An Open Letter to Sanjay Gupta and America

Dear Dr. Gupta and Everyone,

 Why do some doctors order unnecessary tests? (I know PopTort fans, you’re probably thinking “Unnecessary tests?  I can’t get my HMO to cover tests that I actually need.”  Whatever.)  I know this question is on your mind, Dr. Gupta.  Just last week, you lamented in a New York Times op ed, “It is a given that American doctors perform a staggering number of tests and procedures, far more than in other industrialized nations, and far more than we used to.”  You say that many of these tests are unnecessary because they are “meant less to protect the patient than to protect the doctor or hospital against potential lawsuits."  Your theory is supported by one survey of orthopedic surgeons, who claimed that "24 percent of the tests they ordered were medically unnecessary."

It being Olympic summer and all, I thought it might be a good idea to add up the points on both sides of this debate and see who’s winning.  Here’s the question, as best put by Dr. Fred Hyde, Clinical Professor in the Department of Health Policy and Management at Columbia University’s Mailman School of Public Health:

“In contravention of good medical judgment, the basic rules of Medicare (payment only for services that are medically necessary), threats of the potential for False Claim Act (prescribing, referring, where medically unnecessary), physicians will, as a group, act in ways which are possibly contrary to the interests of their patients, certainly contrary to reimbursement and related rules, under a theory that [1.] excessive or unnecessary prescribing and referring will insulate them from medical liability,” (i.e., “defensive medicine”), or 2. they make more money by prescribing more tests thanks to “fee-for-service” medicine, which underlies our entire health care system.

First up, the “defensive medicine” side.

Let’s discuss the “survey of orthopedic surgeons cited by you, Dr. Gupta.  This was a “survey” of 56 (according to American Academy of Orthopaedic Surgeons’ on-line summary of presentations) or 72 (according to the Academy’s news release) Pennsylvania orthopedic surgeons presented at the Academy’s annual meeting in San Diego on February 16, 2011.  The Center for Justice & Democracy requested Dr. Hyde to review this study and here’s what he found:

• In searching for the actual paper containing these findings, it turns out that there is no paper, much less one peer reviewed prior to publication.  Instead, this was a podium presentation by a medical student, accompanied by a faculty supervisor.
• The methodology, according to news and public relations reports, was this: to ask the ordering doctor whether or not he or she was ordering a test for reasons having to do with “defensive medicine.” However, the moderator of the presentation suggested other possible explanations for tests.   He noted, for example, that MRIs and other imaging studies are frequently ordered “unnecessarily” for reasons other than malpractice avoidance. 
• No mention was made of the potential for fraudulent billing if the MRI studies ordered were not for the benefit of the patient.  So here’s the question:  Were the physicians really uninterested in the results of the MRI tests, and willing to risk sanction?  Or did they “check the box” to “show support” without realizing that it might indicate a potentially fraudulent act? 

We can guess.  In fact, there are no “studies” of defensive medicine that do not almost entirely rely on anonymous physician “surveys” to establish its widespread existence.  This is true even for studies that try to put dollar figures on the health care costs involved.  That includes the Congressional’ Budget Office, which found a paltry reduction in “defensive medicine" - totally 0.3% in overall health care costs - should the nation enact a panoply of Draconian “tort reform” measures.”

These physician “surveys” are usually conceived by organized medicine lobbying for “tort reform.” In 2003, the General Accountability Office condemned their use as extremely unreliable. The GAO also noted that “some officials pointed out that factors besides defensive medicine concerns also explain differing utilization rates of diagnostic and other procedures. For example, a Montana hospital association official said that revenue-enhancing motives can encourage the utilization of certain types of diagnostic tests, while officials from Minnesota and California medical associations identified managed care as a factor that can mitigate defensive practices.”  Moreover, “According to some research, managed care provides a financial incentive not to offer treatments that are unlikely to have medical benefit.” 

So, I don’t know what you’d score the “defensive medicine” side of the argument.  Let’s be generous and give them a 1.

Next up - the profit motive side. 

Perhaps today’s front-page, 3,000-word article, New York Times article, “Hospital Chain Inquiry Cited Unnecessary Cardiac Work,” says it all. 

It all started with a complaint by a caring nurse to “chief ethics officer of the hospital giant HCA,” about cardiologists who were “performing heart procedures on patients who did not need them, putting their lives at risk.”  Found the Times:

[T]he nurse’s complaint was far from the only evidence that unnecessary — even dangerous — procedures were taking place at some HCA hospitals, driving up costs and increasing profits.

HCA, the largest for-profit hospital chain in the United States with 163 facilities, had uncovered evidence as far back as 2002 and as recently as late 2010 showing that some cardiologists at several of its hospitals in Florida were unable to justify many of the procedures they were performing. … In some cases, the doctors made misleading statements in medical records that made it appear the procedures were necessary, according to internal reports. …

[T]he documents suggest that the problems at HCA went beyond a rogue doctor or two.…

Cardiology is a lucrative business for HCA, and the profits from testing and performing heart surgeries played a critical role in the company’s bottom line in recent years.

What’s more,

In a recent statement, HCA declined to provide evidence that it had alerted Medicare, state Medicaid or private insurers of its findings, or reimbursed them for any of the procedures that the company later deemed unnecessary, as required by law. … HCA also declined to show that it had ever notified patients, who might have been entitled to compensation from the hospital for any harm.  Some doctors accused in the reviews of performing unnecessary procedures are still practicing at HCA hospitals.

The Times also notes that HCA has had a history of committing Medicare fraud, already paying the Justice Department over $1 billion in fines and repayments. 

That physicians profit by prescribing tests should be nothing new to regular PopTort readers (see,e.g., here, here, here).  Nor should the fact that real academic studies demonstrate the utter failure of “tort reform” measures to have any impact whatsoever on doctors’ testing behavior.  Nor should the fact that when physicians decide to be honest about it, they admit that eliminating the risk of lawsuits has no impact whatsoever on their testing behavior.  Nor should the fact that when cornered at congressional hearings about whether they are actually billing Medicare and Medicaid for supposedly unnecessary “defensive medicine” tests, they stumble into an embarrassing heap of denial.   (See video below)

So, profit motive?  We'll give it a perfect 10.

And that will do it for us this summer, PopTort fans.  We’ll be back after Labor Day, but hopefully today’s extra long post will provide you with a lasting summer treat to get you through the dog days of August.  And Sanjay Gupta, please pay attention.  You’re almost there.

Comments

[California personal injury lawyers]

love this blog, keep up the awesome work.

[Joe Consumer]

Hi. I will be on vacation until the end of August, 2012 and will not be checking this email. For urgent Center for Justice & Democracy matters, please contact Daniel Albanese, daniel@centerjd.org. Thanks so much and have a great summer. Joanne Doroshow