At least it used to. More and more doctors are refusing to donate their services, and it’s for one frustrating reason: they can’t get medical-malpractice insurance. Most doctors’ insurers typically won’t issue one-day policy riders for sporting events, and race organizers haven’t stepped up to offer alternative coverage. After the 2008 Ironman World Championships, volunteer medical director Franklin Marcus famously resigned because race organizers had refused to offer coverage.”

I’ve run into this myself, and it can be a really tricky issue. The problem is that this is a place where Good Samaritan laws and “duty” overlap in a way that’s murky at best and damaging at worst.

For those not familiar with this aspect of malpractice law, here’s a ten-second primer. In order to be liable for malpractice, three things need to be present:

1. A duty to treat
2. A breach of that duty (commonly thought of as “standard of care”)
3. A harm resulting from that breach

So when a patient rolls into the ER, as the ER doc who has agreed to be present for emergency cases (or as a surgeon who has agreed to be on call, etc) the duty is implicit. Also, of course, when there is a pre-existing doctor-patient relationship that duty is satisfied. But what of the “man on the street” situations? If I am walking down a street and see someone keel over, I’m under no obligation to render assistance (in most jurisdictions). I have no duty to treat. In theory, that means that I could render aid without any risk of being sued, and in order to encourage physicians to render aid in such situations all 50 states have passed so-called “Good Samaritan laws.” They vary from place to place, but they generally immunize a doctor from malpractice barring recklessness or willful and wanton negligence should they render emergency assistance.

The problem is that this usually only applies when you have no duty to treat. So if I am at a (not at all hypothetically) karate tournament with my dojo and I see a contestant injured, I can provide first aid without fear of malpractice. But if I am asked in advance to be the “tournament doctor” then it becomes a murkier issue, because then I am acting as an agent of the event and its organizers and as such might meet the definition of “duty to treat.” This raises a whole secondary set of concerns — are the facilities and supplies adequate to treat injured contestants, can I pull an athlete who wants to continue, etc. Some locations extend Good Samaritan protections to doctors who act as volunteers without expectation of compensation. Others do not. Most organized athletic events have some sort of liability insurance, but that would probably not cover a physician’s professional liability, and smaller events (say, a recreational kids’ soccer league or a local karate federation) don’t have the resources to get their own med-mal policies.

So this puts the doc in an uncomfortable situation. We want to support the local organizations, whatever they may be, but you have some tough choices to make. You can go “naked,” without insurance, which is not unreasonable in most cases since the actual risk of injury, let alone getting sued is very low in most activities. But for some sports, the risks are higher, and many doctors are too afraid of getting sued to run that sort of risk. So then you are left begging your insurer for a rider allowing you to do this or begging your skeptical partners to make this an underwritten part of the group’s policy. The cost for this sort of coverage is trivial, and in fact some insurers will give it for free, but some insurers and some groups won’t allow it at all. It varies a lot by specialty. Ortho docs, in my experience, tend to be much more invested in local athletics (if nothing else, it’s good business!) so they are more comfortable viewing this as a necessary and reasonable business expense. Pediatricians, too, since there are so many kids’ sports leagues and the serious injury rate is so low. Your mileage may vary.

It was nice to see in the linked article that malpractice coverage is becoming more available (and at a very affordable price of $60 per doc). Hopefully that will become the standard for event liability insurance in the future.

by Shadowfax, MD

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But the physician talk is only sporadic, and generally not too specific. There seems to be an understanding that the physician probably lives nearby and might see the negative comments.

On national forums that focus on assessing physicians, such as RateMDS.com, a rush of comments cascade around-the-clock, reflecting patients’ feelings about their doctors. The statements roll down the Web, with immediacy: The doc was “the best,” (18 minutes ago!); “Very rude,” (14 minutes ago!). The authors are anonymous, but the subjects of their commentary are sometimes identified, albeit only with a last name.

Indeed, physicians see their patients one-on-one, but what happens behind closed doors can quickly become open to debate on the Web, with patients telling all, if they want. That happens in the free market of ideas and conversation. And it’s a reminder that there are some things a physician, or anyone, can’t take too personally.

Then again, when you consider that your professional reputation and livelihood are at stake, you might decide to go to court.

That’s what happened in Virginia when a plastic surgeon took umbrage at an anonymous patient’s online comment on RateMDS.com, criticizing his liposuction and announcing his/her intent to sue the specialist for damages. The patient wrote that the surgeon’s work was supposed to trim him (or her) down, but the targeted spot seemed to worsen after surgery. The patient was not identified as man or woman.

“I paid for Vaser HD and had very little fat around my abdomen,” the patient wrote, according to documents filed in Virginia court. “I just wanted the sculpting look that is advertised.” The patient added, “I paid almost $8K with misc stuff and I see absolutely ‘no results’ and feel that my love handles actually look bigger. Wasted money, bad experience.”

The patient complained, in effect, that the physician’s work did not live up to his/her expectations. Next to the patient’s comment is a drawing of a frowning face, the court documents state. Another of the plastic surgeon’s patients also was displeased with his work, writing, “run from him.” But another declares, “I am thrilled with new body,” the court records state.

Despite the mixed comments, the plastic surgeon, Armand Soto, of Orlando, Fla., apparently felt the tone of the criticism went too far. Last year, he filed a complaint in Henrico County Court in Virginia against 10 “John Does,” whom he contended made comments on RateMDs.com that constituted defamation, “tortious interference” with contract rights, and business expectations. The “love handles” commentator was allegedly among the John Does.

So how much should a physician react to public, anonymous criticism, and how far should he or she go in self-defense? After all, there is a First Amendment guaranteeing freedom of speech, but how much criticism touches on one’s work, and practice, especially from a patient who makes the complaint anonymously?

“Obviously, online forums create lots of interest on both sides,” David Muraskin, an attorney who is in the litigation group of Public Citizen, the Washington D.C. based public interest group, which has opposed the physician’s lawsuit, told HealthLeaders Media.

“With the perceptions of the public, certain things may cross the line as to what is acceptable or not.” In this case, however, the physician has no grounds for defamation litigation against the unnamed commentators, Muraskin says. The litigation becomes a “weapon of retaliation and clearly these were nondefamatory remarks protected by the First Amendment,” he adds. The legal action’s intent is to prevent someone from speaking out the next time, “dissuading future speech.”

In the legal papers, Soto’s attorney claims that the patients who posted negative comments online conspired to injure Soto’s trade, business, and reputation. Soto seeks $49,000 in compensatory damages, among other relief.

Neither Soto nor his attorney would comment for this story. The court papers say he describes himself as running a “premier” surgery practice and facility. His Web site says he’s “known for his precision and expertise in performing a wide variety of procedures for patients.”

The doctor’s site lists testimonials from pleased patients, with one saying, “I just want to take a moment to let you know how thrilled I am and have been about all aspects of my experience as a patient under your care. Your warm, personable manner put me immediately at ease and nurtured a comfortable rapport.”

A major concern of Public Citizen, in the view of its lawyers, is that Soto is taking steps in court to try to identify at least one of the anonymous commentators.

Soto’s attorney prepared a subpoena directed to Comcast of Georgia/Virginia to release the identity of the individual associated with the particular IP address that was in use on Sept. 15, 2011 at 8:48 p.m., in a motion opposed by Public Citizen and the ACLU.

Soto’s lawyer, Domingo Rivera, is familiar with these kinds of cases.

He filed a similar suit on behalf of a California doctor who apparently disputed comments made about her practice, according to Public Citizen. Once again, Public Citizen represented an anonymous critic of the physician, and legal action seeking details that could have led to the critic’s identity was dismissed.

Those cases aren’t likely to disappear anytime soon, and will continue—especially with the growing demand for plastic surgery. Vanity and pride issues compete for preeminence between patients and physicians.

If doctors plan to retaliate in court against patients, however, they must be careful to target the right ones. If the doctor in the “love handles” case loses, repercussions are likely. Public Citizen has already filed legal papers against the doctor because the physician’s complaint is not “well grounded,” and wants damages.

By: Joe Cantlupe, for HealthLeaders Media

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A key requirement for ACOs and similar entities is more fully engaging patients in their health-related decisions. Exactly how to achieve that goal is still a bit murky, but the essential component is enabling patients to conduct well-informed discussions with a coordinated team of providers about their health, care options, and medical decisions. The expected consequence is that patients who appreciate the more focused and synchronized approach to their care will make informed decisions that benefit both themselves and the overall population. An additional benefit is that a more engaged patient population serves as another layer of patient safety protection.

Of course, a patient’s motivation to be engaged in her care can be counterbalanced by skepticism if she doesn’t perceive a direct benefit. Friends, family, and the popular media may influence an attitude that patient engagement is just a new tactic for advising everyone to diet and exercise more often. And, even without any external influence, change may engender frustration or distrust for some patients.

For example, decisions regarding what tests are ordered, what consults or referrals are proffered, and what treatment or medications are recommended, may be challenged. Increased access to medical records may introduce unfamiliar terms or information displays that trigger requests for clarification. How you answer your patients’ questions will be a key aspect of their attitudes toward engagement and a healthy physician-patient relationship.

by Jock Hoffman

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Ann Breakenridge, an assistant pharmacy director, needed action immediately. “We have an acute shortage situation,” she told Renee McCarthy, who oversees the lab. “I need somebody to make some midazolam syringes, like yesterday.”

n that recent Tuesday, technicians filled 400 syringes with the anesthetic, enough to last an additional two or three days. The painstaking process took more than four hours.

“And it’s just one drug,” Breakenridge said. “You sit there and you’re like, ‘Wow.’ ”

Shortages of prescription drugs have been a growing concern for the past six years. They nearly tripled from 2005 to 2010 and reached record levels in 2011 as manufacturers ceased operations or ran into production problems. The Food and Drug Administration has been scrambling to respond, helping firms resume production more quickly and approving emergency imports of supplies. Recent approvals of new suppliers helped ease shortages of two crucial cancer drugs.

In some cases, lifesaving treatments have been delayed, sending patients on desperate searches for needed medicines, doctors say. Shortages have also caused injuries from mistakes and at least 15 deaths around the country since mid-2011, according to the Institute for Safe Medication Practices, a nonprofit that tracks medication errors. The mistakes included confusion about dosing and preparation of substitutes.

Shortfalls are so common that pharmacy staffers at hospitals are spending many extra hours to ensure an uninterrupted flow of medicine to cancer patients, victims of heart attacks and accidents, and a host of other ill people.

“It’s very, very time-consuming, and it involves a lot of people,” Breakenridge said, referring to the multiple steps needed to manage each shortage. “It impacts operations tremendously. And it’s just to try to make sure that the patient comes in and everything is seamless for them.”

More than 210 drugs are in short supply or totally unavailable, according to Bona Benjamin of the American Society of Health-System Pharmacists. The majority are generic injectable medications widely used in hospitals, including drugs used to relieve pain, fight cancer or infections, anesthetize surgical patients, treat cardiovascular disease, and manage psychiatric conditions.

Critical intravenous nutritional supplements and drugs for controlling attention-deficit hyperactivity disorder are also hard to find, according to the pharmacists group.

Most hospitals rarely get advance notice of the shortages, explanations of what caused them or estimates of how long they will last. So pharmacists scramble. They repackage higher concentrations into smaller doses. They find substitutes, which can often be more expensive. They ration drugs.

Pharmacists spend an average of eight to nine hours a week addressing drug shortages, compared with three hours a week in 2004, according to an industry estimate.

Last year, nearly half of hospitals reported experiencing a drug shortage on a daily basis, according to a survey of 820 hospitals by the American Hospital Association. About 82 percent of hospitals said they delayed treatment because of a shortage, and 35 percent of hospitals said patients experienced “adverse outcomes.” The survey did not categorize those outcomes, a spokeswoman said.

Lost in this debate are the patients.

If you were a patient harmed by a medical mistake, the current malpractice system did not serve you well. According to a New England Journal of Medicine study, nearly one in six cases that involved legitimate medical error received no payment. And for those that did, 54 cents out of every dollar went to pay administrative and attorney fees. Worse, patients had to wait a long time before receiving any compensation, prolonging the stress and emotional trauma typically associated with a malpractice suit. In New Hampshire, the average case took almost four years to resolve.

The adversarial nature of a malpractice lawsuit also does little to improve patient safety. Ideally, doctors and hospitals should openly discuss and learn from these mistakes so they won’t be repeated. However, the current system revolves around an intimidating legal environment that promotes a culture of fear and secrecy. Many malpractice insurers, for instance, tell doctors not to talk to injured patients.

On March 28, 2012, the New Hampshire Senate passed Senate Bill 406, which will establish an “early offer” program that expediently compensates injured patients. The bill’s status is now pending in the House.

Under Senate Bill 406, instead of having to wait years without guarantee of any payment, patients can choose to enter a settlement with their medical provider. Medical costs and lost wages would be covered, along with damages for pain and suffering, ranging from $1,700 for minor injuries to $117,000 for grave harm. If there is agreement among the parties, payment is made and the process is over within months, sparing patients from the uncertainty and stress of malpractice ordeals that formally could take years to resolve.

It should be emphasized that participation in this program will be purely voluntary. The option to pursue a malpractice case through a traditional lawsuit will still remain.

Consider the voice of Nan Stearns of Amherst, NH, an elderly patient who had to have her hip replaced in 1995 because of a medical mistake. Her malpractice case lasted six years before a settlement was reached.

“If a program like early offer had been available to me back then, I would have used it without question,” Stearns said while testifying at the Legislature in favor of the bill. “It would have sped up the process, given me resolution, and most importantly, would have enabled my husband and me to move on with our lives.”

A quick and more predictable resolution to malpractice cases also helps doctors move and find resolution. Studies show that physicians who are sued not only suffer from depression, burnout, and suicide, they also tend to make more medical mistakes in the future. That affects their patient population since most doctors that endure a lawsuit will continue to practice medicine. Making the malpractice experience less acrimonious, perhaps, can also be a step towards a more open process that can improve patient safety.

Senate Bill 406 has the support of the NH Hospital Association, NH Medical Society, NH Dental Association, and the Business and Industry Association. All patients should support granting those injured by medical mistakes the option to pursue fair compensation in a matter of months, while preserving their right to go to court, as well.

by Kevin Pho, MD

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“Hospitals and health systems have unique benefits management challenges that may be magnified by ACA requirements,” Sullivan Cotter Senior Consultant Michael Gaal said in a statement last week.

Despite the mixed revenue expectations, hospital leaders are moving ahead with aspects of the law, such as enhancing care coordination and developing electronic medical records systems, The Morning Call reported.

The survey also revealed that 42 percent of hospitals and health systems plan to become an accountable care organization, a payment and delivery model promoted in the reform law, while 18 percent plan to organize their employee health plan similar to an ACO model.

Regardless of plans to form ACOs, few hospitals have fully embraced the new model, Lehigh Valley Health Network President and CEO Ronald Swinfard said in the Morning Call article. LVH has established only a pilot ACO because of the expensive and complex rules.

Meanwhile, a report earlier this month by Moody’s Investors Service said that for-profit hospitals would see increasing costs without the ACA. A full or partial repeal of the ACA would limit hospital operators’ revenue growth and profit margins and constrain cash flow, FierceHealthFinance previously reported.

The ABIM partnered with Consumer Reports to create a new campaign called Choosing Wisely and are joined also by collaborators like employers (the National Business Group on Health, the Pacific Business Group on Health), hospital safety (the Leapfrog Group), and labor unions (SEIU).  The mission is simply to have doctors and patients deliver and receive care that is medically necessary, based on evidence, avoids harm, and minimizes duplication.

The real question is – will it work? Will doctors follow what their professional societies recommend?

Though Choosing Wisely is a laudable attempt to make medical care better quality, the truth is doctors won’t likely follow these guidelines from their medical societies. If it was that easy, we would not have this problem! Even today, it is still a challenge for the medical profession to have all doctors wash their hands correctly every patient every time, get immunized routinely against influenza, or even not to prescribe antibiotics for coughs, colds, and bronchitis due to viruses! What is more disturbing is that doing these basic interventions did not impact a doctor’s income. Some on the list of Choosing Wisely, however, will.

Take a look at the recommendations by the American Gastroenterological Association specifically around the need for repeat colonoscopy after a normal one.

Do not repeat colorectal cancer screening (by any method) for 10 years after a high-quality colonoscopy is negative in average-risk individuals.

Yet, if a doctor does fewer colonoscopies, which is the right thing to do, that also means his income will decrease. In the fee for service reimbursement system, doing fewer procedures means fewer things to bill for. As noted in a previous post, a new patient to my practice wanted a repeat colonoscopy 5 years after her prior one because it was recommended by her doctor even though she had no family history and a completely normal test!

Will patients protest if their doctors offer one of the 45 recommended tests, treatments, or procedures highlighted to be avoided? Are they ready for this new world? Perhaps according to the NY Times piece “Do Patients Want More Care or Less”?

“People are more receptive to conversations about medical interventions having both pros and cons” says Dr. [Michael Barry, president of the Informed Medical Decisions Foundation, a nonprofit group that promotes sound medical thinking]. “Traditionally, newer and more aggressive interventions were often assumed to be better.” But there are hints of a shift, he says: “When patients are fully informed, they tend to be more conservative.”… [he] believes patients are ready to hear the message. He cites popular books like “Overtreated,” by Shannon Brownlee, and “Overdiagnosed: Making People Sick in the Pursuit of Health,” by H. Gilbert Welch. These are among a slew of books in recent years written by health experts on the dangers of the “more is better” attitude about health care.

Yet, we should also be skeptical about this perspective. Research has consistently shown that there is no value for an annual physical or check-up, yet how many people still have one “just to be safe?” Although there is a small number of patients who are empowered and question their doctors about the treatment plan, the fact is most patients expect their doctors to make the best choices on their behalf. If a doctor recommends an antibiotic for a sinus infection or suggests a MRI for low back pain, will a patient really say no? In general, it takes a doctor more time and energy to educate a patient on why an antibiotic or MRI isn’t necessary, how an individual’s personal experience is different than those of their friends and family who all got antibiotics and MRIs in the past, and to do so in a caring and compassionate way.

If we expect doctors or patients to bend the health care cost curve this way with more education, better communications, and encouraging patients to talk to their doctors about the appropriateness of care, we will fail.

But increasingly there is a trend I am seeing which will bend the cost curve. Patients are increasingly questioning the need for expensive imaging tests not because they want to only get the right care proven by evidence, but because they have high deductibles and copays that require hundreds of dollars.

This would be good news except now instead of having a conversation and an examination with a doctor to determine if a MRI is needed for back pain, more patients are now simply calling in and asking for a MRI. After all, isn’t talking and touching a patient and the healing aspect of a doctor patient relationship simply antiquated in a time with technology? It is now taking more time and energy to educate a patient why an office visit actually is more valuable than imaging!

If there is hope to make care more affordable and of even higher quality, then it will be because doctors have shouldered this responsibility. Our commitment won’t be the result of our professional organizations rolling out an educational component, or the media highlighting the “waste” in our system, but rather it will be questions each of us will need to answer. Is doing no harm also mean avoiding unnecessary testing? Will we do the right thing even when it is hard? If there should be some optimism, then it should be that the current and next generation of doctors will lead this change.

This spirit and responsibility is best captured by Dr. Bob Wachter, professor and chief of the division of hospital medicine. chief of the medical service at the University of California San Francisco Medical Center, chair-elect for the ABIM and the “father” of the hospitalist movement, in his keynote address to the Society of Hospital Medicine.

“We need to be great team players, but we also need to be great leaders,”

“We need to embrace useful technology, but we can’t be slaves to it … improve systems of care, but welcome personal and group accountability. Strive for a balanced life but remember medicine is more a calling than a job. And think about the patients’ needs before our own. These are core and enduring values even as we move into this new era.”

“We have big targets on us and I think they are appropriate,” said Dr. Wachter. “There are others who should have targets as well, but the main target has to be us. Change is impossible if we don’t embrace change.”

In the end, it will be doctors who can bend the cost curve.

by Davis Liu, MD, KevinMD.com

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In a move likely to alter treatment standards in hospitals and doctors’ offices nationwide, a group of nine medical specialty boards plans to recommend on Wednesday that doctors perform 45 common tests and procedures less often, and to urge patients to question these services if they are offered. Eight other specialty boards are preparing to follow suit with additional lists of procedures their members should perform far less often.

The recommendations represent an unusually frank acknowledgment by physicians that many profitable tests and procedures are performed unnecessarily and may harm patients. By some estimates, unnecessary treatment constitutes one-third of medical spending in the United States.

“Overuse is one of the most serious crises in American medicine,” said Dr. Lawrence Smith, physician-in-chief at North Shore-LIJ Health System and dean of the Hofstra North Shore-LIJ School of Medicine, who was not involved in the initiative. “Many people have thought that the organizations most resistant to this idea would be the specialty organizations, so this is a very powerful message.”

Many previous attempts to rein in unnecessary care have faltered, but guidance coming from respected physician groups is likely to exert more influence than directives from other quarters. But their change of heart also reflects recent changes in the health care marketplace.

Insurers and other payers are seeking to shift more of their financial pain to providers like hospitals and physician practices, and efforts are being made to reduce financial incentives for doctors to run more tests.

The specialty groups are announcing the educational initiative called Choosing Wisely, directed at both patients and physicians, under the auspices of the American Board of Internal Medicine Foundation and in partnership with Consumer Reports.

The list of tests and procedures they advise against includes EKGs done routinely during a physical, even when there is no sign of heart trouble, M.R.I.’s ordered whenever a patient complains of back pain, and antibiotics prescribed for mild sinusitis — all quite common.

The American College of Cardiology is urging heart specialists not to perform routine stress cardiac imaging in asymptomatic patients, and the American College of Radiology is telling radiologists not to run imaging scans on patients suffering from simple headaches. The American Gastroenterological Association is urging its physicians to prescribe the lowest doses of medication needed to control acid reflux disease.

Even oncologists are being urged to cut back on scans for patients with early stage breast and prostate cancers that are not likely to spread, and kidney disease doctors are urged not to start chronic dialysis before having a serious discussion with the patient and family.

Other efforts to limit testing for patients have provoked backlashes. In November 2009, new mammography guidelines issued by the U.S. Preventive Services Task Force advised women to be screened less frequently for breast cancer, stoking fear among patients about increasing government control over personal health care decisions and the rationing of treatment.

“Any information that can help inform medical decisions is good — the concern is when the information starts to be used not just to inform decisions, but by payers to limit decisions that a patient can make,” said Kathryn Nix, health care policy analyst for the Heritage Foundation a conservative research group. “With health care reform, changes in Medicare and the advent of accountable care organizations, there has been a strong push for using this information to limit patients’ ability to make decisions themselves.”

Dr. Christine K. Cassel, president and chief executive officer of the American Board of Internal Medicine Foundation, disagreed, saying the United States can pay for all Americans’ health care needs as long as care is appropriate: “In fact, rationing is not necessary if you just don’t do the things that don’t help.”

Some experts estimate that up to one-third of the $2 trillion of annual health care costs in the United States each year is spent on unnecessary hospitalizations and tests, unproven treatments, ineffective new drugs and medical devices, and futile care at the end of life.

Some of the tests being discouraged — like CT scans for someone who fainted but has no other neurological problems — are largely motivated by concerns over a malpractice lawsuits, experts said. Clear, evidence-based guidelines like the ones to be issued Wednesday will go far both to reassure physicians and to shield them from litigation.

Still, many specialists and patient advocates expressed caution, warning that the directives could be misinterpreted and applied too broadly at the expense of patients.

“These all sound reasonable, but don’t forget that every person you’re looking after is unique,” said Dr. Eric Topol, chief academic officer of Scripps Health, a health system based in San Diego, adding that he worried that the group’s advice would make tailoring care to individual patients harder. “This kind of one-size-fits-all approach can be a real detriment to good care.”

Cancer patients also expressed concern that discouraging the use of experimental treatments could diminish their chances at finding the right drug to quash their disease.

“I was diagnosed with Stage IV breast cancer right out the gate, and I did very well — I was what they call a ‘super responder,’ and now I have no evidence of disease,” said Kristy Larch, a 44-year-old mother of two from Seattle, who was treated with Avastin, a drug that the F.D.A. no longer approves for breast cancer treatment. “Doctors can’t practice good medicine if we tie their hands.”

Many commended the specialty groups for their bold action, saying the initiative could alienate their own members, since doing fewer diagnostic tests and procedures can cut into a physician’s income under fee-for-service payment schemes that pay for each patient encounter separately.

“It’s courageous that these societies are stepping up,” said Dr. John Santa, director of the health ratings center of Consumer Reports. “I am a primary care internist myself, and I’m anticipating running into some of my colleagues who will say, ‘Y’ know, John, we all know we’ve done EKGs that weren’t necessary and bone density tests that weren’t necessary, but, you know, that was a little bit of extra money for us.’ ”

This article has been revised to reflect the following correction:

Correction: April 5, 2012
An article on Wednesday about a move to recommend that doctors curb the use of 45 common and often unnecessary medical tests and procedures misidentified the organization that was issuing the advisory. It is the American Board of Internal Medicine Foundation, an organization that promotes physician professionalism — not the American Board of Internal Medicine, the specialty board with which it is affiliated.
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There is a massive effort under way to empower patients by providing them with better health care information. But do they understand the data? Do they actually use them? It would be a shame if the push for informed “patienthood” became a party to which few patients come.

During a physical exam, the physician started probing a particular area of the patient’s upper chest. Not wanting him to be concerned, the patient advised him that an obvious bruise was the result of a recent mammogram. “That’s not what I’m looking for,” he replied. “What are you looking for?” She asked.

The physician did not reply.

This is supposed to be the Age of the Empowered Patient. Websites of all kinds offer evaluations of hospitals, physicians and other providers. Data reporting — mandatory and voluntary — is producing heaps of information that patients are supposed to use in their health care decisions. Initiatives such as patient-centered care, accountable care organizations, report cards and high-deductible health plans all are designed to make patients more involved in their care, in the hope that having “skin in the game” (financially or otherwise) will lead them to make more rational choices. Shared decision-making by patients and providers together is all the rage among the pundits and theoreticians.

Is It Working?

But how well is all this working in practice?

We are certainly not short of sources of information; Carolyn Clancy, M.D., director of the Agency for Healthcare Research and Quality, estimated last month that there are more than 150 public websites offering data on providers. The U.S. Department of Health & Human Services offers its “Hospital Compare” websites, which report some outcomes data on physicians, hospitals and nursing homes.

However, these are not the easiest sites in the world to use. The opening screen invites you to fill in your postal code and “find” a hospital or physician, which leads one to wonder if it’s a data source or a provider locater. Even if you can figure out how to compare a few hospitals or physicians, the information is pretty vague (“no different from the national average”). But for an unsophisticated user, even this language may be difficult to understand. And is the national average for a given outcome a good benchmark?

The AHRQ also has launched an initiative to improve health literacy and patients’ use of available data, including radio and television spots. Written materials advise patients that “your doctor wants your questions. Doctors know a lot about a lot of things, but they don’t always know everything about you or what is best for you … . That is why they need you to speak up.” Unfortunately, that is not true of all physicians.

The AHRQ also offers a list of 10 questions it suggests patients ask their physicians. They include:

• How many times have you done this procedure?
• Why do I need this treatment?
• Are there any alternatives?
• Which hospital is best for my needs?

Many physicians, especially older ones, might take some of these questions very much amiss — whether they should or not. And the last question ignores the fact that in this age of closed physician panels and PPOs, patients do not necessarily have free choice of clinicians or hospitals. Although Medicare patients have more options, some Medicare Advantage plans limit them.

The Joint Commission has launched its Speak Up initiative, which includes placards for hospitals to display and a variety of materials for patients. The campaign’s advice for patients: “It can be difficult to understand what your doctors and other caregivers are telling you about your care and treatment … . Tell the doctor you do not understand. Ask more questions to help the doctor understand what you need.”

Among the suggested questions:

• “Is there someone who can help you understand your doctor, nurse and other caregivers?
• “Is there someone who can help you understand how to take your medicine?”

One would think that the “someone” would be the physician, nurse or pharmacist involved in the patient’s care.

Nongovernmental Efforts

There is also a plethora of report cards on physicians and hospitals; the data are of varying quality. A Commonwealth Fund study published in the March 2012 Health Affairs (the issue is devoted to public reporting on quality and costs) addressed the pitfalls of this approach: “Publicly available report cards on the quality and cost of physicians and hospitals have proliferated in recent years. While consumers say they value this information, it can be difficult to understand and use and, to date, has had minimal influence on consumers’ choices.”

Participants interviewed for the study identified six factors making public reporting and patient use of health care information difficult, if not impossible:

• lack of consumer readiness and engagement;
• opposition from providers;
• lack of funding;
• political obstacles;
• insufficient data infrastructure;
• inadequacy of current measurement science.

Addressing these problems is not likely to be a walk in the park.

In addition, many insurers’ websites contain some data about providers (if not about insurance in language anyone other than an actuary would comprehend).

And more than a few entities outside of health care have joined the fray, from the list of “America’s best hospitals” published annually in U.S. News & World Report to health care articles (and, sometimes, exposés) in Consumer Reports to evaluations by patients (and others) on Angie’s List. In terms of the latter, of course, objectivity and even fact may go by the wayside. I was disappointed to learn from a television documentary recently that hotels, restaurants and other hospitality services that are rated on TripAdviser often are hyped by public relations firms that are paid to post glowing reviews, or are victimized by competitors who write negative evaluations.

With the democratization that the Internet has created, everyone’s a critic.

And there is a good bit of voluntary reporting of data by hospitals, which tends to be self-congratulatory. There is nothing surprising about this; although we are all glad to crow when we win a contest, few of us are going to post on our websites that we came in last.

How reliable is much of this information? That’s all over the place. Some is rigorously risk-adjusted and scrutinized before it is released, some is raw and unexamined, and a great deal of it is shaded (or falsified) by those who have a stake in the outcome. If it’s difficult for many patients to decipher straightforward information, negotiating the ever-expanding labyrinth of conflicting data on the Web can be impossible.

You Just Don’t Understand

So there is an avalanche of information available. But is it what patients want and need? And how easy is it for patients to get access to what they consider important? Unfortunately, not as much as many people would like.

“Communication breakdowns,” Paul Schyve, M.D., senior adviser to the Joint Commission, said in 2008, “are the most common root cause of health care errors that harm patients.” Too often, that can include breakdowns in communication between patients and providers, not just among providers.

As comedian Joan Rivers has been known to ask, Can we talk? In many instances, not really.

For one thing, in an era of phone menus and websites that seem designed to keep us from communicating with a human being, just trying to get a response from a provider can be a trial.

A colleague of mine, who already was being seen for what could have been a serious condition, had a sudden onset of symptoms that terrified him. He called his physician and reached a recording that told him to leave a message. Over the next two days, he called five times before he was able to reach a human being. And that was because he finally caught someone in the office; his calls were never returned.

A phone menu that answered my call to a physician who was supposed to be treating me told me to leave a message, and that “if the doctor doesn’t call you back, go to the closest emergency room.” That should keep costs down.

Even if you can get through to the physician or hospital, that doesn’t mean that the information you are seeking is available. It can take days for results to be posted, if they ever are. Often, you are told to talk to your physician, who may or may not want to divulge them.

Speaking in Tongues

But let’s say that you are able to get through to the provider and the information you are seeking is available. The question is whether the average patient understands it. That can go double for instructions on taking medications, post-procedure requirements or other physician recommendations.

As Laura Landro wrote in The Wall Street Journal on July 6, 2010, “Nearly nine of 10 adults have difficulty following routine medical advice, largely because it’s often incomprehensible to average people, the Centers for Disease Control and Prevention says. Confused by scientific jargon, doctors’ instructions, and complex medical phrases, patients are more likely to skip necessary medical tests or fail to properly take their medications, the agency says.” She went on to describe several efforts by the federal government and hospitals to demystify the jargon, sometimes through the use of computer software that identifies difficult words and phrases and suggests more comprehensible alternatives.

These challenges often are more trying if the patient’s first language is not English, or if he or she can’t read. I remember, years ago, when the first refugees from the Cambodian auto-genocide began to arrive in the United States. One provider went to a great deal of trouble to translate patient information materials into Khmer — until someone explained that the refugees were illiterate in Khmer as well as English. Most of the people who could read had been killed.

Even those with a good command of English and a decent education can have problems because of poor health literacy. I have learned over the years to read my blood work orders, and I can usually figure them out, but then, I grew up in a pathologist’s family and worked in three hospital labs in earlier times.

We Just Can’t (or Won’t) Tell You

Recently a friend of mine who has spent months dealing with a debilitating condition (the result of medical error, I might add) made what has become a weekly (or even semiweekly) trek to his designated health care facility for yet more blood tests — only to find that the order for the tests had either been lost or had never been posted on the provider’s highly vaunted IT system. The same thing happened to another friend, who showed up for blood work, having been told that the order had been transmitted, only to learn that it had been misplaced. The physician’s office (he refuses to convert to electronic records) had to fax another copy to the hospital while my friend sat and steamed.

And then there was the time when I had a very busy day ahead of me and went to get a relatively simple outpatient procedure. While I waited (of course, they were running late), a nurse wandered in and asked, “Did they tell you that you must stay for an hour and a half after the procedure for observation?” Well, no, they — those unnamed people whose fault it always is — did not tell me.

Too often, providers — and in this case the main offenders are physicians — won’t tell you much. In a recent piece in The New York Times, Michael Kahn, M.D., wrote of asking a friend about the care her mother was receiving in a hospital. She replied, “Well, you can at least have a conversation with her doctor.”

I hope she was counting her lucky stars. I will long remember the time when, as I was explaining to my physician a physiological oddity of mine that I thought he would need to know about when treating me, he turned his back on me, walked out of the room and closed the door behind him. I haven’t seen him since.

Physicians also — self-admittedly — can shade the truth or don’t tell the whole story when dealing with patients. A 2012 study in the Journal of General Internal Medicine found that although most prostate cancer patients reported that their physicians had discussed treatment alternatives with them, only 10 percent of patients receiving coronary artery stents were given options by their physicians; 77 percent reported that their physicians spoke about the reasons for having a stent, but only 19 percent said that the downside of the procedure was discussed. Only 16 percent were asked about their treatment preferences.

End-of-life discussions are particularly tough for patients and physicians alike. A study published in JAMA in October 2008 revealed that physicians discussed end-of-life care with terminally ill patients only a third of the time. Anthony Lee Black, M.D., speaking of the ethical aspects of such situations, said, “It’s easy — patients ought to know. Talking about prognosis is where the rubber meets the road.” Yet many physicians believe that such frank conversations can crush any vestige of hope, leaving some patients despondent.

On the other hand, a California Health Care Foundation survey published in February of this year found that although 80 percent of patients said they would definitely or probably like to discuss end-of-life wishes with a physician, only 7 percent reported that a physician had spoken with them about it.

The continued silence haunting this issue can have serious negative consequences. In 2010, over the objections of many organized medicine groups, New York state enacted the Palliative Care Information Act, which requires physicians treating terminally ill patients to provide information about prognosis, treatment and care options, pain management, and hospice.

Although the goal of the legislation is laudable, we should all get nervous when politicians start playing doctor.

There is also the tricky area of disclosing medical error to patients, which many physicians are loath to do, for obvious reasons. A 2006 study of physicians in the Archives of Internal Medicine found that when asked how they would disclose mistakes to patients, 56 percent of respondents preferred statements that would describe the adverse event, but not the error that caused it, whereas 42 percent would talk about the error directly.

However, 19 percent of these physicians said they would not volunteer any information about the cause of the mistake, and 63 percent said they would not offer specific information about prevention of future errors. The researchers concluded that physician behavior in these situations was all over the map, and that “disclosure standards and training are necessary.”

A 2009 study, published in Health Affairs in February 2012, found that “approximately one-third of physicians did not completely agree with disclosing serious medical errors to patients; almost one-fifth did not completely agree that physicians should never tell a patient something untrue; and nearly two-fifths did not agree that they should disclose their financial relationships with drug and device companies to patients. Just over one-tenth said they had told patients something untrue in the previous year.” The researchers concluded: “Our findings raise … doubts about whether patient-centered care is broadly possible without more physician endorsement of the core communication principles of openness and honesty with patients.” No kidding.

The Black Holes of Finance and Coverage

And this is not to mention the wonders of provider and insurer billing. There are the explanation-of-benefits notices that can take months to appear. Data on what the hospital billed, what the insurer paid, and what you’re supposed to pay out of your deductible are completely out of sync. Even if you ask for a detailed, itemized bill and actually receive one, it might as well be written in Sanskrit. A physician colleague of mine, who is board-certified in two specialties and is no fool, told me that he has tried for hours to understand his mother-in-law’s hospital bills, and just can’t. “And I’m a doctor,” he griped. Join the club, Doc; I’m a health policy analyst, and much of the time I’m in the same boat.

Speaking of billing, how about that insurance language? Last year, a survey conducted for Aetna found that 32 percent of respondents had difficulty understanding the total cost of a health plan (including out-of-pocket costs), and 30 percent did not know the difference between types of plans.

Marilyn Tavenner, acting administrator of the Centers for Medicare & Medicaid Services, said recently that many insurance offerings are presented in the form of something “the size of a small phone book, and important information about eligibility and benefits often is buried in the fine print.”

After several scandals in recent years involving insurers playing fast and loose with policyholders who may not have understood what they were signing, the Affordable Care Act mandates that by 2013, insurers must provide a plain-language, four-page summary of every policy. “One of the primary purposes of this is to ensure apples-to-apples comparison across plans,” according to Steve Larsen, an official with Health & Human Services.

The insurers complained, of course. Karen Ignani, president of America’s Health Insurance Plans, lamented, “Health plans and employers regularly update the materials they provide to ensure [that] consumers have clear, user-friendly information about the benefits and costs of their health insurance policies. The [mandate for the short summaries] requires an almost complete overhaul and redesign of how information must be provided to consumers. The short time frame in which to implement this new requirement creates significant administrative challenges that will increase costs and result in duplication, because many plans are already developing materials for employers whose policies take effect October 1, 2012.”

Or maybe some insurers preferred it when potential policyholders were left completely in the dark by the fine print and inscrutable language.

A Sense of Trepidation

This sea change in the use of information in health care — if it is indeed one, and I am not yet totally convinced — naturally makes many providers and insurers nervous. For physicians and hospitals, the specter of plaintiff’s attorneys going on fishing expeditions, or the uncovering of incidents of true malpractice, is not likely to make their day. There is also the danger that some patients could use the information to go doctor-shopping in search of prescription drugs to abuse or a physician who will provide a service that other physicians think is unnecessary.

Providers also argue, with some justification, that some of these data are not properly risk-adjusted nor take key factors into consideration. (I am reminded of the hospital that, years ago, when the feds were releasing pretty raw mortality rates, showed a huge increase in its death rate. It explained that it had opened a hospice unit.) As the Commonwealth Fund study cited earlier found, many experts believe that the sciences of risk adjustment and measurement of outcomes are still evolving and are not yet where they need to be. And in some cases, such as Angie’s List evaluations, there is little or no attempt to confound someone’s personal opinion with facts.

In irresponsible hands, data can be used to prove just about anything.

But, it also must be said that at its heart, this tussle over who has or should have access to information is also a power struggle. Many practicing physicians were trained in those heady days when physicians were gods and no one questioned them, and some of them have never gotten over that feeling of power. Using medical jargon, refusing to explain things to patients, and brushing aside questions or concerns — these are all power behaviors. And it is hardly shocking that professionals who are used to wielding unquestioned power may not be thrilled to see it eroded.

But I also know that when physicians treating me realize that I am familiar with many clinical terms and often know something about what might be ailing me, and that I am going to offer my opinions and expect that they will be respected, the power-mongering tends to diminish.

Furthermore, in some cases there may be gender issues sneaking around in the background. I was complaining to a friend about my views not being taken seriously by a physician, and she replied, “They think all women are idiots.” Bit of an overstatement, granted, but sometimes one can feel that way.

A friend of mine — educated, a whiz at finance and skilled in many ways — asked her husband’s cardiologist about his test results. The cardiologist replied, “Oh, you wouldn’t understand them.” My friend glared at her (the cardiologist was a woman) and snarled, “Try me.”

Gender is always a sensitive topic in health care, and as the above story indicates, it is not necessarily cut along the lines of male physician-female patient although, for a very long time, that was the demographic profile. Indeed, as late as 1970, only 5 percent of U.S. physicians were women. But many studies have found that women patients are often treated differently — and often are patronized — by physicians of either gender who don’t take them or their complaints as seriously as those of male patients. That is a troubling and inappropriate power relationship in and of itself.

Also, part of this is generational. A physician who is now in his early 60s studied and trained in an environment strikingly different from that of many medical students and residents today. There is much more emphasis now on listening, hearing the patient out, explaining things, and generally trying to create more of a partnership and less of an unequal power relationship.

Whatever You Say, Doc

But it is unfair to place all the blame on physicians; patients often contribute to these problematic situations. Although I detest the term compliant in the context of health care, the fact is that many patients will do whatever they are told, without question. One reason, especially for older patients, is that they’re used to the absolute power of the physician; it’s a learned behavior. Another reason is that many patients have an inherent respect for authority, and anyone who has knowledge that you don’t have can be seen as an authority figure.

And most patients harbor a desire — even if sometimes it’s more of a desperate hope — to trust their physicians, nurses, pharmacists and hospitals.

The problem here is that passive patients can create a sort of medical Stockholm syndrome in which they, like the Swedish hostages in the 1973 bank standoff who came to relate to the robbers who were holding them, are willing to put up with abuse because of a fear that the alternative may be worse. These patients would never ask questions or doubt a physician’s judgment. This can be extremely frustrating for physicians who really would like to have an open, mutually respectful relationship with patients.

Equally frustrating for physicians is the fact that patients don’t always divulge everything or tell the truth, either. “Yes, Doc, I stopped drinking” (except for those three martinis last night). “Yes, I’m watching my salt intake” (that buttered popcorn at the movie doesn’t really count). “Yes, I really am exercising more” (I walk around the couch once before I settle down with the remote for a long afternoon of watching football). Sometimes the patient is seeking to please the physician, sometimes he or she doesn’t want to be scolded and sometimes he or she is embarrassed by not having done what was expected.

Failure to convey information can occur on either side of the patient-physician relationship, and it can thwart good patient care.

What I find hilarious — and here’s hoping that electronic medical and health records will make this a thing of the past — is the amount of information that patients must supply to providers — over and over and over again. Who among us has not faced the Dreaded Clipboard, on which we must record height, weight, medical history, medications being used and other data every time we set foot in a hospital or physician’s office? After being asked for the same information for the eighth time — I kid you not — I finally blurted out, “Haven’t you folks ever heard of computers?”

“Our information is computerized, but we want to make sure that your insurance status hasn’t changed.” Since last week?

If You Provide the Tools, Maybe They Will Come

Despite all this, there is major change on the horizon, and some of it is barreling toward us with a vengeance. How can we ensure that it makes things better? Here are a few suggestions:

• Try to allay fears all around; change is difficult for most people, and change of this magnitude can be downright scary.
• Address the six obstacles to effective public reporting and use of data that were identified by the Commonwealth study, even if that will be difficult.
• Understand that success will require culture change, which isn’t easy and doesn’t happen overnight; in some cases, the culture won’t change until those clinging to it leave the scene.
• Recognize and try to address underlying issues, such as shifting power relationships, gender friction and patient passivity.
• Increase health literacy; even smart people may not be able to fathom complex clinical language.
• Improve the quality, understandability and reliability of information; people won’t use what they don’t trust.
• Be selective about what is made available, so that patients and providers are not overwhelmed by too much information, much of it superfluous or conflicting.
• Monitor to see if use of information actually changes anything — if it doesn’t, why are we going to all this trouble and expense?

That last point is critical. Another study in the March 2012 issue of Health Affairs found that publishing data on heart attack and pneumonia outcomes on the hospitalcompare.hhs.gov website did not reduce mortality rates for those conditions. A modest improvement was shown for heart failure, but the researchers could not ascribe that to the publishing of outcomes data. The lead researcher, Andrew M. Ryan, assistant professor of public health at Weill Cornell Medical College, concluded, “The jury’s still out on Medicare’s effort to improve hospital quality of care by posting death rates and other metrics on a public website.”

Yet, a study in the same issue of Health Affairs found that if information is presented to patients in an easy-to-understand way, using elements such as dollar signs, stars, specific dollar amounts and simple labels, patients were more likely to select a hospital considered to be a high-value provider — especially if a check mark indicated that the hospital was one (however that might be defined).

So there is hope yet.

Steve Wetzell, vice president for health initiatives at the HR Policy Association, said at a 2009 conference, “If you or a family member were diagnosed with cancer today, would you have any real data to make a decision on which treatment to pursue or where to go? No. So we talk about consumerism, but consumers don’t have the tools. It just won’t work without the tools.” Maybe that is finally changing.

A Matter of Trust

At the root of this entire debate is something very precious: patient and public trust in providers in an age when distrust seems to be the order of the day. Jessie Gruman, president of the Center for Advancing Health, wrote in an editorial in 2009, “Reports rating the quality of care offered by different hospitals, health plans and physicians provide statistics to inform our choices but vary widely in reliability and relevance. Combine these with an active press, a 24-hour news cycle, the proliferation of watchdog groups, and commercial interests that manipulate scientific claims to support their aims. The result is a media environment infused with messages that tell us that our every action increases our health risks, that science is uncertain, and that health care professionals and institutions are not living up to their obligations.

“This loss of trust is deeply disruptive. It leads us to devalue the professional opinions of our doctors, nurses and pharmacists and become skeptical about their recommendations. We begin to regard all information as equal; scientific claims bear the same weight as commercial claims and are regarded with suspicion or naive enthusiasm, depending on what suits our fancy. We can no longer sort the wheat from the chaff.”

Although that is a possible outcome of the tidal wave of information and reporting requirements washing over patients and providers alike, it is hardly what any of us would want to see.

But something is most certainly happening. Writing about the lessons of repeated cholera epidemics in the United States in the 19th century, historian Charles E. Rosenberg chronicled the shift in public perception of physicians from disdaining them to holding them almost in awe — and described how the socially disruptive 1960s and 1970s changed the equation again. “Medical and biological ideas have been seen as an important source of legitimation for existing power relationships — and thus a component in particular systems of social control.” As latter-day consumerism, skepticism and even open revolt reshaped society in the late 20th century, he observed, “The undeniable linkage between social authority and the control of specialized knowledge implied a reassessment of that linkage, its social consequences, and even the legitimacy of those privileged bodies of esoteric knowledge” (Rosenberg, The Cholera Years, University of Chicago Press, second edition, 1987).

Such a reassessment is beginning to take hold in American health care, and if we can nudge it in a positive direction, the day of the truly empowered patient finally may arrive.

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Fitch’s rating actions consider the solid capital position of PRA’s operating
subsidiaries, as well as their consistent profitability, financial and operating
flexibility, and experienced management team. Partially offsetting these
positives is the potential volatility the company is exposed to as a monoline
company that operates in one of the industry’s most unpredictable lines of
business.

PRA reported a calendar year GAAP combined ratio of 52.5% for full year 2011 a
15.5 percentage point improvement over the comparable period in 2010. Calendar
year combined ratios for the past five years have been helped by large favorable
loss reserve development. While favorable reserve development typically
indicates reserve strength it can mask deterioration in current calendar year
underwriting results. On an accident year basis the company reported a 110.9%
combined ratio a small deterioration relative to the 109.5% reported in 2010.

Fitch views PRA’s loss reserve position as adequate and notes that the company
has a history of favorable prior accident year reserve development. The $326
million of favorable reserve development reported for full year 2011 primarily
related to accident years 2004 through 2008.

As of Dec. 31, 2011 the company had a very low debt-to-tangible capital ratio of
less than 3% and earnings based interest coverage of greater than 118 times (x)
for full year 2011. Fitch’s longer-term rating expectations incorporate a view
that PRA will increase financial leverage.

Within Fitch’s rating rationale are multiple rating triggers. If PRA were to
materially deviate from any of these items, especially for an extended period,
the ratings could be affected.

Fitch believes that a ratings upgrade in the near term is less likely given the
company’s narrow product focus in a highly volatile line of business.

The following is a list of triggers that could lead to a downgrade:
–An increase in the company’s operating leverage, as defined by net written
premiums to policyholder surplus, of 1.0x or higher.
–An increase in tangible financial leverage above 25% or decline in operating
earnings-based coverage below 7x.
–Material adverse reserve development.
–Failure to maintain pricing discipline in a softening rate environment.

Fitch affirmed the following ratings with a Stable Outlook:

ProAssurance Corporation
–IDR at ‘BBB+’.

Fitch has affirmed the ‘A’ IFS rating of the following companies with a Stable
Outlook:

–ProAssurance Indemnity Company, Inc.
–ProAssurance Casualty Company
–ProAssurance National Capital Insurance Company
–ProAssurance Specialty Insurance Company
–Podiatry Insurance Company of America;
–PACO Assurance Company, Inc.

Fitch has withdrawn the rating on the following entity as it no longer exists:
–ProAssurance Wisconsin Insurance Company

Additional information is available at ‘www.fitchratings.com’. The ratings above
were solicited by, or on behalf of, the issuer, and therefore, Fitch has been
compensated for the provision of the ratings.

Applicable Criteria and Related Research:
–’Insurance Rating Methodology’ (Sep. 22, 2011)

Applicable Criteria and Related Research:
Insurance Rating Methodology

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