Affirmative Action

Bakke to Grutter: Where Are We Now? The Grutter Case

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Barbara Grutter, a rejected applicant of the University of Michigan Law School, brought suit claiming that the University’s consideration of race and ethnicity in its admissions process violated her rights under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.

During Grutter’s trial, there was ample evidence that showed the Law School did use race as a criteria in the decision-making process.  Dennis Shields, the Director of Admissions when Grutter applied, said race was considered “to ensure that a critical mass of underrepresented minority students would be reached so as to realize the educational benefits of a diverse student body.”[1]

Erica Munzel, the Director of Admissions after Shields, defined “critical mass” to mean “a number that encourages underrepresented minority students to participate in the classroom and not feel isolated.”[2]  Although Munzel did use the word “number,” she went on to say “there is no number, percentage, or range of numbers or percentages that constitute critical mass.”[3]  The Law School presented evidence that a diverse student body was necessary “to enhance classroom discussion and the educational experience both inside and outside the classroom.”[4]

The United States District Court, E. D. Michigan, ruled in Grutter’s favor.  The District Court held that the desire for a diverse student body was not a compelling government interest and even if it was, the policy was not narrowly tailored to further the objective since quotas were being used.  The District Court found

“…it significant that the dean and the admissions director monitor the school’s ‘daily admissions reports,’ which classify applicants by race.  These reports inform the reader how many students from various racial groups have applied, how many have been accepted, how many have been placed on the waiting list, and how many have paid a deposit.  There would be no need for this information to be categorized by race unless it were being used to ensure that the target percentage is achieved.”[5]

The District Court found this to be a quota system and was thus, unconstitutional.

In a brief of Amici Curiae, the Deans of several top law schools argued that a diverse student body was essential for the law schools to meet their mission of training lawyers across all fields of business, government service, etc.  The brief states that, “[a] diversity of backgrounds, life experiences, and cultural perspectives in the universities’ student bodies is essential to providing both a sound legal education for students and a firm foundation for graduates to serve and to lead thereafter.”[6]

Thomas Sowell, who writes about affirmative action, is not sure that diversity manifested by a “critical mass” of minority students is beneficial for all students.  Sowell argues that “the assumption that a ‘critical mass’ is not only academically beneficial, but academically essential, has become prevailing dogma without empirical evidence being asked or given.”  Sowell relies on

“[a] recent empirical study published by the National Bureau of Economic Research [that] found that ‘a higher percentage of Black schoolmates has a strong adverse effect on achievements of Blacks and, moreover, that the effects are highly concentrated in the upper half of the ability distribution.’”[7]

Although the United States District Court for the Eastern District of Michigan ruled in favor of Grutter, the decision was reversed by the United States Court of Appeals for the Sixth Circuit, which held that “…the Law School has a compelling interest in achieving a diverse student body.”[8]  The Court of Appeals also held that the “Law School’s use of race was narrowly tailored because race was merely a “potential ‘plus’ factor” and because the Law School’s program was “virtually identical” to the Harvard admissions program described approvingly by Justice Powell”[9] in the Bakke decision.

In coming to its decision, the Sixth Circuit returned to Regents of the University of California v. Bakke, 438 U.S. 265 (1978) and concluded that the University of Michigan’s use of race in its decision making process did not constitute a quota and was constitutional.

Critics still claimed that “critical mass” was just a euphemism for quota and as such, was being used as more than just one criterion to attain a diverse student body. The Supreme Court granted certiorari.

In a 5 to 4 decision, the Supreme Court agreed with the Sixth Circuit.  On June 23, 2003, the Court upheld the University of Michigan law school’s program because it only considered race as a plus which could be used by the admissions committee in striving to attain the “critical mass” of minorities needed to enhance the educational environment of the law school.  This decision reaffirmed Bakke.

In the majority opinion, written by Justice O’Connor, the Court deferred to the judgment of the Law School’s admission committee that diversity was needed for the school to better meet its educational mission.  “Attaining a diverse student body is at the

Heart of the Law School’s proper institutional mission, and its ‘good faith’ is ‘presumed’ absent ‘a showing to the contrary.’”[10]

In a dissenting opinion, Justice Scalia argued that the compelling state interest was no more than the University’s desire to have an elite law school.  Justice Scalia pointed out that the school could easily attain class diversity by lowering its admissions requirements so that more minorities would be eligible for admission.  Justice Thomas agreed with Scalia.  In his opinion, Thomas wrote, “I believe blacks can achieve in every avenue of American life without meddling of university administrators.”[11]

Although lacking any solid evidence that diversity was needed for the school to meet its mission of training lawyers, the Court concluded that diversity should be considered a compelling State interest – at least in the Law School class.  This part of the decision has led to some criticism other than from the dissenting Justices.  As Alan Dershowitz writes:

[The Court] once again seemingly concerned itself far more with the description of the program than its actual application.  The Court began by clearing up a central ambiguity of Bakke, with at least five justices clearly holding that diversity could serve as a compelling state interest for affirmative action programs.[12]

The original criticism that a “critical mass” was just another descriptive term for “quota” was not clarified in Justice O’Connor’s majority opinion.  However, it appears that so long as a number is not used in describing what constitutes a “critical mass”, the use of race in the decision-making process will pass constitutional muster.  As Dershowitz concludes,

“The Court’s 2003 amplification of the Bakke principle in the Michigan case[] did little to clarify the underlying rationale for taking race into account as a means toward eventually achieving a “color-blind” society.  Nor did it satisfy critics who believe that diversity is a euphemism for “quotas,” or at least for “floors” for some groups (which, of course, become “ceilings” for others).  The most that can be said for th[is] decision[] is that [it offers] a pragmatic solution to a difficult racial problem that may have no perfect theoretical solution.[13]”

The Michigan program did not have a two track system with numerical quotas for minorities.  Also, the Michigan system used race as just one of many criteria, similar to the Harvard plan which had already been found to not be offensive to the Equal Protection clause of the Fourteenth Amendment.  The decision of the Court is thus consistent with its dicta and holding in the Bakke case.  Justice O’Connor did provide a warning that she expected the use of “race” as a criteria for attaining a “critical mass” of minority students in graduate schools to be short-lived.  As she wrote in her majority opinion,

“Finally, race-conscious admissions policies must be limited in time.  The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable.  The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.[14]”

Justice Thomas believes that the 25 year time limit is not justified.  He writes, “while I agree that in 25 years the practices of the law school will be illegal, they are, for the reasons that I have given, illegal now.”[15]

With this decision, affirmative action will be allowed in graduate school admissions decisions, at least for the near future.  The decision making process, however, will not be easy.  In an Associated Press report, Justin Pope points out that “[a]ffirmative action remains legally risky.”[16]  Admissions committees will be watched by opponents of affirmative action to see if any digital representation is used to describe the quest for a diverse class.  “In the last year, the threat of [] suits has persuaded a number of schools to cancel or open up summer, orientation and scholarship programs that had explicitly targeted minorities.”[17]

Proponents of affirmative action, although relishing the reaffirmation of Bakke, know that there are issues that still need to be addressed.  The NAACP is concerned that the Michigan ruling may not go far enough.

“Shaw, of the NAACP, says he is comforted by what he feels is a broad and deep commitment among educators to diversity, and an overall willingness to spend money on the hard work of doing it legally…[b]ut he remains worried about the legal uncertainty concerning how the Michigan ruling, which addressed only admissions, applies to scholarships for minorities.  And he notes continued skirmishing on the state level.  “We’re much better than we would have been had we lost,” Shaw said.  “But it’s one battle, and the war goes on.”[18]”

The Grutter decision of 2003 reaffirms the Bakke decision of 1979.  Because the decision was close and the dissent was rigorous, the debates as to the constitutionality of affirmative action in regards to graduate school admissions continued.  Until there is further clarification, race can be used as one criterion of many in making admissions decisions for college and graduate school.  The Court was specifically dealing with medical and law schools in the decisions, but there is nothing in either opinion to rule out other graduate school programs from using the same criteria.  Until we hear otherwise, affirmative action in college and graduate school admissions decisions will pass constitutional muster so long as no digital representation of either a number or a percentage is used to describe the “critical mass” necessary to realize racial diversity in the matriculating class.

Since the Grutter decision, four new justices have been added to the Supreme Court.  Chief Justice John Roberts and Justice Samuel Alito were nominated by George W. Bush while Justices Sonia Sotomayor and Elena Kagan were nominated by President Obama. It can be predicted that these new justices are likely to split on the issue of affirmative action as it applies to graduate admissions; however, predictions are often wrong.

Even with Grutter, the lower courts have been struggling with this contentious issue. Since there is confusion, the Supreme Court has decided to listen to arguments and then, hopefully, clarify the issue of affirmative action; at least address its applicability to college and graduate school admissions. In Fisher v. University of Texas, arguments were heard on December 10, 2015. A decision on the Fisher case is expected this spring.

Actually, this will be the second time the Supreme Court will weigh in on Fisher. Originally, the U.S. Court of Appeals for the Fifth Circuit ruled that the University of Texas could use race as a factor in deciding college admissions. They agreed with the trial court which gave the University a summary judgment. The Supreme Court did not address the constitutionality of using race; instead they sent the case back because the lower courts did not use “strict scrutiny”[19] in evaluating the University of Texas admissions program.

When the Fifth Circuit again agreed with the lower court that the use of race was constitutional, the Supreme Court decided to re-hear arguments. It looked like the Court was ready to do away with affirmative action as to college and graduate school admissions. But now Justice Scalia has died and it appears that the Court is headed to a four to four split. With a split, the Fifth Circuit decision will hold; but only the courts in the Fifth Circuit will be bound to that decision.

[1] 123 S.Ct. 2325, 2333 (2003).

[2] Id.

[3] Id.

[4] Id. at 2334.

[5] 137 F.Supp.2d 821, 842 (2001).

[6] 2003 WL 554398 (U.S.)

[7] Thomas Sowell, Affirmative Action Around the World.  Yale University Press, 2004. p. 143.

[8] Grutter v. Bollinger, 288 F.3d 732, 739 (6th Cit. Court of Appeals 2002).

[9] Grutter v. Bollinger, 123 S.Ct 2325, 2335.

[10] 123 S.Ct. 2325, 2329

[11] Id. At 2350.

[12] Alan Dershowitz, America On Trial, Warner Books 2004, p. 426.

[13] Id. At 427.

[14] 123 S.Ct. 2325, 2330.

[15] Id. At 2364.

[16] Commercial Appeal, June 21, 2004, A1.

[17] Id. At A3.

[18] Id.

[19] In constitutional law, the standard applied to suspect classifications (such as race) in equal-protection analysis and to fundamental rights (such as voting rights) in due-process analysis. Black’s Law Dictionary. Under strict scrutiny, the state must establish it has a compelling interest that justifies the law in question. Black’s Law Dictionary.

 

 

 

darrylweiman

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 www.healthcaredive.com on February 17, 2016. 

Affirmative Action

Bakke to Grutter: Where Are We Now?

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Affirmative action in medical school and law school admissions decisions was deemed to be constitutional in the University of California v. Bakke and Grutter v. Bollinger Supreme Court decisions. However, there was a time limit mentioned in the Grutter decision.

With four new justices affirmed to the Supreme Court since Grutter, the time is ripe for a new look at the constitutionality of affirmative action in graduate and even undergraduate school admissions decisions.

In fact, the Supreme Court heard oral arguments in Fisher v. University of Texas on December 10, 2015 where affirmative action was once again the center of controversy.

A review of the jurisprudence of affirmative action on college and graduate admissions is timely and is especially pertinent to those of us who work in undergraduate and graduate medical education. In this article, we will review the Bakke case.

 

Introduction

The history of affirmative action in graduate and undergraduate school admissions has been characterized by heated debate.  Proponents of affirmative action argue that it is necessary to ensure a diverse class make up which is essential in furthering the educational mission of colleges and graduate schools.  Proponents also claim that affirmative action is necessary to overcome past practices which have discriminated against certain groups and kept them from realizing the benefits of a college or graduate school education.

The critics of affirmative action claim the policy is nothing more than reverse discrimination, which, in turn, punishes applicants who are not a member of the targeted groups.  Critics also claim the policy of affirmative action violates the equal protection clauses of the Constitution and thus, is illegal.

In 1978, the Supreme Court addressed the issue of affirmative action in graduate school admissions in University of California Regents v. Bakke.[1] 

The Bakke Case

In 1973, Allan Bakke, a white male, applied to the medical school of the University of California at Davis (UC Davis).  Despite being a strong candidate, he was rejected.  Bakke’s rating of 468 out of 500 on the  UC Davis rating system was just below the 470 score needed for admission at the time his application was complete.  However, at the time he was rejected, there were still four slots available in a special admissions program, which were available to minorities as a racial and ethnic quota.  After his rejection, Bakke wrote a letter to Dr. George Lowrey, Associate Dean and Chairman of the Admissions Committee, claiming “…the special admissions program operated as a racial and ethnic quota.”[2]

When Bakke reapplied to Davis in 1974, his faculty interview by a quirk of fate was with Dr. Lowrey who found Bakke to be “rather limited in his approach” to the problems of the medical profession and found disturbing Bakke’s “very definite opinions which were based more on his personal viewpoints than upon a study of the total problem.”[3]  Dr. Lowrey rated Bakke at a lower level and, as a result, Bakke was again rejected for admission by the school.

“In both years, applicants were admitted under the special program with grade point averages, MCAT scores, and benchmark scores significantly lower than Bakke’s.”[4]  For example, in 1973, Bakke’s grade point average was 3.51 with MCAT scores of 96 (verbal), 94 (quantitative), 97 (science), and 72 (general information).  This was compared to special admittees of 2.62, 46, 24, 35, and 33.  In 1974, the special admittees GPA and scores were 2.42, 34, 30, 37, and 18.[5]

After his 1974 rejection, Bakke filed a lawsuit in the Superior Court of California alleging that the special admissions program of the Medical School caused him to be rejected on the basis of his race.  Bakke claimed that his rights were violated under the Equal Protection Clause of the Fourteenth Amendment.[6]  Bakke also claimed his rights were violated under the California Constitution (Art. I, 21) and 601 of Title VI of the Civil Rights Act of 1964, but for the purposes of this paper, the first claim is dispositive.

The trial court held that the special admissions program violated the Federal Constitution based on the finding that the special program was functioning as a racial quota whereby minority applicants were being rated only against each other and there were 16 spaces in the medical school class being reserved only for them.[7]  However, the court denied Bakke’s request for an injunction to compel his admission to the school holding “…that he had failed to carry his burden of proving that he would have been admitted but for the existence of the special program.”[8]

Because he had been denied admission to the school, Bakke appealed.

UC Davis appealed from (1) the decision that its special affirmative action program was unlawful and (2) from the order preventing the school from using race in making its admission decisions.  The Supreme Court of California took the case directly from the trial court “because of the importance of the issues involved.”[9]

The California Supreme Court ruled that the Equal Protection Clause of the Fourteenth Amendment had been violated holding that “no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race.”[10]   This court also held that since Bakke had shown that the school had discriminated against him because of his race, the burden of proof was on the school to show that he would have not been admitted even if there were no special admissions program.  Since the school conceded that it could not prove this issue, the California court directed the trial court to order Bakke’s admission to the Medical School.  The United States Supreme Court granted certiorari.[11]

In an opinion authored by Mr. Justice Powell, the Court held that: (1) the special admissions program of UC Davis was unconstitutional, but (2) race may be used as one of several factors by which a school can make decisions on admissions, and (3) affirmed the decision to allow Bakke to be admitted to the school.[12]

According to the Court, the fatal flaw of the UC Davis special admissions program was the quota of 16 slots reserved for the minority students, which resulted in a violation of individual rights of those applicants who would not be allowed to compete for those slots based solely on their race.  In its decision, the Court made clear that race could be used in a properly devised admissions program since racial diversity in the school’s case was a substantial state interest which would be legitimately served by taking race into account in the admissions process.

During arguments, UC Davis had four reasons to justify the special admissions program. These were (1) “[to reduce] the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession;” (2) countering the effects of societal discrimination; (3) increasing the number of physicians who will practice in communities currently underserved; and (4) obtaining the educational benefits that flow from an ethnically diverse student body.[13]

As far as the Supreme Court was concerned, the first justification immediately failed.  “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.  This the Constitution forbids.”[14]

Historically, any system designed to favor any particular group at the expense of others who were innocent of any perceived victimization of the favored group required certain findings.   The Court made clear that UC Davis was in no position to make such findings.  Justice Powell stated:

We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations.[15]

Only after such findings would the State’s interest be substantial enough to justify preferential treatment of the injured parties at the expense of so called innocent parties.  Also, the remedy chosen would have to be one which works the least possible harm to those who were now being discriminated against.[16]  The role of UC Davis was in education of medical students, not in correcting perceived societal wrongs.[17]

The Court, however, did concede that attainment of ethnic diversity in the student body was a constitutionally permissible goal for an institution of higher learning.[18]  “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.  The freedom of a university to make its own judgments as to education includes the selection of its student body.”[19]

The Court felt that genuine diversity would not be attained with the UC Davis program which looked only at race and ethnicity.  As an example of an admissions program which was tailored for diversity that would meet constitutional muster, the Court cited the Harvard College program.

“[At Harvard, w]hen the Committee on Admissions reviews the large middle group of applicants who are “admissible” and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases.  A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer.  Similarly, a black student can usually bring something that a white person cannot offer. [The] awareness [of the necessity of including more than a token number of black students] does not mean that the Committee sets a minimum number of blacks or of people from west of the Mississippi who are to be admitted…[20]

According to the Court, this system allows race to be used as a factor in the decision making process since it is not the sole criterion in deciding who will get that admissions slot.  There would be no unequal treatment under the Fourteenth Amendment with this system.  As Justice Powell noted in his opinion,

“[A] great deal of learning occurs informally.  It occurs through interactions among students of both sexes; of different races, religions, and backgrounds who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world.”[21]

The Bakke decision has been the law since 1978.  It is interesting to note what Supreme Court Justices have said about Bakke in subsequent decisions and writings.  In a commentary, current Supreme Court Justice Scalia said “Justice Powell’s opinion [is] ‘the law of the land.’”  1979 Wash. U.L.Q. 147,148 (1979).  Justice Stevens concurred in an opinion written by Justice Brennan, which cited Bakke whereby “a diverse student body contributing to a ‘robust exchange of ideas’ is a ‘constitutionally permissible goal’ on which race-conscious university admissions programs may be predicated.”  Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 568 (1990).

Justice O’Connor in Johnson v. Transp. Agency, 480 E.S. 616, 656 (1987) concurring “approv[ed] gender-conscious promotion where defendant ‘tried to look at the whole picture, the combination of [her] qualifications and [plaintiff’s] qualifications, their test scores, their experience, their background, [and] affirmative action matters.”

Over the next 20 years, debate continued.  Since the Fourteenth Amendment was involved, strict scrutiny needed to be applied if it was to be ignored.[22]  Was diversity of the student body a compelling enough State interest to allow a narrowly tailored race-based action whereby an individual’s race could be used to decide whether or not he would be admitted to graduate school?  Was Justice Powell’s decision just dictum, or was it to be the law of the land?

In subsequent decisions, disagreement occurred as to whether or not diversity of the student body was truly a compelling state interest.  In Hopwood v. Texas, [23] the Court of Appeals held that diversity of the student body is not a compelling state interest.  The Hopwood Court concluded “that any consideration of race or ethnicity by the law school for the purpose of achieving a diverse student body is not a compelling interest under the Fourteenth Amendment.  Justice Powell’s argument in Bakke garnered only his own vote and has never represented the view of a majority of the Court in Bakke or any other case.”[24]

Within the general principles of the Fourteenth Amendment, the use of race in admissions for diversity in higher education contradicts, rather than furthers, the aims of equal protection.  Diversity fosters, rather than minimizes, the use of race.  It treats minorities as a group, rather than individuals.  It may further remedial purposes but, just as likely, may promote improper racial stereotypes, thus fueling racial hostility.[25]

However, in Smith v. University of Washington Law School,[26]  the Court of Appeals held that diversity was a compelling State interest.  The Smith Court held that “the Fourteenth Amendment permits University admissions programs which consider race for other than remedial purposes, and educational diversity is a compelling governmental interest that meets the demands of strict scrutiny of race-conscious measures.”[27]

Interestingly, before the Smith Court made its decision, the Washington State legislature passed Initiative Measure 200 which stated, “[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”[28]

With the passage of this new legislation, the Law School voluntarily changed its admissions policy so that race was no longer a considered factor.

Since there was disagreement among appellate courts on this important question, the Supreme Court decided to better resolve the issues in the case of Barbara Grutter.

In my next article, the Grutter case will be discussed.

 

 

[1] University of California v. Bakke, 438 U.S. 265 (1978).

[2] Id. at 276.

[3] Id.

[4] Id.

[5] 132 Cal. Rptr. 680, 686.

[6] Section 1 of the Fourteenth Amendment states “. . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[7] There was a total of 100 slots for the first year class.  Sixteen slots were reserved for minority students in the special admissions program although minority students were also allowed to compete for the other 84 slots.  The non-minority students were limited to competing for only the 84 slots.

[8] Bakke at 279.

[9] Id.

[10] Id.

[11] By granting certiorari, the Supreme Court agreed to hear arguments and rule on the issues.

[12] University of California v. Bakke. 438 U.S. 265 (1978).

[13] Ronald Rotunda, Modern Constitutional Law, West Group (2000), p. 661.

[14] Id.

[15] Bakke at 307.

[16] Id.

[17] In this regard, UC Davis’ selection of Negroes, Mexican-Americans, American Indians and Asians as the groups eligible for its special admissions program was difficult to justify especially in light of the fact that many Asians were eligible for admission under the regular admissions process. Id.

[18] Rotunda at 662.

[19] Id.

[20] Id. at 663.

[21] Id. at Justice Powell quoting from Professor Gurin, President of Princeton University

[22] Korematsu v. United States, 323 U.S. 214 (1944).  In Korematsu, pressing public necessity was the standard used to justify racial discrimination.  This was the first case to purport that strict scrutiny would be the standard used to justify any governmental discrimination based on race. Id.

[23] Hopwell v. Texas, 78 F.3d 932 (C.A.5 1996)

[24] Id. at 944.

[25] Id. at 945.

[26] Smith v. University of Washington Law School, 233 F.3d 1188, (C.A.9 2000)

[27] Id. at 1201.

[28] Wash. Rev. Code sec. 49.60.400(1).

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 www.healthcaredive.com on February 17, 2016. 

Affordable Care Act, In the Courtroom

How About Health Courts?

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One of the goals of the Affordable Care Act, otherwise known as “Obamacare”, is to decrease the cost of health care. It is believed that some of these costs are related to medical malpractice; these costs are driven by high malpractice insurance premiums that health care providers must buy and the unnecessary tests and procedures that are done in a “defensive” manner to better help in defending a future, potential, negligence claim.

Recognizing these costs, the Affordable Care Act allows for the award of five-year demonstration grants which will be awarded to the States to set up new methods of medical malpractice resolution. The plans should be designed to cut the costs associated with the current medical malpractice tort litigation and hopefully, allow the providers to stop practicing “defensive medicine.” These grants were to be appropriated starting in fiscal year 2011. To my knowledge, this has not yet occurred.

America’s current system of dealing with the tort of medical malpractice is woefully inefficient and costly. Juries often find it difficult in differentiating victims of malpractice from those who have suffered from an unavoidable outcome and the jury may fail in reaching reasonable awards for those who are injured.

Only two percent of patients injured by negligent care in a hospital ever file a malpractice claim (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). For providers, going to trial can be a risky endeavor as you never know what a jury will do.

In Tennessee, for example, heart surgeons are sued for malpractice on the average of once every three years. One case where I was a named defendant occurred in 1996. The case finally went to trial with a defendant verdict in 2013. In this case, the first judge died and a second judge recused herself since she knew one of the defendants. So much for the concept of a speedy trial as a Constitutional right.

Because of the noted shortcomings of the present system, there have been proposals in the United States Congress, both in the House and Senate, to allocate money to the States to experiment with “Health Courts” and other alternatives to the present system of litigation, for resolving medical malpractice suits.  These courts did not get any traction in the past but they are now being restudied under the goals of the Affordable Care Act.

The proposed Health Court system will probably have a liberalized standard for negligence; a mistake or medical treatment falling outside a range of good practice will be compensable. The plaintiff will no longer have the burden of persuasion to show personal fault on the part of the defendant.

The Health Courts will be designed to expedite proceedings and improve patient access to the system. There will probably be limits on non-economic damages which will be based on the severity of injury. Damages will be set by an independent commission created by the State.

Under current models, the Health Courts will have public reporting of all cases settled or adjudicated. This would be a means for setting precedent for other courts dealing with similar fact patterns. There may even be a centralized reporting system so that there could be a uniformity of awards among all of the states.

What about the constitutional right to a jury trial? The Seventh Amendment states in part, “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved…” The U.S. Constitution does not prohibit Congress or the States from creating new compensation rights or eliminating claims that were recognized by common law so long as any changes were part of a comprehensive administrative scheme that provides benefits for the claimant. New York Central Railroad v. White 243 U.S. 188, 200 (1917).

Based on the previous model formed by the Congress, the Health Court system would probably require an initial review of the claim by a Health Court Review Board. If the Board concludes that the injury was clearly due to malpractice, a payment would be made based on a published schedule of benefits. These claims would have expedited payments since they would fit the definition of an Accelerated Compensation Event (ACE). Examples of an ACE would be giving a drug to a patient who is known to be allergic to the drug, amputating or otherwise operating on the wrong extremity, or unintentionally leaving a foreign body inside a patient who has been operated on.

If the Board is certain that the claim was not due to malpractice or the injury was too small to justify an award, they can dismiss the suit.

For cases that are not clear, a Health Court trial would be the next step in the process. These trials, based on previous models, would be presided over by “specially qualified judges” with a background in science or medicine. The models previously discussed do not require the judge to have any legal training but this may change during administrative clarifications.

I am not sure how the judges would be picked for this system, but there was a plan put forth previously by the Progressive Policy Institute which would have the judges appointed by the governors of the States. These judges would have to have a background in science and/or medicine. It was not defined how much science (hard or social) would be required or how much medical knowledge. It was also not clear if the judge would need to be a medical doctor. Would nurses and PhD’s be allowed?

The Health Courts would have power to hire their own experts to help explain the issues relating to standards of care and causation. Lawyers could be present during the proceedings but there would be no juries

The hired expert witnesses would be tasked to help the judges make binding determinations as to standards of care, causation, compensation, and related issues such as comparative fault. The expert would be considered as neutral as to the case outcome.

It is foreseeable that there will be a new legal standard as to what constitutes an injury. An “injury” will be the result of a mistake that should have been prevented. An injury would not occur if “optimal” care had been given. This is known as the “avoidability standard”. This standard is more liberal than negligence but not as severe as the “no fault” standard. Plaintiff will no longer need to prove that the defendant breached the standard of care by acting negligently. He will only need to prove that optimal care was not given; a much easier standard to prove.

If liability is found, damages would need to be set. In the previous models, the damages were to be set by a schedule of benefits derived from a consensus process involving research into similar benefit schedules in the United States and abroad. The schedule would cover both economic and non-economic damages.

Non-economic damages would be listed in a tiered system based on severity of injury. The damage schedule would be adjusted annually on the federal level and then used by the state health courts. The overall goal of the system will be to reduce health costs by reducing liability payments and the malpractice costs of providers.

The benefits of the proposed Health Court system would be (1) quicker and more reliable justice; (2) improved patient safety; (3) lower overall costs; (4) allow for the patient to have a more trusting and open relationship with physicians and other health care providers; and (5) a liberalized compensation scheme to cover avoidable injuries without the requirement of proving negligence. (Bulletin of the American College of Surgeons, May 2006).

The Health Court system seems like a reasonable idea to bring more fairness to compensating patients who have been injured by health care providers. Physicians like the system; insurance companies like it; Republicans like it; the Institute of Medicine likes it.

Lawyers hate it! In fact, the American Bar Association (ABA) adopted a resolution opposing the creation of Health Courts in 2006. The resolution stated that the ABA has “a strong history of firmly supporting the integrity of the jury system, the independence of the judiciary and the right of consumers to receive full compensation for their injuries, without arbitrary caps on damages.”[1]

It is not clear what the role of the National Practitioner Data Bank will be, especially as it relates to payments not due to medical malpractice.

I am not very good at predicting the future, but I know that physicians will need to understand what is going on in the medical malpractice arena so they can better participate in the decision making process. It will be interesting to learn what the states will do with this grant money being provided under the Affordable Care Act.

[1] Janice Mulligan, Chair of Standing Committee on Medical Professional Liability, 2006.

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

Affordable Care Act

Closure of a State Exchange

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One of the linchpins of the Affordable Care Act (ACA)[1] was to have health care insurance available for everyone. States were to form health care exchanges whereby people could shop for a suitable health care policy that fit their needs and still meet the requirements of the Act. If a state were to opt out of making an exchange, the Federal government would have a fall back exchange which could be used instead. The Federal government could not force the states to set up exchanges because that would violate rules of Federalism and the separation of powers.

In an effort to have the state’s set up the exchanges, the Act, in its original form, would only allow premium subsidies for those people who bought their health insurance on a state exchange. Surprisingly, only 17 states set up an exchange and 7 states developed a partnership exchange with the federal government; the other states opted to use the Federal exchange. The Federal government preferred the states to set up their own exchanges because the requirements of health insurance were under the powers relegated to the states. Each state would be in the best position to decide which policies would meet that particular state’s requirements.

Obamacare became a heated political issue and it was finally passed by Congress in 2010 with no votes from the republican side.  President Obama signed it into law.

Kentucky was one of the states that set up its own exchange. After the passage of Obamacare, Matt Bevin, the republican candidate for governor of Kentucky was able to win relying on a platform to do away with the ACA.

It is no surprise that Governor Bevin decided to close the Kentucky state run health care exchange “Kynect.” This exchange had originally been formed under the leadership of Steve Beshear, a democratic governor.

Governor Bevin felt that Kynect was wasteful spending since the Federal exchange could be used with relatively low costs to the state. With the recent Supreme Court decision of King v. Burwell, there would really be no penalty to Kentuckians who would still be eligible for premium support from the federal government. After all, Burwell held that state and federal health insurance exchanges were the same as far as health insurance premium support was concerned.

With the closure of this exchange, about 100,000 Kentuckians with private health insurance will now need to reapply for insurance through the Federal insurance exchange. This application can be long and difficult. There are more plans to choose from and the premiums vary considerably. Some people may opt out of getting health insurance altogether. They may have to pay a penalty (a tax) by being without insurance, but this tax will likely be less than the premium costs, anyway. Also, insurance can be bought at any time (guaranteed issue) and there is no penalty for waiting until you get sick (community rating).

It is likely that many of the 100,000 will hold off on redoing their health insurance until they need it. If relatively healthy people opt out of buying health insurance, this will put pressure on the insurance companies who rely on healthy patients to pay premiums and then don’t use the policy since they are in good shape. If insurance companies start to lose money, they may opt out of participating in the health insurance business of that state.

Here is some historical perspective. Kentucky was one of the first states to implement guaranteed issue and community rating in the 1990’s. Premiums kept rising as the insurance companies tried to stay solvent. Between 1994 and 1997, forty-five insurance companies left Kentucky because of rising losses.[2]

Several health insurers have been struggling under the Affordable Care Act. The nation’s largest health insurer, UnitedHealth Group warned that they may have to pull out of the exchanges by the end of 2016.  Tenet Healthcare, HCA Holding, Aetna, and Anthem are also struggling.[3]

There are several issues that will need to be addressed if Kentucky does close the state exchange. The state will first need to meet the obligations of the exchange through the end of 2016. Insurance companies who have participated thru the state exchange will then need to transition to the Federal exchange. Will these companies be willing to meet the requirements of the Federal exchange if they are significantly different from the requirements of the state? If the insurers are losing money, they are unlikely to stay in the business.

Is this closure of the state exchange just political posturing on the part of the republican governor who is trying to fulfill political promises? After all, there will be significant costs to the state and potentially to the citizens caught up in the transition.

The state will have to pay a 3% fee on insurance costs for the residents who use the Federal exchange. The state will also be at risk of losing $58 million of the federal grants it received for setting up the original state exchange.

Kentucky will still have to manage Medicaid and the Children’s Health Insurance Program (CHIP). These programs had originally been tied in to the state private insurance exchange; this uncoupling will likely result in some administrative costs to the state. Will the Feds cut back on the support of Medicaid and CHIP that they presently send to the state as a means to penalize the state for abandoning the state exchange?

Bevin’s approach to Medicaid will be different with the new system. Bevin says the state will still cover those whose income is up to 138% of the poverty level but there will likely be a decrease in benefits for those at or below the poverty line who do not pay Medicaid premiums. Bevin wants to model the Kentucky program after the Indiana program where people who do pay Medicaid premiums will get a better benefits package. It is uncertain as to how this will play out with the electorate.

There are some unknown unknowns that Bevin may have to deal with. Since King v. Burwell[4] showed that the Internal Revenue Service (IRS) controls the premium support available to the citizens, can the IRS financially punish the citizens of Kentucky to such a degree that Mr. Bevin will be forced to abandon his plans? I would not be surprised if pressure is brought to bear and Mr. Bevin may be forced to back off.  I don’t think any significant changes to Obamacare will occur until there is a new President and I don’t think the present executive will sit idly by while there is an attempt to close the Kentucky exchange.

[1] Commonly referred to as “Obamacare:.

[2] Conrad F. Meier, “Destroying Insurance Markets: How Guaranteed Issue and Community Rating Destroyed the Individual Health Insurance Market in Eight States,” The Council for Affordable Health Insurance and the Heartland Institute, 2005; http://www.cahi.org/cahi_contents/resources/pdf/

[3] Nathan Bomey and Jayne O’Donnell, USA Today, November 20, 2015.

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

 

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

Affordable Care Act

Physicians at Teaching Hospitals

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In the United States, Medicare pays the salary and fringe benefits of interns and residents in teaching hospitals. This amounts to about $100 thousand per resident every year. Of this amount, the resident is paid about $40-$50 thousand per year in salary.

Some of the dollars from Medicare are paid to physicians in charge of training the residents. In addition, several billion dollars is paid to teaching hospitals every year to offset the added costs of training residents. These costs include malpractice coverage for the residents and the added costs generated by inexperienced physicians who have a tendency, it is believed, to order more tests and consults on their patients than are really necessary. These tests and consults are for “learning purposes.”

In the late 80’s, the Inspector General and the General Accounting Office decided to do an audit as to how this money was spent. This audit found that some of the money was spent on alcoholic beverages, trips to European countries, and fine works of art. Believing that this spending was not related to resident education or training, Congressional hearings were convened.

At the initial hearings, the teaching hospitals argued that Medicare policy on how the money could be spent was unclear. Although Congress agreed that the policies were vague, they also believed that spending on art, alcohol, and trips were clearly not related to the intent of the spending. As a result of these hearings, the initial Physicians at Teaching Hospitals (PATH) audits were done. These audits were intended to “make sure that the Federal Government is getting its money’s worth and that there is honesty in what is being done.”[1]

Historically, the charting on a patient was done by the residents. The attending physician would make rounds where the residents and medical students would present the patient, go over the latest clinical course, including lab values, EKG’s, and radiographs and results of other tests. A discussion would follow and a plan would be made. The history, physical exam, and daily notes were the responsibility of the resident.

For operations and other procedures, the resident who did the procedure or even small parts of a procedure, was expected to do the pre-operative note and the post-operative note and the dictated operative report which was a detailed description of what was done during the procedure including the operation performed, the operative findings, blood loss, specimens obtained, drains placed, and complications.

The documentation done by an attending was variable. Some attendings would do their own notes, some would just cosign the resident notes and some would do nothing. The television show House, starring Hugh Laurie, is a good depiction of attending involvement. House would go over the patient with the residents and he would do procedures on the patients, but he never made a note in the chart.

When I was a Surgical Resident in the late 70’s and early 80’s, night work was in the realm of the residents; including any operations that needed to be done. However, before anything was done to the patient (except for dire emergencies), the attending would be notified. He would then usually give the “go ahead”. At least the attending would be aware of what was going on. Sometimes (rarely) the attending would come in to the hospital but this usually meant that he did not trust the particular resident who had the on-call responsibilities at that time.

The only Medicare requirement for payment was to have some documentation of attending involvement. This documentation was usually met with some co-signatures in various parts of the chart. These co-signatures did not have to be dated and timed although they could be. Often, these co-signatures were placed at the time the patient was being discharged.

The PATH audits turned everything on its head. The Office of the Inspector General found that the University of Pennsylvania had significant errors in their billings. A percentage of billing errors was determined based on a sampling of medical records reviewed. This led to a referral to the Department of Justice (DOJ). The DOJ process used to estimate billing error used the OIG percentage of error results and used that percentage to estimate the potential False Claims for all Medicare part B services for multiple years. By using this methodology, the DOJ was able to claim a fine in the $100’s of millions range. Each violation (false claim) could have led to a fine of over $10 thousand. Since there were thousands of bills and using the percentage of error found in the OIG audit, the DOJ could put the University of Pennsylvania at grave financial risk if the Court were to rule with the government.

Because of the huge financial risk of litigating the claim, the University of Pennsylvania decided to settle with the Department of Justice for $30 million.

A similar audit at the University of Washington resulted in a $35 million settlement. I think the penalty may have been a little higher since one of the neurosurgery attendings tried to suborn perjury by having his residents say he was present in the operating room when he actually was not.

An audit of Dartmouth was initiated even though the OIG had no prior indication that the University was not properly billing. Dartmouth mounted a vigorous defense. The audit lasted for ten months and, according to Dartmouth, cost the institution $1.7 million in direct and indirect costs. When the audit was completed, the identified billing errors totaled $778. Dartmouth was vindicated but it still cost them a significant amount of money in the defense.

The OIG was making a lot of money and every University and Hospital with a training program was on the radar. A lobbying effort led to Congress shutting down the OIG but the chance of the audits starting up again remained.

The Affordable Care Act was passed by Congress and signed by President Obama in 2010. Many parts of the Act have been postponed by a stroke of the President’s pen; other parts have yet to be clarified by the Administrative bodies that have been empowered to enforce various sections of the Act.

One thing is clear. A major focus of the Act is to decrease the cost of Health Care in our country. A major mechanism of decreasing the costs is to eliminate waste, fraud, and abuse. It is likely that physicians will be closely watched to see that they are providing the services that they are billing for. Physicians at Teaching Hospitals will, once again, be scrutinized to be sure that they abide by the supervision requirements laid out by CMS and other third party payers.

At this point in time, the physician educator must document with specificity that he has seen and examined the patient. The documentation must include a pertinent history and physical exam and a plan of action to address the medical problem(s).

For physicians who are billing for a surgical or other type of procedure, there must be documentation that the attending physician was present for the critical portions of the procedure. In the past, a statement verifying that you were there for the critical portions of the procedure would have been sufficient for billing purposes. The physician could use his own judgment as to what a critical portion of the procedure was. I predict that the requirements will be tightened in the future. “Critical portions” are likely to be defined as the beginning of the operation (skin incision) and those other parts necessary to accomplish the operation successfully; this may now even include the closure of the incision.

I do not think that the teaching physicians will be required to do the critical portions of the operation themselves, but they will be required to be present in the room. This can be problematic from a resident training standpoint. If the residents in training are not allowed to do the critical steps of the operation themselves, then how will we know that they can do these steps when they, themselves, become an attending? It is a strong public interest to train physicians for the future. Will there be any wiggle room as to how much “presence” is necessary to allow for billing?

For now, a surgeon needs to be either (1) scrubbed and doing the procedure himself, or (2) scrubbed and first assisting the resident, or (3) not scrubbed, but in the room supervising the resident, or (4) not scrubbed, but available for immediate consultation. This last requirement usually required the attending to be, at least, in the hospital.

The time frame of the presence requirements has never been defined but I would not be surprised if the enforcers try to make it from beginning of the procedure until the end of the procedure. If they do this, it will mean that attending surgeons will need to be spending more time doing procedures and less time in the wards, seeing consults in the clinic, and meeting administrative responsibilities. Of course their research and teaching time will also be affected. This will mean that physicians will need to work more hours per day and/or that more physicians or physician extenders will need to be hired.

A more significant consequence of this more onerous presence requirement will be that future physicians will never have the opportunity to operate independently until they become an attending. Since all of the Surgical boards require a statement from the teachers that a particular resident can function “safely” and “independently,” it is obvious that a conflict is looming as to how best to train future physicians who do procedures, e.g., surgeons. If the law says that attendings must be present from the beginning to the end of a procedure, then there will be no opportunity for the resident to ever work without the attending looking over his shoulder.

While it is true that simulators are being developed to help surgical residents develop the skill sets needed to operate safely, they are not yet to the level of actually operating on a real live human.

It is clear to me that an unforeseen consequence of the Affordable Care Act is the reduction of the skill sets and confidence that the surgeons (and other physicians) in training need in order to operate in a safe and independent fashion. Future generations of patients will suffer as the best training methods in the world are being impaired by regulations mandated by non-clinician beaurocrats. As the older surgeons retire and/or die out, the replacements will just not be as good! What a shame.

Care will be cheaper, but it won’t be as good. I never thought that the American public would put up with this nonsense but I may be wrong.

[1] Senator Arlen Spector, October 21, 1991.

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

Affordable Care Act

Retirement Looks Good About Now

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With all of the new requirements for practicing medicine under the Affordable Care Act (Obamacare), retirement for those who can do it looks like a pretty reasonable option. Unfortunately, there is a clause under the Act that may take this option off of the table. Section 5210  Establishing a Ready Reserve Corps, amends Section 203 of the Public Health Service Act (42 U.S.C. 204) such that there will now be a Ready Reserve Corps for service in time of national emergency.

Physicians have always been subject to a draft during times of war. This new law now makes them subject to a draft during any national emergency. It is not clear under the law as to what would constitute a “national emergency,” but Section 203(c)(2)(D) states that the Ready Reserve Corps “be available for service assignment in isolated, hardship, and medically underserved communities …to improve access to health services.”

Physicians are the “ready reserve corps”. Not much has been written in the news media about this small section of the Affordable Care Act, but as a physician looking forward to retirement, it is of concern. In fact, the law specifically states that this reserve force must be able to respond on short notice and may even have to serve “involuntarily.” [1] Does this mean that they can keep me from retiring and put me in a medically underserved community which may need a cardiothoracic surgeon? The way I read the law, the answer is “yes.”

The uses of this Ready Reserve Corps would be to “ (A) participate in routine training to meet the general and specific needs of the Commissioned Corps; (B) be available and ready for involuntary (emphasis added) calls to active duty during national emergencies and public health crises, similar to the uniformed service reserve personnel; (C) be available for backfilling critical positions left vacant during deployment of active duty Commissioned Corps members, as well as for deployment to respond to public health emergencies, both foreign and domestic; and (D) be available for service assignment in isolated, hardship, and medically underserved (emphasis added) communities …to improve access to health services.”

On July 2, 2008, President Obama stated that “We cannot continue to rely on our military in order to achieve the national security objectives that we’ve set,” he said. “We’ve got to have a civilian national security force that’s just as powerful, just as strong, just as well-funded.” Could the Affordable Care Act be the first legislation used in setting up this new national security force and will the physicians so drafted be the spear-head of this force? Why should a civilian national security force need to be just as powerful as our military? Why does it need to be as well-funded? Will this force be armed with military style weapons? This seems to be overkill to me but there is not much on the internet or in the main stream media to help discern the role of this force.

Would this new force be constitutional? The ACA funds it and the Commissioned officers of the ready reserve are to be appointed by the President. This would be different than the commissioned officers of the regular corps which are appointed by the President with the advice and consent of the Senate emphasis added. Why no requirement for the advice and consent of the Senate for the officers of the ready reserve corps? I don’t know but I am worried. Who will the president appoint? What kind of power will these officers have? Will it be the same type of power as the regular corps or will there be differences? Where will the checks and balances be if the Senate has no role in deciding who these officers will be; this is very different from the requirements of the other uniformed services. Why the difference? Will this force only be answerable to the President?

Nancy Pelosi infamously stated that we would have to pass the Affordable Care Act in order to find out what was in it. What she has stated has now come to pass.

Sections of the ACA that I thought were clearly unconstitutional have passed Supreme Court scrutiny. First, mandating the purchase of health care insurance was deemed to be a proper exercise of the taxing power of the United States.[2] Originally, President Obama stated that this power was allowed under the Commerce Clause and it was not (emphasis added) a tax.  Justice Roberts stated the opposite in his opinion. The mandate was not allowed under the Commerce Clause but it is allowed as a tax. Oh, well.

The other Supreme Court decision that I was way off on was the case of King v. Burwell.[3] Originally, the ACA would only allow tax credits for those who used exchanges that had been set up by the States. When States did not set up an exchange, then the Federal government would set one up but the people in those states would not be given any tax credits which were intended to help pay the premiums for the health insurance. The intent of the Congress was to get the States to buy into Obamacare but many of the states chose not to do this.

Despite the clear language of the statute, the Internal Revenue Service, under the direction of the White House, started giving tax credits to everyone, even to those in States that had not set up an exchange. The Executive Branch is supposed to enforce the law, not change it. When this issue made it to the Supreme Court, the Court decided to repair the law. Since the Judicial branch is supposed to state what the law is, it seems like the Court was overstepping its authority when they essentially changed the law such that State exchanges really meant State and Federal exchanges.

By its decision, the Court essentially gave the Internal Revenue Service the authority to spend billions of dollars on tax credits for those using the federal Exchanges. The power of the purse, I thought, was to be invested to the legislature, not the Court. Boy, was I wrong.

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. Asking me to make a prediction as to a law’s constitutionality would not be a good idea; I am often wrong, especially as it relates to Obamacare.
[1] Section 203(c)(2)(B) of the Affordable Care Act.

[2] National Federation of Independent Business, et al., v. Kathleen Sebelius, Secretary of Health and Human Services, 648 F.3d 1235.

[3] King v. Burwell, 135 S. Ct. 475 (2014).

darrylweiman

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

Affordable Care Act

Is Health Care in America Really So Bad?

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On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (ACA)[i]. The intent of the law was to provide health insurance to all Americans while, at the same time, lowering 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 is expensive. In 2009, the United States spent 17.3 percent of our 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.[ii]

Infant mortality is defined differently depending on the country. Since the definitions differ, it is not surprising that the 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.”[iii]

In Switzerland, the baby must be at least 30 centimeters long at birth to be counted as a live birth[iv]. 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.[v] 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 of 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?

Mary Lasker has been quoted as saying, “if you think research is expensive, try disease.”[vi] 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?

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.

[i] Often referred to as “ObamaCare”.

[ii] Glen Whitman, “Who’s Fooling Who? The World Health Organization’s Problematic Ranking of Health Care Systems,” CATO Institute, February 28, 2008.

[iii] Geneva Foundation for Medical Education and Research, Live Birth Definition.

[iv] 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.

[v] Bernadine Healy, “Behind the Baby Count.” US News and World Report, September 24, 2006.

[vi] Mary Lasker was a Health Activist and Philanthropist who raised funds for medical research. She helped found the Lasker Foundation. A Lasker Award is often a harbinger of the Nobel Prize as, at least 86 Lasker Award winners went on to win the Nobel Prize.

 

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

Affordable Care Act

The Independent Payment Advisory Board

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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.

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

Affordable Care Act

A Commentary on King v. Burwell

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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 www.healthcaredive.com on February 17, 2016. 

In the Courtroom

Being Deposed? Beware and Behave!

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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 www.healthcaredive.com on February 17, 2016.