductive decisions or (ii) if the minor is not sufficiently mature, that an abortion would nonetheless be in her best interests. The opinions are here. Florida's law sounds virtually the same as Texas' parental-notification law, whose constitutionality has been upheld by the Texas Supreme Court. The Florida decision was based upon a state constitutional provision (Art. I, § 23) that provides: "Every natural person has the right to be left alone and free from governmental intrusion into his [sic] private life . . . ."

Medicare reform. The Wall Street Journal has an electronic health-care edition that collects print stories about health care, medicine, health policy, etc. in one place, but (as with the basic newspaper web product), it costs money. If you subscribe, you can check out three articles on July 11 that discuss Medicare reform and its potential impact on the Rx drug industry, pharmacy benefit managers, and private health plans. (They are available on the WSJ's "Remaking Medicare" page, which is a good place to visit to prepare for next month's conference committee's attempt to reconcile the competing House and Senate attempts to reform Medicare.) If you don't subscribe, the Kaiser Family Foundation's "Daily Health Policy Report" has a summary of all three articles (for free) on its web page.

Linking med-mal reform and health care reform: Michael Kinsley does a nice job of linkage in his July 10 column, A Painful Malpractice Debate in the Washington Post:

Very few winners of what the critics call the lawsuit lottery actually win enough to make it a deal they would take voluntarily. . . . So the direct effect of restricting the size of malpractice judgments would be to increase injustice, not to reduce it. Nevertheless, limits on malpractice lawsuits are a good idea that Democrats are wrong, and possibly foolish, to oppose. The current arrangement delivers justice at random, in widely varying amounts or not at all, depending on whether you're feeling litigious, how good your lawyer is or what a judge or a juror had for breakfast that day. It is less a matter of injustice than of more justice than we can afford. . . . It is a society with an odd sense of justice that awards millions of dollars to every 25th victim of what may or may not have been a botched operation but doesn't guarantee basic health care to anyone. But it is a political party with an odd sense of justice that makes a big issue of the former and basically ignores the latter. Republicans are right about malpractice reform. They may not realize quite how right they are.

Media scan. Hard to miss the wild disparities that abound in health care these days.
Example: Maine, whose discount-Rx drug scheme was recently upheld by the Supreme Court, is currently on the road to statewide universal health coverage, according to an
article in today's Baltimore Sun.
Example: Robin Toner and Robert Pear report in today's NY Times that both parties in Congress are locked in a battle over whose less-than-comprehensive-Medicare-drug-benefit-we-can't-really-afford bill will be passed . . . hanging in the balance are bragging rights for the 2004 elections.
Example: Meanwhile Medicare continues to cut reimbursements to physicians who in turn are refusing to take on new Medicare patients (it doesn't really qualify as news, but it is reported in today's Springfield (Mo.) News Leader). If Congress can't afford the Medicare benefits it's provided for up till now, it kind of makes you wonder how even a modest prescription drug benefit will be paid for, doesn't it?
Example: Finally, for a truly terrifying look into one of our alternative futures, consider the Canadian Medicare program, long a model for those, like me, who think a universal-coverage, single-payer system would solve a lot of the problems of the US' so-called system. The Canadian system is being wracked by the political problem of how to control costs in a humane and civilized way. As reported in an article in today's Toronto Star, by 1999 "85 cents of every new dollar collected [by federal and provincial governments] went to health care." That is obviously not sustainable, and yet who in the US has a sensible alternative to this picture?

Quality. Yesterday DHHS and CMS announced a three-year demonstration project to provide financial incentives to participating hospitals that provide high quality care for Medicare patients. The project will track performance data for "heart attack, heart failure, pneumonia, coronary artery bypass graft and hip and knee replacements. Measures include prescription of aspirin for heart attack and bypass graft patients and timely administration of antibiotics for pneumonia patients." As described in the DHHS press release:

Hospitals will be scored on the quality measures related to each condition, and those hospitals in the top 10 percent for a given condition will be given a 2 percent bonus on their Medicare payments. Hospitals in the second 10 percent will be given a 1 percent bonus. Hospitals in the remainder of the top 50 percent will be given recognition for their quality but no bonus.

Premier Inc. will do the data tracking, and -- although this was unclear from the DHHS press release -- Premier's press release intimated that the demonstration will not be limited to the approximately 500 facilities that already track and report quality-of-care data through Premier's tracking system. Incentives will total $7 million per year for the 300 participating hospitals -- that's an average of $23,333 per hospital. As a percentage of any decent sized hospital's operating budget, that's a relatively paltry incentive. (By way of comparison, some hospitals are paying individual signing bonuses of $25,000 to get nurses in high-demand specialties.) Obviously, DHHS and CMS want to point to something they can say they are doing to improve health care quality, but in the current budget environment, the cash for something splashier apparently just isn't there . . . even for a program that CMS chief Tom Scully says will partly pay for itself by reducing hospital readmissions.

The most surprising part of this story came out in Robert Pear's article in today's New York Times. As any regular reader of The Times could have told Secretary Thompson or CMS chief Tom Scully, Premier has been under investigation for the past year by state and federal officials for possible antitrust violations. That's not enough to scuttle Premier as a partner in this project, but is it credible that no one at CMS -- including Scully, who "said he knew little about the investigations until a journalist made inquiries at his office today" -- had pulled up The Times' multi-part series on Premier and its competitors in the lucrative hospital-supply industry before inking this deal?

Good quote. Eugene Volokh (whose book on Academic Legal Writing is without peer), posted this quote from Oliver Wendell Holmes on his blawg and I thought it was a quite fitting way to end our summer session together in Bioethics (as it would be for just about any course in law school!).

Med-mal reform. Modern Healthcare's Daily Dose reports that the Senate voted 49-48 to table the med mal reform bill, which is undoubtedly the death knell for that troubled piece of legislation. Wild-eyed liberal that I am, I won't be crying tears over the (temporary) end of this Congressional frolic and detour. This really is more suited for the states, isn't it?

Obits. The July 8 Canadian Medical Association Journal has an interesting piece about the firestorm that erupted after the British Medical Journal published a critical obit of a recently deceased doc. Apart from the question whether the dead doc actually will turn out to be the greatest snakeoil salesman of his time, there is the somewhat interesting question whether obits should merely celebrate the highlights and impassively report on the lowlights of a life, or should they jump into the fray with full-throated opinions. I vote for the latter . . . . it's a lot more interesting than the bland stuff that most papers and especially professional journals pass off as obituaries.

Antitrust. Modern Healthcare's Daily Dose reports that another physician group (this time a PHO in Maine) has agreed (without admitting wrong-doing) to stop price-fixing activities. The Maine attorney general issued a press release stating that his office had alleged the PHO violated a state law that allows "[a]greements among competitors on price and other competitively significant contract terms . . . where the joint activities of the providers have a real potential to increase quality of care and reduce cost, and where the joint contracting appears reasonably necessary for the achievement of those benefits to patients and consumers." So far, this year has seen a steady stream of price-fixing cases, some from the FTC, involving health care providers (mostly physicians). Sooner or later, they will get the message . . . .

Family Code and the 78th Tex. Leg. You can't beat the Family Law Section of the State Bar of Texas for its timely and authoritative listing of new family-law-related statutes from the 78th Legislature. Good job!!

And thanks, too, to Tim Mighell for his mention over at his excellent Inter Alia site!

Thanks to Ernie the Attorney for his mention of this new blawg! Now, if I can just figure out what the brouhaha about "RSS feed" is all about . . .

"Brain dead." From time to time I give a talk to health professionals entitled, "Medically dead, legally dead, brain dead, or really dead?," intended to highlight (and dispel) popular confusion about the concept of brain death (more accurately: "death according to neurological criteria"). A source of confusion are news media that almost invariably get it wrong. Ironically, I made this point in my Bioethics class just this past Thursday, and The Dallas Morning News promptly obliged with an article in the Metro section of today's paper. Reporting on a tragic drive-by shooting during a 4th of July cookout, the author stated: "Juan Medina, 20, a father of one of the wounded children, was declared brain-dead but was being kept alive by life support Saturday evening." "Brain dead" is not "sort of dead" or "partly dead": it's dead dead! Poor Mr. Medina may be on a ventilator, but he's not alive. My prediction: in tomorrow's paper, the Morning News will dutifully report that the brain-dead Mr. Medina was taken off life-support and "allowed to die." You heard it here first.

Good samaritan law. Last year the Austin Court of Appeals stumbled badly in the MacIntyre case by almost reading the Good Samaritan Act out of the law. Admittedly, the provision they construed was not a model of clarity. Texas' Civil Practice and Remedies Code § 74.001 states that the law's immunity doesn't apply if the "good samaritan" was acting "for or in expectation of remuneration," and it goes on to say that a person acts "in expectation of remuneration" if that person "would ordinarily . . . be entitled to receive . . . remuneration for administering care under such circumstances . . . even if the person waives or elects not to charge or receive remuneration on the occasion in question." Actually, not a bad idea, but under what conceivable set of circumstances would a responding physician not be entitled to remuneration under some legal theory any time he or she responds to an emergency? Taken at face value, this provision all but writes physicians out of the law, which can't be what the Leg intended to do. The Austin court read the plain language of the statute, however, and said there was at least a triable factual question as to whether the responding physician was entitled to receive remuneration for delivering the plaintiff's baby, even though the defendant's deposition testimony was that he didn't bill for his services, he had never billed for such services, he regarded billing for such services to be unethical, and he knows of no physician who does bill for such services. On June 26, the Texas Supreme Court reversed the Austin court in a unanimous opinion, McIntyre v. Ramirez. It took some fancy footwork to get around the admittedly plain language of the statute, but they got it right. Meanwhile, the 78th Texas Legislature recently amended the Good Samaritan Act. Section 10.01 of H.B. 4, the med mal reform law, completely rewrote chapter 74, retitled it "Medical Liability," and stuck the Good Samaritan Act (renamed "Emergency Care") in subchapter D (§§ 74.151-.154), making it clear that "being legally entitled to receive remuneration for the emergency care rendered shall not determine whether or not the care was administered for or in anticipation of remuneration." This was a lot of effort to fix a law that should have been better in the first place, eh?