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Medicare

Last week the Washington Post flayed doctors who participate in the Medicare program, along with the pharmaceutical company Genentech, because they often prescribe the $2,000-a-dose (and fully FDA-approved) eye drug Lucentis in preference to Avastin, a biologically related compound also made by Genentech that seems to work equally well against “wet” age-related macular degeneration and can be obtained off-label from compounders for only $50 an injection (albeit with some additional risks and hassles). Taxpayers have shelled out billions of dollars, the Post complains with some justice, because many docs (currently close to half) choose FDA-approved in preference to off-label treatments.

Great investigation, guys. Now that you’ve accused doctors of being socially irresponsible and greedy for not going off-label to prescribe, could you investigate who exactly has been demonizing off-label prescribing as a dangerous, unregulated practice that the FDA needs to crack down on? What would happen if you found that that it was some of the Post’s own favorite sources and advocacy groups?

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Medical roundup

by Walter Olson on October 25, 2013

  • Sen.-elect Cory Booker (and Mayor Bloomberg too) on liability reform and fixing health care [NJLRA] How plaintiff’s lawyers get around caps [Alex Stein, Bill of Health] Missouri protects health volunteer workers [John Ross]
  • Like an Ayn Rand novel: Massachusetts ballot initiative pushes confiscation of private hospital profits [Ira Stoll, NY Sun]
  • Advice: plan now to lower your 2014 income to get valuable ObamaCare subsidies [San Francisco Chronicle]
  • Medicare comes off poorly: “Quality Of Care Within Same Hospital Varies By Insurance Type” [Tyler Cowen]
  • Revisiting a panic over alleged mass drug injury: “Avandia’s posthumous pardon” [David Oliver, earlier here and at Point of Law]
  • Louisiana lawmakers use malpractice statute to discourage abortion [Alex Stein, Bill of Health]
  • Georgia committee looks at plan to replace med-mal suits with administered compensation [Georgia Report via TortsProf, Daily Report Online (constitutionality), Insurance Journal]
  • Uwe Reinhardt on professional licensure and doctors’ monopoly [David Henderson]

That’s former Obama Administration budget director Peter Orszag’s view [Bloomberg]:

Most of the costs in the U.S. health-care system are incurred in a small number of expensive cases. The top 25 percent of Medicare beneficiaries ranked by cost, for example, account for 85 percent of total spending. And the expenses in those cases are driven significantly by the recommendations that doctors make to pursue one treatment path and not another.

In making these choices, doctors are influenced by various things, including medical-school training, traditions among their peers, financial incentives (which are distorted by fee- for-service payments) and, yes, the medical-malpractice system. Improving the criteria for what constitutes appropriate care could significantly change doctors’ behavior and also save money, recent research by Michael Frakes of Cornell Law School suggests.

Medical roundup

by Walter Olson on February 1, 2013

  • “On Average, Physicians Spend Nearly 11 Percent Of Their 40-Year Careers With An Open, Unresolved Malpractice Claim” [Health Affairs via Pauline Chen, NY Times]
  • SCOTUS lets stand Feds’ “accept Medicare or lose your Social Security” edict [Ilya Shapiro, Cato]
  • Robot surgery: from the Google ads, you might think lawyers are circling [Climateer via Tyler Cowen]
  • New York mandates more aggressive anti-sepsis measures in hospitals, and White Coat thinks it won’t end well [EP Monthly]
  • Shortages of generic FDA-regulated sterile injectables begin to take deadly toll [AP/Worcester Telegram, earlier]
  • Continuing the discussion of electronic medical records from a few days back: as medico-legal documents, EMRs are under pressure to be something other than candid and spontaneous [Kaus] While other patients wait for critical care, ER docs and nurses enter mandatory data fields for whether the infant is a smoker or the flu victim is a fall risk [White Coat]
  • Obamacare part-time-work fiasco “only starting to become news when it hits university professors” [Coyote, David Henderson, earlier]

Medical roundup

by Walter Olson on September 28, 2012

Medical roundup

by Walter Olson on October 20, 2011

  • View from Massachusetts General Hospital: drug shortages getting “dire” [WBUR, earlier here, here, here, etc.]
  • Medical liability roundup: Sheriff arrives at Ohio doctor’s home to enforce $9.7 million award blaming lack of Caesarean section for cerebral palsy [TribToday] North Carolina legislature overrides Gov. Beverly Perdue’s veto of liability limits [News & Observer via White Coat] Trial-lawyer-friendly Florida Supreme Court could strike down malpractice award limits in pending case [Orlando Business Journal]
  • “Antitrust rules handcuff physician-led delivery models” [American Medical News]
  • Relatedly, who was it who imagined anonymous denunciation of doctors was going to be a good idea? [Jay Hopkinson via Larry Ribstein]
  • New Medicare paperwork threat to clinical trials? [Beck]
  • Study: Elected coroners less likely to label deaths as suicide than appointed counterparts, family’s access to insurance benefits may be factor [Kevin B. O'Reilly, American Medical News]
  • “Gee, why wouldn’t Obama administration want judges and “public interest” lawyers running its new health care law?” [Mickey Kaus on New Republic report]

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October 4 roundup

by Walter Olson on October 4, 2011

  • Mass torts specialists vs. vendor: “Prominent Plaintiffs’ Attorneys Ordered to Pay Up After Losing Breach of Contract Trial” [Above the Law]
  • “You’ll have to get it on the street” — NYC’s thriving black market in pesticides [NYT, more]
  • Benjamin Barton on his new book, “The Lawyer-Judge Bias” [Truth on the Market, earlier here, etc.]
  • Medicare will not press “secondary payer” liability clawback claims below $300 [Miller and Zois, PoL, NLJ]
  • Class action roundup: “Sleeper” Supreme Court case raises question of whether class action certification requires consumer harm [Fisher/Forbes] Important Easterbrook opinion in Aqua Dots case puts curbs on class certification [PoL, Fisher/Forbes, Beck] Frey, Mortenson et al.: “The non-fiction class action” [Trask, OUP blog; earlier here, etc.]
  • Free speech roundup: Canada proposal could criminalize linking to alleged hate speech [Hosting Industry Watch] More on Canadian denouncers of speechcrime [Ken at Popehat] You don’t say: “$60,000 Ruling Against Truthful Blogger Tests Limits of the First Amendment” [Citizen Media Law] What happens when a defamation plaintiff asks a court for a takedown order? [same] Argentina: subpoenas step up pressure on reporters, editors who report on economy [NYT via Walter Russell Mead]
  • Should the law punish energy companies whose operations kill birds? Depends on whose osprey is being gored [Perry]

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June 8 roundup

by Walter Olson on June 8, 2010

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New at Point of Law

by Walter Olson on February 20, 2010

Things you’re missing if you aren’t checking out my other site:

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The Progressive Policy Institute (!) criticizes a provision almost snuck into the health-care bill that would have been a windfall for trial lawyers at the expense of the rest of us. Earlier and earlier on Overlawyered, which was the first to publicize the provision.

James Glassman at The American takes a look at the attempt to slip through a massive expansion of industrywide tort liability as part of the House health-care-reform bill a couple of weeks ago, a story that seems to have been broken for the first time in this space.

Forbes is just up with a new, improved version of my piece on the amazing trial lawyer bonanza that someone quietly tucked into last week’s draft of the health care bill. An earlier version of the piece ran at Overlawyered on Friday. The Forbes version takes note of the names of the House members who were pushing for and against the idea on the Ways & Means panel. Michelle Malkin gives it a recommendation here.

P.S. Some kind words, as well as a link, from Ashby Jones at the WSJ Law Blog (calling us “the granddaddy of legal blogs”). Plus: Don Surber, Charleston (W.V.) Daily Mail, Bainbridge, Wood/ShopFloor, Riehl World View, Bader/CEI “Open Market”.

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Contacts on Capitol Hill inform me that Republicans yesterday managed to block a remarkable provision that had been slipped into the House leadership’s 794-page health care bill just before it went to a House Ways & Means markup session. If their description of the provision is accurate — and my initial reading of the language gives me no reason to think it isn’t — it sounds as if they managed to (for the moment) hold off one of the more audacious and far-reaching trial lawyer power grabs seen on Capitol Hill in a while.

For some time now the federal government has been intensifying its pursuit of what are sometimes known as “Medicare liens” against third party defendants (more). In the simplest scenario — not the only scenario, as we will see below — someone is injured in, say, a car accident, and has the resulting medical bills paid by Medicare. They then sue and successfully obtain damages from the other driver. At this point Medicare (i.e. the government) is free to demand that the beneficiary hand over some or all of the settlement to cover the cost of the health care, but under some conditions it is also free to file its own action to recover the medical outlays directly from the negligent driver (who in some circumstances might even wind up paying for the same medical bills twice). It might do this if, for example, it does not expect to get a collectible judgment from the beneficiary.

The newly added language in the Thursday morning version of the health bill (for those following along, it’s Section 1620 on pp. 713-721) would greatly expand the scope of these suits against third parties, while doing something entirely new: allow freelance lawyers to file them on behalf of the government — without asking permission — and collect rich bounties if they manage thereby to extract money from the defendants. Lawyers will recognize this as a qui tam procedure, of the sort that has led to a growing body of litigation filed by freelance bounty-hunters against universities, defense contractors and others alleged to have overcharged the government.

It gets worse. Language on p. 714 of the bill would permit the lawyers to file at least some sorts of Medicare recovery actions based on “any relevant evidence, including but not limited to relevant statistical or epidemiological evidence, or by other similarly reliable means”. This reads very much as if an attempt is being made to lay the groundwork for claims against new classes of defendants who might not be proved liable in an individual case but are responsible in a “statistical” sense. The best known such controversies are over whether suppliers of products such as alcohol, calorie-laden foods, or guns should be compelled to pay compensation for society-wide patterns of illness or injury.

A few other highlights of the provision, pending analysis by persons more familiar with Social Security and Medicare law than myself:

  • A bit of language on p. 714, I am told, would remove a significant barrier to litigation, namely a rule authorizing a lien action to be filed on behalf of Medicare only after a previous “judgment”, that is to say, only after the success of an earlier lawsuit (by the injured party) establishing responsibility for the injury.
  • Language on p. 715 would double damages in cases of “intentional tort or other intentional wrongdoing”.
  • P. 716 specifies that “any person” may bring the action, that is, it need not be a lawyer representing the injured person or any other injured person.
  • P. 717: the bounty would be a rich one, 30 percent plus expenses. P. 719 provides that even if the federal government itself intervenes and insists on taking over the lawsuit, the bounty-hunter would still get a minimum of 20 percent, perhaps as reward for winning the race to the courthouse. No one other than the federal government could oust the first-to-file lawyer from control of the action, so other private lawyers who lost the race to the courthouse would be out of luck. Page 720 specifies that the suit may be settled “notwithstanding the objections of the United States” — that is, the objections of the entity on whose behalf it was supposedly filed — if a court so agrees.
  • Medicare would have to cooperate with the private lawyers, whether or not the government joined or approved of the action, by handing over various documents useful to them.

For the moment, at least, the bullet seems to have been dodged. Some Republicans on the committee spotted the issue and raised strong protests, and by the end of the day an agreement had been reached with Democratic managers to withdraw the provision. That still provides no guarantee that it will not rear its head later in the process at some stage that proponents judge more favorable to their designs.

The idea being promoted here is an atrocious one. Even when it comes to garden-variety torts, there are many entirely legitimate reasons why federal managers might not decide to pursue Medicare liens from every possible defendant. To take only one example, they might have scruples about suing peripheral defendants who might be made to cough up settlement money to avoid the costs of litigation but against whom liability was doubtful. Freelance private lawyers would be free to sue everyone in sight and employ the most hardball tactics along the way. If the language about epidemiological and statistical evidence is indeed meant to pave the way for future suits against liquor, gun or cheeseburger purveyors, it represents a stealth attempt to restore via fine print a lawyerly dream that the courts have almost uniformly rejected over the past decade, as well as personally enrich lawyers with fees that could soar beyond even those of the scandalous tobacco-Medicaid litigation. Who in Congress slipped this language in, anyway — and on whose behalf?

Incidentally, this is not the first time the idea of Medicare-lien/”secondary payer” qui tam has been given an outing. In 2006 the famous Erin Brockovich lent her name and efforts to lawsuits filed by Wilkes & McHugh and another law firm pursuing the highly adventurous theory that a qui tam right to sue over tort-induced Medicare overpayments already exists, at least against hospitals. This campaign fared extremely poorly in court (see our earlier coverage here, here, and here). Last year, in a case argued by Kenneth Connor for Wilkes & McHugh, the Sixth Circuit ruled that claims brought by Wilkes’s client against dozens of hospitals were “utterly frivolous” and ordered counsel to show cause why sanctions should not be imposed for “unreasonable and vexatious” appeals (Stalley v. Methodist Healthcare, PDF; more at Jones Day site). (reposted with slight changes and bumped from an earlier post this morning) (& welcome Popehat, Coyote, Weisenthal/Business Insider, Hemingway/NRO “Corner”, For What It’s Worth, Blogs for Victory, TigerHawk, The Agitator, Colossus of Rhodey readers).

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We’ve already aired much dissent from the medical profession about whether or not top-notch hospital care can in fact prevent all instances of patient falls, decubitus pressure ulcers (bedsores), hypoglycemia, deep vein thrombosis, delirium, suicide attempts, c. difficile infection, or iatrogenic pneumothorax. Nonetheless, Medicare has adopted its proposal to deny hospitals reimbursement for the cost of treating such events and complications, with likely consequences both for hospital behavior (refusal to admit some patients at high risk of never events), for private insurer behavior and for the climate of medical malpractice litigation. (Kevin Sack, “Medicare Won’t Pay for Medical Errors”, New York Times, Sept. 30). White Coat Rants, who has blogged extensively on the issue in past months, has some predictions (Oct. 1) of things we can now expect to see more of: more patient transfers between hospitals (since Medicare will not punish the second hospital for the first’s “never event”; underdiagnosis of certain conditions and overdiagnosis of others; and, more remotely but no less alarmingly, pressure on some families to serve as ultimate bearers of risk for supposed never events affecting the frailest and most elderly:

Say hello to the Advance Beneficiary Notices. Medicare won’t cover preventative care, so you are going to have to pay for it out of your pocket. If you’re prone to falls or bedsores, you’ll have to pay for a personal nurse to wait on you hand and foot so you don’t develop these never events. If you don’t pay for a personal nurse 24 hours around the clock to keep a never event from happening, you’re personally responsible for paying the costs of treatment if the “never events” occur. You had the opportunity to prevent the events but you were just too cheap to pay for it. I think that ABNs are less likely to catch on, but eventually I think they will become commonplace.

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Regulating fast food

by Ted Frank on August 21, 2008

At American.com, Sara Wexler casts a critical eye at the redlining of new fast-food restaurants out of certain Los Angeles neighborhoods. I hadn’t previously noticed that LA was justifying the ban in part on the claim that South LA’s obese residents are “plac[ing] enormous costs on the California state Medicare system”–as a good an example of the future dangers to freedom of government-run health-care as any.

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Blood should never clot, microorganisms should never happen, and one doc-blogger is on a tear (Aug. 14, more, Aug. 17) over the sometimes absurd hype being given to the concept:

“Never events” are and always have been “all about the Benjamins.” Look at this news release. The “background” section states that the “never events” were “required” pursuant to Section 5001(c) of the Deficit Reduction Act. Medicare wants to stop paying for things not because they “should never happen” but because it’s trying to save money. The whole “never event” moniker is just a spin they put on the cuts to make it look like someone else’s fault. Do “never events” never occur at government run hospitals? We’ll never know because CMS doesn’t even include government run hospitals on the “hospital compare” list.

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This time it’s the federal court for the Eastern District of Tennessee that’s sent the glamourpuss bounty-hunter packing:

Plaintiff and his associate Erin Brockovich have filed 49 nearly identical complaints in jurisdictions across the country. Kris Hundley, Brockovich Teams Up With Local Firm, St. Petersburg Times, Dec. 21, 2006. Many of these complaints have already been dismissed . . .

Roy F. Harmon III at Health Plan Law explains why this one failed too (Mar. 13). For more, see Jun. 22 and Nov. 18, 2006 as well as, on the general Brockovich phenomenon, my October 2000 treatment in Reason.

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