Lawmakers To Consider State Level Healthcare Reforms

December 2, 2013 10:00 am

by Charlie · 13 comments

This week’s Courier Herald Column:

With the holiday season upon us, the thoughts of most will turn away from politics and on to things that actually matter.  And yet, when the presents have been opened and the calendar turns to 2014, there will be less than 2 weeks before the start of Georgia’s General Assembly session.  Thus, while most of us are celebrating and spending time with loved ones, some have already been preparing for what will likely be a short and speedy session of making laws.

The Affordable Care Act, now generally referred to as “Obamacare” in most GOP circles, has dominated political conversation and will be the rallying cry to try to pass at least some state level legislation.  A group formed under the name “Taxpayers For A Healthy Georgia” has been spending time and money in an attempt to reform medical malpractice cases for months.

At least two glossy direct mail pieces have been mailed to select voters targeting legislators that will consider eliminating the ability to sue doctors in favor of a claims system similar to the workers compensation process.  Senate Bill 141 – The Patients’ Compensation Act – would provide for a patient compensation system where appointees of the Governor, Lt. Governor, and Speaker of the House would adjudicate claims against doctors without the patient ever seeing a court room.

Supporters claim the plan “lowers premiums, saves tax dollars, and pays injured patients quicker”.  Critics such as Senator Fran Millar of Dunwoody openly question the legality of the bill, wondering if the courts would uphold the state taking away the patient’s right to sue.  The bill is opposed by both the Medical Association of Georgia and the Trial Lawyers Association. 

This may be the signature bill of this session of the General assembly, as the money already being spent on lobbying and informing the general public is significant.  The deep pockets of those in opposition virtually ensure this bill will become a lobbyist full employment program.

Despite the use of campaign materials citing the bill as a way to fight the premium increases associated with the ACA, the bigger picture question is whether Georgians will support the creation of another government bureaucracy in an effort to bend the medical cost curve.  That aspect, at least on the surface, makes this bill seem like it may have more in common with Obamacare than not.

Another proposal, however, seems to fall closer to the talking points of those in opposition to the ACA.  A proposed “Cancer Treatment Fairness Act” seeks to put patients in better control of the treatment options available to those suffering from various cancers that can be treated with oral medication.

In the last five years, oral cancer treatments have expanded from about 10% of available cancer treatments to approximately 25% of treatment options.  The problem is that oral treatments are generally treated as pharmacy expenses, which are often more expensive and carry higher out of pocket expenses than the customary IV treatments.

Supporters claim oral medications require fewer doctor visits, improved quality of life, and the ability to treat cancer like a chronic condition such as diabetes or high blood pressure.  The proposal would not mandate that insurance companies cover oral cancer treatments, but would require those who cover cancer treatments to make the out of pocket costs equal for either IV or oral medications.

It would seem that of the two proposals, the Cancer Treatment Fairness Act has the easier path to become law.  It doesn’t take away existing patients’ rights, nor does it have the powerful lobbies of the trial lawyers and the Medical Association of Georgia against it.

Instead, it offers a solution to the themes that have been lost that originally sold the ACA: That of the patient being able to choose his or her own medical care.  The bill sets out to level the playing field – and the associated costs – for the emerging market of advanced oral cancer treatments.  With that leveling will of course come a cost, as the additional expenses incurred by insurance companies will have to be absorbed by premiums paid by the insured.

When put to public opinion, however, the added incremental cost associated with being able to choose your own treatment – like choosing your own medical insurance or your own doctor – is likely to be supported.  The lack of a right to sue in the Patient’s Compensation Act – despite the promise of lower premiums – will be a much tougher sell.

Donald Palmisano Jr. (@DPalmisanoMAG) December 2, 2013 at 10:35 am

Lawmakers To Consider State Level Healthcare Reforms — Peach Pundit http://t.co/iyF7A7R7Pp

Jon Lester December 2, 2013 at 11:08 am

I, too, have to wonder about the legality (and rightness) of taking away an option to sue, and we’ve been promised lower premiums before…

View from Brookhaven December 2, 2013 at 12:11 pm

So if those groups are opposed to #141…who is pushing it? Some distant group with some combination of “Freedom”, “Liberty” and “Prosperity” in the name?

benevolus December 2, 2013 at 12:31 pm

Why is the answer always to restrict the options of the victim? Is there a proposal to limit the profitability of the insurance companies? Or the income of doctors? Or the revenue of hospitals? No? Those kinds of restrictions would be terrible! But restricting the options of the victims is just fine!
It’s sickening to think that of all the possible ways to manage costs, some people will always pick the weakest group to grind a few more bucks out of.

atl_man December 2, 2013 at 2:05 pm

These tort reform schemes are ridiculous. The true goal of medical malpractice reform is to preserve awards in cases of legitimate malpractice while limiting the spurious “money for nothing” awards. Doing anything else is a tacit acknowledgement that our health care system messes up big time and causes real harm quite often.

It would be kind of simple, actually: require a person to show real damages before any claims in excess of $100 can be paid out. That would eliminate the biggest fear of insurance companies and gold mine of trial lawyers: the class action lawsuit where tons of people can get a check just by signing onto a suit once it reaches class action status. The trial lawyers do this because they know that increasing the size of the class A) increases the likelihood of a judgment or settlement and B) increases the amount of the judgment or settlement and thereby C) increasing their own cut even though D) the amount that goes to the people actually harmed is reduced because all the people with spurious claims get their take. And no, it doesn’t mean that you have to “win” the case before it goes to court, because proving that you suffered damages is entirely different from proving that the defendant is financially responsible for your damages.

Another idea: limiting pain and suffering awards to where they do not exceed your medical bills/lost wages or earning potential award. Another idea still: only allowing large punitive damages to be awarded if there are circumstances to justify it i.e. if a criminal verdict or finding of negligence/incompetence against the doctor or hospital or some suspension/revocation of license accompanies the civil award. Otherwise, exactly what are we punishing the defendant for, or why should this punishment exceed medical bills and lost wages?

Finally, instead of forcing people to go to this review board (which will be stacked with pro-big business ideologues, lobbyists, donors etc.) why not give people the option? If this REALLY pays injured people more quickly (and lowers their legal bills also) then people with valid claims would choose it on their own. Also, give people a right to decline. If the review board gives them an award that – for example – does not cover their medical bills/lost wages/future income, allow them the option of declining the review board’s decision and pursuing it in court.

If the true goal is to limit frivolous lawsuits while allowing legitimate ones to proceed, things like this would be considered. But if the goal is to shield doctors, hospitals and insurance companies from the consequences of their behavior, stuff like this will be avoided like the plague.

Of course, the Democrats are no better on this issue. They could have offered legitimate tort reform ideas like this decades ago. But instead they believe that the ability to get thousands or millions of dollars that you do not merit on a lawsuit to be some sort of fundamental right.

benevolus December 2, 2013 at 2:32 pm

And all I’m saying is that if you are going to limit one side of the equation, limit the other side too. If we are going to limit claims, then how about also having insurance companies and/or doctors et.al pay into a fund by an anticipated equal amount. Fair is fair.

atl_man December 2, 2013 at 9:46 pm

@benevolus:

I don’t really see it as “limiting one side of the equation.” On one hand, people who have suffered no malpractice at all shouldn’t be able to latch onto a class action lawsuit and get something for nothing. And even suffering legitimate malpractice should not be used as a winning lottery ticket. Another thing: as lawyers get from 40% to 60% of the judgment, the malpractice victim’s side is limited already. Are we going to double these awards just to make sure the victim gets what he actually needs after legal fees? Coming up with a way to eliminate the lawyers – or at least where the lawyers get no more than 10% of the amount or some flat rate because the lawyer’s job shifts from representing you in a legal case to guiding you through an administrative procedure – actually is in the best interests of the victim in most cases. And it can actually be in the interests of most lawyers because instead of needing to be the sort that can wrangle with the tactics of insurance companies and threaten to sue (when the insurance company knows perfectly well that an actual trial is not in the interests of the victim in 99.9% of cases) lawyers would be able to earn a good, steady income representing people in the patient compensation system because it would shift from trial lawyer/arbitration/negotiated settlement work to something more akin to legal aid work. So again, if this is done right – as a way to help victims as opposed to shield insurance companies and big businesses like Palmyra HCA (if you know anything about south Georgia you are familiar with this hospital ownership/management chain) – it actually could help pretty much everyone involved.

Also, I know you wish for the “fair is fair” thing, but unless we are going to socialize insurance (which by the way is a different thing than socializing the care providers and institutions) to eliminate the profit motive, what you are asking for isn’t going to happen. Look, I get the bleeding heart thing. But the reality is that insurance companies are going to pass off these gigantic malpractice awards by raising premiums, and doctors/hospitals are going to pass off their increased premiums by raising the cost of care. And the result is that fewer people are going to be able to pay for even routine medical visits and procedures “out of pocket”, causing them to rely on insurance even more, which raises the cost of insurance even higher. And health care providers, desperate to limit their liabilities in lawsuits, are far more selective when hiring people, which makes doctors and nurses even more overworked. Hospitals won’t even hire licensed practical nurses to perform duties like patient hygiene anymore because if a patient files a lawsuit, proving that you were being cared for by an LPN that MIGHT have been improperly trained and unqualified will just about win your lawsuit for you. So now RNs have to perform both their duties – patient care and assisting doctors – AND the duties that LPNs used to do. And get this: finding a hospital that has actually filled all the RN positions that they need is rare. They’ve just gotten used to operating with an RN shortage, just as they have with a doctor shortage.

And you also have to look at how insurance companies do business. They don’t just throw all of their policies and divisions into one pot and say that so long as they are making a total net profit they are fine. Each type of policy has to generate revenue, make a profit, on its own or insurance companies will stop offering that policy. So if you “limit their side of the equation”, GOOD insurance companies will respond by making the perfectly legal, responsible and moral decision to stop offering malpractice insurance, and the void will be filled by NOT SO GOOD companies. Or we could socialize malpractice insurance in order to remove the profit margin, but soon even the government agency that takes over that function would look to do pretty much the same in order to minimize the costs to the taxpayer.

This malpractice lawsuit thing has actually done nothing but A) create even more victims of malpractice and B) drive up the cost of medical care past where more and more can’t afford it while C) failing to adequately compensate the vast majority of people with legitimate malpractice claims. It needs serious reforms, and the best way to start is to separating the real victims from the folks that are just looking for a paycheck (and their lawyers). Once we identify people with legitimate claims, then give them their due, but the reform has to start somewhere.

benevolus December 3, 2013 at 7:37 am

Exactly. The insurance companies can’t be controlled. The hospitals can’t be controlled. Even the lawyers can’t be controlled. So, we control what we can- the victims. Because we don’t have the courage to actually solve the real problems.

charliemann2 December 2, 2013 at 2:28 pm

Why are not conservatives of one voice on Tort Reform? It’s not rocket science. The right to sue should not be eliminated, but there must be restrictions on how much protection a patient gets when dealing with an inexact science where consumer behavior affects much of the outcome. Negligence exists and must be adjudicated fairly but lawyers have stretched the bounds of what is negligent to the extreme such that anything less than desired outcomes is sufficient grounds for outrageous awards. Medicine will always be as much art as science, but as providers become better at defining and instituting best practices, improved outcomes will follow. What must not follow is lawyers finagling the system so that every exotic test and new treatment option that is not prescribed becomes grounds for their continued largess. We cannot afford it and it will do nothing to improve our nations health.

atl_man December 2, 2013 at 8:41 pm

Oh please. None of this “dealing with an inexact science where consumer behavior affects much of the outcome” or “lawyers have stretched the bounds of what is negligent to the extreme such that anything less than desired outcomes is sufficient grounds for outrageous awards.”

The problem is A) outrageous jury verdicts for punitive/pain-suffering damages and B) using the class action lawsuit as a fishing lottery for free money. Otherwise, this “art versus science” and “not getting desired outcome” stuff is ridiculous. Doctors are human, and humans make mistakes. Mistakes happen more often because we have a shortage of doctors and nurses, forcing both to work long hours with too many patients, and then there is all the administrative, bureaucratic type stuff they have to deal with. Result? Misdiagnoses. Giving people the wrong medicine or too much medicine. MRSA and other infections due to poor sanitation. Fingers slip and slice the wrong nerve or blood vessel during delicate operations. And so on. It results in huge numbers of deaths annually, not to mention people who survive experiencing life-altering injuries and crushing medical bills. When that happens, what needs to occur isn’t some right wing speech on dealing with adversity, pulling yourself up by your bootstraps and refusing to be a victim. Instead, the people at fault need to pay up. If a guy who was making $40,000 a year as a construction worker or unloading freight goes to the hospital over a relatively mild injury or illness and winds up in a wheelchair for the rest of his life because a doctor or nurse made a mistake, that guy needs the money that he would have earned from work had the provider not harmed him in order to support himself and his family as well as money to pay for future medical issues related to this incident down the line, not just covering his immediate medical expenses plus a few thousand in folding money that won’t last 3 months.

Really, charliemann2, attitudes like yours are what drives people away from conservatism and the GOP, and it needs to change, fast.

Harry December 2, 2013 at 10:14 pm
Scott65 December 3, 2013 at 11:38 am

Ok…on this Cancer treatment stuff…so they want to move oral cancer treatment to the equivalent of IV medication? Hope you dont have a prescription plan, because the co-pay is much higher for IV administration of medication since its covered in major medical which is in same category as in hospital care. Also, what defines “oral cancer medication”? (I’m assuming it is something you take by mouth not for an oral cancer like of the tongue or throat). That could very well cover all HIV meds since they do prevent and treat cancers that result from HIV. This is a scam that could very easily have a word or two changed or added at the last moment that would vastly change how this works. How about just requiring oral cancer meds be included on all insurance co. formularies? That would do what they say they want to accomplish…which makes me think this bill has a sinister ending if allowed to proceed

Bull Moose December 4, 2013 at 12:45 am

Scott65 – you are misunderstanding the Cancer Treatment Fairness Act. On the national level, this is called the Cancer Drug Coverage Parity Act. It’s HR 1801 and has bi-partisan support from both Republicans and Democrats.

There hasn’t been a lot of movement on this issue in Georgia and hopefully that changes! Even if all 50 states were to make this change to keep up with the innovation of medical care, ERISA covered plans would still not be covered and would only be covered if action takes place at the federal level.

To quote the bill sponsor, Rep. Brian Higgins, D-NY, “[Oral chemotherapy] is also driving some of the most exciting research in fighting cancer. 35% in the oncology pipeline are oral chemo drugs.”

From the American Cancer Society Cancer Action Network, “Do cancer patients have access to the latest anti-cancer medications? If the newest chemotherapy comes in the form of a pill, the answer may be no. Insurance covers oral chemotherapy under its pharmacy benefit. Under some plans, co-payments or co-insurance for oral chemotherapy medicines can run into the hundreds or thousands every month. At a time when families are struggling with the emotional, physical and financial burdens that accompany cancer, they shouldn’t have to worry about making a large out-of-pocket expenditures in order to receive lifesaving medication. Too many patients are forced to choose between paying their mortgage, utilities, food or medicine.”

What you say at the end of your snarky comment is what this bill does do – it ensures that oral chemotherapy is covered at parity with other forms of chemotherapy.

You may not be aware that for MANY, oral chemotherapy isn’t covered and patients that need the pill form of chemotherapy must come out of pocket for those expenses. Before you get all up in arms about this, you should also know that most insurance companies also support this legislation at the state and federal level.

Here are more sources where you can do your own research:
http://www.medscape.com/viewarticle/807406_3
http://myeloma.org/Advocacy/PEAC_Factsheet_Myths_and_Truths_about_Oral_Chemo_April_2013.pdf
http://www.milliman.com/uploadedFiles/insight/research/health-rr/parity-oral-intravenous-injected.pdf

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