Volume 57, No. 8 August 2001

A BILL OF GOODS

The "Patients' Bill of Rights" (PBOR) passed by the U.S. Senate has been called the "Lawyers' Right to Bill," a symptom of the codependency of the Democratic Party and the Association of Trial Lawyers of America. Most of the discussion has focused on who could be sued and for how much (see p. S1). By no means the most important question, it is still one to be taken seriously, even if-ATLA take note-the feeding frenzy could be short-lived.

Proponents, such as Senator Bob Graham (D-FL) say that it would "put those life-and-death decisions back into the hands of doctors and patients" and make HMOs liable for their actions. Like Senator McCain, persons who believe this haven't read the bill. Nor are they aware that, thanks to a U.S. Supreme Court decision, HMOs can already be sued in state court for malpractice. Such suits are a growth industry (Greg Scandlen, NY Post 6/16/01).

The PBOR's actual effect could be to change the standard for insurers' liability from a contractual basis to a one-size-fits- all tort principle, as James Blumenstein of Vanderbilt Law School points out (Wall St J 6/22/01). This would turn every benefits determination into a potential medical malpractice case. What the nation rejected in 1994-a uniform and mandatory package of benefits ("rights")-could enter through the back door of litigation.

The key problem is that managed-care contracts promise to provide "total health care benefits" or whatever is "medically necessary"-which courts have held to mean all treatments that are safe and effective, unless they are "experimental"-while actually applying a cost-effectiveness standard. It is because consumers have been misled by HMO advertising that so many are upset with the "crossbreed" [provider/insurer] product, states Thomas Schmidt of Prime Health Care.

A free-market solution would be a return to indemnity contracts, which spell out the precise benefits as negotiated between insurer and insured, putting customers in control of their own dollars. The PBOR solution is a "rearranged set of third-party decisionmakers hoping to spend other people's money while telling them what is good for them," as described by Tom Miller of the Cato Institute. Independent external reviewers will not be bound by the terms defined in the insurance contract. And while there may be physicians involved, they will not be the patient's attending physician.

Most of the PBOR in fact is a definition of hoops and loopholes. Maybe a patient-or more likely his heirs-will get into a courtroom and possibly win the jackpot there. Or maybe the patient will stumble, or the plan will evade liability while following the "process."

The rules themselves are likely to be a full-employment program for lawyers, interpreting all the clauses starting with "if," "except," "provided that," or "unless." Most importantly, the rules apply to all insurance plans, not just those presumably targeted by the legislation. Thus, the best name for the PBOR is probably the one proposed by David Limbaugh: the "patients' bill of regulations" (WorldNetDaily 7/6/01).

Limbaugh asks: "When the main problem with the system is the elimination of competition, does it make sense to attempt to remedy the situation with further restrictions on the market?" As Washington, D.C., attorney John Hoff points out, the bill's "mind-numbing number of legal requirements that are stated in ambiguous terms" could prevent fee-for-service plans from being able to operate.

"Talk about bait and switch," writes Tom Miller, "[the PBOR] makes HMOs look like small-time con artists."

The full ramifications of the PBOR are not known. As Greg Scandlen writes, "It's beginning to feel like HIPAA all over again." Congressmen don't have "the slightest concern about the consequences-intended or not-of their actions."

Clearly, costs will increase, both from regulatory compliance and new federal mandates. Therefore, people will lose insurance-even if employers don't feel threatened by greater legal liability. Will people say of PBOR what Gerry Smedinghoff said of Stark legislation: "Don't bother slogging through it. Like a war novel, everyone gets killed in the end"?

The PBOR might hasten the death of HMOs-already collapsing under their own weight-but at the price of "a deal with the devil that will haunt us on all our attempts to correct the system," states Greg Scandlen.

As Marianne Jennings of Arizona State University writes: "The right-to-sue in the pending [PBOR] is a stick to beat payers into universal coverage." She favors a free-market system, observing that "if you can go elsewhere, you don't need a bill of rights." And if you can't: "No lawyer can change those mortality rates in the universal access systems of our socialist friends who began with rights for everyone and ended with a system that never denies care but that imposes a death sentence with the wait to get it" (Jewish World Review 6/6/01).

If we don't like HMOs' rationing schemes, will the government's be better? In Medicare, the denial of claims for medical necessity exceeds that in the private sector (Wall St J 6/27/01). Medicare patients cannot sue now, and a federal judge in Michigan recently ruled that poor people may not sue state officials to force them to provide benefits guaranteed under federal Medicaid law (Robert Pear, NY Times 5/13/01).

Many conservative analysts agree with Marcia Angell, M.D., former editor of the New England Journal of Medicine , on this point: "Our experiment with private managed care has failed. The system is imploding, ... and [a PBOR] will accelerate its demise. High time" (NY Times 6/23/01).

Her answer: single payer. Is its achievement the real motive behind the Kennedy Bill of Wrongs?

MSA Advocate Bret Schundler Wins NJ Primary

About three months ago, pundits were saying that it would take a miracle for Bret Schundler to win the Republican gubernatorial primary in New Jersey. Miracles happen.

Eight years ago, the Wall Street Journal published an editorial entitled "Earthquake Hits Jersey City," when Schundler became the first Republican mayor in 75 years. The population is 67% minorities and only 6% Republican. Now, he has "crushed the GOP machine" to win statewide victory.

Schundler won the active support of many AAPS members, promising to bring Medical Savings Accounts to state employees, as he has done in Jersey City. Alieta Eck, M.D., writes that "Schundler is the only Republican willing to buck the moneyed special interests to work in the best interests of the taxpayers." Louis Keeler, M.D., former President of the Medical Society of New Jersey, notes that Schundler "led a remarkable turnaround in Jersey City, reducing crime, attracting new businesses, and reducing the tax burden." AAPS Past President Lois Copeland, M.D., reminds physicians that Schundler's Democrat opponent, Jim McGreevey, led the legislative battle for mandatory Medicare assignment and kept dissenting physicians from speaking at a town hall meeting.

The New Jersey race this fall will be of national interest.

Insurance in New Jersey

In 1992, New Jersey law made it illegal for insurers to earn a profit. Guaranteed issue and community rating make it impossible as well. Deductibles above $4,500 are illegal. The premiums for an individual policy through Trustmark are $12,000 per month. The revenue for such policies: $0. This absurd price guarantees no takers but permits Trustmark to claim that it does offer individual policies, which are required as a condition of offering group policies. This "legal placeholder" would permit it to take advantage of a change in regulatory policy without waiting 5 years to reenter the State.

Some families in New Jersey, including Dr. Eck's since 1997, are making use of noncontractual faith-based plans such as the Christian Brotherhood Newsletter (CBN) to share large expenses. A big problem is that self-pay patients are greatly overcharged. Many CBN members pay $40 per month to enroll in Care Entree, a patient advocacy group that negotiates prices with participating doctors, hospitals, pharmacies, and other facilities (see www.careentree.com). A savings of 20% to 80% can be achieved if bills are paid in full within 30 days.

Request from Researcher on the War on Doctors

Ronald T. Libby, Ph.D., Professor of Political Science at North Florida University, is seeking 200-300 physicians whose constitutional rights have been violated by government agents. He promises confidentiality. Address: Dept. Political Science, Univ. of North Florida, 4567 St. Johns Bluff Rd S, Jacksonville, FL 32- 224, tel. (904) 620-2977 or 270-0940, [email protected] or [email protected]. Homepage: www.unf.edu/~rlibby.

Cost of Government Day: July 6

Americans for Tax Reform announced that the average American works 187 days to pay his share of the cost of government: 87 days to pay federal taxes, 41 days to pay all state and local taxes, and 58 days to pay for regulations.

Nominating and Resolutions Committee Reports

The following slate will be presented at the annual meeting:

President: Dr. Robert Urban of Belle Vernon, PA
President-Elect: Dr. Chester Danehower of Peoria, IL
Secretary: Dr. Charles McDowell of Alpharetta, GA
Treasurer: Dr. R. Lowell Campbell of Corsicana, TX

Directors: Drs. Samia Borchers of Dayton, OH; Claud Boyd of Augusta, GA; John Boyles, Jr., of Centerville, OH; Melissa Kline Clements of Oklahoma City, OK; Albert Fisher of Oshkosh, WI; David MacDonald of Renton, WA; and Hilton Terrell of Florence, SC.

Resolutions are due by Sept. 25. (Call 800-635-1196.)

HCFA Name Change Contest

Additional entries have come to our attention: Dr. Lawrence Huntoon submitted BAD, for Bureaucratic Abuse and Disruption. "This is not a marketing problem or a perception problem. HCFA got its BAD reputation the old-fashioned way: it earned it." The staff of Sen. Pete Domenici (R-NM) suggested HADES, for Health and Death Evaluation Services. Thompson's suggestion, MAMA, was rejected because women felt insulted, and it reinforced the agency's paternalistic (maternalistic?) image. The winner: CMS, for Center for Medicare and Medicaid Services, pronounced "Commies" or "C-MESS." The cost in reprinting HCFA stationery and publications will run into the millions.

Secretary Thompson has received the prestigious Porker of the Month Award from Citizens Against Government Waste for "his superficial and wasteful attempt to perform cosmetic surgery on an agency with a well-earned bad image, instead of enacting fundamental reform."

AAPS Calendar

July 31. Making a Federal Case out of Health Care: Five Years of HIPAA. Rep. Dick Armey, Mark Pauley, Conrad Meier, John Hoff, Richard Epstein, Madeleine Cosman, Grace-Marie Turner, Greg Scandlen, and others. Cato Institute, $175, see www.cato.org/events/hipaa .

Oct. 24-27. 58th annual meeting, Cincinnati, OH. **See enclosed by Glen Crick, who has a return engagement.**

Nov. 17. AAPS, PA chapter, and SEPP. Healthcare Summit 2001, featuring Medical Savings Accounts, Pittsburgh, PA, call (724) 929-5711 or see www.sepp.net.

Sept. 18-21, 2002. 59th annual meeting, Tucson, AZ.

  

"Loyalty to petrified opinion never yet broke a chain or freed a human soul." Mark Twain

HIPAA Guidance Issued

The "First Guidance on Patient Privacy Protections" issued by HHS can be downloaded from www.hhs.gov/ocr/hipaa

. This 50-page documents promises future changes in some of the most absurd features of the rule to "correct any unintended negative effects" on quality or access to care.

If and when the changes make it through the bureaucratic rulemaking process-one hopes before the enforcement date of April 14, 2003-the federal government will allow pharmacists to fill phoned-in prescriptions before obtaining the patient's written consent, and "direct treatment providers" to schedule appointments. Also, "a change will increase covered entities' confidence that certain common practices [such as using sign-up sheets, displaying X-rays on lightboards, keeping medical charts at the bedside, and disposing of used prescription vials without shredding] are not prohibited under the rule."

Note: "A pharmacist may provide advice about over-the- counter medicines without obtaining the customers' prior consent, provided that the pharmacist does not create or keep a record of any PHI [protected health information]." [Physicians, however, had better continue documenting all their advice.]

HHS apparently does not intend to change the requirement that, with certain exceptions, physicians who directly treat patients obtain documented consent in federally approved format before using any PHI to help a patient. (See the transcript of Donna Boswell's talk at the spring meeting, under "privacy".) The consent requirement does not apply to health plans or clearinghouses. The Healthcare Leadership Council continues to urge HHS to discard the prior consent-for-use requirement as unworkable.

If you are concerned that the Privacy Rule violates the Fourth Amendment, relax. "The only new authority for government involves enforcement of the Privacy Rule itself."

Be reassured that medical facilities need not be retrofitted to become suitable for espionage headquarters: no need for soundproof walls or encryption of wireless communications or telephone systems. "Reasonable" safeguards (to be defined by the Office of Civil Rights, retroactively) are all that is necessary. Cubicles, shields, or similar barriers "may" suffice.

For enforcement, the OCR has a $3.2 million budget allocation this year and is hiring new agents.

Privacy Act Violations

As the HHS Guidance states, "All federal agencies must also meet the requirements of the Privacy Act of 1974, which restricts what information about individual citizens-including any personal health information-can be shared with other agencies and with the public." So who should worry?

In fact, government is the biggest privacy offender, according to House Majority Leader Dick Armey in a June 27 speech.

Plaintiffs who have been mired in court proceedings for years attempting to obtain redress under the Privacy Act include Linda Tripp (see www.lindatripp.com) and Judicial Watch. In 1998, a deposition of Terry W. Good, Director of the Office of Records Management, provided evidence of a wholesale disregard for the Privacy Act by the Clinton White House. More than a year ago, Judge Royce Lamberth ruled that Clinton's release of the Willey files was a criminal violation of the Privacy Act.

The wheels of justice grind slowly.

Pain Management and the Law

The physician seeing a patient with pain must navigate a treacherous strait between Scylla (tort law, elder abuse law, and JCAHO) and Charybdis (criminal law and the War on Drugs).

In 1990, a North Carolina jury awarded $15 million in damages against a nursing home where a nurse failed to administer prescribed pain medications to a terminally ill patient. In 1997, a South Carolina judge awarded $200,000 for undertreatment of a cancer patient's pain. In June, 2001, a Northern California jury awarded $1.5 million to the survivors of an 85-year-old cancer patient. This landmark ruling invoked the elder abuse law; under California law, a family cannot collect damages for pain and suffering once a patient has died.

The physician claimed that he feared adverse drug reactions because the patient had chronic lung disease, and at least one expert witness felt his treatment was appropriate.

Evidence against the doctor included nurses' notes stating that the patient rated his pain as a "10" on a 1-to-10 scale. This is the scale now posted in hospitals at the behest of JCAHO, often with the smiling-face chart supplied by Purdue Pharm- aceutical Company. Patients now have a "right" to pain management, and pain has become the "fifth vital sign."

According to AAPS member Councill Rudolph, M.D., a general surgeon in Winchester, TN, the JCAHO standards might be suitable for a pain clinic. They are ludicrous for a hospital, or especially an emergency room, which treats drug addicts and patients whose pain is an indispensable sign of a treatable disease that is being assessed (such as appendicitis).

Dr. Rudolpf is trying to find the source of the JCAHO standards. The AMA did not return his calls. Many organizations (including the American College of Surgeons, the American Society of Addiction Medicine, and the American Academy of Pain Medicine) were not asked. The American Society of Anesthesiologists and the American Academy of Family Physicians recommended against the standard.

On the other hand, physicians still face delicensure or imprisonment for alleged overprescribing. Robert Weitzel, M.D., of Utah has been arraigned on two counts of manslaughter and three of negligent homicide, despite amicus statements from AAPS and others. He had prescribed morphine to severely demented elderly patients, who had refused aggressive medical treatment and developed medical complications in the geropsychiatric unit. (See www.weitzelcharts.com, AAPS News May 2001, and "prosecutions" at www.aapsonline.org.) The prosecutor dropped his effort to retry Dr. Weitzel for first-degree murder, of which he had already been acquitted-at the last moment, after Dr. Weitzel had already expended $15,000 preparing for a hearing on the double- jeopardy issue.

The prosecutor is being investigated by the Bar for unethical conduct because of withholding key exculpatory testimony. He could be severely sanctioned for continuing an unwarranted persecution. He can't afford to lose.

The AMA and the Utah Medical Association "recognize the state's legitimate interest in regulating the practice of medicine,... even by the criminal courts," wrote UMA president Val Johnson, M.D., ("Utah Physicians Not Chilled," Salt Lake Tribune 6/24/01). Mark Fotheringham of the UMA said that if Dr. Weitzel's case caused physicians to look more carefully at their practices, the benefit of the case to patients outweighs any physician concerns (Salt Lake Tribune 6/11/01). Utah-licensed physicians responding to an AAPS poll disagree with this viewpoint by a ratio of more than 2:1.

Correspondence

If They Have a Choice.... One summer when I was in college I worked as a helper on a Pepsi delivery truck. On a hot day, we stopped for a cold drink, and I said, "I'll take a coke,"-to me, a generic term for cola. The Pepsi driver got a little miffed and said he'd only buy me a Pepsi product.

Recently, I got a call to the ER late at night when I wasn't on call. The patient had specifically requested me, although I am the only neurologist in town who does not participate in any form of managed care. I learned that not only is he a managed-care "beneficiary," but he actually works for one of the largest managed-care companies in our area. The Pepsi man just ordered a Coke!
Lawrence R. Huntoon, M.D., Ph.D.

The Government Has Had Its Chance. To the editor of Orthopedics Today, who said that "perhaps national health insurance is the only way": Anyone who advocates federal control of medicine should look at the job the government has have done with the VA hospital system.... It has had 190 years to work on the program.... Up to 95% of eligible veterans seek medical care elsewhere. The country should demand that the system be perfected using politicians, and not the American people, as guinea pigs.
David Hubler, M.D., Duncanville, TX

Pain Relief in Utah. Hammurabi's law, an eye for an eye and a tooth for a tooth, also required a physician to forfeit his life if his patient died. Most people know that there would be no modern medicine if we still functioned under that law.

Dr. Weitzel's trial has already begun to have a chilling effect in Utah. When faced with the threat of a criminal trial, which may depend only on a spurious complaint from a disgruntled employee, even the conscientious physician may decide, insensibly, to withhold prescribing pain relief in an adequate dosage. In Dr. Weitzel's case, accusations were placed before a jury even though exonerating evidence had been discovered, and even then this evidence was withheld from the jury....Quite quickly we could find ourselves again operating under the law of Hammurabi.
Wallace H. Ring, M.D., Salt Lake City, UT

Please Help with Mandates in Virginia. Virginia just added a mandate for hepatitis B vaccine for sixth graders; it was previously required for infants and first graders. Our state legislature gave the Dept. of Public Health extensive powers to amend vaccination recommendations without any oversight. I sent a letter to two newspapers and two legislators without results. The Division of Immunization told me to read the information (propaganda and lies) on the CDC's web site! This was doubly stupid because I had cited the CDC's misleading information in my letter to them.

I am willing to supply nearly any child an exemption to hepatitis B vaccination, but I cannot reach the public if the media and legislators refuse to publish or discuss my letters. Therefore, I am appealing to your organization for help. If Virginia-based members would all write to their legislators and newspapers, perhaps someone would take notice. I am appalled at the widespread physician complicity on this matter. The medical dictum of "first, do no harm" is being ignored when it comes to hepatitis B vaccinations of children at minimal risk for the disease.
Name removed by request.

[The full letter is under "State Issues" on our web site.]

Relief. Well, I went ahead and did it [Medicare opt-out affidavit enclosed]. Boy, do I feel relieved-as though a burden/ guilt/conflict has been resolved.
Robert F. Merchant, Jr., M.D., Reno, NV

Doctors for Lawsuits? When I read McCain's assertion that he had the support of doctors for his "Patient's Bill of Rights," I thought, "hmm, doctors support liberalized lawsuit capabilities against themselves? Beam me up, Scotty,...."
Greg Scandlen, National Center for Policy Analysis

White Knight to the Rescue. Remember, the Clinton health plan was built around managed care-which just goes to highlight the fact that HMOs were created and protected by the very government that wants us to hit them over the head when they do what they are designed to do. Employer-based health insurance is the culprit, and there are very strong forces that want to keep us laboring under those less-than-ideal situations. Typical government: create a monster, then play the hero by slaying it for all to see.
Alieta Eck, M.D., Somerset, NJ

It's Not About the Right to Sue. Whether or not people have the right to sue an HMO is a diversion. The very existence of this debate continues to brainwash people to believe that health insurance equals medical care. The two are not the same. HMOs do not deny treatment; they deny coverage. The treatment (still) is available to anyone who wants to pay for it [except Medicare beneficiaries--ed.]. The more we allow ourselves to be drawn into the debate about who bears the burden of proof when an HMO denies coverage, the less we are able to convince people to take charge of their own medical care. Anecdotes rarely make good law.
Richard Relph, HealthBenefitsReform listserv

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