Archive for the 'Legal Matters' Category

Medical Justice League of America

September 4, 2007


A new company is helping doctors write “gag order” forms for patients who might want to post about them on one of those health information sites. It turns out they’re also doing some other interesting, if provocative, things.

This entry in the Wall Street Journal’s Health Blog was intriguing:

Next time you go to the doctor, look for a new form buried in the stack of insurance and health-history paperwork you’re asked to complete. You might find a contract that would require you ask your doctor for permission to grade him or her online.

A new company called “Medical Justice” is selling services to doctors.  Among their offerings is a form that doctors can insist patients sign before providing treatment. The form forbids the patient from rating or reviewing the physician on any website or online forum.

“The whole notion of your reputation on the line and not having control makes physicians feel vulnerable,” Medical Justice CEO Jeffrey Segal told the Health Blog. “The goal is to regain control of the flow of information.”

We’re not proponents of anecdotal information to make medical decisions, whether it’s in the choice of physician or in determining a course of treatment. There is a lot of unsubstantiated information on the web, and it’s a health problem. And we’re sympathetic to beleaguered doctors.

Still, Dr. Segal’s solution sounds harsh, defensive, and insecure. All of us need to accept the fact that the Internet is here to stay, and that brute-force attempts to resist it aren’t as likely to be effective as more accommodating approaches. Handing yet another form to an anxious patient, with the implication that treatment will be withheld if its not signed, sounds heavy-handed.

The strident tone is borne out by a visit to Medical Justice’s website, where the slogan is “Relentlessly Protecting Physicians From Frivolous Lawsuits.” The subheading reads “Deterrence, Early Intervention, and Countersuit Protection.”

The website reads like a attempt to intimidate would-be litigants. Medical Justice promises to help organize and pay for counterclaims against people who sue physicians –  and to pursue suits against expert witnesses who testify for claimants, provide free expert witnesses for the defense, and “warn perpetrators with a strategic Early Intervention Program” intended to discourage the filing of claims.

“Medical Justice has been the driving force in getting numerous cases dropped,” the website boasts, “and has deterred many plaintiffs from filing frivolous suits.”

There is no question that frivolous lawsuits are a genuine problem, and that med mal premiums represent a crisis for many physicians. Physicians deserve to be protected from specious claims.

But the dominant tone at the Medical Justice site is rage – and therein lies the danger. The website comes perilously close to suggesting that the organization will discourage lawsuits through browbeating and intimidation, rather than a reasonable mustering of the facts.

The plan, and the concept itself, deserves further scrutiny. For example, the website claims under “Deterrence” that “In Florida, physicians are sued at a rate of 15% per year. (FPIC 2004 Q1 statistics, Crittenden). Matched by specialty, the overall suit rate for Medical Justice Plan Members practicing in Florida is less than 2%.” It continues:

A recent actuarial study of the Medical Justice track record by SG Risk, Inc. (Lyndhurst, New Jersey), concluded that the medical malpractice claim count against our plan members in Florida is statistically lower than those without protection (95% confidence level). Put a different way, Medical Justice plan members in Florida are sued much less frequently than their unprotected cohort.

Notice that it doesn’t say the study concluded that claim rates were reduced from 15% to less than 2%, or that the study concluded plan members are “sued much less frequently” – only that the plan’s members are sued at a “statistically lower” rate. Obvious question #1: Is that self-selection, because plan members are more cautious people in general? We can’t know.

A better risk management approach to medical malpractice is clearly warranted. And Dr. Segal et al. may have some interesting ideas. But their rhetoric borders on disturbing. and might even be used against their members at some point.

Conclusion: Real problem, genuine need, strident approach, questionable tactics – but worthy of more investigation and fine-tuning, either by this organization or another, more judicious one.

(WSJ link courtesy iHealthbeat)


Once Again, Health Records Lost

February 14, 2007

From the Baltimore Sun:

Up to 130,000 former and current patients at St. Mary’s Hospital in Leonardtown have recently been notified that a laptop with personal information was stolen from the hospital in December. Just last week, Johns Hopkins officials reported the loss of thousands of employee and patient records.

We keep reporting on this ongoing problem. There’s going to be an initiative to prevent this kind of catastrophic data loss, either through a private-sector product that protects health data or through government mandate.

Insurance companies that cover health organizations are at risk. So are the organizations themselves. And individuals are being exposed to a number of unpleasant possibilities, from identity theft to blackmail.

Who’s going to step up and address this issue?

Medical Information on 25,000 People Stolen

January 5, 2007

Computerworld is reporting that “the theft of a computer from the office of an Ohio-based health care contractor on Nov. 23 has exposed sensitive data belonging to tens of thousands of patients in five health care firms across five states.” They add that “the compromised data includes the names, addresses, medical record numbers, diagnoses, treatment information and Social Security numbers of the patients.”

One under-recognized problem with our complex health care system is that information has to be shared by many parties. Here are a few of them: health care providers, insurance companies, bill processing vendors, data analysis/reporting services, utilization management companies, and specialty vendors (e.g. psychiatic care management services).

This creates a proliferation of personal data across a series of computer systems, amplifying the risk for theft or accidental loss of personal data. In many cases thieves are only interested in stealing the hardware, but wind up with personal information on their hands.

The Privacy Rights Clearinghouse tracks the loss of personal data, much of which involves health and insurance information. In one well-known case, a laptop belonging to Marsh CS Stars disappeared with information on over 200,000 insurance claimants . In another, a data entry person in India stole personal claims data and used it in an attempt to force her employer’s U.S. client to reimburse her money she felt she was owed. Hospitals and health care companies have also been affected.

Other incidents of health or insurance data breached involved the California Department of Health Services, Christus St. Joseph Hospital, University of Florida Health Sciences Center, Ohio State University Medical Center, University of Tennesee Medical Center, and Keck School of Medicine at USC.And that’s just for one year.

These incidents will continue. For legal reasons, players in the health & insurance arena will need to demonstrate that they made serious efforts (under the “prudent person” principle) to protect personal data. Insurers who provide E&O and other coverage may also want to review their underwriting practices, particularly regarding the storage of personal information on laptops that are more easily misplaced or stolen.

That’s a form of ‘insurance portability’ that nobody needs.

Doctors as “Insurers”? Caveat Emptor

January 4, 2007

Via InsureBlog we learn that doctors in the Houston area are providing something that is described as a form of “insurance coverage.” In fact, this article in the website is misleadingly entitled “Doctors Provide Health Insurance At a Lower Cost.”

While I’m sympathetic to doctors’ frustrations with managed care and recognize the importance of primary care, this is definitely not health insurance. Suggestions to the country – whether by the physicians themselves, brokers and other third parties, or careless journalists – could tempt people to unknowingly place themselves at serious financial risk.

The Houston plan allows people to pay $25 per month for the right to visit primary care doctors as often as they want, for a $10 per visit fee. Utilization trends will determine whether the doctors are making a real financial sacrifice, and time will tell whether physicians give these patients the time and attention they need (physicians sometimes undertreat patients that provide less revenue).

Still, underwriting issues aren’t as big a concern as the possibility that people will confuse this plan for real “health insurance.” If offers no coverage for anything but primary care treatment – and that’s not “coverage” as much as it is an agreed-upon discount based on an upfront free. Discounts on some laboratory and diagnostic procedures are also offered.

High-cost items such as prescriptions, specialist care, diagnostics, and hospitalization are all excluded. Those are the types of care that create the most financial hardship for the uninsured, especially lower-income working people who are excluded from Medicaid and other forms of assistance.

Said enrollee Marisol Buritica,

“My employer does offer insurance but it’s extremely expensive and I didn’t want that taken out of my paycheck, so this only being $10 a month, it was … affordable and I was able to have a primary care physician.”

While the plan’s website (Affordable Primary Care) states in passing that it is “not an insurance plan,” the Click2Houston headline reflects a confusion that’s echoed in Ms. Buritica’s own comments. “”I really wanted to be insured but I did forgo being insured for about seven months,” she said.

Ms. Buritica doesn’t seem to realize that she is still “forgoing being insured.” Dr. Jesse Chang, who created the plan, isn’t helping clear the air. “Not able to afford health care really should not be an excuse anymore for anybody,” he said. His plan is not a a cure for “not being able to afford health care,” except for primary care – which is one of its least expensive components.

Comments like that add to the impression that Ms. Buritica and the other enrollees are protected from financial risk due to health needs. She may find herself confronted with the need for costly treatments she’s not able to afford, which Dr. Chang may feel “should not be an excuse anymore” but remains a tragedy for millions of Americans.

This plan is really not much more than an adaptation of the Costco model to private payment for office visits. There may be a useful role for programs of this kind – but only if they are marketed clearly, effectively, and responsibly.

Marisol Buritica is still at risk. If neither Dr. Chang nor Click2Houston will tell her, someone else should.