Not dead yet

Been away from the blog for a while, what with some travel, holidays, and other real-life activities.  In fact, I've been totally unplugged from the Hive Mind, and it's been quite refreshing -- no blogging, no twitter, not even reading blogs, by and large. 
 


Most recently I was coaching a kid's sports development camp.  Fun and exhausting.  My kid's going on seven, so they put me with the 9-11 year-olds, wisely separating kids and their dads.  It was quite an eye-opener to work with the older kids -- they can actually play!  For example, in baseball, an infield grounder results in a routine 4-3 put-out, not a "little league home run," and in soccer these guys were shockingly good.  Most of them had been playing for years, and they had serious ball skills, even if they did tend to lapse into bunch-ball from time to time.  

Generally the coaches played in the games along with the kids; a great way to learn humility is to try to keep up with ten-year olds for thirty minutes on a soccer pitch.  Worse yet, as a reasonably athletic adult, I was not automatically the best player on the field, and maybe not even the second-best.  Sobering.

At the end, I could barely walk, but there was one last ritual: the coaches vs kids match.  It was a one-one tie, but they had a goalie and we played empty net and without about ten fewer players, so I'll call it a moral victory.  Ronny beat his own dad to score a goal, and after that the gloves came off.  It was awesome: no holds barred.  You haven't lived until you've seen a full-grown adult run over a ten year old to get to the ball, and I confess I totally trampled Carson while making a turn.  Nobody got hurt, and everybody had lots of fun.

And I still can't walk without a limp...

Photo Credit: TampaBay.com Blog

Great post

Proposition Disposition « Ten out of Ten

In residency you learn how to diagnose a supracondylar fracture. Out in the community you learn how to disposition it.

Happy Fourth of July

But really, folks, be careful with the fireworks!

Photo credit: Surfactant on Flickr

I never knew I was so powerful

Here it is, barely two weeks since I wrote in the New York Times that the best way to give doctors the right incentives was to reduce the pay for specialty-based procedural medicine and to increase the pay for primary care services.  And what happens?

Medicare Plans to Cut Specialists' Payments - WSJ.com
The Obama administration said Wednesday that it plans to cut Medicare payments for imaging services and specialists, and will use the savings to increase payments to physicians providing primary care.

Under the proposal, Medicare would put specialists' payments for evaluating and managing illnesses on par with those of primary-care physicians starting in January.

That, combined with other changes, would boost payments to internists, family physicians, general practitioners and geriatric specialists by 6% to 8% next year, said the Centers for Medicare and Medicaid Services

Wow. What should I wish for next? (Note to humor-impaired: this is facetious.  I may be paranoid, but I'm not delusional.)

Seriously, this is pretty good news.  Pediatrics, another poorly-compensated specialty will see a 4% increase, and just for the record, Emergency Medicine is pretty flat at 2% increase.  Hardest hit among specialists are Radiation Oncology, Nuclear Medicine, Interventional Radiology, Cardiology, and Radiology, all of which see >10% decreases in direct compensation.  This may in fact be understating the impact, in that the compensation will also be cut for certain diagnostic procedures such as echocardiography (-42%), coronary angiography (-24%), as well as the payments for CT, MRI and PET scans, and radiologists often (though certainly not always) own the equipment being used to perform the scans. The full proposed rule can be donwloaded here (PDF, 1128 pages -- pg 716 has the list), and is summarized here.

This is being accomplished in a variety of ways: Medicare will no longer pay for lucrative consultation codes, treating them instead as less-valuable Evaluation & Management (E/M) codes.  This is the big hurt for cardiology in particular.  The cuts in payment for radiology studies come from a change in the estimate of the utilization of the scanners, which were previously assumed to be in use only 50% of the time, but data showed were in use closer to 90% of the time; as a result the expected cost per study will be reduced.

There are also some minor fudges to the professional liability and practice expense components of the RVUs.

The good news is that this will help primary care docs and that is sorely needed.  The bad news is that the cost of this assistance seems to fall disproportionately on a few specialties.  My feeling is that the cost of a primary care bailout should be shared throughout the specialist world (yes, including Emergency Medicine if need be), not that the cardiologists and radiologists alone should fund it.  Under this plan, the compensation for general surgery, neurosurgery, orthopedic surgery, opthamology, anesthesiology and others actually go up, some as much as the primary care specialties!  And some "medical" specialties who do not perform a lot of procedures, such as oncology and allergy, wind up losing revenue.

It's also unclear to me whether this will be applied to all payers, or only Medicare.  Presuming that this change does not effect commercial payers, the net effect on primary care will actually be pretty small -- far too small to induce dramatic changes in physician compensation that are needed to drive physicians back towards the practice of primary care as a specialty.

So while the predictable histrionics are already beginning from the most affected specialty societies, it seems pretty clear that this is only a small first step and that further and more broad-based physician payment reform will be needed before primary care is restored as a viable area of medical practice.  And while I like the gesture towards acknowledging the importance of funding primary care, I'm not at all happy with the process by which CMS has arrived at this first step.  Worse, will it induce a sense of "fixed that, what's next?" which will preclude further revaluation of primary care services?   I dunno.  A for effort, guys, but minus ten points for execution.

The HELP bill

The Senate HELP (Health, Education, Labor & Pensions) Committee took a sort of a mulligan today after an embarrassing miscue last week in which an incomplete bill was released for scoring by the Congressional Budget Office (CBO) and came back costing a trillion dollars and covering less than a third of the uninsured.   That was a pretty big PR setback for reform, and generated a lot of right-wing talking points against the bill, but it was all pretty meaningless as it wasn't the final bill being scored.   Finally today, a more-or-less complete version of the bill (PDF) is out, and it looks pretty good.

Key features:

• Cost is in line with expectations at $1 to $1.3 trillion over ten years ($600 billion with an assumed $400-700B in expanding Medicaid to 150% FPL).
• Coverage is near universal, about 97% of population, with 21 million newly insured and 20 million more in expanded Medicaid.  Illegal immigrants not covered, of course.
  
• There is an employer mandate with a "pay or play" clause, with exclusions and/or credits for small businesses.
• There is an individual mandate with a meaningful penalty of not less than half the cost of insurance for those who can afford but do not purchase insurance.
• There is a "weak" public plan, which I think is a good thing, called the "Community Health Insurance Option."
• There is a limited health insurance exchange ("Gateways") administered by the states; these exchanges require community rating, guaranteed issue (i.e. no more pre-existing conditions exclusions) and prohibit recissions.  Very nice!
  

The Public Plan:

• Will be run by the department of Health and Human Services (which also runs Medicare).
• Will be voluntary for providers to participate or not.
• Will reimburse providers based on the average commercial payer rate in a region, which will be periodically renegotiated.
• Will be funded by premiums costs, not by taxpayer subsidies.
• Has "risk corridor premiums" to prevent dumping of sick patients into the plan.
  
• Start-up costs will be provided by the government in the form of a loan which must be be repaid over time.

Overall, this follows Chuck Schumer's principles for a "level playing field" public plan.  It won't get much republican support, I think, but it is clearly designed to rebut the criticisms that this is intended to be a back-door to a single payer system. 

While the public plan looks fair and good, I am a little concerned about the employer mandate.  The penalty for employers who do not offer insurance is $750 per employee per year, which is much more than the Massachusetts employer contribution but a lot less than the 8% of payroll that I've heard elsewhere.  However, even this weak mandate would supposedly generate about $50 billion towards subsidies for purchasing insurance for low-income workers.

The exchanges sound like they have some limitations on which employers or consumers can participate in them, which would limit their scope a bit, unfortunately.  And the subsidies in this bill aren't as generous as in the original draft -- they kick in at 400% of FPL instead of 500% as they did before, I think.

Sharp-eyed Orac notes that woo-meister Tom Harkin slipped in some free riders for purverors of snake oil and other alternative practitioners.

I have not seen any clear funding sources outlined as yet.

In terms of the pure politics, this is looking like the most likely to get enacted of the various plans circulating in Congress.  The House's bill is very liberal and has a strong public plan which would pay medicare-like rates. The Senate Finance bill is looking like a fairly conservative and less comprehensive bill. This may be the "compromise" position which finally gets through.  If this is what we wind up with, it's by no means perfect or complete, but it's pretty darn good.

Note:

I have not read the bill itself yet, so this is cobbled together from multiple sources.  Here they are for your edification and education:

Tim Foley Change.org -- probably the most comprehensive summary
Jon Cohn at TNR Here and Here -- he runs the numbers well
Politico
Ezra has more details
Igor at the Wonk Room

Is today Christmas or something?

Seriously, today must be Christmas, because Google Reader left a whole bunch of presents in my in box and I got everything I wanted!

• A Senate health reform bill out of the HELP Committee with a public plan!
• Increased payments for Primary Care!
• A partial fix for the SGR!
• Democrats finding their backbone!
• The AMA sort of supporting a public plan!
• Wal-Mart supporting an employer mandate!

(We're in "holy crap" territory here, folks.)

There's one lump of coal in my stocking, though -- "alternative practitioners" are included in the health reform plan.

There's so much wonky goodness, I'm going to split this into a couple of posts to discuss.  To follow shortly.

Milestone

I just noticed that sometime while I was away, the odometer cracked 500,000 unique visitors to this little blog.  I don't put too much emphasis on artificial metrics like that, but it's still pretty cool.  Once again, I am humbled and grateful that you take the time to come by and read my incoherent rantings.   Really, you're performing a public service, because without this outlet I'd be assaulting pedestrians on the streets and screaming at them about the public plan option.  So, well done!

Thanks again for visiting; knowing that you all are reading this keeps me honest and gives me motivation to put out the highest quality material I can.

The Central Line

The professional organization for emergency room physicians, ACEP, is slowly grinding its way into the new millennium.  They've made their Twitter debut, and also have created an on-line "blog," what ever the heck that might be.  It's cleverly titled "The Central Line," and perhaps not so cleverly, they have invited me to write for it.

Yeah, seriously.  I don't know what they were thinking, either.

So put it in your RSS feed; I'm still going to be posting primarily here, but will occasionally post stuff exclusively to The Central Line as it seems appropriate.  We are actively recruiting other EM bloggers to particpate, so some other familiar voices may be dropping by from time to time.

Blog fight!

Oh, man, I picked a fight with Ezra and he got all wonky on me, even with a chart.  Oh Noes!  Not a chart!  And ... it's actually a pretty interesting chart.  Here it is:

First of all, just for the record, let it be noted that my previous post was entirely about Medicare's under-reimbursement of physicians, and Ezra's clearly going all Willie Sutton and going where the real dollars are: facility reimbursement.  Fair enough, though I'll disclaim that I'm not nearly as well-versed in hospital reimbursement as I am in the professional side of the Medicare fee schedule. 

The above graph would seem to disprove Ezra's original thesis, that hospitals continue to participate in Medicare because it is profitable for them to continue to do so.  As you can see, there's rampant cost shifting, as Medicare pays only 92% of the actual costs of inpatient care whereas the commercial payers are in the high 120s%.  Right? 

Well, yes and no.  The lifeline in this case is some very interesting testimony by the head of MedPac regarding a small subset of hospitals (about 12% of all hospitals) who were actually able to eke out a positive margin (0.5%) on Medicare payments in 2004-2006.  The contention is that since these hospitals were able to do so, and with higher quality than the other 88% of hospitals, that the hospital industry in general is inefficient and if they were only able to get their act together Medicare payments would be sufficient to support a viable hospital industry.

The key factor which Ezra elides over is that these hospitals are in the "financially pressured" category.  There doesn't seem to be a definition or cross-tabs on what exactly "financially pressured" means, but these hospitals actually have a worse operating margin on their non-medicare business (-2.4%).  Given that, it's fairly safe to conclude that this means hospitals with crummy payer mixes -- high medicaid and uninsured, low numbers of commercially insured patients.  This occurs most commonly in rural and inner-city markets -- underserved areas in which there is usually one hospital at best.  These undesirable markets do not encourage other providers to enter and compete for customers and so the hospitals there tend to undercapitalize, willfully or no, and offer bare-bones services.  That some fraction of "financially pressured" over-perform on outcomes is not explained in the testimony.   It could be a statistical aberration, or cherry-picked data; giving credit to the integrity of MedPac, it might be due to the exceptional leadership that some of these financially stressed hospitals have developed.  The testimony does not reveal what fraction of "financially pressured" hospitals outperform on quality measures -- if less than 50% of "financially pressured" hospitals outperform on quality, it would imply that the under-funding of these facilities harms quality of care more than it helps.  Note that those that outperform have substantially worse margins (0.5% vs 4.2) on Medicare payments, implying that there is some linkage between higher expenditures and better outcomes.

I am gallant, however, and I will concede the key point here: hospitals which are well-funded do tend to be inefficient.  Specifically, areas with enviable payer mixes are generally served by multiple hospitals and those hospitals compete for patients and revenue by over-capitalizing and improving amenties and customer service.  This is just another example of the perversion of the market in which patients do not directly bear the costs of their health care decisions. 

Coming back to the original point: if Medicare were such a lousy payer, hospitals would opt out, yet this never occurs.  Interestingly, the well-heeled suburban hospitals who lose the most money on Medicare patients are the least likely to opt out of Medicare.  They have such high margins on their commercial patients that they can view Medicare as their charity contribution to the community.  On the other hand, the financially pressured hospitals do better on Medicare than the rest of their payers, so Medicare is their economic lifeline.  Or, more formally, the value of Medicare patients to a hospital varies inversely with the number of commercial patients in their payer mix.

Ezra's conclusion here is that we need to cut costs, hospitals are in many cases inefficient, and so we should just reduce payments to them until they feel the pain and dial it way back.  As my old medical director used to say, "We're building a Buick, not a Cadillac." But there are many problems with such a strategy.  For one, the hospitals most dependent on Medicare would be harmed most by reductions in payments.  While workarounds could be crafted for financially stressed hospitals, it's unclear what effect reductions in payments would have in quality, but it would be hard to imagine that quality in general would improve.  And it's not clear to me that this really addresses the key drivers of cost: wasteful and redundant care, as opposed to more-expensive-than-it-needs-to-be inefficient care.  Given the volume incentive of the fee-for-service game, reductions in compensation usually just drive increases in utilization, not the other way around.

Ultimately on this point, I have to concede ignorance.  I know that the Medicare Professional Fee Schedule for phyicians is woefully inadequate and needs to be increased.  I do not know if the same applies to the hospital fee schedule -- I'm just not well-enough versed in the economics of that game.  I should point out that while medicare payments to physicians have been essentially frozen since 2001, the facility fees, unconstrained by the SGR, have risen year over year to keep pace with inflation.  I never did see any disagreement with my original points, by the way, that for professional services, the underfunding of Medicare is leading to decreased access as physicians close their practices to new Medicare patients, and that hospital-based physicians are unable to opt out due to the nature of their realtionships with the hospitals who employ them,

Thank you

This has been bugging me for a while now: I can't write about the proposed health care reforms without some twit in the comments or an email writing that "Obama's" plan is going to ... [insert various calamity here].

As usual, it takes Nate Silver to make the point clearly:

FiveThirtyEight: Politics Done Right: Obama Has a Health Care Plan?

CNN asked a stupid question and got a stupid result:

From everything you have heard or read so far, do you favor or oppose Barack Obama's plan to reform health care?

51% Favor, 45% Oppose

OK, so in fact there's nothing stupid about the question at all. The public's response, likewise, is perfectly reasonable given the information they were provided.

But a better question might be: what exactly is Barack Obama's health care plan? Does he have one?

And if so, what's included in it? Is it the plan Obama advanced on the campaign trail, which had a public option but lacked an individual mandate? Is it the one making its way through the Senate Finance Committee, which has an individual mandate but lacks a public option? Is it the House's version, which has both?

Yes.  Obama himself doesn't have a health reform plan.  There are a zillion proposals floating out there, many of which have been explicitly or implicitly endorsed by Obama, some of which have features favored by Obama, but none of which were crafted by Obama or anybody in his administration.

This may be bad politics, as Nate goes on to suggest, because it allows critics to attack his plan (which doesn't even exist).  On the other hand, Clinton famously took a micromanaging approach with congress in his attempts to reform healthcare with disastrous results.  I'm not sold on the "right" way to go about it, politically, either way.

But one thing which is pretty clear to me is that the critics who make blanket statements against "ObamaCare" are either ignorant or not arguing in good faith.  A lot of critcics, to their credit, are on-point, and make good policy arguments against specific provisions such as the public plan or single payer or what-have-you.  But the majority, I'm sorry to report, seem very clearly in the "whatever it is, I'm against it" camp.  And that has no credibility whatsoever.

When he's good, he's very good, but when he's bad...

I make no secret for my admiration of Ezra Klein. He's an example of the sort of journalist we need more of -- he's identified his niche, is dogged in figuring out the intricacies of his subjects, and brings a fresh way of looking at things that I've often found valuable.  But he's never worked in the health care industry, and book learning has its limits, as he demonstrated today:

Ezra Klein - Does Medicare Work by Dictat?

Some of the folks I've talked with seem to think that because Congress sets [Medicare] prices, providers have to accept them. The long arm of the government reaches in and breaks the window and unlocks the door and pushes the elderly into the waiting room. But that's not true at all.

At the beginning of each year, providers decided whether they will do business with Medicare. In other words, they choose whether or not to accept public insurance like Medicare or Medicaid. Almost all of them choose to do so, because providing health services to Medicare patients is actually a very profitable business (Medicaid patients, less so).

I'm not really sure where to start with this, because it's breathtakingly wrong on several levels.

Let's start with the idea that Medicare patients are "profitable."  First of all, profitable means different things to different specialties.  If you're an orthopedic surgeon specializing in hip replacements, almost all of which are done to old people under medicare, then yes, the reimbursement for that procedure is adequate to pay the bills and provide a good living.  Fair enough.  If you are a primary care doctor, however, the reimbursement for that is a lot lower, low enough that alone it may not cover costs at all.  Remember that primary care is a business and that docs have to pay rent, insurance, office staff and benefits, equipment, etc before they can pay their own salaries.  The Medicare Professional Fee schedule has not had a meaningful update in well over a decade and in fact pays less well now than it did in 1995.  That's in gross dollars, not inflation-adjusted dollars.  Meanwhile, the other costs have gone up, some well in excess of inflation -- healthcare costs for office employees being a prominent and ironic example.

The result there is that most docs take a loss or at best break even on Medicare patients.  The proof of this is the difficulty that Medicare beneficiaries have in finding physicians.  Yes, most docs do still participate in Medicare, but they have capped the number of spots in their clinics available to Medicare patients.  A practice with more than a certain fraction of Medicare is just not financially viable.

So why don't more docs just opt out?  Part of it, from my experience talking to family docs, is that they feel an obligation to their existing patients and don't want to cast them out.  A bigger reason, I suspect, is that there is a big disincentive for docs to opt out.  If I cancel my group's Aetna contract today, and decide it was a mistake in four months, I can re-enroll and be up and running in their network within days.  Medicare requires a two-year waiting period for docs who opt out before you can re-enroll in the program.  If it turned out to be a bad business decision, then there's no take-back.  That's a risk many docs are not willing to take.

The other consideration in the "voluntary" nature of Medicare participation is that many specialties are hospital based and as such are required by their hospital partners to participate in Medicare as a condition of being allowed to practice in the hospital.  Every ER contract I have ever reviewed stipulated obligatory Medicare participation.  Ditto for radiologists, anesthesiologists, pathologists, as well as many surgical specialties.  So if you're an ER doc who does not participate in Medicare, I wish you well in finding a job, but you cannot work at any of my facilities!  Whether an arrangement in which external agents compel participation in a voluntary program could be considered "voluntary" is an exercise left for the philosophers.  As a practical matter, for any hospital-based doctor it is mandatory if you wish to be employed.

Turning to the practical extension, whether health insurance reform should include a government-run option:

If [the public plan] underpaid providers, providers would stop accepting it. And if they stopped accepting it, then people would switch to a private insurer because they'd want to be able to keep their doctor and they'd be willing to pay the difference to do so. Just as private insurers could lose members if their rates weren't low enough, the public plan could lose members if its rates were too low.

Depends.  That's the "weak" version of the public plan, and I hope it's implemented.  Proponents of a "strong" public plan would like to see its reimbursement linked to Medicare's and would like to see participation mandatory for docs who are on Medicare.  Given that the public plan is itself at risk of elimination, I think the strong public plan is becoming vanishingly unlikely, so it's not the #1 fear I have these days.

But yes, Ezra, Medicare does work by dictat.

(Oh, and by the way, thanks for the link last week.)

When he's good, he's good, but when he's bad...

I make no secret for my admiration of Ezra Klein. He's an example of the sort of journalist we need more of -- he's identified his niche, is dogged in figuring out the intricacies of his subjects, and brings a fresh way of looking at things that I've often found valuable.  But he's never worked in the health care industry, and book learning has its limits, as he demonstrated today:

Ezra Klein - Does Medicare Work by Dictat?

Some of the folks I've talked with seem to think that because Congress sets [Medicare] prices, providers have to accept them. The long arm of the government reaches in and breaks the window and unlocks the door and pushes the elderly into the waiting room. But that's not true at all.

At the beginning of each year, providers decided whether they will do business with Medicare. In other words, they choose whether or not to accept public insurance like Medicare or Medicaid. Almost all of them choose to do so, because providing health services to Medicare patients is actually a very profitable business (Medicaid patients, less so).

I'm not really sure where to start with this, because it's breathtakingly wrong on several levels.

Let's start with the idea that Medicare patients are "profitable."  First of all, profitable means different things to different specialties.  If you're an orthopedic surgeon specializing in hip replacements, almost all of which are done to old people under medicare, then yes, the reimbursement for that procedure is adequate to pay the bills and provide a good living.  Fair enough.  If you are a primary care doctor, however, the reimbursement for that is a lot lower, low enough that alone it may not cover costs at all.  Remember that primary care is a business and that docs have to pay rent, insurance, office staff and benefits, equipment, etc before they can pay their own salaries.  The Medicare Professional Fee schedule has not had a meaningful update in well over a decade and in fact pays less well now than it did in 1995.  That's in gross dollars, not inflation-adjusted dollars.  Meanwhile, the other costs have gone up, some well in excess of inflation -- healthcare costs for office employees being a prominent and ironic example.

The result there is that most docs take a loss or at best break even on Medicare patients.  The proof of this is the difficulty that Medicare beneficiaries have in finding physicians.  Yes, most docs do still participate in Medicare, but they have capped the number of spots in their clinics available to Medicare patients.  A practice with more than a certain fraction of Medicare is just not financially viable.

So why don't more docs just opt out?  Part of it, from my experience talking to family docs, is that they feel an obligation to their existing patients and don't want to cast them out.  A bigger reason, I suspect, is that there is a big disincentive for docs to opt out.  If I cancel my group's Aetna contract today, and decide it was a mistake in four months, I can re-enroll and be up and running in their network within days.  Medicare requires a two-year waiting period for docs who opt out before you can re-enroll in the program.  If it turned out to be a bad business decision, then there's no take-back.  That's a risk many docs are not willing to take.

The other consideration in the "voluntary" nature of Medicare participation is that many specialties are hospital based and as such are required by their hospital partners to participate in Medicare as a condition of being allowed to practice in the hospital.  Every ER contract I have ever reviewed stipulated obligatory Medicare participation.  Ditto for radiologists, anesthesiologists, pathologists, as well as many surgical specialties.  So if you're an ER doc who does not participate in Medicare, I wish you well in finding a job, but you cannot work at any of my facilities!  Whether an arrangement in which external agents compel participation in a voluntary program could be considered "voluntary" is an exercise left for the philosophers.  As a practical matter, for any hospital-based doctor it is mandatory if you wish to be employed.

Turning to the practical extension, whether health insurance reform should include a government-run option:

If [the public plan] underpaid providers, providers would stop accepting it. And if they stopped accepting it, then people would switch to a private insurer because they'd want to be able to keep their doctor and they'd be willing to pay the difference to do so. Just as private insurers could lose members if their rates weren't low enough, the public plan could lose members if its rates were too low.

Depends.  That's the "weak" version of the public plan, and I hope it's implemented.  Proponents of a "strong" public plan would like to see its reimbursement linked to Medicare's and would like to see participation mandatory for docs who are on Medicare.  Given that the public plan is itself at risk of elimination, I think the strong public plan is becoming vanishingly unlikely, so it's not the #1 fear I have these days.

But yes, Ezra, Medicare does work by dictat.

Two Wrongs

Happy The Hospitalist has a post with a provocative title (as is his wont):
Should Emergency Physicians Be Given Immunity From Lawsuits?
which recaps a bill under consideration in Ohio:

Ohio is the latest state to introduce new legislation that would dramatically increase the legal standard to win a civil suit against a doctor working at an emergency department [...] physicians would have qualified civil immunity while working in emergency rooms and be subject only to lawsuits if they showed “willful or wanton misconduct” — a high standard for liability usually reserved to determine punitive damages.

This is an interesting example of a legislative trend that seems to be gaining steam.  EMTALA is the pretext for this bill, and the "hook" that allowed Ohio ACEP to sell it to friendly legislature.   But it makes no sense at all.  There's no reason why the specialty of Emergency Medicine should be granted such great protection from malpractice liability compared to every other medical specialty.  Yes, we bear significant costs under EMTALA, which was an ill-conceived unfunded mandate which unfairly compels healthcare providers to work for free.  And yes, I believe that the medial liability system is unfair and too expensive.  I also agree that Emergency Medicine is an essential public health service, the proverbial safety net, and that access to emergency care needs to be protected and improved. 

But with respect, WTF does EMTALA have to do with med mal reform?

Nothing.  It's a great example of opportunism on the part of the EM lobby, and of the maxim that "hard cases make bad law."  If med mal is broken, it should be reformed.  If EMTALA is unjust, it should be funded or revised or made unnecessary through universal health insurance.  But to "make up" for one bad policy by creating a carve-out for one specialty in another bad policy is just, well, it's bad policy.

This law, I might add, is extremely broad.  I might even say excessive.  Based on my quick read of the text, it implies that any doc who provides any EMTALA-compliant service is shielded from liability.  Now I might have sympathy for a narrow law that basically shields docs who provide uncompensated care.   That would have a certain degree of quid-pro-quo fairness to it: you have to see this patient for free, so the state will exempt you from liability in this case.  Almost seems fair from the doc's point of view.   But this law would seems to apply to any patient whose presentation invoked EMTALA, which is to say any patient who "comes to the ER" -- even funded patients.  If someone comes in, I see them and they pay me for that service, why then should I be exempted from any consequences of my care?  It makes no sense.  Basically, what this would mean is that in Ohio, ER docs would be all-but-immunized from liability. 

Wow.  That's a big gift to ER docs.  But believe it or not, it's still inadequate to "make whole" the profession from the costs of EMTALA.  If we were to assume (optimistically) that the costs of med mal insurance and out of pocket expenses were to go to zero for ER docs as a result of this bill, that would save the typical ER practice 3-8% off their bottom line.  It's not uncommon, however, for ER groups to see 15-20% of their patients without insurance, and 25-40% of their patients as functionally unreimbursed, given the vagaries of Medicaid.  So the value of this carve-out still falls far short of the cost of EMTALA.

And never mind, of course, that if you are a patient harmed by an ER doc (it does happen from time to time) you are out of luck in seeking justice. 

Happy wonders whether this immunity would extend into the inpatient setting.  I suspect that would be a matter for a judge to interpret, but the case law of EMTALA suggests that necessary "stabilization" treatment is compelled under the act and so a decent argument could be made that "stabilization" treatment is covered and that particular cases would have to flesh out that boundary.

None of this is to argue that the current med mal system is just great and not in need of reform.   I can see why this approach has its appeal.  It's a lot easier than the real work of tackling med mal reform head on.  It addresses not one but two chronic grievances of ER docs.  It's more likely to bear fruit -- in most jurisdictions, ER docs have a certain credibility among lawmakers as the "good guys."  But a patch that is inadequate, logically disconnected from the problem, unfair to patients, and excessively broad is not the right solution.