And now, robotic hernia surgery

First it was prostate removals, then it was hysterectomies, then it was gall bladder removals, and now (tah dah!), Intutive Surgical offers robotic hernia surgery.  Again, another procedure that is already offered at low cost and with excellent results.

Please watch over the coming days as people start to correlate the names of surgeons who have endorsed these "advances" with payments from this company.

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Walking down the aisle

I've often admired the people who work in physical medicine and rehabilitation.  Beyond the technical skills involved, there are often strong relationships built among patients, families, and caregivers.

Here's one example from Alegent Health Immanuel Rehabilitation Center, where a young woman fulfills her dream of walking down the aisle on her wedding day.

Here's more about Gina Giaffoglione, who has a pretty remarkable story.

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Look what happens when the facts are presented

A reader writes:

I thought you would appreciate this overview of a study from the University of Utah on patient decision making when health care costs and outcomes are transparent. 
 
The authors studied the decisions made with regards to laparoscopic versus open appendectomy on pediatric patients when both cost (obviously higher w/ lap) and outcomes (similar w/ peds) were discussed upfront with the parents prior to surgery. Families chose open procedures almost twice as much as compared to the lap approach. 

This would become an even more interesting study to also include a third arm and similar transparent cost/outcomes discussions with da Vinci…that is, if only some hospital would be willing to participate. 

Indeed!  Here are excerpts from the article.

Consumer price comparison is almost nonexistent in the U.S. health care system, but a new study shows that when given the choice between a less costly “open” operation or a pricier laparoscopy for their children’s appendicitis, parents were almost twice as likely to choose the less expensive procedure – when they were aware of the cost difference. The study, published in the September issue of Annals of Surgery online, shows that providing pricing information upfront can influence patient choice of surgical procedures and potentially lead to cost savings in health care, a sector of the economy that accounts for more than 17 percent of the U.S. Gross Domestic Product, says Eric R. Scaife, M.D., senior author, associate professor of surgery and chief of pediatric surgery at the University of Utah (U of U) School of Medicine.

“Unlike other areas of the U.S. economy where it’s typical for people to compare prices before purchasing, health care consumers seldom know what they’ll pay for a procedure, meaning they have no basis for comparing costs,” Scaife says. “But our research found that when they have the information, consumers want to be in on health care decisions and that cost can influence what they choose when procedures are equally effective and have similar outcomes.”

Reasons for choosing the open operation varied among patients who received pricing information, including incision size, number of incisions, past experience and influence from a medical provider outside the surgical team. The most common reason, however, was cost: 31 percent of respondents said price was the primary influence on their choice of procedure.

“Cost-saving measures are important to me when it doesn’t impact the safety of the patient,” one respondent said.

The vast majority of respondents, 90 percent, said they liked having a choice in their health care, while only 3 percent would have preferred not to be given a choice. Lower median-income families were more likely to choose the open procedure than those of higher median incomes, but after accounting for the income difference, patients and parents exposed to the cost information still were 1.7 times more likely to choose the open procedure. Health insurance status appeared to play no role in the procedure choice.

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You can only shake your head and wonder

The Attorney General's 73-page filing with the Court about her (now slightly revised) deal with Partners Healthcare System deserves at least 73 pages of rebuttal, but that isn't going to happen. You see, as noted in Commonwealth Magazine:

The timing of Coakley's response seemed designed to maximize her aggressive response to her critics and minimize pushback. Her aides released the amended deal, the comments on the original deal, and her responses to them at 5 p.m. on Thursday, too late for her critics to respond. If they do respond on Friday, the news will air over the weekend, when fewer people will be paying attention. On Monday, Coakley's agreement with Partners goes to Suffolk Superior Court Judge Janet Saunders for review.

Then, when it gets to Court, there are only three other parties who have a right to be heard:

~Partners Healthcare System;
~South Shore Health and Educational Corporation, which is seeking to be acquired by PHS; and
~Hallmark Health Corporation, which is seeking to be acquired by PHS.

That's right. This is part of a process that has been termed "transparent" by the Attorney General's office:

Step 1: Negotiate and sign a deal with PHS in secret;
Step 2: Present it to the Court;
Step 3: Suggest to the Court that comments should be allowed--but only after the Greater Boston Interfaith Organization put pressure on her to allow those public comments;
Step 4: Revise the deal in a few minor ways, respond to the public comments, and present them to the Court without allowing a chance for rebuttal from other interested parties;
Step 5: Oppose intervention by other parties in the court case.

But it gets worse still.  Just read this paragraph from page 46 of the AG's filing [emphasis added]:

Several comments suggest that the comprehensive price caps do not do enough to reduce the gap between Partners current reimbursement rates and the prices of other health care providers, that is, to combat the “provider price disparity” that has been well documented in Massachusetts (initially by the Attorney General’s Office). This is not an appropriate lens through which to evaluate this remedy. These comments appear to suggest that the UPGC [unit price growth cap, which limits PHS price increase to the lower of general or medical inflation] should cut back on the pricing advantage that they attribute to Partners’ current market position. But the remedies in the proposed Consent Judgment cannot be evaluated compared to claims that the Attorney General did not bring. Rather, the measure of the UPGC is whether it addresses the harms identified in the Complaint. 

This paragraph boggles the mind.  The AG spent several years documenting the fact that Partners' market power is responsible for the substantially higher rates it receives from insurers for the same work done by other academic medical centers, community hospitals, and physicians.  Indeed, she concluded that this disparity has been one of key drivers of health care cost increases in Massachusetts.  She does not suggest in her filing that the UPGC will reduce the disparity--and indeed it will not.* Instead, she argues that this topic is irrelevant to the complaint she initially filed against PHS.

The obvious question is why she never included this aspect of Partners' market power in her complaint and why she did not seek a remedy to it. 

Oh, here's the answer she offers (on page 30 and elsewhere):

If we don't like this deal she has signed, others are free to file an anti-trust lawsuit against PHS.

I thought that was her job.

--
* Remember this summary on Commonhealth [emphasis added]:

But will the deal close the gap between what Brigham and Women’s is paid for that MRI as compared to Beverly Hospital? Only if the low-cost hospitals get some significant rate increases.

If Partners prices rise 2 percent a year, and prices for similar Boston hospitals go up 3.6 percent, the gaps narrow, Boros says.

“Specifically, our 2012 data shows that Brigham and Women’s prices are 24 to 33 percent higher than Beth Israel Deaconess Medical Center and 26 to 59 percent higher than Tufts Medical Center. After six years, these gaps close to 13 to 21 percent higher for BIDMC and 15 to 45 percent higher for Tufts,” Boros said.

Of course that assumes insurers in Massachusetts would offer lower-cost hospitals rate increases that are almost twice as high as Partners, something they have never done before.

And they shouldn’t, says Nancy Kane, who’s been studying hospital financing in Massachusetts for more than 30 years and teaches at the Harvard School of Public Health.

“It doesn’t make the whole more affordable if everybody’s trying to grow their rates,” Kane said. “[The AG's deal] doesn’t address the larger issue of affordability. It’s sort of a Band-Aid at this point.”

Kane says if the state wants real competition among hospitals, it would have to either set rates or force Partners to sell off some of its hospitals.

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Please, no lawyers in youth soccer!

A parent writes to the president of a youth soccer program (names changed):

Thank you again for offering to advocate on behalf of my daughter, Mary, who wishes to comply with her pediatrician's advice not to remove the very small studs with which her ears were pierced this morning.  I've taken the liberty of drafting a legal document that would eliminate any liability that NGS might possibly have in connection with Mary's compliance with her pediatrician's advice. I've been a practicing attorney for over fifteen years; I cut-and-pasted the key language in this document from boilerplate I've used countless times on behalf of a wide variety of clients.  I've attached a signed jpeg version, along with a Word version in case you or anybody else would like to make any revisions.

This is, of course, quite time sensitive.  If at all possible, I'd like to close the loop before Mary's team's next soccer practice, which is scheduled for Friday afternoon.  If you think it would be helpful for me to reach out to anyone else, please let me know. 

Again, thank you very much for trying to help Mary.  She loves playing soccer with her team, and the idea of not being able to play for the rest of the season is causing her the kind of distress that only seven year olds are capable of feeling.  Because we failed to anticipate and prevent this problem, my wife and I feel awful, as well.  If you can help solve this problem, it would mean an enormous amount to my family.

Sorry, but no. My advice to the league president:

Absolutely, absolutely not.  This is a well established rule throughout the state and the league and we should not make exceptions for one girl. We have drilled referees for years to make no exceptions. It puts the referee in a terrible position, and then others will say, "What about me?"  I don't care what kind of legal release the parent is willing to sign.  This is the referee's responsibility, and I wouldn't want any referee, much less a youth referee, forced to make the decision.

The mistake is easily rectified:  New earrings can be removed for and hour and reinserted.  Kids and parents have done it over and over again.  A little ice applied to the ear solves the problem of reinserting, perhaps with some Vaseline if needed or antibiotic if desired.

This stuff about a pediatrician's advice is really silly.

If the family doesn't want to go through the removal and reinsertion, they can simply take the earrings out and have a new hole made in a few weeks.

BTW, this is a time for parents to explain to the seven year old that sometimes, rules are rules, and to say it in a positive manner and not "blame" anyone.  She'll do what they tell her and she'll be happy about it if they handle it the right way.

In summary, this has happened dozens of times in the past, and we all get through it quite easily.

The coach should also enforce the rule during practice, by the way, so it does not even arise at game time.  The referee should not be the first person to mention the problem to the coach at game time.  It should also be solved well before that.

A colleague added, in agreement:

There is a reason for that—athletic, medical, legal, and insurance entities have advised and mandated that we, as referees, are first and foremost responsible for maintaining safety in soccer matches. Soccer leagues, tournaments, and the companies that provide them with liability insurance specify in their rules that no jewelry will be allowed on players—especially children players. Every time a player uses her head to play, or is bumped in the head by another player, or falls to the ground, or has a ball ricochet off her head, she is potentially inches from having the impact point involve her ears.

Anyone interested in safety—a referee, a coach, an administrator, or a parent—should be completely committed to the enforcement of the no jewelry rule.  And even if the latter three groups are not committed, we as referees must, with no exceptions, protect our young players.  I have officiated nearly 2,800 games in 18 years; I have never allowed earrings on girls or boys—taped or otherwise.  Dozens and dozens of times, I have counseled players, coaches, and parents that they can follow the remedies suggested in Paul's note, or they can choose not to play.  I say it gently, politely, and empathetically, but I am always firm.  It is the right thing and the only thing to do with young players, including all high school games.

And another person added:

It really needs to be enforced at all levels. I would occasionally ask folks if they wanted to be sent links to pictures and articles of girls suffering major injuries from playing with earrings, but never got any takers. 

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MED QIPS takes off at Georgetown Medical School

Self-styled as "the first-ever club for patient safety at Georgetown Medical School," MED QIPS is up and running!  Medical Students for Quality Improvement and Patient Safety have set a goal of raising awareness and fostering advocacy for patient safety at the medical school level.  This is an exciting step forward, partially coming out of the students' participation at the Telluride Patient Safety Summer Camp this past year--but really derived from the students' own sense of purpose on these matters.

Some of the organizers are seen in the picture above, from left: Sam McAleese, Elissa Falconer, Natalie Medvedeva, and Brian Daily. Absent are Daliha Aqbal and Jameson Hollomon.

They have three sets of goals:

Learning:  Organize activities to improve medical student understanding of QIPS issues;
Medical Education: Incorporate patient saftey concepts into the medical curriculum; and
Change: Create a patient safety culture of accountability, transparency and mindfulness among medical students.

They are planning film screenings, speakers, research opportunities, and social events.  Get in touch with them by email at MedQIPS [at] gmail [dot] com or visit the Facebook page at GUSOM MedQIPS.

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Wachter and Gibson on overuse

Here's a superb conversation between two of the world's experts, Robert Wachter and Rosemary Gibson, on the following issue: What is the magnitude of overuse in medicine?  And what to do about it.  The depth of their knowledge and understanding is something to behold. This should be required reading for all in the health care world.

The opening [but keep reading!]:

Dr. Robert Wachter, Editor, AHRQ WebM&M: What is the magnitude of overuse in medicine? 
 
Rosemary Gibson: We don't measure the extent of overuse so we don't know its magnitude. I believe it is pervasive.
 
RW: As you look at the pathophysiology of it, are you convinced that financial drivers—which I guess I interpret as being the more you do the more you get paid—are the dominant reason for overuse? What evidence supports that?
 
RG: Yes, financial incentives are the dominant cause of overuse. But other factors contribute to overuse. Uncertainty in medicine drives overuse. A natural proclivity may be to do something in a context of uncertainty. Fear of malpractice suits drives overuse. Beliefs are a factor. Physicians and patients have their beliefs about medicine and its possibilities and limitations.

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Can health care help hire our heroes?

I know we all feel gratitude to the men and women of our armed forces and do our best in helping them re-enter civilian society after their tours of duty.  One leading program along those lines, run by the US Chamber of Commerce Foundation, is called "Hiring Our Heroes."  The program was launched in March 2011 as a nationwide initiative "to help veterans, transitioning service members, and military spouses find meaningful employment opportunities."

It occurs to me that the health care world can offer jobs that might take advantage of the special skills and training of many in the military.  Those of us who have been advocating for an improvement in the team processes and communication in health care often take note of lessons to be learned from military settings.  Crew Resource Management, for example, was invented by the military to deal with high-pressure, cockpit environments where a strict hierarchy of authority is required, but where every member of the team has a responsibility to help ensure the safety of the entire team.  There is a direct parallel with the environment of operating rooms and intensive care units and other settings in hospitals, where a senior physician might be in charge of the "cockpit," but where every member of the team has a responsibility to help avoid harm to patients.

I note that the Chamber's program has a number of corporate sponsors, but I don't see much involvement yet from many health care systems (HCA being the notable exception.)  Perhaps this is an area worthy of attention from hospital leaders, who might thereby help a willing and able workforce of worthy veterans supplement their usual hiring patterns--and in so doing, help infuse systems of team management and communication that can bring benefit to the clinical staff, patients, and families.

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When leaders don't lead

I made note last week of the strange silence from our state's largest insurance company, Blue Cross Blue Shield, with regard to the pending antitrust settlement between the Attorney General and Partners Healthcare System.  The impetus for my column was a strong statement by the state's other insurers that the proposed deal would be bad for the state's health care system and consumers.

But I didn't make it personal.  The Boston Globe's Thomas Farragher has now done so in a column in which he asks the CEO of BCBS why the company has been silent on the issue:

Apparently cured of laryngitis, he got on the phone to explain.

“I’m not trying to be cute, but we’ve been neutral,’’ said Dreyfus, whose company accounts for about half of Partners’ commercial business. “It was our judgment that [Coakley’s office] got the best deal they could. We weren’t going to substitute our judgment for theirs.’’

What Farragher makes clear is that silence is not neutrality.  Silence is assent.  This CEO is sophisticated and thoughtful and understands that point as well as anybody in the state.

Dreyfus is better than the sum of that quote. A group of antitrust experts called flatly for rejection of the settlement. The state’s Health Policy Commission estimates the expansion could smother competition and hike health care spending by $49 million a year. Dreyfus’s competitors, a group of other insurers, have raised red flags, and a coalition of Partners hospital competitors have said the deal will drive up costs.

Andrew Dreyfus is a smart national voice in America’s raging healthcare debate. He’s a sought-after speaker across the country, for good reason. He has held down costs. He’s been a proven leader. But not this time.

We cannot always know what incents people to act in certain ways.  We can, however, judge the import of their decisions. Last week, I put it this way:

[BCBS'] actions over the years and its silence now join it irrevocably with Partners as an advocate for higher health care costs in Massachusetts.

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Encouragement: Please keep sending forth a tiny ripple of hope

Being a patient advocate--trying to change the world or at least your corner of it to make health care safer, higher quality, more transparent, and more patient driven--is hard work.  It can also be lonely work.  It can also be discouraging because the pace of change in this field sometimes feels like watching a race between a snail and a flow of molasses on a cold day.  If you've been through medical errors yourself, or if you have a loved one who was, this can leave you pretty upset and discouraged.

So it has been recently for a gentleman from Sweden.  A mutual friend, Marije Elderenbosch, wrote to ask for help for him:

Torbjörn Hammar has been trying to improve Swedish healthcare for the past four years, as his wife died as a consequence of several medical errors. He wants to eliminate such errors and create more openness in healthcare to help others. Sadly, he now wants to quit, because he feels he is getting nowhere. He got one of Sweden's biggest newspapers to write about his wife and what went wrong, he has one of the biggest trade unions supporting him, Swedish radio interviewed him, but right now he just feels sad and alone.

What he needs is hope, a tiny spark of inspiration, maybe a few pointers, and I was hoping you could help me here. I know you are very busy and I am not even sure what I am asking you exactly, but I refuse to let this wonderful man quit. Can you help me in any way? Tips, ideas, people, whatever.

I shared this call for help with several friends who have been active in the field.  Their comments were eloquent, and with permission from all, I share them with you to share with others who might be feeling the same way as Torbjörn.

E-Patient Dave deBronkart offered this perspective:

Marjie, I'm sorry to hear about his terrible loss, which all of us know about, too well. 

Your email didn't give any idea why he feels sad and alone.  Is he in another understandable wave of grieving?  Did he want some specific change, and it got voted down? 

Or perhaps he's going through something we all know about: the stage of disillusionment people often feel after their first big wave of intense energy is completely spent, and the whole universe has not changed yet.  Then, after a while, you learn that the road it long and that complex systems generally don't change fast. 

This is especially hard to tolerate when you know clearly that there's real human harm from the delays. 

I first learned about this effect around 1982, through a co-worker who was involved in The Hunger Project.  After you see a few children starve to death, and you feel powerless about it, and you bust your ass giving everything you have to stop the problem, it takes some work - and some spiritual transformation - to recommit yourself to the "long haul," the difficult work of learning what it will take to create real change that lasts. 

In the case of the hunger issue, I attended a weekend workshop "Beginner's Guide to Ending Hunger." One of their tips: "Take vacations." (That is, prepare for the long haul.) 

In the case of The Hunger Project, decades of efforts at all kinds of things, from massive UN relief projects to national-leader summits and everything else, ultimately led to learning that what works is very different from top-down:  As this page says (on the right), the "three pillars" are
 *   Gender Equality
 *   Mobilization at a Grassroots Level
 *   Partnership with Local Government
Who would ever have thought that, back in 1980?  President Kennedy had said in 1963 that we have the capacity to end hunger, and all we lacked was the political will.  Well, it turns out complex system problems need to be resolved by discovering what micro changes produce profound effects. 

I mean, who would have thought that gender equality is a key enabler of resolving hunger? 

Personally I believe that something similar will happen in medical safety: empowering patients, in full partnerships with the medical industry, will prove to be a vital component. And that will take time.

In closing: this is a big task he's taken on, it sounds like he's being effective, and he's going to need lots of help.  It may be that he's found a purpose for the rest of his life.

Tracy Granzyk, who works on process improvement at Medstar Health and is a key player in our resident and student education programs at Telluride, said:

I'm so sorry to hear of your friend's loss. Please invite him to connect with all of us and others, fighting the same fight all over the globe. I personally am re-energized each year by "educating the young" at the Telluride Patient Safety Summer Camps, or attending Patient Safety meetings with colleagues, such as the Lucian Leape yearly Forum or IHI and NPSF Conferences and more. There is strength in numbers--and your friend is not alone. Ask him to reach out--via email, Skype or our blog just to have a virtual cup of coffee, if nothing else. 

As Dave mentions so eloquently, this is a long, often frustrating, journey with far more complexities than any one story can tell. We all feel at times we're climbing Everest without oxygen or a sherpa, but then we have a conversation with a friend or colleague equally as passionate, or a resident or medical student who takes on the cause, and we re-commit to press on to support them and other friends/colleagues, so that the terrible loss your friend experienced, as well as others so dear to all of us, will only be due to terrible accidents--not something that could have been prevented. 

I love the reminder and insight that Dave also shared, that it turns out complex system problems need to be resolved by discovering what micro changes produce profound effects. This, in many ways, reiterates what Atul Gawande talks about in a New Yorker article, "Slow Ideas".

What will be the next "micro change" we as a group can create that will have the greatest impact on patient & healthcare professional safety, as well as engagement in new ways by both parties in any healthcare encounter?

I'm still in! And you're right--we can't afford to lose those who also "get it". We need to continue to grow our "square root" of everyone, so that the real change we're talking about can continue to move forward.

Please reassure him that he's not alone -- share this email -- and tell him to reach out!

And finally, Richard Corder, who works at CRICO, the Harvard system's captive medical malpractice insurance and risk management company:

I am so sorry to hear of your friend's loss, and of his feeling of sadness and loneliness. Please let him know that he is not alone, far from it. 

The work of change (especially in patient safety and health care) often feels lonely, because it is the brave who stand up, and speak up with a quivering voice and shaking hands against that that we have held as "normal" for so long. 

That act, in and of itself, is nerve-wracking and scary. The reality is that the kind of cultural change that we are working toward for will only come about when we remember that we are not alone, that we do this in memory and honor of those who have died too soon, and that we are making a difference by changing the conversation and telling our stories. 

I am inspired by much of what Tracy and Dave have referenced and by remembering that others have grappled with similar realities in the past. I love this quote from Robert Kennedy from a speech made in South Africa in 1996: 

"It is from numberless diverse acts of courage and belief that human history is shaped. Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current that can sweep down the mightiest walls of oppression and resistance." 

When I first started working in this space, Don Berwick MD, then at the IHI, reminded me that to be successful in this space of change, we must find and make friends. They get us through the toughest of times, remind us why we do what we do, are ready to laugh, cry, commiserate and celebrate with us. Please know that you and Torbjörn have a friend in each of us and many more. Please encourage him to connect and to keep making ripples.

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CLER on WIHI

Madge Kaplan writes:

The next WIHI broadcast — September 24, 2014: From Here to CLER: Graduate Medical Education and the Clinical Learning Environment Review (CLER)  — will take place on Wednesday, September 24, from 2 to 3 PM ET, and I hope you'll tune in.

Our guests will include:

• Kevin B. Weiss, MD, MPH, Senior Vice President, Institutional Accreditation, Accreditation Council for Graduate Medical Education (ACGME)
• Robin Wagner, RN, MHSA, Vice President, Clinical Learning Environment Review, ACGME
• Maren Batalden, MD, Medical Director of Hospital Quality, Associate Director of Graduate Medical Education for Quality and Safety, Cambridge Health Alliance (CHA)
• James Moses, MD, MPH, Medical Director of Quality Improvement, Boston Medical Center; Academic Advisor, IHI Open School for Health Professions

A new IOM report released over the summer has reignited debate and discussion about the financing and goals of graduate medical education (GME) in the US. Given that Medicare is the primary funder, to the tune of $15 billion per year, the report’s authors call for greater accountability for all the government support, along with a change in priorities. For example, the IOM committee points to a disconnect between what the health care system desperately needs right now — more cost-conscious doctors capable of improving patient care, managing population health, and committed to primary care — and residency programs that remain overwhelmingly hospital-based and focused on medical specialties.

This is not the first time we’ve heard calls to reform GME, or the first time we’ve seen efforts to respond by the accrediting body itself, the Accreditation Council for Graduate Medical Education (ACGME). They’re in the midst of rolling out a new set of residency training expectations that are more aligned with delivering value and helping patients achieve optimal health. The program is called the Clinical Learning Environment Review — CLER for short. On the September 24 WIHI we’re going to explore the potential for CLER to bring about the most dramatic changes yet for medical residents, and we hope you’ll tune in.

ACGME’s Dr. Kevin Weiss and Robin Wagner will explain the goals of CLER and some of the specific ways residents are being asked to contribute to progress in six areas: Patient Safety, Quality Improvement, Transitions in Care, Supervision, Duty Hours Oversight (including Fatigue Management and Mitigation), and Professionalism. Dr. Maren Batalden from the Cambridge Health Alliance (CHA) now has a CLER site visit under her belt, and she’s plenty excited about the potential for the program to better align residency training with an organization’s overall safety and quality improvement agenda. Finally, we welcome Dr. James Moses from Boston Medical Center, who has been in the trenches of helping to steer residency training in a new direction for years and also serves as academic advisor for IHI’s Open School.

Whether or not you are directly involved in GME, its priorities have implications for all of health care. WIHI Host Madge Kaplan looks forward to your participation and your comments on the September 24 WIHI. To get ready for the program, we invite you to check out this blog post by IHI’s Dr. Goldmann about the IOM report on GME.

We hope you will tune in and learn more with us! You can enroll for the broadcast here.

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The irony of on-line advertising algorithms

Sometimes the irony of on-line advertising algorithms is made evident.  How about this article in the New York Times--focused on the adverse impacts of hospital mergers--being tagged with an ad from Partners Healthcare System!  ("We're rethinking health care," says the corporation.  Are we convinced?)

Mores seriously, this article explains why Partners needed the buy-in from the Massachusetts Attorney General in the recently filed settlement of its anti-trust case: "State action" precludes a more thorough federal involvement.  But the real question is why the federal government agreed to defer to the state in the first place, as opposed to pursing an FTC and/or DOJ case:  Was this a favor from the Obama administration to their preferred Democratic candidate?

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Screening the screenings

Here's an excellent piece about "wellness screenings" by John Lundy at the Duluth News Tribune.  The underlying theme about unnecessary testing and the business of selling such tests is important.  John's presentation is very well done.

As Gary Schwitzer notes in a message to health care reporters, "Imagine the impact if this kind of story was published by papers big and small across the country."

An excerpt:

The screenings — for stroke, atrial fibrillation, abdominal aortic aneurysm, peripheral arterial disease and osteoporosis — “aren’t just routine procedures,” an enclosure in the envelope [a 74-year-old man] stated. The words were next to a photo of a solemn-faced man in a white jacket, with a stethoscope hanging around his neck.

“They can help save your life,” it concluded, with the final three words underlined.

But some health experts argue that some of the screenings offered by Life Line and similar companies actually can do more harm than good.

“The layman would be shocked to know we actually do not have science to show that these screening, early detection tests actually decrease mortality or are beneficial to the patient,” Dr. Otis Brawley said in a telephone interview.

The chief medical officer for the American Cancer Society and a professor at Atlanta’s Emory University, Brawley wrote the 2011 book “How We Do Harm” on practices he argues benefit everyone except the patient.

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In memoriam: Katherine McQuade Toig

The world lost of one its true angels this week with the death of Katherine McQuade Toig, RN.  Katie was a beacon of light to all who knew her.

We first met when she was a nurse in training at BIDMC.  She was always dropping by my CEO office with questions and ideas. As a colleague said, "She wanted to save the world."  In so doing, she constantly questioned her role and her place and was searching for the best way she could serve humanity.

Here's an excerpt from a blog she wrote while on a volunteer mission in Kenya, which inspired her to remain involved in that region:

I am uncomfortable. My senses did their job in Kenya. They collected sights, sounds and information for me to wrestle with. My mind will not be the same. Old beliefs and realities cannot accommodate the new information. The process of reconciliation is not tidy. It won’t work for me to come to simple explanations and conclusions. I will need to sit in the dissonance for a while and build new constructs of thought. 

I will continue to collaborate with Tatua. My energy will be aimed at empowering and supporting the Community Health Workers in the slums of Ngong, Ngando and Rongi. It isn't enough to provide mission work to the slums. The solution has to grow from within. The CHWs are uniquely positioned as access points to healthcare. My mind can rest on this. 

A new chapter begins for me here with the CHWs.  

Little did I know that Katie would help me heal after a difficult period I had in the hospital.  Here's how she responded to an email I sent to the staff apologizing for my bad judgment:

"I am moved by your letter and want to thank you for all your work. As for any transgressions you may have had, I feel you are only human and we all make mistakes. As I’m sure you know, it is how we handle them that makes us who we are."

Wisdom beyond her years.  Compassion and empathy that set an example for all who knew her. Deep sadness for all who will now miss her.

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How fast can a proton go down a drain?

I've had a number of people write to me upon seeing Jaimy Lee's story in Modern Healthcare:

The Indiana University Proton Therapy Center will close in December, marking the first time a proton-beam therapy center in the U.S. has shut its doors since the rapid proliferation of the costly treatment centers began about a decade ago.

University executives and an independent review committee attributed the center's financial losses to a range of issues, including the cost of maintaining its aging cyclotron, but the committee also suggested the industry may be on the verge of a “proton bubble” as the centers struggle to serve a sufficiently large patient population.  

"Is this a trend?" they ask me.  The UI had a special committee to help them in this matter:

In the committee's report, the reviewers highlight many of the issues affecting the proton industry as a whole, including the lack of completed randomized clinical trials, improvements in alternative treatments, changing care patterns for patients with prostate cancer, and the rise in new payment models, such as bundled payments that may remove incentives to use the therapy.

“It is, therefore, quite possible that we are on the verge of a 'proton bubble' with the more indebted centers or those without a strong patient supply line closing,” the committee said in the report. 

Well maybe and maybe not.  Maybe there were local conditions at work: 

The losses and challenges were clearly outlined in the report. The IU center requires 63 people to staff the cyclotron, spelling high labor costs. The technology, which was adapted from a research cyclotron, needed a $30 million upgrade. The Bloomington site, which is an hour's drive from Indianapolis, is not ideal for clinical-trial participation because it requires most patients to travel.

The center reported a $3.5 million operating loss in fiscal 2013. Another challenge it faced: newer centers are expected to be opened by University Hospitals in Cleveland, Ohio, and by the Mayo Clinic in Rochester, Minn., key referral markets.

But one thing is for sure.  The investment in this machine represents a huge opportunity cost for the University and the patients served by it and, indeed, for other clinical departments.  That tax on the University will persist, as the bonds must still be paid off.  Millions of dollars have and will go down the drain in support of a technology with limited clinical applicability--all part of the edifice complex supported by selected physicians and hospital administrators.  (See the pride with which it is described on the website above and in this 2010 press release announcing a renaming: "We will be proud to be known as IU Health Proton Therapy Center," stated Dr. Peter Johnstone, president and CEO, who shared this important information with staff via executive email.)

And all of this is aided and abetted by perverse Medicare payments that CMS persists in maintaining--even as private insurers declare the treatment ineligible for payment.

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We use autonomy as a defense to the need to appear to be impossibly perfect

Gene Lindsey's weekly email letter invariably contains some gems.  Here's one from this week. He cites Sally Kilgore, president and CEO of Modern Red School House Institute, from her co-authored book Silos to Systems. The book is about how the education system might be improved. Gene says:

Her introduction concludes with insight that is applicable to healthcare.

Envisioned by Donald Schon (1973), a learning organization is one that is “capable of bringing about its own transformation.” But creating that condition requires that we pay attention to how we organize professional life at schools—how information flows, the form in which leadership is shared, the diversity of perspectives we use to solve problems, and the degree to which our interdependence as educators becomes an opportunity rather than a nightmare.

Her words are sweet notes to my ear. I love the construct that in a learning organization, interdependence could become an opportunity rather than a nightmare. Read this next excerpt:

Organizational systems theorists emphasize that solving important problems requires multiple perspectives and seemingly diverse approaches to the solution. Ian Mitroff and Abraham Silvers (2010) find that lacking diverse perspectives, we often solve the wrong problem.

In my own recent thinking, based on observations of hospitals and medical practices across the country, I have evolved an image of the toxic triangle that makes improvement in healthcare so difficult today. Our current sense of despair seems to arise from increasingly negative externalities that we all feel but do not understand. The culture of autonomy and our tendency to be in tribes of various states of understanding preludes progress. We are like a sailor in “irons”.

We use autonomy as a defense to the need to appear to be impossibly perfect, and the result is isolation or the use of silos for protection when the solutions to the problems of our patients, which are our professional responsibility, lie in interdependence.

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Goal Play! hits 10K

I just received notice that Goal Play! has sold 10,000 copies.  I am honored that so many people have read and enjoyed these leadership lessons and recommended the book to their friends and colleagues.  Thank you!

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2014 Sepsis Heroes

I was so pleased to be invited by Dr. Jim O'Brien to participate in the Sepsis Alliance 2014 Sepsis Heroes ceremony in New York City.  Here are the awardees:

Laura Messineo is a critical care nurse who is passionate about increasing sepsis awareness among healthcare professionals and the public. Although she has been a nurse since 1991, it would be several years before she first heard the word "sepsis" being used. She has since become a driving force in her healthcare facility and community in promoting sepsis awareness and education.

"I have challenged myself to learn everything I can about sepsis through lectures, articles, and attending conferences such as the American Association of Critical Care Nurses' (AACN) National Teaching Institute (NTI) and the Society of Critical Care Medicine's Annual Congress."

According to Ms. Messineo, sepsis awareness is important because it is a treatable disease process, which can result in a positive outcome if early goal directed therapy is initiated quickly. Community awareness and clinician education is vital in decreasing septic shock mortality and improve the lives of sepsis survivors. Laura plans on continuing to speak nationally on sepsis, writing grants for more sepsis education, and championing national regulations for sepsis screening.
--
Sepsis remains a leading cause of maternal mortality around the world, even in the 21st century. Raising awareness about prompt treatment of infections, and improving hygiene and conditions where women deliver their babies will reduce the risk of sepsis and help to make pregnancy and childbirth safer for both mother and child.

Every Mother Counts is an advocacy and mobilization campaign founded to increase education and support for the global reduction of maternal mortality around the world. EMC's work in the United States ensures that more mothers have access to prenatal care and childbirth education.

"People are shocked when they learn that women are still dying in childbirth. We are committed to informing the public about the challenges and solutions."
--
The timing of sepsis suspicion, diagnosis, and management are essential to improved outcomes. That first hour in treating sepsis is as vital as that first hour after someone has a heart attack or stroke. Intermountain Health, a nonprofit system in Utah, has put into place a sepsis bundle for its dianosis and management. This bundle, which included 11 clinical elements to be addressed during the first 24 hours of treatment, resulted in a drop in mortality rate from sepsis from 25 percent to around 9 percent. This equates to saving about 100 lives per year.

Virtually everyone on the healthcare team is involved in the sepsis bundle, including nurses, emergency medicine physicians, hospitalists, critical care physicians, transport specialists, respiratory therapists, radiologists, laboratory technicians, and other providers. Intermountain Health hopes to expand sepsis awareness beyond their emergency departments in order meet patients with wherever sepsis is diagnosed, be it in the general hospital wards, clinics, or at home.
--
Helene and Jeff Zehnder were nominated and chosen as 2014 Sepsis Heroes for their work in raising sepsis awareness. While Helene is a nurse and is familiar with sepsis, when a family friend died of the illness, the couple realized that work needed to be done to raise sepsis awareness in their community. The result was the inaugural 5K Walkathon/Road Race, called Step on Sepsis.

Helene Zehnder has been a nurse for 35 years. She is currently the Director of Medical-Surgical Nursing and Magnet Program Director at Rex Healthcare in Raleigh, N.C. She has a BSN from the University of Pennsylvania and has a masters degree in nursing from Widener University in Chester, Pa. Member – of the NC Nurses Association, the Academy of Medical-Surgical Nurses and the American Association of Critical Care Nurses (AACN), she is the current president of the Greater Raleigh Chapter of AACN. Helene was named one of the Great 100 Nurses in North Carolina in 2013.

Jeff Zehnder is a graduate of Stockton State University in New Jersey with a degree in business administration. He worked in the corporate world for many years and now is a home inspection business owner in Cary, N.C. He is an avid reader and participates in multiple sprint triathlon and 5K events. He is the president of the neighborhood homeowners association and volunteered with Boy Scouts of America for many years.

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SBIRT fights alcohol abuse

Last year, I wrote about the college drinking phenomenon known as Thirsty Thursday and pointed out that a significant percentage of Emergency Room patients at St. Elizabeth's Hospital come from nearby Boston College, arriving with a diagnosis of alcohol poisoning.

That's the bad news.  The good news is that a group of volunteer undergrad pre-meds from the same school participate in a Screening Brief Intervention Referral to Treatment (SBIRT) program at the hospital.

Aaron Lemmon, who developed the program for the hospital, reports, "Over the past four years 18 screeners have engaged 543 patients with substantial improvement in both recidivism rates and culture of care.  They also have produced a video documentary, video role-plays, and an 84 page manual to facilitate program replication, which were presented at two national conferences."

The video follows.  This is a lovely example of cooperation between two institutions, relying on the idealistic energy of future doctors.  Aaron's hope is to expand programs "through which major health care providers could selectively integrate aspiring healthcare professionals into expanded care teams with minimal cost."  After he finishes his MBA/MSIS in Health Sector Strategy at Boston University in 2015, he's bound to make a difference.

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A bit harsh on Minute Clinics

I really admire Shannon Brownlee, but I have to take issue with the parts of her Providence Journal article in which she takes CVS to task for running Minute Clinics in their stores.  But perhaps we end up in the same place anyway!

In summary she argues:

For-profit retail clinics are a bad sign to anyone who understands the special role of primary care in providing good health care to a very sick nation.

Primary care is one of the few places remaining in the medical system where physicians and patients have direct personal relationships that last longer than any particular treatment or illness.  

But CVS and other companies diving into primary care aren’t interested in building relationships. Patients are customers, not vulnerable human beings, and the health professionals who work for them are employees, not caregivers. For these companies, health care isn’t about caring or healing — it’s a product — and their interest in providing it is aimed at the bottom line. In the future, your relationship with your doctor will be about as meaningful as your relationship with the local barista at Starbucks.

By siphoning the easy cases and easy revenue away from primary care offices, retail care further undermines their financial stability.

But then she points out the problems in maintaining traditional primary care practices:

You can’t blame retailers for jumping into the business of offering primary care services. The fact is, primary care doctors have failed to provide services that patients need: fast care for minor ailments, and care that’s available in the evenings and on weekends.

For the sake of all those who have a chronic illness now, or who are destined to get one as they grow old and frail, the nation had better figure out a way to support primary care practices. 

I don't think we should blame the retailers for filling a gap in the healthcare system nor should we demonize them or their clinical staff by saying they really don't care about people's health. Where Shannon and I appear to agree, though, is on a key point:  If the country really wants to support primary care, there are ways to do that, starting with fixing a perverse reimbursement system.

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The third golden handshake

Blue Cross Blue Shield has, in some respects, been a leader in Massachusetts in pursuing the agenda to bend the health care cost curve.  But the company has a blind spot when it comes to Partners Healthcare System.  Worse, it has a history of caving to the economic interests of the dominant provider, even when doing so undercuts the company's stated goal of bending the cost curve.  It has now engaged in three golden handshakes with the health care system:

The first golden handshake occurred years ago, when BCBS acceded to Sam Thier's statement that, "This is what good health care costs," and began a practice of paying the system above-market rates--for care at the academic medical centers, for care at the community hospitals, and for care in the PHS doctors' offices.  Every layer of the PHS system received prices above the comparable layer of other hospitals.  Year after year after year.  The Boston Globe's Thomas Farragher retold that story this week.

The second golden handshake occurred in 2011.  It was spun by BCBS as securing a renegotiation of PHS contracts, lowering the rate of increase compared "to what would otherwise happen."  But it was actually an above-market increase given to a system with rates that were already substantially above the market.

The third golden handshake occurred this week. In the face of the most important proposed anti-trust settlement of the decade, the one between the Attorney General and Partners, the one on which dozens of parties have filed comments with the Court, BCBS was silent. Absolutely silent.

The Massachusetts Association of Health Plans, representing all the other insurers in the state, filed comments against the deal.  As noted in Priyanka Dayal McCluskey's Globe story:

The deal, insurers said, “could have the unintended effect of exacerbating the market dysfunction issues it seeks to address."

The highly substantive (!) response from Partners: “It’s no surprise that a lobbying group for the insurance companies has submitted comments that serve their own self-interest."

BCBS, which has more subscribers than all of the rest of MAHP combined, was missing in action.

Its actions over the years and its silence now join it irrevocably with Partners as an advocate for higher health care costs in Massachusetts.

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Privileged parking

I don't want to appear to be nitpicking, but sometimes the decisions that are made by health care people are indicative of underlying problems--or just obliviousness.  Here, for example, I find it hard to understand why the doctors who work in this multi-specialty clinic--which includes orthopaedics and urgent care--should have reserved parking places that are closest to the entrance of the building.

Even if this non-patient-centric result doesn't bother you, consider the fact that only the doctors, among all the clinicians and ancillary health care professionals, get this privileged treatment.  Is the time of doctors more valuable than that of the nurses, the NPs, the PAs, and the techs?

I know, it's just a matter of a short distance to the other parking places in the lot, so it's not a big deal.  But why set up artificial class distinctions?  It would also not be a big deal for the MDs to walk that extra distance.

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Sepsis Heroes

Will you be in New York City on Thursday evening, September 18?  Please join us for Sepsis Heroes.

Sepsis Alliance is hosting its 3rd annual Celebration of Sepsis Heroes on September 18, 2014. We received a record-breaking number of nominations this year from people who wanted to recognize healthcare workers, friends, family members, and facilities. This year, we are honoring two individuals and two organizations. Click here for event details.

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Turning Turtle -- Is this how doctors are socialized?

Here's another short excerpt from a draft of a book--Turning Turtle--being written by my friend and colleague.  As I described below, Samuel Jay Keyser--Professor of Linguistics (Emeritus) at MIT--suffered from a debilitating fall that left him severely injured and experiencing the health care system in a way he could have never imagined.  This moment takes place after his second surgery for spinal cord injuries. 

One day a solo doctor came into the room, introduced himself, and without much preamble told me that while the operation was a success, I probably would never walk again. 

“Fuck you,” I said to myself.

To him, I said, “I’m sorry to hear that.”

“I know it isn’t what you want to hear,” he said in a consoling way. “But it’s best to be realistic in situations like yours.” 

I wonder why he felt the need to be “realistic.” Perhaps it was his way of defending himself from becoming too close to a patient.

I learned later that the nurse on duty had overheard the conversation and had given him hell when he left the room. Much later in my hospital stay, he exchanged his severe demeanor for one with an engaging smile. I wonder if the nurse’s dressing down had changed him. I wonder if that’s how doctors are socialized on the job.

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Turning Turtle -- Tribute to the EMTs

My friend and colleague Samuel Jay Keyser--Professor of Linguistics (Emeritus) at MIT--writes of a recent incident that left him severely injured and experiencing the health care system in a way he could have never imagined. He's in the midst of writing about the events and was kind to share a draft of his first chapter of a forthcoming book--Turning Turtle--with several of us.  He gave me permission to provide you with excerpts.  There are many themes even in this first chapter, but I thought you'd enjoy the one presented here.

I was like a turtle that some malicious child had turned.  My hands felt like flippers. They were slapping me in the face.  I couldn’t recognize them as belonging to me. Thank goodness Nancy was at home.  Or maybe I would’ve died. Maybe that would have been the best thing to have happened. But it didn’t. Instead Nancy came running.

She saw me floundering at the foot of the stairs where I had fallen in a disastrous attempt to exercise. I was trying to stretch my left leg. I lifted it toward the fourth step. Suddenly my right leg collapsed under me. I fell flat on my back.

"Don’t panic! Don’t panic!” Nancy said in a panicked tone of voice as she frantically dialed 911. In a matter of moments I heard a siren come to a high-pitched halt outside our house. Six black-clothed, heavy-booted first responders came stampeding up the stairs. The one in charge leaned over me. His face hovered above mine like a harvest moon.

“Can you hear me?” he bellowed.

“Yes,” I said.

“Good! Don’t move a muscle,” he commanded.

He said something to his partner. She disappeared and returned with what looked like a large valise. I heard it click open. Then some clanging of metal parts against one another. The next thing I knew my head was being screwed in place with something that felt like a vice. Nancy said the contraption made me look like Frankenstein’s monster.

They placed me on a stretcher. Although I could feel my body tipping from side to side as they navigated the landing and down the stairs, my head remained absolutely fixed. It was April 26, 2014. I was surprised at how cold the outside air felt. I heard the back of an ambulance open. The stretcher slid inside. Someone got in with me. Someone else slammed the doors shut. The ambulance started to move. I listened for the siren. I couldn’t hear it. All I could hear were noises from a game someone was playing on a cell phone. I remember staring at the ceiling wondering why the lights were so bright. Such small thoughts for so large an event. I couldn’t focus on the big picture – that is, that I might be dying and that these were my very last moments on earth, that I might never see Nancy or my children again. I concentrated on the ambulance’s suspension. The vehicle dipped and rocked at every pothole. I thought about the suspension on hearses. They were surely better than this. How odd that a vehicle carrying the living was badly sprung while a vehicle carrying the dead was not.

[After a couple of days, it was time for surgery:]

What “going under the knife” meant for me was 13 hours in the operating room. Divided into two operations weeks apart, the first lasted 9.5 hours, the second, 3.5. The condition I had was quite rare. In fact I never knew I had it. In a nutshell, my spinal column has aged faster than my body. This means that it is riddled with bone spurs. When I took the fall, the bone spurs at the top of the column hammered into my cord like tiny little hatchets. To make matters worse, my spinal column is abnormally narrow. A normal spinal column is about 15mm in diameter. Mine is about 7 or 8mm.

One doctor's report put it this way:

Patient has diffuse idiopathic spinal hypertrophy/DISH, leading to cervical stenosis, or narrowing of the cervical spinal column. Due to this, there was no room for the cord to move. This combined with minimal shock absorption from the CSF (cerebrospinal fluid) led to a cervical spinal cord injury.

After 33 days in MGH it was time for me to move on. That meant a six-week stay in a rehab hospital. I was wheeled on a stretcher to the loading dock.

“Aren’t you the driver who brought me here a month ago?” I asked. I won’t ever forget the face that hung over me like a harvest moon yelling, “Don’t move a muscle.”

“How are you doing?” he asked, nodding.

“Pretty well, considering,” I said. “These guys saved my life.”

“No, they didn’t,” he objected. “We did.”

“I don’t understand,” I said.

“When I saw you lying on the floor,” he explained, “I could tell from the angle of your head that you had suffered a spinal cord injury. If we hadn’t put your head in a vise, you wouldn’t be here now.”

He was right, of course. Had my head and spine not been frozen in place, those potholes en route to MGH would have chopped my spine into coleslaw. Even so, it strikes me as odd that the villagers who saved my life – the surgeons and the first responders – have never met one another.

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A terrible burden imposed on doctors

Please take a look at this short video from Danielle Ofri, author of What Doctors Feel.

A perceptive quote from her:

"As doctors, if we fail, it’s not something outside of us; it is us. We are the error. The shame is so powerful that most doctors will never come forward about an error. I think the socialization of doctors makes it extremely hard for us to admit a mistake. We tend to pick perfectionists as medical students, knowing that the medical system is not for the faint of heart. Then they’re trained to be perfectionist doctors. There’s no place for a 'good enough" doctor. You’re either excellent or terrible."

This is a awful burden, one reinforced by the medical education process, especially during many residency programs.  I wonder how to get those involved in medical education to understand that this attitude contributes to patient harm.

Thanks to Gene Lindsey for pointing out the article and video.  He also sends us to view some thoughts from Justin Locke, author of Principles of Applied Stupidity:

We all are imperfect of course, but our society is intolerant of such things, and demands that we conceal it. Doctors are under particular cultural pressure to “be perfect.” But when it comes to medical error, shame energy can actually blind the mind to reality. The ongoing pretense that we “don’t make mistakes” is a leading cause of why the mistakes we make don’t get acknowledged, much less fixed.

Our immersion in what I call “smartism” starts early and is taught systematically. We attach enormous shame (i.e., inner-directed personal loathing of self) to failing tests in school, and enormous pressure to get into Harvard. This is a flawed system. There is no big victory for the “A” students; they start to think that their social acceptance is based solely on superstar performance, and they become fractured spirits, becoming human doings instead of human beings. Instead of a sense of social teamwork, shame energy, i.e., our intolerance of the reality of our imperfections, puts us in an unwinnable bitter battle to always be better than someone else. No matter how well you do in such a battle, you lose, for in the end, you do not have community acceptance, the glorious opposite of the dark energy of shame.

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A son's legacy

Here's a short video featuring Patty Skolnik in which she explains how the tragic death of her son led to her engagement in helping clinicians learn how to help patients and families be more properly involved in making informed medical decisions.

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Experts file in Court: The proposed AG-PHS settlement is flawed

Following my earlier post about comments from an FTC official, please see a bit more on the proposed agreement between the Massachusetts Attorney General and Partners Healthcare System--in the form of a filing with the Court from the American Antitrust Institute.  AAI is an independent and non-profit national research, education and advocacy organization devoted to advancing the role of competition in the economy, protecting consumers, and sustaining the vitality of the antitrust laws.  The filing also includes an expert report from Professor John Kwoka of Northeastern University outlining the deficiencies in the settlement and explaining why it should be rejected.

This is powerful stuff and again suggests that both the Democratic and Republican candidates for Attorney General should ask the current AG to withdraw her proposal from the Court and leave future action on this issue to her successor--someone who will assemble an approach that fully addresses the documented anticompetitive practices of this player in the Massachusetts healthcare market.

The introduction:

AAI has an interest in this matter not only because it will affect consumers in a large and important health care market, but because Massachusetts’ national leadership in health care innovation and regulation, as well in as antitrust enforcement, could make the settlement an unfortunate precedent for resolution of anticompetitive hospital mergers by other states. As we shall explain, the proposed remedy is not in the public interest because it will likely fail to restore competition lost as a result of the acquisitions by Partners Health Care Systems, Inc. (“Partners”) of South Shore Health and Educational Corporation (“South Shore”) and Hallmark Health Corporation (“Hallmark”), and it will embroil the Attorney General’s Office and the court in extensive regulatory oversight for which they are ill suited. Therefore, it should be rejected.

(We address the Proposed Final Judgment filed on June 24, 2014. While the Attorney General and Partners are apparently renegotiating the Hallmark aspects of the deal in light of the recent objections by the Massachusetts Health Policy Commission (“HPC”), and this could resolve some of our concerns about the details of the settlement, our fundamental concerns about the effectiveness of using a regulatory decree to resolve anticompetitive horizontal mergers undoubtedly will remain.)

The major points (with my emphasis):

If litigated the Mass AG would have prevailed in court and the merger would have been enjoined.

--Conduct remedies are clearly inferior to blocking an anticompetitive merger or other structural relief, and are typically unsuccessful.  Antitrust enforcers and courts lack the expertise and institutional capability to adequately regulate firms with market power, and to counteract the firms’ natural incentives to exploit it.  Accordingly, the federal enforcement agencies and courts have consistently rejected these types of conduct remedies in hospital and other mergers between direct competitors.  And where remedies like these have been used in the past they have failed.

The proposed settlement is generally flawed for several reasons:
--The settlement is time limited and does nothing to alter Partners’ increase in market power resulting from the mergers.  Accordingly, prices can be expected to rise once the price caps are removed, as has been the case in the few other instances where caps have been tried.
--The settlement is highly complex and technical, with numerous ambiguities that will likely require extensive and continuing court involvement to resolve.  The proposed independent monitor will be helpful, but administering the regulatory decree will still require significant judicial resources.
--Conduct remedies are particularly problematic where, as here, the product is highly complex, the market is undergoing significant changes, and enforcement depends on parties in long-term business relationships with the enjoined firm (here, payers) willing to complain when violations occur.

The major elements of the proposed remedy are inadequate to protect consumers from the loss of competition.  Where they have been used in the past they have failed.  Besides the fact that they are time limited, the price caps are flawed because:
--The price caps are limited in scope, with the total medical expenditure (TME) cap covering only 11% of Partners’ commercial business.  Moreover, the caps do not cover quasi-private plans such as Medicaid Managed Care and Medicare Advantage.
 --The proposed price regulation would be difficult to administer—even by a regulatory agency, much less a court—and fails to take into account important considerations, such as how to deal with changes in the scope and types of services.
--The price caps may be ineffective insofar as prices, absent the mergers, would increase by less than the general inflation or medical inflation in the index used in the settlement.
--The price caps do nothing to address the potential diminution in quality competition, and perversely provide incentives to reduce quality.
--If the price caps are exceeded in any year, ultimate health care or insurance consumers may not benefit from the refund mechanism.
--To the extent it is relevant, the price caps do nothing about Partners’ existing supra-competitive pricing and rate advantage over other providers

Besides being time limited, the component contracting provision is flawed because:
--Component contracting will do little or nothing to alter Partners’ ability and incentives to increase prices post-merger.
--The settlement does not provide sufficient protection from actions Partners could take to make component contracting unattractive to payers, such as offering pricing differentials for bundled and non-bundled components and engaging in subtle forms of retaliation against payers that seek to take advantage of the unbundling option.
--There are reasons to be skeptical that payers and consumers will find it attractive to utilize component contracting and when utilized Partners’ physicians can still seek to steer consumers to out of network Partners’ providers.
--Component contracting works at cross purposes with the purported efficiency justification of the mergers, namely the deep integration of South Shore and Hallmark into the Partners’ network.

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