Prop 12 wins in a squeaker

Proposition 12 won by a 51-49 percent margin on Saturday. [See Times article here] Before the election, both sides claimed the Apocalypse was around the corner if they lost. After the election, incredibly (or predictably?) both sides declared victory.

Patients in Florida Lining Up for All That Medicare Covers

The New York Times' Gina Kolata had a great piece (link is to Tampa Tribune's on-line version; the Times link has expired) in Saturday's paper about the Medicare culture in Florida. Here's an excerpt:

Doctor visits have become a social activity in this place of palm trees and gated retirement communities. Many patients have 8, 10 or 12 specialists and visit one or more of them most days of the week. They bring their spouses and plan their days around their appointments, going out to eat or shopping while they are in the area. They know what they want; they choose specialists for every body part. And every visit, every procedure is covered by Medicare, the federal health insurance program for the elderly.


Boca Raton, researchers agree, is a case study of what happens when people are given free rein to have all the medical care they could imagine. It is also a cautionary tale, they say timely as Medicare's fate is debated in Congress for it demonstrates that what the program covers and does not cover, and how much or how little it pays, determines what goes on in a doctor's office and why it is so hard to control costs.

South Florida has all the ingredients for lavish use of medical services, health care researchers say, with its large population of affluent, educated older people and the doctors to accommodate them. As a result, Dr. Elliott Fisher, a health services researcher at Dartmouth Medical School, said, patients have more office visits, see more specialists and have more diagnostic tests than almost anywhere else in the country. Medicare spends more per person in South Florida than almost anywhere else twice as much as in Minneapolis, for example.


But there is no apparent medical benefit, Dr. Fisher said, adding, "In our research, Medicare enrollees in high intensity regions have 2 to 5 percent higher mortality rates than similar patients in the more conservative regions of the country."

Doctors say that Medicare's policies are guiding medical practice, with many making calculated decisions about whom to treat and how to care for them based on what Medicare covers, and how much it pays.

"The bottom line is that the stuff that reimburses well is easier to get done," Dr. Carl Rosenkrantz, a Boca Raton radiologist, said.

"Romer's Law" ("a bed built is a bed filled is a bed billed") predicted that demand for health care services will follow supply in Field of Dreams fashion: If you build it, they will come. This article illustrates the unsurprising corollary: If you pay for it, they will order it.

"Health care pales next to perils of eating kittens"

The only thing more attention-grabbing about an article in Saturday's Toronto Globe & Mail than its headline is its content. Here's a sampling:

Voters say the future of the health-care system is the most important issue facing Ontario. Finally, on the 11th day of the election campaign, the subject was thrust into the spotlight.

Progressive Conservative Leader Ernie Eves and his Liberal counterpart, Dalton McGuinty, yesterday devoted major addresses to the stresses and strains facing Ontario's $28-billion health system. Not that you'll hear much about it. The leaders' noble support of the sanctity of medicare got eclipsed later in the day by the Conservatives' astonishing characterization of Mr. McGuinty as an "evil reptilian kitten-eater from another planet."

And we think our debate over U.S. Medicare is a nasty one . . . .

'Do not resuscitate' instructions often ignored, overlooked

In an article in today's Boston Globe, reporter Alice Dembner relates some surprising stories and statistics about the inefficacy of DNR orders in major hospitals. Here's part of it:

Studies estimate about 20 percent of Americans have some form of "advance directive," including living wills that describe a patient's wishes and health-care proxies that designate another individual to make decisions for the patient. DNRs are written by a doctor, nurse practitioner, or physician's assistant to spell out a dying patient's decision to refuse CPR and mechanical help with breathing. When DNRs are not honored, the problem is that sometimes doctors trained to save lives disagree with the DNR decision.

"There's still a fair number of doctors around who are uncomfortable with patients being DNR," said Dr. David Clive, chairman of the ethics committee at UMass Memorial Medical Center in Worcester. "It may be for personal or religious reasons or it may be their medical opinion that the patient is not sufficiently ill to warrant the DNR order. But it's important to realize that if the patient is competent, they rule the day, not the physician."

Doctors at odds with a patient on a DNR typically try to negotiate a resolution, Clive said. But at UMass, a doctor who decides against following a patient's explicit wishes is required to transfer the patient to another doctor.

More commonly, researchers and advocates said a mistaken resuscitation of a patient happens because of a communication failure.

Many doctors are uncomfortable discussing death and they avoid asking patients what they want. Even if patients and doctors have the conversation and the doctor issues a DNR order, that order isn't automatically shared with a hospital or ambulance service.

Darned good thing the Texas State Board of Medical Examiners requires an hour of ethics instruction each year! Don't you wish your state did, too?

Fewer People on Medicare Are Dropped by H.M.O.'s

Surprising news from the Sept. 9 N.Y. Times: In an article by Robert Pear, it's reported that the "exodus of health maintenance organizations from Medicare, a trend that has alarmed elderly people and members of Congress since 1999, will slow to a trickle next year, the industry said today. . . . Karen M. Ignagni, president of the American Association of Health Plans, the lobby for H.M.O.'s and other private plans, said they would drop 39,000 Medicare beneficiaries next year." Seems the plans are expecting more relief from Congress' parsimonious reimbursement rates in the next year.

Medicare managed care (Medicare+Choice)

Excellent overview of Medicare's managed care program from United Press International: "Medicare+Choice: Failure, success, future."

EMTALA

CMS' final EMTALA rule, mentioned here last week, was published yesterday in the Federal Register.

James Rachels, medical ethicist, dead at 62.

He argued (in 1975, the year before Quinlan was decided) that "passive euthanasia" (i.e., removal of life support to allow for a patient's "natural death") was the moral equivalent of "active euthanasia" (i.e., a lethal injection of a drug with the intention of ending a patient's life). His article, originally published in the New England Journal of Medicine, is undoubtedly one of the most anthologized articles in the history of this field. The clarity of Rachel's thought and expression are a model for us all. What's missing from the obituaries and accolades from colleagues and friends, though, is this: his most famous essary pitches an idea whose time still has not come. Mainstream ethicists, as well as clinicians, judges, and legislators, do not agree that active and passive euthanasia are moral equivalents. Passive euthanasia, under at least some circumstances, is legal everywhere in the United States; active euthanasia is illegal everywhere in the U.S. But his legacy goes beyond one thought-provoking essay, and the impact of his essay goes beyond the realms of statutes and court judgments. For example, at the core of his argument is the insight that whether the conduct is called active or passive euthanasia, and whether the result is called a "natural death" or a "homicide," the removal of life-support from a patient is the cause of that person's death just as surely as a lethal injection would be. And health care professionals, family surrogates, and judges who hide behind the euphemistic notion that "they didn't cause the death, the underlying disease process caused the death," are kidding themselves. I am in favor of removing life-support from competent patients who refuse it and from incompetent patients who either made their wishes sufficiently known or clearly are not benefiting from the treatment. And I am against active euthanasia. But we owe it to the patient, as well as to future patients and to our own ethical understanding of our actions, to have the intestinal fortitude to call a killing a killing -- one justified, the other not. And that was part of James Rachels' legacy, too.

Calif. proposes ban on balance billing for ER services.

According to Modern Healthcare's Daily Dose, "California insurance regulators have filed for an emergency mandate that would prohibit hospitals from directly billing patients for emergency care that won't be fully covered by the patients' health plans. . . . The state Department of Managed Health Care contends that federal laws requiring hospitals to provide basic emergency care to all patients regardless of insurance status, combined with a state law requiring health plans to pay for emergency care regardless of whether they contract with a particular hospital, amount to an 'implied contract' between hospitals and health plans to fully cover patients' emergency-care costs." What are the chances that California, which leads the way in so many cultural trends, including some health-related ones, is establishing a model that will attract other states?

Med mal premiums and access to health care.

The normally sober and responsible GAO, the nonpartisan investigative arm of Congress, issued a report dated August 2003 entitled, "Implications of Rising Premiums on Access to Health Care." Their conclusion:

"Actions taken by health care providers in response to rising malpractice premiums have contributed to localized health care access problems in the five states reviewed [Florida, Nevada, Pennsylvania, Mississippi, and West Virginia] with reported problems. GAO confirmed instances in the five states of reduced access to hospital-based services affecting emergency surgery and newborn deliveries in scattered, often rural, areas where providers identified other long-standing factors that also affect the availability of services. Instances were not identified in the four states [California, Colorado, Minnesota, and Montana] without reported problems. In the five states with reported problems, however, GAO also determined that many of the reported provider actions were not substantiated or did not affect access to health care on a widespread basis. For example, although some physicians reported reducing certain services they consider to be high risk in terms of potential litigation, such as spinal surgeries and mammograms, GAO did not find access to these services widely affected, based on a review of Medicare data and contacts with providers that have reportedly been affected. Continuing to monitor the effect of providers’ responses to rising malpractice premiums on access to care will be essential, given the import and evolving nature of this issue.

"Physicians reportedly practice defensive medicine in certain clinical situations, thereby contributing to health care costs; however, the overall prevalence and costs of such practices have not been reliably measured. Studies designed to measure physicians’ defensive medicine practices examined physician behavior in specific clinical situations, such as treating elderly Medicare patients with certain heart conditions. Given their limited scope, the study results cannot be generalized to estimate the extent and cost of defensive medicine practices across the health care system.

"Limited available data indicate that growth in malpractice premiums and claims payments has been slower in states that enacted tort reform laws that include certain caps on noneconomic damages. For example, between 2001 and 2002, average premiums for three physician specialties—general surgery, internal medicine, and obstetrics/gynecology—grew by about 10 percent in states with caps on noneconomic damages of $250,000, compared to about 29 percent in states with limited reforms. GAO could not determine the extent to which differences in premiums and claims payments across states were caused by tort reform laws or other factors that influence such differences.

"In commenting on a draft of this report, three independent reviewers with expertise on malpractice-related issues generally concurred with the report findings, while the American Medical Association (AMA) commented that the scope of work was not sufficient to support the finding that rising malpractice premiums have not contributed to widespread health care access problems. While GAO disagrees with AMA’s point of view, the report was revised to better clarify the methods and scope of work for this issue."

The beat goes on . . . .

Proposition 12: Does Texas need a constitutional amendment to limit noneconomic damages?

Prompted by a friend and former student/research assistant, I venture a couple of opinions about the current vote on Proposition 12, which would amend the Texas constitution to authorize the Lege to limit the ability of courts to order judgments based upon large noneconomic damages (such as pain and suffering).

1. As has been reported widely, including last Sunday in the Fort Worth Startlegram, doctors are lobbying patients with posters in their offices, brochures at the sign-in desk, inserts in the mailed bills to their homes, and jawboning during office visits. As the AMA Ethics Code rightly points out (AMA Opinion 9.012), doctors don't lose their first amendment rights when they become licensed. But they have to do so "with the utmost sensitivity to patients' vulnerability and desire for privacy." A careful and discreet physician would at least heed the warning of the Connecticut State Medical Society: "Political conversations are a fundamental part of political freedom. They must be, however, undertaken with great care in order that they do not interfere with the physician-patient relationship, exploit the medical authority of the physician or impose upon vulnerable patients or family members. Physicians should use common sense in deciding on the time and place for the exercise of their political rights." Different people will draw the line in different places, but I favor a more restrictive approach within the existing rule that would avoid political proselytizing within the office (unless the subject is raised by the patient, signalling her comfort level with the discussion), and I'd even extend that to inserts that accompany the bill. For a defense of such an approach, check out the comments of medical ethicist and religious studies professor M. Therese Lysaught.

2. On the merits, Prop. 12 seems both reckless and unnecessary. Unnecessary because HB 4 already limits noneconomic damages in med mal cases, adding Texas to the minority of states to have done so. A recent report from the federal Government Accounting Office (mentioned in this blawg on August 3) has given us plenty of reason to believe that this law won't solve or even particularly address the insurance crisis in Texas, but no one is seriously questioning the constitutionality of HB 4. Doctors who say a vote for Prop. 12 is a vote for your physician are being just a little disingenuous. They got their fix from the 78th Legislature. This isn't about them any more, other than to provide a constitutional "fix" for the inevitable (but, I predict, unsuccessful) constitutional challenge that will be mounted against HB 4. The constitutional arguments are not strong ones, and they've mostly been rehearsed in the courts the last time the Legislature enacted tort reform for health care claims. Reckless because it opens the door to wholesale legislative revision of the tort system and the checks and balances that have worked for a very long time in this state to keep all kinds of businesses and merchants in line. As between the two major groups waging war over this -- Save Texas Courts vs. Yes on 12 -- STC (consisting of a coalition headed by former Supreme Court Justices Deborah Hankinson and James Baker -- neither one known to be partial to the plaintiffs' bar or law-reform groups like the ACLU) seems to have the better arguments, which to one degree or another have been endorsed by every major newspaper editorial board in the state, as well as Texas AARP, MADD, and the ACLU.

Final EMTALA rule due in next Tuesday's Federal Register.

The NY Times reports in a Sept. 3 article that the final EMTALA rule will be published in next Tuesday's Federal Register. Correspondent Robert Pear says the rules lighten the burden on hospitals and physicians. DHHS' fact sheet is here, and the text of the final rule is here.

Rationing Medicare.

Theresa Agovino writes in an Associated Press article that Medicare is prepared to approve a price of $55,000 for an implantable left ventricular assist device (LVAD) that costs hospitals $150-200,000. Most hospitals will be reluctant to cover the shortfall from other operating revenues. But if Medicare paid full price for the device and if there were enough devices to meet the demand, the price tag could top $15-20 billion a year. All this for a device that gives the average patient an average of 8.5 months of life after it is implanted and a 23% chance of surviving 2 years (compared to an 8% chance for those treated medically). All of this foretells a looming problem:

HeartMate's evolution illustrates the nexus of a health care system beset by an aging population, rising costs and limited resources and the longing for lifesaving technology often made by companies seeking to maximize profits. The conflict is expected to become more heated as more expensive technologies and procedures are developed, and at least in their infancy are not overwhelmingly effective. It will be especially difficult for Medicare, facing the baby boomer retirement wave and already searching for a way to finance a prescription drug benefit.

"Technology is being created faster than our ability to put in any kind of a financial, ethical and moral framework," said Dr. Allen Korn, chief medical officer of the Blue Cross and Blue Shield Association, which issued a report saying the device qualified for reimbursement.

"Nobody wants to hear they are going to die. But somewhere there needs to be a bottom line," Korn said.

Adds Art Caplan, chairman of the department of medical ethics at the University of Pennsylvania's medical school, "We are headed for a big political debate about rationing health care - a debate no one wants to have."

Welcome to the tip of the rationing iceberg . . . .

Molly Ivins, amended and expurgated.

If you get your Molly Ivins fix by visiting the Startlegram's website, as I do, you might want to rethink that strategy. They edit out the stuff they don't like, without so much as a howdy-do. Consider her August 26th column, about the impact of real politics on real people and the nice thought that if Arnold wants a life in elective politics, maybe he could learn something about it by running for school board first. Pretty good column, with a good dig at the Texas state legislature for kissing away millions and millions in federal funds for children's health care because they (the Lege) didn't want to come up with the 20% copay (noted in this space the other day). You can read it here.

If you check it out, you will see that it is lacking the original first paragraph, which you can find on the Molly site at Creators Syndicate's web page where the 1st para. is included in all its glory:

"One problem I have with Arnold Schwarzenegger is that he looks like a condom stuffed with walnuts. I realize that is superficial, shallow and unbecoming to a semi-serious-minded liberal like myself, but there it is. The other is that he doesn't know what he's talking about when it comes to public policy."

It's the best part of the whole danged column and those morons in Ft. Worth cut it. Guess they didn't want their readers seeing the word "condom" whilst savoring the morning's first cuppa joe. At least the Dallas Morning News is honest enough to not carry her column at all.

By the way, her Labor Day column is a humdinger. Go Molly!

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.