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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto

Volume 64, No. 6 June 2008


At a hospital staff meeting, a family physician asked a pediatrician whether he could apply for a job as a nurse practitioner in the pediatrician's office. The RNPs in that office do most of the work. The family doctor was not joking.

A prominent roadside sign at a CVS pharmacy reads, "You're sick; we're quick." This is one of 900 retail medical clinics in the U.S.; there will probably be 1,500 by year's end.

But as clinics staffed by nurse practitioners expand, those staffed by physicians are closing. Medical Marts reported that venture capitalists backing the company "decided to go another direction with their funding" (Chicago Tribune 3/13/08).

Now, more than 200 nursing schools are starting or readying programs to offer a degree of D.N.P., doctor of nursing practice (Wall St J 4/2/08).

Who Needs a Doctor?

More prospective medical students, and even fully qualified physicians are asking, "Why be a doctor?" (see AAPS News, August 2004). Payment is by the code, not by the qualifications, and top salaries for advanced practice nurses, $100,00 or more, are approaching those of physicians. Up-front investment, indebtedness, overhead, and liabilities are much greater for physicians, and scope of practice is narrowing, owing to licensure boards as well as professional liability concerns.

Although it is said that the U.S. has a serious shortage of primary-care physicians, not everyone agrees. "There are now more physicians per capita in the United States than there have been for at least 50 years," write David C. Goodman, M.D., and Elliott S. Fisher, M.D., M.P.H., of Dartmouth, without commenting on how many are in full-time practice. Regional supply of physicians varies by more than 50%, and "patient outcomes are not better in regions with a very large supply of physicians." This, they say, "contradicts the notion that health care systems have inflexible physician requirements." In fact, "increasing the number of physicians will make our health care system worse, not better." Rather than expanding physician training, we should invest in preventive care, disease management, and broader insurance coverage, they write (N Engl J Med 2008;358:1658-1661).

Doctor Nurse will probably fit well into the "systemness" domain (see AAPS News, May 2008). Candidates "are being trained to have more focus than doctors on coordinating care among specialists and health-care settings," explained Mary Mundinger (Wall St J, op. cit.), Dean of Columbia University School of Nursing and a director of Gentiva Health Systems and of UnitedHealth Group. One commenter on the Wall St J Health Blog called them "gatekeeper pan- consulters."

They might well satisfy the American Academy of Family Physician's (AAFP) desired attributes for retail clinics: "evidence [protocol]-based" and "quality-improvement-oriented" services; a "team-based approach," and electronic health records (American Family Physician, May 2006).

Staving Off System-wide Disaster

These attributes are like those that HHS Secretary/ Medicare trustee Michael Leavitt says are required in re-designing a Medicare system that will be "solvent through the 21st century." In an April 29 talk, he recognized that the trickle of Medicare liabilities is becoming a "class 5 rapids." We're headed for intergenerational warfare, and the U.S. economy could experience the same fate as Argentina's. The fix? "Value of care would replace quantity of care as Medicare's best-rewarded virtue." This requires an "infrastructure of quality metrics," tracking patients with chronic conditions, "strong doses of information transparency," better coordination among providers and "behavioral changes."

Doctor Nurse, even without a D.N.P., will help to enforce such changes as by squelching disruptive physician behavior. In a recent poll, "96%!" of nurse respondents said they had witnessed or experienced disruptive behavior by a physician. Nurses, show other surveys, are the primary victims. Offenses include "sarcastic, cynical, or demeaning remarks"; "disregarding policies"; "blaming others for adverse outcomes"; or "routinely making rounds at odd hours." Nurses are urged to report all incidents, even if they resulted from the stress of the moment and the doctor apologized. Reporting "benefits every-one" and "helps doctors change" (Am Nurse Today, May 2008).

The War against Medicine

Physicians are under assault from many sides. Economically, the supposedly valuable primary-care physicians are being squeezed out: they are not permitted to charge enough for complex services, and can no longer subsidize them with fees from simpler services taken over by "physician extenders." In hospitals, notes Lawrence Huntoon, M.D., Ph.D., doctors are being beaten into subservience and total submission by the unholy alliance of hospital associations, hospital bar, and nursing associations, acting through the new "disruptive physician" and "code of conduct" requirements of the Joint Commission on Accreditation of Health Care Organizations (JCAHO). Then there are the HHS anti- "fraud" programs.

As Prof. Ron Libby, Ph.D., points out in his book The Criminalization of Medicine: America's War on Doctors, "The government has made medical doctors scapegoats for the financial crisis of health care in this country.... Physicians' role as sacrificial lambs follows a long history of political scapegoats in the United States." It started with the Salem witch trials.

Physicians dare not assume they will always be needed. Even if they are, does the government care? Or does it prefer Dr. Nurse less skilled, less costly, and less "disruptive"?

Drifting to Disaster

HHS Secretary Michael Leavitt observes that when he was born, medical expenditures represented 4% of the U.S. economy. When his son was born, the fraction had grown to 8%, and when his first grandson was born, to 16%.

In 1965, the U.S. decided that the cost of seniors' medical care would be borne by the younger workers. The demographic assumption that there would always be a larger fresh crop of workers was mistaken. "Most of you have done the math yourself and know [that]...sooner or later, this formula implodes." When the Medicare Hospital Insurance Trust Fund becomes insolvent, projected to occur in 2019, "there is no backup plan...to ensure that hospitals continue to be paid."

Leavitt notes that at the beginning of the 20th century, Argentina was even wealthier than the U.S. Over 50 years, it expanded its social benefits, using borrowed funds. By the 1990s, its mortgage outstripped its ability to pay. Creditors said, "No more, unless you fix your entitlements." It was too late. "Argentines had put off hard choices for so long they were forced to make change too quickly, and they simply didn't have the political strength to do it."

Read Leavitt's speech at: www.hhs.gov/news/speech/2008/sp20080429a.html.


The Evidence on Disease Management

Can Medicare be saved by EBM, EMRs, "prevention," and chronic disease tracking? The short answer, writes Greg Scandlen, is "no" (Consumer Power Report 4/29/08).

In a 3-year, $360 million experiment, nurses have been calling patients with chronic diseases periodically to see whether they are taking their medicine and seeing the right doctors. So far, the Medicare Health Support program has failed to save enough money even to offset its cost about $2,000 per patient per year (NY Times 4/7/08).


IT and Dumbing Down

Commenting on the "irrational exuberance" over health information technology (IT), bloggers on hcrenewal.blogspot.com, posting on 4/27/08, quote Pamela Hartzband, M.D., and Jerome Groopman, M.D. (N Engl J Med 2008;358:1656-1658): IT facilitates "clinical plagiarism," with clinicians cutting and pasting verbatim from other doctors' notes. The electronic medical record (EMR) becomes "a powerful vehicle for perpet-uating erroneous information, leading to diagnostic errors that gain momentum when passed on electronically." One doctor has resorted to writing key information on index cards, which he refers to on bedside rounds.

A first-year medical student comments that using the EMR takes much longer than a hand-written note. Yet, writes a physician blogger, the use of an EMR further dilutes the quality of clinical training.


Most ERs Lack On-call Specialists

Of the 1,328 emergency departments responding to a 2005 survey, 73% said they had inadequate coverage by specialists, including neurosurgeons, orthopedists, and obstetricians. "Something people don't understand is that even if you have insurance, if I don't have an on-call...surgeon, I can't help you," said ER physician Linda Lawrence, M.D. (Wash Post 12/21/07).


Creative Arithmetic

The numbers aren't quite lies. It's just that the U.S. government changes the way the measures are computed to get more desirable outcomes. When the core inflation rate started to sound alarm bells, food and energy were removed from the equation. Housing prices, removed when they started to soar, may be put back in now that they are declining. When the unemployment rate started to rise, the number crunchers stopped counting returning veterans and people whose unemployment benefits had run out. If the price of a product goes up 15%, but some valuable feature has been added, the number stretchers could decide that the product is actually cheaper. The money supply (M3) which Federal Reserve Chairman Ben Bernanke stopped reporting 2 years ago, is increasing by 17.4% each year; it was 16.4% in 1971, whereupon Richard Nixon closed the gold window.

Each month, John Williams reviews the footnotes and fine print accompanying official numbers and publishes his results at www.shadowstats.com.

With food costs up 20% since January, and interest rates running less than inflation, it makes sense to stock the pantry rather than saving (Jim Powell's Global Changes and Opportunities Report, May 2008).


International Health Rankings

The World Health Report 2000, frequently cited to show that U.S. medicine ranks 37th in the world, depends on assumptions, which may be logically incoherent, characterized by substantial uncertainty, or rooted in ideological beliefs (for example, that the rich should pay more for medical care). For an analysis of the rankings, see "WHO's Fooling Whom?" by Glen Whitman, Cato Briefing Paper No. 101, Feb 28, 2008.

For a summary of a dozen other medical systems, see "The Grass Is Not Always Greener" by Michael Tanner, Cato Policy Analysis No. 613, Mar 18, 2008 (www.cato.org). He notes that if one corrects for homicides and accidents, the U.S. rises to the top in life expectancy. In outcomes for specific diseases, such as cancer, pneumonia, or heart disease, the U.S. outperforms the rest of the world. Costs are rising almost everywhere, causing budget deficits, tax increases, and benefit reductions. Promises of universal coverage mean rationed care and long waits for treatment. The most effective national health systems incorporate market mechanisms such as competition, cost sharing, market prices, and consumer choice, and eschew central government control. Almost all have a way out of government restrictions: French patients, for example, can contract privately to avoid the "coordinated care pathway."


AAPS Calendar

May 30-31, 2008. Seminar, Board of Directors, Dayton, OH.
Sep 9-13, 2008. 65th annual meeting, Phoenix, AZ.
Sep 30-Oct 3, 2009. 66th annual meeting, Nashville, TN.

Antitrust Investigation Shows Guidelines Flawed

On May 1, Connecticut Attorney General Richard Blumenthal announced that his antitrust investigation has uncovered serious flaws in the Infectious Diseases Society of America's (IDSA) process for writing Lyme disease guidelines.

Although IDSA called the guidelines "voluntary," they are used by UnitedHealth Care, Health Net, Blue Cross of California, Kaiser Foundation Health Plan, and other insurers to deny payment for long-term antibiotic treatment. They strongly influence physicians' treatment decisions and are frequently cited to justify conclusions that chronic Lyme disease does not exist.

Blumenthal found that IDSA failed to conduct a conflicts-of- interest review and that influential panelists had a conflict. Failure to follow its own procedures enabled the chairman to appoint a hand-picked panel, without scrutiny. The Lyme panel refused to consider dissenting opinions, and once even removed a member in order to achieve "consensus." IDSA tried to portray the guidelines promulgated by the American Academy of Neurology (AAN) as independent corroboration, when in fact the panels shared key members, came to the same conclusions, and used the same wording. IDSA then used the AAN's supposedly independent findings in attempt to defeat federal legislation to establish a Lyme disease advisory panel and state legislation to support antibiotic therapy for chronic Lyme disease.

IDSA and AAN reject the guidelines of the International Lyme and Associated Diseases Society (ILADS) because it cites evidence they consider insufficiently rigorous. (Neurology Today 10/16/07). IDSA and AAN rely heavily on randomized controlled double-blind studies; however, "when a positive result is found, they discredit the study," notes neurologist Lawrence R. Huntoon, M.D., Ph.D. Too many patients in the study (Neurology 2003;60:1923-1930) guessed that they were in the treatment group, suggesting that "unblinding" had occurred.

AAN's confidence in its ability to judge the effectiveness of treatment is apparently not dampened by its inability to make an accurate diagnosis of neuroborreliosis (neurologic Lyme disease). The state-of-the-art antibody test has too many false negatives (Neurology Today, op. cit.)

Insurance coverage is not the only issue. Malpractice attorneys can attack physicians who do not follow guidelines which become the de facto "standard of care." And insurers can file anonymous complaints with medical boards about noncompliant physicians. "Too expensive" = "practicing below the insurance standard of care," notes Dr. Huntoon.


RACs Start "Outreach" in May

CMS has announced the deployment of new permanent recovery audit contractors (RACs) as part of the postpayment Medicare claims audit initiative. An "outreach and education" effort was slated for May, to precede actual audits. A report on the three- year demonstration program should be released soon; Congress already decided to make the program permanent and to require it in all states by 2010.

The RACs are "not as rogue as they're made out to be," said CMS Program Integrity Director Kimberly Brandt. CMS has made some changes, such as requiring that RACs return contingency fees if claims denials are later overturned. Also the number of records that RACs could demand at any one time will be limited (BNA's HCFR 4/23/08).


Exclusive Contracts: New Control Tactic

Hospitals have long used exclusive contracting as a method to gain control of physicians on the medical staff. Medical staff privileging has, however, often been independent of the contracts although privileges may be moot if an exclusive contract bars access to equipment and facilities needed to practice. A Georgia court recently upheld the authority of medical staff bylaws to govern credentialing decisions and to afford physicians the right to appeal a termination (Madonna v Satilla Health Systems and Lefever et al. v. Satilla Health Systems).

Exclusive contracts could "allow physicians to be terminated from the medical staff without due process protections," stated Donald Palmisano, Jr., general counsel to the Medical Association of Georgia, which filed an amicus brief supporting the physicians (AM News 4/28/08).

Loss of hospital privileges must be reported to the National Practitioner Data Bank (NPDB), and could end a physician's career, notes Lawrence R. Huntoon, M.D., Ph.D., chairman of the AAPS committee to combat sham peer review.

"Physicians who sign these exclusive contracts, hoping for a secure paycheck, may be risking their entire career if things go sour with the hospital administration," warns Dr. Huntoon.


Tip of the Month: In the guise of "strengthening medical staff self-governance," the AMA is promoting the new JCAHO MS 1.20 standard, which says that medical staffs can decide what authority to delegate to the Medical Executive Committee (MEC). This could "improve efficiency" of hospital efforts to control doctors. The hospital bar lobbied aggressively for a provision to allow procedural details of credentialing and peer review to be moved from the medical staff bylaws to administrative procedure manuals, which can be approved by the MEC without medical staff input. To help reduce control by hospital administration, physicians should exercise the power to not delegate authority to pass any medical staff bylaw, regulation, rule or policy to the MEC, and to de-authorize the MEC to act on behalf of the medical staff between meetings.


NPI Update

A statement on the website of the Division of Consumer Affairs, New Jersey Office of Attorney General, states that as of Oct 8, 2008, all NJ prescription blanks must be preprinted with the prescriber or facility NPI and must be consecutively numbered or serialized. The governing statute, however, 45:14-49, provides that the NPI shall be included if the prescriber has one. AAPS General Counsel Andrew Schlafly has asked the Attorney General to clarify the statement on the website and to bring it into compliance with the statute, which expressly recognizes that not all physicians need have an NPI.

It is possible that carriers may try to force a physician to obtain an NPI in order to opt out of Medicare. But the opt-out provision in 4507 of the Balanced Budget Act is worded as a safe harbor rather than a requirement. There is still no written provision forbidding private contracting by Medicare beneficiaries. Two Medicare clerks have told AAPS members that there is no need to opt out if they are not providers either because they have never filed a claim or have not done so for years. Contact AAPS with information or questions.


"Freedom in its broadest sense no longer has doctors as participants." Ronald Reagan


Protected Lying. When ordinary citizens lie to prosecutors, they are often prosecuted and go to prison. When Martha Stewart lied, she went to prison. When prosecutors use perjured testimony to obtain a conviction (as in the case of Dr. Bernard Rottschaefer), the accused often goes to prison. When Bill Clinton lied, it was passed off as semantics and his own personal business. "Former Gov. Eliot L. Spitzer lied to prosecutors about what turned out to be his major role in a campaign to smear a political rival [Senate Majority Leader Joseph L. Bruno], but the Albany County district attorney David Soares said he "will not pursue any criminal charges against the already-disgraced ex-governor" (Buffalo News 3/29/08). His ability to prosecute is limited, he said, as the ex-governor is no longer a public official. Release of the records of the case could not occur because issues of executive privilege involving Spitzer and Gov. Paterson have not been resolved.

Apparently, holding high office confers absolute immunity on the official. Is it any wonder that some holding the highest offices are the most corrupt?
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY


EBM and Quality. Evidence-based medicine (EBM) originated in the UK and was institutionalized in the National Institute for Health and Clinical Excellence (NICE even George Orwell would have a hard time performing at this level!). NHS Blog Doctor often discusses NHS quality guidelines. The discussion of the dumbing down of people who care for patients especially nurse midwives is horrifying. Women with uncomplicated pregnancies don't need an obstetrician, the guidelines say. Reportedly, maternal deaths have been rising in the UK. It's a road map for what will happen here if we don't get third-party payment under control. I predict that after another century or two of research we'll end up with rich academicians, poor doctors, and a bunch of evidence showing that the best medical decisions are made by properly trained people considering the needs of the individual patient.
Linda Gorman, Independence Institute, Golden, CO


The End of Excellence? We may have some of the best respiratory medicine expertise in the world. Enjoy it whilst it lasts, for it will soon be gone...because, to save a few pence here and there, we are eating our seed corn....

[In the past we had a] busy medical "firm" with enthusiasm passing up the chain, and experience passing down...the young lean and hungry medical registrar who is genuinely interested in emphysema,... who is questioning orthodoxy, who is driving his consultant mad by saying, "why don't we do it this way, ... have you seen that new paper in the Brazilian Journal of Respiratory Medicine?..." It has all gone. Old fashioned senior registrars do not exist.... The clinics are run by nurse specialists. The nurse have neither the training, nor the experience to do the job the registrars of old did. They do not question, and they cannot think and analyse in the same way. They are protocol bound.... When the current generation of experienced consultants retires, there will be a void in medical expertise that will never be filled (http://nhsblogdoc.blogspot.com/2007_06_01_archive.html).
Dr. John Crippen, posted 6/11/07


P4P and Quality. Current pay-for-performance measures are not quality measures, but "standards of care" for prevention and for standardized management of established diagnoses. Remember, failure to meet the standard of care is called "malpractice." P4P measures compliance with a third-party cookbook which is the inverse of quality. At least 15% of patients have circumstances that are inappropriate for the cookbook. Quality means the ability to recognize those patients and to prescribe treatments adapted to individual needs. The peril is that P4P rewards those best at following a protocol. Already, nonphysicians, who are superb at cookbook compliance, are beginning to replace physicians.
Stephen R. Levinson, M.D., Easton, CT


Recertification. When Harry Kimball, then head of the American Board of Internal Medicine, was asked nearly a decade ago about the reason for changes to the recertification process, he said they were partly in response to demands from managed care plans for more specific recredentialing data. Why was ABIM kowtowing to insurers instead of listening to the demands of its diplomates for a simple, fair, inexpensive process? The current process is like the written test for a driver's license, only more time-consuming and expensive. I am concerned that internal medicine (IM) residents are being taught to "study the book," rather than care for patients. I suspect IM programs are rated by their board pass rates.
Alan G. Pocinki, M.D., Washington, D.C.


Guidelines, or Else. An article headlined "States May Warn Doctors to Follow Smoker Treatment Guidelines or Be Sued for Medical Malpractice" quotes a study claiming that 40,000 "victims" a year die because doctors don't follow federal guidelines on smoking cessation. When will doctors ever stand up and say "enough"? Every visit my doctor asks me do I smoke, how much, do I drink water,...." From now on, he gets no information from me! I do not want my information in some database that some Foundation is pushing! Who do they think will even want to be a doctor in the future?
Pam Parker