All posts by Darryl S. Weiman, M.D., J.D.

“Brain Death” At Risk

There is a case making its way through the California legal system which may result in a religious exception for the “Brain Death” statute. The case of Jahi McMath began on December 9, 2013 when she underwent a tonsillectomy and adenoidectomy at the Children’s Hospital of Oakland. She had post-operative bleeding which resulted in a cardiac arrest. Ms. McMath was successfully resuscitated but there was a period of time when her brain was not getting enough oxygen. As a result, she suffered a severe brain injury.

On December 12, 2013, McMath’s physicians declared her “brain dead,” and, without the mother’s permission, notified the California Transplant Donor network that Ms. McMath’s organs should be evaluated for possible harvesting and transplantation. As long as McMath was on a ventilator, her heart would beat and her organs would remain useful for transplant purposes.

By the physician declaring Jahi “brain dead” she would be legally dead under California law. There would be no obligation for the hospital to continue her life support and the insurance company would not have to pay for further care, regardless of any family wishes.

Ms. McMath’s mother, Nailah Winkfield, refused to acknowledge the “brain death” pronouncement and took legal steps to block the removal of her daughter’s life support. She asserted that their religious beliefs were that death only occurs with the loss of cardio-respiratory function and the loss of brain activity was irrelevant.

The case was heard by Superior Court Judge Evelio Grillo who held that Jahi met the criteria for brain death under California law; this ruling would allow the hospital to remove the ventilator. However, he stayed his ruling so that life support could be maintained while Ms. Winkfield appealed to a higher court.

During the appeals process, a U.S. Magistrate Judge oversaw negotiations between the hospital and Ms. Winkfield. The parties agreed to allow Jahi to leave the hospital, with life support, but only upon the completion of Jahi’s death certificate. The death certificate was issued but was incomplete pending an autopsy. The Coroner released the body to the family who moved the body to a location in New Jersey where a tracheostomy was done and a feeding tube placed. Obviously, an autopsy was not done.

New Jersey’s “brain death” law had an accommodation for religious beliefs. Under the accommodation, if religious beliefs preclude a brain death declaration, then the time of death could only be based on cardio-respiratory criteria. Jahi was deemed to be dead in California but alive in New Jersey.

Under New Jersey law, the physicians taking care of Jahi could not remove the ventilator and the insurance company had to pay for the ongoing medical costs. New York and New Jersey are the two states which have religious exemptions to their “brain death” laws. The exemptions were put in place due to concerns of large numbers of Orthodox Jewish residents in those states some of whom object to the concept of brain death.

According to media reports, Jahi improved and was moved to an apartment in August 2014. Her attorney claims that subsequent evaluations show blood flow and electrical activity in the brain and he further claims that Jahi will move on command. He has asked the California courts to reverse the findings of “brain death” in this case. If the brain death determination is not reversed, then moving Jahi back to California would put her at risk of not having any medical support.

Ms. Winkfield argues that they are being denied medical care even though they have a religious belief that death does not occur until the heart stops beating. The California death certificate, they claim, violates their Free Exercise rights under the First Amendment of the Constitution. California will probably argue that the law is neutral in nature and was not meant to violate any religious belief or practice.

The questions raised by this case are far-reaching. For a malpractice case originating in California, compensation is limited to $250,000 if the patient dies but there is no limit if the patient is still alive. For financial reasons, it would be in Ms. Winkfield’s best interest to have Jahi’s death declaration on neurologic grounds overturned.

In fact, in March 2015, McMath’s family filed a medical malpractice lawsuit against the surgeon who performed the operation on her tonsils and against the Children’s Hospital of Oakland. They will probably argue that Jahi is not brain dead and the California state limit of $250,000 for patients who are dead does not apply. They will have to argue that the death certificate is evidence of a violation of their Free Exercise rights under the First Amendment of the United States Constitution. This will be a difficult argument to win.

Of more concern is the effect that an overturning of the “brain death” statute would have for organ transplantation. If the McMath litigation results in an overturning of death certification by neurologic criteria, transplantation for patients with end organ dysfunction will come to a halt. Waiting for the heart to stop before declaring death will cause many otherwise suitable organs to be unusable for transplant purposes. Once again we are faced with a conflict between clinical practice, medical ethics, and religious beliefs. It would be best for a national debate, emanating from the Congress of the United States, to address these issues.

The definition of death and the interpretation of patient autonomy and best interests should not be left in the hands of individual courts who are dealing with issues that have already occurred. Since organ transplantation crosses state lines and funding for research in transplantation comes from sources across the country, the Commerce Clause would allow legislation of this complex issue to originate from Congress. Legislation is better able to look into the future and is better able to bring the debate to the public with more time and resources to come to a reasonable solution to this complex issue. This debate should start now.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 

Resident Duty Hours

When I was doing my surgical training at the University of Chicago in the late 70’s and early 80’s, it was common to spend over 100 hours per week in the hospital. The term “resident” was very accurate as we were essentially living in the hospital; we stayed until the work was done. During the great snow of 1979, I lived in the hospital for a month as my car had been plowed over and the wind chill made it dangerous to walk home.

Residency training programs followed the German model. William Osler used that model for Johns Hopkins in 1899, creating the first residency training program in America. Residents learned by doing clinical work, taking on increased responsibilities as they gained experience. They lived in the hospital and, in general, they were not allowed to get married during their training. Other hospitals adopted the model and it became the norm for training physicians. Resident duty hours were to change dramatically in the mid 1980’s based on a tragic case emanating from the New York Presbyterian Hospital in 1984.

Libby Zion, an 18 year old college freshman was admitted to New York Hospital (now New York Presbyterian) with a high fever and “jerking movements.” It was the evening of March 4, 1984. She was agitated but she had periods where she was cooperative with the physicians taking care of her. Since she came in the evening, the physicians who were directly caring for her were residents—doctors in training. Ms. Zion had a history of depression and she was taking an antidepressant called phenelzine. This drug was to play an important role in her clinical course. She also used cocaine, a fact she did not tell the physicians taking care of her. This drug may also have had a role in her clinical course.

The residents made a diagnosis of viral syndrome and they ordered meperidine (Demerol), an opiate, to stop the shaking. They called Dr. Raymond Sherman, the Zion’s family doctor and the attending physician of record and, after hearing the resident’s report, he agreed with the plan. It was about 3 a.m. on March 5.

Later that night, Ms. Zion became more agitated and the first year resident, Dr. Luise Weinstein, evaluated her and ordered restraints and a shot of Haloperidol, another sedating medication. The upper level resident, a second year, had gone across the street to the call rooms to get some sleep. Dr. Weinstein was covering many other patients and did not evaluate Ms. Zion any further.

Although Ms. Zion calmed down after the shot, her vital signs were not checked until 6 a.m. when her temperature was a critical 107 degrees Fahrenheit. Cooling measures were initiated but she suffered a cardiac arrest and died. It is believed that the interaction of the phenelzine and meperidine, led to the development of “serotonin” syndrome, a condition not well known at that time. This syndrome can result in severe muscle rigidity, high fever, and seizures. It can be fatal if not treated in a timely fashion. The role of the cocaine use was not clear.

Libby’s father, a lawyer and journalist who worked for the New York Times, investigated and learned that his daughter had be restrained and was not evaluated by a physician for several hours. He also learned that the attending physician had never come in to evaluate Libby himself. Mr. Zion argued that the lack of sleep of the intern and resident and inadequate supervision by the attending physician contributed to this “medical blunder.” Mr. Zion told his daughter’s story and had several of his colleagues in other newspapers publish this story across the country. He was even able to get the Manhattan district attorney to convene a grand jury in hopes of bringing murder charges against the physicians involved in his daughter’s care.

Besides a criminal action, a malpractice claim was also made. This malpractice case finally made it to trial in 1994. After a civil trial, the jury assigned equal blame to New York Hospital and Ms. Zion for concealing her cocaine use from the physicians taking care of her. The jury found that the two residents and the primary care physician were liable for $375,000 to the Zion family for their pain and suffering. The jury also found that the primary care provider had committed perjury on the witness stand when he denied that he knew that meperidine had been given to Ms. Zion. None of the physicians was found to have committed “wanton” negligence so the malpractice claim was paid by their malpractice carrier. Wanton, or gross negligence, is generally not covered by medical malpractice insurance carriers.

The grand jury did not indict the physicians on criminal charges, but they did write a report that was highly critical of the hospital for having junior level physicians who were tired from long duty hours being the primary care givers for this type of case. The report led to the formation of a state commission, chaired by Bertrand Bell, M.D., a distinguished Professor of Medicine at Albert Einstein College of Medicine. In 1987, after 19 months of testimony, the Bell Commission issued a report which recommended that physicians in training have stricter limits on work hours and stricter rules on resident supervision. The Commission recommended that the residents work no more than 80 hours per week. Dr. Bell later acknowledged that the 80 hour cap was not based on any scientific data but was the result of a conversation he had with a medical colleague. These recommendations were only applicable in the state of New York but several other states followed this example.

It took another 16 years for the Accreditation Council for Graduate Medical Education (ACGME) to make these duty hour restrictions mandatory for all residency training programs. This restriction in duty hours has been an area of contention for students, residents, and attendings ever since. The argument that a well-rested physician is better able to make clinical decisions has never been shown to be true in clinical studies. Any training program which has duty hour violations may be subject to sanctions by the ACGME. The sanctions can be severe and can include loss of accreditation.

Despite nearly two decades of resident duty hour restrictions, the best training model for future physicians is still unknown. Patient polls indicate that the general public favors the restrictions but that should not be surprising since the public is generally naïve in regards to graduate medical education. A recent study of duty hours published in the New England Journal of Medicine, showed that residents with less restrictive hours are better able to use their time off (more “meaningful” time off) and the time off is more likely to be used for study (N Engl J Med. 2016;374:713-727). Residents in the less restrictive arm of the study could actually have some weekends free of any clinical responsibilities; weekends off rarely occur under the restrictive requirements.

The limitation of work hours has led to shift work where patient care information is relayed with “hand-offs” and these “hand-offs” have had the unintended consequence of actually increasing patient errors. This is probably predicated on the underlying belief that the most invested physician is the one originally involved with a particular patient. As the “shift mentality” became embedded, the desire of the physician to manage a critical patient until stable lessened. Shifting responsibility to another physician who does not know the patient nearly as well as the primary provider, to me, is professionally repugnant.

Although the duty hour restrictions only apply to residents in training, my fear is that this “shift mentality” persists when the resident becomes an attending. Patients get sick day and night, weekends and holidays. The best care is provided by the physician who best knows that particular patient. For a surgical patient, it is the surgeon who did the case.

There is nothing to keep the government from limiting duty hours for other health care providers, including attending surgeons and physicians. This model has already been set in the airline industry. If these restrictions become law, a patient may be dependent on a surgeon he does not know and, much worse, does not know the patient.

It is time for the ACGME to revisit its penalties for duty hour violations. If a resident chooses to stay with a sick patient, there should be no penalty levied on the training program or on the resident. This type of behavior should be encouraged. Staying with a sick patient is a hallmark of a good physician.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 

Private Practice Versus Academics

As a young surgeon nears the completion of his training, he will need to make a decision as to the type of practice to join. If he wants to practice surgery, do research and teach, then an academic position may be the best choice. If he just wants to take care of patients, operate, be his own boss, and do very well from a financial standpoint, then private practice is the way to go.

Under a true private practice model, the physician is his own boss. He can work as hard as he wants and take care of as many patients as comes his way; the goal is to make a good living, hopefully in a location of his choosing. The downside of this practice model is that time away, either a vacation or a continuing education activity can be nerve racking. Lost time is lost income.

The overhead is very high in a private practice so some may choose to become an employee of a hospital or health care group. In this model, the physician will have a salary based on work done. In either of these private practice models, the physician will need some business knowledge to generate referrals. Marketing one’s skills and knowledge will be critical for success.

Physicians going into an academic practice, usually with a teaching hospital affiliated with a university or medical school, should have an interest in teaching and research. The employing hospital or university will expect teaching and research activity and some of the salary will be tied to these areas. The physician will still be expected to provide patient care and the salary will be related to the generated income, but a guaranteed salary goes a long way to relieving the anxiety of meeting overheads and making a living.

The University surgeons, those with an academic practice, focus on the complex and unusual. It is appropriate for complex patients to come to a university setting where the health care infrastructure is robust. Residents are in the hospital at all times and sudden changes in a patient’s condition can be evaluated by a physician quickly. These residents will keep the attending physician informed so that appropriate care can be initiated in a timely fashion. Residents, as a first line of care, are worth their weight in gold for the academic attendings. This is especially true in the middle of the night when the attending surgeon may not have to go in and evaluate the patient himself.

Some say that academic surgeons are the surgeons of last resort. Because of their goal to advance medical knowledge, they are inclined to take on the tougher cases. They also have resident surgeons to help in the operating room; this extra pair of experienced hands can be useful in difficult cases and is less expensive than calling in another surgeon to help. In general, you will not read about university surgeons in the newspapers. Well, that’s not exactly true as some do like to make headlines. Academic surgeons do research, teach future generations of health care providers, and take care of patients—all patients, whether they can pay or not.

Unfortunately, the last few decades has seen less financial support going to university centers from their state and local governments and less from federal funding and philanthropy for research. As a result, the academic model has changed; physicians are expected to generate more of their income from clinical care. The fact that third party payers are giving lower reimbursements has made this new model even more difficult.

Duty hour restrictions on the residents have resulted in an increased faculty involvement in patient care. Since there is only 24 hours in a day, time spent for research and teaching has decreased. It is not surprising that clinicians are spending less time doing research, either clinical or in the lab. The PhD’s who can focus totally on research, are finding it more difficult to get the help they need from the MD’s who are the ones able to bring the research findings to the clinical arena. After all, the PhD’s are not licensed or trained to take care of patients!

We are heading into a doctor shortage as our population has increased and our residency slots have remained capped. Salaries which are crucial to attract an academic physician have fallen, but the need to attract this type of clinician had increased. It is a challenge to find someone who is willing to do primarily clinical work in an academic setting. After all, if the job is mainly clinical, then you might as well do it for more money in a private setting.

Having trained at the University of Chicago which is focused on making academic physicians, it is not surprising that I chose the academic route.

As an academic cardiothoracic surgeon. I do cardiac surgery mostly; coronary revascularizations, cardiac valve operations, and I have been involved with cardiac transplantation. I also do operations on the pulmonary system; lung resections for cancer, lung volume reduction for patients with chronic obstructive pulmonary disease, and clean outs (decortications) for lung infections. The trachea, esophagus, chest wall, diaphragm, and great vessels are also areas of interest.

Academic surgeons love what they do! The pay is good; by that I mean fair. They will never be considered in the same financial class as the private practitioners but that’s ok. By training future surgeons, their knowledge and experience will live on for years. By advancing medical knowledge, they are helping enumerable future patients most of whom they will never meet. This is a legacy worth pursuing.

As to the future of medicine, I am not so optimistic. The goals used to be to improve and prolong life. But now that costs of medical care are so high, they have become a factor in the equation. Ethicists and politicians are now involved in deciding when the costs of care outweigh the perceived benefit. All I can do is shake my head and hope that physicians can be strong and principled enough to continue to do what they believe is right for the patients.

Doctors are human. Not all of their outcomes are perfect as they are not. Sometimes they are heroes, but things have a tendency to be messy. The pressure of being a surgeon can be intense but the job satisfaction is second to none. I hope that future generations will be willing to work hard to learn to do what I do. It is an honorable calling.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 

Is Health Care In America Really So Bad?

On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (ACA). The intent of the law was to provide health insurance to all Americans while, at the same time, lower the health care costs for the people and the United States government. Although it seems counterintuitive, President Obama promised that the plan would lower the cost of health insurance premiums while at the same time, reduce government spending. It is hard to see how this promise could have been sincere, especially since the plan would have added over 30 million patients into the mix.

I think most would agree that health care in our country is expensive. In 2009, the United States spent 17.3 percent of the gross domestic product (GDP), about $2.5 trillion on health care. This was the most spent for health care by any country in the world. We also spend more than any other country on defense. I think both of these things are good. We should be spending on health care and defense to maintain our way of life which I believe is the best.

Proponents of Health Care change make claims that despite spending more on health care than other countries, the United States lags behind in critical health care measures such as life-expectancy and infant mortality. However, a critical look at these measures shows that the United States is really not so bad.

While it is true that life-expectancy in the United States is less than about 30 other countries, it is likely related to the high homicide rate in America along with the high death rate from auto accidents, both of which are much higher than those found in other Western countries. If we factor out homicides and auto accident fatalities, then the United States has the longest life-expectancy. Homicides and auto related deaths, while concerning, should not count on our quality of health care analysis. (Glen Whitman, “Who’s Fooling Who? The World Health Organization’s Problematic Ranking of Health Care Systems,” CATO Institute, February 28, 2008)

Infant mortality is defined differently depending on the country. Since the definitions differ, it is not surprising that the mortality rates differ. In America, a birth is counted as live if there is any sign of life, regardless of the birth weight or gestational age. This follows the World Health Organization (WHO) definition which defines a live birth as one where the infant, removed from the mother, “breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles.” (Geneva Foundation for Medical Education and Research, Live Birth Definition)

In Switzerland, the baby must be at least 30 centimeters long at birth to be counted as a live birth (David Hogberg, Ph.D., “Don’t Fall Prey to Propaganda: Life Expectancy and Infant Mortality are Unreliable Measures for Comparing the U.S. Health Care System to Others,” National Policy Analysis, July 2006). Even if it’s breathing and the heart is beating, a subsequent death will not be counted as an infant mortality in that country if the baby is shorter than 30 centimeters.

In France, there must be a medical certificate stating that the baby was born alive and viable. Without that certificate, a subsequent death will not count as an infant mortality. Also, in France and Belgium, babies born before twenty-six weeks are counted as deaths even if they fit the WHO criteria for live birth. (Bernadine Healy, “Behind the Baby Count.” US News and World Report, September 24, 2006) It’s obvious that using infant mortality rates as a measure of quality health care is a disingenuous argument for those claiming our health care system is not so good.

I believe that the cost of our health care is reasonable for what we get. It is the best health care in the world. Many of our treatments lead the way for both cure and palliation. Cancer treatments, Human Immunodeficiency Virus (HIV) care, and cardiac and vascular surgery advances are the best in the world. When Russian President Boris Yeltsin needed heart surgery, they sent for Dr. DeBakey’s team from Baylor in Houston.

It is not unusual for other world leaders to send their families or themselves to our country for their own care. When I was a resident at the University of Chicago, it was not unusual for world leaders to take over a hospital floor while they were cared for at that facility. I was even reprimanded by the United States Secret Service when I mistakenly entered the area during one of my rounds.

Former Vice-President Cheney had a left ventricular assist device keeping him alive for quite a while until he was able to get a match for a heart transplant. He spoke to one of our surgical societies where he described his course. He was doing great and I could not see any detrimental effects of his prolonged illness. This type of care is available to all in the United States!

As a Cardiothoracic surgeon, I am frequently exposed to dangerous blood borne infections such as Hepatitis C and Human Immunodeficiency Virus (HIV). I was most fearful of Hepatitis C for which, until recently, there was no good treatment and the resulting death was from fulminant liver failure—not a pleasant way to go.

Now, there is a new drug, Sovaldi (sofosbuvir), to treat Hepatitis C and it is curative. It costs $80 thousand for a course of therapy but the illness would otherwise lead to death or to a liver transplant and further immunosuppressive drug therapy the costs of which would exceed the pills. It makes sense to use this new class of drugs but there is an on-going debate that the drug manufacturers are gouging the public. It is a breakthrough therapy where the developers are being chastised instead of honored. What a shame.

The high cost of drugs reminds me of when I was a young resident and surgeon. Tissue plasminogen activators (tPA) and other clot busters were being introduced as a way to treat patients with myocardial infarctions. The drug was expensive; over $2 thousand to save a heart attack victim. This was deemed exorbitant in the 1980’s. Now it is the standard of care and no one is complaining about the costs.

Drug companies spend millions of dollars on research and development of new therapies and they take a huge financial loss for the drugs that do not pan out. However, when they do have a success like with Hepatitis C, then I don’t have a problem with them charging high rates. This sends the right message to those involved in research and development that what they are doing will be rewarded if they are successful. We want the researchers to be advancing the science of medicine and this is the way to do it.

New endovascular techniques are allowing high risk patients to undergo complex aortic repairs and even aortic valve replacements. These patients would not have tolerated the difficult open procedures that would have been required in the past. With new aortic valves and aortas, many of these otherwise healthy individuals may live for another 10 or 20 years and the lives will be meaningful. Who wouldn’t want that?

…if you think research is expensive, try disease.’ Sure it’s expensive, but life and health are among the most precious things we have. Who wouldn’t spend what is necessary to save a loved one or themselves?

Mary Lasker was a health activist and philanthropist who raised funds for medical research. She helped found the Lasker Foundation. She has been quoted as saying, “if you think research is expensive, try disease.” Sure it’s expensive, but life and health are among the most precious things we have. Who wouldn’t spend what is necessary to save a loved one or themselves? A Lasker Award is often a harbinger of the Nobel Prize in Medicine as, at least 86 Lasker Award winners have gone on to win the Nobel.

My grandparents used to tell us to get the best doctors if we were sick and the best lawyers if we were confronted with legal problems. You’re looking for the best return on your investment and there is nothing more important than your life and health. It is said that there are problems that money can solve and then there are real problems. Perhaps we are spending more on health care because we are getting the best health care. I am OK with that and I think that most Americans would agree with me.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 

Who Pays for Resident Salaries?

After medical school, the new graduates are required to do further training in residency programs which can last from 3 to 8 years. This training takes place in hospitals around the country and is overseen by the Accreditation Counsel on Graduate Medical Education (ACGME). During this training, the residents spend long hours in the hospitals and clinics where they learn from attending physicians. This added training is essential as the four years of medical school is just not enough to learn all the material and skill sets necessary to safely and independently take care of the multitude of problems that these physicians will face from the patient population.

Unlike medical school where the student is paying a tuition for the education, the resident physicians are paid a salary. They are providing valuable work for the hospitals and clinics as they are taking care of patients and providing coverage day and night, weekends and holidays. This salary is about $50,000 per year. In comparison, a physician assistant salary is about $86,000 per year. Surprisingly, most of a resident’s salary is funded by the United States government. This funding emanated from Congressional hearings which occurred during the formation of Medicare in 1965.

“Educational activities enhance the quality of care in an institution, and it is intended, until the community undertakes to bear such education costs in some other way, that a part of the net cost of such activities (including stipends of trainees, as well as compensation of teachers and other costs) should be borne to an appropriate extent by the hospital insurance program.” (House Report, Number 213, 89th Congress, 1st session 32 (1965) and Senate Report, Number 404, Pt. 1 89th Congress 1 Session 36 (1965))

Under President Lyndon Johnson, the Social Security Act of 1965, established Medicare. A part of Medicare was funding for the residency positions throughout the country. Since there are about 100,000 residents in training, the salary for these residents is about $5 billion. There are other costs associated with educating residents such as malpractice coverage, attending salaries attached to the teaching component of the practice, and the added costs of the clinical tests ordered by the residents who have a tendency to order more than a more senior physician may be inclined to do. Other costs include a Graduate Medical Education office to administer the training programs, accreditation fees, and educational space. Medicare also pays for a portion of these added costs so that, today, about $10 billion is distributed to the various teaching hospitals in the country to cover the costs of this graduate medical education.

Medicare payments for these Direct Graduate Medical Education (DGME) costs go directly to the hospitals that train the residents. Payments to the residents come from the hospitals. In many states, Medicaid also provides some funding for Graduate Medical Education. Veterans Administration Hospitals also provide funding for residents in their hospitals.

Teaching hospitals also receive an Indirect Medical Education (IME) payment from Medicare for the increased medical costs associated with treating more complex patients. This payment is directed for maintaining a standby capacity for such things as burn units and trauma centers; these payments are not for resident training costs.

The United States funding of graduate medical education serves a strong public interest. A knowledgeable, trained, experienced, and skilled physician work force is essential to provide the health care needed for our society.

Prior to the establishment of Medicare, residents would work for the hospital but they were paid very little. They would generally live in the hospital, thus the term “resident.” They would rarely get time off but they would usually be fed and have their uniforms and malpractice insurance premiums paid for by the hospital. The elite residency programs like Johns Hopkins, Massachusetts General, the University of Chicago, and Mayo were highly sought after and, as a result, the salary could be kept low. In a way, the prestige of the training institution led to a de facto tuition payment, in the form of work provided, by those seeking to do the residency.

It may seem like the costs for resident education are high, but the return on investment is significant. With the present duty hour restrictions which limits the resident to just 80 hours in the hospital per week, doing the math reveals that the resident is being paid about $12 per hour. Since residents actually do a significant amount of the patient care in the hospitals and clinics, those facilities with residents can actually take care of many more patients and they are better able to manage patients with highly complex (and expensive) disease processes.

In 1997, Congress put a 100,000 cap on the number of residents it was willing to fund. This cap has been one of the reasons that the United States is facing a physician shortage. Existing medical schools have increased their capacity and new medical schools have been started to help address the projected shortage, but the cap on residency slots may prevent some of these new medical school graduates from getting the residency training they will need to, eventually, go into practice.

Since the hospitals are making money on the resident’s labor, perhaps they should contribute more to resident salaries. As there are more medical students graduating each year than there are residency slots available to them, perhaps it is time to refigure the graduate medical education funding which could help alleviate the projected physician shortages being projected in the near future. Perhaps, the United States can only afford to fund 100,000 residency slots per year. If so, it is time for the hospitals, the states and the cities to contribute to this essential graduate medical education. Let’s pay our medical school graduates for the work that they do and this pay should better reflect the value they bring to our health care industry.

Becoming a physician is a costly endeavor. A four year public university medical tuition is about $208,000; a private school medical tuition is about $280,000 (Association of American Medical Colleges 2013 data). The four years of medical school would result in lost salary ($57,000 per year for a bachelor degree holding American). Assuming no tuition support, this leaves a typical medical school graduate over $400,000 in debt. Now, with physician pay cuts resulting from an artificial health care market mandated by Obamacare, it will be years before a physician starts seeing a reasonable return on the investment which may allow him to justify the years of study, lost sleep, aggravation from a contentious malpractice environment, and loss of esteem held by an unknowing public. It is not surprising that many of our best students are opting out of a potential career as a physician.

The added pay which our medical and surgical residents deserve should go a long way in helping these young physicians get out from the debt they have accrued in getting their undergraduate and medical education. This pay adjustment may not be enough to keep our best and brightest interested in pursuing a medical career, but it would be a good start.




by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 

The National Practitioner Data Bank

In 1986, the Health Care Quality Improvement Act (HCQIA) went into effect. A section of this law established the National Practitioner Data Bank (NPDB) which was a repository for reporting adverse actions of health care providers. The NPDB was formed because Congress was under the impression that the quality of medical care in America was decreasing; they viewed this as a national problem. To address this issue, Congress wanted to encourage physicians to participate in meaningful peer review. What better way could there be than to have doctors discuss cases which had bad results and then learn from each other’s mistakes?

Prior to this law, any adverse action taken against a physician was not available to an outside review. As a result, it was not unusual for a physician with bad results to go to a different practice location, often in another state, and get a new license and start a new practice without having to account for his previous record.

Peer review is a good way to improve care. However, the reporting requirement of the law had a chilling effect for any meaningful review. Any settlement or judgment paid on a malpractice claim could subject the physician, or other health care provider involved in the case, to being reported to this National Practitioner Data Bank and to state licensing boards. These reports could negatively impact the practitioner’s ability to maintain his credentials and privileges at his current place of practice and his ability to seek work at another location.

The intent of Congress in setting up the NPDB was to restrict the ability of incompetent practitioners from moving from state to state without having to disclose their previous malpractice payments and other adverse actions e.g., loss or restrictions on a license, loss of privileges, or loss of professional society memberships. The NPDB was a clearinghouse to collect and release information that was believed to be related to professional conduct and competence. This data would be available to entities involved in granting, or denying, credentials and privileges to health care providers and to the appropriate licensing boards of the various states.

The NPDB would function as an alert system. The information it contained was limited but it was intended to lead to further inquiry into a listed practitioner’s licensure, malpractice history, less than professional behavior, and professional society membership actions. The burden of the further inquiry was on the hospitals, licensing boards, and other health care entities to make final hiring, credentialing, and licensure decisions.

Under this law, reports must be submitted to the NPDB if a malpractice settlement or judgment payment is made for the benefit of a licensed physician; this includes residents and interns. Payments may be made for the benefit of medical and dental students, but these will not be reported to the NPDB. Payments made for the benefit of deceased practitioners are reported because a fraudulent practitioner could assume the identity of the dead person; this reporting would help identify these individuals.

There is a dispute process available to the practitioner who has been reported but this process cannot be used to protest a payment or to appeal the underlying reasons for the reporting. It can only be used to dispute the factual accuracy of the report or claim the report was not submitted in accordance with the NPDB requirements. This written statement would be available to those entities allowed access to the NPDB reports.

Since a report to the NPDB can have significant detrimental consequences for the practitioner, it is not surprising that most are willing to defend the case through the legal process up to and including a trial. According to an article in the New England Journal of Medicine, only 2 percent of patients injured by negligent care in a hospital file malpractice claims. (New England Journal of Medicine, Vol. 324, 1991 (370-6)) The elderly and the poor are even less likely to sue. (Medical error: What do we know? What do we do? Jossey-Bass 2002) If a malpractice case makes it to trial, there is a high likelihood, about 90%, for a defense verdict.

In a study of negligence cases in 2008 by the American Medical Association, they found that 65% of claims were dropped, dismissed, or withdrawn prior to trial. Settlements occurred in 27.5% of cases and only 5% were resolved at trial. Of the cases that made it to trial, the physician defendants won 90% of the time. (Carol K. Kane, Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians)

With these kinds of statistics, it makes sense for the defendant to fight, even if he was negligent. The defendant’s goal is to keep from being reported to the NPDB.

Unfortunately, a malpractice payment may not be an accurate measure of the quality of a particular provider. It is hard to predict what a jury may do and too often they rely on the quality of the lawyers, the predilections of the judge, and the sympathetic nature of the plaintiff. If the payment is not related to a breach of the “standard of care,” then the black mark of a listing in the NPDB may not accomplish what the law was meant to do; identify the poor practitioner. Even the very best provider can have a bad result on occasion; this bad result can lead to an NPDB report even if no malpractice occurred.

It is the threat of a NPDB report which prevents the open discussion, fact-finding, and broad based analysis and problem solving which was the intent of the meaningful peer-review of the HCQIA. Perhaps it is time to do away with the reporting provisions of this law and focus on meaningful performance evaluations of our health care providers. Since the NPDB is a barrier to meaningful peer-review, it should be repealed.

New requirements for performance measures as a means of getting paid under Medicare and Medicaid may be a better way to assess the quality of our providers.





by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 

The Fallacy of Guidelines

This article originally was posted November 4, 2016 on Huffington Post.

I hate it when someone tries to tell me how I should take care of my patients. However, we are now working with the politics of “evidence-based medicine”. This era is characterized by groups of “experts” who get together and compile guidelines on how best to manage various medical conditions. The fact that our knowledge of patient management is constantly changing is of little concern to these “experts” nor are they of concern to third party payers who insist that the guidelines be followed or they will not pay for the care provided.

Guidelines are generally based on a review of the literature pertaining to a particular condition and the evidence is classified as to its credibility. For example, the most reliable evidence is graded as IA, meaning that it is based on more than one prospective randomized trial without important limitations. Level IB evidence is based on a single controlled randomized trial or non-randomized studies but the trial(s) have limitations such as inconsistent results or flaws in the methods used to derive the conclusions. A Level I classifications means that there is general agreement that the procedure or treatment is beneficial and effective. Examples of methodological flaws would be lack of blinding of the researchers or subjective determinations of the results. Trials which lose a large number of patients to follow up would probably be classified as IB.

Observational studies may be cited in the guidelines but they would not have the weight of reliability as the prospective randomized trials would have. Observational studies are generally cited as IIC, implying that the evidence for the alleged benefit of a treatment may not be clear and there is a difference of opinion about the usefulness of the procedure or treatment.

Guidelines are meant for the “ideal” patient that presents with a certain disease entity. I have never seen such “ideal” patient as they all have individual characteristics which must be taken into account when making a treatment plan. In fact, the publishers of the guidelines make it clear that the recommendations may not apply to all of the patients all of the time, but this is generally ignored by third party payers, the Joint Commission on Accreditation of Hospitals, and the Veterans Administration. If a physician has not followed a guideline, he is assumed to have given substandard care by many plaintiff attorneys.

Here is an example. There is good evidence that the incidence of surgical wound infections is decreased if prophylactic antibiotics are given within one hour prior to the skin incision. There are times when the incision is made a few minutes after the one hour time frame because there may be a delay in getting the patient intubated, and various catheters and lines placed. Clinically, these extra few minutes have no effect on the incidence of wound infections, but the people monitoring this performance measure will classify it as a violation of the guideline.

Now you have to understand that the people hired to monitor these “performance measures” may not be a nurse or physician. They are following rigid written protocols to make their determinations and they are not allowed to use their own judgment. When this type of violation occurs, the surgeon may be deemed to have provided substandard care and may not be paid as much for the procedure even if the results are excellent. This can be aggravating to the health care provider.

Another example deals with the choice of peri-operative antibiotics. We are currently faced with a crisis involving a very virulent form of bacteria called Staphylococcus aureus which is resistant to many antibiotics. We are allowed to use Vancomycin, an effective antibiotic to Staphylococcus aureus, but only if the patient fits certain criteria. The reason we are not allowed to use the drug for all patients is to try and limit the selection of bacterial strains which may be resistant to this drug; this would, theoretically, make treating future infections even more difficult. We are allowed to use the drug in patients who have been hospitalized within one year prior to the planned operation.

In cardiac surgery, most of our patients fit this latter requirement as they have been previously hospitalized to evaluate them for cardiac disease. However, the people who monitor the use of peri-operative antibiotics will consider the provider to be in violation of the measure if there is no documentation as to why the drug was used. In other words, the physician must write that Vancomycin was used because the patient had been hospitalized within the previous year. The provider must write what is inherently obvious in the medical records.

You can see why surgeons and other physicians are frustrated. We are forced to do more documentation which, we believe, does nothing to improve the care being provided to the patients while at the same time, if we do not do this documentation, it may be published that we are not good physicians! I know of no other profession which faces such scrutiny. There are no good options except to try to comply the best we can knowing that every year the third party payers will do their best to pay us less no matter what we do. Plus, what may be deemed the “standard of care” today, may not be the “standard of care” tomorrow.

When I was a resident in surgery in the early 80’s, it was considered wrong to give a blood transfusion without a compelling reason to a patient with renal failure as this would hurt the patient’s chance of having a successful kidney transplant in the future. We now know that patients who get transfusions are less likely to reject a transplanted kidney. Our knowledge and practice changed as a result of solid clinical research. If we forego clinical research in deference to “guidelines”, then advances in medicine are going to slow down and stop. Clearly, this will not be good for health care in America, or the world for that matter, as the United States has always been a leader in making advances in clinical care.

I like to tell my residents and the medical students that guidelines are just that; they are not the law. There is no one better able to take care of an individual patient than the physician taking care of that patient on a very personal level. After all, the patient’s individual characteristics may be such that he does not fit into the guidelines.

For now, the physician who does not follow the guidelines may be denied pay for his work or worse, his name may be published in a database accessible to the public and press where he may be deemed as a less than satisfactory practitioner. This cannot be in our public’s best interest.




by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 

Becoming a Lawyer

This article originally was posted October 27, 2016 on Huffington Post.

I am often asked why I decided to go to law school in the midst of a successful career as a cardiothoracic surgeon. The answer lies in the complexity of the laws that were affecting the practices of all health care providers. I did not understand these laws and I was pretty sure my colleagues were as much in the dark as I was. I hoped to get some new knowledge to, hopefully, level the playing field when forced into the legal arena.

Unfortunately, being a physician now requires much more than just knowledge of medical issues; it now requires business acumen and a knowledge of the law. Electronic Health Records, Pay for Performance, health care fraud, billing requirements, performance measures, the Emergency Medical Treatment Active Labor Act (EMTALA), Health Information Portability and Accountability Act (HIPAA), Genetic Information Nondiscrimination Act (GINA), the Affordable Care Act (ACA), and the National Practitioner Data Bank (NPDB), all have very complex rules. Of course, being sued for medical malpractice has its own set of elements including “standard of care”, “duty owed”, and “causation”, none of which are readily understandable for people right out of medical school.

In general, the statutes pertaining to health care are complex. There are lawyers who specialize in health care law and even they do not always understand the nuances of the precepts. In fact, some courts in dealing with these issues have come up with some very different interpretations of the laws. If the lawyers and the judges are confused as to what these various laws mean, there is little hope for the health care providers and hospital administrators who are doing their best just to care for the patients.

Being a physician has always entailed some risks, especially if working with patients with infectious diseases; this is the case for most surgeons. Exposure to Human Immunodeficiency Virus (HIV), Hepatitis, Tuberculosis, and now, even Ebola can occur in practice. Adding to these medical risks are the legal risks that the health care practitioner must confront. Lack of knowledge of the laws is no excuse and this ignorance will not be recognized in a court of law.

It is common to read about physicians who have been arrested for billing fraud. The cases presented seem to be pretty egregious and I am sure there are some bad apples in my profession who should be called to account, however, it seems like our society is intent on marginalizing its physicians. Doctors and dentists in particular are being described as special interest groups only intent on making money. They are described as “providers” and the patients are “customers”.

Federal and State agencies are investigating practitioners for fraud in the provision and billing of services. Patients are being advised to review their billing information and inform enforcement agencies if they feel that fraud is involved. In fact, they can even receive some of the settlement funds if their claim is a winning one.

Even our teaching hospitals and medical schools are subject to severe penalties if their documentation does not meet legal requirements; and these legal requirements are constantly changing. Some of these changing laws are even being enforced in a retroactive fashion which, for laws that may have criminal consequences, seems to be in violation of the Constitution which forbids enforcement of criminal laws in an ex post facto fashion.

In America, everyone is equal under the law. This idea is a linchpin for our society and it is critical for our on-going quest for ordered liberty. James Garfield, our last president to actually have been born in a log cabin, said “I have always found a keen intellectual pleasure in the law. It reaches into what is impersonal, it is unpartisan, and may be so studied as to enlarge the spirit.” (Margaret Leech and Harry Brown, The Garfield Orbit 185, (1978))

It took me four years to get through law school. I had to go part time in order to maintain my surgical practice. During the first year, the professors would address me as “Mister Weiman” just like they would address all of the students with the “Mr.” or “Ms.” descriptor. After the first year grades came out, they all started to call me “Dr. Weiman.” They wanted to be sure that I was serious about law school before they would be willing to acknowledge that I was a medical doctor.

I never intended to give up on my career as a surgeon, but I wanted to learn as much as possible about the law and then, hopefully, convey some of that knowledge to my colleagues so that they could better participate in the legal process.

The tide of health care law is changing rapidly and the debates are contentious. Just a few years ago, it would have been hard to imagine a Congress passing legislation that would force citizens to buy health insurance with mandated coverage for conditions that the buyer would never have. A Supreme Court decision allowing the Congress to levy a heavy tax on those who did not buy this mandated insurance was hard to foresee. Thousands of new IRS employees have been hired to police the new laws and many new boards and commissions have been or are being formed to further decide what the legal requirements of the law will mean.

As the state legislatures and the United States Congress are actively involved in formulating health care law, health care providers with knowledge of the system should be better able to participate in the legal debates dealing with reform. This participation is essential as the laws will affect how future care is provided.

I enjoy reading and studying the law. The legal opinions are generally written by very smart people and these opinions often provide a picture of what was going on in our country at that time. The study of law is a study of the history of our country. The study of the law is far more interesting than studying biochemical pathways or minutiae of anatomy and histology. I study both medicine and the law but studying the law is much more fun.

I know that taking care of patients is a noble profession and I still enjoy being a surgeon very much. However, I fear that the best and the brightest of the younger generations are being discouraged from pursuing this career path in part due to legal contraints. This cannot be in the public’s best interest.




by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 

Simulation in Surgery

Simulation: the imitative representation of the functioning of one system or process by means of the functioning of another—Webster’s Collegiate Dictionary, seventh edition.

For the last several years, a group of “seasoned” cardiothoracic surgeons from around the country gather in Chapel Hill, North Carolina, where they are joined by many young surgeons who are starting their residency in the specialty. The meeting is three days of intensive training using simulation models to replicate surgical situations the residents will be confronting during their surgical training. Getting familiar with the instruments, scopes, dissection techniques, heart lung machine, valve replacements, and small vessel suturing are some of the basic skills learned.

The “boot camp”, sponsored by the Thoracic Surgery Directors Association, is a rare opportunity for the residents to get individualized training with some of the most experienced surgeons in the field.

Historically, surgical training involved the resident getting graded levels of responsibility for doing procedures in the operating room (OR) and at the bedside. The training also involved pre and post-operative care but technical skills, cognitive knowledge, and clinical acumen were usually dependent on real patients in the operating room. The residents work one on one with an “attending” surgeon who will supervise as the resident does parts of the procedure.

Jonathan Nesbitt, M.D., director of the Cardiac Simulation Program at Vanderbilt University and one of the teachers at the Chapel Hill program, says “[b]y immediately imparting these skills early in training, we significantly compress the learning curve to allow [the residents] to work effectively and safely in the clinical realm.” Not only do the residents get to learn the basic technical skills required in the specialty, they get to experience realistic models of surgical catastrophes so they can learn what to do before a real patient’s life is on the line.

The rise in simulation in surgical training is being driven by several factors. Minimally invasive surgical techniques make it difficult for the attending to first assist in such a way as to keep the trainee out of trouble. Only one person can drive the robot or the scope. Reductions in duty hours, mandated by law, cuts down on the actual OR time a resident may have to learn what to do and how best to do it. And, of course, the ethicists are now making it more difficult to justify allowing inexperienced physicians to learn on actual patients.

Under the stresses brought on by the Affordable Care Act, many surgeons have become employees of hospitals or medical groups. This model has forced the surgeons into a productivity model based on fees generated for services rendered. The employer looks to the surgeon to generate income and the surgical education component of the practice is suffering. The surgery residents, generally slower than the attendings, are getting to do fewer cases so the attending can generate more income.

As third party payers are moving to pay based on quality models, attending surgeons may be even more inclined to do the operations themselves instead of helping a surgical trainee. One of my attendings in the surgical training program I went through believed that the best surgeon in the room should do the operation. Since he was always the best surgeon in the room, the resident could do no more than first assist. First assisting was frowned upon by us residents, but we did it the best we could so as to learn from this superb surgeon. However, there is no substitute from being the primary surgeon.

Although the simulators are good for teaching the basic skills, they have not reached the level needed to teach the skills that must be acquired when things go terribly wrong or when the dissections are difficult from aberrant anatomy or intense scarring.

In a patient with previous surgery, the scarring can be so dense that the blood vessels may not be seen until they are cut. The sudden fear felt by a surgeon who is confronted by hemorrhage that is so brisk as to be audible can lead to a complete inability to cope with the situation and may lead to the death of the patient. The same feeling of horror can occur with unintentional injuries to other structures like the common bile duct, ureter, heart, and brain. How to handle these potential disasters is hard to teach on the simulators.

Simulators are costly and the restrictions of the 80 hour work-week make it difficult for residents to find the time to use them. Dedicated simulation time, such as that provided in Chapel Hill, is very valuable.

Some facilities have built simulation centers that are recreating whole operating rooms, delivery suites, intensive care units, and endoscopy suites. The University of Tennessee where I work is finishing a new building devoted totally to simulation. I would expect that these large facilities can be used to train health care providers from other areas who will come in for specific training.

It is hard to prove that skills learned from simulation training will lead to improved care for patients but I think it does based on what I see from the residents I worked with at Chapel Hill. Small sample sizes and the ability to detect small changes in skill sets make training assessments difficult. However, since practice makes perfect and since there are not enough patients to go around, I believe the role for simulation in surgery will only increase in importance.

Another benefit of simulation is to learn how to deal with possible catastrophes before confronting them with a real patient. Brilliant saves rarely occur the first time a problem is seen; saves do occur in subsequent cases.

Teaching residents to act in a professional manner is usually done by surgical mentors who serve as role models. This training could be enhanced by using actors in vignettes presented in videos which can be viewed by the residents—a form of simulation.

Outcomes research and cost comparisons need to be done but simulation is here to stay. There are cognitive skills and communication skills which are also very important in surgery and there is a role for simulation in these areas which will need to be developed—sort of like the “mock trials” that law students have to go thru. For now, we are concentrating on technical skill enhancement.

Although surgical simulation does not replace the skill sets learned from actually operating on patients, the models do allow for repetitive practice of the basic technical skills needed by the surgeon without having to rely on actual patients. The attending surgeon is more inclined to let the resident do more if the basic skills are being demonstrated on a daily basis.

I think the time spent on simulators should not count towards the statutory mandated 80 hour work week restriction. I would consider it as time spent studying and unrelated to actual patient care. The time spent on patient care in the hospital setting is critical for surgical training and should not be further diminished.

It is said that surgeons do four things unique to patient care. These are (1) control hemorrhage; (2) drain pus; (3) restore normal (functional?) anatomy, and (4) train future surgeons. By participating in the boot camp at Chapel Hill, I am helping with #4. I enjoy doing it very much.

darrylweimanby Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016. 

Health Insurers Are Pulling Out Of Exchanges

As the election of 2016 draws closer, it is not surprising that more and more articles relating to the Affordable Act of 2010 (ACA) are appearing on the front pages. If the republicans win the Presidency, they will probably move to repeal the ACA and start a process to replace it. If the democrats win, repeal will be off the table, but changes will still be inevitable. The most pressing of several contentious issues relates to several large insurers who are planning to pull out of the health care exchanges starting in 2017 unless premiums are allowed to go up significantly.

In Tennessee, my home state, Cigna and Humana have received permission to raise premiums by 46 and 44 percent, respectively. Blue Cross Blue Shield of Tennessee, losing an estimated $500 million on the state’s exchange by the end of 2016, has been given permission to raise premiums 62 percent for 2017.

Texas Blue Cross has lost a billion dollars on the state exchange and is requesting a 60 percent premium increase for 2017. Blue Cross Blue Shield of Minnesota has pulled out of that state’s exchange as losses over the last three years are $500 million.

The average premium rise for plans being offered on the state exchanges will be 24 percent for 2017. The rates must rise to offset losses due to the risk profile of those buying insurance being much worse than originally expected.

Insurance companies were early supporters of the ACA. They envisioned millions of healthy people forced to buy health insurance with higher premiums mandated by the law. The higher premiums were meant to off-set the lower premiums being paid for those with pre-existing conditions. The lower premiums were, again, mandated by the law under the “community standard” provision.

What the insurers failed to properly predict were the millions of healthy people who elected to not buy insurance; instead paying the penalty (tax?) which was much lower than the premiums required. The insurers found themselves paying more for health care than they were receiving in premium income. Predictably, many insurers suffered significant financial losses; many have opted out of the health care business.

One of these large insurers, Aetna, has recently announced that it will pull out of 11 of the 15 states where it currently offers health insurance on the exchanges. This is following the lead of United Health Group which is also planning to withdraw from several exchanges in the same time-frame. If Aetna follows through on its plan, it will only offer exchange plans in 242 counties, down from the current level of 778. In those counties where it is pulling out, consumers will find there are fewer plans to choose from or, in some instances, no plans on the exchanges at all.

Aetna’s decision to roll back on its coverage comes on the news that its planned merger with Humana is going to be blocked by the Justice Department. The Justice Department also has moved to block a similar merger contemplated by Anthem and Cigna. The Justice Department believes that consolidating the health insurance industry to just a few key companies will lead to monopolistic practices; there will be less competition and as a result, consumers will face higher costs.

If the consumer is unable to find a suitable plan on the exchange for their county, they have the option of buying their own health insurance from companies who are not participating in the exchanges. However, these buyers would not be eligible for premium and cost sharing supports which are only available for those who buy insurance on the exchanges. Medicaid would be an option but not for those whose income is too high to qualify.

It is foreseeable that state or federal regulators will try to convince some insurers to enter into the counties which have lost their carriers. They could do this by promising the approval of high premiums or perhaps, governmental subsidies to offset any potential losses. High premiums, no competition, and governmental subsidies would be a win for the carrier.

Under the ACA, many people have gained health care coverage through the loosening of restrictions on Medicaid. Many more have gained coverage through the exchanges. Those with pre-existing conditions cannot be denied coverage due to the individual mandate of the law and those same people will not be charged higher premiums due to the community rating requirement. These are all good things.

Medicaid contractors, used to delivering lower cost care, are surviving.

The ability to buy health insurance at any time of the year is another factor leading to healthy people holding off on buying until they needed to be covered. These factors led to healthy people not buying insurance and those who need to use the insurance to buy it now. Not getting the premiums of the non-users has been a game changer for the insurers. Aetna has claimed $430 million in losses on individual products since January 2014.

Promised governmental subsidies to insurers are being blocked by the Congress that has not yet appropriated those funds; the funds are not likely to be appropriated so long as the House is under republican control. Seeing the political lines in the sand, the insurers are not relying on the promise of future funding while their losses continue to pile up.

In order to get the healthier patients to buy insurance, the penalties for not participating will have to be increased. To help off-set the rising costs that the insurers are seeing from the unhealthy patients who are now buying insurance, the premiums and deductibles will have to go up. There will need to be a time frame in which no one will be allowed to buy on the exchanges or apply for Medicaid; these steps are needed to get the healthier people to buy insurance now. These non-users of health care will be subsidizing those who are users but that is how insurance is supposed to work.

As the election draws closer, these rising costs are going to result in political consequences. The democrats passed the law and there was not a single republican vote in support. As the ACA is looking more and more like an entitlement, politics will make reforms more difficult, even unlikely. It will be interesting to see how the press handles this conflict. My guess is that little will be reported until after the election.


by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in on February 17, 2016.