Washington Joins Oregon on Physician-Assisted Suicide. Is California Next?

Jane Gross reports in the New York Times on the passage of “Initiative 1000,” the referendum that makes Washington the second state in the country (after Oregon) where physicians are permitted to prescribe lethal doses of medication to terminally ill people who want to hasten their own deaths. It’s been 11 years since Oregon passed its referendum. The Washington measure requires that the assisted parties be state residents, mentally compentent, have two physicians confirming their terminal (six months or less) condition, to live according to two physicians, and that they wait 15 days after their request and then repeat that request orally and in writing. They must be capable of administering medication themselves and agree to counseling if their physicians request it. The patients also must be informed of alternatives.

Dr. Timothy Quill, a palliative care expert, recommended a palliative care consultation prior to assisting a patient with any of the following “last resorts”:

• aggressive pain management that may, but is not principally intended to, hasten deathPain management (“double effect”);
• permitting a patient to opt out of life-sustaining therapies;
• abiding a patient’s voluntary refusal to eat and drink;
• sedation to the point of unconsciousness (endorsed earlier this year by an AMA panel).

Will California be next, forming a Pacific Coast “bloc” on the issue? In 2007, the California legislature debated but could not pass a measure that would have made California the second state in the country to permit physician-assisted suicide. The failure capped a three-year effort that is almost certain to be renewed in light of the Washington decision. The California Medical Association (CMA), which represents 35,000 doctors, opposed the California bill, arguing that it created a conflict with a physician’s ethical duties. (The California Association of Physician Groups, however, supported it.)

Are patient collections worsening?

Reed Abelson provides another report on the impact of the economic downturn on healthcare in the New York Times.
Hospitals are reporting a declines in the percentage of patients able to pay for care they need, from knee replacements to hernia repairs to weight-loss surgeries. If true, the loss of these inpatient revenues — as a result of economy-driven concerns — will be a big problem both for physicians in the relevant specialties and hospitals. (Although the article focuses on hospitals, the drop-off has parallel serious negative implications for physicians who depend on steady streams of patients needing these procedures.)

Under the Emergency Medical Treatment and Active Labor Act (EMTALA), hospitals are required to provide emergency care to patients who show up, at least to stabilize their condition. Hospitals depend on subsidization from more lucrative procedures to pay for the emergency care for non-paying patients. An increase in the percentage of patients who can’t afford to pay doesn’t bode well for the future of Southern California hospitals, many of which are already stretched financially.

Does Media Coverage Contribute to Declining Healthcare Consumption?

Does media coverage impact healthcare consumption? Over the past two months, a steady stream of newspaper stories have reported on the negative effect of the sour economy on patient consumption of healthcare services. Last week, the New York Times reported that patients were skimping on their prescription drugs to save money. Today, the Times reports on a trend with a less serious public health implications, but very negative ramifications for the healthcare economy of Southern California: declining public interest in cosmetic procedures.

The story reports results of a survey about the first six months of 2008. As with many of the other articles, the statistics on which the story draws are from a small sample that calls into question their reliability.

It would be interesting to know how real the underlying trend is. Is it possible that such reports are having a significant negative impact on healthcare consumption? Anecdotally, many –but not all — providers of elective care have been reporting a softening demand for elective procedures in Southern California that predated the most immediate bad economic news. As for non-elective care, however, my sense is that the issue in Southern California is not one of demand, but rather the challenge of collecting from patients who are having somewhat more difficulty paying the portion of care for which they are responsible.

Half of doctors give placebos?

Gardiner Harris writes in the New York Times that half of American doctors in a national survey claim to regularly prescribe placebos to patients. The study involved 679 internists and rheumatologists, rather than a cross-section of all specialties The most common placebos were headache pills and were headache pills and vitamins, but a “significant number” reported prescribing antibiotics and sedatives.

The problem, apparently, is patients who need psychic, not physical, help. Even if patients get the mental relief they need, the practice of treating patients in a deceptive manner is ethically fraught and, if discovered, legally, problematic. The American Medical Association (AMA) has discouraged placebos based on their violation of the trust that inheres in the patient-physician relationship. Providers would be well advised to avoid misrepresenting medications or misleading patients, even when they it’s intended for the patient’s own good.

Are Physicians Required to Hire Sign Language Interpreters for Deaf Patients?

Mary Pat Gallagher reports in the New Jersey Law Journal that a jury awarded $400,000 to a deaf patient who sued under the Americans with Disabilities Act (ADA) claiming that she was deprived of the opportunity to participate in her own healthcare decisionmaking by her doctor’s refusal to engage a sign language (ASL) interpreter.  To add insult to injury, the physician’s professional liability insurer is not expected to cover the liability, half of which was punitive damages.

The verdict raises the question of what obligations  physician owes to deaf patients.  The patient alleged that her repeated requests to her rheumatologist (treating lupus) were rebuffed because of the cost  ($150-$200/visit in his estimation).  Instead, he communicated over 20 vists and 20 months via her partner (in writing) and using the patient’s 9-year-old to translate.  As a result of poor communication, the patient claimed she did not understand her medical condition or treatment, including risks and alternatives.

Are California physicians similarly at risk?  Anyone treating a Medicare or Medi-Cal beneficiary (and thereby receiving federal funds) is subject to a similar potential ADA claims.  As a result of their relatively high incomes, physicians are generally at risk of similarly unsympathetic juries unswayed by arguments about relative cost. This case is hardly the first example of a case imposing an obligation to supply an interpreter on a physician (or hospital).

So what should California physicians do? Even when patients don’t make a specific request for a sign language interepreter (or a foreign language translator), physicians need to be concerned about ensuring that all patients — no matter what translation or interpretation is necessary — understand their contractual obligations, the notice of privacy practices, and, above all, the informed consent. For purposes of obtaining informed consent, a live translator or interpreter, as opposed to a prepared document, is advisable. Every situation is fact specific, but it would be safer to decline to treat a patient with whom a physician cannot communicate adequately. In cases where physicians elect to treat patients despite communication challenges, cost-effective options should be sought out, from ensuring that a staffer is able to communicate well or having access to an interpreter or interpretation service.

Online Databases and Handheld Devices Allow Patient to Manage Care

Anne Eisenberg reports in the New York Times on new devices and software applications intended to make electronic health records useful for patients. (“Keeping Your Own Health Chart, Online,” Oct. 12.) For example, a forthcoming handheld device, the “Zuri” from Zume Life, will prompt users to take pills on schedule, record diet and exercise information, and track symptoms.

One big trend is devices that can upload health data (blood pressure, heart rate monitors, blood glucose monitors, weight scales) directly to online health records maintained through services like Microsoft’s HealthVault or Google’s Google Health. Storing the information online is not merely a matter of convenience for recording purposes; it enables data to be transmitted to healthcare providers for better quality of care and potentially for fewer or shorter visits to the doctor. Patients who dislike filling out initial intake medical forms, for example, can use NoMoreClipboard, a service that transmits the information directly to doctors electronically.

While the article concludes with a note of caution about patients’ privacy concerns, the concern is reminiscent of the worry that e-commerce might never overcome consumer fears about sharing credit card numbers online. While it remains to be seen which service provider(s) will win and how quickly adoption will take place, the question regarding online health records is more “when” than “if.”

Consumer Spending on Healthcare Declines (Part 2)

The previously reported impact of the economic downturn on consumer healthcare spending (Fenton & Nelson e-advisory, Sept. 23) is attracting increased attention. The Washington Post reports that “[f]rom Park Avenue dental offices to the Arlington Free Clinic, the global economic crunch is forcing a growing number of Americans to scale back on medical care. Consumers are attempting their own form of triage, pushing off seemingly less-urgent services in the hope that their financial health will improve. But the danger, say physicians, is that the short-term savings may translate into more severe long-term health implications.” The article reports multiple surveys indicating a growing number of patients not filling prescriptions, skipping doctor visits, or borrowing from their retirement funds to pay healthcare costs.

Recommended Action: This article and the referenced studies provide further confirmation of a disturbing trend of patients foregoing care or, as the article references, seeking do-it-yourself (“DIY”) care via increasingly popular websites like www.justanswer.com, a website that allows customers to pose a health questions and “bid” $9 to $30 for a doctor’s or a nurse’s response. According to the article, traffic on the site rose 14%, with inquiries related to stress, high blood pressure, drinking and heart pain jumping 33%. As patients elect to forego care based on economic hardship, physicians need to protect themselves by documenting follow up on patient missed appointments and warnings of the long-term risks of DIY or missed care.

Dealing with Difficult Patients

Dr. Tony Miksanek, a small town physician in Illinois, describes varieties of difficult patients in this week’s Health Affairs. He describes types that many physicians may recognize:

• the self-reliant “know-it-all” who renders his physician ineffectual by not following medical advice, showing up sporadically, and relegating the physician to functioning as “pen and prescription pad”;

• the “worried well” hypochondriac, who constantly pesters her physician with phantom and non-emergent problems, is convinced that there’s something wrong with her, and seeks medically unnecessary care (“testophilia,” i.e. a love of diagnostic tests); and

• the pain-in-the-neck patient, paranoid about insurance coverage, whose pessimism about his recovery prospects becomes contagious.

Dr. Miksanek offers suggestions on how to handle these “problem patient” archetypes.

Recommended Action: Providers who encounter these patient archetypes may find Dr. Miksanek’s perspective (below) helpful:

How not to care for difficult patients is pretty obvious: Don’t brush them off. Don’t use “stress” as a diagnosis for unexplained symptoms unless you’re 99 percent sure that anxiety is an accurate diagnosis and not just a cop-out. Don’t be angry. Don’t be punitive. Don’t propagate despair.

How to care for difficult patients? Inside my office, I know that it involves protocols and limits, truth (including knowing when to admit “I don’t know” to yourself and your patient), information and resources, and goals for reasonable results. In my heart, I know time is key. Time is a precious commodity subject to the laws of supply and demand. Difficult patients require more time. Busy doctors find that time is in short supply. Difficult patients are at risk of becoming casualties of the almighty schedule. A fifteen-minute time slot is hardly enough for complicated patients. No one would make a major decision—choose a spouse, buy a car or a house, select a college, pick a job—after only fifteen minutes of deliberation. Why then do we cram important decisions about personal health matters into fifteen-or twenty-minute appointments?

What exactly drives the office schedule of a doctor and dictates how much time is allotted each patient? Multiple considerations, but the big ones include patients’ needs, reimbursement, practice volume, hospital responsibilities, a doctor’s energy level, and the office staff’s desire to get a lunch break and still make it home by 6 p.m. When one is dealing with difficult patients, a good case can be made for longer but less frequent office visits.

Extended visits would likely improve patient and physician satisfaction, improve compliance, and upgrade the quality of care. Providing people with more face-to-face time with their doctors does more than merely help communication. Longer visits might actually be more cost-effective than brief ones by reducing the need for frequent follow-up appointments, curtailing the number of consultations and second opinions, decreasing excessive testing, cutting down on the cost of transportation and gas consumption necessitated by repeated short visits with the doctor, and minimizing the amount of missed work for numerous appointments. In this sense, lengthier visits are a bargain. Too bad insurance companies and other payers don’t see it that way.

As with all things, unfortunately, identifying the challenge — a broken compensation system that drives doctor-patient interactions into brief allotted visits without sufficient time to develop relationships, discuss issues, and reach considered decisions — is easier than getting to the solution.

Harry Nelson is a partner in Fenton & Nelson, LLP. Fenton & Nelson counsels physicians and other healthcare providers on regulatory compliance and business matters, including informed consent and practice management. For additional information, please contact him at harry@fentonnelson.com

©Harry Nelson 2008

Newly Enacted Mental Health Parity Act Expands Benefits

The Los Angeles Times reports on the recently enacted Mental Health Parity Act. Included in the financial bailout legislation enacted last week, the new law requires health plans to cover mental and physical illnesses equally. Among other things, the law prohibits companies from establishing higher co-pays or deductibles for mental health and substance abuse treatment. Companies with fewer than 50 employees are exempted.

Recommended Action: While news coverage has focused on the anticipated increase in health insurance costs resulting from the law, the expansion in benefits should be positive in many respects for providers of mental health services and providers who treat substance abuse issues by ensuring more expansive coverage of benefits. Among other things, the law bars restrictions on outpatient therapy sessions or hospital treatment days. Not all patients will benefit, however; the law does not require plans that do not currently offer any mental health treatment to begin doing so.

Harry Nelson is a partner in Fenton & Nelson, LLP. Fenton & Nelson counsels physicians and other healthcare providers on regulatory compliance and business matters. For additional information, please contact him at harry@fentonnelson.com

©Harry Nelson 2008

Training Staff to Communicate with Older (and Younger) Patients

Reporting a new study on the damaging physical consequences of “elderspeak” (talking to the elderly in a sweet but condescending manner), the New York Times quotes a researcher that the “the worst offenders are often health care workers.” The study reviewed videotaped interactions in a nursing facility, and found that “elderspeak” raised stress levels (some patients reacted with hostility and others with anger) and correlated with shorter lifespans and diminished performance.

Recommended Action: The study highlights the problem of lack of training of health care workers, whether in nursing facilities or in private practices, on how to communicate with patients. The negative effects of condescending communications on patient health are just one of many reasons why providers need to train staff how to communicate with patients. Providers cannot avoid dependence on staff to communicate with patients, and need to ensure that staff are assets and not liabilities when talking with patients, both in person and over the phone.

Perhaps the biggest benefit of training staff is that effective communication with patients generates good will and establishes a rapport that deters lawsuits and licensing complaints. Often, for example, patients sue or complain to licensing boards based on the belief that the provider and staff just “didn’t care”; unreturned calls, unanswered questions, and impersonal interactions generate ill will and negative impressions that make suing or complaining seem like the best thing to do.

When training staff on good communication, possible areas to consider include:

• preparing answers to frequently asked questions for staff reference;
• training staff to respond to anger or frustration with empathy and professionalism (rather than defensiveness);
• training staff to use rephrasing (active listening) to convey understanding and anticipated follow up when an immediate solution to a problem is unavailable;
• training staff on how to involve patients in problem-solving;
• training staff on how ot identify and deal with “problem patients”;
• training staff how and when to apologize and thank patients for calling attention to a problem;
• establishing systems for feedback from patients and staff (e.g. patient surveys and meetings with staff)
• especially good way to obtain feedback from patients who are uneasy about voicing their dissatisfaction.

Ultimately, providers need to train staff to think of themselves as customer service representatives and to treat patients as the staff would want to be treated if they were the patients. It is amazing how far genuine warmth and caring can go in disarming even the most challenging people.

Harry Nelson is a partner in Fenton & Nelson, LLP. Fenton & Nelson counsels healthcare providers on risk management and business issues related to their practices. For additional information, please contact him at harry@fentonnelson.com

©Harry Nelson 2008