Community For Better Health Care Vol IV, No 5, June 14, 2005
MedicalTuesday: It's time for a break in your routine to reflect on the world of health care. This should be of vital concern. If you're pressed for time, PRINT this valuable newsletter to share with your friends and relatives and SAVE to your MedicalTuesday folder for future reference. To understand the Why of MedicalTuesday, read the introduction at http://www.medicaltuesday.net/intro.asp.
In This Issue:
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1. Featured Article: Envy Engines - The Dark Side of Whistleblowing
Neil Weinberg, Senior Editor at Forbes, writes that when the feds enlist whistleblowers to go after big companies, many firms pay up regardless of guilt, shareholders pick up the tab and life goes on. But when prosecutors pursue individual doctors, the docs can be ruined over even minor transgressions.
"George Krizek put in 25 years as a psychiatrist at Washington (D.C.) Hospital Center before learning, on Christmas Eve 1992, that the Justice Department was accusing him and his wife, Blanka, of fraudulent government billing. Prosecutors claimed $245,000 in overcharges--and demanded $81 million in fines and restitution under the False Claims Act. A federal appeals court later dismissed that demand as an "astronomical" sum. A lower court then cut the figure to $75,000, but prosecutors appealed the ruling in 1998. By then Krizek had retired and was fighting cancer.
"‘The government continues to relentlessly pursue Dr. Krizek, who is at this point a broken and sick man,’ U.S. District Judge Stanley Sporkin wrote. ‘There comes a point when a civilized society must say enough is enough. That point has been reached in this case.’ Undaunted, the feds went after Krizek for another three years until his daughter, Monika, borrowed money to meet prosecutors' demand for $315,000. ‘They ruined our lives. Nobody will know how much we suffered,’ says Blanka Krizek.
"In Springfield, Illinois psychiatrist Robert Mitrione was sentenced to 23 months in jail over Medicaid bills that totaled all of $75.25. In California one doctor served five years in prison over $65,000 in disputed Medicare bills in a case in which a key witness was a fired office worker. Stripped of his medical license, he now does charity medical work overseas. ‘The government seized all of our savings, and we lost our home, too,’ says the physician, who requested anonymity. ‘This case has ripped the hearts out of my wife and my children, who have to live with this history. It eats away at them.’
"‘These lawsuits are envy engines that bring out competitors, fired office workers, ex-spouses and mischievous patients,’ says Madeleine Cosman, a lawyer who has written extensively decrying the criminalization of American medicine. ‘I'm not interested in defending quacks or charlatans, but whistleblower suits are hobbling some of our best practitioners.’
"Docs must contend with 133,000 pages of federal medical regulations, and only the richest can afford to fight. Bradenton, Florida orthopedic surgeon Owen McCarthy spent $3.5 million in legal fees after an estranged ex-partner told the government he was overcharging Medicare for office visits. He claims the FBI bugged his home and his wife's car and threatened to press criminal charges if he didn't settle. McCarthy paid $600,000 in 2002. ‘The government wanted to put me in jail for billing $45 for office visits for which it said I should have charged $25. It's all arbitrary,’ McCarthy says. ‘At that point $600,000 wasn't a lot to move on with my life.’
Neil Weinberg has done our profession a great service by highlighting this abuse of our colleagues. To read Weinberg's entire story, please go to http://www.forbes.com/global/2005/0314/048sidebar2_print.html.
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2. In the News: the Old and the Rested Could Work an Extra Ten Years and Save Social Security
John Tierney reports in the New York Times: "Men in their 70's raced on bikes for 40 kilometers in this month's National Senior Games in Pittsburgh. A 68-year-old woman threw the discus 85 feet, and a 69-year-old man hurled the javelin nearly half the length of a football field." And asks, "Is it possible that people this age are still physically capable of putting in a full day's work at the office?"
"I realize I'm being impolitic. In the Social Security debate, the notion of raising the retirement age is the elephant in the room, as Robin Toner and David Rosenbaum reported in The Times on Sunday. Both liberal and conservative economists favor the change, but politicians are terrified to even mention it to voters.
"Americans now feel entitled to spend nearly a third of their adult lives in retirement. Their jobs are less physically demanding than their parents' were, but they're retiring younger and typically start collecting Social Security by age 62. Most could keep working - fewer than 10 percent of people 65 to 75 are in poor health - but, like Bartleby the Scrivener, they prefer not to.
"The problem isn't that Americans have gotten intrinsically lazier. They're just responding to a wonderfully intentioned system that in practice promotes greed and sloth. Social Security is widely thought of as a kumbaya program that unites Americans in caring for the elderly, but it actually creates ugly political battles among generations.
"With the help of groups like AARP, the elderly have learned to fight for the right to retire earlier and get bigger benefits than the previous generation - all financed by making succeeding generations pay higher taxes than they ever did themselves.
"The result is a system that burdens the young and creates perverse incentives for people to retire when they're still middle-aged. Once you've worked 35 years, more work often yields only a tiny increase in your benefits (sometimes none at all), but you still have to keep paying the onerous Social Security tax, which has more than doubled over the last half century.
"If the elderly were willing to work longer, there would be lower taxes on everyone and fewer struggling young families. There would be more national wealth and tax revenue available to help the needy, including people no longer able to work as well as the many elderly below the poverty line because they get so little Social Security.
"Getting that kind of system seems politically hopeless at the moment here, but it already exists in Chile. Its pension system has a stronger safety net for the older poor than America's (relative to each country's wages) and more incentives for people to work, because Chileans' contributions go directly into their own private accounts instead of a common pool like Social Security.
"Once Chileans accumulate enough money in the account to finance a pension that pays at least half their salary (which is better than what the typical American gets from Social Security), they can start collecting the pension and still go on working. In fact, they have an extra incentive to go on working because they keep more of their paychecks: elderly Chileans, unlike Americans, are freed of the obligation to continue making pension contributions.
"The result has been a big change in working habits. Before the private-account system began in 1981, Chile had a traditional pension system going broke with the same problems as America and Europe: rising taxes on the young to pay for older workers who were retiring earlier and earlier. But under the new system, there's been a 30 percent increase in the labor force participation by workers in their 60's, according to two economists, Estelle James and Alejandra Cox Edwards.
"Best of all, Chileans who control their own private-account pensions don't have to count on politicians or groups like AARP to decide when they can retire. It's a personal choice, not a public battle, and the Chileans I interviewed had a saner attitude about retirement than the American baby boomers dreaming of retiring to decades of golf.
"A 57-year-old schoolteacher, Maria Clara Meyer, told me she was thinking of spending her 60's running her own tutoring program or setting up an ecotourism business in Chile. 'I'm a little tired of my teaching job,' she said, 'but I'm not stupid, so I shall keep doing something. It's not healthy for you to stop working if you're still able.' And not healthy for your country, either.
To read the entire report, go to http://query.nytimes.com/gst/abstract.html?res=F50B17FB345C0C778DDDAF0894DD404482&incamp=archive:search.
For Further Reading:
In Overhaul of Social Security, Age Is the Elephant in the Room by Robin Toner and David E. Rosenbaum. New York Times, June 12, 2005. http://query.nytimes.com/gst/abstract.html?res=F30E1EFA355C0C718DDDAF0894DD404482&incamp=archive:search
E-mail: tierney@nytimes.com
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3. Canadian Medicare: The Wall Tumbles Down in Montreal
Grace-Marie Turner, President of the Galen Institute in her newsletter, Health Policy Matters®, states "The equivalent of the Berlin Wall came tumbling down in Montreal as the Supreme Court of Canada struck down a Quebec law that had banned private health insurance for services covered under medicare, Canada's socialized health care program. 'This is indeed a historic ruling that could substantially change the very foundations of medicare as we know it,' Canadian Medical Association President Dr. Albert Schumacher said after the ruling. The ruling means that Quebec residents can pay privately for medical services, even if the services also are available in the provincial health care system.
"'Access to a waiting list is not access to health care,' the court said in its ruling." (US proponents of single payer should take note. Having government coverage and then rationing is not access to health care.)
". . . a courageous Canadian doctor, Jacques Chaoulli, was challenging the constitutionality of the Canadian ban on private payment. He argued that long waiting times for surgery contradict the country's constitutional guarantees of 'life, liberty, and the security of the person.'
"He was joined in the case by his patient, Montreal businessman George Zeliotis, who waited a year for hip replacement surgery. Zeliotis, 73, tried to skip the public queue to pay privately for the surgery but learned that was against the law. He argued that the wait was unreasonable, endangered his life, and infringed on his constitutional rights. The court agreed!
"The case involved the Quebec Hospital Insurance Act . . . Clearly this was a difficult decision since the court delayed a year in issuing its verdict.
"The United States has been a safety valve for Canadians unwilling or unable to tolerate the long waits for medical care in their country. Now, the Canadian government must face the music about the long waiting lines, lack of diagnostic equipment, and restrictions on access to the latest therapies, including new medicines.
"In an almost laughable defense, 'Lawyers for the federal government argued the court should not interfere with the health-care system, considered "one of Canada's finest achievements and a powerful symbol of the national identity,"' according to the Canadian Broadcasting Corp. Dr. Chaoulli had persevered in spite of two lower court rulings against him that had ruled the limitation on individual rights was justifiable in order to prevent the emergence of a two-tier health care system.
"Supporters of the prohibition against private contracting in Medicare in the United States should take note because our own law has the same effect, making it almost impossible for Medicare recipients to pay privately for services covered by the program." To read Grace-Marie's entire newsletter, go to http://www.galen.org/healthabroad.asp?docID=804.
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James Salzer reports in The Atlanta Journal-Constitution that Senator Charles Walker was removed from office after being found guilty on 127 counts. "State Sen. Charles Walker, once among the most powerful African-Americans in state politics, was convicted in federal court of defrauding businesses, a charity and taxpayers in part to pay off gambling debts.
"The jury deliberated for 20 hours over three days before convicting Walker on 127 of 137 counts including mail fraud, tax evasion and conspiracy. The Augusta Democrat is expected to appeal the convictions but is suspended from his Senate duties according to state law. A special election will be called to fill his post.
"Walker, 57, showed no emotion when the verdict was read. He was released pending his sentencing, which was not immediately scheduled. The more than 100 mail fraud charges carry a maximum penalty of five years in prison each and up to a $250,000 fine. . . .
"Walker and his daughter were indicted last year on charges that they bilked advertisers in his weekly newspaper, the Augusta Focus, misused campaign funds, stole from a charity he created and pressured Atlanta's Grady Memorial Hospital and the Medical College of Georgia in Augusta into using his personnel businesses. His daughter, Monique, will be tried later.
"Prosecutors said Walker, a sharecropper's son who became a multimillionaire, ran up more than $500,000 in casino debts playing $2,400-a-hand blackjack. They charged he used campaign contributions and money stolen from the CSRA Classic, a charity for poor youngsters that Walker founded, to pay his gambling debts.
"The government contended Walker inflated the paid circulation of his newspaper by 1,000 percent so he could charge advertisers more.
"He was convicted on the counts pertaining to Grady Hospital even though one of the government's star witnesses, former state Sen. Nadine Thomas (D-Ellenwood), recanted on the witness stand her contention that Walker delayed legislation important to Grady to ensure the hospital used his temporary services business.
"Walker's companies did more than $2.5 million in business with Grady and the medical college while he served on the legislative committee that writes the final state budget. MCG is a state college and Grady receives major funding from the state through Medicaid, the health program for the poor.
"The two-week trial was closely watched at the state Capitol, where Walker wielded significant power through the 1980s and 1990s. Walker rose to Senate majority leader, the third-highest ranking senator, and was a friend and political ally of former Democratic Gov. Roy Barnes, who testified on his behalf.
"Now, one of Walker's most bitter political enemies, Republican Gov. Sonny Perdue, will call a special election to fill his seat. . . .
"Senate President Pro Tem Eric Johnson (R-Savannah) called it ‘a good day for the criminal justice system and a bad day for democracy.’
"Senate Minority Leader Robert Brown (D-Macon) said he regretted the outcome for ‘the senator and his family. It's a tough time, and I wish him well as he tries to work through this.’
"Walker's conviction came about a month after another Augusta politician, former Republican state Rep. Robin Williams, was found guilty in the same courthouse of conspiring to defraud $2 million from a mental health center.
"A third Augusta-area official, former Republican School Superintendent Linda Schrenko, is expected to face trial this year on charges that she participated in a scheme to steal $600,000 in federal school funds.
"Former U.S. Attorney Rick Thompson, who launched the Walker investigation, said, ‘This verdict along with the Robin Williams verdict shows unequivocally that political corruption has been and can be a bipartisan enterprise.’
"Walker is the second state Senate heavyweight in the last few years to be convicted of federal crimes. Sen. Diana Harvey Johnson of Savannah, once chairwoman of the Legislative Black Caucus, was convicted in 1999 on mail fraud charges.
"Walker was first elected to the state House in 1982, and quickly became a leader in the Legislative Black Caucus. Within a few years he was helping to write the state budget. Walker was an early supporter of Barnes' candidacy for governor, and he was rewarded with access and funding for numerous hometown projects.
"He failed to win re-election in 2002, the same year Perdue beat Barnes, but voters returned him to the Senate last year despite the charges pending against him.
"Bill Bozarth, executive director of the government watchdog group Common Cause Georgia, said the verdict makes clear that the state needs stronger ethics standards for its elected officials.
"‘It's not really a victory for anybody when a public official is convicted of this level of misconduct,’ Bozarth said. ‘From our point of view, it points out that good ethics laws would have been able to address this kind of conflicted behavior long before it became criminal.’
Find this article at: http://www.ajc.com/metro/content/metro/0605/04walkerguilty.html.
Government is not the solution to our problems, government is the problem.
- Ronald Reagan
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5. Medical Gluttony - HMOs are not Immune to Increasing Costs for Publicity Reasons
The managed care industry, whose sole purpose is to reduce health care costs and deny coverage of consultations and procedures, sometimes causes excess cost because of public sentiment. In a free society, patients should have the option of not proceeding with recommended procedures. If the reasoning of the patient is irrational, it should simply be briefly recorded and followed.
HMOs, in an effort to appear as genuinely interested in patients health and welfare, award doctors points that later convert to incentive payments for performing such procedures as pelvic examinations with Papanicolaou smears, prostate examinations, and diabetic and lipid screens. Patients in their ninth decade of life frequently decline some of these private procedures. However, the HMO keeps tabs through a sophisticated CPT coding system and is aware when certain procedures are not performed. They then reduce the doctor’s quarterly compliance bonus, even though the patient received optimal care. Thus, they expend unnecessary health care costs for doctors that force patients to have rectal and vaginal examinations against their wishes and reduce costs for doctors that are kind and considerate of patient wishes.
Perverse incentives will eventually give way to rational decision-making, as patients assume control of their health care.
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6. Canadian Myths About United States HealthCare
Montreal Economic Institute published an Economic Note last week on two myths about the U.S. health care system. It had been in preparation for months, but the timing was good! Lots of Canadians believe that the American system is totally private and that is why it is so costly and why millions of people are uninsured (and thus are believed to receive no care at all!). The Note deals with these myths. It will be useful to have a more rational debate and kill some of these myths.
You can find the Economic Note at http://www.iedm.org/uploaded/pdf/juin05_en.pdf.
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Our editorial correspondent in Quebec, who wishes to remain anonymous, wrote the follow reaction to the Supreme Court decision in Canada.
"There has been a staggering amount of commentary of the judgement over the past two weeks, and opinions are extremely varied. My own first reaction was one of mild deception, because the judges based their ruling on the Quebec and not the Canadian charter of rights and freedom (the latter would have meant striking down restrictions across the country, with a greater chance of a general breakdown of the system). Also, it’s not clear at all what will happen from now on.
"Dr Jacques Chaoulli believes that the politicians won’t have any choice but to liberalize the system, but I’m not so sure. The Quebec government seems to have decided not to invoke the derogatory clause to escape the judgment, but they will ask the court to give them a delay to implement the ruling. The articles forbidding us to pay and buy insurance for services covered by the public system may be removed, but that doesn’t mean we will be a lot more able to get these services in the private sector.
"Some provinces don’t have these restrictions on payment and insurance, but they have others (not handing out licenses for private clinics, forbidding doctors to charge fees in the private sector that are higher than costs in the public one, preventing doctors from leaving the public sector, etc.) that essentially prevent the development of a parallel private sector. The government could theoretically allow us to pay and buy insurance, but then adopt some administrative regulation that would make it difficult for private care to develop. Jacques believes that this indirect means to escape the judgment would imply contempt of court and that he could prevent it from happening by going back to the Supreme Court.
"Quebec already has the most developed parallel private system (90 of the 92 doctors in Canada that are completely disengaged from the public sector are in Quebec working in entirely private clinics). The government has allowed this to happen quietly and has closed its eyes on it, even though some of these private clinics are in a grey area legally. They may also decide to use the judgement to more officially acknowledge its existence and allow it to develop still further, which is my most optimistic scenario. But I think it’s completely unrealistic to believe that the public system will come crashing down in all of Canada sometime soon, as some people said following the judgment.
"In the past couple of days, many commentators said the judgment may have very little consequences after all. Certainly, at this stage, it’s impossible to know what will happen. I will keep you posted when there are new developments.
"I think the most useful consequence of the judgment so far is that finally we are having an open debate on health care. Until now, very few people, especially in the other provinces, dared questioning the legitimacy of the public system despite its faults (it being an essential part of the newly invented socialist "‘anadian identity’). In the past two weeks however, I have read more interesting arguments on this than in the previous five years."
8. Voices of Medicine: Lawsuits Threaten Our Health Care
Don Wolfe, President, Citizens Against Lawsuit Abuse (CALA), writes in The Bulletin of the Santa Clara County Medical Association about the drain on health care caused by personal injury lawyers.
"To get a flavor for how personal injury lawyers are fishing for future clients, we just have to follow the advertisements. One headline reads: $18,000,000,000 Expected in Vioxx Damages. . . Another web site claims, ‘Most Vioxx patients and their families do not want to go through the pressure associated with going to court and having a full trial. While we can't guarantee there will be no trial, lawyers work hard to settle the cases without going to trial. However, it is important to realize that the threat of trial is what brings the maximum amount of compensation, so it is essential to prepare a case with this in mind.’"
Wolfe states, "Let me be clear: not one of us want people to be hurt by unsafe products, and anyone that is truly injured deserves justice. But when lawsuits are filed out of greed instead of justice, and personal injury lawyers and unharmed plaintiffs threaten justice for the truly injured, our legal system is being abused. And lawsuit abuse has certainly impacted health care in our nation."
To read the entire article on how patients are hurt by lawsuit abuse, go to www.sccma.org/public/components/societytools/admin/viewNewnews.asp.
9.
Book Review:
WHO OWNS YOUR BODY?: Doctors and Patients Behind Bars by
Madeleine Pelner Cosman, PhD, Esq., Praeger Publishing, (www.praeger.com)Westport,
Connecticut 247 pages, $39.95, ISBN: 0-313-0327-2.
In 1993, Dr Madeleine Pelner Cosman, a health care attorney, reviewed Medicare
and Medicaid litigation and legislation from their beginnings. She was startled
to discover that the law most of us accepted as primarily gentle civil law had
altered incrementally to brutal criminal law. Physicians are held to vague,
arbitrary standards that provide accused doctors fewer rights and defenses than
accused murderers, rapists and arsonists. If convicted, physicians were punished
more harshly than the vilest criminals.
When Medicare and Medicaid were implemented in 1965, the law was temperate. It was not coercive. It did not meddle in physicians' decisions. It did not intrude in medical offices or hospitals. Section 1872 of the Social Security Act was thought to be strong enough to prevent, curb and catch potential frauds and abuses. Fraud required intent. No doctor could be prosecuted for medical fraud unless he knew a particular act was wrong and he did it willingly and intentionally.
But legal intentions and social suppositions changed as medical costs rose meteorically. Incrementally major laws have become more restrictive, oppressive and punitive. They incorporate increasingly sterner reporting standards and more vindictive criminal punishments. . .
Cosman's thesis for this volume implies that medical criminal law now poses a clear and present danger both to physicians and to patients. This new type of law aims to eliminate fraud in the government medical system, but lurches wildly into the personal rights of each American doctor and patient. Bureaucratic scrutiny of records "medical necessity," places patients’ privacy, personal liberty, and bodily integrity at risk.
To read the entire review, go to the book review section: http://www.jpands.org/jpands1002.htm.
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10. MedicalTuesday Recommends the Following Organizations for Their Efforts in Restoring Accountability in HealthCare, Government and Society:
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Del Meyer
Del Meyer, MD, CEO & Founder
www.MedicalTuesday.net/newsletter.asp
6620 Coyle Ave, Ste 122, Carmichael, CA 95608
Words of Wisdom
P. J. O'Rourke: When buying and selling are controlled by legislation, the first thing to be bought and sold are legislatures. (Contributions to key legislators is really legalized bribery.)
Mark Twain, (1866): There is no distinctly native American criminal class save Congress. (They have legalized theft and called it Pork Chops.)
Will Rogers: I don't make jokes. I just watch the government and report the facts. (But it really isn't a laughing matter, is it?)
Some Recent Postings
Lives at Risk, by John C Goodman, Gerald R Musgrave and Devon Herrick, reviewed by Del Meyer.
The False Claims Act and Qui Tam Actions, by Madeleine P. Cosman, PhD, Esq.
Cooking the Books? Trillion Dollar Cover-Up? Hospitals Call it Peer Review, by Ron A. Vermani, MD.
On This Date in History - June 14
Flag Day: Today is Flag Day. It commemorates the official adoption of the Stars and Stripes on this date, in 1777, by the Continental Congress. The star spangled banner still waves over the land of the free and the home of the brave. It's a very comforting and inspiring symbol. Although we may not take kindly to people who wave the flags, we admire those who show the flag. One important symbol of this flag is free speech.
Harriet Beecher Stowe was born on this date in 1811. Mrs Stowe wrote a book whose alternate title was Life Among the Lowly. The full title was Uncle Tom's Cabin, or Life Among the Lowly. It first appeared in 1852, and it helped greatly in whipping up abolitionist sentiment in the North before the Civil War. Its influence lasted long after.
President Eisenhower, on this date in 1953, on the birthday of the author of one of the most influential and powerful books ever written, found it appropriate to speak out against the enemies of books. On this date in 1953 at Dartmouth College, he stated: "Don't join the book burners. Don't think you are going to conceal faults by concealing evidence that they ever existed."
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