ACC members are headed to Capitol Hill today, armed with essential takeaways from yesterday morning’s “View From the Hill” session at the 2011 Legislative Conference. The session had an impressive line-up of panelists: Brett Baker, professional staff for the Committee on Ways and Means; Tiffany Guarascio, legislative director for Rep. Frank Pallone, Jr. (D-NJ); and Daniel Todd and Matt Kazan, both health policy advisors for the Senate Finance Committee. The panelists offered their candid views on health care issues that we are all too familiar with these days, specifically the sustainable growth rate (SGRrrr) and malpractice reform.

Panelists talked a lot about fixing the SGRrrr, and reiterated the bipartisan commitment to finding a permanent solution. Baker noted the importance of Congress securing a permanent fix to the SGRrrr this year and taking fiscal responsibility, so that we can finally put the “kick the can” attitude to rest. Todd stressed that at its core, fixing the SGRrrr is truly a bipartisan issue; however, the high price tag of $300 billion is the friction point that has kept the problem from being solved once and for all.  

Another friction point discussed is the polarization of the parties on medical liability. We already know that over 50% of cardiologists have been sued and 30% have been sued more than twice. Kazan cited the University of Michigan and University of Illinois’ seemingly simplistic approach of finding ways to avoid lawsuits in the first place. I pressed Kazan on the issue of tort reform and he suggested reiterating to Congressional members the imperativeness of reaching middle ground. He urged ACC members to ask lawmakers, beginning with today’s congressional visits, to prioritize this vital issue.

ACC’s Advocacy Steering Committee has ranked medical liability reform and SGRrrr repeal in our top priorities for 2011. As such, our advocacy staff has extensively communicated our positions to Congress.  We continue to support a bill from Rep. Phil Gingrey, MD, an OB-GYN from Georgia, which would implement medical liability reform that ensures injured patients are compensated quickly and fairly; improve provider-patient communications; and foster an environment for affordable and accessible medical liability insurance. We also actively advocate for a repeal of the SGRrrr and are dedicated to providing guidance and testing for innovative new payment models that reward quality, cost-effective care.

For those who attended the session, what was your biggest takeaway?

Tort reform has significantly improved the medical liability environment in Mississippi, a new study in the journal Obstetrics and Gynecology concludes. I wrote not too long ago about the types of reforms that took place in my state in 2003. Previously published research has noted a drop in the number of malpractice claims by 91 percent between 2004 and 2009.

The new research supports these findings. The author examines data from the Medical Assurance Company of Mississippi (MACM), which is the largest medical liability insurer in the state, from years before and after the tort reform legislation was enacted. The author found that there was a steep drop in lawsuits against physicians insured by the company after implementation (a 227% drop across all specialties). Additionally, medical liability premiums have been reduced and refunded each year between 2006 and 2010.  The author concludes that the findings “indicate an association between the implementation of tort reform legislation in Mississippi and a sharp reduction in the number of medical negligence lawsuits.”

Part of the reforms that were implemented was a cap on non-economic damages. The constitutionality of this provision has been legally challenged (Sears v. Learmonth), and oral arguments were heard by the Mississippi Supreme Court in mid-June. The court has yet to make a decision, but it would seem (from my perspective) that the cap is an integral part of the success of the reforms. To remove it would be to remove a lot of progress that we’ve seen over the past five years in terms of medical liability insurance.

What do you think? Do you support caps on non-economic damages?

The New York Times on Sunday featured a piece on “judge-directed negotiation” as a possible solution to current medical liability problems. The approach involves assigning a judge with medical knowledge to hold a settlement conference early in the lawsuit process to more actively push for settlements. A nurse with legal training assists the judge in the settlement conference. The approach has been used in the Bronx, and thanks to a $3 million federal grant, will be replicated to Brooklyn and Manhattan, and eventually Buffalo. As I’ve written previously, the Affordable Care Act (ACA) offers funding for pilot programs to test ways of reforming the medical malpractice system.

Judge-directed negotiation works because it “bypasses years of court battles, limiting legal costs while providing injured patients with compensation that is likely to be less than a jury would award but can be paid out years earlier, without lengthy appeals,” according to the Times. New York City public hospitals report that the switch to judge-directed negotiation, along with some other changes, has saved $66 million in malpractice costs per year. AHRQ estimates that implementing the system nationally could save more than $1 billion annually.

In Mississippi where I practice, we implemented tort reform in 2004, to which Governor Haley Barbour (R) attributes much of the economic development we’ve seen over the last seven years. Some of the reforms included:

• Changing rules of venue to prevent abusive court-shopping
• Removing "joint and several liability" rules
• Protecting sellers of products as long as they believe the product is being used as approved
• Putting caps on punitive damages
• Putting caps on non-economic damages
• Requiring the plaintiff's attorney to show that one qualified expert finds a reasonable basis for the case, or has attempted to contact three experts for a consultation (whether or not they agree to do the consult)

Agree with Barbour’s positive economic assessment or not, the laws have created definite “wins” for our state’s physicians and health care system. The number of malpractice claims dropped 91 percent between 2004 and 2009, while the largest liability insurer dropped its premiums 42 percent between those years. We need to see those kinds of results nationwide.

However, passing reforms like the ones in Mississippi would be challenging, if not impossible, in a lot of other states. Although it’s unclear if judge-directed negotiation can have quite the same results as the reforms in Mississippi, it may be easier to implement nationwide and, thus, be able to provide more relief. We’ll have to see how the scale-up of the program goes.

The House Energy and Commerce Committee approved comprehensive medical liability reform legislation, the HEALTH Act (H.R. 5), on May 11 after a day-long markup during which the committee considered more than a dozen amendments. The vote was mainly along party lines with a few exceptions. Republicans Lee Terry (R-NE) and Morgan Griffith (R-VA) voted against the bill and Democrat Rep. Matheson (D-UT) voted for it. (Thanks Rep. Matheson!)

The ACC supports the HEALTH Act, which was introduced by Rep. Phil Gingrey (R-GA). One amendment was withdrawn, one was approved and the remainder defeated. The successful amendment, offered by Rep. John Dingell (D-MI), would make drugs and devices subject to punitive damages if they are misbranded or adulterated and it is the cause of the plaintiff's harm. The issue of states’ rights and potential preemption of state law was brought up repeatedly during the markup. In addition, many Democrats on the committee, including Reps. Eliot Engel (D-NY), Anthony Weiner (D-NY), Jay Inslee (D-WA), and Jan Schakowsky (D-IL), stated that physicians’ premiums are too high and something needs to be done, but they do not support caps as an answer; rather, reforms that address the insurance companies are a better solution. Inslee also suggested that evidence-based standards of care should provide protection to physicians.

The legislation, which was approved by the House Judiciary Committee earlier this year, will now go to the House floor for a vote.  It should pass, but is unlikely to go anywhere in the Senate, unfortunately. It’s still important to push for caps on non-economic damages anyway. The educational value may pay off later on.

Physician blogger Kevin Pho (Kevin, MD) recently discussed the Affordable Care Act-funded pilot projects taking place around the country that aim to test innovative ways to reform the medical malpractice system. According to Pho, “many of the projects have a quality improvement and patient safety focus,” as opposed to capping non-economic damages. We fully support efforts like these. The ACC has been highly supportive of a bill by Rep. Phil Gingrey, MD, an OB-GYN from Georgia, which would implement medical liability reform that ensure that injured patients are compensated quickly and fairly; improve provider-patient communications; and foster an environment for affordable and accessible medical liability insurance.

That said, that the pilot projects aren’t addressing a wider range of malpractice solutions is disappointing. There are so many other ways that medical malpractice reform could occur, and diversifying the pilots would better enable the country to figure out what’s best for patients and best for physicians. It’s a disturbing fact that 50% of cardiologists report ever having been sued, and 30% report they’ve been sued more than twice. We need innovative solutions, and we needed them yesterday. In addition to caps on non-economic damages (it may never happen thanks to the strength of the trial lawyer lobby, but that doesn’t mean the ACC can’t support it), here are the other malpractice reform options the ACC supports:

• Health Courts: Health courts are specialized administrative courts designed to handle medical injury disputes;
  
  
• Certificate of Merit: Requirement to obtain a written statement by an appropriate licensed professional, certifying that there exists a reasonable probability that the treatment fell outside acceptable standards and that such conduct was a cause in bringing about the harm;
  
  
• Collateral Source Rule: Eliminating the collateral source rule would allow juries to take into account payments from other sources when calculating awarded damages;
  
  
• Periodic Payments: Allows the defendant to make periodic payments of future damages over $50,000, if the court deems appropriate, instead of a single lump sum payment.  It would ensure that funds continue to be available to the plaintiff to cover these future cost as they occur and avoiding the mismanagement of a lump sum payment;
  
  
• Adherence to Practice Guidelines and Appropriate Use Criteria: This provision would offer limited liability protections to the physician or health care professional who offered care within nationally-accepted clinical guidelines or appropriate use criteria;
  
  
• Expert Witness: Requirement that expert witnesses meet certain qualifications prior to testifying, such as must be a licensed physician and must be in the same or similar specialty as the defendant. Expert witnesses must also have been in practice within the past five years, which can include academic or clinical research programs.

What’s your preferred malpractice reform? Do you think focusing on quality improvement and patient safety will go far enough to improving the current situation?

By John Gordon Harold, MD, MACC, vice president-elect and former chair of the Board of Governors

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ACC’s Advocacy Steering Committee met early this morning to discuss our priorities for the next year. While new issues will likely arise, the following issues are ones where the College can proactively lead change or support cardiovascular professionals as they continue to provide quality care.

ACC Priority Issue #1: Reform Physician Payment.

This isn’t a new priority by any means, but with our health care system in flux under reform, this is our chance to enact the changes we’ve been pushing for over the past couple of years. This includes: repealing the sustainable growth rate; promoting alternatives to radiology benefit managers; providing guidance and testing for innovative new payment models that reward quality, cost-effective care; and mitigating the effects of Medicare/Medicaid rules on cardiovascular professionals.

ACC Priority Issue #2: Reform the Health Care Delivery System.

The health care delivery system is undergoing a much-needed overhaul. It’s us to up to make sure that whatever happens, the outcome allows for cardiovascular professionals to continue to provide high-quality care. This means we need to work with Congress, policymakers and other stakeholders to define what constitutes an accountable care organization, independent practice association and the patient-centered medical home. In addition, when it comes to the health reform law, we’ll need to improve the provisions that negatively impact cardiology and work with chapters on the state-specific health reform issues.

ACC Priority Issue #3: Tort Reform.

Definitely an ongoing issue, although one that is receiving more discussion this Congress compared to past. We’ll continue to support a bill from Rep. Phil Gingrey, M.D., an OB-GYN from Georgia, which would implement medical liability reform that ensure that injured patients are compensated quickly and fairly; improve provider-patient communications; and foster an environment for affordable and accessible medical liability insurance. Separately from this bill, we’ll work with Congress and state lawmakers to incorporate other reforms, such as health courts, certificates of merit and adherence to practice guidelines.

ACC Priority Issue #4: Health Information Technology.

There’s a lot going on federally with health information technology and we need to make sure ACC members are ready. For example, to avoid a penalty in 2012, physicians need to start e-prescribing between now and June. In addition, up to $44,000 per physician is available to providers who can demonstrate meaningful use of an electronic health record. We have to provide the resources to make sure ACC members are able to participate in these programs and capitalize on the financial incentives.

ACC Priority Issue #5: Regulatory Changes.

Regulatory changes are underfoot, and we need to get in now to shape the policies so that they don’t compromise high-quality patient care. Some issues that we’ll need to stay involved in: the transition to ICD-10 codes for medical diagnosis and inpatient procedure coding; new imaging lab accreditation requirements for Jan. 1, 2012; coding changes based on bundling trends; and the FDA focus on radiation safety and medical and device safety.

We’ve got our work cut out for us. What are your thoughts on these priorities? Are there any you would add?

Last week was a two-ring circus over budget issues. First, the 2011 budget for government for THIS year is not approved, and the entire federal government will be devoid of funding March 1 if they don’t get that done. Then, they are also of necessity now reviewing the 2012 budget, which was released last week. For 2012, the newly elected members of Congress obviously plan to make HUGE cuts in federal programs. 

Here are some of the highlights (or should I say ‘lowlights?) of the proposed 2012 budget:

• Medicare and Medicaid: Proposes $62 billion in savings over 10 years to Medicare and Medicaid, while Medicare costs increase by an estimated $54 billion. This will be done by saving in Quality Improvement Organizations and dedicating penalties for failing to enact electronic health records into the Medicare trust fund. This all seems kinda nebulous to me.
  
  
• SGR: The 2012 Budget provides $54 billion to temporarily freeze physician payments at current levels for 2 years. This 2-year fix is paid for by squeezing payments to hospitals and physicians (kind of ironic?) as well as increased usage of generic drugs. The specific offsets include:
  • Reducing the Medicaid provider tax threshold starting in 2015
  • Strengthening Medicaid third-party liability 
  • Tracking high prescribers and high prescription drug users in the Medicaid program to reduce waste, fraud, and abuse
  • Recovery of inappropriate payments to Medicare Advantage plans
  • Creating a system to validate high-risk services ordered by physicians and practitioners

• Tort Reform: The ACA included grants to states for implementing medical malpractice reform initiatives beginning in FY 2011, although Congress has yet to allocate funding for the full year.  The President’s budget proposes $100 million for these grants in FY 2012, followed by $50 million each year through FY 2015.  
  
  
• Medical Research and Public Health: Increasing NIH funding by $1 billion (from $30.8 billion to $31.8 billion); cutting CDC funding by 9% (from $6.5 billion to $5.9 billion); cutting AHRQ by 8% (from $397 million to $366 million), but transferring $24 million from Patient-Centered Outcomes Research Institute to bring AHRQ to $390.4 million.

HHS Secretary Kathleen Sebelius has been busy testifying to the various committees about the proposed budget. Last Tuesday, she testified before the Senate Finance Committee and on Wednesday before the House Ways and Means Committee. At both committee hearings, the SGR came up multiple times. Chair Max Baucus (D-MT) opened the Senate Finance Committee hearing by emphasizing the importance of enacting permanent repeal of the SGR and noted the negative effects uncertainty in physician payment has on physician practices and Medicare beneficiaries’ access to quality health care. Senator Orrin Hatch (R-UT) echoed the Chairman’s remarks, clarifying the need to find responsible ways to pay for a permanent solution.

Medical liability reform was also a heavily discussed topic at both hearings. Senator Tom Carper (D-DE) discussed during the Senate Finance Committee hearing the importance of reducing instances of defensive medicine and the impact medical liability reform can have on reducing overall health care costs. Sec. Sebelius referred to the provision in the budget that would establish cost saving measures within medical liability programs. When asked her position on medical liability reform in the Ways and Means hearing, the Secretary said she does not support caps but supports the President’s goal of exploring other reforms.

Sec. Sebelius at the Ways and Means hearing said the budget reflects the point that you “cannot build prosperity on a mountain of debt.” Duh.  

Page one from the State Advocacy Workgroup's playbook says that if you "work with state medical societies and physician specialty groups, ... state officials will listen." Recently, joint advocacy efforts by the ACC’s Colorado Chapter and other physician groups saw just that result. The Colorado Supreme Court has been working to streamline the judicial process to ensure trials don't drag on indefinitely. While physicians have long pressed for governmental efficiency, especially in courts, the proposal was fraught with problems. It set pre-trial rules and deadlines for discovery and expert testimony, preventing physicians from responding to new arguments and evidence during trials.

One medical group raised its concerns to the state Supreme Court, and they received a form letter expressing thanks for raising the issue and a promise to consider their concerns. When the issues were raised not by one group, but by 24 physician groups, the Colorado Chapter of the ACC and the Colorado Medical Society, the results were much different. As a result of the collaboration, the CO Supreme Court panel set up a series of workgroup meetings to allow physicians to express their concerns and help re-write the policy. And because defense lawyers expressed similar concerns, the Chapter is hopeful that sensible rules of procedure will result.

This is a great example of how locking arms with friends across the House of Medicine, chapters can set the stage to protect physicians on dangerous ground either in the court room or state capitols. CO Chapter executive Lianna Collinge, former ACC CO Governor Eugene Sherman, M.D., F.A.C.C.,  and current ACC CO Governor Thomas Haffey, M.D., F.A.C.C., set a fine example for all Chapters.  

Speaking of medical liability reform, Rep. Phil Gingrey, M.D., an OB-GYN from Georgia, has introduced the “Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act” (H.R. 5). The ACC is supporting this legislation, which would increase patient safety; ensure that injured patients are compensated quickly and fairly; improve provider-patient communications; and foster an environment for affordable and accessible medical liability insurance. The House Judiciary Committee approved the bill yesterday. The committee rejected all amendments, except one, on party line votes. The committee accepted an amendment by Cong. Scott (D-VA) removing collateral source rule reform from the legislation.  More details are available on the committee’s website. Stay tuned to “The Advocate” for updates and next steps. This issue is an ACC Advocacy priority! Read the ACC letter on the bill.   

What challenges will cardiology face in this politically tumultuous year? Read on. Last week the Coalition of Cardiovascular Organizations (CCO) met at Heart House to forecast, discuss, and seek consensus on what is on the horizon in 2011 on the congressional and state advocacy agenda. President Ralph Brindis, MD, FACC, President David Holmes, MD, FACC, and President-Elect Bill Zoghbi, MD, FACC, with ACC SVP of Advocacy Jim Fasules, MD, FACC, and I represented the ACC, along with the officers and staff leaders of Heart Rhythm Society, Society of CV Angiography and Interventions, American Society of Echocardiography, American Society of Nuclear Cardiology, Society of CV Computed Tomography, Society of CV Magnetic Resonance, Heart Failure Society of America, Society for Thoracic Surgery, the Association of Black Cardiologists, and Society of Atherosclerosis Imaging and Prevention. The Society for Vascular Surgery couldn’t attend.

It was a great exchange! Here’s my view of what we came up with as consensus priorities:

• Payment reform issues, including the getting rid of the SGR, are critically important to all. There was a general sense that we have to look beyond fee for service, and explore other bundling, episodes of care, and global budget opportunities, where an upside is conceivably possible, but certainly not easy to achieve. Some members will want to stay with fee for service, and we need to protect them as well. But re-aligning incentives and going where opportunities are is a big challenge for all of us. Business as usual is not going to work.
  
  
• Championing quality improvement is a major part of how we take on the above issues. We need our registries and accelerated abilities to continue to translate science into better clinical guidelines, performance measures, appropriate use criteria, and other tools to do that. This is how we will lead in cost containment and improving value.
  
  
• Addressing and monitoring workforce issues, including what the heck is really going to happen to primary care? What will the future role of specialists be?
  
  
• We need tort reform -- we have ideas here.
  
  
• Accountable care organizations and pressure for integration -- needs to be implemented such that physicians are not at a disadvantage to hospitals or insurers in the design and governance of such structures if they proceed. In some form, I believe, they will.
  
  
• Myriad specific issues: The RUC and CMS assaults on cardiology; precertification issues with insurers; RBMs; meaningful use, PQRS (formerly PQRI), fair e-Rx incentives and requirements; protecting private practice viability; adding value to hospitals where members are employed, consulting cuts, etc. We need to develop leadership skills too!

Doing all of this is tough in a zero-sum Medicare game; with ongoing disparities in evidence; with no respect for long-term value (VADs, transplants, TAVI); and docs not paddling together.

The WSJ Health Blog featured an interesting discussion yesterday about using mediation to settle health care malpractice lawsuits rather than going to trial. In a study of 31 malpractice cases from non-profit hospitals in New York City, 16 were settled through mediation, five were settled afterward and 10 were not settled. Of those who agreed to go to mediation, the patients bringing the complaint, the hospitals representatives, insurers and lawyers reported being satisfied with the process. At Kaiser Permanente where I am employed, we use mediation with great success and general happiness by all parties. The study notes that no physicians accused of malpractice participated in the mediations, with their lawyers citing full work schedules as a reason for not attending the mediation.

There’s plenty of talk these days about how we can reduce the costs associated with defensive medicine. In fact, as Jack pointed out, cardiology has one of the higher rates of malpractice across the board (49.4% ever sued; 29.8% sued two or more times; 3.3% sued in the last 12 months; 110 claims/100 doctors). While the ACC strongly believes that defensive medicine can be reduced with tort reform (see some specific suggestions here), I’d be interested to hear your thoughts on using mediation as a method. Would you ever participate in mediation for a malpractice suit?