All posts by DarrylWeiman

The Independent Payment Advisory Board

The Affordable Care Act (ACA) calls for the formation of an Independent Payment Advisory Board (IPAB). The idea is to have a group of experts with health care knowledge make decisions to reign in the cost of health care. Members of this Board will be appointed by the President with the advice and consent of the Senate. Surprisingly, any appointed member may be “removed by the President for neglect of duty or malfeasance in office, but for no other cause.”[1] This is very different from other executive branch members who serve at the pleasure of the President; he can remove them at any time and for any reason. This gives the IPAB members significant power and pretty much makes them immune from second guessing. Even Secretaries of the Cabinet do not have this kind of immunity.

The intent of the Board is to decide what and how much will be paid for various medical procedures and treatments.  The IPAB is required to make specific recommendations to the President and Congress the intent of which is “to slow the growth” in national health care expenditures. If Congress does not act on these recommendations or does not come up with alternative recommendations, then the Secretary of Health and Human Services must implement them. Only a supermajority of the Congress will be allowed to overrule the decisions of this Board. This is a high bar, especially with a Senate that is pretty evenly divided between the two major parties.  Of note, the Secretary’s actions cannot be modified by any administrative body. The President does not have veto power over the recommendations and the recommendations are not subject to judicial review.

By giving the IPAB such power, it allows the President and members of Congress to be immune from criticisms of the electorate. They can claim that the IPAB made the decision and there is nothing they can do about it; and they’re right.  This seems like a pretty clever way for the elected officials to get around the will of the people and then try to avoid accountability.

The Board members will be independent of the President, independent of Congress, and they will not be subject to Judicial Review. This may be a violation of the Separation of Powers and the doctrine of Checks and Balances, but I am not holding my breath on this claim. The Constitution requires Checks and Balances with each branch of government keeping an eye on the other. I suppose that the Congress being able to override the Board’s decisions with a supermajority, while unusual, would allow the Congress to claim they are maintaining their oversite.

As for Judicial review, I would predict that the Supreme Court would hold that they could overrule any Board decisions and that the law’s preclusion of judicial oversite was meant for the lower courts, not the Supreme Court. This would be consistent with the Marbury v. Madison decision which gave the Supreme Court the power to decide on a law’s constitutionality.[2]

The IPAB has been directed to not ration care. In fact rationing is explicitly forbidden. However, we have already seen how this particular law can be changed by the President with a stroke of the pen; having the Internal Revenue Service allow for premium subsidies for all who use the Health Care exchanges whether set up by the State or the Federal Government. The Supreme Court has allowed this change.[3]

I am concerned that the Independent Payment Advisory Board (IPAB) may decide to limit (ration?)  Health care anyway.  I fear that care may be denied based on financial as opposed to clinical reasons.  It reminds me of societies that would send their elderly out on a canoe or into the wilderness with the intent of letting them die as opposed to being a financial burden on the remaining younger generation. I would hope that we, the people, would not tolerate that behavior.

But if the law specifically forbids rationing of care, how could rationing still occur? For one thing, the law does not define the meaning of “rationing” in the context of the Affordable Care Act. If care is denied to everyone, then the definition of rationing is not met (see footnote below). If the IPAB decides to cut payments to doctors and hospitals such that money would be lost to those who provide the care, then those providers may decide to stop seeing new Medicare patients. This denial of care to a specific population would amount to a de facto rationing.

I also believe that our Constitution, if we will continue to follow it, would not allow this as it would clearly violate the Due Process Clauses of the Fifth and Fourteenth Amendments. In fact, suits have already been initiated in about 20 States challenging the constitutionality of the IPAB. However, it would be unusual for a court to strike down an “advisory board” created by the Congress and signed off on by the President.

Am I being alarmist? I don’t think so. In a Wall Street Journal Article from January 23, 2015, entitled Dr. Death Makes a Comeback , the writer discussed the distinct possibility that a “right to die” should not be mistaken for a “duty to die.”[4] The fact that this issue was even being raised is very concerning. What if the IPAB decides that it would be cost effective to only offer “assisted suicide” or hospice care for those elderly or disabled who otherwise would require very expensive care; even if the care would be curative? Is it rationing if all are denied?[5]  As of this writing, Oregon, Washington, and Vermont do allow for assisted suicide.

The first recommendations of the IPAB were to have been submitted to Congress and the President in 2014. This has not happened. In fact, I am not aware of anyone who has been appointed to be a Board member. This is consistent with the President pretty much doing what he wants in regards to enforcing and implementing laws in general.

It goes against the very premise of our free society when the government is allowed to force changes on life and liberty interests without recourse by the unwilling electorate.  I suppose that we can vote in a whole new group of politicians, but this would take time.  My faith in meaningful change is fading rapidly.

[1] Affordable Care Act, IPAB Membership requirements.

[2] Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

[3] King v. Burwell, 576 U.S._(2015). This recent Supreme Court decision allows Health Care Insurance premium subsidies even for citizens of those States who opted for the Federal Exchange even though the law explicitly limited the premium subsidies for those States which set up their own exchanges.

[4] “Dr. Death Makes a Comeback,” Wall Street Journal, January 23, 2015.

[5] Ration—to distribute equitably or use sparingly. Merriam-Webster’s Collegiate Dictionary, eleventh edition. If the thing is not distributed at all and/or not used at all, then it is not being rationed. This is an example how lawyers use words to their advantage.


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

A Commentary on King v. Burwell

One of the linchpins of the Affordable Care Act (Obamacare) is to have everyone in the United States get Health Care Insurance. The way that the law instructed that this be done was to have the States set up Exchanges; access to the exchanges would allow each person to shop, preferably on-line, for an insurance policy that would best meet their needs. Accessing the exchange website would allow the people to compare the types of coverage, the premiums they would be responsible for, and the deductibles available. It would be one stop shopping for health insurance. This is a great idea on its face.

Since the requirements of health insurance were powers relegated to the states, each state would be in the best position to decide which policies would meet that particular state’s requirements.

Under the law, if the state decided that the cost for setting up the exchange was too high or for whatever other reason, they could choose to have the Federal government come in and set up an exchange for them. The Federal government preferred to have the States set up the exchanges but they could not force the states to do so as that would violate rules of Federalism and the separation of powers. The Administration had to come up with a way to get the states to “buy in” and they decided to do this by making tax credits available to the people of the States that set up their own, non-federal, exchange.

These tax credits were critical for the law to succeed because without them, the costs of meeting the requirements of coverage would exceed eight percent of the income of many people which would allow those people to claim exemption from coverage. Since many of these people were healthy and would not generate much health care costs, insurance carriers really needed them to participate in order for business to be viable.

The reason that the premiums had to be high was the ACA’s requirements for “guaranteed issue” and “community rating.” The “guaranteed issue requirement” meant that insurers could not deny any person coverage due to a pre-existing medical condition. The “community rating” requirement prevented the insurance carriers from charging higher premiums for those with a pre-existing medical condition. It was probably the “guaranteed issue” and “community rating” issues that led to the failure of “Romney care” in Massachusetts and the commercial insurance market in New York, but that’s another story.

Without the tax credits along with the requirements of “guaranteed issue” and “community rating” it was foreseeable that many healthy individuals would face premiums that would exceed eight percent of their income whereby they would be exempt from buying health insurance or if they did not meet the eight percent level, they would opt out of the Affordable Care Act insurance requirements and pay the tax penalty (much less than the offered premiums) instead. These healthy people could buy the insurance after they became sick and they would suffer no penalties for waiting. This is another example of people acting rationally.

Surprising to the Obama Administration, many of the States decided to opt out of setting up their own exchanges. There was a very real concern that many people in those states, not being eligible for the tax credits, would not buy health insurance and they would not be penalized since the premiums they would have to pay amounted to more than eight percent of their income. If these predominately health people would not participate, the insurance carriers would likely go bankrupt and have to withdraw from participating in the ACA. This could have led to a death spiral for the whole Affordable Care Act.

Under direction from the White House, the Internal Revenue Service (IRS) decided to make tax credits available to all who used the exchanges, even the exchanges set up by the Federal government.

The Petitioners in this Supreme Court case were citizens of Virginia, a state with a Federal Exchange. The Petitioners did not want to purchase health insurance and if they were not eligible for tax credits their premiums would have fallen above the eight percent threshold of their income and, thus, would have been exempt from the law’s coverage requirement. However, with the IRS rule, they would have been eligible for the tax credits and would have to buy insurance or be subject to the IRS tax penalty.

The District Court which heard the case held that the Act made tax credits available to those enrolled in a Federal Exchange. The Court of Appeals for the Fourth Circuit affirmed. The Fourth Circuit wrote that the Act was “ambiguous and subject to at least two different interpretations.” They chose to defer to the IRS’s interpretation.

At the same time that the Fourth Circuit was issuing its holding, the Court of Appeals for the District of Columbia Circuit ruled against the IRS Rule, holding that the ACA “unambiguously restricts” the tax credits to State Exchanges. This Circuit did not believe that the Federal Exchange was a State Exchange.

When two different circuits come down with two different holdings of the law, it is not unusual for the Supreme Court to grant certiorari and they did.

The legal issue of the case was whether the Act’s tax credits would be allowed in States that have a Federal Exchange. The Supreme Court held that they would be allowed. The Court, in dicta, wrote “an Exchange established by the State…is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it is also possible that the phrase refers to all Exchanges—both State and Federal—at least for the purposes of tax credits.”

The Court went on to say that “[t]hose credits are necessary for the Federal Exchanges to function like their State Exchange counterparts and to avoid the type of calamitous result that Congress plainly meant to avoid.” It seems like the Court was saving the Affordable Care Act from itself.

In a blistering dissent, Justice Scalia, made it clear that a Federal Exchange was not the same as a State Exchange and the tax credits were purposely kept out of the States which opted for a Federal Exchange. The Secretary of Health and Human Services, the person responsible for setting up the Federal Exchanges was not a “State” and thus, citizens of those states should not have been eligible for the tax credits.

Historically, the Court does not like to salvage poorly written laws. They will interpret what is before them and then expect Congress to do its job by making the necessary repairs. The Supreme Court decided to make the credits available to everyone to make the insurance affordable to all. They seemed to be doing what Congress should have been responsible for.

In the United States, under our Constitution, any changes in the law should have come through the Congress. However, in light of the fact that the Congress was now controlled by the Republicans, it is unlikely that the necessary changes needed to save the law would not have been passed; the ACA was in dire straits and the Obama administration recognized this.

King v. Burwell brought to light a significant problem with the Affordable Care Act. In an effort to save an unartfully crafted law, the Obama administration changed the law to allow the Internal Revenue Service to spend billions of dollars on tax credits for those using Federal Exchanges. Changing the law is not a power vested in the Executive branch under the Constitution of the United States. All spending rules must emanate from the United States Congress.

In what looks like an effort to avoid a Constitutional crisis, and the disintegration of the Affordable Care Act, the Supreme Court ruled that any Exchange, including one set up by the Federal government, was really a State exchange. This power to re-write the law is, again, not a power vested in the Supreme Court. However, once the Supreme Court makes a decision, that decision is final.

It is said that the Supreme Court is not last because it is right, it is right because it is last. There must be finality in the law or we will have a society in disarray. The issue on tax-credits and the origination of the Exchanges under the ACA is over! At least for now.

[1] King v. Burwell, 576 U.S._(2015).

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

Being Deposed? Beware and Behave!

Attorney: Doctor, before you performed the autopsy, did you check for a pulse?

Witness: No.

Attorney: Did you check for a blood pressure?

Witness: No.

Attorney: Did you check for breathing?

Witness: No.

Attorney: So then, is it possible that the patient was alive when you began the autopsy?

Witness: No.

Attorney: How can you be so sure, Doctor?

Witness: Because his brain was sitting on my desk in a jar.

Attorney: But could the patient still have been alive, nevertheless?

Witness: It is possible that he could have been alive and practicing law somewhere.

                                                Courtroom exchange between an attorney and a witness, as reported in the Massachusetts Bar Association Lawyers’ Journal[1]


During a physician’s career, it is likely that he will be named in a malpractice action. Before the trial, any party in the action is allowed to take sworn testimony of any witness, opposing party, or any expert expected to testify at trial for the opposition. The witness will be placed under oath to tell the truth and then the lawyers from each party will be allowed, in turn, to ask questions. This pre-trial testimony is called a deposition.

The conduct of a deposition is very structured; the lawyers know the rules but the physicians, and other witnesses generally do not. Being forced to answer questions by an adversarial attorney while you are under oath can be stressful. It can be especially unnerving to be limited to only answering “yes” or “no” when you really have more to say; but you must play by the rules of the court. Although stressful, knowledge about the proceeding and awareness of trial strategy can make it tolerable and perhaps, allow you to perform with more confidence.

As a discovery tool, the deposition is useful to gain information that may not be in the medical records, obtain useful admissions from the witness, and box the witness in as to what he can say at the trial. It is common for the attorney to close his questioning by asking the witness if there are any other issues he will testify to at trial. If the witness says “no” then he will not be allowed to bring up new issues at the trial unless the opposing attorney “opens the door” to new testimony by asking a question that is beyond the scope of what was asked at the deposition.

There is no judge present at the deposition so any objections to a question will have to be ruled on at a later time. What usually happens is the objecting attorney will place the objection with a short legal reason which should give the questioning attorney a clue as to how to correct the question so that it will no longer be objectionable. Usually the asking attorney will change the question to pass muster, but he does not have to. The witness must answer the question unless his attorney claims the answer is protected under some privilege e.g., attorney-client or husband-wife. If the judge later sustains the objection, the answer given will not be allowed to be used at the trial.

If an attorney makes an objection to a question, he may only make it as to the form of the question; he may not make a “speaking” objection as that would give the witness a clue as to how his lawyer would like it to be answered. For example, the objecting attorney may tell the witness to answer only if he remembers or if he knows. This type of objection would never be allowed at trial so it is not allowed at a deposition, also. In fact, there are rules that make speaking objections subject to sanctions. Under the Federal Rules of Civil Procedure, the Federal Rule 30(d)(2) states, “[t]he court may impose an appropriate sanction—including reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.”

The questions and answers at the deposition will be recorded by a court reporter and the transcript of the proceeding will be given to either party provided they pay the fee for the transcript. Some depositions are video-recorded. This video may be used at trial if, for some reason, the witness is not able to attend. This video would be more effective than just having someone get on the stand and read the answers to the jury. The jury will be able to evaluate the witness’s demeanor, the tone of voice and the timing of the answers so as to get a better feel as to credibility.

Depositions are a great opportunity for an attorney to learn about the adversary’s case and get a feel for the performance and credibility of the witness. Although a majority of medical malpractice cases get resolved before they ever get to trial, it is rare for the resolution to occur before the depositions of the plaintiff, defendant, and plaintiff’s expert. If the plaintiff’s expert isn’t knowledgeable and credible, it is unlikely that plaintiff’s attorney will take the case to trial; he may try instead, to push for a settlement.

There is a great deal of strategy that goes into taking depositions. Many experienced lawyers will try to get right to the heart of the matter and ask as few questions as possible to get the information they need to support their theory of the case.  This “short and sweet” approach is possibly due to the fact that the witness, if it is an expert for the opposition, must be paid by the deposing attorney’s side. Also, many attorneys are busy and don’t want to waste time by eliciting unhelpful testimony.

Some attorneys have a different strategy. They will drag a deposition on for hours in hopes of tiring the witness out. They will then try to trap the witness into saying something harmful to the case which he would never say if he was not worn out and “unalert”.

If you are the one being deposed, your behavior is very important. You must do your best to answer the questions honestly. Do not interrupt the deposing attorney until he has finished asking the question and then wait a few seconds to give your attorney a chance to object if he needs to. Even if your attorney objects to a question, you must answer to the best of your ability unless a privilege is invoked; if this happens, your attorney will instruct you to not answer and he will let the deposing attorney know the grounds on which he is objecting. They may argue a bit and they may even have to get the judge on the phone for a ruling. Your job is to sit tight and watch the drama unfold in front of you.

In general, the deponent is not allowed to confer with his attorney during the course of the deposition. This rule has gotten some criticism as a denial of the right to counsel especially if there is a prolonged break in the questioning. Because of this criticism, most courts agree that you, as deponent, and your counsel can confer during a recess, but there should be no coaching as to how to answer the questions. Once back on the record, do not be surprised if the questioning attorney asks you what you and your attorney discussed during the break. He is allowed to ask these questions to see if any improper coaching occurred; you must answer the questions so it is best not to put your attorney into a bind by asking him for help during the break. Once you are on the stand, as in court, you are on your own until the attorneys have finished with you.

Always be professional. You’re a doctor; use a professional demeanor. Be polite. A deposition is stressful but it is best to maintain your cool and answer to the best of your ability. The jury knows that your are stressed and they will respect you more if they see you are being polite—even to your adversary. Dress appropriately.

If you are asked a question and you don’t remember the answer, it is acceptable to say that you “don’t remember” or “don’t recall.” It is the rare individual who can recall what he was thinking at a particular time many years ago. It is not a good idea to guess at what you could have been thinking. The opposing attorney may ask you to look at the medical records and then ask if you can come up with the answer. If the chart review does not help you remember then say so.

The opposing attorney may present you with a hypothetical patient who is similar to the plaintiff and then ask for your opinions as to diagnosis and treatment. As a physician, it is fair for you to point out that the presence of the patient (one that you can actually talk to and examine) is critical to making a diagnosis and formulating a treatment plan. It is fair to be reluctant to give a definitive answer based on limited knowledge.

If your case involves a missed diagnosis which led to harm to the patient, some attorneys will persist in trying to get you to admit to a mistake. They will do this by posing a theoretical question dealing with the signs and symptoms of the patient and ask you to provide a differential diagnosis. For example, let’s say the patient had an aortic dissection and the diagnosis was not made until the patient was already dead. The attorney might ask for a differential diagnosis for a patient who presents with substernal chest pain, shortness of breath, and tachycardia.

Faced with this scenario, the inclination is to say, “It could be an aortic dissection.” This is especially true in light of the fact that you already know that is what the patient had.  It would be truthful and better for your case if you don’t jump ahead. Provide the attorney with a list of conditions that meet the proposed criteria so that the jury can actually see that the case is not as simple as the plaintiff is trying to portray. In this example, the list could include myocardial infarction, pulmonary embolus, aortic dissection, pneumonia, pancreatitis, a duodenal or gastric ulcer with perforation, costochondritis, and perhaps a sternal or rib fracture. There are other possible diagnoses you could add but I think you get my point.

Remember to only answer the question that you have been asked. Many defendants feel that giving a long, detailed explanation that goes beyond the scope of the question will educate the attorney as to your thought process and make him realize that you are a knowledgeable, reasonable, and prudent physician. This is unlikely to happen and you may even be hurting your case. Actually, the more information that you provide to the plaintiff’s attorney will just provide him with more material with which to ask you questions.

So if you are asked a “yes” or “no” question, you do not need to provide any explanations. For example, if you are asked if you remember seeing the patient on a particular day when there is no note by you or your team and you really do not remember, then “no” is the answer. If you say, “No, but it could have been one or two times and I just didn’t document it,” you will be opening yourself up to another line of questioning dealing with your documentation habits.

In a deposition, the intent of your attorney may not be to educate the jury. He may prefer to wait for the trial to do that. He may advise you to use medical terms in your answer so as to force the deposing attorney to look to you for help. This may not be the best strategy especially if your testimony ends up being read back at trial, but you will need to follow your attorney’s advice. I prefer to answer in a way that would be understandable to a lay person. If your deposition testimony is being read to the jury at the trial, they may not appreciate it if they think you are talking down to them.

Do not try to be funny or sarcastic with the opposing attorney. Every word you say is being recorded by the reporter and it may not sound very good if the transcript is read back to a jury at trial.

It is unlikely that a clever response on your part will end up in the next edition of Foolish Words.

[1] Ward, Laura: Foolish Words, The most stupid words ever spoken, PRC Publishing Limited, New York, 2003, p.120.

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



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.