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.