Antitrust Suit Against AOA Proceeds to Discovery Phase in New Jersey

The United States' primary certifying body for osteopathic physicians, the American Osteopathic Association, is set to proceed to discovery in a fraud and antitrust suit in the District of New Jersey after a federal judge in Camden denied the association's motions to dismiss a suit by doctors.

The physician-plaintiffs who sued the American Osteopathic Association have sufficiently stated antitrust claims at the pleading stage stemming from the agency's alleged practice of tying board certification to association membership, U.S. District Judge Noel Hillman ruled Monday. The judge also ruled that the plaintiffs stated a viable claim under the New Jersey Consumer Fraud Act with their assertions about renewal fees imposed on doctors who had been promised their certifications would not expire.

Hillman also rejected the association's motion to transfer the case to the Northern District of Illinois, near the group's headquarters. The association did not argue that the District of New Jersey is an improper venue, but merely sought a transfer for its own convenience, he said.

This last detail is important, because the Association of American Physicians and Surgeons anti-trust suit against the American Board of Medical Specialties that was originally filed in New Jersey, was allowed to move to the Northern District of Illinois and has languished there since January 2015.

-Wes

Reference: Duane Morris LLP website press release.

When the Feds Come Knocking

Slightly over a year ago, the Department of Justice (DOJ) launched an investigation of a large number of institutions regarding concerns that implantable cardiac defibrillator (ICD) procedures were performed for reasons outside of the criteria set forth in Medicare’s National Coverage Decision (NCD).  This investigation occurred just after Al-Khatib and others published a report January 4, 2011 in JAMA that suggested as many as 22.5% of implantable defibrillators implanted for primary prevention of sudden death were not evidence-based.  While the physician community took issue with the Al-Khatib paper, the media firestorm it generated paired with the announcement to the Heart Rhythm Society physician community that a federal investigation was underway, had a chilling effect on ICD implantation nationwide.  Drs. Jonathan S.Steinberg and Suneet Mittal report on their experience with DOJ investigators under this heavy regulatory oversight in today’s Journal of the American College of Cardiology.

Steinberg and Mittal's diplomatic account carefully describes the challenges of retrospective audits performed by lawyers from the Department of Justice and those of their targeted health care facilities. The DOJ identified 229 cases as potentially inappropriate cases based on Medicare code criteria.  (This represented 8.7% of the de novo non-resynchronization ICD implants done for primary prevention at their institutions). After determining that some of these targeted cases were actually for secondary prevention or other coding transgressions, the authors could medically justify all but thirty-four (15%)  (or a very low 1.5% of all ICD’s implanted for primary prevention of sudden death) at their institution.  As has been the case in most reports, the majority of outside NCD-directed ICD implants occurred because of timing violations—too close to the diagnosis of heart failure, heart attack and coronary intervention. These timing constraints constitute the primary issue before implanting doctors: their professional society guidelines do not -- in all cases -- recognize similar timing restrictions.

It is surprising that we are not told what sanctions, if any, were levied against their respective institutions.   Perhaps the authors felt this important detail was unimportant to disclose or perhaps they were prohibited from doing so.  Perhaps their penalty is still being determined: after all, nothing drives behavior like fear.  To this end, we found the authors' compliments of the government's legal team unusual to report in a scientific manuscript, as if the they were suffering from Stockholm Syndrome.

We should acknowledge that the authors have added much needed clarity to the gray area of decision-making surrounding ICD implantation. Their explanations of timing violations highlight problems with coding, confusion around incidental PCI intervention in patients with dilated cardiomyopathy, and demonstrate the overlap decisions that must be made when bradycardia and tachycardia functions might be required for our patients.  This kind of clinically-relevant nuance was lacking in the impugnable Al-Khatib JAMA piece.

We can only speculate the large cost of the legal fees and man-hours devoted to this review process.  We will never know how many patients died during, or now after, the course of this investigation because they were not offered ICDs because ICDs can only be offered to patients who meet Medicare’s rigid, outdated, and still-to-be-updated National Coverage Decision for implantable defibrillators.   But perhaps this is the price of regulation that America is willing to pay in return for cost savings.  Perhaps we should not be concerned that professional guidelines for care delivery should be second fiddle to government mandates for ICD implantation.

With this latest report, a new era for medical practice is now upon us – one where priorities of low cost care and high quantity of care determined by non-medical personnel supersede the highest quality of medical care to our patients.   For regulators, it is easy to be a Monday-morning armchair quarterback evaluating health care delivery.  It is far harder, however, to decide prospectively who is likely to die (or not) when they sit before you with a newly-diagnosed cardiomyopathy and ejection fraction of 12%. 

When government and legal officials who carry no responsibility for the long-term well-being of our patients have the authority to retrospectively impugn and penalize doctors (and their health care facilities) based merely on retrospective reviews of billing codes and outdated payment mandates, they risk irrevocable harm to patients who might qualify for devices according to updated professional guidelines.  Doctors everywhere should stand up collectively to disown the practice of using NCD mandates, rather than updated professional guidelines, to determine appropriate care for patients.

After all, our patients are depending on us.

Westby G. Fisher, MD
Director, Cardiac Electrophysiology
NorthShore University Health System and
Clinical Associate Professor of Medicine
Pritzker School of Medicine, University of Chicago
Evanston, IL

John Mandrola, MD
Cardiac Electrophysiologist
Baptist Medical Associates
Louisville, KY

Addendum 27 Mar 2012: Link to Steinberg/Mittal article finally added.

Addendum 14 Sep 2012: Update on the DOJ Decision

References:

Jonathan S. Steinberg and Suneet Mittal. "The Federal Audit of Implantable Cardioverter-Defibrillator Implants: Lessons Learned." J Am Coll Cardiol. April 3, 2012, 59 (14) 1270-4. doi: 10.1016/j.jacc.2011.12.026

Epstein AE, DiMarco JP, Ellenbogen KA, et al. ACC/AHA/HRS 2008 guidelines for device-based therapy of cardiac rhythm abnormalities. J Am Coll Cardiol. May 27, 2008;51(21):e1-62.

Al-Khatib S, Hellkamp A, Curtis J, et al. Non–Evidence-Based ICD Implantations in the United States JAMA. 2011;305(1):43-49. doi: 10.1001/jama.2010.1915

Note: This post also appears on Dr. John Mandrola's blog: http://www.drjohnm.org/

If Doctors Billed Like Laywers

From a discussion thread on Medscape (registration required) posted in response to comments on my earlier post entitled "If Lawyers Billed Like Doctors:"

Mr Clark it appears quite likely you are having a heart attack and will require my services. I will need a retainer of $1500 via either cash or cashier's check. This does not cover any treatment but merely retains me as your physician.

Then you will need to deposit $5000 into an escrow account. I will bill this account for services rendered. My charges are $400 an hour and I bill in 15 minute increments. Which means if it takes me 5 minute to review your EKG I still bill for 15. When the escrow account reaches $1000 you will need to deposit an additional $4000 to the account or I will cease to be your physician and you forfit the money in the escrow as well as the retainer and if you continue to require my care you will need to retain me again.

Would you like me to treat your heart attack?

Ouch.

-Wes

Could a Heart Attack During A Trial Help a Defendent in Court?

Perhaps:

Assistant U.S. Attorney Christopher Graveline wrote in a motion that after the judge told the jury about the heart attack “many jurors in their body language and facial expressions, rightly expressed concern for Mr. Cicchetti.” The prosecutor said the government did not object to the judge telling the jury about the heart attack because it assumed that Cicchetti would be prosecuted later before a different jury.

“It is only natural for the jury to feel sympathy for Mr. Cicchetti’s condition and this sympathy may well play into its consideration of the evidence against Mr. Cicchetti especially in light of his defense that he is a sick harmless older man who is only guilty of loving motorcycles and cocaine.”

“The government believes that allowing Mr. Cicchetti to continue in absentia would prejudice its ability to have a fair hearing and that there would be a high probability that an extrinsic factor, i.e. the defendant’s health, could affect the jury’s decision rather than the evidence presented in court.”

-Wes

Our Upside Down Medical Liability Crisis

I had an interesting visit with the husband of my niece last evening. He works as an ER doctor that is self-insured group of 60 physicians that cover the ER needs of four hospitals in Clark County near Las Vegas.

What is interesting is they are self-insured to save costs. As a group, then, they know how much per patient they must collect to assure liability care for every patient that comes to their emergency rooms.


That amount is $17 per patient per visit.

Guess how much their group receives for care they render to a Medicaid patient for a "level two" visit (minor problem: ear ache, sore throat, etc.)

Fourteen dollars per visit.

(Note: Medicare level two patients pay considerably better (about four times as much)).

When liability costs exceed the payments received for the care provided to those most in need, it's interesting that our legal and political forces in Washington see no need for liability reform as part of our larger health care reform efforts underway.

-Wes

If Lawyers Billed Like Doctors

Imagine if lawyers had to bill like doctors:

Beginning July 1, 2010, under the Legal Billing Obfuscation Act of 2009, lawyers will receive their payments for services rendered after approval by a central US government Payment Distribution Authority (USPDA). To receive payment from the Authority plaintiff and defendant complaints must be coded and filed electronically using the International Classification of Legal Complaints, 10th edition (ICLD-10), copyright © 2009, American Bar Association and Legal Proceeding Terminology (LPT) codes, copyright © 2009 American Bar Association. The full publication of each of these codes will be available in print March 1st 2010 and in electronic form on DVD in July 2011.

To familiarize lawyers with the new coding scheme requested by the USPDA, a small sample for the complaint of “Spilling” is shown below:

• Spilling 200
• Spilling, Water – 210
• Spilling, Water, Hot – 211
• with blisters 211.1
• without blisters 211.2
• Spilling, Water, Warm – 212
• Spilling, Water, Cold – 213
.
.
.
• Spilling, Coffee - 240.1
• Spilling, Coffee, Hot - 240.11
Spilling, Coffee, Hot, With Cream only - 240.12
• with blisters - 240.121
• without blisters 240.122
• Spilling, Coffee, Hot, With Regular Milk only – 240.13
• Spilling, Coffee, Hot, With 2% milk only – 240.14
• Spilling, Coffee, Hot, With Skim Milk – 240.15
• Spilling, Coffee, Hot, With Soy milk only 240.16
• Spilling, Coffee, Hot, With Sugar only - 240.17
Spilling, Coffee, Hot, With Artificial Sweetner (of any type, including, but not limited to Nutrasweet, Spenda, Sweet ‘n Low) – 240.18
• Spilling, Coffee, Hot, With Cream and Sugar 240.16
.
.
.

Pairing of improper complaint codes with legal proceeding codes will result in non-payment. “Up-coding” of legal proceedings shall constitute grounds for prosecution with some additional fines imposed by the IRS, as determined by the Office of Health and Human Services. For instance, pairing a legal complaint of “Spilling, Coffee, Hot, with blisters” to and of those of Divorce, same gender, living apart, male (or female) (shown below) will result in non-payment.

• Divorce: 100-199
• Between husband and wife 100.1
• Between same gender couple, living together, male, 100.011
• Between same gender couple, living together, female, 100.012
• Between same gender couple, living apart, male, 100.021
• Between same gender couple, living apart, female, 100.022
.
.
.

Valid code pairings for spillage include Accident codes (0010-0059), Assault codes (4400-4499), or Battery codes (5500-5599) provided documentation supports the requests for payment.

-Wes

On The Defensive

A scenario:

Dr. Wes: "I wonder if I could treat a pregnant woman, 36 weeks gestation, who wants to breast feed, is hemodynamically stable but has atrial fibrillation with rapid ventricular response unresponsive to digoxin/beta blockers, with short-acting Ibutilide?"

Dr. Google: "Several case reports exist treating pregnant patients with atrial fibrillation and atrial flutter without injury to mother or fetus and with no adverse effects."

The Obstetrician: "What's ibutilide?"

The Neonatologist: "Ibutilide? Has teratogenic potential at high dose in animals, including cleft lip and scoliosis, but at 36 weeks?...Maybe... Let me check with a pediatric electrophysiologist..."

Pediatric electrophysiologist: "We've used it in kids, but very cautiously... Never in pregnancy."

Pharmacist: "We have some concern, given the lack of human data."

ACC Guidelines 2006-Atrial fibrillation in Pregnancy(pdf): (Level of evidence: II-b or not II-b): "Ancient ineffective antiarrhyhmic drugs like quinidine sulfate or procainamide are generally thought to be safe in pregnancy."

Guess which drug I used?

Although I'm not proud of this, I caved to the paranoia. She stayed in the hospital another 18 hours because of it. A small price to pay, I suppose, but I am convinced I did not render the best care, just the safest care... for me.

It never ceases to amaze me how the threat of litigation constantly influences the medical care we deliver.

-Wes

More Chicago Bloggers Served Subpoenas

Boy, this sounds familiar.

It seems serving bloggers subpoenas is a favorite activity of some Chicago lawyers. In my case, it took three trips to court and over three months of legal costs in attempt to quash the subpoena, only to have the subpoena rendered "moot" when the case was dismissed.

I encourage anyone else who might have this occur to contact the Electronic Frontier Foundation, a San Francisco-based organization that defends the First Amendment rights of those who use the Internet and other digital media to exercise their freedom of speech. It could save you a bundle.

In my case, by subpoena was "served" to my front desk clerk, came with a cover letter claiming it was a "Second Notice" (I never received a first notice), and was "served" just twenty-four hours before I was due to appear to make a statement in the attorney's office in person without any offer for reimbursement for time, parking or travel.

I'm telling you, it happens.

-Wes

h/t Overlawyered.

Tort Conform

South Dakota Senator Tom Daschle as Health and Human Services director?

At least the American Heart Association is pleased, stating:

"... We commend Senators Baker, Daschle, Dole and Mitchell for their commitment to develop and promote policies aimed at providing all Americans access to high-quality, affordable health care."

And it looks like the trial lawyers will be happy, too.

*Sigh*

So much for tort reform any time soon.

-Wes

Who's More Important?

What do you think: who's more important, trial lawyers or doctors?

I think I know who's more narcissistic.

-Wes

h/t: Overlawyered.com

Bloggers Beware

Dear Blog-o-sphere:

I was going to tell you about a little problem I had in June that concluded last Friday, but I have reconsidered. This has been one of the hardest things I have had to do since starting this blog, since there's nothing more that I would like to do than to go public about this and let the individual who subpoenaed me suffer a little Streisand Effect in return for the considerable legal costs I have incurred.

I can tell you I was subpoenaed for a discovery deposition about one of my posts on this blog. I was not named as a party in the suit occurring in Cook County Circuit Court here in Illinois, mind you. Rather, the plantiff thought for sure that I knew one of the anonymous commenters on my blog. I did not. They insisted that I take down the post on my blog. I have not. They asked that I remove the comments identifying individuals on my blog. I have not and will not. They wanted me to take down an image I posted on my blog. It still stands.

After three trips for my lawyers before the Cook County Cicuit Court in late summer and fall of this year at considerable expense, my motion to quash the subpoena was rendered "moot" after the suit upon which it was based was dismissed in court.

So why do I let you know this?

Because of the circumstances that took place are important for bloggers to be aware of their potential for such legal actions, not dissimilar to that suffered by Karen Seidel of Neurodiversity.com, just on the basis of anonymous commentary on your blog. The implications of this are chilling.

But I am also aware that I reside in Illinois, sometimes jokingly referred to as the "Land of Lawyers" rather than the "Land of Lincoln." Regrettably, I have no formal legal background and am therefore at a distinct disadvantage in court proceedings should the individual cry foul if I went public and drag me back to court again crying about some defamation claim. Sure, sure, my post is written and contains all kinds of documents pertaining to the suit and the other individual's prior activities, but it just ain't worth the potential hassle right now.

Rather, I'm going to let these guys handle it. I gave them all my info. Including the contents of that other blog post.

Trust me, that's going to be a lot more fun to watch.

-Wes

ICD Class Action: Patients 40%, Lawyers 60%

As reported in the Star Tribune regarding the faulty implantable cardiac defibrillator (ICD) battery suit settled by Medtronic from the recall of 2005:

Less than half of the Medtronic settlement has been mailed to people who received defibrillators that were recalled in 2005 because of concerns about battery failures. The rest of the disbursements remain stalled, as lawyers deal with Medicare and Medicaid issues and third-party liens.

"We wanted to get some money into the hands of the claimants while we get other issues resolved," said Dan Gustafson, a Minneapolis lawyer and co-lead counsel in the Medtronic lawsuit.

But getting 40 percent of your total damages in September 2008 from a settlement that was announced in December 2007 still rankles some of those people who wore the recalled devices.

One would think this legal wrangling would be negotiated ahead of time, but I've got to say that there's some justice being served here as lawyers get to deal with Medicare and Medicaid issues, too.

-Wes

A Conversation: The Legal Morass Caused by the EMR

"The thing I hate about the Electronic Medical Record (EMR) is my name is always there for instant recall, even if I've surrendered by care to another physician."

"Why's that?" I asked, naively.

"Well, once I was subpoenaed in a malpractice case that occurred in 2006. I last saw the patient in question in 2002. But because the lawyers asked for a copy of the medical record, the entire dump of the patient's record was provided. The lawyers took note of every treating physician in this patient's care, irrespective of treating date, and filed subpoenas for 'discovery depositions.' I had to hire a lawyer, respond, and was later released from the case, but not after significant financial and emotional anguish."

"Sheesh. I had no idea it could get that bad...", I said.

"Yep. I just wish there was a statute of limitations about how far back a lawyer could ask for a medical record to avoid these fishing expeditions..."

-Wes

More on Doctors vs. Lawyers

Well, I've previously commented on the preponderance of donations to the presidential campaigns by lawyers versus doctors, but today, I'd thought I'd turn to a different issue: the striking differences each profession uses for billing those they serve.

Recently, I have had the misfortune of requiring the services of some of my more esteemed members of the legal profession. My faithful readers will be happy to know that it has nothing to do with malpractice, but it does have to do with this blog. Rest assured I will be more forthcoming in future weeks about the situation, but for now, especially after learning when not to blog about legal proceedings thanks to the misfortune of fellow-blogger, Flea, I will table any discussion regarding my circumstances.

But that does not mean I can’t speak about what I have learned from my lawyers, especially about how their billing practices differ from doctors’ billing practices. To say I am envious how they conduct business is an understatement. For when it comes to accounts receivable, lawyers rock. (I can’t believe I’m saying this, but it’s true).

So here are the differences I have realized so far:

• Lawyers work in their offices, then travel to court rooms, billing for their travel expenses there. Doctors work in their offices and travel to hospitals. They drive their own car to the hospital and pay for gas that is not reimbursed.


• Courtrooms do not bill patients or lawyers. Hospitals always bill patients.


• Lawyers bill by the hour. Doctors bill by the procedure.


• Anyone can see a lawyer, but they'll have to pay for it. Anyone can see a doctor at anytime (can you say ER?) without concern of having to pay for it.


• Senior law partners make $595 per hour and junior law partners make $395 per hour. This pays for their expertise, office expenses, including personnel, etc. Doctors are paid irrespective to experience and are paid much less than lawyers, but few really know what their hourly wage is because it differs from patient to patient and procedure to procedure, based on the patient’s insurance plan.


• Lawyers do not accept partial payment from their clients. With the exception of most plastic surgeons and some dermatologists who are cash-only, most doctors must accept partial payment from their patients based on pre-negotiated agreements with insurers as payment in full.


• Lawyers divide their hour in 0.1 increments (6 minutes) and bill for work accordingly (the smallest time I was billed for was 0.2 hr – 12 minutes). We must work for over 20 minutes to move to a level “2” evaluation from a simpler, level “1” evaluation.


• Lawyers bill for conversations, research, phone calls, meetings at the same rate as they do for being in court. Doctors’ do not bill for time spent discussing cases, research, phone calls, or meetings – their income comes from “bundling” of a single Medicare payment from their time before and during surgery.


• Lawyers continue to bill for additional services rendered after being in court. Doctors cannot bill for any evaluation of a patient after surgery for 90 days, lest they be prosecuted by Medicare for “double-dipping.”


• Lawyers describe the service rendered and bill for it based solely on the time required to complete the task. Doctors can describe and describe their service until their blue in the face, but unless they add a family history, 12 elements of a review of systems, do 15 back flips and thirty push-ups, they cannot bill a level “5” consult.


• If lawyers do not get paid, they sue you directly. (God help you.) If a doctor does not get paid, doctors either write off the loss or pay for a collection service to hound you or sue you and, if lucky, receive 60% of the amount due.

In summary, lawyers set their own value, guard it carefully, and increase their hourly wage based on reputation, supply, and demand. Doctors, on the other hand, have succumbed to socialist pressures that have prevented a more realistic, capitalist approach to their economics. As such, they have allowed their value to be set for them by others and have watched their market value (and any ability to negotiate their value going forward) to dwindle, irrespective of specialty.

No wonder there’s a doctor shortage looming.

-Wes

Kickback Quandary

Does a $119,000 kickback from a hospital to a referring cardiologist justify the $2.5 million dollar fine the Feds want to impose?

The federal government yesterday filed a civil lawsuit against an Essex County physician, accusing him of participating in an illegal kickback scheme at the University of Medicine and Dentistry of New Jersey, which has already led to the criminal convictions of two other doctors.

According to the suit filed by the U.S. Attorney's Office, cardiologist Atul Prakash of Cedar Grove violated federal Medicare statutes, committed fraud and submitted false statements by illegally referring more than 30 patients to UMDNJ's University Hospital in Newark in return for $119,000 in payments.

The suit seeks triple reimburse ment of Prakash's salary as well as financial penalties that could exceed $2.5 million.

"There are still others who engaged in the same conduct, and we will use both criminal and civil remedies as needed to achieve justice and the return of money received by fraud," U.S. Attorney Christopher Christie said.

I guess it's justified in the government's eyes if they want to pay for even more investigations.

This issue of "self-referral" is a murky one. If payments for referrals is illegal, then why isn't the profit-sharing amongst members of the same large multi-specialty medical group who refer to each other considered a form of kickback? No, this is okay. But when a separate entity like a hospital dares to "profit-share" in return for referrals, it's illegal.

I guess multiple standards can be imposed when the government needs money.

-Wes

Tabled

With no love lost between the two Democratic presidential candidates about health care mandates and such, so much for making patient safety the centerpiece of medical liability reform, huh?

Seems this "critical legislation" hasn't gone anywhere since 9/28/2005.

I guess this NEJM piece was nice window dressing - especially when we review the legal professions' contributions to the democratic candidates...

Sorry. It's just NOT about the patients, is it?

-Wes

Doctors vs. Lawyers - Update

After seeing the article in the New York Times this morning about which party is being supported by the healthcare sector, I thought it would be interesting to update a prior post and see how the campaign finances are shaping up between lawyers and doctors. (You can check out your favorite donors, too, at the Chicago Tribune's Campaign Presidential Campaign Contributions site.)

Here's the standings:

Under the occupations of "Attorney" or "Lawyer:"
Attorney - 34,306 contributions totalling $32,392,344.51
Lawyer - 2,682 contributions totalling $2,443,718.47
TOTAL: 36,988 contribution totalling $34,836,062.98

Under the occupations of "Physician" or "Doctor:"
Physician - 6,384 contributions totalling $4,204,323.07
Doctor - 440 contributions totalling 407,580.84
TOTAL: 6824 contributions totalling $4,611,903.91

Physicians are losing at a ratio of 7.5 to 1! Common guys, let's get on it!

-Wes

Why Doctors Should Sue Their Patients

“Maybe doctors could get the Democrats to like them if they started suing their patients.”
-Ann Coulter

Imagine the possibilities:

A patient gets sick at 2AM, and a call to the physician's home deprives him of much-needed sleep, causing him to have a car accident as he drives to the hospital – clearly the patient should get sick during regular business hours.

A physician spills hot coffee on himself and suffers second-degree burns as he tries to stay awake treating the ill patient – clearly it was the patient’s fault.

A patient develops renal insufficiency while taking either an ACE inhibitor or an angiotensin receptor blocker (ARB), thereby destroying the physician’s perfect record of providing appropriate therapy for left ventricular systolic dysfunction thereby negatively affecting his PQRI Measurement Score - leading to lost revenues.

A doctor inserts an emergency intravenous catheter into a car crash victim and the woman dies. Because the doctor was one of a number of physicians named in a medical malpractice suit alleging that he should have "appreciate[d] the signs and symptoms of hypovolemic shock and internal bleeding" and that he should have "surgically repair[ed] the bleeding" be must now list the filing anytime he applies for medical liability insurance for the rest of his career - how much damage is that?

* * *
If this seems repugnant to you, consider how adverse the climate is for doctors facing these exposures every day. Even for the best doctors and the best hospitals, aspects of healthcare are an inherently unpredictable, uncontrollable enterprise.

If it seems absurd to insert the legal profession into defending doctors, perhaps it is equally absurd to invite the legal profession into any aspect of the doctor-patient relationship.

-Wes

h/t: KevinMD.

Boston Scientific’s Legal Paperwork Payoff

It’s enough to make you sick. The Attorney Generals from 35 states, seizing on the vulnerable, sue Boston Scientific because they smell blood, pay themselves instead of patients, and feel virtous.

They claim it’s because Boston Scientific didn’t tell their state’s constituents about defective defibrillators. Well, duh. A few doctors brought the story to the New York Times in 2005. Guidant had to fess up. And they had to pay at least $195 million for their sins.

But that wasn’t enough. Especially when your legal department is in need of much-needed cash. And lawyers know a bleeding cash cow when they see it. It seems Illinois was one such money-grubbing state:

As part of the settlement, Illinois Attorney General Lisa Madigan said Boston Scientific subsidiary Guidant Corp. has agreed to put in place safety programs and do first-ever public reporting of problems in the devices Guidant manufacturers.

The settlement would resolve a lawsuit Madigan filed Thursday in Sangamon County Circuit Court. She has asked Circuit Judge Patrick Londrigan to approve a proposed consent decree.

Fact: such a reporting system already exists. Additional monies are not required for this.

But it’s interesting to see where Illinois’ share of the $16.75 million payout by Boston Scientific will go:

The $605,000 for Illinois will reimburse the attorney general's office for costs associated with the investigation, said Debbie Hagan, chief of Madigan's consumer-protection division.

You don’t say? Not to the patients?

But Hagan said the settlement is most important because it establishes public reporting of defects and other safety measures - including an independent patient-safety advisory board - affecting one of the world's largest makers of implanted defibrillators.

"This is what we think is going to move the market along," she said. "We have brought physicians and the public into watching this process."

But Missouri’s press release tells the real story: that of the $16.75 million paid out to 35 states, only $1 million will go toward helping a few patients with reimbursement costs beyond the already-negotiated $2500 reimbursement amount:

Under the settlement with the Attorneys General, the warranty program will be extended for an additional six months, and the states will use up to $1 million from Guidant to reimburse warranty participants for expenses beyond $2,500.

So in reality, $15.75 million of Boston Scientific’s payout is for the lawyers’ time for their paperwork to submit the suit – a “pay us or we’ll sue even more” settlement, I guess. And the patients and the public get little in return above what has already been established. Given how little is returned to the patients affected, our legal system should be embarrassed instead of gloating about their achievements in press releases.

But at least our patients can expect higher prices for future defibrillator models to offset these predatory suits.

It seems Illinois’ Ms. Hagan and our Attorneys General are helping themselves and the legal market much more than their constituents or our health care system.

-Wes

Image credit.

Doctors vs. Lawyers - Part II

This is interesting. The Chicago Tribune has a site to check on campaign contribitions to the 2007 Presidential Campaign.

I typed in "Doctor" under the Occupation field and got:

254 contributions totaling $255,011.71.

Then I typed in "Lawyer" in the Occupation field and got:

1,489 contribtions totaling $1,653,421.35.

So I wonder whose interests will be attended to first in the political health care debate?

-Wes